BILL ANALYSIS �
AB 2371
Page 1
Date of Hearing: April 17, 2012
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
AB 2371 (Butler) - As Introduced: February 24, 2012
As Proposed to be Amended in Committee
SUMMARY : Provides restorative relief to a veteran defendant who
acquires a criminal record due to a mental disorder stemming
from military service. Specifically, this bill :
1)Declares that it is in the interests of justice to restore a
defendant who acquired a criminal record due to a mental
health disorder stemming from service in the United States
military to the community of law abiding citizens.
2)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 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
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this subdivision would be in the interests of justice.
3)Enumerates factors the court may consider in determining
whether the grant of restorative relief would be in the
interests of justice, including, but not limited to:
a) The defendant's completion and degree of participation
in education, treatment, and rehabilitation as ordered by
the court;
b) The defendant's progress in formal education;
c) The defendant's development of career potential;
d) The defendant's leadership and personal responsibility
efforts; and
e) The defendant's contribution of service in support of
the community.
4)States that if the court finds a case satisfies the
eligibility requirements, then the court may, by form of a
written order with a statement of reasons, do any of the
following:
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 pursuant to 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.
5)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.
6)Prohibits dismissal of the following offenses:
a) A conviction under Vehicle Code Section 42002.1(c);
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b) A felony conviction under Penal Code Section 261.5(d);
c) A conviction under Penal Code Section 286(c);
d) A conviction under Penal Code Section 288;
e) A conviction Penal Code Section 288a(c);
f) A conviction under Penal Code Section 288.5; and
g) A conviction under Penal Code Section 289(j).
7)Provides that a dismissal under this section does not affect
the requirement to register as a sex offender under Penal Code
Section 290.
8)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.
9)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. Also gives
the court discretion to destroy those records if the district
attorney concurs.
10)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.
11)Specifies that dismissed convictions can still be pleaded and
proved as a prior conviction in a subsequent prosecution for
another offense.
12)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.
13)Specifies that the defendant's DNA sample and profile shall
not be removed as a result of a dismissal under these
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provisions.
EXISTING LAW :
1)Provides that in the case of any 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, the court shall, prior
to sentencing, hold a hearing to determine whether the
defendant was a member of the military forces of the United
States who served in combat and shall 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 forces of
the United States 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
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).]
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4)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.)
5)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).]
6)States that an order of dismissal does not relieve the
defendant of the obligation to disclose the conviction in
response to any questions contained in any questionnaire or
application for public office, or for licensure for any state
or local agency. �Penal Code Section 1203.4(a).]
7)Provides that, despite the accusatory pleading having been
dismissed, in any other subsequent prosecution of the
defendant for any other offense, the prior conviction may be
pleaded and proved and shall have the same effect as if
probation had not been granted or the accusation or
information dismissed. �Penal Code Section 1203.4(a).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Many veterans
are suffering from mental illnesses as a result of service in
the United States Military. This bill hits at the heart of
the issue, getting veterans the treatment that they need.
When a veteran commits a crime as a result of mental illness
from service, in lieu of prison time the veteran will be given
treatment for their specific mental illness. Once treatment
and conditions are met, this bill would allow a court to grant
restorative relief. These Veterans have sacrificed for our
country, we need to support them and give them the
rehabilitation they need so they can have a normal life."
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2)Equal Protection : The Equal Protection Clause of the
Fourteenth Amendment, Section 1, commands that no state shall
"deny to any person within its jurisdiction the equal
protection of the laws." The California Constitution has a
similar provision. An equal protection challenge is a claim
that a law discriminates against a person by unequal treatment
or unequal results.
However, many federal and state laws give veterans preference in
hiring and promotion decisions for civil service jobs. �E.g.,
38 U.S.C.A. � 4214 (1998) (noting in subsection (a)(1) that
the United States "has an obligation to assist veterans of the
Armed Forces in readjusting to civilian life" and advancing
the policy of "promot�ing] the maximum employment and job
advancement opportunities �for qualified veterans] within the
Federal Government."] Generally, these laws provide that a
specified number of points be added to the test scores of
veterans thereby allowing lower scoring veterans to be hired
ahead of higher scoring non-veterans. These preference
programs are instances of disparate treatment. The law
targets the veteran qua veteran and treats him or her
differently than the civilian. The laws above express this
country's appreciation for the sacrifices of military service
and mark the fact that this contribution to the country is
different from the contributions to the economy and communal
life that civilians make.
The defining constitutional case in this area, Personnel
Administrator v. Feeney (1979) 42 U.S. 256, has been taken as
the authoritative statement that veterans' preferences are
constitutional. It should be noted, however, that this case
actually addressed the question whether such a preference
unconstitutionally discriminates on the basis of sex. The
Supreme Court held that the distinction in the law was "simply
between veterans and non veterans, not between men and women."
(Id. at 275.) The Court upheld the preference on this
ground, not on whether the veteran versus non-veteran
preferential treatment violated equal protection.
The Court did recognize that a status-based distinction between
veterans and non-veterans was in play, noting that it was an
"unusual" case because it involved a law, which by design was
not neutral. (Id. at 277.) The statute "overtly preferr�ed]
veterans as such." (Ibid.) The Court did not address whether
this status distinction itself was permissible because "the
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appellee ha�d] not disputed, that this legislative choice was
legitimate." (Ibid.)
Although usually equal protection is used to analyze government
action that draws a distinction among people, sometimes it is
used if the government discriminates among people as to the
exercise of a fundamental right, such as marriage,
procreation, voting, and access to the judicial process. If
the government action infringes on a fundamental rights, then
the strict scrutiny test applies. The law will be upheld if
it is necessary to achieve a compelling government purpose.
The government must have a truly significant reason for
discriminating and it must show that it cannot achieve its
objective through less discriminatory means.
Access to the courts is a fundamental right subjected to strict
scrutiny. Although at times the Supreme Court has spoken in
terms of a right of access to the courts, its decisions all
have involved challenges to particular impediments in the
legal system. The U.S. Supreme Court has held that the
"constitutional guaranties of due process and equal protection
both call from procedures in criminal trials which allow no
invidious discriminations between persons and different groups
of persons." �Griffin v. Illinois (1956) 351 U.S. 12, 17.]
Query whether the dismissal provisions of this bill violate
the principle of equal protection by giving the veteran
defendant additional benefits when a conviction is dismissed
than is given to other defendants.
3)Arguments in Support : According to the Office of the Deputy
Assistant Secretary of Defense , "The Department of Defense
recognizes restorative relief as a best practice in promoting
a framework to help veterans afflicted with mental health
and/or substance abuse addiction to obtain treatment and
services in order to resolve outstanding criminal offenses and
stabilize their lives. We support procedures that allow all
qualifying charges to be reduced or dismissed (including where
appropriate, more serious charges) commensurate with
completion of appropriate treatment and services. Where
charges are dismissed, we support limited public access to the
record, including expunging records where appropriate and as
provided by state or local law.
"The policy in AB 2371 can provide an important incentive
necessary for qualifying veterans to seek treatment for their
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underlying problems. Without an opportunity to reduce or
dismiss charges and "seal" the records, some afflicted
veterans may chose �sic] to take their chances at receiving a
suspended sentence rather than undergo this treatment that
would assist their transition back to their communities and
their families in a healthful and productive manner."
4)Arguments in Opposition : According to the California District
Attorneys Association , "We do not concur with the need to
extend relief to these offenders beyond what is contemplated
by existing law. Sufficient discretion on the part of the
court and district attorney exists as it relates to the
charging and sentencing of crimes that are punishable as
either misdemeanors or felonies, and we need not grant
particular advantage to persons alleging their offenses were a
result of military service. Additionally, allowing a felony
to be reduced to a misdemeanor, even with the concurrence of
the district attorney, frustrates justice and minimizes the
seriousness of the offense.
"Additionally, though this bill permits set aside convictions to
be pleaded and proved as prior offenses when prosecuting
subsequent crimes, this ability would be severely hampered by
the bill's provision that allows for the destruction of court
records. It is inappropriate to allow important court records
to be destroyed even if an offender has had a conviction
expunged."
5)Related Legislation :
a) AB 2611 (Butler) authorizes superior courts to implement
veterans' courts. AB 2611 is pending hearing by the
Assembly Committee on Veterans Affairs.
b) AB 2490 (Butler) establishes the position of a
veterans-service officer in each facility under the
jurisdiction of the California Department of Corrections
and Rehabilitation. AB 2490 is pending hearing by the
Assembly Committee on Veterans Affairs.
REGISTERED SUPPORT / OPPOSITION :
Support
American Legion - Department of California (Co-Sponsor)
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AMVETS, Department of California (Co-Sponsor)
Vietnam Veterans of American, California State Council
(Co-Sponsor)
California Psychological Association
California Public Defenders Association
Drug Policy Alliance
Legal Services for Prisoners with Children
National Association of Social Workers
Office of the Deputy Assistant Secretary of Defense
Opposition
American Association for Marriage and Family Therapy
California District Attorneys Association
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744