People v. Servin

Filed 1/24/19

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

Plaintiff and Respondent, G056696

v. (Super. Ct. No. 03NF1636)

RAFAEL SERVIN, OPINION

Defendant and Appellant.

Appeal from a postjudgment order of the Superior Court of Orange County, Richard M. King, Judge. Appeal abated and remanded with directions. Rebecca P. Jones, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Andrew Mestman and Arlene A. Sevidal, Deputy Attorneys General, for Plaintiff and Respondent. * * *

INTRODUCTION This is an appeal from a postjudgment order denying defendant Rafael Servin a compassionate release from prison under Penal Code section 1170, subdivision (e) (section 1170(e)). During the pendency of the appeal, defendant died. The appellate proceedings are therefore abated. Nevertheless, we are filing this opinion to make two points: (1) the statutory requirements and the standard of appellate review explained in Martinez v. Board of Parole Hearings (2010) 183 Cal.App.4th 578 apply in all cases under section 1170(e), whether the defendant or the People appeals; and (2) to alert the Attorney General and the criminal defense bar to the necessity of immediately advising the appellate court of the time exigency and the need for calendar preference in compassionate release cases.

PROCEDURAL HISTORY Defendant was convicted of murder and participation in a criminal street gang, and gang and firearm allegations were found to be true. Defendant was sentenced to life without the possibility of parole plus 25 years to life. Defendant, who was 16 years old at the time he murdered the victim, was resentenced pursuant to Miller v. Alabama (2012) 567 U.S. 460. On May 22, 2018, the Secretary of the California Department of Corrections and Rehabilitation (the Secretary) requested that the trial court recall defendant’s sentence pursuant to section 1170(e), on the grounds defendant had less than six months to live and no longer posed a threat to the community. The Secretary’s request was supported by a diagnostic study and evaluation report and medical evaluation. Following an evidentiary hearing, the court denied the section 1170(e) request for compassionate release. The court explained its denial as follows: