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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