You may have heard about new laws in California that make it possible for people in prison to request resentencing and go back to court to have enhancement time taken off of their sentences.
This page will help answer “How do I file a resentencing application? How do I file a resentencing petition? Do I need to hire an attorney to get resentencing? How do I apply for a AB 2942 resentencing petition? Is there a PC 1172.1 petition or application I can file with the court?”
DO NOT PAY AN ATTORNEY TO file a resentencing “petition” or “application” for you for AB 2942 or Penal Code 1172.1 (the law formerly known as PC 1170.03 or PC 1170(d)(1)). While there are a number of attorneys advertising “resentencing petition” services online, it’s best to use caution when considering hiring a lawyer or a PLLC to assemble a resentencing packet. Very few attorneys are willing to spend the hours and hours it takes to pore through thousands of pages of prison records, parole packets, and other supporting documents to be worth the thousands of dollars they are charging for basic non-legal services.
Hundreds of families have lost thousands of dollars each to predatory attorneys who promise that they will review an incarcerated person’s case files and file paperwork with either the courts or the District Attorney to request resentencing. However, in almost every case, the attorneys have either never followed through on what they promised or they sent a copy/paste generic packet to the courts and pocketed anywhere from $2,000 to $15,000 per family.
“Why is it not necessary or helpful to hire an attorney to petition the courts for resentencing under PC 1172.1?” Unfortunately, there’s no such thing as a “PC 1172.1 petition” that can be filed directly with the court. All that an attorney can do is make a request of a District Attorney to make a resentencing referral. However, you can make that request yourself without hiring an attorney or spending thousands of dollars.
- You can use the samples and advice in the free guides below, and work to assemble documents.
- You can take the first step of writing the DA office a simple note asking if they have an Intake Form for Penal Code section 1172.1 Resentencing Review if you’re concerned about what information to share or not to share.
- You can use the materials your loved one may have already gathered for the parole board or a commutation application to assemble this packet.
“Won’t I need an attorney at some point in my resentencing?” Yes – if the District Attorney or the prison officials decide to refer a case for resentencing, the judge will appoint an attorney at no cost to you or your family.
We are excited to share a newly updated resource for people in California seeking resentencing.
Descarga la guía (2020) en español. Estamos traduciendo la nueva guía y estará disponible a finales de este año.
The RISE Act – SB483 will remove over 20,000 years of incarceration for people in California’s prisons and jails. Does your loved one have a 1 or 3 year sentence enhancement for a prison prior? SB483 is a RETROACTIVE repeal of these enhancements! FAQ here.
Watch this video on Getting People Out Of Prison: How to Support People in CDCR In Asking For Release Due to COVID-19. This webinar is a training on how to help people in the California Department of Corrections and Rehabilitation gather paperwork (exhibits), write declarations, and file administrative appeals to request release by order of CDCR, the Governor, state courts, or federal courts due to COVID 19.
You can also check out our general resource Paths to Release for People Incarcerated in California which describes a variety of ways to advocate for yourself or your loved one’s freedom.
This toolkit discusses recent bills that Ella Baker Center helped to pass that created new opportunities for people to get back to court for resentencing. These new laws include:
SB 1393 (Mitchell, Lara – effective January 1, 2019) ended the mandatory requirement that judges add a 5-year sentence enhancement for each prior serious felony on a person’s record, also referred to as a “nickel prior.” While SB 1393 was not retroactive, it is now possible to request a referral for the discretionary resentencing of these enhancements. This toolkit provides information for people serving and/or appealing sentences with 5-year enhancements on how to request resentencing and what to expect in the referral and resentencing process.
SB 180 (Mitchell) repealed the three-year enhancement for prior drug-related felonies (Health and Safety Code § 11370.2). This repeal went into effect on January 1, 2018. This law does not apply to prior convictions involving a minor (HSC § 11380).
SB 136 (Wiener), a reintroduction of SB 1392 (Mitchell), eliminated the mandatory one-year enhancement for prior felonies that resulted in a prison or jail term (PC § 667.5). This repeal went into effect on January 1, 2020. This law does not apply to prior convictions of a sexually violent offense as described in Welfare and Institutions Code section 6600(b).
Senate Bill 483 (Allen) is the Repeal Ineffective Sentencing Enhancements (RISE) Act of 2021 and it was signed by Governor Newsom and went into effect on January 1, 2022. SB 483 authorizes courts to retroactively remove these 1-year prison prior and 3-year drug prior enhancements from the sentences of currently or formerly incarcerated people, whether they are still on appeal or their sentence is “final.”
This toolkit also discusses in detail the recently expanded law on discretionary resentencing called PC § 1172.1 (formerly known as 1170(d)(1) and 1170.03) Recall of Sentence and Resentencing. This is an exciting area of law due to the 2018 passage of AB 1812 and AB 2942 (Ting). These laws expanded the possibility for post-conviction relief, gave CDCR funding to make resentencing referrals, and gave District Attorneys the ability to make resentencing referrals as of January 1, 2019. AB 1540 and AB 200 went into effect in 2022, creating a strong presumption in favor of resentencing, court timelines to ensure timely resentencing, and creating new guidelines to ensure that a person is appointed counsel, notified of resentencing, and calendared for a hearing.
We hope the information in this Toolkit will help people advocate for themselves for resentencing in a number of contexts.The Toolkit includes an Appendix with some further resources, as well as a Resource List if you would like to request further information to assist you in your self-advocacy.
Please send us your feedback on this Toolkit and your resentencing experiences to:
Ella Baker Center for Human Rights
1419 34th Ave, Suite 202, Oakland, CA 94601
Your loved ones and support network can also reach out to policy@ellabakercenter.org with questions or comments.