Patchwork resentencing

For a decade, California's courts have been consumed with implementing sweeping legislative reforms that have significantly reduced sentences for many criminal defendants.

Such reforms raise two big questions about how to apply them equitably.

In an earlier article, I discussed one of these questions: which defendants immediately receive the benefits of a new reform. See "The Finality Line," Daily Journal, Dec. 10, 2021. It seems inequitable to apply a new sentencing law to a defendant sentenced today but not to one sentenced yesterday. Rather than using the date of enactment, California employs a presumption widely known as the Estrada rule: a favorable sentencing change applies to all defendants whose sentences have not yet become final on appeal. See People v. Estrada, 63 Cal.2d 740 (1965).

My article suggested that the Estrada rule hides inequities between defendants who do and don't receive the law's immediate benefits. This is not a reason to reject the Estrada rule, since drawing any such line carries inequities. Even so, those who work with criminal law should understand the rule's effects.

Here, I will discuss a second question: which imprisoned defendants later receive the benefits of a new law through resentencing.

To approach this issue, consider whether an arbitrarily bestowed resentencing opportunity would be equitable. Let's say that our Legislature enacted a (fictional) statute called the Last Name Act or LNA. It decided (hypothetically) that the budget did not permit resentencing hearings for all imprisoned defendants, so it authorized resentencing for only those whose last names begin with a letter from the first half of the alphabet.

Here is how the LNA would operate in conjunction with a real statute, Senate Bill No. 620. Before that law, many defendants had mandatory Penal Code § 12022.53 firearm enhancements of 10 years, 20 years, or 25 years to life. Starting in 2018, courts could dismiss these enhancements in the interest of justice or replace a longer term with a shorter one. See People v. Tirado, 12 Cal.5th 688 (2022). With a reduced or eliminated firearm enhancement, a defendant could receive a dramatically lower sentence.

Under the hypothetical LNA, imprisoned defendants named Mills and Nickles might each have a final sentence with mandatory, lengthy firearm enhancements imposed before 2018. But only Mills would obtain a resentencing hearing at which he could ask the court to strike the enhancement. Mills might succeed in obtaining a much lower sentence, yet Nickles would have no such chance. The LNA would split defendants into two classes: the lucky ones with names A through M would get resentencings, while those unfortunate ones named N through Z would not.

The A-through-M defendants could benefit from a host of California law changes. Some of the biggest are the grant of judicial discretion to strike five-year serious felony priors imposed under Penal Code § 667(a) per Senate Bill No. 1393 (2019); restrictions on juvenile transfers to adult court per Senate Bill No. 1391 (2019); the amendment to Penal Code § 1385 that directed courts to dismiss far more enhancements than before per Senate Bill No. 81 (2022); stricter requirements for gang enhancements under Assembly Bill No. 333 (2022); and the middle-term presumption, which made upper-term sentences much more difficult to impose, in Senate Bill No. 567 (2022). At a resentencing under the LNA, a fortunately named defendant could benefit from these new laws. But hard-luck defendants with late-alphabet names would be excluded.

What would you think of the differential treatment under the LNA, if it were real? Should a defendant named León receive the benefits of new laws at a resentencing if a defendant named Ortega did not, based simply on their last names?

The LNA is fictitious, but contemplating it could clarify the effect of real statutes that grant resentencings to some defendants while excluding others.

The most prominent of these was Senate Bill No. 483, which created Penal Code § 1172.75 in 2021. Several thousand imprisoned defendants have been resentenced under that law.

Section 1172.75 tied resentencing hearings to a 2019 statute that largely eliminated the common one-year "prison prior" enhancements that had been imposed under Penal Code § 667.5(b). Under section 1172.75, all defendants with at least one prison prior received a full resentencing. See People v. Rhodius, 17 Cal.5th 1050 (2025). That allowed them not only to eliminate their prison priors but also to receive the benefits of any other ameliorative changes. For instance, if they had a formerly mandatory section 12022.53 firearm enhancement, they could ask the trial court to strike it. If they were sentenced to the upper term of imprisonment, they could ask the trial court to impose the middle term under new standards.

But defendants whose judgments contain no prison priors receive no resentencing. They may be similarly situated to those who receive them, but they are out of luck. In that way, section 1172.75 created distinctions analogous to the fictional LNA.

Under section 1172.75, for example, a prisoner subject to a final judgment that includes a 10-year gang enhancement and a prison prior could receive a resentencing and have the gang enhancement vacated under Assembly Bill No. 333. People v. Martinez, 2025 WL 3548526 (Dec. 10, 2025). But a prisoner with a final judgment that includes a 10-year gang enhancement and no prison prior would have no chance to vacate the enhancement. See, e.g., People v. Garcia, 2025 WL 3641164 (Dec. 16, 2025).

Likewise, an assault defendant with a prison prior could have his sentence reduced under section 1172.75 by eliminating a five-year enhancement for great bodily injury, after Senate Bill No. 81 made it easier for judges to strike multiple enhancements in a case. People v. Hernandez, 103 Cal.App.5th 981, 991-993 (2024). But an assault defendant with the same enhancements and no prison prior would be unable to obtain a resentencing to challenge the great bodily injury enhancement. See, e.g., People v. Williams, 2025 WL 2802639 (Oct. 2, 2025).

Unlike the LNA's arbitrary last name criterion, there is a reason to identify the group of defendants who receive a § 1172.75 resentencing: they have a prison prior that the Legislature wanted removed from their judgment. But, like the LNA, there is no reason why these defendants are particularly deserving of other benefits that might flow from resentencing under new laws. Indeed, having a prison prior reflects worse conduct than not having one.

This is what I would call "patchwork resentencing": a statute identifying a group of defendants for resentencing while denying the benefit to others, with no penological rationale for why only the first group deserves it. We appellate justices have addressed many questions about the contours of these patches. But how the patches are defined is up to the Legislature, not us.

Importantly, the dominant academic theory of resentencing is not patchwork.

The Model Penal Code proposes that legislatures enact a pathway for so-called "second look" resentencing after a set period of custody time. In the MPC, that time is after 15 years in custody, and every 10 years after that. (See MPC § 11.02.)  According to the MPC commentary, the "trigger" for such resentencing is "the passage of enough time that the premises underlying the original sentence should be revisited." By then, "much new information" may be known about the defendant based on prison rehabilitation, "new criminological knowledge" may exist about sentencing objectives, and "broader societal values" related to punishment decisions may have shifted.

In its 2020 annual report, California's Committee on Revision of the Penal Code recommended adopting the MPC's "second look" approach. That hasn't happened, exactly.

Rather, criteria other than a set period of custody time have been adopted as resentencing triggers. For these resentencing pathways, California penal reformers sometimes borrow the MPC's "second look" terminology. But the MPC's approach is not patchwork. Under the MPC, a second look is warranted because a certain amount of time has passed, making it reasonable to consider changed circumstances about the defendant and about the legal landscape. That is a penological reason for selecting a group for resentencing, and it applies to every defendant who reaches that point, even if setting that point is a judgment call for the Legislature. Whether the threshold for resentencing is set at 15 years, 10, or 5 -- the rationale for exclusion and for eligibility is the same: whether enough time has passed to justify revisiting the sentence.

Under our statutes, in contrast, access to resentencings has been based on some other criterion. The triggering criteria are not as arbitrary as the defendant's last name in the hypothetical LNA above. Still, they distinguish among defendants by creating groups for resentencing without a penological basis for why they deserve the benefit of a host of statutes that others do not get. Under section 1172.75, for instance, the trigger and benefit are not the same: a prison prior justifies eliminating the prior, not reconsidering anything else in the judgment.

Of course, one way to be equitable among defendants is to offer no resentencings at all. California chooses to offer them, and individual defendants understandably welcome any resentencing opportunity. Still, an equitable question looms outside the record of any individual case. It is not a question for lawyers and judges in their case-specific roles, but it should interest anyone who works with criminal law. With an array of new laws that can lower sentences, is patchwork resentencing the approach California should rely on?