Court of Appeals of California, Second District, Division One
Filed June 23, 2011
Court of Appeals of California, Fourth District, Division Three
Decided April 30, 2009
Supreme Court of the United States
Decided November 30, 2009
In the United States District Court for the District Of Colorado
Lewis T. Babcock, Judge
Dated January 15, 2008
Sentencing under statute purporting to provide alternative to probation or imprisonment for Vietnam combat veterans convicted of a felony was a nonexistent sentencing option for defendant who was convicted of gross vehicular manslaughter while intoxicated, even if defendant’s alleged alcoholism was a direct consequence of post-traumatic stress disorder (PTSD) incurred as a result of his service in Vietnam, where there was no federal law which authorized the receipt of defendant to a federal facility for treatment for substance abuse or psychological problems resulting from Vietnam combat service.
Condition of sentencing pursuant to state statute allowing Vietnam veterans convicted of state felonies to be committed to federal corrections custody rather than state prison is that federal correctional authorities must be ready, willing, and able to receive defendant for service of his term of incarceration.
Absent federal law authorizing receipt into appropriate federal corrections programs of Vietnam veterans convicted of state felonies, state statute providing for sentence of Vietnam veterans to federal correctional custody in lieu of state prison was illusory and thus, trial court was not required to consider option of alternative federal rehabilitative commitment when sentencing Vietnam veteran.
Statute providing for a placement of Vietnam veterans convicted of state felonies in federal corrections custody rather than state prison required that federal program be part of federal prison system and did not include commitment to local, noncustodial programs.
Trial court must affirmatively indicate exercise of discretion under this section whenever prima facie showing of eligibility has been made, and intelligent exercise of discretion cannot be inferred from silent record.
Trial court’s summary sentencing of defendant to state prison without considering alternative of commitment to federal facility for treatment for substance abuse or psychological problems resulting from Vietnam combat service required remand for proper exercise of discretion under this section; if on resentencing trial court found that defendant was suitable for alternative placement, court would be required to determine whether defendant was agreeable to such program and whether there was a federal facility authorized to accept him.
Defendant must made initial showing that he served in combat while member of Unites States armed forces and that he suffers from substance abuse or other psychological problems resulting from service to trigger provisions of this section, but, once defendant makes initial showing, trial court must then consider his suitability for federal incarceration for term imposed.
Defendant made sufficient preliminary showing that he was candidate for alternatice placement under this section, thus requiring trial court to consider federal treatment program alternative; record indicated that defendant served combat duty in Vietnam where he used heroin and other drugs, was having difficulty functioning in society following return to United States, at time of offense was homeless, and perpetrated offense to secure basic necessities of life.
Record did not show that trial court fully evaluated whether it was appropriate to commit defendant, who was drug-addicted, decorated Vietnam combat veteran, to custody of federal correctional authorities, rather than state prison, in prosecution for unlawfully possessing controlled substance; defendant’s substance abuse has been diagnosed as being causally related to combat experience.
To render judgement providing for convicted Vietnam veteran’s incarceration in custody of federal correctional officials, court must hold evidentiary hearing and insure that appropriate federal program is available to receive defendant, and if so, court should commit defendant directly to custody of federal officials, but if not, court can only commit defendant to state prison with recommendation that director of corrections exercise his statutory discretion to transfer defendant to federal facility.
Defendant convicted of two counts of bank robbery, who showed that he had served two tours of duty in Vietnam, and who argued that robberies were prompted by his narcotics problem, fell far short of showing that he served in combat in Vietnam and that he suffered from a substance abuse as a result of his service, and thus, failed to show that he was entitled to be considered for commitment to custody of federal authorities for incarceration for term imposed.
Where appropriate federal program for treatment of Vietnam combat veteran suffering from posttraumatic stress syndrome came into operation after defendant, a Vietnam veteran allegedly suffering from PTSD, was first sentenced, remand was required to give trial court opportunity to obtain recommendation of director of correction or board of prisons terms as to whether defendant’s sentencing and commitment previously ordered should be recalled and to place defendant in new federal program.