3 Ways to Get a Criminal Sentence Modified in California

Posted by Neil Shouse | Mar 15, 2019 | 0 Comments

prisoner in jail

There are three 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 his sentence, and
  3. brings a writ of habeas corpus petition.

There are also two ways in which 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.

What is a motion for resentencing?

A motion for resentencing (“MFR”) is a legal motion that:

  • a prisoner (or his attorney) files with the court, and
  • in it, asks the judge to modify, or alter, his sentence.

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

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

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

  • deportation, or
  • other dire immigration consequences.

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).

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 there were any legal errors that 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.

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

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.

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.

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.

There are no strict deadlines for filing a habeas corpus 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.

What is a recall by the court?

A court may, on it owns 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.

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.

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 6 months, and
  2. the release of the prisoner would not threaten public safety.

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

  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.

About the Author

Neil Shouse

Southern California DUI Defense attorney Neil Shouse graduated with honors from UC Berkeley and Harvard Law School (and completed additional graduate studies at MIT).


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