People v. BuchananPeople v. Buchanan
We affirm the judgment of conviction and remand for resentencing.
FACTUAL AND PROCEDURAL BACKGROUND
The prosecution charged Buchanan with kidnapping to commit a sex offense (
Prosecution Evidence
A. Buchanan’s Prior Convictions
In 1990, Buchanan was convicted of four counts of selling cocaine to a Drug Enforcement Administration agent. In 1995, Buchanan sexually assaulted a woman; the following year, he was convicted of forcible rape, forcible oral copulation, and sexual battery. He was sentenced to state prison, and was ordered to register as a sex offender. In 2017, Buchanan was on parole.
B. The Incident Involving Jane Doe
In 2017, Doe was a college student. She was five feet four inches tall and weighed 110 pounds. At about 9:00 p.m. on a May 2017 evening, Doe went to a birthday party, where she drank a beer, and a shot of vodka, “[m]aybe a little bit more than that.” A few hours later, Doe and her friends went to a nearby bar, where she drank a “fish bowl” with several other people.2 Doe and her friends stayed at the bar until 2:00 a.m. Over the course of the evening, Doe had approximately seven shots of alcohol.
When Doe left the bar, she was intoxicated but coherent. She and her friends went to a restaurant. After about 15 or 20 minutes at the restaurant, Doе ordered an Uber, which arrived at approximately 2:30 a.m. Doe checked the license plate, and got into the sedan. The driver—a Caucasian man—took her to her house. During the ride, Doe realized she did not have her keys, and she got upset. Doe, however, assured the driver she would be alright. She got out of the car and sat on the front steps of her house. The Uber left. The street was dark and deserted.
Doe called her father, who had a spare key to her house, and left him a voicemail asking him to bring the spare key. As she sat on the front step, an African-American
Buchanan agreed, but then drove in the opposite direction, to a “woodland looking area.” At that point, Doe realized “something was wrong” and “asked to be dropped off anywhere.” Buchanan refused to let Doe out of the car and said Doe ” ‘wasn‘t going anywhere.’ ” Doe panicked and screamed. Buchanan covered Doe‘s mouth with his hand to muffle her scream. After a short struggle, Doe removed Buchanan‘s hand and climbed into the back seat. Shortly thereafter, Buchanan said to Doe in an ominous tone, ” ‘Now you‘ve . . . got me. You are going to get me into trouble. You made me mad.’ ”
Doe was terrified. She said, ” ‘take all my money. Just let me off anywhere.’ ” Buchanan took the money but kept driving. He remarked that Dоe ” ‘looked like a girl who gives good head,’ ” and threatened she had ” ‘better give him the best head of his life.’ ” Doe thought Buchanan was going to rape her, and feared he would “hurt, maybe kill [her]” if she did not “sexually please him.” Trying to placate Buchanan, Doe responded, ” ‘Yeah. Sure. Anything. Just please don‘t hurt me.’ ” Until that point, Doe and Buchanan had not discussed any sexual acts, and Doe had not flirted with Buchanan. She did not tell Buchanan she had been raped. Doe did not want to perform oral sex on Buchanan, but she agreed, to distract him while she tried to escape.
Doe could not find a door handle, so she “tinkered with the automatic window switch.” The window was partially open but it “didn‘t roll down.” As Doe concentrated on pulling down the window, she tried to distract Buchanan by asking him questions. Buchanan became suspicious and yelled, ” ‘Are you planning something back there?’ ” Not sober enough to think of an excuse, Doe responded: ” ‘I‘m trying to get the window
Doe managed to climb through the window. She landed on a curb, on her knees and elbows. The van slowed to a stop, and Doe saw Buchanan‘s face through the driver-side window. He had a “displeased” expression. Doe screamed for help, and Buchanan drove off. Doe was in the van for a total of 30 minutes.
A neighbor heard Doe repeatedly scream ” ‘Help me, help me’ ” in a desperate voice. The neighbor ran outside and saw Doe sitting in a driveway across the street. He approached her. Doe—terrified—asked, ” ‘Are you going to rape me?’ ” After the neighbor assured Doe he would help her, Doe said “her Uber driver had tried to rape her” and “was going to make her suck his dick.” Another neighbor—who had alsо heard the screams—called 911.
C. Police Investigation
When the police arrived, Doe was panicked. She seemed intoxicated and was jittery but did not appear to be under the influence of drugs. Doe told the police she was in a minivan, and that the driver refused to let her leave “unless she orally copulated him.” Doe said she escaped but that her phone was in the van. She gave the police a description matching Buchanan. Later that morning, the police apprehended Buchanan, and Doe identified him in an in-field show-up.
In Buchanan‘s van, police found Doe‘s phone, suspected methamphetamine, and a pipe with burn marks and residue. There was an unused condom on the floor between the driver and passenger seats. During the incident, Buchanan was wearing a GPS monitor. The GPS locations matched Doe‘s description of where she entered and exited Buchanan‘s van.
The policе interviewed Buchanan twice. In the first interview, Buchanan told the police he saw Doe crying. She said she could not find her house keys, so Buchanan offered to let her sit in his van. Doe spent a few minutes in the front passenger seat of the van. The passenger door never closed and the van did not move. Doe called someone to give her a house key. While she waited for the key, Doe explained how she lost her keys,
In a second interview, Buchanan described the incident differently. He told the police he saw a girl with “long . . . legs,” wearing short shorts, and knee-high boots. She was crying. Buchanan thought Doe was attractive and imagined having sex with her. Doe got in Buchanan‘s van; she said she had been raped and forcibly orally copulated. Based on Doe‘s appearanсe, Buchanan believed this had happened. Doe asked Buchanan to drive her home and offered him money. She told Buchanan she had ” ‘some kind of mental or psychological mind problem’ ” and a “drinking problem.”
At some point, Buchanan stopped the van because he was tired of driving, and he and Doe talked in the backseat. Doe offered to have sex with Buchanan and to ” ‘suck [his] dick real good.’ ” She showed Buchanan her vagina. Buchanan though it was “too good to be true” and became concerned, because Doe‘s “demeanor kept flipping,” from “crying to totally sober.” Eventually, he told Doe to get out of the car and she “went . . . 5150 on [him]” and began yelling for help. Buchanan drove away.
Buchanan denied kidnapping Doe or holding her in the van. He denied using methamphetamine and claimed it belonged to a homeless woman.
Defense Evidence
At trial, Buchanan conceded his description of the incident during the first police interview was different than the description he gave in the second interview. Buchanan‘s trial testimony was somewhat similar to his second police interview but added certain details, including that Doe smoked methamphetamine in his van. Some of Buchanan‘s trial testimony differed from the second police interview, i.e., Buchanan testified he was not attracted to Doe. A character witness testified for Buchanan.
Verdict and Sentence
In 2017, the jury convicted Buchanan of the charges, and the court sentenced him to 60 years to life in prison.
I. The Instructional Error Claims Are Unavailing
Buchanan contends the court erred by instructing the jury with CALCRIM No. 361 (failure to explain or deny adverse testimony) and by failing to sua sponte deliver CALCRIM No. 3500 (unanimity) for count 2 (assault with intent to commit a sex offense).
A. Any Assumed Error in Giving CALCRIM No. 361 Was Harmless
The court instructed the jury with CALCRIM No. 361, which provided: “If the defendant failed in his testimony to explain or deny evidence against him, and if he could reasonably be expected to dо so based on what he knew, you may consider his failure in explaining or denying that evidence. Any such failure is not enough to prove the defendant‘s guilt. The people must still prove the defendant guilty beyond a reasonable doubt. [¶] If the defendant failed to explain or deny, it is up to you to decide the meaning and importance of that failure.”
CALCRIM No. 361 “applies only when a defendant completely fails to explain or deny incriminating evidence, or claims to lack knowledge and it appears from the evidence that the defendant could reasonably be expected to have that knowledge.” (People v. Cortez (2016) 63 Cal.4th 101, 117.) “Even if the defendant‘s testimony conflicts with other evidence or may be characterized as improbable, incredible, unbelievable, or bizarre, it is not, . . . ‘the functional equivalent of no explanation at all.’ ” (Id. at p. 117.) Buchanan argues the court prejudicially erred by giving this instruction because he did not fail to explain or deny incriminating evidence. “Assertions of instructional error in this context are reviewed de novo.” We consider the merits of Buchanan‘s claim notwithstanding his failure to object to the instruction in the trial court. (People v. Grandberry (2019) 35 Cal.App.5th 599, 604.)
Here, any assumed error in giving CALCRIM No. 361 was harmless because it is not reasonably probable Buchanan would have received a more favorable verdict had the instruction not been given. The evidence supporting Buchanan‘s guilt was strong. At
In addition to the strong evidence of Buchanan‘s guilt, the impact of CALCRIM No. 361 was mitigated by the language of the instruction, which states the failure to explain or deny, by itself, is not a sufficient basis upon which to infer guilt. The instruction also emphasizes the People‘s burden to prove guilt beyond a reasonable doubt and leaves the meaning and importance of the defendant‘s failure to explain or deny to the jury. (See People v. Vega (2015) 236 Cal.App.4th 484, 503.) Other instructions—including CALCRIM No. 200, which advised the jury to disregard inapplicable instructions, and CALCRIM No. 226, on evaluating witness credibility—mitigated any prejudicial effect of the instruction.
In light of the ample evidence of guilt, and the jury instructions as a whole, it is not reasonably probable Buchanan would have obtained a more favorable verdict had CALCRIM No. 361 not been given. (People v. Vega, supra, 236 Cal.App.4th at p. 503; People v. Lamer (2003) 110 Cal.App.4th 1463, 1472.) Buchanan‘s reliance on a dissenting opinion in People v. Saddler (1979) 24 Cal.3d 671, 689–690 does not alter our conclusion.
B. No Error in Failing to Sua Sponte Instruct on Unanimity
Buchanan claims the court erred by failing to sua sponte instruct the jury with CALCRIM No. 3500. According to Buchanan, a unanimity instruction was required because two acts could have formed the basis for count 2 (assault with intent to commit a sex offense).
“[W]hen violation of a criminal statute is charged and the evidence establishes several acts, any one of which could constitute the crime charged, either the state must select the particular act upon which it relied for the allegation of the information, or the jury must be instructed that it must agree unanimously upon which act to base a verdict of guilty. [Citation.] There are, however, several exceptions to this rule. For example, no
Here, no unanimity instruction was required because the acts forming the basis for count 2 were ” ‘so closely connected as to form part of one transaction.’ ” (People v. Benavides (2005) 35 Cal.4th 69, 98.) Doe was in the car for a total of 30 minutes. While she was in the car, Buchanan covered her mouth to muffle her scream, and they briefly struggled as she tried to remove his hand. Then Doe climbed into the backseat of the van. Shortly thereafter, Doe attempted to climb out of the window. As she tried to escape, Buchanan pulled on Doe‘s legs. The two acts—covering Doe‘s mouth and pulling on her legs—occurred in a short period of time, in the same location. Accordingly, the acts were so closely connected as to form one transaction. (People v. Benavides, at p. 98 [unanimity instruction not required where criminal acts occurred “within a very small window of time“]; People v. Percelle (2005) 126 Cal.App.4th 164, 181–182 [continuous course of conduct exception applied where defendant used same counterfeit access card in two separate visits to store on the same day].)
A unanimity instruction was not required for the additional reason that Buchanan offered the same defense to “the various acts constituting” the assault. (People v. Jennings, supra, 50 Cal.4th at p. 679.) Buchanan‘s defense was he did not commit the offenses—he claimed Doe volunteered to perform sex acts on him, and that her memory of the events was inaccurate. Because Buchanan did not offer a defense that he either covered Doe‘s mouth or grabbed her legs, no juror could have believed he committed one act but disbelieved he committed the other. No unanimity instruction was required. (See People v. Williams (2013) 56 Cal.4th 630, 682; People v. Covarrubias (2016) 1 Cal.5th 838, 880.)
At the 2017 sentencing, the trial court struck one prior serious felony conviction and found the remaining prior felony convictions true. It found the habitual sex offender allegation true. The court made no express findings regarding the prior prison term allegations.
The court sentenсed Buchanan to an indeterminate sentence of 60 years to life in prison, comprised of the following: 50 years to life on count 1 (kidnapping with intent to commit a sex crime), plus 5 years, for the prior serious felony conviction enhancement attendant to count 1. To this 55 years, the court added 5 years “for the prior conviction as to count [2].” The court imposed a concurrent term of 12 years on count 2 (assault with intent to commit a sex crime) and a concurrent term of six years on count 3 (failure to register as a sex offender). The court also issued a no-contact order requiring Buchanan to “stay away from Jane Doe directly or indirectly.” The no-contact order is not reflected in the sentencing minute order or abstract of judgment.
Both parties raise sentencing error claims. Buchanan contends: (1) the no-contact order is unauthorized; (2) the sentence on count 2 must be stayed pursuant to section 654; and (3) the prior serious felony enhancement associated with count 2 must run concurrently to the sentence imposed on count 2. The Attorney General argues consecutive sentences on counts 2 and 3 were mandatory under the Three Strikes Reform Act of 2012 (Proposition 36).
The parties agree the court erred by failing to impose or strike the prior prison term enhancement(s), but disagree on the number of prior prison terms Buchanan suffered. The parties agree the matter must be remanded for the court to exercise its discretion regarding the two prior serious felony enhancements pursuant to Senate Bill No. 1393 (2017-2018 Reg. Sess., Bill 1393).
A. Remand to Comply with Section 136.2
Buchanan contends the no-contact order is “statutorily unauthorized and must be stricken.” Addressing the claim on the merits notwithstanding Buchanan‘s failure to
Pursuant to
Here,
” ’ ” We imply all findings necessary to support the judgment, and our review is limited tо whether there is substantial evidence in the record to support these implied findings” ’ ” (People v. Therman (2015) 236 Cal.App.4th 1276, 1279), but on this record we cannot conclude substantial evidence supports a 10-year duration. Under
B. Proposition 36 Does Not Mandate Consecutive Sentences for Counts 1 and 2, but a Consecutive Sentence Must Bе Imposed on Count 3
The Attorney General argues “consecutive sentencing was mandatory under Proposition 36.” The Attorney General, however, acknowledges People v. Torres (2018) 23 Cal.App.5th 185 (Torres) has rejected this argument. In Torres, a division of this court held Proposition 36 did not alter the rule that “trial courts have discretion to impose concurrent sentences for multiple serious or violent felonies against a single victim if they were committed on the ‘same occasion’ or arose from the ‘same set of operative facts.’ ” (Torres, supra, at p. 197, citing People v. Hendrix (1997) 16 Cal.4th 508.) We decline the Attorney General‘s suggestion to conclude Torres is wrongly decided. We hold the trial court did not abuse its discretion by imposing a concurrent sentence on count 2.
We reach a different conclusion with respect to count 3, failure to register as a sex offender. Where a defendant has “been convicted of a nonserious and/or violent felony, the term imposed for that crime [must be] consecutive to the terms of the serious and/or violent felonies . . . regardless of whethеr those serious and/or violent felonies were committed on ‘the same occasion’ or arose from ‘the same set of operative facts.’ ” (Torres, supra, 23 Cal.App.5th at p. 203.) Buchanan concedes the “failure to register is a nonviolent/nonserious felony” and, as a result, the trial court should have imposed a consecutive term on that conviction.
We remand for the court to impose a consecutive sentence on count 3.
C. Section 654 Does Not Apply to Count 2, but the Prior Serious Felony Conviction Enhancement Attendant to that Count Should Run Concurrently if the Court Does Not Strike or Dismiss It Pursuant to Bill 1393
On count 1, the court imposed an indeterminate term of 55 years. On count 2, the court imposed a concurrent, determinate term of 12 years. The court added 5 years to the
Buchanan argues section 654 barred imposition of sentence on count 2, аssault with intent to commit a sex crime. ”
” ‘The defendant‘s intent and objective are factual questions for the trial court; [to permit multiple punishments,] there must be evidence to support a finding the defendant formed a separate intent and objective for each offense for which he was sentencеd.’ ” (People v. Coleman (1989) 48 Cal.3d 112, 162.) A trial court‘s “imposition of concurrent terms” constitutes an implicit “rejection of the applicability of section 654.” (People v. Alford (2010) 180 Cal.App.4th 1463, 1468.) We uphold an implied “finding that a defendant harbored a separate intent and objective for each offense . . . if it is supported by substantial evidence.” (People v. Blake (1998) 68 Cal.App.4th 509, 512.) Under this standard, we ” ‘review the trial court‘s findings “in a light most favorable to the respondent and presume in support of the order the existence of every fact the trier could reasonably deduce from the evidence.” ’ ” (People v. Lopez (2011) 198 Cal.App.4th 698, 717.)
Buchanan claims the sentence on count 2 should have been stayed because counts 1 and 2 were part of a continuous course of conduct with the single goal of sexually assaulting Doe. Our high court rejected a similar argument in People v. Perez (1979) 23 Cal.3d 545. There, a jury convicted the defendant of forcible rape, forcible sodomy, and forcible oral copulation, and the trial court stayed sentence on the sodomy and oral copulation convictions. (Id. at pp. 549–550.) On appeal, the defendant argued “the trial court properly found that his sole intent and objective was to obtain sexual
The same is true here. Buchanan kidnapped Doe with the intent to sexually assault her. Then, when she tried to climb out of the van window, he assaulted her, again with the intent to commit a sex offense and with a second, independent objective: to try to prevent her from escaping. Substantial evidence supports the trial court‘s implied conclusion that Buchanan‘s intent in kidnapping Doe was separate and distinct from his later intent in assaulting her. By committing the assault, Buchanan was “substantially more culpable” than a defendant who committed only a kidnapping, and as a result, section 654 did not bar imposition of sentence on count 2. (See People v. Perez, supra, 23 Cal.3d at p. 553; People v. Nguyen (1988) 204 Cal.App.3d 181, 191 [section 654 “cannot, and should not, be stretched to cover gratuitous violence or other criminal acts far beyond those reasonably necessary to accomplish the original offense“].)4
Here, the court imposed a concurrent determinate term on count 2. As a rеsult, the enhancement attendant to that conviction must also run concurrently. If the court does not strike or dismiss this prior serious felony conviction enhancement under Bill 1393 (see post, at pp. 15–16), the court must order the enhancement to run concurrently to count 2.
D. Remand to Impose or Strike a Single Prior Prison Term Enhancement
The information alleged Buchanan suffered seven prior prison terms under
The parties agree the court made no explicit findings on the prior prison term enhancement allegations. The Attorney General requests remand to allow the court to impose or strike the enhancements. Buchanan acknоwledges remand is appropriate, but contends he served only one prison term within the meaning of
E. Limited Remand for Bill 1393
The trial court imposed two five-year terms for Buchanan‘s prior serious felony convictions (
In supplemental briefing, the parties agree Bill 1393 applies to Buchanan‘s case, and that remand is appropriate. We remand for the trial court to exercise its discretion under Bill 1393. If the court declines to strike or dismiss the prior serious felony conviction enhancement attached to count 2, it must run that enhancement concurrently with the sentence imposed on count 2. (See People v. Tua, supra, 18 Cal.App.5th at p. 1139.)
The judgment of conviction is affirmed. The matter is remanded for resentencing. At resentencing, the court shall: (1) determine the duration of the no-contact order and explain the reasons for that duration in accordance with the factors listed in
Upon resentencing, the court is directed to issue a new abstract of judgment and to forward a certified copy to the Department of Corrections and Rehabilitation.
Jones, P. J.
I CONCUR:
Burns, J.
I concur in part and dissent in part.
Although I fully agree with most of the majority opinion and its conclusion that the case must be remanded for resentencing, I disagree that a concurrent sentence may be imposed for the assault with intent to commit a sexual offense in count 2 (
The Three Strikes law is contained in two parallel statutes. The legislative version, now set forth in
Prior to the enactment of Proposition 36,
In People v. Hendrix (1997) 16 Cal.4th 508 (Hendrix), the state Supreme Court was called on to construe
Proposition 36 did not similarly amend the parallel provision in
This interpretation is consistent with the purpose of Proposition 36, which reduces the penalty for certain nonserious, nonviolent offenses and maintains “a system of lengthy prison terms for the truly dangerous and violent offenders.” (Couzens & Bigelow, supra, 8:1, p. 8-5.) “Prop. 36 will help stop clogging overcrowded prisons with non-violent offenders, so we have room to keep violent felons off the streets.” (Official Voter Information Guide, Gen. Elec., (Nov. 6, 2012) argument in favor of Prop. 36, p. 52.) Giving courts the discretion to make sentences concurrent when they are for nоnserious or nonviolent felonies while making consecutive sentences mandatory when defendants are currently convicted of serious or violent crimes is consistent with this purpose. Although the trend in recent years has been to expand rather than limit trial court discretion (e.g., Senate Bills No. 620 and 1393,
Notwithstanding the plain meaning of current
The Torres court noted that Proposition 36 made no changes to
I interpret the amended version of
When the electorate passed Proposition 36, which deleted the reference to “paragraph 6” in
The amended version of
When interpreting an initiative, our primary purpose is to ascertain and effectuate the voters’ intent. (People v. Garner (2016) 2 Cal.App.5th 768, 771.) We look first to the language of the statute itself, and if there is no ambiguity, then the plain meaning of the language governs. (Id. at p. 772.) Here, the amended version of
The effect of construing
Appellant‘s current convictions for kidnapping with intent to commit a sexual offense and assault with intent to commit a sexual offense in counts 1 and 2 were serious and/or violent felonies. (
NEEDHAM, J.
Trial Judge: Hon. Trina L. Thompson-Stanley
Counsel:
William J. Capriola, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, Assistant Attorneys General, Donna M. Provenzano and Victoria Ratnikova, Deputy Attorneys General for Plaintiff and Respondent.