1. (a) Except as provided in subsection (b), all criminal misconduct by persons under the jurisdiction of the department or occurring on facility property shall be referred by the institution head or designee to appropriate authorities for possible investigation and prosecution when there is evidence substantiating each of the elements of the crime to be charged.

   1. (1) Referrals for investigation of incarcerated person criminal misconduct shall be accompanied by a JUS Form 8715 (Rev. 6/88) Department of Justice Disposition of Arrest and Court Action.
   2. (2) The authority to whom a case is referred shall be asked to provide the institution head or designee with written notification within ten working days advising if prosecution shall be initiated.
   3. (3) Incarcerated persons shall be notified in writing when misconduct is referred for possible prosecution.
2. (b) Notwithstanding evidence substantiating each of the elements of the crime to be charged, criminal misconduct shall not be referred to the local district attorney if the local district attorney has submitted written notification to the institution head including criteria determining that specified crimes shall not be prosecuted if the crime involved meets such criteria.

3. (c) Referral of an incarcerated person's misconduct for prosecution shall not stay the time limits for a disciplinary hearing unless the incarcerated person submits a written request to the chief disciplinary officer or signs and dates the RVR, Serious Rules Violation Report, requesting postponement of the hearing pending the outcome of the referral.

   1. (1) A postponed disciplinary hearing shall be held within 30 days after any one of the following events:

      1. (A) The incarcerated person has revoked a postponement request; an incarcerated person may revoke a postponement request any time until the prosecuting criminal authority has filed an accusatory pleading against the incarcerated person. The request shall be submitted in writing to the chief disciplinary officer or designee who shall enter a “Revoked Postponement” action in SOMS revoking the postponement request.
      2. (B) Written notice is received from the institution head or designee that the incarcerated person's misconduct will not be referred for prosecution pursuant to subsection (b).
      3. (C) Written notice is received that the prosecuting authority does not intend to prosecute.
      4. (D) Written notice is received that the criminal proceedings are terminated without an acquittal.
   2. (2) A decision to not prosecute or a court's dismissal of criminal charges without acquittal shall not prohibit or alter a departmental disciplinary hearing on the rule violation charges.
   3. (3) A court verdict of guilty or not guilty, resulting from a trial, shall be accepted as the finding of fact on the same charges in a disciplinary hearing. Should the court accept a plea agreement or negotiated settlement resulting in a conviction for a lesser offense than was originally charged, or if a court dismisses a charge prior to trial, the Department shall not be precluded from taking appropriate administrative action based on the facts contained in the original charge. If a court finds the incarcerated person not guilty after a finding of guilty in a disciplinary hearing, the rule violation charges shall be dismissed.
   4. (4) Any verdict of the court shall not prohibit or reverse the actions of a disciplinary hearing on any lesser offenses included in the criminal charge.

Note: Authority cited: Section 5058, Penal Code. Reference: Sections 2932 and 5054, Penal Code.

History

1. Amendment filed 5-13-77; effective thirtieth day thereafter (Register 77, No. 20).

2. Amendment filed 6-30-77 as an emergency; effective upon filing (Register 77, No. 27).

3. Amendment of subsection (d) filed 9-29-77 as an emergency; effective upon filing. Certificate of Compliance included (Register 77, No. 40).

4. Amendment of subsection (b) filed 8-22-79; effective thirtieth day thereafter (Register 79, No. 34).

5. Amendment filed 11-1-79 as an emergency; effective upon filing (Register 79, No. 44). A Certificate of Compliance must be filed within 120 days or emergency language will be repealed on 3-1-80.

6. Certificate of Compliance including amendment of subsection (c) filed 2-15-80 (Register 80, No. 7).

7. Amendment filed 12-1-80 as an emergency; designated effective 1-1-81 (Register 80, No. 49).

8. Order of Repeal of 12-1-80 order filed 12-5-80 by OAL pursuant to Government Code Section 11349.6 (Register 80, No. 49).

9. Amendment filed 9-24-81; effective thirtieth day thereafter (Register 81, No. 39).

10. Amendment of subsection (e)(2) and (e)(3) filed 5-4-83; designated effective 6-1-83 pursuant to Government Code Section 11346-2(d) (Register 83, No. 19).

11. Amendment filed 10-24-88; operative 11-23-88 (Register 88, No. 45).

12. Amendment filed 5-5-95; operative 6-5-95 (Register 95, No. 18).

13. Amendment of subsection (c)(3) filed 11-3-97 as an operational emergency pursuant to Penal Code section 5058(e); operative 11-3-97 (Register 97, No. 45). A Certificate of Compliance must be transmitted to OAL by 4-13-98 or emergency language will be repealed by operation of law on the following day.

14. Certificate of Compliance as to 11-3-97 order transmitted to OAL 2-3-98 and filed 3-12-98 (Register 98, No. 11).

15. Amendment of subsections (c) and (c)(1)(A) filed 6-2-2016 as an emergency; operative 6-2-2016 (Register 2016, No. 23). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 11-9-2016 or emergency language will be repealed by operation of law on the following day.

16. Certificate of Compliance as to 6-2-2016 order, including amendment of subsection (c)(1)(A), transmitted to OAL 11-7-2016 and filed 12-22-2016; amendments effective 12-22-2016 pursuant to Government Code section 11343.4(b)(3) (Register 2016, No. 52).

17. Change without regulatory effect amending section filed 7-1-2024 pursuant to section 100, title 1, California Code of Regulations (Register 2024, No. 27).