P. v. Buchanan

 

 

 

 

 

 

 

 

 

 

 

Filed 6/17/13  P. v. Buchanan CA2/3

 

 

 

 

 

>NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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  This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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

 

SECOND
APPELLATE DISTRICT

 

DIVISION
THREE

 

 
>

THE PEOPLE,               Plaintiff and Respondent,               v.   Terry Buchanan,               Defendant and Appellant.

B245156         (Los Angeles County       Super. Ct. No. SA073573)

 

 

            APPEAL from
a judgment of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Scott T. Millington, Judge.  Dismissed.

 

            Jerome J.
Haig, under appointment by the Court of Appeal, for Defendant and Appellant.

 

            No
appearance for Plaintiff and Respondent.

 

            Defendant
and appellant, Terry Buchanan, appeals from the judgment entered following
revocation of probation previously granted after his pleas of no contest to
presenting a forged prescription (Bus. & Prof. Code, § 4324, subd. (a)),
and second degree commercial burglary
(Pen. Code, § 459),href="#_ftn1"
name="_ftnref1" title="">[1]
and his admissions that he previously 
suffered a conviction for a serious or violent felony, first degree
burglary (§ 459), within the meaning of the Three Strikes law (§§ 667, subds.
(b)-(i), 1170.12, subds. (a)-(d)) and had served nine separate prison terms for
various felony convictions (§ 667.5, subd. (b)).  The trial court sentenced Buchanan to 12
years in prison.  Although Buchanan filed
a timely notice of appeal, he failed to obtain from the trial court a
certificate of probable cause. 
Accordingly, the appeal must be dismissed.

FACTUAL AND PROCEDUAL HISTORY

            1.  Facts.href="#_ftn2" name="_ftnref2" title="">[2]

            On February 10, 2010, lead pharmacy
technician Nicole Vance was working at the prescription counter at the CVS
Pharmacy at 8601 South Sepulveda Boulevard
in Los Angeles.  Buchanan and a woman, Genetta Kilpatrick,
were in line to drop off prescriptions. 
Vance had seen Buchanan and Kilpatrick approximately three weeks
earlier, when they also dropped off and picked up prescriptions.  Vance remembered Buchanan and Kilpatrick
because, although they had acted as though they were not together, they had
prescriptions for the same medicine from the same doctor.  At that time, Vance had found Buchanan’s and
Kilpatrick’s behavior suspicious and she had so informed one of the
pharmacists.

On February 10, 2010, Buchanan and Kilpatrick were again
acting as though they were not together, but were dropping off prescriptions
from the same doctor for the same medication. 
Buchanan approached Vance while Kilpatrick was being assisted by another
pharmacy clerk.  When Vance looked at one
of the prescriptions Buchanan had given her, she realized it would require a
“TAR,” or a “medical justification from [a] medical doctor.”  After Vance informed Buchanan of this and
told him the pharmacy would “need to get a diagnosis from the doctor,” Vance
gave the prescription to the lead pharmacist. 
Both Buchanan and Kilpatrick decided to sit in the waiting area while their
prescriptions were being filled.

Shauna Samuel was the pharmacy
manager at the CVS Pharmacy on February 10,
2010.  When Vance presented
her with two prescriptions, Samuel saw “[m]any things [which indicated the
prescriptions were] fraudulent . . . .” 
The first thing Samuel noticed was that the prescriptions indicated the
doctor who wrote them practiced “ ‘Medical genetics.’ â€  According to Samuel, “[t]here is no such
field.”  In addition, the DEA number was
“obviously not legitimate.”  The length
and letters did not “correspond to . . . a proper DEA
number.”  When Samuel tried to contact
the physician shown on the prescriptions, the phone “kept hanging up, or it was
a fax machine.  There was not a proper
connection.”  When Samuel then looked up
the doctor on the CVS central file, it was “clearly marked.”  Other pharmacists had received fraudulent
prescriptions from this doctor. 
Moreover, the medication for which the prescriptions had been written
was “commonly represented fraudulently.” 
Both prescriptions were for an “anti-psychotic medication in the same
type of cluster” pharmacists had been seeing on fraudulent prescriptions and
each prescription was “valued at . . . over a thousand dollars.”href="#_ftn3" name="_ftnref3" title="">[3]  After Samuel had reviewed the prescriptions
and been unsuccessful in her attempts at reaching the prescribing physician,
she had called the police.  Officers
arrived at the pharmacy approximately 15 minutes later.

Los Angeles Police Department
Officer William Perez and his partner, Officer Hershey, responded to Samuel’s
call.  When the officers arrived at the
pharmacy, Perez spoke with Samuel, who showed him the prescriptions, then
“pointed out” Buchanan and Kilpatrick as the individuals who had requested they
be filled.

While Perez spoke with Kilpatrick,
Officer Hershey spoke to Buchanan.  When
Kilpatrick spoke with Perez, she paused for a moment, then told him she knew
the prescriptions were “fake” and she had not gotten them from a doctor.  They had been given to her by a woman she had
met at a McDonald’s restaurant off of Century Boulevard.

Buchanan initially told Officer
Hershey that a doctor in North Hollywood had prescribed
the medications.  He then recanted and
told Hershey he had obtained the prescriptions from a woman he had met at a
McDonald’s restaurant.  He and Kilpatrick
would take the prescriptions to the pharmacy, get them filled and take the
medications back to the woman at the McDonald’s.  In exchange for each prescription filled, the
woman gave to Buchanan and Kilpatrick $75.

2. 
Procedural history.

A preliminary hearing was held in this
matter on March 29, 2010.  After the prosecutor presented evidence,
which included the statements Buchanan had made to the police officer at the
pharmacy, counsel for Buchanan moved to have Buchanan’s statements stricken
from the record because they had been given in violation of >Miranda.href="#_ftn4" name="_ftnref4" title="">>[4]>  Counsel then moved that the charges against
Buchanan be dismissed as the prosecutor had failed to prove the prescriptions
Buchanan had presented to the pharmacy clerk had been forged documents.

With regard to the >Miranda issue, the trial court indicated
the contact at the pharmacy between the officer and Buchanan had not amounted
to “custodial interrogation.”  The trial
court determined from the evidence presented that it had been a “brief,”
“minimal intrusion” by an officer who approached Buchanan, not in a
confrontational manner, but “from a mode of inquiry.”  As to the question of sufficiency of the
evidence, the trial court stated:  “The proof
that [the prescriptions were] forged is, [initially], the observations of the
pharmacist who indicated . . . there were unusual aspects to each of
[them].  [¶] . . . [¶]  And then you have the admission of the
defendant[], that [he] did not receive [the] prescriptions from the physician”
but from a woman at a McDonald’s restaurant. 
The trial court indicated it was not “going to take the leap” and infer
there was a doctor who was “writing prescriptions for people [who] were not . .
. patients at a fast food restaurant.” 
Accordingly, the trial court denied Buchanan’s counsel’s motion to
dismiss the case.

On April 12, 2010, an information
was filed alleging Buchanan committed the crime of presenting a forged
prescription in violation of Business and Professions Code section 4324,
subdivision (a), a felony (count 1), and committed second degree commercial
burglary in violation of section 459, a felony (count 2).  It was further alleged Buchanan had suffered
a prior serious or violent felony conviction for first degree burglary (§ 459)
within the provisions of the Three Strikes law (§§ 667, subds. (b)-(i),
1170.12, subds. (a)-(d)), and had served nine separate prison terms for felony
convictions (§ 667.5, subd. (b)). 
At arraignment, held the same day, Buchanan pled not guilty to counts 1 and
2 and denied the remaining allegations.

On April 13, 2010, Buchanan’s counsel filed a motion to set
aside the information pursuant to section 995. 
Counsel argued the evidence at the preliminary hearing failed to
establish reasonable or probable cause Buchanan had committed the alleged
offenses of presenting a forged prescription and commercial burglary.  Counsel asserted, although Buchanan might be
guilty of some other crime, “there was no evidence introduced at the
preliminary hearing . . . the prescriptions [he] presented were
forged. . . .  [S]ince the felony of
forgery was not proven, the crime of burglary was not proven as it required the
entry [to the pharmacy] to be with the intent to commit a felony therein.”  The trial court, however, determined the
transcript of the preliminary hearing established probable cause the crimes has
been committed and, accordingly, denied the motion.

At proceedings held on August 17, 2010, the trial court
indicated the People had offered Buchanan a sentence of 32 months in jail.  The court then addressed Buchanan and
stated:  “If the allegations are true[,]
. . . that 32 months is by far the best you’re gonna do.  Because if I [sentence] you [to] the 12
years’ suspended, you’re gonna have to stay out of trouble for three
years.  And you have not been able to do that
up to now.  You and I both know that you
have not been able to do that . . . [a]nd if you desert your
probation [or pick up any new offenses], I’m sending . . . you [to] prison for
12 years.”  The court continued, “[The]
People are making you what I think is a reasonable offer of 32 months.  If I undercut them [and grant you three years
probation], it’s going to be with the understanding . . . I’m giving you one
chance.”  “And once I determine there’s a
violation, there will be no discussions.” 
“There is nothing you’ll be able to say to me if you are in violation of
probation, and willful violation, to budge me off of this.”  “So what do you want to do?”  Buchanan indicated he would “take the
probation.”

The trial court explained Buchanan
was “going to plead open to the court. 
[He was] going to plead to both charges. 
In [the court’s] estimation, based on [its] understanding of the facts,
they would merge, so the maximum exposure would not change on the two
charges.  However, it [would] affect
[Buchanan’s] fines and fees.”  The court
continued, “[I]n light of the fact . . . he has so many state prison priors,
[the court has] so much time to hang over his head, that for the facts of this
case, even with his record, . . . 12 years is an appropriate sentence for the
conduct alleged.”  Under these
circumstances, the trial court determined it would “strike the Strike
allegation,” “suspend the high term of three years, plus nine state prison
priors” and grant Buchanan three years probation.  The court then stated, “And we’ve had
discussions on the record and off the record making it very clear to Mr.
Buchanan . . . this is his one and only chance at probation.”

After Buchanan waived his href="http://www.mcmillanlaw.com/">right to a jury trial, his right to
confront and cross-examine the witnesses against him, his right to present
evidence on his own behalf, which included the use of the subpoena power of the
court at no expense to him, his right to testify on his own behalf and his
right against self-incrimination, or his right to remain silent, the trial
court indicated Buchanan would be pleading open to the court by admitting all
the counts and allegations.  The court
would then impose the high term of three years for count 1 plus nine years for
the prior prison terms, suspend execution of sentence and place Buchanan on
probation “for a period of three years on various terms and conditions.”  Buchanan then pled no contest to the charges
alleged in counts 1 and 2, “forged prescription” in violation of Business and
Professions Code section 4324, subdivision (a) and second degree burglary in
violation of section 459.  With regard to
counts 1 and 2, Buchanan admitted he previously had been convicted of first
degree burglary (§ 459) for purposes of section 667, subdivisions (b) to (i)
and 1170.12, subdivisions (a) to (d), the Three Strikes law.  With regard to the allegations he had
suffered felony convictions for which he served nine prison terms within the
meaning of section 667.5, subdivision (b), Buchanan admitted “each and every
one of [the] allegations.”  The court
found Buchanan had “expressly, knowingly, understandingly, and intelligently
waived his constitutional rights[,]” the plea had been “freely and voluntarily
made with an understanding of the nature and consequences thereof,
and . . . [there was] a factual basis for the plea.”  The trial court then struck “the
Strike . . . for . . . reasons stated
previously.”

With regard to count 1, the trial
court sentenced Buchanan to the upper term of three years, “based on [his]
numerous prior felony convictions,” then “an additional term of nine years for
[the] 667.5[, subdivision] (b) allegation[s].” 
In total, the trial court sentenced Buchanan to 12 years in state
prison, then suspended execution of the sentence and granted Buchanan three
years probation.

The court ordered
Buchanan to pay a $200 restitution fine (§ 1202.4, subd. (b)), a
stayed $200 parole revocation restitution fine (§ 1202.45), a $60 court
security assessment (§ 1465.8, subd. (a)(1)), a $60 criminal conviction
assessment (Gov. Code, § 70373), and a $10 crime prevention fee (§
1202.5).

At a hearing held on February 3, 2011, it was determined
Buchanan had violated the terms of his probation.  However, both Buchanan’s counsel and the
district attorney urged the court to give Buchanan one more “opportunity to
have [his] underlying issues addressed by going into an alcohol treatment
program rather than . . . just sending [him] to prison for 12 years.”  Because there were apparently extenuating
circumstances which had led to Buchanan’s violation, the trial court decided to
honor the district attorney’s and defense counsel’s request and indicated, if
Buchanan admitted the violation, the court would order him to do 120 days at “ACTON,”
followed by eight months in another residential treatment facility.

After Buchanan indicated he
understood he had a right to a formal hearing to determine whether he was in
violation of any of the terms or conditions of his probation, he waived the
right and admitted he was in violation as he had “failed to obey all
laws.”  The trial court then “revoked and
reinstated [Buchanan’s probation] on all the original terms and conditions with
the following modifications:  [He was] to
be released only to ACTON to do a
120-day program.  [He was] to be held in
county [jail] until a bed [became] available in ACTON”
and he was “to complete 120 days in ACTON
followed by eight months in another residential [alcohol] treatment program
[.]” Before ending the proceedings, the trial court gave Buchanan credit for 31
days served in custody.

When Buchanan failed to appear at
proceedings held on March 16, 2012,
the trial court revoked his probation and issued a href="http://www.fearnotlaw.com/">bench warrant for his arrest with no
bail.

At proceedings held on May 4, 2012, the trial court indicated
Buchanan had “picked up a new case in Torrance,
a [robbery in violation of section] 211.” 
In the meantime, Buchanan had been sent back to the court in Los
Angeles because he had indicated he wished to make a
motion to withdraw the plea he had entered on August 17, 2010. 
The trial court, however, after reviewing Buchanan’s file, determined
the 180-day time period provided for by section 1018 for a motion to withdraw a
plea had lapsed and the motion was untimely. 
The trial court indicated Buchanan’s only recourse was to file a
petition for writ of habeas corpus, denied his motion and transferred the
matter back to the court in Torrance.

On October 17, 2012, Buchanan was again in the Los Angeles
Superior Court for a hearing regarding an alleged violation of probation.  It was agreed to by both defense counsel and
the prosecutor that the trial court could consider the testimony given at the April 2, 2012 preliminary hearing
in the new case which had been brought against Buchanan.  In addition, defense counsel presented the
testimony of Deshaun Sims. 

Sims testified he had known
Buchanan for a “couple [of] years.”  The
two men had met in a “recovery program.” 
On March 16, 2012,
Sims telephoned Buchanan and asked him if he wanted to accompany him to the
Auto Zone store.  Buchanan agreed to go
and, after they had been to the Auto Zone, Sims realized they were “right
across the street” from the Burlington Coat Factory.  Buchanan asked Sims to drive him there, and
Sims obliged.  The store was not yet
open, so the two men waited in the car until the doors to the store
opened.  Sims, who was on the phone, then
waited for Buchanan, who got out of the car and went into the store.

At some point that morning, Sims
noticed Buchanan was acting “weird.” 
Buchanan was “fidgety [and] not really coherent.”  Sims had “never seen [Buchanan] like that,”
so it had not dawned on Sims Buchanan was “under the influence
or . . . wasn’t himself . . . until [he] really” began to pay
attention.  After Buchanan had come out
of the Burlington Coat Factory, he “wasn’t the same guy” Sims had previously
known.  He was “real[ly] impatient” and
did not seem to understand what Sims was saying to him.  Sims did not know whether Buchanan was under
the influence of “narcotics or medication or what.”  He just knew Buchanan “wasn’t himself.”

As Buchanan walked out of the
Burlington Coat Factory toward Sims’s car, he was followed by store security
officers.  When Sims heard one of the security
officers tell Buchanan to “ ‘give the stuff back,’ ” Sims asked Buchanan,
“ â€˜What did you do?’ â€ 
Although Buchanan responded, his response “wasn’t . . . clear.”  When Sims was asked if he saw Buchanan take a
watch out of his pocket and throw it at a store security officer, he replied,
“No, that didn’t happen.”

Buchanan testified he had taken on
the day of his arrest “Xanax to numb [his] tooth, Codeine 4, and
Respitol.”  In addition, approximately an
hour before he had taken the medications, he had had some brandy and,
approximately 24 hours before he had drunk the brandy, Buchanan had used
cocaine.  Buchanan recalled going into
the Burlington Coat Factory, picking up a watch and “just walk[ing] out the
door with it.”  Although he had not paid
for it, Buchanan had not placed the watch in his pocket.  He had simply held it.  When the security guards asked him to “please
come back to the store[,]” Buchanan kept walking to the car.  However, when his friend, Deshaun, told him
to “ ‘take [the] stuff back[,]’ â€ Buchanan got out of the car, walked
toward the security guards and handed the watch to one of them.  Although he had been told he had done so,
Buchanan did not remember threatening the store security guard.  Buchanan indicated, during the time he has
been on probation in this case, he has struggled with his sobriety.

On cross examination, Buchanan
indicated, since having been placed on probation in August 2010, he had
probably used cocaine three or four times. 
He had also used marijuana and alcohol.

After hearing the testimony and
argument by the parties, the trial court determined Buchanan had willfully
violated a term of his probation.  He had
admitted going into the Burlington Coat Factory and stealing a watch.  When defense counsel indicated Buchanan was
willing to waive all of his credits if the trial court “would consider
sentencing him to a year and another grant of probation[,]” the court noted
Buchanan had had “prior attempts at probation” and had failed to comply with
the terms and conditions.  The trial
court denied Buchanan’s request and imposed the sentence which had been
imposed, then stayed, on August 17,
2010.  The court stated, for
his conviction of presenting a forged prescription, Buchanan was to be
imprisoned for the high term of three years. 
For his conviction of second degree burglary, the trial court imposed a
concurrent term of three years, the term to be served in state prison.  For each of Buchanan’s nine prison terms, the
court imposed an additional year.  In
total, Buchanan was sentenced to 12 years in prison.  The court awarded Buchanan presentence
custody credit for 699 days actually served and 399 days of good time/work
time, for a total of 1,038 days.

Buchanan filed a timely notice of
appeal on October 18, 2012,
in which he appears to be challenging the relief of his counsel of record and
the denial of his motion to withdraw his plea. 
Buchanan, however, failed to obtain from the trial court a certificate
of probable cause.  (See § 1237.5;
Cal. Rules of Court, rule 8.304(b).) href="#_ftn5" name="_ftnref5" title="">>[5]


In an order filed November 16, 2012, the
Administrative Presiding Justice of this court indicated “[t]he purported
appeal in this case, initiated by the notice of appeal filed on October 18, 2012, does not comply
with rule 8.304(b) of the California Rules of Court and with . . . section
1237.5.  Unless it is shown that the
appeal complies with these provisions, the appeal will be dismissed.”

>CONTENTIONS

After examination of the record,
appointed appellate counsel filed an opening
brief which raised no issues and requested this court to conduct an
independent review of the record.  By
notice filed March 20, 2013,
the clerk of this court advised Buchanan to submit within 30 days any
contentions, grounds of appeal or arguments he wished this court  to consider. 
No response has been received to date.

>REVIEW ON APPEAL

We have examined the entire record
and are satisfied appellate counsel has complied fully with counsel’s
responsibilities.  (Smith v. Robbins (2000) 528 U.S. 259, 278-284; People v. Wende (1979) 25 Cal.3d 436, 443.)  Moreover, examination of the record indicates
Buchanan failed to obtain from the trial court a certificate of probable cause
(§ 1237.5; Cal. Rules of Court, rule 8.304(b).) 
Accordingly, in compliance with the November 16, 2012 order issued by the Administrative
Presiding Justice of this court, the appeal must be dismissed. 

 

>DISPOSITION

The appeal is dismissed.

NOT TO BE
PUBLISHED IN THE OFFICIAL REPORTS

 

 

 

 

 

                                                                                    KLEIN,
P. J.

 

 

We concur:

 

 

                        KITCHING, J.

 

 

 

 

 

                        ALDRICH, J.