Criminal procedure: resentencing.

Existing law authorizes, when a defendant has been committed to the state prison or to a county jail for the commission of a felony, the court to recall the sentence and either reduce a defendant's term by modifying the sentence, or vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense and, with the agreement of the district attorney or attorney general, resentence the defendant to a reduced term. Existing law authorizes a defendant to be resentenced pursuant to these provisions upon the court's own motion within 120 days of the date of commitment, or upon the recommendation of specified individuals, including, among others, the district attorney of the county in which the defendant was sentenced. Existing law authorizes the court to consider postconviction factors, including evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. Existing law establishes a presumption favoring recall and resentencing of the defendant that can only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety. This bill would additionally authorize the court to recall a sentence, on its own motion, at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed due to new statutory or case law authority. The bill would specify that recall and resentencing under these provisions may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case. The bill would eliminate the requirement that the district attorney or Attorney General concur with the resentencing court's decision to vacate the defendant's conviction and resentence the defendant to a reduced term of imprisonment. The bill would prohibit a court that has recalled the sentence on its own motion from imposing a judgment on a necessarily included lesser offense or lesser related offense without the concurrence of both the defendant and the prosecutor if the conviction was the result of a plea bargain. The bill would require the court to consider postconviction factors and would specify that evidence that the defendant's incarceration is no longer in the interest of justice includes, but is not limited to, evidence that the defendant's constitutional rights were violated in the proceedings related to the conviction or sentence at issue. The bill would require the presumption favoring recall and resentencing to be overcome if a court finds that the defendant currently poses an unreasonable risk of danger to public safety. The bill would require the court, after ruling on a referral brought pursuant to these provisions, to advise the defendant of their right to appeal and the necessary steps and time for taking an appeal. This bill would incorporate additional changes to Section 1172.1 of the Penal Code proposed by AB 88 to be operative only if this bill and AB 88 are enacted and this bill is enacted last.