Buried within Penal Code § 1170, et seq. are a lot of powerful resentencing provisions that are quite overlooked and often misunderstood.
Section 1170.91(h) is one of those provisions that certainly has enormous benefit to an eligible veteran. In reading it, however, one could conclude that many of its provisions merely repeat or restate other provisions of law otherwise already available.
This would be a shallow understanding of this law because it offers veterans the opportunity to have a police report and court file sealed after even a felony conviction. No other provision of the law allows this for anyone else.
Who is eligible? Well, not every veteran convicted of a felony. Section 1170.91(h)(1)(A) is limited to veterans who:
- Were a member of the U.S. military or are currently members who were granted probation for a conviction and who were suffering from sexual trauma, traumatic brain injury (TBI), post-traumatic stress disorder (PTSD), substance abuse or other mental health problems as a result of that person’s military service.
- The former service member or current service member must have successfully participated in a court-ordered treatment program to address such a service-related disability and is in substantial compliance with the terms of probation (Penal Code § 1170.91(h(1)(B) and (C)).
- The former or current service member does not represent a danger to others (Penal Code § 1170.91(h)(1)(D)).
- The judge must find that defendant “has demonstrated significant benefit” from the court-ordered treatment.
If eligible, the judge can then terminate probation early, waive all remaining court fees and fines (but not victim restitution, if owed), reduce a felony to a misdemeanor under Penal Code § 17(b) (if the crime so provides) and grant relief under Penal Code § 1203.4 (“expungement”).
Section 1170.91(h)(1) does not apply to specific crimes that are listed out (and for which probation probably would not be granted anyways). They are:
- Vehicle Code § 42002.1 (failure to stop to allow a vehicle inspection);
- Penal Code § 261.5 (statutory rape) as a felony;
- Penal Code § 286(c) (sodomy of a victim under age 14 when defendant is more than 10 years older than the victim);
- Penal Code § 288 (Lewd and lascivious acts);
- Penal Code § 287(a) (or former § 288a) (oral copulation);
- Penal Code § 288.5 (continuous sexual abuse of a child);
- Penal Code § 289(j) (forcible sexual penetration, when victim under age 14 and defendant is more than ten years older than the victim); or
- Any other crime where defendant is required to register as a sex offender under Penal Code § 290.
If defendant is eligible for early termination of probation as described above and the underlying crime is not excluded, the judge may also order the police report of the arrest and the court file sealed and destroyed (as is otherwise available under Penal Code § 851.91 and § 851.91) even though the former or current service member was actually convicted. This means one’s DOJ record, as shown on a Livescan report, will not include the conviction or even a record of the arrest and case filing having taken place – it is erased or deleted, which is perhaps the ultimate benefit of this law for current service members or veterans eligible under this law.
This provision, at 1170.1(h)(4)(D) is what really sets § 1170.91(h) above all other provisions because for a regular civilian (not a former or current servicemember eligible under § 1170.91(h)), relief under §§ 851.91 and 851.92 is barred if one was convicted.
A defendant receiving relief under 1170.91(h) is then not obligated to disclose the arrest or the court case, even as dismissed under 1203.4. Penal Code § 1170.91(h)(4)(C).
The former or current service member’s conviction remains “priorable” for future sentencing enhancements, i.e., if a DUI, solicitation of prostitution, domestic violence, etc. Lastly, defendant cannot have his or her DNA sample and DNA profile destroyed upon receiving § 1170.91(h) relief.
We present this article to the reader because many service members do commit crimes while laboring under a service-related mental issue and are unaware of how our law can provide relief to them.
For more information about sentencing alternatives for veterans or current members of the U.S. military, please click on the following articles: