Resentencing Under Senate Bill (SB) 483, Lancaster
In 2012, our client was arrested in Lancaster and later charged with a violation of Penal Code § 29800(a)(1) (Possession of Firearm by a Felon). He had a significant criminal history, starting as a juvenile, so the criminal complaint against him included sentence enhancement allegations arising from a prior conviction for a strike, a prior serious felony conviction and two prior prison commitments.
The public defender assigned our client negotiated a plea bargain wherein our client was sentenced to five years in state prison (three years on the 29800, plus two one-year enhancements under Penal Code § 667.5(b)), suspended, and placed on three years of formal probation with an obligation to perform 60 days of community labor, report to probation and obey all laws.
Unfortunately, the client did not obey all laws and was arrested and charged about four months later in Van Nuys Superior Court with a felony case and a separate misdemeanor matter. In the felony case, the client was charged with violating Penal Code §§ 245(a)(2) (Assault with a Deadly Weapon), 422 (Criminal Threats) and 29800, as well as other charges. In the misdemeanor case, the client was charged with violating Penal Code § 21510 (Possession of a Switchblade Knife).
Probation was then revoked in the Lancaster case and all matters were resolved in 2013 with our client being sentenced to five years in state prison on the Lancaster case, plus a consecutive twelve years in the Van Nuys cases (low term of two years on the 245(a)(2), doubled for the client’s prior strike, plus three years under Penal Code § 12022.5 (gun enhancement), plus five years for a prior serious felony conviction (the prior strike under Penal Code § 667(a)), less credit for over 200 days, including good time/work time.
As the reader of this summary may be well aware, since 2017, there have been a series of new laws passed that affect sentencing in pending cases. None of the laws are retroactive to final sentences with the exception of military resentencing and juveniles sentenced to life without parole under certain circumstances.
However, our client apparently did not understand this and filed a hand-written petition for writ of habeas corpus seeking resentencing, which the reader may understand is not a valid reason for seeking such a writ. Moreover, resentencing may only be initiated by the CDCR, the Board of Parole Hearings (BOP) and the District Attorney’s Office.
Nonetheless, the habeas petition was considered and our client was granted a hearing for resentencing under Penal Code §§ 1172.7(a) and 1172.75 (which would be just for the Penal Code § 667.5(b) one-year prison priors abolished by Senate Bill 483 unless defendant is a registered sex offender or striking such enhancements would endanger public safety).
An alternate public defender was assigned to our client, but the assigned district attorney and the public defender were both extremely busy and the public defender kept continuing the hearing.
The client and his fiancé grew increasingly frustrated and reached out to Greg Hill & Associates to substitute in. The client’s fiancé was knowledgeable about the client’s sentences, but did not know certain critical facts Greg needed to know to tell her if he could make any difference.
Greg therefore went to the Torrance courthouse and pulled the sentencing minute orders in all of the client’s cases.
Greg explained that he thought the District Attorney assigned to the case could make a credible argument that, given the client’s extensive criminal history, the judge should not strike the two one-year priors because doing so would endanger public safety.
However, Greg explained to the client’s fiancé, the prosecutor may also be just too busy to look deep into the client’s history. Greg also explained that if the judge merely struck the two one-year priors, the client would be eligible for immediate release.
The client’s fiancé was quite excited about this and retained Greg Hill & Associates.
Greg then spoke with the assigned alternate public defender, who explained that he had appeared on the case already and that the judge indicated her tentative inclination was to strike the two one-year priors and that she believed she had no authority to modify the other sentences from Van Nuys. Moreover, the alternate public defender said he thought the prosecutor was indeed too busy to really focus on the client’s case.
Greg knew time was of the essence for the client, so he prepared a written substitution of attorney form, had the alternate public defender sign it and then, the same day, Greg drove the 78 miles each way out to the Lancaster courthouse to personally file it in the courtroom so he could advance the next sentencing hearing and so he could discuss the case with the DA.
After Greg filed the substitution of attorney, he spoke with the DA, who agreed to advance the hearing for resentencing. Greg indicated to the DA that he would stipulate to the judge’s tentative and the DA agreed to also do so, still unaware of the client’s extensive history.
Greg then appeared and the judge ordered the two one-year enhancements stricken. The sentence was then revised from five years to three years, effective back to 2013 when our client was originally sentenced. The judge then said that the CDCR would then recalculate our client’s custody credits (even the judge did not seem to understand her order resulted in a time served sentence).
In resentencing, our client would be refunded certain court fees and fines that may have been collected under the old sentence and now he would be fined basically the same fines and fees associated with the new sentence. This included a $240 restitution fine, a $30 criminal conviction fine and a $40 court security fee. What was refunded would almost be a credit to the new fees, but not quite fully. Our client may owe a further $50 or so, net.
The client and his fiancé were very happy that Greg acted with a sense of urgency, resulting in a quick release that was otherwise delayed.
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