Legislative Update: State Lawmaker Proposes Old LWOP Cases Be Eligible for Recall and Resentencing

Legislative Update 
By Raymond Hill  
Professor Emeritus, Santa Rosa Junior College  

Legal Issues 

Recall and resentencing of convicted life without parole (special circumstances murder) offenders (SB 94, Dave Cortese (D) Santa Clara, 1170.02 &1172.5 P.C.). 

This legislation would institute a legal process whereby an inmate who has been sentenced to life without the possibility of parole before June 5, 1990, and who has served at least 25 years in prison to petition a Superior Court for hearing to recall their sentence. A judge could resentence the inmate to the lesser term of 25 years to life, and potentially make them eligible for parole. The judge’s decision would then be reviewed by the Board of Parole Hearings. 

This legislation cleared the Senate with a vote of 22 out of 40 members (a simple majority was needed). The bill is now before the Assembly Public Safety Committee and has been subject to two hearings. The last day to pass the bill by a simple majority is Sept. 14, 2023. If forwarded to the governor, he can either sign the bill, veto it, or take no action and the bill would automatically become law without his signature. 

As noted in the California Peace Officers’ Association Legislative Deep Dive from June 2023, the proponents of the legislation argue that: 

• The majority of people serving LWOP are “low risk” 

• Elderly inmates are less likely to reoffend 

• Inmates who have previously sentenced to LWOP and had their sentences commutated and were paroled have a 0% recidivism rate. 

According to the bill text, “Judges should have the opportunity to take a second look at these sentences in light of evolving standards of decency and reforms that mandate the consideration of mitigating factors at sentencing such as youth, childhood trauma, victimization, race, military service and mental illness, and in light of changed circumstances, including an individual’s rehabilitation” in the prison system. If after a hearing sentence commutation is denied, the inmate can petition for a new hearing after three years., 

Amongst the factors for a judge “shall consider and afford great weight to” ....

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