Chapter 6 – Adult Classification

Inmates received by the Department may, under certain circumstances, be recalled by the sentencing court. A recall may also be initiated by the Director or the BPT.

This section establishes standard procedures for the processing and evaluation of those inmate cases whose sentences and commitments may be reconsidered by the court under the provisions of PCPenal Code 1170(d).

PCPenal Code 1170(d) permits the sentencing court to recall a previously ordered sentence and commitment within 120 days of the date of sentencing and re-sentence the inmate. The court may consider a recall of sentence and commitment upon the recommendation of the Director or the BPT at any time during an inmate’s incarceration.

The sentencing court has absolute discretion in recalling a sentence and commitment within 120 days of sentencing. The court is not required to request or accept the Department’s diagnostic study and/or recommendation, however, departmental staff shall provide the sentencing judge a study and recommendation when requested.

Departmental staff shall recommend to the Director and request that recall consideration be considered for those inmates who, in the interest of justice, could be properly managed outside the Department and where alternate placement had not been explored by the sentencing court. Examples include but are not limited to:

• Naive, youthful offenders who could be sentenced to the CYASee Division of Juvenile Justice (DJJ).

• Narcotic addicts who meet the criteria for commitment to the civil addict program.

• Inmates whose sentence would be better served in another jurisdiction.

Departmental staff’s recommendations shall focus on the proper placement rather than the severity or length of sentence.

When an institutional recommendation for recall is determined to be inappropriate after review at the Director’s level, the Deputy Director, Institutions Division shall notify the Warden of the referring institution of this decision.

The BPT, under PCPenal Code 1170(f), shall review all cases for sentence disparity and recommend recall, if appropriate, within the first 12 months of commitment. As a matter of policy, the BPT will assume responsibility under PCPenal Code 1170(d), for recommending recall of sentences that subsequently become disparate due to non-retroactive legislative changes that reduce or eliminate the criminal penalty for an offense.

The Director may recommend to the court a recall of sentence prior to the BPT’s disparate sentence review when:

• The inmate is found to be suffering from a critical medical condition which is not likely to improve.

• The inmate has so changed as a person through their own efforts since being sentenced, that they would be a positive asset to the community.

• Based on changes in the inmate’s situation or significant new information that was not considered by the court in pronouncing sentence.

• The commitment is definitely not typical of similarly situated offenders and presents an undue hardship on the inmate.

After the BPT’s disparate sentence review, the Director may recommend a recall to the court if conditions have changed to the extent that the inmate’s continued incarceration is not in the interest of justice. Diagnostic studies and/or recommendations shall take into consideration the results of the BPT’s disparate sentence review.

Requests for PCPenal Code 1170(d) studies or consideration for recall by private citizens, defense attorneys or family members including registered domestic partners shall not be initiated by departmental staff.

All such requests shall be responded to promptly with a letter stating the Director’s policy and directing the requesting party to the sentencing court.

The court may recall a sentence within the first 120 days of commitment with or without obtaining a diagnostic study and recommendation from the Department. When an evaluation is requested, it shall assess the inmate’s potential for completing probation or other alternate sentencing, and the threat posed to the community if the inmate fails to realize that potential.

When the court orders a post sentence diagnostic study [PCPenal Code 1170(d)], and a pre-sentence diagnostic study (PCPenal Code 1203.03) has previously been prepared, a reevaluation of the prior study’s recommendation is required.

Staff assigned to prepare the PCPenal Code 1170(d) report shall reevaluate all available information and recommend accordingly, rather than repeat or paraphrase the pre-sentence diagnostic study. The PCPenal Code 1170(d) report shall indicate that a pre-sentence diagnostic report was prepared.

A current psychological evaluation shall be prepared if indicated. If any recommendations are in conflict, the method for resolving the conflict shall be addressed.

When the court requests a post-sentence diagnostic study within 120 days of sentencing, the Warden or reception center administrator shall communicate directly with the court.

Requests received by the institution after 120 days of sentencing shall be forwarded to the Chief, Classification Services and processed through headquarters as a Director initiated recall. The court cannot recall a sentence after 120 days of sentencing without the recommendation of the Director or the BPT.

Late Return of Report

• When a post-sentence diagnostic study is requested by the court to be prepared within the 120-day time limit and is late due to departmental error, the institution shall notify the court directly. A letter signed by the Warden attached to the recommendations shall indicate the reasons for the delay and because of the delay, the court may take whatever action it deems appropriate.

When an inmate meets the Director’s criteria for recall to court, staff shall prepare a diagnostic study and recommendation. This report and a current psychological evaluation (if indicated) shall be reviewed by the AWAssociate Warden and Warden. If any recommendations are in conflict, the method by which the conflict was resolved shall be described in the transmittal letter.

The completed report and institutional approval shall be attached to a transmittal letter and forwarded to the Chief of Classification Services.

Inmates shall not be transferred-except in emergencies-until the PCPenal Code 1170(d) report has been completed.

Identifying Information: This section shall begin with the following two paragraphs:

• “This is a diagnostic study and recommendation under the provisions of PCPenal Code 1170(d) in the case of (Inmate’s name), (County’s Court Number), (CDC Number).”

• “This study evaluates the defendant’s potential for success under sentence alternatives to state prison and the threat posed to the community should the defendant not fulfill that potential. The clinical case study method does not lend itself to an adequate consideration of other issues involved in uniform sentencing.”

• The third paragraph of this section shall indicate the age of the inmate, date they were received by the Department, name of the committing court, county of commitment and on what charge the inmate was convicted.

Offense:

• This section shall include a short summary of the inmate’s instant offense and criminal history.

Institutional Adjustment:

• Include job or assignment performance, behavior, relationships with staff and peers.

Recommendations

• Recommendations: This section shall address only the specific finding of department staff:

  • Evaluation indicates that this case should be considered for disposition as authorized by PCPenal Code 1170(d).

• – or –

  • Evaluation indicates that this case should not be considered for disposition as authorized by PCPenal Code 1170(d).

• All recommendations for probation shall contain the qualifying statement; “to the extent probation is allowed by law.” When appropriate, conditions of probation suggested by the case evaluation may be listed in numerical order. This must be realistic in relation to the services available in the county concerned.

Reasons for Recommendations:

• List in order of priority the factors contributing to the particular recommendation. These may include the lack of criminal record or extensive criminal record, situational nature of offense, clinical manifestation of assaultive or hostile behavior, family or other resources awaiting the inmate in the community.

• It shall also include the findings of the disparate sentence review, if completed, and, if a Director initiated recall, shall focus on the new information that justifies recall.

Release Plans:

• This section shall include the inmate’s living arrangements, means of support and care as appropriate.

The study shall be dated and signed by the reception center’s AWAssociate Warden if it is completed during the inmate’s reception processing. If the study is completed at an institution other than a reception center, the Warden or delegated AWAssociate Warden shall sign the report. The Warden shall sign all Director initiated recall recommendations, including those that are a result of a request by the court after the 120-day period.

The Chief, Classification Services, shall review and evaluate all transmitted material, and shall prepare the Director’s transmittal letter to the sentencing court. The Chief, Classification Services, shall notify the BPT of all cases where the Director recommends a recall of commitment.

When a court requests a PCPenal Code 1170(d) on an inmate also committed by another court, copies of the study shall be sent to all committing courts. The transmittal letter to the court ordering the recall shall clearly indicate in the first paragraph the additional commitments, identified by case number. It shall also indicate that copies are being sent to the other committing court(s). Similarly, the transmittal letter to the other committing court(s) shall explain that a PCPenal Code 1170(d) report was completed regarding a commitment by a different court.

Staff who prepare the study shall inform the inmate of their recommendations. When correspondence and reports do not contain confidential information, copies shall be given to the inmate. If such reports do contain confidential information, staff shall share the general content of such reports with the inmate, omitting only the confidential information. Confidential correspondence and reports shall be so labeled, placed in the confidential folder and cross referenced to a CDC Form 128-B, General Chrono; explaining the need for confidentiality.

To provide information for subsequent evaluation of this program, PCPenal Code 1170(d) transactions shall be recorded in OBISOffender Based Information System Daily Report of Arrivals and Departures and on the CDC Form 112, Summary of Sentence Data, as follows:

• Requests for PCPenal Code 1170(d) studies from a judge or the Director. Date 1170(d) PCPenal Code report requested by ____________________ County (or) by the Director.

Transmittal of PCPenal Code 1170(d) studies to the court for the Director: “Date, PCPenal Code 1170(d) studies submitted to ______________________County (or) to the Director recommending no change in commitment (or) recall of commitment recommended (and/or) other recommended action.”

Copies of all additional material transmitted to the court shall be inserted in the case summary section of the C-File. Copies of all material sent to the Director on staff-initiated cases shall also be inserted in the same location.

The above material shall be expedited to the court by first class mail.

The Deputy Director, Institutions, or designee shall ensure that the content of this section is current and accurate.

PCPenal Code §§ 1170(d), 1170(f) and 1203.03.