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repealed by operation of law on the following day.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2-23-93 or emergency language will be repealed by operation of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:

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 (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.

(C) A list of any victim notification or other special notification

requirements.

(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:

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

2-23-92 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:

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 transmitted to OAL

12-18-92 and filed 2-3-93 (Register 93, No. 6).