Section 1170.126 Of Article 1. Initial Sentencing From California Penal Code >> Title 7. >> Part 2. >> Chapter 4.5. >> Article 1.
1170.126
. (a) The resentencing provisions under this section and
related statutes are intended to apply exclusively to persons
presently serving an indeterminate term of imprisonment pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12, whose sentence under this act
would not have been an indeterminate life sentence.
(b) Any person serving an indeterminate term of life imprisonment
imposed pursuant to paragraph (2) of subdivision (e) of Section 667
or paragraph (2) of subdivision (c) of Section 1170.12 upon
conviction, whether by trial or plea, of a felony or felonies that
are not defined as serious and/or violent felonies by subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7, may file a
petition for a recall of sentence, within two years after the
effective date of the act that added this section or at a later date
upon a showing of good cause, before the trial court that entered the
judgment of conviction in his or her case, to request resentencing
in accordance with the provisions of subdivision (e) of Section 667,
and subdivision (c) of Section 1170.12, as those statutes have been
amended by the act that added this section.
(c) No person who is presently serving a term of imprisonment for
a "second strike" conviction imposed pursuant to paragraph (1) of
subdivision (e) of Section 667 or paragraph (1) of subdivision (c) of
Section 1170.12, shall be eligible for resentencing under the
provisions of this section.
(d) The petition for a recall of sentence described in subdivision
(b) shall specify all of the currently charged felonies, which
resulted in the sentence under paragraph (2) of subdivision (e) of
Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,
or both, and shall also specify all of the prior convictions alleged
and proved under subdivision (d) of Section 667 and subdivision (b)
of Section 1170.12.
(e) An inmate is eligible for resentencing if:
(1) The inmate is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of
Section 667 or subdivision (c) of Section 1170.12 for a conviction of
a felony or felonies that are not defined as serious and/or violent
felonies by subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7.
(2) The inmate's current sentence was not imposed for any of the
offenses appearing in clauses (i) to (iii), inclusive, of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667
or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph
(2) of subdivision (c) of Section 1170.12.
(3) The inmate has no prior convictions for any of the offenses
appearing in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.12.
(f) Upon receiving a petition for recall of sentence under this
section, the court shall determine whether the petitioner satisfies
the criteria in subdivision (e). If the petitioner satisfies the
criteria in subdivision (e), the petitioner shall be resentenced
pursuant to paragraph (1) of subdivision (e) of Section 667 and
paragraph (1) of subdivision (c) of Section 1170.12 unless the court,
in its discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.
(g) In exercising its discretion in subdivision (f), the court may
consider:
(1) The petitioner's criminal conviction history, including the
type of crimes committed, the extent of injury to victims, the length
of prior prison commitments, and the remoteness of the crimes;
(2) The petitioner's disciplinary record and record of
rehabilitation while incarcerated; and
(3) Any other evidence the court, within its discretion,
determines to be relevant in deciding whether a new sentence would
result in an unreasonable risk of danger to public safety.
(h) Under no circumstances may resentencing under this act result
in the imposition of a term longer than the original sentence.
(i) Notwithstanding subdivision (b) of Section 977, a defendant
petitioning for resentencing may waive his or her appearance in court
for the resentencing, provided that the accusatory pleading is not
amended at the resentencing, and that no new trial or retrial of the
individual will occur. The waiver shall be in writing and signed by
the defendant.
(j) If the court that originally sentenced the defendant is not
available to resentence the defendant, the presiding judge shall
designate another judge to rule on the defendant's petition.
(k) Nothing in this section is intended to diminish or abrogate
any rights or remedies otherwise available to the defendant.
(l) Nothing in this and related sections is intended to diminish
or abrogate the finality of judgments in any case not falling within
the purview of this act.
(m) A resentencing hearing ordered under this act shall constitute
a "post-conviction release proceeding" under paragraph (7) of
subdivision (b) of Section 28 of Article I of the California
Constitution (Marsy's Law).