Penal Code § 1170.126

Proposition 36, which has subsequently been codified in Penal Code § 1170.126, is one of the earliest criminal justice reform measures. Penal Code 1170.126 is a statute that permits certain inmates who were sentenced under the prior “Three Strikes Law” to obtain a resentencing hearing.

In 2012, Proposition 36 changed the California Three Strikes Law, limiting the type of offenses that count as “strikes.” Under the new version of the Three Strikes Law, only “violent and “serious” felonies are considered strikes; however, prior to 2012, any felony was a strike.

Thus, the provisions of Penal Code § 1170.126 apply to inmates who are serving indeterminate life sentences based on the old Three Strikes Law that would not have received the same sentence under the new Three Strike Law. To qualify for a § 1170.126 resentencing, you must meet the following criteria:

• You are serving an indeterminate sentence of life imprisonment (i.e., 25 years to life);
• You are not currently serving a sentence for a “second strike” conviction under § 667(e)(1) or 1170.12(c)(1);
• You are not currently serving a sentence for a “violent” or “serious” felony, as defined by § 667.5(c) or 1192.7(c).
• You are not currently serving a sentence for any of the offenses listed in § 667(e)(2)(c)(i-iii) or § 1170.12(c)(2)(C)(i-iii) (certain drug offenses, felony sex crimes, or crimes involving the possession or use of a firearm)

In addition, to qualify for relief under § 1170.126, you must never have been convicted of any of the following crimes:

• A “sexually violent offense,”
• oral copulation with a child under 14,
• lewd or lascivious acts involving a child,
• any homicide offense,
• solicitation to commit murder,
• assault with a machine gun,
• possession of a weapon of mass destruction, or
• any “serious” or “violent” offense punishable by life imprisonment or death.

Under the terms of the statute, the judge must first determine that an inmate is technically eligible for relief. If the judge determines an inmate is eligible, they “shall” order a resentencing hearing unless the judge finds that the inmate would “pose an unreasonable risk of danger to public safety.”

In assessing an inmate’s potential for future dangerousness, the court will consider:

• An inmate’s criminal record;
• An inmate’s disciplinary record while in custody; and
• Any other relevant evidence.

In this way, judges have considerable discretion in awarding a resentencing hearing under § 1170.126. Perhaps one of the most important elements of a 1170.126 resentencing petition is a “character package.” A character package includes a comprehensive description of an inmate’s rehabilitative efforts, including:

• Self-help classes (Alcoholics Anonymous, Anger Management, etc.);
• Educational pursuits (obtaining a GED or a college degree);
• Remorse letter;
• Detailed descriptions of post-release plans;
• Letters of support;
• Laudatory chronos awarded by correctional officers; and
• Any other evidence which shows that an inmate has successfully rehabilitated themselves.

The more compelling an inmate’s character package, the more convincing their resentencing petition will be.

If you or a loved one is currently serving a sentence after being convicted under the Three Strikes law, you may be eligible for a resentencing hearing. At Power Trial Lawyers, we have successfully handled multiple resentencing petitions on behalf of inmates charged with and convicted of serious crimes. If you do not qualify for a resentencing hearing under § 1170.126, we can advise you of other possibilities, such as an AB 2942 Petition, 1170.03 Petition, or an Application for Commutation of Sentence. We also handle state and federal applications for a writ of habeas corpus and direct appeals. To learn more about your post-conviction and appellate options, contact Power Trial Lawyers to schedule a free consultation at (213) 800-7664.