BILL ANALYSIS Ó
AB 2098
Page 1
Date of Hearing: April 1, 2014
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2098 (Levine) - As Amended: March 24, 2014
SUMMARY : Requires the court to consider a defendant's status as
a veteran suffering from post-traumatic stress disorder (PTSD)
or other forms of trauma when making specified sentencing
determinations. Specifically, this bill :
1)Requires the court to consider a defendant's status as a
veteran suffering from sexual trauma, traumatic brain injury,
PTSD, substance abuse, or other mental health problems as
result of his or her military service, as a factor in favor of
granting probation.
2)Requires the court to consider a defendant's status as a
combat veteran suffering from sexual trauma, traumatic brain
injury, PTSD, substance abuse, or other mental health problems
as a result of his or her military service, as a factor in
mitigation when choosing whether to impose the lower, middle,
or upper term.
EXISTING LAW :
1)Requires the court, in the case of a 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, to determine whether the defendant was a member of
the military who served in combat and to assess whether the
defendant suffers from PTSD, substance abuse, or psychological
problems as a result of that service. (Pen. Code, § 1170.9,
subd. (a).)
2)States that if the court concludes that a defendant convicted
of a criminal offense was a member of the military suffering
from PTSD, substance abuse, or psychological problems stemming
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from service in a combat theater 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, non-profit 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. Code, § 1170.9, subd. (b).)
3)Requires the court, in any case involving a felony for which
the defendant is eligible for probation, to refer the matter
to the probation officer to prepare a report "including his or
her recommendations as to the granting or denying of probation
and the conditions of probation, if granted." (Pen. Code, §
1203, subd. (b).)
4)Lists criteria affecting the decision to grant or deny
probation, include facts relating to the crime and facts
relating to the defendant, as specified. (Cal. Rules of Ct.,
rule 4.414.)
5)Sets forth specified circumstances and offenses which make the
defendant absolutely ineligible for probation. (See e.g.,
Pen. Code, §§ 667, subd. (c)(2); 667.61, subd. (h); 1203,
subd. (k).)
6)Sets forth specified circumstances and offenses in which the
defendant is presumptively ineligible for probation and in
which probation cannot be granted "except in unusual cases
where the interests of justice would best be served." (See
e.g., Pen. Code, §§ 1203, subd. (e); 1203.065, subd. (b);
1203.073, subd. (b).)
7)Lists factors that may indicate the existence of unusual
circumstances warranting probation eligibility for offenses
deemed presumptively ineligible. (Rules of Court, rule
4.413.)
8)Provides that when a judgment of imprisonment is to be imposed
and the statute specifies three possible terms, the choice of
the appropriate term rests within the sound discretion of the
court. (Pen. Code, § 1170, subd. (b).)
9)Provides that, in exercising discretion to select one of the
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three authorized prison terms referred to in section 1170(b),
"the sentencing judge may consider circumstances in
aggravation or mitigation, and any other factor reasonably
related to the sentencing decision. The relevant
circumstances may be obtained from the case record, the
probation officer's report, other reports and statements
properly received, statements in aggravation or mitigation,
and any evidence introduced at the sentencing hearing."
(California Rules of Court, Rule 4.420(b).)
10)Enumerates circumstances in aggravation, relating both to the
crime and to the defendant, as specified. (California Rules of
Court, Rule 4.421.)
11)Enumerates circumstances in mitigation, relating both to the
crime and to the defendant, as specified. (California Rules
of Court, Rule 4.423.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Of the 2.6
million Americans returning from service in Iraq and
Afghanistan as many as 20% have posttraumatic stress disorder
(PTSD). One of the unfortunate consequences of PTSD is an
increased propensity for criminal behavior. This is
tragically borne out by the fact that among incarcerated
veterans, veterans from the most recent conflict are three
times more likely to have combat-related PTSD. There is a
clear connection between PTSD and other combat related mental
health problems and incarceration. As a state, we must do
more to recognize the role these mental health problems can
play in criminal activity. AB 2098 recognizes this by adding
service induced mental health issues to the list of factors
that must be weighed in determinate sentencing cases."
2)UCSF and San Francisco VA Medical Center Study on Veterans and
PTSD : The Journal of Traumatic Stress, Vol. 23, No. 1,
February 2010, discussed a study conducted by the University
of California-San Francisco and the San Francisco Veterans
Affairs Medical Center. The study found that approximately
one-third of the 238,000 veterans returning from Iraq and
Afghanistan in the study population received one or more
mental health or psychosocial diagnoses. The diagnoses
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include PTSD, depression, anxiety, adjustment disorder,
alcohol use disorder, and substance use disorder.
(http://www.healthemotions.org/downloads/marmar4.pdf)
Other studies indicate that PTSD may drive or exacerbate drug
and alcohol abuse by veterans. (Stress & Substance Abuse: A
Special Report, National Institute on Drug Abuse (Sept. 12,
2005).) Mental health and substance abuse problems are linked
to future incarceration in veterans. 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 Justice, 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 p. 5.)
3)Incarcerated Veterans in California : Data on the number of
incarcerated veterans is difficult to obtain. One of the
reasons is because, until recently, this information was
self-reported. However, the California Department of
Corrections and Rehabilitation (CDCR) has informed this
Committee that as of February 2014, CDCR can now verify prior
military service via a data exchange with the U.S. Department
of Veterans Affairs (USDVA). As of February 2014, there are
4,521 currently-incarcerated inmates at CDCR verified by the
USDVA as having prior military service.
After realignment, many convicted defendants are now serving
sentences in county jails rather than at CDCR. In August
2012, the NBC Bay Area Investigative Unit discovered that many
counties do not track data on inmate veterans. "Reporters and
producers contacted law enforcement in every Bay Area county
and discovered that only Santa Clara and San Francisco
counties track the veterans in their jails."
(.) Of the information that was available, the
results showed that in Santa Clara County as many as 60
veterans a day have been incarcerated in the last year and a
half. And in San Francisco County, as many as 97 veterans a
day were incarcerated during the same time. (Ibid.)
The Website of the California Veterans Legal Task Force
provides some information about veteran defendants in San
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Diego County: "San Diego County is home to the largest
concentration of military activity in the world, with 137,000
active duty military personnel, 250,000 veteran residents and
the largest discharged Operation Iraqi Freedom and Operation
Enduring Freedom (Afghanistan) veteran population in the
nation. About 38,000 veterans in the county have recent
combat service, the highest concentration of any county in the
U.S. and almost double the number residing in Los Angeles. Of
that number, VA Research indicates that approximately 11,550
will suffer a diagnosable mental condition related to their
service. Studies from the Bureau of Justice Administration
can be used to predict that almost 5,800 of them will be
incarcerated for criminal activity, 1,900 for felony crimes.
At present an average of 100 self-identified military veterans
are booked into San Diego County Jail each week."
(.)
4)Determinate Sentencing : Most felonies are punished under the
Determinate Sentencing Law (DSL). (Pen. Code, § 1170.) The
DSL covers felonies for which three specified terms are
provided in statute; crimes declared to be felonies but for
which there is no specified term; and crimes simply made
punishable by imprisonment in the state prison or in the
county jail pursuant to realignment. The latter two
categories are punishable by 16 months (low term), 2 years
(middle term), or 3 years (upper term).
When imposing sentence for a defendant convicted of a felony
covered by the DSL, the trial court must first consider
whether the defendant is eligible for probation. Probation is
the suspension of the imposition or execution of the sentence
and the conditional release of the defendant into the
community under the supervision of a probation officer. If
the defendant is eligible for probation, the court must decide
whether to grant probation. The criteria affecting whether
probation should be granted are set out in rule 4.414 of the
California Rules of Court. There are two categories of
factors, those relating to the nature of the crime and those
relating to the defendant. Factors relating to the defendant
include: any prior record of criminal conduct; prior
performance on probation or parole; willingness and ability to
comply with the terms of probation; the likely effect of
imprisonment on the defendant and his or her dependents;
adverse collateral consequences on the defendant's life
resulting from the felony conviction; remorsefulness; and the
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likelihood that if not imprisoned the defendant will be a
danger to others.
This bill would require the court to consider a defendant's
status as a veteran suffering from sexual trauma, traumatic
brain injury, PTSD, substance abuse, or other mental health
problems as result of his or her military service as a factor
in favor of granting probation.
If the court chooses to grant probation, the court must decide
whether to impose a sentence, but suspend its execution or
whether to suspend imposition of the sentence altogether.
Upon the revocation of probation, when the execution of the
sentence was suspended, the judge is limited to the sentence
that was previously pronounced.
If the court chooses to grant probation but impose the
sentence and suspend its execution, or if probation is denied,
then the judge must decide on the length of the term. Penal
Code Section 1170, subdivision (b), provides in part: "When a
judgment of imprisonment is to be imposed and the statute
specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court....
The court shall select the term which, in the court's
discretion, best serves the interests of justice."
It used to be the case that the middle term was the
presumptive term unless the judge determined there were
factors of aggravation or mitigation to enhance or reduce the
punishment. However, in Cunningham v. California (2007) 549
U.S. 270, the United States Supreme Court held California's
Determinate Sentencing Law (DSL) violated a defendant's right
to trial by jury by placing sentence-elevating fact finding
within the judge's province. (Id. at p. 274.) The DSL
authorized the court to increase the defendant's sentence by
finding facts not reflected in the jury verdict.
Specifically, the trial judge could find factors in
aggravation by a preponderance of evidence to increase the
offender's sentence from the presumptive middle term to the
upper term and, as such, was constitutionally flawed. The
Court stated, "Because the DSL authorizes the judge, not the
jury, to find the facts permitting an upper term sentence, the
sentence cannot withstand measurement against our Sixth
Amendment precedent." (Id. at p. 293.)
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SB 40 (Romero) - Chapter 3, Statutes of 2007, changed the DSL
so that the middle term is no longer the required term in
absence of mitigating or aggravating factors. Now the judge
is free to choose any of the three terms, using valid
discretion. The judge must still state reasons for the term
selected. (Pen. Code, § 1170, subd. (b); see also Cal. Rules
of Court, rules 4.406(b)(4) , 4.420(e).) "[T]he sentencing
judge may consider circumstances in aggravation or mitigation,
and any other factor reasonably related to the sentencing
decision. The relevant circumstances may be obtained from the
case record, the probation officer's report, other reports and
statements properly received, statements in aggravation or
mitigation, and any evidence introduced at the sentencing
hearing." (Cal. Rules of Court, rule 4.420(b), see also Pen.
Code, § 1170, subd. (b).) The Rules of Court list both
aggravating factors and mitigating factors. In each category
there are factors relating to the crime and factors relating
to the defendant. (See Cal. Rules of Court, rule 4.421 and
rule 4.423.)
This bill would require the court to consider a defendant's
status as a veteran suffering from sexual trauma, traumatic
brain injury, PTSD, substance abuse, or other mental health
problems as result of his or her military service as a factor
in mitigation when choosing the term of imprisonment.
5)Argument in Support : The California Public Defenders
Association notes, "Existing Penal Code section 1170.9
recognizes that judges should consider providing veterans with
treatment when they are granted probation, at least in the
circumstances where they suffer from certain mental illnesses
or impairments that may have been the result of their military
service. This statute, while important, is insufficient in
that it fails to urge judges to grant probation in these
particular circumstances. In fact, nothing in existing law
specifically provides for any consideration of these
circumstances in deciding whether or not to grant probation to
a veteran, or in selecting the appropriate sentence for
veterans who are being sentenced to prison. Presently judges
are not required to consider military service as a factor in
favor of granting probation, or in choosing the appropriate
prison or county jail term for a veteran convicted of a
felony. This is the case even where the veteran suffers from
mental illness or impairments stemming from his or her
military service and those circumstances are related to his or
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her commission of the felony offense.
"Of the 2.6 million Americans deployed to Iraq and Afghanistan
since October 2001, as many as 20% are expected to develop
service-induced mental health problems. Human decency and the
interests of justice require that veterans who suffer mental
illness as the result of their service should receive some
consideration for their service related impairments in the
context of metering out an appropriate punishment. Men and
women who risked their lives for our country deserve- at the
very least- the recognition that their sacrifices will be
considered in assessing their appropriate level of punishment
if the crime for which they are convicted may have been
influenced by their service related impairments. Further,
their history of military service demonstrates that they are
good candidates for rehabilitation and are likely to return to
society as productive, law abiding members of society.
"Finally, the proposed legislation in no way requires a judge to
grant probation or impose a lesser sentence; rather, it only
requires a judge to meaningfully and honestly consider their
service, and only when they suffer from mental illness or
impairment that may be the result of their service. Thus, if
a judge truly believes that the particular veteran is
deserving of a harsh sentence, the judge has the power to
impose that sentence, even under this legislation."
6)Current Legislation :
a) AB 2263 (Bradford) requires a parole agent to be
appointed as a veterans service officer at each facility
that is under the jurisdiction of the Department of
Corrections and Rehabilitation. AB 2263 is pending hearing
in the Committee on Veteran Affairs.
b) AB 2357 (Skinner) requires CDCR to consider an inmate's
military service as part of their assessments used to place
an inmate in programs that will aid in his or her reentry
to society. AB 2357 is pending hearing in this Committee.
c) SB 1227 (Hancock) authorizes pretrial diversion for
members of the military for specified offenses. SB 1227 is
pending hearing in the Senate Public Safety Committee.
7)Prior Legislation :
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a) SB 769 (Block), Chapter 46, Statutes of 2013, clarifies
that dismissal of a case under provisions for veteran
defendants who had military-service-related mental health
issues does not restore a defendant's right to possess a
firearm, and does not prevent conviction for being a felon
or drug addict in possession of a firearm.
b) AB 2371 (Butler), Chapter 403, Statutes of 2012,
provides restorative relief to a veteran defendant who
acquires a criminal record due to a mental disorder
stemming from military service.
c) AB 201 (Butler) and AB 2611 (Butler), of the 2011-12
Legislative Session, authorized superior courts to develop
and implement veterans' courts. Both bills were vetoed.
d) AB 674 (Salas), Chapter 347, Statutes of 2010, allows a
court to order a defendant who suffers from sexual trauma,
traumatic brain injury, PTSD, substance abuse, or mental
health problems as a result of military service into a
treatment program or veteran's court for a period not to
exceed that which the defendant would have served in state
prison or jail.
e) AB 2586 (Parra), Chapter 788, Statutes of 2006, allows
the court to consider a treatment program, in lieu of
incarceration, as a condition of probation in cases
involving military veterans who suffer from PTSD, substance
abuse, or psychological problems stemming from their
military service.
REGISTERED SUPPORT / OPPOSITION :
Support
California Council of Community Mental Health Agencies
California Public Defenders Association
National Association of Social Workers - California Chapter
Vietnam Veterans of America - California State Council
Opposition
None
AB 2098
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Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744