Penal Code section 1172.1

Penal Code § 1172.1 allows a court to resentence someone to a shorter term at any time.

The recall and resentencing process can be started by a recommendation from the California Department of Corrections (CDCR), the Board of Parole Hearings (BPH), the District Attorney’s (DA’s) office, the Attorney General’s (AG’s) Office (if the inmate was prosecuted by the AG), or the local sheriff or correctional administrator (if the inmate is in county jail).

Note that the statute does not allow for a defendant to move the court to reduce a sentence.  However, sentencing courts have independent authority to start the recall and resentencing processes in some circumstances.

Resentencing may be appropriate if, among other reasons:

  • “the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law”
  • “the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.”
  • “the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence.”
  • “the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence”
  • “the defendant was a victim of intimate partner violence or human trafficking prior to or at the time of the commission of the offense”
  • “the defendant is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense, and whether those circumstances were a contributing factor in the commission of the offense.”

An inmate may “suggest” that the court use its independent authority.

The California Supreme Court in People v. Superior Court (Romero) (1996) 13 Cal. 4th 497, held that pursuant to Penal Code § 1385, trial courts may, in furtherance of justice and on its own motion, dismiss prior convictions alleged in accordance with the Three Strikes law. A § 1385 dismissal may occur “before, during or after trial, up to the time judgment is pronounced.” (Romero, supra, 13 Cal. 4th at 524)  “A long line of decisions, stretching over nearly 30 years, … established that a trial court’s general statutory authority to dismiss an action in furtherance of justice under § 1385 includes the power to strike a prior conviction for purposes of sentencing, whether or not the conviction has been admitted or established by the evidence.” (People v. Fritz (1985) 40 Cal.3d 227, 229–230.)

Penal Code § 1172.1 extends the court’s ability to strike enhancements and reduce sentences.

Similar to Penal Code § 1385, Penal Code § 1172.1 also has no provision for a defendant to request a reduced sentence; however, it has long been the practice of the courts that a defendant may “suggest” that the court use its discretion and “on the court’s own motion” use the authority of Romero to strike enhancements.

It is, therefore, theoretically correct for a defendant to “suggest” that the court use its discretion to recall a sentence under Penal Code § 1172.1.  However, Penal Code § 1172.1 is a new law, and it has yet to be tested in court.  Nonetheless, a defendant requesting resentencing appears to have little to lose.  If the court declines to use its discretion, the sentence cannot be increased, and the Court of Appeals may review the case to determine whether the trial court abused its discretion.  If the matter is accepted for appeal, the Court of Appeals will most likely appoint counsel to assist the defendant.