People v. Zaring
| Decision Date | 22 July 1992 |
| Citation | 10 Cal.Rptr.2d 263,8 Cal.App.4th 362 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE, Plaintiff and Respondent, v. Linda Gail ZARING, Defendant and Appellant. F014606. |
APPEAL from a judgment of the Superior Court of Tulare County. Howard R. Broadman, Judge. **
Mark E. Cutler and Madeline McDowell, Sacramento, under appointment by the Court of Appeal, for defendant and appellant.
Ann Brick, Edward M. Chen, Matthew A. Coles, Margaret C. Crosby and Alan L. Schlosser as amicus curiae on behalf of defendant and appellant.
Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Acting Asst. Atty. Gen., Edgar A. Kerry and Jane Olmos, Deputy Attys. Gen., for plaintiff and respondent.
At approximately 4:30 p.m. on June 16, 1990, Deputy Coker from the Tulare County Sheriff's Department was patrolling Terra Bella and the C.C. & F. Trailer Park when she observed a parolee-at-large walking with appellant.
When the parolee saw the patrol car, he ran. The deputy followed the parolee and watched him run inside a market. It was the same market that the deputy had observed appellant enter moments before.
The deputy entered the market looking for the parolee. Inside the market, the deputy contacted appellant and asked her the whereabouts of the parolee. Appellant denied seeing anyone. The deputy asked if she would step outside so they could talk. Appellant said, "No, Coker, or you will arrest me." Appellant and the deputy continued to talk. While talking with appellant, the deputy observed appellant's pupils to be constricted and visible puncture marks on the side of her neck. Appellant's mouth was noticeably dry and her speech was slow and deliberate. Deputy Coker formed the opinion that appellant was under the influence of heroin and arrested her for being under the influence of a controlled substance.
After the arrest, appellant was transported to the Porterville substation. During a booking search, the deputy found a bindle containing a black tarry substance in appellant's undergarments. The substance was later analyzed and found to contain 0.1 gram of heroin. Appellant gave a urine specimen. A urinalysis confirmed the presence of morphine, codeine and Benzocaine in appellant's system.
On July 17, 1990, appellant was charged by information in count one with violating Health and Safety Code section 11350, subdivision (a) (possession of heroin), a felony, and in count two, with violating Health and Safety Code section 11550 (), a misdemeanor. It was further alleged in connection with count one that appellant had served a prior prison term for being convicted of petty theft with a prior conviction within the meaning of Penal Code section 667.5, subdivision (b).
On July 18, 1990, appellant entered her pleas of not guilty to all counts and denied the special allegation.
On July 25, 1990, appellant filed a motion to suppress evidence pursuant to Penal Code section 1538.5. Appellant contended that all of Deputy Coker's observations of appellant's physical condition, as well as the physical evidence obtained from appellant at the time of her arrest, should be suppressed as the products of an illegal detention. On August 3, 1990, Judge John P. Moran heard the motion and took it under submission. Judge Moran denied the motion on August 6, 1990, by written minute order.
On August 15, 1990, appellant entered into a plea bargain wherein she pleaded guilty as charged and admitted her prior prison term, and Judge Howard R. Broadman agreed that he would not sentence appellant to more than two years in state prison.
On September 14, 1990, imposition of sentence on the felony possession of heroin count was suspended. Judge Broadman placed appellant on probation for a period of five years on certain terms and conditions, including that she serve 365 days in the county jail and that she "not get pregnant during the term of her probation." The "667.5 enhancement" was ordered stayed. Appellant appears to have been sentenced to 90 days in jail on the misdemeanor conviction for being under the influence of heroin, and to have served that time while awaiting her sentencing.
On September 17, 1990, appellant filed her timely notice of appeal from the order denying her motion to suppress evidence. This Court designated that appeal as No. F014606.
On November 15, 1990, Judge Broadman modified the condition of probation which required that appellant serve a term in the county jail, changing it to "time served." Judge Broadman released her from custody and continued the matter to November 19, 1990, a Monday, at 8:30 a.m. in Department 7 for further hearing on her acceptance into the Third Floor drug program. He admonished appellant that "[i]f you're not back in this courtroom at 8:30 a.m. on Monday morning with a full report as to what your status is with Third Floor, if you're not back in this courtroom at 8:30, you're going to go to prison."
On November 19, 1990, appellant, according to undisputed testimony, appeared 22 minutes late for her 8:30 a.m. court appearance. Judge Broadman called her case at approximately 8:30 a.m. and the following colloquy took place between Judge Broadman and appellant's attorney as the court summarily revoked her probation.
When appellant appeared at approximately 8:52 a.m., the following exchange took place between Judge Broadman and appellant as Judge Broadman remanded her into custody and set bail at $25,000.
The matter was set for hearing.
On November 21, 1990, appellant was arraigned on her violation of probation. Her violation of probation hearing was set for November 27, 1990.
On November 27, 1990, Judge Broadman, after hearing sworn testimony from appellant, found that she had willfully violated the terms of her probation by not appearing in court "on time" on November 19.
On November 29, 1990, Judge Broadman terminated probation and sentenced appellant to state prison for 16 months on her possession of heroin conviction under Health and Safety Code section 11350, plus 1 year for the prior prison term enhancement, for a total of 2 years and 4 months. Appellant was credited with serving 167 days in actual custody plus 84 days of conduct credits for a total of 251 days.
On January 2, 1991, appellant filed her timely notice of appeal from the judgment and sentence imposed. This Court designated that appeal as No. F015192.
On March 25, 1991, this Court ordered the appeals in Nos. F014606 and F015192 consolidated.
On March 27, 1991, Judge Broadman recalled the sentence pursuant to Penal Code section 1170, subdivision (d), resentenced appellant to serve two years for the drug possession conviction, and stayed the one year imposed for the prior prison term enhancement.
Appellant contends on appeal that: (1) her motion to suppress evidence was improperly denied; (2) the probation condition prohibiting pregnancy must be stricken; (3) the court deprived appellant of procedural due process when it revoked appellant's probation and committed her to state prison; (4) the court abused its discretion in sentencing appellant to state prison rather than reinstating probation; and (5) the court erred in sentencing appellant to two years on the possession charge after having previously sentenced her to 16 months on that charge.
The Motion to Suppress ***
When Judge Broadman placed appellant on probation on September 14, 1990, a condition of that probation was that appellant "not get pregnant during the term of her probation." At the September 14 hearing, Judge Broadman and appellant had the following exchange:
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