Article 1.5 - Recall and Resentencing

California Penal Code — §§ 1172-1172.75

Sections (6)

Added by renumbering Section 1170.01 by Stats. 2022, Ch. 58, Sec. 8. (AB 200) Effective June 30, 2022.

(a)The County Resentencing Pilot Program (pilot) is hereby established to support and evaluate a collaborative approach to exercising prosecutorial resentencing discretion pursuant to Section 1172.1. Participants in the pilot shall include a county district attorney’s office, a county public defender’s office, and may include a community-based organization in each county pilot site.

(b)Each participating district attorney’s office shall do all of the following:

(1)Develop and implement a written policy which, at minimum, outlines the factors, criteria, and processes that shall be used to identify, investigate, and recommend individuals for recall and resentencing. The district attorney’s office may take into account any input provided by the participating public defender’s office or a qualified contracted community-based organization in developing this policy.

(2)Identify, investigate, and recommend the recall and resentencing of incarcerated persons consistent with its written policy.

(3)Direct all funding provided for the pilot be used for the purposes of resentencing individuals pursuant to the pilot, including, but not limited

to, ensuring adequate staffing of deputy district attorneys, paralegals, and data analysts who will coordinate obtaining records and case files, support data entry, assist in the preparation and filing of pleadings, coordinate with victim services, and any other tasks required to complete the processing and facilitation of resentencing recommendations and to comply with the requirements of the pilot.

(c)A participating district attorney’s office may contract with a qualifying community-based organization for the duration of the pilot. The community-based organization shall have experience working with currently or formerly incarcerated individuals and their support networks, and shall have expertise in at least two of the following areas:

(1)Supporting and developing prerelease and reentry plans.

(2)Family

reunification services.

(3)Referrals to postrelease wraparound programs, including, but not limited to, employment, education, housing, substance use disorder, and mental health service programs.

(4)Restorative justice programs.

(d)Nothing in this section shall be construed to limit the discretion or authority granted to prosecutors under Section 1172.1.

(e)All funding provided to a participating public defender’s office shall be used for the purposes of supporting the resentencing of individuals pursuant to the

pilot, including, but not limited to, ensuring adequate staffing of deputy public defenders and other support staff to represent incarcerated persons under consideration for resentencing, identifying and recommending incarcerated persons to the district attorney’s office for resentencing consideration, and developing reentry and release plans. A participating public defender’s office may provide input to the county district attorney’s office regarding the factors, criteria, and processes to be used by the district attorney in their exercise of discretion under Section 1172.1.

(f)Each participating district attorney’s office shall utilize the same template developed by the evaluator to identify and track

specific measures consistent with the goals of this section. The template shall be finalized no later than October 1, 2021. The measures shall include, but not be limited to, the following:

(1)A summary of expenditures by each entity receiving funds.

(2)A summary of any implementation delays or challenges, as well as steps being taken to address them.

(3)The total number of people incarcerated in state prison on the first day of each reporting year for convictions obtained in the reporting county.

(4)The factors and criteria used to identify cases to be considered for prosecutor-initiated resentencing.

(5)The total number of cases considered by a pilot participant for

prosecutor-initiated resentencing. For each case, information collected shall include the date the case was considered, along with the defendant’s race, ethnicity, gender, age at commitment, categories of controlling offenses, date of prison admission, earliest possible release date or minimum eligible parole date, and date of birth.

(6)The total number of prosecutor-initiated resentencing recommendations by the pilot participant to the court for recall of sentence, date of referral, and information on the defendant’s race, ethnicity, gender, age at commitment, groups of controlling offenses, age at time of recall consideration, time served, and time remaining.

(7)The total number of prosecutor-initiated resentencing recommendations by the pilot participant in which the court responded, the date the court considered each case referred, how many cases the court considered, and

information on the defendant’s race, ethnicity, gender, age at commitment, groups of controlling offenses, age at time of recall consideration, time served, and time remaining.

(8)The total number of prosecutor-initiated resentencing recommendations denied by the court, and for each case the date of the denial and the reasons for the denial, and information on the defendant’s race, ethnicity, gender, age at commitment, groups of controlling offenses, age at time of recall consideration, time served, and time remaining.

(9)The total number of people who were resentenced, the date of resentencing, and information on the defendant’s race, ethnicity, gender, age at commitment, groups of controlling offenses, age at time of recall consideration, time served, and time remaining.

(10)The total number of people released

from state prison due to prosecutor-initiated resentencing by the pilot participant, how many were released from state prison and the date of release, and information on the defendant’s race, ethnicity, gender, age at commitment, groups of controlling offenses, age at time of recall consideration, time served, and time remaining.

(g)The participating district attorneys’ offices shall provide the data listed in subdivision (f) to the evaluator on a quarterly basis.

(h)To the extent possible, the evaluation of data reported by the participating district attorneys’ offices shall be conducted in a manner that allows for comparison between the pilot participant sites. This includes, but is not limited to, collection and reporting of data at the individual case level using the same definitions. Each pilot participant shall provide any information necessary to the evaluator’s

completion of its analysis.

(i)Notwithstanding any other law, state entities, including, but not limited to, the Department of Corrections and Rehabilitation, the State Department of Social Services, and the Department of Child Support Services, shall provide any information needed for the completion of the evaluator’s analysis.

(j)The evaluator shall do all of the following:

(1)For each case considered by a pilot participant, calculate the time served by an individual and the time remaining on their sentence.

(2)Analyze the data and prepare two preliminary reports and a final report to the Legislature. The first preliminary report shall be submitted to the Legislature on or before October 1, 2022. The second preliminary report shall be submitted to

the Legislature on or before October 1, 2023. The final report shall be submitted to the Legislature on or before January 31, 2025.

(3)As part of the evaluation, the evaluator shall conduct, at minimum, four assessments, as follows:

(A)An implementation assessment shall be conducted to determine if pilot activities were implemented as intended. This assessment shall include semi-structured in-depth interviews with all relevant stakeholders, including, but not limited to, representatives from the district attorney agencies, public defender agencies and community-based organizations participating in the pilot jurisdictions. The assessment shall document the different strategies the pilot sites used, the development and implementation of the written resentencing policies and procedures, which cases were prioritized for resentencing and the referral process, and factors that

facilitated or hindered implementation.

(B)A cost study that shall estimate the resources required to implement the pilot activities, to include both new expenditures on personnel and other goods and services, and the reallocation of resources from prior activities to the pilot activities. The assessment shall include total cost and cost per case.

(C)An assessment of the estimated amount of time by which an individual’s earliest possible release date or minimum eligible parole date was advanced due to prosecutor-initiated resentencing, including a descriptive analysis of the process of cases from initial recommendation to final resentencing outcomes to document points of attrition in the process and allow for comparison between individuals based on age, gender, race, offense, and county. This assessment shall include a description of recidivism outcomes for individuals released

from prison, based on definitions created in collaboration with pilot participants. This assessment shall include a calculation of the total number of days of incarceration avoided, and amount of time by which the person’s earliest possible release date or minimum eligible parole date was advanced due to prosecutor-initiated resentencing for those individuals released from prison using data maintained by the Department of Corrections and Rehabilitation data systems.

(D)An assessment which compares, to the extent feasible, records at the individual case level with county or state administrative data files that capture utilization of government benefit and social service programs, such as Temporary Assistance for Needy Families, Supplemental Nutrition Assistance Program, and other government cash or in-kind social services, and court-ordered child support and visitation. The evaluator shall document changes in these indicators at the individual

case level during the evaluation period, in order to determine whether any observed changes can be attributed to the pilot. The evaluator shall combine the descriptive information on outcomes from the third and fourth evaluation components with the cost analysis findings from the second component to estimate the potential for cost savings to state and local governments from the pilot activities. The evaluator shall, using the data collected from the pilot, estimate the potential for cost savings to state and local governments from the pilot activities.

(k)The pilot term shall begin on September 1, 2021, and end on September 1, 2024. The evaluation term shall begin on September 1, 2021, and end on January 31, 2025.

§ 1172.1

Amended by Stats. 2025, Ch. 712, Sec. 2. (AB 812) Effective January 1, 2026.

(a)(1) When a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the Department of Corrections and Rehabilitation or to the custody of the county correctional administrator pursuant to subdivision (h) of Section 1170, the court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail,

the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence. Recall and resentencing under this section may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case.

(2)The court, in recalling and resentencing pursuant to this subdivision,

shall apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

(3)The resentencing court may, in the interest of justice and regardless of whether the original sentence was imposed after a trial or plea agreement, do the following:

(A)Reduce a defendant’s term of imprisonment by modifying the sentence.

(B)Vacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, with the concurrence of the defendant, and then resentence the defendant

to a reduced term of imprisonment.

(4)If the court has recalled the sentence on its own motion, the court shall not impose a judgment on any necessarily included lesser offense or lesser related offense if the conviction was a result of a plea bargain without the concurrence of both the defendant and the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.

(5)In recalling and resentencing pursuant to this provision, the court shall consider postconviction factors, including, but not limited to, 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. Evidence that the defendant’s incarceration is no longer in the interest of justice includes, but is not limited to, evidence that 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 court shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, if the defendant was a victim of intimate partner violence or human trafficking prior to or at the time of the commission of the offense, or if 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.

(6)Credit shall be given for time served.

(7)The court shall state on the record the reasons for its decision to grant or deny recall and resentencing.

(8)(A) Resentencing may be granted without a hearing upon stipulation by the parties.

(B)Notwithstanding subparagraph (A), if a victim of a crime wishes to be heard pursuant to the provisions of Section 28 of Article I of the California Constitution, or pursuant to any other provision of law

applicable to the hearing, the victim shall notify the prosecution of their request to be heard within 15 days of being notified that resentencing is being sought and the court shall provide an opportunity for the victim to be heard.

(9)Resentencing shall not be denied, nor a stipulation rejected, without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection. If a hearing is held, the defendant may appear remotely and the court may conduct the hearing through the use of remote technology, unless counsel requests their physical presence in court.

(b)If a resentencing request pursuant to subdivision (a) is from the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, a county correctional

administrator, a district attorney, or the Attorney General, all of the following shall apply:

(1)The court shall provide notice to the defendant and set a status conference within 30 days after the date that the court received the request. The court’s order setting the conference shall also appoint counsel to represent the defendant.

(2)There shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant currently poses an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18.

(c)A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration

for relief under this section, the court is not required to respond.

(d)After ruling on a referral authorized by this section, the court shall advise the defendant of their right to appeal and the necessary steps and time for taking an appeal.

(e)In recognition of the vital role that incarcerated persons have played protecting the people and property of California from wildfires, the Department of Corrections and Rehabilitation shall, by no later than July 1, 2027, promulgate regulations regarding the referral for resentencing of current participants in the California Conservation Camp program, former participants in the California Conservation Camp program who are still in custody, and incarcerated persons working at institutional firehouses that utilize the existing extraordinary

conduct referral process and establish all of the following:

(1)Authorize the referral for resentencing of eligible incarcerated persons who have two or more years remaining to serve in state prison on their sentence.

(2)Prohibit the exclusion of individuals from resentencing consideration based solely on past or pending parole hearing dates.

(3)Prohibit the imposition of a minimum time served requirement as a condition for resentencing consideration.

§ 1172.2

Amended by Stats. 2023, Ch. 131, Sec. 158. (AB 1754) Effective January 1, 2024.

(a)Notwithstanding any other law and consistent with paragraph (1) of subdivision (a) of Section 1170, if the statewide chief medical executive, in consultation with other clinical executives, as needed, determines that an incarcerated person satisfies the medical criteria set forth in subdivision (b), the department shall recommend to the court that the incarcerated person’s sentence be recalled.

(b)There shall be a presumption favoring recall and resentencing under this section if the court finds that the facts described in paragraph (1) or (2) exist, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18, based on the incarcerated person’s current physical

and mental condition.

(1)The incarcerated person has a serious and advanced illness with an end-of-life trajectory. Examples include, but are not limited to, metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced end-stage dementia.

(2)The incarcerated person is permanently medically incapacitated with a medical condition or functional impairment that renders them permanently unable to complete basic activities of daily living, including, but not limited to, bathing, eating, dressing, toileting, transferring, and ambulation, or has progressive end-stage dementia and that incapacitation did not exist at the time of the original sentencing.

(c)Within 10 days of receipt of a positive recommendation by the department, the court shall hold a hearing to consider whether

the incarcerated person’s sentence should be recalled.

(d)Any physician employed by the department, or their designee, who determines that an incarcerated person has a serious and advanced illness with an end-of-life trajectory or has a medical condition or functional impairment that renders them permanently medically incapacitated shall notify the chief medical executive of the prognosis. If the chief medical executive concurs with the prognosis, they shall notify the warden. Within 48 hours of receiving notification, the warden or the warden’s representative shall notify the incarcerated person of the recall and resentencing procedures and shall arrange for the incarcerated person to designate a family member or other outside agent to be notified as to the incarcerated person’s medical condition and prognosis and as to the recall and resentencing procedures. If the incarcerated person is deemed mentally unfit, the warden or the warden’s

representative shall contact the incarcerated person’s emergency contact and provide the information described in subdivision (b).

(e)The department shall refer the matter to the court for recall and resentencing within 45 days of the primary physician’s, or their designee’s, diagnosis and referral to the chief medical executive.

(f)The warden or the warden’s representative shall provide the incarcerated person and their family member, agent, or emergency contact, as described in subdivision (d), updated information throughout the recall and resentencing process with regard to the incarcerated person’s medical condition and the status of the incarcerated person’s recall and resentencing proceedings.

(g)Notwithstanding any other provisions of this section, the incarcerated person or their family member or designee

may independently request consideration for recall and resentencing by contacting the chief medical executive at the prison. Upon receipt of the request, the chief medical executive and the warden or the warden’s representative shall follow the procedures described in subdivision (d). If the department determines that the incarcerated person satisfies the criteria set forth in subdivision (b), the department shall recommend to the court that the incarcerated person’s sentence be recalled. The department shall submit a recommendation for release within 45 days.

(h)Any recommendation for recall submitted to the court by the department shall include one or more medical evaluations, a postrelease plan, and findings pursuant to subdivision (b).

(i)If possible, the matter shall be heard before the same judge of the court who sentenced the incarcerated person.

(j)The referring physician or their designees from the department shall be available to the court or defense counsel as necessary throughout the recall and resentencing proceedings.

(k)Upon recommendation to the court for recall of sentence, the incarcerated person shall have the right to counsel and, if indigent, the right to court-appointed counsel.

(l)If the court grants the recall and resentencing application, the incarcerated person shall be released by the department within 48 hours of receipt of the court’s order, unless a longer time period is agreed to by the incarcerated person. At the time of release, the warden or the warden’s representative shall ensure that the incarcerated person has each of the following in their possession: a discharge medical summary, full medical records, state

identification, parole or postrelease community supervision medications, and all property belonging to the incarcerated person. After discharge, any additional records shall be sent to the incarcerated person’s forwarding address.

(m)The secretary shall issue a directive to medical and correctional staff employed by the department that details the guidelines and procedures for initiating a recall and resentencing procedure. The directive shall clearly state that any incarcerated person who has a serious and advanced illness with an end-of-life trajectory or who is found to be permanently medically incapacitated is eligible for recall and resentencing consideration and that recall and resentencing procedures shall be initiated upon that prognosis.

(n)The provisions of this section shall be available to an incarcerated person who is sentenced to a county jail pursuant to

subdivision (h) of Section 1170. For purposes of those incarcerated persons, “secretary” or “warden” shall mean the county correctional administrator and “chief medical executive” shall mean a physician designated by the county correctional administrator, for this purpose.

(o)This section does not apply to an incarcerated person sentenced to death or a term of life without the possibility of parole.

(p)Beginning January 1, 2024, the California Judicial Council shall publicly release an annual report on the compassionate release program based on records provided by the department pursuant to this section and subsequent court records. The report shall include, but is not limited to, all of the following:

(1)The number of people who were referred to the court for recall and resentencing disaggregated by race,

ethnicity, age, and gender identity and further disaggregated by the type of criteria on which the referral was based. The report shall identify the following categories of criteria for recall and resentencing referrals:

(A)A serious and advanced illness with an end-of-life trajectory.

(B)Functional impairment.

(C)Cognitive impairment.

(2)The number of people released by the court pursuant to this section, disaggregated by race, ethnicity, age, and gender identity.

(3)The number of people denied resentencing sought pursuant to this section disaggregated by race, ethnicity, age, and gender identity.

(4)Number of people

who pass away before completing the recall and resentencing process disaggregated by race, ethnicity, age, and gender identity.

(5)Number of people denied resentencing sought pursuant to this section for lack of release plans with data disaggregated by race, ethnicity, age, and gender identity.

(6)Number of cases pending decision with data disaggregated by race, ethnicity, age, and gender identity.

§ 1172.6

Added by renumbering Section 1170.95 by Stats. 2022, Ch. 58, Sec. 10. (AB 200) Effective June 30, 2022.

(a)A person convicted of felony murder or murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, attempted murder under the natural and probable consequences doctrine, or manslaughter may file a petition with the court that sentenced the petitioner to have the petitioner’s murder, attempted murder, or manslaughter conviction vacated and to be resentenced on any remaining counts when all of the following conditions apply:

(1)A complaint,

information, or indictment was filed against the petitioner that allowed the prosecution to proceed under a theory of felony murder, murder under the natural and probable consequences doctrine or other theory under which malice is imputed to a person based solely on that person’s participation in a crime, or attempted murder under the natural and probable consequences doctrine.

(2)The petitioner was convicted of murder, attempted murder, or manslaughter following a trial or accepted a plea offer in lieu of a trial at which the petitioner could have been convicted of murder or attempted murder.

(3)The petitioner could not presently be convicted of murder or attempted murder because of changes to Section 188 or 189 made effective January 1, 2019.

(b)(1) The petition shall be filed with the

court that sentenced the petitioner and served by the petitioner on the district attorney, or on the agency that prosecuted the petitioner, and on the attorney who represented the petitioner in the trial court or on the public defender of the county where the petitioner was convicted. If the judge that originally sentenced the petitioner is not available to resentence the petitioner, the presiding judge shall designate another judge to rule on the petition. The petition shall include all of the following:

(A) A declaration by the petitioner that the petitioner is eligible for relief under this section, based on all the requirements of subdivision (a).

(B) The superior court case number and year of the petitioner’s conviction.

(2)If any of the information required by this subdivision is missing from the petition and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information.

(3)Upon receiving a petition in which the information required by this subdivision is set forth or a petition where any missing information can readily be ascertained by the court, if the petitioner has requested counsel, the court shall appoint counsel to represent the petitioner.

(c)Within 60 days after service of a petition that meets the requirements set forth in subdivision (b), the prosecutor shall file and serve a response. The petitioner may file and serve a reply within 30 days after the

prosecutor’s response is served. These deadlines shall be extended for good cause. After the parties have had an opportunity to submit briefings, the court shall hold a hearing to determine whether the petitioner has made a prima facie case for relief. If the petitioner makes a prima facie showing that the petitioner is entitled to relief, the court shall issue an order to show cause. If the court declines to make an order to show cause, it shall provide a statement fully setting forth its reasons for doing so.

(d)(1) Within 60 days after the order to show cause has issued, the court shall hold a hearing to determine whether to vacate the murder, attempted murder, or manslaughter conviction and to recall the sentence and resentence the petitioner on any remaining counts in the same manner as if the petitioner had not previously been sentenced, provided that the new sentence, if any, is not greater than the initial

sentence. This deadline may be extended for good cause.

(2)The parties may waive a resentencing hearing and stipulate that the petitioner is eligible to have the murder, attempted murder, or manslaughter conviction vacated and to be resentenced. If there was a prior finding by a court or jury that the petitioner did not act with reckless indifference to human life or was not a major participant in the felony, the court shall vacate the petitioner’s conviction and resentence the petitioner.

(3)At the hearing to determine whether the petitioner is entitled to relief, the burden of proof shall be on the prosecution to prove, beyond a reasonable doubt, that the petitioner is guilty of murder or attempted murder under California law as amended by the changes to Section 188 or 189 made effective January 1, 2019. The admission of evidence in the hearing shall be governed by the

Evidence Code, except that the court may consider evidence previously admitted at any prior hearing or trial that is admissible under current law, including witness testimony, stipulated evidence, and matters judicially noticed. The court may also consider the procedural history of the case recited in any prior appellate opinion. However, hearsay evidence that was admitted in a preliminary hearing pursuant to subdivision (b) of Section 872 shall be excluded from the hearing as hearsay, unless the evidence is admissible pursuant to another exception to the hearsay rule. The prosecutor and the petitioner may also offer new or additional evidence to meet their respective burdens. A finding that there is substantial evidence to support a conviction for murder, attempted murder, or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing. If the prosecution fails to sustain its burden of proof, the prior conviction, and any allegations and enhancements

attached to the conviction, shall be vacated and the petitioner shall be resentenced on the remaining charges.

(e)The petitioner's conviction shall be redesignated as the target offense or underlying felony for resentencing purposes if the petitioner is entitled to relief pursuant to this section, murder or attempted murder was charged generically, and the target offense was not charged. Any applicable statute of limitations shall not be a bar to the court’s redesignation of the offense for this purpose.

(f)This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner.

(g)A person convicted of murder, attempted murder, or manslaughter whose conviction is not final may challenge on direct appeal the validity of that conviction based on the changes made to Sections 188 and

189 by Senate Bill 1437 (Chapter 1015 of the Statutes of 2018).

(h)A person who is resentenced pursuant to this section shall be given credit for time served. The judge may order the petitioner to be subject to parole supervision for up to two years following the completion of the sentence.

§ 1172.7

Amended by Stats. 2024, Ch. 979, Sec. 1. (SB 285) Effective January 1, 2025.

(a)Any sentence enhancement that was imposed prior to January 1, 2018, pursuant to Section 11370.2 of the Health and Safety Code, except for any enhancement imposed for a prior conviction of violating or conspiring to violate Section 11380 of the Health and Safety Code is legally invalid.

(b)The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county shall identify those persons in their custody currently serving a term for a judgment 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. This information shall be provided as follows:

(1)By March 1, 2022, for individuals who have served their base term and any other enhancements and are currently serving a sentence based on the enhancement. For purposes of this paragraph, all other enhancements shall be considered to have been served first.

(2)By July 1, 2022, for all other individuals.

(c)Upon receiving the information described in subdivision (b), the court shall review the judgment and verify that the current judgment includes a sentence enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in subdivision (a), the court shall recall the

sentence and resentence the defendant. The review and resentencing shall be completed as follows:

(1)By October 1, 2022, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement.

(2)By December 31, 2023, for all other individuals.

(d)(1) 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, unless the court finds by clear and convincing evidence that imposing a lesser sentence would endanger public safety. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed.

(2)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.

(3)The court may consider postconviction factors, including, but not limited to, 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.

(4)Unless the court originally imposed the upper term, the court may not impose a sentence exceeding the middle term unless there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and those facts have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.

(5)The court shall appoint counsel.

(e)The parties may waive a resentencing hearing. If the hearing is not waived, the resentencing hearing may be conducted remotely through the use of remote technology, if the defendant agrees.

(f)Commencing on January 1, 2025, an individual

who has been convicted of a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively.

§ 1172.75

Amended by Stats. 2024, Ch. 979, Sec. 2. (SB 285) Effective January 1, 2025.

(a)Any sentence enhancement that was imposed prior to January 1, 2020, pursuant to subdivision (b) of Section 667.5, except for any enhancement imposed for a prior conviction for a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code is legally invalid.

or docket number, to the sentencing court that imposed the enhancement. This information shall be provided as follows:

(2)By July 1, 2022, for all other individuals.

(c)Upon receiving the information described in subdivision (b), the court shall review the judgment and verify that the current judgment includes a sentencing enhancement described in subdivision (a). If the court determines that the current judgment includes an enhancement described in subdivision

(a), the court shall recall the sentence and resentence the defendant. The review and resentencing shall be completed as follows:

(1)By October 1, 2022, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement.

(2)By December 31, 2023, for all other individuals.

than the one originally imposed.

(5)The court shall appoint counsel.

(e)The parties may waive a resentencing hearing. If the hearing is not waived, the resentencing hearing may be conducted remotely through the use of remote technology, if the defendant agrees.

(f)Commencing on January 1,

2025, an individual who has been convicted of a sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code and sentenced to death or a life term without the possibility of parole, who, as of January 1, 2025, has not had their judgment reviewed and verified by the sentencing court as provided in subdivision (c), is not eligible for recall and resentencing under this section. This subdivision does not apply retroactively.