Filed 10/19/26 P. v. Chism CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
THE PEOPLE, C105766
Plaintiff and Respondent,
(Super. Ct. No. 06F01813)
v.
HOLMES CHISM,
Defendant and Appellant.
Defendant Holmes Chism is serving a 60-year sentence for 10 counts of lewd and
lascivious acts. Defendant was diagnosed with metastatic cancer in 2025, after which the
California Department of Corrections and Rehabilitation (CDCR) recommended recall of
his sentence and compassionate release under Penal Code section 1172.2 (statutory
section citations that follow are to the Penal Code). The trial court denied the
recommendation because CDCR failed to provide a “qualifying” and “genuine”
postrelease plan as required by section 1172.2, subdivision (h).
Defendant challenges this ruling on appeal. Specifically, he contends that the trial
court violated both the plain language and legislative purpose of section 1172.2 by
denying CDCR’s recommendation based on its failure to provide an adequate postrelease
plan rather than on whether he posed an unreasonable risk of danger to the public if
released. Defendant also claims that, even if the order complied with the statute, the trial
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court’s finding that CDCR failed to provide a “qualifying” and “genuine” postrelease
plan was not supported by sufficient evidence and was therefore an abuse of discretion.
As we explain, we disagree and will affirm the trial court’s order.
FACTS AND HISTORY OF THE PROCEEDINGS
A jury convicted defendant of 10 counts of lewd and lascivious acts on a child
under the age of 14 on December 20, 2006. (§ 288, subd. (b)(1).) The trial court
sentenced defendant to a determinate term of 60 years in prison.
In March 2025, defendant was diagnosed with metastatic kidney cancer
complicated by severe hypercalcemia. Defendant tried several different chemotherapy
treatment regiments throughout the year, but they either failed to stop the progression of
cancer or resulted in intolerable side effects. Defendant and his family requested recall of
his sentence and compassionate release to the care of his sister.
In late November 2025, CDCR recommended that the trial court recall defendant’s
sentence and release him under section 1172.2. Along with the recommendation, CDCR
provided a medical report with details about defendant’s illness, treatment, and status.
The report described that defendant was fatigued, dehydrated, weak, and medically
dependent for basic care.
The recommendation also included a postrelease plan that defendant would reside
with his sister who had agreed to care for him. CDCR intended to release defendant to
either parole or Post Release Community Supervision.
A hearing on CDCR’s compassionate release recommendation was held on
December 11, 2025. Dr. Michele DiTomas, a palliative care doctor for the state, testified
at the hearing to explain defendant’s medical documentation provided by CDCR.
Dr. DiTomas had not treated defendant, though she did speak with his oncologist and
reviewed his chart before the hearing.
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Dr. DiTomas confirmed that defendant’s diagnosis is terminal without a chance
for a cure. However, Dr. DiTomas noted that defendant’s physical symptoms had
improved in the prior several months because the chemotherapy treatments that were
causing severe side effects had been changed. Although defendant was in pain, he could
care for himself at the time of the hearing, including going to the grocery store.
Dr. DiTomas therefore opined that defendant was not incapacitated but did have an end-
of-life trajectory; statistically, he had 16 to 19 months to live.
Dr. DiTomas is part of a team that helps prisoners with serious illness return to the
community. She explained that “everybody who’s as sick as [defendant]” qualifies for
Medi-Cal benefits and that the state applies for those benefits on their behalf prior to
release. Defendant’s Medi-Cal application was completed and would activate upon his
release. She further explained that a reentry team puts medical records together, connects
the patient with an oncologist and primary care provider, and provides them with 60 days
of medications while they wait for their first appointment.
Prisoners have the option to sign a 30-day waiver to allow additional time for the
team to coordinate medical care upon release. Defendant declined to sign the waiver.
Dr. DiTomas said this “could make it a little bit more complicated” because without the
waiver, prisoners are released within 48 hours.
The specifics of CDCR’s postrelease plan were also addressed. Dr. DiTomas
explained that CDCR’s original postrelease plan was changed because defendant’s parole
requirements prohibited him from living with his sister.
Sick prisoners are typically released to nursing homes or other licensed facilities.
However, because defendant had improved and could independently conduct his
activities of daily living at the time of the hearing, the “parole people” found a
transitional housing program willing to support defendant while he “gets connected to
community resources.” Dr. DiTomas surmised that defendant would continue to decline
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and ultimately need to be transferred to a nursing home and, if he chose, to hospice. She
expected that his medical team would connect him to those services.
Dr. DiTomas was also asked about the impact cancer has or could have on
defendant’s sexual function, to which she said she could not specifically opine. She was,
however, aware of studies showing that a cancer diagnosis impacts sexual desire and that
pain medications and/or being in pain can impact arousal, but she was not sure whether
defendant had these experiences. Dr. DiTomas noted that nothing about defendant’s
circumstances would “make it impossible.”
Defense counsel argued that recall of defendant’s sentence and compassionate
release was warranted here because of defendant’s end-of-life diagnosis and because
there was no evidence presented that defendant would commit a super strike if released.
As relevant here, the prosector argued that that the recommendation should be
denied because of the “lack of a plan” for defendant if he was released; she pointed out
that it was not clear where defendant would be placed upon release or what level of
oversight would be provided. She also pointed out that it was “not clear what parole
would do” upon release and that she did not “know anything about” the plan to place
defendant in a transitional housing program before Dr. DiTomas discussed it at the
hearing.
In considering these points, the trial court noted that “this was sent to us with a
very different set of facts than currently exists. This was sent to us when he was – could
not even stand up and get out of bed, and it seems like we were in a very different
situation. He couldn’t even take care of himself. It looked like he would be dying any
moment when I first got this. That was my impression. And, clearly, that was largely a
result of the medication he was receiving, which was having some horrible effects on
him, and that has now been resolved by a different type of medication.”
Defense counsel made no comment on the changes to the postrelease plan.
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The trial court issued a ruling on CDCR’s recommendation for recall of
defendant’s sentence and compassionate release on February 3, 2026. The trial court
stated that defendant “appears to suffer from a qualifying serious and advanced illness
with an end-of-life trajectory” and that there was no dispute that he suffered from
terminal cancer. The court said, “[t]his may be sufficient for compassionate relief.”
However, the trial court denied the recommendation because CDCR failed to
provide a “qualifying postrelease plan” as required under section 1172.2, subdivision (h).
In support of this ruling, the trial court pointed out that CDCR had “abandoned the
original release plan” of defendant living with his sister because it conflicted with the
“rules of parole.” Although the court acknowledged that parole personnel had “located a
transitional housing program,” it found that Dr. DiTomas failed to provide specifics about
the program, including how long it would be available to defendant. The court was also
concerned about whether the program could accommodate him if he lost “daily function”
while living there. Although the trial court understood from the testimony that defendant
would go to a nursing home or hospice care if transitional housing could no longer care
for him, the court was troubled by the lack of information regarding how defendant’s
needs would be met during the transition. Aside from these concerns, the court also
found that the “nature” of defendant’s postrelease supervision plan was unclear. On these
bases, the court found that a “genuine postrelease plan [wa]s not in place for the
defendant at th[at] time.”
Finally, the court determined that it “need not decide” and therefore did not decide
“whether the defendant [wa]s likely to commit a super strike if granted compassionate
release.”
Defendant appeals.
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DISCUSSION
I
Section 1172.2
Defendant contends that the trial court erred by denying CDCR’s recommendation
for recall of his sentence and compassionate release based on the lack of a “qualifying” or
“genuine” postrelease plan. According to defendant, this decision violates the plain
language of the statute, which provides that the presumption in favor of recall and
resentencing based on a qualifying illness can be overcome “only if” the court finds that
defendant poses an unreasonable risk of danger to public safety. (§ 1172.2, subd. (b).)
Because the trial court failed to assess defendant’s dangerousness as required by the
statute, and instead denied CDCR’s recommendation based only on the insufficient
postrelease plan, defendant concludes that the trial court’s ruling violates the plain
language of the statute and was therefore erroneous.
Defendant alternatively contends that the trial court’s ruling contravenes the
legislative intent of the compassionate release statute to save the state money spent on
caring for terminally ill prisoners.
Applicable Law
The rules governing statutory construction are well established. Fundamentally,
the objective of statutory interpretation is to ascertain and effectuate legislative intent.
(People v. Flores (2003) 30 Cal.4th 1059, 1063; People v. Trevino (2001) 26 Cal.4th 237,
240.) “To determine legislative intent, we turn first, to the words of the statute, giving
them their usual and ordinary meaning.” (Flores, at p. 1063.) When the language of a
statute is clear and unambiguous, a reviewing court need go no further. (Ibid.)
Section 1172.2 provides that if the statewide chief medical executive, after
consultation with other clinical executives, determines that an incarcerated person meets
either of two sets of statutorily established medical criteria, the CDCR must “recommend
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to the court that the incarcerated person’s sentence be recalled.” (§ 1172.2, subd. (a);
People v. Multani (2024) 106 Cal.App.5th 1334, 1342 (Multani).) As relevant here, any
recommendation for recall submitted to the court by CDCR “shall” include a “postrelease
plan….” (§ 1172.2, subdivision (h).)
One of the medical criteria requires that the “incarcerated person has a serious and
advanced illness with an end-of-life trajectory.” (§ 1172.2, subd. (b)(1); Multani, supra,
106 Cal.App.5th at p. 1342; People v. Lewis (2024) 101 Cal.App.5th 401, 408.) If the
trial court finds that the incarcerated person is in fact suffering from a serious and
advanced illness with an end-of-life trajectory, then a presumption in favor of recall and
resentencing arises. (§ 1172.2, subd. (b); Multani, at p. 1342; Lewis, at pp. 408-409.)
The presumption “may only be overcome” if the court finds, “based on the incarcerated
person’s current physical and mental condition,” that the incarcerated person would pose
“an unreasonable risk of danger to public safety” if the sentence is recalled. (§ 1172.2,
subd. (b); Multani, at p. 1343; Lewis, at pp. 408-409.)
The Trial Court’s Denial Complies with the Plain Language of Section 1172.2
The plain language of section 1172.2, subdivisions (a) and (b) requires CDCR to
recommend recall and resentencing when a prisoner has, as relevant here, a “serious and
advanced illness with an end-of-life trajectory….” The plain language further requires
“any recommendation for recall submitted to the court by the department” to include a
“postrelease plan.” (§ 1172.2, subd. (h).) This language clearly and unambiguously
dictates that CDCR must include a postrelease plan with its section 1172.2
recommendation for recall and resentencing. That did not happen here.
Although CDCR provided a postrelease plan with its initial recommendation,
Dr. DiTomas testified that this plan was changed because parole would not permit
defendant to live with his sister. Moreover, defendant’s physical health had improved
between the time CDCR made its initial recommendation and the hearing. As the trial
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court articulated, the original plan was “abandoned.” A new plan was not submitted to
the court by CDCR.
Instead, Dr. DiTomas testified at the hearing regarding general information about
defendant’s placement if he were to be released. Parole found transitional housing for
defendant, but Dr. DiTomas expected that he would eventually need to be transferred into
a nursing home and possibly hospice care. Few further details were provided.
Dr. DiTomas’s testimony at the hearing does not satisfy the plain language of the
statute requiring CDCR to include a postrelease plan with the recommendation for recall
and resentencing. (§ 1172.2, subd. (h).) The statute does not contemplate submission of
a postrelease plan at the compassionate release hearing through the testimony of a
palliative care physician. Accordingly, the trial court complied with the plain language
of the statute when it denied CDCR’s recommendation based upon its failure to comply
with section 1172.2, subdivision (h).
Section 1172.2 foresees this outcome. Effective January 1, 2024, the statute
requires the Judicial Council to “publicly release an annual report on the compassionate
release program,” which “shall include” information on the “[n]umber of people denied
resentencing sought pursuant to this section for lack of release plans….” (§ 1172.2, subd.
(p)(5).) This directive demonstrates that such denials comply with the statute and are
expected to occur.
Defendant’s challenge to the trial court’s ruling fails for another reason. His
argument that the decision violates the plain language of the statute is based on the
premise that the trial court “found that [he] suffered from terminal cancer sufficient for
compassionate release,” which triggers the statutory presumption in favor of recall and
resentencing that can only be overcome if the court finds defendant poses an
unreasonable risk of danger to the public. (§ 1172.2, subds. (a), (b).) Defendant argues
that the trial court erred because it could not overcome this statutory presumption without
finding that defendant would pose a danger if released, nor was it statutorily permitted to
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do so based on an insufficient postrelease plan. We reject this argument because it is
based upon a misunderstanding of the trial court’s ruling.
Indeed, the trial court did not make a finding on whether defendant was suffering
from a serious and advanced illness with an end-of-life trajectory under section 1172.2,
subdivision (b). Instead, the court noted that defendant “appear[ed] to suffer from a
qualifying” “illness with an end-of-life trajectory” and that his terminal cancer “may be
sufficient for compassionate relief… ” (Italics added.) These statements by the trial
court are not findings that defendant satisfied the medical criteria set forth in section
1172.2, subdivision (b). At best, they are comments about defendant’s medical status at
the time.
Because the trial court made no findings on whether defendant suffered from a
qualifying illness, the statutory presumption in favor of recall and resentencing does not
apply. (§ 1172.2, subd. (b)(1) [the presumption favoring recall and resentencing applies
if the court finds that the incarcerated person has a serious and advanced illness with an
end-of-life trajectory].) As a result, defendant’s arguments premised on the application
of this presumption necessarily fail.
Because we conclude that the plain language of the statute is clear and
unambiguous, and that the trial court’s order did not violate the plain language of the
statute, we do not consider defendant’s alternative contention that the order contravenes
the legislative purpose of the statute to save the state money. (People v. Flores, supra,
30 Cal.App.4th at p. 1063 [when the language of a statute is clear and unambiguous, a
reviewing court need go no further].)
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II
Substantial Evidence
Defendant alternatively claims that, if the trial court’s denial was permitted under
section 1172.2, it was not supported by substantial evidence and therefore was an abuse
of its discretion. We disagree.
A trial court’s factual findings under section 1172.2 are reviewed for substantial
evidence. (Multani, supra, 106 Cal.App.5th at p. 1343.) “Substantial evidence” is
evidence that is “ ‘reasonable, credible, and of solid value,’ ” such that it “ ‘ “ ‘reasonably
inspires confidence.’ ” ’ ” (People v. Collins (2025) 17 Cal.5th 293, 307.)
A court’s section 1172.2 rulings are reviewed for an abuse of discretion. (Lewis,
supra, 101 Cal.App.5th at p. 409; Nijmeddin v. Superior Court (2023) 90 Cal.App.5th 77,
83.) A court may abuse its discretion when it applies the wrong legal standard, bases its
decision on express or implied factual findings that are not supported by substantial
evidence (People v. Moine (2021) 62 Cal.App.5th 440, 449), or makes a ruling that is so
erroneous that it falls outside the bounds of reason in light of the applicable law and
relevant facts. (See People v. Johnson (2022) 12 Cal.5th 544, 605; People v. Garcia
(1999) 20 Cal.4th 490, 503.)
Substantial evidence supports the trial court’s finding that a “qualifying” or
“genuine” postrelease plan was not in place. It is undisputed that CDCR abandoned the
original plan that was submitted with the recommendation because parole would not
permit defendant to live with his sister and because defendant’s health had improved.
CDCR did not provide an updated plan to the court before the hearing. Instead, the
parties and court heard from Dr. DiTomas, for the first time at the hearing, that
transitional housing had been “located” for defendant. No further details were provided
about the transitional housing program.
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Dr. DiTomas also explained that defendant’s health would decline and that he
would eventually be transferred to a nursing facility and, if he agreed, to hospice care.
No details were provided about the transfer. Additionally, Dr. DiTomas did not explain
the plan for parole or how defendant would be monitored while living in the transitional
housing program.
Based on the belated and generalized information provided by Dr. DiTomas at the
hearing, the trial court’s decision that no “qualifying” or “genuine” plan was in place is
supported by substantial evidence. Essentially, defendant asks this court to reevaluate the
evidence in a light most favorable to him and to draw contrary inferences from the
evidence. Given the deferential standard of review, we cannot do so. (People v. Myles
(2023) 89 Cal.App.5th 711, 740 [“for purposes of substantial evidence review, we are not
permitted to draw inferences contrary to the verdict”].)
In any event, even if Dr. DiTomas provided a more detailed plan for defendant’s
release, her testimony at the hearing does not satisfy the statutory requirement that CDCR
provide a postrelease plan with the recommendation. (§ 1172.2, subd. (h).) CDCR’s
original postrelease plan was “abandoned” and a new one was not submitted. The statute
does not permit a postrelease plan to be provided by a palliative care doctor at a
compassionate release hearing. Accordingly, the trial court did not abuse its discretion
by denying CDCR’s recommendation based upon the lack of a postrelease plan.
Because the trial court’s order is supported by the record and the trial court did not
abuse its discretion, we decline to consider defendant’s request to be resentenced on
remand by his sentencing judge under section 1172.2, subdivision (i).
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DISPOSITION
The trial court’s order is affirmed.
/s/
HULL, Acting P. J.
We concur:
/s/
ROBIE, J.
/s/
MESIWALA, J.
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