How to Seek Resentencing Based on the LA County DA’s New Policies

Posted on December 8, 2020

As of December 8, 2020, people who have previously been convicted of a crime in Los Angeles County may be able to petition the court for a reduced sentence or even an immediate release. And people who are currently being held on bail may be able to get released on their own recognizance right away.

This new policy to keep as many people out of jail and prison as possible is at the heart of the sweeping reforms instituted by the new Los Angeles District Attorney (LADA) George Gascon. His election victory signals a county-wide commitment to rehabilitate offenders rather than punish them.¹

How does the resentencing process work?

Defendants who have been convicted of a crime in Los Angeles County should consult with their criminal defense attorneys to see if they are eligible for a lesser sentence or immediate release under LADA’s new directives. If so, the attorney can file a motion with the court to place the matter on calendar.

In the meantime, the defendant’s attorney will reach out to the applicable deputy district attorney about the case. If necessary, the attorney will present mitigating evidence showing that the defendant deserves early release under the new policies. The attorney and the prosecutor may then stipulate to a resentencing and early release, which the judge will likely rubber stamp.

Who is eligible for resentencing in Los Angeles?

Many defendants are now qualified to have their criminal sentences reduced. Common examples are defendants whose sentences included an enhancement for:

• Strikes under the Three Strikes law;
• Special circumstances allegations in life without parole cases;
• STEP Act (gang enhancement under PC 186.22);
• Proposition 8;
• Bail- or OR-release violations;
• 5-year priors; and/or
• 3-year priors

And from now on if a crime is probationable, the court will grant probation unless the D.A. can show “extraordinary circumstances” that justify incarceration. And if a crime is not probationable, the court will grant a sentence on the low end of the sentencing range unless the D.A. can show “extraordinary circumstances” that justify a higher sentence.

Note that any defendants sentenced on August 10, 2020 or later are definitely eligible for a resentencing if their sentence involved any of the above issues, and prosecutors cannot oppose the new sentencing. For any defendants sentenced earlier, there is still a high chance the court will agree to a reduced sentence in accordance with the new directives.²

Nearly everyone arrested for a crime in Los Angeles County will be released on their own recognizance.

What if a defendant is currently being held on bail?

Defendants currently in custody on bail for a misdemeanor or for a non-serious, non-violent felony should contact their criminal defense attorney. The attorney can calendar a court hearing to ask that the defendant be given O.R. release immediately.³

Read the new Los Angeles County District Attorney’s new policy directive eliminating cash bail.

Do I need an attorney to get a new sentence?

It is highly recommended that defendants seek out an attorney to pursue resentencing as soon as possible. According to LADA’s new directives, prosecutors will be reviewing past cases in an effort to get eligible defendants released early. But this effort will likely take years. Defendants who hire an attorney can get their case near the front of the line.

Legal References

About the Author

Neil Shouse

A former Los Angeles prosecutor, attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT). He has been featured on CNN, Good Morning America, Dr Phil, Court TV, The Today Show and Court TV. Mr Shouse has been recognized by the National Trial Lawyers as one of the Top 100 Criminal and Top 100 Civil Attorneys.