California Code of Regulations
Title 15 - Crime Prevention and Corrections
Division 3 - Adult Institutions, Programs and Parole
Chapter 1 - Rules and Regulations of Adult Operations and Programs
Article 6.6 - Department Recommendation to Recall Sentence and Resentence Incarcerated Person
Section 3076.1 - Recommendation Pursuant to Subdivision (a)(1) of Section 1170.03 of the Penal Code

Universal Citation: 15 CA Code of Regs 3076.1

Current through Register 2024 Notice Reg. No. 38, September 20, 2024

(a) Under any of the following circumstances, the Secretary may recommend to a sentencing court that the sentence and commitment previously imposed on an incarcerated person be recalled and that the court resentence the incarcerated person:

(1) When an incarcerated person demonstrates exceptional conduct as defined in subsection (b)(1);

(2) When there is the substantial likelihood of a sentencing discrepancy as described in subsection (c)(1);

(3) When there is a change in sentencing law as described in subsection (d)(1); or

(4) When a referral is received from the head of a law enforcement agency, the head of a prosecutorial agency, or a judicial officer as described in Section 3076.2.

(b) Recommendation Based on Exceptional Conduct.

(1) An incarcerated person may be considered for recommendation pursuant to subsection (a)(1) if their behavior while incarcerated demonstrates compliance with departmental rules pursuant to subsection 3076.1(b)(2)(C) and participation in rehabilitative programming.

(2) Notwithstanding subsection (b)(1), incarcerated persons who meet the following criteria shall be excluded from consideration under this subsection:

(A) An incarcerated person who is required to register pursuant to sections 290(d)(2)(A) and 290(d)(3) of the Penal Code.

(B) Incarcerated persons who have not yet served ten continuous years of custody in the Department;

(C) Incarcerated persons who have been found guilty of a serious or violent rules violation which qualifies as a Division A-1, A-2, B, C, or D offense as described in subsections 3323(b) through (f) within the last five years or whose serious or violent rules violation as described above is pending;

(D) Determinately sentenced incarcerated persons who are already scheduled for release within the next 18 months;

(E) Determinately sentenced incarcerated persons who, pursuant to subdivision (a)(1) of Section 32 of Article 1 of the California Constitution, are eligible for parole consideration within the next 18 months or have already been afforded parole consideration; or

(F) Indeterminately sentenced incarcerated persons who, pursuant to subdivision (a)(1) of Section 32 of Article 1 of the California Constitution or Sections 3041, 3051, or 3055 of the Penal Code, are scheduled for a parole hearing within the next 18 months or have already been afforded a parole hearing, regardless of the decision by the Board of Parole Hearings.

(G) An incarcerated person who is convicted of a single offense and is serving the low (mitigated) term for which there is no lesser-included offense, sentence enhancement, or alternative sentencing scheme which might result in a shorter sentence if the court legally resentenced the incarcerated person.

(3) Initial eligibility for consideration under subsection (a)(1) shall be determined by the Classification Services Unit.

(A) The Classification Services Unit shall review all referrals received from a Warden, the Director of the Division of Adult Institutions, or the Secretary.

(B) The Classification Services Unit shall not accept referrals from incarcerated persons or other parties on behalf of incarcerated persons.

(C) If an incarcerated person is found ineligible for one of the reasons enumerated in subsection (b)(2), the Classification Services Unit shall document the reason or reasons for the incarcerated person's ineligibility and a copy of the document shall be provided to the incarcerated person and another copy placed in the incarcerated person's central file within 10 business days of the decision.

(D) If an incarcerated person is found to have no exclusionary case factors pursuant to subsection 3076.1(b)(2), the Classification Services Unit shall submit the incarcerated person's name to the Secretary. The Secretary may elect to decline to make a referral to the sentencing court, or direct the Classification Services Unit to prepare a Cumulative Case Summary, which shall include all of the following information:

1. Incarcerated person's name and CDCR number;

2. Current commitment offense, brief description of the crime, and sentence;

3. County of commitment;

4. Summary of sustained juvenile petitions and adult criminal convictions;

5. Active or potential holds, warrants, and detainers;

6. Institutional behavior, including serious rules violation reports, drug test results, gang or disruptive group information, placement score, current housing assignment, a summary of work and educational assignments, and participation in rehabilitative programs and self-help activities;

7. Incarcerated person visitor history (number of approved visitors and number of visits made during incarceration);

8. Victim notification requirements;

9. Other legally mandated notification requirements; and

10. A copy of the Abstract of Judgment and minute order for the incarcerated person's current commitment offense, including plea agreements.

(4) Incarcerated persons considered under this section but deemed ineligible by the Classification Services Unit as described in subsection (b)(3)(C), or not acted upon by the Secretary as described in subsection (e)(3), shall not be reconsidered by the Department for two years from the date the decision was documented by the Classification Services Unit or the Secretary, whichever is later in time.

(1) An incarcerated person may be considered for referral pursuant to subsection (a)(2) if their sentence, as reflected in the Abstract of Judgment, contradicts applicable sentencing laws at the time of their sentencing hearing or subsequent court decisions suggesting the substantial likelihood of a sentencing discrepancy.

(2) Notwithstanding subsection (c)(1), determinately sentenced incarcerated persons who are scheduled for release within the next six months shall be excluded from consideration under this section.

(3) Initial eligibility for consideration under subsection (a)(2) shall be determined by the Correctional Case Records Unit. Eligibility shall be determined by evaluating the Abstract of Judgement of each incarcerated person and determining if there is a discrepancy between the incarcerated person's sentence and the sentencing laws that existed at the time of the sentencing hearing or between the incarcerated person's sentence and subsequent court decisions. If an incarcerated person is found eligible, the Correctional Case Records Unit shall refer the matter to the Secretary.

(d) Referral Based on a Change in Sentencing Law.

(1) An incarcerated person may be considered for referral pursuant to subsection (a)(3) if the applicable sentencing laws at the time of their sentencing hearing are subsequently changed due to new statutory or case law authority with statewide application.

(2) Notwithstanding subsection (d)(1), incarcerated persons who meet the following criteria shall be excluded from consideration under this subsection:

(A) Incarcerated persons who have not yet served five continuous years of CDCR custody;

(B) Incarcerated persons who have been found guilty of a serious or violent rules violation which qualifies as a Division A-1, A-2, B, C, or D offense as described in subsections 3323(b) through (f) within the last one year or whose serious or violent rules violation as described above is pending;

(D) Determinately sentenced incarcerated persons who, pursuant to subdivision (a)(1) of Section 32 of Article 1 of the California Constitution, are eligible for parole consideration within the next 18 months or have already been afforded parole consideration; or

(E) Indeterminately sentenced incarcerated persons who, pursuant to subdivision (a)(1) of Section 32 of Article 1 of the California Constitution or Sections 3041, 3051, or 3055 of the Penal Code, are scheduled for a parole hearing within the next 18 months or who have already been afforded a parole hearing, regardless of the decision by the Board of Parole Hearings.

(3) Initial eligibility for consideration under subsection (a)(3) shall be determined by the Classification Services Unit or the Correctional Case Records Unit.

(A) If an incarcerated person is found ineligible for one of the reasons enumerated in subsection (d)(2), the Classification Services Unit or the Correctional Case Records Unit shall document the reason or reasons for the incarcerated person's ineligibility and a copy of the document shall be provided to the incarcerated person and another copy placed in the incarcerated person's central file within 10 business days of the decision.

(B) If an incarcerated person is found to have no exclusionary case factors pursuant to subsection 3076.1(d)(2), the Classification Services Unit (CSU) or the Correctional Case Records Unit shall submit the incarcerated person's name to the Secretary. The Secretary may elect to decline to make a referral to the sentencing court, or:

1. If the incarcerated person was submitted to the Secretary by CSU, direct CSU to prepare a Cumulative Case Summary, as described in subsection 3076.1(b)(3)(D), or:

2. If the incarcerated person was submitted to the Secretary by the Correctional Case Records Unit, a recommendation letter shall be forwarded to the sentencing court.

(4) Incarcerated persons considered under this section but deemed ineligible by the Classification Services Unit or the Correctional Case Records Unit as described in subsection (d)(3)(A), or not acted upon by the Secretary as described in (e)(3), shall not be reconsidered by the Department for two years from the date the decision was documented by the Classification Services Unit, the Correctional Case Records Unit, or the Secretary, whichever is later in time.

(e) Decision by the Secretary.

(1) The Secretary shall reach a decision on any matter under this section within 10 business days of receiving the referral.

(2) If the Secretary elects to recommend an incarcerated person for recall and resentencing, a recommendation letter and, when required pursuant to subsection 3076.1(b)(3)(D), a Cumulative Case Summary shall be forwarded to the sentencing court and a copy shall be provided to the incarcerated person and another copy placed in the incarcerated person's central file within 10 business days of the decision.

(3) If the Secretary elects not to recommend an incarcerated person for recall and resentencing, a "General Chrono" (CDC Form 128-B; Rev. 4/74), which is incorporated by reference, shall be generated informing the incarcerated person that the Secretary took no action and a copy shall be provided to the incarcerated person and another copy placed in the incarcerated person's central file within 10 business days of the decision.

(4) Pursuant to the broad discretion vested in the Secretary by statute, namely subdivision (a)(1) of Section 1170.03 of the Penal Code, the Secretary's decision is final and not subject to internal administrative review.

Note: Authority cited: Section 5058, Penal Code. Reference: Sections 290, 1170.03, 3041, 3051, 3055 and 5054, Penal Code; and Cal. Const., Art. I, sec. 32.

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