AB 1540

Assembly Bill 1540 was signed into law by Governor Gavin Newsom. This new assembly bill amends the procedure used to recall and reduce a sentence. It also outlines guidelines for resentencing, as discussed below.

In this article, leading criminal appeals attorneys of Power Trial Lawyers will outline amendments and changes to resentencing laws, like Penal Code § 1170.03, by virtue of AB 1540, Senate Bill 567 and Assembly Bill 124. Power Trial Lawyers, on multiple occasions, was successful at reducing multiple clients' sentences, and even freed individuals, pursuant to these very laws, which can be referenced here and here.

Previously, sentencing courts had 120 days after original sentencing of an inmate to recall a sentence and possibly resentence the accused to a lesser sentence. Moreover, the Court can also recall a sentence by way of recommendation from the District Attorney's office, from the Secretary of the Department of Corrections and Rehabilitations, or from the Parole Board. Furthermore, the court was then obligated to applies rules of Judicial Council to favor non-disparity of sentences and seek uniformity in sentencing.

Under the new law, AB 1540 modified the old law, where now the court must provide notice to the defendant and must even set their case for a status hearing. Additionally, a local program is created, allowing inmate the right to appointed counsel. This will likely aid with shorter amount of time inmates will spend awaiting their possible resentencing. Moreover, previously, unless an inmate can afford an attorney, it was difficult to recall their sentence. Now, while still requiring a successful recall, an appointed attorney will be allowed.

Best of all, there is a presumption created during these proceedings that is in favor of resentencing the inmate. Meaning, by virtue of getting a recommendation, there is a strong inclination for resentencing; and if the Court wished to deny resentencing for any reason, a record must be made stating why such factors may exist.

In reading Ab 1540, there are reference to two other Bills--Assembly Bill 124 and SB 567. All of these bills work together, and they were enacted contemporaneously to work in conjunction with one another.

First, as to AB 124, the court is allowed to vacate the conviction of a nonviolent offender that was convicted due to the defendant being a victim of intimate partner violence or sexual violence. This acts as an affirmative defense against a charge, if pre-trial or sentencing, that a person was coerced to commit a serious felony. In these instances, the prosecuting agency must consider a mitigated sentence and the court must impose a loser term if the person has experienced said experience.

Second, as to SB 567, that law addresses the way and manner in which sentences can be determined for a conviction. Generally, there are low terms, mid terms, and high terms for sentences. These terms can also be enhanced due to various other criminal conduct. Generally, under this bill, the court is required to impose the middle or low term for most offenses. However, if there are aggregating circumstances, the court can impose the high term if the defendant stipulates (meaning, the defendant agrees) or if they are found to be true beyond a reasonable doubt. The court must indicate on the record reasons set forth for the sentence term.

As a collective, AB 1540, SB 567 and AB 124 act to protect individuals accused and facing harsh sentences. If you have any questions, please feel free to consult with the leading criminal appeals and post conviction lawyers at Power Trial Lawyers at 213-800-7664.

To successfully recall your sentence, you should first consult with an attorney. While not mandatory, it generally will help. An attorney must file a petition recalling the sentence or seeking resentencing. You can do this by filing a direct petition (i.e., a Petition Pursuant to AB 2942), filing a Writ of Habeaus Corpus, or some other appeal.

As outlined above, the court will have 30 days to set it for a status conference. The best means to qualify for resentencing is by a joint stipulation. Under AB 1540, the court is not even required to have a hearing for the resentencing. A resentencing hearing can be held without the inmate, so long as the parties enter into a stipulation. At Power Trial Lawyers, we almost always will request the hearing, even when there is a stipulation, as it is generally advisable to make a strong record of favors and of the new sentence.

AB 1540 give an inmate the opportunity to recall and re-negotiate on their sentence. This could spare thousands of California inmates who are suffering from excessively long sentences. The resentencing process is difficult, if not even more difficult than trial, as it is technical. Call and consult with an attorney.

AB1540 attorney Matthew Barhoma has been the leading criminal appeals and post-conviction lawyer in California. Call Power Trial Lawyers to get a review of your case and your likelihood of success in recalling your sentence. You can reach Power Trial Lawyers at 213-800-7664 or by submitting a Contact Submission.