Resentencing Under AB 1812 | What You Need to Know About 1170(d)(1) Petitions
Penal Code § 1170(d)(1) authorizes a court to recall a sentence and resentence a person to a lesser sentence in two circumstances:
On the court’s own motion within 120 days after sentencing, or
At any time upon a recommendation from the California Department of Corrections (CDCR) or the Board of Parole Hearings (BPH) (or, for people in county jails, a recommendation from the county correctional administrator).
For those unfamiliar with California Penal Code § 1170(d)(1), it gives the right to petition an authorized state official, such as the CDCR Secretary, to review a currently incarcerated person’s eligibility for resentencing in light of the following:
Exceptional behavior while incarcerated;
New information that has come to light since the conviction - for example, it is found there was an error in calculating their sentence;
Circumstances have changed such that the inmate's continued incarceration is not in the interest of justice - for example, those whose sentences are affected by changes in legislation or new case law
If the petition is successful, the current sentence will be recalled and the person can be resentenced to a shorter time or time served.
The CDCR’s current regulations about § 1170(d)(1) sentence recall recommendations are in the California Code of Regulations, Title 15, §§ 3076-3076.2 (these have not been modified since AB 1812 took effect). In the past, the CDCR rarely ever used its authority to recommend sentence recalls—AB 1812 has given us new power to challenge that.
Summary of the changes made by AB 1812:
AB 1812 grants additional funds to the CDCR to investigate potential cases to refer for recall of sentence.
§ 1170(d)(1) now specifically states 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.
The CDCR has broad discretion under the new law to decide which sentences to recommend for recall. To date, the CDCR has made over 400 referrals for recall of sentence and is referring about 40 new cases a week in response to AB 1812. Most of these are cases in 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 (programming, good behavior, etc.).
The CDCR may also recommend recalls in some cases where people previously filed petitions asking for discretionary resentencing under Propositions 36, 47, or 64, but were previously denied resentencing.
If you believe your case should be reviewed for a recall recommendation, contact our attorneys for affordable assistance drafting and submitting an 1170(d)(1) petition.
Text of New Penal Code § 1170(d)(1)
When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison or a county jail pursuant to subdivision (h) and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, or the county correctional administrator in the case of county jail inmates, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. The court resentencing under this paragraph may reduce a defendant’s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice. The court may consider postconviction 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, if any, have reduced the inmate’s risk for future violence, and evidence that reflects that circumstances have changed since the inmate’s original sentencing so that the inmate’s continued incarceration is no longer in the interest of justice. Credit shall be given for time served.