3 Ways to Get a Criminal Sentence Modified in California

There are three primary ways in which a person can try to modify a criminal sentence in California. These are when the person:

1. files a motion for resentencing,
2. appeals the sentence, and
3. brings a writ of habeas corpus petition.

There are also two ways a court can modify a sentence on its own accord. These are when the court:

1. recalls a sentence within 120 days after it is imposed, and
2. recalls a sentence because of the health of a prisoner.

1. What is a motion for resentencing?

A motion for resentencing (“MFR”) is a legal motion that a defendant (or his/her attorney) files with the court, and in it, asks the judge to modify or alter his sentence.¹

An MFR is also referred to as a “petition to modify a sentence.”

In response to the petition, a judge can:

• deny it,
• change a sentence,
• postpone a sentence, or
• revoke a sentence.

The court will often decide to change a sentence if:

• a clerical error was made (for example, the clerk entered the wrong jail term),
• the sentence imposed was illegal (for example, it was not authorized under California law), or,
• the court committed judicial error (for example, it did not consider certain sentencing evidence).

An MFR can be filed with the court at any time after the original sentence. This is true provided that there is good cause to bring it.

Please note that a convict can file a petition to modify a sentence even if he/she is not a U.S. citizen. In this case, the MFR is a type of post-conviction relief under criminal immigration law, and it that can remove the risk of:

• deportation, or
• other dire immigration consequences.

2. What is an appeal of a sentence?

An appeal of a sentence is a request by a prisoner for a higher court (that is, an appellate court) to modify a sentence imposed by a lower court (that is, the Superior Court, frequently referred to as the trial court).²

Please note that an appeal is not a new trial. The appellate court does not:

• retry a case,
• examine new evidence, or
• accept testimony from witnesses.

The only job of the appellate court is to review the proceedings that took place in the trial court to determine if any legal errors substantially affected the rights of a party.

On appeal, the appellate court can overturn a sentence if it determines two things. These are:

1. that the trial court committed some type of legal error, and
2. that the error “prejudiced” a party.³

“Prejudice” is shown when there is a reasonable probability that the legal error made a difference in the outcome of the case.

3. What is a writ of habeas corpus petition?

In California, anyone who is in prison can bring a writ of habeas corpus petition (HCP) to challenge their imprisonment or the conditions under which they’re serving their sentence.⁴

A California writ of habeas corpus is supposed to be what the law calls an extraordinary remedy, meaning it is supposed to be used only in extreme and unusual circumstances.⁵

As a general rule, a prisoner cannot file a petition for habeas corpus unless he has done something that judges call “exhausting one’s remedies.” This means a party must file all possible appeals of a California criminal petition before bringing an HCP.⁶

There are no strict deadlines for filing a habeas corpus petition, as long as it is filed while a party is in custody.

However, a prisoner cannot delay filing a habeas corpus petition for too long. If he does, he will have to justify the delay in his petition.

4. What is a recall by the court?

A court may, on its own behalf and without an MFR getting filed, decide to recall a sentence under California Penal Code 1170(d). It may do this within 120 days of imposing its sentence.⁷

If a judge does recall a sentence, he/she removes it and orders a new sentence that can be no greater than the initial sentence.

In determining whether to recall a sentence, a judge may consider the following factors:

• an inmate’s disciplinary record,
• an inmate’s record of rehabilitation,
• the inmate’s risk of future violence, and
• the interests of justice.

5. What is a recall for health reasons?

A court does have the authority to recall a sentence due to the health concerns of a prisoner.

Under California Penal Code 1170(e), the court may decide to recall a sentence if:

1. the prisoner is terminally ill and is expected to die within six months, and
2. the release of the prisoner would not threaten public safety.⁸

PC 1170(e) also allows a court to recall a sentence if:

1. 1. the release of the prisoner would not threaten public safety, and
   2. the prisoner is permanently medically incapacitated (e.g., in a coma) and requires 24-hour total care.⁹

6. Does California law recognize forms of alternative sentencing?

Yes. There are five common types of alternative sentencing in California criminal cases. These are:

1. community service,
2. home detention,
3. drug diversion programs (per Penal Code 1000),
4. drug treatment programs (per Proposition 36), and
5. probation.

As to the latter, California law allows for either:

• misdemeanor (or summary) probation – for misdemeanor offenses, or
• felony (or formal) probation – for felony offenses.

“Alternative sentencing” is when a person completes his/her criminal sentence in the community (or at home) rather than in custody in county jail or state prison.

Additional Reading

For more in-depth information, refer to the following:

• Fixing California Sentencing Law – The Problem with Piecemeal Reform – McGeorge Law Review.
• Modifying Unjust Sentences – Georgia Law Review.
• The Wild West of Sentencing Reform: Lessons from California – Crime & Justice.
• The California Determinate Sentence Law – Criminal Law Bulletin.
• Changing the Sentence without Hiding the Truth: Judicial Sentence Modification as a Promising Method of Early Release – William and Mary Law Review.

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