BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              A
                             2013-2014 Regular Session               B

                                                                     2
                                                                     0
                                                                     9
          AB 2098 (Levine)                                           8
          As Amended May 29, 2014 
          Hearing date:  June 10, 2014
          Penal Code
          MK:mc

                            MILITARY PERSONNEL: VETERANS: 

                        SENTENCING: MITIGATING CIRCUMSTANCES  


                                       HISTORY

          Source:  Author

          Prior Legislation:SB 769 (Block) - Chapter 46, Statutes of 2013 
                         AB 2371 (Butler) - Chapter 403, Statutes of 2012 
                         AB 201 (Butler) - 2011, vetoed
                         AB 2611 (Butler) - 2012, vetoed
                         AB 674 (Salas) - Chapter 347, Statutes of 2010 
                         AB 2586 (Parra) - Chapter 788, Statutes of 2006 

          Support: California Council of Community Mental Health Agencies;  
                   National Association of Social Workers, California  
                   Chapter; Taxpayers for Improving Public Safety;  
                   California Public Defenders Association; California  
                   Attorneys for Criminal Justice 

          Opposition:None known

          Assembly Floor Vote:  Ayes 73 - Noes 0






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                                         KEY ISSUE
           
          SHOULD THE LAW REQUIRE 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?


                                       PURPOSE

          The purpose of this bill is to require 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.
                                          
           Existing law  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 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.  (Penal Code § 1170.9 (a).) 

           Existing law  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 from service 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.  (Penal Code 
          § 1170.9 (b).) 





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           Existing law  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."  (Penal  
          Code § 1203 (b).) 

           Existing law  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 Court  
          4.414.) 


           Existing law  sets forth specified circumstances and offenses  
          which make the defendant absolutely ineligible for probation.   
          (See e.g., Penal Code §§ 66 (c)(2); 667.61(h); 1203(k).) 


           Existing law  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., Penal Code 
          §§ 1203 (e); 1203.065 (b); 1203.073(b).) 

           Existing law  lists factors that may indicate the existence of  
          unusual circumstances warranting probation eligibility for  
          offenses deemed presumptively ineligible.  (Cal. Rules of Court  
          4.413.) 


           Existing law  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.  (Penal Code § 1170 (b).) 


           Existing law  provides that, in exercising discretion to select  
          one of the three authorized prison terms referred to in section  




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          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."  (Cal. Rules of Court  
          4.420(b).) 


           Existing law  enumerates circumstances in aggravation, relating  
          both to the crime and to the defendant, as specified.  (Cal.  
          Rules of Court 4.421.) 


           Existing law  enumerates circumstances in mitigation, relating  
          both to the crime and to the defendant, as specified.  (Cal.  
          Rules of Court 4.423.) 

           This bill  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. 

           This bill  provides that if the court places a defendant because  
          of his or her veteran status the court may order the defendant  
          into a local, state, federal, or private nonprofit treatment  
          program for a period not to exceed that period for which the  
          defendant would have served in state prison r county jail,  
          provided the defendant agrees to participate in the program and  
          the court determines an appropriate program exists.

           This bill  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. 




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           This bill  provides that 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.

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.   

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy, known as "ROCA"  
          (which stands for "Receivership/ Overcrowding Crisis  
          Aggravation"), the Committee held measures that created a new  
          felony, expanded the scope or penalty of an existing felony, or  
          otherwise increased the application of a felony in a manner  
          which could exacerbate the prison overcrowding crisis.  Under  
          these principles, ROCA was applied as a content-neutral,  
          provisional measure necessary to ensure that the Legislature did  
          not erode progress towards reducing prison overcrowding by  
          passing legislation, which would increase the prison population.  
            

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order requiring the state to reduce its prison  
          population to 137.5 percent of design capacity.  The State  
          submitted that the, ". . .  population in the State's 33 prisons  
          has been reduced by over 24,000 inmates since October 2011 when  
          public safety realignment went into effect, by more than 36,000  




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          inmates compared to the 2008 population . . . , and by nearly  
          42,000 inmates since 2006 . . . ."  Plaintiffs opposed the  
          state's motion, arguing that, "California prisons, which  
          currently average 150% of capacity, and reach as high as 185% of  
          capacity at one prison, continue to deliver health care that is  
          constitutionally deficient."  In an order dated January 29,  
          2013, the federal court granted the state a six-month extension  
          to achieve the 137.5 % inmate population cap by December 31,  
          2013.  

          The Three-Judge Court then ordered, on April 11, 2013, the state  
          of California to "immediately take all steps necessary to comply  
          with this Court's . . . Order . . . requiring defendants to  
          reduce overall prison population to 137.5% design capacity by  
          December 31, 2013."  On September 16, 2013, the State asked the  
          Court to extend that deadline to December 31, 2016.  In  
          response, the Court extended the deadline first to January 27,  
          2014, and then February 24, 2014, and ordered the parties to  
          enter into a meet-and-confer process to "explore how defendants  
          can comply with this Court's June 20, 2013, Order, including  
          means and dates by which such compliance can be expedited or  
          accomplished and how this Court can ensure a durable solution to  
          the prison crowding problem."

          The parties were not able to reach an agreement during the  
          meet-and-confer process.  As a result, the Court ordered  
          briefing on the State's requested extension and, on February 10,  
          2014, issued an order extending the deadline to reduce the  
          in-state adult institution population to 137.5% design capacity  
          to February 28, 2016.  The order requires the state to meet the  
          following interim and final population reduction benchmarks:

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and
                 137.5% of design bed capacity by February 28, 2016. 

          If a benchmark is missed the Compliance Officer (a position  
          created by the February 10, 2016 order) can order the release of  
          inmates to bring the State into compliance with that benchmark.   




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          In a status report to the Court dated May 15, 2014, the state  
          reported that as of May 14, 2014, 116,428 inmates were housed in  
          the State's 34 adult institutions, which amounts to 140.8% of  
          design bed capacity, and 8,650 inmates were housed in  
          out-of-state facilities.   

          The ongoing prison overcrowding litigation indicates that prison  
          capacity and related issues concerning conditions of confinement  
          remain unresolved.  While real gains in reducing the prison  
          population have been made, even greater reductions may be  
          required to meet the orders of the federal court.  Therefore,  
          the Committee's consideration of ROCA bills -bills that may  
          impact the prison population - will be informed by the following  
          questions:

                 Whether a measure erodes realignment and impacts the  
               prison population;
                 Whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 Whether a bill corrects a constitutional infirmity or  
               legislative drafting error; 
                 Whether a measure proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy; and,
                 Whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.

                                      COMMENTS

          1.    Need for This Bill  

          According to the author:

               There is a demonstrable link between veterans with  
               mental health problems as a result of their service and  




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               increased levels of incarceration.  In spite of this  
               link, California law currently fails to require the  
               consideration of mental health problems associated with  
               military service as a mitigating factor in certain  
               criminal cases.  
               AB 2098 remedies this deficiency. 

               AB 2098 simply requires a court to consider military  
               status and the presence of PTSD, TBI and other mental  
               health problems induced by that service as factors of  
               mitigation in determinate sentencing. 

               AB 2098 is similar to precedent that was set in 1982  
               when the Legislature passed AB 2989, and later updated  
               1170.9 to allow courts to consider a treatment program  
               in lieu of probation if the court makes a determination  
               that defendant was, or currently is, a member of the  
               United States military and 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. 

               AB 2098 does not require a judge to grant probation or  
               to impose the lower prison term it simply directs the  
               judge to consider such circumstances in determining  
               whether or not to grant probation, or whether to impose  
               the lower prison term for convictions and enhancements  
               punished under the determinate sentencing law.

          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 include PTSD, depression, anxiety,  




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          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.) 


























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          3.    Consideration of Military Related Trauma When Determining  
          Probation  

          When imposing sentence for a defendant convicted of a felony,  
          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 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. 


          4.    Military Related Trauma as a Consideration in Sentencing  

          A typical determinate felony sentence is a triad with a lower  
          middle and upper term.  Until 2007 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  




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          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.) 

          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.  (Penal  
          Code § 1170 (b); see also Cal. Rules of Court 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   
          4.420(b), see also Penal 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  
          4.421 and 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 determining the appropriate sentence.

          This bill also provides that consideration of trauma from  
          military status does not preclude the court considering similar  











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          trauma that may have occurred due to other causes.


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