39 Cal. App. 5th 385
Cal. Ct. App. 5th2019Background
- Defendant Whittier Buchanan was convicted of kidnapping with intent to commit a sex offense (§ 209(b)(1)), assault with intent to commit a sex offense (§ 220(a)(1)), and failure to register as a sex offender (§ 290). Jury convicted in 2017; trial court sentenced to 60 years to life (including prior serious-felony enhancements).
- Incident facts: intoxicated female victim accepted help, entered Buchanan's van, was driven to a secluded area, threatened with sexual assault, escaped after ~30 minutes; neighbor intervened and police later arrested Buchanan and found the victim's phone and drug paraphernalia in his van.
- At sentencing the court found most prior serious-felony enhancements true, found the habitual sex-offender allegation true, but did not make express findings on prior prison-term enhancements; court struck one prior serious felony.
- On appeal both parties and the court identified multiple sentencing defects: no expressed § 136.2 findings for no-contact order duration, failure to resolve prior prison-term enhancements, and need to exercise discretion under SB 1393 (Bill 1393) for prior serious-felony enhancements.
- The parties disputed whether consecutive sentences for serious felonies were mandatory under Proposition 36; the Attorney General argued consecutive sentences were required, while Buchanan argued the court had discretion to run sentences concurrently when offenses arose from the same occasion or operative facts.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the no-contact order duration required § 136.2 findings | AG: court need not elaborate beyond issuing order | Buchanan: court must state duration and reasons per § 136.2 | Remand: court must determine duration and explain reasons under § 136.2(i)(1) |
| Whether consecutive sentences for multiple serious/violent felonies are mandatory under Prop 36 | AG: Prop 36 mandates consecutive sentences for multiple serious felonies | Buchanan: court retains discretion to impose concurrent terms when crimes arise from same occasion/operative facts | Majority: Prop 36 does not eliminate court discretion; concurrent sentence for count 2 was not an abuse of discretion (following People v. Torres) |
| Whether sentence for failure to register (nonserious felony) must run consecutively | AG: consecutive sentence required under statute when paired with serious felonies | Buchanan: argued concurrent? (conceded nonserious classification) | Held: count 3 must be imposed consecutively; remand to impose consecutive term |
| Whether prior enhancements/prior prison-term findings and SB 1393 discretion require resentencing | Buchanan: court erred by not resolving prior prison-term findings and must exercise SB 1393 discretion to strike or impose prior serious-felony enhancements | AG: agrees resentencing necessary; parties dispute number of prior prison terms | Held: affirm conviction but remand for resentencing to (1) resolve or strike prior prison-term enhancement(s), (2) exercise discretion under SB 1393 re: prior serious-felony enhancements, and (3) run or strike the enhancement attached to count 2 as specified in remand instructions |
Key Cases Cited
- People v. Hendrix, 16 Cal.4th 508 (explaining interplay of consecutive/ concurrent sentencing under the pre-Proposition 36 Three Strikes statutes)
- People v. Torres, 23 Cal.App.5th 185 (holding Proposition 36 did not eliminate discretion to impose concurrent sentences for serious felonies committed on the same occasion)
- People v. Deloza, 18 Cal.4th 585 (discussing application of Three Strikes consecutive-sentencing rules)