Recent legislation allows convicted people to request the California Department of Corrections and Rehabilitation (CDCR) and the District Attorney to review their cases. The review may result in courts reducing or modifying sentences and may result in reduced jail or prison time, release from custody, as well as lessen conditions of probation.
Eligible people have a 30% chance of having their sentences reduced or modified. The CDCR reported that in the past couple of years it has identified 1,105 eligible cases and referred them to courts. Courts responded in 670 cases and reduced sentences in 336 cases.
Individuals with death sentences are not eligible for consideration under penal code 1170(d)(1). Also, the CDCR generally does not recommend people with Life Without Parole sentences, 290 sex offense registration requirements, Parole Eligibility Dates or Earliest Parole Release Dates within 18 months, or a SHU (solitary) term within the last five years.
This is the criteria that the CDCR and courts use to determine whether to grant resentencing:
Has the law changed in a way that would have resulted in you receiving a lower punishment if your case was still open at this time?
Examples include Proposition 47, which reduced the punishment for certain theft and drug crimes from felonies to misdemeanors; Proposition 36, which reduced the punishment for non-violent and non-serious third strike offenders; and Proposition 64, which legalized the use of small amounts of marijuana and the sale of the drug by licensed businesses.
Was a sentencing enhancement applied to your sentence that is no longer regularly applied?
Examples include one-year prior prison term enhancements, five-year prior serious felony enhancements, use enhancements, and repeat drug trafficking enhancements.
Has new information come to light since your conviction that may have caused a sentencing error?
Examples include new case facts, evidence of a clerical error or judicial error during your trial.
If your answer to any of the questions is “yes,” you may be eligible. Consider the following three questions. If any apply to you, the chances of your case being resentenced increase.
Have you exhibited exceptional conduct while at San Quentin?
Favorable behavioral records include multiple of the following: positive programming, enrolling in Alcoholics Anonymous, Narcotics Anonymous, and/or Criminals & Gang Members Anonymous, facilitation or leadership roles in classes or groups, educational, vocational, or work review training, employment preparation, positive comments from program staff and correctional staff, and if at least 10 years served and at least 50% of sentence served.
Is there evidence that you exhibit a reduced risk for future violence?
Common evidence includes age, length of time served and decreases in physical health.
Have you given assistance to law enforcement in other criminal cases?
To request CDCR review, file a CDCR Form 602 administrative appeal to your counselor, writing about your situation and asking to be evaluated for a resentencing recommendation.
The District Attorney also has the authority to recommend resentencing, but District Attorney’s offices have not formalized the criteria they plan to use for resentencing referrals. To request District Attorney review, get in contact with the Public Defender’s Office in the county where you were sentenced, so they can contact the District Attorney’s Office for you. You can also try to contact the Sentencing Review Project at 1904 Franklin St., Suite 205, Oakland, CA 94612 or online at www.sentencereview.org.
Intern, San Francisco Office of the Public Defender
J.D. Candidate, Spring 2021
University of San Francisco