McCarty
Filed 3/29/13 P. v. McCarty
CA1/5
NOT TO BE PUBLISHED
IN OFFICIAL REPORTS
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opinion has not been certified for publication or ordered published for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
FIRST APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE,
Plaintiff and Respondent,
v.
KENNETH LEE
MCCARTY,
Defendant and Appellant.
A135608
(Lake
County
Super. Ct.
Nos. CR5321, CR5278,
CR5313)
In
2002, appellant Kenneth Lee McCarty was sentenced to serve 23 years and
eight months in state prison upon his guilty plea to
§ 459),
title="">[1]
possession of a controlled substance for sale (Health & Saf. Code,
§ 11378), and
subd. (a)(2)). While in
prison, McCarty was diagnosed with multiple sclerosis. In 2012, the Office of the Secretary of the
California Department of Corrections and Rehabilitation (CDCR) recommended that
the superior court recall McCarty’s sentence, pursuant to section 1170,
subdivision (e)(1), providing for early release of medically incapacitated
or terminally ill prisoners. The superior court held a
hearing and denied the request. McCarty
appealed, arguing that the trial court’s findings are not supported by the
record and that the trial court misconstrued the statutory language. Subsequent to filing this appeal, McCarty
passed away in prison. We therefore
dismiss his appeal as moot.
I. Statutory
Background
Before
addressing the facts unique to this case, we first discuss the governing
statute. Section 1170, subdivision (e),
provides, in relevant part: “(1)
Notwithstanding any other law and consistent with paragraph (1) of subdivision
(a), if the secretary or the Board of Parole Hearings [(Board)] or both
determine that a prisoner satisfies the criteria set forth in paragraph (2),
the secretary or the [B]oard may recommend to the court that the prisoner’s
sentence be recalled. [¶] (2) The court shall have the discretion to
resentence or recall if the court finds that the facts described in
subparagraphs (A) and (B) or subparagraphs (B) and (C) exist: [¶] (A) The
prisoner is terminally ill with an incurable condition caused by an
would produce death within six months, as determined by a physician employed by
the department. [¶] (B) The conditions under which the prisoner would be
released or receive treatment do not pose a threat to public safety.
[¶] (C) The prisoner is permanently medically incapacitated with a medical
condition that renders him or her permanently unable to perform activities of
basic daily living, and results in the prisoner requiring 24-hour total care,
including, but not limited to, coma, persistent vegetative state, brain death,
ventilator-dependency, loss of control of muscular or neurological function,
and that incapacitation did not exist at the time of the original sentencing.
[¶] The Board . . . shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall to the
court. This subdivision does not apply
to a prisoner sentenced to death or a term of life without the possibility of
parole. [¶] (3) Within 10 days of receipt of a positive recommendation by
the secretary or the [B]oard, the court shall hold a hearing to consider
whether the prisoner’s sentence should be recalled.â€
“The
purpose of Assembly Bill 29[, which added subdivision (e) to section 1170 in
1997,] was not just compassion; it was to save the state money. An Assembly Committee on Public Safety
analysis states: ‘According to the
author, “Prisons were never intended to act as long term health care providers
for chronically ill prisoners. As the
prison population ages, we will be faced with this situation more often. These inmates consume a disproportionate
amount of the [CDCR]’s budget. . . . If this bill is enacted, the
state will be able to release these prisoners and recover 50 percent of their
health care[] costs through Medicaid.†[¶] . . . [¶] The
bill is frankly an attempt to fast track the release of prisoners with AIDS and
other terminal illnesses if the [CDCR] and/or the BPH recommend release via the
recall procedure. . . . [¶] . . . According to the
author, health care costs alone in California prisons cost the state $372
million, more than 36 states spend on their entire prison budgets.
. . . ’ (Assem. Com. on
Public Safety, Rep. on Assem. Bill No. 29 (1997–1998 Reg. Sess.) Apr. 15, 1997, p. 2.) A
Senate Appropriations Committee analysis reported that there ‘would be unknown
cost savings due to reduced incarceration.
In addition, to the extent that medical care provided outside a penal
institution is less expensive due to the absence of security personnel, and
security measures, there would be unknown, potentially significant, medical
care cost savings.’ (Sen. Com. on
Appropriations, Rep. on Assem. Bill No. 29 (1997–1998 Reg. Sess.) as amended July 1, 1997, p. 1.)
“Ten
years later, the Legislature passed Assembly Bill No. 1539 (2007–2008 Reg.
Sess.), which an Assembly Committee on Public Safety analysis referred to as
the ‘Medical Release and Fiscal Savings Bill.’
(Assem. Com. on Public Safety, Conc. in Sen. Amends. to Assem. Bill No.
1539 (2007–2008 Reg. Sess.) as amended July 5, 2007, coms., p. 6.) The Legislative Counsel’s Digest summarized
the bill as amending section 1170, subdivision (e) to ‘extend those provisions
for early release to prisoners who are permanently medically incapacitated and
whose release is deemed not to threaten public safety.’ (Legis. Counsel’s Dig., Assem. Bill No. 1539
(2007–2008 Reg. Sess.).) . . . . [¶] Again, the legislative
history reflects that the purpose of the provision is not just compassion; it
is to save the state money.†(
590–591 (Martinez).)
II. Factual
and Procedural Background
McCarty’s
2002 convictions involve his taking equestrian paraphernalia from a residence,
his attempt to charge a room at a resort using a stolen credit card, and his
sale, with a codefendant, of methamphetamine at a casino. McCarty had also called his ex-girlfriend and
threatened to kill her, her family, and her horse. A charge of making annoying phone calls was
dismissed with a Harvey waiver.
In
March 2012, the CDCR’s Undersecretary of Operations wrote to the superior
court, recommending that McCarty’s sentence be recalled pursuant to section
1170, subdivision (e). The letter stated
that McCarty had been diagnosed with multiple sclerosis and was paralyzed from
the neck down. McCarty was unable to use
his arms and legs (with the exception of minimal movement of his right
hand). However, he was awake, alert, and
had a clear mental state. The letter
indicated that McCarty, if released, would not pose a threat to public
safety. However, it was also noted that
McCarty’s “institutional adjustment has been unacceptable; he has received five
rules violations while in custody,†and that McCarty’s “criminal history include[d]
arrests and/or convictions for burglary, grand theft, receiving stolen
property, petty theft with priors, annoying phone calls, hit and run with
property damage, driving with a suspended license, contempt of court,
possession of a controlled substance, and forgery.â€
The
superior court held a recall hearing, at which McCarty’s uncle was the only
witness. He testified that he was
prepared to take full responsibility for McCarty’s medical care. He understood that McCarty would require
24-hour care. The court also considered
a diagnostic study and recommendation for release, McCarty’s prison medical
records, a letter from McCarty’s primary care physician, letters in support of
McCarty’s release, and the 2002 probation report.
McCarty’s
primary care physician, Dr. Robert Rudas, wrote: “McCarty’s case has progressed to the
severity wherein he is paralyzed in all four extremities. He is not able to walk or functionally use his
hands. He is not able to attend to any
of [h]is activities of daily living. He
requires total care in regards to nutrition, going to the bathroom, and
bathing. His prognosis is profoundly
poor with no likelihood of clinical improvement. If his condition continues to progress as it
has in the past year his death is imminent in the range of a few weeks to 1–3
years. Once the multiple sclerosis
starts affecting his ability to breathe, his demise would be forthcoming.
[¶] If ever there would be a potential for the compassionate commutation
of sentence, [McCarty] would be the case.â€
The parties stipulated McCarty had an incurable disease, was expected to
die within one year, and was physically incapacitated. It was also acknowledged that McCarty had
been granted medical parole.
name="_ftnref3" title="">[3]
The
superior court did not resolve whether McCarty was permanently incapacitated,
but did find, “I cannot be assured that he does not pose a threat to public
safety.†The court relied on the
diagnostic study, which concluded that McCarty “retain[ed] the capacity to commit
or to influence others to commit criminal acts that endanger public
safety.†His risk assessment score was
“high.†The diagnostic study also noted
that McCarty had a prison disciplinary history, including battery on an inmate
and three rules violation reports for fighting.
It was further reported that “a documented victim or victim next of kin
of the commitment offense . . . would suffer fear from the release of
[McCarty] back into the community.â€
But,
the court also went on to indicate that, even if the two statutory conditions
were satisfied, it would still deny compassionate release. The court expressed concern that
compassionate release, unlike medical parole, would be unconditional and
without any mechanism to take McCarty back into custody.
said: “[W]hat you’ve got is somebody
coming back to the criminal trough and taking another sip and taking another
sip and taking another sip and, as I say, leaving a number of people victimized
in his wake. [¶] So, his prior criminal record is a very strong record
suggesting that the Court not grant compassionate release.â€
The
court concluded: “Even if [McCarty] did
not have medical parole available to him, I would be and I am exercising my
discretion to deny compassionate release for all of the reasons that I’ve
announced.†McCarty filed a
timely notice of appeal.
III. Discussion
On
appeal, McCarty contends: “The court
erred in concluding it had discretion not to release [him] if [the factual
conditions of section 1170, subdivision (e)(2)] are proven. . . .
When a prisoner meets the criteria . . . the only way a court can
reasonably exercise its discretion is to recommend release. To find otherwise would defeat the purpose of
the statute.†He also maintains that the
record does not support the superior court’s findings with respect to the
conditions of section 1170, subdivision (e)(2). Accordingly, McCarty asks us to vacate the
superior court’s denial and order his release.
McCarty’s statutory interpretation argument is a question of first
impression.
title="">[5] However, we are not persuaded that this is
the appropriate case in which to resolve the question.
First,
we note that McCarty did not raise his statutory interpretation argument
below. In fact, he specifically conceded
that, even if the factual conditions of section 1170, subdivision (e)(2)
were met, the trial court retained discretion to grant or deny compassionate
release. “As a rule, parties are
precluded from urging on appeal any points that were not raised before the
trial court. [Citation.]†(In re
Marriage of Walker (2006) 138 Cal.App.4th 1408, 1418.) However, we have discretion to address pure
questions of law that present important issues of public policy. (See People
v. Williams (1998) 17 Cal.4th 148, 161, fn. 6; City of Scotts Valley v. County of Santa Cruz (2011) 201
Cal.App.4th 1, 28–29; In re Marriage of
Hinds (1988) 205 Cal.App.3d 1398, 1403.) The correct interpretation of the
compassionate release statute is certainly an important issue of law.
The
bigger concern is mootness. McCarty died
shortly after his opening brief on appeal was filed. The People argue that McCarty’s objections to the challenged order have
been mooted by his death. We agree. “An appellate court will not review
questions which are moot and only of academic importance, nor will it determine
abstract questions of law at the request of a party who shows no substantial
rights can be affected by the decision either way. [Citation.]
An appeal becomes moot when, through no fault of the respondent, the
occurrence of an event renders it impossible for the appellate court to grant
the appellant effective relief.
[Citations.]†(
165 Cal.App.4th 1042, 1054–1055.)
Even if we were to find error, we clearly could not grant the relief
sought by McCarty.
We
do have discretion to consider moot points if they are of continuing public
importance and similar disputes are likely to arise, but evade review, in the
future. (See In re Sheena K. (2007) 40 Cal.4th 875, 879; In re William M. (1970) 3 Cal.3d 16, 23; In re Christina A. (2001) 91 Cal.App.4th 1153, 1158–1159;
Cal.App.3d 959, 966, fn. 5.) Here,
however, the statutory interpretation question is really beside the point. The superior court found: “I cannot be assured that [McCarty] does not
pose a threat to public safety.†McCarty
argues, in his opening brief, that this finding was not supported by the
record. But, that question is necessarily
a fact-bound inquiry that is unique to McCarty.
And, it is only if we agree with McCarty on that fact-bound inquiry that
we would even need to reach the question of statutory interpretation. (See § 1170, subd. (e)(2).) Our Supreme Court has cautioned: “We should, of course, avoid advisory
opinions on abstract propositions of law.
[Citations.] But we should not
avoid the resolution of important and well litigated controversies arising from
situations which are ‘capable of repetition, yet evading review.’ [Citations.]â€
(In re William M., supra, 3 Cal.3d
at p. 23, fn. 14.) This case
falls in the former category.
Accordingly, we decline to exercise our discretion to address McCarty’s
statutory interpretation argument.
IV. Disposition
The
appeal is dismissed as moot and is taken off the oral argument calendar.
_________________________
Bruiniers,
J.
We concur:
_________________________
Simons, Acting P. J.
_________________________
Needham, J.
Unless otherwise noted, all further statutory references are to the Penal Code.
People v. Harvey (1979) 25 Cal.3d
754.
