Friday, October 29, 2010

California's alternative criminal conviction sentencing for Veterans who can show they have Post-Traumatic Stress Disorder from combat service

AB 674.

Criminal procedure: veterans.

Existing law provides that if a person is convicted of a criminal
offense and alleges that he or she committed the offense as a result
of post-traumatic stress disorder, substance abuse, or psychological
problems stemming from service in combat in the United States
military, the court shall hold a hearing prior to sentencing to make
a determination about the allegation. If the court finds that the
defendant's crime was committed as a result of one of those factors
related to serving in combat, and the court places the person on
probation, existing law authorizes the court to place the person into
a treatment program, and provides that the defendant receives
sentence credits for residential treatment, as specified.

This bill would, if the defendant alleges that he or she committed
the offense as a result of sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse, or mental health
problems stemming from military service in the United States
military, require the court to make a determination as to whether a
defendant was, or currently is, a member of the United States
military and whether the defendant may be suffering from any of those
disorders, before placing an otherwise eligible defendant on
probation and ordering the defendant into a treatment program, as
specified. The bill would authorize the court to request, through
existing resources, an assessment to aid in the determination of
whether the defendant may be suffering from any of those disorders.
The bill would eliminate the requirement that the offense be
committed as a result of problems stemming from service in a combat
theater.

The bill would authorize the court and an assigned treatment
program to collaborate with the Department of Veterans Affairs and
the United States Veterans Administration to maximize benefits and
services.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

SECTION 1. Section 1170.9 of the Penal Code is amended to read:
1170.9. (a) In the case of any person convicted of a criminal
offense who could otherwise be sentenced to county jail or state
prison and who alleges that he or she committed the offense as a
result of sexual trauma, traumatic brain injury, post-traumatic
stress disorder, substance abuse, or mental health problems stemming
from service in the United States military, the court shall, prior to
sentencing, make a determination as to whether the defendant was, or
currently is, a member of the United States military and whether the
defendant may be suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental
health problems as a result of that service. The court may request,
through existing resources, an assessment to aid in that
determination.
(b) If the court concludes that a defendant convicted of a
criminal offense is a person described in subdivision (a), 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 nonprofit 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.
(c) If a referral is made to the county mental health authority,
the county shall be obligated to provide mental health treatment
services only to the extent that resources are available for that
purpose, as described in paragraph (5) of subdivision (b) of Section
5600.3 of the Welfare and Institutions Code. 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, as described in paragraph (5) of
subdivision (b) of Section 5600.3 of the Welfare and Institutions
Code. 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.
(d) When determining the "needs of the defendant," for purposes of
Section 1202.7, the court shall consider the fact that the defendant
is a person described in subdivision (a) in assessing whether the
defendant should be placed on probation and ordered into 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.
(e) A defendant granted probation under this section and committed
to a residential treatment program shall earn sentence credits for
the actual time the defendant serves in residential treatment.
(f) The court, in making an order under this section to commit a
defendant to an established treatment program, shall 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 that service, including, but not limited to,
programs operated by the United States Department of Defense or the
United States Veterans Administration.
(g) The court and the assigned treatment program may collaborate
with the Department of Veterans Affairs and the United States
Veterans Administration to maximize benefits and services provided to
the veteran.

Bottom Line:

Pen Code 1170.9 provides for alternative sentencing for Veterans who
can show they have PTSD as a result of combat service.

It reportedly has been amended to provide the alternative for a # of
problems (including DUI/drugs or other mental health) and only linked to service, and not combat service.

AB674 was passed by the assembly and senate and approved by the Governator and was filed with the California Secretary of State on September 27, 2010.