Understanding California Parole Violation / Revocation Hearings
I am an experience criminal defense attorney who can represent clients at parole violation and revocation hearings throughout California. Please contact us today for a free, confidential consultation.
When a California state prison inmate is placed on parole, it means that he/she has agreed to abide by certain terms and conditions upon his/her release from prison. When these individuals.otherwise known as “parolees”.are accused of violating any of those terms and conditions, they can get charged with a parole revocation / violation and may get sent back to state prison.
But before the parole violation can be sustained, they are entitled to a California parole revocation hearing.
In order to understand how parole revocation hearings are conducted.and, more importantly how they can be won. William Daley, a San Diego Criminal defense attorney, will address the following:
1. An Overview of California Parole Law
2. Common Parole Terms and Conditions
3. California Parole Violation / Revocation Hearings — The Process
4. How Do I Win a California Parole Violation / Revocation Hearing?
If, after reading this article, you would like additional information, we invite you to contact us at the Law Office of William Daley.
1. An Overview of California Parole Law
With little exception, California basically has a mandatory parole system. This means that when inmates complete their state prison sentences, they must be released on parole unless the parole board believes they pose too great a risk to public safety.
Being released on parole necessarily involves agreeing to abide by a “restricted” lifestyle. This is because people placed on parole (commonly referred to as “parolees”) are still under the control of the California Department of Corrections.1
When an inmate is eligible for parole depends on a number of factors, including
- the crime for which the inmate was convicted,
- the inmate’s sentence,
- whether or not the inmate earned any “good time / work time” credits (these credits can reduce a sentence by as much as 50%), and
- when the inmate was convicted.
If an inmate has been sentenced to a determinate sentence (that is, a specific sentence such as 5 years), he/she will automatically be paroled once he/she has served that sentence.
But if an inmate has been sentenced to an indeterminate sentence (that is, an indefinite sentence such as “25 years to life”, which is also referred to as a life sentence), he/she will attend a parole suitability hearing.
Parole suitability or “lifer” hearings
Parole suitability hearings are just that.hearings to determine whether an inmate is ready or suitable to be released on parole. These hearings are conducted once the inmate has served the numeric part of his/her indeterminate sentence.
Also commonly referred to as “lifer hearings”, these proceedings are governed by the California Board of Parole Hearings (BPH). During the lifer hearing, the board evaluates (1) the circumstances of the inmate’s specific offense, (2) the inmate’s behavior while in prison, and (3) how well the inmate will be able to “re-integrate” into society.
If, after being released on parole, a parolee violates any of the terms of his/her parole, state will seek to return him/her to prison.
But before a parole violation can be sustained, the parolee is entitled to a California parole revocation hearing, which is the focus of this article.
2. Common Parole Terms and Conditions
Before we can really begin a discussion about California parole revocation hearings (which are also interchangeably referred to as parole violation hearings), we need to address the types of terms and conditions that are typically imposed in connection with parole.
Examples of some of the most common parole conditions include (but are by no means limited to):
- consenting to be searched by law enforcement officers at any time with or without a California search warrant and with or without cause2,
- agreeing to live within designated countylimits3,
- agreeing to register with local authorities (this provision only applies to a very specific set of individuals: (1) those who are required to register as sex offenders pursuant to California Penal Code 290 PC , (2) those who have been convicted of California Penal Code 451 PC arson, and (3) those who were convicted of certain California drug crimes)4, and
- agreeing to conditions that relate to specific offenses. These conditions may include, for example, restrictions that prohibit
- using or being around designated weapons,
- accessing the Internet (this condition is typically only imposed on persons who have been convicted of violating California‘s child pornography laws5 and/or other similar offenses), or
- associating with known gang members.6
Again, these last three restrictions are offense-specific. These are not general parole conditions imposed on all parolees, but are only enforced if the offense warrants such a condition.
In addition to the above parole terms and conditions, parolees are prohibited from violating any other laws. The parole board can set a California parole revocation hearing.and even revoke parole.for a parolee who is accused of committing another crime even if no criminal conviction is sustained.
Example: Tom is on parole, a condition of which is that he not violate any laws. Tom gets arrested for a DUI on the 101 freeway. Tom’s San Diego DUI lawyer is able to win a “not guilty” verdict at jury trial. Nevertheless, Tom can still be charged with a California parole violation for having violated a criminal law while on parole.
3. California Parole Violation / Revocation Hearings — The Process
Parole revocation hearings are also governed by the Board of Parole Hearings, but are presided over by a single deputy commissioner.7 Unlike other board members who are appointed by the California Governor and confirmed by the California State Senate8, deputy commissioners are hired in the same way as any other civil servant. Most have prior experience in law enforcement and/or corrections.
The deputy commissioner’s job during a California parole violation hearing is to determine whether the parolee should be returned to prison and, if so, for how long. If the commissioner revokes parole, the inmate can be reincarcerated for a maximum of one year.9
If, while reincarcerated, the inmate commits subsequent acts of misconduct, that period may be extended for up to an additional twelve months.10
If parole is being revoked for committing a new crime, the maximum time the inmate can be reincarcerated is still one year. However, the D.A. may elect to file a new case against the inmate, separate and apart from the parole revocation. If convicted, the inmate can be reincarcerated for the new offense as well.
Parolee rights in a parole revocation hearing
Parolees have certain due process rights during a California parole violation hearing. “Due process” rights are guaranteed by the Fifth and Fourteenth Amendments to the United States Constitution and protect individuals against arbitrary actions and judgments by the government.11
With respect to parole violation hearings, these rights include12:
- the right to a California criminal defense attorney,
- written notice of the alleged violation,
- the disclosure of any adverse evidence,
- the right to be heard and present evidence on one’s own behalf,
- the right to confront and cross-examine witnesses (unless the hearing officer finds good cause for not allowing the confrontation),
- a neutral and detached hearing board, and
- a written decision explaining the outcome of the hearing.
With respect to number 5, the safety of the potential witness is weighed against the inmate’s right to confront that witness.
Because of this struggle, “hearsay” evidence is sometimes admissible in a probation revocation hearing. Simply put, “hearsay” is second-hand information, which is typically considered unreliable. However, it is generally admissible in both parole and California probation revocation hearings as a way allowing an alleged victim/witness to testify without being present.13
Probable cause hearings
There are actually two components to a parole revocation hearing: the preliminary or “probable cause” hearing and the final parole revocation hearing.14 The probable cause hearing is held first to determine whether there is probable cause to proceed with the final parole revocation hearing. “Probable cause” means that there is a “reasonable suspicion” that the parolee violated parole.
Both hearings are basically conducted in the same manner, in each, the parolee’s criminal defense lawyer is entitled to present evidence in his/her defense or mitigation of the accusations.15 Similarly, the state presents its evidence in support of why parole should be revoked.
The timelines of both hearings are regulated by a 2005 California parole law which states that (1) the probable cause hearing must be held within ten days after the inmate has learned of the allegations, and (2) the final revocation hearing must be held within 35 days of the parole hold.16
A “parole hold” takes place when the parolee is initially arrested and taken into custody for the alleged violation. The parole hold remains in place until either (1) the parolee is rereleased if he/she wins the probable cause hearing, or (2) until he/she is either rereleased if he/she wins the probation revocation hearing or is reincarcerated if he/she loses.
If probable cause exists to believe that the violation occurred, a final parole revocation hearing takes place.
4. How Do I Win a California Parole Violation / Revocation Hearing?
When the Board hears from the arresting officer and any victims/witnesses to the alleged violation, it may already have made up its mind as to guilt. However, the parolee, his/her California criminal defense attorney, and his/her witnesses also have the opportunity to challenge the state’s evidence. and to present their own evidence in defense of the charge(s).
In addition, the parolee’s parole agent also testifies about the parolee’s success/failure while on parole. And, depending on the facts, he/she recommends (1) that the parolee should be allowed to remain on parole, or (2) that the parolee should be returned to prison.
A skilled California criminal defense lawyer knows the most effective ways to elicit testimony from the parole officer so that his/her testimony benefits the parolee and testimony about how well the parolee was otherwise performing while on parole.
More relaxed rules
It bears repeating that parole revocation hearings aren’t equivalent to criminal trials. Some of the evidentiary procedures are more relaxed. This is particularly true of hearsay evidence (discussed above).17 This means that notes, letters, affidavits and other evidence that would normally be excluded from a criminal trial may be admissible in a California parole violation hearing.
A savvy criminal defense attorney knows how to attack the credibility of this type of evidence so that the deputy commissioner gives it little, if any weight.
The burden of proof required in a parole revocation hearing
A “burden of proof” is the level of certainty that is required before a judge or jury can find someone guilty as charged. In a California parole revocation hearing, that level is referred to as a preponderance of the evidence. In essence, “preponderance of the evidence” means that it is more likely than not that the parolee violated parole.
This is a much lesser standard than is required for a criminal trial. During a trial, the prosecutor must prove the defendant’s guilt “beyond a reasonable doubt”. That is the highest level of proof to which prosecutors are held. It essentially means that there is no logical explanation other than the fact that the defendant committed the alleged crime.
The reason why California parole violation hearings are conducted with a lesser burden of proof is because parole is viewed as an extension of incarceration. parole is not equivalent to freedom. Parolees remain under the custody of the California Department of Corrections. and are therefore not entitled to the same level of protection as someone who hasn’t yet been convicted of a crime.18
This is also why it is important to consult with a California criminal defense lawyer who has expertise in parole revocation hearings.
Because a lesser standard of guilt is involved in a parole revocation hearing, it is especially critical to have an attorney who understands how to fight these charges aggressively. The state is sure to win unless the inmate can prove that the allegations either (1) simply aren’t true, or (2) involve serious mitigating circumstances.
The good news is that there are a variety of defenses that are applicable to parole revocation hearings. defenses that can convince the deputy commissioner that you should be rereleased and returned to your parolee status. Some of the most common include:
False accusations can arise in a number of ways when it comes to parole violations:
- from a past victim who is angry that you have been released from prison,
- from a cop on a power trip who has a grudge against parolees, or
- from an “ex” lover who simply doesn’t want you around. the possibilities are endless.
If you can convince the deputy commissioner that the facts don’t support the charge(s), he/she will likely return you to your parole status.
It wasn’t me
Just like there are endless possibilities for why someone might falsely accuse you of violating parole, there are endless possibilities for why you could mistakenly be accused of violating parole. For example,
- maybe you fit the description of another suspect who committed a nearby crime (mistaken identification is responsible for many wrongful arrests and prosecutions),
- maybe you were with others who were engaged in unlawful activity but you, yourself, were not, or
- maybe you were framed by an angry, jealous, or vengeful individual, in an attempt to hide his/her own criminal acts.
Your due process rights were violated
Even though parole revocation hearings are less formal than criminal trials, you are still entitled to benefit from certain rights. To recap, some of these rights include (but are not limited to):
- receiving notice of the allegations against you,
- having your hearing within a specific time frame, and
- disclosure of any evidence that weighs in your favor.
If these. or any other rights are violated. they are supposed to override any wrongdoing on your part. This is just one reason why it is so important to consult with a California criminal defense attorney who truly understands the complexities involved with parole revocation hearings. and knows how to investigate all of the facts/circumstances surrounding your case.
Presenting mitigating circumstances at California Parole Violation hearings
The fact is that sometimes the evidence simply points to your guilt. But even then, there is still hope. If you can convince the board that there were mitigating circumstances (“mitigating circumstances” are circumstances that attempt to justify or explain your actions), you may be able to retain your parole status.
If, for example, you can prove that you still suffer from a substance abuse addiction, you or your criminal defense attorney can try to persuade the commissioner to permit you to enter a rehabilitation facility instead of prison.
Perhaps you committed a minor violation. such as driving without a license or a California petty theft crime to get essential goods for your family. If you can demonstrate the fact that (1) it was only a minor violation, and that (2) you are not a danger to society, the board may give you another chance to remain on parole.
Contact Us For help…
For more information about parole revocation hearings, or any matter relating to California parole law, please don’t hesitate to contact us.
Parole Violations and Revocations in California: Analysis and Suggestions for Action –
An in-depth study of California’s parole system.
1In re Hudson (2006) 143 Cal.App.4th 1, 9. (“We first observe that “[i]n California, parolee status carries distinct disadvantages when compared to the situation of the law-abiding citizen. Even when released from actual confinement, a parolee is still constructively a prisoner subject to correctional authorities. [Citations.] The United States Supreme Court has characterized parole as ‘an established variation on imprisonment’ and a parolee as possessing ‘not … the absolute liberty to which every citizen is entitled, but only … the conditional liberty properly dependent on observance of special parole restrictions.’”)
2California Penal Code 3067 PC — Search and Seizure issues for parolees. (“(a) Any inmate who is eligible for release on parole pursuant to this chapter shall agree in writing to be subject to search or seizure by a parole officer or other peace officer at any time of the day or night, with or without a [California] search warrant and with or without cause. (b) Any inmate who does not comply with the provision of subdivision (a) shall lose worktime credit earned pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 on a day-for-day basis and shall not be released until he or she either complies with the provision of subdivision (a) or has no remaining worktime credit, whichever occurs earlier. (c) This section shall only apply to an inmate who is eligible for release on parole for an offense committed on or after January 1, 1997. (d) It is not the intent of the Legislature to authorize law enforcement officers to conduct searches for the sole purpose of harassment. (e) This section does not affect the power of the Director of Corrections to prescribe and amend rules and regulations pursuant to Section 5058.”)
3California Penal Code 3003 PC — Parole; geographic placement. This penal code section lists a variety of circumstances and offenses that have very specific requirements of where a parolee may reside. Typically, a parolee must be returned to the county in which he/she resided prior to incarceration, however public safety will trump that rule. This means that if, for example, the parolee was convicted of a violent crime.and the victim resides less than 35 miles from the offender’s prior residence.the parolee may be required to move.
4California Penal Code 290 PC — Sex offender registration act. PC 290 sets forth the requirements that someone who must register as a California sex offender must follow.
See also California Penal Code 457.1 — Arson and attempted arson; persons convicted of arson; registration while residing California. This Penal Code section specifically addresses the variety of conditions that are imposed upon someone who has been convicted of Penal Code 451 arson.
See also California Health and Safety Code 11590 — Persons required to register. This code sets forth the registration requirements for parolees who were convicted of specific California drug crimes.
5California child pornography laws under California Penal Code 311 and its related sections prohibit: distributing child pornography, employing minors to participate in or help produce child porn, possessing child porn, advertising child pornography, and developing, duplicating, printing, or exchanging child porn. For purposes of California child pornography laws, a “child” is anyone under 18, unless he/she is an emancipated minor or involved in lawful conduct between spouses when either or both of the individuals are under 18.
6See In re Hudson at 9, endnote 1, above. (“”A condition of [parole] will not be held invalid unless it ‘(1) has no relationship to the crime of which the offender was convicted, (2) relates to conduct which is not in itself criminal, and (3) requires or forbids conduct which is not reasonably related to future criminality….’ [Citation.] Conversely, a condition of [parole] which requires or forbids conduct which is not itself criminal is valid if that conduct is reasonably related to the crime of which the defendant was convicted or to future criminality.” ( People v. Lent (1975) 15 Cal.3d 481, 486, fn. omitted, 124 Cal.Rptr. 905, 541 P.2d 545.) FN5 FN5. The Lent case concerned conditions of probation. As the court in Stevens noted, “[t]he criteria for assessing the constitutionality of conditions of probation also applies to conditions of parole.” ( Stevens, supra, 119 Cal.App.4th 1228, 1233, 15 Cal.Rptr.3d 168.)”)
7California Penal Code 5077 — Good-time credit and parole matters; reviewal and modification. (“The Board of Prison Terms shall review the prisoners’ requests for reconsideration of denial of good-time credit, and setting of parole length or conditions, and shall have the authority to modify the previously made decisions of the Department of Corrections as to these matters. The revocation of parole [conducted at a parole revocation hearing] shall be determined by the Board of Prison Terms.”)
See also Deputy Commissioners (summary) – California Department of Corrections website.
8California Penal Code 5075 — Board of Parole Hearings. (“(b) The Governor shall appoint 17 commissioners, subject to Senate confirmation, pursuant to this section. Of those 17 commissioners, 12 shall be appointed and trained to hear only adult matters, and five shall be appointed and trained to hear only juvenile matters.”)
9California Penal Code 3057 — Confinement of revocation of parole. (“(a) Confinement pursuant to a revocation of parole [determined in a parole revocation hearing] in the absence of a new conviction and commitment to prison under other provisions of law, shall not exceed 12 months, except as provided in subdivision (c).”)
10See same. (“(c) Notwithstanding the limitations in subdivision (a) and in Section 3060.5 upon confinement pursuant to a parole revocation [hearing], the parole authority may extend the confinement pursuant to parole revocation for a maximum of an additional 12 months for subsequent acts of misconduct committed by the parolee while confined pursuant to that parole revocation. Upon a finding of good cause to believe that a parolee has committed a subsequent act of misconduct and utilizing procedures governing parole revocation proceedings, the parole authority may extend the period of confinement pursuant to parole revocation as follows: (1) not more than 180 days for an act punishable as a felony, whether or not prosecution is undertaken, (2) not more than 90 days for an act punishable as a misdemeanor, whether or not prosecution is undertaken, and (3) not more than 30 days for an act defined as a serious disciplinary offense pursuant to subdivision (a) of Section 2932.”)
11The Fifth Amendment to the U.S. Constitution states, (“No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.”
The Fourteenth Amendment states that (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
14Morrissey v. Brewer (1972) 408 U.S. 471, 488. (“[With respect to a parolee's rights at a parole revocation hearing] They include (a) written notice of the claimed violations of parole; (b) disclosure to the parolee of evidence against him; (c) opportunity to be heard in person and to present witnesses and documentary evidence; (d) the right to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation); (e) a ‘neutral and detached’ hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (f) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole.”)
See also Valdivia v. Schwarzenegger, permanent injunction. Valdivia is a key case in establishing and protecting the rights of parolees. It stems from a 2003 court-approved agreement between the Department of Corrections and the Board of Parole Hearings that resolved a ten-year long class action suit brought by California parolees (1) at large, (2) in prison awaiting parole, and (3) in prison having been found in violation of parole against the state. (Valdivia v. Davis (2002), 603 F. Supp.2d 1068). The Valdivia laws established in the injunction went into effect in 2005 and included (but are not limited to): (1) All parolees will get attorneys for Return to Custody Assessments (screening offers) and parole revocation hearings. (2) Within 48 hours of the parole hold, the parole agent and unit supervisor will confer to determine if probable cause exists to continue the parole hold. (3) Parolees will receive notice of the charges against them within 3 business days of the parole hold. (4) Parolees in some special circumstances will receive expedited probable cause hearings. (5) Final revocation hearings must be held within 35 calendar days of the parole hold. (6) Parolees held on revocation charges will receive probable-cause hearings within 10 business days after notice of the charges. (7) Parolees’ attorney will have better access to witnesses and evidence.
13See Morrissey at 488, endnote 12, above. (“We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”)
14See same at 485. (“In analyzing what is due, we see two important stages in the typical process of parole revocation.The first stage occurs when the parolee is arrested and detained, usually at the direction of his parole officer. The second occurs when parole is formally revoked.”)
See also Gagnon v. Scarpelli (1973) 411 U.S. 778, 781. (“Even though the revocation of parole is not a part of the criminal prosecution, we held that the loss of liberty entailed is a serious deprivation requiring that the parolee be accorded due process. Specifically, we held that a parolee is entitled to two hearings, one a preliminary hearing at the time of his arrest and detention to determine whether there is probable cause to believe that he has committed a violation of his parole, and the other a somewhat more comprehensive hearing prior to the making of the final revocation decision.”)
15 See Morrissey at 486, endnote 12, above. (“With respect to the preliminary hearing before this officer, the parolee should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged. At the hearing the parolee may appear and speak in his own behalf; he may bring letters, documents, or individuals who can give relevant information to the hearing officer. On request of the parolee, person who has given adverse information on which parole revocation is to be based is to be made available for questioning in his presence. However, if the hearing officer determines that an informant would be subjected to risk of harm if his identity were disclosed, he need not be subjected to confrontation and cross-examination.”)
16See Valdivia, endnote 12, above.
See also In re Marquez (2007) 153 Cal.App.4th 1, 4. (“According to time lines agreed to by the State of California in Valdivia v. Davis (E.D.Cal.2002) 206 F.Supp.2d 1068 and set out in Valdivia v. Schwarzenegger (Mar. 9, 2004, Civ. S-94-0671 LKK/GGH) ( Valdivia ), of which we took judicial notice, a parolee is supposed to receive a probable cause hearing within 10 business days of the day of receipt of notification of the parole violation charges, and a revocation of parole hearing within 35 calendar days of the parole hold date.”)
17See Morrissey at 489, endnote 12, above. (“We emphasize there is no thought to equate this second stage of parole revocation to a criminal prosecution in any sense. It is a narrow inquiry; the process should be flexible enough to consider evidence including letters, affidavits, and other material that would not be admissible in an adversary criminal trial.”)
18People v. Rodriguez (1990) 51 Cal.3d 437, 441. (“In Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484, 92 S.Ct. 2593], the court pointed out that as revocation of parole is not part of a criminal prosecution, “the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations.” ( Id. at p. 480 [33 L.Ed.2d at p. 494].)”)