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  #1  
Old 06-13-2018, 12:26 PM
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Default 1170(d)(1) Sentence recall by CDCR

Does anyone know about the process for 1170(d) recalls?

For those unfamiliar with Penal Code 1170(d), it gives the CDCR secretary the right to ask the sentencing court for a recall of sentence. We've been told the department is now filing quite a few of these petitions for inmates who have exhibited exemplary behavior and have served at least 10 years.

There is $2 million in the new state budget for this, with additional funds planned for next two years.
https://news.cdcr.ca.gov/external-af...-state-budget/

"Court Resentencing Petitions—A net increase of $2 million to allow the department to use Penal Code 1170(d)(1) to request the recall and resentencing of inmates who: (1) have an error in the calculation of their sentence or whose sentences are affected by changes in case law, or (2) exhibit exceptional conduct that indicates that their continued incarceration is not in the interest of justice and they would be a positive asset to the community."
We have a few friends for whom the department has already filed these recall petitions, and I just found out yesterday my husband was one of them (we actually submitted our own 1170(d) a couple years ago and Sec. Kernan just approved it)!

Kernan's recall is already filed in the county court and we are waiting for a hearing date.

Because this is a very rare type of petition, no one I know has any experience with the court proceedings to follow.

So I guess my questions are: Does anyone know what happens next in court? Can the court deny the petition without a hearing?
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Old 06-13-2018, 01:05 PM
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Awesome news! How do we find out if our loved one is eligible?

Congratulations on the approval!
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Old 06-13-2018, 02:00 PM
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Awesome news! How do we find out if our loved one is eligible?

Congratulations on the approval!
His counselor should know. And thanks!
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Old 06-13-2018, 02:03 PM
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His counselor should know. And thanks!
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Old 06-13-2018, 02:47 PM
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Originally Posted by qwerty View Post
Does anyone know about the process for 1170(d) recalls?

For those unfamiliar with Penal Code 1170(d), it gives the CDCR secretary the right to ask the sentencing court for a recall of sentence. We've been told the department is now filing quite a few of these petitions for inmates who have exhibited exemplary behavior and have served at least 10 years.

There is $2 million in the new state budget for this, with additional funds planned for next two years.
https://news.cdcr.ca.gov/external-af...-state-budget/

"Court Resentencing Petitions—A net increase of $2 million to allow the department to use Penal Code 1170(d)(1) to request the recall and resentencing of inmates who: (1) have an error in the calculation of their sentence or whose sentences are affected by changes in case law, or (2) exhibit exceptional conduct that indicates that their continued incarceration is not in the interest of justice and they would be a positive asset to the community."
We have a few friends for whom the department has already filed these recall petitions, and I just found out yesterday my husband was one of them (we actually submitted our own 1170(d) a couple years ago and Sec. Kernan just approved it)!

Kernan's recall is already filed in the county court and we are waiting for a hearing date.

Because this is a very rare type of petition, no one I know has any experience with the court proceedings to follow.

So I guess my questions are: Does anyone know what happens next in court? Can the court deny the petition without a hearing?
Further review of P.C 1170(E)(F)(G) describes the criteria that must be met
Under PC.1170(I) the court may deny the application. The court must list it reasons in the record also
I read on more through P.C 1170 part of this is also used for terminally ill inmates also ARTICLE 1. Initial Sentencing [1170 - 1170.91] Having the application accepted by the court sounds very good to me
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Old 06-13-2018, 03:04 PM
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Further review of P.C 1170(E)(F)(G) describes the criteria that must be met
Under PC.1170(I) the court may deny the application. The court must list it reasons in the record also
I read on more through P.C 1170 part of this is also used for terminally ill inmates also ARTICLE 1. Initial Sentencing [1170 - 1170.91] Having the application accepted by the court sounds very good to me
Thanks so much! I'm not sure if it was "accepted," but it does show up in his case file. The court asked the secretary for more info, which according to his file, was just delivered last week. Nothing has been scheduled yet.
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Old 06-13-2018, 04:12 PM
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Thanks so much! I'm not sure if it was "accepted," but it does show up in his case file. The court asked the secretary for more info, which according to his file, was just delivered last week. Nothing has been scheduled yet.

If the court is asking for more information from the Secretary. Then the court is gathering information. Remember the D.A will respond to this application also. Plus any victims are entitled to a say in court also. I am not trying to damper the news. Just trying to inform that all sides have a time to respond.
Time limits are defined in PC1170, but extensions are easily granted in any court matter.
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Old 06-13-2018, 05:54 PM
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If the court is asking for more information from the Secretary. Then the court is gathering information. Remember the D.A will respond to this application also. Plus any victims are entitled to a say in court also. I am not trying to damper the news. Just trying to inform that all sides have a time to respond.
Time limits are defined in PC1170, but extensions are easily granted in any court matter.
Great, that clarifies a lot.

In the past, the DA told us he wouldn't oppose it, but we shall see... thanks.
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Old 06-23-2018, 06:28 PM
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Does anyone have any information regarding the Petition to recall sentencing. I have read the links you all have posted, but have only seen what applies to LWOP and Compassionate release. My husband has 3 people he knows that this has happened too and neither of them are LWOP or compassionate release. Thanks!!
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Old 06-24-2018, 08:33 AM
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So does someone in the prison have to file on behalf of them? Or can the inmate do it themselves to see if they are eligible?





Quote:
Originally Posted by qwerty View Post
Does anyone know about the process for 1170(d) recalls?

For those unfamiliar with Penal Code 1170(d), it gives the CDCR secretary the right to ask the sentencing court for a recall of sentence. We've been told the department is now filing quite a few of these petitions for inmates who have exhibited exemplary behavior and have served at least 10 years.

There is $2 million in the new state budget for this, with additional funds planned for next two years.
https://news.cdcr.ca.gov/external-af...-state-budget/

"Court Resentencing Petitions—A net increase of $2 million to allow the department to use Penal Code 1170(d)(1) to request the recall and resentencing of inmates who: (1) have an error in the calculation of their sentence or whose sentences are affected by changes in case law, or (2) exhibit exceptional conduct that indicates that their continued incarceration is not in the interest of justice and they would be a positive asset to the community."
We have a few friends for whom the department has already filed these recall petitions, and I just found out yesterday my husband was one of them (we actually submitted our own 1170(d) a couple years ago and Sec. Kernan just approved it)!

Kernan's recall is already filed in the county court and we are waiting for a hearing date.

Because this is a very rare type of petition, no one I know has any experience with the court proceedings to follow.

So I guess my questions are: Does anyone know what happens next in court? Can the court deny the petition without a hearing?
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Old 06-24-2018, 01:44 PM
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Originally Posted by Patrickj View Post
Further review of P.C 1170(E)(F)(G) describes the criteria that must be met
Under PC.1170(I) the court may deny the application. The court must list it reasons in the record also
I read on more through P.C 1170 part of this is also used for terminally ill inmates also ARTICLE 1. Initial Sentencing [1170 - 1170.91] Having the application accepted by the court sounds very good to me
QWERTY and/or PATRICKj.

I heard of this a few years ago.

How can I go about getting the paperwork to send to my husband?.

Qwerty, did you file on behalf of your husband? Or did his counselor submit on his behalf?.

PatrickJ....do you have any information on the steps?.


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Old 06-27-2018, 09:37 AM
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QWERTY and/or PATRICKj.

I heard of this a few years ago.

How can I go about getting the paperwork to send to my husband?.

Qwerty, did you file on behalf of your husband? Or did his counselor submit on his behalf?.

PatrickJ....do you have any information on the steps?.


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Nica, I'm happy to share. There is no form to fill out.

We filed it ourselves, which is extremely rare. We got a lawyer to write a cover letter and included the text of the 1170(d)(1) section of the Calif. Penal Code, AND Section 3076 of Title 15, which explains the process and how or why an inmate can qualify.

These are 1) inmates with exceptional behavior; 2) if new information has come to light since the conviction; 3) The Secretary of CDCR decides that "circumstances have changes such that the inmate's continued incarceration is not in the interest of justice." We went with exceptional behavior.

We also prepared a huge stack of exhibits as if he were going to the parole board. Insight into his crime, remorse, parole plans, support letters, etc. It took him almost a year to write the insight section, because it was very detailed.

You have to send all this to the Classification and Parole Representative at his prison. Then there is a chain of command, described in Title 15, going up to the Warden who then sends it to the CDCR Secretary.

There is no time limit on when or even whether the Secretary has to rule on it.

We found we had to bug people all the way through the process because they'd never done it before. Or even heard of it. It took two years and the secretary never even notified us. I only found out when I randomly checked my husband's case file.

It's a ton of work, so before you do it, have him ask his counselor if he's in line for an 1170(d) from the prison staff. They do all the work so you don't have to! My husband has four friends who have already been chosen for this by prison staff. All of the guys are being told to also apply for a governor's commutation, I guess to have a backup in case the courts don't go along.

This is all very new. The prisons just started doing this a month or two ago, and they have $$ in the state budget to set up a task force to identify and process candidates.

Good luck!
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Old 06-27-2018, 09:40 AM
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So does someone in the prison have to file on behalf of them? Or can the inmate do it themselves to see if they are eligible?
Sorry, I missed this! See my answer to Nica above.
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Old 06-27-2018, 09:41 AM
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Does anyone have any information regarding the Petition to recall sentencing. I have read the links you all have posted, but have only seen what applies to LWOP and Compassionate release. My husband has 3 people he knows that this has happened too and neither of them are LWOP or compassionate release. Thanks!!
See my reply to Nica, hopefully that answers your question. The part of the Penal Code that applies here is 1170(d)(1), which is for any inmate with exceptional behavior. The compassionate release is 1170(e).
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Old 07-01-2018, 12:08 PM
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Old 09-26-2018, 09:30 PM
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Is the 1170 d 1 something they can file on their own? I told my lo to ask his counselor about it and he told him he needed to go to law library and get some paper. He said he had to do it himself.

Also I was wondering if someone could answer this question... he was sentenced 4 years for his crime and 10 years of enhancements for priors. Been in for 7.5 so far. Would this section be able to apply to him. I ask because from what I understand the 5 years for priors is something that is mandatory. And he’s saying that he can file saying for his crime he got too much time
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Old 10-02-2018, 12:35 AM
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Is the 1170 d 1 something they can file on their own? I told my lo to ask his counselor about it and he told him he needed to go to law library and get some paper. He said he had to do it himself.

Also I was wondering if someone could answer this question... he was sentenced 4 years for his crime and 10 years of enhancements for priors. Been in for 7.5 so far. Would this section be able to apply to him. I ask because from what I understand the 5 years for priors is something that is mandatory. And he’s saying that he can file saying for his crime he got too much time
Yes they can file on their own. There is no minimum time inside required for an inmate to file an 1170(d)(1) himself or herself. We've been told, however, that for CDCR staff to recommend an 1170, the person has to have served at least 10 years. My guy's only been for 8 and was told he was nominated but wouldn't qualify for that reason.

We applied ourselves 2 years ago and as you can read in my posts above, the CDCR secretary approved our petition. However the judge in the local court turned it down. So there's no guarantee it will work even after the parole board and CDCR approve it.

Saying he got too much time is probably not going to make a very strong case, for your LO in my opinion. He has to show that he is an exceptional inmate in terms of behavior, plus show strong support from community members and especially CDCR staff.

CDCR staff are now filing their own 1170 petitions with the courts and there is a big fat learning curve involved. I believe they are pursuing a few test cases in order to figure out how the heck they're going to get the courts and DAs to go along with these petitions. My husband's fizzled out, and now they're having to revisit how this process works.
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