California Court of Appeals, First District, Fifth Division
FOR PARTIAL PUBLICATION[*]
Superior Court Alameda County No. 17CR013796 Hon. Trina L.
William J. Capriola, under appointment by the Court of
Appeal, for Defendant and Appellant.
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.
convicted Whittier Buchanan of several crimes, including
kidnapping with intent to commit a sex offense (Pen. Code,
§ 209, subd. (b)(1)). The trial court found certain
enhancement allegations true and sentenced Buchanan to 60
years to life in prison, which included 10 years for two
prior serious felony convictions (§ 667, subd. (a)(1)).
Buchanan appeals, raising claims of instructional and
sentencing error. The Attorney General contends the court
made several sentencing errors.
affirm the judgment of conviction and remand for
AND PROCEDURAL BACKGROUND
prosecution charged Buchanan with kidnapping to commit a sex
offense (§ 209, subd. (b)(1); count 1); assault with
intent to commit a sex offense (§ 220, subd. (a)(1);
count 2); and failure to register as a sex offender
(§§ 290, subd. (b), 290.018, subd. (b); count 3).
The information alleged Buchanan had seven prior strike
convictions (§§ 667, subds. (b)-(i); 1170.12), six
prior serious felony convictions (§ 667, subd. (a)(1)),
and that he had served seven prior prison terms (§
667.5, subd. (b)). The information also alleged that as to
count 1, Buchanan was a habitual sex offender (§ 667.71,
subds. (b) & (e)).
Buchanan's Prior Convictions
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
Incident Involving Jane Doe
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. 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.
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, Doe 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
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 man-later identified
as Buchanan-walked up to her and said, “
‘It's unsafe out here.' ” Buchanan
grabbed Doe's elbow. Doe mistakenly thought Buchanan was
her Uber driver, so she stood up and followed him to his
vehicle, a Chevy Astro van. Doe got into the front passenger
seat, still thinking Buchanan was her Uber driver. She called
her father and left him another voicemail, saying she was
fine, and that she was in an Uber. Doe's father called
back and told Doe to ask the driver to take her to a nearby
Safeway that was open 24 hours.
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.' ”
terrified. She said, “ ‘take all my money. Just
let me off anywhere.' ” Buchanan took the money but
kept driving. He remarked that Doe “ ‘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.
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 down.' ” Buchanan seemed angry. He
said, “ ‘Don't you dare' ” and
reached for Doe. Doe began climbing through the window, and
Buchanan grabbed her torso and legs.
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
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 also heard the
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.
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
police 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, and “she went on about her drinking
problems and psychological stuff.” Eventually, Doe got
out of the van and Buchanan drove away.
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 appearance, 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.”
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.
denied kidnapping Doe or holding her in the van. He denied
using methamphetamine and claimed it belonged to a homeless
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.
2017, the jury convicted Buchanan of the charges, and the
court sentenced ...