California Court of Appeals, Third District, San Joaquin
FOR PARTIAL PUBLICATION [*]
from a judgment of the Superior Court of San Joaquin County
No. SF121180A, George J. Abdallah, Jr., Judge.
Steinberg, under appointment by the Court of Appeal, for
Defendant and Appellant.
D. Harris, Attorney General, Dane R. Gillette, Gerald A.
Engler, Michael P. Farrell, Assistant Attorneys General, Eric
L. Christoffersen, Brook A. Bennigson, Deputy Attorneys
General, for Plaintiff and Respondent.
convicted defendant Arlon Buchanan of possession of heroin
for sale (Health & Saf. Code, § 11351; count 1),
transportation of heroin for sale (id., §
11352; count 2), possession of methamphetamine for sale
(id., § 11378; count 3), transportation of
methamphetamine for sale (id., § 11379; count
4), possession of a firearm by a felon (Pen. Code, §
29800, subd. (a)(1); count 5),  and possession of
ammunition by a felon (§ 30305, subd. (a)(1); count 6).
The jury also found true the allegations defendant was armed
during the commission of the four narcotics-related offenses
(§ 12022, subd. (c); counts 1, 3, 4), had a prior strike
conviction (§§ 667, subds. (b)-(i), 1170.12), and
had served four prior prison terms (§ 667.5, subd. (b)).
The trial court sentenced defendant to serve 32 years and 8
months in state prison.
appeal, defendant contends (1) the trial court erroneously
excluded from the evidence a signed statement by a person who
claimed to own some of the drugs and drug paraphernalia, and
the handgun that were found, (2) defendant’s
convictions for possession and transportation of heroin must
be reversed because the police violated his rights under
California v. Trombetta (1984) 467 U.S. 479 [81
L.Ed.2d 413] (Trombetta) by destroying exculpatory
evidence when they mixed together the similar-looking
contents of two bindles before detecting heroin in the
combined mass, (3) the mixture of the contents of the two
bindles rendered the evidence of his possession and
transportation of heroin insufficient, (4) section 654
precludes multiple punishments for his simultaneous
transportation of methamphetamine and heroin for sale, (5)
section 654 also prevents multiple punishments for his
possession of a firearm as a felon and being armed in the
commission of the narcotics offenses, and (6) multiple
sentence enhancements are precluded under section 654 for
being armed in the simultaneous commission of the four
own motion, we requested that the parties address three
additional issues. First, whether section 654 applies to
defendant’s separate sentences for possession of heroin
for sale and transportation of heroin for sale, as well as to
his separate sentences for possession of methamphetamine for
sale and transportation of methamphetamine for sale. Second,
whether a conclusion section 654 applies to possession for
sale and transportation for sale of the same substances would
have any effect on the arming enhancements imposed under
section 12022, subdivision (c), for each of defendant’s
narcotics convictions. Third, whether the California Supreme
Court’s holding in People v. Jones (2012) 54
Cal.4th 350 (Jones) precludes separate sentences for
being a felon in possession of a firearm and for the firearm
enhancements attached to his narcotics offenses -- all of
which were based on defendant’s possession of a single
firearm on a single occasion.
conclude the trial court did not abuse its discretion by
excluding a hearsay statement from the owner of the vehicle
where the contraband were found because the defense did not
demonstrate due diligence in attempting to secure the
testimony of the proposed witness. The trial court did not
err in admitting evidence of the mixed substance that tested
positive for heroin. The police did not destroy the evidence
by combining the similar-looking contents of the two bindles
nor did they discard any of the packaging materials from
which they originated. We reject defendant’s
insufficiency of the evidence argument because it is
undisputed that what the police found in defendant’s
possession was heroin.
reject defendant’s contention the trial court erred in
imposing separate sentences for defendant’s
methamphetamine and heroin-related offenses. These were
different types of narcotics that increased defendant’s
potential customers. We accept the People’s concession
that section 654 applies to stay one of defendant’s
separate sentences for possession and transportation of
heroin for sale, and also applies to stay one of
defendant’s sentences for possession and transportation
of methamphetamine for sale. Finally, we conclude section 654
bars separate punishments for the defendant’s
possession of a single firearm on a single occasion.
we affirm defendant’s convictions but reverse and
remand for resentencing.
AND PROCEDURAL HISTORY
a.m. on August 2, 2012, defendant was driving a minivan in an
area of Stockton known for narcotics sales and prostitution.
Stockton Police Department Officers Kenneth Welter and Ronald
Zalunardo stopped the van after noticing one of the
taillights was inoperable. The officers asked to see
defendant’s driver’s license but he said he did
not have one. Officer Welter instructed defendant to get out
of the van, pat searched him, and detained him in the back of
their patrol vehicle. The officers looked into the van and
saw a Bersa.380 semiautomatic handgun on the floor between
the front seats. The gun turned out to be loaded with
seven.380 hollow point bullets.
5 to 6 inches from the gun was a brown coin purse containing
“a very large golf-ball size” piece of crystal
methamphetamine weighing 11.3 grams, 125 small Ziploc baggies
in two sizes, a 1-inch Ziploc baggie containing tar heroin,
and $117.05 in cash and coins. The police officers also found
a pink purse on the floor behind the driver’s seat. The
pink purse contained a digital scale and a package containing
eight unused hypodermic needles. On the part of the digital
scale where items are placed to be weighed there was a white
crystalline substance consistent with methamphetamine. Brown
tar consistent with tar heroin was found around the sides of
finding the handgun and narcotics in the minivan, the
officers searched defendant and found a bindle of tar heroin
inside his pants pocket. The bindle of heroin found inside
defendant’s pants pocket and the coin purse under the
front seats had the same appearance: both had the same sticky
brown substance, were wrapped in the same way, and seemingly
contained the same amount. Defendant did not appear to be
under the influence of any controlled substance.
officers looked up the van’s registration based on its
license plate and found it was registered to Jerry Haney.
While the officers searched the van, Haney showed up at the
scene riding a bike.
the booking process, the contents of the two bindles of
sticky brown substance were combined. The combined net weight
was 0.58 grams and tested positive for the presence of
Police Department Sergeant Matthew Garlick testified as a
narcotics expert. Sergeant Garlick testified narcotics
dealing is an extremely dangerous activity and dealers often
carry guns to protect themselves during deals. He explained
the amount of heroin under defendant’s control would
provide five to six doses and have an approximate street
value of $60. Given the form of the heroin found at the
scene, the hypodermic needles would be a delivery mechanism
for the drug. Drug dealers commonly sell hypodermic needles
along with heroin. The amount of methamphetamine found at the
scene sufficed for 100 “hits” or doses and would
be worth approximately $200 to $300 on the street. In
Sergeant Garlick’s experience, that amount of
methamphetamine was “not something that a user, someone
on the street, would have the money to afford.” The
number of syringes found at the scene also indicated the
heroin was possessed for purposes of sale. And the number of
Ziploc bags was consistent with sale of usable amounts of
methamphetamine. The fact no methamphetamine pipe or dirty
needles were found further indicated defendant was selling
narcotics rather than using them himself.
parties stipulated defendant had a prior felony conviction
that barred him from lawfully possessing a firearm or
ammunition. The parties also stipulated the van was not
registered to defendant, the van was towed, and it was not
claimed by anyone thereafter.
testified on his own behalf as follows: On August 2, 2012, he
was living at the Capri Motel with his girlfriends, Lenora
and Sarah. Lenora was sick due to heroin withdrawal. She had
no heroin left because she had purchased a counterfeit
substance that looked just like the narcotic. Defendant took
the counterfeit substance and put it into his pants pocket.
Early that evening, Haney -- the owner of the minivan --
arrived at the motel with defendant’s partner, Adam
Cox. Around 3:00 a.m., defendant noticed Lenora was gone.
Concerned about her, defendant took Haney’s unlocked
van because it did not require a key to start it. Defendant
did not look around the van before he drove off because it
would have made him look like a thief. As defendant was
driving around and looking for Lenora, he was pulled over by
the police. While defendant was detained in the backseat of
the police car, he received a call from Haney. Haney rode
over to the scene on one of defendant’s bicycles.
stated the coin purse found in the car belonged to Cox. The
baggie of heroin-like counterfeit substance found in
defendant’s pants pocket belonged to Lenora. The
handgun in the van belonged to defendant’s
ex-girlfriend, Letricia Tyson.
denied selling drugs or having a job, explaining he did not
support himself “too good” but instead
“live[d] off the land.” He received support from
his family members and eight women with whom he had children.
admitted convictions for robbery in 1988 as well as three
felony crimes of moral turpitude in 1991, 1996, and 2005.
Moore, an investigator for the public defender, testified
that on the day before trial he went to the apartment listed
as Haney’s place of residence but found the apartment
to be vacant. Moore gave Cox a subpoena the first time he met
with Cox. But when Moore went back to talk to Cox,
Cox’s apartment was empty as well.
of Evidence of a Statement Purportedly Made by Adam Cox
contends the trial court erred in excluding out-of-court
statements in which Cox purportedly claimed to own some of
the narcotics and drug paraphernalia and the gun found in the
van. Defendant claims the wrongful exclusion of the evidence
denied him his right ...