3 Ways to Get a Criminal Sentence Modified in California

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

Can I modify my jail or prison sentence during the COVID-19 crisis?

Criminal defense attorney Michael Becker explains how to modify your jail or prison sentence, or terms of probation, due to the current health crisis with the COVID-19 epidemic. As local and nationwide jails begin the process of releasing inmates to fight overcrowding and create a safer environment for low-risk inmates, there will be many opportunities for incarcerated men and women in California to modify their sentences and terms of probation. Those inmates inmates whom are elderly or who suffer from underlying health concerns such as diabetes, asthma, other respiratory diseases such as COPD, and of course those with weakened immune systems from cancer or HIV, most likely will be able to get their sentences reduced, or even get put on house arrest. Any inmate who has to leave the state to care for endangered family, or who cannot attend alcohol or other classes due to the COVID-19 virus, will certainly be able to get those classes rescheduled, and/or perhaps transfer their probation to another state. More info at or call (888) 327-4652 for a free consultation. If you or a loved one is charged with a crime we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.

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.
prisoner in jail

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

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.


There are no comments for this post. Be the first and Add your Comment below.

Leave a Comment

Comments have been disabled.

Free attorney consultations...

The attorneys at Shouse Law Group bring more than 100 years collective experience fighting for individuals. We're ready to fight for you. Call us 24 hours a day, 365 days a year at 855-LAW-FIRM for a free case evaluation.

Regain peace of mind...

Shouse Law Defense Group has multiple locations throughout California. Click Office Locations to find out which office is right for you.

Office Locations

Shouse Law Group has multiple locations all across California, Nevada, and Colorado. Click Office Locations to find out which office is right for you.

Call us 24/7 (855) 396-0370