February 20, 2022
By Roxann Matthews

Resentencing in California: Update Following the Enactment of AB 1540

            On October 8, 2021, Governor Newsom signed into law Assembly Bill 1540, which replaced the resentencing provision of California Penal Code section 1170(d)(1) with section 1170.03.[1] Section 1170.03, which went into effect on January 1, 2022, contains groundbreaking revisions that promise to vastly improve the trajectory of resentencing in California.[2] These revisions substantially increase the availability of meaningful resentencing opportunities and foster greater consistency within such efforts across California. Three modifications stand out as particularly significant: (1) new language indicates that no conviction should be excluded from resentencing if in the interest of justice; (2) courts are now explicitly encouraged to consider whether mitigating circumstances no longer justify continued incarceration; and (3) changes requiring the provision of counsel, the creation of a judicial record justifying the grant or denial of a resentencing petition, and a new presumption in favor of resentencing, will amount to greater consistency and accountability in resentencing throughout the state.
            As with former-section 1170(d)(1), section 1170.03 does not exclude any conviction from possible resentencing. Nonetheless, uncertainty remained under former-section 1170(d)(1) about the eligibility of certain serious offenses. Section 1170.03 addresses that lingering doubt by clearly articulating that the court should, if in the interest of justice, reduce a defendant’s term of imprisonment either by modifying the sentence,[3] or vacating the defendant’s conviction and imposing judgement on any necessarily included lesser offense or lesser related offense.[4] Moreover, resentencing in the interest of justice is now explicitly encouraged regardless of whether the original sentence was imposed after a trial or plea agreement.[5] Section 1170.03 therefore further encourages prosecutors and resentencing courts to consider all convictions — without limitation — as eligible for resentencing.
            Section 1170.03 also vastly expands the scope of resentencing petitions by providing that the court may consider postconviction factors, such as evidence that the defendant no longer poses a risk for future violence.[6] Furthermore, when ruling on resentencing, the court now shall consider whether the defendant’s experience of psychological, physical, or childhood trauma was a contributing factor in the commission of the offense.[7] This increased awareness of mitigating circumstances indicates that the guiding consideration for resentencing should be whether continued incarceration is in the interest of justice.
            Finally, AB 1540’s procedural revisions have the potential to ensure consistency and accountability across California. Under section 1170.03 the court must now “state on the record the reasons for its decision to grant or deny recall and resentencing,”[8] and may not deny resentencing without first providing the parties an opportunity to address the basis for denial via a hearing.[9] The final two provisions of section 1170.03 are perhaps the most remarkable and likely to ensure accountability: section 1170.03(b)(1) requires that the court provide notice to the defendant, set a status conference within 30 days after the receipt of the resentencing request, and appoint counsel to represent the defendant;[10] and section 1170.03(b)(2) sets forth that “[t]here shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety.”[11]
            The ultimate impact of these revisions is yet unknown, but the California Legislature has certainly made clear that it intends courts to meaningfully reconsider sentences whenever it is in the interests of justice — and justice arguably calls for resentencing more often than not. The onus is now on California’s prosecutors to take advantage of the remarkable power that section 1170.03 has enhanced. Prosecutors have the tools to fight for justice by advocating for resentencing — now more so than ever. The question remains: will they?

Read Roxann Matthews’ full work, including practical guidance for California prosecutors interested in resentencing justice, here .

[1] 2021 Cal. Legis. Serv. Ch. 719 (A.B. 1540) (WEST).

[2] Cal. Penal Code § 1170.03.

[3] Id. § 1170.03(a)(3)(A).

[4] Id. § 1170.03(a)(3)(B).

[5] Id.

[6] Id. § 1170.03(a)(4).

[7] Id.

[8] Id. § 1170.03(a)(5).

[9] Id. § 1170.03(a)(6).

[10] Id. § 1170.03(b)(1).

[11] Id. § 1170.03(b)(2).