BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 1227 (Hancock) - Diversion: members of the military.
          
          Amended: As Introduced          Policy Vote: Public Safety 6-0
          Urgency: No                     Mandate: Yes
          Hearing Date: April 28, 2014                            
          Consultant: Jolie Onodera       
          
          This bill meets the criteria for referral to the Suspense File.
          
          
          Bill Summary: SB 1227 would authorize a pretrial diversion  
          program for a current or former member of the military who may  
          be suffering from service-related trauma, substance abuse, or  
          mental health issues, as determined by the court, who is charged  
          with a misdemeanor or jail felony offense, as specified. 

          Fiscal Impact: 
              Potential ongoing increased court workload (General Fund*)  
              to conduct assessments to determine defendant eligibility,  
              assess appropriate program placement, hold periodic  
              hearings, review progress reports, and collaborate with  
              various local, state, and federal agencies. 
              Potentially significant county mental health services costs  
              (Local/Federal), likely non-reimbursable, as court orders to  
              county mental health agencies are authorized only if the  
              agency has agreed to accept responsibility for the treatment  
              of the defendant.
              Local county mental health agency costs, potentially  
              state-reimbursable (General Fund), for referrals to county  
              veteran services offices and periodic reporting on the  
              progress of program participants to the court and local  
              prosecutors.
              Potentially significant future cost savings to the criminal  
              justice system, both to the courts in averted prosecutorial  
              hearings and reduced local incarceration and supervision  
              costs to the extent participation in diversion programs is  
              successful.
          *Trial Court Trust Fund

          Background: Existing law provides for post-plea probationary  
          programs for current or former members of the military convicted  
          of criminal offenses who would otherwise be sentenced to county  








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          jail or state prison. For a defendant determined by the court to  
          be suffering from service-related trauma, substance abuse, or  
          mental health problems, 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 the term the defendant otherwise would have served in  
          state prison or county jail, provided the defendant agrees to  
          participate in the program and the court determines an  
          appropriate treatment program exists. (Penal Code §  
          1170.9(a)-(b)) 

          This bill seeks to offer comparable treatment programs prior to  
          prosecution to similarly affected current and former members of  
          the military who have been charged with misdemeanor or jail  
          felony offenses.
          
          Proposed Law: This bill would authorize placement in a pretrial  
          diversion program for active duty and veterans of the military  
          who may be suffering from service-related trauma, substance  
          abuse, or mental health issues, and who are charged with  
          misdemeanor or jail felony offenses. Specifically, this bill:
           Requires the court to determine 1) whether a defendant is a  
            current or former member of the United States military, and,  
            2) whether the member may be suffering from sexual trauma,  
            traumatic brain injury, post-traumatic stress disorder (PTSD),  
            substance abuse, or mental health problems as a result of his  
            or her military service.
           Authorizes the court to request, using existing resources, an  
            assessment to aid in the determination that the defendant  
            meets requirements 1) and 2) noted above.
           If the court determines that a defendant is eligible, with the  
            consent of the defendant and a waiver of the defendant's  
            speedy trial right, may place the defendant in a pretrial  
            diversion program.
           Provides that if it appears to the court that the defendant is  
            performing unsatisfactorily in the assigned program, or that  
            the defendant is not benefiting from the treatment and  
            services provided, after notice to the defendant, the court  
            must hold a hearing to determine whether the criminal  
            proceedings should be reinstituted.
           If the defendant performs satisfactorily during the diversion  
            period, at the end of the diversion period, the criminal  
            charges shall be dismissed.








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           Specifies that 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.
           If referral is made to the county mental health authority as  
            part of the pretrial diversion program, the county shall be  
            obligated to provide mental health treatment services only to  
            the extent that resources are available for that purpose, as  
            specified. If mental health treatment services are ordered by  
            the court, the county mental health agency is required to  
            coordinate appropriate referral of the defendant to the county  
            veterans service officer. 
           Specifies that the county mental health agency is not  
            responsible for providing services outside its traditional  
            scope of services.
           Requires the court to assess whether the defendant should be  
            ordered to participate in a federal or community-based  
            treatment service program with a demonstrated history of  
            specializing in the treatment of mental health problems,  
            including substance abuse, PTSD, TBI, sexual trauma, and other  
            mental health issues.
           Requires the court to give preference to an established  
            treatment program with a history of successfully treating  
            veterans suffering from service-related issues, including but  
            not limited to programs operated by the United States  
            Department of Defense or the U.S. Department of Veterans  
            Affairs (DVA).
           Authorizes the court and the assigned treatment program to  
            collaborate with the DVA and the U.S. DVA to maximize benefits  
            and services provided to the veteran.
           Provides that the period during which criminal proceedings  
            against the defendant may be diverted shall be no longer than  
            two years.
           Requires the responsible agency or agencies to file reports on  
            the defendant's progress in the diversion program with the  
            court and with the prosecutor not less than every six months.
           Requires a record to be filed with the Department of Justice  
            indicating the disposition of the cases diverted.
           Defines "pretrial diversion" as the procedure of postponing  
            prosecution either temporarily or permanently, at any point in  
            the judicial process from the point at which the accused is  
            charged until adjudication.
           Specifies that a pretrial diversion program shall utilize  
            existing resources available to current or former members of  
            the U.S. military to address and treat those suffering from  








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            sexual trauma, TBI, PTSD, substance abuse, or mental health  
            problems as a result of military service.

          Related Legislation: AB 2098 (Levine) 2014 would require the  
          court to consider a defendant's status as a veteran suffering  
          from PTSD or other forms of trauma when making specified  
          sentencing determinations. This bill is pending hearing in the  
          Senate Committee on Public Safety.

          Prior Legislation: SB 769 (Block) Chapter 46/2013 clarifies that  
          dismissal of a case under provisions for veteran defendants who  
          had 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.
          
          AB 2371 (Butler) Chapter 403/2012 provides restorative relief to  
          a veteran defendant who acquires a criminal record due to a  
          mental disorder stemming from military service.
          
          AB 674 (Salas) Chapter 347/2010 authorizes a court to order a  
          defendant who suffers from service-related trauma, substance  
          abuse, or mental health problems into a treatment program or  
          veteran's court for a period not to exceed that which the  
          defendant would have served in state prison or jail.
          
          AB 2586 (Parra) Chapter 788/2006 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 issues stemming from  
          their military service.
          
          Staff Comments: This bill would potentially create significant  
          new and ongoing workload to the courts to administer the  
          pretrial diversion program. While it is unknown how many current  
          and former members of the military who have been charged with  
          misdemeanors or jail felonies would present themselves before  
          the court on an annual basis, the California Veterans Legal Task  
          Force indicates from its 2013 San Diego Veterans Court Report on  
          its website, "San Diego County is home to the largest  
          concentration of military activity in the world, with 137,000  
          active duty military personnel, 250,000 veteran residents. About  
          38,000 veterans in the county have recent combat service, the  
          highest concentration of any county in the U.S. and almost  








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          double the number residing in Los Angeles. Of that number,  
          research by the DVA indicates that approximately 13,300 (35  
          percent) will suffer a diagnosable mental condition related to  
          that service. Studies from the Bureau of Justice Administration  
          can be used to predict that almost 5,800 will be incarcerated  
          for criminal activity, 1,900 for felony crimes. At present, an  
          average of 100 self-identified military veterans are booked into  
          San Diego County jail each week." (  http://www.cvltf.org  )

          The bill authorizes the court to use existing resources to  
          conduct assessments of defendants to determine eligibility for a  
          pretrial diversion program, but to the extent current resources  
          are redirected from existing court duties would potentially  
          result in at minimum a delay in daily operations. While the bill  
          does not mandate these activities on the courts, to the extent  
          more time is spent by existing staff to make these assessments  
          of military veterans and active duty members, could result in  
          new costs.

          In addition to conducting mental health assessments, the courts  
          offering pretrial diversion programs would need to assess  
          appropriate program placement, notice defendants of hearings,  
          hold periodic hearings to monitor progress and determine whether  
          prosecutorial hearings should resume, review progress reports  
          submitted by agencies, file disposition records, and collaborate  
          with various local, state, and federal agencies. Ongoing costs  
          for these activities are unknown but would be significant. 

          This bill expands the responsibility of county mental health  
          agencies to provide treatment services to these defendants to  
          the extent that resources are available for that purpose, and  
          provided the services provided are within its traditional scope  
          of services. Importantly, because the bill provides that an  
          order from the court referring a defendant to a county mental  
          health agency is allowable only if that agency has agreed to  
          accept responsibility for the treatment of the defendant, all  
          treatment costs incurred by the agency are estimated to be  
          non-reimbursable by the state. Staff notes this bill cross  
          references Welfare and Institutions Code section 5600.3(b)(5),  
          which provides the authority for county mental health agencies  
          to provide services to California veterans. Because there is no  
          existing statutory reference to active duty military personnel  
          in this section of law, it is unclear whether the provision of  
          mental health services would be authorized for active duty  








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          military personnel who otherwise meet the eligibility  
          requirements for diversion created by this measure.

          This bill also requires the responsible agency or agencies to  
          file reports on a defendant's progress in the diversion program  
          with the court and the prosecutor at least every six months for  
          up to two years (the maximum term of diversion). While the  
          "responsible" agency is undefined, it is assumed county mental  
          health agencies would be tasked with submitting the periodic  
          reports to courts and local prosecutors, who would in turn be  
          required to review the reports. By increasing the duties of  
          county mental health agencies and local prosecutors, this bill  
          imposes a higher level of service, the costs of which could  
          potentially be state-reimbursable. The magnitude of costs would  
          be dependent on the volume of defendants participating in these  
          programs, the frequency of reports submitted, and the time  
          required to compile and review the reports.

          To the extent the provisions of this bill result in the  
          successful completion of the diversion program by defendants,  
          could result in significant future cost savings to the criminal  
          justice system. By diverting misdemeanor and jail felony  
          offenders from prosecution and keeping potential convictions off  
          their records, this bill not only potentially avoids  
          prosecutorial hearings and saves local incarceration and  
          supervision costs, but also removes barriers to community  
          participation and the ability to potentially secure stable  
          employment for these individuals. 

          Recommended Amendments: To address the issue of imposing new  
          duties on county mental health agencies, staff recommends the  
          following amendment:

          1001.80(d) 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,  
           coordination of appropriate referral to a county veterans  
          service officer, and the filing of reports pursuant to  
          subdivision (h)  .













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