People v. Buchanan CA2/5 ( 2023 )

Filed 5/30/23 P. v. Buchanan CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B316996
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BA450667)
KEENON JAMAL BUCHANAN, JR.,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Ronald S. Coen, Judge. Affirmed.
Danalynn Pritz, 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, Idan Ivri and David A. Wildman,
Deputy Attorneys General, for Plaintiff and Respondent.
——————————
The jury found Keenon Jamal Buchanan, Jr., guilty of
felony murder (Pen. Code,1 §187, subd. (a)), and found true the
special circumstance that Buchanan committed the murder
during the commission of a burglary (§ 190.2, subd. (a)(17)). The
trial court sentenced Buchanan to life in prison without the
possibility of parole.
On appeal, Buchanan contends: (1) counsel improperly
conceded that Buchanan committed robbery; (2) counsel’s
concession to Buchanan’s guilt violated Buchanan’s Sixth
Amendment right to effective assistance of counsel; (3) the
prosecutor committed misconduct; (4) Buchanan’s ineligibility for
a youthful offender parole hearing under section 3051,
subdivision (a) violates equal protection; and (5) Buchanan’s
sentence of life without the possibility of parole violates the
Eighth Amendment.
We affirm the trial court’s judgment.
FACTS
The Murder
In September 2016, roommates Benjamin Wakrat and
Richard Hong lived in the Hollywood Hills. Jacques Hyzagi and
Emily Lembo lived in a unit to the left of Wakrat and Hong’s
unit. There was a pathway between the two units, which was
accessed by a single stairway with several gates. A patio behind
Wakrat and Hong’s unit was also gated. The path to the patio
1 All further statutory references are to the Penal Code
unless otherwise indicated.
2
gate was not visible from the street and only accessible through a
narrow opening between two houses with several twists and
turns. Wakrat and Hong kept the padlock on the gate closed so
that it would appear secure, but usually left it unlocked because
Hong did not have keys for it.
On September 22, 2016, Wakrat and Hong attended an
event in Venice Beach until around 8:30 or 9:00 p.m. Wakrat
went to a bar afterwards, but Hong told Wakrat he was going
home.
Hyzagi and Lembo also went out that evening. Hyzagi got
home around midnight. When Hyzagi parked his car, he noticed
a tent on the garage floor that was out of place. As he walked up
to his unit, Hyzagi noticed that there was a light on over the door
leading to Wakrat and Hong’s unit. There was a chair on their
steps and a sign that said something like, “ ‘Keep away. There is
a― . . . gun in the house.’ ” Hyzagi thought it was a joke. As
Hyzagi passed Hong’s door to get to his unit, he heard someone
say, “ ‘Leave at once, or I’ll call the police.’ ” Hyzagi had his
headphones on so he was not certain whether the voice came
from behind the door or the terrace. He went downstairs to see if
someone was there, but he did not see anyone. When he passed
Wakrat and Hong’s unit, Hyzagi heard a voice from behind the
door again say, “ ‘Leave at once, or I’ll call the police.’ ” Hyzagi
disregarded the voice and went home.
Lembo returned around 1:20 a.m. She saw a sign in front
of Wakrat and Hong’s unit that said something like, “If you enter,
you will be shot.”
Sometime after Lembo returned, Hyzagi went down the
stairs to take the trash out. When he came back upstairs,
Buchanan was standing in front of Wakrat and Hong’s unit with
3
his back towards Hyzagi, closing the door. Buchanan said, “ ‘Oh,
I’m so sorry. I didn’t realize you were the next-door neighbor. I
am sorry about what I told you earlier.’ ” Buchanan was
courteous, civil, and poised. Hyzagi assumed he was coming from
a party or dinner. Hyzagi told Buchanan not to worry about it.
Once back in his unit, Hyzagi became suspicious, because he
realized that Buchanan referred to him as the next-door
neighbor. Hyzagi turned off the lights and went into his living
room to watch Buchanan from a large front window.
Lembo came out of the bedroom and told Hyzagi that
someone had tried to break into their house. A window screen
had been popped open and there was a grilling utensil on the
couch outside. Lembo called 911 to report the burglary at 2:13
a.m.2
While Lembo called 911, Hyzagi called Wakrat and asked if
he had a guest staying at his house. Wakrat said he did not, but
that Hong should be there and was probably sleeping. Hyzagi
told Wakrat that someone had broken into Hyzagi and Lembo’s
unit, that a man just left Wakrat’s house, and that Wakrat
should come home. Wakrat left to come home immediately.
Wakrat got home sometime between 2:13 and 2:32 a.m.
When Wakrat arrived, the outside of his door was barricaded and
there was a sign that read, “ ‘Stay off this property . . . intruders
will be shot. . . .’ ” Wakrat knew something was wrong because
although the sign belonged to the owner of the unit, it had been
put away upstairs and there was no reason for it to be outside.
Wakrat stepped inside and almost tripped on Hong’s body, which
2 When
the operator returned her call at 2:32 a.m., Lembo
reported a murder.
4
was under a white tarp just inside the front door. Wakrat pulled
the tarp aside and saw that Hong’s face was smashed in. He
tried to revive Hong, although he believed Hong was dead.
Wakrat went through the house to make sure no one was there.
Then he ran outside and warned Hyzagi not to go inside because
Hong was dead.
From the porch, Wakrat and Hyzagi spotted a person
walking nonchalantly down the street. Hyzagi recognized the
man as the person who had been inside Wakrat’s house. Wakrat
ran inside his unit to get a baseball bat that was usually kept
just inside the front door, but it was gone. He went into the
living room and picked up a sledgehammer he and Hong had
used for camping and immediately realized that it should not
have been in the living room; it was normally stored in the
storage room just off the foyer. Wakrat realized that the
sledgehammer had blood on it, so he put it down where he found
it and went back outside.
Wakrat and Hyzagi followed Buchanan down the street.
Wakrat thought that Buchanan was surprisingly well-dressed in
light of the state of the unit. Buchanan was wearing bright white
shoes, dark-colored pants, and a dark jacket. Hyzagi called after
Buchanan. Buchanan ran, and Wakrat and Hyzagi pursued him,
but Hyzagi lost sight of Buchanan after Buchanan turned down
Las Palmas Avenue. By the time Wakrat and Hyzagi returned to
the house, the police had arrived.
Wakrat walked through the unit with Los Angeles Police
Department Detective Scott Masterson. He noticed that many
things were out of place. A Play Station that had been packed
away was unpacked and plugged in. A pair of jeans Wakrat
bought a few weeks earlier that were hanging by the front door
5
were gone, and a pair of jeans Wakrat did not recognize were on a
chair by the dining room table. Wakrat was missing several
pairs of Air Jordan shoes and a leather jacket. When Wakrat
saw that his clothes were missing, he realized that Buchanan
could have been wearing them. Wakrat also noticed items out of
place on the back patio, which looked ransacked. A surf board
that had been put away upstairs was outside on the deck.
It was later determined that Hong died from multiple blunt
force injuries to the head and chest. He suffered multiple
extensive skull fractures. The sledgehammer found in the foyer
was consistent in size, shape, and weight with the type of object
that was used to inflict the injuries.
The Investigation
Terence Maloy lived in the Hollywood Hills, about a three
or four-minute walk from Wakrat and Hong. At around 8:25 p.m.
on September 22, 2016, Maloy heard loud knocking on the gate in
front of his recycling bin, one flight below the front door of his
home. There was a public staircase with two landings that led
from the street to Maloy’s and his neighbor’s hillside homes. The
recycling bin was located on the first landing. Maloy opened the
gate and saw a young man who appeared to be distressed. The
man asked Maloy to help him. Maloy asked him to leave, locked
the gate, and went back inside. Afterwards, Maloy became
concerned because the house next door was vacant. He went to
see where the man was and saw him talking with the neighbors
two houses away, Eric Finkelstein and Jeffrey Stevens. Maloy
went over and asked the man to leave.
6
Finkelstein and Stevens had discovered the man in the
courtyard behind their gate. Finkelstein opened the window and
asked the man if he could help. The man responded that he was
hungry and lost. Finkelstein told him to meet him on the street
in front of the garage. Finkelstein and Stevens went outside and
gave the man an apple, water, and $20. The man said his name
was Jamal and he was from Chicago. Maloy approached and told
them not to talk to the man, so Finkelstein went inside. Stevens
later identified Buchanan in a photographic line-up as looking
like the man who had asked for a handout that evening.
Cell phone records revealed that someone called Kandice
Yourist from Hong’s phone after the murder. Yourist lived in
Arizona. She had dated Buchanan, but they broke up around the
beginning of 2016. On September 23 and 24, 2016, Yourist
received calls from Buchanan. He said he was in Phoenix and
asked her to pick him up. Yourist was surprised because she
thought Buchanan was in Las Vegas living with his family.
When she picked him up, Buchanan was wearing a T-shirt and
had a towel wrapped around his waist. He was carrying a
backpack and he smelled bad. Buchanan told Yourist he came to
Arizona to start a new life with her, but Yourist did not want
anything to do with him. Buchanan used a gold debit or credit
card, but would not tell Yourist where it came from. The
homepage of the cell phone he was using had a picture of a family
who appeared to be Caucasian.
Law enforcement acquired Yourist’s address through phone
records and arrested Buchanan in Arizona on October 1, 2016.
He was wearing a pair of Air Jordan tennis shoes when he was
arrested. The parties stipulated that Hong’s cell phone was
recovered from Buchanan’s person in Arizona.
7
In early October, Hong’s sister received his wallet and
other belongings from the owner of the unit that Hong and
Wakrat had been living in. Hong’s driver’s license was in the
wallet, but there was no cash, or ATM or credit cards.
A neighbor who lived between a quarter to a half-mile away
from Wakrat and Hong’s unit submitted her security camera
video footage capturing activity from noon to approximately
7:00 p.m., on September 22, 2016. Yourist identified Buchanan
in the video. Maloy stated that the man’s appearance was
consistent with the person depicted in the video. Maloy stated
that the jeans found draped over the dining room chair in Hong’s
apartment were “very consistent” with what the man he saw was
wearing.
The jeans found hanging over a dining room chair in Hong’s
residence contained a mixture of DNA from Buchanan and a
second, unidentified person. A DNA swab from the head of the
sledgehammer matched Hong’s DNA.
DISCUSSION
Burglary Concession
“ ‘Several federal constitutional rights are involved in a
waiver that takes place when a plea of guilty is entered in a state
criminal trial.’ (Boykin v. Alabama (1969) 395 U.S. 238, 243
(Boykin).) These include the privilege against self-incrimination,
the right to trial by jury, and the right to confrontation. (Ibid.)
The effect of a stipulation for purposes of Boykin ‘is defined by
the rights a defendant surrenders.’ [Citation.] A stipulation that
admits all of the elements of a charged crime necessary for a
8
conviction is tantamount to a guilty plea. [Citations.]
Accordingly, the record must demonstrate that the defendant
voluntarily and intelligently waived his constitutional trial
rights.” (People v. Farwell (2018) 5 Cal.5th 295, 299–300.)
Buchanan contends that reversal is required because his
trial counsel’s concession that he committed burglary was
tantamount to a plea of guilty and was made without obtaining
Buchanan’s knowing and voluntary waiver under Boykin, supra,395 U.S. 238, and In re Tahl (1969) 1 Cal.3d 122. The contention
lacks merit.
At trial, defense counsel did not contest that this was a
“gruesome” murder. He conceded that Buchanan stole from
Wakrat and Hong, but argued that the prosecution was
attempting to bootstrap the murder using the burglary, despite
insufficient evidence to support the murder charge. He asserted
that all of the evidence suggested Buchanan was merely a thief.
Buchanan was not acting as a violent murderer would: he
encountered and spoke with several people in the neighborhood,
knocked on doors, and was not carrying a weapon. The
prosecution could not prove he murdered Hong beyond a
reasonable doubt based on the evidence.
In so arguing, counsel did not concede all elements of a
charged crime. First, contrary to his assertions in the briefs,
Buchanan was not charged with burglary.3 Trial counsel appears
to have been confused on this point, likely because it was
necessary for the jury to find that Buchanan committed a
burglary before it could find Buchanan guilty of felony murder or
3 Buchanan was initially charged with the burglary of
Alper Sevimli, but that charge was dropped.
9
find the felony-murder special circumstance true. However, there
was no independent burglary charge to which counsel could have
conceded.
Second, although the jury was required to find that
Buchanan burglarized Wakrat and Hong’s unit to convict him of
murder under the prosecution’s theory of the case, counsel’s
concession to the burglary did not relieve the prosecution of the
burden of proving that Buchanan killed Hong in the course of the
burglary. Rather, commission of the burglary established only
the requisite mental state for the felony murder charge. (People
v. Andreasen (2013) 214 Cal.App.4th 70, 80–81[intent to commit
the underlying felony supplies mental state for felony murder].)
The jury was instructed under CALJIC No. 8.21 that: “The
unlawful killing of a human being, whether intentional,
unintentional or accidental, which occurs during the commission
or attempted commission of the crime of burglary is murder of
the first degree when the actual killer had the specific intent to
commit that crime.” (Italics added.) There was no evidence that
any person other than Buchanan participated in the burglary. As
a consequence, to prove that Buchanan committed murder, the
prosecutor had to prove: (1) Buchanan intended to commit the
burglary; (2) Buchanan committed the burglary; (3) Hong was
killed during Buchanan’s commission of the burglary; and (4)
Buchanan was the actual killer. Defense counsel strongly
contested that Hong died in the commission of the burglary and
that Buchanan was the actual killer. Absent a complete
concession, the court was not required to advise Buchanan under
Boykin and Tahl. (See, e.g., People v. Cain (1995) 10 Cal.4th 1,
29–31 [Boykin/Tahl admonition not required where counsel did
not concede all charges].)
10
Ineffective Assistance of Counsel
“A criminal defendant’s federal and state constitutional
rights to counsel (U.S. Const., 6th Amend.; Cal. Const., art. I,
§ 15) includes the right to effective legal assistance. When
challenging a conviction on grounds of ineffective assistance, the
defendant must demonstrate counsel’s inadequacy. To satisfy
this burden, the defendant must first show counsel’s performance
was deficient, in that it fell below an objective standard of
reasonableness under prevailing professional norms. Second, the
defendant must show resulting prejudice, i.e., a reasonable
probability that, but for counsel’s deficient performance, the
outcome of the proceeding would have been different. When
examining an ineffective assistance claim, a reviewing court
defers to counsel’s reasonable tactical decisions, and there is a
presumption counsel acted within the wide range of reasonable
professional assistance . . . . [A] conviction will be reversed for
ineffective assistance only if (1) the record affirmatively discloses
counsel had no rational tactical purpose for the challenged act or
omission, (2) counsel was asked for a reason and failed to provide
one, or (3) there simply could be no satisfactory explanation.”
(People v. Mai (2013) 57 Cal.4th 986, 1009.)
Here, Buchanan’s counsel was not asked the reasons for
conceding a burglary, and Buchanan contends the concession was
without a tactical purpose and satisfactory explanation.
However, a trial counsel’s concession to “various degrees of guilt”
for the sake of maintaining credibility with the jury is often a
valid trial strategy. (People v. Freeman (1994) 8 Cal.4th 450,
498.) Consequently, our Supreme Court has repeatedly rejected
claims of ineffective assistance made on this basis. (Ibid.)
11
Here, the rational tactical purposed for counsel’s concession
that Buchanan burglarized Wakrat and Hong’s home is apparent
from the overwhelming evidence of that burglary; had counsel
argued otherwise, he would have likely lost credibility in the eyes
of the jury, and with it any opportunity to secure an acquittal on
the murder charge.
Multiple witnesses who lived in the neighborhood
encountered Buchanan on their private property—which was set
back significantly from the street and impossible to access
without climbing numerous stairs and entering through private
gates—just hours before he was in Wakrat and Hong’s unit.
Buchanan was depicted in surveillance video footage taken that
evening. Hyzagi testified that he observed Buchanan closing the
door to Wakrat and Hong’s unit and that he spoke with
Buchanan while Buchanan was still on the property. Buchanan’s
DNA matched a DNA sample obtained from the jeans found
draped over a chair inside Wakrat and Hong’s unit. A witness
testified that the jeans were consistent with the jeans he saw
Buchanan wearing earlier in the evening. Shortly after
Buchanan had been in the victims’ unit, Hong’s cell phone was
discovered in Buchanan’s possession, and the phone had been
used to contact Buchanan’s ex-girlfriend. Buchanan was also
seen wearing items of clothing consistent with Wakrat’s missing
clothing. In sum, the evidence suggested that Buchanan was in
the area entering private property without permission, had been
inside Wakrat and Hong’s unit, and took items from the unit. In
light of this evidence, Buchanan cannot demonstrate that
counsel’s performance was deficient or that he was prejudiced by
counsel’s concession to the burglary.
12
Buchanan complains that he was prejudiced by counsel’s
“preposterous” argument that he “committed the burglary while
some other unidentified person at some other unidentified time
committed the murder and [he] just happened to burglarize the
same home around the same time.” We disagree. It is not
uncommon for defense attorneys to argue that someone else may
have committed a crime as a means of creating reasonable doubt
as to the defendant’s guilt, even where there is not sufficient
evidence to warrant a third-party culpability instruction. Here,
counsel opted to proceed with a defense that relied on the beyond-
a-reasonable-doubt standard—i.e., that the prosecution had not
met its burden to show that Buchanan killed Hong because
evidence of the burglary was not sufficient to support the
conclusion that he committed the murder under that stringent
standard of proof.
Buchanan contends he was prejudiced because counsel’s
chosen defense precluded him from arguing that he did not
intend to take anything at the time he entered Wakrat and
Hong’s unit but instead sought to “ ‘make himself at home,’ ” by
playing video games and listening to music while the occupants of
the unit were absent. Buchanan asserts that “[t]he evidence . . .
strongly suggested that Hong came home and confronted [him];
that [Buchanan] apparently responded in a homicidal rage; and,
after the killing, [Buchanan] decided to steal some clothing,
money and Hong’s cell phone.” (Emphasis in original.) While we
recognize that under the felony murder theory such an argument
could technically lead to an acquittal (felony murder requires that
the defendant killed the victim during the course of the felony),
we cannot fathom that it would. The notion that counsel was
ineffective for conceding the burglary in order to preserve the
13
argument that Buchanan was not the killer, but would have been
effective by instead conceding that Buchanan was the killer—
who, after killing his victim, decided to commit burglary—borders
on the absurd. Further, it ignores the overwhelming record
evidence of Buchanan canvassing the area in an attempt to
obtain essential items earlier in the evening, and then stealing
such items from Wakrat and Hong’s home.
The record does not affirmatively demonstrate that counsel
had no reasonable reason for his tactical choices, or that the
choices made cannot be satisfactorily explained. Further, the
same overwhelming evidence of the burglary precludes Buchanan
from showing he was in any way prejudiced by counsel’s trial
tactics. His ineffective assistance of counsel claim fails.
Prosecutorial Misconduct
“ ‘Under California law, a prosecutor commits reversible
misconduct if he or she makes use of “deceptive or reprehensible
methods” when attempting to persuade either the trial court or
the jury, and it is reasonably probable that without such
misconduct, an outcome more favorable to the defendant would
have resulted. [Citation.] Under the federal Constitution,
conduct by a prosecutor that does not result in the denial of the
defendant’s specific constitutional rights—such as a comment
upon the defendant’s invocation of the right to remain silent—but
is otherwise worthy of condemnation, is not a constitutional
violation unless the challenged action “ ‘so infected the trial with
unfairness as to make the resulting conviction a denial of due
process.’ ” [Citations.] [¶] “ ‘[A] defendant may not complain on
appeal of prosecutorial misconduct unless in a timely fashion—
14
and on the same ground—the defendant made an assignment of
misconduct and requested that the jury be admonished to
disregard the impropriety. [Citation.]’ ” ’ [Citation.] A defendant
who fails to object at trial ‘waive[s] any error or misconduct
emanating from the prosecutor’s argument that could have been
cured by a timely admonition.’ ” (People v. Spector (2011)
194 Cal.App.4th 1335, 1402–1403.)
Buchanan contends the prosecutor committed misconduct
by misleading the court as to the propriety of admitting gruesome
photographs, eliciting testimony about irrelevant gory details of
Hong’s death, and making statements in closing argument that
lightened the People’s burden of proof. To the extent that counsel
failed to timely object, Buchanan claims that counsel provided
ineffective assistance. His claims lack merit.
Photographs of the Victim and Explicit Testimony
The information charged Buchanan with murdering Hong
with malice aforethought. The People’s trial brief stated that the
prosecution intended to proceed on a felony murder theory with
burglary as the underlying felony. In a concurrently filed motion,
the People moved to introduce Buchanan’s confession, made in a
statement to officers. In the statement, Buchanan claimed that
Hong came down the stairs with something in his hand, and that
he killed Hong in self-defense. The prosecution also moved to
introduce photographs of Hong, including crime scene and
coroner’s photographs, to demonstrate that Buchanan directed
his attack at Hong’s head and show that the killing took place
inside Hong’s residence. The prosecutor proposed to use the
photos to demonstrate malice and intent, for impeachment, and
15
to clarify the testimony of witnesses regarding the crime scene
and autopsy.4
At a pre-trial hearing on the motions, the trial court stated
that it would permit argument regarding the cumulative effect of
the photos, but indicated that the crime scene photos were
relevant to the circumstances of the crime. The photos were
admissible “[f]or premeditation, deliberation, and for actions of
self-defense, and as far as the coroner’s photographs are
concerned, there may be some relevance as to the manner of
death and to help explain the coroner’s testimony.”
In a hearing later that afternoon, the court noted that the
People had filed a generic murder information by alleging malice
murder. The court stated that the accusatory pleading permitted
the prosecution to proceed on a felony murder theory—because
the information alleged malice murder, malice murder was a
lesser included offense. The prosecutor confirmed that the People
were proceeding on a felony murder theory. The prosecutor
stated that the People were considering whether to amend the
information to charge felony murder only, but the issue had not
yet been decided. He stated that it was unlikely that the People
would follow that course. The court responded that because the
information charged malice murder, the court would be required
to instruct on malice murder and any applicable defenses,
including self-defense and unreasonable self-defense, if they were
supported by substantial evidence in the record. The court stated
that it would allow defense counsel to argue self-defense or
imperfect self-defense if supported.
4 The opening brief inaccurately states that these grounds
were not set forth in the prosecutor’s motion.
16
The court returned to its ruling on the admissibility of the
photos of the victim, which included six crime scene photos and
six coroner’s photos. Defense counsel objected to the crime scene
photos, but made no substantive argument. The court ruled the
crime scene photos admissible, explaining, “They show the nature
of the wounds . . . [I]f it’s for purposes of malice murder, for
premeditation and malice itself, and to rebut any issue of self-
defense for purposes of felony murder, it just shows the–that this
is not an accident and seems to also rebut some of the statements
of the defendant, . . . . Photos of the victims in murder cases may
be gruesome, but not unduly so if relevant for some issue it [sic]
can be proven. Victims—supposed victims in murder cases are
always disturbing. The defense does not mandate their
exclusion. I find based upon what they are proffered for . . . [the
probative value] outweighs prejudice to the defendant, and the
crime scene photos will be allowed.”
Defense counsel argued that the coroner’s photos were
cumulative. The court responded that the photos were of the
victim before and after he had been washed. “This helps the
coroner in explaining his findings and causes of death. It also
explains the nature and placement of the wounds as indicated by
the coroner, and it shows the savage beating that was taken, and
I don’t find these to be cumulative or duplicative at all.” The
court further observed that the potential prejudice did not
outweigh the probative value of the photos, and that there were
not many photographs.
In opening statement, the prosecutor told the jury that Los
Angeles Police Department Officer James Decoite, who was the
first to arrive at the scene, said that he did not have to review his
notes before testifying in this case. The prosecutor emphasized,
17
“You’re going to hear that normally they have to read reports to
remember which home they were at, which bloody scene it was,
whether it was one with two guns and a knife, or two knives and
a gun, because some of their cases run together. Not this one.
He said he didn’t have to read anything. He remembered it. He
remembered it clear as day. You can see why.” The prosecutor
stated that Hong had been struck “directly in the skull” multiple
times. “[I]t was a brutal killing. [Buchanan] literally bashed in
the side of his skull.” The diameter of the hole in Hong’s head
matched the head of the hammer.
Officer Decoite testified that in the 12 years he had been an
officer he had gone to the scene of more than five murders. The
prosecutor asked if the details of the murders ran together. The
officer responded, “[S]ome are more unique than others, stand out
to me.” Officer Decoite did not need to review his files in this
case. He testified, “I’ve seen dead bodies before.” “But not with
that type of violence.” The prosecutor showed the officer photos
depicting Hong’s body and the crime scene and asked if they were
consistent with the officer’s recollection. The officer confirmed
that they were. He testified that he would not forget the
photographs.
Deputy medical examiner for the County of Los Angeles
Brice Hunt testified for the prosecution. After reviewing the
photographs of Hong, Hunt reached the conclusion that the cause
of Hong’s death was blunt force trauma. He believed that Hong
had received a minimum of three to four blows to the head, in
addition to chest injuries. The prosecutor asked Hunt why he
could only estimate the number of blows to Hong’s head. Hunt
explained, “It would be similar to if you dropped an egg and the
shell of the egg shattered. Most of us are familiar with how that
18
shatters in multiple pieces and not just one or two single lines.
So[,] it’s difficult to count up all the areas of the skull that were
fractured, but you could see there are grossly numerous between
the pterion, the round part of your skull, and the base of your
skull, which is what your brain sits on.” When asked if he would
consider this to be a violent or non-violent homicide, Hunt
replied, “I would consider this to be a violent death.” The
prosecutor showed Hunt multiple photos of Hong’s body, which
Hunt used to explain his injuries to the jury.
During trial, after the majority of the witnesses for the
prosecution had testified (including Officer Decoite and Hunt),
the People moved to preclude Buchanan from claiming self-
defense or receiving a self-defense instruction based on his
confession to officers. The People argued that the prosecution
was proceeding on a felony murder theory and the facts did not
support self-defense. There was no dispute that Buchanan
intruded into Hong’s home. Hong was legally and presumptively
privileged to assert deadly force against intruders.
In a hearing outside the presence of the jury, the court
noted that although malice murder and associated defenses may
be applicable in a case where malice murder is charged, they are
only applicable if supported by substantial evidence. The
prosecutor announced his intention to proceed solely on the
felony murder theory based on the evidence adduced and
Buchanan’s recent stipulation that police discovered Hong’s cell
phone in his possession. The prosecutor requested that he be
permitted to argue if Buchanan’s statement that he acted in self-
defense was later admitted. Buchanan chose not to testify, and
his statement to officers was not admitted into evidence. Defense
counsel requested that the jury be instructed on both malice
19
murder and self-defense, but the trial court denied the motion for
lack of substantial evidence to support giving the instructions.
Analysis
Buchanan contends that the prosecutor breached his duty
of candor by failing to inform the court that the photos of Hong
the court had tentatively admitted were no longer relevant,
because the prosecutor did not intend to proceed on a malice
theory of liability, which was the basis for the photographs’
admission. He further contends that the prosecutor breached his
duty to warn witnesses against volunteering inadmissible
statements and to refrain from eliciting such testimony. Defense
counsel did not object on the basis of prosecutorial misconduct at
trial and thus forfeited the issues. However, because Buchanan
now claims counsel was ineffective for failing to object, we
address the merits of his claims. We find no misconduct.
The prosecutor did not breach the duty of candor. The trial
court was fully aware that the prosecution was proceeding on a
felony murder theory when it made both its tentative and final
rulings on the photographic evidence. The court highlighted that
unless there was insufficient evidence in support, the court would
instruct on malice murder, unreasonable self-defense, and self-
defense, and the defense could elect to argue those theories.
Regardless, the photographs and testimony were relevant
to the prosecution’s case and not unduly prejudicial. When the
photographs were admitted and the officer and medical examiner
testified, malice murder and self-defense were still available to
Buchanan. The People bore the burden of proving Buchanan’s
20
guilt and had to rebut self-defense and malice murder while there
was still a possibility that those theories could come into play.
“ ‘In a prosecution for murder, photographs of the murder
victim and the crime scene are always relevant to prove how the
charged crime occurred . . . .’ ” (People v. Scully (2021) 11 Cal.5th
542, 590.) The manner of death was highly relevant to the
People’s felony murder theory. The fact that Hong was killed
inside his home with a weapon that was obtained from the home
supported the prosecution’s argument that Buchanan did not
enter the apartment with the purpose of killing Hong, but rather
that the murder took place during the commission of the
burglary.
The photographs were also admissible to corroborate the
testimony of witnesses to the crime scene and the medical
examiner. (People v. Scully, supra, 11 Cal.5th at pp. 590–591.)
“ ‘[A]utopsy photographs are routinely admitted to establish the
nature and placement of the victim’s wounds and to clarify the
testimony of prosecution witnesses regarding the crime scene and
the autopsy, even if other evidence may serve the same
purposes.’ ” (Id. at p. 591.)
It was proper for the examiner to testify about Hong’s
wounds. The People were entitled to prove the manner and
means of Hong’s death through any relevant evidence—the
prosecutor is not limited to photos or to witness testimony. (See
People v. Scully, supra, 11 Cal.5th at pp. 590–591.) As our
Supreme Court recently emphasized, “[p]hotographs of victims in
murder cases are always disturbing. [Citation.] ‘ “The
photographs at issue here are gruesome because the charged
offense[] w[as] gruesome, but they did no more than accurately
portray the shocking nature of the crimes.” ’ ” (Id. at 591.) The
21
same is true of testimony in a case of this nature. The officer
remembered the murder clearly because it was horrific.
Similarly, the medical examiner’s description of the wounds was
disturbing because the wounds were disturbing. Neither witness
testified excessively. The prosecutor had no duty to prevent the
witnesses from giving relevant, probative testimony. As we find
no misconduct by the prosecutor, Buchanan’s claim that his
counsel was ineffective for failing to object on that ground
necessarily fails. (See People v. O’Malley (2016) 62 Cal.4th 944,
1010, fn. 12.)
Prosecutor’s Closing Remarks
In closing argument, the prosecutor argued:
“You all should be empowered to make reasonable
inferences in this case. The reasonable inference, a person
leaving a home with a dead body in the doorway and stolen
property on them, [is that] in the course of committing that
burglary, they killed the person inside.
“When you add in all of the extra facts and keep going over
the phone, the jeans, the shoes, all of those things, that’s where
you end up with this belief. Just go back for a moment. One of
the other analogies we use all the time in courtrooms . . . . If you
see a person outside in the hallway with a raincoat on, the
raincoat is wet, what is the reasonable interpretation from that?
Sometimes people will say, ‘Well, it’s possible that they walked
through a sprinkler and it got wet that way.’ Okay. It’s possible.
But you’re supposed to provide the reasonable inference from
that, and the reasonable inference is it’s raining outside. When
you see smoke . . . the reasonable inference is that where there is
22
smoke, there is fire on the other side of the mountain. Sometimes
people will say, ‘Well, maybe there is a broken pipe and there
is . . . steam. . . .’ Probably not. And the smoke is colored that
way, a very large plume of smoke. It’s pretty obvious that’s a fire
on the other side of the mountain. That’s the reasonable
interpretation. From circumstantial evidence, you are to take
that reasonable interpretation that exists.
“In terms of interpreting the evidence, I would ask you to
consider Occam’s razor. Here is what it says. The simplest
explanation is always the best explanation. . . . What is the
simple explanation in this case? These shoes, someone out of
that house, were stolen by the burglar who did the killing. That’s
Mr. Buchanan.
“Mr. Buchanan was there at midnight, doesn’t leave until
2:30 or so in the morning. He’s there at midnight. . . . It is not
plausible to believe that Mr. Buchanan burglarized a home where
a person had already been killed, and then stayed for multiple
hours. That is not a reasonable inference [from] the evidence,
and it would violate the notion of Occam’s razor, as well. That
would not be the simplest explanation.”
The prosecutor continued, “I want to talk for a moment
about the different standards of proof that exist in different types
of cases.” He set forth the preponderance of the evidence and
clear and convincing evidence standards for civil cases. With
respect to the clear and convincing evidence standard, the
prosecutor stated, “. . . it’s not up to reasonable doubt standard,
but it’s greater than preponderance of the evidence.” The
prosecutor also mentioned the reasonable suspicion and probable
cause standards for searches and seizures. He then addressed
reasonable doubt: “In addition, reasonable doubt is the same
23
standard used for traffic tickets, as well. It’s a criminal offense,
and as [a person accused of committing] a criminal offense you
are entitled to the benefit of a reasonable doubt if you’re an
accused. So those are the different ways in which you use
different proof standards.”
Defense counsel objected that the prosecutor’s comments
misstated the burden of proof. The court overruled the objection.
The prosecutor continued, “Just to be clear . . . I am not
telling you what the burden is. I am not defining ‘reasonable
doubt.’ I am explaining that reasonable doubt is used in our
system and where different standards of proof apply in different
ways. The instruction for reasonable doubt will be in the
pamphlet—in the packet that’s handed to you in the jury room.
And I encourage you to follow the standards that are there. If
anything I’ve said is inconsistent with that, please just follow the
instructions.”
Analysis
Buchanan contends that the prosecutor’s comments
misstated or trivialized the People’s burden of proof. Buchanan
forfeited these issues by failing to object on the basis of
prosecutorial misconduct in the trial court, but he again claims
counsel was ineffective for failing to object. We find no
misconduct, but even if misconduct had occurred, Buchanan did
not suffer prejudice. His ineffective assistance of counsel claims
fail.
“ ‘ “ ‘[In closing statements,] the prosecution has broad
discretion to state its views as to what the evidence shows and
what inferences may be drawn therefrom.’ ” [Citation.] . . . .’
24
[Citation.] ‘When we review a claim of prosecutorial remarks
constituting misconduct, we examine whether there is a
reasonable likelihood that the jury would have understood the
remark to cause the mischief complained of. [Citation.]’
[Citation.] ‘To prevail on a claim of prosecutorial misconduct
based on remarks to the jury, the defendant must show a
reasonable likelihood the jury understood or applied the
complained-of comments in an improper or erroneous manner.
[Citations.] In conducting this inquiry, we “do not lightly infer”
that the jury drew the most damaging rather than the least
damaging meaning from the prosecutor’s statements.’ ” (People v.
Spector, supra, 194 Cal.App.4th at p. 1403.)
Buchanan complains that the prosecutor improperly
suggested that the jury should rely on the theory of Occam’s
razor—the theory that the simplest explanation is usually the
correct one—and misled the jury into believing that the People
need only prove that their explanation of the evidence was
reasonable to conclude that he was guilty of murder beyond a
reasonable doubt.
Viewed in context, when he discussed Occam’s razor, the
prosecutor was explaining to the jury how to evaluate
circumstantial evidence and the reasonable inferences that could
be drawn from the evidence. “Advocates are given significant
leeway in discussing the legal and factual merits of a case during
argument” (People v. Centeno (2014) 60 Cal.4th 659, 666), and it
is permissible for a prosecutor “to argue that the jury may reject
impossible or unreasonable interpretations of the evidence and to
so characterize a defense theory” (id. at p. 672). Here, the
prosecutor argued that when the facts were viewed together, the
reasonable interpretation was that Buchanan killed Hong in the
25
course of committing a burglary. In contrast, it would be
unreasonable to believe that Buchanan burglarized a home after
discovering a dead body inside and then stayed in the home for
several hours. The prosecutor was well within permissible
bounds in arguing that the defense theory was not reasonable,
but that the simplest explanation was.
Buchanan also contends that the prosecutor’s statement
that the beyond-a-reasonable-doubt standard applies to traffic
tickets trivialized the standard and thus rose to the level of
misconduct. We share the concern Buchanan expresses, and
emphasize that we do not approve of the argument made here:
traffic ticket trials bear little resemblance to the proceedings at
issue in this special circumstances murder trial. The prosecutor’s
argument was, however, a correct statement of the law: the
beyond-a-reasonable-doubt standard applies to all criminal
prosecutions. (§ 1096; see also People v. Datt (2010) 185
Cal.App.4th 942, 948–949.) As such, and contrary to Buchanan’s
assertion, the prosecutor’s comments here differed from the
comments made in People v. Nguyen (1995) 40 Cal.App.4th 28. In
Nguyen, the prosecutor argued: “ ‘The standard is reasonable
doubt. That is the standard in every single criminal case. And
the jails and prisons are full, ladies and gentlemen. [¶] It’s a
very reachable standard that you use every day in your lives
when you make important decisions, decisions about whether you
want to get married, decisions that take your life at stake when
you change lanes as you’re driving. If you have reasonable doubt
that you’re going to get in a car accident, you don’t change
lanes.’ ” (Id. at p. 35.) The Nguyen court did not hold the
prosecutor’s statement that the beyond-a-reasonable-doubt
standard applied to all criminal cases improper. It faulted the
26
prosecutor for stating that the reasonable doubt standard was
something people employed daily when deciding to marry or even
to change lanes. (Id. at p. 36.) Quoting our Supreme Court in
People v. Brannon (1873) 47 Cal. 96, 97, the Nguyen court
admonished: “ ‘The judgment of a reasonable man in the
ordinary affairs of life, however important, is influenced and
controlled by the preponderance of evidence. Juries are
permitted and instructed to apply the same rule to the
determination of civil actions involving rights of property only.
But in the decision of a criminal case involving life or liberty,
something further is required. . . . There must be in the minds of
the jury an abiding conviction, to a moral certainty, of the truth
of the charge, derived from a comparison and consideration of the
evidence.’ ”5 (Ibid.) Here, the prosecutor did not equate the
beyond-a-reasonable-doubt standard with making everyday
decisions. He accurately stated that the standard applies in all
criminal prosecutions.
Further, Buchanan has not demonstrated that the jury
would have interpreted any of the prosecutor’s remarks in a way
that would cause it to hold the People to a lesser burden of proof.
The prosecutor emphasized that he did not purport to define the
beyond-a-reasonable-doubt standard. He advised the jury that
the standard was set forth in the instructions that the court
5 Although the Nguyen court disapproved of the
prosecutor’s argument, it held that the defendant was not
prejudiced by his counsel’s failure to object to the remarks,
because the prosecutor later directed the jury to follow the court’s
instruction and the court properly instructed the jury regarding
the beyond-a-reasonable-doubt standard. (People v. Nguyen,
supra, 40 Cal.App.4th at pp. 36–37.)
27
would give them, and told the jury that if his statements
conflicted with the definition contained in the instruction in any
way, the jury should follow the instruction. The trial court
instructed the jury under CALJIC No. 1.00 that if the attorney’s
arguments contradicted the law as stated by the court, the jury
must follow the court’s instructions. The court properly
instructed the jury regarding reasonable doubt under CALJIC
No. 2.90. The jury is presumed to have understood and followed
the court’s instructions. (People v. Pearson (2013) 56 Cal.4th 393,
477.)
Finally, even in Nguyen, where the court disapproved of the
prosecutor’s argument, it held that the defendant was not
prejudiced by his counsel’s failure to object to the remarks,
because the prosecutor later directed the jury to follow the court’s
instructions and the court properly instructed the jury regarding
the beyond-a-reasonable-doubt standard. (People v. Nguyen,
supra, 40 Cal.App.4th at pp. 36–37.) The same is true here:
Buchanan has failed to show any prejudice from the alleged
misconduct or counsel’s failure to object to the prosecutor’s
arguments.
Youth Offender Parole Hearing
Section 3051 requires the Board of Parole Hearings to
conduct a “youth offender parole hearing” during the 15th, 20th,
or 25th year of a defendant’s incarceration if the defendant was
25 years old or younger at the time of the controlling offense.
(§ 3051, subd. (b)(1)–(3).) “ ‘Controlling offense’ means the
offense or enhancement for which any sentencing court imposed
the longest term of imprisonment.” (§ 3051, subd. (a)(2)(B).) As
28
pertinent here, “[a] person who was convicted of a controlling
offense that was committed when the person was 25 years of age
or younger and for which the sentence is a life term of 25 years to
life shall be eligible for release on parole at a youth offender
parole hearing during the person’s 25th year of incarceration.”
(§ 3051, subd. (b)(3).) Several categories of juvenile and young
adult offenders are excluded from eligibility pursuant to section
3051, subdivision (h), including those offenders, like Buchanan,
who were “sentenced to life in prison without the possibility of
parole ([LWOP]) for a controlling offense that was committed
after the person had attained 18 years of age.”6 Our Supreme
Court has held that offenders who are eligible for youth offender
parole hearings are entitled to what is now known as a Franklin
hearing, “to provide an opportunity for the parties to make an
accurate record of the juvenile [or youth] offender’s
characteristics and circumstances at the time of the offense so
that the Board, years later, may properly discharge its obligation
to ‘give great weight to’ youth-related factors [at a hearing held
pursuant to section 3051].” (People v. Franklin (2016) 63 Cal.4th
261, 284.)
Buchanan moved for a Franklin hearing in the trial court.
The court denied the motion because Buchanan’s LWOP sentence
rendered him ineligible for a youth offender parole hearing. On
appeal, Buchanan contends that section 3051 violates equal
protection principles by excluding youthful offenders7 like
6 Buchannan was 22 years old at the time of the controlling
offense.
7 Youthful offenders are young adult offenders between 18
and 25 years of age.
29
himself, who were sentenced to LWOP based on a felony murder
special circumstance finding, from eligibility for a youth offender
parole hearing. Buchanan argues that youthful offenders
convicted of special circumstance felony murder8 and sentenced
to LWOP are similarly situated to parole-eligible youth offenders
convicted of first degree murder, and that there is no rational
basis for distinguishing between the two groups.
“When[, as here,] no suspect class and no fundamental
right is implicated, ‘[i]n order to decide whether a statutory
distinction . . . is unconstitutional as a matter of equal protection,
we typically ask two questions. We first ask whether the state
adopted a classification affecting two or more groups that are
similarly situated in an unequal manner. [Citation.] If we deem
the groups at issue similarly situated in all material respects, we
consider whether the challenged classification ultimately bears a
rational relationship to a legitimate state purpose. [Citation.] A
classification in a statute is presumed rational until the
challenger shows that no rational basis for the unequal treatment
is reasonably conceivable. [Citations.] The underlying rationale
for a statutory classification need not have been “ever actually
articulated” by lawmakers, and it does not need to “be empirically
substantiated.” [Citation.] Nor does the logic behind a potential
justification need to be persuasive or sensible—rather than
simply rational. [Citation.]’ [Citation.] [¶] These two questions
are not wholly independent. If there is a rational basis for the
8 We refer to a conviction of felony murder with a felony-
murder special circumstance true finding as a “special
circumstance felony murder” conviction. This case does not
involve other special circumstances, and we do not opine on or
refer to other special circumstance findings here.
30
unequal treatment, then in that respect, the two classes are not
similarly situated. Conversely, if the two classes are not
similarly situated, that, in itself, is a rational basis for unequal
treatment.” (People v. Ngo (2023) 89 Cal.App.5th 116, 122–123
(Ngo).) We review an equal protection claim de novo. (People v.
Montano (2022) 80 Cal.App.5th 82, 114.)
Buchanan focuses on the relative culpability of the two
groups to support his position that youthful offenders who
commit special circumstance felony murder are similarly situated
to youthful offenders convicted of first degree murder who are
eligible for parole. Buchanan argues that when the defendant is
the actual killer, the “quantum of proof” required for the felony
murder conviction and the felony murder special circumstance is
identical. Based on this premise, Buchannan reasons that actual
killers convicted of special circumstance felony murder are no
more culpable than defendants convicted of felony murder
without a special circumstance finding, and are therefore
similarly situated for purposes of equal protection. Buchanan
further argues that an actual killer convicted of special
circumstance felony murder is similarly situated to a youthful
offender who committed intentional murder because the actual
killer convicted of special circumstance felony murder did not
necessarily intend to kill and may therefore be less culpable. He
asserts that because their culpability is equal to or less than that
of youthful offenders who commit first degree murder but are
parole-eligible, there can be no rational basis for denying
youthful offenders convicted of special circumstance felony
murder a youth offender parole hearing.
Buchanan’s contention rests upon two faulty premises:
(1) that for an actual killer the felony murder special
31
circumstance true finding requires the same proof as the
underlying felony murder conviction; and (2) that a youthful
offender convicted of intentional murder is more culpable than
one convicted of special circumstance felony murder.
Although “there is little semantic difference between felony
murder based on [burglary] under section 189 (a killing
‘committed in the perpetration of . . . [burglary]’) and the
[burglary] murder special circumstance under section 190.2,
subdivision (a)(17) (a killing ‘committed while the defendant was
engaged in . . . the commission of. . . [burglary]’) . . . courts have
fashioned a distinction between the two [so that] the death
penalty or life without the possibility of parole [are only imposed]
on the most serious offenders.” (People v. Montelongo (2020) 55
Cal.App.5th 1016, 1025.) Special circumstance felony murder
requires a showing additional to the offense of felony murder.
(People v. Andreasen (2013) 214 Cal.App.4th 70, 80–82 [rejecting
due process challenge].) The special circumstance applies only
when the evidence demonstrates “an independent or concurrent
felonious purpose distinct from any intent to kill.” (People v.
Riccardi (2012) 54 Cal.4th 758, 836.) The burglary cannot be
“merely ‘incidental’ or ‘ancillary’ to the murder.” (Ibid.) This
court-fashioned distinction is a clarification and not an
independent element, but the trial court is required to instruct
the jury “ ‘on its own motion, that the felony cannot have been
merely incidental to the murder when there is evidence from
which the jury could have inferred that the defendant did not
have an independent felonious purpose for committing the
felony.’ ”9 (Montelongo, at p. 1026, italics added.) The quantum
9 The jury was so instructed in Buchanan’s case, and found
that he had an independent purpose for committing the burglary.
32
of proof necessary to convict an actual killer of felony murder is
not as great as that required for the jury to make a true finding
as to the felony murder special circumstance. Buchanan’s
argument that he is no more culpable than a youthful offender
convicted of felony murder without a special circumstance
necessarily fails.
We also reject Buchanan’s argument that a youthful
offender who is convicted of intentional murder without a special
circumstance finding is more culpable than an actual killer
convicted of special circumstance felony murder. “[T]hose
With respect to the offense of felony murder, the jury was
instructed under CALJIC No. 8.10 that to prove Buchanan guilty
of felony murder, the prosecution had to prove that: “1. A human
being was killed; [¶] 2. The killing was unlawful; and [¶] 3. The
killing occurred during the commission or attempted commission
of burglary.”
Buchanan’s jury was instructed under CALJIC No. 8.81.17
that to find the burglary special circumstance true it must find
that: “1. The murder was committed while the defendant was
engaged in the commission of a burglary; and [¶] 2. The murder
was committed in order to carry out or advance the commission of
the crime of burglary or to facilitate the escape therefrom or to
avoid detection. In other words, the special circumstance
referred to in these instructions is not established if the burglary
was merely incidental to the commission of the murder.”
Buchanan’s argument—that the latter portion of CALJIC
No. 8.81.17 regarding independent felonious purpose was
superfluous because the prosecutor alleged that the burglary was
not incidental to the murder—misses the mark. The
prosecution’s allegations do not relieve it of the burden of proof.
The court’s duty to instruct is based upon the sufficiency of the
evidence, not the prosecutor’s argument.
33
sentenced to LWOP have also been found, beyond a reasonable
doubt, to have committed that first degree murder under one—
or . . . more than one—of the special circumstances that reflect
that the particular first degree murder was in some manner
aggravated or reflected a greater risk of harm to persons other
than the immediate murder victim or victims. [Citations.] As a
result, youthful offenders who have been sentenced to LWOP
have committed an aggravated form of first degree murder that
distinguishes them from youthful offenders who have committed
first degree murder but done so in the absence of any such
aggravating factors.” (People v. Jackson (2021) 61 Cal.App.5th
189, 199.) “[Special circumstance murder] is the most heinous
crime known to our Penal Code, and one of the few crimes subject
to the death penalty in California.” (Ngo, supra, 89 Cal.App.5th
at p. 123.)
The authorities that Buchanan relies upon to bolster his
argument that our courts have held intentional murder without a
special circumstance finding to be a greater crime than special
circumstance felony murder are inapposite. Buchanan cites to
People v. Edwards (2019) 34 Cal.App.5th 183, 197, for its
characterization of People v. Contreras (2018) 4 Cal.5th 349, as
confirming “that there is no crime as horrible as intentional first
degree murder.” As Edwards acknowledges, Contreras did not
present an equal protection challenge to section 3051. (Edwards,
supra, at p. 197.) Contreras held that imposing a sentence of 50
years to life on one-strike juvenile offenders for non-homicide
crimes violated the Eighth Amendment. The passage to which
Edwards referred compared the culpability of defendants who
committed murder and those who committed non-homicide
offenses: “In the death penalty context, the high court has said
34
“ ‘there is a distinction between intentional first-degree
murder . . . and nonhomicide crimes against individual
persons . . . . ’ ” (Contreras, supra, at p. 382, quoting Kennedy v.
Louisiana (2008) 554 U.S. 407, 438.) It did not address the
relative culpability of those who commit special circumstance
felony murder and those who commit intentional murder. Nor
did Edwards, which held that categorical exclusion of one-strike
youthful offenders from youth offender parole hearings violates
equal protection. (Edwards, supra, at p. 195.) The same is true
of People v. Caballero (2012) 55 Cal.4th 262, 266, which
Buchanan cites as support for his assertion that “murder differs
from intentional murder in a ‘moral sense’.” Caballero discussed
the United States Supreme Court’s opinion in Graham v. Florida
(2010) 560 U.S. 48, and quoted Graham as follows: “nonhomicide
crimes differ from homicide crimes in a ‘moral sense.’ ”
(Caballero, supra, at p. 266, italics added.) Caballero held that
the imposition of a total sentence of 110 years to life on a juvenile
offender for non-homicide crimes violated the Eighth
Amendment. Like Contreras and Edwards, it did not compare
special circumstance felony murder to intentional murder.
In his reply brief, Buchanan asserts that People v. Hardin
(2022) 84 Cal.App.5th 273, review granted January 11, 2023,
S277487 (Hardin), which was issued after he filed his opening
brief, supports his position.10 Hardin held that denying a
youthful offender sentenced to LWOP a youth offender parole
hearing violates equal protection. Hardin reasoned that the
Legislature’s “purpose [in amending section 3051 to include
10 The People discussed Hardin in the respondent’s brief
and take the position that the case was wrongly decided.
35
youthful offenders] was not to assess culpability or measure the
appropriate level of punishment for various crimes, but ‘to
account for neuroscience research that the human brain—
especially those portions responsible for judgment and
decisionmaking—continues to develop into a person’s mid-20’s.’ ”
(Id. at p. 287.) Consequently, the court concluded that youthful
offenders sentenced to LWOP were similarly situated to parole-
eligible youthful offenders for purposes of the statute. (Ibid.)
The court then concluded that, in light of section 3051’s purpose,
“there is no plausible basis for distinguishing between same-age
offenders based solely on the crime they committed.” (Id. at
p. 288.) The Hardin court observed that even if it accepted “the
premise that assessing relative culpability has a proper role in a
statute expressly intended to recognize the diminished
culpability of youthful offenders based on their stage of cognitive
development . . . this superficially plausible justification for
excluding offenders under age 26 sentenced to life without parole
from eligibility for youth offender parole hearing is belied by the
statutory provisions that allow such a hearing for individuals
who have committed multiple violent crimes (albeit not special
circumstance murder) and were sentenced to a technically parole-
eligible indeterminate state prison term that is the functional
equivalent of life without parole.” (Id. at p. 289.) The court
concluded that “[b]y defining the youth parole eligible date in
terms of a single ‘controlling offense,’ rather than by the
offender’s aggregate sentence, the Legislature has eschewed any
attempt to assess the offenders’ overall culpability, let alone his
or her amenability to growth and maturity.” (Ibid.) Hardin
rejected the suggestion that the classification created by section
3051 might be permissibly “ ‘imperfect’ or somewhat under- or
36
overinclusive” because “the exclusion of young adult offenders
sentenced to life without parole was a deliberate and focused
choice, not an inadvertent consequence of broadly worded
legislation.” (Id. at p. 290.) The court also rejected the People’s
argument that the Legislature may choose to proceed
incrementally to address a problem, because the Legislature
recognized that the attributes of youth justified providing
youthful offenders with a meaningful opportunity for parole, but
categorically denied that opportunity to youthful offenders
sentenced to LWOP. (Ibid.)
Prior to Hardin, all published cases that addressed the
question of whether section 3051 violated equal protection by
excluding youthful offenders sentenced to LWOP—including the
opinion of another panel of this court—held that it did not.
(People v. Sands (2021) 70 Cal.App.5th 193, 204–205 [First Dist.,
Div. Five]; People v. Morales (2021) 67 Cal.App.5th 326, 347―349
[First Dist., Div. Four]; People v. Jackson, supra, 61 Cal.App.5th
at pp. 199―200 [Fourth Dist., Div. One]; People v. Acosta (2021)
60 Cal.App.5th 769, 780―781 [Fourth Dist., Div. Three]; In re
Williams (2020) 57 Cal.App.5th 427, 433―436 [Second Dist., Div.
Five]. Since Hardin’s publication, the only court to consider the
issue has disagreed with Hardin. (Ngo, supra, 89 Cal.App.5th at
pp. 123―127.)
We decline to depart from this court’s position in In re
Williams, supra, 57 Cal.App.5th at page 436, that, even if we
were to assume that a youthful offender sentenced to LWOP is
similarly situated to an offender who is eligible for parole, “the
Legislature reasonably could have decided that youthful
offenders who have committed [crimes punishable by LWOP]—
even with diminished culpability and increased potential for
37
rehabilitation—are nonetheless still sufficiently culpable and
sufficiently dangerous to justify lifetime incarceration.”11
As the Court of Appeal, Fourth District, Division Two has
observed, “ ‘ “A classification is not arbitrary or irrational simply
because there is an ‘imperfect fit between means and ends’ ”
[citation], or “because it may be ‘to some extent both
underinclusive and overinclusive’ ” [citation]. Consequently, any
plausible reason for distinguishing between [two classes] need
not exist in every scenario in which the statutes might apply.’ ”
(Ngo, supra, 89 Cal.App.5th at p. 126, italics omitted.)
The exclusion of youthful offenders who committed special
circumstance felony murder from eligibility for a youth offender
parole hearing is not a violation of due process. The trial court
did not err in refusing to provide Buchanan a Franklin hearing.
Cruel and Unusual Punishment
The Eighth Amendment to the United States Constitution,
and article 1, section 17 of the California Constitution prohibit
cruel and unusual punishment. When faced with a claim of cruel
and unusual punishment under either the federal or state
constitution, “[a] reviewing court determines whether a
particular penalty given ‘ “is so disproportionate to the crime for
11 In In re Williams, our concurring colleague found it
unnecessary to opine as to “whether youth offenders sentenced to
life without parole and those sentenced to parole eligible life
terms are similarly situated with respect to their potential for
growth and rehabilitation.” (In re Williams, supra,
57 Cal.App.5th at p. 439 (conc. opn. of Baker, J.).) We need not
decide the issue here.
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which it is inflicted that it shocks the conscience and offends
fundamental notions of human dignity.” ’ ” (People v. Cole (2004)
33 Cal.4th 1158, 1235.) “We . . . use a three-pronged approach to
determine whether a particular sentence is grossly
disproportionate. First, we review ‘the nature of the offense
and/or the offender, with particular regard to the degree of
danger both present to society.’ ” (People v. Johnson (2010) 183
Cal.App.4th 253, 296.) This analysis requires consideration
of “ ‘the circumstances of the offense, including the defendant’s
motive, the extent of the defendant’s involvement in the crime,
the manner in which the crime was committed, and the
consequences of the defendant’s acts[,]’ ” as well as “ ‘the
defendant’s age, prior criminality[,] and mental capabilities.’ ”
(People v. Cole, supra, 33 Cal.4th at p. 1235.) “Second, we
compare the challenged punishment with punishments
prescribed for more serious crimes in our jurisdiction. [Citation.]
Third, and finally, we compare the challenged punishment to
punishments for the same offense in other jurisdictions.
[Citation.] The importance of each of these prongs depends upon
the facts of each specific case[, and] . . . we may base our decision
on the first prong alone.” (People v. Johnson, supra, 183
Cal.App.4th at p. 297.) “ ‘Our Supreme Court has emphasized
“the considerable burden a defendant must overcome in
challenging a penalty as cruel or unusual. . . . [Citation.]’ ”
(People v. Sullivan (2007) 151 Cal.App.4th 524, 569.) “ ‘Whether a
punishment is cruel or unusual is a question of law for the
appellate court, but the underlying disputed facts must be viewed
in the light most favorable to the judgment.’ ” (Ibid.)
With respect to the first factor—the nature of the offender
and the offense—with the exception of his youth, Buchanan does
39
not argue that there are any considerations that make either
himself or the offense less deserving of punishment. He argues
that the characteristics of juveniles that motivated the United
States Supreme Court in Miller v. Alabama (2012) 567 U.S. 460,
are the same as those of 22-year-old offenders like himself.
Miller held that mandatory life imprisonment without parole for
offenders under the age of 18 at the time of their crimes violates
the Eighth Amendment’s prohibition on cruel and unusual
punishment. No case has held that it is cruel and unusual
punishment to sentence an adult convicted of special
circumstance felony murder to LWOP.12 Although California law
has evolved to recognize the reduced culpability and greater
potential for rehabilitation of youthful offenders who have
committed lesser crimes, the Legislature has determined that
those considerations do not outweigh culpability and the danger
to society posed by youthful offenders sentenced to LWOP.
Moreover, nothing in the record indicates that Buchanan is
less worthy of blame than the typical defendant who is convicted
of special circumstance felony murder. The brutal nature of the
killing and the manner in which it occurred indicates that it was
not accidental. On the continuum of offenders who may be found
guilty of special circumstance murder Buchanan clearly falls on
the more blameworthy end of the spectrum.
12 Without further discussion, Buchanan states that LWOP
is akin to a death sentence, citing to Graham, supra, 560 U.S. at
pages 69 to 70. Graham did not so hold. The opinion discussed
certain similarities between the sentences, but acknowledged
that they are not equivalent: “a death sentence is ‘unique in its
severity and irrevocability.’ ” (Id. at p. 69.)
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Buchanan does not argue that the challenged punishment
is greater than that prescribed for more serious crimes in
California. Nor does he argue that his punishment is cruel and
unusual under the third factor by comparing it to the punishment
for similar crimes in other jurisdictions. Buchanan’s sentence to
LWOP does not violate the constitutional prohibition against
cruel and unusual punishment.
DISPOSITION
We affirm the trial court’s judgment.
NOT TO BE PUBLISHED.
MOOR, J.
We concur:
RUBIN, P. J.
KIM, J.
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