Cal. Code Regs. tit. 15 § 3076.4

Current through Register 2024 Notice Reg. No. 49, December 6, 2024

Section 3076.4 - Recommendation Pursuant to Subdivision (e) of Section 1170 of the Penal Code - Processes

A physician employed by the California Department of Corrections and Rehabilitation (CDCR) who determines an incarcerated person meets the eligibility requirements described in section 3076(b), shall initiate the recall process on behalf of the incarcerated person. The incarcerated person or their family member or designee may also independently request Penal Code (PC) section 1170(e) recall consideration by contacting the institution's Chief Medical Officer (CMO) or Chief Medical Executive (CME), or the Secretary.

(a) The physician shall document on a CDC Form 128-C (Rev. 01/96), Chrono-Medical-Psychiatric-Dental, the incarcerated person's illness, functional status, including the incarcerated person's abilities or limitations in performing activities of daily living, ambulatory status, the reason why the incarcerated person has 12 months or less to live or is permanently medically incapacitated, and their desire to participate in the recall process.

(b) The CMO or CME, Deputy Medical Executive, and Statewide Chief Medical Executive, California Prison Health Care Services, shall have five working days to review and sign the CDC Form 128-C, approving the physician's prognosis. The signed CDC Form 128-C shall be submitted to the C&PR within three working days following the Statewide Chief Medical Executive's approval.

(1) If the CMO or CME, or the Deputy Medical Executive, or the Statewide Chief Medical Executive do not concur with the physician's prognosis, the recall of commitment process shall be terminated.

(c) The C&PR shall review the CDC Form 128-C and the incarcerated person's central file.

(1) If the incarcerated person is sentenced to death or to life without the possibility of parole, the Classification and Parole Representative (C&PR) shall document the reason for the ineligibility on a CDC Form 128-B (Rev. 04/74), General Chrono, and file the original in the incarcerated person's central file. A copy of the CDC Form 128-B excluding any confidential information, as defined in section 3321, shall be sent to the incarcerated person and the incarcerated person's physician.

(2) If the incarcerated person is not sentenced to death or to life without the possibility of parole, medical staff shall explain the recall of commitment process to the incarcerated person within 48 hours of notification and arrange for the incarcerated person to designate a family member or other outside agent on CDCR Form 7385 (Rev. 09/09), Authorization for Release of Information, which is incorporated by reference. The incarcerated person's designee shall be informed about the recall of commitment process and the incarcerated person's medical condition. If the incarcerated person is mentally unfit to designate a family member or other outside agent, medical staff shall contact the incarcerated person's emergency contact listed on the Notification in Case of Death, Serious Injury, or Serious Illness of an Incarcerated Person (see section 3999.417) and advise them of the recall process.

(d) The C&PR shall submit the CDC Form 128-C to the incarcerated person's caseworker. The incarcerated person's caseworker shall have five working days to prepare an evaluation report noting the incarcerated person's case factors as listed in section 3076.3, which consists of the following information and attachments:

(1) CDC Form 128-C.

(2) The incarcerated person's cumulative case summary, including, but not limited to the following information:

(A) Incarcerated person's name and CDCR number.

(B) Current commitment offense, brief description of the crime, and sentence.

(C) County of commitment.

(D) Prior juvenile and adult criminal history.

(E) Active or potential holds, warrants, detainers.

(F) Institutional adjustment, including rules violation reports, counseling chronos, pending disciplinary actions, gang/disruptive group information, placement score, current housing assignment, work and education assignments, and participation in self-help activities.

(G) Mental health and developmental disability status.

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

(4) The incarcerated person's post-release plan.

(5) CDCR Form 7385 (Rev. 09/09), Authorization for Release of Information.

(6) CDCR Form 3038 (12/10) Notification to Inmate/Inmate Designee-Recall and Re-sentencing Procedure, which is incorporated by reference.

(7) CDCR Form 3039 (12/10), Waiver of Defendant's Personal Presence at the Recall and Resentencing Hearing, which is incorporated by reference.

(8) Abstract of Judgment for the incarcerated person's current commitment offense.

(9) Probation Officer's Report for the incarcerated person's current commitment offense.

(10) Institutional Staff Recommendation Summary.

(11) Legal Status Summary.

(12) CDC Form 112 (Rev. 09/83) Chronological History.

(13) The incarcerated person's most recent Board of Parole Hearings Parole Consideration Report with the Life Sentence Parole Hearing Decision Face Sheet containing the Board of Parole Hearings' disposition (applies only to incarcerated persons who are sentenced to an indeterminate term).

(e) The C&PR shall review and forward the evaluation report to the warden or chief deputy warden within three working days.

(f) The warden or chief deputy warden shall review and sign the evaluation report and ensure it is forwarded to CDCR headquarters within three working days.

(g) The evaluation report for a PC section 1170(e) recall shall be referred to the Secretary, or designee, for review and consideration.

(1) If a positive recommendation for recall is made, and the incarcerated person is sentenced to a determinate term, the recommendation shall be referred directly to the sentencing court and shall include one or more medical evaluations, the findings of which must determine the incarcerated person meets the criteria set forth in PC section 1170(e)(2), and a post-release plan.

(h) Pursuant to PC section 1170(e)(9), if the sentencing court grants the recall and resentencing application, the incarcerated person shall be released by the department within 48 hours of receipt of the court's order, unless a longer time period is agreed to by the incarcerated person or ordered by the court. If the incarcerated person has agreed to waive the 48-hour release requirement, the department shall request the sentencing court include in its order that the incarcerated person shall be released within 30 calendar days to allow for the coordination of their housing and medical needs in the community to a location where access to care is available.

(i) If the Division of Adult Parole Operations (DAPO) is coordinating the incarcerated person's placement within the community, the C&PR shall provide a copy of the release order to DAPO upon receipt from the sentencing court.

(j) At the time of release, medical staff shall ensure the incarcerated person has each of the following in their possession; a discharge medical summary, full medical records, State identification, parole medication, and all property belonging to the incarcerated person. After discharge, any additional records shall be sent to the incarcerated person's forwarding address.

Cal. Code Regs. Tit. 15, § 3076.4

Note: Authority cited: Section 5058, Penal Code. Reference: Sections 1170(e), 3043 and 5054, Penal Code; and Martinez v. Board of Parole Hearings (2010) 183 Cal.App.4th 578.

1. New section filed 7-7-2011 as an emergency pursuant to Penal Code section 5058.3(a)(2); operative 7-7-2011 (Register 2011, No. 27). Pursuant to Penal Code section 5058.3(c), a Certificate of Compliance must be transmitted to OAL by 12-14-2011 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 7-7-2011 order, including amendment of subsection (c)(2), transmitted to OAL 12-5-2011 and filed 1-19-2012 (Register 2012, No. 3).
3. Amendment of subsection (c)(2) filed 6-2-2014; operative 6/2/2014 pursuant to Government Code section 11343.4(b)(3) (Register 2014, No. 23).
4. Repealer and new section heading filed 12-10-2019 as an emergency; operative 1/1/2020 (Register 2019, No. 50). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 6-9-2020 or emergency language will be repealed by operation of law on the following day.
5. Emergency filed 12-10-2019 and operative 1-1-2020 extended 60 days pursuant to Executive Order N-40-20 and an additional 60 days pursuant to Executive Order N-66-20 (Register 2020, No. 37). A Certificate of Compliance must be transmitted to OAL by 10-9-2020 or emergency language will be repealed by operation of law on the following day.
6. Repealer and new section heading refiled 10-5-2020 as an emergency; operative 10/10/2020. Emergency expiration extended 60 days (Executive Order N-40-20) plus an additional 60 days (Executive Order N-66-20) (Register 2020, No. 41). A Certificate of Compliance must be transmitted to OAL by 5-10-2021 or emergency language will be repealed by operation of law on the following day.
7. Change without regulatory effect amending first paragraph and subsection (a), repealing subsection (g)(2) and amending subsections (h) and (j) filed 4-2-2021 pursuant to section 100, title 1, California Code of Regulations (Register 2021, No. 14). (Filing deadline specified in Government Code section 11349.3(a) extended 60 calendar days pursuant to Executive Order N-40-20.)
8. Repealer and new section heading refiled 5-6-2021 as an emergency; operative 5/11/2021 pursuant to Government Code section 11346.1(d) (Register 2021, No. 19). Emergency expiration extended 60 days (Executive Order N-40-20) plus an additional 60 days (Executive Order N-66-20). A Certificate of Compliance must be transmitted to OAL by 12-7-2021 or emergency language will be repealed by operation of law on the following day.
9. Reinstatement of section as it existed prior to 5-6-2021 emergency amendment by operation of Government Code section 11346.1(f) (Register 2022, No. 3).
10. Amendment of section heading filed 8-11-2022; operative 10/1/2022 (Register 2022, No. 32).
11. Change without regulatory effect amending section filed 7-1-2024 pursuant to section 100, title 1, California Code of Regulations (Register 2024, No. 27).