Senate BillNo. 769


Introduced by Senator Block

February 22, 2013


An act to amend Section 1170.9 of the Penal Code, relating to veterans.

LEGISLATIVE COUNSEL’S DIGEST

SB 769, as introduced, Block. Veterans: criminal defendants.

Existing law requires a 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, 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 that service.

This bill would make a technical, nonsubstantive change to that provision.

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

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

P1    1

SECTION 1.  

Section 1170.9 of the Penal Code is amended to
2read:

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
P2    1prison and who alleges that he or she committed the offense as a
2result of sexual trauma, traumatic brain injury, post-traumatic stress
3disorder, substance abuse, or mental health problems stemming
4from service in the United States military, the court shall, prior to
5sentencing, make a determination as to whether the defendant was,
6or currently is, a member of the United States military and whether
7the defendant may be suffering from sexual trauma, traumatic
8brain injury, post-traumatic stress disorder, substance abuse, or
9mental health problems as a result ofbegin delete thatend deletebegin insert his or herend insert service. The
10court may request, through existing resources, an assessment to
11aid in that determination.

12(b) If the court concludes that a defendant convicted of a
13criminal offense is a person described in subdivision (a), and if
14the defendant is otherwise eligible for probation and the court
15places the defendant on probation, the court may order the
16defendant into a local, state, federal, or private nonprofit treatment
17program for a period not to exceed that which the defendant would
18have served in state prison or county jail, provided the defendant
19agrees to participate in the program and the court determines that
20an appropriate treatment program exists.

21(c) If a referral is made to the county mental health authority,
22the county shall be obligated to provide mental health treatment
23services only to the extent that resources are available for that
24purpose, as described in paragraph (5) of subdivision (b) of Section
255600.3 of the Welfare and Institutions Code. If mental health
26treatment services are ordered by the court, the county mental
27health agency shall coordinate appropriate referral of the defendant
28to the county veterans service officer, as described in paragraph
29(5) of subdivision (b) of Section 5600.3 of the Welfare and
30Institutions Code. The county mental health agency shall not be
31responsible for providing services outside its traditional scope of
32services. An order shall be made referring a defendant to a county
33mental health agency only if that agency has agreed to accept
34responsibility for the treatment of the defendant.

35(d) When determining the “needs of the defendant,” for purposes
36of Section 1202.7, the court shall consider the fact that the
37defendant is a person described in subdivision (a) in assessing
38whether the defendant should be placed on probation and ordered
39into a federal or community-based treatment service program with
40a demonstrated history of specializing in the treatment of mental
P3    1health problems, including substance abuse, post-traumatic stress
2disorder, traumatic brain injury, military sexual trauma, and other
3related mental health problems.

4(e) A defendant granted probation under this section and
5committed to a residential treatment program shall earn sentence
6credits for the actual time the defendant serves in residential
7treatment.

8(f) The court, in making an order under this section to commit
9a defendant to an established treatment program, shall give
10preference to a treatment program that has a history of successfully
11treating veterans who suffer from sexual trauma, traumatic brain
12injury, post-traumatic stress disorder, substance abuse, or mental
13health problems as a result of that service, including, but not limited
14to, programs operated by the United States Department of Defense
15or the United States Veterans Administration.

16(g) The court and the assigned treatment program may
17collaborate with the Department of Veterans Affairs and the United
18States Veterans Administration to maximize benefits and services
19provided to the veteran.

20(h) (1) It is in the interests of justice to restore a defendant who
21acquired a criminal record due to a mental health disorder
22stemming from service in the United States military to the
23community of law abiding citizens. The restorative provisions of
24this subdivision shall apply to cases in which a trial court or a court
25monitoring the defendant’s performance of probation pursuant to
26this section finds at a public hearing, held after not less than 15
27days’ notice to the prosecution, the defense, and any victim of the
28offense, that all of the following describe the defendant:

29(A) He or she was granted probation and was at the time that
30probation was granted a person described in subdivision (a).

31(B) He or she is in substantial compliance with the conditions
32of that probation.

33(C) He or she has successfully participated in court-ordered
34treatment and services to address the sexual trauma, traumatic
35brain injury, post-traumatic stress disorder, substance abuse, or
36mental health problems stemming from military service.

37(D) He or she does not represent a danger to the health and
38safety of others.

39(E) He or she has demonstrated significant benefit from
40court-ordered education, treatment, or rehabilitation to clearly
P4    1show that granting restorative relief pursuant to this subdivision
2would be in the interests of justice.

3(2) When determining whether granting restorative relief
4pursuant to this subdivision is in the interests of justice, the court
5may consider, among other factors, all of the following:

6(A) The defendant’s completion and degree of participation in
7education, treatment, and rehabilitation as ordered by the court.

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

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

10(D) The defendant’s leadership and personal responsibility
11efforts.

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

14(3) If the court finds that a case satisfies each of the requirements
15described in paragraph (1), then the court may take any of the
16following actions by a written order setting forth the reasons for
17so doing:

18(A) Deem all conditions of probation to be satisfied, including
19fines, fees, assessment, and programs, and terminate probation
20prior to the expiration of the term of probation. This subparagraph
21does not apply to any court-ordered victim restitution.

22(B) Reduce an eligible felony to a misdemeanor pursuant to
23subdivision (b) of Section 17.

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

25(4) Notwithstanding anything to the contrary in Section 1203.4,
26a dismissal of the action pursuant to this subdivision has the
27following effect:

28(A) Except as otherwise provided in this paragraph, a dismissal
29of the action pursuant to this subdivision releases the defendant
30from all penalties and disabilities resulting from the offense of
31which the defendant has been convicted in the dismissed action.

32(B) A dismissal pursuant to this subdivision does not apply to
33any of the following:

34(i) A conviction pursuant to subdivision (c) of Section 42002.1
35of the Vehicle Code.

36(ii) A felony conviction pursuant to subdivision (d) of Section
37261.5.

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

39(iv) A conviction pursuant to Section 288.

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

P5    1(vi) A conviction pursuant to Section 288.5.

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

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

4(C) The defendant is not obligated to disclose the arrest on the
5dismissed action, the dismissed action, or the conviction that was
6set aside when information concerning prior arrests or convictions
7is requested to be given under oath, affirmation, or otherwise. The
8defendant may indicate that he or she has not been arrested when
9his or her only arrest concerns the dismissed action, except when
10the defendant is required to disclose the arrest, the conviction that
11was set aside, and the dismissed action in response to any direct
12question contained in any questionnaire or application for any law
13enforcement position.

14(D) A dismissal pursuant to this subdivision may, in the
15discretion of the court, order the sealing of police records of the
16arrest and court records of the dismissed action, thereafter viewable
17by the public only in accordance with a court order.

18(E) The dismissal of the action pursuant to this subdivision shall
19be a bar to any future action based on the conduct charged in the
20dismissed action.

21(F) In any subsequent prosecution for any other offense, a
22conviction that was set aside in the dismissed action may be
23pleaded and proved as a prior conviction and shall have the same
24effect as if the dismissal pursuant to this subdivision had not been
25granted.

26(G) A conviction that was set aside in the dismissed action may
27be considered a conviction for the purpose of administratively
28revoking or suspending or otherwise limiting the defendant’s
29driving privilege on the ground of two or more convictions.

30(H) The defendant’s DNA sample and profile in the DNA data
31bank shall not be removed by a dismissal pursuant to this
32subdivision.



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