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Penal Code § 1170.03 — An Explanation by a California Renowned Appeals Attorney

As of January 1, 2022, Assembly Bill No. 1540 (AB 1540) amended the California Penal Code to, among other things, add section 1170.03 (PC 1170.03).[1] This amendment recodified former Penal Code § 1170, subdivision (d)(1), i.e., PC 1170(d)(1), to expand and clarify both the authority vested in prosecutors and the California Department of Corrections and Rehabilitation (CDCR) to recommend a case for recall and resentencing, but also defined the procedural aspects applicable to courts upon receipt of such a recommendation. Each of these factors are discussed in more detail below.

In this article, California criminal appeals attorney Matthew Barhoma, founder of Barhoma Law, P.C., answers Frequestly Asked Questions about the new PC § 1170.03:;

  1. How Does Penal Code § 1170.03 (Previously 1170(d)(1)) Work in California?
  2. What Is Penal Code § 1170.03?
  3. What Is Required for Courts’ Review of Penal Code § 1170.03 Cases?
  4. What Is the Procedure for Review of Penal Code § 1170.03 Recommendations?
  5. How a Renowned Appeals Lawyer Can Help.

How Does Penal Code § 1170.03 (previously 1170(d)(1)) Work in California?

Prior to 2019, former Penal Code § 1170, subdivision (d)(1) conferred upon courts the authority to recall a sentence for resentencing upon its own motion within 120 days of sentencing, or at any time, upon the recommendation of the CDCR.[2] With hopes of giving a “renewed focus” to this code section, effective as of January 1, 2019, the Legislature amended California’s “second-look” sentencing practices to expand and extend the recommending authority previously reserved for the CDCR, to District Attorneys and other prosecuting agencies.[3] However, “the ultimate decision to recall a person’s sentence and reduce their punishment remains with the courts.”[4] In making their decisions the courts were held to an “interest of justice” standard, and were obligated to consider factors of:

  • Disciplinary record and record of rehabilitation while incarcerated;
  • Evidence that reflects whether age, time served and diminished physical condition if any, have reduced the individual’s risk for future violence; and
  • Evidence that reflects that circumstances have changed since the original sentence so that continued incarceration is no longer in the interests of justice.[5]

From March 2018 to October 2021, the CDCR was a “particularly active user of this law,” recommending “more than 1,900 people for possible resentencing,” with 1,600 such referrals being made on the basis of changes in the law, and the remainder being made based upon exceptional conduct and health-related concerns due to COVID-19.[6] Of those DCR referrals, courts responded 70% of the time, but granted resentencing only 31% of the time, most commonly based on in-custody conduct.[7]

Further, in its review of the amended law, the Ella Baker Center for Human Rights also found that “an increasing number of district attorneys [were] making use of the process,” as well, but the “increase in referrals … revealed several procedural issues[.]”[8]

Thereafter, in 2020, the Legislature and Governor established the Committee on Revision of the Penal Code (CRPC), to review California criminal law and “recommend statutory reforms” through annual reports.[9] In their first report, they recommended the establishment of a “judicial process for ‘second look’ resentencing” that “clarified and expanded” the practice.[10] The CRPC also recommended the establishment of a presumption that resentencing be granted upon CDCR or District Attorney recommendation.[11]

These CRPC recommendations were based upon their findings echoing the Ella Baker Center for Human Rights findings, that the former Penal Code failed to include rules and procedures for handling of resentencing recommendations, “many trial courts provide[d] virtually no process while considering the requests, including denying resentencing requests without providing notice … or … an opportunity to be heard.”[12] The CRPC also found it problematic that the court was not required “to give any specific reason for denying a resentencing request.”[13]

The Honorable Richard Couzens, Superior Court Judge and “leading expert on California’s criminal law” likewise offered his finding that the PC 1170(d)(1) process was “‘amazingly sparse’ [and] largely unstructured,’” and he further endorsed “wider use of the resentencing process to allow [persons] who have served a significant portion of their sentence to petition courts for reevaluation of their punishment and early release[.]”[14] Anti-Recidivism Coalition (ARC) Executive Director, Sam Lewis, agreed with Judge Couzens’ recommendations, and empirical research was likewise found to support such result.[15]

Based upon these practice- and research-based findings and recommendations – and seeking to achieve full and fair application of the law – Assembly Bill No. 1540 (AB 1540) was introduced, adopted and became effective as of January 1, 2022.[16]

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What Is Penal Code § 1170.03?

Penal Code § 1170.03 still permits any sentence to be recalled for resentencing by the court on its own motion within 120 days of sentencing, or upon recommendation of the CDCR and/or District Attorney of the sentencing county at any time.[17] It also maintains that any resentencing term be conducted in the “same manner as if they had not previously been sentenced…, provided the new sentence, if any, is no greater than the initial sentence.”[18]

Further, resentencing courts’ obligation to “apply the sentencing rules of the Judicial Council … so as to eliminate disparity of sentences and to promote uniformity of sentencing” also remained unchanged.[19] However, a mandate that courts also “apply any changes in law that reduce sentences or provide for judicial discretion” was added to the amended code section by this 2021 amendment.[20]

This means that all post-judgment ameliorative changes in law may now be applied to a defendant’s case at resentencing.

Moreover, where courts’ authority to “reduce a defendant’s term of imprisonment or modify the judgment … in the interest of justice” has remained untouched, the court now also has the option to vacate a conviction and “impose judgment on any necessarily lesser included offense … or related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment.”[21]

This amendment allows courts to reduce otherwise harsh, mandatory and previously immovable sentences, increasing not only the availability of resentencing to more individuals, but also allowing for lesser terms for anyone recommended for relief.

The changes made by section 1170.03 also expand and clarify the factors a court must or permissibly may consider in resentencing a defendant, as well as provide a detailed outline of the procedure courts must follow upon receipt of a recommendation for recall and resentencing from the CDCR or District Attorney.[22] These amendments are expanded upon below.

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What Is Required for Courts’ Review of Penal Code § 1170.03 Cases?

As was the case prior to the 2022 amendments to the Penal Code, the following post-conviction factors “may” still be relevant to courts’ review of section 1170.03 recommendations:

  • Disciplinary record and record of rehabilitation while incarcerated;
  • Evidence that reflects whether age, time served and diminished physical condition if any, have reduced the individual’s risk for future violence; and
  • Evidence that reflects that circumstances have changed since the original sentence so that continued incarceration is no longer in the interests of justice.[23]

However, Penal Code § 1170.03 expanded this list and added a mandate that courts consider the following items, and whether they served as a “contributing factor in the commission of the offense”:

  • Whether the individual “has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence”;
  • Whether the individual “was a victim of intimate partner violence or human trafficking prior to or at the time of the commission of the offense”; and
  • Whether the individual “is a youth or was a youth,” defined as under the age of 26, “at the time of the commission of the offense[.]”[24]

Therefore, any incarcerated individual with one or more of these factors present in their case or personal history may be eligible for relief under PC 1170.03.

This expanded list of factors and the requirement of court consideration as to certain pertinent elements which are, unfortunately, present in many detained individual’s backgrounds, also opens the door to available relief for more incarcerated individuals.

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What Is the Procedure for Review of Penal Code § 1170.03 Recommendations?

Finally, and possibly most critically, with the objective of ensuring courts give appropriate recognition to “the scrutiny that has already been brought to … referrals by the referring entity,” and to ensure such consideration is, in fact, given, AB 1504 amended statutory law to require that, upon receipt of a referral or recommendation for resentencing, they, at minimum, must set and “initial status conference, recalling the sentence, and providing the opportunity for resentencing to every felony conviction referred by one of those entities.”[25]

This latter obligation is codified at subdivision (a)(8) of Penal Code § 1170.03 as follows:

Resentencing shall not be denied, nor a stipulation rejected, without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection.[26]

The court must now also provide, “on the record, the reasons for its decision to grant or deny recall and resentencing.”[27]

Moreover, in the case of CDCR and/or District Attorney recommendation for recall and resentencing (as compared to court-initiated), the former consideration described above, e.g., deference to referring agencies’ referrals, subdivision (b) to section 1170.03 addresses this additional requirement imposed upon the court as follows:

  • The court shall provide notice to the defendant.
  • The court shall set a status conference within 30 days after the date that the court received the request.
  • The court shall also appoint counsel to represent the defendant.
  • Finally, there shall “be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety[.]”[28]

These new mandates have been brought before the Courts of Appeal, not only indicating the appealability of a PC 1170.03 resentencing denial where a recommendation for relief was made, but also resulting in the repeated finding that:

In all events, upon receipt of a recommendation from the CDCR or District Attorney, the court must, among other obligations, (1) presume a defendant eligible for resentencing, and (2) conduct a status hearing providing an opportunity for the parties to come before the court.[29]

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How a Renowned Appeals Lawyer Can Help

Penal Code § 1170.03 is representative of the types of significant legislative changes being made in California in response to a significant shift penological perspectives across the state. However, applications for relief under these changes can present somewhat complex questions of law, which must be concisely, yet comprehensively, addressed to ensure the greatest odds of success, especially in light of the undoubtedly large number of submissions the CDCR, District Attorneys and courts will receive.

Renowned appeals attorney Matthew Barhoma’s documented success under Penal Code § 1170.03’s predecessor statute is reflective of the benefit of having an experienced and knowledgeable Penal Code § 1170.03 lawyer on your side in seeking review of your case.

If you believe your case or the case of someone you love could be an eligible candidate for relief under Penal Code § 1170.03, contact Barhoma Law, P.C. today to have your case assessed.

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[1] SeeStats. 2021, ch. 719 at §§ 3 and 3.1.

[2] Seeformer Pen. Code § 1170, subd. (d)(1) (Stats. 2019, ch. 36, § 18) (AB 1812); see also Dix v. Superior Court(1991) 53 Cal.3d 442, 455 (courts typically lose jurisdiction over a sentence once it begins; PC 1170(d)(1) provides an exception to that rule).

[3] Seeformer Pen. Code § 1170, subd. (d)(1) (Stats. 2019, ch. 1001, § 1) (AB 2942); see alsoAssembly Comm. on Pub. Saf. (Apr. 27, 2021) AB 1540 (Ting), as amended Apr. 22, 2021, at p. 7; Comm. on Rev. of the Pen. Code (CRPC) Annual Report (2020) at pp. 65-66.

[4] CRPC Annual Report (2020) at p. 66, citing CDCR Office of Research.

[5] Seeformer Pen. Code § 1170, subd. (d)(1) (Stats. 2019, ch. 1001, § 1) (AB 2942).

[6] CRPC Annual Report (2021) at p. 64, citing CDCR Office of Legal Affairs.

[7] Ibid.

[8] SeeAssembly Comm. on Pub. Saf. (Apr. 27, 2021) AB 1540 (Ting), as amended Apr. 22, 2021, at p. 7 (“large numbers of referrals are being ignored or denied by the courts without any input from either side” due to the former law’s failure to “provide guidance on how the courts should handle these types of recommendations”); see also“Back to Court: A Resentencing Guide for the Fair and Just Sentencing Reform Act (SB 1393) and PC § 1170(d)(1).” (No Date) Ella Baker Center for Human Rights.at p. 15.

[9] SeePen. Code § 8280 (Stats. 2019, ch. 25, § 2) (SB 94); see also“History and Purpose.” (2021) CRPC.Retrieved Apr. 12, 2022 from http://www.clrc.ca.gov/CRPC/About/History.html.

[10] SeeCRPC Annual Report (2020) at pp. 64-65.

[11] Ibid.at p. 65.

[12] Ibid.at p. 66, citing People v. McCallum (2020) 55 Cal.App.5th 202; People v. Frazier (2020) 55 Cal.App.5th 858; see alsoAssembly Comm. on Pub. Saf. (Apr. 27, 2021) AB 1540 (Ting), as amended Apr. 22, 2021, at p. 7.

[13] Ibid.,citing Frazierat p. 814 (“[N]othing in section 1170, subdivision (d)(1), requires the court to state its reasoning when declining to exercise its discretion in response to the Secretary’s recommendation.”)

[14] Ibid., citing Nov. 12, 2020 Meeting Notes.

[15] Ibid.at pp. 67-68 (Citations.)

[16] SeeStats. 2021, ch. 719 at § 1, subds. (f)-(i) (summarizing former status of the law, enumerating a detailed procedure for review of recommended cases, and requiring application of ameliorative post-conviction changes to the law); see alsoAssembly Comm. on Pub. Saf. (Apr. 27, 2021) AB 1540 (Ting), as amended Apr. 22, 2021, at pp. 5-7.

[17] Pen. Code § 1170.03, subd. (a)(1) (Stats. 2021, ch. 719, §§ 3 and 3.1) (AB 1540).

[18] Ibid.

[19] Pen. Code § 1170.03, subd. (a)(2) (Stats. 2021, ch. 719, §§ 3 and 3.1) (AB 1540).

[20] Ibid.

[21] Pen. Code § 1170.03, subd. (a)(3) (Stats. 2021, ch. 719, §§ 3 and 3.1) (AB 1540).

[22] Pen. Code § 1170.03, subds. (a)(4)-(8), (b) (Stats. 2021, ch. 719, §§ 3 and 3.1) (AB 1540).

[23] Pen. Code § 1170.03, subd. (a)(4) (Stats. 2021, ch. 719, §§ 3 and 3.1) (AB 1540).

[24] Ibid.; see alsoPen. Code § 1016.7, subd. (b) (Stats. 2021, ch. 695, § 4) (AB 124) (defining “youth”).

[25] Assembly Bill No. 1540 (Stats. 2021, ch. 719 at § 1, subd. (h)); see also,Pen. Code § 1170.03, subd. (a)(7)-(8) (Stats. 2021, ch. 719, §§ 3 and 3.1) (AB 1540).

[26] Pen. Code § 1170.03, subd. (a)(8) (Stats. 2021, ch. 719, §§ 3 and 3.1) (AB 1540); see alsoPen. Code § 1170.03, subd. (a)(7) (providing for resentencing without hearing only upon stipulation by the parties).

[27] Pen. Code § 1170.03, subd. (a)(6) (Stats. 2021, ch. 719, §§ 3 and 3.1) (AB 1540).

[28] SeePen. Code § 1170.03, subd. (b) (Stats. 2021, ch. 719, §§ 3 and 3.1) (AB 1540); see alsoPen. Code § 1170.18, subd. (c) (Stats. 2017, ch. 17, § 26) (AB 103) (defining “‘unreasonable risk of danger to public safety’” as an “unreasonable risk that the petitioner will commit a new [§ 667, subd. (e)(2)(C)(iv)] violent felony”).

[29] See,e.g., People v. Benitez(Mar. 14, 2022, No. H048647, unpub.), on appeal to the 6th Dist. from Santa Clara County Super. Ct. No. C1118634 (CDCR recommended petitioner’s case for recall and resentencing and trial court declined to recall without a hearing; denial of hearing was an abuse of discretion); People v. Scholer(Mar. 17, 2022, No. B31277, unpub.), on appeal to the 2d Dist., Div. 6 from Los Angeles County Super. Ct. No. MA018175 (CDCR recommendation for recall summarily denied; remand for hearing required); People v. Balbuena(Apr. 4, 2022, No. C09488, unpub.), on appeal to the 3d Dist. from Sacramento County Super. Ct. No. 05F11542 (issuance of a written order describing consideration of some, but not all, § 1170.03 factors in its denial of CDCR-recommended recall and resentencing deemed insufficient; remand for full consideration of all factors required); People v. McMurray (Mar. 30, 2022, No. C090767), appeal to the 3d Dist. from San Joaquin County Super. Ct. No. STKCRFE20070010935 (CDCR recommendation for recall and resentencing denial without appointment of counsel and based on issuance of an ex parte, unreasoned decision constitutes reversible error); People v. Williams(Apr. 4, 2022, No. F079846, unpub.), appeal to 5th Dist. from Stanislaus County Super. Ct. No. 1458764 (court’s failure to consider whether defendant posed an unreasonable danger to public safety in denying CDCR-recommended recall and resentencing was improper); People v. Thompson(Mar. 29, 2022, No. F083075, unpub.), appeal to 5th Dist. from Fresno County Super. Ct. No. CF96571402 (failure to appoint counsel or conduct hearing constitutes reversible error); see also People v. McCallum(2020) 55 Cal.App.5th 202 (2d, Div. 7), superseded by statute, i.e., Pen. Code § 1170.03, as cited in McMurray(pre-PC 1170.03 failure to afford hearing after CDCR-recommendation for recall and resentencing trial court’s “denying defendant an opportunity to present information relevant to the Secretary's recommendation” constituted an abuse of discretion, even though no hearing statutorily required).

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