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A January ruling that released a prisoner over humanitarian concerns was published April 11, setting precedent on when to release prisoners facing fatal health issues.

Tyshawn Lewis was convicted in 2022 of first degree murder for the fatal 2020 shooting of Sidney Treadway in San Bernardino. He had barely started his 75-years-to-life sentence when he began showing signs of fatal amyotrophic lateral sclerosis (ALS), also known as Lou Gehrig’s disease.

Ask for release

In June 2023, Joseph Bick, director of health care services at the Department of Corrections and Rehabilitation, petitioned for Lewis to be released early under Penal Code Section 1172.2.

The law allows for the release of inmates with severe medical conditions that prevent them from doing daily tasks. To qualify under the section, the inmates must not pose an unreasonable risk of committing violent felonies, based on their current physical and mental conditions.

Lewis had a half expectancy of less than six months. He had difficulty speaking, walking, swallowing, breathing, dressing and bathing. His first symptom came when he was no longer able to dribble a basketball.

Michelle DiTomas, a doctor, had testified that Lewis’ symptoms were progressing rapidly, and that he was no longer a threat to others.

“(T)here’s just no way (Lewis) could cause harm to somebody. You just have to push him a little bit, and he’s going to fall over. There’s no way for him to protect himself,” DiTomas had said, according to the appellate ruling.

Petition denied

San Bernardino Superior Judge Alexander Martinez had denied Lewis’ petition. He had found that Lewis was still able to direct murders, and found, based on a report, that Lewis was still involved in a criminal gang.

“(H)e would still have the ability to speak easily on the phone with members of that gang to coordinate and strategize further criminal activity, particularly violent criminal activity such as solicitation to commit murder,” Martinez wrote.

Appellate Ruling

The Court of Appeal had found that whether a defendant can commit a crime is not the primary question when considering compassionate release.

“Lewis’ mere capacity to engage in such conduct 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,” the appellate ruling said.

Lewis did not have any history of aiding or ordering homicide, the Court of Appeal found.

“If Lewis is released, it is possible that for the first time in his life he will use his ability to speak to solicit or aid and abet a homicide or attempted homicide. But the same bare possibility exists for anyone who has any ability to communicate,” the ruling said.

The Court of Appeal also found that Lewis’ alleged past history in the Rollin 30’s Crips gang did not translate to being in a position to direct others to commit crimes. He was recorded as being an “associate” of the gang, which could mean he was only a suspected gang member, or that he had an even looser relationship with the gang. The Court of Appeal also found no evidence that Lewis has the power to direct other gang members to commit crimes.

The ruling ended by saying that compassionate release is now mandated and no longer up to the judge’s discretion.

“Under the current statute, relief is mandatory unless the defendant poses an unreasonable risk of committing a super strike,” the ruling said.

Case information

The ruling was first made Jan. 3, but not published until April 11 at the order of the California Supreme Court.

Sally Patrone, under appointment, represented Lewis.

Deputy Attorneys General Eric Swenson and Christine Friedman represented the people.

San Bernardino Superior Court Case No. FSB20003711

Appellate Case No. E082085


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