PC 1170.9 – Treatment Instead of Jail for California Veterans

PC 1170.9 - Treatment Instead of Jail for California Veterans

Treatment Instead of Jail for California Veterans – Table of Contents

PC 1170.9 – Overview

What is violating a Written Promise to Appear in Court as defined in California Penal Code 1170.9?

Anyone who is convicted of a criminal offense who could otherwise be sentenced to county jail or state prison and who states that they are a United States Veteran, or a Member of the United States Branch of Armed Forces, who also can illustrate they committed the offense as a result of sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse or mental health problems which correlates to current or previous from the United States military service, upon a finding of fact can request that person to undergo further assessment and treatment in a mental health facility as a form of alternative probation.

PC 1170.9 – Prosecuting

At what phase in the criminal proceedings can the determination of mental health treatment be made for an accused that qualifies as defined under California Penal Code 1170.9?

The Court prior to sentencing will determine whether the accused is a member of the armed forces. The Court will further assess whether the accused suffers from the previously stated qualifying factors of detriment and whether those factors of detriment were the result of the accused’s service in the armed forces. Evidence of the conclusions must derive from evaluation reports that are based on either private or court-appointed psychiatrists or psychologists. The evaluation reports will be assessed by the Court and Prosecution at a subsequent hearing, following the request by defense counsel to have the accused assessed for impairment or determinant to potentially have the accused recommended to a treatment facility in lieu of confinement.

Is the Court obligated to consider by reasonable inquiry or explicit requests by the accused, defense counsel or prosecution to consider the accused for treatment instead of incarceration as defined under California Penal Code 1170.9?

Yes- the Court is obligated by statute to consider mitigating factors to assist the accused in getting treatment for the accused if it comes to the Court’s attention that the accused is a member of the armed forces whose alleged conduct was the result of factors of determent and or stress that was related to his or her service in the armed forces. If not, it is an appealing issue of controversy and a violation of Due Process.

What is the best way to clearly request consideration for treatment as described under California Penal Code 92?

Defense counsel in pretrial should make it aware of their client’s issues concerning detriment and mental health and file a sentencing memorandum with the court detailing alternative sentencing under the guidelines of California Penal Code 92. The sentencing memorandum should include the evaluation reports of clinicians detailing the historical nexus between the factors of detriment and the accused’s military service. If there are support letters which can be supplemented by military personnel that would help promote the accused as a candidate for treatment.

Are there any crimes considered ineligible for probation to prevent consideration under California Pena Code 1170.9?

Technically no- California Penal Code 1203(e) lists several crimes that are not illegible for probation unless extenuating circumstances permit. Those crimes are Carjacking; Arson; Robbery; Burglary; Burglary with explosives; Rape; Rape with Torture; Aggravated Mayhem; Attempt to Commit Murder; Kidnapping; any Crime which discharges a firearm in the commission of a felony; All listed crimes in the Penal Codes 288, 287, 288.5, 286; Possession of a machine gun; and Possession of PCP. But those crimes become obsolete in terms of assessment if the accused as been classified as having a service-related detriment such as PTSD which can be associated with causing the act specified in the charging complaint.

What influences does the probation report have on the process as specified under California Penal Code 1170.9?

The probation report must utilize any service-related detriments like PTSD when deciding probation or alternative sentencing. If not defense counsel or the accused can have the assessed penalty of confinement reassessed at a sentencing hearing or an appeal. If on appeal, it would be based on an abuse of discretion. In other words, the probation report must list and reference any statement of military service, mental health issues and provide an assessment of conclusions as to how any service-related PTSD contributed to the conduct alleged in the charging document. A defendant’s sentence based on misinformation presented to the court, which is a result of statutory guidelines of mandatory compliance is an abuse of discretion which is appealable and subject to a remand to enable the sentencing court to resentence the defendant under the mandatory guidelines provided.”

PC 1170.9 – Sentencing

Why is California Penal Code 1170.9 a mandatory guideline for alternative sentencing?

Section 1170.9 authorizes alternative sentencing for eligible military veterans that are convicted of felonies. The Penal Code was originally enacted in 1982 to help Vietnam veterans with coping mechanisms and treatment who served in Vietnam and suffer from substance abuse and psychological problems that resulted from their service in the military. The purpose of the statute transitioned from permissive to mandatory and forced the Courts to utilize mitigating factors in its determination of alternative sentencing.

Through time legislation by way of Court rulings amended California Penal Code 1170.9 to ensure that combat veterans from Iraq and Afghanistan, in 2006-2019 were receiving adequate alternative sentencing structures as a result of the unfounded issues of service-related PTSD that was not yet documented and treated; and due to this lack of awareness the Courts at that time were not equipped to understand and distinguish the qualifying issues affecting service men and women apart from the general public as being an essential factor in the criminal complaints alleging criminal conduct.

Once a determination of alternative treatment as described under California Penal Code 1170.9 what is the next step?

Once the decision to place the accused in alternative treatment is made, the accused can through defense counsel make a plea to the United States Department of Veterans Affairs; which can help the accused be placed in a community program, federal program, residential program, or private facility that is determinative to their guidelines and agreeable to the court. But the Court will give preference to programs that have a successful history in treating veterans who suffer from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems that resulted for military service- including those administered by the United States Department of Defense or the United States Department of Veterans Affairs.

What is required to get the accused’s freedom restored under the alternative placement as described under California Penal Code 1170.9?

Once the Court is satisfied with the progress of the accused according to the terms stipulated in court, the Court will provide notice a hearing and provide indications of notice within 15 days (about 2 weeks) of the hearing date set on the calendar.

PC 1170.9 – Defending

But defense counsel through participation of clinician engagement must prove that:

That the defendant earned, in the eyes of restorative relief (in the interest of justice): completed formal education; developed a current career; took on personal responsibility efforts; contributed or continues to actively contribute to the community; completed all courses, activities as indicated in the compliance syllabus as required in the facility where the defendant was a patient. These are the factors that the Court needs to see as distinguishing characteristics to allow the defendant to be determined, rehabilitated, and removed from the alternative placement program.

What further actions can the Court take upon a finding of rehabilitation and relief under a California Penal Code 1170.9 confinement?

The Court if it deems necessary and through counsel request can grant the additionally remedies to the defendant:
reduction of the felony to a misdemeanor under 17(b); Grant an expungement by a presented motion in the same hearing under California Penal Code 1203.4; and dismiss the matter under a 1385 motion to the court.

Can all charges be dismissed after a finding of relief under California Penal Code 1170.9 under Court discretion?

No-The following charged convictions cannot be dismissed by Court discretion under a finding of relief: PC 288, PC 286; PC 287; PC 261.5; PC 288.5; PC 290 registration crimes; PC 261.

What are some of the negative collateral effects associated after a finding of relief under California Penal Code 1170.9?

The following are some of the negative collateral effects:

  • lifetime documentation of DNA evidence;
  • Lifetime sealing of police records;
  • lifetime ban against all firearm possession and ownership.

PC 1170.9 – Hire a Lawyer

If you or your loved ones are military veterans or currently serving in the military and have an identifiable mental impairment that was the result of a current arrest prior to conviction and seek options for alternative sentencing not filed or dismissed call The Esfandi Law Group, APLC for advice pertaining to a PC 1170.9 petition. Seppi Esfandi, Principal Attorney of The Esfandi Law Group, APLC, his staff, and Attorneys are delighted to discuss your legal issues and seek retainment to provide solutions.

Call Us for a FREE Case Review: 310-274-6529

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Lara S.
June 4, 2018
Seppi had my case reduced to just an infraction, and thanks to him I was able to keep my job. Jorge was extremely helpful too, the reason I went with this law firm. Overall pleased.

How to Win Your Case

We cannot stress enough that you read, understand and follow these 10 basic rules if you are criminally charged or under investigation:

  1. Don’t ever talk to the police
  2. Do not discuss your case with anyone
  3. Everything you tell your lawyer is confidential
  4. Tell police you need to contact your attorney
  5. Never consent to any search by the police
  6. If the police knock on your door, don't answer!
  7. Realize the consequences of a criminal conviction
  8. Your lawyer (not you) will contact any witnesses
  9. Information on your cell phone is evidence
  10. Early Intervention is the key

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