Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a)
Except as provided in subsection (b), all criminal misconduct by persons under
the jurisdiction of the department or occurring on facility property shall be
referred by the institution head or designee to appropriate authorities for
possible investigation and prosecution when there is evidence substantiating
each of the elements of the crime to be charged.
(1) Referrals for investigation of
incarcerated person criminal misconduct shall be accompanied by a JUS Form 8715
(Rev. 6/88) Department of Justice Disposition of Arrest and Court
Action.
(2) The authority to whom a
case is referred shall be asked to provide the institution head or designee
with written notification within ten working days advising if prosecution shall
be initiated.
(3) Incarcerated
persons shall be notified in writing when misconduct is referred for possible
prosecution.
(b)
Notwithstanding evidence substantiating each of the elements of the crime to be
charged, criminal misconduct shall not be referred to the local district
attorney if the local district attorney has submitted written notification to
the institution head including criteria determining that specified crimes shall
not be prosecuted if the crime involved meets such criteria.
(c) Referral of an incarcerated person's
misconduct for prosecution shall not stay the time limits for a disciplinary
hearing unless the incarcerated person submits a written request to the chief
disciplinary officer or signs and dates the RVR, Serious Rules Violation
Report, requesting postponement of the hearing pending the outcome of the
referral.
(1) A postponed disciplinary
hearing shall be held within 30 days after any one of the following events:
(A) The incarcerated person has revoked a
postponement request; an incarcerated person may revoke a postponement request
any time until the prosecuting criminal authority has filed an accusatory
pleading against the incarcerated person. The request shall be submitted in
writing to the chief disciplinary officer or designee who shall enter a
"Revoked Postponement" action in SOMS revoking the postponement
request.
(B) Written notice is
received from the institution head or designee that the incarcerated person's
misconduct will not be referred for prosecution pursuant to subsection
(b).
(C) Written notice is received
that the prosecuting authority does not intend to prosecute.
(D) Written notice is received that the
criminal proceedings are terminated without an acquittal.
(2) A decision to not prosecute or a court's
dismissal of criminal charges without acquittal shall not prohibit or alter a
departmental disciplinary hearing on the rule violation charges.
(3) A court verdict of guilty or not guilty,
resulting from a trial, shall be accepted as the finding of fact on the same
charges in a disciplinary hearing. Should the court accept a plea agreement or
negotiated settlement resulting in a conviction for a lesser offense than was
originally charged, or if a court dismisses a charge prior to trial, the
Department shall not be precluded from taking appropriate administrative action
based on the facts contained in the original charge. If a court finds the
incarcerated person not guilty after a finding of guilty in a disciplinary
hearing, the rule violation charges shall be dismissed.
(4) Any verdict of the court shall not
prohibit or reverse the actions of a disciplinary hearing on any lesser
offenses included in the criminal charge.
Note: Authority cited: Section
5058, Penal
Code. Reference: Sections
2932 and
5054, Penal
Code.
Note: Authority cited: Section
5058, Penal
Code. Reference: Sections
2932 and
5054, Penal
Code.
