Section 3320 - Hearing Procedures and Time Limitations(a) A classified copy of the RVR and any additional/supplemental information (formerly documented on the CDC Form 115-C) detailing any elements of the violation charged shall normally be provided to the incarcerated person within 15 days from the date the information leading to the charges is discovered by staff or, in the case of an escapee, within 15 days after the escapee's return to the department's custody, or in the case of an ACP Participant's removal from the community, within 15 days of the participant's return to an institution(1) Any additional SOMS generated supplemental reports shall contain the standard auto populated information such as the incarcerated person's name and number, housing, RVR log number, date of the RVR, violation rule number and title, and incident type. The purpose of the supplemental reports is to provide a continuation of the RVR circumstances, hearing, IE report, or other.(2) Providing the incarcerated person with a copy of the classified RVR may be delayed beyond 15 days, but no more than an additional 30 days for a total of 45 days, and shall not prohibit forfeiture of credits as a penalty for the misconduct when all of the following criteria are met: (A) The misconduct could be prosecuted as murder, attempted murder, or battery on staff.(B) An investigation is continuing to identify others involved in the misconduct.(C) Within 15 days of discovering the misconduct, a written request to delay the incarcerated person's notification, including the reasons for the delay, is approved by the chief disciplinary officer.(3) Time limitations for a re-issued RVR shall commence on the date the chief disciplinary officer orders the re-hearing pursuant to Subsection 3320(a)(1) above.(b) The charges shall be heard within 30 days from the date the incarcerated person is provided a classified copy of the RVR unless the charges were referred for possible prosecution and the incarcerated person has been granted a request for postponement of the disciplinary proceedings pending the outcome of the referral, if exceptional circumstances exist pursuant to section 3000, or the incarcerated person is transferred out of the custody of the department. (1) The Hearing for a RVR ordered re-issued/re-heard shall be conducted pursuant to Subsection 3320(b) above relative to the re-issued copy.(c) A disciplinary hearing shall not be held until the incarcerated person has been provided: (1) A classified copy of the RVR and all non-confidential reports containing information relative to the charge, including the investigative employee's report.(2) At least 24 hours to review the material and prepare for the hearing. The hearing may be held earlier if the incarcerated person waives the 24-hour period.(d) A hearing may be postponed up to 30 days upon receipt of the incarcerated person's written request to the CDO showing a reasonable need for postponement. The CDO will evaluate the request and approve or deny it based on its credibility. Postponement shall not bar any credit forfeiture.(e) If a hearing is postponed for any reason, such reason shall be documented in the findings section of the RVR.(f) The following events shall preclude denial or forfeiture of credits: (1) The incarcerated person was not provided a copy of the RVR within 15 days after the discovery of information leading to the charges except as other provided in (a).(2) The official conducting the hearing did not establish that the information or evidence was not reasonably discoverable within 30 days or sooner or when the incarcerated person is not provided a copy of the RVR within 15 days of the misconduct, unless (a) is applicable.(3) The disciplinary hearing was not held within 30 days of the date the incarcerated person was provided a classified copy of the RVR, unless the incarcerated person requested and was granted a postponement of the hearing pending outcome of the referral pursuant to section 3316, exceptional circumstances as defined in Section 3000 exist, or if the incarcerated person is transferred out of the custody of the department.(4) A disciplinary hearing was not held within 30 days after the chief disciplinary officer was notified of the outcome of a prosecution referral or within 30 days of the incarcerated person's revoked request for postponement of the hearing, if an accusatory pleading was not filed against the incarcerated person.(5) The incarcerated person was not provided a written explanation of the exceptional circumstances preventing a hearing within 30 days after the incarcerated person was provided a copy of the RVR and the official conducting the hearing did not establish in the findings of the hearing that the delay did not prejudice the incarcerated person.(g) The incarcerated person shall normally be present at a disciplinary hearing. When a disciplinary hearing is held without the incarcerated person present, the reason for the absence shall be documented during the hearing on the RVR. The incarcerated person shall be present at a disciplinary hearing unless: (1) A psychiatrist has determined that the incarcerated person suffers from a serious mental disorder preventing the incarcerated person's understanding of or participation in the hearing, and there is a compelling reason or need to proceed with the hearing.(2) The incarcerated person was convicted of escape in court and has not been returned to the facility or jurisdiction from which the escape occurred.(3) The incarcerated person has waived the right to be present in writing, or in the case of a refusal to sign a waiver, the refusal was witnessed by a custody officer, documented on a CDC Form 128-B (Rev. 4/74), and attached to the RVR for review by the Senior Hearing Officer at the disciplinary hearing and by the Chief Disciplinary Officer following adjudication of the rules violation report.(h) Staff who observed, reported, classified, supplied supplemental reports to, or investigated the alleged rule violation; who assisted the incarcerated person in preparing for the hearing; or for any other reason have a predetermined belief of the incarcerated person's guilt or innocence shall not hear the charges or be present during deliberations to determine guilt or innocence and disposition of the charges.(i) An incarcerated person witness shall not be transferred between facilities to testify at a hearing unless the chief disciplinary officer of the facility hearing the charges determines a fair and impartial hearing cannot be conducted unless the witness is present. When a witness is not available, the chief disciplinary officer of the facility where the witness is located shall be notified of the need to appoint an investigative employee to discuss the case with the investigative employee of the facility conducting the disciplinary hearing; to interview the witness, prepare a written investigative report, and forward the report to the facility where the hearing will be conducted.(j) When an incarcerated person whose rule violation charges are being adjudicated is ordered to leave the hearing room, all witnesses, including staff witnesses, shall also leave the room. The incarcerated person has a right to be present when any witness is present at the hearing.(k) When a serious rule violation occurs during transportation of an incarcerated person, transporting staff witnesses shall be present at the hearing if requested, or shall be available for questioning by telephone during the disciplinary hearing.(l) The incarcerated person may present documentary evidence in defense or mitigation of the charges. Any finding of guilt shall be based upon determination by the official(s) conducting the disciplinary hearing that a preponderance of evidence submitted at the hearing substantiates the charge. At the conclusion of the disciplinary hearing, the incarcerated person shall be informed of the findings and disposition of the charge and of the right to and procedure for appeal of the action. Within five working days following review of the RVR by the chief disciplinary officer, the incarcerated person shall be provided a copy of the completed Hearing Results containing the findings, disposition, and evidence relied upon in reaching the conclusions.(m) When an incarcerated person is charged with possession of unauthorized or dangerous items or substances, or when unauthorized or dangerous items or substances are associated with commission of the charged rule violation, the hearing official shall record the disposition of the item or substance in the disposition section of the RVR.Cal. Code Regs. Tit. 15, § 3320
Note: Authority cited: Sections 5058, 5058.3 and 1170.05, Penal Code. Reference: Sections 1170.05, 2932 and 5054, Penal Code.
Note: Authority cited: Sections 5058, 5058.3 and 1170.05, Penal Code. Reference: Sections 1170.05, 2932 and 5054, Penal Code.
1. Amendment of subsection (b) filed 12-1-80 as an emergency; designated effective 1-1-81 (Register 80, No. 49). For prior history, see Register 80, No. 16.
2. Order of Repeal of 12-1-80 order filed 12-5-80 by OAL pursuant to Government Code Section 11349.6 (Register 80, No. 49).
3. Amendment of subsection (c) filed 12-8-80; effective thirtieth day thereafter (Register 80, No. 50).
4. Amendment of subsection (b) filed 9-24-81; effective thirtieth day thereafter (Register 81, No. 39).
5. Amendment of subsections (a)-(d) filed 5-4-83; designated effective 6-1-83 pursuant to Government Code Section 11346.2(d) (Register 83, No. 19).
6. Amendment filed 8-7-87 as an emergency; operative 8-7-87 (Register 87, No. 34). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 12-7-87.
7. New subsection (l) filed 2-8-88; operative 3-9-88 (Register 88, No. 7).
8. Certificate of Compliance as to 8-7-87 order transmitted to OAL 12-4-87; disapproved by OAL (Register 88, No. 16).
9. Amendment filed 1-4-88 as an emergency; operative 1-4-88 (Register 88, No. 16). A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 5-3-88.
10. Certificate of Compliance as to 1-4-88 order transmitted to OAL 5-3-88; disapproved by OAL (Register 88, No. 24).
11. Amendment filed 6-2-88 as an emergency; operative 6-2-88 (Register 88, No. 24) A Certificate of Compliance must be transmitted to OAL within 120 days or emergency language will be repealed on 9-30-88.
12. Certificate of Compliance transmitted to OAL 9-26-88 and filed 10-26-88 (Register 88, No. 50).
13. Amendment filed 5-5-95; operative 6-5-95 (Register 95, No. 18).
14. Change without regulatory effect amending subsection (a)(1)(A) filed 5-7-96; operative 6-6-96 (Register 96, No. 19).
15. Amendment filed 8-4-2008; operative 8-4-2008 pursuant to Government Code section 11343.4 (Register 2008, No. 32).
16. Amendment of subsection (a) and Note filed 9-27-2011 as an emergency; operative 9-27-2011 (Register 2011, No. 39). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 3-5-2012 or emergency language will be repealed by operation of law on the following day.
17. Certificate of Compliance as to 9-27-2011 order transmitted to OAL 2-3-2012; Certificate of Compliance withdrawn 3-19-2012 (Register 2012, No. 12).
18. Amendment of subsection (a) and Note refiled 3-19-2012 as an emergency; operative 3-19-2012 (Register 2012, No. 12). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 6-18-2012 or emergency language will be repealed by operation of law on the following day.
19. Reinstatement of section as it existed prior to 3-19-2012 emergency amendment by operation of Government Code section 11346.1(f) (Register 2012, No. 28).
20. Amendment of subsection (a) and Note filed 9-13-2012 as an emergency; operative 9-13-2012 (Register 2012, No. 37). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 2-20-2012 or emergency language will be repealed by operation of law on the following day.
21. Certificate of Compliance as to 9-13-2012 order transmitted to OAL 1-11-2013 and filed 2-25-2013 (Register 2013, No. 9).
22. Amendment filed 6-2-2016 as an emergency; operative 6/2/2016 (Register 2016, No. 23). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 11-9-2016 or emergency language will be repealed by operation of law on the following day.
23. Certificate of Compliance as to 6-2-2016 order, including amendment of subsection (a), transmitted to OAL 11-7-2016 and filed 12-22-2016; amendments effective 12/22/2016 pursuant to Government Code section 11343.4(b)(3) (Register 2016, No. 52).
24. Change without regulatory effect amending section filed 7-1-2024 pursuant to section 100, title 1, California Code of Regulations (Register 2024, No. 27).