Can I be resentenced under Prop. 64?

There are three requirements for resentencing. The court must resentence you unless the District Attorney (prosecution) proves that you do not meet the requirements by clear and convincing evidence.[3130]

Requirement 1: You are “currently serving a sentence.”[3131] (There is otherwise no time limit.)
Although “currently serving a sentence” is not defined in Prop. 64, it likely includes you if you are:

    Serving time in prison, county jail, or a juvenile facility; OR
    On probation, post-release community service, mandatory supervision, or state parole.[3132]

Requirement 2: You would not have been guilty of an offense, or would have been guilty of a lesser offense under Prop. 64, had had it been in effect at the time of your offense.[3133]

Requirement 3: You do not pose an “unreasonable risk of danger to public safety.”

    “Unreasonable risk of danger to public safety” for Prop. 64 means there is an unreasonable risk you will commit a new violent offense (among the ones listed in Cal. Penal Code section 667(e)(2)(C)(iv)).[3134]

IMPORTANT NOTE IF YOU HAVE A PENDING APPEAL: You may be able to argue you should be resentenced without the court first deciding if you pose an “unreasonable risk.” The argument is that Prop. 64 applies retroactively to all cases pending on appeal because of a case called In re Estrada.[3135] Consult with your appellate attorney about this argument.

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  1. 3130

    Cal. Health & Saf. Code § 11368.1(b), (f); see People v. Buford (2016) 4 Cal.App.5th 886, 888 [people bear burden of proof in Prop.36 “unreasonable risk” question

  2. 3131

    Cal. Health & Saf. Code §11361.8(a)

  3. 3132

    See People v. Davis (2016) 246 Cal. App. 4th 127, 138-142 [“currently serving a sentence” in Prop. 47 should be construed liberally and include probation]; People v. Garcia (2016) 245 Cal. App. 4th 555, 557-559 [same]

  4. 3133

    Cal. Health & Saf. Code § 11361.8(a)

  5. 3134

    Cal. Health & Saf. Code § 11362.1(b)(2), citing Cal. Penal Code § 1170.18(c).

  6. 3135

    See In re Estrada, 63 Cal.2d 740 (1965). The U.S. Supreme Court decided Estrada did not apply to Prop. 36 in People v. Conley (2016) 63 Cal.4th 646. Judges Couzens and Bigelow have opined that Conley should also mean that Estrada does not apply to Prop. 64: http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf (pgs. 5-7). However, Conley does not eliminate the question for Prop. 64. The Supreme Court in People v. DeHoyos, S228230, is set to decide if Prop. 47 can be distinguished from Conley based on a different legislative intent. The legislative intent of Prop. 64 is distinct from both Prop.36 and 47; it is more similar to Prop. 47.