BILL ANALYSIS Ó 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 SB 769 Page 2 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).] SB 769 Page 3 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 SB 769 Page 4 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 SB 769 Page 5 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 SB 769 Page 6 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. SB 769 Page 7 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