Super. Ct. No. 1324986 Santa Barbara County
The opinion of the court was delivered by: Coffee, J.
CERTIFIED FOR PUBLICATION
Penal Code section 134 makes it a felony to prepare false evidence with intent that it be produced "upon any trial, proceeding, or inquiry whatever, authorized by law."*fn1 Here, we conclude that the statute is violated by a probationer who prepares a false urine sample with intent to produce it to his probation officer during court-ordered drug testing. Court-ordered probation drug testing is an "inquiry . . . authorized by law" within the meaning of the statute. (Ibid.)
William Tyndall Morrison appeals from a judgment after conviction by jury of preparing false evidence in violation of section 134. The trial court sentenced him to eight months in state prison*fn2 , suspended his sentence and granted him a five-year term of probation.
Appellant contends that section 134 does not apply to a probationer who provides a falsified urine sample to his probation officer if he provides it with intent to avoid a hearing. Alternatively, appellant contends that the trial court invaded the role of the jury when it instructed the jury that probation drug testing is an "inquiry authorized by law" and a probation revocation hearing is a "proceeding or inquiry authorized by law," within the meaning of the statute. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Appellant concedes that he gave a false urine sample to his probation officer while he was on supervised felony probation, a term of which was periodic drug testing. As a result of the false test, he was charged with felony violation of section 134 and his probation was revoked.
After the preliminary hearing on the felony charge, the court heard argument on the applicability of section 134 to the facts of the case. The court concluded that appellant should be held to answer on the charge. It initially said, "I'm not happy about it. It seems to me it ought to be a wobbler." It noted that violation of section 135 (willful destruction of evidence) is a misdemeanor. But the court concluded that the facts fell within the plain meaning of section 134. It explained, "I've been struggling for some intellectually honest way to read that language and say it doesn't apply and I can't find it."
Appellant then moved to dismiss the charge pursuant to section 995. The court denied the motion. It said, "the way these cases . . . read, . . . if somebody goes into probation to try to produce a false test, they're doing so with the intention that they were going to pull something over on the probation officer and the Court if there's a probation violation hearing."
At trial, the sole witness was appellant's probation officer. Officer William Grimm testified that on March 4, 2009, appellant came to the Lompoc probation office for a routine visit. Officer Grimm asked appellant to provide a "urine" sample. He became suspicious when appellant turned away while giving the sample. The flow of urine did not sound like a normal, steady stream and the urine was unnaturally fluorescent yellow.
Officer Grimm asked appellant to roll up his sleeves. He found track marks. Appellant first claimed these were fish hook cuts sustained in the course of his occupation as a fisherman. He then admitted that he had used heroin two weeks earlier, and taken Oxycontin within the last several days. He admitted that he had tried to adulterate the urine sample. Officer Grimm arrested appellant and transported him to the jail.
During booking, Officer Grimm thoroughly searched appellant and found a urine substitution apparatus in his pants. It consisted of a bottle secured by a string to the button of appellant's pants, a temperature strip, and a chemical warming packet that was attached by an adhesive strip to the inside of his pants. Appellant told Officer Grimm that he purchased the "kit" from a "head shop." Officer Grimm had seen similar apparatus about six or seven times over the course of ten years as a probation officer.
The court instructed the jury on the elements of section 134, as follows: "To prove that the defendant is guilty of this crime, the People must prove that: [¶] 1. The defendant prepared any false or antedated book, paper, record, instrument in writing, or other matter or thing; [¶] 2. The defendant intended to produce or allow to be produce[d] the matter or thing with a fraudulent or deceitful purpose, as genuine or true; AND [¶] 3. The matter or thing was to be produced at any trial, proceeding, or inquiry whatever, authorized by law . . . ." Over appellant's objection, the court further instructed the jury that: "A probation officer is a law enforcement official. [¶] ...