Life Without Parole (LWOP) Sentencing in California

Life without parole (“LWOP”) is a prison sentence in a California criminal case in which a convicted person is committed to state prison for the rest of their life without the possibility of parole. LWOP is the harshest sentence short of the death penalty and is reserved for only a handful of the most serious crimes.

However, there are many ways a prisoner can challenge an LWOP sentence after it has been imposed, such as commutation petitions, appeals, and writ of habeas corpus petitions.

In this article, our Los Angeles criminal defense attorneys will address the following key issues regarding crimes carrying life without parole in California.

• 1. LWOP vs. Death Penalty
• 2. When LWOP Is Imposed
• 3. LWOP Crimes
• 4. Fighting LWOP Sentences
• 5. Meaning of “Life Sentence”
• Frequently Asked Questions
• Additional Reading

All sentences in the California criminal justice system are subject to clemency, or pardoning, from the governor.

1. LWOP vs. Death Penalty

In California, life without parole (LWOP) is a sentence for a crime that includes a life in prison term without the possibility of a parole hearing.

LWOP sentencing is different from the death penalty. A death sentence means a defendant is sentenced to death by execution. LWOP means that a guilty person will spend the rest of their life in prison and will eventually die in prison, though this death will be by natural causes and not by execution.

2. When LWOP Is Imposed

Some California statutes set forth the prison sentence that a defendant may receive if they are guilty of a given crime. This sentence could include LWOP. For example, California Penal Code 190 PC states:

“Every person guilty of murder in the first degree shall be punished by death, imprisonment in the state prison for life without the possibility of parole, or imprisonment in the state prison for a term of 25 years to life.”¹

Meanwhile, some California statutes are “sentencing enhancement statutes” that impose harsher sentences—such as LWOP—for a crime if certain facts take place in the commission of that offense.

For example, Penal Code 667.61 is California’s “One Strike” sentencing enhancement statute. Depending on the facts of a case, PC 667.61 could extend a sentence by:

• 15 years,
• 25 years, or
• life in prison.²

To see how this works, consider a defendant who is guilty of sexual penetration, per California Penal Code 289. If the defendant also tortured the victim while committing the crime of sexual penetration, PC 667.61 says that the defendant’s ultimate sentence could be extended by 25 years to LWOP.³

Former Governor Jerry Brown ended LWOP for juveniles, and Drop LWOP is urging Governor Gavin Newsom to end LWOP for good.

3. LWOP Crimes

Under California sentencing laws, some crimes that can lead to life without parole sentencing are:

• first-degree murder, per Penal Code 187,
• felony-murder, per Senate Bill 1437,
• rape, per Penal Code 261, if the defendant had a prior conviction of rape,
• sexual penetration, per Penal Code 289, if the defendant tortured the victim while committing the crime,
• lewd or lascivious acts, per Penal Code 288, if the defendant committed the crime during the commission of a burglary,
• spousal rape, per Penal Code 262, if the defendant inflicted great bodily injury on the victim in the commission of the offense, and
• treason, per Penal Code 37.

4. Fighting LWOP Sentences

Three main ways a prisoner can challenge an LWOP sentence that a California court has already imposed include:

1. petition the governor for a commutation,
2. file an appeal, and
3. bring a writ of habeas corpus petition.

1) Petition for a Commutation

Inmates currently serving a jail or prison sentence in California can petition to have the governor commute their sentence. A commutation is a type of clemency, or pardon, that does not change or reverse a finding of guilt, although it reduces or eliminates a prisoner’s sentence.

Commutation of a sentence is a rare form of clemency.⁴ It is usually granted only where it is apparent that a sentence was too harsh because of:

• the prisoner’s young age at the time they committed their offense,
• evidence of intimate partner battering or other abuse, and/or
• laws that were too harsh at the time of sentencing.

2) File an Appeal

An appeal is a request for a higher court (that is, an appellate court) to review a decision of a lower court (that is, the Superior Court, frequently referred to as the trial court). The court can then overturn a conviction or sentence if it determines:

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

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

3) File a 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 are serving their sentence.⁵

A California writ of habeas corpus is supposed to be what the law calls an “extraordinary remedy”—that is, it is supposed to be used only in extreme and unusual circumstances.⁶

As a general rule, a prisoner cannot file a petition for habeas corpus unless they have done something that judges call “exhausting one’s remedies.” This means a party must file all possible appeals of a California criminal conviction before bringing an HCP.⁷

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 they do, they will have to justify the delay in the petition.

5. Meaning of “Life Sentence”

In California, “life sentence” is an umbrella term that encompasses both:

• life sentences without the possibility of parole (LWOP) and
• life sentences with the possibility of parole.

Whether or not a defendant gets parole turns on the underlying crime and any sentencing enhancements.⁸

Note that once a defendant is convicted of a crime carrying life without the possibility of parole, they cannot be released on bail pending the sentencing hearing.⁹

Frequently Asked Questions

Are there other ways to get LWOP resentencing?

Yes. In recent years, California has passed several sweeping criminal justice reforms that provide new avenues for defendants serving life without parole to seek a reduced sentence or a chance at a parole hearing. Even if you have already exhausted your direct appeals, our California criminal defense attorneys can help you explore these new statutory petitions.

The most common new resentencing pathways include:

• Felony Murder Resentencing (SB 1437): Under Penal Code 1172.6, if you were sentenced to LWOP under the felony murder rule but you were not the actual killer, did not intend to kill, and were not a “major participant” who acted with “reckless indifference to human life,” you may be eligible to have your murder conviction vacated and your sentence significantly reduced.
• The California Racial Justice Act: Under Penal Code 745, defendants can challenge their LWOP conviction or sentence if they can demonstrate that racial bias played a role in their case—whether through biased statements by the judge, prosecutor, or jury, or through statistical evidence of systemic racial disparities in how LWOP is charged in your county.¹⁰

Can the CDCR or the District Attorney recommend me for resentencing?

Yes. Under Penal Code 1172.1 (formerly PC 1170(d)(1)), an LWOP sentence can be recalled, and the defendant can be resentenced to a lesser term, if a recommendation is made to the court by:

• The Secretary of the California Department of Corrections and Rehabilitation (CDCR),
• The Board of Parole Hearings (BPH), or
• The District Attorney of the county where you were sentenced.

If a recommendation is made, the court will hold a hearing to consider post-conviction factors, such as your disciplinary record, rehabilitation efforts, and whether you were a victim of abuse. We often work closely with DAs and the CDCR to present “mitigation packets” to encourage them to make this recommendation.

Do juvenile offenders serving LWOP ever get a parole hearing?

Yes. Thanks to Senate Bill 394 (codified in Penal Code 3051), California abolished true “life without parole” for juveniles. If you were sentenced to LWOP for a crime you committed before you turned 18 years old, you are legally entitled to a Youth Offender Parole Hearing during your 25th year of incarceration.

During this hearing, the parole board is required to give “great weight” to the diminished culpability of youth and your subsequent growth and maturity in prison.

Is there compassionate release for inmates serving life without parole?

Yes. Under Penal Code 1172.2, an inmate serving LWOP can be recommended for “compassionate release” if they suffer from a terminal illness with a life expectancy of less than 12 months, or if they are permanently medically incapacitated and require 24-hour care. If the court finds that the inmate no longer poses a threat to public safety, they can recall the LWOP sentence and release the inmate.

Additional Reading

For more information, see our related articles:

• 5 crimes that will get you “life without parole” in California
• Indeterminate Sentencing in California – How It Works
• Consecutive vs Concurrent Sentences – California Law
• Appeals & Resentencing in “Three Strikes” Cases: (Reducing Prison Terms After Proposition 36)
• Penal Code § 12022.53 PC – California’s “10-20-Life” Law
• California Penal Code 667 PC – Habitual Criminals
• California “Three-Strike” Law – A Defense Lawyer Explains
• Board of Parole (Lifer) Hearings in California – How It Works
• Resentencing – How to Get Sentences Modified in California

Also visit the California Department of Corrections and Rehabilitation (CDCR) official site.

Legal References: