Proposition 36 Resentencing (PC 1170.126)

Someone you love is serving 25 years to life for a crime that wasn’t even violent. California voters decided that sentence was unjust over a decade ago. The question now is whether you have the right legal team to bring them home.

A conviction under California’s old Three Strikes law could mean a life sentence for something as minor as petty theft with priors or simple drug possession, as long as the person had two prior “strike” convictions. In 2012, California voters passed Proposition 36, the Three Strikes Reform Act, to correct this. The law created a resentencing mechanism under Penal Code section 1170.126 that allows people currently serving indeterminate life sentences for non-serious, non-violent third strikes to petition the court for a reduced sentence.¹

For many petitioners, resentencing means immediate release. They have already served far more time than their recalculated sentence would require. But the petition process is not automatic. It demands a thorough legal strategy, extensive documentation of rehabilitation, and the ability to persuade a judge that the petitioner does not pose an unreasonable risk to public safety.

If someone in your family is still serving a life sentence for a non-violent third strike, our team at The Nieves Law Firm Criminal Defense Attorneys can evaluate their eligibility and build the strongest possible case for resentencing. Schedule a consultation to discuss your options.

How Proposition 36 Changed the Three Strikes Law

Before Proposition 36, California’s Three Strikes law imposed a mandatory sentence of 25 years to life for any third felony conviction, regardless of how minor the offense was.² A person with two prior strikes who was convicted of shoplifting or possessing a small amount of drugs faced the same life sentence as someone convicted of a violent crime.

Proposition 36 reformed this system in two ways:

Prospective change. Going forward from November 2012, a 25-to-life sentence under the Three Strikes law can only be imposed when the new third felony is itself a serious or violent felony as defined in Penal Code sections 667.5, subdivision (c) and 1192.7, subdivision (c).^{3 4}

Retroactive resentencing. For people already serving life sentences under the old law, PC 1170.126 created a petition process to request resentencing to a determinate term as a second-striker.⁵ This is the provision that makes early release possible for qualifying individuals.

The distinction matters because Proposition 36 did not simply open the prison doors. It created a structured legal proceeding where eligibility must be proven and the court retains discretion to deny the petition based on public safety concerns.

Who Qualifies for Prop 36 Resentencing

Eligibility under PC 1170.126 requires the petitioner to satisfy three conditions.⁶

Serving an indeterminate life sentence under Three Strikes. The petitioner must currently be serving a 25-to-life sentence imposed under Penal Code section 667, subdivision (e)(2)(A) or section 1170.12, subdivision (c)(2)(A). This applies specifically to people sentenced as third-strikers.

The commitment offense is not a serious or violent felony. The crime that triggered the life sentence cannot be classified as a serious felony under PC 1192.7, subdivision (c) or a violent felony under PC 667.5, subdivision (c).^{7 8} This is the core of Proposition 36’s reform: life sentences should be reserved for serious and violent offenses.

No disqualifying offenses in the petitioner’s record. Even if the current offense qualifies, certain prior convictions or circumstances of the commitment offense can disqualify a petitioner. These disqualifiers are among the most heavily litigated aspects of Prop 36 cases.

Disqualifying Offenses and the “Armed” Problem

The eligibility analysis is where many petitions succeed or fail. The statute identifies specific categories that bar resentencing.⁹

Current Offense Disqualifiers

A petitioner is ineligible if the commitment offense involved:

• Being armed with a firearm or deadly weapon during the commission of the offense
• Intent to cause great bodily injury
• A sex offense requiring registration under Penal Code section 290
• Certain controlled substance offenses with aggravating factors (arming or intent to cause GBI)

Prior Conviction Disqualifiers (“Super Strikes”)

A petitioner is also ineligible if they have any prior conviction for offenses the statute designates as “super strikes,” including:

• Sexually violent offenses
• Child sexual abuse offenses committed by force (PC 288(a), PC 286, PC 287, PC 289 against a child under 14)
• Homicide or attempted homicide (PC 187, PC 664/187)
• Solicitation to commit murder (PC 653f)
• Assault with a machine gun on a peace officer
• Possession of a weapon of mass destruction
• Any serious or violent felony punishable by life imprisonment or death

Why the “Armed” Disqualifier Is So Contested

In practice, the most common basis for denying eligibility is the finding that the petitioner was “armed with a firearm” during the commitment offense. California courts have interpreted this broadly. Under People v. Bland (1995) 10 Cal.4th 991, being “armed” means having a firearm available for offensive or defensive use.¹⁰ Courts in People v. Osuna (2014) 225 Cal.App.4th 1020 and People v. White (2014) 223 Cal.App.4th 512 extended this, holding that the “armed” disqualifier applies even when the arming is an element of the commitment offense itself, such as felon-in-possession charges.^{11 12}

This means a petitioner whose third strike was being a felon in possession of a firearm may be found ineligible, even though the offense is non-violent. Challenging this finding requires careful factual analysis of whether the weapon was truly “available” during the commission of the offense or whether the circumstances support a narrower reading.

The Unreasonable Risk Standard

Even when a petitioner clears all eligibility hurdles, the court retains discretion to deny resentencing if it determines that release would pose an “unreasonable risk of danger to public safety.”¹³

This is where the real advocacy happens. The prosecution bears the burden of proving this risk by a preponderance of the evidence, as established in People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279.¹⁴

What the Court Considers

Under PC 1170.126, subdivision (g), the court may evaluate:¹⁵

• Criminal history. The type of crimes committed, the extent of injury to victims, the length of prior prison commitments, and how long ago the crimes occurred
• Disciplinary and rehabilitation record. The petitioner’s conduct while incarcerated, including both disciplinary violations and rehabilitative achievements
• Any other relevant evidence. This broad category allows the court to consider expert testimony, risk assessments, reentry plans, and community support

The Valencia Decision

An important distinction exists between Proposition 36 and Proposition 47 resentencing (the Safe Neighborhoods and Schools Act of 2014). Proposition 47 narrowed the definition of “unreasonable risk” to mean the risk of committing a “super strike” offense. Some petitioners argued this narrower definition should also apply to Prop 36 cases.

The California Supreme Court rejected this argument in People v. Valencia (2017) 3 Cal.5th 347, holding that the broader “unreasonable risk” standard continues to apply to Proposition 36 resentencing petitions.¹⁶ This means the court has wider latitude to consider general public safety concerns when evaluating a Prop 36 petition than it would under Prop 47.

Understanding this distinction is critical for petition strategy. The broader standard means petitioners must present a more comprehensive case for their safety upon release.

Building the Case for Resentencing

Winning a Prop 36 petition requires more than proving eligibility on paper. The court needs to be convinced that the petitioner has changed and that releasing them serves both justice and public safety. This is where experienced legal representation makes the difference.

Rehabilitation Documentation

The strongest petitions present a detailed picture of transformation during incarceration:

• Educational achievements. GED completion, college coursework, vocational certifications
• Programming participation. Self-help groups, substance abuse treatment, anger management, cognitive behavioral therapy
• Work history. Consistent prison employment, positive evaluations, increasing responsibility
• Laudatory chronos. Written commendations from correctional staff recognizing positive conduct
• Disciplinary record. A clean record, or a record showing clear improvement over time, directly addresses the court’s safety concerns

Expert Risk Assessment

Forensic psychologists can conduct validated risk assessments using instruments like the HCR-20 to evaluate the petitioner’s current risk level. Expert testimony carries significant weight, particularly when it addresses age-related desistance from crime. Research consistently shows that criminal behavior declines substantially with age, and many Prop 36 petitioners are now in their 50s, 60s, or older after decades of incarceration.

Reentry Planning

A concrete, realistic reentry plan demonstrates that the petitioner will have support upon release. This includes confirmed housing arrangements, employment prospects or commitments, community organization involvement, and family support. Letters from family members, community leaders, and prospective employers help the court visualize a successful transition.

Contextualizing the Criminal History

Many third-strikers accumulated their strike priors decades ago, often during periods of addiction, youth, or extreme circumstances. Presenting this context honestly, without minimizing the harm caused, while showing the distance between who the petitioner was and who they are now, is essential to overcoming the prosecution’s public safety argument.

The Right to Counsel

The California Supreme Court confirmed in People v. Frierson (2017) 4 Cal.5th 225 that petitioners have the right to counsel in Prop 36 resentencing proceedings.¹⁷ This is significant because the quality of legal representation directly impacts outcomes.

Public defender offices, including Alameda County’s, have dedicated resentencing units. But privately retained counsel can often devote more individualized attention to building the rehabilitation case, gathering prison records from CDCR, retaining forensic experts, and coordinating with the petitioner and their family throughout the process.

Many of the families who contact us about Prop 36 cases are searching on behalf of an incarcerated loved one. The petition must be filed in the county where the original conviction occurred, not where the prison is located. For convictions out of Alameda County, proceedings are heard at the Rene C. Davidson Courthouse in Oakland.

What Happens After Resentencing

If the court grants the petition, the petitioner is resentenced as a second-striker rather than a third-striker. Under the second-strike formula, the sentence for the commitment offense is doubled from the base term.¹⁸

For example, if the base middle term for the underlying offense is three years, the second-strike sentence would be six years. Many Prop 36 petitioners have already served 15 to 25 or more years, far exceeding any recalculated determinate sentence. In these cases, resentencing leads to release, typically with a period of parole supervision.

SB 1393 and the Five-Year Enhancement

If the original sentence included a five-year prior serious felony enhancement under Penal Code section 667, subdivision (a), Senate Bill 1393 (effective January 1, 2019) now gives courts discretion to strike that enhancement at resentencing.¹⁹ This can further reduce the recalculated sentence and is an important argument to raise during the petition process.

Credit for Time Served

Petitioners receive full credit for all time already served.²⁰ This is why many successful petitions result in immediate or near-immediate release.

Filing Deadlines and Late Petitions

The original statute set a two-year filing deadline from the effective date of Proposition 36, which would have been November 7, 2014. However, California courts have generally permitted late filings where good cause is shown. Many petitions have been filed and adjudicated well beyond this deadline.

If your loved one has not yet filed a petition, do not assume the opportunity has passed. Courts recognize that access to legal information and representation varies significantly for incarcerated individuals, and late filings are routinely accepted.

Why Experienced Counsel Matters for These Cases

Prop 36 resentencing petitions are not simple motions. They require gathering years of prison records from the California Department of Corrections and Rehabilitation, retaining and coordinating with forensic experts, building a persuasive rehabilitation narrative from documentary evidence, and presenting that case effectively to a judge who must weigh public safety against the injustice of a disproportionate sentence.

Our team at The Nieves Law Firm Criminal Defense Attorneys handles these cases with the resources and attention they demand. As one of the largest criminal defense teams in Oakland and the Greater Bay Area, we have the capacity to manage the extensive documentation, expert coordination, and court appearances that Prop 36 cases require. For petitioners who may also benefit from additional post-conviction relief options such as expungement or felony reduction upon release, we work closely with clients to address those concerns as part of a comprehensive strategy.

Take the First Step Toward Bringing Your Loved One Home

Every day that passes under a disproportionate sentence is a day that cannot be recovered. If someone in your family is still serving 25 years to life for a non-violent third strike, Proposition 36 may offer a path to freedom.

Our team is ready to evaluate eligibility, build the rehabilitation case, and advocate for resentencing before the court. Contact The Nieves Law Firm Criminal Defense Attorneys today to discuss your family’s situation.