CDCR’s Eligibility Criteria for Resentencing Relief
Under California Penal Code § 1172.1, passed into law in 2018, anyone can be referred for resentencing. This law was originally titled as Penal Code § 1170(d) and we have many clients who refer to it under this former code section.
Within 120 days of the defendant’s commitment date to jail or state prison, the judge who sentenced defendant can, on its own motion, resentence defendant to reduce the sentence.
After the 120 days pass, the judge can no longer on its own resentence defendant, but must receive a recommendation to resentence defendant from the secretary of the Board of Parole Hearings (when defendant in state prison), the county correctional administrator (when defendant is in county jail), the district attorney of the county in which defendant was sentenced or the Attorney General if the Department of Justice originally prosecuted the case.
Defendant, however, cannot file a request for resentencing under § 1172.1 (or 1170(d)), except within the first 120 days of sentencing and the request is for the judge to exercise its authority under 1172.1. This can be based on new information not known to the trial court at time of sentencing, improper calculation of custody credits, or recent changes in the law that make the sentence unlawful.
After the 120 days passes, for most prisoners, the CDCR is the most likely entity to recommend the judge resentence a defendant.
In 2018, the CDCR created the Recall and Resentencing Referral Program (RRRP) to make § 1172.1 referrals.
Currently, the CDCR is excluding those serving Life Without the Possibility of Parole (LWOP) and death sentences from their resentencing referrals, this policy is not based on the Penal Code or Title 15 emergency regulations for the CDCR.
The CDCR’s recommendations seem to be loosely modeled after Proposition 57 public safety screening criteria. Such recommendations generally are based on three categories, as follows:
- Exceptional Conduct;
- Change in Sentencing Law; and
- Sentencing Error.
The CDCR looks for prisoners who not only meet these categories generally, but who have demonstrated “positive programming, or engaged involvement in self-help and education programs,” including involvement in AA, NA or Criminal and Gang Members Anonymous, employment preparation, positive laudatory chronos from program staff and correctional staff and who demonstrate leadership in classes or groups.
The categories are self-explanatory, so what is important to know is who the CDCR excludes from such categories for resentencing recommendation.
Under Exceptional Conduct resentencing recommendations, the CDCR will not refer someone who has not demonstrated sustained compliance with departmental regulations, rules and requirements, or anyone who has not shown prolonged participation in rehabilitative programming.
In additional, the CDCR will not recommend anyone who must register on the sex offense registry (as defined under SB 384) as a Tier Two or Tier Three registrant upon release.
The CDCR will also not recommend anyone who has not yet served ten years of their sentence in CDCR custody, not counting time in county jail.
The CDCR also will not recommend a prisoner for an Exceptional Conduct resentencing hearing who has been found guilty of a serious or violent rules violation within the past five years or who have an open violation pending.
The CDCR will also not recommend anyone for an Exceptional Conduct resentencing hearing if the person is serving a determinate sentence with a release date within 18 months or who are serving a determinate or indeterminate sentence and eligible for parole consideration or who have already been considered for parole.
Lastly, the CDCR will not recommend anyone for an Exceptional Conduct resentencing hearing if the person was convicted of a single charge and the person is serving low term without any possible lesser-included offense(s) or enhancements on the sentence.
For those that the CDCR recommends for resentencing due to a Change in Sentencing classification, the CDCR will not recommend anyone for resentencing on this basis if the person has not served at least five years of their sentence, not including time in county jail.
Similar to how the CDCR excludes certain prisoners from recommendation for an Exceptional Conduct resentencing hearing, the CDCR will not recommend a prisoner for a Change in Sentencing resentencing hearing if that prisoner has been found guilty of a serious or violent rules violation within the past one year or who have an open violation pending.
The CDCR also will not make a Change in Sentencing recommendation if the person is serving a determinate sentence with a release date within 18 months or who are serving a determinate or indeterminate sentence and eligible for parole consideration or who have already been considered for parole.
The CDCR will not make a Sentencing Error resentencing recommendation if the prisoner is scheduled for release within six months.
For more information about resentencing relief, please click on the following articles:
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