When Can a Prisoner File a Petition for Resentencing?
A prisoner is permitted to seek resentencing under two narrow provisions. First, under Assembly Bill 865, codified at Penal Code § 1170.91, a military veteran sentenced to a determinate sentence prior to January 1, 2015 may seek resentencing when he or she suffered from a service-related disability that was not considered by the sentencing judge in sentencing.
Second, under Penal Code § 1170(d)(2), a prisoner convicted of felony murder or aiding and abetting a murder may petition for resentencing if that person was under 18 years of age at the time of the crime, was sentenced to life in prison without the possibility of parole (LWOP) and has served 15 years of the sentence.
There have been creative attempts by prisoners to file a petition for a writ of habeas corpus to seek release from prison for serving time for sentence enhancements that have been abolished, i.e., the one-year “prison prior” sentence enhancement under Penal Code § 667.5(b) (if the person did not remain free of custody for five years) unless the individual served a prison term previously for a sexually violent offense or resentencing the individual would create a danger to public safety.
Some of these prisoners have caused the judge reviewing the petition to order resentencing (one of our clients did this), but we caution that the use of the habeas petition really is supposed to be only to challenge the reason for one being imprisoned, not the duration of the imprisonment.
This legal background was unknown, ignored or not understood by Jacob Escobedo and Arthur Chavira, both California state prisoners who filed petitions to strike prior prison term enhancements under Penal Code § 667.5(b). People v. Jacob Escobedo (2023 DJDAR 7759).
Neither prisoner served prior prison sentences for sexually violent offenses, so the “290 exception” would not apply to either petitioner.
Mr. Escobedo was convicted in 2016 of dissuading a witness from testifying in violation of Penal Code § 136.1(a)(1). The trial court found true two prior prison terms within the meaning of Penal Code § 667.5(b) and sentenced him to five years. However, while in prison, he was convicted of having a weapon while confined in a penal institution (Penal Code § 4502(a)) and was sentenced to an additional, consecutive four years.
In 2015, Mr. Chavira plead guilty to two felonies and was sentenced to six years and four months. The sentence included one one-year prison prior enhancement under § 667.5(b). However, while incarcerated, he also was convicted of having a weapon while confined in a penal institution and also sentenced to a consecutive term of four more years.
Both prisoners filed a petition for resentencing in Ventura County Superior Court. Both were denied because the trial court ruled it did not have jurisdiction to rule on the petitions.
Both prisoners then appealed to the Second Appellate District, Division Six (in Ventura) the trial court’s rulings that it lacked jurisdiction.
The appellate court began its ruling by commenting, quite sarcastically, that “the present appeals are examples of all-too-familiar pattern in which the Court of Appeal is becoming a court of purported post judgment appeals from orders that are nonappealeable because they do not affect the appellant’s substantial rights.” See, e.g., People v. Hodges (2023) 45 Cal. App. 5th 341, 344 (“Because the trial court did not have jurisdiction to grant appellant’s request, its order could not, and does not, affect his substantial rights”).
The appellate court then further reminded the reader that courts do not review the wisdom of legislative enactments, suggesting that it cannot expand or enlarge the mechanism for affected prisoners to remedy legally invalid enhancements. It then cited to Penal Code § 1172.75(b), which provides that the Secretary of the CDCR is to identify those prisoners who are eligible for resentencing.
It merits mention here that for § 1172.75 resentencing, only the Secretary of the CDCR can provide a list of eligible defendants for resentencing. Other resentencing provisions allow the Board of Parole Hearings and the Office of the District Attorney to recommend resentencing, but not § 1172.75.
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