On September 30, 2018, then-Governor Jerry Brown approved Assembly Bill (AB) 2942, giving district attorneys statewide the power to recommend the recall and resentencing of a defendant. Such a recommendation would then be communicated to the trial court judge who originally sentenced defendant to decide whether to hold a resentencing hearing. This new power is codified at Penal Code § 1170(d)(1).
The district attorney may do so when he or she believes the length of the sentence does not serve the interests of justice, i.e., when defendant was sentenced to the upper term and the middle or even the lower term, now in retrospect to the district attorney, would suffice or is more fitting.
If a judge then agrees to resentence defendant, defendant will have the opportunity to submit a brief explaining why a lower sentence for him or her is appropriate and deserved. The inmate may want to submit documentation of post-conviction activities while in custody, such as proof of educational classes completed, self-help classes taken and completed (i.e., vocational and alcohol / drug abuse classes, anger management, etc.) and any proof of being a mentor for other inmates. Such documentation may be regarded by the judge as proof that the individual is prepared and ready for successful re-entry into the community.
Before Governor Brown signed this new law into effect, existing law permitted the Secretary of the California Department of Corrections and Rehabilitation or the Board of Parole Hearings, in the case of state prison inmates, or the county correctional administrator in the case of county jail inmates, to recommend the recall and resentencing to a lower sentence. AB 2942 expands this power to district attorneys within the county where a defendant was convicted.
Under AB 2942, defendant, the prosecution and the victim, or the family of the victim if the victim is deceased, has a right to submit a statement in aggravation or mitigation. Such a statement must be submitted to the judge at least four days prior to the resentencing hearing. Penal Code § 1170(b).
The judge, in resentencing, must state on the record the reasons for resentencing defendant to the term it selects. The judge, if it imposes the upper term, may not consider any fact that was considered in imposing any sentence enhancement associated with the charge. Id.
The judge may consider the inmate’s post-conviction record in resentencing, including defendant’s disciplinary record in custody, record of rehabilitation while in custody, “evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate’s risk for future violence, and evidence that reflects that circumstances have changed since the inmate’s original sentencing so that the inmate’s continued incarceration is no longer in the interest of justice.” Credit shall be given for time served. Penal Code § 1170(d)(1).
The new sentence may not be any greater than the initial sentence previously imposed. Penal Code § 1170(d)(1).
Perhaps most significant in this bill is Penal Code § 1170(d)(2), which states, “[w]hen a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.”
However, this new provision for youthful offenders, “shall not apply to defendants sentenced to life without parole for an offense where it was pled and proved that the defendant tortured, as described in Section 206, his or her victim or the victim was a public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed by the federal government, the state, or any of its political subdivisions.”
Defendant’s petition under this section must be filed in the sentencing court and copies of the petition must be served on the prosecutor. The petition, the new bill states, should contain a statement concerning defendant’s remorse and work toward rehabilitation. The petition should also contain a statement that one or more of the following is true:
- The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
- The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.
- The defendant committed the offense with at least one adult codefendant.
- The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse.