Motion to Modify a Sentence (Resentencing) in California


A motion for resentencing is brought by a person convicted and sentenced for a crime, asking the court to reduce or modify the sentence. The motion typically seeks to reduce jail or prison time, allow the defendant to be released from custody, or to ease the conditions of probation. 

There is currently a surge of resentencing motions being brought by inmates seeking release from custody because of the COVID 19 dangers in jails and prisons. Vulnerable inmates, especially the elderly and those with underlying medical conditions, are asking to be allowed to serve their remaining time in home quarantine confinement. These inmates are at high risk of becoming seriously ill if an outbreak spreads in the penal institutions. 

A prisoner can file this petition no matter if he was sentenced for a misdemeanor or a felony. In ruling on the motion, 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,
  • the sentence imposed was illegal, or
  • the court committed judicial error.

In addition to an MFR, there are four ways in which a criminal sentence can get modified. These are:

  1. a recall by the court,
  2. by filing an appeal,
  3. in bringing a writ of habeas corpus petition, and
  4. a recall by the court due to the health of a prisoner.

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:

Our California criminal defense attorneys will highlight the following in this article:

judge in court ruling on a resentencing motion
A motion for resentencing seeks to get a criminal sentence reduced or modified.

1. What is a motion to modify a sentence?

A petition to modify a sentence is filed by a person who has been both convicted of a crime and sentenced for that crime. In the motion, the prisoner asks the court to modify his sentence. For example, he might ask the judge for:

  • a reduction in the length of his sentence, or
  • a change in his sentencing conditions.

An MFR can be filed by a prisoner, but it is often best if his criminal defense attorney drafts and files it.

2. How does the court process work?

California law states that a petition to modify a sentence gets filed with the court that sentenced the petitioner. A prisoner can file this petition no matter if he was sentenced for a misdemeanor or a felony. In response to the motion, the judge can either:

  • change the sentence,
  • postpone a sentence,
  • revoke a sentence, or
  • issue a stay of payment of fines.

An MFR can be filed with the court at any time after the original sentence provided that there is found to be good cause. For example, good cause would include a request for resentencing under Proposition 47.

Please note that the court may also decide to modify a sentence, on its own behalf, up to 120 days after sentencing.1 Please see 4.1 below.

judge holding documents
A judge can modify a sentence in certain circumstances

3. When will a judge grant a resentencing?

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., a judge made an error in weighing evidence admitted during sentencing).

In addition, resentencing motions are typically brought when there have been changes in the law. For example, four common examples of resentencing motions that are brought in California, due to a change in the law, are:

  1. Senate Bill 1437 resentencing,
  2. Proposition 47 resentencing,
  3. Proposition 36 / 3 Strikes resentencing, and
  4. Proposition 64 resentencing.

3.1 Senate Bill 1437 resentencing

Senate Bill 1437 was signed into law in 2018 and changed California's felony murder law.

A critical feature of SB 1437 is that it is retroactive, meaning it applies to defendants that were accused of felony murder under the old law. This means some persons accused of felony murder, under the old law, may petition to try and get a reduction in their sentence.

SB 1437 states that a person is eligible for a reduced sentence if three conditions are met. These are:

  1. the defendant was convicted of felony murder under a natural and probable consequences theory;
  2. the defendant was convicted of first- or second-degree murder; and,
  3. the defendant would not have been convicted of murder under California's new felony murder law.2

3.2 Proposition 47 resentencing

Proposition 47, the “Safe Neighborhoods and Schools Act,” became an effective California law in 2014.

The law reduced the penalties for certain theft crimes and drug crimes, making these offenses punishable as misdemeanors as opposed to felonies.3

In terms of resentencing, Proposition 47 means that people already facing felony penalties (for the certain theft and drug crimes) can bring a motion to modify the sentence so that they would receive a misdemeanor related sentence.

3.3 Proposition 36 / 3-strikes resentencing

Proposition 36 became California law in 2012 and it made a key change to the State's Three Strikes Law.

In particular, it imposed less severe sentences for non-violent and non-serious third strike offenders.4

The best thing about the California three strikes reform initiative is that it applies retroactively. This means that, if you or your loved one were sentenced to a lengthy "third strike" sentence under the old law, and the third offense was not a serious or violent offense, you (or they) can now apply to be resentenced and have the jail or prison time reduced.

3.4 Proposition 64 resentencing

Proposition 64, also known as the “Adult Use of Marijuana Act,” became California law in 2016.

The law legalized the use of small amounts of marijuana and the sale of the drug by businesses licensed to do so.5

Proposition 64 does provide for resentencing for people convicted under California's previous marijuana laws who would serve a lighter sentence under the marijuana legalization regime.

The judge is supposed to presume that an inmate meets the criteria for Proposition 64 resentencing unless a prosecutor opposes his petition and proves by "clear and convincing evidence" that the prisoner doesn't meet the criteria. The judge is then supposed to resentence him unless s/he determines that doing so would pose an unreasonable risk of danger to public safety.6

Marijuana legalization also means that a guilty party can apply to have his conviction redesignated from a felony to a misdemeanor, or from a misdemeanor to an infraction.7

4. Are there other ways to get a sentence modified?

In addition to an MFR, there are four ways in which a criminal sentence can get modified. These are:

  1. a recall by the court,
  2. by filing an appeal,
  3. in bringing a writ of habeas corpus petition, and
  4. a recall by the court due to the health of a prisoner.

4.1 Recall by the court

A court may, on it owns behalf and without an MFR getting filed, decide to modify a sentence. It may do this within 120 days of imposing its sentence.8

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.9

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.10

4.2 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). Prisoners can file an appeal to ask the court to reconsider the sentence it imposed.

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.

4.3 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.11

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.12

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.13

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.

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

4.4 Recall due to health of prisoner

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.14

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.15

5. Can a sentence be modified when a prisoner is not a U.S. citizen?

A sentence can be modified when a prisoner is not a U.S. citizen.

Note that if a prisoner is not a U.S. citizen, a California criminal conviction (and a resulting sentence) can lead to deportation or other dire immigration consequences. Given this, it can be in the best interests of a non-U.S. citizen prisoner to file a MFR.

Please also note that resentencing can help non-U.S. citizen prisoners if they have been convicted of an “aggravated felony.”

Consequences of an aggravated felony conviction can include:

  • deportation,
  • denial of permission to enter the U.S.,
  • a permanent ban on seeking a U.S. visa or green card, and
  • inability to receive asylum status in the U.S.

Crimes may often count as aggravated felonies when the offender receives a jail or prison sentence of at least one year.

This means it is a common tactic of an experienced immigration attorney, when his client has been convicted of an aggravated felony, to get a sentence reduced from 1 year to less in order to avoid deportation.

Call us for help…

motion for resentencing california legal defense
Call us for help at (855) LAW-FIRM

If you or someone you know is interested in filing a petition to modify a sentence, we invite you to contact us for a free consultation. We can be reached 24/7 at 855-LawFirm.

Legal References:

  1. California Penal Code 1170(d)(1) PC.

  2. California Senate Bill 1437, Section 4, added Penal Code 1170.95(a)(1)-(a)(3) PC.

  3. See California Secretary of State, Official Voter Information Guide: Proposition 47.

  4. California Penal Code 667(e)(2)(C).

  5. See full text of Proposition 64 (Adult Use of Marijuana Act)csx3\.30.

  6. See full text of Proposition 64, new Health & Safety Code section 11361.8 HS.

  7. See same.

  8. California Penal Code 1170(d)(1) PC.

  9. See same.

  10. See same.

  11. California Penal Code 1473 PC.

  12. In re Clark, (1993) 5 Cal.4th 750, 764. ("Our cases simultaneously recognize, however, the extraordinary nature of habeas corpus relief from a judgment which, for this purpose, is presumed valid.").

  13. In re Harris, (1993) 5 Cal.4th 813, 829.

  14. California Penal Code 1170(e) PC.

  15. See same.

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