The California Legislature’s 2021-2022 Regular Session is currently considering several bills which, if passed, would change resentencing procedures. In some cases, that even means creating a presumption that resentencing is in the interest of justice.
Current state law allows some persons convicted of murder to petition a court directly for resentencing, even without the recommendation of prison or prosecutor officials.
This includes defendants convicted of felony murder or murder under the “natural and probable consequences” doctrine.
SB775 would extend this eligibility to include:
1. Those convicted of murder when malice is attributed to them due solely to their participation in a crime; and,
2. Those convicted of manslaughter or attempted murder under the “natural and probable consequences” doctrine.
If passed, the bill would amend California Penal Code §1170.95 and allow those affected to petition the court for resentencing if they meet certain criteria. The law would require the court to hold a hearing to determine whether the petitioner qualifies for resentencing, and to appoint counsel if requested. The bill specifies that substantial evidence supporting the original conviction does not necessarily make a person ineligible for resentencing.
Before Jan. 1, 2020, sentencing courts were required to impose one-year enhancements for prior, non-violent felony terms, whether served in state prison or county jail. Additionally, before Jan. 1, 2018, sentencing courts were required to impose three-year enhancements for certain prior drug convictions, including possession for sale of opiates and hallucinogens. Under current law, these enhancements remain in effect but are only imposed in certain circumstances.
If passed, SB483 would add §1171 and §1171.1 to the California Penal Code and would render these enhancements legally invalid. Resentencing in most cases would be required, except when a lesser sentence would threaten public safety. Each county, and the CDCR, would be required to identify those who have had these enhancements imposed and refer them to the sentencing court for recall of all invalidated sentence enhancements. Those who remain in custody only on the invalid enhancements — meaning they have already served their base term plus any still-valid enhancements — would have to be resentenced by Oct. 1, 2022, at the latest. All others would be resentenced by the end of 2023.
Resentencing courts are required to follow Judicial Council rules in order to correct disparate or excessive sentences and make imposed sentences more uniform. The purpose of resentencing, as recognized by the Legislature, is to satisfy the interests of justice.
If passed, AB1540 would amend Penal Code §1170 and §5076.1 and would add §1170 .03. The changes are mainly subtle and apply to defendants who are recommended for resentencing by the CDCR, BPH or local prosecutor. For example, the bill would require the court to make its rationale for granting or denying relief part of the case record. The court would also be required to appoint counsel to represent the defendant and to hold a status conference within 30 days of receiving the recommendation for resentencing. If all parties are in favor of resentencing, the court would be authorized to grant immediate relief, recalling and resentencing the defendant without a hearing.
AB1540 would also require the court to assume by default that resentencing is, in fact, in the interests of justice, except in cases where it is shown that resentencing would jeopardize public safety. This could effectively shift, or at least significantly lighten, the defendant’s burden of proving that relief should be granted.
The Legislative Counsel’s Digest and complete text of these and other bills are available in the prison Law Library or online at leginfo.legislature.ca.gov.