BILL ANALYSIS                                                                                                                                                                                                    

                                                                  SB 769
                                                                  Page  1

          Date of Hearing:  June 11, 2013
          Counsel:       Sandy Uribe

                                 Tom Ammiano, Chair

                     SB 769 (Block) - As Amended:  April 1, 2013

           SUMMARY  :  Clarifies that dismissal of a case under provisions  
          for veteran defendants who had military-service-related mental  
          health issues does not restore a defendant's right to possess a  
          firearm, and does not prevent conviction for being a felon or  
          drug addict in possession of a firearm.

           EXISTING LAW  : 

          1)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 a combat theater in the United States  
            military, to hold a hearing before sentencing to determine if  
            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 Section 1170.9(a).]

          2)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 in a combat theater 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 Section 1170.9(b).]

          3)Obligates counties to provide mental health treatment services  
            to members of the military forces of the United States  


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            suffering from PTSD, substance abuse, or psychological  
            problems stemming from service in a combat theater only to the  
            extent that resources are available for that purpose.  If  
            mental health treatment services are ordered by the court, the  
            county mental health agency shall coordinate appropriate  
            referral of the defendant to the county veterans-service  
            officer.  The county mental health agency shall not be  
            responsible for providing services outside its traditional  
            scope of services.  An order shall be made referring a  
            defendant to a county mental health agency only if that agency  
            has agreed to accept responsibility for the treatment of the  
            defendant.  [Penal Code Section 1170.9(c).]

          4)Provides restorative relief to a veteran defendant who  
            acquires a criminal record due to a mental disorder stemming  
            from military service.  [Penal Code Section 1170.9(h)(1).]

          5)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:

             a)   He or she was granted probation, and at the time that  
               probation was granted had alleged the offense was committed  
               as a result of sexual trauma, traumatic brain injury,  
               post-traumatic stress disorder (PTSD), substance abuse, or  
               mental health problems stemming from military service; 

             b)   He or she is in substantial compliance with the  
               conditions of that probation;

             c)   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; 

             d)   He or she does not represent a danger to the health and  
               safety of others; and, 

             e)   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 Section 1170.9(h)(1).]


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          6)Enumerates factors the court may consider in determining  
            whether the grant of restorative relief would be in the  
            interests of justice.  [Penal Code Section 1170.9(h)(2).]

          7)Allows the court to order any of the following upon a finding  
            that a case satisfies the eligibility requirements of  
            restorative relief:

             a)   Deem all conditions of probation, including fines, fees,  
               assessments, and programs, except victim restitution, to be  
               satisfied and terminate probation early;

             b)   Exercise discretion under Penal Code Section 17(b) to  
               reduce an eligible felony to a misdemeanor; and,

             c)   Grant relief in accordance with Penal Code Section  
               1203.4.  [Penal Code Section 1170.9(h)(3).]

          8)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  
            Section 1170.9(h)(4)(A).]

          9)Prohibits the dismissal of the specified criminal offenses,  
            most of which are sex offenses.  [Penal Code Section  

          10)Specifies that a dismissal under this section does not affect  
            the requirement to register as a sex offender under Penal Code  
            Section 290.  [Penal Code Section 1170.9(h)(4)(B)(viii).]

          11)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 Section  

          12)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  


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            Section 1170.9(h)(4)(D).]

          13)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 Section  

          14)Specifies that dismissed convictions can still be pleaded and  
            proved as a prior conviction in a subsequent prosecution for  
            another offense.  [Penal Code Section 1170.9(h)(4)(F).]

          15)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  
            Section 1170.9(h)(4)(G).]

          16)Specifies that the defendant's DNA sample and profile shall  
            not be removed as a result of a dismissal under these  
            provisions.  [Penal Code Section 1170.9(h)(4)(H).]

          17)Provides a procedure for many felons and misdemeanants  
            granted formal probation, with the exception of those  
            convicted of certain crimes, to obtain dismissal of the case.   
            This includes those who successfully complete formal  
            probation, as well as any other case in which a court, in its  
            discretion and in the interests of justice, determines the  
            relief is warranted.  (Penal Code Section 1203.4.)

          18)States that dismissal of an accusation or information  
            pursuant to Penal Code Section 1203.4 does not permit a person  
            to own, possess, or have in his or her custody or control any  
            firearm or prevent him or her from being convicted of the  
            offense of being an ex-felon in possession of a firearm.   
            [Penal Code Section 1203.4(a)(2).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "SB 769 is a  
            technical correction to a bill signed last year dealing with  
            restorative relief for veterans in veteran's court.  That  
            bill, which is current law, allows special veterans courts to  
            expunge the record of veterans who commit offenses while  


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            suffering from service related mental health disorders.  
            Although unintended, current law leaves open the possibility  
            that restorative relief may include the return of firearms to  
            veterans with mental disorders upon completion of court  
            ordered conditions.

          "SB 769 corrects this inadvertent error and treats veterans like  
            all others who commit felonies and prohibits the veteran from  
            owning, possessing, or having a firearm in his or her  
            possession or control."

           2)Legislative Intent with Regard to Restorative Relief of  
            Firearms for Veterans  :  AB 2371 (Bulter), as introduced on  
            February 24, 2012, included a provision which stated, "If a  
            conviction that was set aside precluded the defendant from  
            possessing any firearm, then a dismissal pursuant to this  
            subdivision may, in the discretion of the court, expressly  
            restore the defendant's right to own, possess, and keep any  
            type of lawfully registered legal firearm unless the  
            conviction that was set aside was a felony that involved the  
            personal use of a firearm."  However, when AB 2371 was amended  
            on April 19, 2012, that language was deleted.  

            Additionally, the original version of AB 2371 contained  
            language stating, "This dismissal restores all rights,  
            privileges, franchises, licenses, permits, and certificates of  
            which the defendant was deprived by reason of the conviction."  
             However, that language was also deleted in the April 19, 2012  
            version of that bill.

            To the extent that current law does not have a provision  
            expressly prohibiting the possession of a firearm by a veteran  
            defendant granted restorative relief, as evidenced by the  
            amendments to AB 2371, it was the intent of the Legislature  
            that this right not be restored.

           3)Argument in Support  :  The  San Diego County District Attorney   
            (the sponsor of this bill), states, "We believe Senate Bill  
            769 reaffirms the legislative intent of AB 2371 to the extent  
            that those Veterans graduating from Veteran's Courts receive  
            all the benefits provided by Penal Code Section 1203.4.   
            However, we believe that when AB 2371 was amended on April 19,  
            2012, it left open to judicial interpretation whether the  
            "restorative relief" granted under this statute also includes  
            restorative relief of firearms rights.  We believe the current  


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            law allows for judicial discretion.  In fact, we have two  
            cases in San Diego where Veterans, convicted of felonies and  
            whose criminal cases involved the personal discharge of a  
            firearm, had their right to own and possess a firearm  
            explicitly reinstated.  This is why we are sponsoring this  

           4)Argument in Opposition  :  According to the  California Attorneys  
            for Criminal Justice  , "This bill would strip deserving  
            veterans of the rights conferred by way of Penal Code Section  
            17(b).  The proposed language is vague and would likely be  
            mis-applied by the courts when granting relief, including  
            dismissal of the action, for veterans.

          "Rather than affirm established law, that states when a case is  
            reduced to a misdemeanor, this bill removes benefits from  
            deserving veterans who invoke their right to obtain such  
            reduction prior to having their cases dismissed.  The  
            Legislature has expressed a clear preference for treatment  
            over incarceration in cases where a defendant's conduct is  
            related to PTSD.

          "California Penal Code Section 1170.9 was enacted in 1982 to  
            provide sentencing alternatives for Vietnam War ear combat  
            veterans whose military services "cased or exacerbated" their  
            criminal act.  However, until an amendment in 2006, the  
            statute was "beneficent but meaningless" (People v. Abdullah  
            (1992)).  In 2006, an amendment was taken to specifically  
            include all combat veterans of any war, and made local  
            treatment a feasible sentencing alternative.  The relief  
            provided by this section is available to everyone with  
            qualifying convictions and ensures equal protection to  
            veterans.  Taking away a veterans right to possess a firearm,  
            even after his conviction has been dismissed, contradicts  
            existing law which provides equal and fair protections for  
            veterans suffering from different aliments caused by their  

           5)Prior Legislation  :  

             a)   AB 2371 (Butler), Chapter 403, Statutes of 2012,  
               provides restorative relief to a veteran defendant who  
               acquires a criminal record due to a mental disorder  
               stemming from military service.


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             b)   AB 201 (Butler) and AB 2611 (Butler), of the 2011-12  
               Legislative Session, authorized superior courts to develop  
               and implement veterans' courts.  Both bills were vetoed. 

             c)   AB 2586 (Parra), Chapter 788, Statutes of 2006, allows  
               the court to consider a treatment program, in  lieu of  
               incarceration, as a condition of probation in cases  
               involving military veterans who suffer from PTSD, substance  
               abuse, or psychological problems stemming from their  
               military service.


          San Diego County District Attorney (Sponsor)
          California District Attorneys Association

          California Attorneys for Criminal Justice
          Tax Payers for Improving Public Safety

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744