1 Filed 4/9/15 P. v. Buchanan CA1/4 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 firs t degree residential burglary (Pen. Code, §§ 459, 460, subd. (a)); evadin g 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 $5 00 fine to the public defender’s office as reimbursement for attorney fees. Appellant contends that the trial cour t 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 attorn ey fee order and remand this case for the trial court to correct its sentencing errors.2 II.
STATEMENT OF FACTS On May 1, 2012, Christy Jensen left he r 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 he r 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 s hut. Then, Snarr saw through windows at the front of the Jensen ho me 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 outsid e 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. Sn arr decided to confront the man, saying “hey, buddy” as he approached. The man turned and lo oked at Snarr, then quickly threw the property in th e 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 receiv ed 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 desc ription 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 ar ound 50 miles per h our. After calling for assistance and activating his lights and siren, Welge gave chase. Th e 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.3 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 th e street and made a sudden sc reeching 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 detec tive Michael McLaughlin heard a radio update that Concord police located the Honda a nd went to that neighborhood to help look for the suspect. He came acr oss 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 ha d plant material in his hai r. 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 dr ew his weapon and repeated the order to sit. Appellant complied and was placed under arrest. Jensen was escorted to the scene of appe llant’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] certaint y.” 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, wh en officer Welge arrived at the scene, he identified appellant as the driver of the wh ite Honda Civic who led him on a high speed
chase.
Jensen also identified th e white Honda as the car th at was parked outside her house and her personal property inside that car. Appellant was not the registered owner of the Honda. However, eviden ce presented at trial linked appellant to a cell phone that police found on the front passenger seat of the car. An inspector empl oyed by the district attorney used a forens ic computer program to recover th e contact list from that cell phone which contained telephone numbers for “Mom ,” “Celeste,” “Celeste Buchanan,” and “Eric.” Those names and telephone numb ers matched information that appellant4 provided on a “Visiting List” form that he completed when he wa s booked into jail on March 1, 2012. At trial, appellant presented an alibi de fense. Appellant’s friend, Adam Farren, testified that appellant arrived at his reside nce at 10:30 p.m. on Ap ril 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 e rror 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 si gned appellant’s name to that form, handwrote the names, relationships and contact information for vis itors that appellant wanted to see. A different person handwrote official bookin g information about appellant, including his booking number, booking date and housing unit, and also co mpleted 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 testim ony from county sheriff employee Nicholas Muller, a facility training officer at the West County Deten tion Center. Muller identified the exhibit as a “document 080,” which is made available to inmates at two deputy
stations in the detention fac ility. 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.5 Muller testified that when an inmate returns a completed Visiting List to the deputy, the officer verifies that the inmate is the pers on identified on the form by checking his name and booking number. In addition, the de puty can look at the inmate management card on the computer to match th e 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, th e deputy uses the computer to identify visitors who are on probation, have been in custody, or ha ve outstanding warrants. Then the visitor
information is entered into the computer by name, relati onship 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 bo ttom copy is returned to the inmate. Under cross-examination, Muller testified that he was not the deputy who accepted and processed appellant’s Vis iting List. Muller also acknowledged that these forms are not necessarily processed at th e moment they are received, explaining: “Initially when the inmate walks up w ith 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 offici al record. (Evid. Code, §§ 1271, 1280.) 1 Considering the requirements of these two hearsay exceptions

1 Evidence Code section 1271 (section 12 71) states: “Evidence of a writing made as a record of an act, conditio n, or event is not made inad missible 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 writi ng was made at or near the time of the act, condition, or event; [¶] (c) The custodian or other qualified witn ess 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.”6 together, the court found that Muller’s te stimony 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 th e recording of visitors that
the inmate wanted to have cont act with; and that the document was trustworthy. In light of these findings, the court concluded that suff icient 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 re corded on that form was not provided by an employee of the detention facility. According to appellant , the hearsay exceptio n for business records only applies when the person who provided the information in the document had a business duty to report th at 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 re corded on the Visiting List precludes application of the official record hearsay ex ception, 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 argum ents 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), ita lics added; see, e.g.,
In re Richard W. (1979) 91 Cal.App.3d 960, 972 [d eposit 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, conditio n, or event is not made inad missible by the hearsay rule when offered in any civil or criminal proceedi ng to prove the act, cond ition, or event if all of the following applies: [¶] (a) The writing was made by and w ithin 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 informa tion and method and time of preparation were such as to indicate its trustworthiness.”7 Here, appellant’s visitor information was not hearsay evidence because the Visiting List was not offered to prove that appellant’s vi sitor information was su bstantively true or accurate. Rather, the Visiting Li st was offered solely to prove that appellant made the visitor requests that are record ed 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 visito r requests directly to a deputy at the detention facility, that deputy could have te stified about the appellant’s requests without raising any hearsay issue at a ll. The reason a hearsay issue did arise in this case was because the People used docu mentary evidence to prove th at appellant made visitor requests when he was booked at the detention facility. The trial court’s findings supported its conclusion that this documen tary evidence was ad missible 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 em ployees accept and pro cess inmate visitor requests; (2) the writing evidencing the acce ptance 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 recordi ng of the request that appellant made. Appellant contends that the Visitor List is similar to a re port 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 re port filed with the Department of Motor Vehicles (D.M.V.) was not admi ssible under the business record hearsay exception to prove that the accident happen ed. 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.)8 Appellant contends th is 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[’] busin ess to fill out such forms.” Again, appellant has lost sight of the purpose of this evidence. In c ontrast to the accident report at issue in Daniels , the visitor information that appellant provided was not submitted for the hearsay purpos e of proving the truth of t hose statements, i.e., that appellant wanted to see those visitors or th at 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 visito rs 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 ot herwise dispute the trial court’s findings establishing the requirements of the two he arsay exceptions for admitting the Visiting
List into evidence at trial. Therefore we a ffirm the trial court’s discretionary ruling. Furthermore, even if there was error, appe llant has failed to establish a reasonable probability that he would have obtained a more favorable re sult if the Visiting List had
not been admitted in to evidence. (See People v. Coffman and Marlow (2004) 34 Cal.4th 1, 76; People v. Watson (1956) 46 Cal.2d 818, 836 [e rroneous admission of evidence
reviewed under Watson prejudice standard].) In this re gard, we disagree with appellant’s notion that evidence linking him to the cell pho ne was crucial to establish identity. Without exception, the percipie nt witnesses identified appellant as the perpetrator of
these crimes. B. The Attorney F ee 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 the9 trial court failed to conduct a noticed hear ing and make findings required by Penal Code section 987.8 (section 987.8). Section 987.8 “empowers the court to or der 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 su bdivisions (b) and (c) of the statute, an order of reimbursement can be ma de 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 defend ant to pay the sum to the county in the
manner in which the court believes reasonabl e and compatible w ith the defendant’s financial ability.’ [Citation.]” ( People v. Polk (2010) 190 Cal.App.4th 1183, 1205.) The People concede the trial court faile d to comply with the requirements of section 987.8, and they stipulate that appella nt 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.A pp.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.A pp.4th 1473, 1477.)
C. Good Conduct Credits At sentencing, the trial court did not aw ard 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 calc ulation of presentence conduct credit. “At the time of sentencing, cred it for time served, in cluding 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 cred ited upon [the defendant’s] term of imprisonment . . . .’ [Citation.] The credit ‘i n effect, becomes part of the sentence.’ [Citation.]” ( People v. Duff (2010) 50 Cal.4th 787, 793.)10 IV.
DISPOSITION
The order for reimbursement of defense atto rney fees is reversed and this case is remanded for a proper consideration of the atto rney fee issue, and to calculate appellant’s conduct credit. In all other resp ects, the judgment is affirmed.11 _ ____________ ____________ RUVOLO, P. J.

We concur:

_____________ ____________ RIVERA, J.

_____________ ____________ STREETER, J.