A primer on 1170(d) Resentencing

Updated: 2 days ago

In June 2018, the Governor Brown signed Assembly Bill(AB) 1812, which amended Penal Code § 1170(d)(1). The new law took effect immediately. Penal Code § 1170(d)(1) was always on the books, and always authorized the CDCR and BPH to (at any time, and for any reason) recommend ANY inmate be resentenced. The change to the law expanded that authority to include the DA's offices also, and to signal to both agencies that the should USE this authority, which until 2018, CDCR had seldom used. The CDCR’s current regulations about §1170(d) sentence recall recommendations are in the California Code of Regulations, Title 15, §§3076-3076.2 (these have not been modified since AB 1812 took effect).

I get a LOT of questions regularly about what this law is, who is eligible, and whether I can help get folks resentenced. So I want to try to dispel some of the myths, and give you some accurate information:


CLARIFICATIONS:


1. ANY inmate is technically "eligible" for this relief. Any sentence, any offense. However the likelihood that CDCR or the DA will recommend resentencing varies a LOT based on specific factors, which I'll cover later.


2. There is NO court petition or form that can be filed to trigger a resentencing recommendation. If you ask a court to resentence your loved one without a recommendation from the DA or CDCR first, the court MUST deny it. They simply lack jurisdiction at that point. (The only exception is if your loved one was sentenced less than 120 days ago) Any lawyer or organization who claims they can file a motion or petition WITH THE COURT to get your loved one resentenced under this law is LYING (or totally incompetent) and trying to scam you. (Keep in mind, there are other ways that some offenders can get resentenced, such as if they qualify for SB1437, or their prior sentence is determined to be illegal, or if a petition for writ of habeas corpus is successful based on newly discovered evidence or another retroactive change in the law)


3. There is also NO form, and NO petition to ask CDCR to recommend resentencing under 1170(d). Could they make such a procedure? Yes! But they haven't. In fact, they have specifically stated that they will NOT accept requests or referrals for 1170(d) from ANYONE other than prison staff.


4. Could there be a petition or form to request 1170(d) recommendation from a DA's office? Yes! Is there one? In most counties, probably not (Except SF and San Joaquin; see update in red below). Any request for support from a DA's office is generally handled more informally, on a case-by-case basis. Many deputy DA's do not even believe they have authority from their bosses to use this law. Maybe they can, but if they WON'T, then that's their choice.

One thing I DO know is happening, is that the CDCR has made a list of ALL inmates whose sentences include the gun enhancement and/or a 5 year "nickle prior" enhancement, since these enhancements used to be mandatory and are now discretionary. The changes to these enhancement laws are not retroactive, but to give CDCR a little credit, they are at least considering (on a case-by-case basis) using their authority under 1170(d) to provide some equitable relief to offenders who might've received a shorter sentence if they had been sentenced under the current laws. (I believe they might be doing this based on a directive from the Governor's office.) However, this LIST is not a final decision, it is just a starting point. CDCR has said that the list is very long, and they are going case by case, analyzing each individual inmate to decide whether to actually make the recommendation for resentencing. So if your loved one is in that position, and if he or she is patient, there is a chance they will be recommended for resentencing, if their sentence includes one of these enhancements, EVEN IF NOBODY (lawyers, loved ones) DOES ANYTHING ELSE.

All of that being said, here are my untested theories on what else might work, to proactively seek a resentencing under 1170(d):


1. If you know someone at the DA's office, contact them! I have not heard of any county DA's office forming a task force or unit to consider using their authority under 1170(d). Maybe individual deputy DA's can recommend it. Maybe not? It probably depends on their office's policy. But regardless, getting them to do so would take persuasion. If you (or a lawyer you hire) can get the ear of a DA who is willing to help, you (or your lawyer) would want to persuade them that:

A) the offender's sentence was unfairly applied, too long, or should be reconsidered in light of changes in the law, B) the offender is rehabilitated and therefore safe to release, and/or C) the offender has done something the DA's office would consider extraordinary (perhaps turned state's evidence/testified in another case?) that warrants a "reward" in the form of a sentence reduction.

UPDATE: I was informed by a San Francisco Public Defender that the SF and also the San Joaquin DA's offices have a process to apply for a recommendation. You can ONLY ask for help from the DA's office if it is the same county DA that prosecuted the offender. So this update only applies to those *lucky* enough to have been prosecuted in one of these two counties. Here are the websites to start the process:

https://www.sfdistrictattorney.org/justice-innovation/second-look https://www.sjgov.org/da/pcru

There are also a couple of counties that have a "conviction review unit" where they review cases that might be unrighteous. San Diego and Los Angeles each have a unit, but they are ONLY for those who have a claim of innocence. Please don't abuse these Unit with claims for other things (or they might just use that as an excuse to shut it down altogether!), but if an offender from LA or SD has a sold claim of innocence that is perhaps barred from Habeas relief because of time limits, these conviction review units might consider recommending resentencing via 1170(d) as a form of equitable relief.

https://da.lacounty.gov/operations/cru

https://www.sdcda.org/office/ConvictionReview/

Last note on getting a recommendation from a DA's office: if a lawyer or organization is claiming they can help your loved one in this way; get a little more detail before you hire them. Do they actually have an "in" at the DA's office where your loved one was sentenced? Have they succeeded in getting the DA to stick their neck out for others before? Do they have a specific game plan for persuading the DA? If not, it may just be false promises or a scam.


2. If an offender has NOT already been referred to CDCR's "List" as described above, or perhaps in addition to that, CDCR does accept referrals for offenders that should be resentenced. HOW TO GET that referral? Well, CDCR is not accepting referrals from lawyers, family members, or inmates themselves, only from their own staff. This includes volunteers with a brown card, correctional officers, and civilian staff. I would guess that higher ranking staff (like a warden) would carry more weight. But regardless, ANY CDCR staff can make a referral. They have actually been given a specific email address to make such a referral. A referral is not the same as a recommendation to the court. But it is a START; it gets the inmate onto CDCR's list for consideration, so that CDCR might actually recommend him/her for resentencing. Here are factors CDCR will find compelling, in deciding whether to make the resentencing recommendation to the court: A) the conviction or sentence was unfair (perhaps very young youth offenders in particular could play this card? Or aiders/abettors who had only a very small role in their crime?) B) The offender has been a model inmate, and/or done something extraordinary in prison (like save someone's life, create a self-help program, or earn a bachelor's or master's degree; these are just examples - there could be plenty of similar ways to be extraordinary! The point is, an offender with bad, or even average "run of the mill" behavior is not likely to get recommended for resentencing.) C) the offender does NOT have an upcoming chance at parole through BPH, or an upcoming release date (If they do, if the offender is on his way out the door, or is being evaluated by BPH already, trust me, CDCR is not going to waste resources processing a recommendation for resentencing, )

Please remember that ALL of this strategy is just to GET the recommendation for resentencing. From that point, 1170(d) authorizes the original sentencing court to reconsider the sentence and reduce it. (By law, they cannot increase it, so no risk there.) But they CAN simply DECLINE to change the sentence. All that work, all that hope, and the court might just say, "No, I'm going to stick wit the sentence I originally imposed."


That's why THIS stage of the process, when a recommendation has actually been made to the court, is the only one where I highly recommend hiring an attorney, to help the offender make his or her case for why he should be resentenced. As with any matter taking place in court (as opposed to inside the prison) I recommend hiring local criminal defense counsel who works in the county court where the offender was originally sentenced. In most counties, I highly recommend the public defender; if they are a big enough office to be willing to handle this type of resentencing, then they are also usually HIGHLY competent and experienced to do a good job. In many cases, they know the local judges and DA's far better than any prison lawyer (including myself) And of course, they are free!

I hope this primer gives you a better idea of the scope of the law, who is eligible, and what it takes to actually successfully get resentenced. I know, it sounds like a lot of hurdles. To be honest, it is a long-shot. But for those with extremely long sentences, it is worth at least trying.

I wish you the best of luck!

--

Attorney Laura R. Sheppard

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