Can A Convicted Felon Be Resentenced Under Senate Bill 81?

Sacramento Senate Bill 81 Lawyer

Senate Bill 81, which became law on January 1, 2014, prohibits the court from imposing an “enhancement” for a prior serious or violent felony conviction when the defendant’s present felony conviction is either a misdemeanor or a wobbler.

SB 81 also allows defendants convicted of certain felonies to file petitions for the recall of sentence (“CORFS”) after they have served their full terms on their sentences.

Elimination Of Mandatory Sentence Enhancements

The main change brought about by SB 81 was the elimination of mandatory enhancements in most cases where the subsequent felony is punished as a misdemeanor or is punishable under California’s sole wobbler statute (Penal Code § 17(b)). An enhancement may be imposed, however, if the defendant was sentenced to prison based on an offense that was a felony in another state and the defendant would have received a prison term in California for that crime.

Re-Sentencing Petitions In California

The new law also allows defendants convicted of serious or violent felonies to file petitions after they have served their full terms on their sentences, asking the court to recall their sentence and re-sentence them. If granted, such petitioners will be resentenced under laws applicable at the time of sentencing (for example, under Proposition 47 if filed after November 5, 2014).

This has an even greater impact than it might appear: recall and re-sentencing under current law means that most prior convictions can no longer serve as predicate offenses for Three Strikes enhancements, rendering most offenders eligible for diversion programs—and potentially limiting exposure to life sentences under the Three Strikes law.

Second Punishment Prevention

SB 81, which was introduced by then-Senator Mark Leno (D-San Francisco), was intended to prevent “second punishment” for individuals who were no longer considered dangerous after serving their full sentences but could not be authorized for release because of old offenses on their records. As Senator Leno explained during floor debate on SB 81, “it makes sense to allow certain offenders—those who are aging out or aging in our prisons without committing additional crimes—to serve out the final years of their sentences closer to home where they can access rehabilitative services and provide support to their families.”

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