Section 2693 - Presumption of Need(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.Cal. Code Regs. Tit. 15, § 2693