State of California Office of Administrative Law · 2019. 6. 18. · § 2150. General (a) Following a parole consideration hearing resulting in a denial of parole under ... A change

State of California

Office of Administrative Law

In re:

Board of Parole Hearings

Regulatory Action:

Title 15, California Code of Regulations

Adopt sections: 2150, 2151, 2152,

2153, 2154, 2155,

2156, 2157

Amend Sections:

Repeal sections:

NOTICE OF APPROVAL OF

EMERGENCY REGULATORY ACTION

Government Code Section: 11346.1

and 11349.6

OAL Matter Number: 2018-1012-03

OAL Matter Type Emergency: (E)

The Board of Parole Hearings submitted this emergency action to adopt regulations that establish procedures for advancing parole consideration hearings pursuant to Penal Code section 3041.5(b)(4) and (d). OAL approves this emergency regulatory action pursuant to section 11346.1 and 11349.6 of the Government Code. This emergency regulatory action is effective on 10/22/2018 and will expire on 4/23/2019. The certificate of Compliance for this action is due no later than 4/22/2019.

Date: October 22, 2018 Original Signed by: Richard L. Smith Richard L. Smith Senior Attorney

For: Debra M. Cornez Director

Original: Jennifer Shaffer Executive Officer Copy: Heather McCray

Page 1 of 7 BPH RN 18-01: Advanced Parole Consideration Hearing Enacted 10/22/2018

BPH RN 18-01: PROPOSED REGULATORY TEXT

Proposed additions are indicated by underline and deletions are indicated by strikethrough.

BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS TITLE 15. CRIME PREVENTION AND CORRECTIONS

DIVISION 2. BOARD OF PAROLE HEARINGS

Chapter 2.5. ADVANCING PAROLE CONSIDERATION HEARING DATES is added to

read as follows: [begin underline]

CHAPTER 2.5. ADVANCING PAROLE CONSIDERATION HEARING DATES

[End of underline]

Article 1. Petition to Advance the Date of an Inmate’s Next Parole Consideration Hearing is

added to read as follows: [begin underline]

ARTICLE 1. PETITION TO ADVANCE THE DATE OF AN INMATE’S NEXT PAROLE

CONSIDERATION HEARING

§ 2150. General

(a) Following a parole consideration hearing resulting in a denial of parole under paragraph (3) of subdivision (b) of Penal Code section 3041.5 or a stipulation of unsuitability under subsection 2253(c) of article 3 of chapter 3, the inmate or the inmate’s attorney of record may file a written petition requesting that the board advance the date of the inmate’s next parole consideration hearing. The inmate or the inmate’s attorney of record may file a subsequent written petition once every three years from the date of the board’s previous review on the merits issued under section 2156.

(b) To file a written petition to advance the date of the inmate’s next parole consideration hearing, the inmate or inmate’s attorney of record shall send to the board a completed BPH Form 1045-A or a written request that includes the following:

(1) Inmate’s name; (2) CDCR number; (3) Institution at which the inmate is housed; (4) A change in circumstances or new information since the date of the inmate’s

most recent hearing resulting in a denial or stipulation of unsuitability; (5) How the change in circumstances or new information establishes a reasonable

likelihood that consideration of the public safety does not require that the inmate remain incarcerated until the date of his or her next parole consideration hearing; and

(6) Inmate’s signature and date of signature.

NOTE: Authority cited: Section 12838.4, Government Code and Sections 3052 and

5076.2, Penal Code. Reference: Section 3041.5, Penal Code and In re Vicks (2013) 56

Cal.4th 274.


§ 2151. Preliminary Review.

(a) Within 10 business days of receiving a petition under section 2150, board staff

shall review the petition to determine whether the board has jurisdiction under this section to advance the date of the inmate’s next parole consideration hearing.

(b) The board has jurisdiction to advance the date of the inmate’s next parole

consideration hearing if all of the following are true: (1) The inmate’s last parole consideration hearing resulted in a denial of parole

under paragraph (3) of subdivision (b) of Penal Code section 3041.5 or a stipulation of unsuitability under subsection 2253(c) of article 3 of chapter 3; and

(2) The inmate has not submitted a petition to advance a parole consideration hearing date that was reviewed on the merits within the past three years under section 2156.

(c) If board staff determines the board has jurisdiction under subsection (b) to review

the petition, the board shall proceed with the notification process outlined in section 2155.

(d) If board staff determines the board does not have jurisdiction under subsection

(b) to review the petition, staff shall issue a written decision, a copy of which shall be served on the inmate and placed in the inmate’s central file within 15 business days of being issued. The date of the inmate’s next parole consideration hearing shall not be advanced.

(e) Inmates may seek review of decisions issued under this section by writing the

board in accordance with section 2157 within 30 calendar days of being served with the decision. Decisions issued under this section are not subject to the department's inmate appeal process under article 8 of chapter 1 of division 3 of this title.

(f) Nothing in this section precludes the board from conducting an ad hoc

administrative review to determine whether to advance the date of the inmate’s next parole consideration hearing under section 2152.

NOTE: Authority cited: Section 12838.4, Government Code and Sections 3052 and 5076.2, Penal Code. Reference: Section 3041.5, Penal Code. [End underline]


Article 2. Administrative Review to Advance the Date of an Inmate’s Next Parole Consideration

Hearing is added to read as follows: [Begin underline]

ARTICLE 2. ADMINISTRATIVE REVIEW TO ADVANCE THE DATE OF AN INMATE’S

NEXT PAROLE CONSIDERATION HEARING

§ 2152. Ad Hoc Administrative Review.

The board may, at any time, initiate an administrative review of any inmate to determine whether to advance the date of the inmate’s next parole consideration hearing under paragraph (4) of subdivision (b) of Penal Code section 3041.5. Once an administrative review is initiated under this section, the board shall proceed with the notification process outlined in section 2155. NOTE: Authority cited: Section 12838.4, Government Code and Sections 3052 and


Cal.4th 274.

§ 2153. Administrative Review of Three-Year Denials.

The board shall, 11 months after a parole consideration hearing results in a denial period of three years, initiate an administrative review to determine whether to advance the date of the inmate’s next parole consideration hearing under paragraph (4) of subdivision (b) of Penal Code section 3041.5. This section shall not apply to determinately sentenced inmates who were within 24 months of being released as a result of their Earliest Possible Release Date. NOTE: Authority cited: Section 12838.4, Government Code and Sections 3052 and


Cal.4th 274.

§ 2154. Preliminary Screening.

(a) Within 10 business days of an administrative review being initiated under section

2153 of this article, board staff shall conduct a preliminary screening to determine whether the inmate will be excluded from a review on the merits under section 2156.

(b) An inmate will be excluded from a review on the merits under section 2156 if any

of the following circumstances apply: (1) The inmate stipulated to unsuitability under subsection 2253(c) of article 3 of

chapter 3 of this title at his or her last parole consideration hearing; (2) The inmate’s last parole consideration hearing resulted in a denial period of more

than three years under paragraph (3) of subdivision (b) of Penal Code section 3041.5;

(3) The inmate’s overall risk rating is high on his or her most recent comprehensive risk assessment completed under section 2240 of article 1 of chapter 3 of this title;

(4) The inmate or the inmate’s attorney of record has, since the inmate’s last hearing, submitted a petition under section 2150 that was reviewed on the merits under section 2156;


(5) The inmate has been found guilty of a Division A-1, A-2, B, C, D, or E rule violation as specified in section 3323 of article 5 of subchapter 4 of chapter 1 of division 3 of this title since the inmate’s last parole consideration hearing;

(6) The inmate has been convicted of a new crime since the inmate’s last parole consideration hearing; or

(7) The inmate’s next hearing date has already been advanced since his or her last parole consideration hearing.

(c) If board staff determines that none of the circumstances in subsection (b) apply,

the board shall proceed with the notification process outlined in section 2155 and a review on the merits under section 2156.

(d) If board staff determines that at least one of the circumstances in subsection (b)

of this section applies, the inmate’s next parole consideration hearing shall not be advanced under section 2153.

(e) Nothing in this section precludes the board from conducting an ad hoc

administrative review to determine whether to advance the date of the inmate’s next parole consideration hearing under section 2152.

NOTE: Authority cited: Section 12838.4, Government Code and Sections 3052 and 5076.2, Penal Code. Reference: Section 3041.5, Penal Code and In re Vicks (2013) 56 Cal.4th 274. [End underline]


Article 3. Review on the Merits is added to read as follows: [Begin underline]

ARTICLE 3. REVIEW ON THE MERITS

§ 2155. Victim Notification.

(a) Within five business days of board staff determining the board has jurisdiction under section 2151 or determining none of the circumstances in subsection 2154(b) apply, or within five business days of the board initiating an ad hoc administrative review under section 2152, the board shall notify registered victims of the board’s pending review on the merits under section 2156 and provide an opportunity to submit a written statement.

(b) Responses to the board under this section must be in writing and postmarked or electronically stamped no later than 30 calendar days after the board issued the notification.

(c) A registered victim is any person who is registered as a victim with the department’s Office of Victim and Survivor Rights and Services on the date board staff determined the board has jurisdiction under section 2151 of article 1, the date board staff determined none of the circumstances in subsection 2154(b) apply, or on the date the board initiated an ad hoc administrative review under section 2152.

NOTE: Authority cited: Section 12838.4, Government Code and Sections 3052 and

5076.2, Penal Code. Reference: Sections 3041.5 and 3043, Penal Code and In re Vicks

(2013) 56 Cal.4th 274.

§ 2156. Review on the Merits.

(a) Within 15 business days of the conclusion of the notification process described under section 2155, a commissioner or deputy commissioner acting in accordance with Penal Code section 5076.1 shall, as a hearing officer, conduct a review on the merits and determine whether the date of the inmate’s next parole consideration hearing should be advanced under paragraph (4) of subdivision (b) or under subdivision (d) of Penal Code section 3041.5.

(b) The hearing officer shall review and consider all relevant and reliable information about the inmate, including, but not limited to:

(1) Information contained in the inmate’s central file; (2) Any petition filed by the inmate under section 2150; and (3) Written statements submitted by registered victims who received notice under

section 2155.

(c) If the inmate committed his or her controlling offense, as defined in subdivision (a) of Penal Code section 3051, when he or she was 25 years of age or younger, the hearing officer shall consider the diminished culpability of youth as compared to adults, the hallmark features of youth, and any subsequent growth and increased maturity of the inmate.


(d) If the inmate is 60 years of age or older and has served a minimum of 25 years of continuous incarceration on his or her current sentence, the hearing officer shall consider the inmate’s age, time served, and diminished physical condition, if any.

(e) After reviewing and considering all relevant and reliable information and the

factors in subsections (c) and (d), the hearing officer shall determine whether the date of the inmate’s next parole consideration hearing should be advanced. If the hearing officer determines there has been a change in circumstances or new information that establishes a reasonable likelihood that consideration of the public and the victim’s safety does not require that the inmate remain incarcerated until the date of his or her next parole consideration hearing, the hearing officer shall advance the date of the inmate’s next parole consideration hearing. In the absence of such a determination, the date of the inmate’s next parole consideration hearing shall not be advanced.

(f) The hearing officer shall issue a written decision that includes a statement of

reasons supporting the decision. A copy of the decision shall be served on the inmate and placed in the inmate’s central file within 15 business days of being issued. The board shall, within five business days of issuing a decision, send notice of the decision to any registered victim who received notice under section 2155.

(g) Parole consideration hearing dates advanced under subsection (e) shall be

advanced by the hearing officer either to the next available calendar or by decreasing the length of the inmate’s previous parole denial to a shorter allowable period under paragraph (3) of subdivision (b) of Penal Code section 3041.5, whichever the hearing officer determines is appropriate based on the information reviewed and considered.

(h) Inmates may seek review of decisions issued under this section by writing the

board in accordance with section 2157 within 30 calendar days of being served the decision. Decisions issued under this section are not subject to the department's inmate appeal process under article 8 of chapter 1 of division 3 of this title.

NOTE: Authority cited: Section 12838.4, Government Code and Sections 3052 and 5076.2, Penal Code. Reference: Sections 3041.5, 3051, 3055, 4801 and 5076.1, Penal Code and In re Vicks (2013) 56 Cal.4th 274. [End underline]


Article 4. Decision Review is added to read as follows: [Begin underline]

ARTICLE 4. DECISION REVIEW

§ 2157. Decision Review.

(a) An inmate may request review of a decision issued under section 2151, or a

review on the merits decision issued under section 2156 by submitting a written request to the board within 30 calendar days of the inmate being served the decision. The inmate’s written request shall include a description of why the inmate believes the previous decision was not correct and may include additional information not available to the board at the time the previous decision was issued.

(b) The Chief Hearing Officer or an associate chief deputy commissioner may also

initiate a review under this section at any time prior to the date of the inmate’s next parole consideration hearing if the previous decision contained an error of law, an error of fact, or if the board receives new information that would have materially impacted the previous decision had it been known at the time the decision was issued.

(c) A hearing officer, associate chief deputy commissioner, or the Chief Hearing

Officer, who was not involved in the original decision, shall complete a review of the decision within 15 business days of the board receiving the request.

(d) The hearing officer, associate chief deputy commissioner, or the Chief Hearing

Officer reviewing the previous decision shall consider all relevant and reliable information and issue a decision either concurring with the previous decision or overturning the previous decision with a statement of reasons supporting the new decision.

(e) A copy of the decision shall be served on the inmate and placed in the inmate’s

central file within 15 business days of being issued.

(f) Within five business days of issuing a decision under this section that overturns a previous decision that determined the board had jurisdiction under section 2151, or a review on the merits decision issued under section 2156, the board shall send notice of the decision to any victim who received notice under section 2155.

(g) If a decision under this section overturns a previous decision that determined the

board did not have jurisdiction to conduct a review under section 2151 or that determined one or more of the circumstances in subsection 2154(b) applied, the board shall proceed with the notification process outlined in section 2155. The board shall also conduct a review on the merits under section 2156.

(h) Decisions under this section are not subject to the department’s inmate appeal

process under article 8 of chapter 1 of division 3 of this title. NOTE: Authority cited: Section 12838.4, Government Code and Sections 3052 and


Cal.4th 274. [End underline]

1 | P a g e

State of California – Office of Administrative Law Notice Publication/Regulations Submission Std. 400 (Rev. 01-2013) [Stamp] EMERGENCY OAL File Numbers Notice File Number: Z- Regulatory Action Number: [Blank] Emergency Number: 2018-1012-03E For use by Office of Administrative Law (OAL) only Regulations [Date Stamp] 2018 OCT -12 A 11:24 Office of Administrative Law For Use by Secretary of State Only [Blank] Agency with Rulemaking Authority: Board of Parole Hearings Agency File Number: BPH RN 18-01

A. Publication of Notice (Complete for publication in Notice Register) 1. Subject of Notice: [Blank]

Title(s): [Blank] First Section Affected: [Blank]

2. Requested Publication Date: [Blank] 3. Notice Type: [Blank] 4. Agency Contact Person: [Blank]

Telephone Number: [Blank] Fax Number: [Blank]

OAL Use only Action on Proposed Notice: [] Approved as submitted [] Approved as modified [] Disapproved/Withdrawn Notice Register Number: [Blank] Publication Date: [Blank]

2 | P a g e

B. Submission of Regulations (Complete when submitting regulation) 1a. Subject of Regulation(s): Advancing Parole Consideration Hearing Dates. 1b. All Previous related OAL Regulatory Action Number(s): n/a 2. Specify California Code of Regulation Titles and Sections (Including title 26, if toxics related) Section(s) Affected (List all section number(s) individually. Attach additional sheet if needed.) Title(s): 15 Adopt: 2150, 2151, 2152, 2153, 2154, 2155, 2156, and 2157 Amend: [Blank] Repeal: [Blank] 3. Type of Filing [Checked] Emergency (Government Code §§ 11346.1(b)) 4. All beginning and ending dates of availability of modified regulations and/or material added to the rulemaking file (Cal. Code Regs, title 1, §44 and Gov. Code §11347.1): n/a 5. Effective Date of Changes (Gov. Code, §§11343.4, 11346.1(d); Cal. Code Regs, title 1, §100): [Checked] Effective on filling with Secretary of State 6. Check if these regulations require notice to, or review, consultation, approval or concurrence by, another agency or entity. n/a 7. Contact Person: Heather L. McCray Telephone Number: (916) 322-6729 Fax Number (Optional): (916) 322-3475 Email Address: [email protected] 8. I certify that the attached copy of the regulation(s) is a true and correct copy of the regulation(s) identified on this form, that the information specified on this form is true and correct, and that I am the head of the agency taking this action, or a designee of the head of the agency, and am authorized to make this certification. Signature of Agency Head or Designee: [Original Signed by Jennifer P. Shaffer] Typed Name and Title of Signatory: Jennifer P. Shaffer, Executive Officer Date: Unreadable For use by Office of Administrative Law (OAL) only

1

State of California – Department of Finance ECONOMIC AND FISCAL IMPACT STATEMENT (REGULATIONS AND

ORDERS) Std. 399 (Rev. 12/2013)

ECONOMIC IMPACT STATEMENT Department Name: Board of Parole Hearings Contact Person: Heather L. McCray Email Address: [email protected] Telephone Number: (916) 322-6729 Descriptive Title from Notice Register or Form 400: Advancing Parole Consideration Hearing Dates Notice File Number: [Blank]

A. ESTIMATED PRIVATE SECTOR COST IMPACTS Include calculations and assumptions in the rulemaking record 1. Check the appropriate box(es) below to indicate whether this regulation:

[Checked] h. None of the above (Explain) Begin Explanation to 1.h., No private sector jobs were created/eliminated to implement this regulation; no other impact to private sector was identified, end of Explanation to 1.h.

If any box in Items a through g is checked, complete this economic impact Statement. If box in Item 1.h. is checked, complete the Fiscal Impact Statement as appropriate. 2. The Agency/Department Estimates that the economic impact of this regulation

(which includes the fiscal impact) is: N/A 3. Enter the total number of businesses impacted: [Blank]

Describe the types of businesses (Include nonprofits): [Blank] Enter the number of percentage of total businesses impacted that are small businesses: [Blank]

4. Enter the number of Businesses that will be created: [Blank] eliminated [Blank] explain: [Blank]

5. Indicate the geographic extent of impacts: Statewide, Local or regional (list areas): [Blank]

6. Enter the number of jobs created: [Blank] and eliminated: [Blank]

Describe the types of jobs or occupations impacted: [Blank]

7. Will the regulations affect the ability of California businesses to compete with other states by making it more costly to produce goods or services here? [Blank]

mailto:[email protected]

2

B. ESTIMATE COSTS Include calculations and assumptions in the rulemaking record. 1. What are the total statewide dollar costs that businesses and individuals may incur

to comply with this regulation over tis lifetime? [Blank] 2. If multiple industries are impacted, enter the share of total costs for each industry

[Blank].

3. If the regulation imposes reporting requirements, enter the annual costs a typical business may incur to comply with these requirements. Include the dollar costs do programming, record keeping, reporting, and other paperwork, whether or not the paperwork must be submitted. [Blank]

4. Will this regulation directly impact housing costs? [Blank]

5. Are there comparable Federal regulations? [Blank]

Explain the need for State regulation given the existence or absence of Federal regulation: [Blank] Enter any additional costs to businesses and/or individuals that may be due to State – Federal differences: [Blank]

C. ESTIMATED BENEFITS Estimation of the dollar value of benefits is not specifically required by rulemaking law, but encouraged. 1. Briefly summarize the benefits of the regulation, which may include among others,

the health and welfare of California residents, worker safety and the State’s environment: [Blank]

2. Are the benefits the result of: specific statutory requirements or goals developed by the agency based on broad statutory authority? Explain: [Blank]

3. What are the total statewide benefits from this regulation over its lifetime? [Blank]

4. Briefly describe any expansion of businesses currently doing business within the

State of California that would result from this regulation: [Blank]

D. ALTERNATIVES TO THE REGULATION Include calculations and assumptions in the rulemaking record. Estimation of the dollar value of benefits is not specifically required by rulemaking law, but encouraged. 1. List alternatives considered and describe them below. If no alternatives were

considered, explain why not: [Blank]

3

ECONOMIC IMPAT STATEMENT (CONTINUED)

2. Summarize the total statewide costs and benefits from this regulation and each

alternative considered: [Blank]

3. Briefly discuss any quantification issue that are relevant to a comparison of estimated costs and benefits for this regulation or alternatives: [Blank]

4. Rulemaking law requires agencies to consider performance standards as an

alternative, if a regulation mandates the use of specific technologies or equipment, or prescribes specific actions or procedures. Were performance standards considered to lower compliance costs? [Blank]

E. MAJOR REGULATIONS Include calculations and assumptions in the rulemaking record

California Environmental Protection Agency (Cal/EPA) boards, offices and departments are required to submit the following (per Health and Safety

Code Section 57005). Otherwise, skip to E4. 1. Will the estimated costs of this regulation to California business enterprises exceed

$10 million? [Blank]

If Yes, Complete E2. and E3 If No, skip to E4

2. Briefly describe each alternative, or combination of alternatives, for which a cost-

effectiveness analysis was performed: [Blank] 3. For the regulation, and each alternative just described, enter the estimated total cost

and overall cost-effectiveness ratio: [Blank]

4. Will the regulation subject to OAL review have an estimated economic impact to business enterprises and individuals located in or doing business in California exceeding $50 million in any 12 month period between the date the major regulations is estimated to be filed with the Secretary of State through 12 months after the major regulation is estimated to be fully implemented? [Blank]

5. Briefly describe the following:

The increase or decrease of investment in the State: [Blank] The incentive for innovation in products, materials or processes: [Blank] The benefits of the regulations, including, but not limited to, benefits to the health, safety, and welfare of California residents, worker safety, and the state’s environment and quality of life, among any other benefits identified by the agency: [Blank]

4

FISCAL IMPACT STATEMENT

A. FISCAL EFFECT ON LOCAL GOVERNMENT Indicate appropriate boxes 1 through 6 and attach calculations and assumptions of fiscal impact for the current year and two subsequent Fiscal Years. 1. Additional expenditures in the current State Fiscal Year which are reimbursable by

the State.(Approximate) (Pursuant to Section 6 of Article XIII B of the California Constitution and Section 17500 et seq. of the Government Code). [Not checked]

2. Additional expenditures (in the current State Fiscal Year which are Not reimbursable by the State.(Approximate) (Pursuant to Section 6 of Article XIII B of the California Constitution and Sections 17500 et seq. of the Government Code). [Not checked]

3. Annual Savings. (approximate): [Not checked]

4. No additional costs or savings. This regulation makes only technical, non-

substantive or clarifying changes to current law regulations. [Not checked]

5. No fiscal impact exists. This regulation does not affect any local entity or program. [Checked]

6. Other. Explain: [Not checked]

5

B. FISCAL EFFECT ON STATE GOVERNMENT Indicate appropriate boxes 1 through 4 and attach calculations and assumptions of fiscal impact for the current year and two subsequent Fiscal Years. 1. Additional expenditures in the current State Fiscal Year. (Approximate): [Not

checked]

2. Savings in the current State Fiscal Year. (Approximate): [[Not checked]

3. No fiscal impact exists. This regulation does not affect any State agency or program. [Not checked]

4. Other. Explain: [Checked] There are no specific costs or savings anticipated for the

current or two subsequent fiscal years. These regulations codify the Board’s current processes, which have been absorbed by the Board’s current budget.

C. FISCAL EFFECT ON FEDERAL FUNDING OF STATE PROGRAMS Indicate appropriate boxes 1 through 4 and attach calculations and assumptions of fiscal impact for the current year and two subsequent Fiscal Years.

1. Additional expenditures in the current State Fiscal Year. (Approximate): [Not checked]

2. Saving in the current State Fiscal Year. (Approximate): [Not checked]

3. No fiscal impact exists. This regulation does not affect any federally funded State

agency or program. [Checked]

4. Other. Explain: [Not checked]

Fiscal Officer Signature Original Signed by: Sandra D. Maciel Date of signature: 10/10/2018 The signature attests that the agency has completed the STD 399 according to the instructions in SAM section 6601-6616 and understands the impacts of the proposed rulemaking, State boards, offices, or departments not under an Agency Secretary must have the form signed by the highest ranking official in the organization.

AGENCY SECRETARY Original Signed by: Ralph Diaz Date of signature: 10/11/2018

BPH RN 18-01: NOTICE OF PROPOSED EMERGENCY ACTION


DIVISION 2. BOARD OF PAROLE HEARINGS CHAPTER 2.5. ADVANCING PAROLE CONSIDERATION HEARING DATES

GOVERNMENT CODE SECTION 11346.1(a)(2) requires that, at least five working days prior to submission of the proposed emergency action to the Office of Administrative Law, the adopting agency provide a notice of the proposed emergency action to every person who has filed a request for notice of regulatory action with the agency. After submission of the proposed emergency to the Office of Administrative Law, the Office of Administrative Law shall allow interested persons five calendar days to submit comments on the proposed emergency regulations as set forth in Government Code section 11349.6.

NOTICE IS HEREBY GIVEN that the Board of Parole Hearings will submit the proposed emergency regulations to add “Chapter 2.5. Advancing Parole Consideration Hearing Dates” to the California Code of Regulations, Title 15, Division 2.

BPH RN 18-01: AMENDED FINDING OF EMERGENCY



Amended Finding of Emergency, Submitted on October 22, 2018

(Gov. Code, § 11346.1, subd. (b); Cal. Code Regs., tit. 1, § 50)

Background

Section 3041.5 of the Penal Code previously required the Board of Parole Hearings to conduct annual parole consideration hearings, which could be deferred under certain circumstances for up to five years for murderers and up to two years for non-murderers. In 2008, the People of California passed the California Victim’s Bill of Rights Act (also known as “Marsy’s Law”), which amended Penal Code section 3041.5 and increased denial periods to a minimum of three years and a maximum of 15 years. Therefore, the shortest denial length an inmate can receive after Marsy’s Law has increased from one to three years. Additionally, the presumption has shifted from the shortest denial period to the longest denial period of 15 years unless the Board finds by clear and convincing evidence that longer denial periods are not needed.

Following these changes, inmates potentially faced longer periods of incarceration after a denial of parole by the Board, which raised the question of whether the amendments prolonged an inmate’s incarceration in violation of ex post facto laws. However, section 3041.5, subdivisions (b)(4) and (d)(1) also gave the Board discretion to advance an inmate’s parole consideration hearing to an earlier date under its own authority or based upon a written request by an inmate (also known as a Petition to Advance or “PTA”).

In 2011, the Ninth Circuit Court of Appeals in Gilman v. Schwarzenegger (9th Cir. 2011) 638 F.3d 1101 (Gilman I), held that the 2008 initiative responsible for these changes did not violate ex post facto laws on its face because it did not create a significant risk of prolonging an inmate’s incarceration. The court specifically pointed to the Board’s discretionary authority to advance hearings under Penal Code section 3041.5, subdivision (b)(4) and the inmate’s right to submit a PTA under subdivision (d)(1), and found that the availability of advanced hearings removed any possibility of harm to the inmate. (Id. at p. 1109.) The court further noted that, absent evidence to the contrary, it “must presume that the Board will, upon request, schedule [advanced] hearings for prisoners who become suitable for parole prior to their scheduled hearings.” (Ibid.) The same court in February 2016 held that no ex post facto violation had occurred as applied to the plaintiff class because there was insufficient evidence “demonstrating that the PTA process failed to afford relief from the classwide risk of lengthened incarceration posed by [Marsy’s Law].” (Gilman v. Brown (9th Cir. 2016) 814 F.3d 1007, 1021 (Gilman II).)

Page 2 of 6 BPH RN 18-01: Advancing Parole Consideration Hearings Amended 10/22/2018

The California Supreme Court in In re Vicks (2013) 56 Cal.4th 274, also considered the issue of whether these statutory changes violated ex post facto laws and created a significant risk of prolonging an inmate’s incarceration. The Court concluded that Marsy’s Law did not violate ex post facto laws and did not create a significant risk of prolonging an inmate’s incarceration due to the Board’s discretionary authority to advance hearings under Penal Code section 3041.5 subdivision (b)(4), and an inmate’s ability to submit a written request for an advanced hearing under subdivision (d)(1). (Id. at pp. 304-305, 317.)

These state and federal cases ultimately upheld Marsy’s Law under the expectation that the Board could and would exercise its discretion “at a point in time when it might have exercised its discretion under the prior scheme.” (In re Vicks, supra, 56 Cal.4th at p. 301.) The Vicks court specifically referenced as a basis for its decision the Board’s unfettered discretion to advance a hearing “any time new information or a change in circumstances indicates that there is a reasonable likelihood the prisoner is suitable for parole.” (Id. at p. 305.) Embedded in this is the Board’s “authority to direct its staff to review a particular prisoner’s circumstances at any time to determine if there is a reasonable likelihood the prisoner is suitable for parole.” (Id. at p. 302.)

Following the Gilman and Vicks decisions, the Board exercised its discretion under section 3041.5, subdivision (b)(4) to conduct a structured administrative review process whereby deputy commissioners review cases to determine whether, in accordance with statutory requirements, new information or a change in circumstances established a reasonable likelihood that an inmate is suitable for parole. This administrative review process was publicly presented to the Board’s commissioners at the July 15, 2013 and August 9, 2013 Executive Board Meetings. Since then, deputy commissioners have reviewed cases and advanced the hearings of those inmates meeting the statutory requirements.

On August 2, 2018, an Orange County Superior Court issued a temporary injunction enjoining the Board from conducting an inmate’s parole consideration hearing that was advanced under the Board’s administrative review process. (Tony Rackauckas, et al. v. State of California, et al., Orange County Superior Court, Case No. 30-2018-00985610-CU-WM-CJC.) The court found that the Board had not formally adopted a policy assigning to deputy commissioners the responsibility of advancing hearings or establishing criteria to guide the deputy commissioners in making those decisions. (Id. at p. 9.) The court issued a final preliminary injunction on August 24, 2018. (Id.)

On August 20, 2018, a majority of the total membership of the Board voted to assign deputy commissioners the responsibility to make decisions to advance a hearing date under Penal Code section 3041.5, subdivisions (b)(4) and (d)(1) and to ratify all previous decisions made by a deputy commissioner to advance a hearing under those subdivisions. On September 17, 2018, the majority also voted to approve the Board’s current PTA and administrative review process as reflected in the text of these emergency regulations.


Justification of Emergency

Government Code section 11342.545 defines emergency as “a situation that calls for immediate action to avoid serious harm to the public peace, health, safety, or general welfare.” Recent litigation, including the Orange County Superior Court’s Injunction, jeopardizes the Board’s ability to comply with Vicks by halting the administrative review process. The Board views this as an emergency that disrupts the public’s general welfare and the peace, health, and safety of victims.

I. The Board Must Continue Its Advanced Hearing Processes to Comply with Court Decisions and to Preserve Marsy’s Law

The People of California voted by initiative to enact statutory changes that instituted longer periods of incarceration between parole hearings. Marsy’s Law withstood arguments of facial and as-applied ex post facto violations because both the Gilman and Vicks courts found that the Board’s discretionary authority to advance hearings under Penal Code section 3041.5, subdivisions (b)(4) and (d)(1) served as a sufficient and meaningful mechanism to ensure that Marsy’s Law did not unlawfully prolong inmates’ incarceration. In other words, without these processes to advance hearings when statutorily appropriate, Marsy’s Law would almost certainly not have withstood the constitutional challenges under ex post facto laws. In efforts to comply with the court decisions, from January 2014 through August 2018, deputy commissioners reviewed and advanced 1,885 parole consideration hearings based on PTAs. As of September 27, 2018, 1,623 of those hearings had been scheduled, resulting in 421 grants of parole (25.9% grant rate). During that same time period, deputy commissioners advanced 4,679 parole consideration hearings under the administrative review process. As of September 27, 2018, 3,311 of those hearings had been scheduled, resulting in 1,171 grants of parole (35.3% grant rate). The general grant rate for all hearings scheduled by the Board between January 1, 2014, and August 31, 2018, is 17.76%. As seen from the data, the grant rate for inmates whose hearings are advanced through either the PTA or the administrative review processes is significantly higher relative to that of all hearings. In other words, many of the inmates whose hearings are advanced are found to be suitable for parole earlier than the denial length they were given at their last hearing. This data confirms that the Board’s PTA and administrative review processes are meaningful mechanisms that mitigate the risk of prolonged incarceration for inmates, thereby protecting their constitutional rights. Because these processes are the foundation of the Gilman and Vicks courts’ decisions to uphold the validity of Marsy’s Law, it is imperative that the Board continue its advanced hearing processes without interruption to remain in compliance with the court decisions.

II. Recent Litigation Challenges the Board’s Administrative Review Process and Significantly Impacts the Board’s Ability to Comply with Court Decisions and to Preserve Marsy’s Law

Recent litigation creates an urgent need for the Board to adopt emergency regulations that reflect its longstanding processes to advance hearings in the appropriate circumstances so that it can continue to comply with the court decisions and to protect Marsy’s Law. Without immediate action, the Board may be increasingly subject to


similar litigation that will have a greater impact on both the constitutional rights of inmates and the rights of victims under Marsy’s Law. The Orange County Superior Court’s injunction recently halted the Board from advancing an inmate’s parole hearing because, under Penal Code section 5076.1, subdivision (b), a majority of “the board” (i.e., commissioners) did not vote to explicitly assign the role of advancing hearings and the procedures associated with it to deputy commissioners. The Board maintains the position that deputy commissioners were properly authorized to make determinations about whether an inmate’s hearing should be advanced under these processes. However, it is appropriate to memorialize the existing procedures to address the issues raised by the court and avoid uncertainty regarding the validity of a hearing panel’s decision rendered as a result of a deputy commissioner having advanced a hearing under the PTA or administrative review process. Currently, the Board has 267 pending hearings based on PTAs and 475 pending hearings based on administrative reviews. Failure to hold these hearings would impact a significant number of inmates. Therefore, immediate action is warranted. In light of the recent litigation drawing the Board’s attention to the immediate need to regulate its PTA and administrative review processes for advancing hearings, the Board seeks to use the emergency regulatory process to allow the Board to continue its advanced hearing processes to comply with Vicks and Gilman and preserve the peace, health, and safety of victims, as well as the public general welfare, while it prepares regulations for the regular rulemaking process.

Statement of Necessity

As explained above in greater detail, these regulations are necessary to allow the board to continue to preserve the will of the California voters in enacting Marsy’s Law by exercising discretion to advance hearing dates when appropriate, as contemplated by the Ninth Circuit and California Supreme Court. In section 2150, the regulations allow an inmate or the inmate’s attorney of record to file a subsequent written petition once every three years from the date of the board’s previous review on the merits issued under section 2156. This provision is necessary to clarify the statutory three-year limitation in Penal Code section 3041.5, subdivision (d)(3), which states that “An inmate may make only one written request as provided in paragraph (1) during each three-year period” and that, following a summary denial of a request or a decision to deny parole, “the inmate shall not be entitled to submit another request for a hearing . . . until a three-year period of time has elapsed from the summary denial or decision of the board.” Specifically, the board needed to clarify that the three year period specifically ran from the date of the prior decision on the merits following review of an inmate’s previous petition to advance a hearing date. In section 2153, these regulations require the board to initiate an administrative review for any inmate whose most recent parole consideration hearing resulted in a denial of three years. This review must be initiated 11 months after the date of the parole consideration hearing that resulted in the three-year denial. While the California Supreme Court in Vicks found that the board’s discretion to review an inmate’s case for possible advancement of his or her next hearing date was “unfettered” (In re Vicks


(2013) 56 Cal.4th 274, 300), the concurring opinion in the Vicks court expressed concern that, while the board clearly had authority to advance hearings, there was no evidence presented about the extent to which the board was exercising the discretion to review cases for advancement. Additionally, the Vicks court grappled with whether the increase in minimum denial length from one to three years “deprived [the inmate] of an earlier release date” balanced by the concern that “[m]ost of the circumstances relevant to suitability for parole in California are not of a type amenable to rapid change.” (Vicks, 56 Cal.4th at 303.) Therefore, in developing a more structured approach to exercising its discretion in a manner that would meaningfully uphold the intent of the California voters in enacting Marsy’s Law, the board finds it necessary to review those inmates who are the most likely to have received annual hearings under prior law, but to allow sufficient time to pass such that a change in circumstances or new information is more likely. The board found that advancing a three-year denial to approximately 18 months, when a change in circumstances or new information reasonably demonstrated the additional remaining time was not necessary, represented the best balance between the Vicks court’s two concerns. Since the preliminary screening, victim notification, and review on the merits processes require approximately two calendar months to complete, and scheduling requires approximately an additional five months to place an inmate on the next available hearing calendar (accounting for all required notification periods preceding a parole consideration hearing), the board subtracted seven months from 18 and determined that it was necessary to initiate the administrative review process 11 months after the date of a three-year denial so that, if the inmate is deemed appropriate for hearing advancement, the board has created a meaningful mechanism to advance the inmate’s hearing to 18 months. This timeframe was necessary to balance the need to advance the hearings for those inmates most likely to be found suitable so that they are not “deprived of an earlier release date,” but still providing sufficient time between the prior and next hearing to allow for a true change in circumstances or new information to occur. In Section 2153, the regulations also exempt from the administrative review of three-year denial processes those determinately sentenced inmates who, on the date of hearing, were within 24 months of their Earliest Possible Release Date (EPRD) by operation of determinate sentencing law. As previously explained, the review and scheduling process takes a total of approximately seven months to complete. Additionally, once a determinately sentenced inmate is granted parole at a parole consideration hearing, the decision granting parole is subject to the board’s decision review process under Penal Code section 3041(b)(2) and the Governor’s decision review process under Penal Code section 3041.1. The decision granting parole does not become final until 120 days have passed, after which the Governor has 30 days to review the decision. Thus, for an inmate who, on the date of the prior hearing resulting in the three-year denial, was already within 24 months of his or her EPRD, the advancement process would be meaningless as the inmate would likely already be released by operation of law before the decision granting parole would be finalized and the inmate could be released. Finally, in section 2154, subdivision (b), the board established screening criteria that would exclude an inmate from the administrative review of the three-year denial process. The board determined it was necessary to establish screening criteria to avoid


wasting resources reviewing inmates who were unlikely to demonstrate a change in circumstances or new information demonstrating a reasonable likelihood that consideration of the public and the victim’s safety does not require that the inmate remain incarcerated until the date of his or her next parole consideration hearing. Thus, each of the exclusionary criteria established in subdivision (b) represents a factor that, alone, demonstrates the inmate is unlikely to meet that standard. Specifically, paragraph (b)(1) excludes inmates who admitted to the board in their previous hearing that they will not be suitable for parole for at least three or more years. Paragraph (b)(2) excludes inmate whose prior hearings resulted in denial lengths of longer that three years, since these inmates were already deemed to require substantially more than the minimum period of time to attain suitability. Paragraph (b)(3) excludes inmates who were rated to present a “high” risk of engaging in future violence on the most recent comprehensive risk assessment conducted in accordance with section 2240 of the board’s regulations because this inmates have been assessed by a psychologist to represent the highest level of risk for violent recidivism that can be assessed to inmates serving long-term sentences. Paragraph (b)(4) excludes inmates who, within 11 months of their prior hearing resulting in the three-year denial, submitted a petition to advance that the board reviewed on the merits because it is unlikely that the board would reach a different decision just a few months later. Paragraphs (b)(5) and (b)(6) exclude inmates who, since the date of their prior hearing resulting in the three-year denial, committed a rules violation other than a minor Division F infraction or were convicted of a new crime because the fact that the inmate is continuing to violate institution rules or laws demonstrates that he or she is unlikely to be able to show that the remaining denial period is not required. Paragraph (b)(7) excludes inmates whose next hearing date was already advanced since the board has already exercised discretion to advance this hearing. Each of these screening exclusions is necessary to allow the board to focus its resources in exercising the discretion to review inmates for advancement on those inmates most likely to be found suitable for parole. However, it is important to note that all of the inmates excludes the board’s administrative review of a three-year denial process are still entitled to petition the board to advance their hearing under the Petition to Advance process in section 2150.

BPH RN 18-01: Gov. Code, § 11346.5(a)(2)-(6) Information

BARCLAYS OFFICIAL CALIFORNIA CODE OF REGULATIONS

TITLE 15. CRIME PREVENTION AND CORRECTIONS DIVISION 2. BOARD OF PAROLE HEARINGS

CHAPTER 2.5. ADVANCING PAROLE CONSIDERATION HEARING DATES

Gov. Code, § 11346.5(a)(2)-(6) Information

AUTHORITY AND REFERENCE

Government Code section 12838.4 vests the Board with all the powers, duties, responsibilities, obligations, liabilities, and jurisdiction of the Board of Prison Terms and Narcotic Addict Evaluation Authority, which no longer exist.

Penal Code section 3052 vests with the Board the authority to establish and enforce rules and regulations under which prisoners committed to state prisons may be allowed to go upon parole outside of prison when eligible for parole.

Penal Code section 5076.2 requires the Board promulgate, maintain, publish, and make available to the general public a compendium of its rules and regulations.

Penal Code section 3041.5 establishes the requirements and conditions concerning parole denial. It also authorizes the Board to advance an inmate’s parole consideration hearing on its own motion or based on an inmate’s written petition to the Board for an earlier hearing. Penal Code section 3043 requires the Board to provide proper notice to victims regarding an inmate’s parole consideration hearing. Penal Code section 3055 establishes the Board’s Elderly Parole Program for reviewing the parole suitability of any inmate who is 60 years of age or older and has served a minimum of 25 years of continuous incarceration on his or her current sentence. Penal Code section 4801 requires the Board to give great weight to certain factors when considering the parole suitability of an inmate who committed his or her controlling offense at the age of 25 years of age or younger. The Ninth Circuit Court of Appeals in Gilman v. Schwarzenegger (9th Cir. 2011) 638 F.3d 1101 (Gilman I), held that increased parole denial lengths under the California Victim’s Bill of Rights Act of 2008 (also known as “Marsy’s Law”) did not violate ex post facto laws on its face because it did not create a significant risk of prolonging an inmate’s incarceration. The court specifically pointed to the Board’s discretionary authority to advance hearings under Penal Code section 3041.5, subdivision (b)(4) and the inmate’s right to submit a PTA under subdivision (d)(1), and found that the availability of advanced hearings removed any possibility of harm to the inmate. (Id. at p. 1109.) The same court in February 2016 held that no ex post facto violation had occurred as applied to the plaintiff class because there was insufficient evidence

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“demonstrating that the PTA process failed to afford relief from the classwide risk of lengthened incarceration posed by [Marsy’s Law].” (Gilman v. Brown (9th Cir. 2016) 814 F.3d 1007, 1021 (Gilman II).) The California Supreme Court in In re Vicks (2013) 56 Cal.4th 274 held that increased parole denial lengths under Marsy’s Law did not violate ex post facto laws because of the Board’s discretionary authority to advance hearings under Penal Code section 3041.5 subdivision (b)(4), and an inmate’s ability to submit a written request for an advanced hearing under subdivision (d)(1). (Id. at pp. 304-305, 317.)

INFORMATIVE DIGEST / POLICY STATEMENT OVERVIEW

The Board of Parole Hearings proposes to add California Code of Regulations, title 15, chapter 2.5 regarding the Board’s processes of advancing parole consideration hearings under Penal Code section 3041.5, subdivisions (b)(4) and (d)(1). Section 3041.5 of the Penal Code previously required the Board of Parole Hearings to conduct annual parole consideration hearings, which could be deferred under certain circumstances for up to five years for murderers and up to two years for non-murderers. In 2008, the People of California passed the California Victim’s Bill of Rights Act (also known as “Marsy’s Law”), which amended Penal Code section 3041.5 and increased denial periods to a minimum of three years and a maximum of 15 years. Therefore, the shortest denial length an inmate can receive after Marsy’s Law has increased from one to three years. Following these changes, inmates potentially faced longer periods of incarceration after a denial of parole by the Board, which raised the question of whether the amendments prolonged an inmate’s incarceration in violation of ex post facto laws. However, section 3041.5, subdivisions (b)(4) and (d)(1), also gave the Board discretion to advance an inmate’s parole consideration hearing to an earlier date under its own authority or based upon a written request by an inmate (also known as a Petition to Advance or “PTA”). The courts in Gilman v. Brown (9th Cir. 2016) 814 F.3d 1007 and In re Vicks (2013) 56 Cal.4th 274 found no ex post facto violations in the increased denial lengths specifically because of the Board’s discretionary authority to advance hearings under section 3041.5, subdivisions (b)(4) and (d)(1). The Board subsequently exercised its discretion under section 3041.5, subdivision (b)(4) to conduct a structured administrative review process whereby deputy commissioners review cases to determine whether, in accordance with statutory requirements, new information or a change in circumstances established a reasonable likelihood that an inmate is suitable for parole. Recent litigation has also challenged the Board’s ability to advance hearings under the PTA and advanced review processes, based mainly on the lack of regulations formally memorializing these processes in the Board’s regulations. (Tony Rackauckas, et al. v. State of California, et al., Orange County Superior Court, Case No. 30-2018-00985610-CU-WM-CJC.) Without immediate action, the Board may be increasingly subject to similar litigation that will have a greater impact on both the constitutional rights of inmates and the rights of victims under Marsy’s Law.

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These proposed regulations will memorialize the Board’s longstanding PTA and administrative review processes to advance hearings in the appropriate circumstances so that it can continue to comply with court decisions and to protect Marsy’s Law. The proposed regulations identify the timing of a valid PTA submission, information that must be included in a PTA, and criteria for the Board when reviewing a PTA. The proposed regulations also identify when the Board will conduct an ad hoc administrative review or an administrative review of a three-year denial, and the criteria used by the Board when reviewing a case. Additionally, the proposed regulations describe the notification requirements and the decision review process for PTAs and administrative reviews.

DETERMINATION OF INCONSISTENCY/INCOMPATIBILITY WITH EXISTING STATE

REGULATIONS:

The Board has determined that the proposed regulations are not inconsistent or incompatible with existing regulations. After conducting a review for any regulations that would relate to or affect this area, the Board has concluded that these are the only regulations that concern the Board’s role and requirements in advancing a parole consideration hearing under Penal Code section 3041.5, subdivisions (b)(4) and (d)(1).

SPECIFIC AGENCY STATUTORY REQUIREMENTS

There are no other statutory requirements specific to the Board of Parole Hearings or to any specific regulation or class of regulations promulgated by the Board.

MANDATE ON LOCAL AGENCIES OR SCHOOL DISCTRICTS

The Board has determined that the proposed action imposes no mandate upon local agencies or school districts.

FISCAL IMPACT ESTIMATE

Fiscal Impact Statement: The Board has made the following initial determinations: o Cost to any local agency or school district which must be reimbursed in

accordance with Government Code sections 17500 through 17630: None o Cost or savings to any state agency: None: There are no specific costs or

savings anticipated for the fiscal year 2018-2019. These regulations codify the Board’s current processes, and the Board has already absorbed the costs with its existing budget. In fiscal year 2015-2016, the Board requested an increase in staffing. However, this was for position authority only and had no impact on funding. In fiscal years 2016-2017 and 2017-2018, the Board requested an increase in staffing, but the workload justifications were not specifically attributed to individualized workloads, such as PTAs and administrative reviews.

o Other non-discretionary cost or savings imposed on local agencies: None o Cost or savings in federal funding to the state: None

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Significant Statewide Adverse Economic Impact on Business: The Board has determined that there is no significant, statewide adverse economic impact directly affecting business, including the ability of California businesses to compete with businesses in other states. Cost Impacts on Representative Private Persons or Businesses: The Board is not aware of any cost impacts that a representative private person or business would necessarily incur in reasonable compliance with the proposed action. Assessment of Effects on Job and/or Business Creation, Elimination or Expansion: The Board has determined that adoption of this regulation will not: (1) create or eliminate jobs within California; (2) create new businesses or eliminate existing business within California; or (3) affect the expansion of businesses currently doing business within California. Because these regulations codify the Board’s current processes, the Board has already absorbed the costs and workload with its existing budget and staffing. Effect on Housing Costs: The Board has made an initial determination that the proposed action will have no significant effect on housing costs because housing costs are not affected by the Board’s processes in advancing hearings under Penal Code section 3041.5, subdivisions (b)(4) and (d)(1). Small Business Determination: The Board has determined that the proposed regulation does not have a significant adverse economic impact on small business because small businesses are not affected by the Board’s processes in advancing hearings under Penal Code section 3041.5, subdivisions (b)(4) and (d)(1).

BPH RN 18-01: 1 Cal. Code of Regs. § 50(a)(5)(A) Statement



1 Cal. Code of Regs. § 50(a)(5)(A) Statement

The Board of Parole Hearings hereby confirms that it has complied with the requirements under Government Code section 11346.1(a)(2) to provide notice of the Board’s proposed emergency regulations to add “Chapter 2.5. Advancing Parole Consideration Hearing Dates” to California Code of Regulations, Title 15, Division 2.

Documents

State of California Office of Administrative Law · 2019. 6. 18. · § 2150. General (a) Following a parole consideration hearing resulting in a denial of parole under ... A change