Recent legislation has created new opportunities for prisoners to have their sentences recalled by the court. But there are also new political barriers to obstruct inmate access to the court when they file a Petition for Recall of Sentence.
Under Penal Code section 1170(d)(1), there are four ways in which a state prisoner may have a court review a petition for recall of a sentence: 1) by the court itself, if it is within 120 days of the original sentence; 2) a referral by law enforcement; 3) a referral by the secretary of the California Department of Corrections and Rehabilitation (CDCR); and 4) a referral by the district attorney from the county where a petitioner was convicted.
One obstacle is created by some district attorneys who maintain a hands-off policy for certain cases, based on internal criteria. Because of the nature of some offenses, some prosecutors will not entertain reviewing a Petition for Recall of Sentence.
In 2018, Assembly Bill 2942 was passed and signed into law by then-Gov. Jerry Brown. It broadened the use of the 1170 statute. The law states, in part: “This bill would allow the court to also recall and resentence a defendant upon the recommendation of the district attorney of the county in which the defendant was sentenced.”
Some county district attorneys use the non-profit, third-party organization For the People to screen out petitions for recall of sentence before, if ever, a DA’s office sees them.
“Because AB 2942 is a discretionary law, it allows district attorneys to determine their office’s specific criteria for resentencing,” Christina Svenson, spokesperson of For The People, wrote in an email for this story. “As such, every office identifies cases to be resentenced based on different factors.”
Questioned specifically about Contra Costa County, Svenson wrote “We’re not able to share specifics…” Adding, the first two cases resentenced under AB 2942 in that county “happen to be burglaries, and both were people who served more than 10 years of their respective sentences.”
In the California Penal Code, a stand-alone burglary carries a sentence that varies from 16 months, four years or six years.
“Many California district attorneys agree and believe that DAs should ‘look back’ at prior sentences and provide redress,” the For The People website states. “However, until AB 2942, there were no legal vehicles that would allow a prosecuting agency to revisit prior sentences and recommend a reduced sentence.”
“At this time, For The People is only working on cases that have been identified by district attorneys as well as cases that are in counties where we have a resentencing partnership,” Svenson wrote in her email.
In California, Svenson wrote, For The People has a partnership with DAs in the following counties: Contra Costa, Humboldt, Los Angeles, Merced, Napa, Riverside, Santa Clara, Santa Cruz, San Diego, San Francisco, San Luis Obispo, and Yolo.
“There is definitely a variation from county to county in resentencing criteria,” Svenson wrote. “Some counties begin with non [violent], non [serious], non [sexual] cases and expand over time.”
Earlier this year, the state budget approved funding for nine district attorneys to implement AB 2942. They’ll each receive a share of $18 million to identify prisoners deemed no longer a public safety risk.
“Most prosecutors agree that if a person has transformed their life and there’s no justification for having them incarcerated, then they should be out,” KQED quoted Hillary Blout, executive director of For The People.
A major obstruction to the 1170 statute was created by the CDCR, in a proposed Notice of Change to Regulations (NCR 21-04). It was originally filed as an “emergency,” and later received at least two 60-day extensions. The emergency language allows speedy implementation of changes to the California Code of Regulations, Title 15.
“[T]he emergency adoption of the regulations would significantly incentivize inmates to participate in rehabilitative and other programming offered in CDCR institutions,” the NCR states. It states further “…CDCR proposes to use Penal Code Section 1170(d) to its full potential…”
The newly proposed regulation also reads, in part: “…inmates who meet the following criteria shall be excluded from consideration…” The text list seven exclusions, such as “Indeterminately sentenced inmates…scheduled for a parole hearing within the next 18 months…” will not be considered.
According to the CDCR, “These regulations establish a major expansion of the process to recommend inmates to their sentencing court for recall of commitment and resentencing, pursuant to Penal Code section 1170(d)(1).”
Previous language in Title 15’s recall regulation did not use the word exclude. It read, in part:
“For inmates meeting one or more of the recall eligibility requirements…the Classification and Parole Representative, shall consider…” an inmate’s petition.
The state Penal Code gives the CDCR rulemaking authority to adopt, amend or repeal sections of Title 15. However, the state Government Code reads: “In order for a regulation to be valid, it must be (1) consistent with and not in conflict with the enabling statute and (2) reasonably necessary to effectuate the purpose of the statute.”
In 2018, Assembly Bill 1812 was signed into law by then-Gov. Jerry Brown. The law was written to allow a court to recall an inmate’s sentence if they have exhibited good conduct and rehabilitation during their incarceration.
AB 1812 states, in part: “…at any time upon the recommendation of the (CDCR) secretary or the Board of Parole Hearings…” a court “may reduce a defendant’s term of imprisonment…” The law was written, ostensibly, to broaden the use of Penal Code section 1170(d)(1).
“The court may consider post-conviction factors, including, but not limited to, the inmate’s disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition…reduced the inmate’s risk for future violence…,” AB 1812 reads, in part. After the CDCR wrote conflicting regulations, following the passing of Proposition 57 (also written for early release) by voters in 2016, California’s Court of Appeal applied its standard of review on the contradictory regulations. Two inmates who challenged the regulations were both granted relief by the court. The cases on habeas corpus were In re Mohammad and In re Edwards.