BILL ANALYSIS Ó
SB 1227
Page 1
Date of Hearing: June 17, 2014
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1227 (Hancock) - As Amended: March 27, 2014
SUMMARY : Creates a diversion program for veterans who commit
misdemeanors or county jail-eligible felonies and who are
suffering from service-related trauma or substance abuse.
Specifically, this bill :
1)Authorizes the court, with the consent of the defendant and a
waiver of the defendant's speedy trial right, to postpone
prosecution, either temporarily or permanently, of a
misdemeanor or a felony for which a sentence would be served
in a county jail if the defendant was, or currently is, a
member of the United States military and if he or she 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.
2)Provides that the court may request, using existing resources,
an assessment to aid in this determination.
3)Provides 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 under the diversion program, after notice to
the defendant, the court shall hold a hearing to determine
whether the criminal proceedings should be reinstituted.
4)States, if the court finds that the defendant is not
performing satisfactorily in the assigned program, or that the
defendant is not benefiting from diversion, the court may end
the diversion and order resumption of the criminal
proceedings.
5)Requires the criminal charges to be dismissed at the end of
the period of diversion if the defendant has performed
satisfactorily during the period of diversion.
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6)Provides if a 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 described.
7)Requires the county mental health agency to coordinate
appropriate referral of the defendant to the county veterans
service officer, as described.
8)Clarifies that the county mental health agency shall not be
responsible for providing services outside its traditional
scope of services.
9)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 all of the following:
a) The treatment of the defendant;
b) The coordination of appropriate referral to a county
veterans service officer; and,
c) The filing of reports related to defendants' progress.
10)States when determining the requirements of a pretrial
diversion program, the court shall 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, post-traumatic stress
disorder, traumatic brain injury, military sexual trauma, and
other related mental health problems.
11)Requires the court, in making an order to commit a defendant
to an established treatment program, to give preference to a
treatment program that has a history of successfully treating
veterans who suffer from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or
mental health problems as a result of military service,
including, but not limited to, programs operated by the United
States Department of Defense or the United States Department
of Veterans Affairs.
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12)Authorizes the court and the assigned treatment program to
collaborate with the state Department of Veterans Affairs and
the United States Department of Veterans Affairs to maximize
benefits and services provided to the veteran.
13)Provides that the criminal proceedings against the defendant
may be diverted for a period of up to two years and requires
the responsible agencies to report to the court and the
prosecution not less than every 6 months.
14)States that a record filed with the Department of Justice
(DOJ) shall indicate the disposition in those cases diverted.
Upon successful completion of a diversion program, the arrest
upon which the diversion was based shall be deemed to have
never occurred. The defendant may indicate in response to a
question concerning his or her prior criminal record that he
or she was not arrested or diverted for the offense, except as
specified. A record pertaining to an arrest resulting in
successful completion of a diversion program shall not,
without the defendant's consent, be used in any way that could
result in the denial of any employment, benefit, license, or
certificate.
15)Provides that defendant shall be advised that, regardless of
his or her successful completion of diversion, the arrest upon
which the diversion was based may be disclosed by DOJ in
response to a peace officer application request and that he or
she is not relieved of the obligation to disclose the arrest
in response to a direct question contained in a questionnaire
or application for a position as a peace officer, as defined.
16)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.
17)States that a pretrial diversion program shall utilize
existing resources available to current or former members of
the United States military to address and treat those
suffering from sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse, or mental
health problems as a result of military service.
EXISTING LAW :
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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 PTSD, substance abuse, or
psychological problems stemming from service in a combat
theater in the United States military, to determine whether
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. (Pen. Code, § 1170.9, subd. (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.
(Pen. Code, § 1170.9, subd. (b).)
3)Provides restorative relief to a veteran defendant who
acquires a criminal record due to a mental disorder stemming
from military service. (Pen. Code Section 1170.9(h)(1).)
4)States 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, 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
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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.
(Pen. Code § 1170.9(h)(1).)
5)States that pretrial diversion refers to the procedure of
postponing prosecution of an offense filed as a misdemeanor
either temporarily or permanently at any point in the judicial
process from the point at which the accused is charged until
adjudication. (Penal Code Section 1001.1.)
6)Authorizes a pre-plea diversion program or a deferred entry of
judgment for specified drug offenses. (Pen. Code § 1000 et
seq.)
7)Provides for diversion of misdemeanors when the defendant is a
person with cognitive disabilities. (Penal Code § 1001.20 et.
seq)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "California has
nearly two million military veterans living in the state, more
than any other state in the country. Many of these veterans
suffer from service related trauma, such as Post Traumatic
Stress Disorder, or Traumatic Brain Injury. Unfortunately,
some veterans find themselves entangled in the criminal
justice system.
"Diversion programs and the benefits of these programs are
well established in California. These programs reduce
recidivism by targeting the underlying source of criminal
behavior. Diversion programs also reduce court and
incarceration costs, as well as connect participants to
services that help them resume positive community
participation.
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"Successfully completed diversion programs ensure that the
participant is able to avoid the consequences of a conviction
(such as difficulty in finding a job or securing housing).
Participation in these programs can connect veterans to
services that are available but underutilized, including
mental health treatment, addiction treatment, housing and
medication.
"Existing veterans' courts are post-plea, probationary
programs. Veterans are eligible only after they have been
found guilty. While these courts have proven effective, they
do not afford participating veterans the benefits of pre-plea
diversion programs."
2)Diversion Generally : Diversion is the suspension of criminal
proceedings for a prescribed time period with certain
conditions. A defendant may not be required to admit guilt as
a prerequisite for placement in a pretrial diversion program.
If diversion is successfully completed, the criminal charges
are dismissed and the defendant may, with certain exceptions,
legally answer that he or she has never been arrested or
charged for the diverted offense. If diversion is not
successfully completed, the criminal proceedings resume,
however, a hearing to terminate diversion is required.
This bill creates a diversion program for active duty or
veterans of the military who commit misdemeanors or jail
felonies. Diversion will be available if the veteran may be
suffering from sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse or mental
health resulting from his or her service.
If a veteran defendant successfully completes his or her
diversion program then the arrest will be deemed never to have
occurred and he or she can say she was never arrested or
diverted, unless he or she is applying to be a peace officer.
The goal of the diversion program will be to get help for
veterans who may be suffering as a result of their service.
This will allow them to not only get the proper services but
also allow them to be more easily employed in the future by
keeping the crime off their record if they complete their
diversion program successfully.
3)Argument in Support : The California Public Defenders
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Association , the sponsor of this bill, states, "Pretrial
diversion programs are well-established in California.
Studies have shown that participants in pretrial diversion
programs demonstrate positive outcomes when compared with
those who proceed in the traditional process of trial and
sentencing upon conviction. Pretrial diversion participants
have shown to have lower rates of re-offense and
re-incarceration, and to have better results with mental
health and substance abuse treatment programs. Such programs
also have been demonstrated to be both more time- and
cost-effective than traditional criminal justice procedures.
Trial and pretrial litigation are lengthy and costly. By
contrast, the pretrial diversion program established by SB
1227 is one that would significantly reduce strains on court
resources, utilizing services and programs already available
through the Department of Veterans Affairs and veterans
support groups. Furthermore, at a time when state prisons and
county jails are overcrowded, pretrial diversion programs
significantly reduce the monetary and societal costs of
incarceration.
4)Argument in Opposition : The California District Attorneys
Association writes, "While many counties operate very
successful diversion programs, they are generally geared to
help low-level first-time misdemeanants avoid a mark on their
record for relatively minor offenses.
"SB 1227, on the other hand, contemplates diversion programs
being available to certain individuals who have committed not
only misdemeanors, but also 1170(h) eligible felonies. The
universe of crimes included under 1170(h) is vast, and they
are serious crimes for which diversion programs are
inappropriate.
"We respectfully request that SB 1227 be amended to exclude
1170(h) felonies from eligibility for these new diversion
programs."
5)Related Legislation :
a) AB 2098 (Levine) requires the court to consider a
defendant's status as a veteran suffering from
post-traumatic stress disorder (PTSD) or other forms of
trauma when making specified sentencing determinations. AB
2098 is pending vote on the Senate Floor.
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b) AB 2263 (Bradford) requires a parole agent to be
appointed as a veterans service officer at each facility
that is under the jurisdiction of the Department of
Corrections and Rehabilitation. AB 2263 is pending hearing
by the Senate Committee on Public Safety.
c) AB 2357 (Skinner) requires California Department of
Corrections and Rehabilitation to consider an inmate's
military service as part of their assessments used to place
an inmate in programs that will aid in his or her reentry
to society. AB 2357 is pending hearing by the Senate
Appropriations Committee.
d) SB 1110 (Jackson) requires the court to identify a
defendant as an active member or veteran of the military at
arraignment. SB 1110 is pending vote on the Assembly
Floor.
6)Prior Legislation :
a) SB 513 (Hancock), Chapter 798, Statutes of 2013,
provides that two years after successfully completing a
prefiling diversion program administered by a prosecuting
attorney, an individual may petition the court for an order
sealing the records of arrest and related court files and
records, as specified.
b) 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.
c) AB 1925 (Salas), of the 2009-2010 Legislative Session,
would have authorized the creation of specialized veterans'
courts within superior courts. AB 1925 was vetoed.
d) AB 674 (Salas), Chapter 347, Statutes of 2010, allows a
court to order a defendant who suffers from sexual trauma,
traumatic brain injury, PTSD, substance abuse, or mental
health problems as a result of military service 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.
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e) 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
California Public Defenders Association (Sponsor)
California Attorneys for Criminal Justice
Judicial Council of California
Los Angeles County District Attorney's Office
National Alliance on Mental Illness - California
National Association of Social Workers - California Chapter
Taxpayers for Improving Public Safety
Veterans Caucus of the California Democratic Party
Opposition
California District Attorneys Association
Analysis Prepared by : Stella Choe / PUB. S. / (916) 319-3744