Penal Code § 1170.9 PC – Treatment Instead of Jail for California Veterans

Penal Code 1170.9 is the California statute that allows qualified veterans to undergo treatment as a consequence of a criminal conviction, instead of serving time in county jail or California state prison.

In contrast to other statutes like Penal Code 1001.80, allowing for military diversion in lieu of trial, PC 1170.9 is a form of post-conviction relief. This means it applies after a criminal trial (as opposed to before one) and it comes into play after a veteran has been convicted of a crime.

Veterans are “qualified” to receive treatment, rather than serving time, if they are:

1. eligible for parole, and
2. suffering from certain medical/mental conditions.

As to the latter, a veteran must suffer from these conditions due to military service. And, examples of qualifying conditions include:

• traumatic brain injury,
• substance abuse, and
• post-traumatic stress disorder.

Once a veteran is deemed qualified under PC 1170.9, the court:

1. places the veteran on probation, and
2. orders him into a local, state, federal, or private nonprofit treatment program.

The length of the treatment program is for a period not to exceed the time that the veteran would have served in jail/prison for his crime.

A veteran will have satisfied his conditions of probation, under this code section, once the court finds that he:

• was in substantial compliance with all probation conditions,
• successfully participated in court-ordered treatment and services,
• does not represent a danger to the health and safety of others, and
• has demonstrated a significant benefit from court-ordered treatment.

If a veteran satisfies his probation, then the court may take such actions as to:

• dismiss the action, or
• reduce a felony to a misdemeanor.

Relief under Penal Code 1170.9 should be considered with other forms of relief available to veterans, including:

• military diversion in lieu of jail time, per Penal Code 1001.80, and,
• mental health diversion, per Penal Code 1001.36.

Our California criminal defense attorneys will highlight the following in this article:

• 1. When to Apply
• 2. Eligibility
• 3. Treatment Program
• 4. Completing Probation
• 5. Military Diversion
• 6. Mental Health Diversion

1. When to Apply

PC 1170.9 is a post-conviction form of relief. This means it applies after a defendant has been found guilty of, or pleaded guilty or nolo contendere (no contest) to, a crime.

This stands in contrast to other code sections, like California Penal Code 1001.80, that provides certain relief to veterans before a criminal trial.

2. Eligibility

In order to be qualified to receive treatment under PC 1170.9, a veteran must:

1. be eligible for parole, and
2. meet certain medical/mental conditions.¹

Eligible for probation

To receive treatment under Penal Code Section 1170.9, the defendant must be eligible for probation in California.

Because of this requirement, relief under this code section is not available in certain kinds of cases. For example, probation is not available in cases involving violent felony crimes in California and serious felony crimes that are committed while the defendant is on felony probation.²

Further, there is a strong presumption against granting probation in other kinds of cases. These include crimes involving a deadly weapon or the infliction of great bodily injury (Penal Code 12022.7).³

Even if a defendant is technically eligible for probation, PC 1170.9 alternative sentencing is not required unless the judge actually grants probation.⁴

Medical/mental conditions

A veteran is qualified to receive treatment if the court determines that he suffers from certain medical and/or mental health issues – that stem from military service. These include:

• sexual trauma,
• traumatic brain injury,

post-traumatic stress disorder,

• substance abuse, or
• mental health problems.⁵

Note that the court may request an assessment to aid in the determination that a veteran suffers from one of the above conditions. Otherwise, no medical doctor’s opinion is required in these cases.⁶

For medical/mental qualification, a veteran typically has to only provide his DD-214 (to prove service) and a valid medical diagnosis.

3. Treatment Program

Once a veteran is deemed qualified, the court:

1. places the veteran on probation, and
2. orders him into a local, state, federal, or private nonprofit treatment program.⁷

The length of the treatment program is for a period not to exceed the time that the veteran would have served in jail/prison for his crime.⁸

A defendant granted probation under this section, and committed to a residential treatment program, shall earn sentence credits for the actual time the defendant serves in residential treatment.⁹

4. Completing Probation

Once a veteran completes his court-ordered treatment, the court may determine if the veteran has satisfied all of his conditions of probation. A veteran will have satisfied his conditions of probation, under PC 1170.9, once the court finds that he:

• was in substantial compliance with all probation conditions,
• successfully participated in court-ordered treatment and services,
• does not represent a danger to the health and safety of others, and
• has demonstrated significant benefit from court-ordered treatment.¹⁰

If a veteran satisfies his probation, then the court may take such actions as to:

• dismiss the action, or
• reduce a felony to a misdemeanor.¹¹

5. Military Diversion

Military diversion is a form of “pretrial diversion” and is authorized by California Penal Code 1001.80. This statute allows a judge to postpone a veteran’s criminal proceedings for misdemeanor crimes while the defendant obtains treatment for:

• post-traumatic stress disorder,
• sexual trauma,
• traumatic brain injury,
• substance abuse, or
• mental health problems.¹²

Upon successful completion of a military diversion program, the charges against the veteran will be dismissed. And, the arrest will be deemed never to have occurred for most purposes.

To qualify for military diversion under PC 1001.80, both of the following conditions must apply:

1. the defendant was, or currently is, a member of the United States military; and
2. as a result of his or her military service, the defendant may be suffering from substance abuse or one of the other conditions listed above.

6. Mental Health Diversion

Under Penal Code 1001.36, California’s Mental Health Diversion program allows some criminal defendants to get mental health treatment when they are accused of a crime.

The program is considered a pre-trial form of relief that allows a willing defendant to postpone further action in his/her case in order to participate in a treatment program.¹³

This relief is available to veterans and non-veterans alike, and it can be requested at any point in a criminal case before a defendant is sentenced.

Upon successful completion of a pretrial diversion treatment program, the charges against the defendant will be dismissed.¹⁴

Both misdemeanor and felony defendants can be considered for mental health diversion under PC 1001.36. But the court can only approve a program of treatment if all of the following conditions have been met:

1. the defendant suffers from certain mental health conditions,
2. the defendant’s mental disorder played a significant role in the commission of the charged offense,
3. in the opinion of a qualified mental health expert, the defendant would respond to mental health treatment,
4. the defendant consents to diversion and waives his right to a speedy trial,
5. the defendant agrees to comply with treatment as a condition of diversion, and
6. the court is satisfied that the defendant will not pose an unreasonable risk of danger to public safety.¹⁵

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