BILL ANALYSIS                                                                                                                                                                                                    







                      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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