First enacted in 1982 in response to studies which demonstrated the association between psychological war wounds and criminal behavior, California Penal Code 1170.9, revised in 1984, 2006, 2010 and 2012, directs that courts consider treatment rather than incarceration when sentencing a defendant who serves or has served in the military. A number of prerequisites must also be satisfied: The veterans must be diagnosed with a mental disorder and the disorder must be connected to military service and related to the defendant’s criminal conduct. The veteran must plead guilty or be found guilty, be eligible for probation, and appropriate treatment must be available.
Veterans who commit very serious crimes are precluded from probation consideration under current law and are ineligible for relief. Veterans who are legally eligible for such relief, must still be determined by a trial judge to be suitable for probation in order to obtain it in lieu of incarceration as part of their sentence. This determination by the sentencing judge is a right and a hearing must be granted if the veteran requests the determination. However, there is no right to get treatment in lieu of incarceration. That is solely determined by the sentencing judge even if it is determined that the veteran is eligible for it.
Some monitoring is provided by veterans treatment court judges using PC §1170.9. For veterans treatment courts operating under California Penal Code 1170.9, veteran-defendants must, as previously noted, enter a guilty plea and be sentenced in order to be referred to treatment as a condition of their probation. Compliance is monitored by a judge who can punish the defendant for non-compliance and re-impose custody time for treatment failure. Veterans treatment court judges generally add more requirements such as more frequent court appearances, multiple treatment modalities/reporting, support meetings, and working with a mentor in addition to statutory court requirements. Some counties also have special calendars for lower level veteran offenders where no guilty plea is required or prosecution is deferred pending outcome of treatment. These programs generally are only available to a particular geographic area and eligibility criteria are usually at the discretion of the prosecutor.
Most judges currently monitor the offender for 12-18 months; some have longer monitoring periods. Monitoring usually requires treatment provider reports to the court and regular court appearances in addition to statutory requirements assigned to individual crimes (i.e. drunk driving school, domestic violence counseling or compliance with protective orders).
Research shows that these psychological conditions are treatable and that evidence-based treatments can be effective in helping these veterans and their families learn to manage their symptoms and return to full law-abiding, productive lives after their military service. PC §1170.9 encourages treatment as early as possible to make communities safe and restore veterans to health.
TITLE 6. PLEADINGS AND PROCEEDINGS BEFORE TRIAL [976 - 1054.10]
( Heading of Title 6 amended by Stats. 1951, Ch. 1674.)
CHAPTER 2.9C. Military Diversion Program [1001.80- 1001.80.]
( Chapter 2.9C added by Stats. 2014, Ch. 658, Sec. 1. )
(a) This chapter shall apply to a case before a court on an accusatory pleading alleging the commission of a misdemeanor offense if both of the following apply to the defendant:
(1) The defendant was, or currently is, a member of the United States military.
(2) 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 his or her military service. The court may request, using existing resources, an assessment to aid in the determination that this paragraph applies to a defendant.
(b) If the court determines that a defendant charged with an applicable offense under this chapter is a person described in subdivision (a), the court, 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, as defined in subdivision (k).
(c) 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. 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. If the defendant has performed satisfactorily during the period of diversion, at the end of the period of diversion, the criminal charges shall be dismissed.
(d) If a referral is made to the county mental health authority as part of the pretrial diversion program, the county shall 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 is not 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 all of the following:
(1) The treatment of the defendant.
(2) The coordination of appropriate referral to a county veterans service officer.
(3) The filing of reports pursuant to subdivision (h).
(e) When determining the requirements of a pretrial diversion program pursuant to this chapter, 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.
(f) The court, in making an order pursuant to 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 military service, including, but not limited to, programs operated by the United States Department of Defense or the United States Department of Veterans Affairs.
(g) The court and the assigned treatment program may collaborate with the Department of Veterans Affairs and the United States Department of Veterans Affairs to maximize benefits and services provided to a veteran.
(h) The period during which criminal proceedings against the defendant may be diverted shall be no longer than two years. The responsible agency or agencies shall file reports on the defendant’s progress in the diversion program with the court and with the prosecutor not less than every six months.
(i) A record filed with the Department of Justice shall indicate the disposition of those cases diverted pursuant to this chapter. 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 in subdivision (j). 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.
(j) The 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 the Department of Justice in response to a peace officer application request and that, notwithstanding subdivision (i), this section does not relieve him or her 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 in Section 830.
(k) (1) As used in this chapter, “pretrial diversion” means 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.
(2) 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.
(l) Notwithstanding any other law, including Section 23640 of the Vehicle Code, a misdemeanor offense for which a defendant may be placed in a pretrial diversion program in accordance with this section includes a misdemeanor violation of Section 23152 or 23153 of the Vehicle Code. However, this section does not limit the authority of the Department of Motor Vehicles to take administrative action concerning the driving privileges of a person arrested for a violation of Section 23152 or 23153 of the Vehicle Code.
(Amended by Stats. 2017, Ch. 179, Sec. 1. (SB 725) Effective August 7, 2017.)
California Penal Code § 1170.91
Mitigation Evidence of Military Related Trauma
2016 California Code
Penal Code - PEN
PART 2 - OF CRIMINAL PROCEDURE
TITLE 7 - OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT
CHAPTER 4.5 - Trial Court Sentencing
ARTICLE 1 - Initial Sentencing
Universal Citation: CA Penal Code § 1170.91 (2016)
1170.91. If the court concludes that a defendant convicted of a felony offense is, or was, a member of the United States military who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of his or her military service, the court shall consider the circumstance as a factor in mitigation when imposing a term under subdivision (b) of Section 1170. This consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation.
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