PEOPLE v. BUZARespondent’s Supplemental BriefCal.December 22, 2017SUPREME COURT Cur: Iu the Supreme Court of the State of California THE PEOPLE OF THE STATE OF CALIFORNIA, Case No. $223698 Plaintiff and Respondent, SUPREME COURT v. FILED MARK BUZA, DEC 22 2017 Defendant and Appellant. Jorge Navarrete Clerk ; , a Deputy First Appellate District, Division Two, Case No. A125542 San Francisco County Superior Court, Case No. 207818 The Honorable Carol Yaggy, Judge SUPPLEMENTAL BRIEF XAVIER BECERRA Attorney General of California EDWARD C. DUMONT Solicitor General GERALD A. ENGLER Chief Assistant Attorney General JEFFREY M. LAURENCE Senior Assistant Attorney General *MICHAEL J. MONGAN Deputy Solicitor General State Bar No. 250374 MAX CARTER-OBERSTONE Associate Deputy Solicitor General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102-7004 (415) 703-2548 Michael.Mongan@doj.ca.gov Attorneysfor Respondent The People respectfully submit the following supplementalbrief describing new authorities, new legislation, and other matters that were not available in time to be included in the People’s briefs on the merits. (See Cal. Rules of Court, rule 8.520(d).) 1. New authorities. California courts continue to apply this Court’s ‘general principle or policy of deference to United States Supreme Court decisions’” when construing a state constitutional provision that parallels one in the federal Constitution. (RBOM 20, quoting Raven v. Deukmejian (1990) 52 Cal.3d 336, 353; see id. at pp. 20-26.) In People v. Gonzalez (2015) 241 Cal.App.4th 1103, for example, the Court of Appeal addressed an issue offirst impression involving the double jeopardy clause ofthe state Constitution. (See id. at pp. 1114-1115.) It noted that “when weinterpret a provision of the California Constitutionthat is similar to a provision of the federal Constitution, cogent reasons must exist before we will construe the Constitutions differently and depart from the construction placed by the Supreme Court of the United States.” (/bid., quoting People v. Monge (1997) 16 Cal.4th 826, 844, internal quotation marks omitted.) In light of this policy of deference, the Court of Appeal adhered to an analytical framework adopted by the federal Supreme Court, noting, among other things, that “the purpose behind the state and the federal double jeopardy ‘clauses is the same.” (/d. at p. 1115.) Here, there are no “cogent reasons” to depart from the approach of the federal Supreme Court in Marylandv. King (2013) 569 U.S. 435 when resolving whether it was constitutional to collect DNA identifying information from Buza while booking him following a felony arrest. (See RBOM 20-29; Reply 6-22; cf. People v. Harris (2017) 15 Cal.App.5th 47, 62-66, review granted Nov. 21, 2017, $244792[relying on King in rejecting a challenge to the DNA Act involving the California Constitution’s right to privacy].)! As the People explainedin their briefs on the merits, although there are somedifferences between the California statute at issue in this case and the Maryland statute upheld in King, those differences are not of constitutional significance. (See RBOM 12-20; Reply 3-6.) Courts in other jurisdictions have rejected Fourth Amendmentchallenges to laws requiring the collection ofDNA identification information from arrestees, even when those laws differed from the Maryland statute in some ofthe respects addressed in Buza’s briefing. (See Reply 3, fn. 1; ABOM 94-99.) Recently, in People v. Valdez (Colo.Ct.App. 2017) 405 P.3d 413, cert. denied (Colo. 2017, No. 17SC353), the Colorado Court of Appeals held that a statute requiring the collection ofDNA identification information from every adult felony arrestee is consistent with the federal and Colorado Constitutions. The court rejected several arguments similar to those advancedby Buzahere,including that the statute was unconstitutional because: it applies to all felony arrests, including for non-violent offenses (see id. at pp. 417-418); its declaration of purpose “refer[red] to ‘preventing’ and ‘solving’ crimes,” among other things (id. at p. 418); and “a person charged with a felony has the burden of requesting expungement of the DNA sample”(ibid; see id. at pp. 418-419). The Valdez court also invoked the concurring opinion in Haskell v. Harris (9th Cir. 2014) 745 F.3d 1269, 1274, which “explained that ‘the King Court did not view Maryland’sexpungement procedures as important to the constitutionality of Maryland’s law,’” and that King did not “suggest that post-collection In People v. Harris, this Court granted review and deferred further action pending consideration and disposition of a related issue in In re C_B., S237801, and In re C.H., 8237762. expungementprocedures would affect the constitutional inquiry.’” (Valdez, supra, at p. 419, quoting Haskell, supra, at p. 1274 (conc. opn. of M. Smith, J.).? . Although Buza briefed an argument underthe privacy clause in article I, section 1 of the state Constitution (see, e.g., ABOM 1), that issue is not directly before this court (see Reply 54). The Court of Appeal observed that this case “does not involve a claim of invasion of privacyin violation of article I, section 1, and, in any event, such a privacy claim in the search and seizure context would not offer more protection than a claim under article I, section 13.” (Opn.p. 53, citing People v. Crowson (1983) 33 Cal.3d 623, 629; see also RBOM 22-24 & fn. 10; Reply 13-14, 54.) To the extent the Court is nevertheless inclined to consult authority applying the privacy clause, that authority only confirmsthe constitutionality of the DNA Act. (See Reply 54-56.) This Court recently clarified in Lewis v. Superior Court (2017) 3 Cal.5th 561 that a defendant generally need not demonstrate a “compelling”interest to survive a privacy clause challenge, exceptin rare situations where—unlike here—a “fundamental autonomy right” is at stake, such as in cases involving “involuntary sterilization”or “the freedom to pursue consensual family relationships.” (Jd. at pp. 572- * Both the Court of Appeal below and Buzarelied on State v. Medina(Vt. 2014) 102 A.3d 661, which struck down an arrestee DNA statute under the Vermont Constitution. (See Opn. pp. 27-28, 31, 45, 47, 51 fn. 30; ABOM 6,38-39, 52, 57, 60, 62, 91-92.) As the People have explained, Medina providesno basis for invalidating California’s DNA Act undereither the federal or state Constitutions. (See Reply 21-22 & fn 13.) The People are not aware of any other court, in the more than three years since the Vermont Supreme Court decided Medina,that has struck down a DNAstatute under a state constitution. Other than the opinion below,the Medina decision has been cited only three times in cases available on ~ Westlaw or Lexis, all in opinions issued by courts in Vermont. 573; see also Williams v. Superior Court (2017) 3 Cal.5th 531, 556-557.) Instead, if the complaining party meets the three threshold elements of a claim under the privacy clause, the claim is then adjudicated under a “general balancing”test. (Lewis, supra, 3 Cal.5th at p. 573.) Underthat balancing analysis, “‘[iJnvasion of a privacy interest is not a violation of the state constitutional right to privacy if the invasion is justified by a competing interest,’” and the defendantis not typically required to show that its policy is the “least restrictive meansof achievingits legitimate objectives.” (Ud. at pp. 573-574,italics added, quoting Hill v. Nat. Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 49.) In the context of this case, whether conducted under the federal or state search-and-seizure provisions, or the state privacy clause, the constitutional balancetilts steeply in favor of constitutionality. (See RBOM 30-66; Reply 23-56.) Indeed, Division Oneof the Fourth District Court of Appeal recently reached a similar conclusion in applying this general balancing framework in a case involving a defendant whose DNAidentification profile was entered into the State’s database uponherarrest for a felony offense that was subsequently reduced to a misdemeanorby Proposition 47. (See People v. Harris, supra, 15 Cal.App.Sth at pp. 52, 63-65.) The court held “that neither the collection of Harris’s DNA sample northestate’s retention of the sample after her felony conviction was reduced to a misdemeanor under Proposition 47 violated her privacy rights under the federal and state constitutions.” (/d. at p. 62.) Relying on King as well as this Court’s decision in People v. Robinson (2010) 47 Cal.4th 1104, 1120, the court concluded that the collection and storage of Harris’s DNA effected only a “minimal[]” intrusion on her legitimate privacy expectations. (/d. at p. 64.) In support of that conclusion, it pointed to the minimally invasive collection process, an arrestee’s diminished expectations of privacy, the “strict[]”’ statutory limits on how the sample maybeused, the “minimal amountof information contained in” a DNA identification profile, and the established principle “‘that individuals in lawful custody cannot claim privacy in their identification.’” (Jd. at pp. 64-65, quoting People v. Robinson, supra, 47 Cal.4th at p. 1121.) These “minimalintrusion[s]” were “greatly outweigh[ed]”by the substantial governmentinterests served by the DNA Act, including “knowing whohasbeenarrested; ensuring that the custody of an arrestee does not create inordinate risks for facility staff and detainees; ensuring that persons accused of crimes are available fortrial; preventing crime by arrestees by assessing the danger they poseto the public; and freeing a person wrongfully imprisoned for a crimethe arrestee committed.” (/d. at p. 65.) Finally, the Court of Appealheld that “[bJecause the collection of Harris’s DNA sample waslawful, she does not have a constitutionalright to its expungement.” (bid., citing Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 823 and People v. Baylor (2002) 97 Cal.App.4th 504, 507-508; see also RBOM 63-66; Reply 50-53.) 2. New Statutes. Since the completion of merits briefing, Indiana joined the federal government and the growing majority of States in requiring the collection ofDNA identifying information from certain arrestees. (See Ind. Code § 10-13-6-10(a)(1) [applies to any “person arrested for a felony after December 31, 2017”].) Oklahoma has expanded its statute to apply to all felony arrestees. (Okla.Stat. tit. 74, § 150.27a(A); Okla. Stat. tit. 22, § 210.) The widespread adoption of such laws, by a large and diverse group of States from across the Nation, underscores the reasonableness of California’s policy for collecting DNA identification profiles from felony arrestees who are subject to a custodial arrest based on a police officer’s finding of probable cause. (See RBOM 25 & fn. 12.) Congress also recently enacted the Rapid DNA Act of 2017. (Pub.L. No. 115-50 (Aug. 18, 2017) 131 Stat. 1001.) That Act requires the FBI to issue standards and proceduresfor the use of rapid DNA instruments and allows for the deployment of rapid DNAtechnology to police booking stations. (See ibid.; H.R.Rep. No. 115-117, Ist Sess., p. 2 (2017).) Whereasjail officials presently collect DNAsamples at booking stations and send them to remotelabs that “type” the samples to obtain arrestees’ DNAidentification profiles, rapid DNA instruments will take approximately 90 minutes to generate DNA profiles. (H.R.Rep. No. 115- 117, supra, at p. 2.) When validated and deployed, they will “be used in a booking station to help identify suspects in the same way a fingerprintis currently used.” (/bid.) In this respect, the evolution of technology for generating and using DNAidentification profiles tracks the evolution of fingerprint technology. Prior to 1999,it often took “weeks or months”to process a single set of fingerprints obtained from an arrestee at booking; only in the last two decades has technology madeit possible to quickly compare booking fingerprints against a database of prints from known persons to confirm the name and criminal history of an arrestee. (Answer to Amicus Curiae Briefs 17).* But even before those technological advancements, courts recognized the powerful and legitimate interests served by collecting and retaining fingerprints (and otheridentifiers) from persons who weresubject to a custodial arrest based on an officer’s finding ofprobable cause. (See, e.g., Loder v. Municipal Court (1976) 17 Cal.3d 859, 865; United States v. Kelly (2d Cir. 1932) 55 F.2d 67, 69; see also RBOM 32-35; Reply 24-26.) The sameinterests are served by collecting DNAidentification profiles at booking. 3 Even today,it canstill take days to evaluate whether a new set of “booking” fingerprints matches anyofthe “latent” fingerprints associated with unsolved crimes. (See Burea of Forensic Services, Cal. Dep’t of Justice [FAQ: Effects of the All Adult Arrestee Provision, Question 1].) 3. Other developments. The total numberof“hits” and the average “hits” per month under California’s DNA Act have increased substantially. (See RBOM 46-47.) The total numberofhits to the DNA identification profiles of known offenders orarrestees since January 2009 now exceeds | 52,000. In the year ending November 2017, there were an average of 644 hits per month. (See Cal-DNA Hits Reported January 1984 to November 2017 [as of Dec. 21, 2017].) Each month, a substantial percentage ofthe hits have been to DNA profiles in the arrestee database. (See Answerto Amicus Curiae Briefs p. 22, fn. 17.) And the experience of law enforcementofficials on the ground confirmsthe legitimate public and government interests advanced by obtaining the mostprecise identification metric from those whoare subject to a lawful custodial arrest based on probable causeto believe they have committed a felony. (See, e.g., Br. of Amicus Curiae California District Attorneys Association 14-23; Br. of Amicus Curiae Los Angeles District Attorney 12-18, 28-37; cf. Doleac, The Effects ofDNA Databases on Crime (2017) 9 Am. Economic J.: Applied Economics 165.) Dated: December 22,2017 Respectfully submitted, XAVIER BECERRA Attorney General of California Ak MICHAEL J. MONGA Deputy Solicitor General CERTIFICATE OF COMPLIANCE I certify that the attached Supplemental Brief uses a 13-point Times New Romanfont and contains 2,100 words, as counted by the Microsoft Word word-processing program and excludingall parts that may be excluded under Rule 8.204(c)(3) of the California Rules of Court. Dated: December 22,2017 XAVIER BECERRA Attorney General of California | HeAina MICHAEL J. MONGAN Deputy Solicitor General Attorneysfor Respondent DECLARATION OF SERVICEBY U.S. MAIL Case Name: People v. Mark Buza Case No.: $223698 I declare: Iam employed in the Office of the Attorney General, which is the office of a memberofthe California State Bar, at which member's direction this service is made. I am 18 years of age or older and not a party to this matter. I am familiar with the business practice at the Office of the Attorney Generalfor collection and processing of correspondence for mailing with the United States Postal Service. In accordance with that practice, correspondenceplaced in the internal mail collection system at the Office of the Attorney General is deposited with the United States Postal Service with postage thereon fully prepaid that same dayin the ordinary course of business. On December22, 2017, I served the attached SUPPLEMENTALBRIEFbyplacing a true copy thereof enclosed ina sealed envelopein the internal mail collection system at the Office of the Attorney General at 455 Golden Gate Avenue, Suite 11000, San Francisco, CA 94102-7004, addressed as follows: J. Bradley O'Connell First District Appellate Project 475 Fourteenth Street, Suite 650 Oakland, CA 94612 The Honorable George Gascon District Attorney San Francisco County District Attorney's Office Hall of Justice 850 Bryant Street, Room 325 San Francisco, CA 94103 Kathryn Seligman Staff Attorney First District Appellate Project 730 Harrison Street, Suite 201 San Francisco, CA 94107 Rachelle Barbour Assistant Federal Defender Federal Defender's Office 801 "I" Street, 3rd Floor Sacramento, CA 95814 First Appellate District Division Two Court of Appeal of the State of California 350 McAllister Street San Francisco, CA 94102 County of San Francisco Hall of Justice Superior Court of California 850 Bryant Street San Francisco, CA 94103 Michael T. Risher, Esq. ACLU Foundation of Northern California, Inc. 39 Drumm Street San Francisco, CA 94111 Amicus Curiaefor Appellant Joseph R. Grodin University of California Hastings College of the Law 200 McAllister Street San Francisco, CA 94102 Amicus Curiae for Appellant Jennifer Ann Lynch Electronic Frontier Foundation 815 Eddy Street San Francisco, CA 94109 Amicus Curiae for Appellant Tze Lee Tien Electronic Frontier Foundation 815 Eddy Street | San Francisco, CA 94109 Amicus Curiae for Appellant Mark Louis Zahner California District Attorney Association 921 11th Street, Suite 300 Sacramento, CA 95814 Amicus Curiae for Respondent Ronald F. Remmel Attorney at Law P.O. Box 1059 Mountain View, CA 94042 Amicus Curiaefor Respondent Eric Andrew Herzog Norton Rose Fulbright US LLP 555 South Flower Street Forty-First Floor Los Angeles, CA 90071 Amicus Curiae for Respondent Martin J. Mayer Jones & Mayer 3777 N. Harbor Boulevard Fullerton, CA 92835 Amicus Curiae for Respondent Camille Ann Hill Orange County District Attorney’s Office P.O. Box 808 Santa Ana, CA 92702 Amicus Curiae for Respondent Jonathan S. Franklin, Esq. Fulbright & Jaworski LLP 801 Pennsylvania Avenue N.W. Washington, DC 20004 Amicus Curiae for Respondent Roberta T. Schwartz Office of the District Attorney/Appellate Division 320 W. Temple Street, Suite 540 Los Angeles, CA 90012 Amicus Curiaefor Respondent I declare under penalty of perjury under the laws of the State of California the foregoingis true and correct andthat this declaration was executed on December 22, 2017, at San Francisco, California. Ryan Carter Declarant SF2015400268 21058862.docx LF f Signature
