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People v. Majchrzak

California Court of Appeals, First District, Third Division
Jul 29, 2008
No. A121189 (Cal. Ct. App. Jul. 29, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. MISTY WINTER MAJCHRZAK, Defendant and Appellant. A121189 California Court of Appeal, First District, Third Division July 29, 2008

NOT TO BE PUBLISHED

Del Norte County Super. Ct. No. CRF 06-9110

McGuiness, P.J.

Appellant Misty Winter Majchrzak appeals from an order revoking and reinstating her probation upon the condition she serve 180 days in jail. The trial court modified the terms of appellant’s probation after finding she had tampered with urine specimens gathered for drug testing. Appellant’s court-appointed counsel has briefed no issues and asks this court to review the record as required by People v. Wende (1979) 25 Cal.3d 436. We have done so and find no issues that merit briefing.

Factual and Procedural Background

On February 28, 2006, appellant entered a guilty plea to one count of receiving stolen property (Pen. Code, § 496, subd. (a)). On March 23, 2006, the trial court suspended imposition of sentence and placed appellant on probation. As a condition of probation, the court ordered appellant to submit to drug testing.

On the morning of February 29, 2008, appellant arrived at the probation office to provide a urine sample for testing. Deputy probation officer Eileen Myster supervised appellant during the collection of the urine sample. Myster observed appellant wipe herself before urinating into the “hat” receptacle. Myster described the wiping motion as a “vigorous back and forth.” Myster had “some qualms” about the test and was not sure if the amount of urine provided was adequate for testing purposes.

In Myster’s experience, wiping prior to urination was contrary to common practice. She believed appellant’s conduct was consistent with “packing,” a practice in which a person might conceal “some kind of urine container” in a body cavity and would reach down to pierce a “tin foil cover or something like that” in order to provide a clean urine sample. Myster did not, however, see appellant insert her finger into any body cavities, nor did she attempt to search appellant.

Because Myster had suspicions about appellant’s sample, she directed appellant to stay at the probation office and provide a second sample. Myster told appellant, “I’m not comfortable. I’m going to have you test again.” Later that same morning, Myster collected a second sample from appellant. Again, Myster observed the suspicious wiping activity while appellant provided the second sample. Myster believed the second sample was “low” as well.

After providing the second sample, appellant was once again ordered to remain at the probation office for another test. During the course of the day, appellant made several unsuccessful attempts to provide a urine sample. Myster told other people in the office who might test appellant about her concerns with the suspicious wiping activity and suggested that whoever tried to test her again not allow appellant to wipe herself in the middle of providing a sample.

At around 2:00 p.m., two of appellant’s friends stopped by the probation office to check on her. The friends agreed to drive by her place of employment so that appellant could let her employer know she would be late. After they got something to eat and stopped by appellant’s place of employment, they went to the friends’ house, where appellant’s friends got high and asked appellant to join them. Appellant was worried about her drug test but claims her friends assured her the test would not be positive so soon after taking the drugs. According to appellant, she “got loaded.” Appellant then returned to the probation office to provide her third urine sample of the day.

Later in the afternoon, probation officer Amy Harlick supervised the taking of the third urine sample from appellant. Because of Myster’s suspicions, Harlick instructed appellant to “make her hands stay up” and to not “do any wiping.” As a result, Harlick did not observe any of the allegedly unusual wiping activity described by Myster. However, Harlick opined that “if I had witnessed what [Myster] described, I too would have assumed that there was tampering going on.”

All three samples were subsequently tested. The first two came back clean but the third one tested positive for methamphetamine.

On March 7, 2008, the one positive test was deemed a drug court violation for which appellant received a seven-day jail sentence. On March 11, 2008, the probation department filed a petition for modification of appellant’s probation alleging she tampered with her urine specimens.

The court conducted a contested probation revocation hearing on April 2, 2008, at which probation officers Myster and Harlick testified. Appellant testified in her own defense. She denied that she had a device in her body cavity containing someone else’s urine, and she denied that her hand movements were suspicious. She claimed that during the first test she had urinated, stood up, wiped herself, and then determined there wasn’t enough urine for a sample, so she sat back down. She testified the same thing happened when she provided the second sample.

At the conclusion of the hearing, the court revoked appellant’s probation after finding by a preponderance of the evidence that appellant had tampered with the drug testing specimens. When the court asked for the recommended sentence, the probation officer responded that 180 days was the standard recommendation for tampering with drug tests. The court reinstated probation on the condition that appellant serve 180 days in county jail. Appellant was not given any credit for time previously served.

Appellant filed a timely notice of appeal on April 4, 2008.

Discussion

Appellant’s counsel filed a brief identifying no potentially arguable issues and asking this court to independently review the record under People v. Wende, supra, 25 Cal.3d 436. In addition, appellant has had an opportunity to file a supplemental brief with this court but has not done so.

Having reviewed the entire record, we conclude there are no arguable issues that warrant further briefing.

Disposition

The judgment is affirmed.

We concur: Pollak, J., Siggins, J.


Summaries of

People v. Majchrzak

California Court of Appeals, First District, Third Division
Jul 29, 2008
No. A121189 (Cal. Ct. App. Jul. 29, 2008)
Case details for

People v. Majchrzak

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. MISTY WINTER MAJCHRZAK, Defendant…

Court:California Court of Appeals, First District, Third Division

Date published: Jul 29, 2008

Citations

No. A121189 (Cal. Ct. App. Jul. 29, 2008)