Wednesday, February 3, 2021

AB 2942 revised California Penal Code (PC) Section 1170(d)(1) - Resentencing - Who can ask?

In February 2018, Assembly member Phil Ting introduced Assembly Bill 2942 (AB2942) along with the bill sponsor, Santa Clara County District Attorney Jeff Rosen. In October 2018, Governor Brown signed Assembly Bill 2942, which became law on January 1, 2019. AB 2942 amended Penal Code section 1170(d)(1) in order to allow the District Attorney (DA) to revisit past sentences to determine whether further confinement is no longer in the interest of justice. When the District Attorney makes this finding, they can now recommend to the court to recall the case and issue a lesser sentence.

In short, Under the revised law, elected DAs now have the right to reevaluate past sentences. If the DA determines that the length of the sentence no longer serves the interests of justice, then they may request and support resentencing for that inmate. A DA in the county in which the inmate was sentenced may bring the request to the county court. The court can then deny or allow the request. (See our prior  BLOG for the LA DA Gascon, which has special directives for resentencing)

If the court agrees to resentence the defendant, it will hold a resentencing hearing. It may provide a new sentence, so long as that term is shorter than the initial sentence. The court is required to follow the Judicial Council’s sentencing rules to mitigate the risk of disparity among sentences.

Who has  Rights to Seek Recalls? (DA, BPH, CDCR, YOU?)

California legislature gave prosecutors (DAs) the power to seek recalls and resentencing.  DAs are normally in the best position to seek fair and effective sentences from the beginning. They also are in a good position to identify inmates who are potentially eligible for resentencing.

The DA will look at the factors (below) to decide which inmates and/or defendants are good candidates.

The LA DA’s Office commits to a comprehensive review of cases where the defendant received a sentence that was inconsistent with the charging and sentencing policies in force after Tuesday, December 8, 2020, at 12:01 AM. In such cases, this Office shall use its powers under Penal Code section 1170(d)(1) to recommend recall and resentencing. While priority shall be given to the cases enumerated below, the ultimate goal shall be to review and re-mediate every sentence that does not comport with the new Sentencing, Enhancement and Juvenile Policies. Specifically, the LA DA’s Office commits to an expedited review of the following categories of cases, which are themselves a subset of a universe of 20,000-30,000 cases with out-of-policy sentences.

● People who have already served 15 years or more;
● People who are currently 60 years of age or older;
● People who are at enhanced risk of COVID-19 infection;
● People who have been recommended for resentencing by CDCR;
● People who are criminalized survivors;
● People who were 17 years of age or younger at the time of the offense and were prosecuted as an adult.

The LA DA  specifically offers the following: At all types of resentencing hearings, filing deputies shall assist the Resentencing Court by setting forth any and all post-conviction factors that support resentencing, including, but not limited to: mitigation evidence; CDCR disciplinary records and record of rehabilitation and positive programming while incarcerated; evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the risk for future violence; evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice; and post-release reentry plans, demonstrating any family or community support that is available upon release. (See e.g. Assembly Bill 1812, Pen. Code § 1170, subd. (d).)

In addition to the DA,  the Board of Parole Hearings for state prison inmates (BPH - the Board), the county correctional administrator for county jail inmates, and the Secretary of the California Department of Corrections and Rehabilitation (CDCR) may recommend to the court that an inmate’s sentence be reviewed.

If you or a loved one believe YOU should have a new sentence, you may petition CDCR. In June 2018, Governor Jerry Brown instructed CDCR to receive petitions from inmates who believed they deserve to be resentenced based on exceptional conduct during incarceration or a disproportionate punishment for their offense.

The following section describes the four categories that CDCR will review for the potential referral to the Court.

California Code of Regulations (CCR), Title 15, Section 3076 -- Recall of Commitment Recommendation Circumstances.

Pursuant to Penal Code (PC) Section 1170(d)(1), the Agency Secretary of the California Department of Corrections and Rehabilitation (CDCR) or designee may, at any time, recommend that the sentencing court recall an inmate's sentence and commitment previously imposed and resentence an inmate, provided the new sentence is no greater than the initial sentence.

There appears to be currently four (4) categories reviewable for referral to the court for possible recall of sentence: Law Enforcement Agency (LEA) Referrals, Retroactive Changes in Law, Sentencing Discrepancy, and, Exceptional Conduct.

Below are the pertinent sections with the Cal. Code Regs or Penal code reference.

Category 1: Law Enforcement Agency (LEA) Referrals
Responsible Unit: Classification Services Unit (CSU)
Referrals from an outside law enforcement agency (i.e. local or federal law enforcement agency, district attorney's office, judicial officer, etc.).

---Legal Authority; Cal. Code Regs. Tit. 15, § 3076.2 - Recommendation Based on a Law Enforcement, Prosecutorial, or Judicial Referral

    (a) No more than 10 business days after receiving a request from the head of a law enforcement agency, head of a prosecutorial agency, or judicial officer asking that the Secretary consider recommending an inmate to a sentencing court pursuant to subdivision (d) of Section 1170 of the Penal Code, the Classification Services Unit shall prepare a Cumulative Case Summary as described in subsection (b)(3)(D) of Section 3076.1 and forward the request and the summary to the Secretary for consideration.

    (b) If the Secretary elects to recommend the inmate for recall and resentencing pursuant to subsections (a)(1), (a)(2), or (a)(3) of Section 3076.1, the Secretary shall, no more than 10 business days after receiving the Cumulative Case Summary, notify the District Attorney of the county that prosecuted the inmate resulting in his or her current incarceration in state prison and forward a copy of the recommendation and Cumulative Case Summary to the District Attorney.

    (c) If the District Attorney indicates his or her intent to recommend the inmate to the sentencing court pursuant to subdivision (d) of Section 1170 of the Penal Code, then the matter shall be considered closed. If the District Attorney does not respond to the Secretary within 10 business days of the Secretary's referral or indicates that he or she will not recommend the inmate to the sentencing court, then the Secretary shall independently recommend the inmate for recall of sentence and resentencing unless any information presented by the District Attorney in response causes the Secretary to reconsider.

Category 2: Retroactive Change-in-Law Referrals
Responsible Unit: Office of Legal Affairs (OLA)
Referrals from the Office of Legal Affairs (OLA) based on new legislation or case law with retroactive application.

Category 3: Sentencing Discrepancy Referrals
Responsible Unit: Case Records
Referrals from Case Records for sentencing discrepancies based on statutory or case law authority. Can be brought by an inmate Appeal, information submitted through the Legal Processing Unit, or OLA.

Category 4: Exceptional Conduct Referrals
Responsible Unit: Classification Services Unit (CSU)
Referrals based on behavior beyond simply complying with all regulations and procedures that demonstrate they have changed as a person and would be a positive asset to the community. Any institution staff or volunteer may provide an inmate's name and CDCR number to the (CSU) for consideration for referral to the court.

Sentencing Impact: Potential for inmates with exceptional behavior to have their sentences recalled, resulting in possible reduction in sentence or release.

 ---Legal Authority: Title 15, Division 3, Section 3076, subdivision (a)

Description: The department's regulations specify that that the Secretary may refer an inmate to the court for resentencing under penal code 1170 (d), when it is evident from the inmate's exceptional behavior that they have changed as a person and would be a positive asset to the community.  The court within 120 days of the date of commitment or anytime upon recommendation of the secretary may recall the sentence and commitment previously ordered and resentence the defendant in the same manner, provided the new sentence is no greater than the original sentence.

 CDCR Screening Criteria Used:

    • No condemned inmates
    • No LWOP
    • No 290 registrants
    • No PED or EPRD date within 18 months
    • No Serious RVR's (Rules Violation Report) in the past 5 years
    • No SHU terms in the last 5 years
    • Must have served 10 years or 50% of sentence
    • Laudatory Chrono's and support letters
    • Self-help participation (Vocation, Educational Programs,etc)
    • Education/PIA/Vocational/Work Review
    • County of commitment will be noted
    • 3rd Strike Inmates are eligible
    • Staff and volunteer referral (NOT family members nor Attorneys)
    • Plea agreements may be eligible

Despite of it all - It does appear that CDCR has been pro-active. Back at the end of July 2019 CDCR reported, it had made 1,105 recommendations, including over 1,000 in the “retroactive changes in the law” and “sentencing discrepancies” categories. Courts had responded in 670 cases and reduced sentences in 336 cases. The rate of responses and sentence reductions has varied widely from county to county. But it seems clear that a CDCR recommendation for resentencing does not necessarily guarantee that a court will reduce a person’s sentence.

Approximately 1-year ago, (after the Secretary for CDCR was contacted), it was relayed to an attorney by a Captain that cases were being reviewed. Specifically the Captain relayed that between April, 2018, and November, 2019, 127 cases had been submitted by the staff to the Secretary for CDCR. The Secretary had given approval, and sent letters to the Superior Court, in 107 cases, had denied 15 cases, and was still considering the other cases. The Captain further stated that CDCR had set up a special unit to handle staff referrals and that the process was ongoing and the numbers would increase. He also stated that the only referrals that were being accepted by the Special Unit at that time were those coming from staff.

EDITOR’S NOTE: A pro-active strategy may be to present to the DA a resentencing application in conjunction with the Franklin Hearing. Some judges are suggesting to the DAs that they should consider a reduction of sentence (youth offender factors considerations). Thus, the attorney should make sure to obtain the CDCR records as part of the presentation to the Court in conjunction with the Franklin Hearing for a Sentencing recall decision.   

Having the proper CDCR records  may be  a  more productive avenue for resentencing instead of asking CDCR for a recommendation. See CDCR’s own "added" resentenceing factors - as listed above in this Blog.