1170(d)

Penal Code 1170(d)(1) authorizes California Courts to recall sentences and resentence defendants to a lesser sentence. In this article, California criminal appeals attorney Matthew Barhoma, founder of Barhoma Law, P.C., provides information on this process, including: 

1. What is Penal Code § 1170(d)?
2. What Criteria is Required to Apply?
3. Commonly Successful Petitions
4. How an Appeals Attorney Can Help

Penal Code § 1170(d)(1) permits a court to recall a sentence and resentence an individual either, (1) upon the court's own motion within 120 days after sentencing the defendant, or (2) at any time upon a recommendation from the California Department of Corrections and Rehabilitation (CDCR) (if in county jail, the county correctional administrator or Sheriff), the Board of Parole Hearings (BPH), [1] or the District Attorney who tried your case. [2] Recall and resentencing under section 1170(d)(1) is also available for individuals whose conviction was secured by way of a guilty or no contest plea.

While any of the agencies listed above can take the initiative to submit a recommendation, an incarcerated individual may also petition the judge within 120 days, or the CDCR - at any time - for review under section 1170(d)(1). An incarcerated individual may also petition the District Attorney, also at any time,  for review under AB 2942 . If the agency accepts the request for review, it may either request recall and resentencing to the sentencing court, or refuse to do so. Should the agency agree to make the request, the court will then decide whether to hear the case. If the court agrees to do so, it will then schedule the case for a recall of sentence hearing. At that hearing, if the court does, in fact, agree to recall the sentence, the matter will then be scheduled for a second hearing solely on the issue of resentencing. However, it is worth noting that even if the case reaches the hearings phase, the court is not mandated to recall or modify the sentence . Having a strong and experienced advocate by your side throughout the process can prove invaluable in successfully reducing you or your loved one's sentence.

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Neither the CDCR (or county correctional administrator or Sheriff) nor all District Attorneys' Offices currently have uniform or formal processes for individuals to submit requests for the agency to assess their case for a resentencing recommendation. Further, these agencies are not mandated to respond to all requests they receive; therefore, it is critical to present a complete and persuasive request for review. 

Section 1170(d)(1) recall and resentencing relief is technically available to all persons currently in the custody of the State of California except those individuals who have been sentenced to death. However, certain requirements must typically be met before an entity or individual will agree to recommend recall and resentencing. Generally, recommendations are permitted to be made if doing so would be "in the interests of justice." Further, post-conviction factors may also be considered. These factors include disciplinary records, records of rehabilitation while incarcerated, evidence of a reduced risk of future violence (e.g., age, time served, and diminished physical condition), and evidence of changed circumstances since the original sentencing.

An experienced 1170(d)(1) lawyer can ensure that your request is submitted to the appropriate agency through the proper and most efficient means possible. Using a knowledgable attorney will ensure the greatest chances of success. As an experienced California criminal appeals attorney, Matthew Barhoma of Barhoma Law, P.C. is familiar with procedures at the various institutions and District Attorneys’ Offices around the State and can increase the possibility that your petition for recall and resentencing receives prompt and due consideration. Moreover, when your case is accepted for a recommendation for recall and resentencing, a California criminal appeals attorney will serve as a strong and experienced advocate on your behalf at the subsequent hearings.

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The CDCR (or county correctional administrator) and District Attorney have broad discretion in recommending cases for recall. The most common cases which are recommended for recall include the following facts or circumstances:

Courts aim to have sentencing applied equally across the board to all defendants. Sentencing discrepancies occur when, after you or your loved one's sentencing, other court cases, which are factually similar to your case, have resulted in reduced or significantly different punishments than the one you received.

Most commonly, a recommendation based upon these changes has occurred in certain specific situations where the conviction included great bodily injury enhancements under Penal Code § 12022.7(a-e), [3] gun enhancements under Penal Code § 12022.5(a), [4] life sentences with gang-motivated witness dissuasion under Penal Code §§ 136.1 and 186.22(b)(4)(G), [5] child pornography possession charges under Penal Code § 311.11(a), [6] and consecutive in-prison felony terms under Penal Code § 1170.1(c). [7]

A retroactive change in law, on the other hand, applies where a new statutory law removes the court’s sentencing discretion in some manner or otherwise mandates that, going forward, the court modifies its sentencing practices. Sometimes these changes are applied retroactively; however, many times, they are not. Even when there is no proscribed retroactive application, relief under 1170(d)(1) or AB 2942 may still be available.

The following recent changes in the law have resulted in recommendations for recall and resentencing based on such non-retroactive changes:

• the elimination of both one-year prior prison term enhancements (Penal Code § 667.5(b)) and most drug trafficking recidivist enhancements (Health & Safety Code § 11370.2); and
• the provision of discretion to strike to the court regarding five-year prior serious felony enhancements (Penal Code § 667(a)) and gun use enhancements (Penal Code §§ 12022.5, 12022.53).

A recommendation based upon exception conduct refers to an individuals' behavior while incarcerated and their programming participation. Where an inmate stands out to correctional facility staff as an outstanding inmate, he or she may be recommended to have his or her case recalled for resentencing. Therefore, the following inmates may be more likely to be recommended for relief: those who have no or very minimal and minor write-ups, those who have used their time in custody to learn new skills and further their education, those who have utilized available preventative programming (such as alcohol and narcotics education and abstinence programs), those who have served as a positive role model or mentor others, and those who have otherwise exhibited behavior indicative of being a productive member of the prison or jail population. Further, having served over ten years and/or at least 50% of a sentence increases the odds of obtaining a recommendation.

Maintaining detailed records of in-custody behavior and accomplishments can help a California criminal appeal attorney compile the strongest petition possible.

Finally, where an individual has agreed to provide assistance to law enforcement in other criminal cases, he or she will be more likely to be recommended by the District Attorney for recall and resentencing.

In addition to including arguments similar to those above, commonly successful petitions are rich in both legal analysis and argument, but also include substantial information indicative of rehabilitation and growth of the petitioner. As described below, a knowledgeable attorney can ensure your petition contains both of these critical items.

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An 1170(d)(1) lawyer can assist you in the following: identifying issues applicable to you or your loved one’s petition for recall and resentencing, collecting documentation of relevant and influential post-conviction information, drafting a persuasive petition for sentencing relief, and ensuring the agency receiving the petition gives your request prompt and fair consideration. Upon acceptance of the petition by the relevant agency and then the court, an 1170(d)(1) attorney can argue persuasively on your behalf at your hearing, giving you the greatest chance for successful recall and resentencing hearings.

Barhoma Law, P.C. has significant experience and a track record of success with post-conviction relief efforts, including 1170(d)(1) and AB 2942 petitions. Contact California criminal appeals lawyer Barhoma Law today for a thorough and candid assessment of your case.

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Editing credit to attorney Kelsey Lewis.

[1] The BPH generally defers the authority vested in it under P.C. 1170(d)(1) to the CDCR.

[2] Before January of 2019, District Attorneys were not permitted to make a recommendation under section 1170(d)(1). However, AB 2942 now grants them the authority to review and recommend cases they previously prosecuted for recall and resentencing.

[3] See People v. Cook (2015), 60 Cal.4th 922; People v. Gonzalez (2009) 178 Cal.App.4th 1325.

[4] See People v. Le (2015) Cal.4th 416; People v. Rodriguez (2009), 147 Cal.App.4th 501.

[5] See People v. Lopez (2012) 208 Cal.App.4th 1049.

[6] See People v. Manfredi (2008) 169 Cal.App.4th 622.

[7] See People v. McCart (1982) 32 Cal.3d 338.