Resentencing Primer - updated

Updated: 2 hours ago

See below: I made a lot of edits, updated as current in April 2022


I get a lot of questions about resentencing. How to do it, who qualifies. Just saying "I think my loved one might need to be resentenced" is nothing more than vague wishful thinking, and it will not get you much help from a lawyer, unless it is a scammer wanting to charge you a LOT of money to "review the file" and maybe come up with nothing. Instead, it helps a lot if you and your incarcerated loved one know WHAT you might qualify for. This will enable you to proactively seek out targeted help with knowledge of what your loved one may qualify for. With that intro, here's a list of the current (and future) options for resentencing. I have linked to useful resources or bill info in most places, but for any bill (AB or SB) mentioned here, you can google it simply by typing in the name (Ex: "SB775") and look for the link to the CA legislature's website. There, you can see a description of what the bill would do, and by clicking on the "history" tab you can see the status of the bill.

1. Penal Code 1172.1 (previously known as Penal code 1170(d) and then Penal Code 1170.03, NOW renamed Penal Code 1172.1) resentencing - in the last few years, a couple of laws (SB1540 is the most recent) have passed which gave the DA and CDCR broad discretion to recommend resentencing for ANY person currently serving a state prison sentence (and the DA can recommend it for jail sentences too). This gives jurisdiction to the court (a judge) to resentence someone to a lower term. EVERY prisoner qualifies, at least superficially. Yes, this includes youth offenders, LWOPs. However, a few things to know: A) CDCR has passed its own policies (click here to see them) about who they will consider for resentencing and it currently does not include LWOPs or death penalty cases. They'll also only consider folks who has served at least 10 years, or half their total sentence already. See also Title 15 section 3076.1.

Penal Code 1385.1 also prohibits resentencing an LWOP if they have a special circumstance conviction. SB300 and AB1224 are two currently pending bills that would eliminate PC 1385.1 and make it easier for LWOPs to be resentenced. (Update: SB300 and AB1224 are dead in 2022; they didn't become law. B) The DA in the county of conviction (and only that DA) can recommend you for resentencing. Depending on the county, some DAs offices are open to receiving a request from prisoners or their attorneys.

C) Incarcerated people or their attorneys CANNOT "petition" or "file" for this kind of resentencing. It must start with a recommendation from the DA or CDCR. The CDCR will NOT accept such requests. Update: Please understand this. Any lawyer or jailhouse lawyer promising to "petition for resentencing" under 1170(d)/1170.03 is WRONG. This type of resentencing MUST start with a recommendation from DA or CDC.

Note: Recent published case law confirms that a resentencing of this type entitles the defendant to the benefit of all recent ameliorative changes in sentencing laws. (People v. McMurray; C090767; 3/30/22; C/A 3rd)


D) Referrals for a CDCR recommendation can come from any staff, officer, or browncard volunteer. The person who wants to refer you should do so by emailing their referral to CDCR-DAI-1170-D-Recall-of-Sentence@cdcr.ca.gov. After a referral is made, the prisoner goes into a queue to be considered by CDCR, which will probably include an interview with an investigator, after which a recommendation to the court MIGHT be made.

E) If you get a recommendation for resentencing from the DA or CDCR, that's not the end of the road. Next, you go to court, where a judge will decide whether to reduce your sentence. (They cannot choose to increase it) This is definitely the point when you want to have a lawyer. Some public defender's offices are working hard to represent these (including Santa Barbara, Alameda, San Diego, I think), but hiring a private lawyer like myself would also be appropriate at this stage.

3. SB1437/SB775 (first titled Penal Code 1170.95, NOW renamed Penal Code 1172.6) - Clarification: all three of the designations just listed are THE SAME THING.) This law enables prisoners to petition for resentencing if they were convicted of murder, update: now also attempted murder, or voluntary manslaughter under the felony murder rule or the natural and probable cause doctrine. This law was found constitutional, and there is a LOT of complicated caselaw explaining it already. The process of petitioning starts with a simple 3 page form, after which a judge will rule on the "prima facie" case which means as long as your case fits the above criteria, the petition will be granted. That means a further proceeding will be calendared, and you'll have the opportunity to have a public defender appointed, or to hire a private attorney. These cases are often resolved by plea deal, which means you plead guilty to something less than murder, with a stipulated sentence. If it can't be settled that way, it will go to an evidentiary hearing (sometimes called a (d)3 hearing) to decide whether you were A) a major participant in the underlying felony that led to the homicide, and whether you had a conscious disregard for human life. If both of these are true, the murder/attempt murder/manslaughter conviction will stand, if not, it will be vacated and you'll be resentenced on whatever underlying felony is still there. A few other things to know:

Cases in Los Angeles have the best chance of success, because DA Gascon's policy is to NOT oppose most of them, assuming the facts fit the law. Update; I'm not sure if this is turning out to be true. LA's deputy DAs are not following their leader very much! but if your case is from LA, it's still worthwhile to try this type of resentencing, if you're eligible.

4. SB483 (first called Penal Codes 1170.1 and 1171, NOW renamed 1172.7 and 1172.75). This law eliminates the 1 and 3 year "prison priors" and a 3 year "prior drug sales conviction" enhancement. Anyone who has one of these enhancements on their Abstract of Judgement has hit the lottery: you not only get those enhancements deleted, but you get a chance for the court to do a complete new resentencing, applying all the good changes to Penal Codes 1170(b) and 1385. It does NOT apply to any other enhancement besides the three I just named. See more about it in another blog here: SB483 - GUARANTEED RESENTENCING for those who qualify, but RISKY TO FILE EARLY (lifesupportalliance.org)

5. Writ of Habeas Corpus: There are plenty of grounds that can lead to resentencing using a habeas, but they're NOT unlimited. Here are a few of the ways: A) If a conviction or sentence is unlawful under the penal code, this can be challenged by habeas at any time. B) If a person's trial was unfair or their defense attorney at trial was incompetent, these can be challenged by habeas but ONLY up to one year after the direct appeal is completed, and ONLY can challenge issues that were not already raised on direct appeal. Any issue that occurred at trial that was already raised on appeal (or a previous habeas) is issue-precluded, meaning it cannot be raised again, except to a higher court. Any issue from trial (other than an unlawful sentence) is time-barred if it has been more than a year since the case became final. C) An exception to the above rules is if there is BRAND NEW law or or NEWLY DISCOVERED evidence (that could not have been discovered at the time of trial, such as a newly discovered or newly recanting witness, or new scientific breakthroughs that shed doubt on the forensics used at trial). You then have one year to bring a habeas using the new law or evidence. D) Another exception is strong evidence of "actual innocence" (as opposed to evidence of an unfair trial or due process violation) - in theory this can be brought by habeas at any time, and can lead to a conviction being vacated. Finding evidence strong enough to cross this threshold is very rare however.

6. Resentencing of enhancements - Currently, contrary to popular rumors, there is no over-arching way to "remove" any enhancement. Here are the actual options:

SB483 creates the fully retroactive right to remove certain prison and drug priors. When that resentencing occurs, other enhancements MIGHT be removed by a judge. See above, or Click here for a blog specifically about this law.

SB81 became law in 2021, it gives judges discretion to dismiss many enhancements. However, it is NOT retroactive, meaning it only applies to current cases in court, those who are still on direct appeal, and those who get a resentencing through SB483, 1170.95(1172.6), 1170.03 (1172.1), or habeas.

AB333 was also enacted recently, making it harder to prove gang enhancements. It is NOT fully retroactive, but it applies to anyone who gets a resentencing through other means. In theory, their gang enhancements could now be stricken. However, a recent published decision (People v. Rojas; F080361; 6/29/22; C/A 5th) further limited this law. Read more about it here.

There are other enhancements that have been made discretionary in recent years, such as the nickel prior, gun enhancements (SB620), etc, but those changes were NOT fully retroactive either, so they do not create grounds to seek resentencing. Only if a person is being resentenced for some other reason, the judge will then apply current law, which means the person might get the benefit of some of these changes in the law.

7. Racial Justice Act: The Racial Justice Act has become retroactive! Governor just signed this new law, AB256, in October 2022!

This means that someone sentenced in a case that involved (provable) racial bias has a new opportunity to file for relief, regardless of the time, or of prior appeals and habeas petitions! This is really big news! There's a delayed rollout: death penalty cases can file starting 1/1/2023, and most others starting 1/1/2024, but it's not too soon now, if you have such a case, to speak with the public defender, a lawyer or another reputable organization about this. If your loved one's case involved a racially motivated jury selection issue, or something race-related in jury instructions or unique evidence that was controversial for race-related reasons (the Contra Costa Superior Court just granted a motion for new trial because of an "expert" opinion on rap lyrics that was ruled to be based on racial stereotyping in violation of the RJA), this is a brand new opportunity!

Don't squander this chance, get it done right, please. Feel free to reach out to me if you're looking for advice on this; I can be retained to review docs and help you determine if your loved one has a chance of relief under this law. With my upcoming sabbatical, I'm probably not the right person to hire for this petition, but I can be hired to help you get the ball rolling and get the case into the hands of a competent advocate.

8. Earlier forms of statutory resentencing: Earlier laws such as Prop 36 from 2012 and Prop 47, allowed for resentencing of some convictions - certain 3rd strike sentences and felonies reduced to misdemeanors. Those have pretty much all been adjudicated by now.


9. See also my more recent blogs about SB81 and SB483 which offer options to those who fit the criteria.


10. Final note: A lot of folks are hearing rumors that CDCR is "dropping" people's enhancements so that they can get released after serving their "base term." This is NOT accurate. There is something sort of like this, called "NVPP" (non violent parole program), and it is ONLY for those whose current conviction is non-violent (no convictions that are on the list found in Penal Code 667.5(c) (click here to see the list)

So for those who qualify for NVPP, it does NOT mean they are automatically released after serving only their base term. NVPP means that once the base term has been served, the Board of Parole (BPH) will consider a prisoner annually for early release. Click here for a link to BPH's description of NVPP: The best way to EARN this early release is to do LOTS of rehabilitative programming. You can also submit relapse plans, essays, and apology letters for NVPP review, by emailing them to BPH at bph.correspondenceunit@cdcr.ca.gov

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