P. v. McCarty CA1/5

Filed 3/29/13 P. v. McCarty CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A135608 v. KENNETH LEE MCCARTY, (Lake County Super. Ct. Nos. CR5321, CR5278, Defendant and Appellant. CR5313)

In 2002, appellant Kenneth Lee McCarty was sentenced to serve 23 years and eight months in state prison upon his guilty plea to first degree burglary (Pen. Code, § 459),1 possession of a controlled substance for sale (Health & Saf. Code, § 11378), and defrauding an innkeeper (§ 537, 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.

1 Unless otherwise noted, all further statutory references are to the Penal Code.

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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 illness or disease that 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.” “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