Sentence Modification

Summary: This page covers Why your criminal defense attorney should represent you during a sentence modification hearing..

Sentence modifications are quite common in criminal proceedings in California. A sentence modification, when granted by the court, changes the terms of your sentence. Obtaining a modification requires going back to court after being sentenced to petition the judge to alter the terms of your original sentence. The law does allow you to petition the judge, through your criminal defense lawyer, to postpone your sentence, revoke your sentence, or issue a stay of payment of fines.

Your attorney has 2 years from the date of sentencing to petition for a modification, or can petition the sentencing court at any time if there is found to be good cause. The court may also issue modify the sentence up to 120 days after sentencing on its own accord. In the event the court, on its own initiative, moves to recall or resentence the defendant, notices will be sent to all parties, and a hearing date will be established.

Sentence modification can be done under the following circumstances:

1. If a clerical error was made

   The court has the power to correct a sentence that results from clerical errors. This is done by amending the abstract to reflect the right sentence. For instance, the judge might have pronounced a 13-year sentence but the clerk enters 30 years in the court minutes.

2. If the sentence issued is illegal

   Illegal sentences can be a result of clerical errors or where a court issues a sentence that it has no power to pronounce. Where this happens, the same court can modify the sentence and grant a legal sentence, even where the new sentence will be greater.

   For example, if the court grants probation where the penal codes governing that crime might not support probation as a penalty, the court has to modify by issuing a sentence that is supported by the law.

3. When the court commits a judicial error

   Judicial error happens when the court makes an error of judgement when determining its sentence. For example, the court could misapply the law, ignore certain factors presented in evidence, or act under wrongful guidance from counsel, resulting in a judicial error.

   Such a sentence cannot be modified under the same court that made the judgement, but is handled through the California Courts of Appeal.

4. Recalling a sentence under California Penal code 1170(h)

   The court can recall a sentence within 120 days since pronouncement. A recall differs from a correction in that the court may have decided to reconsider and issue a new sentence even though the original sentence was correct. A sentence issued during a recall cannot exceed the sentence issued originally.

5. Modification when you are already serving time: The writ of habeas corpus

   A normal appeal process applies when you have already started serving your sentence, but you still believe the sentencing was wrong. Such an appeal process does not allow new evidence to be introduced in court. Instead, the appellate court looks at the evidence that was used to decide the case, to see if anything was missed. With a writ of habeas corpus, your lawyer can present new evidence to the court and argue that, based on this new evidence, your rights were violated during sentencing and that the sentence should be modified or altogether vacated.

6. When there is good cause

   The legislature has recognized that a prisoner’s health status may change over the course of a sentence. Penal Code 1170 allows for the defendant to petition the court at any time during the serving of a sentence if there is good cause. Good cause may include: muscular or neurological problems, organ failure, the reduction of mental functions, or any other cause as determined to be good by the court.