text: Judge Erred in Failing to Conduct Hearing On Early Release of Dying Inmate—C.A.
  However, Doctors Expect Man to Be Dead by Next Month and Hearing Can't Be Held Until Remittitur Is Issued, Scheduled for May
  Div. Three of the Fourth District Court of Appeal has ordered that a hearing be held to determine if a prison inmate, who is expected to die by next month of cancer, should be granted a compassionate release—but the remittitur is scheduled to be issued May 13, after the man is expected to be dead.
  Brian John Laudenback, an inmate of the California Men's Colony in San Luis Obispo, was convicted of second degree murder in connection with the killing of a 22-month-old boy, for whom he was caretaker, on March 25, 1994, and sentenced to 15 years to life in prison. In October of last year, Laudenback was diagnosed with bladder cancer, with his life expectancy determined to be less than six months.
  The Board of Parole Hearings on Dec. 17 determined that the prisoner is moribund and would pose no danger if released, and recommended his sentence be recalled, pursuant to Penal Code §1170(e).
  Subparagraph (3) specifies that where the board makes such a recommendation, within 10 days of receipt of it, "the court shall hold a hearing to consider whether the prisoner's sentence should be recalled."
  Stresses 'Shall'
  In quoting the provision, Presiding Justice Kathleen E. O'Leary italicized the word "shall."
  Disapproving of Orange Superior Court Judge Kimberly Menninger's action in denying release in an in-chambers decision, without conducting a hearing, she wrote:
  "Section 1170(e)(3), is very clear. It says shall. Shall means must."
  "The trial court was statutorily required to conduct a hearing to consider whether Laudenback's sentence should be recalled. Instead, the court denied his request for compassionate release during 'chambers work.' This was error. Needless to say, chambers work is not legally equivalent to a hearing. The parties did not appear and did not have an opportunity to argue their respective positions. The Attorney General concedes the court erred and the matter must be remanded for a hearing."
  She noted that Menninger also neglected to make the statutorily required findings.
  Release must be ordered, O'Leary declared, if the board's recommendation is found to be based on "some evidence."
  'Expedited' Hearing
  Although the opinion directs that an "expedited" hearing be held, the Superior Court will not be reinvested with jurisdiction in the case until the remittitur is filed. That cannot happen, absent cooperation by the Office of Attorney General, until the Court of Appeal's opinion is final in 30 days, and another 30-day period has elapsed within which review could be sought in the California Supreme Court.
  However, the Court of Appeal may "direct immediate issuance of a remittitur only on the parties' stipulation" or one other circumstance that does not apply, under California Rules of Court, rule 8.366(a) (incorporating rule 8.272(c)(1)).
  Laudenback's appeal from Meninger's order was filed Dec. 31 and calendar preference was granted on Jan. 2. On Feb. 14, the appeals court denied the request by the Office of Attorney General for an extension of time within which to file its brief.
  The case is People v. Laudenback, G058714.
  Karey Jaeger, the mother of Laudenback's victim, campaigned successfully in 1996 for a legislative change. AB 2258 was enacted, creating the Tyler Jaeger Act, named after the boy, who died from internal injuries from a beating inflicted by Laudenback.
  The act amends Penal Code §273ab to provide, in part:
  "Any person who, having the care or custody of a child who is under eight years of age, assaults the child by means of force that to a reasonable person would be likely to produce great bodily injury, resulting in the child's death, shall be punished by imprisonment in the state prison for 25 years to life."