Resentencing Under Penal Code 1170(d)(1)

Basic Background on Resentencing Under Penal Code Section 1170(d)(1)

     Today's (7/26/2020) topic will be the resentencing provisions of California Penal Code, Section 1170(d)(1), or Pen.C. §1170(D)(1), for short. Until recently, the convicting court only retained jurisdiction for 6 months after conviction. The problem with this was simple. Many criminal defendants received sentences that were legitimately harsh at the time of sentencing, but dramatically turned their lives around while only a fraction of the way through it, and as written, there was simply nothing that could be done to reward the rehabilitation demonstrated. Another problem was with the ever changing sentencing laws. Judges often have little to no discretion over what sentences to hand out one day, and discretion to strike various (formerly mandatory) enhancements the next. The changes to 1170(d)(1) now provides the court with the jurisdiction needed to bring a defendant back for resentencing, either because the defendant truly rehabilitated himself, the original sentence was excessive, or in the interests of public safety, ie, COVID 19 concerns. This is a purely discretionary power, however, and to make matters worse, only two entities can make the request: the District Attorney's (DA) Office and the California Department of Corrections and Rehabilitation (CDCR).

The full text of 1170(d)(1) states:

(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, the county correctional administrator in the case of county jail inmates, or the district attorney of the county in which the defendant was sentenced, 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.

CDCR's Criteria for Recommending Resentencing Under Pen. C. §1170(d)(1)

     This is a copy of an email sent to someone who requested their loved one be resentenced under Pen. C. §1170(d)(1):

The California Department of Corrections and Rehabilitation (CDCR) recognizes that pursuant to California Penal Code Section 1170(d) and California Code of Regulations Title 15 Section 3076.1, the Agency Secretary may make a recommendation to a sentencing court that the sentence and commitment previously imposed on an inmate be recalled and that the court resentence the inmate. 

Thank you for your referral.  However, based upon the below outlined new regulations the inmate does not meet the criteria for consideration at this time.   

I hope this information is of assistance to you.  If you have any further questions, please feel free to contact staff at CDCR-DAI-1170-D-Recall-of-Sentence@CDCR.CA.GOV

 EXCEPTIONAL CONDUCT REFERRALS

Screening Criteria Used

Pursuant to CCR, Title 15 section 3076.1(2) inmates who meet the following criteria shall be excluded from consideration under this section: ·         Required to register pursuant to PC 290 ·         Have served less than 10 years or 50% of their current sentence from the time of reception to CDCR ·         Found guilty of a serious rules violation (Divisions A – D only)  within the last five years or has a serious rules violation pending adjudication ·         Determinate sentences scheduled for release within the next 18 months ·         Determinate sentences eligible for parole consideration (YPED, EPED, NPED) within the next 18 months or have already been afforded parole consideration ·         Indeterminate sentences that have already been afforded a parole suitability hearing, regardless of the Board of Parole Hearing’s decision or those that are scheduled for an initial parole suitability hearing within the next 18 months ·         Condemned sentences ·         Life Without the Possibility of Parole sentences

Thank you,

Recall and Resentence Recommendation Program

Classification Services Unit

CDCR Headquarters

     As you can see, their criteria is relatively strict, and it contains the usual exclusions. For example, as written, no matter how hard you work to rehabilitate yourself, or how unjust the sentence, if you're a 290 registrant, even for a conviction from 50 years ago, they won't even consider recommending you for resentencing, begging the question: why bother? That question aside, all hope is not yet lost because, while this is the official policy, it may still be possible to obtain the needed recommendation. Prison wardens have a great deal of discretion to make their own recommendations, policies notwithstanding. You just need to figure out a way to convince the Warden to do so. Not impossible, but not likely.

Know Your Enemy

     The first thing you need to do is know who you're dealing with, how they work, etc. In other words, know your enemy! And no matter how corrupt and uncaring the CDCR is, in this situation, they're merely a gatekeeper. The true enemy is the District. Attorney's (DA) Office. With that said, here's an excellent resource called The Inquisitive Prosecutor's Guide. Feel free to download it and share it with others in need.

How to get Attention

     So now that you understand how resentencing under 1170(d)(1) operates, the next question is how to be reviewed for possible resentencing. I won't waste my time with going through the CDCR, because they're pretty much a complete waste of time. Instead, we'll focus on convincing your local DA to help.

     First, you need to understand that there isn't a judicially approved form commonly employed by the individual DAs. Each county has their own unique method, but they all operate under the same basic principles. They basically want to know why they should go out of their way to ask that your loved be resentenced, so it's the job of you and your loved one to convince them. When you do, try to avoid the temptation of arguing only the law and how changes in the law make the current sentence illegal or unjust. If that's your sole argument, it will fail every single time. Remember, this is purely disctetionary on the DA's part, so they don't even have to look at it. Telling them they broke the law won't gain you any points. Instead, focus on why the sentence was unjust, the emotional reasons, how hard (s)he's worked since then, etc. Be sure to include copies of any and all achievements, not just before sentencing, but since then. If you'd like to see a recent example, click here. Use this as a template and contact your local DA to find out exactly who to send it to when finished. Make sure it's signed first, or they might ignore it. You should also mail a copy to the court, directing it to the judge who did the original sentencing, but, if you do (and it's a great idea), you have to include a proof of service showing that the DA was served with a copy. Failure to do so will result in it being treated as an illegal ex parte communication.

Now What?

     If it were me, I wouldn't leave it to fate. I'd follow up with an email, but more importantly, I'd harness the power of social media. Create a Facebook account for your loved one and use it to tell his story. Just make sure you make it crystal clear you're posting on his behalf, or the guards might think he's doing it and search his cell. You should also create a Twitter account and LG send out multiple tweets updating your followers on what's going on. Each time you do, include a picture and use it to tag the people in his case, from the DA to the judge, even @CACorrections Each time you do, it shows up in their inbox, and each time your tweet is liked or retweeted, it shows up again. I cannot even begin to emphasize the importance of this tool, so ask your followers to like and retweet every tweet concerning his petition. And be sure to include hashtags! They're invaluable!