Cal. Code Regs. Tit. 2, § 640 - Presentation of Claim
(a)
Claims on behalf of persons erroneously convicted of felonies shall be
submitted on an "Erroneously Convicted Person (ECP) Claim Form, VCB-41-00002
(Rev. 07/2024)," hereby incorporated by reference, and provided by the Board or
obtained on the Board's website. Claimants must include the following:
(1) completed claim form with a statement of
facts signed under penalty of perjury that shows the crime did not occur or was
not committed by the claimant, and;
(2) supporting documentation as specified in
the claim form.
(b) The
claim and supporting documentation may be submitted in electronic format as a
PDF attachment to the Board's designated email address. Claims emailed after
5:00 p.m. during the week or anytime during the weekend or state holidays will
be deemed received the next regular business day. Alternatively, the claim and
supporting documentation may be sent by mail to the Board's physical address
and will be deemed received upon the date of arrival within the Board's Legal
Division. If the claim and supporting documentation are submitted in hardcopy
only, an original and one copy are required.
(c) The supporting documentation must confirm
the claimant was convicted of a felony in a California court, for which they
served a term of imprisonment in either a state prison or county jail pursuant
to subdivision (h) of Penal Code section
1170, and the
claimant is no longer incarcerated for that felony conviction. The supporting
documentation must also confirm the claim was timely submitted under Penal Code
section
4901.
(d) Once received, a hearing officer will
review the claim to determine compliance with Penal Code sections
4900 and
4901 and, upon
such a determination, deem the claim filed. A filed claim will be considered by
the Board. All claims that fail to comply with sections 4900 and 4901 may be
rejected by a hearing officer.
(e)
Upon filing, the Board will notify the claimant and the California Attorney
General and forward a complete copy of the claim to the Attorney General in
either hardcopy or electronic PDF format with directions to submit a response.
The Attorney General's response shall be submitted to both the Board and the
claimant in hardcopy form with an electronic version in PDF format.
(1) Notice of the filing will include an
initial determination by the hearing officer whether the claim falls within
subdivision (a) or (b) of Penal Code section
4900 and
whether Penal Code section
851.865 or
1485.55 apply.
If either party objects, the hearing officer will reconsider the
determination.
(2) When some but
not all convictions in a claim fall within the scope of Penal Code section
851.865,
1485.55, or
4900,
subdivision (b), those convictions may be addressed in a separate proposed
decision, and a corresponding portion of compensation approved pending a
proposed decision on any other challenged convictions, unless the claimant
waives application of the expediated timelines provided in Penal Code section
4902. If
waived, a single proposed decision disposing of all convictions in the claim
will be prepared in accordance with the statutory timeline that allows the most
time for the Attorney General to respond and the Board to decide the
claim.
(3) For claims that fall
exclusively within section 851.865 or 1485.55, the Board may consider evidence
and argument regarding injury only. For all other claims, the Board may
consider evidence and argument regarding innocence, guilt, and
injury.
(4) A court finding of
factual innocence for any individual conviction is binding upon the
Board.
(f) Injury may be
established by showing that, but for the erroneous conviction, the claimant
would not have been in custody. Injury is not established for any concurrent
period of incarceration attributable to another conviction.
(1) The hearing officer may request
additional documents or arguments from the parties as needed to calculate
compensation for the claimant's injury.
(2) The claimant bears the burden to
demonstrate injury by a preponderance of the evidence.
Notes
Note: Authority cited: Section 13920, Government Code; and Section 4906, Penal Code. Reference: Sections 851.865, 1485.55, 4900, 4901, 4902, 4903 and 4904, Penal Code.
Note: Authority cited: Section 13920, Government Code; and Section 4906, Penal Code. Reference: Sections 851.865, 1485.55, 4900, 4901, 4902, 4903 and 4904, Penal Code.
2. Amendment filed 10-4-2010; operative 11-3-2010 (Register 2010, No. 41).
3. Editorial correction of History 2 (Register 2010, No. 44).
4. Change without regulatory effect amending first paragraph filed 6-7-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 23).
5. Amendment of first paragraph filed 1-31-2012; operative 3-1-2012 (Register 2012, No. 5).
6. Amendment of section and Note filed 11-23-2022; operative
7. Amendment filed 4-29-2025; operative
State regulations are updated quarterly; we currently have two versions available. Below is a comparison between our most recent version and the prior quarterly release. More comparison features will be added as we have more versions to compare.
(a) Claims on behalf of persons erroneously convicted of felonies shall be submitted on an "Erroneously Convicted Person Claim Form," Rev. July 2022, hereby incorporated by reference, and provided by the Board or obtained on the Board's website. Claimants must include the following:
(1) completed claim form with a statement of facts signed under penalty of perjury that shows the crime did not occur or was not committed by the claimant, and;
(2) supporting documentation as specified in the claim form.
(b) The claim and supporting documentation may be submitted in electronic format as a PDF attachment to the Board's designated email address. Claims emailed after 5:00 p.m. during the week or anytime during the weekend or state holidays will be deemed received the next regular business day . Alternatively, the claim and supporting documentation may be sent by mail to the Board's physical address and will be deemed received upon the date of arrival within the Board's Legal Division. If the claim and supporting documentation are submitted in hardcopy only, an original and one copy are required.
(c) The supporting documentation must confirm the claimant was convicted of a felony in a California court, for which they served a term of imprisonment in either a state prison or county jail pursuant to subdivision (h) of Penal Code section 1170, and the claimant is no longer incarcerated for that felony conviction. The supporting documentation must also confirm the claim was timely submitted under Penal Code section 4901.
(d) Once received, a hearing officer will review the claim to determine compliance with Penal Code sections 4900 and 4901 and, upon such a determination, deem the claim filed. A filed claim will be considered by the Board. All claims that fail to comply with sections 4900 and 4901 may be rejected by a hearing officer .
(e) Upon filing, the Board will forward a complete copy of the claim to the California Attorney General in either hardcopy or electronic PDF format.
(1) Unless the automatic provision in either Penal Code section 851.865 or Penal Code section 1485.55 applies, the Board will request a response from the Attorney General. The response may offer evidence in support of or in opposition to the claim. The Attorney General's response shall be submitted to both the Board and the claimant in hardcopy form with an electronic version in PDF format.
(2) The automatic provisions in section 851.865 and section 1485.55 do not apply if the claimant lacks a court finding of factual innocence for each and every conviction underlying their incarceration. A court finding of factual innocence for any individual conviction is binding upon the Board.
(f) Injury may be established by showing that, but for the erroneous conviction, the claimant would not have been in custody.
Notes
2. Amendment filed 10-4-2010; operative 11-3-2010 (Register 2010, No. 41).
3. Editorial correction of HISTORY 2 (Register 2010, No. 44).
4. Change without regulatory effect amending first paragraph filed 6-7-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 23).
5. Amendment of first paragraph filed 1-31-2012; operative 3-1-2012 (Register 2012, No. 5).
6. Amendment of section and NOTE filed 11-23-2022; operative 1-1-2023 (Register 2022, No. 47).
Note: Authority cited: Section 13920, Government Code; and Section 4906, Penal Code. Reference: Sections 851.865, 1485.55, 4900, 4901, 4902, 4903 and 4904, Penal Code.
2. Amendment filed 10-4-2010; operative 11-3-2010 (Register 2010, No. 41).
3. Editorial correction of History 2 (Register 2010, No. 44).
4. Change without regulatory effect amending first paragraph filed 6-7-2011 pursuant to section 100, title 1, California Code of Regulations (Register 2011, No. 23).
5. Amendment of first paragraph filed 1-31-2012; operative 3-1-2012 (Register 2012, No. 5).
6. Amendment of section and Note filed 11-23-2022; operative