Opinion
E078342
10-25-2022
THE PEOPLE, Plaintiff and Respondent, v. EDWARD PHILLIP TELLEZ, Defendant and Appellant.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County. No. FVI17000901 Tony Raphael, Judge. Dismissed.
Martin Kassman, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland, Christopher P. Beesley and Warren J. Williams, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
CODRINGTON, J.
I.
INTRODUCTION
Defendant and appellant Edward Phillip Tellez appealed the trial court's denial of the California Department of Corrections and Rehabilitation's (CDCR) recommendation to release defendant early from prison due to his stage IV rectal cancer. Defendant argued the trial court abused its discretion in denying the request because it failed to give proper deference to the prison authorities' judgment and relied heavily on his past conduct in concluding he posed a threat to public safety. While this appeal was pending, defendant was granted compassionate release from prison, and the Governor signed Assembly Bill No. 960, which, among other changes, created a presumption in favor of recall and resentencing if the court finds that an incarcerated person is medically qualified unless the defendant poses an unreasonable risk of danger to public safety. We conclude that the issue on appeal is now moot and therefore dismiss the appeal.
II.
FACTUAL AND PROCEDURAL BACKGROUND
The factual background is taken from the preliminary hearing transcript.
A. Factual Background
On March 31, 2017, the victim, who was 82 years old at the time, drove her Buick Roadmaster to a store in Victorville. After she parked her vehicle and slightly opened the driver door with the keys still in the ignition, defendant came up from behind, swung her door wide open, pulled her from the car, and pushed her down to the ground. The victim got up and attempted to grab defendant, but he turned around and pushed her down again. Defendant then got into the victim's car and speedily drove away. The victim required stitches for injuries to her left wrist, left arm, and right elbow.
Later that evening, when sheriff's deputies located the victim's Buick, they attempted to conduct a traffic stop of the vehicle. Defendant did not yield, but instead proceeded onto the highway, requiring law enforcement to set up spike strips to deflate the vehicle's tires. Defendant hit the spike strips, causing the two driver side tires to deflate. Nonetheless, defendant failed to stop and continued to drive away between 50 to 65 miles per hour with the deflated tires, resulting in the rubber on the tires to fall off and hit the pursuing officer's windshield and vehicle. Another officer ultimately forced the car off the road, which caused the car to crash and its engine to burst into flames. After the crash, defendant attempted to flee on foot, but two deputies chased defendant and eventually tackled and arrested him. The length of the vehicle pursuit was approximately 11 miles.
B. Procedural Background
After the preliminary hearing, substitution of counsel, and numerous continuances, on March 6, 2020, defendant pled no contest to carjacking (Pen. Code, § 215, subd. (a)) and evading an officer with wanton and willful disregard for safety (Veh. Code, § 2800.02, subd. (a)). As to the carjacking, defendant admitted that he personally inflicted great bodily injury on a person 70 years or older (§ 12022.7, subd. (c)). He further admitted that he had suffered a prior serious felony (§ 667, subd. (a)) and a prior strike conviction (§§ 667, subds. (b)-(i), 1170.12, subds. (a)-(d)). The remaining allegations in the information, as well as a case filed in July 2017, were dismissed as part of the plea agreement.
All future statutory references are to the Penal Code unless otherwise stated.
The July 2017 case involved an incident that occurred 12 days after defendant was booked into county jail on the current matter. The July 2017 matter charged defendant and a codefendant with assault by means of force likely to produce great bodily injury.
On April 16, 2021, the trial court sentenced defendant to 21 years, four months in prison with credit for time served.
Subsequently, approximately eight months later on December 22, 2021, the Secretary of the CDCR filed a letter advising the trial court that it had determined defendant, who was 47 years old at the time, satisfied the criteria for compassionate release set forth in section 1170, subdivision (e)(2)(A), and referred the matter for a section 1170, subdivision (e)(3) hearing. Attached to the letter was a diagnostic study and evaluation pursuant to section 1170, subdivision (e), a "medical chrono," a probation report, and other documents.
In its letter, CDCR explained that defendant had been diagnosed with stage IV cancer of the rectum, which had spread to his lung and gall bladder, that he was receiving chemotherapy, and that physicians had determined he had less than six months to live. At that time, defendant was ambulatory with the use of a cane, and he could perform daily activities such as feeding, bathing and dressing himself. CDCR noted that defendant had not received "any rules violation reports nor counseling chronos" during his incarceration and that if released from prison, defendant planned to reside with his niece in Apple Valley.
The diagnostic study and evaluation report, which was signed by two prison officials, including the warden, stated that defendant did not "retain the capacity to commit or to influence others to commit criminal acts that endanger public safety," and that defendant's "documented institutional behavior d[id] not reflect a history of offenses involving force, violence, assault, or predatory sexual behavior."
On January 7, 2022, a CDCR physician submitted a form updating defendant's condition. The form stated that defendant had a "significant past medical history of metastatic rectal adenocarcinoma with metastatic lesion to liver and lung," that defendant was currently on chemotherapy, and had a history of hypertension, anemia, and opiate use disorder. Defendant was under the care of an oncologist, was last seen by oncologist on December 21, 2021, and was going to continue with his palliative chemotherapy in January 2022. Defendant had developed "chemotherapy-induced progressive peripheral neuropathy with intermittent loss of balance" and was using a cane. Defendant's medical condition was expected to decline and that he would need hospice care and hospice placement in the near future.
On January 7, 2022, after hearing arguments by the parties, examining the evidence sent by CDCR and the criteria under section 1170, subdivision (e), the trial court denied the request to release defendant early or to recall the sentence and resentence him. The court found that, although defendant met the statutory requirement for compassionate release due to his terminal illness, he was not suitable for release because he remained a threat to public safety due to his criminal history of increasing seriousness and sophistication, documented gang participation, history of abusing methamphetamine, history of erratic behavior, attempts to escape both arrest and custody in the current case, and assaultive behavior while in jail on the current matter. The court pointed out that the July 2017 incident contradicted CDCR's statement that defendant had "not committed any other criminal acts either prior to or during the current period of incarceration." Defendant timely appealed.
On October 4, 2022, prior to oral argument in this case, defendant's appellate counsel had sent a letter to this court, advising us that on September 16, 2022, the CDCR had submitted a new recommendation that defendant be granted compassionate release from prison under section 1170, subdivision (e). Counsel further conveyed that on September 22, 2022, following arguments from the People and defendant's trial counsel, Judge Shannon L. Faherty had granted the motion for compassionate release.
III.
DISCUSSION
Defendant contends the trial court abused its discretion in denying CDCR's request to release him early pursuant to section 1170, subdivision (e)(2)(A) because it failed to give proper deference to CDCR officials' judgment and relied heavily on his past conduct in concluding he posed a threat to public safety.
At oral argument on October 5, 2022, defendant's appellate counsel noted that defendant had been released from prison and argued that the appeal is moot and, even if it is not moot, Assembly Bill No. 960 applies to this case. The Attorney General conceded the appeal is moot. We conclude that the appeal is moot.
Assembly Bill No. 960, which was signed by the Governor on September 29, 2022 and will be effective January 1, 2023, amended sections 1170 and 1170.02 and add section 1172.2 to the Penal Code relating to compassionate release and sentencing. In pertinent part, Assembly Bill No. 960 states: "This bill would reorganize these provisions [relating to compassionate release] and require the department to make a recommendation for recall or resentencing of an incarcerated person if an incarcerated person has a serious and advanced illness with an end-of-life trajectory or who is found to be permanently medically incapacitated. The bill would change the criteria for an incarcerated person to be considered permanently medically incapacitated by removing the 24-hour total care requirement and would include functional impairments resulting in the permanent inability to complete activities of daily living and progressive end-stage dementia that did not exist at the time of original sentencing. The bill would also create a presumption in favor of recall and resentencing if the court finds that an incarcerated person is medically qualified, unless the court finds the defendant is an unreasonable risk of danger to public safety, as defined." (Ass. Bill No. 960, (2021-2022 Reg. Sess.)
As a general rule, an appellate court only decides actual controversies. It is not the function of the appellate court to render opinions upon moot questions or abstract propositions, or declare principles or rules of law which cannot affect the matter in issue in the case before it. A case becomes moot when a court ruling can have no practical effect or cannot provide the parties with effective relief. (Eye Dog Foundation v. State Board of Guide Dogs for the Blind (1967) 67 Cal.2d 536, 541.) Thus, "'"an action that originally was based on a justiciable controversy cannot be maintained on appeal if all the questions have become moot by subsequent acts or events. A reversal in such a case would be without practical effect, and the appeal will therefore be dismissed."'" (People v. DeLong (2002) 101 Cal.App.4th 482, 486; see In re Dani R. (2001) 89 Cal.App.4th 402, 404.)
Here, defendant's compassionate release from prison renders this appeal moot. Accordingly, we dismiss the appeal.
IV.
DISPOSITION
The appeal is dismissed as moot.
We concur: RAMIREZ P. J., McKINSTER J.