Current through Register 2024 Notice Reg. No. 38, September 20, 2024
(a)
The Administrative Reviewer of the automated Restricted Housing Unit Placement
Notice (RHUPN) (Rev. 11/23), which is incorporated by reference, or official
ordering an incarcerated person retained in restricted housing, shall determine
the need for providing assistance to incarcerated persons placed or retained in
restricted housing. Such assistance may be in the form of a Staff Assistant
(SA) or an Investigative Employee (IE). Only staff trained in the role and
responsibilities of an SA or IE may be assigned. The duties and functions of a
staff member assigned to assist an incarcerated person in a classification
hearing based upon an automated RHUPN (Rev. 11/23) will be separate from those
described in section
3318 for a disciplinary
hearing.
(b) An SA shall be
assigned if:
(1) The incarcerated person is
illiterate.
(2) The incarcerated
person has difficulty reading, writing, or speaking English. If an SA is
necessary for the purpose of language interpretation, but is not fluent in the
incarcerated person's language, a certified interpreter shall also be
provided.
(3) The issues are
sufficiently complex to make it unlikely that the incarcerated person can
understand the issues or the ICC hearing process.
(4) The incarcerated person is included in
the Mental Health Services Delivery System (MHSDS), is Developmentally
Disabled, or the circumstances surrounding restricted housing unit placement
involve behavior of a bizarre or unusual nature.
(A) The ICC shall assess the ongoing
appropriateness for an SA assigned to incarcerated persons in the MHSDS
Correctional Clinical Case Management System (CCCMS) level of care while housed
in restricted housing. In such cases, the ICC shall determine whether the
incarcerated person is capable of comprehending the issues being presented
based upon a clinical assessment in accordance with subsection
3375(g)(3), and
presented at the time of the hearing.
(c) An incarcerated person may refuse to
accept the first SA at the time of assignment. If the incarcerated person
refuses the SA at the time of initial assignment, a second SA shall be
assigned. Any decision to substitute the assigned SA subsequent to the
administrative review shall require notification to the incarcerated person in
writing.
(d) Incarcerated persons
may refuse to accept the assignment of a second SA or waive a previous SA
assignment unless:
(1) It is determined by
the Administrative Reviewer that a fair hearing cannot otherwise be
held.
(2) The incarcerated person
meets criteria in accordance with subsection (b)(4) of this
section.
(e) The assigned
SA shall:
(1) Meet with the incarcerated
person at least 24 hours prior to the classification hearing, inform the
incarcerated person of the role of the SA, and explain their rights and the
purpose and procedure of the classification hearing.
(2) Address the need for effective
communication. The provision of any assistance provided that is consistent with
the incarcerated person's disability or communication need and the method the
SA used to determine the incarcerated person understood shall be documented in
the automated Classification Committee Chrono (Rev. 05/19), which is
incorporated by reference, in accordance with subsection
3375(g)(1)(E).
(3) Provide assistance to the incarcerated
person by being present during the IE's interview of the incarcerated
person.
(4) Inform the incarcerated
person of the following due process rights afforded during the classification
hearing process:
(A) The right to 72 hours'
time to prepare their response for the ICC hearing;
(B) The right to a fair and impartial
hearing;
(C) The right to request
witnesses and documentary evidence; and
(D) The right to a written decision
documenting the evidence or information relied upon for the
decision.
(5) Advise and
assist in the incarcerated person's preparation for a classification hearing.
However, the SA shall refrain from giving legal counsel or specifying the
position the incarcerated person should take in the classification
hearing.
(6) Keep confidential any
information the incarcerated person may disclose concerning the charges for
which the SA was assigned.
(7)
Inform the incarcerated person that all evidence and information obtained and
considered or developed in the classification process may be used in court if
the same charges have been or are to be referred to the district attorney for
possible criminal prosecution.
(8)
If the SA becomes aware that the incarcerated person is contemplating future
criminal conduct, the SA shall disclose this information if necessary to
protect potential victims and prevent the contemplated crime.
(9) Assist the incarcerated person in
presenting the incarcerated person's position, in person, at the
hearing.
(10) Make reasonable
effort to ensure that the incarcerated person's position is
understood.
(11) Make reasonable
effort to ensure the incarcerated person understands and comprehends the
decision reached.
(12) Perform the
above duties for incarcerated persons in conjunction with all classification
reviews.
(f) The SA
assigned to and assisting the incarcerated person in the manner described above
shall be the same staff member who appears with the incarcerated person at the
classification hearing.
(g)
Assignment of an SA shall not preclude assignment of an IE.
(h) An IE may be assigned if:
(1) The reasoning for an incarcerated
person's placement in restricted housing is for non-disciplinary reasons and
the incarcerated person requests in writing the presence of witnesses or
submission of documentary evidence at a classification hearing on the reason or
need for retention in restricted housing.
(A)
When an incarcerated person's restricted housing placement is for
non-disciplinary reasons, the Administrative Reviewer will consider all
available evidence or information relating to the validity of the reasons
documented for restricted housing placement. Denial of an IE, witnesses or
evidence requested by the incarcerated person shall be on the basis of
legitimate penological interest and documented on the automated RHUPN (Rev.
11/23).
(B) When the reason for an
incarcerated person's placement in restricted housing is a serious disciplinary
matter resulting in the issuance of a Rules Violation Report and/or a referral
to the district attorney for criminal prosecution, the classification committee
will assume the alleged misconduct or criminal activity to be factual as
documented. In such cases, the services of an IE, witnesses, or additional
evidence shall be reserved for the disciplinary hearing, but denied for
purposes of the initial ICC.
(i) Based upon the findings of the IE, the
initial hearing shall permit the incarcerated person to present witnesses and
documentary evidence unless the chairperson of the committee determines in good
faith that permitting such evidence will be unduly hazardous to the safety
and/or security of the institution.
(j) Assignment of an IE shall not preclude
assignment of an SA.
(k) The
incarcerated person may not select the IE, but may object to the one assigned
and provide, in writing to the Administrative Reviewer, the reasons for the
objection. The Administrative Reviewer shall evaluate the incarcerated person's
objection(s) and, if determined to be reasonable, assign an alternate IE to
complete the investigation. If the Administrative Reviewer determines that the
incarcerated person's objections are not reasonable, the original IE shall
complete the investigation. The incarcerated person's objection must be
provided prior to the beginning of the investigation. The Administrative
Reviewer shall note on the automated RHUPN (Rev. 11/23) the decision to deny or
approve a request, and if denied, explain the reason(s) for denial.
(l) The assigned IE shall:
(1) If applicable, coordinate with the
incarcerated person's assigned SA to ensure the SA is present during any
questioning by the IE.
(2) Document
all effective communication efforts, as necessary; including the assistance
provided consistent with the incarcerated person's disability or communication
need, and the method the SA used to determine the incarcerated person
understood.
(3) Interview the
incarcerated person, to include the incarcerated person's statement and any
relevant questions for witnesses with first-hand knowledge of the circumstances
warranting the incarcerated person's restricted housing. An IE is not subject
to the confidentiality provisions of the SA in accordance with subsection
3344(e)(6) and
shall not withhold any information received from the incarcerated person. The
incarcerated person's submission of questions for witnesses does not preclude
the IE from asking other relevant questions of the witnesses that may be of
assistance to the classification committee in making decisions regarding the
reason(s) for restricted housing placement.
(4) It is the incarcerated person's
responsibility to provide information to the IE in order to assist in
identifying any relevant witness(es) the incarcerated person requests to be
interviewed.
(5) Immediately
document the investigative findings in a report, including the name of the SA
and, if applicable, an interpreter present during interviews; and forward the
completed report to the ICC.
(6)
Provide the incarcerated person a copy of the IE report, and any
non-confidential reports and information relevant to the restricted housing
decision and/or restricted housing placement, within 24 hours prior to the
ICC.
(7) Witnesses and Evidence.
The authority to grant or deny the appearance of witnesses shall be reserved
for the ICC.
(8) When an IE
provides assistance to an incarcerated person in lieu of or in addition to that
provided by an SA, the IE shall do so as a representative of the official who
will conduct the classification hearing rather than as a representative of the
incarcerated person.
Note: Authority cited: Section 5058, Penal Code.
Reference: Section 5054, Penal Code; Coleman v. Wilson, 912 F. Supp. 1282 (E.D.
Cal. 1995); and Clark v. California, 123 F.3d 1267 (9th Cir. 1997).
Note: Authority cited: Section
5058, Penal
Code. Reference: Section
5054, Penal
Code.
