Tyshawn Michael Lewis is dying of amyotrophic lateral sclerosis (ALS), a motor neuron condition commonly known as Lou Gehrig’s disease. Lewis is currently serving 75 years to life in a California state prison for first-degree murder. The California Department of Corrections and Rehabilitation (CDCR) requested he be given compassionate release. The trial court disagreed, saying Lewis still “poses an unreasonable risk of danger to public safety.” An appellate court has granted his petition, and now Lewis can die at home.

California Penal Code §1172.2 details the process for determining that “an incarcerated person satisfies the medical criteria” for release. It says that there “shall be a presumption favoring recall and resentencing…if the court finds…the defendant is an unreasonable risk of danger to public safety.” It also states that the incarcerated person must have “a serious and advanced illness with an end-of-of-life trajectory…and is permanently medically incapacitated (and)…unable to complete basic activities of daily living.”

In the opinion of Dr. Joseph Bick, the CDCR’s director of Health Care Services, Lewis met the criteria detailed in the Penal Code. But after a hearing, in which Lewis’s release was opposed by California’s Attorney General, San Bernadino County Superior Court Judge Alexander Martinez disagreed with Bick. He concluded that Lewis “does indeed pose an unreasonable risk of danger to public safety, even assuming that current physical condition is medically true.” He said he was still capable of committing a “super strike” or serious felony.

Lewis appealed, and in an opinion authored by a unanimous 3-0 panel from Division Two of California’s Fourth District Court of Appeal, the appellate court held that the trial court “abused its discretion by finding that he posed an unreasonable risk of danger to public safety by committing a super strike offense, because the finding is not supported by substantial evidence.”

The unpublished, unanimous 3-0 appellate opinion was authored by Justice Frank J. Menetrez on January 3. The ruling began with an explanation of Lewis’s lengthy criminal history that started in 2002 when, as a delinquent and a member of a criminal street gang, he committed assault with a deadly weapon. As an adult, he was convicted of possession of a firearm, driving under the influence of drugs or alcohol, battery, burglary, and finally first-degree murder in 2022. Also, while incarcerated, he had “numerous rule violations” and when not in prison, had multiple parole violations.

Justice Menetrez next discussed Lewis’s current medical condition as it was presented during his trial. Dr. Michelle DiTomas confirmed that Lewis was suffering from ALS, which was “pretty rapidly progressing.” She also said it was “very likely” he would not be able to speak within one month and that he was currently “dependent on medical staff to do everything for him.” She said she “would not be surprised if he “died in the next six months.”

Despite the medical testimony, the trial judge Martinez still believed Lewis “posed an unreasonable risk or danger of committing a violent super strike felony in the future.” He also cited Lewis’s brutality as well as his lack of remorse. He explained that he was denying the compassionate release petition “not only based on the facts of the present case and criminal history, but most importantly it is also based on the explicit findings by the authors of the diagnostic study” he had received in the petition packet. That study, prepared in May 2023 by a “correctional counselor” at Lewis’s prison, was also signed by the prison warden.

The study listed ten factors that the trial court should consider. It included his short life expectancy, but also informed the court about his history of violence and his affiliation with organized criminal activity and the “Rollin 30s Crips gang.” It concluded that Lewis still retains the capacity to commit or to influence others to commit criminal acts that endanger public safety.” Dr. DiTomas did confirm that Lewis retained the ability to talk.

The appellate court’s decision to grant compassionate release first referred to Penal Code §1172.2, then explained that “A trial court abuses its discretion when the factual findings critical to its decision find no support in the evidence.” The opinion said, “None of the evidence relied on by the trial court supports its finding that Lewis posed an unreasonable risk of committing a super strike based on his present physical and mental condition.” It disagreed with the trial court’s reliance on the part of the 2023 study that Menetrez concluded “amounts to nothing more than “a generalized concern about ‘ability to continue to commit crimes.”

Menetrez did agree with the trial court about the possibility that Lewis could solicit or aid in a super strike homicide offense, but he quickly said that the “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.” He noted that there was no evidence that Lewis had ever “solicited or directed anyone to commit a crime.” He also said there was no evidence that Lewis was a gang leader, and his affiliation did not provide evidence that a super strike was likely.

Lewis can now return home, where his mother, not a prison, will be his caregiver until he dies.