Re-Sentencing

Recent changes in California law provide an opportunity for those who have been convicted of a crime to have their sentence reduced or even eliminated. If you have been sentenced under California’s three-strikes law, or as an adult for crimes committed as a juvenile, or under the felony murder rule or natural and probable consequences doctrine, or if you have served your time in custody well and believe you deserve to have your sentence reduced, contact us to see how we can help.

There are a number of avenues to seek re-sentencing under California law, including:

Proposition 36.

Senate Bill (SB 260).

Senate Bill (SB) 1437.

On January 1, 2019, Senate Bill 1437, was enacted, changing California’s felony murder law and providing certain people convicted of felony murder, or murder under the natural and probable consequences doctrine, to bring a petition for a reduction in their sentence.

This new law limits who can be prosecuted for felony murder to those who actually commit murder or shared the actual killer’s intent to commit a killing. The key feature of SB 1437 is that it is retroactive, meaning that if you have already been convicted of murder under the felony murder rule or the natural and probable consequences doctrine, you may petition the court to resentence you to a lesser offense, which can result in a substantial reduction of your sentence.

In order to be eligible for Resentencing under Senate Bill 1437, several criteria must be met. These include:

1. That the defendant was convicted of felony murder or as an aider and abettor under the natural and probable consequences doctrine;

2. The defendant was convicted of first- or second-degree murder; and

3. The defendant was not a major participant in the underlying felony and did not act with reckless indifference to human life.

4. The victim of the crime was not a peace officer.

If you would like us to assist you with filing a petition for a reduced sentence under SB 1437, contact us or have a friend or family member contact us.

Proposition 36 Under California’s long-standing version of the three-strikes law, defendants with two prior felony convictions (strikes) could face 25 years to life in prison for a third felony; even a non-violent charge. This law was reformed by voter initiative in 2012 to require that a third strike be a violent felony in most instances. Even better, the new law (known as proposition 36) applies retroactively; that is, to convictions that have already been handed down. This means that individuals can petition for a reconsideration of sentences given under the old law and, in many cases, have these sentences reduced to a more equitable term.

Senate Bill (SB) 260 In many states, young offenders can be tried as adults for certain crimes and sentenced to extremely long or even life sentences for crimes committed as young as 14. Fortunately, the Supreme Court blocked parts of this practice in a 2010 opinion. In 2013, California became the first state to respond with legislation changing child sentencing practices. Under existing state law, courts have the authority to review a prisoner’s sentence and, where appropriate, reduce that sentence. Senate Bill 260 requires that young offenders who were tried as adults be given meaningful opportunities for parole by mandating re-sentencing hearings after 15, 20, or 25 years of their sentence has been served depending on the crime in question. Like Proposition 36, SB 260 is retroactive which means that as many as 5000 of California’s youngest and most vulnerable prisoners may get a new lease on life under the law.

Senate Bill (SB) 1437 State Sen. Nancy Skinner (D-Berkeley) and Sen. Joel Anderson (R-Alpine) have jointly authored Senate Bill 1437 so that it would “require a principal in a crime to act with malice aforethought to be convicted of murder except when the person was a participant in the perpetration or attempted perpetration of a specified felony in which a death occurred and the person was the actual killer, was not the actual killer but, with the intent to kill, aided, abetted, counseled, commanded, induced, solicited, requested, or assisted the actual killer in the commission of murder in the first degree, or the person was a major participant in the underlying felony and acted with reckless indifference to human life.” Essentially, this bill would punish the participants for the crime they committed not for the murder unless that participant intentionally kills another person or aids and abets the killer can still be found guilty of murder.

Penal Code § 1170(d)(1) CDCR Resentencing Recommendations (AB 1812)

In June 2018 the Legislature passed and signed Assembly Bill (AB) 1812, and it was enacted January 1st, 2019. AB 1812 amends Penal Code § 1170(d)(1). Penal Code section § 1170(d)(1) authorizes a court to recall a sentence and resentence a person to a lesser sentence in two circumstances: (1) on the court’s own motion within 120 days after sentencing; or (2) at any time upon a recommendation from the California Department of Corrections (CDCR), Board of Parole Hearings (BPH), or for individuals in county jails, a recommendation from the county correctional administrator. Previously, the authority to recommend sentence recalls was rarely used by the CDCR.

Under the new law, the CDCR does have a broad discretion to decide which sentences to recommend for recall. However, enacting AB 1812 may help more people get CDCR recommendations for resentencing and also help more people get actually resentenced. Here is a summary of the changes made by AB 1812:

• Most importantly, AB 1812 grants additional funds to the CDCR to investigate potential cases to refer for a recall of a sentence.
• Now, § 1170(d)(1) states explicitly 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. As in the past, if a court decides to resentence someone, the court must apply the sentencing rules “so as to eliminate disparity of sentences and to promote uniformity of sentencing.”
• § 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.

At this point, it is uncertain as to how many or what types of cases the CDCR will recommend for recall. The cases that have been recommended for recall are mostly those which the CDCR believes the sentence imposed by the court was not lawful under the sentencing laws, and a few are cases in which a person demonstrated exceptionally meritorious conduct in prison. Cases may also be recommended by the CDCR for recall for those people who previously filed petitions asking for discretionary resentencing under Propositions 36, 47, 64, but were denied resentencing.

Need More Information? If you would like more information about Proposition 36, SB 260/261, SB 1437, AB 1812 or other avenues to reduce your sentence or about how the Bill might apply in your specific case, please don’t hesitate to contact us. Depending on your situation, you might be facing a deadline within which to seek help. Don’t wait and risk jeopardizing your Constitutional rights.