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Resentencing – Who May & May Not Request This?
On August 27, 2024, it was reported that in case number 24-O-30656, the State Bar of California filed eighteen counts for violation of the California Rules of Professional Conduct, Rules 1.4(b) (Failure to Communicate in Order to Permit Client to Make Informed Decisions), 1.5 ([Unconscionable Fee), 2.1 ([Failure to Render Candid Advice) and 7.1 (Misleading Communications Concerning Lawyer’s Services), as well as California Business & Professions Code § 6106 (Moral Turpitude – Misrepresentation), against Aaron Spolin, an attorney based in Los Angeles.
Mr. Spolin is an attorney who had been excoriated by a front-page Los Angeles Times feature article written on April 21, 2023, where multiple clients of his firm complained about his incompetence, high fees and, most significantly, encouraging those in prison to seek resentencing when such prisoners were ineligible for resentencing. Many attorneys read the article in disgust.
For those who have not followed the State Bar proceedings and the above article disgracing Mr. Spolin, who was licensed to practice in California in 2016, we present the following article so the reader is clear on who may and may not request resentencing.
We understand that this article will deflate the hopes and dreams of many who believe the recent changes in sentencing laws apply to everyone and are retroactive. It will also disappoint those who believe George Gascon’s sentencing directives are laws (they are not). It may also cause some to realize a criminal defense attorney they spoke to was incorrect.
Simply put, a person in prison or county jail may not request resentencing except in three very limited exceptions.
A person convicted of felony murder or aiding and abetting a murder may petition for resentencing under Penal Code § 1170(d)(2) if that person was under 18 years of age at the time of the crime, that person was sentenced to life in prison without the possibility of parole (LWOP) and that person has served 15 years (actual time) of the sentence; and
Under Penal Code § 1170.91 (as originally codified from Assembly Bill 865, but later amended by Senate Bill 1209 on January 1, 2023), a former serviceman in the United States armed forces may petition for resentencing on a felony conviction, whether by trial or by an open plea to the court, if that person may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse or other mental health problems as a result of his or her military service and such issues were not considered at time of sentencing; and
As of November 2023, the Los Angeles District Attorney’s Office announced that people who did not fit the resentencing unit’s criteria could ask head deputy district attorneys for review. The resentencing unit’s criteria included a prisoner (1) age 50 and older; (2) sentenced to 20 years or more; (3) served a minimum of ten years in custody; (4) serving a sentence for a non-serious or non-violent felony [serious and violent felonies are defined in Penal Code section 1192.7(c) and Penal Code section 667.5(c)]; (5) has not suffered a prior conviction for a “super strike,” as defined in Penal Code section 667(e)(2)(c)(IV); and (6) is not a sex offender registrant.
This is painful to put into writing, let alone to post to the Internet, but it is imperative to preserve the honor of the criminal defense profession because there are desperate families eager to pay large amounts of money for resentencing their family member in prison.
Mr. Spolin is an attorney who had been excoriated by a front-page Los Angeles Times feature article written on April 21, 2023, where multiple clients of his firm complained about his incompetence, high fees and, most significantly, encouraging those in prison to seek resentencing when such prisoners were ineligible for resentencing. Many attorneys read the article in disgust.
For those who have not followed the State Bar proceedings and the above article disgracing Mr. Spolin, who was licensed to practice in California in 2016, we present the following article so the reader is clear on who may and may not request resentencing.
We understand that this article will deflate the hopes and dreams of many who believe the recent changes in sentencing laws apply to everyone and are retroactive. It will also disappoint those who believe George Gascon’s sentencing directives are laws (they are not). It may also cause some to realize a criminal defense attorney they spoke to was incorrect.
Simply put, a person in prison or county jail may not request resentencing except in three very limited exceptions.
A person convicted of felony murder or aiding and abetting a murder may petition for resentencing under Penal Code § 1170(d)(2) if that person was under 18 years of age at the time of the crime, that person was sentenced to life in prison without the possibility of parole (LWOP) and that person has served 15 years (actual time) of the sentence; and
Under Penal Code § 1170.91 (as originally codified from Assembly Bill 865, but later amended by Senate Bill 1209 on January 1, 2023), a former serviceman in the United States armed forces may petition for resentencing on a felony conviction, whether by trial or by an open plea to the court, if that person may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse or other mental health problems as a result of his or her military service and such issues were not considered at time of sentencing; and
As of November 2023, the Los Angeles District Attorney’s Office announced that people who did not fit the resentencing unit’s criteria could ask head deputy district attorneys for review. The resentencing unit’s criteria included a prisoner (1) age 50 and older; (2) sentenced to 20 years or more; (3) served a minimum of ten years in custody; (4) serving a sentence for a non-serious or non-violent felony [serious and violent felonies are defined in Penal Code section 1192.7(c) and Penal Code section 667.5(c)]; (5) has not suffered a prior conviction for a “super strike,” as defined in Penal Code section 667(e)(2)(c)(IV); and (6) is not a sex offender registrant.
This is painful to put into writing, let alone to post to the Internet, but it is imperative to preserve the honor of the criminal defense profession because there are desperate families eager to pay large amounts of money for resentencing their family member in prison.
Over the last several years, some criminal defense attorneys have ignored the Los Angeles District Attorney’s website that stated in its FAQs section that the LADA “cannot accept calls, emails, letters, or other submissions regarding individual cases” and that “a lawyer cannot initiate or accelerate the review process for an individual case.” Such attorneys wrote letters to the Los Angeles District Attorney’s office urging resentencing of a particular client, often after receiving a request to do so form the family, loved one or the prisoner himself.
Our firm has never written such a letter although we have received at least 200 requests to do so (sometimes two per day). Greg Hill told each person that resentencing was only permissible upon the recommendation of the Secretary of the CDCR, the Board or Parole Hearings, the District Attorney’s Office or the judge (only for 120 days after sentencing, but this limitation was recently expanded to include at any time). In Orange County, resentencing is even more restricted: the Orange County District Attorney’s Office will only consider resentencing if recommended by the Secretary of the CDCR.
Even if one were to request such a letter to the Los Angeles District Attorney’s Office under Exception 3 above, we would recommend no one pay an attorney to request resentencing if a person has a poor disciplinary record in custody (as seen by one’s C-File), one was sentenced for murder, one was sentenced to life without the possibility of parole, or a jury found true a special circumstance (or defendant stipulated to this in a plea). Moreover, if one was convicted of a serious or violent felony, one would have to have a flawless or almost flawless disciplinary record in custody and significant programming success. Most importantly, the person could not have a pending appeal wherein criminal liability is contested.
Our office has successfully petitioned for resentencing under Penal Code § 1170.91 and sought resentencing in one case where the judge declined to resentence our client. We have not sought resentencing under § 1170(d)(2).
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