Practice Alert – Representing Veterans
The law gives veterans special legal rights. In order to provide effective assistance of counsel to our members of the United States military, and to veterans, attorneys must be aware of specific legal provisions. Judges, also, must take care to review the applicable provisions.
Rights at Arraignment:
At arraignment, the magistrate “shall inform the defendant that there are certain provisions of law specifically designed for individuals who have active duty or veteran status and who have been charged with a crime. The court shall inform the defendant that if the defendant is on active duty in the United States military, or is a veteran of the United States military, the defendant may request a copy of the Judicial Council military form that explains those rights and may file that form with the court so that the defendant’s active duty or veteran status is on file with the court. The court shall advise the defendant that the defendant should consult with counsel prior to submitting the form and that the defendant may, without penalty, decline to provide this information to the court.” (Pen. Code, § 858, subd. (d).) Subdivision (e) of section 858 then provides that “[i]f the defendant acknowledges active duty or veteran status and submits the Judicial Council military service form to the court, the defendant shall file the form with the court and serve the form on the prosecuting attorney and defense counsel. The form may be used to assist in determining eligibility for services pursuant to Section 1170.9. The court shall transmit a copy of the form to the county veterans service officer for confirmation of the defendant’s military service. The court shall also transmit a copy of the form to the Department of Veterans Affairs.”
Thus, every single defendant in California is supposed to be informed at arraignment that if they are either active duty or a veteran, and are charged with a crime, they have certain rights under California law. Judges must make sure that defendants are being properly advised so that United States military personnel and veterans are aware of their legal rights.
Rights at Sentencing:
Penal Code section 1170.9, subdivision (a), provides that if a defendant alleges that he or she committed an offense as a result of trauma, injury, or other problem “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 . . . problems as a result of his or her service. The court may request, through existing resources, an assessment to aid in that determination.”
Subdivision (b)(1) of section 1170.9 provides that an offense committed as a result of a trauma, injury, or other problem stemming from service shall be considered “a factor in favor of granting probation.” Thus, the defendant veteran must satisfy the nexus requirement –i.e., it must be shown that the offense resulted from a military service trauma. Subdivision (b)(2) states that the court may order the person into a treatment program “for a period not to exceed that period which the defendant would have served in state prison or county jail . . . .” Subdivision (e) provides that defendants committed to residential programs “shall earn sentence credits for the actual time the defendant serves in residential treatment.” A defendant does not need to participate in a formal veterans’ rehabilitation court program in order to receive the benefits offered by Penal Code section 1170.9
Future legislation may make Penal Code section 1170.9 retroactive, thereby providing more than 6,000 incarcerated veterans an opportunity to ask the Superior Court for resentencing in light of trauma, injury, or other problems associated with their military service. If enacted, Public Defender’s offices should be prepared to reach out to eligible inmates.
Right to Restorative Relief:
Subdivision (h)(1) of section 1170.9 states “[i]t 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.” If the court finds that the defendant satisfies the criteria set forth in (h)(1)(A) through (E), the court may grant restorative relief. (Pen. Code § 1170.9, subd. (h)(3).) In order to get restorative relief, a veteran defendant must go through a treatment program. Restorative relief is defined as 1) early termination of probation, reduction to a misdemeanor, and Penal Code section 1203.4 relief. (Pen. Code § 1170.9, subd. (h)(3)(A)(B)(C).) The section 1203.4 relief is broadly defined pursuant to section 1170.9, subdivision (h)(4)(C) through (I). In other words, the veteran who receives section 1203.4 relief has greater rights than a non-veteran defendant, such as the right to have the arrest record completely sealed. (Pen. Code § 1170.9, subd. (h)(4)(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”].) Defense counsel will need to take special care to advise their clients about the extent of the restorative relief ordered by the court.
Penal Code Section 1001.80 Military Diversion Program For Misdemeanors:
A defendant charged with any misdemeanor offense, and who satisfies the admissions criteria, may be placed on diversion prior to adjudication. A defendant is eligible if 1) he or she was, or currently is, a member of the United States Military, 2) the defendant may be suffering from mental health problems and other trauma including PTSD, and 3) the trauma resulted from military service. Unlike Penal Code section 1170.9, there is no formal eligibility requirement that the offense conduct resulted from the military service trauma, though such showing would be influential to the court in deciding whether a veteran should be diverted. The judge will decide if there is an appropriate and available treatment program, and determine if diversion is appropriate in the interests of justice. The court will suspend criminal proceedings during completion of the diversion program.
Within two years of the grant of diversion, upon motion by the defendant demonstrating satisfactory completion of the diversion program, the judge shall dismiss the criminal charge. Additionally, the arrest upon which the diversion was based shall be deemed to have never occurred, with the exception of applying to be a peace officer.
Veterans’ Courts:
In some jurisdictions, Veterans’ Courts are available to assist veterans who are in the criminal justice system. The programs help veterans achieve rehabilitation and offer encouragement. Veterans’ Courts may follow the framework of Penal Code sections 1170.9 and 1001.80. They function in a manner similar to mental health court, drug court, or other “rehabilitative” or “collaborative” courts. The California Judicial Branch website has information about veterans’ courts including a directory of treatment courts and other resources for veterans. The website for the judicial branch is www.courts.ca.gov. Go to Programs >Collaborative Justice Courts>Adult Courts>Veterans Treatment Courts.
Conclusion:
California law provides special rights to military personnel and veterans. Defense counsel should be careful to screen clients for current or prior military service. The failure to assert the special rights of a veteran under California law may be considered ineffective assistance of counsel. Those who have served in the military may suffer mental health problems, and problems adjusting to civilian life, upon their return home. Everyone involved in the legal system should give special consideration to our veterans and active military, and should help them attain rehabilitation.