BILL ANALYSIS �
SB 769
Page 1
Date of Hearing: June 11, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
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
1170.9(h)(4)(B).]
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
1170.9(h)(4)(C).]
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
1170.9(h)(4)(E).]
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
bill."
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
service."
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.
REGISTERED SUPPORT / OPPOSITION :
Support
San Diego County District Attorney (Sponsor)
California District Attorneys Association
Opposition
California Attorneys for Criminal Justice
Tax Payers for Improving Public Safety
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744