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People v. Buchanan

California Court of Appeals, Third District, San Joaquin

June 27, 2016

THE PEOPLE, Plaintiff and Respondent
ARLON BUCHANAN, Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of San Joaquin County No. SF121180A, George J. Abdallah, Jr., Judge.

          John Steinberg, under appointment by the Court of Appeal, for Defendant and Appellant.

          Kamala 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.

          HOCH, J.

         A jury 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), [1] 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.

         On 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 narcotics-related offenses.

         On our 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.

         We 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.

         We 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.

         Accordingly, we affirm defendant’s convictions but reverse and remand for resentencing.


         Prosecution Evidence

         At 3:15 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.

         Approximately 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 the scale.

         After 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.

         The 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.

         During 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 heroin.

         Stockton 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.

         The 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.

         Defense Evidence

         Defendant 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.

         Defendant 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.

         Defendant 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.

         Defendant admitted convictions for robbery in 1988 as well as three felony crimes of moral turpitude in 1991, 1996, and 2005.

         Bernard 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.



         Exclusion of Evidence of a Statement Purportedly Made by Adam Cox

         Defendant 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 ...

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