(a) Subject to reasonable rules and regulations adopted pursuant to Section 3414, the Department of Corrections and Rehabilitation shall admit to the program any applicant whose child was born prior to the receipt of the inmate by the department, whose child was born after the receipt of the inmate by the department, or who is pregnant, if all of the following requirements are met:

(1) The applicant has a probable release or parole date with a maximum time to be served of six years, calculated after deduction of any possible good time credit.

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(2) The applicant was the primary caretaker of the infant prior to incarceration. “Primary caretaker” as used in this chapter means a parent who has consistently assumed responsibility for the housing, health, and safety of the child prior to incarceration. A parent who, in the best interests of the child, has arranged for temporary care for the child in the home of a relative or other responsible adult shall not for that reason be excluded from the category, “primary caretaker.”

(3) The applicant had not been found to be an unfit parent in any court proceeding. An inmate applicant whose child has been declared a dependent of the juvenile court pursuant to § 300 of the Welfare and Institutions Code shall be admitted to the program only after the court has found that participation in the program is in the child’s best interest and that it meets the needs of the parent and child pursuant to paragraph (3) of subdivision (e) of § 361.5 of the Welfare and Institutions Code. The fact that an inmate applicant’s child has been found to come within § 300 of the Welfare and Institutions Code shall not, in and of itself, be grounds for denying the applicant the opportunity to participate in the program.

(b) The Department of Corrections and Rehabilitation shall deny placement in the community treatment program if it determines that an inmate would pose an unreasonable risk to the public, or if any one of the following factors exist, except in unusual circumstances or if mitigating circumstances exist, including, but not limited to, the remoteness in time of the commission of the offense:

(1) The inmate has been convicted of any of the following:

(A) A sex offense listed in Section 667.6.

(B) A sex offense requiring registration pursuant to Section 290.

(C) A violent offense listed in subdivision (c) of Section 667.5, except that the Secretary of the Department of Corrections and Rehabilitation shall consider an inmate for placement in the community treatment program on a case-by-case basis if the violent offense listed in subdivision (c) of Section 667.5 was for robbery pursuant to paragraph (9) of subdivision (c) of Section 667.5 or burglary pursuant to paragraph (21) of subdivision (c) of Section 667.5.

(D) Arson as defined in Sections 450 to 455, inclusive.

(2) There is probability the inmate may abscond from the program as evidenced by any of the following:

(A) A conviction of escape, of aiding another person to escape, or of an attempt to escape from a jail or prison.

(B) The presence of an active detainer from a law enforcement agency, unless the detainer is based solely upon warrants issued for failure to appear on misdemeanor Vehicle Code violations.

(3) It is probable the inmate’s conduct in a community facility will be adverse to herself or other participants in the program, as determined by the Secretary of the Department of Corrections and Rehabilitation or as evidenced by any of the following:

(A) The inmate’s removal from a community program which resulted from violation of state laws, rules, or regulations governing Department of Corrections and Rehabilitation’s inmates.

(B) A finding of the inmate’s guilt of a serious rule violation, as defined by the Secretary of the Department of Corrections and Rehabilitation, which resulted in a credit loss on one occasion of 91 or more days or in a credit loss on more than one occasion of 31 days or more and the credit has not been restored.

(C) A current written opinion of a staff physician or psychiatrist that the inmate’s medical or psychiatric condition is likely to cause an adverse effect upon the inmate or upon other persons if the inmate is placed in the program.

(c) The Secretary of the Department of Corrections and Rehabilitation shall consider the placement of the following inmates in the community treatment program on a case-by-case basis:

(1) An inmate convicted of the unlawful sale or possession for sale, manufacture, or transportation of controlled substances, as defined in Chapter 6 (commencing with Section 11350) of Division 10 of the Health and Safety Code, if large scale for profit as defined by the department, provided that an inmate convicted pursuant to Section 11358 or 11359 of the Health and Safety Code shall be admitted to the program pursuant to subdivision (a).

(2) An inmate with a United States Immigration and Customs Enforcement hold.

(d) A charged offense that did not result in a conviction shall not be used to exclude an applicant from the program.

(e) Nothing in this section shall be interpreted to limit the discretion of the Secretary of the Department of Corrections and Rehabilitation to deny or approve placement when subdivision (b) does not apply.

(f) The Department of Corrections and Rehabilitation shall determine if the applicant meets the requirements of this section within 30 days of the parent’s application to the program. The department shall establish an appeal procedure for the applicant to appeal an adverse decision by the department.

(Amended by Stats. 2012, Ch. 41, Sec. 71. (SB 1021) Effective June 27, 2012.)