by Sam Rutherford

The California Court of Appeal, Fourth District, reversed a trial court’s refusal to grant compassionate release to a defendant diagnosed with amyotrophic lateral sclerosis (“ALS”) who had less than a year to live at the time of the release hearing. The Court held that the fact the defendant could still speak despite being otherwise completely incapacitated was insufficient evidence that he posed an unreasonable risk of committing solicitation to commit murder.

Background

In 2020, Tyshawn Michael Lewis committed first degree murder by shooting the victim at close range five or six times. Two years later, in 2022, a jury convicted him of that offense, and the trial court sentenced him to 75 years to life in prison. The conviction and sentence were affirmed on appeal. Lewis began serving his prison sentence in August 2022.

In June 2023, the Department of Corrections and Rehabilitation (“DCR”) filed a petition with the trial court to recall Lewis’s sentence and grant him compassionate release. The petition noted that Lewis has ALS and is on a “clear end of life trajectory.” Lewis had lost the use of his arms and was having difficulty swallowing, breathing, and ambulating. Lewis required assistance with basic daily activities such as feeding, bathing, and dressing himself. Finally, the petition noted that Lewis had a life expectancy of less than six months.

The trial court held a hearing on the petition in August 2023. Dr. Michelle DiTomas testified in support of the petition. She noted that Lewis’ ALS had presented about a year prior to the hearing when he suddenly lost the ability to dribble a basketball and was “pretty rapidly progressive.” Dr. DiTomas, who had examined Lewis twice just prior to the hearing, noted that he was having difficulty speaking and that his speech was garbled. Nursing staff reported that Lewis was struggling to speak with his family by phone because he could not hold the receiver and his speech was not clear.

Dr. DiTomas further testified that nursing staff were required to do “everything” for Lewis—he could not eat, shower, or go to the bathroom by himself. Lewis was barely able to walk and would likely be unable to speak at all within another month or so. Dr. DiTomas concluded that “there’s just no way [Lewis] could cause harm to somebody” and that he was unable to protect himself. She testified that Lewis would likely die within six months and that she would be “surprised” if he lived a year. Dr. DiTomas concluded her testimony by noting that she believed Lewis’ ALS diagnosis had been profound for him and that he had “been incredibly respectful, appreciative of care” he had received.

The trial court denied the petition, reasoning that Lewis still posed the ability to commit the “super strike” offense of solicitation to commit murder and “to influence others to commit criminal acts that endanger public safety.” The court also based its decision on Lewis’ long criminal history, the brutality of the first degree murder conviction, and his involvement with the Rolling 30’s Crips. Lewis timely appealed, arguing that the trial court abused its discretion by concluding that he posed an unreasonable risk of danger to public safety if released.

Analysis

The California Penal Code authorizes a trial court to recall a sentence and grant compassionate release for any defendant with “a serious and advanced illness with an end-­of-­life trajectory,” including ALS. Cal. Pen. Code § 1172.2(b)(1). The law creates a presumption “favoring recall and resentencing” unless the court finds that “the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of § 1170.18.” Cal. Pen. Code §1172.2(b). Section 1170.18(c) in turn states that a defendant is an unreasonable risk if it is likely he or she will commit one or more of the eight felony offenses listed in § 667(e)(2)(C)(iv). These eight felonies are referred to as “super strikes” and include any homicide, attempted homicide, solicitation to commit murder, and any violent or serious felony punishable by death or life imprisonment. People v. Valencia, 397 P.3d 936 (Cal. 2017).

The Court had little difficulty concluding that the trial court had abused its discretion by finding Lewis posed an unreasonable risk of committing a super strike offense. To begin with, the Court stated that “Lewis’s mere ability to commit a super strike offense is not by itself probative of whether Lewis poses any risk—let alone an unreasonable risk—of committing such an offense.” Although it agreed that Lewis possessed the ability to speak and therefore could potentially commit the super strike offense of soliciting or aiding in a homicide, his “mere capacity” to do so is insufficient to deny the DCR petition.

In fact, the record contained no evidence that Lewis had ever solicited or directed anyone to commit a crime and also was devoid of evidence that Lewis had ever “acted in concert with anyone” while committing a crime, the Court observed. Thus, the Court concluded that absent such evidence, the fact that Lewis retained the ability to speak fails to prove he was an unreasonable risk of committing solicitation to murder.

Lewis’ criminal history and prison disciplinary record did not remedy this evidentiary deficiency because, again, nothing in these prior behaviors demonstrated a propensity to direct or act in concert with others to commit crime, the Court added. “If Lewis is released, it is possible that for the first time in his life he will use his ability to speak to solicit or aid and abet a homicide or attempted homicide. But the same bare possibility exists for anyone who has any ability to communicate.” Thus, the Court determined that Lewis’ criminal and prison disciplinary record supported nothing more than a “generalized concern” of future criminal activity, which is insufficient to deny compassionate release. Nijmeddin v. Superior Court, 90 Cal. App. 5th 77 (2023).

Lewis’ alleged involvement with the Rolling 30’s Crips was also insufficient to justify denial of DCR’s petition, according to the Court. Contrary to the trial court’s findings, the evidence concerning Lewis’ gang affiliation status was at best ambiguous. Lewis had never been convicted of a gang-­related crime, and there was no evidence that he held “a sufficiently elevated status in any gang to be able to direct other gang members to commit crimes.” Rather, the evidence described Lewis’ gang affiliation as “suspected” and his gang level as “associate.” These facts fail to establish an unreasonable risk that Lewis would commit a super strike offense if released, the Court concluded.

Finally, the Court ruled that the trial court abused its discretion by relying on the decision in People v. Torres, 48 Cal. App. 5th 550 (2020), to deny the DCR’s petition. When that case was decided, the California Penal Code made compassionate release discretionary even if the defendant met all the release criteria. The Court explained that the California Assembly, however, overruled that case by amending the relevant statutes to make compassionate release mandatory unless the defendant poses an unreasonable risk of committing a super strike offense upon release.

Conclusion

Accordingly, the Court reversed the trial court’s order denying the DCR’s petition to recall Lewis’ sentence and directed it to grant the petition. The Court also ordered the remittitur to issue immediately so that Lewis may have some benefit from its ruling before he succumbs to his illness. See: People v. Lewis, 101 Cal. App. 5th 401 (2024).  

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