ENCINITAS — A judge has sentenced a North County woman who falsely accused former State Assembly candidate Phil Graham of sexual misconduct to two days in county jail and three years probation, after the woman pleaded guilty Tuesday to criminal charges stemming from her claims.
Superior Court Judge Sim Von Kalinowski rendered his sentence Tuesday afternoon after Graham, who lost in the June primary, called on the judge to render a harsher sentence.
Von Kalinowski ruled that Nichole Burgan, the woman who falsely accused Graham of forcibly kissing her in May 2018, should receive a more lenient sentence — which included a 90-day jail term that was stayed pending completion of her probation, $655 fine, 10 days public works service and a mental health evaluation — because she did not have a criminal record.
“I know it’s not the penalty you’d hope to see,” Von Kalinowski said to Graham. “But I have to weigh the crime against the fact she doesn’t have a criminal record.”
Tuesday’s sentencing came after Burgan’s attorney withdrew her not-guilty plea the day the case was supposed to go to trial.
Graham, in his five-minute victim impact statement, said he believes the accusation cost him the election.
“The false accusations by Ms. Burgan had a devastating impact on my reputation and my life,” Graham said. “And I believe, more consequentially, interfered with, and corrupted, an election. In a free and democratic society, this is a reprehensible crime.”
Graham was running for the 76th Assembly District seat left vacant when Republican Rocky Chavez announced he wouldn’t seek re-election.
Graham, a Republican and the stepson of former California Gov. Pete Wilson, received the County Republican Party’s endorsement as well as the endorsement and a number of high-ranking elected officials, and raised more money than his opponents combined.
He also unsuccessfully ran for Encinitas City Council in 2016.
But just weeks before the election, Burgan told the media that Graham forcibly kissed her during the early morning hours of May 14 after a night of drinking at the 1st Street Bar in Encinitas.
She later filed a police report, which prompted a San Diego Sheriff’s Department investigation of her claims.
But variations in her story to different media outlets and a series of restraining orders filed against Burgan in the past that accused her of filing false reports raised doubts about the veracity of her claims.
The Sheriff’s Department investigated and disproved the claims after reviewing video surveillance inside and outside of the bar and interviewing several witnesses.
Graham vociferously denied the allegations, but Democratic activists quickly launched attack ads against Graham based on the allegations.
An unknown party issued an illegal robocall alluding to the allegations but concealed the identity of the source of the robocall, which violates campaign finance laws.
The Fair Political Practices Commission is investigating the robocalls.
Graham alluded to these attacks in his statement, in which he said that Burgan’s actions adversely effected his supporters, campaign volunteers and wallet.
“A business was illegally, electronically hijacked to disseminate Ms. Burgan’s false charges,” Graham said referring to the robocall. “I hope state and federal authorities get to the bottom of those activities as well and that justice is served.”
Several of the groups pulled their ads once Graham was cleared of the charges, but Graham said that the damage had already been done.
“Sadly, I have also learned that the mere allegations were enough to deeply damage my reputation in the eyes of many people who did not know me well,” he said. “I learned that a mere allegation, in this era of social media and viral transmission of news, has lasting effects.”
Graham finished third in the primary behind Democrats Elizabeth Warren and Tasha Boerner Horvath, who went on to win the seat in November, the first time a Democrat had ever claimed the Coastal North County Assembly seat.
Prosecutors on June 14 filed a single misdemeanor charge against Burgan for filing a false police report, and she was arraigned July 3.
Deputy District Attorney Katherine Grabar argued for a 90-day jail sentence, arguing that Burgan’s false report cost law enforcement time and money, damaged the credibility of accusers of sexual assault during a time of national and worldwide reckoning and the repercussions to the electoral process.
“There can’t be a worse lie one can possibly tell in this case,” Grabar said.
Grabar said that had the case gone to trial, a jury would have heard from six eyewitnesses, bar employees and three hours of camera footage from inside the bar that contradicts her recollection of the events.
Burgan will serve her jail time on Feb. 23 and March 9. Burgan broke down in tears when Von Kalinowski denied her request for a modified custody arrangement.
She and her attorney, Deputy Public Defender Peter Tran, declined comment following the hearing.
Tran during the hearing pleaded for no jail time, arguing that Burgan, when faced with facts from the investigation that refuted her claims, relented and did not wish to file charges. He attributed Burgan’s recollection of the events to being drunk.
“She wants to put this matter behind her,” Tran told Von Kalinowski.
Graham after the hearing said that he thought Burgan should have gotten “at least six months” in jail.
“I wish it was longer,” Graham said of her sentence.