Opinion
C081843
08-20-2021
The PEOPLE, Plaintiff and Respondent, v. Ryan Douglas ROBERTS, Defendant and Appellant.
Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Clara M. Levers, Deputy Attorney General, for Plaintiff and Respondent.
Certified for Partial Publication.
Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified for publication with the exception of Parts II through VIII.
Patricia J. Ulibarri, San Diego, under appointment by the Court of Appeal, for Defendant and Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General, Clara M. Levers, Deputy Attorney General, for Plaintiff and Respondent.
MURRAY, J. Thirteen-year-old Jessica F.-H. was brutally murdered in a Sacramento County park. Her murder went unsolved until defendant's DNA was linked to her belt buckle and cigarette butts found at the scene. Defendant's DNA had been collected after an unrelated felony arrest more than a year after Jessica's murder. Although that arrest was supported by probable cause, he was not formally charged in that matter. Based primarily on the DNA evidence, a jury found defendant guilty of murder in the first degree. The jury also found true an enhancement allegation that defendant personally used a deadly and dangerous weapon, a knife. Defendant was sentenced to an aggregate term of 26 years to life.
In this case, we address the issue of whether using a DNA sample taken from a defendant who is validly arrested for a felony on probable cause but never formally charged, violates the defendant's federal or state constitutional rights against unreasonable search and seizure or his state constitutional right to privacy. In the published portion of this opinion, we conclude defendant's federal right protecting him against unreasonable search and seizure was not violated. Like the United State Supreme Court, we see this situation as no different than taking fingerprints and photographs of someone arrested on probable cause. And like fingerprints and photographs, once validly obtained, the later use of that evidence in the investigation of another crime is not constitutionally prohibited. We further hold that defendant's state constitutional rights were not violated, but even if they were, the Truth-in-Evidence provision of Proposition 8 prohibits suppression of the DNA evidence in a criminal trial.
In addition to (1) defendant's search and seizure and privacy claims concerning the DNA evidence, defendant also asserts (2) the trial court prejudicially erred in restricting the scope of his gang expert's testimony; (3) the trial court prejudicially erred in precluding the defense from presenting certain demonstrative evidence; (4) the trial court denied defendant due process by refusing to give his proposed pinpoint jury instruction on third party culpability; (5) the cumulative effect of the trial court's errors warrants reversal; (6) the trial court erred in denying defendant's motion for a new trial premised on newly discovered evidence; and (7) the trial court erred in concluding a juror did not commit prejudicial misconduct related to statements made on Twitter during the trial. As to the last claim, defendant requests that we perform an independent in camera review of the juror's Twitter account records, which we have done.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The People's Case-in-chief
The Night of the Murder
Jessica lived with her mother and her maternal grandmother. She attended a school, which was adjacent to Rosemont Community Park (the park) where she was killed.
Pursuant to the California Rules of Court, rule 8.90, governing "Privacy in Opinions," we refer to the victim initially as Jessica F.-H. and thereafter as Jessica. We use the same convention in referring to certain witnesses, referring to them initially by first name and last initial, and thereafter by first name only. We refer to certain other witnesses by their initials.
On Monday, March 5, 2012, Jessica and her mother got into an argument and, at approximately 5:45 or 6:00 p.m., Jessica left the apartment. She took a pack of Camel cigarettes with her. Later, at 6:29 p.m., Jessica is seen in a surveillance video, walking near the west side of the park, smoking a cigarette.
At approximately 6:00 p.m., a little league team finished practice at the park and the coach locked the dugouts by placing a chain and lock on the dugout entrances. He did not remember seeing anyone else at the park when he left other than his assistant coach and that coach's son.
On that same evening, defendant met up at the park with his friend, J.M. and J.M.’s son and daughter, eleven-year-old M.K. and nine-year-old M.A. According to M.K., defendant arrived at the park on his skateboard. While at the park, J.M. and defendant smoked cigarettes defendant furnished, Marlboro Smooth menthols.
M.A. was not sure whether defendant had his skateboard or his motorcycle. J.M. testified defendant walked to the park that night, and further testified he did not have his skateboard with him.
J.M., M.K. and M.A. all remembered seeing Jessica, whom they did not know, in the park. J.M. first observed Jessica sitting alone at a picnic table smoking. He then saw her go to the swings. M.K. and M.A. saw Jessica on the swings, alone, smoking a cigarette. M.A. remembered defendant sitting on a swing talking to Jessica for approximately 10 minutes. J.M. testified that, at one point, he asked Jessica what she was doing there, because it was getting late. According to J.M., Jessica responded that she did not feel like going home yet.
Before leaving the park, J.M. asked Jessica if she was sure she was okay and/or encouraged her to go home because it was getting late. Jessica responded that she would be fine and that she just had an argument with her mother and was not ready to go home yet. J.M. told Jessica to be safe and he and his kids left. According to M.A., they left at 7:00 or 8:00 p.m.; according to J.M., they left when it was getting dark. Defendant left at the same time, but by a different route. Jessica remained on the swings, alone.
During the evening, a nearby resident was outside of her house when she heard the sound of a girl screaming in the park. She characterized the scream as different from the sounds she would typically hear coming from the park, because it "was just a lone scream" rather than screaming accompanied by laughter or other screams. After the scream, she heard what sounded like two male voices coming from the area of the baseball diamond. The resident testified that three or four minutes later, she heard "a car take off from the park ... just screaming down the street really, really fast." When asked if she recalled telling officers that she heard the scream between 8:00 and 9:00 p.m., she responded, "[t]hat sounds right."
Another resident testified that, between 8:30 and 9:00 p.m., she heard "a bad scream" that "sounded really bad, like from a horror movie." The scream came from an area of the park near a baseball diamond. She had heard screams coming from the park before, "but not like that." The Discovery of Jessica and the Cigarette Butts
On the following morning, Tuesday, March 6, 2012, a woman went to the park to collect bottles and cans. She looked into a dugout at one of the baseball fields and saw what she initially thought to be a person sleeping. After taking another look, she realized "the person didn't look like they were alive" because the person "was kind of blue." She called 911.
Kenneth Clark, a Sheriff's detective who responded to the scene, observed Jessica's lifeless body in the dugout. Clark observed a number of Camel cigarette butts on the ground in the area of the dugout, which were consistent with a Camel cigarette package he observed near Jessica.
Defendant's Discussions with Others After the Murder
The day after they were in the park with defendant and saw Jessica, M.K. heard J.M. talking on the phone to defendant. J.M. said to defendant, "That girl from last night, she is on the news." Defendant came over later in the day.
While at J.M.’s residence, J.M. and defendant watched a news story reporting the discovery of Jessica's body in the park. J.M. was shocked and found himself wishing he had done more to encourage her to leave. He testified defendant was just as shocked. But defendant did not mention returning to the park or that he went to the dugout area that night.
Salvador C. was also friends with defendant. Salvador heard a news report about a girl's body having been found in the park. He called J.M. and told him about the report. J.M. and defendant later went to Salvador's apartment. Both J.M. and defendant indicated they had been at the park the prior night with J.M.’s kids and that they had met Jessica. They both discussed the substance of the brief exchanges they had with her. Both J.M. and defendant said they then left the park and went to their respective homes. Defendant did not mention that he had gone back to the park after initially leaving, that he met up with Jessica, or that he smoked or shared cigarettes with her. Nor did defendant mention he had been in the baseball area of the park that night.
Defendant and His Knives
M.K. and M.A. both testified they had previously seen defendant in possession of a knife. M.K. testified that defendant actually showed J.M. a folding knife while they were at the park that evening. M.K. also saw defendant with a folding knife two days after the killing. J.M. testified that defendant owned a tactical folding knife that he would sometimes have with him, but that defendant did not have the knife with him on the evening when they saw Jessica.
Salvador had previously seen defendant in possession of knives. He knew defendant to have three or four knives. Any time defendant got a new knife, he would show it to Salvador. At times, defendant would have his knives on his person. According to Salvador, most of the knives defendant had were folding knives. One was a folding tactical knife like "the military might use." Salvador testified that defendant would have a knife clipped onto his pants "maybe every other time I seen him."
The Forensic Pathology Evidence
Dr. Gregory Reiber, an expert in forensic pathology, performed the autopsy on Jessica. She was four feet ten inches tall and weighed 87 pounds.
Reiber testified Jessica sustained two stab wounds, one to the right front side of her neck and the other on the right side back of the neck. The wound on the front right side was slightly more than an inch long on the surface of the skin, slightly less than one quarter of an inch wide, and it penetrated just more than two and a half inches deep. It penetrated muscle tissue and Jessica's carotid artery, cutting "almost all the way through." Reiber described this wound as typical of one inflicted by a single-edged knife. The knife wound to the back of the neck was a "small stab wound" that penetrated "almost an inch deep." It did not do any significant internal damage.
Jessica also sustained a skull fracture on the left rear side of her head. Reiber opined that this wound was the result of "a very forceful impact." It was "the kind of fracture that you can sometimes see in a full-standing-height fall backwards in an adult who passes out and doesn't do anything to interrupt their fall" onto a hard surface. Reiber had been to the crime scene and opined that Jessica's head injury was consistent with a fall or drop onto the cement surface of the dugout floor.
Reiber also found evidence of asphyxia by chest compression. There were petechial hemorrhages on Jessica's face, in her scalp, and in her eyelids. Her face also showed hypercongestion, meaning that it was very flushed. But there was no evidence of external neck compression such as bruising, ligature marks, or other compression marks, leading Reiber to conclude that the asphyxia resulted from a heavy weight being on Jessica's chest. He opined that these findings were consistent with a large enough person sitting or kneeling on Jessica's chest, placing a great deal of weight on her chest. Jessica also sustained bruises on the right side of her lower face by her jaw and chin and abrasions on her neck and hands. Of the bruises on the right side of her lower face near her jaw, Reiber testified that they were close to the large stab wound, and that "it's possible that there could be a connection if her head was forcefully held back with some fingers for a knife to reach this part of the skin. That might be an explanation for these bruises in this location." Additionally, Jessica had bruises on her upper back in the area of her shoulder blades.
Reiber concluded that the cause of Jessica's death was a combination of blunt force head injury, asphyxia by chest compression, and a stab wound to the neck. According to Reiber, the large stab wound to the neck would have been fatal by itself. Additionally, the asphyxia by chest compression could have been fatal by itself, depending on how long it lasted. Reiber opined the blunt force injury to Jessica's head could have been survivable with medical intervention. However, in combination with the other injuries, it would have been a significant contributor to her death.
Reiber found no identifiable sperm on any samples taken from Jessica. He also found no evidence of injury to Jessica's vaginal or anal areas. Based on toxicology testing, there was no evidence of alcohol or drugs in Jessica's body.
The DNA Evidence – Camel Cigarette Butts and Jessica's Belt Buckle
Jessica spent the weekend prior to her murder at her father's house. He was a smoker and smoked Camels. While he did not know whether Jessica took any of his cigarettes when he returned Jessica to her mother's house on Sunday afternoon, he had caught her taking cigarettes from him before. As noted, Detective Clark observed a number of Camel cigarette butts on the ground in the area of the dugout which were consistent with pack of Camel cigarettes near Jessica.
Megan Wood, a criminalist at the Sacramento County District Attorney's Laboratory of Forensic Services, testified as an expert in DNA analysis. She performed DNA analysis on cigarette butts collected from the dugout area. One cigarette butt contained DNA consistent with Jessica's DNA, but inconsistent with defendant's DNA. Two cigarette butts (TM-6 & TM-19) contained DNA consistent with defendant's DNA, but inconsistent with Jessica's. Wood testified that the likelihood of selecting an individual at random from the Caucasian population whose DNA matched the DNA profile found on TM-19 was one in 28 quintillion. One cigarette butt (TM-3) contained a mixture of DNA, with Jessica's DNA being consistent with the major contributor and defendant's DNA being consistent with the minor contributor. The chance that an individual selected at random from the Caucasian population would have a DNA profile consistent with the minor contributor was one in two billion. Another cigarette butt (TM-21) also contained a mixture of DNA, with Jessica's DNA being consistent with the major contributor and defendant's DNA being consistent with the minor contributor. The chance that an individual selected at random from the Caucasian population would have a DNA profile consistent with the minor contributor was one in one billion. Another cigarette butt (TM-4) also contained a mixture of DNA, with Jessica and defendant both being possible donors. Wood testified that the probability of selecting an individual at random from the Caucasian population who would be included as a possible contributor to the mixture would be one in 32 million. Another cigarette butt (TM-2) contained a mixture from what Wood believed to be two contributors. Again, Jessica and defendant were potential contributors to the mixture. The probability of selecting an individual at random from the Caucasian population who would be included as a potential contributor was one in 200 million according to Wood. Another cigarette butt (TM-1) contained DNA consistent with Jessica as the major contributor, and, based on a partial profile, defendant could not be excluded as the minor contributor. The probability of selecting an individual at random from the Caucasian population who could potentially be the minor contributor was one in 13,000. As for the final cigarette butt (TM-7), Wood testified that Jessica's DNA profile was consistent with that of the major contributor, and, while defendant's DNA profile could not be excluded as the minor contributor, the probability of selecting an individual at random from the Caucasian population who could potentially be the minor contributor was one in two.
In addition to the cigarette butts, Wood performed DNA analysis on Jessica's belt, including the buckle. Wood found a mixture of DNA on the buckle. The major contributor profile was consistent with Jessica's DNA profile. Defendant's DNA profile was consistent with the minor contributor's profile, based on the six alleles Wood found. The likelihood of selecting an individual at random from the Caucasian population whose DNA profile would match the minor contributor's profile was one in 550.
Wood also examined the oral, vaginal and rectal swabs from the autopsy and found no spermatozoa.
Defendant's Arrest, Statements to Law Enforcement and Recorded Jail Phone Call
On the evening of August 7, 2013, almost a year and a half after Jessica was murdered, Detective Clark and Detective Tony Turnbull contacted defendant outside of a restaurant and interviewed him. Unbeknown to defendant, his DNA had been matched in the Combined DNA Index System (CODIS) to items at the crime scene. In the interview, Clark asked defendant if he recalled a murder of a young girl that took place in the park a year and a half earlier. Defendant said he did. He stated "my buddy took his kids up to the park around there. And he was telling me the next day that some kid he saw got murdered." Later in the interview, defendant told the detectives that J.M. told him "a little girl got killed. And he was up there ... the day before with his, uh, with his kids." Detective Clark showed defendant a photograph of Jessica and asked defendant if he had ever seen her before. Defendant responded that he had not. Defendant denied ever having been in the dugout. He also denied being in the park at any point on that Monday or Tuesday. When Clark asked defendant whether there was any reason evidence from the crime scene would match defendant, defendant responded that there was not. When asked if there was any reason to believe DNA or fingerprint evidence would match defendant, he responded, "No, sir." Defendant again denied having any contact with Jessica.
At the conclusion of the interview, defendant told the detectives, "you have my phone number if you need me. And, like, uh, I wanna get cleared out of this. Um, I'd offer DNA and fingerprints but, honestly, I'm already in the system. So you guys can run me."
After their discussion, the detectives decided that they were going to have defendant arrested. Other deputies arrested defendant and brought him to the homicide bureau where Clark and Turnbull again interviewed him. The interview was recorded, and the video recording was played for the jury.
Both interviews were recorded, and the video recording was played for the jury.
As the interview commenced, Clark told defendant that some of what he had told them did not add up and further told defendant that he was under arrest for murder. Defendant responded, "okay." Clark informed defendant of his Miranda rights.
Miranda v. Arizona (1966) 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694. Defendant does not challenge the admissibility of the statements he made during either interview.
Clark asked defendant if he was sure he had never been in the dugout at the park before, and defendant responded that he was sure. Clark informed defendant that there had been a DNA match made between evidence at the crime scene and defendant's DNA profile. When defendant asked what items were found to have his DNA on them, Clark informed defendant that they had discovered cigarette butts in the dugout that belonged to Jessica. Clark stated that several of the cigarette butts had both defendant's and Jessica's DNA on them. Defendant asked, "Cigarette butts?" Clark responded affirmatively, and defendant replied, "That's what has me here?" Clark asked defendant if he had smoked cigarettes with Jessica, and defendant responded he had not, but that he did smoke cigarettes. Clark explained he thought defendant was responsible for Jessica's death, adding he would not be arresting him otherwise. He then told defendant that he understood that sometimes things "go[ ] wrong" and "happen[ ] rapidly." Clark continued, "But you both were there - the evidence shows that. You both had a conversation that went on for some period of time that was normal and then she is no longer with us. And so I'd like to know what happened." Clark asked defendant if Jessica attacked him or if he had to defend himself. He again asked what went wrong, and how Jessica and defendant went from smoking cigarettes together to Jessica being dead. Defendant responded: "That's reading a lot into cigarette butts." Clark responded that, from the evidence, he knew Jessica brought the cigarettes to the park, he knew defendant and Jessica shared a number of them, and that defendant's and Jessica's DNA were both on five or six cigarette butts. Clark stated, he had to wonder why defendant was denying that he ever met Jessica and that he had ever been in the dugout. He again asked what went wrong and "why ... did this occur?" Defendant responded only: "Damn I like both you guys and I wish we weren't on opposite sides."
After a break in the recording, Clark can be seen writing while defendant, with his chin on his hands resting on a table, says, unprompted, "this is my lesson to quit smoking cigarettes." Defendant subsequently professed his innocence. He said he was aware the detectives could lie to him and expressed skepticism about why, if his DNA matched evidence at the crime scene, it took detectives a year and a half to speak with him. Defendant also stated he had been "known to smoke refi's," or cigarettes that had previously been smoked and discarded. Subsequently, alone in the interview room, defendant laughed to himself and stated: "Once this shit is over with, never smoking cigarettes again."
Defendant was transferred to the Sacramento County main jail. In a recorded phone conversation between defendant and an unidentified male, defendant said he was "not worried about it." Defendant said the "only thing they have is old freakin’ cigarette butts, I guess, at the scene." He continued: "they got some cigarette butts at the scene that have my DNA on them and they said they have hers. So either this bitch smoked after I left my cigarette butts or honestly I smoked after she left mine. [sic ] Whatever. It's been a year and a half .... They're grasping for straws right now. I could tell in the interrogation room. They are grasping for straws. This is my [¶] ... [¶] - sign to quit smoking."
Both J.M. and Salvador testified they had never seen defendant pick up and smoke discarded cigarettes. The Defense
Defendant mounted a third party culpability defense, asserting that the responsible persons were another young girl, S.L., and/or S.L.’s adult acquaintance, Christopher R. Jessica and S.L. had gone to the same school adjacent to the park and had been friends. S.L. was a member of the Juggalos, a criminal street gang, and, according to S.L., Jessica was scheduled to be initiated into the gang the weekend immediately preceding her death. We set forth post in the unpublished parts of this opinion additional background related to defendant's evidence and other issues he raises.
Verdict and Sentence
The jury found defendant guilty of murder in the first degree ( Pen. Code, §§ 187, subd. (a), 189 ), and found true the enhancement allegation that defendant personally used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). The trial court sentenced defendant to 25 years to life on count one, plus an additional term of one year for the weapon enhancement.
Further undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
DISCUSSION
I. Collection and Analysis of Defendant's DNA from Subsequent Felony Arrest
A. Additional Background
Prior to trial, defendant moved under section 1538.5 to suppress the DNA evidence. He asserted that California's practice of collecting and analyzing DNA from felony arrestees, including those who are ultimately not formally charged or convicted, violates the arrestees’ search and seizure rights under the Fourth Amendment to the United States Constitution and article I, section 13, of the California Constitution, and the arrestees’ privacy rights und article I, section 1 of the California Constitution. Defendant attempted to distinguish the Maryland DNA collection law approved by the United States Supreme Court in Maryland v. King (2013) 569 U.S. 435, 133 S.Ct. 1958, 186 L.Ed.2d 1 ( King ) from California's law. He pointed out that the Maryland statute authorizes collection and processing of DNA from a narrower class of arrestees, requires a judicial determination of probable cause before the sample is analyzed and placed in the DNA database, and provides for automatic expungement of DNA samples when the charges are judicially determined to be unsupported by probable cause or do not result in a conviction. California's scheme does not have any of those requirements. Because of the differences between the California and Maryland statutes, defendant asserted California's statutory scheme should not be upheld based on King . Defendant asserted that, because all felony arrestees must have DNA samples taken and analyzed, regardless of whether they are ever formally charged or convicted, the California statutory scheme grants law enforcement essentially unfettered discretion to take DNA samples.
In opposition, the prosecution argued that the United States Supreme Court's holding in King was unambiguous and noted defendant never mentioned the holding in his briefing on the motion. As the prosecution pointed out, the King court held: "the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." ( King, supra , 569 U.S. at pp. 465-466, 133 S.Ct. 1958, italics added.) The prosecution asserted that the King holding applied, and citing Haskell v. Harris (9th Cir. 2014) 745 F.3d 1269 ( Haskell I ), noted that the Ninth Circuit, in holding that the California statute was not unconstitutional, had rejected similar arguments attempting to distinguish King based on the differences between the Maryland and California statutes. In a tentative ruling, the trial court denied defendant's motion, ruling that King applied. The court also found Haskell I, supra, 745 F.3d 1269, to be persuasive. Following oral argument, the trial court adopted its tentative ruling.
The prosecution further asserted that, even if the taking of the DNA sample from defendant violated his Fourth Amendment rights, suppression was not appropriate based on the good faith exception to the exclusionary rule, citing Illinois v. Krull (1987) 480 U.S. 340, 347-350, 107 S.Ct. 1160, 94 L.Ed.2d 364.
Thereafter, the parties agreed to the following stipulation:
"1. [Defendant's] DNA was taken by way of buccal swab on or about June 1, 2013 following a May 30, 2013, lawful arrest for a felony, based upon the officer's finding probable cause . "2. On June 3, 2013, the Sacramento County District Attorney's office reviewed the reports relating to [defendant's] arrest and declined to file any charges, felony or misdemeanor, against [defendant] citing a lack of sufficient evidence.
According the parties’ pleadings related to defendant's suppression motion, he had been arrested on May 30, 2013, for violations of section 273.5, spousal abuse, and section 262, spousal rape.
"3. [Defendant] was released from custody at the Sacramento County Jail on June 4, 2014.
"4. Owing to the lack of charges being filed against [defendant] regarding the May 30, 2013, arrest, [defendant] never appeared before a magistrate for arraignment on those allegations.[ ]
We take judicial notice of the calendar for the year 2013. (Evid. Code, §§ 452, subd. (h), 459 subd. (a)(2) ; Douglas v. Janis (1974) 43 Cal.App.3d 931, 936, 118 Cal.Rptr. 280.) May 30, 2013 was a Thursday. Defendant was booked into the jail during the early morning hours of Friday, May 31, 2013. June 3, 2013, the day the district attorney declined to file charges, was a Monday and defendant was released on Tuesday, June 4, 2013. The record is silent on whether there was a probable cause determination made by an on-call judicial officer during the weekend, although ordinarily this would have been the case. (See People v. Buza (2018) 4 Cal.5th 658, 677, 230 Cal.Rptr.3d 681, 413 P.3d 1132 (Buza ) ["When officers make a warrantless arrest and take a suspect into custody, due process ordinarily requires that a judicial officer make a probable cause determination promptly after booking -- ordinarily within 48 hours -- to justify continued pretrial detention"]; see also County of Riverside v. McLaughlin (1991) 500 U.S. 44, 56-59, 111 S.Ct. 1661, 114 L.Ed.2d 49 ["a jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein [v. Pugh (1975) 420 U.S. 103, 95 S.Ct. 854, 43 L.Ed.2d 54 ]"; if arrestee does not receive a probable cause determination within 48 hours, the state must demonstrate "the existence of a bona fide emergency or other extraordinary circumstance" and a weekend is not such a circumstance]; In re Walters (1975) 15 Cal.3d 738, 743, 126 Cal.Rptr. 239, 543 P.2d 607 ; § 810, subd. (a) [requirement that there be at least one judge available on-call as a magistrate at all times when court is not in session in the county].)
"5. [Defendant] has never subsequently been arrested or charged as a result of the events of May 30, 2013.
"6. After the Sacramento County District Attorney's Office declined to file charges relating to the May 30, 2013, arrest and [defendant] was released from custody, [defendant's] DNA sample was received by, and tested by, the California Department of Justice (DOJ)[.]
"7. [Defendant's] DNA profile, once uploaded into CODIS, remained in that system and was compared to evidence items an indeterminate number of times.
"8. [Defendant's] profile was ‘matched’ to items of evidence containing unknown DNA samples in Sacramento Sheriff's Department case number 12-48769 relating to the death of [Jessica] by the Department of Justice, Jan Bashinski Laboratory (DOJ). This ‘match’ occurred on or about August 5, 2013. "9. As a result of the ‘match’ referenced in number ten (10) [sic ], the DOJ notified the Sacramento County District Attorney's Crime Lab, who in turn notified the Sacramento County Sheriff's Department of the ‘match,’ the items of evidence to which [defendant's] DNA ‘matched,’ and the identity of [defendant] as the person to whom the ‘match’ was made.
"10. As a direct result of the DOJ match, [defendant] was interviewed at night in a parking lot on August 7, 2013, and thereafter arrested for violation of ... section 187 in the death of [Jessica].
Item No. 11 was crossed out.
"12. Prior to June 1, 2013, [defendant's] DNA profile was unknown, and unknowable, to law enforcement." (Italics added.)
B. Defendant's Contentions
Defendant asserts the collection of his DNA sample in connection with his May 2013, felony arrest, for which no formal charges were ultimately filed, and the later analysis used to identify and convict him in this case violated his right against unreasonable searches and seizure under the Fourth Amendment to the United States Constitution. Defendant asserts that his privacy interests outweigh the government's interest in seizing DNA from his body without a warrant supported by probable cause based only on his status as a felony arrestee. He further asserts that the United States Supreme Court's holding in King should not apply here because King addressed a different DNA collection law which was more narrowly tailored and provided greater protection for privacy interests than California's DNA law. According to defendant, in the absence of formal charges or a judicial probable cause determination following his felony arrest, the collection, analysis, and use of his DNA under California's statutory scheme was constitutionally unreasonable in violation of the Fourth Amendment.
While defendant's appeal was pending, our high court decided Buza, supra , 4 Cal.5th 658, 230 Cal.Rptr.3d 681, 413 P.3d 1132, addressing California's DNA collection law, section 296. We requested supplemental briefing from the parties on the impact of Buza on this case. In his supplemental brief, defendant asserts that Buza left unanswered the question of whether California's DNA law violates the Fourth Amendment rights of an arrestee who is ultimately not charged in connection with the felony arrest for which DNA was collected and later used to identify him as the perpetrator in an unrelated case. He asserts that Buza was narrowly decided, is distinguishable on its facts from this case, and has limited application here. He argues he is of a different class of arrestee than the defendants in King and Buza because, unlike either of those defendants, he was neither formally charged nor convicted in connection with his felony arrest which led to the collection of his DNA sample. According to defendant, the facts of this case meaningfully alter the constitutional balance the United States Supreme Court struck in King .
Separate from the federal constitutional search and seizure provision, defendant argues the collection and analysis of his DNA under the facts here violated our state's prohibition against unreasonable seizures and searches in California Constitution, article I, section 13. He maintains the Buza court's rationale for declining to exercise independent state judgment by relying primarily on King is not relevant to the facts here because he was never formally charged with a crime in connection with his May 2013 felony arrest. He asserts that without an automatic expungement of DNA for people like him who are not formally charged, the DNA Act violates California's unreasonable seizures and searches provision in article I, section 13.
Defendant further asserts that the collection and use of his DNA violated California's right to privacy in article I, section 1 of the California Constitution.
We reject all of defendant's claims and conclude that the collection and use of his DNA to identify him as the perpetrator of Jessica's murder did not violate his federal constitutional rights. Nor did it violate his state constitutional rights, and even if it did, suppression of the DNA evidence is not an available remedy because of the Truth-in-Evidence provision of Proposition 8.
C. General Search and Seizure and Exclusionary Rule Principles
The Fourth Amendment to the United States Constitution provides: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." The Fourth Amendment is binding on the States pursuant to the Fourteenth Amendment. ( King, supra , 569 U.S. at p. 446, 133 S.Ct. 1958.) "[U]sing a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples is a search" within the scope of the Fourth Amendment. ( Ibid . ) Article I, section 13 of the California Constitution provides, in language similar to the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated; and a warrant may not issue except on probable cause, supported by oath or affirmation, particularly describing the place to be searched and the persons and things to be seized."
The " ‘touchstone for all issues’ " under both the Fourth Amendment and article I, section 13, of the California Constitution is " ‘reasonableness.’ " ( Buza, supra , 4 Cal.5th at p. 670, 230 Cal.Rptr.3d 681, 413 P.3d 1132, citing Riley v. California (2014) 573 U.S. 373, 134 S.Ct. 2473, 189 L.Ed.2d 430 & Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1329, 241 Cal.Rptr. 42, 743 P.2d 1299 ; accord, King, supra , 569 U.S. at p. 447, 133 S.Ct. 1958.) "The Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely proscribes those which are unreasonable." ( Florida v. Jimeno (1991) 500 U.S. 248, 250, 111 S.Ct. 1801, 114 L.Ed.2d 297.)
Thus, "[e]ven [when] a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution.... To say that no warrant is required is merely to acknowledge that ‘rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.’ This application of ‘traditional standards of reasonableness’ requires a court to weigh ‘the promotion of legitimate governmental interests’ against ‘the degree to which [the search] intrudes upon an individual's privacy.’ " ( King, supra , 569 U.S. at p. 448, 133 S.Ct. 1958.)
Regarding the exclusionary rule remedy for a search and seizure violation, California Constitution, article I, section 28, subdivision (f)(2), the Truth-in-Evidence provision enacted by voters in Proposition 8 in 1982, abolished the exclusionary rule as to "evidence seized in violation of the California, but not the federal, Constitution." ( In re Lance W. (1985) 37 Cal.3d 873, 879, 210 Cal.Rptr. 631, 694 P.2d 744 ( Lance W. ) [discussing the same provision previously located in Cal. Const., art. I, § 28, subd. (d), before it was renumbered by Prop. 9, § 4.1, in 2008].) Thus, "[a]bsent a federal constitutional violation, the exclusionary rule does not apply." ( People v. Redd (2010) 48 Cal.4th 691, 720, fn. 11, 108 Cal.Rptr.3d 192, 229 P.3d 101 ( Redd ); accord, Buza , supra , 4 Cal.5th at p. 685, 230 Cal.Rptr.3d 681, 413 P.3d 1132 ["in California criminal proceedings, issues related to the suppression of evidence seized by police are, in effect, governed by federal constitutional standards"]; People v. Robinson (2010) 47 Cal.4th 1104, 1119, 104 Cal.Rptr.3d 727, 224 P.3d 55 ( Robinson ) [a trial court may exclude evidence only if exclusion is mandated by the federal Constitution]; People v. Banks (1993) 6 Cal.4th 926, 934, 25 Cal.Rptr.2d 524, 863 P.2d 769 ( Banks ) [same].) "Our Constitution thus prohibits employing an exclusionary rule that is more expansive than that articulated by the United States Supreme Court." ( Robinson , at p. 1119, 104 Cal.Rptr.3d 727, 224 P.3d 55.)
California Constitution, article I, section 28, subdivision (f)(2), states: "Right to Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote of the membership in each house of the Legislature, relevant evidence shall not be excluded in any criminal proceeding, including pretrial and post conviction motions and hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in juvenile or adult court. Nothing in this section shall affect any existing statutory rule of evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103. Nothing in this section shall affect any existing statutory or constitutional right of the press."
D. King
In King , the United States Supreme Court expressly held: "When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." ( King , supra , 569 U.S. at pp. 465-466, 133 S.Ct. 1958, italics added.) In stating this holding, the high court was fully aware that twenty-eight states, including California, had adopted DNA collection and analysis laws similar to the Maryland law it addressed, but which varied in their particulars. ( Id . at p. 445, 133 S.Ct. 1958, citing the amici curiae brief filed by the State of California et al.) The high court recognized that "although those statutes vary in their particulars, ... their similarity means that [King's case] implicates more than the specific Maryland law." ( Ibid . )
The defendant in King , was arrested for felony assault related to menacing a group of people with a shotgun. A buccal swab of his cheek was taken as part of the booking process. ( King , supra , 569 U.S. at p. 440, 133 S.Ct. 1958.) Thereafter, his DNA profile was found to match DNA collected from a rape committed several years earlier and he was subsequently prosecuted and convicted of that crime. ( Ibid . )
The Maryland law at issue in King authorized the collection of DNA samples from individuals charged with " ‘a crime of violence or an attempt to commit a crime of violence’ " as defined under Maryland law, or burglary or attempted burglary. ( King, supra , 569 U.S. at p. 443, 133 S.Ct. 1958, quoting Md. Pub. Saf. Code Ann., § 2 - 504, subd. (a)(3)(i).) Under the Maryland law, the DNA could not be placed into a database until the arrestee was arraigned, at which point there was a judicial determination of probable cause. ( King , at p. 443, 133 S.Ct. 1958.) If a judge determined that probable cause was lacking, the statute required that the sample be immediately destroyed. ( Id . at pp. 443-444, 133 S.Ct. 1958.) Likewise, if there was no conviction or the conviction was reversed, automatic destruction of the sample was required. ( Id . at p. 444, 133 S.Ct. 1958.) However, in considering the reasonableness of the DNA collection procedure and articulating its holding, the Supreme Court in King did not focus on the Maryland statute's requirement for a later judicial determination of probable cause or whether there was an eventual conviction. Instead, it focused on the fact that, under the Maryland law, the arrest itself must be supported by probable cause. ( King, supra , 569 U.S. at p. 448, 133 S.Ct. 1958.) As to this, the court noted that, under the law, "all arrestees charged with serious crimes must furnish the sample on a buccal swab ... to the inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported by probable cause ." ( Ibid. , italics added.) The King court then held: "the search effected by the buccal swab ... falls within the category of cases this Court has analyzed by reference to the proposition that the ‘touchstone of the Fourth Amendment is reasonableness, not individualized suspicion .’ " ( Ibid. , italics added.)
The high court went on to balance the state interests against the defendant's privacy-related interests to determine whether the collection of the DNA was reasonable. ( King, supra , 569 U.S. at p. 448, 133 S.Ct. 1958.) The court identified five interrelated governmental interests ( id . at pp. 449-455, 133 S.Ct. 1958 ) and held that "[w ]hen probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving these interests" ( id . at p. 450, 133 S.Ct. 1958, italics added). As we emphasize post , these interests exist at the time a person is arrested based on probable cause and processed through the booking procedure. Nothing in King suggests the applicability of those interests is to be reevaluated as the arrestee's case proceeds through the criminal justice process.
Regarding the specific pertinent governmental interests, the court in King began with what it described as the "well established" need for law enforcement officers to process and identify the persons they must take into custody. ( King, supra , 569 U.S. at p. 449, 133 S.Ct. 1958.) "It is beyond dispute that ‘probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.’ " ( Ibid. , italics added.) The court reasoned that, because false identifying information can be provided by arrestees in that process, the identification interest goes beyond name or Social Security number. ( Ibid. ) Indeed, the concept of "[i]dentity has never been considered limited to the name on the arrestee's birth certificate." ( Ibid . )
The high court held that the identification interest extends to determining the person's criminal history. As the high court noted, "[a] suspect's criminal history is a critical part of his identity that officers should know when processing him for detention." ( King , supra , 569 U.S. at p. 450, 133 S.Ct. 1958.) The court then noted that law enforcement already "use[s] routine and accepted means as varied as comparing the suspect's booking photograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee's fingerprints against electronic databases of known criminals and unsolved crimes ." ( Id . at p. 451, 133 S.Ct. 1958, italics added.) The court further explained: "[a] DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee's face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee's fingerprints to those recovered from a crime scene. DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police.... These data, found in official records, are checked as a routine matter to produce a more comprehensive record of the suspect's complete identity. Finding occurrences of the arrestee's CODIS profile in outstanding cases is consistent with this common practice . It uses a different form of identification than a name or fingerprint, but its function is the same ." ( Id . at pp. 451-452, 133 S.Ct. 1958, italics added.) The high court further reasoned that, although DNA is an "analogue" to "the familiar practice of fingerprinting arrestees," DNA identification is qualitatively better because DNA analysis provides "unparalleled accuracy." ( Id . at pp. 451, 458, 133 S.Ct. 1958.)
As to this, the court in King noted that people detained for minor offenses sometimes "turn out to be the most devious and dangerous criminals." (King, supra , 569 U.S. at p. 450, 133 S.Ct. 1958.) As an example, the high court noted that Timothy McVeigh was arrested after he was stopped for driving without a license plate. (Ibid . )
The court in King rejected the defendant's argument that the delay in obtaining DNA results makes the analogy to fingerprint identification inapt. ( King, supra , 569 U.S. at p. 459, 133 S.Ct. 1958.) It noted that rapid analysis of fingerprints is of relatively recent vintage and it was not the advent of fingerprint identification technology "that rendered fingerprint analysis constitutional in a single moment. The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search." ( Ibid . ) DNA, the court declared, "serves an essential purpose despite the existence of delays." ( Id . at p. 460, 133 S.Ct. 1958.) Looking to the future, the King court recognized that rapid technical advances are reducing the delay in processing DNA. ( Ibid . ) The court stated: "[a]n assessment and understanding of the reasonableness of this minimally invasive search of a person detained for a serious crime should take account of these technical advances. Just as fingerprinting was constitutional for generations prior to the introduction of [automated fingerprint identification], DNA identification of arrestees is a permissible tool of law enforcement today. New technology will only further improve its speed and therefore its effectiveness." ( Ibid . )
Summarizing the identification interest, the court in King wrote: "there can be little reason to question ‘the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.’ [Citation]. To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine ‘administrative steps incident to arrest—i.e., ... book[ing], photograph[ing], and fingerprint[ing].’ [Citation]. DNA identification of arrestees , of the type approved by the Maryland statute here at issue, is ‘no more than an extension of methods of identification long used in dealing with persons under arrest .’ [Citation]. In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest ." ( King, supra , 569 U.S. at p. 461, 133 S.Ct. 1958, italics added.)
As to the second interest, one involving risk assessment, the King court noted that law enforcement officers must ensure that the custody of an arrestee does not create a risk to staff, the detainee population, or the arrestee; thus "officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed." ( King, supra , 569 U.S. at p. 452, 133 S.Ct. 1958.) For example, knowledge of identity may provide information indicating the arrestee "is wanted for another offense , or has a record of violence or mental disorder." ( Ibid., italics added.) In noting that DNA evidence may establish whether an arrestee is wanted for another offense, the court did not distinguish between other offenses for which the arrestee had been previously identified as the perpetrator and those where a DNA match identified him as the perpetrator of a previously unsolved crime. The reasoning appears to apply to both situations.
Third, the court in King noted that there is a governmental interest in ensuring that persons accused of crimes are available for trials. ( King, supra , 569 U.S. at p. 453, 133 S.Ct. 1958.) As the court observed, "[a] person who is arrested for one offense but knows that he has yet to answer for some past crime may be more inclined to flee the instant charges, lest continued contact with the criminal justice system expose one or more other serious offenses." ( Ibid . )
Fourth, there is a public danger assessment interest. The high court reasoned that "an arrestee's past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court's determination whether the individual should be released on bail." ( King, supra , 569 U.S. at p. 453, 133 S.Ct. 1958.) This interest, the court noted, " ‘is both legitimate and compelling.’ " ( Ibid . ) "Knowing that the defendant is wanted for a previous violent crime based on DNA identification is especially probative of the court's consideration of ‘the danger of the defendant to the alleged victim, another person, or the community.’ " ( Ibid . ) Further, if the arrestee is released pending trial, later DNA identification revealing a previously unknown violent past "can and should" lead to revocation of the arrestee's release. ( Id . at p. 455, 133 S.Ct. 1958.) Again, like the last two interests, this interest applies even in the situation where the arrestee had not been previously identified as the perpetrator of the prior crime.
Fifth, there is an interest related to the exoneration of innocent persons. "[I]n the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. ‘[P]rompt [DNA] testing ... would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of ... innocent people.’ " ( King, supra , 569 U.S. at p. 455, 133 S.Ct. 1958.)
After discussing the governmental interests, the Supreme Court next looked to the arrestee's privacy interest. "[T]he fact that [an] intrusion is negligible is of central relevance to determining whether the search is reasonable." ( King, supra , 569 U.S. at p. 446, 133 S.Ct. 1958.) Regarding the physical intrusion associated with the collection of a buccal sample, the court characterized the intrusion as "a minimal one." ( Id . at p. 461, 133 S.Ct. 1958.) The search involves "[a] gentle rub along the inside of the cheek [that] does not break the skin, and it ‘involves virtually no risk, trauma, or pain.’ " ( Id . at pp. 463-464, 133 S.Ct. 1958.) The swab poses no physical danger and "does not increase the indignity already attendant to normal incidents of arrest." ( Id . at p. 464, 133 S.Ct. 1958.) Comparatively, any additional intrusion in collecting a DNA sample by buccal swab beyond the intrusion involved with fingerprinting is "not significant." ( Id . at p. 459, 133 S.Ct. 1958.)
Noting that a finding of reasonableness requires that the government interest outweigh the degree to which the search invades an individual's legitimate expectations of privacy, the court noted, "the necessary predicate of a valid arrest for a serious offense is fundamental." ( King, supra , 569 U.S. at p. 461, 133 S.Ct. 1958.) Persons arrested on probable cause have diminished expectations of privacy. ( Id . at pp. 461, 463, 133 S.Ct. 1958.) And "[i]n light of the context of a valid arrest supported by probable cause respondent's expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks." ( Id . at p. 465, 133 S.Ct. 1958.) The court did not mention later events such as the filing of formal charges, a judicial probable cause determination, or even a conviction as being necessary events to weigh into the balance. The King court went on to highlight scientific and statutory safeguards protecting an arrestee's privacy interests. As for scientific safeguards, related to the nature of the DNA processing at issue, the court concluded that the processing employed did not "intrude on [the defendant's] privacy in a way that would make his DNA identification unconstitutional." ( King, supra , 569 U.S. at p. 464, 133 S.Ct. 1958.) This is because the DNA loci used for identification "come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee." ( Ibid . ) Commonly referred to as "junk DNA," the DNA region used for identification is useful for that purpose, but "does not show more far-reaching and complex characteristics like genetic traits." ( Id . at pp. 442-443, 133 S.Ct. 1958.) Moreover, even if the noncoding loci could provide sensitive information, they are not tested toward that end; rather, the analysis generates a unique identifying number against which other samples can be matched for identification comparison and nothing more. ( Id . at p. 464, 133 S.Ct. 1958.) As for the statutory safeguards, the court noted that Maryland law provided statutory protections that guard against further invasion of privacy by prohibiting and penalizing the improper use of DNA samples. ( Id . at p. 465, 133 S.Ct. 1958.) In light of the scientific and statutory safeguards, the high court concluded that "once the [arrestee's] DNA was lawfully collected, the ... analysis of [his] DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification impermissible under the Fourth Amendment." ( Ibid . )
Summarizing the constitutional balance, the high court in King stated: "In light of the context of a valid arrest supported by probable cause respondent's expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody." ( King, supra , 569 U.S. at p. 465, 133 S.Ct. 1958, italics added.) The high court then held: "Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment ." ( Id . at pp. 465-466, 133 S.Ct. 1958, italics added.)
E. California's DNA Collection Statutory Scheme
"In 2004, California voters passed Proposition 69 (Prop. 69, as approved by voters, Gen. Elec. (Nov. 2, 2004), known as the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (DNA Act)) to expand [then] existing requirements for the collection of DNA identification information for law enforcement purposes. The DNA Act requires law enforcement officials to collect DNA samples, as well as fingerprints, from all persons who are arrested for, as well as those who have been convicted of, felony offenses." ( Buza, supra , 4 Cal.5th at p. 664, 230 Cal.Rptr.3d 681, 413 P.3d 1132, citing § 296.1, subd. (a)(1)(A).) Prior to 2004, the collection of DNA samples was limited to persons convicted of specific felony offenses, "including certain sex offenses, homicide offenses, kidnapping, and felony assault or battery." ( Buza , at p. 665, 230 Cal.Rptr.3d 681, 413 P.3d 1132, citing Stats. 1998, ch. 696, § 2, pp. 4571-4579 & former § 296, subd. (a).) Thus, the electorate's passage of the DNA Act in 2004 "substantially expanded the scope of DNA sampling to include individuals who are arrested for any felony offense." ( Buza , at p. 665, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
"Proposition 69 declared: ‘[t]he state has a compelling interest in the accurate identification of criminal offenders ...’; that ‘DNA testing at the earliest stages of criminal proceedings for felony offenses will help thwart criminal perpetrators from concealing their identities and thus prevent time-consuming and expensive investigations of innocent persons’; and ‘it is reasonable to expect qualifying offenders to provide forensic DNA samples for the limited identification purposes set forth in this chapter.’ " ( Buza, supra , 4 Cal.5th at p. 666, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Under the DNA Act, all adult felony arrestees "shall provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required pursuant to this chapter for law enforcement identification analysis." ( § 296, subd. (a).) The DNA samples are to be collected by law enforcement "immediately following arrest, or during the booking or intake or prison reception center process or as soon as administratively practicable after arrest, but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody." ( § 296.1, subd. (a)(1)(A).)
"Collected DNA samples are sent to the California Department of Justice's DNA Laboratory for forensic analysis. [Citations.] The laboratory uses the samples to create a unique DNA identification profile, using genetic loci that are known as ‘junk’ or ‘noncoding’ DNA, because the loci have no known association with any genetic trait, disease, or predisposition. [Citation.] This profile is stored in California's DNA databank. California's DNA databank is part of the Combined DNA Index System (CODIS), a nationwide database that enables law enforcement to search DNA profiles collected from federal, state, and local collection programs. [Citations.] DNA profiles stored by the DNA Laboratory may be accessed by law enforcement agencies. [Citation.] The DNA Laboratory must ‘store, compile, correlate, compare, maintain, and use’ DNA profiles for forensic casework, for comparison with samples found at crime scenes, and for identification of missing persons." ( Buza, supra , 4 Cal.5th at pp. 666-667, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Section 299 provides a mechanism for expungement of DNA samples. "A person whose DNA profile has been included in the databank pursuant to this chapter shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the databank program pursuant to the procedures set forth in subdivision (b) if the person has no past or present offense or pending charge which qualifies that person for inclusion within the state's DNA and Forensic Identification Database and Databank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile." ( § 299, subd. (a).)
However, expungement is not automatic; the person who seeks expungement must initiate the process by making a request. ( § 299, subd. (c)(1).) An arrestee may request expungement if "no accusatory pleading has been filed within the applicable period allowed by law," if all qualifying charges against the arrestee are dismissed, or if the arrestee is found not guilty or is found factually innocent of all qualifying charges. ( § 299, subd. (b) ; Buza, supra , 4 Cal.5th at p. 667, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Section 299, subdivision (c)(1) provides: "The person requesting the databank entry to be expunged must send a copy of his or her request to the trial court of the county where the arrest occurred, or that entered the conviction or rendered disposition in the case, to the DNA Laboratory of the Department of Justice, and to the prosecuting attorney of the county in which he or she was arrested or, convicted, or adjudicated, with proof of service on all parties. The court has the discretion to grant or deny the request for expungement. The denial of a request for expungement is a nonappealable order and shall not be reviewed by petition for writ."
F. Decisional Law Concerning California's DNA Act
1. Buza
In Buza , our high court considered the application of the DNA Act to persons who had been validly arrested for a felony offense based on probable cause, but who had not yet been convicted. ( Buza, supra , 4 Cal.5th at p. 665, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) However, Buza did not involve evidence suppression. Rather, the issue the court resolved was the constitutional validity of a misdemeanor conviction for refusing to give a buccal sample at booking under section 298.1, subdivision (a). A four-Justice majority in Buza concluded: "the requirement is valid under both the federal and state Constitutions." ( Buza , at p. 665, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) However, the Buza majority also explicitly stated, "we express no view on the constitutionality of the DNA Act as it applies to other classes of arrestees." ( Ibid . ) In Buza , the police arrested defendant for arson, having probable cause to do so based on their observations. ( Buza, supra , 4 Cal.5th at p. 667, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) At the county jail, during booking, the defendant refused to comply with the DNA collection procedure. ( Id . at p. 668, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) As a result, in addition to the felony arson, the defendant was charged with misdemeanor refusal to provide a DNA specimen. ( § 298.1, subd. (a).) He was later convicted of all charges. ( Buza , at p. 668, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Examining King , our high court twice acknowledged the high court's holding as the following: "[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." ( Buza, supra , 4 Cal.5th at pp. 664, 673, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The Buza court also noted the high court's holding applied to "both the initial collection of a DNA sample and its subsequent processing pursuant to CODIS procedures." ( Id . at p. 671, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Moreover, in its analysis, the Buza court acknowledged and relied upon the five governmental interests identified and discussed in King . ( Buza, supra , 4 Cal.5th at pp. 671-672, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) Regarding the significance of the identification interest, the Buza court emphasized what the court in King recognized—that while "suspects can change their names, assume a false identity using forged documents, change their hair color, have tattoos removed, have plastic surgery, and change their eye color with contact lenses," they cannot change their DNA. ( Id . at p. 687, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) Similar to King , our high court further observed: " ‘ "for purposes of identifying ‘a particular person’ as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible." ’ " ( Id . at pp. 687-688, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Buza asserted that his case was distinguishable from King on three grounds: "(1) the DNA Act applies to a broader category of arrestees than the Maryland law; (2) the DNA Act, unlike the Maryland law, authorizes both collection and testing of DNA samples before an accusatory pleading is filed in court and before a judicial determination has been made that the charges are valid; and (3) the DNA Act, unlike the Maryland law, does not provide for automatic destruction of the DNA sample if the arrestee is cleared of felony charges." ( Buza, supra , 4 Cal.5th at p. 674, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
In rejecting the defendant's first point—regarding the fact that the Maryland law applies to a narrower class of arrestees—the Buza court noted that the DNA Act authorizes collection of DNA samples from all felony arrestees, whereas the Maryland law only authorized collection from those individuals accused of committing specific felony crimes. ( Buza, supra , 4 Cal.5th at p. 674, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The defendant emphasized the United States Supreme Court's statement that " ‘the necessary predicate of a valid arrest for a serious offense is fundamental,’ " as well as the high court's references to arrests for " ‘violent’ " or " ‘dangerous’ " crimes. ( Ibid . ) However, our high court reasoned that the defendant "read too much into the language on which he relies," and recognized that "[t]he high court identified the question before it more generally as ‘whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges.’ [Citation.] And as a matter of ordinary usage, a felony is considered a ‘serious’ offense." ( Ibid. ) The court concluded that the high court in King did not "limit its holding to those felonies that happen to be classified as ‘violent’ or ‘dangerous’ as a matter of state law, nor did it purport to create a new classification of violent offenses as a matter of federal constitutional law." ( Buza , at pp. 674-675, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The court further noted that the defendant was, in fact, arrested for felony arson, a serious felony under California law. ( Id . at p. 675, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Likewise, we note that defendant here was arrested for spousal rape, a crime that has been legislatively classified as a violent and serious felony under California law. (§ 667.5, subd. (c)(3) ; 1192.12, subd. (c)(3).) He was also arrested for domestic violence, a violation of section 273.5. We also note that Maryland's law defined crime of violence as including rape and sexual assaults. (King , supra , 569 U.S. at p. 443, 133 S.Ct. 1958.)
Regarding the defendant's second point—that the DNA Act authorizes collection and testing of DNA samples before an accusatory pleading has been filed and before there is a judicial determination of probable cause—the Buza court reasoned that the defendant's argument consisted of two elements, one as to the timing of the collection of the DNA sample, and the other as to the timing of the analysis of the sample. ( Buza, supra , 4 Cal.5th at p. 676, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) Our high court stated that there was no reason to believe that any difference between the California and Maryland laws altered the Fourth Amendment balance, concluding that obtaining and analyzing the sample was part of a legitimate booking procedure. Our high court stated: "the reasoning of King itself does not lend substantial support to the argument that" a guarantee that no DNA analysis will occur until probable cause is confirmed by a neutral magistrate or charges are filed is required. ( Id . at p. 677, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) "Again, King approved ‘DNA identification’—which necessarily involves both taking and analyzing the sample —as a ‘legitimate police booking procedure’ that enables law enforcement to know whom they have in custody. [Citation.] That interest is one that attaches as soon as the suspect is ‘formally processed into police custody .’ [Citation.] The [high] court attached no significance to the timing provision of the Maryland statute on which defendant relies." ( Ibid. , italics added.)
The court in Buza also rejected the defendant's contention that the collection of a felony arrestee's DNA sample should wait until a prosecutor has decided whether to file charges or a judge makes a probable cause determination. ( Buza, supra , 4 Cal.5th at pp. 677-678, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The defendant's argument was premised, in part, on the fact that a probable cause determination ordinarily occurs within 48 hours after booking, while generating a DNA profile from an arrestee's DNA sample takes much longer, and therefore it would pose little burden to postpone processing the DNA sample until after a probable cause determination is made and charges are filed. ( Ibid . ) However, the Buza court recognized, as did the Supreme Court in King ( King, supra , 569 U.S. at pp. 454, 459-460, 133 S.Ct. 1958 ), that any given DNA sample may be processed significantly more quickly than the average, and average processing times are likely to decrease as the technology evolves and becomes more widespread. ( Buza , at p. 678, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The Buza court further noted that "the high court had been told that the technological capacity already exists to analyze DNA samples in a matter of minutes, rather than days or weeks, and that technology is likely to become more widespread in the near future." ( Ibid . ) Accordingly, the Buza court rejected the defendant's argument that there was no meaningful risk of interference with the identification interest by a rule delaying the collection or processing of samples until after a judicial probable cause finding or arraignment. ( Ibid . )
In Buza , the defendant asserted in California it has typically taken an average of 30 days to generate an identification profile from an arrestee's DNA sample. (Buza, supra , 4 Cal.5th at p. 677, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) Citing California Department of Justice statistics, the People assert the average turn-around time was 18 days in 2015.
Addressing Justice Liu's dissent in Buza , the majority stated: "Justice Liu suggests that for purposes of deciding reasonableness of an arrestee's search, an arrest should not be considered valid until there has been a judicial determination of its validity. [Citation.] There is, however, a meaningful difference between the requirement of a valid arrest and a requirement that a neutral magistrate make such a determination. For example, in the related context of searches incident to arrest—where a valid arrest is also essential—there is no such preapproval requirement. [Citations.] The arrestee may have an exclusionary remedy if the arrest is later determined to have been illegal [citation], but the search's reasonableness does not depend on prior judicial authorization for the arrest. Here, there is no dispute that the arrest was valid.... [W]e decline to decide the constitutional necessity of such a rule in a case in which probable cause has never been contested ." ( Buza, supra , 4 Cal.5th at pp. 679-680, 230 Cal.Rptr.3d 681, 413 P.3d 1132, italics added.)
Regarding the defendant's third point concerning the expungement procedure in the DNA Act and how it differs from that in the Maryland law considered in King , the Buza court reasoned that, because the defendant never sought expungement and never claimed to be entitled to expungement, "we have no occasion here to resolve any questions that might arise about the implementation of the expungement provisions in other cases. It suffices to note that many of defendant's assertions about the operation of the expungement process are, at this point, necessarily speculative." ( Buza, supra , 4 Cal.5th at p. 683, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Concerning the search and seizure provision under article I, section 13 of our state's Constitution, the Buza court evaluated that state constitutional claim "by employing the same mode of analysis that the high court applied in King " to analyze the reasonableness of the search under the Fourth Amendment. ( Buza, supra , 4 Cal.5th at p. 684, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) "[W]e determine whether the intrusion on the defendant's expectation of privacy is unreasonable by applying ‘a general balancing test "weighing the gravity of the governmental interest or public concern served and the degree to which the [challenged government conduct] advances that concern against the intrusiveness of the interference with individual liberty." ’ " Acknowledging the independent force of our state's Constitution on search and seizure issues where Proposition 8's Truth-in-Evidence provision is not controlling ( id . at pp. 685-687, 230 Cal.Rptr.3d 681, 413 P.3d 1132 ), our high court reasoned that the question it had to resolve was "whether adequate reasons are present here to conclude, despite King , that California voters exceeded constitutional bounds in mandating the collection of DNA sample from an individual arrested and booked on probable cause to believe he had committed a serious offense." ( Id. at p. 687, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The court concluded there were not. ( Id. at p. 691, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Our high court noted that, before King, it had already recognized the identification interest in its earlier DNA decision in Robinson . ( Buza, supra , 4 Cal.5th at pp. 687-688, 230 Cal.Rptr.3d 681, 413 P.3d 1132, citing Robinson , supra , 47 Cal.4th at p. 1134, 104 Cal.Rptr.3d 727, 224 P.3d 55.) In Robinson , the court held that DNA mistakenly collected from a person convicted of a non-qualifying offense later used to link him to a sexual assault committed before the arrest in which the DNA was collected was not a violation of the Fourth Amendment and the DNA evidence need not be suppressed. ( Robinson , at pp. 1119-1123, 104 Cal.Rptr.3d 727, 224 P.3d 55.) Quoting Robinson , the Buza court stated: " ‘ "for purposes of identifying ‘a particular person’ as the defendant, a DNA profile is arguably the most discrete, exclusive means of personal identification possible." ’ " ( Buza , at pp. 687-688, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) A genetic code is far more precise than a physical description or a name. ( Id . at p. 688, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The court further noted that "identification of arrestees is not an end in itself; rather, the primary purpose of identification is to facilitate the gathering of information about the arrestee contained in police records, which in turn informs decisions about how to proceed with the arrestee." ( Ibid. , citing Loder v. Municipal Court (1976) 17 Cal.3d 859, 866-867, 132 Cal.Rptr. 464, 553 P.2d 624 ( Loder ) [upholding retention and use of arrest records, including fingerprints and other identifying information].) In rejecting the state constitutional claim, our high court also noted that King flatly rejected the argument that the delay in obtaining a DNA identification negates the utility of DNA as a means of identification when compared to fingerprinting, which provides more immediate results. ( Buza, supra , 4 Cal.5th at p. 688, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The Buza court recognized that "the immediate availability of fingerprints for identification purposes is ... a relatively recent development." ( Ibid . ) At one time, fingerprint identification took weeks or months, but "[s]uch delays have not been thought to undermine the basic identification purposes of the information." ( Ibid . )
On the privacy side of the state constitutional balance, the Buza court rejected the defendant's argument that the high court in King did not adequately address what Buza referred to as "the more significant privacy implications posed by the state's subsequent analysis and retention of the sensitive information contained in DNA." ( Buza, supra , 4 Cal.5th at p. 689, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) This criticism, the Buza court declared, "is misplaced." ( Ibid . ) The court then went on to highlight the minimal nature of the physical intrusion associated with a buccal swab and the scientific and legislative safeguards that minimize any privacy intrusion discussed in King , including California's specific statutory safeguards against the wrongful use or disclosure of an arrestee's DNA information. ( Id . at pp. 689-690, 692, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
The court in Buza summarized: "Our holding today is limited. The sole question before us is whether it was reasonable, under either the Fourth Amendment or article I, section 13 of the California Constitution, to require the defendant in this case to swab his cheek as part of a routine jail booking procedure following a valid arrest for felony arson. Because we conclude the requirement was reasonable as applied to defendant, we hold he is subject to the statutory penalties prescribed in ... section 298.1." ( Buza, supra , 4 Cal.5th at p. 691, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) 2. Haskell I
In his dissent, Justice Liu concluded that the defendant's conviction for refusing to comply with the DNA Act was invalid under the California Constitution right against unreasonable searches and seizures. (Buza, supra , 4 Cal.5th at p. 704, 230 Cal.Rptr.3d 681, 413 P.3d 1132 (dis. opn. of Liu, J.).) He did not consider validity under the Fourth Amendment. (Ibid . ) Justice Cuéllar, also dissenting, likewise concluded that the DNA Act is unconstitutional under the California Constitution as applied to felony arrestees, "individuals ... who are not yet known to be lawfully arrested" based on a determination by a neutral magistrate. (Id . at p. 726, 230 Cal.Rptr.3d 681, 413 P.3d 1132 (dis. opn. of Cuéllar, J.).) He concluded the DNA Act violates both the state constitutional provision prohibiting unreasonable searches and seizures, as well as our state's constitutional right to privacy.
In Haskell I , a class action under 42 U.S.C. § 1983, the plaintiffs challenged the constitutionality of the DNA Act in an effort to enjoin the collection of DNA from California arrestees solely based on an arrest for a felony offense. ( Haskell I , supra , 745 F.3d at p. 1270.) After a majority of the assigned panel affirmed the denial of the injunction, an en banc panel of Ninth Circuit also denied the injunction, concluding, several months before our high court's decision in Buza , that the plaintiffs failed to establish a likelihood of success on the merits because the DNA Act does not violate the Fourth Amendment. The court framed the issue and expressed its holding as follows: "Plaintiffs’ facial and as-applied challenges turn on essentially the same question: Is California's DNA collection scheme constitutional as applied to anyone ‘arrested for , or charged with, a felony offense by California state or local officials?’ After Maryland v. King [citation], the answer is clearly yes." ( Id . at p. 1271, italics added.) Upon affirming the denial of the preliminary injunction, the court remanded the matter back to the district court after the plaintiffs requested an injunction applicable to a smaller class of people arrested for felonies they asserted were not covered by King . ( Ibid . )
In a concurring opinion, Judge Milan D. Smith, Jr., elaborated, stating: "[t]he Supreme Court's decision in King is fatal to Plaintiffs’ claims" and after King , the plaintiff's constitutional challenges to the DNA Act "are clearly without merit." ( Haskell I, supra, 745 F.3d. at p. 1272 (conc. opn. of Smith, J.).) Calling the asserted distinctions between the Maryland and California statutes "illusory," Judge Smith reasoned that "California's DNA collection law is materially indistinguishable from the Maryland law upheld in [ King ]." ( Id . at pp. 1271, 1272.) Regarding plaintiffs’ claims that the filing of formal charges and a judicial determination of probable cause should be conditions precedent to permissible DNA collection and analysis, Judge Smith wrote: "In light of the Supreme Court's focus on the collection of DNA samples in connection with arrest and booking, Plaintiffs’ argument that the filing of charges and a judicial probable-cause determination are conditions precedent to permissible DNA collection is unsupportable. Refusing to draw such a line makes good sense. The government's interest in identifying arrestees attaches ‘when an individual is brought into custody,’ [citation], irrespective of whether the suspect is ultimately charged." ( Id . at p. 1274.)
Judge Smith was the author of the original majority opinion issued by the three-judge panel. (See Haskell v. Harris (9th Cir. 2012) 669 F.3d 1049.)
3. Haskell II
On remand to the district court, the Haskell plaintiffs, who represented members of a class who were arrested but against whom no formal charges were filed, argued they were entitled to an injunction. ( Haskell v. Brown (2018) 317 F.Supp.3d 1095, 1097, 1099 ( Haskell II ).) They argued that, while obtaining the DNA sample after the arrest may be constitutional, the state could not justify analyzing a DNA sample taken after arrest when the arrestee is no longer accused of a crime. ( Id . at p. 1100.) More specifically, they argued, " ‘[e]ven if the Fourth Amendment allows the government to seize a DNA sample from everybody arrested on suspicion of a felony, once the government determines that it will not prosecute a person, or charges are dismissed, the government's interests no longer justify analyzing that sample to obtain a DNA profile.’ " ( Id . at p. 1099.)
Based on the theory that the governmental interests discussed in King no longer prevail if the prosecutor decides not to file formal charges, the plaintiffs suggested a rule allowing law enforcement to seize a sample from all felony arrestees, but delay the analysis until a prosecutor files formal charges. ( Haskell II, supra , 317 F.Supp.3d at p. 1099.) The district court rejected the argument, noting that " King does not separate out the two steps in DNA identification," collection and analysis. ( Id . at p. 1100.) Rather, " King held that the government's interests attach when an individual is taken into custody." ( Ibid . ) The district court noted that the court in Buza recognized that King said " ‘DNA identification’ ... necessarily involves both taking and analyzing the sample." ( Ibid. , quoting Buza, supra , 4 Cal.5th at p. 677, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) Thus, the district court reasoned both the King and Buza courts treated taking and analyzing the DNA sample "as part of a single ‘identification’ process, rather than two independent searches." ( Haskell II , at pp. 1100-1101.) " King did not view DNA analysis as a separate search for evidence." ( Id . at p. 1102.) Moreover, as the district court and the Buza court noted, the high court in King concluded that analysis of the DNA sample, once collected, does not result in a privacy intrusion that violates the federal Constitution. ( Id . at p. 1101, citing King , supra , 569 U.S. at p. 464, 133 S.Ct. 1958 & Buza , at p. 673, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
The district court rejected the plaintiffs’ argument that the time lapse between taking the sample and analysis means the two should not be paired together. Looking to the future, the court reasoned that it is indisputable that "the time between the two steps is shrinking" and "it is not difficult to imagine that what once took months will soon take minutes." ( Haskell II , supra , 317 F.Supp.3d at p. 1102.) In any event, as the district court noted, the King and Buza courts had already rejected the argument. ( Ibid . ) Based on the forgoing, the district court rejected plaintiffs’ contention "that even if it is permissible to take an arrestee's DNA at booking, it is unconstitutional to analyze that sample until or unless the arrestee is charged with a crime." ( Id. at p. 1103.)
The district court reasoned that three of the government interests in King apply in the context of analyzing DNA from an arrestee even after formal charges have not been filed -- the identification interest, dangerousness assessment interest and exoneration of innocent persons interest. ( Haskell II , supra , 317 F.Supp.3d at pp. 1104-1106.) Regarding the identification interest, the district court reasoned, "[t]he government interest in identifying arrestees—both who they are and what they have done—is present even if the arrestee is not ultimately charged with the felony for which he has been arrested. ... Such an individual might still be linked to a previous crime." ( Id . at p. 1104.) The court noted that fingerprints and photographs are obtained for the same identity purpose, retained by the government when arrestees are not charged, and are later used for the same purpose. ( Ibid . ) "DNA is no different." ( Ibid . )
As for the public danger assessment interest, while bail determinations do not apply to people who are not formally charged, taking the arrestee's DNA at booking gives law enforcement an early view into the arrestee's dangerousness. For those released on bail, that information could be used to revisit that person's pretrial release status. ( Haskell II, supra , 317 F.Supp.3d at p. 1105.) Again, this interest attaches at booking.
Regarding the exoneration of innocent persons interest, the district court stated: "there is no question either that DNA evidence leads to exonerations, or that exonerations are a worthy interest." ( Haskell II, supra , 317 F.Supp.3d at p. 1105.) The court reasoned that "[w]hether the government interest in exoneration can ‘alone’ justify the DNA searches ... is beside the point, given the other government interests present. [¶] The Supreme Court in King gave ‘great weight’ to the ‘significant government interest at stake’ in arrestee DNA analysis. [Citation.] The government's interests in identifying arrestees, in assessing their dangerousness, and in exonerating the innocent, present in King , are also present in the case of individuals arrested for felonies but not charged." ( Id . at p. 1106.)
Weighing the government's interest against the arrestee's "modest interest" discussed in King , the district court concluded DNA Act searches are reasonable, even when the arrestee is not formally charged by the prosecutor. ( Haskell II, supra , 317 F.Supp.3d at p. 1106.)
G. Analysis
1. Fourth Amendment
We begin with the holding in King : "When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." ( King , supra , 569 U.S. at pp. 465-466, 133 S.Ct. 1958.) Based on the reasoning in King underlying this holding, and the reasoning in Buza , we conclude this holding applies here, even though formal charges were not ultimately filed against defendant. Our conclusion is buttressed by the Ninth Circuit and district court opinions in Haskell I and Haskell II , which we find persuasive.
In his original briefing, defendant made the same arguments addressed in Buza and the two Haskell cases in an effort to disconnect himself from the holding in King . He argued that King did not apply because, unlike the Maryland law addressed in King , the DNA Act (1) allows the collection of DNA from any adult charged with any felony offense, (2) does not require that formal charges be filed and a judicial determination of probable cause be made before an arrestee's DNA can be uploaded into the national database, and (3) does not require automatic expungement of an arrestee's DNA profile when no formal charges are filed or if there is no conviction. He makes the same arguments post- Buza in his supplemental briefing. He argues he is not in the same class of arrestee as the defendants in King and Buza . He notes that the Buza court did not answer the specific issue presented here—whether the Fourth Amendment and his privacy interests were violated by the seizure and testing of his DNA when it was obtained in connection with an arrest for which no formal charges were filed. ( Buza , supra , 4 Cal.5th at p. 665, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) He points out that the court in Buza stated: " ‘[W]e express no view on the constitutionality of the DNA Act as it applies to other classes of arrestees.’ " According to defendant, his circumstances meaningfully alter the constitutional balance struck in King and Buza . We disagree.
Governmental interests identified in King and discussed in Buza apply here. The high court was clear that each of the interests "attaches as soon as the suspect is ‘formally processed into police custody" after having been arrested based on probable cause. (Buza, supra , 4 Cal.5th at p. 449, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) Taking the swab at that point constitutes "a reasonable search that can be considered part of a routine booking procedure." ( King, supra , 569 U.S. at p. 465, 133 S.Ct. 1958.) Thus, the counterbalancing government interests attach the moment a person is arrested based on probable cause and undergoes the booking process. As for the analysis of the buccal swab, even though our high court in Buza indicated its holding was narrow, it nevertheless stated: "the reasoning of King itself does not lend substantial support to the argument that" a guarantee is required that no DNA analysis will occur until probable cause is confirmed by a neutral magistrate or charges are filed. ( Buza, at p. 677, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) "Again, King approved ‘DNA identification’—which necessarily involves both taking and analyzing the sample —as a ‘legitimate police booking procedure’ that enables law enforcement to know whom they have in custody. [Citation.] That interest is one that attaches as soon as the suspect is ‘formally processed into police custody.’ " ( Ibid. , italics added; see also Haskell II , supra , 317 F.Supp.3d at p. 1100.)
The electorate's declaration in amending the DNA Act in Proposition 69 recognizes the well-established identification interest: "The state has a compelling interest in the accurate identification of criminal offenders." (Prop. 69, supra , § II, subds. (e), (f).) The voters further noted: "Like the collection of fingerprints, the collection of DNA samples pursuant to this chapter is an administrative requirement to assist in the accurate identification of criminal offenders." ( § 295, subd. (d).) Long before King , our high court recognized the import of this governmental interest in the context of DNA collection and analysis and the utility of DNA for fulfilling that interest. ( Buza , supra , 4 Cal.5th at pp. 687-688, 230 Cal.Rptr.3d 681, 413 P.3d 1132, citing Robinson , supra , 47 Cal.4th at pp. 1121, 1134, 104 Cal.Rptr.3d 727, 224 P.3d 55.) DNA collection and analysis is a booking process just like the common practices of taking mug shots and fingerprinting, and " ‘[i]ndividuals in lawful custody cannot claim privacy in their identification.’ " ( Buza , at p. 687, 230 Cal.Rptr.3d 681, 413 P.3d 1132, quoting Robinson , at p. 1121, 104 Cal.Rptr.3d 727, 224 P.3d 55.)
Moreover, as the high court in King noted regarding fingerprinting, "[f]inding occurrences of the arrestee's CODIS profile in outstanding cases is consistent with this common practice. It uses a different form of identification than a name or fingerprint, but its function is the same." ( King, supra, 569 U.S. at p. 452, 133 S.Ct. 1958.) As DNA matching technology improves, like fingerprint technology did, we can look forward to the time when the efficacy of DNA as an identification metric will yield matches as quickly as fingerprints. ( King, at p. 459, 133 S.Ct. 1958 ; Haskell II , supra , 317 F.Supp.3d at p. 1103.) Accordingly, "[i]n the balance of reasonableness required by the Fourth Amendment, ... [we] must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest." ( King, at p. 461, 133 S.Ct. 1958.) In our view, placing DNA collection and analysis in the same category as mug shots and fingerprints—neither of which are destroyed when formal charges are not filed and both of which remain available for use in other investigations—indicates the high court in King did not and would not consider formal charges, a judicial probable cause determination, or a conviction to be constitutionally significant events relative to the reasonableness of collecting and analyzing DNA as part of a booking process. The government interest in identifying arrestees attaches when an individual is brought into custody, "irrespective of whether the suspect is ultimately charged." ( Haskell I , supra , 745 F.3d at p. 1274 (conc. opn. of Smith, J.).)
Regarding the risk assessment interest recognized in King and Buza , again that interest attaches the moment a person is booked based on an arrest supported by probable cause. And in determining risk, custodial authorities need to know what other offenses the arrestee has committed and whether there are prior convictions, pending cases, or unsolved crimes. They need to know whether the arrestee is " ‘wanted for another offense.’ " ( King, supra , 569 U.S. at p. 452, 133 S.Ct. 1958.) The King court did not distinguish between offenses for which the arrestee had been previously identified as the perpetrator and those where a DNA match identifies him as the perpetrator of a previously unsolved crime. As we see it, the King court's reasoning applies to both situations, and for purposes of this governmental interest, we see no difference. Thus, in the future, when DNA analysis becomes as rapid as fingerprint matches and an arrestee's DNA is linked to the commission of a heinous unsolved crime, custodial personnel will know the arrestee has a heightened incentive to escape because of his involvement in that unsolved crime.
As for the dangerousness assessment interest, knowledge about an arrestee's past conduct is critical at all stages. Knowing, based on DNA identification, that a defendant is wanted for a previous violent crime is probative of the court's consideration of " ‘the danger of the defendant to the alleged victim, another person, or the community.’ " ( King, supra , 569 U.S. at p. 453, 133 S.Ct. 1958.) And if a DNA hit takes place after pretrial release, "revealing the defendant's unknown violent past," that information " ‘can and should’ lead to revocation of the arrestee's release." ( Id . at p. 455, 133 S.Ct. 1958 ; see also Buza , supra , 4 Cal.5th at p. 689, 230 Cal.Rptr.3d 681, 413 P.3d 1132 [even DNA identification information obtained months later can be considered in reevaluating an initial release determination or determining to impose new release conditions and it may also influence custodial housing decisions].) Similarly, a DNA hit determined after a prosecutor initially declines to file formal charges on the current arrest could, and in many cases will, result in a reevaluation of that charging decision. A prosecutor's charging decision is not necessarily permanent, and a defendant could later be formally charged as long as the filing is made within the applicable statute of limitations. And in such a situation, the defendant's DNA profile would be available for purposes of confirming his identity upon rearrest.
Finally, while the exoneration of innocent persons interest attaches at the time of booking for an arrest based on probable cause, this interest continues even if formal charges are not filed on the current arrest. ( Haskell II, supra , 317 F.Supp.3d at p. 1106.) Prompt DNA testing prevents "the grotesque detention of ... innocent people." ( King, supra , 569 U.S. at p. 455, 133 S.Ct. 1958.) "DNA evidence leads to exonerations" of persons wrongly accused and "exonerations are a worthy interest." ( Haskell II, at p. 1105.) The electorate recognized this in enacting the DNA Act, the formal name of which includes the words "Innocence Protection." The electorate declared in Proposition 69 that there is a "critical and urgent need" to provide law enforcement with the technology to "expeditiously ... exonerat[e] persons wrongly suspected or accused of crime" and "prevent time-consuming and expensive investigations of innocent persons." (Prop. 69, supra , § II, subds. (b), (e).) It further declared that expanding the DNA data base is a "means to ensure that persons wrongly suspected or accused of crime are quickly exonerated so that they may reestablish their standing in the community." (Prop. 69, supra , § II, subd. (g).) This government interest is on full display in the instant case, where S.L. and Christopher could not be truly exonerated until the DNA found on the cigarette butts and Jessica's belt buckle was linked to defendant and law enforcement determined there was no connection between defendant and those individuals.
We conclude that at the time of booking, "there can be little reason to question ‘the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested [and] in knowing whether he is wanted elsewhere’ " ( King, supra , 569 U.S. at p. 461, 133 S.Ct. 1958 ), even if a prosecutor's office later decides not to file formal charges. Nor can it be questioned that determining an arrestee's dangerousness and the potential for exoneration of innocent persons are legitimate governmental interests to weigh in the balance, even when formal charges are not filed. And in a situation where the prosecutor reevaluates the original decision declining to file charges, decides to do so and the defendant is then rearrested, the defendant's DNA will be available to confirm his identity and for purpose of risk assessment in the custodial setting.
Looking at the privacy side of the balance, there is no dispute here that defendant's arrest was supported by probable cause. Consequently, his expectation of privacy was diminished. ( King, supra , 569 U.S. at pp. 461, 463, 133 S.Ct. 1958 ; Buza , supra , 4 Cal.5th at p. 673, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The court in King stated, "[i]n light of the context of a valid arrest supported by probable cause [the defendant's] expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks." ( King , at p. 465, 133 S.Ct. 1958.) The high court did not even hint that later events such as the filing of formal charges, a judicial probable cause determination, or a conviction would need to be weighed into the balance. Regarding the physical intrusion in obtaining the sample, the buccal swab process is a "minimal intrusion," ( id . at p. 459, 133 S.Ct. 1958 ; Buza , at pp. 672-673, 230 Cal.Rptr.3d 681, 413 P.3d 1132 ), and only minimally more intrusive than fingerprinting ( King, at p. 469, 133 S.Ct. 1958 ).
Additionally, a California arrestee's privacy is protected by the same scientific and statutory safeguards discussed in King . ( King, supra , 569 U.S. at pp. 442-444, 133 S.Ct. 1958 ; Buza, supra , 4 Cal.5th at pp. 681, 692, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The DNA analyzed is non-sensitive junk DNA, not suitable for genetic determinations other than identification. ( Buza , at p. 673, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) It is a genetic fingerprint, but it is not, as defendant suggests, the equivalent of medical history information. (See United States v. Mitchell (3rd Cir. 2011) 652 F.3d 387, 408 [" ‘DNA profiles, which embody information concerning 13 "core loci," amount to "genetic fingerprints" that can be used to identify an individual uniquely, but do not disclose an individual's traits, disorders, or dispositions’ "].) In California, misuse of a DNA profile is subject to criminal penalties. It is certainly possible that, in the future, the 13 loci constituting junk DNA could be used to make other, more private genetic determinations; but other than pure speculation, there is nothing before us from which to infer science will move in that direction. And such speculation should not be part of a Fourth Amendment analysis. On balance, the government interests clearly outweigh defendant's privacy interests.
As our high court in Buza noted: "Information obtained from an arrestee's DNA is confidential and may not be disclosed to the public. [Citation.] DNA samples and the biological material from which they are obtained may not be used ‘as a source of genetic material for testing, research, or experiments, by any person, agency, or entity seeking to find a causal link between genetics and behavior or health.’ [Citation.] Any person who knowingly uses a DNA sample or profile for any purpose other than ‘criminal identification or exclusion purposes’ or ‘the identification of missing persons,’ or who ‘knowingly discloses DNA or other forensic identification information ... to an unauthorized individual or agency’ for any unauthorized reason is subject to criminal prosecution and may be imprisoned for up to three years and fined up to $10,000. [Citation.] The Department of Justice is also subject to civil damages for knowing misuse of a sample or profile by any of its employees." (Buza , supra , 4 Cal.5th at p. 667, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
We disagree with defendant's premise that what subsequently happened after booking—that he was neither formally charged nor subject to a probable cause determination by a neutral magistrate—meaningfully alters the Fourth Amendment calculus. The reasoning in King and Buza set forth ante implicitly disposes of defendant's contentions. Indeed, as noted, the high court in King never suggested the applicability of the governmental interests that attach upon an arrest based on probable cause should be reevaluated or reconsidered depending on later proceedings in the criminal justice process, including a prosecutorial charging declination. No such rule is required for other common identification evidence collected at booking like photographs and fingerprints, and we see no reason why such a rule should be required for DNA profiles generated from junk DNA obtained from a person by buccal swab after a valid arrest as part of the booking process. (See Loder, supra , 17 Cal.3d at pp. 865-868, 132 Cal.Rptr. 464, 553 P.2d 624 [reasoning that the multiple purposes for which police, prosecutors, courts, and probation and parole authorities may consult records of arrests not resulting in conviction, including fingerprint records and photographs, constitute a substantial governmental interest].)
Again, we note that the record does not establish whether there was a probable cause determination by a neutral magistrate or not. (See fn. 8, ante .) But whether there was or was not makes no difference here, where the record establishes there was probable cause for arrest.
Regarding a judicial determination of probable cause, we note here that defendant never challenged the constitutional validity of his May 2013 arrest. (See generally Buza, supra , 4 Cal.5th at pp. 679-680, 230 Cal.Rptr.3d 681, 413 P.3d 1132 [addressing the dissent's suggestion that arrest should not be deemed valid until there is a judicial determination of validity, and observing that, in the case before it, there was no dispute the arrest was valid].) To the contrary, defendant here stipulated that his arrest was lawful, as it was based on probable cause. The parties’ stipulation characterized defendant's May 30, 2013, arrest as a "lawful arrest for a felony, based upon the officer's finding probable cause ." (Italics added.) Thus, this case does not present a situation where the validity of the arrest is in question. In such a circumstance, whether DNA evidence collected at booking should be suppressed presents an entirely different question. (Cf. People v. Marquez (2019) 31 Cal.App.5th 402, 410-411, 242 Cal.Rptr.3d 530 [concluding the DNA collection violated the Fourth Amendment because the prosecution failed to establish the defendant's arrest was supported by probable cause or, given an unexplained four-day delay between arrest and obtaining the buccal sample, that his DNA was collected a part of a routine booking procedure].)
As to the prosecutorial charging declination, the court in Buza impliedly addressed the argument defendant makes here. The court stated: "Although defendant himself was charged and convicted, we acknowledge defendant's concern about the collection of DNA samples from other individuals who are booked into custody but who ultimately will never be charged with a qualifying crime, or against whom qualifying charges will ultimately be dismissed. Voters responded to that concern by providing for a particular remedy—expungement of the DNA sample and associated records—when the suspect is cleared of qualifying charges. As King illustrates, voters could also have chosen to require that all sample processing be postponed until after arraignment, regardless of technological capacity to proceed more quickly. But given the basic logic of King , we cannot say that the choice voters made is one that undermines the reasonableness of the search in this case ." ( Buza, supra , 4 Cal.5th at p. 679, 230 Cal.Rptr.3d 681, 413 P.3d 1132, italics added.) We conclude the same about the reasonableness of the search in the case before us.
Defendant argues that each time his DNA was run in CODIS and compared to other profiles, it was, in effect, subjected to additional searches after his release. We disagree. As the King , Buza , and Haskell courts have emphasized, defendant's DNA profile is like his mugshot and fingerprints. And fingerprints and photographs are both available for law enforcement use once constitutionally obtained. Moreover, it is hard to see how the subsequent comparisons of defendant's DNA profile can even be classified a search. As recognized by the courts in King and Buza , the search that is subject to Fourth Amendment analysis takes place when the buccal swab sample is obtained and even "the analysis of the DNA sample, once collected, does not result in a privacy intrusion that violates the federal Constitution." ( Buza, supra , 4 Cal.5th at p. 673, 230 Cal.Rptr.3d 681, 413 P.3d 1132, citing King , supra , 569 U.S. at p. 464, 133 S.Ct. 1958.) In our view, repeated comparison of an arrestee's validly obtained and recorded DNA profile to the profiles in CODIS is no more a search than are future uses of mugshots for photo lineups or comparisons of fingerprints to latent prints found at an unrelated crime scene. (See Johnson v. Quander (D.C. Cir. 2006) 440 F.3d 489, 499 [a DNA profile is like a snapshot taken in conformance with the Fourth Amendment and the government's storage and use of it does not give rise to an independent Fourth Amendment claim]; see also Haskell II , supra , 317 F.Supp.3d at p. 1102, quoting Johnson , at p. 498.) Once an arrestee's DNA is validly obtained and analyzed as part of the booking procedure and his or her profile becomes known and recorded, there is no additional intrusion into the arrestee's privacy by comparing it to other profiles. (See Johnson , at pp. 498-499 [concluding that comparing DNA profiles in CODIS is not a search for Fourth Amendment purposes; "the process of matching one piece of personal information against government records does not implicate the Fourth Amendment"].) Rather, a recorded profile, once validly obtained, is essentially in the plain view of law enforcement. (See Arizona v. Hicks (1987) 480 U.S. 321, 324-325, 107 S.Ct. 1149, 94 L.Ed.2d 347 [noting that observing a turntable in plain view while law enforcement executes a valid search warrant for other items does not constitute an independent search, because the mere observation of the turntable produces no additional invasion of the defendant's privacy interest].) And there is no constitutional impediment to matching information against other governmental records when that information is in law enforcement's plain view as the result of a valid search.
Regarding defendant's argument that the DNA Act is constitutionally defective because it does not provide for automatic expungement, we agree with the district court in Haskell II . "[C]ourts have not held that a state must always return fingerprints or other identifying information taken at arrest. [Citations]. The court in Buza , [citation], also observed that ‘retention of an arrestee's fingerprints, photographs, and other identifying information in law enforcement files generally has not been thought to raise constitutional concerns, even though the arrestee may later be exonerated.’ " ( Haskell II, supra, 317 F.Supp.3d at p. 1110, quoting Buza , supra , 4 Cal.5th at p. 680, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) And as the Buza court observed, nothing in King suggested that the automatic expungement component of the Maryland law was constitutionally significant. ( Buza , at p. 680, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The Maryland expungement procedure was simply not part of King's Fourth Amendment analysis. ( Haskell II , at p. 1111.) Given the high court's holding that DNA serves the same function as photographing and fingerprinting, we conclude automatic expungement is not constitutionally required.
Nor do we find anything in California's expungement procedures that tilts the balance to a violation of the felony arrestee's Fourth Amendment rights. Focusing on various expungement provisions, defendant argues the process for obtaining an expungement is illusory. We need not detail those provisions here. Suffice it to say we agree with the district court in Haskell II that "[t]here is no reason to believe that the California law's inclusion of a somewhat more burdensome process for accomplishing [expungement than the Maryland law] would so alter the balancing test as to change its outcome. Instead, California's expungement process is an inconsequential example of how states’ laws ‘vary in their particulars’ from the Maryland law." ( Haskell II, supra , 317 F.Supp.3d at p. 1111.)
Furthermore, to our knowledge, defendant never availed himself of the expungement procedures he characterizes as inadequate here. (See generally Buza, supra , 4 Cal.5th at p. 683, 230 Cal.Rptr.3d 681, 413 P.3d 1132 [court stated it had no occasion to address issues the defendant raised regarding the statutory expungement procedures where he did not seek expungement and concluding many of the defendant's assertions on this topic were necessarily speculative].) Indeed, defendant here actually invited the investigators to check his DNA in the database when he said to them at the conclusion of the initial interview, "Um, I'd offer DNA and fingerprints, but honestly, I'm already in the system. So you guys can run me ." (Italics added.)
We conclude that the DNA Act, as applied to defendant here, did not violate the Fourth Amendment.
2. California Constitutional Right Against Unreasonable Search and Seizure
Defendant asserts that the California Constitution independently protects him above and beyond the federal constitution. The court in Buza recognized, "the California Constitution is, and has always been, ‘ "a document of independent force" ’ [citation] that sets forth rights that are in no way ‘dependent on those guaranteed by the United States Constitution.’ " ( Buza, supra , 4 Cal.5th at p. 684, 230 Cal.Rptr.3d 681, 413 P.3d 1132 ; see Cal. Const., art. I, § 24.)
However, the Buza court made clear, "We evaluate the constitutionality of searches and seizures under our state Constitution by employing the same mode of analysis that the high court applied in King [citation]. That is, we determine whether the intrusion on the defendant's expectation of privacy is unreasonable by applying ‘a general balancing test "weighing the gravity of the governmental interest or public concern served and the degree to which the [challenged government conduct] advances that concern against the intrusiveness of the interference with individual liberty." ’ " ( Buza, supra , 4 Cal.5th at p. 684, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) Employing that same balancing analysis and the reasoning in King , our high court concluded the DNA Act did not violate the California Constitution as applied to Buza . ( Id . at pp. 684-691, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Defendant in making his state constitutional claim again asserts that none of the considerations or rationales relied upon in King and Buza apply to an arrestee who is released from jail without formal charges having been filed. And again, we disagree. For reasons previously discussed, we conclude the identification, risk assessment, dangerousness assessment, and exoneration interests applicable to the Fourth Amendment contention apply to defendant's state constitutional claims. On balance, we conclude the aforementioned four interests weigh in favor of a finding of reasonableness as to defendant's California search and seizure claim.
Defendant also relies on the absence of an automatic expungement provision in the DNA Act in arguing that it violates California's Constitution. However, for the same reasons discussed ante relative to the Fourth Amendment analysis, we do not agree that the absence of automatic expungement compels the conclusion that the DNA Act, or its application to defendant, violates article I, section 13, of the California Constitution.
On the privacy side of the California Constitution balance, defendant acknowledges that the Buza court factored in what it considered "heightened privacy interests in the sensitive information that can be extracted from a person's DNA" and that these interests implicate California's constitutional search and seizure provision. ( Buza , supra , 4 Cal.5th at pp. 689-690, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) But the court in Buza went on to note that, even under cases involving California's right to privacy under article I, section I, its "cases have ... recognized that safeguards against the wrongful use or disclosure of sensitive information may minimize the privacy intrusion when the government accesses personal information, including sensitive medical information." ( Id . at p. 690, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) The court went on to state: "Here, the DNA Act makes the misuse of a DNA sample a felony, punishable by years of imprisonment and criminal fines. [Citation.] These strong sanctions substantially reduce the likelihood of an unjustified intrusion on the suspect's privacy. Like the King court, we acknowledge the possibility that technological change might alter the privacy interests at stake, requiring a new constitutional analysis. But we are no more inclined than that court to decide cases on the basis of speculation about future developments that may not come to pass." ( Ibid . )
Defendant attempts to add weight to the privacy side of the balance, asserting "[t]he DNA sample analyzed and stored by the state contained [his] entire genetic code , deeply personal information that surely falls within the realm of guaranteed informational privacy" and equates it to medical history. (Italics added.) Defendant exaggerates. As King and Buza recognized, the DNA analysis done by the state reveals junk DNA. It is not his entire genetic code. Under current technology, it is suitable only for identification purposes. Nothing about the fact that defendant was not formally charged warrants a deviation from King's and Buza's analysis on this point. As of now, what is at issue is "junk DNA" suitable only for identification purposes, not a person's entire genetic code.
Relying on Justice Cuéllar's dissenting opinion in Buza , defendant asserts that "the processing, storage and comparison of an arrestee's DNA sample" represents a "second intrusion" which is a greater intrusion on the arrestee's privacy. ( Buza, supra , 4 Cal.5th at p. 720, 230 Cal.Rptr.3d 681, 413 P.3d 1132 (dis. opn. of Cuéllar, J.).) However, as we have noted, King and Buza recognized the identification process includes both the taking and analysis of an arrestee's DNA and the governmental interest attaches when the arrestee is taken into custody on an arrest supported by probable cause. ( King, supra , 569 U.S. at pp. 449-450, 465, 466, 133 S.Ct. 1958 ; Buza , at p. 677, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) Noting that the King court "treat[ed] ... the taking and analyzing as part of a single ‘identification’ process, rather than two independent searches," the district court in Haskell II found this to be significant in finding the DNA Act constitutional as applied to arrestees for whom formal charges are not filed. ( Haskell, supra , 317 F.Supp.3d at p. 1101.) We conclude the same as to our state charter.
We note that it is not the physical sample that is stored and compared; it is the profile determined from the analysis that is stored in the DNA databank and compared to other profiles. (Buza, supra , 4 Cal.5th at pp. 666-667, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
We conclude defendant's contentions that the DNA Act applied to him violated article I, section 13, of the California Constitution are without merit. Defendant's contentions either were disposed of by the King, Buza and Haskell courts, or do not sufficiently affect the applicable constitutional balancing analysis so as to render the DNA Act unconstitutional under our state charter.
3. California Constitutional Right to Privacy
In the trial court and, for the first time on appeal, in his supplemental reply brief, defendant asserts the DNA Act violates his right to privacy under article I, section 1, of the California Constitution because that provision contains a "more potent privacy interest" related to informational privacy.
After defendant did not object, we granted the People's request to file a supplemental surreply brief to address the issue.
Our high court defines the informational privacy interest as an interest "in precluding the dissemination or misuse of sensitive and confidential information." (Hill v. National Collegiate Athletic Association (1994) 7 Cal.4th 1, 35, 26 Cal.Rptr.2d 834, 865 P.2d 633 (Hill ).) "Informational privacy is the core value furthered by the Privacy Initiative" (ibid ), which added the right to privacy to our state constitution. "A particular class of information is private when well-established social norms recognize the need to maximize individual control over its dissemination and use to prevent unjustified embarrassment or indignity. Such norms create a threshold reasonable expectation of privacy in the data at issue." (Ibid . )
Article I, section 1 of the California Constitution provides: "All people are by nature free and independent and have inalienable rights. Among these are enjoying and defending life and liberty, acquiring, possessing, and protecting property, and pursuing and obtaining safety, happiness, and privacy ." (Italics added.) The words "and privacy" were added to our state charter by ballot initiative approved by the electorate in 1972. ( Hill, supra , 7 Cal.4th at p. 15, 26 Cal.Rptr.2d 834, 865 P.2d 633.) "The principal ‘ "mischiefs" ’ that the Privacy Initiative addressed were: ‘(1) "government snooping" and the secret gathering of personal information; (2) the overbroad collection and retention of unnecessary personal information by government and business interests; (3) the improper use of information properly obtained for a specific purpose, for example, the use of it for another purpose or the disclosure of it to some third party; and (4) the lack of a reasonable check on the accuracy of existing records.’ " ( Lewis v. Superior Court (2017) 3 Cal.5th 561, 569, 220 Cal.Rptr.3d 319, 397 P.3d 1011 ( Lewis ).)
Our high court has repeatedly stated, in the context of search and seizure, that the privacy protected by Article I, section 1 of the California Constitution is no broader than the privacy protected by the Fourth Amendment or by article I, section 13 of the California Constitution. ( In re York (1995) 9 Cal.4th 1133, 1149, 40 Cal.Rptr.2d 308, 892 P.2d 804 ( York ); Hill , supra , 7 Cal.4th at p. 30, fn. 9, 26 Cal.Rptr.2d 834, 865 P.2d 633 ; People v. Crowson (1983) 33 Cal.3d 623, 629, 190 Cal.Rptr. 165, 660 P.2d 389 ( Crowson ), overruled on another ground in People v. Myers (1993) 5 Cal.4th 1193, 1195, 1201, 22 Cal.Rptr.2d 911, 858 P.2d 301, as stated in People v. Carter (2005) 36 Cal.4th 1114, 1144, 32 Cal.Rptr.3d 759, 117 P.3d 476 ; see also Smith v. Los Angeles County Board of Supervisors (2002) 104 Cal.App.4th 1104, 1124, 128 Cal.Rptr.2d 700 ( Smith ); People v. Elwood (1998) 199 Cal.App.3d 1365, 1371-1372, 245 Cal.Rptr. 585 ( Elwood ).) Rather, the federal and state search and seizure rights and the state privacy rights are coextensive with each other. ( Crowson , at p. 629, 190 Cal.Rptr. 165, 660 P.2d 389.) We are bound by our high court's determination on this point. ( Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, 20 Cal.Rptr. 321, 369 P.2d 937.) Accordingly, we must apply the same balancing analysis we have applied concerning the federal and state search and seizure protections. Applying that analysis, we reject defendant's state constitutional privacy claim.
The People argue that even if the right to privacy is not coextensive with search and seizure rights, defendant has not established that his right to privacy has been violated, citing the elements for privacy rights violations established by our high court in Hill : (1) a legally protected privacy interest; (2) a reasonable expectation of privacy in the circumstances; and (3) conduct constituting a serious invasion of the privacy interest. (Lewis , supra , 3 Cal.5th at p. 571, 220 Cal.Rptr.3d 319, 397 P.3d 1011 ; Hill , supra , 7 Cal.4th at pp. 39-40, 26 Cal.Rptr.2d 834, 865 P.2d 633.) Given our Supreme Court's pronouncement that in the search and seizure context the constitutional search and seizure rights are coextensive with the constitutional privacy right and the application of the Truth-in-Evidence provision in Proposition 8, which we discuss post , we need not separately analyze defendant's privacy right contention under the Hill test.
4. Proposition 8
Even if we were to conclude defendant's state search and seizure or privacy rights were violated, exclusion is not an available remedy. As noted, the Truth-in-Evidence provision of Proposition 8 eliminated the remedy of exclusion of evidence for violations of the California Constitution, "except to the extent that exclusion remains federally compelled." ( Lance W., supra , 37 Cal.3d at pp. 886-887, 210 Cal.Rptr. 631, 694 P.2d 744.) "[I]n California criminal proceedings, issues related to the suppression of evidence seized by police are, in effect, governed by federal constitutional standards ." ( Buza , supra , 4 Cal.5th at p. 685, 230 Cal.Rptr.3d 681, 413 P.3d 1132, italics added; accord, Redd, supra, 48 Cal.4th 691, 720, fn. 11, 108 Cal.Rptr.3d 192, 229 P.3d 101 ; Robinson, supra, 47 Cal.4th at p. 1119, 104 Cal.Rptr.3d 727, 224 P.3d 55 ; Banks, supra, 6 Cal.4th at p. 934, 25 Cal.Rptr.2d 524, 863 P.2d 769 ; Elwood , supra , 199 Cal.App.3d at pp. 1371-1372, 245 Cal.Rptr. 585.)
Defendant argues that, while the Buza court recognized the Truth-in-Evidence provision, it nevertheless addressed the state constitutional grounds asserted by the defendant, noting the independent force of our state charter. This is true because Buza addressed the substantive scope of California's Constitutional provision. Buza was not an evidence suppression case and our high court was careful to note that Proposition 8's Truth-in-Evidence provision must apply in such cases. ( Buza , supra , 4 Cal.5th at p. 685, 230 Cal.Rptr.3d 681, 413 P.3d 1132.)
Defendant asserts that Proposition 8 does not apply to his state search and seizure or informational privacy claims because King did not address the collection and analysis of DNA from an arrestee when the prosecutor later declines to file formal charges and it did not decide the Fourth Amendment issue "within the context of" his informational privacy contention. But we look to the "federal constitutional standards" in determining the scope of Proposition 8. ( Buza , supra , 4 Cal.5th at p. 685, 230 Cal.Rptr.3d 681, 413 P.3d 1132.) On this point, we once again note that our high court in Buza twice identified as the holding in King : " ‘[w]hen officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.’ " ( Id . at pp. 664, 673, 230 Cal.Rptr.3d 681, 413 P.3d 1132, quoting King, supra , 569 U.S. at 465-466, 133 S.Ct. 1958.) And as we have observed, the high court's holding was intentionally broad and apparently intended to cover more than Maryland's DNA database law. Regarding defendant's informational privacy claim grounded on our state's constitutional right to privacy, we have already noted that our high court has on more than one occasion held the privacy right under article I, section 1 is no broader than the privacy protected by the Fourth Amendment or by article I, section 13 of the California Constitution. ( York, supra, 9 Cal.4th at p. 1149, 40 Cal.Rptr.2d 308, 892 P.2d 804 ; Hill , supra , 7 Cal.4th at p. 30, fn. 9, 26 Cal.Rptr.2d 834, 865 P.2d 633 ; Crowson, supra, 33 Cal.3d at p. 629, 190 Cal.Rptr. 165, 660 P.2d 389 ; Smith, supra, 104 Cal.App.4th at p. 1124, 128 Cal.Rptr.2d 700 ; Elwood, supra, 199 Cal.App.3d at pp. 1371-1372, 245 Cal.Rptr. 585 [applying Proposition 8 in the context of a challenge grounded on article I, section 13 and article I, section 1 ].) Indeed, in People v. Guzman (2019) 8 Cal.5th 673, 256 Cal.Rptr.3d 112, 453 P.3d 1130, our high court recently rejected an argument that the right to privacy "outranks" the right to truth-in-evidence under Proposition 8. ( Guzman, at p. 683, 256 Cal.Rptr.3d 112, 453 P.3d 1130.) There, our high court concluded that the Truth-in-Evidence provision abrogated the exclusionary remedy in section 632, subdivision (d). Our high court held: "Proposition 8 can eliminate the exclusionary remedy without affecting the ‘substantive scope’ of article I, section 13. [Citation.] In much the same way, Proposition 8 can eliminate the exclusionary remedy of section 632(d) without affecting the substantive scope of privacy of article I, section 1 ...." ( Guzman , at p. 684, 256 Cal.Rptr.3d 112, 453 P.3d 1130, italics added.)
We note that the Truth-in-Evidence provision of Proposition 8, enacted by the electorate in 1982 is a more recent and more specific constitutional provision than the Privacy Initiative, enacted in 1972, so the privacy right does not trump Proposition 8. (Cf. People v. Adelmann (2018) 4 Cal.5th 1071, 1079, 232 Cal.Rptr.3d 421, 416 P.3d 786 ["On the question of venue, Proposition 47 is both more recent and more specific than the probation transfer statute"; the focused language of section 1170.18, added by Proposition 47, controls over the more general provisions of section 1203.9 ]; In re David T. (2017) 13 Cal.App.5th 866, 872, 222 Cal.Rptr.3d 33 [" ‘ "more recent and specific intent underlying Proposition 21's amendments to section 781 prevail[s] over th[e] general intent" recognized when the statute was initially enacted’ "]; Capistrano Taxpayers Assn., Inc. v. City of San Juan Capistrano (2015) 235 Cal.App.4th 1493, 1511, 186 Cal.Rptr.3d 362 ["if push came to shove and article X, section 2 really were in irreconcilable conflict with article XIII D, section 6, subdivision (b)(3), we might have to read article XIII D, section 6, subdivision (b)(3) to have carved out an exception to article X, section 2, since Proposition 218 is both more recent and more specific"].)
Section 632, subdivision (a) prohibits nonconsensual recording of confidential communications. Subdivision (d) of section 632 provides in pertinent part: "[E]vidence obtained as a result of eavesdropping upon or recording a confidential communication in violation of this section is not admissible in any judicial, administrative, legislative, or other proceeding."
We follow our high court's lead here and conclude that, even if there was a violation of defendant's substantive rights under either article I, section 13 or article I, section 1, exclusion of evidence is not available as a remedy in a criminal proceeding. 5. Conclusion
We note here, as did our high court in Buza , that " ‘it is our solemn duty to jealously guard’ the initiative power secured by the California Constitution, and that we accordingly may not strike down voter measures ‘unless their unconstitutionality clearly, positively, and unmistakably appears.’ " ( Buza, supra , 4 Cal.5th at p. 694, 230 Cal.Rptr.3d 681, 413 P.3d 1132, quoting Legislature v. Eu (1991) 54 Cal.3d 492, 501, 286 Cal.Rptr. 283, 816 P.2d 1309.) Here, two separate initiatives are in play, Proposition 69 and Proposition 8. The voters have spoken twice. As our foregoing analysis makes clear, we do not find any unconstitutionality clearly, positively, and unmistakably appearing in the DNA Act or in its application to defendant here.
Accordingly, we conclude that the DNA Act, as applied to defendant, did not violate his search and seizure rights under the Fourth Amendment or under article I or section 13, of the California Constitution. Nor did the DNA Act as applied to defendant violate his right to privacy under article I, section 1 of the California Constitution. We further conclude that even if his state constitutional rights were violated, the Truth-in-Evidence provision of Proposition 8 bars exclusion of the DNA evidence.
To the extent defendant asserts a strictly facial challenge to the DNA Act, we would find that challenge meritless under King and Buza .
In light of our determinations here, we do not address the People's contentions that defendant cannot challenge the state's analysis of his DNA because he acquiesced to it, and that if the DNA Act is unconstitutional, the good faith exception to the exclusionary rule should apply.
See footnote *, ante .
DISPOSITION
The judgment is affirmed.
We concur:
HULL, Acting P. J.
DUARTE, J.