Can a convicted felon who would have been convicted of a misdemeanor under section 1170.18 of the California Penal Code apply for a recall of sentence?

California, United States of America


The following excerpt is from People v. Mendoza, E062577 (Cal. App. 2015):

"A person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under the act that added this section . . . had this act been in effect at the time of the offense may petition for a recall of sentence before the trial court that entered the judgment of conviction in his or her case to request resentencing in accordance with . . . [section] 666 of the Penal Code, as [that] section[] [has] been amended . . . ." ( 1170.18, subd. (a).) "Any felony conviction that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes . . . ." ( 1170.18, subd. (k).) To preserve a claim for appeal, a defendant must make a timely objection below. However, a failure to timely object will be excused if doing so would have been futile. (People v. Jackson (2014) 58 Cal.4th 724, 762.)

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