Since 1982, with the enactment of Penal Code § 1170.9, our state legislature has recognized the unique needs of military veterans in dealing with California’s sentencing guidelines. In 1982, our courts were witnessing Vietnam veterans struggling with psychological and chemical dependency problems that manifested themselves in everything from multiple DUI’s, domestic violence, substance abuse and fighting in public.
What to Take Away: Penal Code § 1170.9 is best understood as a special form of probation for veterans that allows a qualified veteran to get treatment instead of going to prison or jail. The article below discusses who is qualified. We find that the program applies to even felonies classified as strikes.
Our jails and prisons came to the conclusion that our veterans would benefit more from treatment than incarceration to overcome or at least manage their disabilities acquired during military service. Penal Code § 1170.9, in 1982, was then enacted to give back to those who gave so much to society.
Since that time, section 1170.9 has been amended three times, the last time being in mid-2010. As it presently stands, 1170.9 allows a judge to order treatment, rather than jail or prison, when it finds that an eligible veteran suffers from:
1. Post-Traumatic Stress Disorder (PTSD);
2. Traumatic Brain Injury;
3. Military Sexual Trauma;
4. Substance Abuse; or
5. Any other mental health problem that is the result of having served in the military.
A veteran is eligible for sentencing under 1170.9 usually by simply presenting his DD-214 to prove service (combat action is no longer required), a valid medical diagnosis and be eligible for probation.
Many judges do require some causal connection between the mental condition acquired during service to our country and the crime at issue, but this is actually not required. A prudent attorney representing a veteran, nonetheless, should anticipate a judge addressing this issue and the attorney should be able to argue that the service-related disability is a significant factor in the commission of the crime. However, unlike in other forms of diversion, no medical doctor’s opinion on this is required.
Not all veterans are eligible for 1170.9 diversion, but most will be because they left the service with an honorable discharge. When the veteran received a general, other-than-honorable (OTH) or bad conduct discharge (BCD) by special court martial, the veteran may still be eligible for 1170.9 sentencing. In such cases, the veteran must apply through the VA regional office for an evaluation to waive the presumptive bar to benefits.
When one has a dishonorable discharge, it is very difficult to receive a waiver of the bar because a dishonorable discharge is the result of a general court martial, not the less formal special court martial. However, the veteran may still apply for the waiver through his VA regional office.
The disabilities listed above as conditions for alternative sentencing must be found at least ten percent service-related, either by this being stated on the DD-214 or from a VA doctor making such a written diagnosis.
The fundamental purpose of the program is to reduce recidivism because the types of disabilities, if untreated, make the veteran more susceptible to re-offend. Post-traumatic stress disorder, for example, often worsens with time, especially if treated and if the veteran is incarcerated, a further stressful environment. Post-traumatic stress disorder can even become resistant to treatment. Military sexual trauma, which is “extraordinarily common and usually unreported” according to Associate Justice Eileen Comerford Moore, must also be treated to permit the veteran a smooth transition back into civilian life.Postscript:
In late June 2018, our state legislature enacted Penal Code 1001.36 to provide a program of mental disorder diversion that overlaps to some degree the provisions of 1170.9. Section 1001.36 is not restricted to active duty or military veterans, but a service-related mental illness would certainly apply if there is some nexus between the mental disorder and the alleged criminal act. Any veteran facing a misdemeanor criminal case should also look into Penal Code § 1001.80, known as veteran’s diversion because it even applies to DUI.
This article was written by Greg Hill, a combat veteran himself. Mr. Hill, as a Captain in the Marine Corps, flew 35 combat missions in Operation Desert Storm in 1991. As a lawyer, he has defended many veterans with compassion throughout Los Angeles, Orange, Riverside, San Bernardino and Ventura County. He is also a twenty-year member of the Admissions Board for the U.S. Naval Academy, his alma mater.
For more information about sentencing programs and terms, click on the following articles:
- What Is Diversion, Delayed Entry of Plea and Deferred Entry of Judgment?
- Drug Diversion Programs – Prop 36 Versus PC 1000
- Court Makes Mistake in Sentencing Mentally Disordered Offender to Treatment
Greg Hill & Associates