Sec. 3377.2 - Criteria for Assignment of Close Custody

§ 3377.2. Criteria for Assignment of Close Custody

(a) Upon review of an inmate's case factors and need for supervision, a classification committee shall establish a Close Custody designation in accordance with the case factor criteria established in section 3377.2(b).

(1) After completing the minimum time requirement for Close Custody as established in 3377.2(b), an inmate's custody shall be considered for reduction by a classification committee during the annual classification review consistent with subsection 3376(d)(2)(A).

(A) The minimum time requirement for Close Custody will continue to be applied when an inmate is not eligible for consideration of reduction during the annual review process.

(B) The period of time the inmate was unclassified while undergoing reception center processing shall be applied toward the minimum time requirement for Close Custody as established in subsection 3377.2(b). However, no time spent at Maximum Custody shall be applied toward satisfying the Close Custody minimum time requirement.

(2) Prior to meeting the minimum time requirement for Close Custody, an inmate assigned Close Custody based solely on the current term length pursuant to subsection 3377.2(b)(1)(A) shall be reviewed for reduction of custody during each annual classification review, if the inmate is without any finding of guilt for a serious Rules Violation Report within 12 months of the date of the classification committee action.

(A) An inmate shall not be considered for a reduction in custody prior to the established minimum time requirements in subsection 3377.2(b) when the Close Custody requirement is based on escape history pursuant to subsection 3377.2(b)(2)(A), 3377.2(b)(2)(B) or 3377.2(b)(2)(C); Detainers pursuant to subsection 3377.2(b)(3); or Disciplinary History pursuant to subsections 3377.2(b)(4)(A), 3377.2(b)(4)(B), or 3377.2(b)(4)(C).

(B) An inmate, eligible for and granted a reduction in custody at the annual review prior to meeting the established minimum timeframe, may only be returned to Close Custody if a new case factor is identified which requires Close Custody or the inmate is designated a security concern as defined in section 3000 and assigned Close Custody as described within this section.

(C) An inmate assigned Close Custody based solely on the current term length pursuant to subsection 3377.2(b)(1)(A), who is not excluded from review pursuant to subsection 3377.2(a)(2)(A), shall be considered for a reduction in custody at the first annual classification committee review after Close Custody was established. The period of time spent unclassified during reception center processing shall count toward fulfilling the minimum Close Custody time requirement. The period of time during which an inmate is designated at Maximum Custody shall not count toward fulfilling the minimum Close Custody time requirement as established in subsection 3377.2(a)(2).

(D) An inmate assigned Close Custody, not excluded from review pursuant to subsection 3377.2(a)(2)(A), who is continued at Close Custody, shall be considered for a reduction in custody at each subsequent annual classification committee review prior to meeting the minimum time requirement, if the inmate is without any finding of guilt for a serious Rules Violation Report (RVR) within 12 months of the date of committee action. If an inmate is retained at Close Custody, the classification committee shall document the reasons for retention at Close Custody. When the inmate has met the minimum Close Custody time requirement, the 12 month serious disciplinary free period is no longer required.

1. An inmate with a serious RVR pending adjudication, received within 12 months of the date of committee review, shall be ineligible for a reduction from Close Custody until the disciplinary process for the RVR has been completed.

2. If the RVR is pending and the date of discovery is more than 12 months prior to the date of committee review, the classification committee shall consider a reduction from Close Custody.

(3) Departmental Review Board (DRB) approval is required to assign a Close Custody designation to an inmate who does not meet the case factor criteria established in section 3377.2(b).

(4) An ICC may temporarily assign a Close Custody designation to an inmate, for a maximum of 90 days, pending receipt of documents or verification of information needed to make a final determination.

A classification committee may also temporarily assign a Close Custody designation to an inmate who has postponed the disciplinary hearing of a Rules Violation Report (RVR) that qualifies for Close Custody designation pursuant to section 3377.2(b) pending referral for criminal prosecution until the RVR is adjudicated, not to exceed the minimum requirements for Close Custody as established in sections 3377.2(a)(1) and 3377.2(b). Upon adjudication of the RVR, the case shall be returned to a classification committee within 30 days for custody review.

(5) A period of time during which an inmate is not in the custody of the Department, as defined in section 3000, shall not count toward fulfilling the required minimum time period to be served at Close Custody as established in section 3377.2(b), with an exception granted for inmates housed at a California Out-of-state Correctional Facility (COCF).

(6) Incarceration time served in the Division of Juvenile Justice (DJJ), prior to the inmate's placement in CDCR during the inmate's current term, shall be counted toward fulfilling the required minimum time period to be served at Close Custody. Staff shall apply the provisions described in sections 3377.2(a)(1) and 3377.2(b) to determine the appropriate custody designation.

(7) An inmate who meets more than one Close Custody case factor shall be designated Close Custody for the longest required amount of time before becoming eligible for consideration of reduction from Close Custody, unless eligible for a consideration of an earlier reduction from Close Custody pursuant to subsection 3377.2(a)(2).

(8) When an inmate paroles or discharges prior to fulfilling the required minimum time period for Close Custody per section 3377.2(b) and later returns to prison, any time remaining to fulfill his Close Custody requirements from his prior term shall not be reimposed. Close Custody shall only be designated based on current case factors, and no credit shall be given for time spent at Close Custody on the prior CDCR term.

(9) When an inmate's judgment (commitment) is vacated or recalled and the inmate is subsequently re-sentenced for the same crime event, resulting in discharge of the original CDCR term and re-commitment to CDCR, the new sentence shall be evaluated for Close Custody eligibility. If the inmate's case factors associated with the new sentence require Close Custody, an ICC shall grant credit for time served at Close Custody and/or a lower custody on the discharged CDCR term. If the inmate has not completely fulfilled the required minimum time period for Close Custody, the inmate shall be required to serve the remaining Close Custody time as specified in 3377.2(b).

(10) Upon discovery of a custody designation error wherein an inmate should have been designated as Close Custody but was not, or was erroneously reduced from Close Custody, a classification committee shall grant credit for time served at the lower custody toward fulfilling the required minimum time period for Close Custody. After granting credit for time served at the lower custody, if the inmate has not completely fulfilled the required minimum time period for Close Custody, the ICC shall evaluate the totality of the inmate's case factors to determine whether to impose the remaining Close Custody obligation or allow the inmate to remain at the lowercustody designation. The factors used in the ICC's determination not to impose the remaining Close Custody obligation shall be clearly documented in the classification action. If a subsequent ICC has a difference of opinion regarding the initial waiver of Close Custody under this provision, the case shall be presented to DRB.

(11) On a case-by-case basis, an ICC may waive the Close Custody designation for an inmate who otherwise meets the criteria per section 3377.2(b) if, after an evaluation of the individual's case factors, it is determined the inmate has a permanent and severe physical limitation which diminishes the need for direct and constant supervision.

(A) If the inmate's condition improves and/or the inmate subsequently demonstrates a need for direct and constant supervision, ICC shall grant credit for time served at the lower custody toward fulfilling the required minimum time period for Close Custody. After granting credit for time served at the lower custody, if the inmate has not completely fulfilled the required minimum time period for Close Custody, the ICC shall impose the appropriate Close Custody designation and the inmate shall fulfill the remaining time at Close Custody as established in section 3377.2(b).

(B) If a subsequent ICC has a difference of opinion regarding the initial waiver of Close Custody under this provision, the case shall be presented to DRB.

(b) Close Custody Case Factor Criteria: An inmate is required to serve the minimum periods of Close Custody established within section 3377.2, unless eligible to be considered for a reduction from Close Custody as established within subsection 3377.2(a)(2).

(1) Lengthy Sentence.

(A) Upon initial classification and custody designation for the current sentence, an inmate serving a sentence of Life Without the Possibility of Parole (LWOP), or serving one or more life terms, or who has 25 years or more remaining to serve as of the date of the initial classification, shall serve at least 5 years at Close Custody.

(B) When a court action, subsequent to an inmate's initial classification and custody designation for the original sentence, increases the inmate's remaining time to serve, and the inmate's time to serve previously did not warrant Close Custody or now requires a longer minimum time period to be served at Close Custody, a classification committee shall grant credit for time served at the lower custody toward fulfilling the required minimum time period for Close Custody. After granting credit for time served at the lower custody, if the inmate has not completely fulfilled the required minimum time period for Close Custody, an ICC shall evaluate the totality of the inmate's case factors to determine whether to impose the remaining Close Custody obligation or allow the inmate to remain at the lower custody designation. The inmate's remaining time to serve shall be computed from the date of the classification committee hearing that initially considers the court action. If a subsequent ICC has a difference of opinion regarding the imposition or waiver of Close Custody under this provision, the case shall be presented to DRB.

(D) When a court action, subsequent to an inmate's initial classification and custody designation for the original sentence, decreases the inmate's remaining time to serve, and the time to serve previously warranted Close Custody but no longer does or now requires a shorter minimum time period to be served at Close Custody, a classification committee shall evaluate the inmate for custody reduction within 30 days. The inmate's remaining time to serve shall be computed from the date of the classification committee hearing that initially considers the court action.

(E) Close Custody designation and required minimum time periods for Close Custody shall not be affected by losses and restorations of credit as a result of the Rules Violation Report adjudication process, nor by changes in work group credit earning status.

(F) When a verified administrative error in the computation of the inmate's time to serve is discovered and corrected, which results in the inmate now warranting Close Custody or requiring a longer minimum time period to be served at Close Custody, a classification committee shall grant credit for time served at the lower custody toward fulfilling the required minimum time period for Close Custody. After granting credit for time served at the lower custody, if the inmate has not completely fulfilled the required minimum time period for Close Custody, an ICC shall evaluate the totality of the inmate's case factors to determine whether to impose the remaining Close Custody obligation or allow the inmate to remain at the lower custody designation. The inmate's remaining time to serve shall be computed from the date of the classification committee hearing that initially considers the corrected release date. If a subsequent ICC has a difference of opinion regarding the imposition or waiver of Close Custody under this provision, the case shall be presented to DRB.

(2) Escape History. For Close Custody purposes only, an inmate who leaves a non-secure facility without permission and without force and who fails to return is not considered to have escaped.

(A) An inmate convicted of, or whose current or prior commitment offense includes, or who is found guilty of a disciplinary report by any law enforcement agency for, Escape With Force or Attempted Escape With Force from any correctional setting or armed escort shall serve at least 10 years of Close Custody when the escape or attempted escape occurred within 10 years of the date of return to CDCR, or the initial custody classification, or the date of release from segregated housing, whichever occurs later.

(B) An inmate convicted of, or whose current or prior commitment offense includes, or who is found guilty of a disciplinary report by any law enforcement agency for, Escape Without Force or Attempted Escape Without Force from a correctional setting other than a non-secure facility as defined in section 3000, or from an armed escort shall serve at least 8 years at Close Custody when the escape or attempted escape occurred within 10 years of return to CDCR or the initial custody classification, or the date of release from segregated housing, whichever occurs later.

(C) An inmate convicted, or found guilty of a disciplinary report by any law enforcement agency, for plotting or planning to escape from a correctional setting other than a non-secure facility as defined in section 3000 or from an armed escort shall serve at least 3 years at Close Custody from the date of the conviction or administrative finding of guilt, or when the incident occurred within 10 years of the initial custody classification, or the date of release from segregated housing, whichever occurs later.

(3) Detainers. An inmate with an active law enforcement detainer for an offense with a possible penalty of death, lifetime incarceration, or a total term of 50 years or more shall serve at least 5 years at Close Custody upon placement of the detainer.

(4) Disciplinary History.

(A) An inmate convicted of, or whose commitment offense includes, or who is found guilty of a disciplinary report by any law enforcement agency for, an in-custody Murder of a Non-Inmate shall be designated Close Custody. Custody shall not be reduced from Close Custody. The inmate shall require Close Custody during any subsequent incarceration, whether serving a new term or for a parole violation.

(B) An inmate convicted of, or whose commitment offense includes, or who is found guilty of a disciplinary report by any law enforcement agency for, an in-custody Murder of an Inmate within the last 10 years shall serve at least 10 years at Close Custody.

(C) An inmate found guilty of a Division A-1 or Division A-2 serious RVR, as set forth in CCR Section 3323, shall serve at least 1 year at Close Custody. Thereafter, during each annual classification review, consistent with subsection 3376(d)(2)(A) the inmate shall be considered for a reduction in custody. A classification committee may retain the inmate at Close Custody for up to two additional years based solely upon the degree of threat the inmate's misconduct, as documented within the original Division A-1 or Division A-2 serious RVR, continues to present to the institution. To be retained at Close Custody, the inmate must be reviewed by a classification committee and the reasons for retention at Close Custody shall be articulated within the Classification Chrono. The inmate shall be removed from Close Custody at the third annual review after Close Custody was assigned unless otherwise required by these regulations.

(5) Security Concern. When the ICC determines the inmate is a Security Concern as defined in section 3000, the ICC shall assign a Close Custody designation. The ICC shall review the case and evaluate the need to continue the Security Concern designation no less than annually. Upon designation as a Security Concern, ICC shall refer the case to a Classification Staff Representative for application of the SEC administrative determinant. If an inmate has been designated as a Security Concern for two years and upon ICC review the committee determines continued Close Custody is necessary, the case shall be referred to DRB for approval.

(c) An inmate received into CDCR on or before February 19, 2017, shall be subject to the Close Custody criteria established February 20, 2017 in section 3377.2 as follows in this subsection. In addition, any new case information received on or after February 20, 2017, or RVR adjudicated on or after February 20, 2017, shall be subject to the Close Custody criteria established February 20, 2017 in section 3377.2.

(1) An inmate who is unclassified on February 20, 2017, shall be subject to the Close Custody criteria established February 20, 2017 in section 3377.2.

(2) An inmate who is Minimum Custody or Medium Custody on February 20, 2017, shall not be increased to Close Custody solely due to the implementation of the Close Custody regulations established February 20, 2017 in section 3377.2.

(3) An inmate who is Close B Custody on February 20, 2017, shall be granted credit for time served at Close A and/or Close B Custody toward fulfilling the required minimum time period for Close Custody, as established in the Close Custody criteria established February 20, 2017 in section 3377.2(b). If the Close Custody criteria established February 20, 2017 in section 3377.2(b) require the inmate to serve a greater time period of Close Custody, the inmate shall serve the time period required pursuant to the Close Custody criteria established February 20, 2017.

(4) An inmate who is Close A Custody on February 20, 2017, shall be granted credit for time served at Close A Custody toward fulfilling the required minimum time period for Close Custody, as established in the Close Custody criteria established February 20, 2017 in section 3377.2(b). If the Close Custody criteria established February 20, 2017 in section 3377.2(b) require the inmate to serve a greater time period of Close Custody, the inmate shall serve the time period required pursuant to the Close Custody criteria established February 20, 2017.

(5) An inmate who is Maximum Custody on February 20, 2017, for a reason that does not require Close Custody, shall be subject to section 3377.2(c)(1) through section 3377.2(c)(4) during the first classification committee review reducing the inmate from Maximum Custody. The inmate's custody designation prior to the Maximum Custody designation shall be considered with the applicable section [3377.2(c)(1) through 3377.2(c)(4)]. However, an inmate who is Maximum Custody on February 20, 2017, who was originally placed on Maximum Custody for a reason that does require Close Custody upon release from segregated housing shall be subject to the Close Custody criteria established February 20, 2017 in section 3377.2 during the first classification committee review reducing the inmate from Maximum Custody.

An inmate who is Maximum Custody on February 20, 2017, for a reason that requires Close Custody, shall be subject to the Close Custody criteria established February 20, 2017 in section 3377.2 during the first classification committee review reducing the inmate from Maximum Custody.

(1. New section filed 3-27-2000 as an emergency; operative 3-27-2000 (Register 2000, No. 13). Pursuant to Penal Code section 5058(e), a Certificate of Compliance must be transmitted to OAL by 9-5-2000 or emergency language will be repealed by operation of law on the following day. 2. Certificate of Compliance as to 3-27-2000 order transmitted to OAL 9-5-2000; disapproval and order of repeal and deletion repealing section by operation of Government Code 11346.1(g) filed 10-18-2000 (Register 2000, No. 42). 3. New section filed 10-19-2000 deemed an emergency pursuant to Penal Code section 5058(e); operative 10-19-2000 (Register 2000, No. 42). Pursuant to Penal Code section 5058(e), a Certificate of Compliance must be transmitted to OAL by 3-27-2001 or emergency language will be repealed by operation of law on the following day. 4. Certificate of Compliance as to 10-19-2000 order, including further amendment of section and Note, transmitted to OAL 3-27-2001 and filed 5-3-2001 (Register 2001, No. 18). 5. Amendment filed 6-26-2012 as an emergency; operative 7-1-2012 (Register 2012, No. 26). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 12-10-2012 or emergency language will be repealed by operation of law on the following day. 6. Certificate of Compliance as to 6-26-2012 order, including further amendment of subsections (a)(10), (c) and (c)(2), transmitted to OAL 12-5-2012 and filed 1-17-2013; amendments operative 1-17-2013 pursuant to Government Code section 11343.4(b)(3) (Register 2013, No. 3). 7. Editorial correction of History 6 (Register 2013, No. 7). 8. Repealer and new subsection (b)(5) filed 10-17-2014; operative 10-17-2014 pursuant to Government Code section 11343.4(b)(3) (Register 2014, No. 42). 9. Amendment filed 2-9-2017 as an emergency; operative 2-20-2017 (Register 2017, No. 6). A Certificate of Compliance must be transmitted to OAL by 7-31-2017 or emergency language will be repealed by operation of law on the following day. 10. Certificate of Compliance as to 2-9-2017 order, including nonsubstantive amendment of subsections (a)(2)(D) and (b)(4)(C), transmitted to OAL 7-12-2017 and filed 8-23-2017 (Register 2017, No. 34).)

Note: Authority cited: Section 5058, Penal Code. Reference: Sections 5054 and 5068, Penal Code; Americans With Disability Act (ADA), 42 U.S.C. § 12131, et seq.; and Pennsylvania Department of Corrections v. Yeskey (1998) 524 U.S. 206.

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