Section 3344 - Assistance to Incarcerated Persons for Restricted Housing Classification Hearings(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.Cal. Code Regs. Tit. 15, § 3344
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.
1. Amendment filed 6-1-2015 as an emergency; operative 6-1-2015 (Register 2015, No. 23). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 11-9-2015 or emergency language will be repealed by operation of law on the following day.
2. Certificate of Compliance as to 6-1-2015 order, including further amendment of subsection (b), transmitted to OAL 10-19-2015 and filed 12-3-2015; amendments effective 12/3/2015 pursuant to Government Code section 11343.4(b)(3) (Register 2015, No. 49).
3. Renumbering of former section 3344 to section 3349 and renumbering of former section 3340 to section 3344, including amendment of section heading and section, filed 10-24-2023 as an emergency; operative 11/1/2023 (Register 2023, No. 43). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 4-9-2024 or emergency language will be repealed by operation of law on the following day.
4. Renumbering of former section 3344 to section 3349 and renumbering of former section 3340 to section 3344, including amendment of section heading and section, refiled 4-8-2024 as an emergency; operative 4/11/2024 (Register 2024, No. 15). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 7-10-2024 or emergency language will be repealed by operation of law on the following day.
5. Change without regulatory effect amending section heading and section filed 7-1-2024 pursuant to section 100, title 1, California Code of Regulations (Register 2024, No. 27).
6. Certificate of Compliance as to 4-8-2024 order, including further amendment of section and amendment of NOTE, transmitted to OAL 6-18-2024 and filed 7-31-2024; amendments effective 7/31/2024 pursuant to Government Code section 11343.4(b)(3) (Register 2024, No. 31).