People v. Duncan

Opinion

ROBIE, J.

Defendant Clyde Elmo Duncan pled no contest to the gross vehicular manslaughter of James Hicks while intoxicated and admitted causing bodily injury to Chad Hembree. The remaining counts and allegations were dismissed. The court sentenced defendant to state prison for an aggregate term of 11 years. On appeal, defendant contends remand for resentencing is required because the record fails to reflect that the trial court

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considered the alternative of federal incarceration for Vietnam veterans. (Pen. Code, § 1170.9 (hereafter section 1170.9).) We conclude remand is not required because defendant has failed to show that section 1170.9 presents anything other than a nonexistent sentencing option.

FACTUAL AND PROCEDURAL BACKGROUND

The facts of defendant’s offense are irrelevant. Suffice it to say that defendant, a Vietnam War veteran, drove while intoxicated and crashed his car, killing one of his passengers, and injuring another.

Following defendant’s no contest plea, defense counsel submitted a written statement in mitigation and request for sentencing pursuant to section 1170.9.

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Counsel argued that defendant had been “an alcoholic since shortly after returning from Vietnam” and that his “alcoholism is a direct consequence of the post-traumatic stress disorder (PTSD) which [he] incurred as a result of his service in Vietnam.” Citing section 1170.9, defense counsel urged the court to commit defendant to a federal facility for treatment of his substance abuse and psychological problems resulting from combat service in Vietnam.

At sentencing, neither defense counsel, the prosecutor, nor the trial court mentioned defendant’s request for sentencing under section 1170.9. Rejecting defendant’s claim that his military service should be treated as a factor in mitigation, the court denied probation and imposed the upper term of 10 years for the offense, plus a one-year enhancement.