Amended in Senate May 29, 2014

Amended in Assembly March 24, 2014

California Legislature—2013–14 Regular Session

Assembly Bill No. 2098

Introduced by Assembly Member Levine

February 20, 2014

An act to amend Section 1170.9 of, and to add Section 1170.91 to, the Penal Code, relating to sentencing.

LEGISLATIVE COUNSEL’S DIGEST

AB 2098, as amended, Levine. Military personnel: veterans: sentencing: mitigating circumstances.

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.

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.

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.

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. begin insert The bill would provide that this consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health due to other causes as evidence or factors in mitigation. end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

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

SECTION 1.  

Section 1170.9 of the Penal Code is amended to
read:

1170.9.  

(a) 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, the court shall, prior to
sentencing, make a determination 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 his or her service. The court
may request, through existing resources, an assessment to aid in
that determination.

(b) (1) If the court concludes that a defendant convicted of a
criminal offense is a person described in subdivision (a), and if
the defendant is otherwise eligible for probation, the court shall
consider the circumstances described in subdivision (a) as a factor
in favor of granting probation.

(2) If 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 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.

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

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

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

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

(g) The court and the assigned treatment program may
collaborate with the Department of Veterans Affairs and the United
States Department of Veterans Affairs to maximize benefits and
services provided to the veteran.

(h) (1) 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. The restorative provisions of
this subdivision shall apply to cases in which a trial court or a court
monitoring the defendant’s performance of probation pursuant to
this section finds at a public hearing, held after not less than 15
days’ notice to the prosecution, the defense, and any victim of the
offense, that all of the following describe the defendant:

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

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

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

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

(E) He or 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.

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

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

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

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

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

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

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

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

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

(C) Grant relief in accordance with Section 1203.4.

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

(A) Except as otherwise provided in this paragraph, a dismissal
of the action pursuant to 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.

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

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

(ii) A felony conviction pursuant to subdivision (d) of Section
261.5.

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

(iv) A conviction pursuant to Section 288.

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

(vi) A conviction pursuant to Section 288.5.

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

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

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

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

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

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

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

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

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

SEC. 2.  

Section 1170.91 is added to the Penal Code, to read:

1170.91.  

If the court 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, the court shall
consider the circumstance as a factor in mitigation when imposing
a term under subdivision (b) of Section 1170. begin insert This consideration
does not preclude the court from considering similar trauma,
injury, substance abuse, or mental health problems due to other
causes, as evidence or factors in mitigation. end insert