New year brings new changes to make PC 1170 process more effective
By Elizabeth Fraser and Danielle Harris,
The Freedom Project at the
San Francisco Public Defender
For many years, California Penal Code section 1170(d)(1) has authorized judges and a small number of criminal system officials to request that a person’s sentence be recalled and considered for resentencing to a lower term.
Until recently, referrals under PC 1170(d)(1) were extremely rare. Then in 2018, two law changes led to more referrals being made. First, Gov. Brown gave CDCR funding to identify incarcerated people who might be good candidates for resentencing. Second, AB 2942 was signed into law, giving district attorneys the power to refer people back to court for resentencing. Since then, CDCR has referred approximately 2,000 people back to court and an estimated 100 to 200 cases have been referred by district attorneys.
But resentencing has not been as effective as lawmakers and advocates envisioned and this year new laws were passed to allow resentencing to reach more people: AB 1540, AB 124, and SB 483 all go into effect on Jan. 1, 2022.
What does AB 1540 do?
AB 1540 strengthens incarcerated individuals’ procedural rights during recall and resentencing, clarifies what the court must do when it gets a resentencing referral, and limits judicial discretion to deny resentencing.
Specifically, AB 1540:
● Ensures that all people referred for recall and resentencing have a right to an attorney;
● Requires a judge hold a status conference within 30 days of receiving a resentencing recommendation, where an attorney will be appointed;
● Makes clear that a person referred for resentencing has a right to be notified about the referral;
● Clarifies that a judge can resentence someone to a lesser-included or lesser-related offense;
● Clarifies that a resentencing judge shall apply any changes in the law that reduce sentences or allow judicial discretion;
● Provides a right to a hearing; and,
● Creates a presumption that a person will be resentenced, overcome only if the court determines that the individual is an “unreasonable risk of danger to public safety,” as defined in Penal Code section 1170.18(c). This means that resentencing can be denied only if the court finds that the person poses an unreasonable risk of committing a violent felony “superstrike” if released. Superstrikes include: homicide, solicitation to commit murder, violent sex crimes, sex crimes against children, assault with a machine gun on a peace officer or firefighter, possession of a weapon of mass destruction, or any serious or violent felony punishable in California by life imprisonment or death.
In addition, the amended resentencing law will be moved from Penal Code section 1170(d)(1) to a new section 1170.03 and the Attorney General is added to the list of agencies that can refer people back to court in cases that they prosecuted.
Recall and resentencing under PC 1170.03 is technically available to all persons, regardless of their conviction or sentence type, but individuals cannot benefit from it unless one of the listed state actors makes a resentencing recommendation. CDCR’s rules that guide who it refers back to court for resentencing are in Title 15 sections 3076.4 to 3076.5. Some DA offices have their own criteria for considering resentencing referrals.
What does AB 124 do?
The new 1170.03 requires the resentencing court to consider anything that is relevant to a just sentence, like age, disciplinary record, record of rehabilitation, and diminished physical condition.
Because of AB 124, 1170.03 also requires the court to specifically consider if the person:
● Has experienced psychological, physical, or childhood trauma, such as abuse, neglect, exploitation, or sexual violence;
● Was a victim of intimate partner violence or human trafficking before or at the time of the offense; and/or
● Was under the age of 26 at the time of the offense.
What does SB 483 do?
SB 483 authorizes courts to retroactively remove 1-year prison prior and 3-year drug prior enhancements from the sentences of currently incarcerated people. Anyone who has one or both of these enhancements is eligible for resentencing, unless the 1-year enhancement was imposed for a prior conviction for a sexually violent offense.
CDCR is required to identify every person in their custody who is serving a sentence that includes one of these enhancements, and provide this list to the sentencing court. Incarcerated individuals who have served their base terms and are only serving time for enhancements must be identified by March 1, 2022 and the courts must recall and resentence each of these individuals by Oct. 1, 2022. Everyone else must be identified by July 1, 2022 and resentenced by Dec. 31, 2023.
SB 483 guarantees a right to counsel. And the 483 court can apply any other legal changes that allow for reducing sentences as part of this resentencing. Judges may also consider post-conviction factors like age, time served, disciplinary record, record of rehabilitation and evidence that reflects a diminished risk of future violence or that continued incarceration is no longer in the interest of justice.
If you are eligible for SB 483 relief and believe you might have a case for relief beyond removal of the 1-year or 3-year enhancements, ask your attorney how to get the most benefit out of this new resentencing opportunity.
What you can do to push for resentencing in your case
Though you cannot ensure a resentencing recommendation from CDCR or the DA, you can put yourself in the best possible position by avoiding new write-ups, participating in positive programming, and/or pointing out any of the trauma-informed factors that AB 124 now requires courts to consider.
Ways to seek resentencing:
● Ask your counselor or prison staff to recommend you to the CDCR Secretary.
● Write to the CDCR Office of Legal Affairs to notify them of your eligibility for enhancement resentencing at:
California Department of
Corrections and Rehabilitation
P. O. Box 942883
Sacramento, CA 94283
● If you are currently serving only enhancement time and are eligible for SB 483 relief, you can file a petition for writ of habeas corpus after Jan. 1, 2022 and ask the court to put you on calendar without delay or waiting for the CDCR identification timeline.
● Write to the district attorney and public defender in the county of conviction and request consideration for resentencing. Include a statement of remorse and accountability for your commitment offense and list educational, vocational and self-help programs you have completed. Prepare a relapse prevention plan, parole plans, and gather support letters from institutional staff, program facilitators, family and friends and send those too.
If you have remained disciplinary free or have only minor rule violations, you should state this in your letter. This is particularly recommended if your case is from Santa Clara, San Francisco, Riverside, Contra Costa, San Diego, Yolo, Merced, or Humboldt counties, as these counties will be receiving increased state funding for resentencing over the next three years. Other counties with active DA resentencing units include: Sacramento, Alameda, San Joaquin, and Los Angeles (though note the LA District Attorney has said people should not apply directly—you still can but you may not want to spend much energy on it).
Stay tuned for additional updates as these new laws go into force in 2022, as well as future legislation that continues to expand resentencing opportunities.