BILL ANALYSIS Ó
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|SENATE RULES COMMITTEE | AB 2371|
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THIRD READING
Bill No: AB 2371
Author: Butler (D)
Amended: 6/26/12 in Senate
Vote: 21
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 6/19/12
AYES: Hancock, Anderson, Calderon, Harman, Liu, Price,
Steinberg
ASSEMBLY FLOOR : 45-19, 5/25/12 - See last page for vote
SUBJECT : Veterans: criminal defendants: mental health
issues and
restorative relief
SOURCE : American Legion, Department of California
AMVETS Department of California
Vietnam Veterans of America, California State
Council
DIGEST : This bill provides restorative relief to a
veteran defendant who acquires a criminal record due to a
mental disorder stemming from military service.
ANALYSIS : Existing law provides for diversion from
criminal prosecution through a deferred entry of judgment
(DEJ) 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
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personal use and it appears to the prosecuting attorney
that, all of the following apply to the defendant:
1. The defendant has no conviction for any offense
involving controlled substances prior to the alleged
commission of the charged offense;
2. The offense charged did not involve a crime of violence
or threatened violence;
3. 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;
4. The defendant's record does not indicate that probation
or parole has ever been revoked without thereafter being
completed;
5. The defendant's record does not indicate that he/she has
successfully completed or been terminated from diversion
or DEJ pursuant to this chapter within five years prior
to the alleged commission of the charged offense; and
6. The defendant has no prior felony conviction within five
years prior to the alleged commission of the charged
offense. (Penal Code (PEN) Section 1000)
Existing law effectuates July 1, 2001, except as specified,
a person convicted of a non-violent drug possession offense
shall receive probation with completion of a drug treatment
program as a condition of probation. (PEN Section 1210 and
1210.1, added by Proposition 36, approved November 7, 2000)
Existing law 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
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prior Proposition 36 treatment programs; and refused
treatment. (PEN Section 1210.03)
Existing law allows a superior court, with the concurrence
of the prosecuting attorney of the county, may create a
"Back on Track" deferred entry of judgment reentry program
aimed at preventing recidivism among first-time nonviolent
felony drug offenders. No defendant who has been convicted
of a violation of a sex offense shall be eligible for the
program established in this chapter. When creating this
program, the prosecuting attorney, together with the
presiding judge and a representative of the criminal
defense bar selected by the presiding judge of the superior
court may agree to establish a "Back on Track" deferred
entry of judgment program pursuant to the provisions, as
specified. The agreement shall specify which low-level
nonviolent felony drug offenses under the Health and Safety
Code will be eligible for the program and a process for
selecting participants. The program shall have the
following characteristics:
1. A dedicated calendar;
2. Leadership by a superior court judicial officer who is
assigned by the presiding judge;
3. Clearly defined eligibility criteria to enter the
program and clearly defined criteria for completion of
the program;
4. Legal incentives for defendants to successfully complete
the program, including dismissal or reduction of
criminal charges upon successful completion of the
program; and
5. Close supervision to hold participants accountable to
program compliance, including the use of graduated
sanctions and frequent, ongoing appearances before the
court regarding participants' program progress and
compliance with all program terms and conditions. The
court may use available legal mechanisms, including
return to custody if necessary, for failure to comply
with the supervised plan.
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6. Appropriate transitional programming for participants,
based on available resources from county and community
service providers and other agencies. The transitional
programming may include, but is not limited to, any of
the following:
A. Vocational training, readiness, and placement;
B. Educational training, including assistance with
acquiring a GED or high school diploma and assistance
with admission to college;
C. Substance abuse treatment;
D. Assistance with obtaining identification cards and
driver's licenses;
E. Parenting skills training and assistance in
becoming compliant with child support obligations;
and
F. The program may develop a local, public-private
partnership between law enforcement, government
agencies, private employers, and community-based
organizations for the purpose of creating meaningful
employment opportunities for participants and to take
advantage of incentives for hiring program
participants. (PEN Section 1000.8)
Existing law applies this chapter whenever a case is before
any court upon an accusatory pleading at any stage of the
criminal proceedings, for any person who has been evaluated
by a regional center for the developmentally disabled and
who is determined to be a person with a cognitive
developmental disability by the regional center, and who
therefore is eligible for its services. This chapter
applies to any offense which is charged as or reduced to a
misdemeanor, except that diversion shall not be ordered
when the defendant previously has been diverted under this
chapter within two years prior to the present criminal
proceedings. (PEN Section 1001.21, subd. (a) and (b))
Existing law mandates in any case in which a defendant has
fulfilled the conditions of probation for the entire period
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of probation, or has been discharged prior to the
termination of the period of probation, or in any other
case in which a court, in its discretion and the interests
of justice, determines that a defendant should be granted
the relief available under this section, the defendant
shall, at any time after the termination of the period of
probation, if he or she is not then serving a sentence for
any offense, on probation for any offense, or charged with
the commission of any offense, be permitted by the court to
withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he/she
has been convicted after a plea of not guilty, the court
shall set aside the verdict of guilty; and, in either case,
the court shall thereupon dismiss the accusations or
information against the defendant and except as noted
below, he/she shall thereafter be released from all
penalties and disabilities resulting from the offense of
which he/she has been convicted, except as provided in
existing law. The probationer shall be informed, in
his/her probation papers, of this right and privilege and
his/her right, if any, to petition for a certificate of
rehabilitation and pardon. The probationer may make the
application and change of plea in person or by attorney, or
by the probation officer authorized in writing. However,
in any subsequent prosecution of the defendant for any
other offense, the prior conviction may be pleaded and
proved and shall have the same effect as if probation had
not been granted or the accusation or information
dismissed. The order shall state, and the probationer
shall be informed, that the order does not relieve him/her
of the obligation to disclose the conviction in response to
any direct question contained in any questionnaire or
application for public office, for licensure by any state
or local agency, or for contracting with the California
State Lottery. (PEN Section 1203.4, subd. (a))
Existing law 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
post-traumatic stress disorder (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
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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. (PEN
Section 1170.9, subd. (a))
Existing law 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. (PEN Section 1170.9,
subd. (b))
This bill declares that it is in the interests of justice
to restore a defendant who acquired a criminal record due
to a mental health disorder stemming from service in the
United States military to the community of law abiding
citizens.
This bill provides that the restorative relief provision
shall apply to cases in which a trial court or a court
monitoring the defendant's performance on probation finds
at a public hearing that the defendant meets the following
eligibility criteria:
1. He/she was granted probation, and at the time that
probation was granted had alleged the offense was
committed as a result sexual trauma, traumatic brain
injury, PTSD, substance abuse, or mental health problems
stemming from military service;
2. He/she is in substantial compliance with the conditions
of that probation;
3. He/she has successfully participated in court-ordered
treatment and services to address the sexual trauma,
traumatic brain injury, PTSD, substance abuse, or mental
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health problems stemming from military service;
4. He/she does not represent a danger to the health and
safety of others; and
5. He/she has demonstrated significant benefit from
court-ordered education, treatment, or rehabilitation to
clearly show that granting restorative relief pursuant
to this subdivision would be in the interests of
justice.
This bill enumerates factors the court may consider in
determining whether the grant of restorative relief would
be in the interests of justice, including, but not limited
to:
1. The defendant's completion and degree of participation
in education, treatment, and rehabilitation as ordered
by the court;
2. The defendant's progress in formal education;
3. The defendant's development of career potential;
4. The defendant's leadership and personal responsibility
efforts; and
5. The defendant's contribution of service in support of
the community.
This bill states that if the court finds a case satisfies
the eligibility requirements, then the court may, by form
of a written order with a statement of reasons, do any of
the following:
1. Deem all conditions of probation, including fines, fees,
assessments, and programs, except victim restitution,
to be satisfied and terminate probation early;
2. Exercise discretion pursuant to PEN Section 17(b) to
reduce an eligible felony to a misdemeanor; and
3. Grant relief in accordance with PEN Section 1203.4.
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This bill provides that, notwithstanding the language of
PEN Section 1203.4, a dismissal of the action under this
subdivision releases the defendant from all penalties and
disabilities resulting from the offense of which the
defendant has been convicted in the dismissed action.
This bill prohibits dismissal of the following offenses:
A conviction under Vehicle Code Section 42002.1(c);
A felony conviction under PEN Section 261.5(d);
A conviction under PEN Section 286(c);
A conviction under PEN Section 288;
A conviction PEN Section 288a(c);
A conviction under PEN Section 288.5; and
A conviction under PEN Section 289(j).
This bill provides that a dismissal under this section does
not affect the requirement to register as a sex offender
under PEN Section 290.
This bill states that when information concerning prior
arrests or convictions is requested to be given under oath,
affirmation, or otherwise, the defendant will not have to
disclose his/her arrest on the dismissed action, the
dismissed action, or the conviction that was set aside,
except for when the question is contained in a
questionnaire or application for any law enforcement
position.
This bill gives the court discretion to seal the arrest and
court records of the dismissed action, making the records
thereafter viewable by the public pursuant to a court
order.
This bill provides that the dismissal of the action under
these provisions shall be a bar to any future action based
on the conduct charged in the dismissed action.
This bill specifies that dismissed convictions can still be
pleaded and proved as a prior conviction in a subsequent
prosecution for another offense.
This bill provides that a set-aside conviction can still be
considered a conviction for the purpose of administratively
revoking or suspending or otherwise limiting the
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defendant's driving privilege on the grounds of multiple
convictions.
This bill specifies that the defendant's DNA sample and
profile shall not be removed as a result of a dismissal
under these provisions.
Prior legislation . AB 201 (Butler), passed the Senate
(37-0) on July 11, 2011, but was vetoed; AB 1295 (Salas,
2010) was vetoed; AB 2671 (Salas, 2008) was vetoed; SB 851
(Steinberg, 2007) was vetoed; AB 1542 (Parra, 2006) was
vetoed; and AB 2586 (Parra), Chapter 788, Statutes of 2006.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 8/21/12)
American Legion, Department of California (co-source)
AMVETS Department of California (co-source)
Vietnam Veterans of America, California State Council
(co-source)
California Association of County Veterans Service Officers
California Attorneys for Criminal Justice
California Psychological Association
California Public Defenders Association
California State Commanders Veterans Council
Drug Policy Alliance
Lawyers' Committee for Civil Rights of the San Francisco
Bay Area
Legal Services for Prisoners with Children
Office of the Deputy Assistant Secretary of Defense
Veterans of Foreign Wars of the United States Department of
California
Vietnam Veterans of America - California State Council
OPPOSITION : (Verified 8/21/12)
American Association for Marriage and Family Therapy
California Division
California District Attorneys Association
ARGUMENTS IN SUPPORT : According to the author, "Many
veterans are suffering from mental illnesses as a result of
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service in the United States Military. This bill hits at
the heart of the issue, getting veterans the treatment that
they need. When a veteran commits a crime as a result of
mental illness from service, in lieu of prison time the
veteran will be given treatment for their specific mental
illness. Once treatment and conditions are met, this bill
would allow a court to grant restorative relief. These
Veterans have sacrificed for our country, we need to
support them and give them the rehabilitation they need so
they can have a normal life."
The Department Defense State Liaison Office states, "The
Department of Defense recognizes restorative relief as a
best practice in promoting a framework to help veterans
afflicted with mental health and/or substance addition to
obtain treatment services in order to resolve outstanding
criminal offenses and stabilize their lives. We support
procedures that allow all qualifying charges to be reduced
or dismissed (including where appropriate, more serious
charges) commensurate with completion of appropriate
treatment and services. Where charges are dismissed, we
support limited access to the record, including expunging
records where appropriate as provided by state or local
law."
The California Psychological Association (CPA) states,
"This bill seeks to provide restorative relief to a veteran
defendant who acquires a criminal record due to a mental
disorder stemming from military service. CPA agrees with
the Author who states that 'Many veterans are suffering
from mental illnesses as a result of service in the United
States Military.' This bill allows veterans to pursue
treatment, rather than punishment. AB 2371 addresses
service needs for our returning veterans. PTSD is
underdiagnosed in our returning veterans and treatment is
key for these men and women. This bill is a practical
solution to an increasing problem. The VA estimates there
have been nearly 1 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."
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ARGUMENTS IN OPPOSITION : The California District
Attorneys Association opposes this bill stating:
Existing law provides that a person convicted of a
criminal offense who could otherwise be sentenced to
county jail or state prison who alleges that he or she
committed the offense as a result of sexual trauma,
traumatic brain injury, post-traumatic stress disorder,
substance abuse, or mental health problems stemming from
service in the United States military, who is eligible
for probation and is placed on probation by the court,
may be ordered by the court into a treatment program.
This bill further allows a court, as it regards a
defendant described above, to terminate probation early
and to reduce a felony to a misdemeanor.
We do not concur with the need to extend relief to these
offenders beyond what is contemplated by existing law.
Sufficient discretion on the part of the court and
district attorney exists as it relates to the charging
and sentencing of crimes that are punishable as either
misdemeanor or felonies, and we need not grant particular
advantage to person alleging their offenses were a result
of military service. Additionally, allowing a felony to
be reduced to a misdemeanor, even with the concurrence of
the district attorney, frustrates justice and minimizes
the seriousness of the offense.
The American Association for Marriage and Family Therapy,
California Division would like to see this bill apply to
all military veterans not just ones with the specific
problems listed. Their concern is that:
While PTSD and other mental health ailments are indeed
tragically common among veterans, and there is benefit in
allowing court flexibility in the early release of
probationers who primarily need mental health treatment
rather than (or in addition to) county oversight, this
bill has a key problem: it risks creating an incentive
for jailed veterans to try to fake symptoms of PTSD or
another disorder and get the diagnosis so they can end
their problems early.
This could set up something of an adversarial
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relationship between clinician and patient, where the
clinician would necessarily look skeptically on claimed
trauma symptoms. There is already enough of a problem
with matching PTSD diagnosis to those who genuinely carry
the symptoms; this bill could make that worse. Those who
truly carry such symptoms would be less likely to seek
treatment if it becomes known that the disorder is
regularly faked.
ASSEMBLY FLOOR : 45-19, 5/25/12
AYES: Alejo, Allen, Ammiano, Beall, Block, Blumenfield,
Bonilla, Bradford, Brownley, Buchanan, Butler, Charles
Calderon, Campos, Carter, Cedillo, Chesbro, Davis,
Dickinson, Eng, Feuer, Fong, Fuentes, Furutani, Galgiani,
Gatto, Gordon, Hayashi, Roger Hernández, Hill, Huber,
Hueso, Huffman, Lara, Bonnie Lowenthal, Mendoza,
Mitchell, Monning, Pan, V. Manuel Pérez, Skinner,
Swanson, Torres, Wieckowski, Williams, Yamada
NOES: Conway, Donnelly, Beth Gaines, Garrick, Hagman,
Halderman, Jeffries, Jones, Logue, Mansoor, Miller,
Morrell, Nestande, Nielsen, Norby, Olsen, Smyth, Solorio,
Wagner
NO VOTE RECORDED: Achadjian, Atkins, Bill Berryhill, Cook,
Fletcher, Gorell, Grove, Hall, Harkey, Knight, Ma, Perea,
Portantino, Silva, Valadao, John A. Pérez
RJG:m 8/21/12 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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