BILL NUMBER: AB 2098	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  MARCH 24, 2014

INTRODUCED BY   Assembly Member Levine

                        FEBRUARY 20, 2014

   An act to amend Section  190.3 of the Penal Code, relating
to the death penalty.   1170.9 of, and to add Section
1170.91 to, the Penal Code, relating to sentencing. 


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2098, as amended, Levine.  Death penalty: 
 Military personnel: veterans:  sentencing: mitigating
circumstances. 
   Existing law requires the court, 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, to make
a determination, prior to sentencing, 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. If the court
concludes that the defendant is one of the persons described above,
and if the defendant is otherwise eligible for probation and the
court places the defendant on probation, the court is authorized to
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. 

   This bill would additionally require the court to consider its
conclusion that a defendant eligible for probation was, or currently
is, a member of the United States military and that 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 as a factor in favor of granting
probation.  
   Existing law provides that specified felonies are punishable by
imprisonment in a county jail for 16 months, or 2 or 3 years or,
where the term is specified, for the term described in the underlying
offense. When a judgment of imprisonment is to be imposed and the
statute specifies 3 possible terms, the choice of the appropriate
term rests within the sound discretion of the court.  
   This bill would require the court, if it 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, to consider those circumstances as a factor in mitigation
when imposing a term pursuant to the above provisions.  

   Existing law, as added by the Briggs Initiative, a measure
approved by the voters at the November 7, 1978, statewide general
election, among other things, provides that persons convicted of
first degree murder are subject to death or life in prison without
the possibility of parole if any specified special circumstance is
found to be true. Existing law also provides that in determining the
penalty, the trier of fact is required to take into account certain
mitigating and aggravating factors, if relevant, including, but not
limited to, the presence or absence of any prior felony conviction,
and whether or not the offense was committed while the defendant was
under the influence of extreme mental or emotional disturbance.
 
   This bill would add 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, as a mitigating factor.  
   The California Constitution authorizes the Legislature to amend or
repeal an initiative statute by another statute that becomes
effective when approved by the electors.  
   This bill would provide that its provisions will become effective
only upon approval of the voters, and would provide for the
submission of this measure to the voters for approval at a statewide
election. 
   Vote: majority. Appropriation: no. Fiscal committee:  yes
  no  . State-mandated local program: no.


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 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 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.
  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  Veterans Administration  
Department of Veterans Affairs  .
   (g) The court and the assigned treatment program may collaborate
with the Department of Veterans Affairs and the United States
 Veterans Administration   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.
   SEC. 2.    Section 1170.91 is added to the  
Penal Code   , to read:  
   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.  
  SECTION 1.    Section 190.3 of the Penal Code is
amended to read:
   190.3.  If the defendant has been found guilty of murder in the
first degree, and a special circumstance has been charged and found
to be true, or if the defendant may be subject to the death penalty
after having been found guilty of violating subdivision (a) of
Section 1672 of the Military and Veterans Code or Sections 37, 128,
219, or 4500 of this code, the trier of fact shall determine whether
the penalty shall be death or confinement in state prison for a term
of life without the possibility of parole. In the proceedings on the
question of penalty, evidence may be presented by both the people and
the defendant as to any matter relevant to aggravation, mitigation,
and sentence, including, but not limited to, the nature and
circumstances of the present offense, any prior felony conviction or
convictions whether or not that conviction or those convictions
involved a crime of violence, the presence or absence of other
criminal activity by the defendant that involved the use or attempted
use of force or violence or that involved the express or implied
threat to use force or violence, and the defendant's character,
background, history, mental condition, and physical condition.
   However, evidence shall not be admitted regarding other criminal
activity by the defendant that did not involve the use or attempted
use of force or violence or that did not involve the express or
implied threat to use force or violence. As used in this section,
criminal activity does not require a conviction.
   However, in no event shall evidence of prior criminal activity be
admitted for an offense for which the defendant was prosecuted and
acquitted. The restriction on the use of this evidence is intended to
apply only to proceedings pursuant to this section and is not
intended to affect statutory or decisional law allowing that evidence
to be used in any other proceedings.
   Except for evidence in proof of the offense or special
circumstances that subject a defendant to the death penalty, evidence
shall not be presented by the prosecution in aggravation unless
notice of the evidence to be introduced has been given to the
defendant within a reasonable period of time as determined by the
court, prior to trial. Evidence may be introduced without that notice
in rebuttal to evidence introduced by the defendant in mitigation.
   The trier of fact shall be instructed that a sentence of
confinement to state prison for a term of life without the
possibility of parole may in future after sentence is imposed, be
commuted or modified to a sentence that includes the possibility of
parole by the Governor of the State of California.
   In determining the penalty, the trier of fact shall take into
account any of the following factors if relevant:
   (a) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of any special
circumstances found to be true pursuant to Section 190.1.
   (b) The presence or absence of criminal activity by the defendant
that involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.
   (c) The presence or absence of any prior felony conviction.
   (d) Whether or not the offense was committed while the defendant
was under the influence of extreme mental or emotional disturbance.
   (e) Whether or not the victim was a participant in the defendant's
homicidal conduct or consented to the homicidal act.
   (f) Whether or not the offense was committed under circumstances
that the defendant reasonably believed to be a moral justification or
extenuation for his or her conduct.
   (g) Whether or not defendant acted under extreme duress or under
the substantial domination of another person.
   (h) Whether or not at the time of the offense the capacity of the
defendant to appreciate the criminality of his or her conduct or to
conform his or her conduct to the requirements of law was impaired as
a result of mental disease or defect, or the affects of
intoxication.
   (i) The age of the defendant at the time of the crime.
   (j) Whether or not the defendant was an accomplice to the offense
and his or her participation in the commission of the offense was
relatively minor.
   (k) 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.
   (l) Any other circumstance that extenuates the gravity of the
crime even though it is not a legal excuse for the crime.
   After having heard and received all of the evidence, and after
having heard and considered the arguments of counsel, the trier of
fact shall consider, take into account, and be guided by the
aggravating and mitigating circumstances referred to in this section,
and shall impose a sentence of death if the trier of fact concludes
that the aggravating circumstances outweigh the mitigating
circumstances. If the trier of fact determines that the mitigating
circumstances outweigh the aggravating circumstances the trier of
fact shall impose a sentence of confinement in state prison for a
term of life without the possibility of parole.  
  SEC. 2.    Section 1 of this act amends the Briggs
Initiative of 1978, Proposition 7, an initiative statute, and shall
become effective only when submitted to and approved by the voters.
The Secretary of State shall submit Section 1 of this act for
approval by the voters at a statewide election in accordance with
Section 9040 of the Elections Code.