(a) Upon receipt of a response from the Attorney General, a hearing on the claim will be scheduled, taking into consideration the availability of the parties, witnesses, and hearing officer. The hearing officer shall provide at least 15 days' notice to the parties of the date and location of the hearing. The claimant may waive the hearing and elect to proceed on the written record. For claims proceeding under subdivision (b) of Penal Code section 4900, the hearing may be waived only if both the claimant and Attorney General agree to proceed on the written record.
(b) Hearings shall be open to public observation, unless otherwise provided by law.
(c) Hearings will be conducted in Sacramento unless the the hearing officer agrees to an alternative location or appearance by electronic means.
(d) Except for claims proceeding under subdivision (b) of Penal Code section 4900, the claimant has the burden of proof on all issues necessary to establish eligibility, including innocence and injury.
(1) The standard of proof is a preponderance of the evidence.
(2) The parties shall present evidence in the following order:
(A) the claimant;
(B) the Attorney General;
(C) the claimant, if they desire to offer any evidence or testimony to rebut the Attorney General's evidence or argument.
(e) For claims proceeding under subdivision (b) of Penal Code section 4900, the Attorney General has the burden of proof, by clear and convincing evidence, to prove the claimant committed the acts constituting the offense for which the claimant was convicted. The claimant continues to bear the burden to prove injury by a preponderance of the evidence.
(1) The parties shall present evidence in the following order:
(A) the Attorney General;
(B) the claimant;
(C) the Attorney General, if they desire to offer any evidence or testimony to rebut the claimant's evidence or argument.
(D) the claimant, if they desire to offer any evidence or testimony on the issue of injury.
(2) The claimant's burden to prove injury is satisfied upon a showing that each and every conviction underlying their incarceration was vacated by either a writ of habeas corpus or motion pursuant to Penal Code section 1473.6 or subdivision (a)(2) of section 1473.7, and all charges were subsequently dismissed or ended in acquittal without any new conviction for a lesser offense. If the claimant sustained a new conviction upon remand for a lesser offense, then the claimant's injury is presumptively calculated as the difference in length between the sentence served for the original conviction and the sentence imposed for the new conviction.
(f) The hearing officer may determine the amount of time allotted to present a claim for compensation. The determination made under this subsection shall be based on the following factors:
(1) complexity of legal or factual issues;
(2) necessity to evaluate credibility of witnesses for a proper determination of issues;
(3) parties' representation by legal counsel;
(4) necessity of witnesses being subject to cross examination for the proper determination of issues; and
(5) any other factor likely to affect a just and proper determination of issues.
(g) If a claimant fails to appear at the hearing or fails to proceed, the Board may base its decision on previously submitted evidence.
(h) A party that requests that all or part of a hearing be conducted by electronic means under California Code of Regulations section 617.4 may be responsible for providing, operating, and paying for all necessary equipment.
(i) The hearing will be recorded by electronic means at the expense of the Board.
(j) Any party may request the Board to arrange for the preparation of a hearing transcript. The party requesting the preparation of a hearing transcript shall bear all costs for its preparation and shall provide one copy of the transcript to the Board at no cost to the Board.
(k) The hearing officer may allow or request the parties to submit post-hearing briefs.
(1) Post-hearing briefs shall be limited to legal and factual arguments related to relevant issues under section Penal Code sections 4900 et seq. or identified by the hearing officer.
(2) The hearing officer shall inform the parties of the deadline for the submission of a post-hearing brief.
(l) In a hearing in which post-hearing briefs were not allowed or permitted, the hearing record shall be closed upon the conclusion of testimony and presentation of any oral argument by the parties, unless the hearing officer orders otherwise.
(m) In a hearing in which post-hearing briefs were allowed or permitted, the hearing record shall close at the deadline for the submission of post-hearing briefs, unless the hearing officer orders otherwise or grants an extension.
(n) No argument will be considered by the hearing officer after the close of the hearing record, except as allowed in California Code of Regulations section 619.4, unless the hearing officer orders otherwise.
(o) The hearing officer retains the discretion to reopen the hearing record for good cause.
(p) The formal hearing provision of the Administrative Procedure Act (Government Code §§ 11500-11529) do not apply.
(q) If there is any inconsistency or conflict between the provisions of California Code of Regulations Article 2.5 and this article, the provisions of this article shall apply.
(r) At the request of the claimant, the Attorney General, or other interested party, the Board will provide information about the hearing rules and procedures.
Credits
Note: Authority cited: Section 13920, Government Code; and Section 4906, Penal Code. Reference: Sections 4900, 4902, 4903 and 4904, Penal Code.
