Recall of a criminal sentence PC § 1170

Common Law: Court has no jurisdiction over defendant once execution of sentence commences

Under the common law, once execution of the sentence has commenced or the trial court relinquishes custody over the defendant, the trial court no longer has jurisdiction over a defendant.  If trial court retains the actual or constructive custody of the defendant and the execution of sentence has not begun, the court may vacate and modify the sentence. In a criminal case, the execution of a judgment of conviction is the process of carrying the judgment into effect. Under the common law, the court relinquishes control over a defendant by committing and delivering the defendant to the prison authority. However, Pen C § 1170(d), extends the jurisdiction of the trial court to mitigate the sentence imposed by an additional 120 days. People v. Superior Court (Cornelius) (1995), 31 Cal. App. 4th 343.

PC § 1170 (d) and mitigation of sentence

Pen C § 1170(d), creates an exception to the common law rule that the trial court loses jurisdiction to resentence a defendant upon commencement of execution of her sentence. The sentencing court is authorized  to recall and resentence the defendant for any reason rationally related to lawful sentencing, and is not limited to recalling and resentencing only in cases where a defendant in eligible for probation. Resentencing may be to state prison for a term equal to or less than that imposed under the initial sentence, whether or not the defendant is eligible for probation. People v. Karaman ( 1992), 4 Cal. 4th 335.

Recall on court’s motion within 120 days of commitment to jail or prison

The court may, within 120 days of the date of commitment on its own motion.

Recall at any time during the sentence

The Court may at any time, based on the recommendation of the secretary or the Board of Parole Hearings, the county correctional administrator, or the district attorney of the county in which the defendant was sentenced, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence is no greater than the initial sentence. The resentencing court shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. The resentencing court may reduce a defendant’s term of imprisonment and modify the judgment, including a judgment entered after a plea agreement, if it is in the interest of justice.

Post-conviction factors considered by the judge

The court may consider post-conviction factors, including, but not limited to, the inmate’s disciplinary record and record of rehabilitation while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the inmate’s risk for future violence, and evidence that reflects that circumstances have changed since the inmate’s original sentencing so that the inmate’s continued incarceration is no longer in the interest of justice. Credit shall be given for time served.

Recall of sentence for juveniles sentenced to life without the possibility of parole

A defendant who was under 18 years of age at the time of the crime for which she was sentenced to life without the possibility of parole and has been incarcerated for at least 15 years, may submit to the sentencing court a petition for recall and resentencing unless the victim was tortured or a public safety official.

The defendant files the original petition with the sentencing court and served a copy of the petition shall be served on the agency that prosecuted the case. The petition shall include the defendant’s statement that he or she was under 18 years of age at the time of the crime and was sentenced to life in prison without the possibility of parole, the defendant’s statement describing his or her remorse and work towards rehabilitation, and the defendant’s statement that one of the following is true:

(i) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.

(ii) The defendant does not have juvenile felony adjudications for assault or other felony crimes with a significant potential for personal harm to victims prior to the offense for which the sentence is being considered for recall.

(iii) The defendant committed the offense with at least one adult codefendant.

(iv)  The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing himself or herself of rehabilitative, educational, or vocational programs, if those programs have been available at his or her classification level and facility, using self-study for self-improvement, or showing evidence of remorse.

A reply to the petition, if any, shall be filed with the court within 60 days of the date on which the prosecuting agency was served with the petition, unless a continuance is granted for good cause.

If the court finds by a preponderance of the evidence that one or more of the statements specified in clauses (i) to (iv), is true, the court shall recall the sentence and commitment previously ordered and hold a hearing to resentence the defendant, provided that the new sentence, if any, is not greater than the initial sentence. Victims, or victim family members if the victim is deceased, shall retain the rights to participate in the hearing.

Other inmates eligible for recall of sentence

The Secretary of the California Department of Corrections and Rehabilitation or the Board of Parole Hearings may recommend to the court that the prisoner’s sentence be recalled if:

(A) The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the Department of Corrections.

(B) The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.

(C) The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care.

Prisoners sentenced to death or a term of life without the possibility of parole.

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