Amended in Senate April 1, 2013

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 amended, 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.begin insert If that defendant is in substantial compliance with conditions of probation and has successfully participated in court-ordered treatment and services, among other requirements, existing law authorizes the court to grant the defendant specified forms of relief, including a dismissal of the action, as specified.end insert

begin insert

Existing law provides that a person who has been convicted of a felony, or who is addicted to the use of a narcotic drug, and who owns, purchases, receives, or has in possession or under custody or control any firearm is guilty of a felony.

end insert

This bill wouldbegin delete make a technical, nonsubstantive change to that provisionend deletebegin insert provide that dismissal of an accusation, information, or conviction, as specified, pursuant to the provisions described above relating to a defendant who served in the United States military, does not authorize that defendant to own, possess, or have in his or her custody or control any firearm, or prevent his or her conviction for being a felon or drug addict in possession of a firearmend insert.

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

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

P2    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
5prison and who alleges that he or she committed the offense as a
6result of sexual trauma, traumatic brain injury, post-traumatic stress
7disorder, substance abuse, or mental health problems stemming
8from service in the United States military, the court shall, prior to
9sentencing, make a determination as to whether the defendant was,
10or currently is, a member of the United States military and whether
11the defendant may be suffering from sexual trauma, traumatic
12brain injury, post-traumatic stress disorder, substance abuse, or
13mental health problems as a result of his or her service. The court
14may request, through existing resources, an assessment to aid in
15that determination.

16(b) If the court concludes that a defendant convicted of a
17criminal offense is a person described in subdivision (a), and if
18the defendant is otherwise eligible for probation and the court
19places the defendant on probation, the court may order the
20defendant into a local, state, federal, or private nonprofit treatment
21program for a period not to exceed that which the defendant would
22have served in state prison or county jail, provided the defendant
23agrees to participate in the program and the court determines that
24an appropriate treatment program exists.

25(c) If a referral is made to the county mental health authority,
26the county shall be obligated to provide mental health treatment
27services only to the extent that resources are available for that
28purpose, as described in paragraph (5) of subdivision (b) of Section
P3    15600.3 of the Welfare and Institutions Code. If mental health
2treatment services are ordered by the court, the county mental
3health agency shall coordinate appropriate referral of the defendant
4to the county veterans service officer, as described in paragraph
5(5) of subdivision (b) of Section 5600.3 of the Welfare and
6Institutions Code. The county mental health agency shall not be
7responsible for providing services outside its traditional scope of
8services. An order shall be made referring a defendant to a county
9mental health agency only if that agency has agreed to accept
10responsibility for the treatment of the defendant.

11(d) When determining the “needs of the defendant,” for purposes
12of Section 1202.7, the court shall consider the fact that the
13defendant is a person described in subdivision (a) in assessing
14whether the defendant should be placed on probation and ordered
15into a federal or community-based treatment service program with
16a demonstrated history of specializing in the treatment of mental
17health problems, including substance abuse, post-traumatic stress
18disorder, traumatic brain injury, military sexual trauma, and other
19related mental health problems.

20(e) A defendant granted probation under this section and
21committed to a residential treatment program shall earn sentence
22credits for the actual time the defendant serves in residential
23treatment.

24(f) The court, in making an order under this section to commit
25a defendant to an established treatment program, shall give
26preference to a treatment program that has a history of successfully
27treating veterans who suffer from sexual trauma, traumatic brain
28injury, post-traumatic stress disorder, substance abuse, or mental
29health problems as a result of that service, including, but not limited
30to, programs operated by the United States Department of Defense
31or the United States Veterans Administration.

32(g) The court and the assigned treatment program may
33collaborate with the Department of Veterans Affairs and the United
34States Veterans Administration to maximize benefits and services
35provided to the veteran.

36(h) (1) It is in the interests of justice to restore a defendant who
37acquired a criminal record due to a mental health disorder
38stemming from service in the United States military to the
39community of law abiding citizens. The restorative provisions of
40this subdivision shall apply to cases in which a trial court or a court
P4    1monitoring the defendant’s performance of probation pursuant to
2this section finds at a public hearing, held after not less than 15
3days’ notice to the prosecution, the defense, and any victim of the
4offense, that all of the following describe the defendant:

5(A) He or she was granted probation and was at the time that
6probation was granted a person described in subdivision (a).

7(B) He or she is in substantial compliance with the conditions
8of that probation.

9(C) He or she has successfully participated in court-ordered
10treatment and services to address the sexual trauma, traumatic
11brain injury, post-traumatic stress disorder, substance abuse, or
12mental health problems stemming from military service.

13(D) He or she does not represent a danger to the health and
14safety of others.

15(E) He or she has demonstrated significant benefit from
16court-ordered education, treatment, or rehabilitation to clearly
17show that granting restorative relief pursuant to this subdivision
18would be in the interests of justice.

19(2) When determining whether granting restorative relief
20pursuant to this subdivision is in the interests of justice, the court
21may consider, among other factors, all of the following:

22(A) The defendant’s completion and degree of participation in
23education, treatment, and rehabilitation as ordered by the court.

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

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

26(D) The defendant’s leadership and personal responsibility
27efforts.

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

30(3) If the court finds that a case satisfies each of the requirements
31described in paragraph (1), then the court may take any of the
32following actions by a written order setting forth the reasons for
33so doing:

34(A) Deem all conditions of probation to be satisfied, including
35fines, fees, assessment, and programs, and terminate probation
36prior to the expiration of the term of probation. This subparagraph
37does not apply to any court-ordered victim restitution.

38(B) Reduce an eligible felony to a misdemeanor pursuant to
39subdivision (b) of Section 17.

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

P5    1(4) Notwithstanding anything to the contrary in Section 1203.4,
2a dismissal of the action pursuant to this subdivision has the
3following effect:

4(A) Except as otherwise provided in this paragraph, a dismissal
5of the action pursuant to this subdivision releases the defendant
6from all penalties and disabilities resulting from the offense of
7which the defendant has been convicted in the dismissed action.

8(B) A dismissal pursuant to this subdivision does not apply to
9any of the following:

10(i) A conviction pursuant to subdivision (c) of Section 42002.1
11of the Vehicle Code.

12(ii) A felony conviction pursuant to subdivision (d) of Section
13261.5.

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

15(iv) A conviction pursuant to Section 288.

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

17(vi) A conviction pursuant to Section 288.5.

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

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

20(C) The defendant is not obligated to disclose the arrest on the
21dismissed action, the dismissed action, or the conviction that was
22set aside when information concerning prior arrests or convictions
23is requested to be given under oath, affirmation, or otherwise. The
24defendant may indicate that he or she has not been arrested when
25his or her only arrest concerns the dismissed action, except when
26the defendant is required to disclose the arrest, the conviction that
27was set aside, and the dismissed action in response to any direct
28question contained in any questionnaire or application for any law
29enforcement position.

30(D) A dismissal pursuant to this subdivision may, in the
31discretion of the court, order the sealing of police records of the
32arrest and court records of the dismissed action, thereafter viewable
33by the public only in accordance with a court order.

34(E) The dismissal of the action pursuant to this subdivision shall
35be a bar to any future action based on the conduct charged in the
36dismissed action.

37(F) In any subsequent prosecution for any other offense, a
38conviction that was set aside in the dismissed action may be
39pleaded and proved as a prior conviction and shall have the same
P6    1effect as if the dismissal pursuant to this subdivision had not been
2granted.

3(G) A conviction that was set aside in the dismissed action may
4be considered a conviction for the purpose of administratively
5revoking or suspending or otherwise limiting the defendant’s
6driving privilege on the ground of two or more convictions.

7(H) The defendant’s DNA sample and profile in the DNA data
8bank shall not be removed by a dismissal pursuant to this
9subdivision.

begin insert

10(I) Dismissal of an accusation, information, or conviction
11pursuant to this section does not authorize a defendant to own,
12possess, or have in his or her custody or control any firearm or
13prevent his or her conviction pursuant to Chapter 2 (commencing
14with Section 29800) of Division 9 of Title 4 of Part 6.

end insert


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