BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 674
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          Date of Hearing:   April 21, 2009
          Counsel:                Nicole J. Hanson


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Jose Solorio, Chair

                  AB 674 (Salas) - As Introduced:  February 25, 2009
           
           
           SUMMARY  :   Establishes a deferred entry of judgment program and  
          a pre-conviction drug diversion program for veterans who suffer  
          from post-traumatic stress disorder (PTSD) or traumatic brain  
          injury.  Specifically,  this bill  :  

          1)Excepts as otherwise required by the Substance Abuse and Crime  
            Prevention Act of 2000, this chapter shall apply whenever a  
            case is before any court upon an accusatory pleading charging  
            the defendant with a misdemeanor or felony and the defendant  
            is a veteran, of the Military and Veterans Code, who has been  
            diagnosed with service connected PTSD or traumatic brain  
            injury as a result of his or her military service or who has  
            undiagnosed symptoms of post-traumatic stress disorder or  
            traumatic brain injury as a result of stressors that he or she  
            was exposed to in a combat situation in the military service  
            as proven by his or her service record that includes the  
            veteran's service form DD214 (Certificate of Release or  
            Discharge from Active Duty) with Combat Infantry Badge, Combat  
            Action Ribbon, Purple Heart, Bronze Star, or any decoration  
            with a "V" for valor, Silver Star, Distinguished Service  
            Medal, Navy Cross, Distinguished Flying Cross, or  
            Congressional Medal of Honor and all of the following apply:

             a)   The offense charged did not involve a crime of violence  
               or threatened violence.

             b)   The crime charged is not a serious felony or violent  
               felony.

             c)   The defendant's record does not indicate that probation  
               or parole has ever been revoked without thereafter being  
               completed.

             d)   The defendant's record does not indicate that he or she  
               has successfully completed or been terminated from  








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               diversion or deferred entry of judgment pursuant to this  
               chapter within five years prior to the alleged commission  
               of the charged offense.

             e)   The defendant has no prior felony conviction within five  
               years prior to the alleged commission of the charged  
               offense.

          2)Requires the prosecuting attorney to review his or her file to  
            determine whether or not the aforementioned apply to the  
            defendant. Upon the agreement of the prosecuting attorney, law  
            enforcement, the public defender, and the presiding judge of  
            the criminal division of the superior court or a judge  
            designated by the presiding judge, this procedure shall be  
            completed as soon as possible after the initial filing of the  
            charges. If the defendant is found eligible, the prosecuting  
            attorney shall file with the court a declaration in writing or  
            state for the record the grounds upon which the determination  
            is based, and shall make this information available to the  
            defendant and his or her attorney. This procedure is intended  
            to allow the court to set the hearing for deferred entry of  
            judgment at the arraignment. If the defendant is found  
            ineligible for deferred entry of judgment, the prosecuting  
            attorney shall file with the court a declaration in writing or  
            state for the record the grounds upon which the determination  
            is based, and shall make this information available to the  
            defendant and his or her attorney. The sole remedy of a  
            defendant who is found ineligible for deferred entry of  
            judgment is a post-conviction appeal.

          3)Asks that all referrals for deferred entry of judgment granted  
            by the court pursuant to this chapter to be made only to  
            programs that have been certified by the county veterans  
            service officer, or other appropriate officer designated by  
            the county pursuant to this section, or to programs that  
            provide services at no cost to the participant and have been  
            deemed by the court and the county to be credible and  
            effective. The defendant may request to be referred to a  
            program in any county, as long as that program meets the  
            criteria set forth in this subdivision.

          4)States that any defendant who is participating in a program  
            referred to in this section may be required to undergo  
            analysis of his or her urine for the purpose of testing for  
            the presence of any drug or alcohol as part of the program.  








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            However, urine analysis results shall not be admissible as a  
            basis for any new criminal prosecution or proceeding.

          5)Provides that if the prosecuting attorney determines that this  
            chapter may be applicable to the defendant, he or she shall  
            advise the defendant and his or her attorney in writing of  
            that determination. This notification shall include the  
            following:

             a)   A full description of the procedures for deferred entry  
               of judgment.

             b)   A general explanation of the roles and authorities of  
               the probation department, the prosecuting attorney, the  
               program, and the court in the process.

             c)   A clear statement that in lieu of trial, the court may  
               grant deferred entry of judgment with respect to any crime  
               specified that is charged, provided that the defendant  
               pleads guilty to each charge and waives time for the  
               pronouncement of judgment, and that upon the defendant's  
               successful completion of a program, the positive  
               recommendation of the program authority and the motion of  
               the prosecuting attorney, the court, or the probation  
               department, but no sooner than 18 months and no later than  
               three years from the date of the defendant's referral to  
               the program, the court shall dismiss the charge or charges  
               against the defendant.

             d)   A clear statement that upon any failure of treatment or  
               condition under the program, or any circumstance, the  
               prosecuting attorney, the probation department, or the  
               court on its own may make a motion to the court for entry  
               of judgment and the court shall render a finding of guilt  
               to the charge or charges pled, enter judgment, and schedule  
               a sentencing hearing as otherwise provided in this chapter.

             e)   An explanation of criminal record retention and  
               disposition resulting from participation in the deferred  
               entry of judgment program and the defendant's rights  
               relative to answering questions about his or her arrest and  
               deferred entry of judgment following successful completion  
               of the program.

          6)Provides that if the defendant consents and waives his or her  








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            right to a speedy trial or a speedy preliminary hearing, the  
            court may refer the case to the probation department or the  
            court may summarily grant deferred entry of judgment if the  
            defendant pleads guilty to the charge or charges and waives  
            time for the pronouncement of judgment. When directed by the  
            court, the probation department shall make an investigation  
            and take into consideration the defendant's age, employment  
            and service records, educational background, community and  
            family ties, prior controlled substance use, prior use of  
            alcoholic beverages, homelessness, treatment history, if any,  
            demonstrable motivation, and other mitigating factors in  
            determining whether the defendant is a person who would be  
            benefited by education, treatment, or rehabilitation. The  
            probation department shall also determine which programs the  
            defendant would benefit from and which programs would accept  
            the defendant. The probation department shall report its  
            findings and recommendations to the court. The court shall  
            make the final determination regarding education, treatment,  
            or rehabilitation for the defendant. If the court determines  
            that it is appropriate, the court shall grant deferred entry  
            of judgment if the defendant pleads guilty to the charge or  
            charges and waives time for the pronouncement of judgment.

          7)Prohibits statements, or any information procured therefrom,  
            made by the defendant to any probation officer, drug or  
            treatment program worker, county veterans service officer, or  
            other assigned county employee that is made during the course  
            of any investigation conducted by the probation department or  
            treatment program, and prior to the reporting of the probation  
            department's findings and recommendations to the court, shall  
            be admissible in any action or proceeding brought subsequent  
            to the investigation. No statement, or any information  
            procured therefrom, with respect to the specific offense with  
            which the defendant is charged, that is made to any probation  
            officer, drug or treatment program worker, county veterans  
            service officer, or other assigned county employee subsequent  
            to the granting of deferred entry of judgment, shall be  
            admissible in any action or proceeding, including a sentencing  
            hearing.

          8)Declares that a defendant's plea of guilty pursuant to this  
            chapter shall not constitute a conviction for any purpose  
            unless a judgment of guilty is entered pursuant to existing  
            law.









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          9)Requires the court to hold a hearing and, after consideration  
            of any information relevant to its decision, shall determine  
            if the defendant consents to further proceedings under this  
            chapter and if the defendant should be granted deferred entry  
            of judgment. If the court does not deem the defendant a person  
            who would be benefited by deferred entry of judgment, or if  
            the defendant does not consent to participate, the proceedings  
            shall continue as in any other case.

          10)Provides that at the time that deferred entry of judgment is  
            granted, any bail bond or undertaking, or deposit in lieu  
            thereof, on file by or on behalf of the defendant shall be  
            exonerated, and the court shall enter an order so directing.

          11)Makes the period during which deferred entry of judgment is  
            granted shall be for no less than 18 months and no longer than  
            three years. Progress reports shall be filed by the probation  
            department with the court as directed by the court.

          12)Provides that if the prosecuting attorney, the court, or the  
            probation department that the defendant is performing  
            unsatisfactorily in the assigned program, is not benefiting  
            from education, treatment, or rehabilitation, is convicted of  
            a misdemeanor that reflects the defendant's propensity for  
            violence, is convicted of a felony, or has engaged in criminal  
            conduct rendering him or her unsuitable for deferred entry of  
            judgment, the prosecuting attorney, the court on its own, or  
            the probation department may make a motion for entry of  
            judgment. After notice to the defendant, the court shall hold  
            a hearing to determine whether judgment should be entered.

          13)States that if the court finds that the defendant is not  
            performing satisfactorily in the assigned program, is not  
            benefiting from education, treatment, or rehabilitation, has  
            been convicted of a crime as indicated above, or has engaged  
            in criminal conduct rendering him or her unsuitable for  
            deferred entry of judgment, the court shall render a finding  
            of guilt to the charge or charges pled, enter judgment, and  
            schedule a sentencing hearing as otherwise provided in this  
            chapter.

          14)Affirms that if the defendant has performed satisfactorily  
            during the period in which deferred entry of judgment was  
            granted, at the end of that period, the criminal charge or  
            charges shall be dismissed. Prior to dismissing the charge or  








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            charges or rendering a finding of guilt and entering judgment,  
            the court shall consider the defendant's ability to pay and  
            whether the defendant has paid a diversion restitution fee, if  
            ordered, and has met his or her financial obligation to the  
            program, if any. As provided under existing law, the defendant  
            shall reimburse the probation department for the reasonable  
            cost of any program investigation or progress report filed  
            with the court as directed.

          15)Requires records filed with the Department of Justice shall  
            indicate the disposition in those cases deferred pursuant to  
            this chapter. Upon successful completion of a deferred entry  
            of judgment program, the arrest upon which the judgment was  
            deferred shall be deemed to have never occurred. The defendant  
            may indicate in response to any question concerning his or her  
            prior criminal record that he or she was not arrested or  
            granted deferred entry of judgment for the offense, except as  
            specified. A record pertaining to an arrest resulting in  
            successful completion of a deferred entry of judgment program  
            shall not, without the defendant's consent, be used in any way  
            that could result in the denial of any employment, benefit,  
            license, or certificate.

          16)Advises that the defendant that, regardless of his or her  
            successful completion of the deferred entry of judgment  
            program, the arrest upon which the judgment was deferred may  
            be disclosed by the Department of Justice in response to any  
            peace officer application request and this section does not  
            relieve him or her of the obligation to disclose the arrest in  
            response to any direct question contained in any questionnaire  
            or application for a position as a peace officer.

          17)Excepts as otherwise required by the Substance Abuse and  
            Crime Prevention Act of 2000, the presiding judge of the  
            superior court, or a judge designated by the presiding judge,  
            together with the district attorney and the public defender,  
            may agree in writing to establish and conduct a preguilty plea  
            drug court program pursuant to the provisions of this chapter,  
            wherein criminal proceedings are suspended without a plea of  
            guilty for designated defendants. The drug court program shall  
            include a regimen of graduated sanctions and rewards,  
            individual and group therapy, urine analysis testing  
            commensurate with treatment needs, close court monitoring and  
            supervision of progress, educational or vocational counseling  
            as appropriate, and other requirements as agreed to by the  








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            presiding judge or his or her designee, the district attorney,  
            and the public defender. If there is no agreement in writing  
            for a preguilty plea program by the presiding judge or his or  
            her designee, the district attorney, and the public defender,  
            the program shall be operated as a deferred entry of judgment  
            program as provided in this chapter.

          18)Applies satisfactory and unsatisfactory performance  
            measurements to preguilty plea programs. If the court finds  
            that the defendant is not performing satisfactorily in the  
            assigned program, is not benefiting from education, treatment,  
            or rehabilitation, has been convicted of a crime specified  
            under existing law, or has engaged in criminal conduct  
            rendering him or her unsuitable for the preguilty plea  
            program, the court shall reinstate the criminal charge or  
            charges. If the defendant has performed satisfactorily during  
            the period of the preguilty plea program, at the end of that  
            period, the criminal charge or charges shall be dismissed. 

           EXISTING LAW  :

          1)States that in the case of any person convicted of a criminal  
            offense who would otherwise be sentenced to county jail or  
            state prison and who alleges that he or she committed the  
            offense as a result of PTSD, substance abuse, or psychological  
            problems stemming from service in a combat theater in the  
            United States military, the court shall, prior to sentencing,  
            hold a hearing to determine whether the defendant was a member  
            of the military forces of the United States who served in  
            combat and shall assess whether the defendant suffers from  
            PTSD, substance abuse, or psychological problems as a result  
            of that service.[Penal Code Section 1170.9(a).]

          2)Allows a defendant convicted of a criminal offense who  
            committed the offense as a result of PTSD substance abuse, or  
            psychological problems stemming from service in a combat  
            theater in the United States military, and if the defendant is  
            otherwise eligible for probation and the court places the  
            defendant on probation, the court may order the defendant into  
            a local, state, federal, or private nonprofit treatment  
            program for a period not to exceed that which the defendant  
            would have served in state prison or county jail, provided the  
            defendant agrees to participate in the program and the court  
            determines that an appropriate treatment program exists.  
            [Penal Code Section 1170.9(b).]








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          3)Defines a "violent felony" as any of the following [Penal Code  
            Section 667.5(c)]:

             a)   Murder or voluntary manslaughter;

             b)   Mayhem;

             c)   Rape or spousal rape accomplished by means of force or  
               threats of retaliation;

             d)   Sodomy by force or fear of immediate bodily injury on  
               the victim or another person;

             e)   Oral copulation by force or fear of immediate bodily  
               injury on the victim or another person;

             f)   Lewd acts on a child under the age of 14 years, as  
               defined;

             g)   Any felony punishable by death or imprisonment in the  
               state prison for life;

             h)   Any felony in which the defendant inflicts great bodily  
               injury on any person other than an accomplice, or any  
               felony in which the defendant has used a firearm, as  
               specified;

             i)   Any robbery;

             j)   Arson of a structure, forest land, or property that  
               causes great bodily injury;

             aa)  Arson that causes an inhabited structure or property to  
               burn;

             bb)  Sexual penetration accomplished against the victim's  
               will by means of force, menace or fear of immediate bodily  
               injury on the victim or another person;

             cc)  Attempted murder;

             dd)  Explosion or attempted explosion of a destructive device  
               with the intent to commit murder;









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             ee)  Explosion or ignition of any destructive device or any  
               explosive which causes bodily injury to any person;

             ff)  Explosion of a destructive device which causes death or  
               great bodily injury;

             gg)  Kidnapping;

             hh)  Assault with intent to commit mayhem, rape, sodomy or  
               oral copulation;

             ii)  Continuous sexual abuse of a child;

             jj)  Carjacking, as defined;

             aaa) Rape or penetration of genital or anal openings by a  
               foreign object;

             bbb) Felony extortion;

             ccc) Threats to victims or witnesses, as specified;

             ddd) First degree burglary, as defined, where it is proved  
               that another person other than an accomplice, was present  
               in the residence during the burglary;

             eee) Use of a firearm during the commission of specified  
               crimes; and,

             fff) Possession, development, production, and transfers of  
               weapons of mass destruction.


          4)Defines a "serious felony" as any of the following:  murder or  
            manslaughter; mayhem; rape; sodomy; oral copulation; lewd acts  
            on a child under the age of 14; any felony punishable by death  
            or imprisonment for life; any felony in which the defendant  
            inflicts great bodily injury; attempted murder; assault with  
            the intent to commit rape or robbery; assault with a deadly  
            weapon or instrument on a peace officer; assault by a life  
            prisoner on a non-inmate; assault with a deadly weapon by an  
            inmate; arson; exploding a destructive devise with the  
            intention to commit murder or great bodily injury;  
            first-degree burglary; armed robbery or bank robbery;  
            kidnapping; holding of a hostage by a person confined to a  








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            state prison; attempting to commit a felony punishable by  
            death or life in prison; any felony where the defendant  
            personally used a dangerous or deadly weapon; selling or  
            otherwise providing heroin, PCP or any type of  
            methamphetamine-related drug; forcible sexual penetration;  
            grand theft involving a firearm; carjacking; assault with the  
            intent to commit mayhem, rape, sodomy or forcible oral  
            copulation; throwing acid or other flammable substance;  
            assault with a deadly weapon on a peace officer; assault with  
            a deadly weapon on a member of the transit authority;  
            discharge of a firearm in an inhabited dwelling or car; rape  
            or sexual penetration done in concert; continuous sexual abuse  
            of a child; shooting from a vehicle; intimidating a victim or  
            witness; any attempt to commit the above-listed crimes except  
            assault or burglary; and using a firearm in the commission of  
            a crime and possession of weapons of mass destruction.  [Penal  
            Code Section 1192.7(c).]



          5)Provides for diversion from criminal prosecution through a  
            deferred entry of judgment and sentence when an open case is  
            before any court for specified violations of drug possession,  
            paraphernalia possession, being in the presence of drug use,  
            misdemeanor transportation of marijuana, or harvesting of  
            marijuana for personal use and it appears to the prosecuting  
            attorney that, all of the following apply to the defendant  
            (Penal Code Section 1000):  


             a)   The defendant has no conviction for any offense  
               involving controlled substances prior to the alleged  
               commission of the charged offense.

             b)   The offense charged did not involve a crime of violence  
                                                                   or threatened violence.

             c)   There is no evidence of a violation relating to  
               narcotics or restricted dangerous drugs other than a  
               violation of the sections listed in this subdivision.

             d)   The defendant's record does not indicate that probation  
               or parole has ever been revoked without thereafter being  
               completed.  









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             e)   The defendant's record does not indicate that he or she  
               has successfully completed or been terminated from  
               diversion or deferred entry of judgment pursuant to this  
               chapter within five years prior to the alleged commission  
               of the charged offense.

             a)   The defendant has no prior felony conviction within five  
               years prior to the alleged commission of the charged  
               offense.

          6)Provides that effective July 1, 2001, except as specified, a  
            person convicted of a non-violent drug possession offense  
            (NOVIDPO) shall receive probation with completion of a drug  
            treatment program as a condition of probation.  (Penal Code  
            Section 1210, 1210.1, added by Proposition 36, approved  
            November 7, 2000.)

          7)Provides that, except as specified, a person's parole may not  
            be suspended or revoked for commission of a NOVIDPO or for  
            violating a drug-related condition of parole, but that an  
            additional condition of parole for those offenses or  
            violations shall be completion of a drug treatment program.   
            (Penal Code Section 3063.1.)

          8)Provides that if a person on parole, or placed on probation  
            for a NOVIDPO, violates a drug-related condition of  
            supervision, a misdemeanor for simple possession or use of  
            drugs or drug paraphernalia, being present where drugs are  
            used, or failure to register as a drug offender, the court may  
            not revoke probation or parole for a first drug-related  
            violation unless the State proves that the person is a danger  
            to the safety of others.  [Penal Code Sections 1210.1(e)(3)  
            and 3063.1(d)(3).]

          9)Provides that certain defendants and parolees are ineligible  
            for the Substance Abuse Treatment Crime Prevention Act of 2000  
            (SACPA), enacted by Proposition 36.  These ineligible persons  
            include persons who possessed drugs other than for personal  
            use; committed other offenses along with a drug possession  
            offense; used a firearm while in possession or under the  
            influence of heroin, cocaine or PCP; previously convicted of a  
            serious felony and have not been free of custody or commission  
            of felonies or dangerous misdemeanors within five years  
            (parolees may not have ever been convicted of a serious  
            felony); participated in two prior Proposition 36 treatment  








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            programs; and refused treatment. (Penal Code Section 1210.03.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "AB 674 protects  
            society from the worst offenders while enabling mercy and  
            treatment for the typical vet suffering from PTSD or TBI and  
            aggravated pre-existing disorders that result from their  
            combat related service."

           2)Background  :  According to information provided by the author,  
            "Existing law does not allow for Veterans who commit crimes as  
            a result of combat service to have their records changed  
            because of that service."

           3)PTSD Explained  :  PTSD may develop after one experiences a  
            life-threatening or highly traumatic event, such as military  
            combat, rape, abuse (sexual or physical), natural disaster,  
            serious accident, or terrorist attacks.  [U.S. Department of  
            Veterans Affairs, National Center for PTSD, What is PTSD?  
             (as of Mar. 26, 2009).]  When an  
            individual experiences such an event, the body produces a  
            stress response which begins in the reticular activating  
            system and continues to the hypothalamus.  [Garcia-Rill &  
            Beecher-Monas, Gatekeeping Stress:  The Science and  
            Admissibility of Post-Traumatic Stress Disorder (2001) 24 U.  
            Ark. Little Rock L. Rev. 9, 18.]  The hypothalamus signals the  
            pituitary gland to secrete the adrenocorticotropic hormone  
            (ACTH), which eventually causes the production of adrenaline.   
            (Ibid.)  The adrenaline causes the stress response of rapid  
            heartbeat, pain desensitizing and hyper-alertness.  (Ibid.)   
            The brain then terminates the stress response when needed in a  
            negative feedback process where more ACTH is released in order  
            to stop the ACTH production.  (Ibid.)  The problem in persons  
            with PTSD is that they experience a stress response every time  
            there is a reminder of the stressor (i.e. a flashback,  
            triggering image or related incident).  The person is, thus,  
            under continuous stress, which can have a "deleterious effect  
            on the brain."  (Ibid.)

          The American Psychiatric Association lists the diagnostic  
            criteria for PTSD in the Diagnostic & Statistical Manual of  








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            Mental Disorders as follows:

          "The traumatic event is persistently re-experienced in one (or  
            more) of the following ways:

          "(1)  Tecurrent and intrusive distressing recollections of the  
            event, including images, thoughts, or perceptions . . . .

          "(2)  Recurrent distressing dreams of the event . . . .

          "(3)  Acting or feeling as if the traumatic event were recurring  
            (includes a sense of reliving the experience, illusions,  
            hallucinations, and dissociative flashback episodes, includes  
            those that occur on awakening or when intoxicated) . . . .

          "(4)  Intense psychological distress at exposure to internal or  
            external cues that symbolize or resemble an aspect of the  
            traumatic event.

          "(5)  Physiological reactivity on exposure to internal or  
            external cues that symbolize or resemble an aspect of the  
            traumatic event.

          "Persistent avoidance of stimuli associated with the trauma and  
            numbing of general responsiveness (not present before the  
            trauma), as indicated by three (or more) of the following:

          "(1)  Efforts to avoid thoughts, feelings, or conversations  
            associated with the trauma.

          "(2)  Efforts to avoid activities, places, or people that arouse  
            recollections of the trauma.

          "(3)  Inability to recall an important aspect of the trauma.

          "(4)  Markedly diminished interest or participation in  
            significant activities.

          "(5)  Feeling of detachment or estrangement from others.

          "(6)  Restricted range of affect (e.g., unable to have loving  
            feelings).

          "(7)  Sense of a foreshortened future (e.g., does not expect to  
            have a career, marriage, children, or a normal life span).








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          "Persistent symptoms of increased arousal (not present before  
            trauma), as indicated by two (or more) of the following:

          "(1)  Difficulty falling or staying asleep.

          "(2)  Irritability or outbursts of anger.

          "(3)  Difficulty concentrating.

          "(4)  Hypervigilance.

          "(5)  Exaggerated startle response.

          "Duration of the disturbance (symptoms above) is more than one  
            month.

          "The disturbance causes clinically significant distress or  
            impairment of social, occupational, or other important areas  
            of functioning."  [American Psychiatric Association,  
            Diagnostic and Statistical Manual of Mental Disorders (4th ed.  
            2000) p. 468.]

          Using the above criteria in diagnosing patients, the American  
            Psychiatric Association concluded that 8% of the American  
            population suffers from PTSD who will have lifetime  
            prevalence, with the highest rates among those who have served  
            in military combat.  (Id. at p. 466.) 

           4)Veterans and PTSD  : A study conducted by the University of  
            California-San Francisco and the San Francisco Veterans  
            Affairs Medical Center has shown that approximately one-third  
            of veterans returning from Iraq received one or more mental  
            health or psychosocial diagnoses.  [JAMA and Archives  
            Journals, Mental Illnesses Appear Common Among Veterans  
            Returning From Iraq and Afghanistan (Mar. 13, 2008)  
            ScienceDaily  (as of Mar. 27, 2009).]   
            Another study reported in the New England Journal of Medicine  
            indicates that the rate of PTSD among veterans of the wars in  
            Iraq and Afghanistan increased in a linear manner with  
            increased exposure to combat.  [See Hoge, M.D., Combat Duty in  
            Iraq and Afghanistan, Mental Health Problems, and Barriers to  
            Care (2004) 351 N. Engl. J. Med. 13-22.]  Studies also  
            indicate that PTSD may result in drug and alcohol abuse by  








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            veterans.  [See Stress & Substance Abuse:  A Special Report,  
            National Institute on Drug Abuse (Sept. 12, 2005)  
             (as of Mar.  
            27, 2009).]

          Mental health and substance abuse problems experienced by  
            veterans are linked to future incarceration.  In a Bureau of  
            Justice study, 35% to 45% of incarcerated veterans reported  
            symptoms of mental health disorders in the previous 12 months,  
            including mania, psychotic disorders, and major depressive  
            episodes.  [Noonan & Mumola, U.S. Dep't of Just., Veterans in  
            State and Federal Prison, 2004 (2007), p. 6.]  Three-quarters  
            of veterans in state prisons reported past drug use and  
            one-quarter reported being on drugs at the time of the offense  
            for which they were incarcerated.  (Id. at 5.)  Veterans are  
            also more likely than non-veterans to report past intravenous  
            drug use.  (Ibid.)  Veterans are also more likely than  
            non-veterans to report past intravenous drug use.  [Ibid., See  
            also Badkhen, Shelters Take Many Vets of Iraq, Afghan Wars,  
            Boston Globe (Aug. 7, 2007) (detailing the experience of an  
            Iraq veteran who suffered a traumatic brain injury and mental  
            health issues as a result of his combat experience, who  
            reported that he was using heroin and engaging in criminal  
            activity to support his drug habit within two months of his  
            return home from the war).]  It is likely that a significant  
            number of veterans with substance abuse issues may be  
            self-medicating as a means of dealing with mental illness.   
            [See Wynn, Dual Diagnosis, Journal of Addictive Disorders  
            (2002),  (as of March 23,  
            2009).]

          The reality is that veterans are disproportionately represented  
            in the prison population as compared to the population of the  
            United States as a whole.  According to the Department of  
            Veterans Affairs, in July 2007, there were an estimated  
            23,977,000 veterans in the United States.  [See United States  
            Department of Veterans Affairs (Jul. 25, 2007) table  
              
            (as of March 23, 2009).]  In contrast, veterans make up 10% of  
            state prisoners.  (See Noonan & Mumola, supra, at p. 1.)  By  
            2004, veterans of the current conflicts in Iraq and  
            Afghanistan already comprised for 4% of veterans in state and  
            federal prisons.  (Ibid.)

          Veterans are more likely than non-veterans to be incarcerated  








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            for a violent offense, "including over a third who were  
            serving sentences for homicide (15%) or rape/sexual assault  
            (23%)."  (Id. at 4.)  Veterans were also more likely to have  
            victimized women and children than were other offenders.   
            (Ibid.) 

          The current reality is that, once incarcerated, almost  
            two-thirds of mentally ill prisoners do not receive any form  
            of treatment.  [James & Glaze, U.S. Dep't of Just., Bureau of  
            Just. Stats., Mental Health Problems of Prison and Jail  
            Inmates (Sept. 2006) pp. 1,9.]  Mentally ill prisoners who  
            receive little or no treatment are at great risk of harm, are  
            particularly "vulnerable to assault, sexual abuse,  
            exploitation, and extortion," and are more likely to engage in  
            self-harm, such as self-mutilation and suicide.  [Abramsky &  
            Fellner, Ill- Equipped: U.S. Prisons and Offenders with Mental  
            Illness, Human Rights Watch (Oct. 21, 2003) p. 56  
             (as of March 23,  
            2009).]  Mentally ill prisoners are often severely punished  
            for behaviors that stem from their mental illnesses, including  
            placement in solitary confinement.  (Id. at 56-69.)  Isolation  
            can cause the mentally ill to rapidly decompensate and has  
            been described as "the mental equivalent of putting an  
            asthmatic in a place with little air to breathe."  [Madrid v.  
            Gomez (N.D. Cal. 1995) 889 F. Supp. 1146, 1265.]

          Providing meaningful mental health treatment has been shown to  
            significantly reduce recidivism rates, with studies showing  
            decreases of over 20%.  [Aos, Wash. State Inst. For Pub.  
            Pol'y, Evidence-Based Policy Options to Reduce Future Prison  
            Construction, Criminal Justice Costs, and Crime Rates (2006).]  
             Likewise, studies have shown a reduction of more than 6% in  
            recidivism rates where meaningful chemical dependency services  
            are provided to prisoners.  (Id. at pp. 3, 19.)  Chemical  
            dependency treatment has also been shown to decrease, at least  
            in the short term, the probability of alcohol dependency by  
            15% and drug dependency by 22%.  (Id. at p.4.)

          This bill establishes a deferred entry of judgment program and a  
            pre-conviction drug diversion program for veterans who suffer  
            from PTSD or traumatic brain injury.  As the research  
            indicates many veterans are in need of this treatment and such  
            treatment reduces recidivism rates.  In addition, the research  
            shows that, but for, the PTSD these veterans would not be  
            committing these crimes. 








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          With that in mind, however, it is important that there is a  
            significant nexus between the drug dependency issue, the PTSD,  
            and the crime committed by the veteran.  This bill casts a  
            wide net of crimes eligible for diversion.  It would be  
            prudent to narrow the list of crimes that are available for  
            diversion to veterans with PTSD.  For example, it does not  
            make sense for a veteran who has PTSD to receive diversion if  
            he or she was charged with manufacturing methamphetamine,  
            second-degree burglary, growing marijuana, felony driving  
            under the influence (DUI), DUI causing bodily injury,  
            vehicular manslaughter with gross negligence, pimping and  
            pandering, prostitution, forgery, extortion, vehicle theft,  
            hit and run.  The nexus between those crimes and PTSD is too  
            attenuated.  A suggestion would be to limit the list of  
            divertible crimes to non-violent, drug-related offenses, such  
            as those proscribed under Proposition 36.  To expand the list  
            of crimes beyond those where there is a clear nexus between  
            the PTSD stemming from service and the resultant crime treats  
            veterans as a specialized class of people receiving favorable  
            treatment and dismissals based upon their veteran status  
            rather than their mental health.  This is not to say that PTSD  
            should not be considered as a factor in crimes other than  
            non-violent drug offenses, but it should not automatically  
            warrant a diversion.  PTSD has been used to prove existing  
            criminal law defenses since 1978.  [Menefee, The "Vietnam  
            Syndrome" Defense:  A "G.I. Bill of Criminal Rights"? (1985)  
            1985 Army Law. 1, 27.]  PTSD can be used to prove a defense of  
            insanity, diminished capacity, or self-defense and can also be  
            used as a mitigating factor in sentencing proceedings.

           5)Equal Protection and Purposeful Discrimination  :  The Equal  
            Protection Clause of the Fourteenth Amendment,  1, commands  
            that no state shall "deny to any person within its  
            jurisdiction the equal protection of the laws."  Despite this,  
            however, many federal and state laws give veterans preference  
            in hiring and promotion decisions for civil service jobs.   
            [E.g., 38 U.S.C.A.  4214 (1998) (noting in subsection (a)(1)  
            that the United States "has an obligation to assist veterans  
            of the Armed Forces in readjusting to civilian life" and  
            advancing the policy of "promit[ing] the maximum employment  
            and job advancement opportunities [for qualified veterans]  
            within the Federal Government."]  Generally, these laws  
            provide that a specified number of points be added to the test  
            scores of veterans thereby allowing lower scoring veterans to  








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            be hired ahead of higher scoring non-veterans.  [E.g., AZ.  
            Rev. Stats.  38-492 (authorizing the addition of five points  
            to civil service examinations of veterans achieving passing  
            scores); AR. Code Ann.  21-3-302 (same); Colo. Rev. Stat.  
            Ann. Const. Art. 12, 15 (same); Conn. Gov. Stat. Ann.  7-415  
            (same).]  These preference programs are instances of  
            discrimination - using the term "discrimination" in the  
            non-pejorative sense.  The law targets the veteran qua veteran  
            and treats him or her differently than the civilian.

          The defining constitutional case in this area, Personnel  
            Administrator v. Feeney (1979) 42 U.S. 256, has been taken as  
            the authoritative statement that veterans' preferences are  
            constitutional.  It must be noted however, that this case  
            actually addressed the question whether such a preference  
            unconstitutionally discriminates on the basis of sex.  The  
            Court held that the distinction in the law was "simply between  
            veterans and non veterans, not between men and women."  (Id.  
            at 275.)  The Court upheld the preference on this ground, not  
            on whether the veteran versus non-veteran preferential  
            treatment violated equal protection. 

          The Court did recognize that a status-based distinction between  
            veterans and non-veterans was in play, noting that it was an  
            "unusual" case because it involved a law, that by design was  
            not neutral.  (Id. at 277.)  The statute "overtly preferr[ed]  
            veterans as such."  (Ibid.)  The Court did not address whether  
            this status distinction itself was permissible because "the  
            appellee ha[d] not disputed, that this legislative choice was  
            legitimate."  (Ibid.) 

          Absent from the case law is an analysis of whether and on what  
            basis the "headstart" for a "specifically described" and  
            "particularly deserving" group described in Feeney is  
            permissible.  So far, this gap in the case law has evaded  
            notice. 

          In the 1983 case Regan v. Taxation with Representation (1983)  
            461 U.S. 540, the Court upheld a tax provision giving  
            favorable treatment to veterans groups engaged in lobbying  
            while denying such favor to other charitable groups that lobby  
            on the basis that "our country has a longstanding policy of  
            compensating veterans for their past contributions by  
            providing them with numerous advantages."  (Id. at 551.)  In  
            the Court's view, review of this "longstanding" status  








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            discrimination was unnecessary because, quoting Feeney, "this  
            policy has 'always been deemed to be legitimate.' "  (Ibid.) 

          Using the language of the case law as a guide, it appears that  
            the meaning of veterans' preferences to judges is an  
            expression of honor, gratitude, and compensation.  As the  
            Court explains in Feeney, "the veterans' hiring preference in  
            Massachusetts, as in other jurisdictions, has traditionally  
            been justified as a measure designed to reward veterans for  
            the sacrifice of military service."  (Feeney, supra, 42 U.S.  
            256, p. 265.)  The Court in Regan emphasizes the hardships of  
            military service that warrant "compensating veterans for their  
            past contributions."  (Regan, supra, 461 U.S. 540, p. 551.)   
            Not only do the hardships of military service, particularly  
            wartime service, require honor and compensation, in the words  
            of the Pennsylvania Supreme Court, "it is the greatest service  
            a citizen can perform, and it comes with ill grace for those  
            of us not in such wars to deny them just consideration."   
            [Commonwealth ex rel. Graham v. Schmid (Pa. 1939) 3 A.2d 701,  
            704.]

          The laws above express the country's appreciation for the  
            sacrifices of military service.  They mark the fact that this  
            contribution to the country is different from the  
            contributions to the economy and communal life that civilians  
            make.  By enacting this preference, the country expresses  
            gratitude to the veteran for this contribution while  
            disregarding others.  Status distinctions that honor one  
            particular group may be problematic. It is also important to  
            note that the aforementioned cases did not involve crime, but  
            were advantages given to law abiding citizens. There are no  
            victims as a direct result of the veteran's actions. It is  
            questionable whether a veteran would be given the same  
            preferential treatment after the commission of a crime. 

           6)The Insanity Defense, Diminished Capacity, and Imperfect  
            Self-Defense  :  California follows the test of insanity laid  
            down in M'Naghten's Case (1843) 8 Eng.Rep. 718, under which  
            the accused must have been "incapable of knowing or  
            understanding the nature and quality of his or her act and of  
            distinguishing right from wrong at the time of the commission  
            of the offense."  [Cal. Pen. Code  25, subd. (b).]  It has  
            long been the rule in California that "insanity may not be  
            used as a basis for extending leniency.  It is either a  
            complete defense or none at all.  There is no degree of  








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            insanity which may be established to affect the degree of  
            crime."  [People v. Cordova (1939) 14 Cal.2d 308, 311.]  Thus,  
            " 'there is no degree of insanity sufficient to acquit of  
                                                          murder but not of manslaughter.' "  [People v. Phillips (1929)  
            102 Cal.App. 705, 708.]

          At least in part to "ameliorate the law governing criminal  
            responsibility" prescribed by the M'Naghten rule two doctrines  
            emerged:  diminished capacity and imperfect self-defense [See  
            People v. Saille (1991) 54 Cal.3d 1103, 1109 (reviewing  
            history of diminished capacity doctrine); People v. Flannel  
            (1979) 25 Cal.3d 668, 675-677 (reviewing history of imperfect  
            self-defense doctrine).].  Under the diminished capacity  
            doctrine, "evidence of diminished mental capacity, whether  
            caused by intoxication, trauma, or disease, [could] be used to  
            show that a defendant did not have a specific mental state  
            [including malice] essential to an offense."  [People v.  
            Conley (1966) 64 Cal.2d 310, 316.]  Under the doctrine of  
            imperfect self-defense, a defendant can seek to negate malice  
            by introducing evidence that he or she actually, albeit  
            unreasonably, believed it was necessary to defend himself or  
            herself from imminent peril to life or great bodily injury.   
            (Flannel, supra, 25 Cal.3d at p. 674.)

          The insanity defense and the doctrines of diminished capacity,  
            and imperfect self-defense may be used by veterans with PTSD  
            when faced with criminal charges.  These doctrines have been  
            used for centuries.  Since the criminal justice system  
            currently mitigates for those suffering from a mental disease  
            or disorder, we should caution further expansion by  
            specifically offering veterans with PTSD a deferred entry of  
            judgment. 

           7)Argument in Support  :  According to the  California  
            Psychological Association  , "AB 674 would establish a deferred  
            entry of judgment program and a pre-conviction diversion  
            program for veterans who suffer from PTSD or traumatic brain  
            injury and who have committed specified offenses.  This bill  
            targets a very specific population of veterans and aims to  
            divert them from jail into a rehabilitation program.  The bill  
            calls specifically for veterans who have a service-connected  
            PTSD or traumatic brain injury as the result of his or her  
            military service or who has undiagnosed symptoms of PTSD or  
            traumatic brain injury as a result of stressors that he or she  
            was exposed to in a combat situation in the military service.   








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            The bill also calls for the crime being charged to be  
            non-violent, non-serious misdemeanor or felony and the  
            defendant cannot possess any prior convictions or diversion  
            opportunities for the past five years.  The veteran will be  
            eligible for diversion to a county program proven to be  
            credible and effective.

          "This diversion program is a smart and sensitive solution to  
            address service needs for our returning veterans.  PTSD is  
            under diagnosed in our returning veterans and treatment is key  
            for these men and women.  Jail time will do nothing to  
            rehabilitate them.  The VA estimates that there have been  
            nearly one million troops eligible for services since 2002  
            (though half of those eligible have not been served).  Of  
            those who have received services, nearly 100,000 have been  
            diagnosed with PTSD.  Depressive and neurotic disorders have  
            also been diagnosed at high levels.  This bill will ensure  
            that those men and women who have not received mental health  
            treatment will be able to seek rehabilitation and not get lost  
            in our prison system."

           8)Argument in Opposition  :  According to  Mothers Against Drunk  
            Driving  (MADD), "If enacted into law, AB 674 would allow  
            veterans who suffer from PSTD or traumatic brain injury and  
            are guilty of certain offenses, including non-felony DUI  
            offenses, to forego having an entry of judgment on their  
            criminal records.  MADD believes that all persons who commit a  
            DUI should be held accountable for their actions.

          "AB 674's effect would be to defer the entry of judgment for a  
            veteran who commits a crime not categorized as a serious  
            felony or crime of violence.  In 2007, the most recent year  
            for which data is available, the United States Department of  
            Justice reported that California had 204,000 DUI arrests.   
            With AB 674's enactment, a veteran charged with a DUI could  
            have his arrest effectively eliminated from his criminal  
            record upon satisfying conditions to receiving a deferred  
            entry of judgment.  MADD commends veterans' service to the  
            United States, but it does not believe respect for veterans'  
            service should result in excusing the actions of veterans who  
            violate the public trust.

          "Though not always 'officially' classified as a violent crime,  
            the effects of DUI are tremendously violent.  In 2007, DUIs in  
            California alone were the catalyst for hundreds of thousands  








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            of injuries and 1,155 deaths.  To allow deferred entry of  
            judgment for some subset of offenders its to deny the gravity  
            of the DUI crime, along with the gravity of crimes not defined  
            in Section 1192.7 or 1192.8 and subdivision (c) of Section  
            667.5 and give veterans license to commit a serious of  
            offenses, including DUI."

           9)Related Legislation  : AB 1013(Block), requires CDCR to conduct  
            interdisciplinary assessments of new inmates who are veterans  
            and to develop a specialized treatment protocol which includes  
            PTSD. AB 1012 was passed out of this Committee on April 14,  
            2009.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          American Legion, Department of California
          California Attorneys for Criminal Justice
          California Psychological Association
          Vietnam Veterans of America, California State Council

           Opposition 
           
          California District Attorneys Association 
          California Mental Health Directors Association 
          California State Association of Counties
          Legal Services for Prisoners with Children
          Los Angeles County District Attorney
          Mothers Against Drunk Driving
           

          Analysis Prepared by  :    Nicole J. Hanson / PUB. S. / (916)  
          319-3744