California Penal Code 3056 grants legal authority to a California county to hold or detain a parolee, usually in a local county jail or police station, while he or she awaits a hearing on his or her parole revocation allegation.
The ‘PC 3056 hold’ lasts until the parolee has his or her parole revocation hearing. If the parolee is found to have violated his or her parole after the parole revocation hearing, then he or she may be transferred back to prison, or given some other type of non-prison sentence, if any.
A parolee who is charged with violating his or her parole may be held in the county where the alleged offense occurred, or in the county where the parolee lives (PC 3056(a)).
Note: For purposes of jurisdiction, either county may prosecute a parole violation, but for substantive parole violations, the parolee will be transferred to the jurisdiction where the alleged crime occurred.
Substantive v. Technical Violations
A parole violation is either substantive or technical. A substantive parole violation occurs when the parole is alleged to have committed a new misdemeanor or felony violation. A technical parole violation occurs when the parolee does not fulfill a condition of his or her parole, but the failure to fulfill the parole condition is not otherwise a crime (i.e. failure to pay restitution, failure to notify parole officer of change of residence, failure to keep appointment with parole officer, etc.).
Example: David is paroled from a CA state prison after serving a sentence for lewd and lascivious act upon a child under fourteen (PC 288(a)). A condition of David’s parole is register as a sex offender pursuant to PC 290. David does not register as a sex offender, and he is charged with a substantive violation of his parole (PC 290.018(b)). Per PC 3056, David may be held in a local county jail while awaiting his parole revocation hearing. If the judge determines that David’s parole is to be revoked, then David will may be transferred back to a CA prison and the Department of Corrections and Rehabilitation will be in charge of David.
PC 3056 ‘Hold’ May be Outside of Jail
A parolee who is held awaiting parole by a local county jail is not necessarily held in custody (county jail). Per PC 3056, the county may choose to ‘hold’ a parolee in a manner other than actual confinement (jail), such as work furlough or home confinement (house arrest).
In fact, other than situations where the parolee is confined as part of a “flash incarceration,” the county may choose to ‘hold’ the parolee in just about any manner the county deems appropriate while the parolee is awaiting a parole revocation hearing.
Note: The “flash incarceration,” by its own language, means actual jail, but in flash incarceration situations, the defendant is not ‘awaiting’ a parole revocation hearing because the flash incarceration is the punishment itself.
180 Day Maximum Hold
According to penal code 3056, the maximum ‘hold’ period for a parolee who is alleged to have violated his or her parole is 180 days. As stated, the PC 3056 hold does not mean that the parolee / defendant is in jail while awaiting his or her parole revocation hearing.
Note: Most parole revocation hearings that do not involve psychological evaluations will commence much faster than 180 days, so a violation of PC 3056 rules will rarely occur to benefit the parolee.
Jail Credit for Hold Period
The parolee may be entitled to ‘credit for time served’ while awaiting the parole revocation hearing, depending on the circumstances of the parole violation.
Example: David is charged with misdemeanor DUI (VC 23152) while he is on parole. David has a right to a parole revocation hearing for his alleged DUI offense while he was on parole, but David also has a right to a jury trial on the underlying alleged DUI offense. The judge decides to hold David in a local county jail pursuant to PC 3056 (awaiting parole revocation hearing). If David loses his jury trial on the misdemeanor DUI offense, then David may receive credit for time served towards his prison incarceration after a parole violation and credit for time served towards his DUI conviction. However, whether the judge allows these credits to run concurrently is within the discretion of the court.
Preponderance of the Evidence Standard
Parole revocation hearing law and procedures is beyond the scope of PC 3056 law. Nevertheless, important legal procedures to parole revocation hearings include the fact that a judge, not a jury, decides whether the parolee violated his or her parole. Also, the burden of proof on the prosecutor to prove a violation of parole is the ‘preponderance of evidence,’ which means ‘more likely than not,’ the parolee violated his or parole.
Note: Keep in mind that the underlying parole violation may be entitled to a higher burden of proof, such as proof "beyond a reasonable doubt" as to a new misdemeanor of felony violation, but the parolee may be violated even if the higher burden of proof cannot be reached by the prosecutor.
Example: David is charged with the crime of domestic violence (PC 273.5) while on parole. The district attorney does not have sufficient evidence to prove beyond a reasonable doubt that PC 273.5 was violated, so the district attorney drops the domestic violence charge; nevertheless, the district attorney may move forward with the parole violation because the burden of proof is lower to prove parole violations (preponderance of evidence standard). In this situation, even though the district attorney drops the PC 273.5 allegation, David may still be held in custody under PC 3056 while he awaits his parole revocation hearing.
PC 3056 Hold Defense
For purposes of defense to a PC 3056 hold, a parolee's defense attorney may show that a jail hold is not necessary (i.e., house arrest or some less restrictive means other than jail may be appropriate before the parole revocation hearing). Bail, as opposed to a PC 3056 hold might also be more appropriate in some situations.
As to the defense of the alleged parole violation itself, this could include many types of defenses depending on the type of alleged violation (substance or technical, see above), including, but not limited to coerced confession, statute of limitations, mistake of fact, insufficient evidence, failure to Mirandize parolee / arrestee, alibi, entrapment, etc.
Note: The defense of illegal search and seizure is not usually a defense in parole violation hearings because the parolee generally agrees to waive Fourth Amendment Rights when he or she is released onto parole (Bravo Rights Waiver).
On the other hand, Miranda violations (failure to make known the rights of a criminal defendant to remain silent during questioning by parole officers) may be a valid defense as most parolee do not waive their Fifth Amendment right to remain silent despite the common condition that the parolee must ‘cooperate with a parole officer.’
PC 3056 Law (Abbrev. Selections)
Per Penal Code 3056(a): Prisoners on parole shall remain under the supervision of the department (of corrections and rehabilitation…). [PC 3056(a) Abbrev.]
A parolee awaiting a parole revocation hearing may be housed in a county jail while awaiting revocation proceedings. If a parolee is housed in a county jail, he or she shall be housed in the county in which he or she was arrested or the county in which a petition to revoke parole has been filed or, if there is no county jail in that county, in the housing facility with which that county has contracted to house jail inmates (PC 3056(a) Abbrev.).
… parolee may be housed in a county jail for a maximum of 180 days per revocation. When housed in county facilities, parolees shall be under the sole legal custody and jurisdiction of local county facilities. A parolee shall remain under the sole legal custody and jurisdiction of the local county or local correctional administrator, even if placed in an alternative custody program in lieu of incarceration, including, but not limited to, work furlough and electronic home detention (PC 3056(a) Abbrev.).
When a parolee is under the legal custody and jurisdiction of a county facility awaiting parole revocation proceedings or upon revocation, he or she shall not be under the parole supervision or jurisdiction of the department (or corrections and rehabilitation). Unless otherwise serving a period of flash incarceration, whenever a parolee who is subject to this section has been arrested, with or without a warrant or the filing of a petition for revocation with the court, the court may order the release of the parolee from custody under any terms and conditions the court deems appropriate (Parenthetical section added) (PC 3056 Abbrev).
When released from the county facility or county alternative custody program following a period of custody for revocation of parole or because no violation of parole is found, the parolee shall be returned to the parole supervision of the department for the duration of parole (PC 3056 Abbrev).
A parolee who is subject to subdivision (a), but who is under 18 years of age, may be housed in a facility of the Division of Juvenile Facilities, Department of Corrections and Rehabilitation (PC 3056(c) Abbrev.).
For more information about California penal code section 3056 “awaiting parole” hearing holds, or more information on how to defend a violation of parole allegation, contact our CA criminal defense attorneys today for a free consultation.
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