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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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 This opinion has not been certified for publication 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, 

v. 

KEITH BUCHANAN, 

 Defendant and Appellant. 

 A138157 

 (Contra Costa County 

 Super. Ct. No. 51210384) 

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. 
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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. 
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 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 deadend 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 
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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. 
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 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 

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 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.” 
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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.” 
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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.) 
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 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 
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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.) 
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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. 
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 _________________________ 

 RUVOLO, P. J. 

We concur: 

_________________________ 

RIVERA, J. 

_________________________ 

STREETER, J.