Transcript Veterans and Penal Code 1170.9


Jude Litzenberger, Coordinator, Veterans Treatment Review
Calendar, San Diego Superior Court and Executive Director,
California Veterans Legal Task Force; (LCDR, USN (Ret.)

Hon. John Lonergan, California Superior Court, Los Angeles
County (Col., USAR)

Paul Freese, Director of Litigation and Advocacy, Public Counsel
Law Center Los Angeles (Veteran, US Army)
VETERANS TREATMENT COURTS
 Judge Robert Russell – Buffalo City Court 2008
 90 (+) Veterans Treatment Courts in U.S.
 13 in California -Santa Clara, Orange, San Bernardino,
Tulare, Los Angeles, Ventura , San Joaquin, San Diego,
Riverside, Santa Barbara, El Dorado, Placer, San Mateo
(Sonoma, Kern, Monterey, Alameda, Sacramento,
Sierra, San Luis Obispo, Kings)
 Collaborative Team model – hybrid of drug court and
mental health court operation
 Provide and monitor treatment in lieu of jail/prison
 Distinctive VTC features – Veteran Mentors & VA care
 Early returns – Buffalo zero recidivism after two years
VTC Basics
 Collaborative approach – 3-4 phased program with
therapeutic/legal/social focus toward independence
 Most plea agreements include legal incentives upon
completion or at phase intervals as legally permitted
 Intense scrutiny in probation monitoring
 Dynamic individualized treatment plan (12-18 mos)
 Felonies/Misdemeanors (formal/informal probation)
 Drug/Alcohol testing as required
Department of Veterans Affairs, Veterans Health Administration (2006). “Guidelines and Recommendations for Services Provided by VHA Facilities to Incarcerated Veterans Re-Entering
Community Living.” Undersecretary for Health’s Information Letter, Washington, D.C. http://www1.va.gov/homeless/docs/IV_IL_10200607.pdf
Veterans Combat Experience
 36.7% Received small arms fire
 56.9% Received incoming artillery, rocket or mortar
fire
 18.1% Handled or uncovered human remains
 34.1% Saw dead or seriously injured Americans
 57.1% Knew someone seriously injured or killed
 47.4% Saw dead bodies or human remains
 45.4% Had a member of their unit become a casualty
Source: Office of the Surgeon Multi-National Corps-Iraq, Office of the Surgeon
General U.S. Army Medical Command. Mental Health Advisory Team (MHAT) VI
OIF 07-09. May 8, 2009.
National Vietnam Veterans
Readjustment Survey (NVVRS)
Vietnam
Theater
Veterans
Current
PTSD (1986-88)
Incarcerated
3,140,000
479,000 (15.2%)
223,000 (45%)
34.2% Misd.
11.5% Felony
Source: National Center for PTSD, Fact Sheet: Findings from the National Vietnam
Veterans’ Readjustment Study, 1988 ~
Extrapolation for OEF/OIF Veterans
U.S. and California
OEF/OIF
Theater
Veterans
2,200,000
CA 198.000
Current
PTSD
Incarcerated
770,000 (35%)
346,500 (45%)
CA
CA 31,185
69,300
Extrapolation based on data from National Center for PTSD, Fact Sheet: Findings from
the National Vietnam Veterans’ Readjustment Study, 1988; and VA published estimates
of OEF/OIF veterans’ PTSD rates.
THIRTY YEARS OF LOBBYING
Increased Criminality and Consequences
Vietnam Era
 DUI limits were 1.0 % BAC or
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higher in most states
DUI was traffic ticket that
only effected driver’s license
if repeated
No interstate compact –
could move to start fresh
Domestic Violence was family
matter
No data mining/criminal
records private
OEF/OIF Era
 DUI limits are .08% or less
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BAC in most states
DUI is misd/felony crime
with severe driver’s license
and employment impact
Interstate compact 48 states
and federal jurisdictions
Domestic Violence
misd/felony with major life
consequences
Data mining/public records
Clinical Implications of PTS
 Traumatic event is re-experienced (triggers)
 Persistent Avoidance of Stimuli associated with the
event and Numbing of response
 Hyper-Arousal Symptomology of Interest
- Sleep interference
- Outbursts of anger
- Concentration/focus problems
- Unreasonable Fear and Hypervigilence
- Exaggerated Startle Response
Practice Tip:
TREATABLE Conditions!
 Post Traumatic Stress (PTS, PTSD, combat stress,
military operational stress – watch “disorder”)
 Traumatic Brain Injury (TBI)
 Military Sexual Trauma (MST)
 Depression
 Substance Abuse/Addiction
These become worse with incarceration, treatment
resistant with age and chronicity. Early identification
and timely treatment yields best results.
Typical Offenses
 ANYTHING High Risk - Driving offenses/robberies
 DUI (multiple offenses in short time period)
 Substance abuse (85% self treat with alcohol)
 Bar fights/Assaults
 Domestic Violence (atypical)
 Possession/Brandishing firearms
 Look for “weird facts” related to triggers
Penal Code 1170.9
CA Legislative History
 Formerly PC 1170.8 enacted in 1982 in recognition of
Vietnam Combat Veterans involved in felony crimes
related to their psychological war wounds
 Revised in 1984, 2006, 2010 and 2012
What PC §1170.9 Does
 California Penal Code § 1170.9 allows the court to
provide treatment in lieu of incarceration for veterans
who suffer from PTSD, TBI, sexual trauma, substance
abuse, or mental health problems as a result of having
served in the United States military.
 Encourages treatment as
early as possible to make
communities safe and
restore veterans to health.
Prerequisites for PC 1170.9
(a) . . . If the veteran alleges the offense was committed
as a result of military sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse,
or mental health problems stemming from service in
the United States military,
Before being sentenced to county jail or state prison
the court shall, make a determination as to whether
the defendant served in the military and whether the
defendant may be suffering from [the above].
PC§1170.9 after 1/1/11
 Defendant served/serves in the military
 Defendant pleads guilty or is found guilty
 Probation eligible/assigned and appropriate treatment
is available
 Treatment can be VA, Vet Center, or other local mental
health resources if available and preference given to
programs which have a history of treating veteran’s
particular assessed condition(s).
 Custody credits day for day for residential treatment.
AB2371
Changes Effective 1/1/13
 Judge monitoring probation/treatment may reduce
felony “wobblers” to misdemeanors
 Misdemeanors, including those reduced, may be
dismissed by the judge without prosecutor agreement
 Unless applying for position in law enforcement,
veteran may answer “NO” to questions re: arrest and
conviction as related to the dismissed case
 Can be considered a prior if any new criminal conduct
happens after dismissal by monitoring judge
VTCs Save Local and State $$$
 Feb 2011-Feb 2012 San Diego VTRC data
 Two year average is 100 veterans per week booked into
county jails (answered yes to “have you ever served in
the military?)
 Diverting 21 veterans in VTRC program saved $530,000
in jail costs (based on $109.30 p/day)
 VA paid for treatment for the 21 participants, saving
the county equivalent of $409,000 for 3500 residential
days ($39 p/day) and 1100 hours of therapy ($61.50 p/hr
LCSW rate)
 One new case – 4.7% recidivism (cf 48 cases prior 2
yrs)
California Veterans Legal Task
Force (CVLTF)
CVLTF Assistance

Recognized non-profit organization under Internal
Revenue Code 501(c )3 (funding/grant partnership)
Offers free assistance to counties throughout
California to help start and expand Veterans
Treatment Courts and affordable legal assistance to
veterans and their families (website, evaluation)
We do not advocate any particular model of VTC, but
can educate the local community organizers on
models they can look at to decide one for their
community
Conducting survey on all CA VTCs/Collaboration
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www.cvltf .org for more information or to donate
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Big Thanks to Our Sponsors
 County of San Diego HHSA, Mental Health Systems,
Inc. Courage to Call Program grant
 Raymond James Charitable Trust
 Criminal Defense Lawyers’ Club of San Diego
 Consumer Attorneys of San Diego
 California Veterans Benefit Fund
 California Department of Veterans Affairs
Panel Presentation
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Hon. John Lonergan, Los Angeles Superior Court
Paul Freese, Director of Litigation and Advocacy,
Public Counsel Law Center, Los Angeles
Jude Litzenberger, Coordinator, Veterans Treatment
Review Calendar, San Diego Superior Court and
Executive Director, California Veterans Legal Task
Force
Moderator: Miguel Pares, San Bernardino County
Probation Department
Thank you for helping build stronger communities and
restoring those veterans who serve our nation!