What is Senate Bill 483 for Resentencing? Retroactive?
Senate Bill (SB) 483, signed by Governor Newsom on October 8, 2021, seems to be the “backdoor” to wholesale resentencing that previously was kept tightly shut except for in cases of military veterans under Assembly Bill (AB) 865 (Penal Code § 1170.91) and in cases involving the new felony murder rule under SB 1437 (Penal Code § 1170.95).
Why This Article Matters: Senate Bill 483, which sets certain deadlines and obligations for the CDCR to identify inmates only serving time on repealed enhancements and further deadlines for judges to resentence such inmates may allow wholesale resentencing under other new sentencing provisions such as SB 620, SB 1353 and AB 333 (gang enhancements).
The new law seems to be part of a concerted effort to ensure all prisoners who are eligible for sentence reductions under SB 136 and SB 180 are identified and considered by the original sentencing court.
Senate Bill 136 made the one-year prison prior sentence enhancement under Penal Code § 667.5 invalid after January 1, 2020, unless the offense involved a sexually violent offense. A sexually violent offense includes the following acts when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person, and that are committed and result in a conviction or a finding of not guilty by reason of insanity, as defined in subdivision (a): a felony violation of Penal Code §§ 261 (rape), 262 (spousal rape), 264.1 (rape or penetration of genital or anal opening by a foreign object), 269 (aggravated sexual assault of a child), 286 (sodomy), 287 (oral copulation), 288 (lewd or lascivious acts), 288.5 (continuous sexual abuse of a child), or 289 (forcible sexual penetration) of, or former Section 288a (oral copulation) or any felony violation of Penal Code §§ 207 (kidnapping), 209 (kidnapping for ransom), or 220 (assault with intent to commit mayhem), committed with the intent to commit a violation of Penal Code §§ 261, 262, 264.1, 286, 287, 288, or 289 of, or former Section 288a.
Senate Bill 180 repealed the three-year sentence enhancement for prior controlled substance convictions after January 1, 2018, unless the prior drug conviction involved manufacturing a controlled substance or involved using a minor in committing the crime.
Torrance CourthouseUnder SB 483, codified at new Penal Code §§ 1171 and 1171.1, the CDCR is required to identify every inmate serving a term that includes a repealed enhancement.
In other words, the inmate does not have to petition for resentencing under SB 483.
The deadlines, or schedule of implementing this new law, are what really impress us. No later than March 1, 2022, for those inmates who have served the base term and are merely serving time on the enhancement(s), the CDCR must then provide the sentencing court with:
- The name of the inmate;
- The inmate’s date of birth (DOB); and
- The case number.
By July 1, 2022, the CDCR must provide the sentencing court with the names, DOB’s and case numbers for all others serving a sentence with such enhancements.
The sentencing court is instructed to first verify the sentence.
By October 1, 2022, the judge must then resentence those who have already served their base term and are only serving time for an enhancement. In resentencing, the inmate is entitled to have the court consider the inmate’s post-conviction conduct in prison, including efforts toward self-improvement, education and “milestone credits.”
In resentencing, the judge may appoint a public defender to assist the inmate or the inmate may retain private counsel.
By December 31, 2023, the judge must resentence all others identified to it by the CDCR.
In resentencing, the court may decline to resentence any inmate if the judge determines would endanger public safety. In evaluating his issue, the judge is to consider whether defendant, if resentenced, would be likely to commit an offense listed under Penal Code § 1170.18, which defines “unreasonable risk that the petitioner will commit a new violent felony within the meaning of clause (iv) of subparagraph (C) of paragraph (2) of subdivision (c) of Penal Code § 667.” The violent felonies encompassed in this definition “are known as ‘super strikes’ and include murder, attempted murder, solicitation to commit murder, assault with a machine gun on a police officer, possession of a weapon of mass destruction, and any serious or violent felony punishable by death or life imprisonment.” People v. Jefferson (2016) 1 Cal.App.4th 235, at 242. Such offenses also include sexually violent offenses and sexual offenses committed against minors under the age of 14. Penal Code § 667(e)(2)(C)(iv).
In resentencing, it is remarkable to note that SB 483 states that the resentencing court may not impose a new sentence that exceeds the middle term for the primary offense. The statute, however, states that this limit does not apply if the judge originally imposed the upper term or there were aggravating factors that justify a term exceeding the middle term and those factors were stipulated to by defendant in the plea or sentence, or found to be true beyond a reasonable doubt by the jury or trial court judge.
The resentencing hearing can be live, remote by video conferencing (if stipulated to by defendant) or by submission, meaning defendant waives a hearing.
In short, this is a significant new law that will affect hundreds, if not thousands of prisoners. The need for a brief in favor of resentencing to a shorter term based on post-conviction conduct in prison and other mitigating factors will be urgent for some prisoners and we look forward to arguing that the base term for many prisoners should be lowered to low term. While the bill does not address the “elephant in the room,” i.e., other enhancements such as a gun enhancement, a gang enhancement, a prior serious felony enhancement, we think the judge will have power to remove such enhancements at such a resentencing hearing. This could result in “time served” sentences for many inmates.
For more information about SB 136, SB 180 and why hiring private counsel can be prudent, please click on the following articles:
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