People v. Buchanan CA1/4

Filed 4/9/15 P. v. Buchanan CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
THE PEOPLE,
Plaintiff and Respondent,
A138157
v.
KEITH BUCHANAN, (Contra Costa County
Super. Ct. No. 51210384)
Defendant and Appellant.
I.
INTRODUCTION
Appellant was convicted by a jury of first degree residential burglary (Pen. Code,
§§ 459, 460, subd. (a)); evading a police officer (Veh. Code, § 2800.2); and grand theft of
personal property (Pen. Code, § 487). The trial court sentenced appellant to nine years in
state prison and also ordered him to pay a $500 fine to the public defender’s office as
reimbursement for attorney fees.
Appellant contends that the trial court committed reversible error by admitting
hearsay evidence at trial. He also contends that the attorney fee reimbursement order was
improper and that he was erroneously denied presentence conduct credits. We affirm the
judgment, but reverse the attorney fee order and remand this case for the trial court to
correct its sentencing errors.
1
II.
STATEMENT OF FACTS
On May 1, 2012, Christy Jensen left her Walnut Creek home at around 10:00 a.m.
to run errands. When she returned an hour and a half later, a white Honda was parked
near her driveway and a man was standing at her front door. Jensen slowed down in front
of her house and the man turned around and looked at her. Instead of pulling into her
garage, Jensen drove past her house, parked on the street, and called her across-the-street
neighbor, Curt Snarr.
While on the phone with Jensen, Snarr looked out his front door. Nobody was
standing at Jensen’s door, but the gate to her back yard swung shut. Then, Snarr saw
through windows at the front of the Jensen home that a person was darting around inside.
Snarr told Jensen to stay in her car and called 911 to report a burglary in progress. At the
request of the 911 operator, Snarr went outside to get a description of the Honda. A man
came out of a gate to Jensen’s back yard with his arms full of personal property,
including a computer and pillow case filled with items. Snarr decided to confront the
man, saying “hey, buddy” as he approached. The man turned and looked at Snarr, then
quickly threw the property in the car, jumped in and drove away.
At approximately 11:30 a.m., Walnut Creek police officer Paul Welge was on
patrol in a marked vehicle when he received a report of the in-progress burglary at
Jensen’s home and a description of the suspect and the car. While on route to the scene,
Welge stopped at an intersection and noticed a white Honda facing him at the stop sign
and the driver who matched the general description of the man who burgled the Jensen
home. Welge pulled his patrol car in front of the Honda to block its path, activating his
red and blue overhead lights. The Honda driver accelerated around the police car, ran a
stop sign, turned left and sped away at around 50 miles per hour. After calling for
assistance and activating his lights and siren, Welge gave chase. The Honda driver sped
through stop signs, hit a median, and drove through red lights at 80 to 90 miles an hour.
Ultimately Welge was ordered to cease the chase for public safety reasons.
2
At approximately 11:45 a.m., Barbara Corsi was standing outside a home in
Concord preparing to conduct a real estate brokers’ tour, when she was startled by a
white Honda that sped down the street and made a sudden screeching stop in front of the
house. After the driver got out of the car and jumped a solid fence at the end of the street,
Corsi called 911.
Meanwhile, Walnut Creek police detective Michael McLaughlin heard a radio
update that Concord police located the Honda and went to that neighborhood to help look
for the suspect. He came across appellant walking on the sidewalk away from the dead-
end side of a residential street. Appellant, who matched the suspect’s description, was
sweaty and out of breath and had plant material in his hair. McLaughlin exited his car,
identified himself and told appellant to sit on the ground. Appellant did not sit but looked
to his left and then his right. McLaughlin drew his weapon and repeated the order to sit.
Appellant complied and was placed under arrest.
Jensen was escorted to the scene of appellant’s arrest where she identified him as
the person she saw at her front door, stating “[t]hat’s him without a shadow of a doubt.
I’m 100 percent sure that’s him.” Another officer drove Snarr to the scene where he
identified appellant with “100 [percent] certainty.” Corsi was also escorted to the arrest
scene and indentified appellant based on his clothing and appearance, although she had
not previously seen his face. Finally, when officer Welge arrived at the scene, he
identified appellant as the driver of the white Honda Civic who led him on a high speed
chase.
Jensen also identified the white Honda as the car that was parked outside her
house and her personal property inside that car. Appellant was not the registered owner
of the Honda. However, evidence presented at trial linked appellant to a cell phone that
police found on the front passenger seat of the car. An inspector employed by the district
attorney used a forensic computer program to recover the contact list from that cell phone
which contained telephone numbers for “Mom,” “Celeste,” “Celeste Buchanan,” and
“Eric.” Those names and telephone numbers matched information that appellant
3
provided on a “Visiting List” form that he completed when he was booked into jail on
March 1, 2012.
At trial, appellant presented an alibi defense. Appellant’s friend, Adam Farren,
testified that appellant arrived at his residence at 10:30 p.m. on April 30, 2012, and did
not leave until 11:30 or 11:45 the following morning.
III.
DISCUSSION
A. The Visiting List
Appellant contends that the trial court committed reversible error by overruling his
hearsay objection to People’s Exhibit 4, the “Visiting List” that was generated for
appellant when he was booked at the county jail on May 1, 2012. We review the trial
court’s ruling under the abuse of discretion standard. (People v. Hovarter (2008) 44
Cal.4th 983, 1011.)
1. Background
Exhibit 4 is a preprinted form titled “Contra Costa County Detention Facilities
Visiting List.” A person who signed appellant’s name to that form, handwrote the names,
relationships and contact information for visitors that appellant wanted to see. A
different person handwrote official booking information about appellant, including his
booking number, booking date and housing unit, and also completed a column of the
printed form indicating whether each potential visitor was authorized or denied the right
to visit appellant at the jail.
At a pretrial hearing to address whether the Visiting List could be introduced into
evidence, the prosecutor presented testimony from county sheriff employee Nicholas
Muller, a facility training officer at the West County Detention Center. Muller identified
the exhibit as a “document 080,” which is made available to inmates at two deputy
stations in the detention facility. The form consists of an original top page and two
carbon copies. An inmate requesting visitors may complete the form when he picks it up
at the deputy station or he can take it back to his cell to complete and return later.
4
Muller testified that when an inmate returns a completed Visiting List to the
deputy, the officer verifies that the inmate is the person identified on the form by
checking his name and booking number. In addition, the deputy can look at the inmate
management card on the computer to match the face of the person turning in the form
with the person identified on that document. Once it is established that the inmate has
submitted his own proper form, the deputy uses the computer to identify visitors who are
on probation, have been in custody, or have outstanding warrants. Then the visitor
information is entered into the computer by name, relationship to the inmate, street
address, phone number and birth date. After the data entry is completed, the original top
page of the form is placed in the inmate’s booking folder, one copy is sent to the
classifications department and the bottom copy is returned to the inmate.
Under cross-examination, Muller testified that he was not the deputy who accepted
and processed appellant’s Visiting List. Muller also acknowledged that these forms are
not necessarily processed at the moment they are received, explaining: “Initially when
the inmate walks up with the form, we verify that is the inmate. And depending on
module activity, it could be entered [later] in the shift and then returned back to him.”
At the conclusion of Muller’s testimony, the trial court ruled that appellant’s
Visiting List was admissible as both a business record and an official record. (Evid.
Code, §§ 1271, 1280.)1 Considering the requirements of these two hearsay exceptions
1
Evidence Code section 1271 (section 1271) states: “Evidence of a writing made
as a record of an act, condition, or event is not made inadmissible by the hearsay rule
when offered to prove the act, condition, or event if: [¶] (a) The writing was made in the
regular course of a business; [¶] (b) The writing was made at or near the time of the act,
condition, or event; [¶] (c) The custodian or other qualified witness testifies to its identity
and the mode of its preparation; and [¶] (d) The sources of information and method and
time of preparation were such as to indicate its trustworthiness.”
5
together, the court found that Muller’s testimony established that the document was
created in the ordinary course of business of the Sheriff’s office; that the writing was
created at or near the time of the pertinent “act,” which was the recording of visitors that
the inmate wanted to have contact with; and that the document was trustworthy. In light
of these findings, the court concluded that sufficient preliminary facts were established to
allow the Visiting List to be presented to the jury.
2. Analysis
Appellant contends the business record exception does not apply to his Visiting
List because the information recorded on that form was not provided by an employee of
the detention facility. According to appellant, the hearsay exception for business records
only applies when the person who provided the information in the document had a
business duty to report that information. (Citing Taylor v. Centennial Bowl, Inc. (1966)
65 Cal.2d 114, 126 (Taylor).) By the same token, appellant contends, the fact that the
inmate provides the visitor information recorded on the Visiting List precludes
application of the official record hearsay exception, which only applies when “the writing
was made by and within the scope of duty of a public employee.” (§ 1280, subd. (a).)
The problem with these arguments is that appellant mischaracterizes the visitor
information that he provided on his Visiting List as the hearsay evidence that was
admitted into evidence at trial. “ ‘Hearsay evidence’ is evidence of a statement that was
made other than by a witness while testifying at the hearing and that is offered to prove
the truth of the matter stated.” (Evid. Code, § 1200, subd. (a), italics added; see, e.g.,
In re Richard W. (1979) 91 Cal.App.3d 960, 972 [deposit slip not hearsay when offered
not as proof of truth but as circumstantial evidence connecting defendant to crime].)
Evidence Code section 1280 (section 1280) states: “Evidence of a writing made
as a record of an act, condition, or event is not made inadmissible by the hearsay rule
when offered in any civil or criminal proceeding to prove the act, condition, or event if all
of the following applies: [¶] (a) The writing was made by and within the scope of duty of
a public employee. [¶] (b) The writing was made at or near the time of the act, condition,
or event. [¶] (c) The sources of information and method and time of preparation were
such as to indicate its trustworthiness.”
6
Here, appellant’s visitor information was not hearsay evidence because the Visiting List
was not offered to prove that appellant’s visitor information was substantively true or
accurate. Rather, the Visiting List was offered solely to prove that appellant made the
visitor requests that are recorded on that document. “[T]he hearsay rule does not forbid
the introduction of evidence that a request has been made when the making of the request
is significant irrespective of the truth or falsity of its content. [Citations.]” (Taylor,
supra, 65 Cal.2d at p. 125.)
Thus, if appellant had made his visitor requests directly to a deputy at the
detention facility, that deputy could have testified about the appellant’s requests without
raising any hearsay issue at all. The reason a hearsay issue did arise in this case was
because the People used documentary evidence to prove that appellant made visitor
requests when he was booked at the detention facility. The trial court’s findings
supported its conclusion that this documentary evidence was admissible under the
business record and official record hearsay exceptions. (§§ 1271, 1280.) Muller’s
testimony substantially supports the trial court’s findings that: (1) in the regular course of
the detention facility’s business, public employees accept and process inmate visitor
requests; (2) the writing evidencing the acceptance of appellant’s visitor request was
generated when that request was made; and (3) there are sufficient indicia establishing
that the writing is a trustworthy recording of the request that appellant made.
Appellant contends that the Visitor List is similar to a report that was deemed
inadmissible hearsay in Daniels v. Department of Motor Vehicles (1983) 33 Cal.3d 532,
537 (Daniels). The Daniels court held that an accident report filed with the Department
of Motor Vehicles (D.M.V.) was not admissible under the business record hearsay
exception to prove that the accident happened. The court reasoned that, “[a]lthough it
may be the regular course of business for the D.M.V. to receive the report, it undoubtedly
is not in the regular course of business for the citizen author to make such a report. And,
it is this aspect of the report that bears on the trustworthiness factor contemplated by this
exception to the hearsay rule.” (Id. at pp. 537-538.)
7
Appellant contends this case is similar to Daniels, supra, 33 Cal.3d 532 because,
although it may be in the regular course of the detention facility’s business to receive a
Visiting List, it is “not in the regular course of inmates[’] business to fill out such forms.”
Again, appellant has lost sight of the purpose of this evidence. In contrast to the accident
report at issue in Daniels, the visitor information that appellant provided was not
submitted for the hearsay purpose of proving the truth of those statements, i.e., that
appellant wanted to see those visitors or that those visitors were who appellant claimed
they were. Rather, the pertinent fact was the making of the statement itself and, as
appellant concedes, it is in the regular course of the detention facility’s business to elicit
the names and contact information for visitors from inmates who are booked at that
facility.
Aside from his erroneous arguments about the nature of the hearsay evidence at
issue in this case, appellant does not otherwise dispute the trial court’s findings
establishing the requirements of the two hearsay exceptions for admitting the Visiting
List into evidence at trial. Therefore we affirm the trial court’s discretionary ruling.
Furthermore, even if there was error, appellant has failed to establish a reasonable
probability that he would have obtained a more favorable result if the Visiting List had
not been admitted into evidence. (See People v. Coffman and Marlow (2004) 34 Cal.4th
1, 76; People v. Watson (1956) 46 Cal.2d 818, 836 [erroneous admission of evidence
reviewed under Watson prejudice standard].) In this regard, we disagree with appellant’s
notion that evidence linking him to the cell phone was crucial to establish identity.
Without exception, the percipient witnesses identified appellant as the perpetrator of
these crimes.
B. The Attorney Fee Reimbursement Order
At appellant’s sentencing, the trial court found that appellant was not eligible for
probation, refused to strike a prior strike conviction and sentenced appellant to a total
term of nine years in prison. The court also imposed several fees and fines which
included an order that appellant “reimburse the county for the costs of his services for the
Public Defender for $500.” Appellant contends this order must be reversed because the
8
trial court failed to conduct a noticed hearing and make findings required by Penal Code
section 987.8 (section 987.8).
Section 987.8 “empowers the court to order a defendant who has received legal
assistance at public expense to reimburse some or all of the county’s costs.” (People v.
Viray (2005) 134 Cal.App.4th 1186, 1213-1214.) “Under subdivisions (b) and (c) of the
statute, an order of reimbursement can be made only if the court concludes, after notice
and an evidentiary hearing, that the defendant has ‘the present ability . . . to pay all or a
portion’ of the defense costs. [Citations.] If this finding is made, ‘the court shall set the
amount to be reimbursed and order the defendant to pay the sum to the county in the
manner in which the court believes reasonable and compatible with the defendant’s
financial ability.’ [Citation.]” (People v. Polk (2010) 190 Cal.App.4th 1183, 1205.)
The People concede the trial court failed to comply with the requirements of
section 987.8, and they stipulate that appellant did not waive the error by failing to object
at the sentencing hearing. (See People v. Viray, supra, 134 Cal.App.4th at p. 1217;
People v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)
The proper remedy for this error is to remand the matter for a hearing to determine
appellant’s ability to pay as required under section 987.8. (People v. Flores (2003) 30
Cal.4th 1059, 1063; People v. Prescott (2013) 213 Cal.App.4th 1473, 1477.)
C. Good Conduct Credits
At sentencing, the trial court did not award appellant any custody credits. Citing
Penal Code section 1170.12, subdivision (a)(5), the court stated that “custody credits at
this point are not calculated but reserved to state prison.” The People concede this was
error.
Penal Code section 4019 governs the calculation of presentence conduct credit.
“At the time of sentencing, credit for time served, including conduct credit, is calculated
by the court. The ‘total number of days to be credited’ is memorialized in the abstract of
judgment [citation] and ‘shall be credited upon [the defendant’s] term of
imprisonment . . . .’ [Citation.] The credit ‘in effect, becomes part of the sentence.’
[Citation.]” (People v. Duff (2010) 50 Cal.4th 787, 793.)
9
IV.
DISPOSITION
The order for reimbursement of defense attorney fees is reversed and this case is
remanded for a proper consideration of the attorney fee issue, and to calculate appellant’s
conduct credit. In all other respects, the judgment is affirmed.
10
_________________________
RUVOLO, P. J.
We concur:
_________________________
RIVERA, J.
_________________________
STREETER, J.
11