People v. Buccafurri CA2/4 ( 2021 )

Filed 10/21/21 P. v. Buccafurri CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE, B304746
Plaintiff and Respondent, Los Angeles County
Super. Ct. No. LA087623
v.
CONSTANCE A. BUCCAFURRI,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Alan K. Schneider, Judge. Reversed and
remanded with instructions.
Randall Conner, under appointment by the Court of
Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Michael R. Johnsen and Nicholas J.
Webster, Deputy Attorneys General, for Plaintiff and
Respondent.
INTRODUCTION
Defendant and appellant Constance A. Buccafurri was
charged with stalking, making annoying phone calls, and
multiple counts of making criminal threats. Before trial, she
requested mental health diversion in lieu of prosecution. The
trial court denied Buccafurri’s request for diversion, concluding
she posed an unreasonable risk of danger to public safety.
Buccafurri pled no contest to one count of criminal threats and
one count of stalking. On appeal, she argues the trial court
abused its discretion in denying her request for mental health
diversion. We agree.
PROCEDURAL BACKGROUND
In 2017, the Los Angeles County District Attorney filed an
information charging Buccafurri with stalking (Pen. Code,1
§ 646.9, subd. (a); count one), five counts of making criminal
threats (§ 422, subd. (a); counts two through six), and one count
of making annoying telephone calls (§ 653m., subd. (a); count
seven).
In March 2018, the court, over defense counsel’s objection,
declared a doubt as to Buccafurri’s competency under section
1368. The court appointed a psychiatrist to prepare a competency
report. Six months later, the court found Buccafurri competent to
stand trial. She pled not guilty to all counts.
On December 6, 2019, the trial court denied Buccafurri’s
request for mental health diversion. The trial court found she
would pose an undue danger to the public that would make
mental health diversion inappropriate in this case. Buccafurri
1 All undesignated statutory references are to the Penal
Code.
2
then pled no contest to counts one (stalking) and six (making
criminal threats). The court accepted the plea and dismissed the
remaining counts under section 1385. The court sentenced
Buccafurri to three years and eight months in state prison,
consisting of an upper term of three years on count one and a
consecutive eight-month term on count six.
On December 10, 2019, Buccafurri moved to vacate her
plea. The court denied the motion, finding no good cause to
support it.
Buccafurri filed a notice of appeal on February 6, 2020,
which this court deemed constructively timely filed. With the
permission of this court, Buccafurri sought and obtained a
belated certificate of probable cause from the trial court.
FACTUAL BACKGROUND2
Buccafurri had a work relationship with Blake Leibel.
They planned to start a production company together, and they
met with Leibel’s accountant, Steven Green, to discuss the
details. Buccafurri and Leibel’s relationship turned romantic in
December 2015. They lived together in Leibel’s condominium in
West Hollywood, then moved to Leibel’s house. In January 2016,
Leibel moved back to his West Hollywood condominium and
reconciled with a former girlfriend. Buccafurri continued living in
Leibel’s house.
Leibel instructed Green to sell the house and have the
proceeds go to Leibel’s ex-wife, Amanda Braun-Leibel. Green
complied with Leibel’s request, and Buccafurri was evicted from
2 The following facts are taken from the preliminary hearing,
as well as the psychiatric report that was prepared to assess
Buccafurri’s suitability for mental health diversion.
3
the house in October 2016. Buccafurri felt victimized by Green,
whom she claimed sold the home illegally and in breach of a
fiduciary duty to her. According to the psychiatric report,
Buccafurri said she became “‘obsessed’ with obtaining what she
perceived as justice from Mr. Green and Ms. Braun-Leibel.” In
late 2017, Buccafurri sent threatening text messages to Braun-
Leibel. She also sent e-mails to Green’s attorney, Mike Balikian,
in which she threatened to kill Green.
In an e-mail to Balikian dated December 8, 2017,
Buccafurri wrote: “I am ready to put a bullet through Steven
Green’s head purposefully and through the whole case and put
Blake back up on the death chair.” In an e-mail to Balikian dated
December 9, 2017, Buccafurri wrote: “Steve Green will be dead.
Who does Steve think he is? I will enter an insanity plea ridding
the earth of Steve Green. It is completely premeditated. There
will not be another tax season for Steve Green ever again.” In
another e-mail to Balikian dated December 12, 2017, Buccafurri
wrote: “And I am going to pull the trigger on Steven Green.
Report me to the FBI, you [expletive] fraud. Do you want Steven’s
dead body on your doorstep?” In an e-mail to Los Angeles County
Sheriff Sergeant William Cotter dated December 14, 2017,
Buccafurri wrote: “I’m tipping you off on a homicide. I’m going to
murder Steven M. Green if you are . . . not [going to] bring me
justice. He is a[n] [expletive] middleman.” Buccafurri’s e-mails
caused Green to fear for the safety of himself and his family.
Buccafurri sent about 200 text messages to Braun-Leibel
from October 23, 2017 to October 26, 2017. In these messages,
Buccafurri said: “I’ll do jail time for you, no problems”; “[y]ou’re
the other murder”; “I would break your [expletive] arms. You did
a disservice to me. I would happily do jail for you. You pushed me
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too far”; and “[y]ou [messed] with the right person to teach you
with a life lesson.” These text messages caused Braun-Leibel to
fear for her and her family’s safety.
On February 16, 2018, Los Angeles County Sherriff
Sergeants Robert Martindale and William Cotter interviewed
Buccafurri. Buccafurri told them she believed Green and Braun-
Libel swindled tens of millions of dollars from her. She said her e-
mails were intended to frighten Green, and confirmed that she
had threatened to break Braun-Leibel’s arms.
DISCUSSION
The Trial Court Abused Its Discretion When It Denied
Buccafurri’s Request for Mental Health Diversion
A. Applicable Legal Principles
Section 1001.36 authorizes a pretrial diversion program for
defendants with qualifying mental disorders. The statute defines
“pretrial diversion” as “the postponement of prosecution, either
temporarily or permanently, at any point in the judicial process
from the point at which the accused is charged until adjudication,
to allow the defendant to undergo mental health treatment[.]”
(§ 1001.36, subd. (c).)
A trial court may order pretrial diversion under the statute
if it finds the defendant meets all of the following criteria: (1) the
defendant suffers from a recognized mental disorder; (2) the
defendant’s mental disorder was a significant factor in the
commission of the charged offense; (3) the defendant’s symptoms
would respond to mental health treatment; (4) the defendant
consents to diversion; (5) the defendant agrees to comply with
treatment; and (6) the defendant will not pose an unreasonable
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risk of danger to public safety if treated in the community.
(§ 1001.36, subd. (b)(1).)
We review a trial court’s dangerousness finding under
section 1001.36 for abuse of discretion. (People v. Moine (2021) 62
Cal.App.5th 440, 448-449 (Moine).)
B. Relevant Proceedings
Buccafurri was arrested on February 16, 2018. On March
22, 2018, over defense counsel’s objection, the court declared a
doubt regarding her competency and ordered criminal
proceedings suspended. Patton State Hospital began treating her
in July 2018 and discharged her in October 2018 to Century
Regional Detention Facility (CRDF) with a diagnosis of
Unspecified Schizophrenia Spectrum or Other Psychotic
Disorder, Sleep Disorder, and Alcohol Use Disorder. On October
5, 2018, the court found her competent to stand trial and
reinstated criminal proceedings.
Following discharge from Patton State Hospital, Buccafurri
remained in custody at the CRDF Mental Health High
Observation Housing unit. By November 2018, progress reports
noted Buccafurri’s “good” mood. CRDF transferred her to the
General Population in February 2019, where she continued to
receive psychiatric treatment.
On June 18, 2019, Buccafurri attended her preliminary
hearing, without incident. Thereafter, she attended court
hearings on July 1, 2019, August 6, 2019, August 22, 2019,
September 9, 2019, and September 17, 2019, all without incident.
On September 17, 2019, the trial court appointed the USC
Institute of Psychiatry and Law to examine Buccafurri regarding
mental health diversion. Collin Lueck, M.D., and Lorraine E.
Cuadra, Ph.D., prepared a psychiatric report based on meetings
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with Buccafurri on October 8, 2019, October 21, 2019 and
November 15, 2019.
Lueck and Cuadra completed their report on November 21,
2019. The report concluded Buccafurri satisfied the six criteria
for mental health diversion. With respect to the dangerousness
criterion at issue in this case, the report stated: “If the defendant
adheres to the recommendations outlined in this report, she will
not pose an unreasonable risk of danger to the public.” The report
recommended numerous treatment measures to help minimize
Buccafurri’s danger to public safety, including monthly
psychiatric follow-ups for medication management to reduce the
likelihood of future manic episodes; enrollment in a dual-
diagnosis residential treatment program for an extended period;
weekly psychotherapy after release from the residential
treatment program; weekly attendance at Alcoholics
Anonymous/Narcotics Anonymous meetings; and random weekly
drug tests.
The report concluded seven factors reduced Buccafurri’s
risk of danger to public safety: (1) “she ha[d] no history of violent
behavior”; (2) her “mental health condition ha[d] been stable with
psychiatric treatment since February 2018” with no institutional
misconduct; (3) she “obtained important benefits from [ ] group
therapy, including stress coping skills and interpersonal
communication skills”; (4) “she noted the mood-stabilizing effect
of her medication”; (5) “she [wa]s able to discuss alternative
framings of events without arguing,” and “ponder the motives of
others”; (6) “she stated her willingness to enter into treatment in
the community to address her mental health and substance use
issues”; and (7) she “exhibit[ed] some insight into the
wrongfulness of [her] offense.” It concluded two factors increased
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her risk of danger to public safety absent treatment: (1) “her
longstanding alcohol/drug use history”; and (2) “limited
psychiatric treatment outside of a structured setting.”
On December 6, 2019, the court found Buccafurri
unsuitable for mental health diversion, reasoning:
“I do believe much of the contents of this [report] is
relevant to circumstances underlying these crimes.
However, I don’t believe under [section] 1170.18 that
I can state that the defendant does not pose an
unreasonable risk of danger to the public safety, and
primarily it’s because of the evaluation of her, of the
defendant, and the belief that proper treatment has
been helpful to the defendant.
“I agree that – but I have not seen evidence of that,
outside of custodial environments, and based on the
nature of the crimes here, the nature of the threats
and the pervasive nature of the allegations here, I do
find that she would pose an undue danger to the
public that would make mental health diversion
inappropriate in this case.
“I also did consider her statement to the court, which
counsel has a copy of, and I did read and consider
that as well. I hope that what she says in those
reports is her true desire. She has been sober for
quite some time. She does appear to be properly
medicated, and I would state that her appearance in
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court, her presentation in court over a fair period of
time has been positive.”
Right after denying diversion, however, the court accepted
Buccafurri’s plea, which, because of time served, led to her
prompt release.
C. Analysis
Buccafurri argues the court’s denial of her request for
mental health diversion was an abuse of discretion. Specifically,
she contends the trial court’s ruling was unreasonable because
her “prior criminal history, her offenses two years prior to the
hearing, and her improved condition while in custody did not
support a finding that [she] would likely [commit a super strike
such as] murder . . . if granted mental health diversion.” In
support of her argument, Buccafurri notes the court concluded
she was too dangerous to receive mental health treatment in the
community, then immediately accepted a plea bargain that led to
her release from custody. The Attorney General counters: “The
trial court . . . properly denied [Buccafurri’s] request for mental
health diversion because [she] issued numerous death threats,
the probation department opined [she] was a serious danger to
the victims and recommended the maximum jail term, and the
psychiatric report found she would not be an unreasonable risk of
danger only if she followed a strict regimen of treatment.”
“Section 1001.36’s definition of ‘unreasonable risk of danger
to public safety’ is supplied by reference to section 1170.18.
[Citation.]” (Moine, supra, 62 Cal.App.5th at p. 449; see
§ 1001.36, subd. (b)(1)(F).) Section 1170.18, in turn, defines
“unreasonable risk of danger to public safety” as “an
9
unreasonable risk that the petitioner will commit a new violent
felony within the meaning of clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (e) of Section 667.” (§ 1170.18, subd.
(c).) “The violent felonies encompassed in this definition ‘are
known as “super strikes” and include murder, attempted murder,
solicitation to commit murder, assault with a machine gun on a
police officer, possession of a weapon of mass destruction, and
any serious or violent felony punishable by death or life
imprisonment.’ [Citation.]” (Moine, supra, at p. 449.) In
determining whether a defendant poses an unreasonable risk of
danger to public safety, a trial court may consider “the opinions of
the district attorney, the defense, or a qualified mental health
expert, and may consider the defendant’s violence and criminal
history, the current charged offense, and any other factors that
the court deems appropriate.” (§ 1001.36, subd. (b)(1)(F).) “[A]
trial court does not abuse its discretion unless its decision is so
irrational or arbitrary that no reasonable person could agree with
it.” (People v. Carmony (2004) 33 Cal.4th 367, 377.)
Applying these principles, we conclude the trial court’s
decision not to grant diversion was an abuse of discretion. In
denying Buccafurri’s request for diversion, the court professed
concern that Buccafurri would pose an undue danger to the
public if released to participate in a mental health diversion
program. Immediately after issuing its ruling denying her
request for diversion, however, the court noted Buccafurri had
made considerable progress while in custody, and expressed its
willingness to accept a plea deal that would result in Buccafurri
being released within “a couple of weeks.”3 If the court believed
3 The court stated: “So, Ms. Buccafurri, I do believe that you
have made a lot of progress while you are in custody, and I would
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Buccafurri’s risk of danger to public safety was low enough to
release her a mere two weeks after the mental health diversion
hearing, we see no logical reason for the court to have concluded
the danger she would pose if granted mental health diversion was
high enough that she might commit a super strike such as
murder or attempted murder. We also note that the court’s
decision to deny diversion but accept the plea was in direct
conflict with the psychiatric report’s conclusion that mental
health treatment would make Buccafurri less of a danger upon
release.
We are not persuaded by the Attorney General’s argument
that the trial court’s ruling was proper in light of the probation
report recommendation, severity of the threats, and lack of a
showing of successful treatment in a non-penal setting.4 As the
psychiatric evaluation stated, Buccafurri made considerable
progress during her time in custody and, with proper treatment,
would not pose an unreasonable risk of danger if granted
diversion. The probation report predated the psychiatric report
by over 18 months, and the probation officer never interviewed
Buccafurri.
like to see that continue . . . . It does appear that there is a
negotiated disposition. Ms. Buccafurri has been in custody for
quite some time and this sentence does appear to be an
appropriate sentence. You will be out very soon. I would be
surprised if they kept you very long at all, and no later than a
couple of weeks would be sort of maximum.”
4 Our decision in this case is in no way intended to minimize
the severity of the threats Buccafurri made or the fear of harm
those threats inflicted upon the victims.
11
As the parties note, two recent cases are instructive –
Moine, supra, 62 Cal.App.5th 440 and People v. Williams (2021)
63 Cal.App.5th 990 (Williams). In Moine, like here, the trial court
denied the defendant diversion on the ground that he was too
dangerous to be treated in the community. (Moine, at p. 449.) The
Court of Appeal reversed, concluding, in light of “the high
standard applicable to a finding of ‘dangerousness’ under section
1001.36[,]” the record did not support the trial court’s ruling. (Id.
at p. 451.) In reaching this conclusion, the court noted two
psychiatrists opined Moine posed a low risk of committing assault
and his criminal history consisted only of misdemeanors. (Ibid.)
The court also found it significant that the trial court released
Moine into the community on bond for a period of over two years,
which indicated it “necessarily found that Moine was not likely to
cause ‘great bodily harm to others’ if released. [Citation.]” (Ibid.)
The court explained: “It is logically inconsistent to deny mental
health diversion on the ground that Moine was likely to commit a
super-strike offense, while simultaneously finding he was not
likely to inflict great bodily injury on persons in the community.”
(Ibid.)
Williams, like Moine, arose from a trial court’s conclusion
that diversion was unwarranted because the defendant posed an
unreasonable risk to public safety. (Williams, supra, 63
Cal.App.5th at p. 992.) The Williams court concluded reversal
was compelled under Moine. (Williams, supra, at p. 1003.)
Williams explained that, similar to the defendant in Moine,
“Williams’s charges [we]re not super-strike offenses, he pose[d] a
low risk to public safety in the uncontroverted opinion of two
mental health professionals, there is no evidence he owned,
possessed or had access to any weapons . . . and he, too, was
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released on bond for more than two years without incident.”
(Ibid.) On these facts, the court concluded it could not sustain the
trial court’s finding that “Williams was reasonably likely to
commit a super-strike offense if granted diversion and treated in
the community.” (Ibid.) The court further explained: “In enacting
a mental health diversion program, the Legislature sought to
expand the use of community-based mental health treatment in
order to prevent defendants with treatable mental illness from
cycling in and out of our criminal justice system.” (Id. at p.
1004.)5
We agree with Buccafurri that reversal is warranted under
Moine and Williams. Similar to the defendants in those cases,
here, none of Buccafurri’s pending charges or past convictions
were super strikes,6 and the mental health professionals who
evaluated her concluded she would not pose an unreasonable risk
of danger to the public if she adhered to mental health treatment.
5 The court noted the mental health diversion law’s
expressly-stated purposes are to “‘“promote . . . [¶] [i]ncreased
diversion of individuals with mental disorders to mitigate the
individuals’ entry and reentry into the criminal justice system
while protecting public safety,” “[a]llowing local discretion and
flexibility for counties in the development and implementation of
diversion for individuals with mental disorders across a
continuum of care settings,” and “[p]roviding diversion that
meets the unique mental health treatment and support needs of
individuals with mental disorders.” (§ 1001.35, subds. (a), (b), and
(c).)’ [Citation.]” (Williams, supra, 63 Cal.App.5th at p. 1004.)
6 Buccafurri’s prior criminal history consists of three
misdemeanor convictions: one driving under the influence
conviction in 2012; one intoxication conviction in 2012; and
another intoxication conviction in 2016.
13
Additionally, as in Moine and Williams, here, the trial court’s
dangerousness finding is undermined by its decision to release
Buccafurri from custody.
With respect to the logical inconsistency between the
court’s dangerousness finding and decision to accept a plea
leading to Buccafurri’s release, the Attorney General argues
those two rulings were governed by separate legal standards,
and, when viewed through the separate lenses of those two
standards, both decisions stand as reasonable exercises of
discretion. We are not persuaded. We are sympathetic to the
difficulties faced by trial courts when making important
decisions, such as the ones made in this case, with differing
standards and often with incomplete or outdated information.
But the court’s decision that Buccafurri could appropriately be
released into the community pursuant to her plea agreement
fundamentally calls into question the reasonableness of its ruling
that she was too dangerous for diversion. This is particularly true
in light of the psychiatric report’s conclusion that Buccafurri
would pose less of a risk if given mental health treatment upon
release.
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DISPOSITION
The case is remanded to the trial court with directions to
vacate Buccafurri’s conviction and refer her to a pretrial mental
health diversion program. When and if Buccafurri successfully
completes diversion, the court shall dismiss the charges. In the
event Buccafurri does not successfully complete diversion, her
convictions and sentence shall be reinstated.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CURREY, J.
We concur:
MANELLA, P.J.
COLLINS, J.
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