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Motion to Modify Sentence

What Is a Motion to Modify a Sentence?

At the end of a criminal trial, the judge will impose a sentence. Unless the underlying conviction or sentence is reversed on appeal, the sentence handed down by the judge is usually final—except when it is not. California courts allow those convicted of crimes to file a motion asking the judge to modify their sentence. These motions to modify a sentence have become increasingly popular and successful in recent years as California lawmakers have shown a desire to reverse the decades-long effects of over-incarceration. While the requirements to file a resentencing motion can be extraordinarily complex, a California criminal appeals lawyer can effectively advise current inmates and their families about the available resentencing options and assist in the preparation of the necessary petitions and supporting documents. 

Who Qualifies for a Motion to Modify Sentence

Most people who have been convicted of a crime and are currently serving their sentence are eligible to file a motion to modify their sentence. California lawmakers have passed a series of criminal justice reform measures over recent years, as discussed below, providing an increasing number of ways one can seek a resentencing hearing.

Common Grounds to Modify Sentence

Back in the late 1980s and 1990s, California experienced a surge in violence, primarily related to the drug trade. In response, California adopted one of the strictest sentencing regimes in the country. However, more recently, lawmakers have realized the detrimental effect of these policies and started to reverse course. Below are a few of the ways that inmates can petition the court to modify their sentences.

AB2942 and 1170(d)(1) Petitions

Assembly Bill 2942 and 1170(d)(1) are procedural mechanisms by which either the District Attorney (AB 2942) or the California Department of Corrections and Rehabilitation (1170(d)(1)) can review an inmate’s sentence and recommend the court hold a resentencing hearing. Technically, all inmates who are serving a prison sentence are eligible for either an AB 2942 or 1170(d)(1) petition, except those sentenced to death or life in prison without the possibility of parole. For the purposes of an AB 2942 or 1170(d)(1) petition, it does not matter if you were found guilty after a trial or entered a guilty or no contest plea.

When reviewing an inmate’s petition, the District Attorney or CDCR will consider the following:

  • The inmate’s disciplinary record, with special emphasis on the most recent five-year period;
  • The inmate’s efforts at rehabilitation during their incarceration;
  • The passage of new laws that would likely have resulted in a shorter sentence;
  • Whether the inmate’s age, health condition, or length of incarceration has decreased their risk of future violence; and
  • Any other evidence indicating that requiring the inmate to serve their sentence would result in a miscarriage of justice.

The court will also consider whether it is in the interest

When putting together a petition for resentencing, an inmate would want to include documentation of the following:

  • Self-help programs they took while in custody;
  • Classes or degrees they earned they earned while incarcerated;
  • A personal statement describing their remorse and future plans if released;
  • Letters from close friends and family members describing changes in the inmate’s attitude and behavior;
  • Laudatory chronos awarded by correctional officers; and
  • Any other evidence which shows that an inmate has successfully rehabilitated themselves.

By creating a strong character packet with all of the above items, you give the District Attorney or the CDCR the information they need to come to a fair conclusion about your sentence. If the District Attorney or CDCR agrees that you should be resentenced, the court will then hold a resentencing hearing.

Interest of Justice

Anytime it is in the interests of justice for an inmate’s sentence to be modified, the court may consider doing so. While there are no specifically enumerated factors that tell a court what is in the interest of justice, some of the following may persuade a court to grant an inmate’s request for a resentencing:

  • New laws have been passed that would affect the inmate’s sentence, had they been sentenced today;
  • The inmates physical or mental health has deteriorated significantly since their incarceration;
  • The inmate has significant proof that they are rehabilitated; and
  • The inmate has not incurred any write-ups or disciplinary action for an extended period of time.

The “interest of justice” argument often goes hand-in-hand with the analysis in a AB 2942 or 1170(d)(1) petition. Essentially, the goal is to present a strong case to the court that, due to changes since the inmate’s conviction and sentencing, the inmate is no longer the same person they were and is deserving of a resentencing.

SB 1437

Senate Bill 1437 is a frequently relied upon avenue of relief for those convicted of felony murder. Felony murder is a legal doctrine that allows someone to be found guilty of murder not because they killed someone, but because they committed a felony and someone died as a result. For example, if Bob and Linda agree to rob a bank and Bob killed the bank teller, even if Linda was unarmed and had no role in the actual killing, she could still be charged with felony murder.

Prior to the passage of SB 1437, California’s felony-murder rule permitted the government to pursue murder charges against a person who participated in an enumerated felony that resulted in someone’s death—regardless of whether the accused committed the killing. However, SB 1437 limits prosecution of first- and second-degree felony murder to the following situations:

  • You were the actual killer;
  • You acted with the intent to kill;
  • You were a “major participant” in the crime and acted with “reckless indifference to human life”; or
  • You knew the victim was a police officer who was carrying out their duties at the time they were killed.

In most SB 1437 petitions, the question at issue is whether the inmate was a “major participant” in the underlying felony who acted with “reckless indifference to human life.” The factors courts consider when making this determination include:

  • Did the inmate help plan the crime that ultimately resulted in the death of the victim?
  • Did the inmate possess or supply a weapon or know if a codefendant was armed?
  • Was the inmate aware of the specific risks involved in carrying out the crime?
  • Was the inmate physically present at the time of the killing?
  • Could the inmate have prevented the killing?
  • What did the inmate do immediately after the lethal force was used?
  • Was the inmate aware of a codefendant’s tendency to use violence?

The classic example of a person with a great SB 1437 petition is a “getaway driver” who did not plan the crime and wasn’t present at the time the killing occurred. However, there are many other situations in which an SB 1437 may result in a murder conviction being vacated. In these cases, the court would then resentence the inmate to a lesser term of incarceration based on the other remaining charges.

SB 775

While SB 1437 took significant steps towards creating a fairer criminal justice system, many criminal law experts pointed out that it excluded a significant number of inmates who should be eligible for relief. For example, if you entered a guilty plea to manslaughter in the face of felony-murder charges, SB 1437 was unavailable to you. This is where Senate Bill 775 comes into play.

Senate Bill 775 is one of the most recent criminal justice reform measures passed in California. Governor Newsome approved the bill in October 2021. SB 775 builds upon SB 1437 by expanding the class of individuals who were convicted of murder where malice was imputed based solely on their participation in the underlying felony. SB 775 applies to those convicted of murder, as well as those convicted of attempted murder and manslaughter. This relief is available to inmates who were found guilty after a trial or who entered a guilty plea.

SB 483

Senate Bill 483 is another very recent piece of legislation signed by the Governor in October 2021. SB 483 focuses on providing the possibility of a resentencing for inmates currently serving a sentence that is at least in part made up of a Section 11370.2 or Section 667.5(b) enhancement.

Originally, section 11370.2 required a judge to impose an additional three-year term of incarceration for each prior qualifying drug conviction. While SB 180 changed the law to eliminate these sentencing enhancements, SB 180 was not retroactive. Thus, anyone whose conviction was final was unable to benefit from SB 180. This left thousands of people who would have very likely received a lesser sentence without any recourse.

Section 667.5(b) operates in a similar way to section 11370.2, except that it required a court to impose an additional one-year term of imprisonment for each prior separate prison term or county jail felony term served by the defendant for a nonviolent felony. In 2019, lawmakers passed SB 136, which drastically limited section 667.5(b)’s applicability. However, again, SB 136 was not retroactive.

SB 483 makes both SB 180 and SB 136 retroactive. This means that anyone whose sentence was enhanced by Section 11370.2 or Section 667.5(b) is entitled to a resentencing hearing.


Senate Bill 81 is yet another recent law that opens the door for sentencing relief to thousands of inmates. Simply put, SB 81 requires a judge to dismiss any sentencing enhancement if it “is in the furtherance of justice” to do so. The language of SB 81 identifies several guiding principles that a reviewing court should take into account:

  • Whether the enhancement would result in a disparate racial impact;
  • If multiple enhancements are alleged, all but one should be dismissed;
  • Special care should be exercised if the enhancement could result in a sentence of more than 20 years in prison;
  • Whether the inmate suffered from mental health issues at the time of the offense;
  • Whether the offense was non-violent;
  • Whether the defendant was a juvenile at the time of the offense;
  • Whether the conviction causing the enhancement is more than five years old;
  • If a firearm was used, whether it was unloaded or inoperable.

The text of SB 81 does not indicate lawmakers’ intent to make the law retroactive. However, because SB 81 is so recent, there will likely be significant litigation surrounding the retroactivity of the new law.

Franklin Hearing

Over the past two decades, courts in California and across the country have realized that the criminal justice system failed to consider the youthful mitigating circumstances of juveniles who commit serious crimes. While juveniles who go to trial today benefit from this realization, inmates who were convicted of crimes at a young age years ago continue to serve lengthy sentences.

A Franklin hearing is a procedural mechanism that allows inmates to create a record of the mitigating factors of youthfulness. Once this record is established, the parole board must give “great weight” to these mitigating circumstances making parole decisions. Franklin hearings are available to anyone who did not have sufficient opportunity to make a record of any youth-related mitigating factors at their sentencing hearing. However, because California courts were required to provide this opportunity to youthful defendants starting in 2016, Franklin hearings are usually only available to those inmates who were convicted in 2016 and earlier.

How a Post-Conviction and Appellate Team Can Help

Most of the grounds for a resentencing hearing are discretionary. Thus, anytime you are asking the court, the CDCR or the District Attorney to consider a motion to modify a sentence, it is important that you put your best foot forward. At Power Trial Lawyers, we have a successful track record of helping our clients obtain the relief they seek. Our California criminal appeals team is uniquely dedicated to our clients and takes the time necessary to develop a comprehensive character package which we will submit along with your petition. In this package, we outline all the legal and moral reasons why you deserve to be resentenced. Power Trial Lawyers can also represent you in your resentencing hearing, ensuring that the judge understands everything you’ve done to rehabilitate yourself while incarcerated. While previous success does not guarantee success in the future, Power Trial Lawyers and Power Trial Lawyers team members have freed multiple individuals who had life sentence that are now walking free. To learn more about your post-conviction and appellate options, contact Power Trial Lawyers to schedule a free consultation at (213) 800-7664.

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