This is a question that Posse Solutions, LLC has received quite often of late. Understandably so. Let's take a closer look at AB 1540 now that it has been signed into law by Governor Newsom.
AB 1540 requires the court to provide counsel for the defendant when there is recommendation from the Secretary of the Department of Corrections and Rehabilitation (CDCR), the Board of Parole Hearings (BPH), Sheriff, or the prosecuting agency, to recall an inmate's sentence and resentence that inmate to a lesser sentence. Creates a presumption favoring recall and resentencing, as specified, when the recommendation has been made by one of the agencies described above.
This bill would require the court to state its reasons for a resentencing decision on the record, as specified. The bill would require the court to provide notice to the defendant, set a status conference within 30 days of the receipt of the request, and appoint counsel for the defendant. The bill would authorize the court to grant a resentencing without a hearing, if the parties are in agreement. The bill would additionally create a presumption favoring recall and resentencing the defendant in those hearings, as specified. By requiring the court to appoint counsel for the defendant, this bill would impose a state-mandated local program.
According to the Author of the Bill: "California's Penal Code allows for law enforcement authorities to request a person be resentenced if the circumstances have changed since the original sentencing and/or if the person's incarceration is no longer in the interest of justice. Although the requests for resentencing are made by law enforcement authorities, the ultimate decision to recall a person's sentence and reduce their punishment remains with the courts. Courts are currently left to sift through a statute that does not provide adequate structure for the resentencing process, leaving many requests languishing in limbo, or worse - denied without reason. The changes contained in AB 1540 strengthen common procedural problems to address equity and due process concerns in how courts should handle second look sentencing requests."
According to the Ella Baker Center for Human Rights, "Penal Code Section 1170(d)(1) has existed for decades, but was given a renewed focus in 2018 when two bills passed that granted AB 1540 Page 3 district attorneys the ability to make these referrals and provided CDCR with funds to make recommendations. Since then, CDCR has made close to 2,000 recommendations and an increasing number of district attorneys are making use of the process. However, this increase in referrals has revealed several procedural issues that AB 1540 (Ting) seeks to address. "For example, right now large numbers of referrals are being ignored or denied by the courts without any input from either side. This is in part because Penal Code Section 1170(d)(1) doesn't provide guidance on how the courts should handle these types of recommendations. Incarcerated individuals also often don't have access to lawyers, and, in many cases, have no idea they have been recommended.
"AB 1540 (Ting) seeks to address these issues so that Penal Code Section 1170(d)(1) can be fully and fairly applied. It will do this by ensuring that an incarcerated person receives notice of their referral; establishing court deadlines and the right to counsel; providing a presumption in favor of resentencing for all law enforcement referrals; and clarifying that a judge can reduce a charge to a lesser-included or lesser-related offense. AB 1540 (Ting) will also give the Attorney General's office the power to recommend a person for resentencing when they prosecuted the case and make Penal Code Section 1170(d)(1) its own Penal Code section to clarify the law."
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