Resentencing – How to Get Sentences Modified in California

• deny it,
• change a sentence,
• postpone a sentence, or
• revoke a sentence.

The sentencing court will often decide to change a sentence if:

• a clerical error was made,
• the sentence imposed was illegal, or
• the court committed judicial error.

Anyone can ask for a resentencing, even prisoners sentenced to life without the possibility of parole (LWOP).

In addition to an MFR, there are four ways in which a criminal sentence can be modified in California. These are:

1. a recall by the court,
2. by filing an appeal,
3. in bringing a writ of habeas corpus petition, and
4. a recall by the court due to the health of a prisoner.

Note that a prisoner can file a petition to modify a sentence even if they are not a U.S. citizen. In this case, the MFR is a type of post-conviction relief under criminal immigration law that can remove the risk of:

• deportation, or
• other dire immigration consequences.

Our California criminal defense attorneys will explain the following in this article:

• 1. What is a motion to modify a sentence?
• 2. How does the court process work?
• 3. When will a judge grant a resentencing?
• 4. Are there other ways to get a sentence modified?
• 5. Can a sentence be modified when a prisoner is not a U.S. citizen?
• 6. What about resentencing under SB 483?
• Additional Reading

1. What is a motion to modify a sentence?

A petition to modify a sentence in California is filed by a person who has been both convicted of a crime and sentenced for that crime. In the motion, the prisoner asks the court to modify his sentence. For example, they might ask the judge for:

• a reduction in the length of their sentence, or
• a change in their sentencing conditions.

An MFR can be filed by a prisoner, but it is often best if their criminal defense attorney drafts and files it.

2. How does the court process work?

California law states that a petition to modify a sentence gets filed with the court that sentenced the petitioner. A prisoner can file this petition no matter if they were sentenced for

• a misdemeanor or
• a felony.

In response to the motion, the judge can either:

• change the sentence,
• postpone a sentence,
• revoke a sentence, or
• issue a stay of payment of fines.

An MFR can be filed with the court at any time after the original sentence provided that there is found to be good cause. For example, good cause would include a request for resentencing under Proposition 47.

As discussed below, the court may also decide to modify a sentence, on its own behalf, up to 120 days after sentencing.¹

3. When will a judge grant a resentencing?

California courts will often decide to change a sentence if:

• a clerical error was made (for example, the clerk entered the wrong jail term),
• the sentence imposed was illegal (for example, it was not authorized under California law), or,
• the court committed judicial error (for example, a judge made an error in weighing evidence admitted during sentencing).

In addition, resentencing motions are typically brought when there have been changes in the law. For example, four common examples of resentencing motions that are brought in California, due to a change in the law, are:

1. Senate Bill 1437 resentencing,
2. Proposition 47 resentencing,
3. Proposition 36 / 3 Strikes resentencing, and
4. Proposition 64 resentencing.

Senate Bill 1437 Resentencing

Senate Bill 1437 was signed into law in 2018 and changed the law for California felony murder.

A critical feature of SB 1437 is that it is retroactive, meaning it applies to defendants who were accused of felony murder under the old law. This means some persons accused of felony murder, under the old law, may petition to try and get a reduction in their sentence.

SB 1437 states that a person is eligible for a reduced sentence if three conditions are met:

1. the defendant was convicted of felony murder under a natural and probable consequences theory;
2. the defendant was convicted of first- or second-degree murder; and,
3. the defendant would not have been convicted of murder under California’s new felony murder law.²

Proposition 47 Resentencing

Proposition 47, the “Safe Neighborhoods and Schools Act,” became an effective California law in 2014. The law reduced the penalties for certain theft crimes and drug crimes, making these offenses punishable as misdemeanors instead of felonies.³

In terms of resentencing, Proposition 47 means that people already facing felony penalties (for certain theft and drug crimes) can bring a motion to modify the sentence so that they would receive a misdemeanor-related sentence.

Proposition 36 / 3-Strikes Resentencing

Proposition 36 became California law in 2012, and it made a key change to the State’s Three Strikes Law. In particular, it imposed less severe sentences for non-violent and non-serious third-strike offenders.⁴

The best thing about the California three strikes reform initiative is that it applies retroactively. This means that, if you or your loved one were sentenced to a lengthy “third strike” sentence under the old law – and the third offense was not a serious or violent offense – you (or they) can now apply to be resentenced and have the jail or prison term reduced.

Proposition 64 Resentencing

Proposition 64, also known as the “Adult Use of Marijuana Act,” became California law in 2016. The law legalized:

• the use of small amounts of marijuana and
• the sale of the drug by businesses licensed to do so.⁵

Proposition 64 does provide for resentencing for people convicted under California’s previous marijuana laws who would serve a lighter sentence under the marijuana legalization regime.

The judge presumes that an inmate meets the criteria for Proposition 64 resentencing unless the district attorney opposes their petition and proves by “clear and convincing evidence” that the prisoner does not meet the criteria. The judge is then supposed to resentence them unless it would pose an unreasonable public safety risk.⁶

Marijuana legalization also means that a guilty party can apply to have their conviction redesignated from:

• a felony to a misdemeanor, or
• a misdemeanor to an infraction.⁷

4. Are there other ways to get a sentence modified?

In addition to an MFR, there are four ways in which a criminal sentence can be modified. These are:

1. a recall by the court,
2. by filing an appeal,
3. in bringing a writ of habeas corpus petition, and
4. a recall by the court due to the health of a prisoner.

Recall by the Court

A court may, on its own and without an MFR, decide to modify a sentence within 120 days of imposing its sentence.⁸ (Note that if the DA, CDCR, or Board of Parole Hearing recommends a resentencing to the judge, the 120-day time limit does not apply.)

If a judge does recall a sentence, they remove it and order a new sentence that can be no greater than the initial sentence.⁹

In determining whether to recall a sentence, a judge may consider:

• an inmate’s disciplinary record,
• an inmate’s record of rehabilitation,
• the inmate’s risk of future violence, and
• the interests of justice (including the socio-political climate).¹⁰

The court can reduce the sentence without a hearing if the defense and prosecution agree. The defendants have the right to counsel in these resentencing proceedings. At the hearing, there is a presumption in favor of the defendant getting their sentence modified.

Appeal

An appeal is a request for a higher court (that is, an appellate court) to review a decision of a lower court (that is, the Superior Court, frequently referred to as the trial court). Prisoners can file an appeal to ask the court to reconsider the sentence it imposed.

An appeal is not a new trial. The appellate court does not:

• retry a case,
• examine new evidence, or
• accept testimony from witnesses.

The only job of the appellate court is to review the proceedings that took place in the trial court to determine if there were any legal errors that substantially affected the rights of a party.

On appeal, the appellate court can overturn a sentence if it determines two things. These are:

1. that the trial court committed some type of legal error, and,
2. that the error “prejudiced” a party.

“Prejudice” is shown when there is a reasonable probability that the legal error made a difference in the outcome of the case.

Habeas Corpus Petition

In California, anyone who is in prison can bring a writ of habeas corpus petition (“HCP”) to challenge their imprisonment or the conditions under which they’re serving their sentence.¹¹

A California writ of habeas corpus is supposed to be what the law calls an “extraordinary remedy” – that is, it is supposed to be used only in extreme and unusual circumstances.¹²

As a general rule, a prisoner cannot file a petition for habeas corpus unless they have done something that judges call “exhausting one’s remedies.” This means a party must file all possible appeals of a California criminal petition before bringing an HCP.¹³

There are no strict deadlines for filing a habeas corpus petition as long as it is filed while a party is in custody. However, a prisoner cannot delay filing a habeas corpus petition for too long. If they do, they will have to justify the delay in the petition.

Recall Due to Health of Prisoner

A court does have the authority to recall a sentence due to the health concerns of a prisoner.

Under California Penal Code 1170(e), the court may decide to recall a sentence if:

1. the prisoner is terminally ill and is expected to die within 6 months, and
2. the release of the prisoner would not threaten public safety.¹⁴

PC 1170(e) also allows a court to recall a sentence if:

1. the release of the prisoner would not threaten public safety, and
2. the prisoner is permanently medically incapacitated (for example, in a coma) and requires 24-hour total care.¹⁵

5. Can a sentence be modified when a prisoner is not a U.S. citizen?

Yes. If a prisoner is not a U.S. citizen, a California criminal conviction of an aggravated felony (and a resulting sentence) can lead to deportation or other dire immigration consequences, such as:

• denial of permission to enter the U.S.,
• a permanent ban on seeking a U.S. visa or green card, and
• inability to receive asylum status in the U.S.

Crimes may often count as aggravated felonies when the offender receives a jail or prison sentence of at least one year.

This means it is a common tactic of an experienced immigration attorney, when his client has been convicted of an aggravated felony, to get a sentence reduced from 1 year to less in order to avoid deportation. Given this, it can be in the best interests of a non-U.S. citizen prisoner to file an MFR.

6. What about resentencing under SB 483?

Passed in 2021, California Senate Bill 483 invalidated sentencing enhancements that were imposed before January 1, 2020, for prior separate prison or jail terms. There are exceptions, such as enhancements for previous convictions of sexually violent crimes.

SB 483 also invalidated sentencing enhancements imposed before January 1, 2018, for prior drug offenses. An exception is when the crime involved the use of a minor in the commission of the offense.

All resentencings pursuant to SB 483 should have been completed by December 31, 2023.

Under this law, the new sentence should be lower than the original unless there is clear and convincing evidence that a shorter term posed a risk to public safety. In most cases, the new sentence should not exceed the median penalty prescribed by statute, but there are exceptions when either:

• The initial ruling imposed the maximum sentence; or
• Aggravating factors warrant a higher sentence, and these elements have been acknowledged by the defendant or proven beyond a reasonable doubt during trial.¹⁶

Additional Reading

For more in-depth information on sentencing, refer to these scholarly articles:

• The Payne of Allowing Victim Impact Statements at Capital Sentencing Hearings – The Vanderbilt Law Review.
• Due Process Comes Due: An Argument for the Clear and Convincing Evidentiary Standard in Sentencing Hearings – Iowa Law Review.
• Victim Impact Videos: The New-Wave of Evidence in Capital Sentencing Hearings – Queensland Law Reporter.
• The Emergence of Sentencing Hearings – Punishment & Society.
• The Standard of Proof at Sentencing Hearings under the Federal Sentencing Guidelines: Why the Preponderance of the Evidence Standard Is Constitutionally Inadequate – University of Illinois Law Review.

Also see our article on how to write a letter to a judge seeking leniency.

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