Judge Makes Mistake in Denying Compassionate Release

In 2022, a San Bernardino Superior Court jury convicted Tyshawn Michael Lewis of first degree murder (Penal Code § 187(a)) for a murder he committed in 2020 by shooting the victim five or six times at close range.  Lewis was identified as the shooter during a police investigation and at trial by an eyewitness who was standing next to the victim when he was shot.

The jury also found true the allegations that Mr. Lewis personally used a firearm causing death (Penal Code § 12022.53(b) – (d)) and that he suffered a prior strike conviction (Penal Code §§ 667(b) – (i), 1170.12(a) – (d)).  His prior strike was a 2002 conviction for assault with a deadly weapon.  He had a history thereafter of being a felon in possession of a firearm multiple times, a DUI, and a burglary.  He had violated parole many times.

In August 2022, Judge Alexander R. Martinez sentenced Mr. Lewis to 75 years to life in state prison.

Less than a year later, Dr. Joseph Bick, the California Department of Corrections and Rehabilitation’s director of Health Care Services, sent a letter to Judge Martinez recommending that he grant Mr. Lewis compassionate release and recall his sentence under Penal Code § 1172.2.  

Penal Code § 1172.2 establishes the process for the California Department of Corrections and Rehabilitation (CDCR) to request compassionate release of a prisoner.  Section 1172.2 creates a presumption requiring the court to recall the sentence of an incarcerated person with certain qualifying medical conditions unless the court finds that the person poses an unreasonable risk of danger to public safety – defined as an unreasonable risk of committing certain violent felonies – “based on the incarcerated person’s current physical and mental condition.” Penal Code § 1172.2(b).

Attached to Dr. Bick’s letter and also submitted to the court were various documents including a diagnostic study and evaluation report conducted by the CDCR for purposes of evaluating whether Mr. Lewis’ sentence should be recalled.  Also attached was a compassionate release “chrono” dated April 21, 2023 and signed by two prison doctors.  Also attached was the probation officer’s report for the 2022 murder conviction and a report from the CDCR dated October 20, 2022 and titled, “Institutional Staff Recommendation Summary.”  

Dr. Bick notified Judge Martinez that Mr. Lewis was 37 years and had “a clear end of life trajectory.”  Mr. Lewis was diagnosed with amyotrophic lateral sclerosis (ALS), which was rapidly progressing.  The report described how he first noticed symptoms about a year earlier when he suddenly could not dribble a basketball.  Dr. Bick described how Mr. Lewis had lost the ability to use his arms and was having difficulty swallowing, breathing and ambulating.  Mr. Lewis required assistance with the daily activities of feeding, bathing and dressing.  Doctors recommended that he be fed exclusively pureed food in order “to help decrease the risk of aspiration.”

The study did not include a recommendation about whether Lewis’ sentence should be recalled, but it listed ten factors for consideration, including that Lewis (1) had a life expectancy of less than six months, (2) had a history of affiliation with organized criminal activity (the Rolling 30’ Crips and he had a tattoo as being a Harlem Crip), (3) had a criminal and institutional history of violence (he had participated in a prison riot, battery on guards), and (4) “does retain the capacity to commit or to influence others to commit criminal acts that endanger public safety.”

Judge Martinez denied the petition, concluding that Mr. Lewis “does indeed pose an unreasonable risk of danger to public safety, even assuming that his current physical condition is medically true.”  The judge said Mr. Lewis posed an unreasonable risk of committing a super strike in the future pursuant to Penal Code § 667(e)(2)(C) not only based on the facts of the current case and his criminal history, “but most importantly it is also based on the explicit findings of the authors of the diagnostic study and evaluation report that was included in the petition packet submitted to this court for review.”

Mr. Lewis appealed the order to the Fourth Appellate District, which reversed Judge Martinez and remanded the case to recall the sentence.  The Fourth District found that “none of the evidence supported a finding that Mr. Lewis posed an unreasonable risk of committing a super strike based on his current physical and mental condition.  Moreover, there was no evidence that Mr. Lewis ever acted in concert with anyone during any of his crimes.