SB 483: May a Person in Prison Request Resentencing?

Starting in 2017, there have been a series of resentencing laws passed that give authority to judges to strike or reduce certain sentence enhancements.

For example, Senate Bill 136 abolished the one-year “prison prior” enhancement under Penal Code § 667.5(b) except for those who served a prior prison term for a sexually violent offense as defined under Welfare & Institutions Code § 6600 or when doing so would endanger public safety. 

Senate Bill 1393 gives judges discretion under Penal Code § 1385 (“in the interest of  justice”) to strike the five-year prior serious felony conviction enhancement otherwise applicable under Penal Code § 667(a).

Senate Bill 620 gives a judge discretion to strike or reduce (see People v. Tirado (2021) 12 Cal. 5th 688) the three-year sentence enhancement under Penal Code § 12022.5 and the ten, twenty or twenty-five to life firearm enhancement under Penal Code § 12022.53.

There are several other new laws that change sentencing laws, but Senate Bill 483 established the procedure to retroactively benefit state prisoners who sentences are not currently valid. 

In 2012, a Los Angeles County jury in the Clara Shortridge Foltz criminal courts building (“CCB”) found Michael Newell guilty of  second degree robbery (Penal Code § 211) and assault by means likely to produce great bodily injury (Penal Code § 245(a)(1)).  As to each offense, the jury found Mr. Newell personally inflicted great bodily injury (Penal Code § 12022.7(a)).

The Three Strikes Law applied to Mr. Newell, as he had five prior serious felony convictions and that he had served one prior prison term (Penal Code § 667.5(b)).

The trial court judge sentenced Mr. Newell to an aggregate state prison term of 49 years to life.  His sentence included a one-year consecutive term for a prison “prior” (Penal Code § 667.5(b)) and a 20-year consecutive sentence for four prior serious felony convictions (Penal Code § 667).

Years after Mr. Newell’s judgment became final, the California Legislature changed the law regarding many sentencing enhancements, as explained above. 

Mr. Newell then filed an in propria persona petition for resentencing with the trial court, citing Senate Bill 483.

The trial court denied Mr. Newell’s petition, finding Mr. Newell must wait for the Department of Corrections and Rehabilitation (CDCR) to file a Senate Bill 483 with the court to initiate resentencing.

Mr. Newell then appealed this ruling to the California Court of Appeal, Second Appellate District court, which affirmed the trial court on July 6, 2023.

The Second Appellate District explained that Senate Bill 483 amended Penal Code § 1172.75 by providing in subparagraph (b) that “The Secretary of the Department of Corrections and Rehabilitation . . . shall identify those persons in their custody currently serving a term for a judgement that includes an enhancement described in subdivision (a) and shall provide the name of each person, along with the person’s date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement.” 

Subdivision (d)(1) of § 1172.75 provides “Resentencing pursuant to this section shall result in a lesser sentence than the one originally imposed as a result of the elimination of the repealed enhancement [in reference to the Penal Code § 667.5(b) one year “prison prior” enhancement], unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety.”

Section 1172.75(d)(2) provides: “The Court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.”

Section 1172.75 has no provision for an individual defendant to file the type of petition Mr. Newell filed.  People v. Burgess (2022) 86 Cal. App. 5th 375, 384.  “Section 1172.75 simply does not contemplate resentencing relief initiated by any individual defendant’s petition or motion.”  Id.

We present this summary because we often receive phone calls from prisoners or family members of the prisoner asking us to file a petition for resentencing.  In each instance, we must tell the caller that there is no provision for a prisoner (or an attorney representing such a prisoner) to file such a request, just as Mr. Newell did in this case.  It would be unethical for any attorney to accept compensation to prepare and file such a motion for resentencing, knowing with total certainty that it would be denied.