Proposition 36 Resentencing (PC 1170.126)

Serving 25-to-life for a non-violent third strike? You may qualify for resentencing and release under PC 1170.126. Our San Diego lawyers petition for reduced sentences. Call 24/7.

A life sentence for a non-violent crime. That’s the reality for thousands of Californians sentenced under the old Three Strikes Law, where stealing a pair of shoes or possessing a small amount of drugs could trigger 25 years to life in state prison simply because of two prior strike convictions.

If someone you love is serving an indeterminate life sentence for a third-strike offense that wasn’t serious or violent, Proposition 36 may offer a path to freedom. Passed by California voters in 2012, the Three Strikes Reform Act created a resentencing mechanism that has already brought thousands of people home.

These are not hopeless cases. Charges get reduced. Sentences get recalled. People come home. It happens.

But the petition process is far more complex than filling out paperwork. The prosecution will fight it. The court will scrutinize every detail of the petitioner’s criminal history and prison record. A dangerousness hearing is essentially a mini-trial, and it requires the same level of preparation, investigation, and skilled advocacy as any serious felony case.

At David P. Shapiro Criminal Defense Attorneys, we understand what’s at stake for your family. As San Diego expungement and post-conviction relief lawyers, we’ve handled serious felony cases throughout San Diego County, from investigation through jury verdict. That courtroom experience translates directly to Prop 36 dangerousness hearings, where the difference between going home and staying in prison often comes down to the quality of the advocacy.

The sooner we start, the more options you have.

Quick Reference: PC 1170.126 Resentencing

Classification	Post-conviction resentencing petition (not an offense)
Who Qualifies	Inmates serving 25-to-life where the third-strike offense was NOT a serious or violent felony
If Petition Granted	Resentenced to determinate term under second-strike formula (double the base term)
If Petition Denied	Original 25-to-life sentence remains; petitioner may appeal
Key Obstacle	Court may deny if resentencing poses “unreasonable risk of danger to public safety”
Filing Deadline	Original two-year deadline has passed, but courts have been flexible; petitions still being processed

What Is Proposition 36 Resentencing?

Important note: This page addresses the 2012 Proposition 36 (the Three Strikes Reform Act), not the 2024 ballot measure also called “Proposition 36,” which dealt with theft and drug offense penalties. These are entirely different laws.

Now, what exactly did the 2012 Prop 36 do? Well, it changed California’s Three Strikes Law in two critical ways.¹

The old Three Strikes Law (1994-2012) imposed a sentence of 25 years to life for any third felony conviction, no matter how minor, as long as the defendant had two prior “strike” convictions.² That meant someone could receive a life sentence for shoplifting, petty theft, or simple drug possession. And people did. Thousands of them.

Proposition 36 changed the rule going forward: After November 2012, a 25-to-life sentence only applies when the current (third-strike) offense is itself a serious or violent felony.³ A non-violent third strike now results in a doubled determinate term (the second-strike formula) rather than a life sentence.

Proposition 36 also looked backward: Penal Code Section 1170.126 created a resentencing mechanism for people already serving life sentences under the old law, where their third-strike offense was not serious or violent.⁴ This is the provision that allows eligible inmates to petition the court for a reduced sentence and, in many cases, immediate release.

That distinction matters. The prospective change fixed the law going forward. Section 1170.126 is the tool that brings people home who were sentenced under the old, broken version of the law.

Who Is Eligible for Prop 36 Resentencing?

To qualify for resentencing under PC 1170.126, a petitioner must meet all three of the following criteria:⁵

1. Currently serving an indeterminate life sentence (25-to-life) imposed under the Three Strikes Law.

This is straightforward. The petitioner must be in prison right now, serving a life sentence that was imposed because of the Three Strikes Law.

2. The current conviction (the “third strike”) is NOT a serious or violent felony.

This is the core eligibility question. The third-strike offense, the one that triggered the life sentence, must not appear on the list of serious felonies under Penal Code Section 1192.7, subdivision (c), or violent felonies under Penal Code Section 667.5, subdivision (c).^{6 7}

Common third-strike offenses that do qualify include petty theft with priors, drug possession, receiving stolen property, commercial burglary, vehicle theft, and forgery. These are serious crimes, but they are not classified as “serious” or “violent” felonies under California law.

3. None of the statutory disqualifying factors apply.

Even if the third-strike offense was non-violent, certain circumstances make a petitioner ineligible.⁸ These disqualifying factors include:

Current offense disqualifiers:

• The current offense involved being armed with a firearm or deadly weapon
• The current offense is a sex crime requiring registration under Penal Code Section 290
• The current offense involved intent to cause great bodily injury

Prior conviction disqualifiers (“super strikes”):

• A sexually violent offense
• Any homicide offense, including attempted murder
• Certain sex offenses involving children under 14 or committed by force
• Solicitation to commit murder
• Assault with a machine gun on a peace officer or firefighter
• Possession of a weapon of mass destruction
• Any serious or violent felony punishable by life imprisonment or death

The bottom line: if the prosecution cannot establish any of these disqualifying factors, and the third-strike offense is not serious or violent, the petitioner clears the eligibility threshold. But eligibility is only the first hurdle.

The “Armed With a Firearm” Problem

This is the single most litigated issue in Prop 36 cases, and it deserves its own discussion because it trips up more petitions than any other factor.

Here’s the scenario that comes up constantly: someone is serving 25-to-life for a drug possession offense. During the arrest, police found a firearm in the home. The prosecution argues the petitioner was “armed with a firearm” during the commission of the offense, which disqualifies them from resentencing.

What does “armed” actually mean in this context? The California Supreme Court addressed this directly in People v. Bland (2017), holding that being “armed” requires a “facilitative nexus” between the arming and the underlying offense.⁹ In plain English, there has to be a connection between the weapon and the crime. A gun sitting in a closet while drugs are found in the kitchen doesn’t automatically mean the person was “armed” during a drug offense.

This distinction is critical, and it’s where skilled legal advocacy makes the biggest difference. The prosecution will push for the broadest possible interpretation of “armed.” We can, and will, challenge that interpretation if the facts support a position to do so.

Courts have gone both ways on this issue depending on the specific facts: where the firearm was located, whether it was accessible, whether there was any evidence it was used or available for use during the offense. Every detail matters.

The Dangerousness Hearing

Even if a petitioner is statutorily eligible, the court can still deny resentencing under one condition: if it determines that releasing the petitioner would pose an “unreasonable risk of danger to public safety.”¹⁰

What does that look like in practice? It looks like a trial.

The prosecution bears the burden of proving dangerousness by a preponderance of the evidence.¹¹ The court considers:

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. Remoteness matters. Crimes committed decades ago carry less weight than recent conduct.

Prison disciplinary record: The court examines the petitioner’s behavior while incarcerated. Serious disciplinary violations (especially violent ones) weigh against resentencing. A clean record, or a record showing improvement over time, supports it.

Record of rehabilitation: This is often where the case is won or lost. Completion of educational programs, vocational training, substance abuse treatment, and participation in restorative justice programs all demonstrate that the petitioner has changed. The court wants to see evidence of genuine transformation, not just time served.

Any other relevant evidence: This catch-all provision allows both sides to present additional evidence. For petitioners, this means reentry plans, family support, employment prospects, and expert testimony on risk.

The standard under Prop 36 is broader than the dangerousness standard under Proposition 47. In People v. Valencia (2017), the California Supreme Court confirmed that courts have wider discretion to assess dangerousness in Prop 36 cases.¹² That means the prosecution doesn’t have to show the petitioner would commit a “super strike” if released. They just have to show an unreasonable risk to public safety, which is a lower bar.

This is exactly why the dangerousness hearing requires experienced courtroom advocacy, not just paperwork.

What Happens After Resentencing Is Granted

So the petition is granted. What happens next? Well, the court resentences the petitioner under the second-strike formula: double the determinate term for the underlying offense.¹³

Let’s walk through what that means with a concrete example.

Say the third-strike offense was petty theft with priors, carrying a base term of 16 months, 2 years, or 3 years. Under the second-strike formula, that becomes 32 months, 4 years, or 6 years. If the petitioner has already served 15 or 20 years on what was originally a 25-to-life sentence, they’ve served far beyond the new determinate term. The result: release.

Many petitioners are released shortly after resentencing because their time served already exceeds the recalculated sentence. For families who have waited years, sometimes decades, this is the moment everything changes.

After release, resentenced individuals are typically placed on parole supervision for a period not exceeding three years.¹⁴ Conditions vary, but the court has discretion to tailor supervision to the individual’s circumstances.

One important point: resentencing does not erase prior strikes from the petitioner’s record. The strikes remain. If the person commits a new felony in the future, those prior strikes still count. Resentencing is about correcting a disproportionate sentence, not wiping the slate clean.

Strategies for a Successful Petition

For all intents and purposes, a Prop 36 petition requires the same level of preparation as a felony trial. Here are the approaches we consider when building a case for resentencing:

Establishing Statutory Eligibility

The foundation of every petition. We analyze the petitioner’s commitment offense, prior convictions, and any findings attached to the original sentence to confirm that no disqualifying factors apply. This often requires obtaining and reviewing the original court records, abstracts of judgment, and sentencing transcripts.

Challenging “Armed” Findings

As discussed above, this is the most common eligibility obstacle. When the prosecution claims the petitioner was armed during the commission of the offense, we examine every factual detail: the location of the weapon relative to the criminal conduct, whether there was any facilitative connection, and whether the original record actually supports an “armed” finding. The Bland decision provides strong authority for narrowing this disqualifier.¹⁵

Building a Rehabilitation Record

For eligible petitioners facing a dangerousness objection, rehabilitation evidence is the centerpiece of the case. We gather and present:

• Educational achievements and vocational certifications earned in prison
• Completion of substance abuse treatment programs
• Participation in restorative justice, mentoring, or counseling programs
• Positive chronological records from correctional staff
• Evidence of disciplinary improvement over time
• Letters of support from program facilitators and institutional staff

Presenting a Comprehensive Reentry Plan

The court wants to know: what happens when this person walks out of prison? We work with petitioners and their families to develop detailed reentry plans that address housing, employment or employment prospects, family support, community ties, and compliance with supervision conditions. A strong reentry plan directly addresses the court’s public safety concerns.

Expert Testimony on Risk

In contested cases, forensic psychologists and risk assessment experts can provide critical testimony. Validated risk assessment tools offer the court an evidence-based framework for evaluating whether the petitioner poses an unreasonable risk. Expert testimony is particularly valuable when the petitioner’s criminal history looks concerning on paper but the underlying circumstances tell a different story.

Contextualizing Criminal History

Criminal histories don’t exist in a vacuum. We present the context: how old was the petitioner when prior offenses occurred? What were the circumstances? How remote are the prior convictions? What has changed since then? A person who committed crimes in their twenties during a period of addiction and has now spent two decades sober and engaged in rehabilitation is not the same person who walked into prison.

Leveraging Sentencing Reform Legislation

California has enacted significant sentencing reforms since Prop 36 passed. Senate Bill 136 eliminated the one-year prior prison term enhancement for most offenses.¹⁶ Senate Bill 1393 gave courts discretion to strike prior serious felony enhancements.¹⁷ These legislative changes reflect evolving standards of justice and may further reduce resentenced terms. We ensure every applicable reform is factored into the petition.

The Petition Process: What to Expect

Here’s the timeline, step by step:

Step 1: Petition filed. The petition is filed with the trial court that entered the original judgment of conviction. In San Diego County, most petitions are filed and heard at the San Diego Superior Court, Central Division.

Step 2: Initial eligibility screening. The court reviews the petition to determine whether the petitioner is facially eligible. This may be done on the papers alone, without a hearing.

Step 3: Prosecution response. If the petitioner appears eligible, the prosecution files an opposition, if any. In San Diego County, the District Attorney’s Office has historically been aggressive in opposing Prop 36 petitions on dangerousness grounds.

Step 4: Evidentiary hearing. If the prosecution opposes on dangerousness, the court holds an evidentiary hearing. This is where the real advocacy happens. Both sides present evidence, call witnesses, and make arguments. The petitioner has a right to appointed counsel for this proceeding.¹⁸

Step 5: Court ruling. The court grants or denies the petition.

Step 6: If granted. Resentencing occurs, credits are calculated, and the petitioner may be released if time served exceeds the new sentence. Parole supervision is imposed.

Step 7: If denied. The petitioner has the right to appeal. A denial is not necessarily the end.

The entire process can take months to over a year from filing to resolution, depending on the complexity of the case and the court’s calendar.

Related Resentencing and Relief Provisions

Prop 36 is not the only path to sentence relief in California. Depending on the circumstances, other provisions may apply:

Proposition 47 (PC 1170.18): Enacted in 2014, Prop 47 reclassified certain felonies as misdemeanors, including many drug possession and petty theft offenses. Individuals convicted of these offenses can petition for resentencing or reclassification. Some people may qualify for relief under both Prop 36 and Prop 47.¹⁹

SB 1437 Resentencing (PC 1172.6): For individuals convicted of murder under the felony murder rule or the natural and probable consequences doctrine, Senate Bill 1437 created a separate resentencing mechanism. This is a different process with different eligibility criteria, but it reflects the same legislative trend toward correcting disproportionate sentences.²⁰

Recall of Sentence (PC 1172.1): Courts, the California Department of Corrections and Rehabilitation (CDCR), and district attorneys have authority to recommend recall of sentence in certain circumstances. This broader recall provision may offer an alternative path when Prop 36 eligibility is in question.²¹

2012 vs. 2024 Prop 36 Reminder: The 2024 ballot measure also called “Proposition 36” amended sentencing for certain theft and drug offenses. It is a completely separate law from the 2012 Three Strikes Reform Act discussed on this page. If you’re unsure which law applies to your situation, we can help clarify.

Depending on the petitioner’s circumstances, additional post-conviction remedies such as expungement under PC 1203.4 or reducing a felony to a misdemeanor under PC 17(b) may also be available after resentencing is granted.

Facing a Prop 36 Resentencing Petition in San Diego?

San Diego County was one of the most aggressive jurisdictions in California when it came to Three Strikes prosecutions in the 1990s and 2000s. That means a significant number of people are serving life sentences for non-violent third strikes, and many of them may still qualify for resentencing. We’ve handled serious felony cases throughout San Diego County, and the courtroom skills that matter in a jury trial are the same skills that matter in a dangerousness hearing: investigation, preparation, cross-examination, and persuasive advocacy. Every day that passes is another day your loved one spends in prison on a sentence that California voters decided was unjust.

Call us 24/7 for a consultation. We’ll review the case, assess eligibility, and explain what a petition would look like. Contact our team today to protect your loved one’s freedom — you must know what options are available.

References

1. 1. Proposition 36, the Three Strikes Reform Act of 2012 (approved by California voters, November 6, 2012).↑ Proposition 36, the Three Strikes Reform Act of 2012 (approved by California voters, November 6, 2012).
2. 2. Penal Code, § 667, subd. (e)(2)(A) [Three Strikes sentencing, pre-2012 version].↑ Penal Code, § 667, subd. (e)(2)(A) [Three Strikes sentencing, pre-2012 version].
3. 3. Penal Code, § 667, subd. (e)(2)(C) [Three Strikes sentencing, as amended by Proposition 36].↑ Penal Code, § 667, subd. (e)(2)(C) [Three Strikes sentencing, as amended by Proposition 36].
4. 4. Penal Code, § 1170.126 [Resentencing provision for eligible third-strike inmates].↑ Penal Code, § 1170.126 [Resentencing provision for eligible third-strike inmates].
5. 5. Penal Code, § 1170.126 [Resentencing provision for eligible third-strike inmates].↑ Penal Code, § 1170.126 [Resentencing provision for eligible third-strike inmates].
6. 6. Penal Code, § 1192.7, subd. (c) [Definition of serious felony].↑ Penal Code, § 1192.7, subd. (c) [Definition of serious felony].
7. 7. Penal Code, § 667.5, subd. (c) [Definition of violent felony].↑ Penal Code, § 667.5, subd. (c) [Definition of violent felony].
8. 8. Penal Code, § 667, subd. (e)(2)(C)(i)-(iv) [Disqualifying factors for Proposition 36 resentencing].↑ Penal Code, § 667, subd. (e)(2)(C)(i)-(iv) [Disqualifying factors for Proposition 36 resentencing].
9. 9. People v. Bland (2017) 3 Cal.5th 901 [facilitative nexus required for “armed” disqualifier].↑ People v. Bland (2017) 3 Cal.5th 901 [facilitative nexus required for “armed” disqualifier].
10. 10. Penal Code, § 1170.126, subd. (f) [Unreasonable risk of danger to public safety].↑ Penal Code, § 1170.126, subd. (f) [Unreasonable risk of danger to public safety].
11. 11. People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 [prosecution bears burden of proving dangerousness by preponderance of evidence].↑ People v. Superior Court (Kaulick) (2013) 215 Cal.App.4th 1279 [prosecution bears burden of proving dangerousness by preponderance of evidence].
12. 12. People v. Valencia (2017) 3 Cal.5th 347 [broader dangerousness standard under Prop 36 compared to Prop 47].↑ People v. Valencia (2017) 3 Cal.5th 347 [broader dangerousness standard under Prop 36 compared to Prop 47].
13. 13. Penal Code, § 1170.126, subd. (g); Penal Code, § 1170.12, subd. (c)(2)(A) [second-strike resentencing formula].↑ Penal Code, § 1170.126, subd. (g); Penal Code, § 1170.12, subd. (c)(2)(A) [second-strike resentencing formula].
14. 14. See Penal Code, § 3000.1 [parole supervision following resentencing].↑ See Penal Code, § 3000.1 [parole supervision following resentencing].
15. 15. People v. Bland (2017) 3 Cal.5th 901 [facilitative nexus required for “armed” disqualifier].↑ People v. Bland (2017) 3 Cal.5th 901 [facilitative nexus required for “armed” disqualifier].
16. 16. Senate Bill 136 (2020), amending Penal Code, § 667.5, subd. (b) [eliminating one-year prior prison term enhancement for most offenses].↑ Senate Bill 136 (2020), amending Penal Code, § 667.5, subd. (b) [eliminating one-year prior prison term enhancement for most offenses].
17. 17. Senate Bill 1393 (2019), amending Penal Code, §§ 667, 1385 [granting courts discretion to strike prior serious felony enhancements].↑ Senate Bill 1393 (2019), amending Penal Code, §§ 667, 1385 [granting courts discretion to strike prior serious felony enhancements].
18. 18. Penal Code, § 1170.126 [Resentencing provision for eligible third-strike inmates].↑ Penal Code, § 1170.126 [Resentencing provision for eligible third-strike inmates].
19. 19. Penal Code, § 1170.18 [Proposition 47 resentencing and reclassification].↑ Penal Code, § 1170.18 [Proposition 47 resentencing and reclassification].
20. 20. Penal Code, § 1172.6 [SB 1437 resentencing for felony murder and natural and probable consequences convictions].↑ Penal Code, § 1172.6 [SB 1437 resentencing for felony murder and natural and probable consequences convictions].
21. 21. Penal Code, § 1172.1 [Recall of sentence authority].↑ Penal Code, § 1172.1 [Recall of sentence authority].