Unreasonable Risk of Danger, Compassionate Release

On January 1, 2023, Assembly Bill (AB) 960 became effective, adding Penal Code § 1172.2 to the Penal Code and amending the procedures for compassionate release requests.

Such requests apply to defendants who have “serious and advanced illness with an end-of-life trajectory.”  Penal Code § 1172.2(b)(1).  Section 1172.2(b) creates a “presumption favoring recall and resentencing . . . which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety.” 

 

The statute defines “unreasonable risk of danger to public safety” by reference to the term’s definition in Penal Code § 1170.18(c) and is “based on the incarcerated person’s current physical and mental condition.”  Penal Code § 1172.2(b).  Penal Code § 1170.18(c), in turn, provides that “unreasonable risk of danger to public safety” means an unreasonable risk that petitioner will commit a new “super strike” offense, which includes homicide, solicitation to commit murder, murder, etc. (see Penal Code § 667(e)(2)(C)(iv)(IV), (V); see also People v. Valencia (2017) 3 Cal. 5th 347, 351 and fn. 3 (describing “super strike felonies”).

Applying this new law, the Sixth Appellate District recently reversed a trial court that denied compassionate release for an inmate named Adnan Judeh Nijmeddin.

Mr. Nijmeddin was sentenced to an indeterminate life term, consecutive to a determinate term, after a jury in Monterey County Superior Court convicted him in 2015, at age 58, of murder, attempted voluntary manslaughter, assault with a deadly weapon and possession of narcotics. 

The underlying offense involved Mr. Nijmeddin intentionally running over the victim with his truck due to a dispute over money.

Mr. Nijmeddin had a criminal history involving burglary and assault.  While in prison previously, he was convicted of serious prison rule violations, including fighting and violent threats.

Eight years later, in February 2023, the Health Care Services Director of the Department of Corrections and Rehabilitation (CDCR) recommended that the trial court recall Mr. Nijmeddin’s sentence under the new compassionate release provisions under Penal Code § 1172.2.

The Health Care Services Director explained that Mr. Nijmeddin had advanced incurable pancreatic cancer, biliary adenocarcinoma and other co-morbid medical conditions.  He had a life expectancy of less than a year, even with chemotherapy treatment, which Mr. Nijmeddin decided to forgo.

The Health Care Service Director explained, as to Mr. Nijmeddin’s current physical condition, that he needed “moderate assistance with activities of daily living such as feeding, bathing and dressing” and “ambulates with a walker or wheelchair due to back pain.”

The report also explained that he had lost considerable weight, stays in bed 22 hours per day.

Judge Julie R. Culver denied the compassionate release request.  At the hearing, the Sixth Appellate District Court noted, she made comments that Mr. Nijmeddin looked better than when she presided over his trial in 2015, that he seemed mentally alert and capable of using a telephone to direct more crime.  Judge Culver acknowledged his use of a wheelchair in court, but characterized it as related to his back pain and not his terminal condition.  “He is able to move about using the wheelchair and he is mentally alert.”  She went on to state that Mr. Nijmeddin “is criminally sophisticated and “able to use his mental capacity to commit offenses.”  The judge thought he could pick up a phone and direct further criminal activity.

The Attorney General agreed with Mr. Nijmeddin.

The Sixth Appellate District also agreed.  It explained that Judge Culver did not make any findings in her hearing that Mr. Nijmeddin posed “an unreasonable risk of danger to public safety” if released.  The court explained that it was undisputed that Mr. Nijmeddin had a serious and advanced illness with an “end-of-life trajectory, which means he is presumptively entitled to compassionate release.”  This presumption was not overcome by evidence that, based on his current physical and mental condition, he poses an unreasonable risk of committing a “super strike” offense.

The Sixth Appellate District Court then issued a peremptory writ of mandate commanding Judge Culver to vacate her decision to deny compassionate release and to conduct further proceedings under Penal Code § 1172.2.