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"I'm a veteran charged with a crime in California and facing jail or prison. Is there any alternative sentencing available to me?"

On Memorial Day, we pause to remember those brave men and women who fought and died in the service of our country. We say, “Thank You.”

For those brave men and women who survived, a number of these veterans struggle every day with PTSD, traumatic-brain injuries, drug addiction and other disorders. Some of these individuals end up in our courts, fighting criminal charges to stay out of prison. We say, “There is help.”

In California, Penal Code section 1170.9 provides relief from incarceration in favor of treatment for eligible veterans convicted of crime. The code, enacted in 1982, initially sought to help Vietnam Veterans access rehabilitative services instead of serving time in jail or prison. Today, 1170.9 provides relief to any member of the U.S. military who qualifies.

In order to qualify, you must demonstrate at a pre-sentence hearing before the judge that:

(1) You are a member of the U.S. military, either actively serving or had previously served, e.g., the DD Form 214 will evidence this;

(2) You suffer from post-traumatic stress disorder (PTSD), substance abuse; traumatic brain injury, sexual trauma, or other mental health problems stemming from military service;

(3) The offense committed resulted from the above-listed disorders;[1]

(4) You plead guilty or are found guilty; and

(5) You are eligible for probation.[2]

The probation component is key, as the judge will assign an appropriate treatment program as a term of probation and may collaborate with the U.S. Department of Veterans Affairs[3] and other relevant mental health providers. Other probation terms may also be included, depending on the facts of your case, but, because 1170.9 focuses on rehabilitation, treatment will be stressed.

As observed in an appellate court case:

“We believe it consistent with the Legislature’s ‘strong concern emotionally affected Vietnam veterans be afforded every opportunity to get meaningful rehabilitative treatment in a facility specifically designed to deal with their unique and complex disorder,’[4] that the trial court should affirmatively indicate an exercise of discretion under section 1170.9 wherever a prima facie showing of eligibility under that section has been made.[5]

Further, the language of section 1170.9 is mandatory rather than permissive.[6] This means that, while the statute does not require that eligible veterans get treatment as a part of their probation instead of incarceration, the penal code does state that the judge “shall consider” whether the defendant meets the requirements to be eligible for the relief.[7]

Because the aims of 1170.9 are rehabilitative, the code provides guidance on how an affected veteran on probation may obtain “restorative relief” – get you out of custodial supervision. Eligibility will be determined at another public hearing, in which the prosecutor, defense attorney, and any victim of the offense will be notified. The veteran will need to show[8] that:

  • You were granted probation under the qualifying criteria for a U.S. veteran seeking 1170.9 relief;
  • You are in substantial compliance with the conditions of that probation;
  • You have successfully participated in court-ordered treatment and services to address the sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems stemming from military service;
  • You do not represent a danger to the health and safety of others;
  • You have 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.

In considering whether to grant “restorative relief,” the court may consider the following:[9]

· Your completion and degree of participation in education, treatment, and rehabilitation as ordered by the court;

· Your progress in formal education;

· Your development of career potential;

· Your leadership and personal responsibility efforts;

· Your contribution of service in support of the community.

If the court finds that you satisfy the aforementioned requirements, then the court, in a written order, may provide you with additional forms of relief, including early termination of probation, reducing a felony to a misdemeanor, expunging your criminal record under Penal Code § 1203.4, and dismissal of the case against you.[10]

If the case against you is dismissed, you are not obligated to disclose the arrest on the dismissed action, or the conviction when information about prior arrests or convictions is solicited under oath, affirmation, or otherwise.[11] You are only required to disclose the arrest, conviction, and the dismissed action in response to any question or questionnaire for a law enforcement position.[12]

The benefits of 1170.9 seek to help ameliorate some of the traumas of service and war, providing affected veterans with the needed access to treatment and other services, instead of imprisonment. The penal code also allows for additional forms of relief to help transition you to civilian life.

The expert attorneys at Coimbra Law honor our veterans. We may be able to help you gather, prepare, and argue the necessary evidence at the pre-sentence hearing to obtain 1170.9 relief.

[1] Cal. Penal Code § 1170.9(a)
[2] Cal. Penal Code § 1170.9(b)
[3]Cal. Penal Code § 1170.9(g)
[4] People v. Ruby, 204 Cal.App. 3d 462, 468 (1988)
[5] People v. Bruhn, 210 Cal.App. 3d 1195, 1199-1200 (1989)
[6] People v. Bruhn, 210 Cal.App. 3d 1195, 1199-1200 (1989)
[7] Martinez v. Hartley, N.D. California, 2012, 2012 WL 2792349
[8]Cal. Penal Code § 1170.9(h)(1)(A)-(E)
[9] Cal. Penal Code § 1170.9(h)(2)(A)-(E)
[10] Cal. Penal Code § 1170.9(4)(A)-(I)
[11] Cal. Penal Code § 1170.9(4)(C)
[12] Cal. Penal Code § 1170.9(4)(A)(C)