Arrested? Suffering from a past conviction?

Call us or Click Here to schedule your free, in-person (weekends often available).

If our operators are busy, leave a detailed voice message.

Contact Us Now!

Motion to Modify a Sentence

i.e. Resentencing in California

If you’ve already been convicted and sentenced for a crime, you are your attorney can file a motion for resentencing which asks the court to reduce or modify your sentence. The motion generally seeks to reduce the amount of time you stay in jail or prison, thus allowing you (the defendant) early release from custody or otherwise a relaxation of your probation conditions.

Currently, California criminal courts are experiencing a surge in resentencing motions filed by inmates or their attorneys seeking to be released from custody on account of coronavirus-related dangers in correctional institutions such as jail or prisons. inmates who are vulnerable to infection, particularly elderly inmates as well as those who suffer from underlying medical conditions are motioning courts to allow them to serve the remainder of their sentence under home quarantine confinement. These inmates are at high risk of becoming severely or even mortally ill due to coronavirus outbreaks in California’s penal institutions.

A prisoner or his lawyer can file this petition regardless of whether the prisoner was sentenced for either a misdemeanor or felony. The judge has the following options when ruling on your motion:

  • Issue a denial of your motion
  • Change your sentence
  • Postpone your sentence
  • Revoke your sentence

Often, the court may decide to change your sentence if:

  • Some clerical error was made,
  • The sentence imposed upon you was illegal, OR
  • The court committed some judicial error.

In addition to a motion for resentencing, the following four ways can result in your criminal sentence being modified:

  • Court issues a recall;
  • You can file an appeal;
  • You can bring about a writ of habeas corpus petition; AND
  • The court can recall your sentence on account of your health.

Take heed that a prisoner can submit a petition to modify his or her sentence even if he is not a citizen of the United States. In this situation, emotion for a resentencing is essentially a specie of post-conviction relief for immigration purposes which can eliminate the risk of being deported or sustaining some other harmful immigration consequence.

Our California criminal defense law firm will discuss the following:

  • What a Motion to Modify a Sentence Is
  • How the Court Process Works
  • When a Judge Will Grant Resentencing
  • Other Means of Sentence Modification
  • Sentence Modification for Non-U.S. Citizens

1. What a Motion to Modify a Sentence Is

A person who has been convicted of a crime, as well as a sentence for that crime, may bring about a petition to modify his or her sentence (or his lawyer can bring it about). For instance, the petitioner may motion the judge for:

  • A reduction of the length of his sentence, OR
  • A change in the conditions of his sentence.

A motion for resentencing can be filed by a California prisoner but it is optimal if his criminal defense lawyer drafts and files it on his behalf.

2: How the Court Process Works

California law stipulates that a petition to modify a sentence is filed with the criminal court that issued the sentence. A California inmate can file this motion regardless of whether he was sentenced for a felony or misdemeanor. The judge can take the following actions in response to the motion:

  • Change the sentence,
  • Delay sentencing,
  • Revoke sentencing, OR
  • Place a stay on the payment of fines.

A motion for resentencing can be filed with the criminal court at any time after the original sentence was issued so long as it is grounded on good cause. For instance, good cause could be based on a request to be resentenced according to Proposition 47.

Take note that the court may also choose to modify a sentence on its behalf up to 120 days after the court issued the sentence. California Penal Code 1170(d)(1) PC.

3. When a Judge Will Grant Resentencing

Generally, the court may choose to change your sentence if:

  • A clerical mistake was committed, for example, the wrong jail term was entered by the court clerk,
  • The sentence which the court imposed was illegal, for instance, if this sentence was not authorized by California law, OR
  • The court made some judicial error, for example, the judge committed some error in weighing the evidence that was admitted during sentencing.

Additionally, a motion for resentencing may generally be brought when changes to the law have occurred. For example, the following changes in California law may form the basis of a resentencing motion:

  • Proposition 1437 resentencing,
  • Proposition 47 resentencing,
  • Proposition 36 (three strikes) resentencing, AND
  • Proposition 64 resentencing.

3(a) Resentencing Under Senate Bill 1437

In 2018, Senate Bill 1437 was signed into law, which changed the law regarding California’s felony murder rule.[1]

A critical component of Senate Bill 1437 is that it is retroactive, such that it applies to defendants who were accused of felony murder under the old law. Practically speaking, this means some inmates who were convicted of felony murder under the prior law may file a motion to attempt to get a reduction in their sentence.

Senate Bill 1437 stipulates that a defendant is eligible for a reduced sentence so long as the following three conditions are fulfilled:

  • The defendant was convicted of felony murder pursuant to a theory of “natural and probable consequences,”
  • The defendant sustained a conviction of first-degree murder or second-degree murder, AND
  • The defendant would not have sustained a conviction of murder under the new felony murder law in California. California Senate Bill 1437, section 4, added California Penal Code §1170.95(a)(1) - (a)(3).

3(b) Resentencing Under Proposition 47

Proposition 47, also known as the “Safe Neighborhoods and Schools Act”[2] took effect in 2014 in California.

This law reduces penalties for certain specified drug crimes and theft crimes, rendering these offenses punishable as misdemeanors rather than as felonies.[3]

Practically speaking, Proposition 47 allows the filing of a motion to modify sentence (for certain specified drug crimes and theft crimes). This permits people facing felony penalties to receive a misdemeanor sentence instead.

3(c) Resentencing Under Proposition 36

Proposition 36, otherwise known as “3-strikes sentencing”, amended the existing Three Strikes Law in 2012.

With the passing of Proposition 36, non-violent and non-serious third strike offenders now receive less harsh sentences compared to in the past.[4]

One of the most important changes that Proposition 36 brought was its retroactive application. This means that persons that received severe sentences under the old law can apply for resentencing under the current law and have the jail or prison time reduced if the third offense was not a serious or violent offense.

3(d) Resentencing Under Proposition 64

Control, Regulate and Tax Adult Use of Marijuana Act, otherwise known as “Adult Use of Marijuana Act” or AUMA,[5] was passed in 2016.

Under this law, the use of small amounts, cultivation, and sale of marijuana by licensed dispensaries was legalized.

Proposition 64 allows you to also apply for resentencing if you were previously convicted under the old California marijuana laws, and in turn, you will receive a lighter sentence.

According to Proposition 64, it will be presumed that an inmate meets the criteria for resentencing unless a prosecutor opposes the application and proves by clear and convincing evidence that said prisoner does not meet the criteria. The judge will then determine if the resentencing would pose an unreasonable risk of danger to public safety.[6]

In addition to resentencing, people previously convicted under the old marijuana laws may apply for a reduction of their conviction from a felony to misdemeanor and misdemeanor to infraction.

4. Other Means of Sentence Modification

The other possible means to have your sentence modified are through the following:

  • Court Recall
  • Appeals
  • Writ of Habeas Corpus petition
  • Recall of sentence due to the poor health of a prisoner

4(a) Court Recall

The court may, on its own volition, modify a sentence within 120 days after the sentencing date.[7]

The judge will order a new sentence which cannot be more severe than the original sentence. To determine the appropriateness of recalling a sentence, the court considers the following:

  • Disciplinary record of the inmate
  • Record of rehabilitation
  • Risk of future violence
  • Interest of justice

4(b) Appeals

An appeal is a request made to an appellate court to review the decision of a lower court. It is important to take note that the appellate court will not normally disturb the ruling of the lower court. They will not retry the case nor receive new evidence and witnesses. Rather, the appellate court will only review the proceedings in the lower court to determine if there was a misapplication of law that significantly affects the right of a party in a case.

The appellate court will only overturn the ruling of a lower court if

  • There was a misapplication of the law
  • Prejudice was caused to a party due to the misapplication

Prejudice is caused if there is a possibility that the misapplication of the law affected the outcome of a case.

4(c) Habeas Corpus Petition

In the state of California, anybody who is in prison or is otherwise under restraint in some manner by the criminal justice system can file a habeas corpus petition to challenge their incarceration.[8]

It is an "extraordinary remedy" meaning it is only used under extreme and unusual circumstances. This type of petition also requires that a person already exhausted all other available remedies before filing this type of petition. This means that you must avail yourself first of all other possible remedies i.e. resentencing, appeals, etc. before you can file a habeas corpus petition.

An inmate must file this petition while he is still incarcerated and it must be filed at the after all other remedies have been exhausted because if not, the inmate or their attorney will have to justify the delay in the filing of the petition.

4(d) Recall of Sentence Due to the Poor Health of a Prisoner

A court may recall an inmate's sentence due to poor health. Under Penal Code §1170 (e),[9] the court may recall the sentence if:

  • The prisoner is terminally ill and expected to die within 6 months
  • The release of said prisoner will not threaten public safety

Also, Penal Code §1170 (e) provides that a court may recall a sentence if the prisoner is permanently medically incapacitated and requires 24-hour care.

5. Sentence Modification for Non-U.S. Citizens

Even if a prisoner is a non-U.S. citizen, they may still apply for resentencing and other reliefs for sentence modification. It is important to know and remember that a criminal conviction could lead to deportation and other immigration consequences for a non-U.S. citizen. If this is to be prevented, it is recommended that they seek legal relief.

A resentencing can be helpful if the conviction was for an aggravated felony. An aggravated felony is usually when the jail or prison sentence exceeds one (1) year.

An aggravated felony on a person’s record could not only result in deportation, it can affect any visa or citizenship applications, and could also possibly prevent re-entry into the U.S. Having an experienced immigration attorney apply for a reduction of sentence to less than a year could prevent deportation and other serious immigration consequences for a non-U.S. citizen.

Mistakes happen. Rotting in jail or prison doesn’t have to.

California re-sentencing motions and other post-conviction measures can be extremely complicated, particularly if you are not a seasoned post-conviction relief law firm like we are. Despite how busy our firm is fielding inquiries from people who desperately want our help, we may be able to put you on our calendar to speak one-on-one with one of our qualified attorneys.

You can contact us at (626) 827-7222.


[1] California Senate Bill 1437

[2] Proposition 47

[3] Id.

[4] Proposition 36

[5] Proposition 64

[6] Health & Safety Code § 11361.8

[7] California Penal Code § 1170 (d) (1)

[8] California Penal Code § 1473

[9] California Penal Code §1170

Get in Touch with Coimbra Law

Freedom at your Fingertips Schedule Your Free Appointment with Our Award-Winning West Covina Court Attorneys
    • Please enter your name.
    • This isn't a valid phone number.
    • Please enter your email address.
      This isn't a valid email address.
    • Please make a selection.
    • Please enter a message.
  • Must be checked