Nijmeddin v. Super. Ct.

Filed 4/5/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

ADNAN JUDEH NIJMEDDIN, H050870 (Monterey County Petitioner, Super. Ct. Nos. SS111431A, SS120077A) v.

THE SUPERIOR COURT OF MONTEREY COUNTY,

Respondent;

THE PEOPLE,

Real Party in Interest.

In this petition for writ of mandate, petitioner Adnan Judeh Nijmeddin asserts that respondent Monterey County Superior Court abused its discretion in refusing to recall his prison sentence following the Department of Corrections and Rehabilitation’s recommendation that he be granted compassionate release under Penal Code section 1172.2.1 On behalf of real party in interest the People, the Attorney General has conceded that the trial court erred and that Nijmeddin is entitled to relief. We agree and will issue a peremptory writ of mandate commanding respondent court to vacate its decision denying compassionate release and immediately enter an order recalling Nijmeddin’s sentence.

1 Unspecified statutory references are to the Penal Code.

I. FACTS AND PROCEDURAL HISTORY Nijmeddin was sentenced to an indeterminate life term, consecutive to a determinate term, after a jury convicted him in 2015 of murder, attempted voluntary manslaughter, assault with a deadly weapon, and possession of narcotics. In February 2023, the Health Care Services Director of the Department of Corrections and Rehabilitation (Department) recommended that the trial court recall petitioner’s sentence under the new compassionate release provisions at section 1172.2. Assembly Bill No. 960 (2021-2022 Reg. Sess.), which added section 1172.2 to the Penal Code and amended the procedures for compassionate release requests from the Department, became effective on January 1, 2023. (Stats. 2022, ch. 744, § 3.) Such requests apply to, among others, defendants who have “serious and advanced illness with an end-of-life trajectory.” (§ 1172.2, subd. (b)(1).) Section 1172.2, subdivision (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 section 1170.18, subdivision (c), and is “based on the incarcerated person’s current physical and mental condition.” (§ 1172.2, subd. (b).) Section 1170.18, subdivision (c), in turn, provides that “ ‘unreasonable risk of danger to public safety’ means an unreasonable risk that the petitioner will commit a new [‘super strike’ offense],” including homicide or solicitation to commit murder. (See § 667, subd. (e)(2)(C)(iv)(IV), (V); see also People v. Valencia (2017) 3 Cal.5th 347, 351 & fn. 3 [describing “super strike[]” felonies].) In the recommendation to the trial court, the Health Care Services Director explained that Nijmeddin has advanced incurable pancreatic cancer, biliary adenocarcinoma, and other co-morbid medical conditions. Nijmeddin has a life expectancy of less than one year, even with chemotherapy treatment, which he has decided to forgo. Nijmeddin “requires moderate assistance with activities of daily living 2