CDCR Resentencing: Exceptional Conduct Exclusions

As the reader of this article may already be aware, there several new sentencing reforms that help inmates in California who may have been sentenced with enhancements that add years or even decades to one’s sentence.  There are also some significant appellate court and California Supreme Court decisions that suggest many sentences are illegal or erroneous.

The new laws include, but are not limited to Senate Bill 620 (allowing a judge to strike or lower a gun enhancement), SB 1393 (allowing a judge to strike a five-year prior serious felony enhancement), SB 136 (allowing a judge to strike the one-year enhancement for a prior prison or jail term, with certain exceptions), SB 180 (repealed the three-year enhancement for a prior drug-related felony, with certain exceptions), SB 567 (made the mid-term sentence the presumed sentence, absent mitigating or aggravating evidence), AB 333 (narrowing the scope of what evidence allows a criminal street gang enhancement) and SB 1437 / SB 775 (allowing those convicted of felony murder, felony attempted murder, or attempted felony murder, as well as second-degree murder by natural and probable consequences, to request resentencing under Penal Code § 1172.6).

There are also certain recent decisions that have made it illegal for a judge to impose certain sentencing enhancements.

There are further new procedural laws that provides certain rights to those imprisoned, if the judge on one’s case received a resentencing referral (either from the CDCR, the Bureau of Parole Hearings, the district attorney or the Attorney General), such as AB 1540 (guaranteeing the right to counsel on resentencing and setting certain deadlines, such as a status conference hearing on resentencing within 30 days).

Who does the CDCR recommend for such resentencing?  After all, there are thousands of inmates serving time for such sentence enhancements. 

To address this quandary, as there were so many eligible, the CDCR had to prioritize certain inmates over others.  In 2018, the CDCR set forth their priorities and procedures for such recommendations in the Recall and Resentencing Referral Program (RRRP).  The RRRP was based on the same priorities and preferences largely outlined in Proposition 57. 

Accordingly, the first category of those recommended for resentencing were those inmates who demonstrated “Exceptional Conduct.”  Other categories included those inmates with sentences affected by changes in sentencing laws and, third, those with sentencing errors.

As of June 2022, the CDCR would not recommend resentencing for those eligible for resentencing even if he or she demonstrated “Exceptional Conduct” if that inmate had been sentenced to death or life without the possibility of parole (LWOP), or those who have already been to a parole board or those who are going to a parole board soon.

“Exceptional Conduct” referrals excluded inmates who have not demonstrated “sustained compliance with departmental regulations, rules and requirements, as well as who have not shown prolonged participation in rehabilitative programming.”

Likewise, the CDCR will not recommend an inmate for resentencing if he or she has been found guilty of a serious or violent rules violation within the past five years or who have an open violation pending.

Those who must register as Tier 2 or Tier 3 sex offenders upon release under the new Senate Bill 384 tier categories are also excluded from “Exceptional Conduct” recommendation by the CDCR.

The CDCR also will not recommend inmates for resentencing as being “Exceptional Conduct” inmates until the inmate has served ten years in CDCR custody or an inmate who was convicted of a single offense or charge and is serving low-term without any possible lesser-included offense or enhancement on his or her sentence.

Lastly, the CDCR will not make a recommendation for resentencing if the inmate is eligible for parole within the next 18 months or who has already been considered for parole.