by Ivette Alé
Thank you to everyone who was able to join one of our three calls to discuss the impacts of SB 1393 and SB 1497. It was great to learn from and build with everyone. We will continue to keep you posted as new information emerges.
Below are notes from the calls, including answers to a few of the questions that were posed. The Ella Baker Center for Human Rights does monthly mailings to folks on the inside. Quick reminder to please email firstname.lastname@example.org with your loved one’s contact information, including their CDCR number, so that we can include them in our updates.
Attached, you will find a document that answers all the frequently asked questions about SB 1393, a law that amends Penal Code Sections 667 and 1385 to end the mandatory application of the 5-year sentence enhancement given for each prior serious felony (PC §1192.7(c) and PC §1192.8) on a person’s record at the time when a person is currently charged with a serious felony.
Although the law is not retroactive, we discussed the possibilities of resentencing for your loved one currently serving the enhancement.
Here are the possibilities:
First, if there is an error in your sentence, you can appeal your sentence. If the court, on appeal, agrees that there is a mistake they will send the case back to the sentencing judge for resentencing.
Second, if you have been sentenced within the last 120 days, the court has the authority to recall your sentence and resentence you under PC §1170(d)(1). You can invite the court to recall your sentence, although there is no formal petition/appeal. In general, this only applies to people who were sentenced by trial, not by a plea agreement, though there are exceptions.
Third, also under PC §1170(d)(1), after 120 days the Secretary of the Department of Corrections and Rehabilitation or the county correctional administrator (County Sheriff) may make a recommendation to the court to recall your sentence and resentence you.
Fourth, AB 2942 (Ting), which goes into effect January 1, 2019, amends Section 1170 of the Penal Code, authorizing a court to also accept recommendations from the Board of Parole Hearings, or the District Attorney of the county in which the defendant was sentenced, to recall a sentence and resentence that person to a lesser sentence. AB 2942 was championed by The Sentence Review Project, which is now working to get district attorneys to review cases for potential resentencing. The project is prioritizing those who have been incarcerated 10+ years, with some restrictions based on the type of conviction. If this applies to your loved one, request a review of their case by following this link: https://www.sentencereview.
We are in communication with attorneys at CDCR to discuss how those who are currently serving a 5-year enhancement can be eligible for resentencing.
Here is what they shared about their review process:
CDCR has assigned an attorney to review the new legislation and agrees that those who are currently incarcerated and affected by its passage should be considered under the new PC 1170(d) (resentencing) program.
They are currently working with their Office of Research to determine which individuals will be impacted.
After they receive the report on how many people are affected, they will consider how to prioritize those individuals on the list for processing.
They will contact us with their update.
We are working to stay in contact with CDCR throughout this process so that we can pass along any updates. Currently, CDCR is saying there is no need for incarcerated folks or their families to submit a request for PC 1170(d) consideration.
There are several resources available for folks impacted by felony murder. Please see the FAQ, the resentencing petition and the resentencing guide. The guide does reference information regarding people with LWOP sentences and their eligibility for resentencing (see page 28).
Visit Restore Cal’s website for more information: https://restorecal.org/
Connect your incarcerated loved one to Initiate Justice for more information on the felony murder rule, Prop 57 and voting rights and more: https://www.initiatejustice.
Questions from Families:
Are there lawyers working on these cases? If your loved one is recommended for resentencing they will be provided a court-appointed attorney to support them in the resentencing process. We anticipate local public defenders will be representing these people.
Will our loved ones have to wait for their annual review to know if they have been recommended for resentencing? We think it will be a separate process.
Should we tell our current attorneys about 1170(d)? Yes.
Will there be a way to access the names that are submitted for resentencing, like a website? We will ask CDCR about the possibility of posting names publicly and/or how they will be notifying impacted folks.
How do we contact the CDCR Secretary?
Secretary of Operations, Division of Adult Institutions
California Department of Corrections and Rehabilitation
P. O. Box 942883, Sacramento CA. 94283