Military Court/Diversion

Criminal court and DMV Representation.

Veterans

For current and former members of the US military who are charged with crimes in California, Veterans Court may be an advisable way to resolve their case in order to avoid jail time, obtain treatment, and obtain different forms of “restorative relief” to lessen the effect of having a conviction “follow them.”

Veterans Court

California allows, but does not require any county court system to set up sentencing alternatives for Veterans. Many county court systems, however, have established Veterans Courts and

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Am I eligible for Veterans Court?

California Penal Code Section 1170.9 (“PC 1170.9”) establishes the requirements for someone to be sentenced to participate in Veterans Court

1. The defendant has to have been convicted of a crime in order to participate in Veterans Court. PC 1170.9 does not specify how the conviction occurs; the defendant could plead guilty, plead nolo contendere or “no contest”, or the defendant could even “fight the case” at a trial and be found guilty then. In all of these cases, a defendant will have been “convicted” of an offense and might become eligible for Veterans Court.

2. The Defendant could otherwise be sentenced to county jail or state prison as punishment for their conviction (so infractions do not count)

A large concern of PC 1170.9 is trying to find treatment for certain Defendants instead of sending them to prison. So, for a Defendant to be sentenced under Veterans Court, there must be some possibility that they could otherwise be sentenced to jail or prison time under the offenses that they were convicted of. This means that “infractions”, which are less serious than both misdemeanors and felonies and never call for jail time on their own, cannot be addressed in Veterans Court.

3. The Defendant must allege that the crime was committed as a result of “sexual trauma, traumatic brain injury, post-traumatic stress disorder (“PTSD”), substance abuse, or mental health problems” stemming from service in the US military.

Military service comes with certain risks that can take a toll on our soldiers, including the risk of mental illness, trauma, and other disabilities. These conditions sometimes create the framework for a defense at trial, to explain why the defendant’s behavior might not be criminal. PC 1170.9, however, is concerned with defendants who suffer from these conditions and have been found guilty of the offenses charged. The defendant must only “allege” that their criminal conduct was a result of the above conditions in order to qualify for Veterans Court. The defendant does not have to actually prove that their actions are explained by their conditions.

4. The defendant must be a former or current member of the US military who is currently suffering from “sexual trauma, traumatic brain injury, post-traumatic stress disorder (“PTSD”), substance abuse, or mental health problems” as a result of their service in the US military.

For this remaining factor, there must be more than just an allegation or assertion by the defense. The Defendant must prove, with evidence, that their condition is related to current or prior military service. Some quick pointers here are useful:

You do not have to serve in combat or be on “active duty”

Nor do you necessarily need an “honorable discharge” (but it helps)

You do have to show that your trauma or illness is a result of military service

This may involve putting on evidence from a specialist or clinician to show how your condition is related to military service. Some county courts might also have their own staffers to evaluate you for the presence of any of the relevant conditions, and say whether or how they are related to your military service.

5. If the court rules that all four of the above things are true, then the defendant might be sentenced to participate in Veterans Court if the following extra factors are true:

The defendant must be eligible for probation (serious offenses that forbid a probationary sentence are ineligible)

The court must be deciding that the defendant is fit for probation

There is no requirement that the Defendant actually be sentenced to probation, but the Court must still believe that the Defendant could be fit for probation if they were so sentenced.

The defendant has to agree to participate in a court-approved treatment program

This factor seems redundant because a person who already does all of the work mentioned above to become eligible for Veterans Court is, in all likelihood, interested in Veterans Court as a sentencing alternative and so would readily agree to participate in a treatment program. However, PC 1170.9 still states that it is a requirement here. In some cases, the court may order the Defendant to participate in a “residential” or “inpatient” treatment program. In those situations, the Defendant’s time spent in these programs will count towards any balance of time owed on any charge, just like time in prison or jail would be counted.

An appropriate treatment program must exist (local probation department might know, as would the VA)

In some cases the local probation department might know some viable treatment programs, or the Department of Veterans Affairs (“VA”) might know as well. The court is allowed to order participation in any state, local, private, or federal treatment program and any treatment period ordered is to be no longer than the period of time for which a Defendant may have otherwise been sentenced to incarceration under their offenses.

The court must rule that the defendant “should” participate in a treatment program

PC 1170.9 only states that the court “may” order the defendant to participate in treatment as part of their sentence when all of the above requirements are met; the court does not have to sentence the defendant to treatment if it otherwise does not want to. The easiest way to understand this provision is to say that Veterans’ Court is not a “right”, even for defendants who might actually need it the most. In cases where the defendant appears eligible for Veterans Court treatment and is interested in it as a way to resolve their case, defense counsel should never assume this is an “automatic” or “given” way to resolve the case, and instead should always be prepared to persuade the judge why Veterans Court is appropriate for their client.

What is Restorative Relief? Why should I do Veterans Court?

For all of its benefits, Veterans’ Court is not necessarily a “get out free” card for Defendants who participate. As explained above, a person sentenced to participate in Veterans Court will have to participate in some kind of treatment, which may be uncomfortable at times. In some cases, the Defendant may consider whether they might be more interested in a probationary sentence outside of Veterans Court. And in some other cases, the Defendant may actually consider that a jail sentence might be preferable if it is for a shorter period of time than a period of inpatient treatment within Veterans’ Court. But Veterans Court participation comes with a special benefit (aside from avoiding jail time altogether): restorative relief.

Types of “restorative relief”

A court granting restorative relief under PC 1170.9 can decide to reduce a felony count down to a misdemeanor, terminate the defendant’s probation early, or grant an expungment for some offenses. This last part-an expungment-is important because traditionally, expungment was often not an available remedy for offenders who might have been a “fit” for Veterans Court. However, expungment is still not available for offenders convicted of certain sexual and child abuse offenses, as well as Vehicle Code Section 42002.1 (failure to stop and submit to inspection).

When would the court grant “restorative relief”?

PC 1190(h) states it is “in the interests of justice” to grant restorative relief to Veterans Court participants when:

The Defendant was granted Veterans Court probation,
The Defendant was in “substantial compliance” of that probation,
During that time, the Defendant successfully participated in programs or treatment to address the sexual trauma, PTSD, traumatic brain injury, substance abuse or mental health problems stemming from military service,
The Defendant does not represent a dance to the health and safety of others AND
The defendant has “demonstrated significant benefit” from court-ordered treatment

The court will consider all of the below factors in deciding whether a Veterans’ Court participant should be granted restorative relief:

The Defendant’s completion/degree of participation in treatment
The Defendant’s progress in formal education
The Defendant’s development of career potential
The Defendant’s leadership and personal responsibility efforts
The Defendant’s contribution of service in support of the community

No single factor here carries more weight than others, as the court should make a holistic determination of how the Defendant has progressed under Veterans Court supervision. When petitioning the court for restorative relief, Defense counsel should prepare to argue all five of the above factors as best they can in order to persuade the court to grant it.

Effect of “restorative relief” after Veterans Court

Whenever a defendant is granted “restorative relief” under PC 1170.9, they never have to disclose the fact of their arrest, conviction, or any aspect of their case to anyone, even if asked “under oath or affirmation”, except for a few circumstances. The defendant will still have to answer questions about their case if directly asked in a questionnaire or when filling out an application for a job in law enforcement. Otherwise, once restorative relief is granted, the Defendant may keep the facts of their case private.

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