1385.2.
(a) A person who, on or before January 1, 2022, suffered a conviction, whether by trial or plea, of an enhancement under Section 12022.5 or 12022.53 may petition for a recall of sentence before the trial court that entered the judgment of conviction in their case to request resentencing. Eligibility for relief pursuant to this section is not dependent on the petitioner currently serving a sentence or having ever served a sentence due to the conviction for the enhancement.(b) Upon receiving a petition under subdivision (a), the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the court may strike or dismiss the enhancement and resentence in
accordance with those sections as they read on January 1, 2022. If the court does exercise its discretion, no additional or substitute term of imprisonment shall be added in its place.
(c) If the application satisfies the criteria in subdivision (a), there shall be a presumption favoring resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18. Notwithstanding any other law, the court shall dismiss an enhancement if it is in the furtherance of justice to do so, except if dismissal of that enhancement is prohibited by any initiative statute.
(d) In exercising its discretion under this section, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in paragraphs (1) to
(10) are present. Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the enhancement, unless the court finds that dismissal of the enhancement would endanger public safety. “Endanger public safety” means there is a likelihood that the dismissal of the enhancement would result in physical injury or other serious danger to others.
(1) Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.
(2) Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.
(3) The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.
(4) The current offense is connected to mental illness.
(5) The current offense is connected to prior victimization or childhood trauma.
(6) The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.
(7) The defendant was a juvenile when they committed the current offense or any prior juvenile adjudication that triggers the enhancement or enhancements applied in this case.
(8) The enhancement is based on a prior conviction that is over five years old.
(9) Though a firearm was used in the current offense, it was inoperable or unloaded.
(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.
(e) The circumstances listed in subdivision (d) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (c).
(f) For the purposes of paragraph (4) of subdivision (d), a mental illness is a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited
to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. A court may conclude that a defendant’s mental illness was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense.
(g) For the purposes of this subdivision, the following terms have the following meanings:
(1) “Childhood trauma” means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendant’s childhood trauma was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, medical records, or records or reports by qualified medical experts, the court concludes that the defendant’s childhood trauma substantially contributed to the defendant’s involvement in the commission of the offense.
(2) “Prior victimization” means the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. A court may conclude that a
defendant’s prior victimization was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, medical records, or records or reports by qualified medical experts, the court concludes that the defendant’s prior victimization substantially contributed to the defendant’s involvement in the commission of the offense.
(h) A person who is resentenced pursuant to subdivision (b) shall be given credit for time served and shall be subject to parole for one year following completion of their sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole. The person shall be subject to parole supervision by the Department of Corrections and Rehabilitation pursuant to Section 3000.08 and the jurisdiction of the court in the county in which the parolee is released or resides, or in
which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.
(i) Resentencing pursuant to this section shall result in a lesser sentence, unless the original enhancement was imposed concurrently or stayed and no other provision requires further reduction. If there was a term associated with an enhancement stricken or dismissed pursuant to this section, no additional or substitute term shall be added in its place during resentencing. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
(j) A person who has
completed their sentence for a conviction, whether by trial or plea, of an enhancement described in subdivision (a) may file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction or convictions reconsidered pursuant to this section.
(k) If the application satisfies the criteria in subdivision (j), the court may vacate the enhancement convictions.
(l) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(m) This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(n) Resentencing pursuant to this section does not
diminish or abrogate the finality of judgments in any case that does not come within the purview of this section.
(o) A resentencing hearing ordered under this section shall constitute a “postconviction release proceeding” under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsy’s Law).
(p) (1) A person who is committed to a state hospital after being found not guilty by reason of insanity pursuant to Section 1026 may petition the court to have their maximum term of commitment, as established by Section 1026.5, reconsidered pursuant to a petition filed in accordance with this section. In order for the maximum term of commitment to be reduced, the person shall have met all of the criteria for a modification of sentence pursuant to this section, had the person been found guilty.
(2) If a petitioner’s maximum term of confinement is ordered reduced under this subdivision, the new term of confinement shall provide opportunity to meet requirements provided in subdivision (b) of Section 1026.5. If a petitioner’s new maximum term of confinement ordered under this section does not provide sufficient time to meet requirements provided in subdivision (b) of Section 1026.5, the new maximum term of confinement may be extended, not more than 240 days from the date the petition is granted, in order to meet requirements provided in subdivision (b) of Section 1026.5.
(q) The court shall appoint counsel for a hearing pursuant to this section.
(r) The parties may waive a resentencing hearing. If the hearing is not waived, the resentencing hearing may be conducted remotely through the use of remote technology,
if the defendant agrees.