The opinion
Filed 5/28/26
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A173470
v.
JAMES BRINSTON, (Sonoma County
Super. Ct. No. SCR-24193-
Defendant and Appellant.
1)
James Brinston appeals from the trial court’s denial of his
request for compassionate release under Penal Code section
1172.2. 1 The trial court found that although Brinston was
medically incapacitated and therefore presumptively entitled to
compassionate release, the presumption was overcome by its
finding that Brinston was an unreasonable risk of danger to
public safety. The trial court relied on information from
Brinston’s parole hearing three years earlier, when the Board of
Parole Hearings (BPH) found Brinston had no understanding of
his own criminal behavior and scored highly on certain risk
assessments despite having some physical limitations. The trial
court failed to recognize, however, that Brinston’s physical
condition had changed significantly and materially in the three
years following the denial of parole. By the time of the section
1 Undesignated statutory citations are to the Penal Code.
1
1172.2 hearing, Brinston lacked any residual lower extremity
function, was belted into a customized wheelchair to keep him
from falling out, displayed progressive intention tremor, was
unable to raise his shoulders, and suffered from fecal
incontinence and constant urinary incontinence that was causing
chronic infection of his thighs and buttocks. Brinston was also
diagnosed with ankylosing spondylitis, a progressing and
permanent condition that left him as stiff as a mannequin,
prevented him from rotating his head, and made it difficult for
his caretakers to perform basic hygiene for him.
Brinston’s physical condition forecloses any realistic
possibility of Brinston harming others, even if he were still
predisposed to do so as the trial court found. We therefore
conclude that the trial court’s denial of Brinston’s request for
compassion release was an abuse of discretion and must be
reversed.
BACKGROUND
In 1996, Brinston was 38 years old and went on two dates
with a 20-year-old woman. 2 A few days later, Brinston helped
2 Many of the facts we recite are contained in the probation
report and other documents placed in the confidential clerk’s
transcript. Brinston himself cites and relies on these confidential
materials without seeking to file his brief under seal, which we
treat as a waiver of the confidentiality. (People v. Coddington
(2000) 23 Cal.4th 529, 617, fn. 38, overruled on other grounds by
Price v. Superior Court (2001) 25 Cal.4th 1046, 1060 & fn. 13 &
superseded by statute on other grounds as stated in People v.
Zamudio (2008) 43 Cal.4th 327, 355–356; see Cal. Rules of Court,
rule 8.47(c)(2) [to maintain confidentiality parties can move to file
a document under seal].)
2
the woman move to a new home. She told Brinston she wanted to
end the relationship. Brinston surreptitiously took a knife from
the kitchen and called her to the bathroom, complaining that
there was no soap. When she came to help him, he threatened
her with the knife and struggled with her when she tried to run
away. They wound up in the bedroom, where, pointing the knife
toward the victim, Brinston held her down while he orally
copulated her, placed his fingers in her vagina, and raped her.
The victim placed a monitored call to Brinston from the police
department. Brinston admitted he had made a mistake, said
they could work it out and he would go to counseling with her,
and asked her not to report the rape.
Brinston pleaded guilty to oral copulation with force,
foreign penetration with force, and forcible rape, and admitting
using a knife in the commission of the rape. The probation
officer’s presentence report summary of Brinston’s criminal
history stated that he had committed theft or unlawful driving of
a vehicle numerous times between the ages of 18 and 28. In
March 1991, Brinston had been convicted of two counts of
unlawful sexual intercourse with a minor, two counts of lewd or
lascivious acts with a child 14 or 15 years old, and admitted three
prior prison term enhancements. The two counts of lewd or
lascivious acts with a child 14 or 15 years old involved an
incident in which he asked a 15-year-old girl to get into his
vehicle to talk, forcibly kissed her, and tried to rip off her
clothing. Brinston’s sentence for his March 1991 conviction was
seven years and four months in prison. He was on parole from
3
that sentence when he committed his offenses in 1996. In March
1997, the trial court sentenced him to 15 years to life in prison on
the rape count, with concurrent six-year terms on the remaining
counts.
In March 2025, the California Department of Corrections
and Rehabilitation’s (CDCR) director of health care services sent
the trial court a letter stating it had determined that Brinston
was permanently medically incapacitated and unable to
independently complete basic activities of daily living. According
to a physician’s report included with the CDCR’s notice, Brinston
had been diagnosed with ankylosing spondylitis, cerebrovascular
disease with a history of recurrent strokes, progressive intention
tremor, hyperlipidemia, hypertension, insulin-dependent type 2
diabetes mellitus, osteoporosis, and ulcerative colitis. Due to
multiple strokes since 2000, Brinston had developed right-sided
weakness and needed a lap belt to prevent him from falling while
seated in his wheelchair. His physical therapist reported that he
was not making any progress and was unable to lift his shoulders
above his head.
Brinston’s ulcerative colitis led to his ankylosing
spondylitis. Ankylosing spondylitis is a type of chronic arthritis
that affects the spine and sacroiliac joints where the spine meets
the pelvis. Over time, it results in inflammation, pain, and
stiffness. In severe cases, the vertebrae of the spine fuse,
resulting in reduced flexibility and a hunched posture.
Brinston’s ankylosing spondylitis was severe. It caused
Brinston to have diffusely debilitating stiffened joints. He lost all
4
strength in his lower extremities, which were contracted and
stiff. His entire axial skeleton had fused to a profoundly rigid
state, “like a ‘bamboo stick.’ ” Brinston looked “ ‘as stiff as a
mannequin’ ” in his customized wheelchair and could not rotate
his neck. His overall rigidity made it hard for staff to perform his
basic hygiene. However, he could feed himself with both hands if
someone set up food for him. He could no longer transfer to a
shower chair, so he received only bed baths. The doctor’s report
further stated, “After 2023, caregivers report [Brinston] has had
increasing difficulty with all [activities of daily living] secondary
to progressive ankylosing spondylitis rigidity.”
Brinston was at very high risk for skin breakdown and
infections at his bony prominences because he could no longer
shift his weight or bend major joints. He was incontinent of
bowel and bladder. Despite frequent diaper changes, his urinary
incontinence led to chronic infection of his buttocks and he
needed routine wound care for skin maceration on his thighs.
Caregivers reported neurocognitive decline after Brinston’s
recurrent strokes, including forgetfulness and likely expressive
aphasia. 3 His stiffened shoulders prevent him from writing. A
brain MRI showed signs of vascular dementia and was
3 Expressive aphasia is an impairment of the ability to
produce language. (See Alonzo v. Comm’r of Soc. Sec. (N.D.Cal.
July 24, 2020, No. 19-cv-01916-RMI) 2020 U.S.Dist.LEXIS
131629, at *3; Bender, Attorneys’ Dict. of Medicine (2025)
[“expressive aphasia” & “aphasia, motor”].)
5
remarkable for bilateral cerebellar chronic infarcts with
extensive microvascular ischemic disease. 4
The physician’s report stated that if Brinston’s sentence
were recalled, he would be released to an appropriate facility to
fulfill his needs. Before discharging him, staff would ensure that
he had applied for Medi-Cal and, if indicated, arrange for in-
home hospice support services.
The CDCR’s notice also included the probation officer’s
presentence report from Brinston’s most recent offense, a
diagnostic study report, and the transcript of a July 2022 BPH
decision denying him parole for three years. The diagnostic study
report said that Brinston’s security level score was 19 points, the
mandatory minimum score for someone with his offenses and life
sentence. (See Cal. Dept. of Corrections & Rehabilitation,
Operations Manual (2025) ch. 6, art. 1, § 61010.11.5(b),
<https://www.cdcr.ca.gov/operations-manual/dom/> as of May 18,
2026.) This placed him in level II, the second lowest level out of
four levels. (Cal. Code Regs., tit. 15, § 3375.1(a)).) Brinston’s
disciplinary history showed six instances of being disrespectful to
staff between 2004 and 2019 and one instance of being out of
bounds in 2015. Brinston had three serious rules violations,
resisting a peace officer in 2010 and 2011 and disrespect with
potential for violence or disruption in 2015.
4 Vascular dementia is memory loss and mental
deterioration due to multiple small strokes or impaired blood flow
to the brain. (Bender, Attorneys’ Dict. of Medicine (2025)
[“vascular dementia”].)
6
When it denied him parole in 2022, the BPH made
numerous observations about Brinston’s risk profile, criminal
offense history, and mental and physical state. Brinston had an
elevated risk of sexual offending under the Static-99, although
the BPH did not note his score. A clinician found that he had a
moderate risk of future violence, which meant that he posed a
somewhat elevated risk relative to other long-term offenders.
But for Brinston’s health and physical ailments, the clinician
would have considered him a high risk for violence. The BPH
described Brinston’s physical limitations as being in a
wheelchair, having had a stroke, and having tremors. It
speculated that Brinston might have language or cognitive
functioning issues but did not identify anything specific. His
criminal and parole history showed that his crimes escalated in
seriousness, he performed poorly on supervised release and
parole, and he was on parole at the time of his last crime. He
was impulsive at the time of his crime, was dishonest with his
victim, and tried to manipulate her to not turn him in or testify.
The BPH’s main concern was that Brinston had not
changed. He had taken some programs to address his risk
factors, but his understanding of those programs and his triggers
or risk factors was non-existent. He had not taken any courses or
self-study on sexual offending and did not understand why he
had committed his offense. He had little understanding of the
impact of his crimes on his victims. He justified his actions,
which led him to victimize and manipulate others, and he could
still do that. Brinston had told the BPH he wanted to teach
7
others about rape and help them solve their problems. The BPH
found this mentality was not very realistic because he had not
even faced his own problems or understood the harm he had
caused his victims. His disciplinary history in prison, although
the BPH gave it little weight, suggested he was still able to react
in angry and confrontational ways. The BPH set Brinston’s next
parole hearing in three years’ time.
After the CDCR sent the trial court the notice that he met
the criteria for compassionate release under section 1172.2,
Brinston filed a request for release. The People did not file
anything in response. At the hearing, the People did not dispute
that Brinston was medically incapacitated. But the People
argued that there was clear and convincing evidence that
Brinston was an unreasonable risk to public safety. The People
asserted that the victim had said in phone conservations and in a
letter in a prior parole hearing that she had fear and concerns
about Brinston’s release and was worried about being stalked by
family and friends trying to dissuade her from testifying or
reporting the crime, but the People did not introduce anything
into evidence to support these assertions.
The trial court denied Brinston’s request. Like the People,
it did not dispute that Brinston was medically incapacitated. It
acknowledged this led to a presumption in favor of recalling
Brinston’s sentence under section 1172.7. But it found that
presumption was overcome by clear and convincing evidence that
Brinston still posed a significant risk to the community.
8
The trial court said the packet of information attached to
the CDCR’s notice did not include a post-release plan for
Brinston. The court found the packet established that the
CDCR’s medical director believed Brinston was incapacitated but
did not address any current or future threat and was silent about
his state of mind, thought process, or sexual deviancy. The court
therefore looked to the BPH ruling as the only place for
information about Brinston’s state of mind and risk of future
harm.
The trial court stated that many of Brinston’s medical
conditions listed in the current diagnosis were ongoing at the
time of the BPH hearing in 2022, including that he was
wheelchair bound, post stroke, not fully able to use all his
extremities or care for himself, and had concurring ailments. The
trial court recited the BPH’s observations about Brinston’s
elevated risk of sexual re-offense under the Static-99, moderate
risk of future violence that would have been higher but for his
physical limitations, lack of understanding of his own triggers or
risk factors, lack of courses or self-study about sexual offenses,
and lack of insight into the impact of his crime on the victim.
The trial court said the BPH found Brinston continued to present
manipulative thinking. The trial court predicted that Brinston’s
high risk of sexual violence, traces of manipulativeness, and
physical conditions, when combined, might put him in a position
to manipulate others into assisting him because of his needs,
which could increase the risk of harm to those he could get to
assist him. The trial court suggested the BPH had received much
9
more information than was available in the CDCR records and
described the BPH’s findings as close in time and at a point when
Brinston was similarly situated to his current medical condition.
The trial court then concluded that Brinston posed a significant
risk to the community if he were released.
DISCUSSION
I. Legal Background and Standard of Review
“California law authorizes the compassionate release of
prisoners through section 1172.2.” (In re Brissette (2025) 112
Cal.App.5th 147, 161.) Section 1172.2 mandates that if, after any
necessary consultation with other clinical executives, the CDCR’s
statewide chief medical executive determines that an
incarcerated person satisfies either of two medical criteria set
forth in section 1172.2, subdivision (b) (section 1172.2(b)), the
CDCR “shall recommend to the court that the incarcerated
person’s sentence be recalled.” (§ 1172.2, subd. (a).) The first
criterion supporting compassionate release is if “[t]he
incarcerated person has a serious and advanced illness with an
end-of-life trajectory.” (§ 1172.2(b)(1).) The second is if “[t]he
incarcerated person is permanently medically incapacitated with
a medical condition or functional impairment that renders them
permanently unable to complete basic activities of daily living,
including, but not limited to, bathing, eating, dressing, toileting,
transferring, and ambulation, or has progressive end-stage
dementia and that incapacitation did not exist at the time of the
original sentencing.” (§ 1172.2(b)(2).) “Any recommendation for
recall submitted to the court by the department shall include one
10
or more medical evaluations, a postrelease plan, and findings
pursuant to” section 1172.2(b). (§ 1172.2, subd. (h).)
If the trial court finds that an incarcerated person meets
the criteria in section 1172.2(b)(1) or (2), “[t]here shall be 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, as defined in subdivision (c) of Section
1170.18, based on the incarcerated person’s current physical and
mental condition.” (§ 1172.2(b).) Section 1170.18, subdivision (c)
in turn defines an unreasonable risk of danger to public safety as
“an unreasonable risk that the incarcerated person will commit a
new ‘super strike,’ which is any violent felony listed under section
667, subdivision (e)(2)(C)(iv).” (In re Brissette, supra, 112
Cal.App.5th at p. 162.) Such violent felonies include offenses
such as oral copulation with force, foreign penetration with force,
forcible rape, and kidnapping or assault with the intent to
commit such crimes; sexual acts with children under 14 years of
age; any homicide or attempted homicide offense; and solicitation
to commit murder. (Pen. Code, § 667, subd. (e)(2)(C)(iv)(I)–(V);
Welf. & Inst. Code, § 6600, subd. (b) [incorporated by reference
into Pen. Code, § 667(e)(2)(C)(iv)(I)].)
“If the court grants the recall and resentencing application,
the incarcerated person shall be released by the department
within 48 hours of receipt of the court’s order, unless a longer
time period is agreed to by the incarcerated person.” (§ 1172.2(l).)
“Section 1172.2 became effective on January 1, 2023, and
amended the existing procedures for compassionate release [in
11
former section 1170, subdivision (e) (former section 1170(e))].
[Citation.] The Legislature intended for section 1172.2 to
‘broaden the eligibility criteria for compassionate release and
make it available to more incarcerated persons.’ [Citation.]
Section 1172.2 was also intended to save California taxpayers the
high costs of health care for terminally ill or aging inmates and to
streamline the cumbersome process for obtaining compassionate
release. [Citations.] According to the author of section 1172.2
(whose comments were part of the legislative record and
analyses) many inmates who did not pose a risk to public safety
would die in prison while awaiting a referral for compassionate
release, which in part resulted in California bearing the health
care expenses of those inmates.” (In re Brissette, supra, 112
Cal.App.5th at pp. 164–165.)
On appeal, “[w]e review for abuse of discretion the trial
court’s determination that a petitioner poses an unreasonable
risk of danger to public safety. [Citation.] ‘A trial court abuses
its discretion when the factual findings critical to its decision find
no support in the evidence.’ [Citation.] We review the trial
court’s factual findings for substantial evidence.” (People v. Lewis
(2024) 101 Cal.App.5th 401, 409.) “We review questions of
statutory interpretation de novo.” (People v. Multani (2024) 106
Cal.App.5th 1334, 1343.) Under the abuse of discretion standard,
a trial court’s “ ‘ “ ‘decision will not be reversed merely because
reasonable people might disagree. “An appellate tribunal is
neither authorized nor warranted in substituting its judgment for
the judgment of the trial judge.” ’ ” ’ ” (People v. Strother (2021)
12
72 Cal.App.5th 563, 571.) “ ‘[A] trial court does not abuse its
discretion unless its decision is so irrational or arbitrary that no
reasonable person could agree with it.’ ” (Ibid.)
II. Analysis
Brinston argues that the trial court’s risk analysis is not
supported by substantial evidence so it abused its discretion in
denying him compassionate release. We agree.
Before turning to the trial court’s analysis and the evidence
in the record, we note at the outset that the statutory
presumption favoring release of a defendant who meets the
criteria in section 1172.2(b)(1) or (2) can only be overcome by a
finding the defendant is “an unreasonable risk of danger to public
safety.” (§ 1172.2(b), italics added.) The Legislature’s use of
“unreasonable” is significant.
In Martinez v. Board of Parole Hearings (2010) 183
Cal.App.4th 578, 594–595, the majority applied former section
1170(e), section 1172.2’s predecessor provision governing
compassionate release, and concluded that the BPH had some
evidence from which it could conclude that a quadriplegic
defendant posed a threat to public safety if released. (See former
§ 1170(e), as amended by Stats. 2007, ch. 740, § 2.) The majority
cited the defendant’s “vile” offenses, denial and minimization of
his behavior, extensive arrest history, and evidence that the
defendant showed antisocial behavior by verbally abusing prison
staff. (Martinez v. Board of Parole Hearings, at pp. 594–595.)
While acknowledging that the defendant was not personally
capable of hurting someone physically, the court reasoned that
13
the defendant could enlist the assistance of others to harm those
who irritated him and so concluded that the BPH did not
arbitrarily or capriciously deny release. (Id. at p. 595.) One
justice dissented from this part of the decision and would have
adopted a standard that the BPH could deny compassionate
release of a defendant under section 1172.2’s predecessor only if
evidence showed a reasonable possibility of the defendant posing
a threat to public safety. (Martinez v. Board of Parole Hearings,
at p. 599 (conc. and dis. opn. of Sims, J.).) This justice would
have held that there was no reasonable possibility that the
quadriplegic defendant posed a threat. (Id. at pp. 600–603.) The
majority rejoined that the Legislature could have specified a
reasonableness test but did not. (Martinez v. Board of Parole
Hearings, at p. 593, fn. 6.)
In re Martinez (2012) 210 Cal.App.4th 800, 803–804 was a
follow up case to Martinez v. Board of Parole Hearings, involving
the same quadriplegic defendant but arising under section 3550,
the medical parole statute. Section 3550, subdivision (a) allows
the BPH to grant medical parole to an incapacitated prisoner who
does “not reasonably pose a threat to public safety.” The
Legislature enacted section 3550 shortly after Martinez v. Board
of Parole Hearings was decided to address issues that had arisen
under former section 1170(e). (In re Martinez, at pp. 810–812.)
In re Martinez inferred from the timing of section 3550’s
enactment that the Legislature’s use of “reasonably” was
intended to adopt the standard proposed by the concurring and
dissenting justice in Martinez v. Board of Parole Hearings. (In re
14
Martinez, at p. 814.) In re Martinez then concluded that the BPH
did not have even “some evidence” to conclude that the defendant
reasonably posed a risk to public safety. (Id. at pp. 821–822.)
The Legislature enacted section 1172.2 to amend its
predecessor in former section 1170(e), make more defendants
eligible for compassionate release, and save California taxpayers
the cost of incapacitated inmates’ medical care. (In re Brissette,
supra, 112 Cal.App.5th at pp. 164–165.) When it did so, the
Legislature added the word “unreasonable” to the public safety
exception. (Compare § 1172.2(b) [“presumption favoring recall
and resentencing . . . may only be overcome if a court finds the
defendant is an unreasonable risk of danger to public safety”]
with former § 1170(e)(2) & (e)(2)(B)–(C), as amended by Stats.
2021, ch. 731, § 1.3 [court could resentence or recall if it found a
prisoner was permanently medically incapacitated and the
conditions of release or treatment would “not pose a threat to
public safety”].) We assume the Legislature was aware of the
different approaches in In re Martinez and Martinez v. Board of
Parole Hearings. (Brown v. City of Inglewood (2025) 18 Cal.5th
33, 51 [“ ‘[T]he Legislature “ ‘is deemed to be aware of statutes
and judicial decisions already in existence, and to have enacted or
amended a statute in light thereof.’ ” ’ ”].) We will therefore
construe section 1172.2(b)’s public safety exception in a realistic,
common-sense manner as in In re Martinez, rather than the more
speculative approach taken by the majority in Martinez v. Board
of Parole Hearings.
15
The trial court characterized the BPH’s findings from 2022
as close in time to its own assessment of Brinston’s risk in 2025.
But the BPH decision occurred almost three years before the
section 1172.2 hearing. When the BPH denied Brinston parole at
that hearing, it set his next parole hearing in three years’ time.
This indicates that the BPH itself believed three years was
sufficient time for Brinston to change. The trial court gave no
explanation for why it reached a contrary conclusion.
The trial court also said that Brinston was in a similar
medical condition at the time of the BPH’s findings. The BPH’s
vague description of Brinston’s limitations does not support this
assertion, and the record in fact indicates the opposite. From the
BPH’s reference in July 2022 to Brinston having had a stroke and
its speculation about language or cognitive functioning issues, we
can infer that Brinston was already showing early signs of what
the CDCR’s medical staff termed vascular dementia or a
neurocognitive decline in the form of forgetfulness and expressive
aphasia from recurrent strokes. But it appears that the strokes
increased in number or severity after 2022, since by the time of
the section 1172.2 hearing Brinston’s brain MRI was
“remarkable” for signs of chronic strokes and “extensive
microvascular ischemic disease.” The BPH noted that Brinston
had tremors, but the CDCR report states that his tremor was
“progressive,” which suggests it continued to deteriorate. The
BPH mentioned Brinston being in a wheelchair. But it did not
say that Brinston’s need for a wheelchair was so acute that he
required a customized wheelchair and a lap belt to prevent him
16
from falling even when seated, which CDCR staff noted. Nor did
the BPH mention Brinston having urinary and bowel
incontinence or needing diaper changes so frequently that he was
developing chronic infection of his buttocks or skin maceration on
his thighs. These are significant limitations that BPH likely
would have noted, so either the BPH was not aware of them or
Brinston’s need became more acute over time.
Moreover, the BPH failed to address entirely Brinston’s
most significant medical condition, his ankylosing spondylitis.
The BPH must have had access to Brinston’s medical records,
since it was aware of his stroke history, but it did not mention a
diagnosis of spondylitis. Nor did it note anything about
Brinston’s spine being so severely rigid that he could not turn his
neck and was as stiff as a bamboo stick or mannequin. Such a
condition would have been apparent to even a casual observer
and surely deserving of comment, so we may infer from the
silence that Brinston was not suffering from the condition at the
time in 2022. But an inference is not even necessary, since the
CDCR’s report makes clear that the condition only became an
issue after the 2022 hearing. The CDCR medical report states
that Brinston’s ankylosing spondylitis had “progressed” to severe
rigidity. It also stated expressly, “After 2023, caregivers report
[Brinston] has had increasing difficulty with all [activities of
daily living] secondary to progressive ankylosing spondylitis
rigidity.” (Italics added.) Even apart from any other
discrepancies or differences between the BPH and CDCR
descriptions of Brinston’s condition, this unambiguous statement
17
by the CDCR’s medical staff refutes the trial court’s statement
that Brinston was in the same condition three years earlier. His
condition could not be the same or similar because his ankylosing
spondylitis was getting worse over time. The limitations of
ankylosing spondylitis are not trivial or insignificant. The trial
court therefore had no basis to conclude that Brinston was
similarly situated at both hearings or rely on the BPH’s
assessment of Brinston’s physical risk in 2022.
The trial court said that the CDCR materials attached to
Brinston’s request did not address whether Brinston posed a
threat currently or in the future and were silent about his state
of mind, thought process, or sexual deviancy. (See § 1172.2(b)
[presumption favoring compassionate release can be overcome if
court finds the defendant is an unreasonable risk of danger to
public safety “based on the incarcerated person’s current physical
and mental condition,” italics added].) This was incorrect. Most
obviously, the description of Brinston’s physical condition had a
direct bearing on the risk he posed to public safety. But even if
the trial court meant only that the CDCR materials did not
address Brinston’s mental condition or psychological likelihood of
committing a super strike, the court was still mistaken. The
CDCR’s description of Brinston’s chronic strokes, neurocognitive
decline, forgetfulness, expressive aphasia, and vascular dementia
all relate to his mental condition. Additionally, the CDCR
records state that Brinston had multiple violations in prison
between 2004 and 2019 for being disrespectful to staff but had
received no disciplinary violations since then. This suggests that
18
Brinston’s mental attitude had changed in recent years. The trial
court seems not to have appreciated this evidence.
The trial court’s lack of recognition of the breadth of
information in the CDCR’s records may explain its remark that it
appeared that the BPH had more information available to it than
the trial court did. But even if the CDCR records were less
extensive than the materials available to the BPH or did not
address his risk, that deficiency would not justify finding
Brinston to be a risk of danger to public safety. As the People
concede, because section 1172.2(b) creates a presumption in favor
of recall and resentencing for defendants who satisfy the criteria
in section 1172.2(b)(1) or (2), in a section 1172.2 hearing the
prosecution has the burden of submitting evidence to rebut the
presumption. (See People v. Strother, supra, 72 Cal.App.5th at
p. 571 [under §§ 1170.18 and 1170.126, prosecution must prove
by a preponderance of the evidence that a defendant poses an
unreasonable risk of danger to public safety to defeat
resentencing]; Farr v. County of Nevada (2010) 187 Cal.App.4th
669, 681 [when a presumption affects the burden of proof, the
party against whom the presumption operates has the burden of
proving it false].) Here, the People elected not to file any
response to Brinston’s petition or to submit any evidence of their
own about Brinston’s risk of danger to public safety. Any lack of
information about Brinston’s risk was therefore attributable to
the People, not a basis for refusing to recall Brinston’s sentence.
Given the infirmities in its factual findings, the trial court’s
assessment of Brinston’s risk of danger to public safety cannot
19
stand. The trial court relied in part on the BPH’s observations
that Brinston had failed to undertake any courses or self-study
about sexual offenses and lacked understanding of his own risk
factors. Although not particularly close in time, this was
pertinent evidence and the trial court could perhaps have
credited it over the evidence in the CDCR records of Brinston’s
neurocognitive decline and cessation of disciplinary violations,
assuming the trial court was aware of the latter evidence. The
trial court also relied on the BPH’s recital that Brinston had a
moderate risk of violence and an elevated risk of sexual offending
under the Static-99. Although neither the BPH nor the trial
court said what Brinston’s Static-99 score was, this evidence was
likewise relevant to the trial court’s determination. However, it
was undercut by the fact that even in 2022 Brinston’s risk of
violence was downgraded from high to moderate largely because
of his physical limitations at the time. Given that Brinston’s
physical limitations had increased significantly after 2023, one
would expect his risk of violence to drop even further. His
assessment of posing a moderate risk of violence in 2022
therefore had little probative value as to his risk of violence in
2025. The Static-99, as its name suggests, is based on historical
or biographical factors. (People v. Field (2024) 106 Cal.App.5th
132, 152, fn. 8 [“The Static-99 test is an actuarial instrument that
allows an evaluator to place sexual offenders in different risk
categories based on historical (static) factors such as age, marital
status, the number of prior offenses, the relationship of the
offender to the victims and the gender of the victims.”].)
20
Brinston’s changing physical condition would therefore not affect
his Static-99 score. But this cuts both ways: a Static-99 score
cannot carry as much weight in the case of a defendant like
Brinston whose progressively more acute physical limitations
prevent him from acting on any propensities the Static-99 is
designed to reveal.
Indeed, this last principle undercuts all of the trial court’s
analysis. Even if the trial court could reasonably conclude from
the formal risk assessments or informal descriptions of Brinston’s
attitude by the BPH in 2022 that he was still mentally disposed
to commit a super strike, a disposition to reoffend could not alone
make Brinston a risk of danger to public safety. To pose an
unreasonable risk, Brinston also needed to have some reasonable
prospect of being able to commit the actus reus of an offense.
(See In re Martinez, supra, 210 Cal.App.4th at p. 822 [to defeat
medical parole under § 3550, a defendant “needs more than a
mere desire to hurt someone before he reasonably poses a risk to
the public. He requires the means to accomplish his desire,” i.e.,
“the opportunity and capability to hurt someone”].) There is no
such prospect in this case.
The trial court’s only discussion of this issue was its
speculation that Brinston might be able to act on his high risk of
sexual violence because his obvious needs in a wheelchair would
allow him to manipulate others into assisting him. Even if we
assume that the record would support an inference that Brinston
is capable of this level of manipulativeness, the scenario the trial
court posited is incompatible with Brinston’s physical limitations
21
as described in the CDCR medical records. According to those
records, Brinston is belted into his wheelchair to prevent him
from falling out, with no residual lower extremity function and
contracted and stiff extremities, at risk of skin infections from his
inability to even shift his weight, constantly incontinent, with
chronic infection or wounds to his thighs and buttocks, unable to
bend his spine or even rotate his head, and overall so rigid, like a
mannequin or bamboo stick, that even those attempting to care
for him have difficulty performing basic hygiene on his body.
Brinston’s conditions are progressive and permanent. He also
suffers from chronic strokes that are affecting his memory and
speech and leading to a form of dementia. The People accurately
note that Brinston still has the use of his arms to feed himself,
but he also has a progressive intention tremor and cannot raise
his shoulders such that he can no longer write. Even assuming
that Brinston were mentally capable of using his apparent
helplessness to lure someone in to assist him, given the rest of his
ailments, we cannot see how there is an unreasonable risk of
Brinston using his limited remaining arm function to commit a
super strike against that person.
Brinston is marginally more capable than the quadriplegic
defendant in Martinez v. Board of Parole Hearings and In re
Martinez, but his risk is similarly remote. Like the defendant in
those cases, the only plausible pathway for Brinston to commit a
super strike would be by speaking to others and enlisting them to
act on his behalf. (In re Martinez, supra, 210 Cal.App.4th at p.
821.) In this vein, the People argue that the trial court
22
reasonably found Brinston could manipulate others into helping
him commit sexual assaults. But that is not what the trial court
found. The court said that Brinston could manipulate someone
into helping him and then harm that person, not that Brinston
could manipulate people into helping him commit crimes against
others. The likelihood of Brinston committing a crime in concert
with others is therefore purely theoretical, which does not suffice,
as In re Martinez held under section 3550 and another Court of
Appeal recently held under section 1172.2. (In re Martinez,
supra, 210 Cal.App.4th at p. 822 [“Any inmate who has the
ability to communicate possesses the capability to use another to
act on his behalf. . . . The mere existence of this possibility,
however, does not create a reasonable threat to public safety.”];
People v. Lewis, supra, 101 Cal.App.5th at pp. 409–410
[defendant’s “mere capacity to” solicit or aid and abet a crime
“has no tendency to prove that it is likely, let alone that there is
an unreasonable risk, that he will actually engage in such
conduct,” given his criminal history].)
In sum, notwithstanding his abhorrent criminal past,
failure to demonstrate insight or empathy as recently as three
years ago, and psychological tendency to reoffend, Brinston’s
severely restricted physical condition — coupled with the total
lack of evidence of efforts to manipulate others to engage in
criminal activity at his behest — means that he cannot present
an unreasonable danger of committing a super strike offense
against anyone. The trial court therefore abused its discretion in
finding that Brinston posed an unreasonable risk of danger to
23
public safety that overcame the presumption favoring his
compassionate release under section 1172.2(b). 5
DISPOSITION
The trial court’s order denying Brinston’s request under
section 1172.2 is reversed.
BROWN, P. J.
WE CONCUR:
STREETER, J.
GOLDMAN, J.
People v. Brinston (A173470)
5 The trial court at one point misstated the governing
statute as section 1172.7 instead of section 1172.2, and,
apparently following the parties’ lead, described the standard as
requiring a finding of danger to public safety by clear and
convincing evidence. The parties on appeal do not address these
misstatements, so we do not include them in our analysis.
24
Trial Court: Sonoma County Superior Court
Trial Judge: Hon. Laura Passaglia
Counsel: Jonathan Soglin and Olivia M. Gee, under
appointment by the Court of Appeal, for
Defendant and Appellant.
Rob Bonta, Attorney General, Charles C.
Ragland and Jeffrey M. Laurence, Assistant
Attorneys General, Eric D. Share, Molly A.
Smolen, and Timothy Moore, Deputy Attorneys
General for Plaintiff and Respondent.