Section 2449.5 - Factors to Consider During a Review on the Merits(a) When conducting a review on the merits under section 2449.4, the hearing officer shall weigh the factors in subsections (b) through (h) and, based on the totality of the circumstances, determine if the inmate poses a current, unreasonable risk of violence or a current, unreasonable risk of significant criminal activity. The inmate shall be approved for release if factors aggravating the inmate's risk do not exist or if they are outweighed by factors mitigating the inmate's risk. When weighing the factors aggravating and mitigating the inmate's risk, the hearing officer shall take into account the relevance of the information based on the passage of time, the inmate's age, and the inmate's physical and cognitive limitations. The factors are set forth as general guidelines; the importance attached to any factor or combination of factors in a particular case is left to the judgment of the hearing officer.(b) The following factors concerning the inmate's current conviction(s), if present, shall be considered as aggravating the inmate's risk.(1) The inmate personally used a deadly weapon.(2) There were one or more victims who suffered physical injury or threat of physical injury.(3) There was a conviction involving large-scale criminal activity.(4) The inmate played a significant role in the crime(s) as compared to other offenders, if any.(c) The following factors concerning the inmate's current conviction(s), if present, shall be considered as mitigating the inmate's risk. (1) The inmate did not personally use a deadly weapon.(2) No victims suffered physical injury or threat of physical injury.(3) There were no convictions involving large-scale criminal activity.(4) The inmate played an insignificant role in the crime(s) as compared to other offenders, if any.(d) The following factors concerning the inmate's prior criminal conviction(s), if any, shall be considered as aggravating the inmate's risk. (1) The inmate has a violent felony conviction as defined in subdivision (c) of section 667.5 of the Penal Code in the past 15 years.(2) The inmate's prior criminal conviction(s) coupled with their current conviction(s) show a pattern of assaultive behavior or a pattern of criminal conduct that is increasing in severity.(3) The inmate was incarcerated for a misdemeanor conviction involving physical injury to a victim or a felony conviction within five years prior to the inmate's current conviction(s).(4) The inmate was previously approved for release by the board under this article and returned to state prison with a new conviction.(e) The following factors concerning the inmate's prior criminal behavior, if present, shall be considered as mitigating the inmate's risk.(1) The inmate has no prior criminal convictions.(2) The inmate has not been convicted of a violent felony as defined in subdivision (c) of section 667.5 of the Penal Code in the past 15 years.(3) The inmate's prior criminal conviction(s) coupled with their current conviction(s) shows a pattern of assaultive behavior or a pattern of criminal conduct that is decreasing in severity.(4) The inmate was free from incarceration for a misdemeanor conviction involving physical injury to a victim or a felony conviction for five years or more prior to the inmate's current conviction(s).(f) The following factors concerning the inmate's institutional behavior, work history, and rehabilitative programming as documented in the inmate's central file shall be considered as aggravating the inmate's risk. (1) The inmate has been found guilty of institutional Rules Violation Reports resulting in physical injury or threat of physical injury since their last admission to prison or has one or more recent institutional Rules Violation Reports, as classified by the department as serious, as specified in subdivision (a) of section 3315 of article 5 of subchapter 4 of chapter 1 of Division 3 of this title.(2) There is reliable information in the confidential section of the inmate's central file indicating the inmate has engaged in criminal activity since their last admission to prison.(3) The inmate has limited or no participation in available vocational, educational, or work assignments.(4) The inmate has limited or no participation in available rehabilitative or self-help programming to address the circumstances that contributed to their criminal behavior, such as substance abuse, domestic violence, gang involvement, or sexual offending.(g) The following factors concerning the inmate's institutional behavior, work history, and rehabilitative programming as documented in the inmate's central file shall be considered as mitigating the inmate's risk. (1) The inmate has not been found guilty of institutional Rules Violation Reports resulting in physical injury or threat of physical injury since their last admission to prison and does not have recent institutional Rules Violation Reports, as classified by the department as serious, as specified in subdivision (a) of section 3315 of article 5 of subchapter 4 of chapter 1 of Division 3 of this title.(2) There is no reliable information in the confidential section of the inmate's central file indicating the inmate has engaged in criminal activity since their last admission to prison.(3) The inmate has successfully participated in vocational, educational, or work assignments for a sustained period of time.(4) The inmate has successfully participated in rehabilitative or self-help programming to address the circumstances that contributed to their criminal behavior, such as substance abuse, domestic violence, gang involvement, or sexual offending, if any, for a sustained period of time.(h) Written statements submitted by the inmate, written statements concerning the inmate's commitment offense and criminal history from the prosecuting agency or agencies that received notice under section 2449.3, and written statements from any victims who received notice under section 2449.3 shall be considered.Cal. Code Regs. Tit. 15, § 2449.5
1. New section filed 4-13-2017 as an emergency; operative 4-13-2017 (Register 2017, No. 15). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 9-20-2017 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 9-19-2017 as an emergency; operative 9-21-2017 (Register 2017, No. 38). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 12-20-2017 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 12-18-2017 as an emergency; operative 12-21-2017 (Register 2017, No. 51). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 3-21-2018 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-18-2017 order, including amendment of section heading and repealer and new section, transmitted to OAL 3-20-2018 and filed 5-1-2018; amendments operative 5-1-2018 pursuant to Government Code section 11343.4(b)(3) (Register 2018, No. 18).
5. Amendment of subsection (f)(1) filed 9-10-2019 as an emergency; operative 9-10-2019 (Register 2019, No. 37). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 2-18-2020 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 9-10-2019 order, including amendments, transmitted to OAL 2-13-2020 and filed 3-26-2020; amendments effective 3-26-2020 pursuant to Government Code section 11343.4(b)(3) (Register 2020, No. 13).
7. Amendment of subsections (b)(3), (c)(3), (d)(2)-(3), (e)(3)-(4), (f)(1)-(2), (f)(4), (g)(1)-(2) and (g)(4) filed 2-28-2022; operative 2-28-2022 pursuant to Government Code section 11343.4(b)(3) (Register 2022, No. 9). Note: Authority cited: Cal. Const., art. 1, sec. 32(b). Reference: Cal. Const., art. 1, sec. 32(a).
1. New section filed 4-13-2017 as an emergency; operative 4-13-2017 (Register 2017, No. 15). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 9-20-2017 or emergency language will be repealed by operation of law on the following day.
2. New section refiled 9-19-2017 as an emergency; operative 9-21-2017 (Register 2017, No. 38). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 12-20-2017 or emergency language will be repealed by operation of law on the following day.
3. New section refiled 12-18-2017 as an emergency; operative 12-21-2017 (Register 2017, No. 51). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 3-21-2018 or emergency language will be repealed by operation of law on the following day.
4. Certificate of Compliance as to 12-18-2017 order, including amendment of section heading and repealer and new section, transmitted to OAL 3-20-2018 and filed 5-1-2018; amendments operative 5/1/2018 pursuant to Government Code section 11343.4(b)(3) (Register 2018, No. 18).
5. Amendment of subsection (f)(1) filed 9-10-2019 as an emergency; operative 9/10/2019 (Register 2019, No. 37). Pursuant to Penal Code section 5058.3, a Certificate of Compliance must be transmitted to OAL by 2-18-2020 or emergency language will be repealed by operation of law on the following day.
6. Certificate of Compliance as to 9-10-2019 order, including amendments, transmitted to OAL 2-13-2020 and filed 3-26-2020; amendments effective 3/26/2020 pursuant to Government Code section 11343.4(b)(3) (Register 2020, No. 13).
7. Amendment of subsections (b)(3), (c)(3), (d)(2)-(3), (e)(3)-(4), (f)(1)-(2), (f)(4), (g)(1)-(2) and (g)(4) filed 2-28-2022; operative 2/28/2022 pursuant to Government Code section 11343.4(b)(3) (Register 2022, No. 9).