by Douglas Ankney

The Court of Appeal of California, Sixth Appellate District, held that the Monterey County Superior Court plainly abused its discretion when it refused to recall the sentence of terminally ill prisoner Adnan Judeh Nijmeddin following the recommendation of the Health Care Services Director (“Director”) of the California Department of Corrections and Rehabilitation (“CDCR”) that Nijmeddin be granted compassionate release under California Penal Code § 1172.2. (All statutory references are to the California Penal Code.)

In 2015, a jury convicted Nijmeddin of murder, attempted voluntary manslaughter, assault with a deadly weapon, and possession of narcotics. Apparently, Nijmeddin intentionally ran over his victim with his truck following a dispute over money. In 2023, the Director recommended to the trial court that Nijmeddin’s sentence be recalled under the new compassionate release provisions of § 1172.2.

Pursuant to § 1172.2(c), the trial court held a hearing. The bench officer who originally sentenced Nijmeddin presided over the hearing, and Nijmeddin appeared via video. Nijmeddin’s primary care doctor testified that Nijmeddin is in a wheelchair; that he suffered from advanced incurable pancreatic cancer; that he has a life expectancy of three to six months; that he had lost significant weight; that he was extremely weak; and that he was unable to get onto the exam table and barely able to get out of the wheelchair. The trial court declined to recall Nijmeddin’s sentence, citing numerous concerns, including Nijmeddin’s “mental acuity … his ability to pick up a phone and obtain things he might need to go somewhere or do something to be a risk of dangerousness to others.” The trial court added that Nijmeddin “has shown his capability, ability, and willingness to pursue those types of things in a situation – in the situation he was convicted of.” Nijmeddin timely appealed.

The Court observed that § 1172.2 was added to the Penal Code by Assembly Bill No. 960 (2021-2022 Reg. Sess.) and became effective January 1, 2023, amending the procedures for compassionate release requests by the CDCR. Such requests apply to, inter alia, defendants who have “serious and advanced illness with end-of-life trajectory.” § 1172.2(b)(1). There is 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” to be “based on the incarcerated person’s current physical and mental condition.” § 1172.2(b), (c). An “unreasonable risk of danger to public safety” is defined as “an unreasonable risk that the petitioner will commit a new super strike offense including homicide or solicitation to commit murder.” § 667(e)(2)(C)(iv)(IV), (V); see also People v. Valencia, 397 P.3d 936 (Cal. 2017) (describing “super strike” felonies). 

The Court stated “[i]t is undisputed that Nijmeddin has a serious and advanced illness with an end-of-life trajectory, which means he is presumptively entitled to compassionate release. This presumption can be overcome only by evidence that, based on his current physical and mental condition, he poses an unreasonable risk of committing a ‘super strike’ offense.” The trial court made no findings of an unreasonable risk of committing super strike offenses. The trial court merely “expressed a generalized concern about petitioner’s ‘ability to continue to commit crimes,’” according to the Court. And even that concern was based on Nijmeddin’s physical and mental condition at the time he committed his offenses and not on his current physical and mental condition. The Court concluded that the trial court abused its discretion in declining to recall Nijmeddin’s sentence.

The Attorney General agreed that the trial court abused its discretion and further agreed to stipulate to immediate issuance of remittitur. However, Nijmeddin declined to so stipulate (both parties must agree before the Court may order immediate issuance of remittitur, Cal. Rules of Court, Rules 8.272(c)(1), 8.490(d)). Nijmeddin instead asked the Court to directly order the CDCR to release him under the terms he negotiated with the district attorney prior to the hearing in the trial court. Nijmeddin did not want the matter remanded to the trial court. The Court declined Nijmeddin’s request.

Accordingly, the Court issued a peremptory writ of mandate commanding the Superior Court of Monterey County to forthwith vacate its decision to deny compassionate release, immediately enter a new order recalling Nijmeddin’s sentence pursuant to § 1172.2, and conduct further proceedings consistent with the Court’s opinion and the urgency expressed therein. If Nijmeddin elected to stipulate to immediate issuance of remittitur, the writ was to issue immediately. See: Nijmeddin v. Superior Court of Monterey County, 90 Cal. App. 5th 77 (2023).  

Subscribe today

Already a subscriber? Login