SB 1209: Sentencing: members of military: trauma.
- Session Year: 2021-2022
- House: Senate
- Latest Version Date: 2022-09-28
Existing law requires a 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 the defendants military service, to consider that circumstance as a factor in mitigation when imposing a sentence. Existing law allows a defendant who is currently serving a felony sentence and meets these criteria to petition for resentencing if those criteria were not considered at the time of sentencing and the person was sentenced prior to January 1, 2015.
This bill would allow a defendant meeting these criteria to petition for recall of sentence and resentencing, as specified, without regard to whether the defendant was sentenced prior to January 1, 2015. The bill would also exclude from special consideration and from resentencing, any person convicted of, or having a prior conviction for, certain violent and sexual offenses.
Existing law requires a 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 the defendants military service, to consider that circumstance as a factor in mitigation when imposing a sentence. Existing law allows a defendant who is currently serving a felony sentence and meets these criteria to petition for resentencing if those criteria were not considered at the time of sentencing and the person was sentenced prior to January 1, 2015.
This bill would allow a defendant meeting these criteria to petition for recall of sentence and resentencing, as specified, without regard to whether the defendant was sentenced prior to January 1, 2015. The bill would also exclude from special consideration and from resentencing, any person convicted of, or having a prior conviction for, certain violent and sexual offenses.
Existing law requires a 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 the defendants military service, to consider that circumstance as a factor in mitigation when imposing a sentence. Existing law allows a defendant who is currently serving a felony sentence and meets these criteria to petition for resentencing if those criteria were not considered at the time of sentencing and the person was sentenced prior to January 1, 2015.
This bill would allow a defendant meeting these criteria to petition for recall of sentence and resentencing, as specified, without regard to whether the defendant was sentenced prior to January 1, 2015. The bill would clarify that this relief is available whether or not there was argument or evidence made or presented about the defendants condition during arraignment or any pretrial proceedings, at trial, or at sentencing. The bill would also exclude from special consideration and from resentencing, any person convicted of, or having a prior conviction for, certain violent and sexual offenses.
Existing law requires a 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 the defendants military service, to consider that circumstance as a factor in mitigation when imposing a sentence. Existing law allows a defendant who is currently serving a felony sentence and meets these criteria to petition for resentencing if those criteria were not considered at the time of sentencing and the person was sentenced prior to January 1, 2015.
This bill would allow a defendant meeting these criteria to petition for recall of sentence and resentencing, as specified, without regard to whether the defendant was sentenced prior to January 1, 2015. The bill would clarify that this relief is available whether or not there was argument or evidence made or presented about the defendants condition during arraignment or any pretrial proceedings, at trial, or at sentencing. The bill would also exclude from resentencing special consideration and from resentencing, any person convicted of of, or having a prior conviction for, certain violent and sexual offenses.
Existing law requires a 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 the defendants military service, to consider that circumstance as a factor in mitigation when imposing a sentence. Existing law allows a defendant who is currently serving a felony sentence and meets these criteria to petition for resentencing if those criteria were not considered at the time of sentencing and the person was sentenced prior to January 1, 2015.
This bill would allow a defendant meeting these criteria to petition for recall of sentence and resentencing, as specified, without regard to whether the defendant was sentenced prior to January 1, 2015. The bill would clarify that this relief is available whether or not there was argument or evidence made or presented about the defendants condition during arraignment or any pretrial proceedings, at trial, or at sentencing. The bill would also exclude from resentencing any person convicted of certain violent and sexual offenses.
Existing law authorizes the Secretary of the Department of Corrections and Rehabilitation, if the secretary determines that a prisoner satisfies specified criteria, including that the prisoner is terminally ill and the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety, to recommend to the court that the prisoners sentence be recalled. Existing law prohibits a person from being eligible for recall under this provision if the person was convicted of first-degree murder and the victim was a peace officer who was killed while engaged in the performance of their duties and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of their duties, or if the victim was a peace officer or former peace officer who was intentionally killed in retaliation for the performance of their duties.This bill would make technical, nonsubstantive changes to those provisions.Existing law authorizes the Secretary of the Department of Corrections and Rehabilitation, if the secretary determines that a prisoner satisfies specified criteria, including that the prisoner is terminally ill and the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety, to recommend to the court that the prisoners sentence be recalled. Existing law prohibits a person from being eligible for recall under this provision if the person was convicted of first-degree murder and the victim was a peace officer who was killed while engaged in the performance of their duties and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of their duties, or if the victim was a peace officer or former peace officer who was intentionally killed in retaliation for the performance of their duties.
This bill would make technical, nonsubstantive changes to those provisions.
(a)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 the defendants military service, the court shall consider the circumstance as a factor in mitigation when imposing a sentence. This consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation.
(b)(1)A person currently serving a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the United States military and who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the persons military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in the case, to request resentencing if the circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the persons military service was not considered as a factor in mitigation at the time of sentencing.
(2)If the court that originally sentenced the person is not available, the presiding judge shall designate another judge to rule on the petition.
(3)Upon receiving a petition under this subdivision, the court shall determine, at a public hearing held after not less than 15 days notice to the prosecution, the defense, and any victim of the offense, whether the person satisfies the criteria in this subdivision. At that hearing, the prosecution shall have an opportunity to be heard on the petitioners eligibility and suitability for resentencing. If the person satisfies the criteria, the court may, in the interest of justice, and regardless of whether the original sentence was imposed after a trial or plea, do either of the following:
(A)Reduce the defendants term of imprisonment by modifying the sentence.
(B)Vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment with the concurrence of both the defendant and the district attorney of the county in which the defendant was sentenced or by the Attorney General if the case was originally prosecuted by the Department of Justice.
(4)A person who is resentenced pursuant to this subdivision shall be given credit for time served.
(5)Resentencing under this subdivision shall not result in the imposition of a term longer than the original sentence.
(6)This subdivision does not alter or diminish any rights conferred under Section 28 of Article I of the California Constitution (Marsys Law).
(7)This subdivision does not diminish or abrogate any rights or remedies otherwise available to the person.
(8)This subdivision does not diminish or abrogate the finality of judgments in any case not falling within the purview of this subdivision.
(9)This subdivision does not impose an obligation on the Department of Corrections and Rehabilitation to provide medical or mental health assessments in order to identify potential service-related injuries.
(10)This subdivision shall apply retroactively.
(c)This section does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or an offense requiring registration pursuant to subdivision (c) of Section 290.
(a)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 the defendants military service, the court shall consider the circumstance as a factor in mitigation when imposing a sentence. This consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation.
(b)(1)A person currently serving a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the United States military and who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the persons military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in the case, to request resentencing if the circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the persons military service was not considered as a factor in mitigation at the time of sentencing.
(2)If the court that originally sentenced the person is not available, the presiding judge shall designate another judge to rule on the petition.
(3)Upon receiving a petition under this subdivision, the court shall determine, at a public hearing held after not less than 15 days notice to the prosecution, the defense, and any victim of the offense, whether the person satisfies the criteria in this subdivision. At that hearing, the prosecution shall have an opportunity to be heard on the petitioners eligibility and suitability for resentencing. If the person satisfies the criteria, the court may, in the interest of justice, and regardless of whether the original sentence was imposed after a trial or plea, do either of the following:
(A)Reduce the defendants term of imprisonment by modifying the sentence.
(B)Vacate the conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment with the concurrence of both the defendant and the district attorney of the county in which the defendant was sentenced or by the Attorney General if the case was originally prosecuted by the Department of Justice.
(4)A person who is resentenced pursuant to this subdivision shall be given credit for time served.
(5)Resentencing under this subdivision shall not result in the imposition of a term longer than the original sentence.
(6)This subdivision does not alter or diminish any rights conferred under Section 28 of Article I of the California Constitution (Marsys Law).
(7)This subdivision does not diminish or abrogate any rights or remedies otherwise available to the person.
(8)This subdivision does not diminish or abrogate the finality of judgments in any case not falling within the purview of this subdivision.
(9)This subdivision does not impose an obligation on the Department of Corrections and Rehabilitation to provide medical or mental health assessments in order to identify potential service-related injuries.
(10)This subdivision shall apply retroactively.
(c)This section does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or an offense requiring registration pursuant to subdivision (c) of Section 290.
(a)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 the defendants military service, the court shall consider the circumstance as a factor in mitigation when imposing a sentence. This consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation.
(b)(1)A person currently serving a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the United States military and who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the persons military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in the case, to request resentencing if the circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the persons military service was not considered as a factor in mitigation at the time of sentencing, whether or not there was argument or evidence made or presented about the defendants condition during arraignment or any pretrial proceedings, at trial, or at sentencing. sentencing.
(2)If the court that originally sentenced the person is not available, the presiding judge shall designate another judge to rule on the petition.
(3)Upon receiving a petition under this subdivision, the court shall determine, at a public hearing held after not less than 15 days notice to the prosecution, the defense, and any victim of the offense, whether the person satisfies the criteria in this subdivision. At that hearing, the prosecution shall have an opportunity to be heard on the petitioners eligibility and suitability for resentencing. If the person satisfies the criteria, the court may, in its discretion, resentence the person following a resentencing hearing in either of the following manners: the interest of justice, and regardless of whether the original sentence was imposed after a trial or plea, do either of the following:
(A)By modifying Reduce the defendants sentence to reduce the term of imprisonment. imprisonment by modifying the sentence.
(B)By vacating Vacate the conviction and imposing impose judgment on any necessarily included lesser offense or lesser related offenses, offense, whether or not those offenses were that offense was charged in the original pleading, and then resentencing resentence the defendant to a reduced term of imprisonment with the concurrence of both the defendant and the prosecutor. district attorney of the county in which the defendant was sentenced or by the Attorney General if the case was originally prosecuted by the Department of Justice.
(4)A person who is resentenced pursuant to this subdivision shall be given credit for time served.
(5)Resentencing under this subdivision shall not result in the imposition of a term longer than the original sentence.
(6)This subdivision does not alter or diminish any rights conferred under Section 28 of Article I of the California Constitution (Marsys Law).
(7)This subdivision does not diminish or abrogate any rights or remedies otherwise available to the person.
(8)This subdivision does not diminish or abrogate the finality of judgments in any case not falling within the purview of this subdivision.
(9)This subdivision does not impose an obligation on the Department of Corrections and Rehabilitation to provide medical or mental health assessments in order to identify potential service-related injuries.
(10)This subdivision shall apply retroactively.
(c)This section does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or an offense requiring registration pursuant to subdivision (c) of Section 290.
(a)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 the defendants military service, the court shall consider the circumstance as a factor in mitigation when imposing a sentence. This consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation.
(b)(1)A person currently serving a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the United States military and who may be suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the persons military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in the case, to request resentencing if the circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the persons military service was not considered as a factor in mitigation at the time of sentencing, whether or not there was argument or evidence made or presented about the defendants condition during arraignment or any pretrial proceedings, at trial, or at sentencing.
(2)If the court that originally sentenced the person is not available, the presiding judge shall designate another judge to rule on the petition.
(3)Upon receiving a petition under this subdivision, the court shall determine, at a public hearing held after not less than 15 days notice to the prosecution, the defense, and any victim of the offense, whether the person satisfies the criteria in this subdivision. At that hearing, the prosecution shall have an opportunity to be heard on the petitioners eligibility and suitability for resentencing. If the person satisfies the criteria, the court may, in its discretion, resentence the person following a resentencing hearing in either of the following manners:
(A)By modifying the defendants sentence to reduce the term of imprisonment.
(B)By vacating the conviction and imposing judgment on any necessarily included lesser offense or lesser related offenses, whether or not those offenses were charged in the original pleading, and then resentencing the defendant to a reduced term of imprisonment with the concurrence of both the defendant and the prosecutor.
(4)A person who is resentenced pursuant to this subdivision shall be given credit for time served.
(5)Resentencing under this subdivision shall not result in the imposition of a term longer than the original sentence.
(6)This subdivision does not alter or diminish any rights conferred under Section 28 of Article I of the California Constitution (Marsys Law).
(7)This subdivision does not diminish or abrogate any rights or remedies otherwise available to the person.
(8)This subdivision does not diminish or abrogate the finality of judgments in any case not falling within the purview of this subdivision.
(9)This subdivision does not impose an obligation on the Department of Corrections and Rehabilitation to provide medical or mental health assessments in order to identify potential service-related injuries.
(10)This subdivision does not apply to a person who has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.(11)(10)This subdivision shall apply retroactively.
(c)This section does not apply to a person convicted of, or having one or more prior convictions for, an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or an offense requiring registration pursuant to subdivision (c) of Section 290.
(a)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 the defendants military service, the court shall consider the circumstance as a factor in mitigation when imposing a term under subdivision (b) of Section 1170. sentence. This consideration does not preclude the court from considering similar trauma, injury, substance abuse, or mental health problems due to other causes, as evidence or factors in mitigation.
(b)(1)A person currently serving a sentence for a felony conviction, whether by trial or plea, who is, or was, a member of the United States military and 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 the persons military service may petition for a recall of sentence, before the trial court that entered the judgment of conviction in his or her the case, to request resentencing pursuant to subdivision (a) if the person meets both of the following conditions: if the circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the persons military service was not considered as a factor in mitigation at the time of sentencing, whether or not there was argument or evidence made or presented about the defendants condition during arraignment or any pretrial proceedings, at trial, or at sentencing.
(A)The circumstance of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the persons military service was not considered as a factor in mitigation at the time of sentencing. (B)The person was sentenced prior to January 1, 2015. This subdivision shall apply retroactively, whether or not the case was final as of January 1, 2015.(2)If the court that originally sentenced the person is not available, the presiding judge shall designate another judge to rule on the petition.
(3)Upon receiving a petition under this subdivision, the court shall determine, at a public hearing held after not less than 15 days notice to the prosecution, the defense, and any victim of the offense, whether the person satisfies the criteria in this subdivision. At that hearing, the prosecution shall have an opportunity to be heard on the petitioners eligibility and suitability for resentencing. If the person satisfies the criteria, the court may, in its discretion, resentence the person following a resentencing hearing. hearing in either of the following manners:
(A)By modifying the defendants sentence to reduce the term of imprisonment.
(B)By vacating the conviction and imposing judgment on any necessarily included lesser offense or lesser related offenses, whether or not those offenses were charged in the original pleading, and then resentencing the defendant to a reduced term of imprisonment with the concurrence of both the defendant and the prosecutor.
(4)A person who is resentenced pursuant to this subdivision shall be given credit for time served.
(5)Under no circumstances may resentencing Resentencing under this subdivision shall not result in the imposition of a term longer than the original sentence.
(6)This subdivision does not alter or diminish any rights conferred under Section 28 of Article I of the California Constitution (Marsys Law).
(7)This subdivision does not diminish or abrogate any rights or remedies otherwise available to the person.
(8)This subdivision does not diminish or abrogate the finality of judgments in any case not falling within the purview of this subdivision.
(9)This subdivision does not impose an obligation on the Department of Corrections and Rehabilitation to provide medical or mental health assessments in order to identify potential service-related injuries.
(10)This subdivision does not apply to a person who has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290.
(11)This subdivision shall apply retroactively.
SECTION 1.Section 1170.02 of the Penal Code is amended to read:1170.02.A prisoner is not eligible for resentence or recall pursuant to subdivision (e) of Section 1170 if the prisoner was convicted of first-degree murder and the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of their duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of their duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of their official duties.A prisoner is not eligible for resentence or recall pursuant to subdivision (e) of Section 1170 if he or she the prisoner was convicted of first-degree murder if and the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her their duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her their duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her their official duties.
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Date
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Status
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| Sep 28, 2022 | Chaptered by Secretary of State. Chapter 721, Statutes of 2022. |
| Sep 28, 2022 | Approved by the Governor. |
| Sep 6, 2022 | Enrolled and presented to the Governor at 3:30 p.m. |
| Aug 25, 2022 | In Senate. Ordered to engrossing and enrolling. |
| Aug 25, 2022 | Read third time. Passed. Ordered to the Senate. |
| Aug 15, 2022 | Read second time. Ordered to third reading. |
| Aug 11, 2022 | From committee: Do pass. (Ayes 12. Noes 0.) (August 11). |
| Jun 29, 2022 | June 29 set for first hearing. Placed on suspense file. |
| Jun 14, 2022 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 5. Noes 0.) (June 14). Re-referred to Com. on APPR. |
| Jun 2, 2022 | Referred to Com. on PUB. S. |
| May 26, 2022 | In Assembly. Read first time. Held at Desk. |
| May 25, 2022 | Read third time. Passed. (Ayes 36. Noes 1. Page 3924.) Ordered to the Assembly. |
| May 23, 2022 | Read second time. Ordered to third reading. |
| May 19, 2022 | From committee: Do pass as amended. (Ayes 7. Noes 0. Page 3788.) (May 19). |
| May 13, 2022 | Set for hearing May 19. |
| May 2, 2022 | May 2 hearing: Placed on APPR suspense file. |
| Apr 26, 2022 | Set for hearing May 2. |
| Apr 25, 2022 | Read second time and amended. Re-referred to Com. on APPR. |
| Apr 21, 2022 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 5. Noes 0. Page 3440.) (April 19). |
| Mar 24, 2022 | Set for hearing April 19. |
| Mar 23, 2022 | Re-referred to Com. on PUB. S. |
| Mar 15, 2022 | From committee with author's amendments. Read second time and amended. Re-referred to Com. on RLS. |
| Mar 2, 2022 | Referred to Com. on RLS. |
| Feb 18, 2022 | From printer. |
| Feb 17, 2022 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
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Date
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Description
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Location
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Votes
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| Aug 25, 2022 | SB 1209 Eggman Senate Third Reading By Ting | Assembly Floor |
Passed |
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| May 25, 2022 | Senate 3rd Reading SB1209 Eggman et al. | Senate Floor |
Passed |
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Bill Co-Author(s):