AB 1310, as amended, McKinnor. Sentencing: recall and resentencing. An act to add Section 1385.2 to the Penal Code, relating to sentencing. Status: 7/12/2023, From committee: Amend, and do pass as amended and re-refer to Com. on APPR. (Ayes 3. Noes 1.) LEGISLATIVE COUNSEL'S DIGEST: Existing law generally authorizes a court to, in the furtherance of justice, dismiss an enhancement. Existing law makes a person who personally uses a firearm in the commission of a felony punishable by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years. Existing law makes a person who personally uses a firearm in the commission of specified felonies punishable by imprisonment in the state prison for an additional and consecutive term of 10 years, and makes them punishable by an additional and consecutive term of imprisonment of 20 years if they discharge the firearm. Existing law makes a person who discharges a firearm and causes great bodily injury in the commission of specified felonies punishable by an additional and consecutive term of imprisonment of 25 years to life. Existing law, until January 1, 2018, prohibited courts from striking those firearm enhancements. Existing law on and after January 1, 2022, requires a court to dismiss an enhancement if it is in furtherance of justice to do so, except as specified. This bill would authorize a person who, on or before January 1, 2018, suffered a conviction of those firearm enhancements to petition the court for resentencing. The bill would require the court during that resentencing to have a presumption for resentencing, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, and would require the court to dismiss those enhancements if it is in the furtherance of justice to do so, except as specified. The bill would require the court to appoint counsel for a hearing under these provisions. require the Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator to identify persons in custody, who, on or before January 1, 2018, suffered a conviction of those firearm enhancements. By requiring county correctional administrators to identify qualifying persons in custody, this bill would impose a state-mandated local program. Upon determining the person qualifies for resentencing, the bill would require the trial court to appoint counsel, and impose a lesser sentence than the one originally imposed, unless the court finds by clear and convincing evidence that a lesser sentence would present an unreasonable risk of danger to public safety. By imposing additional duties on county public defenders, this bill would impose a state-mandated local program.
(10) The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.
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