BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
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SB 769 (Block)
As Amended April 1, 2013
Hearing date: April 30, 2013
Penal Code
MK:mc
VETERANS: CRIMINAL DEFENDANTS
HISTORY
Source: San Diego District Attorney Bonnie Dumanis
Prior Legislation: AB 2371 (Butler) - Chapter 403, Stats. 2012
AB 201 (Butler) - vetoed, 2011
AB 1295 (Salas) - vetoed, 2010
AB 2671 (Salas) - vetoed, 2008
SB 851 (Steinberg) - vetoed, 2007
AB 1542 (Parra) - vetoed, 2006
AB 2586 (Parra) - Chapter 788, Stats.
2006
Support: California District Attorneys Association
Opposition:American Legion-Department of California;
AMVETS-Department of California; California State
Commanders Veterans Council; Vietnam Veterans of
America-California State Council; Taxpayers for
Improving Public Safety
KEY ISSUE
SHOULD THE LAW BE CLARIFIED TO PROVIDE THAT A VETERAN WHO HAS BEEN
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FOUND TO HAVE COMMITTED A CRIME BECAUSE OF A MILITARY SERVICE
RELATED MENTAL HEALTH INJURY AND HAS HAD THE CASE DISMISSED AFTER
PROBATION AND TREATMENT DOES NOT REGAIN HIS OR HER RIGHT TO CARRY A
GUN?
PURPOSE
The purpose of a this bill is to clarify that when a case is
dismissed after probation under a provision for veterans who
have suffered service related mental health problems, the
veteran still does not have the right to carry a firearm.
Existing law provides for diversion from criminal prosecution
through a deferred entry of judgment (DEJ) and sentence when an
open case is before any court for specified violations of drug
possession, paraphernalia possession, being in the presence of
drug use, misdemeanor transportation of marijuana, or harvesting
of marijuana for personal use; and it appears to the prosecuting
attorney that all of the following apply to the defendant:
The defendant has no conviction for any offense involving
controlled substances prior to the alleged commission of the
charged offense;
the offense charged did not involve a crime of violence or
threatened violence;
There is no evidence of a violation relating to narcotics or
restricted dangerous drugs other than a violation of the
sections listed in this subdivision;
The defendant's record does not indicate that probation or
parole has ever been revoked without thereafter being
completed;
The defendant's record does not indicate that he or she has
successfully completed or been terminated from diversion or
DEJ pursuant to this chapter within five years prior to the
alleged commission of the charged offense; and,
The defendant has no prior felony conviction within five years
prior to the alleged commission of the charged offense (Penal
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Code § 1000):
Existing law effectuates July 1, 2001, except as specified, a
person convicted of a non-violent drug possession offense shall
receive probation with completion of a drug treatment program as
a condition of probation. (Penal Code §§ 1210, 1210.1, added by
Prop. 36, approved November 7, 2000.)
Existing law provides that certain defendants and parolees are
ineligible for the Substance Abuse Treatment Crime Prevention
Act of 2000 (SACPA), enacted by Proposition 36. These
ineligible persons include persons who possessed drugs other
than for personal use; committed other offenses along with a
drug possession offense; used a firearm while in possession or
under the influence of heroin, cocaine or PCP; previously
convicted of a serious felony and have not been free of custody
or commission of felonies or dangerous misdemeanors within five
years (parolees may not have ever been convicted of a serious
felony); participated in two prior Proposition 36 treatment
programs; and refused treatment. (Penal Code § 1210.03.)
Existing law allows a superior court, with the concurrence of
the prosecuting attorney of the county, may create a "Back on
Track" deferred entry of judgment reentry program aimed at
preventing recidivism among first-time nonviolent felony drug
offenders. No defendant who has been convicted of a violation
of a sex offense shall be eligible for the program established
in this chapter. When creating this program, the prosecuting
attorney, together with the presiding judge and a representative
of the criminal defense bar selected by the presiding judge of
the superior court may agree to establish a "Back on Track"
deferred entry of judgment program pursuant to the provisions,
as specified. (Penal Code § 1000.8.)
Existing law applies this chapter whenever a case is before any
court upon an accusatory pleading at any stage of the criminal
proceedings, for any person who has been evaluated by a regional
center for the developmentally disabled and who is determined to
be a person with a cognitive developmental disability by the
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regional center, and who therefore is eligible for its services.
This chapter applies to any offense which is charged as or
reduced to a misdemeanor, except that diversion shall not be
ordered when the defendant previously has been diverted under
this chapter within two years prior to the present criminal
proceedings. (Penal Code § 1001.21.)
Existing law mandates in any case in which a defendant has
fulfilled the conditions of probation for the entire period of
probation, or has been discharged prior to the termination of
the period of probation, or in any other case in which a court,
in its discretion and the interests of justice, determines that
a defendant should be granted the relief available under this
section, the defendant shall, at any time after the termination
of the period of probation, if he or she is not then serving a
sentence for any offense, on probation for any offense, or
charged with the commission of any offense, be permitted by the
court to withdraw his or her plea of guilty or plea of nolo
contendere and enter a plea of not guilty; or, if he or she has
been convicted after a plea of not guilty, the court shall set
aside the verdict of guilty; and, in either case, the court
shall thereupon dismiss the accusations or information against
the defendant and except as noted below, he or she shall
thereafter be released from all penalties and disabilities
resulting from the offense of which he or she has been
convicted, except as provided in existing law. The order shall
state, and the probationer shall be informed, that the order
does not relieve him or her of the obligation to disclose the
conviction in response to any direct question contained in any
questionnaire or application for public office, for licensure by
any state or local agency, or for contracting with the
California State Lottery. (Penal Code § 1203.4 (a)(1).)
Existing law provides that dismissal of an accusation,
information, or conviction pursuant to Penal Code section 1170.9
does not authorize a defendant to own, possess or have in his or
her custody or control any firearm or prevent his or convictions
for being a felon owning, purchasing receiving or possessing a
firearm. (Penal Code § 1203.4(a)(2).)
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Existing law states that in the case of any 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, the
court shall, prior to sentencing, hold a hearing to determine
whether the defendant was a member of the military forces of the
United States who served in combat and shall assess whether the
defendant suffers from PTSD, substance abuse, or psychological
problems as a result of that service. (Penal Code § 1170.9,
subd. (a).)
Existing law allows a defendant convicted of a criminal offense
who committed the offense as a result of PTSD, substance abuse,
or psychological problems stemming from service in a combat
theater in the United States military, 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 nonprofit 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, subd. (b).)
Existing law provides that the restorative relief provision
shall apply to cases in which a trial court or a court
monitoring the defendant's performance on probation finds at a
public hearing that the defendant meets the following
eligibility criteria:
he or she was granted probation, and at the time that
probation was granted had alleged the offense was committed
as a result sexual trauma, traumatic brain injury,
post-traumatic stress disorder (PTSD), substance abuse, or
mental health problems stemming from military service;
he or she is in substantial compliance with the
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conditions of that probation;
he or she has successfully participated in court-ordered
treatment and services to address the sexual trauma,
traumatic brain injury, PTSD, substance abuse, or mental
health problems stemming from military service;
he or she does not represent a danger to the health and
safety of others; and
he or she has demonstrated significant benefit from
court-ordered education, treatment, or rehabilitation to
clearly show that granting restorative relief pursuant to
this subdivision would be in the interests of justice.
(Penal Code § 1170.9 (h)91).)
Existing law enumerates factors the court may consider in
determining whether the grant of restorative relief would be in
the interests of justice, including, but not limited to:
the defendant's completion and degree of participation
in education, treatment, and rehabilitation as ordered by
the court;
the defendant's progress in formal education;
the defendant's development of career potential;
the defendant's leadership and personal responsibility
efforts; and
the defendant's contribution of service in support of
the community. (Penal Code § 1170.9 (h)(2).)
Existing law provides that if the court finds a case satisfies
the eligibility requirements, then the court may, by form of a
written order with a statement of reasons, do any of the
following:
deem all conditions of probation, including fines, fees,
assessments, and programs, except victim restitution, to
be satisfied and terminate probation early;
exercise discretion pursuant to Penal Code Section 17(b)
to reduce an eligible felony to a misdemeanor; and
grant relief in accordance with Penal Code Section
1203.4.
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Existing law provides that, notwithstanding the language of
Penal Code Section 1203.4, a dismissal of the action under this
subdivision releases the defendant from all penalties and
disabilities resulting from the offense of which the defendant
has been convicted in the dismissed action. (Penal Code §
1170.9(h)(4)(A).)
Existing law prohibits dismissal of the following offenses:
a conviction under Vehicle Code Section 42002.1(c);
a felony conviction under Penal Code Section 261.5(d);
a conviction under Penal Code Section 286(c);
a conviction under Penal Code Section 288;
a conviction Penal Code Section 288a(c);
a conviction under Penal Code Section 288.5; and
a conviction under Penal Code Section 289(j). (Penal
Code § 1170.9(h)(4)(B).)
Existing law provides that a dismissal under this section does
not affect the requirement to register as a sex offender under
Penal Code Section 290. (Penal Code § 1170.9 (h)(4)(B)(viii).)
Existing law states that, when information concerning prior
arrests or convictions is requested to be given under oath,
affirmation, or otherwise, the defendant will not have to
disclose his or her arrest on the dismissed action, the
dismissed action, or the conviction that was set aside, except
for when the question is contained in a questionnaire or
application for any law enforcement position. (Penal Code §
1170.9 (h)(4)(C).)
Existing law gives the court discretion to seal the arrest and
court records of the dismissed action, making the records
thereafter viewable by the public pursuant to a court order.
(Penal Code § 1170.9 (h)(4)(D).)
Existing law provides that the dismissal of the action under
these provisions shall be a bar to any future action based on
the conduct charged in the dismissed action. (Penal Code §
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1170.9 (h)(4)(E).)
Existing law specifies that dismissed convictions can still be
pleaded and proved as a prior conviction in a subsequent
prosecution for another offense. (Penal Code § 1170.9
(h)(4)(F).)
Existing law provides that a set-aside conviction can still be
considered a conviction for the purpose of administratively
revoking or suspending or otherwise limiting the defendant's
driving privilege on the grounds of multiple convictions.
(Penal Code § 1170.9 (h)(4)(G).)
Existing law specifies that the defendant's DNA sample and
profile shall not be removed as a result of a dismissal under
these provisions. (Penal Code § 1170.9 (h)(4)(H).)
This bill provides that dismissal of an accusation, information,
or conviction pursuant to Penal Code Section 1170.9 does not
authorize a defendant to own, possess or have in his or her
custody or control any firearm or prevent his or convictions for
being a felon owning, purchasing receiving or possessing a
firearm.
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
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Committee held measures which 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. ROCA necessitated many hard and
difficult decisions for the Committee.
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 issued by the Three-Judge Court three years
earlier to reduce the state's prison population to 137.5 percent
of design capacity. The State submitted in part 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 inmates compared to the
2008 population . . . , and by nearly 42,000 inmates since 2006
. . . ." Plaintiffs, who opposed the state's motion, argue in
part 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 % prisoner population cap by December 31st of this year.
In an order dated April 11, 2013, the Three-Judge Court denied
the state's motions, and ordered 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."
The ongoing litigation indicates that prison capacity and
related issues concerning conditions of confinement remain
unresolved. However, in light of the real gains in reducing the
prison population that have been made, although even greater
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reductions are required by the court, the Committee will review
each ROCA bill with more flexible consideration. The following
questions will inform this consideration:
whether a measure erodes realignment;
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:
SB 769 clarifies a measure approved in 2012, AB 2371
that authorized restorative relief to a veteran
defendant who acquires a criminal record due to a
mental disorder stemming from military service. SB 769
provides that any restorative relief granted to a
veteran by a court pursuant to Section 1170.9 of the
Penal Code will not authorize the veteran to own,
possess, or have a firearm in his or her custody or
control.
Although unintended, the law currently leaves open the
possibility that restorative relief granted to a
veteran may restore the veteran's legal right to own,
possess, or have a firearm, where the veteran's
conviction would otherwise prevent him/her from owning,
possessing or having a firearm.
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2. Relief for Veterans
As noted in the author's statement, when AB 2371(Block) was
passed last year, it was not intended to restore the right to
own a firearm for the veterans that used its provision to seek
dismissal of a conviction. While it is clear that the
conviction can still be used as a prior and thus the dismissal
is not absolute, the bill was not clear that a person's right to
own a firearm is not restored. This bill clarifies that if your
case is dismissed under the provision created for veterans who
had military service related mental health issues, the right to
own, purchase, and possess a firearm is not restored.
SHOULD THE LAW BE CLARIFIED THAT DISMISSAL OF A CONVICTION
PURSUANT TO THE PROVISION CREATED FOR VETERANS WITH MENTAL
HEALTH ISSUES DOES NOT MEAN THE RESTORATION OF THE RIGHT TO OWN
A FIREARM?
3. Suggested Amendment by California Veterans Legal Task Force
The California Veterans Legal Task Force believes that this bill
will "harm our veterans" and suggests that the bill be amended
to provide a process for the court to determine whether or not
the right to own a firearm should be reinstated.
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