Compassionate Release Law Code

3076. Recall of Commitment Recommendation Circumstances. The director may recommend at any time to the sentencing court the recall of an inmate’s commitment pursuant to Penal Code section 1170(d) for one or more of the following reasons:

(a) The inmate is terminally ill and is not condemned or sentenced to life without possibility of parole.

(b) It is evident from the inmate’s exceptional behavior that is so extraordinary beyond simply complying with all regulations and procedures during incarceration that they have changed as a person and would be a positive asset to the community.

(c) Information which was not made available to the court in pronouncing the inmate’s sentence is brought to the attention of the director, who deems the information would have influenced the sentence imposed by the court.

(d) The director deems that circumstances have changed to the extent that the inmate’s continued incarceration is not in the interest of justice.

NOTE: Authority cited: Section 5058, Penal Code. Reference: Sections 1170(d) and 5054, Penal Code.

[For related information see DOM Section 62020.] HISTORY:

1. New section filed 5-20-92 as an emergency; operative 5-20-92 (Register 92, No. 21). A Certificate of Compliance must be transmitted to OAL 9-17-92 or emergency language will be repealed by operation of law on the following day.

2. Certificate of Compliance as to 5-20-92 order transmitted to OAL 9-9-92; disapproved by OAL and order of repeal of 5-20-92 order filed on 10-22-92 (Register 92, No. 43).

3. New section refiled 10-23-92 as an emergency; operative 10-22-92 pursuant to Government Code section 11346.1(h) (Register 92, No. 43). A Certificate of Compliance must be transmitted to OAL 2-23-93 or emergency language will be repealed by operation of law on the following day.

4. Certificate of Compliance as to 10-23-92 order including amendment of first paragraph and subsection (b) transmitted to OAL 12-18-92 and filed 2-3-93 (Register 93, No. 6).

3076.1. Recall of Commitment Consideration Criteria. For inmates meeting one or more of the eligibility requirements of section 3076, the classification and parole representative shall consider the following criteria as may be applicable before recommending recall of commitment consideration for an inmate: (a) The inmate is or is not terminally ill or, if diagnosed as having an illness which results in death, the inmate has more than an estimated six months to live.

(b) The inmate’s commitment offense is for one or more of the following felonies: murder, attempted murder, voluntary manslaughter, mayhem, rape with force or violence, sodomy with force or violence, oral copulation with force or violence, sodomy with force or violence, oral copulation with force or violence, lewd acts on a child under 14 years of age, arson, and/or other felonies punishable by imprisonment for life.

(c) The inmate is or is not designated as a high notoriety case by the classification staff representative or their placement has or has not been ordered by the departmental review board because of an unusual threat to the safety of persons or public interest in the inmate’s case.

(d) The court was aware of the inmate’s imminent terminal status at the time of sentencing.

(e) The inmate’s prior criminal history reflects a pattern of convictions for violent acts against persons pursuant to Penal Code section 667.5(c).

(f) The inmate has no prior criminal convictions preceding the commitment offense.

(g) There exists a documented victim or next of kin of the commitment offense in the community who would suffer fear from the release of the inmate back into the community.

(h) The inmate’s documented institutional behavior reflects an ongoing, serious pattern of force, violence, assault, arson or predatory sexual behavior.

(i) The inmate is terminally ill and there are or are not verifiable community resources appropriate, sufficient, and immediately available to provide support and sustenance and to meet the inmate’s medical and/or psychological needs upon release.

NOTE: Authority cited: Section 5058, Penal Code. Reference: Sections 1170(d), 3043 and 5054, Penal Code.

[For related information see DOM Subsections 62020.4 and 62020.6.]

HISTORY:

2. Certificate of Compliance as to 5-20-92 order transmitted to OAL 9-9-92; disapproved by OAL and order of repeal of 5-20-92 order filed on 10-22-92 (Register 92, No. 43).

4. Certificate of Compliance as to 10-23-92 order including amendment of first paragraph and subsection (c) transmitted to OAL 12-18-92 and filed 2-3-93 (Register 93, No. 6). 3076.2. Recall of Commitment Processing.

(a) Recall of Commitment Processing for Terminally Ill Inmates.

(1) Requests for a determination that an inmate is terminally ill and that they be considered for recall of commitment which are initiated by the facility at any time or by the sentencing court more than 120 days after the date of commitment shall be referred to the inmate’s caseworker, who shall inform the inmate’s treating physician or the facility’s chief medical officer of the request.

(2) For the purpose of this regulation, the facility’s chief medical officer must also concur with the treating physician’s prognosis of the inmate.

(3) Within three working days of the caseworker advising the chief medical officer or the inmate’s treating physician of the request or of a medical staff member’s discovery of a medical condition appropriate for eligibility review, the chief medical officer shall determine if the inmate is terminally ill. This determination shall be documented on a CDC Form 128-C, Chrono-Medical-Psych-Dental, which shall include a description of the inmate’s illness, physical condition, estimated life expectancy and desire to participate in a recall consideration, and which shall be submitted to the classification and parole representative. 45 (4) The classification and parole representative shall review the report and the inmate’s central file and consider the criteria listed in section 3076.1 before recommending recall of commitment consideration for the inmate. (5) If the classification and parole representative recommends against further recall consideration, the reasons shall be documented on a CDC Form 128-B, Chron—General (Rev. 4/74), which shall be countersigned by the warden or chief deputy warden within three working days of receipt of the CDC Form 128-C. The original CDC Form 128-B shall be filed in the inmate’s central file and a copy, excluding any confidential material as defined in section 3321, sent to the inmate.

(6) If the classification and parole representative determines that the case warrants recall consideration, the CDC Form 128-C shall be submitted to the inmate’s caseworker, who shall investigate and evaluate the inmate’s suitability for recommendation of recall and document their evaluation in a report, with the following attachments:

(A) The CDC Form 128-C.

(B) The inmate’s cumulative case summary.

(7) The institution’s evaluation and recommendation for a Penal Code section 1170(d) recall of a terminally ill inmate, if in favor of recall or equivocal, or in all cases if the evaluation was originally requested by the sentencing judge or if the inmate’s term of imprisonment is under the jurisdiction of the Board of Prison Terms pursuant to Penal Code section 1170.2, shall be signed by the warden or chief deputy warden and forwarded within twelve working days from the date of the CDC Form 128-C to department headquarters, and if the inmate’s term of imprisonment is under the jurisdiction of the Board of Prison Terms pursuant to Penal Code section 1170.2, to the Board of Prison Terms.

(b) Recall of Commitment Processing for Non-Terminally Ill Inmates.

(1) Requests for consideration for recall of commitment which are initiated by the facility at any time or by the sentencing court more than 120 days after the date of commitment shall be referred to the classification and parole representative via the inmate’s caseworker.

(2) Upon receipt of the request, the classification and parole representative shall consider the criteria listed in section 3076.1 and the inmate’s central file before recommending recall of commitment consideration for the inmate.

(3) If the classification and parole representative recommends against further recall consideration, the reasons shall be documented on a CDC Form 128-B, Chrono—General (Rev. 4/74), which shall be countersigned by the warden or chief deputy warden. The original CDC Form 128-B shall be filed in the inmate’s central file and a copy, excluding any confidential material as defined in section 3321, sent to the inmate.

(4) If the classification and parole representative determines that the inmate’s case warrants recall consideration, the classification and parole representative’s findings shall be submitted to the inmate’s caseworker, who shall investigate and evaluate the inmate’s suitability for recommendation of recall and document their evaluation in a report, with the following attachments: (A) The inmate’s cumulative case summary.

(B) A list of any victim notification or other special notification requirements.

(5) The institution’s evaluation and recommendation for a Penal Code section 1170(d) recall of the inmate, if in favor of recall or equivocal, or in all cases if the evaluation was originally requested by the sentencing judge or if the inmate’s term of imprisonment is under the jurisdiction of the Board of Prison Terms pursuant to Penal Code section 1170.2, shall be signed by the warden or chief deputy warden and forwarded to department headquarters, and if the inmate’s term of imprisonment is under the jurisdiction of the Board of Prison Terms pursuant to Penal Code section 1170.2, to the Board of Prison Terms.

NOTE: Authority cited: Section 5058, Penal Code. Reference: Sections 1170(d), 3043 and 5054, Penal Code.

[For related information see DOM Subsections 62020.8, 62020.9, 62020.10, 62020.11, and 62020.13.]

HISTORY:

2. Certificate of Compliance as to 5-20-92 order transmitted to OAL 9-9-92; disapproved by OAL and order of repeal of 5-20-92 order filed on 10-22-92 (Register 92, No. 43).

3. New section refiled 10-23-92 as an emergency; operative 10-22-92 pursuant to Government Code section 11346.1(h) (Register 92, No. 43). A Certificate of Compliance must be transmitted to OAL 2-23-92 or emergency language will be repealed by operation of law on the following day.

4. Certificate of Compliance as to 10-23-92 order including amendment of subsections (a)(1), (a)(3)–(5) and (b)(2) transmitted to OAL 12-18-92 and filed 2-3-93 (Register 93, No. 6). 3076.3. Victim Notification for Recall of Commitment Recommendations.

When informed that an inmate’s commitment has been recommended for recall to the court, the inmate’s classification and parole representative shall notify any victim of a crime committed by the inmate, or the victim’s next of kin if the victim has died, provided that the victim or the victim’s next of kin has requested notice of any hearing to review or consider the parole suitability or the setting of a parole date for the inmate, and the requesting party has kept the department or the Board of Prison Terms apprised of their current mailing address. The notification shall include the name and address of the court that will consider recall.

NOTE: Authority cited: Section 5058, Penal Code. Reference: Sections 1170(d), 3043 through 3043.3 and 5054, Penal Code. [For related information see DOM Subsection 72060.7.] HISTORY:

2. Certificate of Compliance as to 5-20-92 order transmitted to OAL 9-9-92; disapproved by OAL and order of repeal of 5-20-92 order filed on 10-22-92 (Register 92, No. 43).

4. Certificate of Compliance as to 10-23-92 order transmitted to OAL 12-18-92 and filed 2-3-93 (Register 93, No. 6).

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