Resentencing

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Proposition 47 is retroactive. People currently serving a sentence in jail, prison or on probation or parole for offenses affected by Proposition 47 may qualify for resentencing. The process for getting resentenced (if an individual is in custody) is different than changing your record (click here to learn about the record change process, also known as reclassification). There generally will be a hearing, and an attorney will represent you. If you think you are eligible for resentencing, contact the Public Defender’s office or attorney who represented you during your original case, and he or she can file the petition for you. Here are answers to a few frequently asked questions about resentencing under Proposition 47.

What offenses can I be resentenced for?

If you are serving a sentence for one or more of the following low-level, nonviolent felonies, you may be eligible for resentencing: drug possession (HS §§ 11357(a), 11350, 11377); petty theft of $950 or less (PC §§ 484, 666); shoplifting $950 or less (PC § 459); forgery- $950 or less (PC §§ 470); writing a bad check worth$950 or less (PC §§ 476); or receiving stolen property of $950 or less (PC § 496). If you have a previous conviction for crimes such as rape, murder or child molestation or are in the sex offender registry, you will not be eligible for resentencing. Also, if the judge determines that you pose an unreasonable risk of danger to public safety, he or she may deny your petition for resentencing.

I am currently incarcerated. Can I be resentenced?

Yes, if you are currently serving a sentence for one of the above offenses, you may be eligible for resentencing and release. Individuals with specific prior convictions and people registered as sex offenders are excluded. You must petition a judge who has the discretion to resentence and release you, as long as they find there is no unreasonable risk of danger to public safety.

How do I get resentenced?

Call the Public Defender’s office or the lawyer who represented you so that they can file a petition for you.

If I’m in jail and my case is reduced from a felony to a misdemeanor, will I get out of jail?

The maximum jail time for most misdemeanors is 364 days in county jail. If you have already served more than the maximum term of confinement, you should be released. If you have not served the maximum term of confinement for the misdemeanor charge(s), the court may hold a hearing to determine if your sentence should be reduced. If you have other cases or charges that are holding you in custody, you will not be released even if you receive a reduction on one or more charges. However, you should still seek to have all eligible offenses reduced to a misdemeanor, so there are less felony convictions on your record.

If I’m in state prison and my case is reduced from a felony to a misdemeanor, will I get out of prison?

If you have no other charges keeping you in state prison, you may be released from prison or you may be transferred to county jail. If your case is reduced to a misdemeanor, your maximum sentence is no more than 364 days in county jail per charge. If you are also serving a sentence for other felonies that do not qualify for resentencing under Proposition 47, you may still serve your reduced misdemeanor sentence, along with your felony sentence, in state prison. Even if you will not be released after resentencing, you should still seek to have all eligible offenses reduced to a misdemeanor, so there are less felony convictions on your record.

If my case is reduced from a felony to a misdemeanor, will I be on probation or parole when I am released from jail or prison?

This will depend on the type of sentence that you previously received, and the judge who resentences you will make the decision. If you are resentenced, you should receive a Minute Order from the court before you are released, which will tell you if you have been ordered to report to county probation or state parole upon released. Please comply with any terms and conditions ordered by the court. If you think there has been a mistake or have any questions about any of the new terms and condition of your sentence after resentencing, call the Office of the Public Defender in your county.

If my case is reduced to a misdemeanor, will I still have to pay restitution?

Yes. Even if your case is reduced to a misdemeanor, any restitution orders will remain in full force and effect. However, your court fines and fees will likely be decreased if your case is reduced from a felony to a misdemeanor. Please check your Minute Order when you are released to see how much you owe.

*Please note that the information provided here does not constitute legal advice.

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