California Code of Regulations › Title 15 - Crime Prevention and Corrections › Division 2 - Board of Parole Hearings › Chapter 6 - Parole Revocation › Article 6 - Attorney Determinations › Section 2693 - Presumption of Need

Current through Register 2024 Notice Reg. No. 28, July 12, 2024
(a)
				  Presumption. A prisoner or parolee is presumably entitled to assistance of
				  counsel if there is a colorable claim that the individual did not commit the
				  violation (see subsection (b)), or if there are substantial mitigating
				  circumstances (see subsection (c)). In either event, and particularly in close
				  cases, the strength of the colorable claim or the mitigating circumstances must
				  be weighed against the prisoner's or parolee's ability to speak for himself
				  (see Section
				  2694).
(b) Colorable Claim. A prisoner or parolee
				  who has a colorable claim that he is not guilty of the charges is presumably
				  entitled to the assistance of counsel. "Colorable" is defined as seemingly
				  valid or genuine; having an appearance of truth, right or justice; plausible.
				  The claim should have an appearance of truth; it need not be probably true, but
				  merely plausible.
Ordinarily, a mere denial of the charges without further
					 information is insufficient to raise a colorable claim.
There can be no colorable claim of innocence if the
					 prisoner or parolee has been convicted of the charge in court, or has been
					 found guilty of the charge in probation revocation or disciplinary
					 proceedings.
The strength of the colorable claim must be weighed against
					 the prisoner's or parolee's ability to speak for himself. If he has a colorable
					 claim of denial, he is presumably entitled to assistance of counsel unless he
					 is particularly capable of speaking for himself.
(c) Mitigating Circumstances. If there are
				  substantial reasons which justify or mitigate the violation and make revocation
				  or rescission inappropriate and the reasons are complex or otherwise difficult
				  to develop or present, the presumption is also raised.
(1) Substantial Reasons. Claims in
				  justification or mitigation must not only be colorable, but also substantial. A
				  substantial reason refers to one neither imaginary nor illusive but rather
				  solid, of real worth, real.
(2)
				  Makes Revocation or Rescission Inappropriate. The reasons put forward must not
				  only be colorable and substantial but must be such that they make revocation or
				  rescission inappropriate. A reason justifying or mitigating an alleged
				  violation will only affect the decision on the need for counsel if proof of its
				  existence will affect the decision whether or not to revoked or
				  rescind.
(3) Complex or Otherwise
				  Difficult to Develop or Present. The reasons offered in justification or
				  mitigation must be examined to determine their complexity. If these reasons are
				  not complex or otherwise difficult to develop or present, they do not support a
				  presumption that counsel is needed.
There may be situations where circumstances aggravate the
					 character of the violation. Disproving such aggravating circumstances must be
					 considered a process of justification or mitigation. If such aggravating
					 circumstances are complex or otherwise difficult for the prisoner or parolee to
					 meet, it should be presumed that counsel is needed.
(4) Rescission and Revocation. Mitigating
				  circumstances may be presented at the revocation or rescission hearing
				  only.