Resentencing

1170(d)(1) RESENTENCING PETITIONS

AB 1812- a California Assembly bill that amended PC § 1170(d)(1) to advise judges to consider evidence of rehabilitation and post-conviction factors. The law went into effect upon Governor Brown’s signature on June 27, 2018. Penal Code § 1170(d)(1) now authorizes a court to recall a sentence and resentence a person to a lesser sentence at any time upon a recommendation from the California Department of Corrections (CDCR) or the Board of Parole Hearings (BPH) (or, for people in county jails, a recommendation from the county correctional administrator or Sheriff). Further changes are as follows:

• § 1170(d)(1) now specifically states that courts have authority to recall sentences imposed after plea agreements as well as sentences imposed after trials.
• § 1170(d)(1) was modified to state that courts have authority to recall a sentence and resentence a person if it is in the interests of justice. This language could cause the CDCR to expand the scope of the cases for which it recommends recalls of sentences and could encourage courts to grant resentencing in more situations.
• § 1170(d)(1) was modified to specifically allow courts to consider post-conviction factors when resentencing a person, including (but not limited to) the person’s disciplinary record and record of rehabilitation while incarcerated, evidence of whether age, time served, and diminished physical condition (if any) have reduced the person’s risk for future violence, and evidence that reflects that circumstances have changed since the person’s original sentencing so that continued incarceration is no longer in the interest of justice.

AB 2942– a California Assembly bill sponsored by Assemblymember Ting that amended PC § 1170(d)(1) and authorized district attorneys to make referrals for recall and resentencing. The law went into effect on January 1, 2019.

OTHER NEW SENTENCING LAWS

SB 1393- a California Senate bill sponsored by Senators Mitchell and Lara ending the mandatory requirement that judges add a 5-year sentence enhancement for each prior serious felony on a person’s record. This 5-year enhancement is also referred to as a “nickel prior.” SB 1393 amends Penal Code sections 667 and 1385 making it optional for judges to give a 5-year enhancement for each prior serious felony (PC §§ 1192.7(c), 1192.8, and 667.5(c)) conviction. The law went into effect on January 1, 2019.

SB 136- a California Senate bill sponsored by Senator Wiener ending the mandatory requirement that judges add a 1-year sentence enhancement for most prior felony prison or jail terms. The law went into effect on January 1, 2020.

SB 1437- a California Senate bill sponsored by Senator Skinner that ends the “Felony Murder Rule” that had previously allowed people who did not commit a murder to be sentenced as if they were guilty of murder for participation in an unrelated crime. SB 1437 modified section 1170.95(a) of the California Penal Code.

Prior to SB 1437, a person was guilty of “felony murder” if:

• He/she participated in a serious felony (e.g., carjacking, robbery, burglary, etc…)
• A victim of the felony died during or as a result of the felony

There was no requirement that the person convicted be involved in the killing, intended for the killing to occur, or even had knowledge of the killing. 

Under the new felony murder rule, a person can only be guilty of “felony murder” if:

• The person is the actual killer.
• The person acted with intent to kill, such as assisting the actual killer, or encouraging the actual killer to kill the victim.
• The person was a major participant in the crime who acted with “reckless indifference to human life.”
• The victim was a police officer who was killed on the job, and “the defendant knew or reasonably should have known that the victim was a peace officer engaged in the performance of his or her duties.”

SB 620- a California Senate bill authored by Senator Bradford that removes automatic sentence enhancements if a firearm is involved in the commission of a crime. Prior to SB 620, the presence of a firearm in the commission of a Felony would automatically trigger mandatory sentencing enhancements pursuant to Penal Code Sections 12022.5/12022.53, even if the person being sentenced was not the one in possession of the firearm at the time. Depending on the circumstances, these enhancements could add at least several years or up to 25 years to life. Now, however, the Court has the authority, under SB 620, to Strike or Dismiss these enhancements at the time of sentencing.

Under a rule established in a case called In re Estrada, new laws like SB 620 should apply to anyone whose criminal case is not yet final when the law takes effect. 

A criminal case is not final if:

• a direct appeal is still pending in the court of appeal,
• a petition for review can still be filed or is pending in the California Supreme Court,
• or the 90-day timeline for filing a petition for writ of certiorari in the U.S. Supreme Court has not expired.

If you think you may benefit from new California resentencing laws, our attorneys can provide guidance and help you prepare a petition. Contact us today.