Amended in Assembly March 24, 2014

California Legislature—2013–14 Regular Session

Assembly BillNo. 2098


Introduced by Assembly Member Levine

February 20, 2014


An act to amend Sectionbegin delete 190.3 of the Penal Code, relating to the death penalty.end deletebegin insert 1170.9 of, and to add Section 1170.91 to, the Penal Code, relating to sentencing.end insert

LEGISLATIVE COUNSEL’S DIGEST

AB 2098, as amended, Levine. begin deleteDeath penalty: end deletebegin insertMilitary personnel: veterans: end insertsentencing: mitigating circumstances.

begin insert

Existing law requires the court, in the case of any person convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and 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, to make a determination, prior to sentencing, as to whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service. If the court concludes that the defendant is one of the persons described above, and if the defendant is otherwise eligible for probation and the court places the defendant on probation, the court is authorized to order the defendant into a local, state, federal, or private nonprofit treatment program for a period not to exceed that period 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.

end insert
begin insert

This bill would additionally require the court to consider its conclusion that a defendant eligible for probation was, or currently is, a member of the United States military and that the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service as a factor in favor of granting probation.

end insert
begin insert

Existing law provides that specified felonies are punishable by imprisonment in a county jail for 16 months, or 2 or 3 years or, where the term is specified, for the term described in the underlying offense. When a judgment of imprisonment is to be imposed and the statute specifies 3 possible terms, the choice of the appropriate term rests within the sound discretion of the court.

end insert
begin insert

This bill would require the court, if it concludes that a defendant convicted of a felony offense is, or was, a member of the United States military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service, to consider those circumstances as a factor in mitigation when imposing a term pursuant to the above provisions.

end insert
begin delete

Existing law, as added by the Briggs Initiative, a measure approved by the voters at the November 7, 1978, statewide general election, among other things, provides that persons convicted of first degree murder are subject to death or life in prison without the possibility of parole if any specified special circumstance is found to be true. Existing law also provides that in determining the penalty, the trier of fact is required to take into account certain mitigating and aggravating factors, if relevant, including, but not limited to, the presence or absence of any prior felony conviction, and whether or not the offense was committed while the defendant was under the influence of extreme mental or emotional disturbance.

end delete
begin delete

This bill would add whether the defendant was, or currently is, a member of the United States military and whether the defendant may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of that service, as a mitigating factor.

end delete
begin delete

The California Constitution authorizes the Legislature to amend or repeal an initiative statute by another statute that becomes effective when approved by the electors.

end delete
begin delete

This bill would provide that its provisions will become effective only upon approval of the voters, and would provide for the submission of this measure to the voters for approval at a statewide election.

end delete

Vote: majority. Appropriation: no. Fiscal committee: begin deleteyes end deletebegin insertnoend insert. State-mandated local program: no.

The people of the State of California do enact as follows:

P3    1begin insert

begin insertSECTION 1.end insert  

end insert

begin insertSection 1170.9 of the end insertbegin insertPenal Codeend insertbegin insert is amended to
2read:end insert

3

1170.9.  

(a) In the case of any person convicted of a criminal
4offense who could otherwise be sentenced to county jail or state
5prison and who alleges that he or she committed the offense as a
6result of sexual trauma, traumatic brain injury, post-traumatic stress
7disorder, substance abuse, or mental health problems stemming
8from service in the United States military, the court shall, prior to
9sentencing, make a determination as to whether the defendant was,
10or currently is, a member of the United States military and whether
11the defendant may be suffering from sexual trauma, traumatic
12brain injury, post-traumatic stress disorder, substance abuse, or
13mental health problems as a result of his or her service. The court
14may request, through existing resources, an assessment to aid in
15that determination.

16(b) begin insert(1)end insertbegin insertend insert If the court concludes that a defendant convicted of a
17criminal offense is a person described in subdivision (a), and if
18the defendant is otherwise eligible forbegin delete probation and the court
19places the defendant on probation, the court may order the
20defendant into a local, state, federal, or private nonprofit treatment
21program for a period not to exceed that which the defendant would
22have served in state prison or county jail, provided the defendant
23agrees to participate in the program and the court determines that
24an appropriate treatment program exists.end delete
begin insert probation, the court shall
25consider the circumstances described in subdivision (a) as a factor
26in favor of granting probation.end insert

begin insert

27(2) If the court places the defendant on probation, the court
28may order the defendant into a local, state, federal, or private
29nonprofit treatment program for a period not to exceed that period
30which the defendant would have served in state prison or county
31jail, provided the defendant agrees to participate in the program
P4    1and the court determines that an appropriate treatment program
2exists.

end insert

3(c) If a referral is made to the county mental health authority,
4the county shall be obligated to provide mental health treatment
5services only to the extent that resources are available for that
6purpose, as described in paragraph (5) of subdivision (b) of Section
75600.3 of the Welfare and Institutions Code. If mental health
8treatment services are ordered by the court, the county mental
9health agency shall coordinate appropriate referral of the defendant
10to the county veterans service officer, as described in paragraph
11(5) of subdivision (b) of Section 5600.3 of the Welfare and
12Institutions Code. The county mental health agency shall not be
13responsible for providing services outside its traditional scope of
14services. An order shall be made referring a defendant to a county
15mental health agency only if that agency has agreed to accept
16responsibility for the treatment of the defendant.

17(d) When determining the “needs of the defendant,” for purposes
18of Section 1202.7, the court shall consider the fact that the
19defendant is a person described in subdivision (a) in assessing
20whether the defendant should be placed on probation and ordered
21into a federal or community-based treatment service program with
22a demonstrated history of specializing in the treatment of mental
23health problems, including substance abuse, post-traumatic stress
24disorder, traumatic brain injury, military sexual trauma, and other
25related mental health problems.

26(e) A defendant granted probation under this section and
27committed to a residential treatment program shall earn sentence
28credits for the actual time the defendant serves in residential
29treatment.

30(f) The court, in making an order under this section to commit
31a defendant to an established treatment program, shall give
32preference to a treatment program that has a history of successfully
33treating veterans who suffer from sexual trauma, traumatic brain
34injury, post-traumatic stress disorder, substance abuse, or mental
35health problems as a result of that service, including, but not limited
36to, programs operated by the United States Department of Defense
37or the United Statesbegin delete Veterans Administrationend deletebegin insert Department of
38Veterans Affairsend insert
.

39(g) The court and the assigned treatment program may
40collaborate with the Department of Veterans Affairs and the United
P5    1Statesbegin delete Veterans Administrationend deletebegin insert Department of Veterans Affairsend insert to
2maximize benefits and services provided to the veteran.

3(h) (1) It is in the interests of justice to restore a defendant who
4acquired a criminal record due to a mental health disorder
5stemming from service in the United States military to the
6community of law abiding citizens. The restorative provisions of
7this subdivision shall apply to cases in which a trial court or a court
8monitoring the defendant’s performance of probation pursuant to
9this section finds at a public hearing, held after not less than 15
10days’ notice to the prosecution, the defense, and any victim of the
11offense, that all of the following describe the defendant:

12(A) He or she was granted probation and was at the time that
13probation was granted a person described in subdivision (a).

14(B) He or she is in substantial compliance with the conditions
15of that probation.

16(C) He or she has successfully participated in court-ordered
17treatment and services to address the sexual trauma, traumatic
18brain injury, post-traumatic stress disorder, substance abuse, or
19mental health problems stemming from military service.

20(D) He or she does not represent a danger to the health and
21safety of others.

22(E) He or she has demonstrated significant benefit from
23court-ordered education, treatment, or rehabilitation to clearly
24show that granting restorative relief pursuant to this subdivision
25would be in the interests of justice.

26(2) When determining whether granting restorative relief
27pursuant to this subdivision is in the interests of justice, the court
28may consider, among other factors, all of the following:

29(A) The defendant’s completion and degree of participation in
30education, treatment, and rehabilitation as ordered by the court.

31(B) The defendant’s progress in formal education.

32(C) The defendant’s development of career potential.

33(D) The defendant’s leadership and personal responsibility
34efforts.

35(E) The defendant’s contribution of service in support of the
36community.

37(3) If the court finds that a case satisfies each of the requirements
38described in paragraph (1), then the court may take any of the
39following actions by a written order setting forth the reasons for
40so doing:

P6    1(A) Deem all conditions of probation to be satisfied, including
2fines, fees, assessment, and programs, and terminate probation
3prior to the expiration of the term of probation. This subparagraph
4does not apply to any court-ordered victim restitution.

5(B) Reduce an eligible felony to a misdemeanor pursuant to
6subdivision (b) of Section 17.

7(C) Grant relief in accordance with Section 1203.4.

8(4) Notwithstanding anything to the contrary in Section 1203.4,
9a dismissal of the action pursuant to this subdivision has the
10following effect:

11(A) Except as otherwise provided in this paragraph, a dismissal
12of the action pursuant to this subdivision releases the defendant
13from all penalties and disabilities resulting from the offense of
14which the defendant has been convicted in the dismissed action.

15(B) A dismissal pursuant to this subdivision does not apply to
16any of the following:

17(i) A conviction pursuant to subdivision (c) of Section 42002.1
18of the Vehicle Code.

19(ii) A felony conviction pursuant to subdivision (d) of Section
20261.5.

21(iii) A conviction pursuant to subdivision (c) of Section 286.

22(iv) A conviction pursuant to Section 288.

23(v) A conviction pursuant to subdivision (c) of Section 288a.

24(vi) A conviction pursuant to Section 288.5.

25(vii) A conviction pursuant to subdivision (j) of Section 289.

26(viii) The requirement to register pursuant to Section 290.

27(C) The defendant is not obligated to disclose the arrest on the
28dismissed action, the dismissed action, or the conviction that was
29set aside when information concerning prior arrests or convictions
30is requested to be given under oath, affirmation, or otherwise. The
31defendant may indicate that he or she has not been arrested when
32his or her only arrest concerns the dismissed action, except when
33the defendant is required to disclose the arrest, the conviction that
34was set aside, and the dismissed action in response to any direct
35question contained in any questionnaire or application for any law
36enforcement position.

37(D) A dismissal pursuant to this subdivision may, in the
38discretion of the court, order the sealing of police records of the
39arrest and court records of the dismissed action, thereafter viewable
40by the public only in accordance with a court order.

P7    1(E) The dismissal of the action pursuant to this subdivision shall
2be a bar to any future action based on the conduct charged in the
3dismissed action.

4(F) In any subsequent prosecution for any other offense, a
5conviction that was set aside in the dismissed action may be
6pleaded and proved as a prior conviction and shall have the same
7effect as if the dismissal pursuant to this subdivision had not been
8granted.

9(G) A conviction that was set aside in the dismissed action may
10be considered a conviction for the purpose of administratively
11revoking or suspending or otherwise limiting the defendant’s
12driving privilege on the ground of two or more convictions.

13(H) The defendant’s DNA sample and profile in the DNA data
14bank shall not be removed by a dismissal pursuant to this
15subdivision.

16(I) Dismissal of an accusation, information, or conviction
17pursuant to this section does not authorize a defendant to own,
18possess, or have in his or her custody or control any firearm or
19prevent his or her conviction pursuant to Chapter 2 (commencing
20with Section 29800) of Division 9 of Title 4 of Part 6.

21begin insert

begin insertSEC. 2.end insert  

end insert

begin insertSection 1170.91 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

begin insert
22

begin insert1170.91.end insert  

If the court concludes that a defendant convicted of
23a felony offense is, or was, a member of the United States military
24who may be suffering from sexual trauma, traumatic brain injury,
25post-traumatic stress disorder, substance abuse, or mental health
26problems as a result of his or her military service, the court shall
27consider the circumstance as a factor in mitigation when imposing
28a term under subdivision (b) of Section 1170.

end insert
begin delete
29

SECTION 1.  

Section 190.3 of the Penal Code is amended to
30read:

31

190.3.  

If the defendant has been found guilty of murder in the
32first degree, and a special circumstance has been charged and found
33to be true, or if the defendant may be subject to the death penalty
34after having been found guilty of violating subdivision (a) of
35Section 1672 of the Military and Veterans Code or Sections 37,
36128, 219, or 4500 of this code, the trier of fact shall determine
37whether the penalty shall be death or confinement in state prison
38for a term of life without the possibility of parole. In the
39proceedings on the question of penalty, evidence may be presented
40by both the people and the defendant as to any matter relevant to
P8    1aggravation, mitigation, and sentence, including, but not limited
2to, the nature and circumstances of the present offense, any prior
3felony conviction or convictions whether or not that conviction or
4those convictions involved a crime of violence, the presence or
5absence of other criminal activity by the defendant that involved
6the use or attempted use of force or violence or that involved the
7express or implied threat to use force or violence, and the
8defendant’s character, background, history, mental condition, and
9physical condition.

10However, evidence shall not be admitted regarding other criminal
11activity by the defendant that did not involve the use or attempted
12use of force or violence or that did not involve the express or
13implied threat to use force or violence. As used in this section,
14criminal activity does not require a conviction.

15However, in no event shall evidence of prior criminal activity
16be admitted for an offense for which the defendant was prosecuted
17and acquitted. The restriction on the use of this evidence is intended
18to apply only to proceedings pursuant to this section and is not
19intended to affect statutory or decisional law allowing that evidence
20to be used in any other proceedings.

21Except for evidence in proof of the offense or special
22circumstances that subject a defendant to the death penalty,
23evidence shall not be presented by the prosecution in aggravation
24unless notice of the evidence to be introduced has been given to
25the defendant within a reasonable period of time as determined by
26the court, prior to trial. Evidence may be introduced without that
27notice in rebuttal to evidence introduced by the defendant in
28mitigation.

29The trier of fact shall be instructed that a sentence of confinement
30to state prison for a term of life without the possibility of parole
31may in future after sentence is imposed, be commuted or modified
32to a sentence that includes the possibility of parole by the Governor
33of the State of California.

34In determining the penalty, the trier of fact shall take into account
35 any of the following factors if relevant:

36(a) The circumstances of the crime of which the defendant was
37convicted in the present proceeding and the existence of any special
38circumstances found to be true pursuant to Section 190.1.

P9    1(b) The presence or absence of criminal activity by the defendant
2that involved the use or attempted use of force or violence or the
3express or implied threat to use force or violence.

4(c) The presence or absence of any prior felony conviction.

5(d) Whether or not the offense was committed while the
6defendant was under the influence of extreme mental or emotional
7disturbance.

8(e) Whether or not the victim was a participant in the defendant’s
9homicidal conduct or consented to the homicidal act.

10(f) Whether or not the offense was committed under
11circumstances that the defendant reasonably believed to be a moral
12justification or extenuation for his or her conduct.

13(g) Whether or not defendant acted under extreme duress or
14under the substantial domination of another person.

15(h) Whether or not at the time of the offense the capacity of the
16defendant to appreciate the criminality of his or her conduct or to
17conform his or her conduct to the requirements of law was impaired
18as a result of mental disease or defect, or the affects of intoxication.

19(i) The age of the defendant at the time of the crime.

20(j) Whether or not the defendant was an accomplice to the
21offense and his or her participation in the commission of the
22offense was relatively minor.

23(k) Whether the defendant was, or currently is, a member of the
24United States military and whether the defendant may be suffering
25from sexual trauma, traumatic brain injury, post-traumatic stress
26disorder, substance abuse, or mental health problems as a result
27of that service.

28(l) Any other circumstance that extenuates the gravity of the
29crime even though it is not a legal excuse for the crime.

30After having heard and received all of the evidence, and after
31having heard and considered the arguments of counsel, the trier
32of fact shall consider, take into account, and be guided by the
33aggravating and mitigating circumstances referred to in this section,
34and shall impose a sentence of death if the trier of fact concludes
35that the aggravating circumstances outweigh the mitigating
36circumstances. If the trier of fact determines that the mitigating
37circumstances outweigh the aggravating circumstances the trier
38of fact shall impose a sentence of confinement in state prison for
39a term of life without the possibility of parole.

P10   1

SEC. 2.  

Section 1 of this act amends the Briggs Initiative of 1978,
2Proposition 7, an initiative statute, and shall become effective only
3when submitted to and approved by the voters. The Secretary of
4State shall submit Section 1 of this act for approval by the voters
5at a statewide election in accordance with Section 9040 of the
6Elections Code.

end delete


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