What is a Penal Code section 18.5 Motion?

On January 1, 2015, Penal Code section 18.5(a) was enacted thereby declaring that:

“[e]very offense which is prescribed by any law of the state to be punishable by imprisonment in a county jail up to or not exceeding one year shall be punishable by imprisonment in a county jail for a period not to exceed 364 days.”

On September 28, 2016, Governor Jerry Brown approved an amendment to Penal Code section 18.5. Effective January 1, 2017, SB-1242 was enacted and added a retroactivity clause to subdivision (a) and added subdivision (b) in its entirety to Penal Code section 18.5.

According to Penal Code section 18.5, subdivision (b), a person who was sentenced to a term of one year in county jail prior to January 1, 2015, “may submit an application before the trial court that entered the judgment of conviction in the case to have the term of the sentence modified to the maximum term specified in subdivision (a).”

A motion to modify a sentence under Section 18.5 can have significant impact for a non-citizen defendant. For example, according to INA § 101(a)(43), some offenses are only classified as aggravated felonies if a sentence of at least one year is imposed. Aggravated felony convictions can render a non-citizen defendant inadmissible to the United States and cause the denial of other immigration benefits. Penal Code section 18.5 can assist in reducing theft and crimes of violence to avoid their classification as aggravated felonies.

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