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Criminal Law

Crim. Law Journal Summer 2019, Vol. 19, Issue 3

Incarcerated veterans in Need of representation When Filing petitions for resentencing

Penal Code Section 1170.91 provides that a veteran, upon being convicted of a felony, may introduce evidence of a mental health malady arising from military service at sentencing, and that the court must take such evidence into account as a factor in mitigation when sentencing. This law took effect January 1, 2015.

Last year, the Legislature passed Assembly Bill 865, which adds retroactivity to PC 1170.91, so that a veteran convicted prior to January 1, 2015, can petition the court for resentencing provided that the veteran produces evidence of a listed service-related malady. Specifically, the circumstances of suffering from sexual trauma, traumatic brain injury, post-traumatic stress disorder, substance abuse, or mental health problems as a result of the person’s military service may be considered as evidence or factors in mitigation.

Veterans wanting to file petitions for resentencing will need representation and investigative services to ensure that their petitions are supported by documentation as much as possible. Public Defender Offices will be informed of AB 865 and supplied lists of veterans at CDCR who appear eligible for such resentencing. We encourage all Public Defenders to contact these veterans.

Unfortunately, history suggests that not all eligible veterans will be able to secure representation via Public Defender Offices. Therefore, I seek attorneys who might be willing to represent one or more veterans pro bono in this endeavor. My plan is this: (1) CalVet will supply me with a list of incarcerated veterans who report that they have been unable to find counsel; then (2) I will match them with an attorney from a list of pro bono volunteers. If you are interested in possibly representing a veteran, please contact me.

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