VETERAN DISMISSAL

DISMISSAL OF VETERANS CRIMINAL CONVICTION

Veterans who have acquired a criminal conviction due to a mental health disorder stemming from service in the United States military can have their conviction dismissed by a judge. To be eligible a veteran must successfully comply with their terms of probation.    

ELIGIBILITY REQUIREMENTS FOR VETERANS

To be eligible the court must make the following findings:

• Person was granted probation
• Substantial compliance with probation conditions
• 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
• Does not represent a danger to the health and safety of others.
• Granting restorative relief would be in the interests of justice.

In determining whether it is in the interest of justice the court considers the following factors:

• Defendant’s completion and degree of participation in education, treatment, and rehabilitation as ordered by the court.
• Defendant’s progress in formal education, development of career potential and leadership and personal responsibility efforts.
• Defendant’s contribution of service in support of the community

BENEFITS OF VETERANS CRIMINAL CONVICTION DISMISSAL  

If the judge decides to dismiss the veteran’s criminal conviction, the judge has the authority to deem all conditions of probation satisfied, including fines, fees, assessments, terminate probation early, reduce an eligible felony to a misdemeanor, and grant an expungement under PC1203.4.  A dismissal of the action releases the defendant from all penalties and disabilities resulting from the offense of which the defendant was convicted in the dismissed action.  The dismissal shall be a bar to any future action based on the conduct charged in the dismissed action.

NON-DISCLOSURE OF ARREST

The defendant is not obligated to disclose the arrest on the dismissed action, the dismissed action, or the conviction that was set aside when information concerning prior arrests or convictions is requested to be given under oath, affirmation, or otherwise. The defendant may indicate that he or she has not been arrested when his or her only arrest concerns the dismissed action, except when the defendant is required to disclose the arrest, the conviction that was set aside, and the dismissed action in response to any direct question contained in any questionnaire or application for any law enforcement position.

SEALING OF RECORDS

If the case is dismissed, the court may order the sealing of police records of the arrest and court records of the dismissed action.

CONVICTION STILL HAS CONSEQUENCES

In any subsequent prosecution for any other offense the dismissed case may still be used as a prior offense, may be considered a conviction for the purpose of administratively revoking or suspending or otherwise limiting the defendant’s driving privilege on the ground of two or more convictions, does not remove defendant’s DNA profile from the DNA database, and does not authorize a defendant to own, possess, or have in his or her custody or control any firearm.

1170.9.  – VETERAN DISMISSAL

(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 his or her service. The court may request, through existing resources, an assessment to aid in that determination.

(b) (1) 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, the court shall consider the circumstances described in subdivision (a) as a factor in favor of granting probation.

(2) If 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 period 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 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 the veteran.

(h) (1) 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. The restorative provisions of this subdivision shall apply to cases in which a trial court or a court monitoring the defendant’s performance of probation pursuant to this section finds at a public hearing, held after not less than 15 days’ notice to the prosecution, the defense, and any victim of the offense, that all of the following describe the defendant:

(A) He or she was granted probation and was at the time that probation was granted a person described in subdivision (a).

(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, post-traumatic stress disorder, 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.

(E) He or she has 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.

(2) When determining whether granting restorative relief pursuant to this subdivision is in the interests of justice, the court may consider, among other factors, all of the following:

(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.

(E) The defendant’s contribution of service in support of the community.

(3) If the court finds that a case satisfies each of the requirements described in paragraph (1), then the court may take any of the following actions by a written order setting forth the reasons for so doing:

(A) Deem all conditions of probation to be satisfied, including fines, fees, assessment, and programs, and terminate probation prior to the expiration of the term of probation. This subparagraph does not apply to any court-ordered victim restitution.

(B) Reduce an eligible felony to a misdemeanor pursuant to subdivision (b) of Section 17.

(C) Grant relief in accordance with Section 1203.4.

(4) Notwithstanding anything to the contrary in Section 1203.4, a dismissal of the action pursuant to this subdivision has the following effect:

(A) Except as otherwise provided in this paragraph, a dismissal of the action pursuant to 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.

(B) A dismissal pursuant to this subdivision does not apply to any of the following:

(i) A conviction pursuant to subdivision (c) of Section 42002.1 of the Vehicle Code.

(ii) A felony conviction pursuant to subdivision (d) of Section 261.5.

(iii) A conviction pursuant to subdivision (c) of Section 286.

(iv) A conviction pursuant to Section 288.

(v) A conviction pursuant to subdivision (c) of Section 288a.

(vi) A conviction pursuant to Section 288.5.

(vii) A conviction pursuant to subdivision (j) of Section 289.

(viii) The requirement to register pursuant to Section 290.

(C) The defendant is not obligated to disclose the arrest on the dismissed action, the dismissed action, or the conviction that was set aside when information concerning prior arrests or convictions is requested to be given under oath, affirmation, or otherwise. The defendant may indicate that he or she has not been arrested when his or her only arrest concerns the dismissed action, except when the defendant is required to disclose the arrest, the conviction that was set aside, and the dismissed action in response to any direct question contained in any questionnaire or application for any law enforcement position.

(D) A dismissal pursuant to this subdivision may, in the discretion of the court, order the sealing of police records of the arrest and court records of the dismissed action, thereafter viewable by the public only in accordance with a court order.

(E) The dismissal of the action pursuant to this subdivision shall be a bar to any future action based on the conduct charged in the dismissed action.

(F) In any subsequent prosecution for any other offense, a conviction that was set aside in the dismissed action may be pleaded and proved as a prior conviction and shall have the same effect as if the dismissal pursuant to this subdivision had not been granted.

(G) A conviction that was set aside in the dismissed action may be considered a conviction for the purpose of administratively revoking or suspending or otherwise limiting the defendant’s driving privilege on the ground of two or more convictions.

(H) The defendant’s DNA sample and profile in the DNA data bank shall not be removed by a dismissal pursuant to this subdivision.

(I) Dismissal of an accusation, information, or conviction pursuant to this section does not authorize a defendant to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction pursuant to Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.

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