Ct.App. 3 C044703 Sacramento County Super. Ct. No. 00F06871, Judge: Peter N. Mering*fn1
The opinion of the court was delivered by: Chin, J.
A jury convicted defendant Paul Eugene Robinson of five felony sexual offenses, all perpetrated against Deborah L. on August 25, 1994. Each was punishable by imprisonment in state prison for a maximum of eight years. Therefore, the prosecution had to commence "within six years after commission of the offense[s]" to satisfy the applicable statute of limitations. (Pen. Code, § 800.)*fn2
Once the statute of limitations for an offense expires without the commencement of prosecution, prosecution for that offense is forever time-barred. (Stogner v. California (2003) 539 U.S. 607, 615-616.)*fn3
As relevant here, a prosecution for an offense commences when an arrest warrant is issued and "names or describes the defendant with the same degree of particularity required for [a] complaint." (§ 804, subd. (d), italics added.)*fn4 The charging and arrest provisions permit the use of a fictitious name. (§§ 959, par. (4), 815.) However, "[i]f a fictitious name is used the warrant should also contain sufficient descriptive material to indicate with reasonable particularity the identification of the person whose arrest is ordered [citation]." (People v. Montoya (1967) 255 Cal.App.2d 137, 143, fn. omitted (Montoya), relying on West v. Cabell (1894) 153 U.S. 78 (Cabell); see Cal. Const., art. I, § 13 [a warrant may issue only on probable cause "particularly describing" the persons or things to be seized].)
In this case, on August 21, 2000,*fn5 four days before the statute of limitations would have expired, the Sacramento County District Attorney filed a felony complaint against "John Doe, unknown male," describing him by his unique 13-loci deoxyribonucleic acid (DNA) profile. The next day, a John Doe arrest warrant issued, incorporating by reference the same DNA profile. On September 15, defendant was arrested based on an amended warrant that included his name. It was subsequently discovered that defendant's DNA profile in the state's DNA database, which linked defendant to the crimes committed against Deborah L., had been generated from blood mistakenly collected from defendant by local and state agencies in administering the DNA and Forensic Identification Data Base and Data Bank Act of 1998, as enacted (the Act). (§ 295 et seq.)
We granted review to decide (1) whether the issuance of a "John Doe" complaint or arrest warrant may timely commence a criminal action and thereby satisfy section 800's limitation period*fn6 ; (2) whether an unknown suspect's DNA profile satisfies the "particularity" requirement for an arrest warrant; and (3) what remedy exists, if any, for the unlawful collection of genetic material under the 1998 version of the Act.*fn7
For the reasons stated below, we conclude that, in cases in which the warrant identifies the perpetrator by his or her unique DNA profile only, the statute of limitations is satisfied if the prosecution is commenced by the filing of the "John Doe" arrest warrant within the limitations period.*fn8 In reaching this conclusion, we find that an unknown suspect's unique DNA profile satisfies the "particularity" requirement for an arrest warrant. (§ 804, subd. (d).) Although defendant's blood was mistakenly collected under the Act, we conclude that the law enforcement personnel errors in this case do not trigger the exclusionary rule. Accordingly, we affirm the Court of Appeal's judgment.
I. FACTUAL AND PROCEDURAL BACKGROUND
On August 25, 1994, 24-year-old Deborah L. awoke to find a male adult stranger standing in her bedroom doorway wearing gloves and holding a knife. He told Deborah to be quiet and that he was there "to get some pussy." When she screamed, he called her a "white bitch" and threatened to kill her if she did not shut up. Based on his distinctive voice, his skin color, and his silhouette, Deborah thought the man was African-American.*fn9
The man climbed on top of Deborah and held the knife to her chest; she cut her hand when she instinctively grabbed at the knife. The man directed Deborah to cover her face with a pillow. He then fondled her breasts, placed his mouth on her vagina, inserted his fingers in her vagina and rectum, and raped her. After losing and regaining an erection, he raped her a second time; this time he withdrew his penis, ejaculated on her legs, and rubbed his semen on her stomach. As the man dressed, he said he would kill Deborah if she looked at him. Once he was gone, she called 911.*fn10
Police officers promptly took Deborah to a medical facility where a rape kit was prepared, vaginal swabs were collected, and her cut hand was stitched. The physician assistant who collected the vaginal swabs saw sperm on them. Jill Spriggs, an assistant criminal laboratory director for the California Department of Justice (Department), also found semen present on a swab collected from Deborah's vagina. In early August of 2000, Ms. Spriggs assayed that sperm to generate a genetic profile of the unknown male suspect as determined by the presence or absence of markers at 13 distinct DNA loci. Ms. Spriggs then used statistics to estimate, with respect to three racial groups, the probability that more than one person would harbor that same series of markers.
The parties stipulated that, prior to September 2000, defendant's blood had been collected, his DNA was profiled at 13 loci, and his profile had been entered into the Department's offender database. A Department of Justice criminalist testified the database is kept in the hope of matching DNA samples from unsolved crimes with known profiles, and that such a match is called a "cold hit."
Four days before the six-year statute of limitations would have expired, a felony complaint was filed against "John Doe, unknown male," describing him by his 13-loci DNA profile. The next day, the trial court found probable cause in the complaint, and an arrest warrant issued for "John Doe," incorporating by reference that DNA profile. As relevant here, "John Doe" was identified as an "unknown male with Short Tandem Repeat (STR) Deoxyribonucleic Acid (DNA) Profile at the following Genetic Locations, using the Cofiler and Profiler Plus Polymerase Chain Reaction (PCR) amplification kits: D3S1358 (15, 15), D16S539 (9, 10), THO1 (7, 7), TPOX (6, 9), CSF1PO (10, 11), D7S820 (8, 11), vWa (18, 19), FGA (22, 24), D8S1179 (12, 15), D21S11 (28, 28), D18S51 (20, 20), D5S818 (8, 13), D13S317 (10, 11), with said Genetic Profile being unique, occurring in approximately 1 in 21 sextillion of the Caucasian population, 1 in 650 quadrillion of the African American population, 1 in 420 sextillion of the Hispanic population."
In September, a criminalist who searched the Department's offender database using the DNA profile Ms. Spriggs had developed in the Deborah L. case generated a "cold hit" match between the 13-loci DNA profile in the John Doe arrest warrant and defendant Robinson's profile in the state's DNA database. Based on the match, an amended arrest warrant with Robinson's name issued; it was executed on September 15.
After defendant's arrest on September 15, his blood was collected, and Ms. Spriggs conducted an independent DNA analysis using that new blood sample. Comparing defendant's DNA profile from that blood with the DNA profile obtained earlier from the evidentiary semen from the vaginal swab, Ms. Spriggs found the two profiles matched "at all 13 loci." Based on her statistical calculations made to determine the frequency of a genetic profile in a random unrelated population, Ms. Spriggs testified that she estimated that the probability that two people would share identical DNA patterns at each of the 13 loci tested is one in 650 quadrillion (650 followed by 15 zeros) in the African- American population, one in six sextillion (6 followed by 21 zeros) in the Caucasian population, and one in 33 sextillion (33 followed by 21 zeros) in the Hispanic population.*fn11 Ms. Spriggs testified that there had been no reported cases of two people who are not identical twins matching at all 13 loci.
Defendant was found guilty of one count of forcible oral copulation (§ 288a, subd. (c)(2)),*fn12 two counts of forcible sexual penetration by a foreign object (§ 289, subd. (a)(1)), and two counts of forcible rape (§ 261, subd. (a)(2)). The jury also found true allegations that defendant used and was armed with a deadly and dangerous weapon during all five counts. (Former §§ 12022, subd. (b)(1), as amended by Stats. 1999, ch. 129, 12022.3, subds. (a), (b), as amended by Stats. 1997, ch. 109.)*fn13 The trial court sentenced defendant to 65 years in state prison. The Court of Appeal affirmed the judgment. We granted review limited to the issues set forth above.
A. Applicability of the Federal Exclusionary Rule to Unlawful Collection of Defendant's Genetic Material Under the Act
The parties agree defendant's March 2, 1999 blood sample was collected in violation of the Act as it was originally enacted. Defendant contends the federal exclusionary rule is the appropriate "remedy to apply to the police personnel errors that occurred in this case." We disagree.
The Act became effective January 1, 1999. (Stats. 1998, ch. 696, § 4.)*fn14 It created a data bank to assist "criminal justice and law enforcement agencies within and outside California in the expeditious detection and prosecution of individuals responsible for sex offenses and other violent crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children."
In 1999, the Act required, in relevant part, that any person convicted of a specified crime, referred to as a "qualifying offense" (former § 295, subd. (e)), had to provide, among other samples and impressions, "two specimens of blood" for "law enforcement identification analysis." (Former § 296, subd. (a)(1).) The Department's DNA Laboratory was given responsibility for implementing the Act and managing and administering the state's DNA database and data bank identification program. (Former § 295, subds. (d) & (e).) In part, the Act required the Department to "perform DNA analysis" of the collected specimens, to save the biological samples, and "store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records." (Former § 295.1, subds. (a), (c).)
The Act gave state and local law enforcement and correctional officials responsibility for collecting the biological samples and impressions from qualified offenders. (Former §§ 295, subd. (f)(1), 295.1., subds. (a) & (d), 296.1, subd. (a).) As enacted, it required that collection of those specimens be done "as soon as administratively practicable," regardless of the place of confinement. (Former § 296, subd. (b).)
Subdivision (a)(1) of former section 296 listed as offenders subject to collection of specimens, samples, and print impressions "[a]ny person who is convicted of, or pleads guilty or no contest to, any of the following crimes, . . . regardless of sentence imposed or disposition rendered . . . ." Among the listed offenses was felony spousal abuse (§ 273.5) and felony assault or battery (§ 245). (Former § 296, subd. (a)(1)(D) & (F).) Others subject to the collection requirements included "[a]ny person . . . who is convicted of a felony offense of assault or battery in violation of Section . . . 245 . . . , and who is committed to . . . any institution under the jurisdiction of the Department of the Youth Authority where he or she was confined . . . ." (Former § 296, subd. (a)(2).)*fn15 The Act provided that "[a] person whose DNA profile has been included in the data bank pursuant to this chapter shall have his or her information and materials expunged from the data bank when . . . the defendant has been found not guilty . . . of the underlying offense." (Former § 299, subd. (a).)
3. Relevant Factual Background
At the time the March 2, 1999 blood sample was collected and when that sample was entered into the state data bank, law enforcement personnel mistakenly believed defendant had been convicted of a "qualifying" offense under the Act.
The Act was enacted while defendant was in custody at Rio Cosumnes Correctional Center (the Center) serving his sentence for two misdemeanor convictions and awaiting transfer to state prison based on a parole revocation with regard to a prior conviction for felony first degree burglary for which defendant had served a term of imprisonment.*fn16 Soon after the Act went into effect, an unknown person in the Center's records department completed a DNA testing requirement form in which defendant was mistakenly identified as a prisoner with a qualifying offense based on his 1994 conviction for spousal abuse.*fn17 As a result of that mistake, a sample of defendant's blood was drawn on March 2, 1999.
The March 2, 1999 blood sample was submitted to the Department's laboratory database section where it underwent a Department-initiated, non-statutory, verification process to confirm a prisoner's qualified offender status. In July 1999, during that verification process, a Department employee noticed that defendant's conviction for spousal abuse was a non-qualifying misdemeanor. That employee then mistakenly determined that defendant had a qualifying prior juvenile adjudication for assault with a deadly weapon (§ 245).*fn18 As a result of that mistake, the March 2, 1999 blood sample was deemed to be qualified for inclusion in the state database.
Defendant filed a section 1538.5 motion to suppress the March 2, 1999 blood sample and the resulting DNA test evidence. The motion was denied. We include a summary of testimony presented at the suppression hearing in our discussion regarding whether the federal exclusionary rule applies to the law enforcement conduct that led to the mistaken collection of the March 2, 1999 blood sample and its inclusion in the database.
4. Remedy for Unlawful Collection of Genetic Material under the Act
Defendant contends the DNA test evidence admitted at trial should have been excluded because its collection was not authorized in 1999. "Pursuant to article I, section 28, of the California Constitution, a trial court may exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal Constitution." (People v. Banks (1993) 6 Cal.4th 926, 934.) Our Constitution thus prohibits employing an exclusionary rule that is more expansive than that articulated by the United States Supreme Court. (People v. Crittenden (1994) 9 Cal.4th 83, 129.) For the reasons stated below, we conclude the nonconsensual extraction of defendant's blood for the March 2, 1999 sample, although a state statutory violation under the 1999 version of the Act, did not violate the Fourth Amendment. However, even assuming that the nonconsensual extraction of defendant's blood on March 2, 1999 did violate the Fourth Amendment, the law enforcement personnel errors that led to the mistaken collection of that March 2, 1999 blood sample would not have triggered the federal exclusionary rule. Accordingly, exclusion of the evidence obtained from that sample is not an available remedy for defendant.
Invasions of the body, including nonconsensual extractions of an incarcerated felon's blood for DNA profiling, are searches entitled to the protections of the Fourth Amendment. (Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 616-617.) "As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a government search is `reasonableness.' " (Vernonia School Dist. 47j v. Acton (1995) 515 U.S. 646, 652.)
"Reasonableness " `is measured in objective terms by examining the totality of the circumstances" (Ohio v. Robinette (1996) 519 U.S. 33, 39), and "whether a particular search meets the reasonableness standard ` "is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." ' " (Vernonia School Dist. 47j v. Acton, supra, 515 U.S at pp. 652-653; see also Samson v. California (2006) 547 U.S. 843, 848 (Samson).)
The United States Supreme Court has explained that an intrusion caused by a blood test is not significant because such tests are " `commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.' " (Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at p. 625.) Moreover, "convicted criminals do not enjoy the same expectation of privacy that nonconvicts" have (People v. Adams (2004) 115 Cal.App.4th 243, 258) with respect to their identities and their bodies. (Hudson v. Palmer (1984) 468 U.S. 517, 530; Bell v. Wolfish (1979) 441 U.S. 520, 558; People v. King (2000) 82 Cal.App.4th 1363, 1374-1375 (King).) "That the gathering of DNA information requires the drawing of blood rather than inking and rolling a person's fingerprints does not elevate the intrusion upon the [defendant's] Fourth Amendment interests to a level beyond minimal." (Rise v. Oregon (9th Cir. 1995) 59 F.3d 1556, 1560, fn. omitted; see also Nicholas v. Goord (2d. Cir. 2005) 430 F.3d 652, 669 ["In the prison context, where inmates are routinely subject to medical procedures, including blood draws, and where their expectation of bodily privacy, while intact, is diminished [citation], the intrusiveness of a blood draw is even further minimized." (Fn. omitted.)]; U. S. v. Kincade (9th Cir. 2004) 379 F.3d 813, 837 (Kincade).) Accordingly, courts repeatedly have upheld our state Act and the similar federal act, the DNA Analysis Backlog Elimination Act of 2000 (Pub. L. No. 106-546 (Dec. 12, 2000) 114 Stat. 2726) for qualified offenders as a reasonable law enforcement tool for solving crimes. (Kincade, supra, 379 F.3d at p. 836; see also People v. Adams, supra, 115 Cal.App.4th at pp. 255-259; Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505 (Alfaro.)
With regard to any privacy interest in identifying information, it is established that individuals in lawful custody cannot claim privacy in their identification. "Though, like fingerprinting, collection of a DNA sample for purposes of identification implicates the Fourth Amendment, persons incarcerated after conviction retain no constitutional privacy interest against their correct identification." (Groceman v. U.S. Dep't of Justice (5th Cir. 2004) 354 F.3d 411, 413- 414.) In Kincade, the court explained that "the DNA profile derived from the defendant's blood sample establishes only a record of the defendant's identity - otherwise personal information in which the qualified offender can claim no right of privacy once lawfully convicted of a qualifying offense (indeed, once lawfully arrested and booked into state custody). For, as we recognized in Rise, `[o]nce a person is convicted of one of the felonies included as predicate offenses under [the Act], his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling.' 59 F.3d 1560; see also Groceman [, supra,] 354 F.3d 413-14; Jones [v. Murray (4th Cir. 1992)] 962 F.2d [302,] 306-307." (Kincade, supra, 379 F.3d at p. 837.)
In response to challenges to the amendment that authorized collection in California from all adult felons, several state appellate courts have concluded that "the extraction of biological samples from an adult felon is not an unreasonable search and seizure within the meaning of the Fourth Amendment." (In re Calvin S. (2007) 150 Cal.App.4th 443, 447; see also People v. Travis (2006) 139 Cal.App.4th 1271, 1281-1290; People v. Johnson (2006) 139 Cal.App.4th 1135, 1168; Alfaro, supra, 98 Cal.App.4th at pp. 505-506; King, supra, 82 Cal.App.4th at pp. 1371- 1378.) We agree with our state appellate courts that "the nonconsensual extraction of biological samples for identification purposes does implicate federal constitutional interests" (Alfaro, supra, 98 Cal.App.4th at p. 505), but that such nonconsensual extraction of biological samples from adult felons is reasonable because "those convicted of serious crimes have a diminished expectation of privacy and the intrusions authorized by the Act are minimal" while "the Act serves compelling governmental interests," including " `the overwhelming public interest in prosecuting crimes accurately.' [Citation.] A minimally intrusive methodology that can serve to avoid erroneous convictions and to bring to light and rectify erroneous convictions that have occurred manifestly serves a compelling state interest." (Id. at p. 506; see also In re Calvin S., supra, 150 Cal.App.4th at p. 449 [nonconsensual extraction of biological samples from juveniles conducted pursuant to section 296 is not unreasonable within the meaning of the Fourth Amendment].)*fn19
The fact that defendant Robinson's blood was collected in violation of our state law at the time does not alter our Fourth Amendment analysis. That law was more restrictive than the Fourth Amendment and, for Fourth Amendment purposes, it is not dispositive that a search and seizure was not permissible under state law. The United States Supreme Court has held that, as far as the federal Constitution is concerned, "whether state law authorized the search [is] irrelevant." (Virginia v. Moore (2008) 553 U.S. 164, __ [128 S.Ct. 1598, 1604] (Moore); accord, Whren v. United States (1996) 517 U.S. 806; California v. Greenwood (1988) 486 U.S. 35, 43-44; Cooper v. California (1967) 386 U.S. 58.) The Supreme Court explained that the Fourth Amendment is not historically understood "as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted" (Moore, supra, 553 U.S. at p. __ [128 S.Ct. at p. 1602]), and that its meaning does not change "with local law enforcement practices," which " `vary from place to place and from time to time.' " (Id. at p. __ [128 S.Ct. at p. 1605].) While states remain "free `to impose higher standards on searches and seizures than required by the federal Constitution' " (id. at p. __ [128 S.Ct. at p. 1604]), a state's "choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional." (Id. at p. __ [128 S.Ct. at p. 1606].) With regard to the issue presented in Moore, the court held that "warrantless arrests for crimes committed in the presence of an arresting officer are reasonable under the Constitution, and that while States are free to regulate such arrests however they desire, state restrictions do not alter the Fourth Amendment's protections." (Id. at p. __ [128 S.Ct. at p. 1607]; see also Samson, supra, 547 U.S. at p. 855 [holding the Fourth Amendment does not prohibit a police officer from conducting a search of a parolee without any suspicion of that parolee while finding "of little relevance" the fact that some states and the federal government require a level of individualized suspicion before searching a parolee].)
The reasoning in Moore and Samson applies here, where virtually every court to consider the constitutionality of a DNA statute has upheld it against a Fourth Amendment challenge, but the list of qualifying or predicate offenses has varied from state to state over time. (Moore, supra, 553U.S. at p. __ [128 S.Ct. at p. 1605].) For example, Virginia collected DNA under its statute from all felons as early as 1990. (Jones v. Murray (4th Cir. 1992) 962 F.2d 302, 304.) Wisconsin allowed collection for a limited number of offenses in 1993, but amended its statute in 1999 to require collection from all felons. (Green v. Berge (7th Cir. 2004) 354 F.3d 675, 676.) Significantly, our state statute's initially restricted list of qualifying offenses was regularly expanded and now authorizes the nonconsensual extraction of biological samples from all adult felons. (Current § 296, subd. (a)(1).) These interstate statutory differences do not control the meaning of the Fourth Amendment, which does not depend on the differing and evolving DNA collection laws of particular states at particular times. Instead, the question remains the same, namely, whether, under all the circumstances, the nonconsensual collection of DNA from a convicted felon is reasonable as " ` "judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests." ' " (Vernonia School Dist. 47j v. Acton, supra, 515 U.S. at pp. 652-653.) We agree with those courts that have answered that question in the affirmative.*fn20
Having decided that a lawfully convicted and incarcerated felon, such as defendant, does not have a Fourth Amendment right to prevent state authorities from collecting a blood sample for DNA profiling, we conclude that the March 2, 1999 blood sample and the DNA test evidence obtained as a result of that sample were properly admitted into evidence at defendant's trial.
However, even assuming, without deciding, that the state statutory violation that led to the nonconsensual extraction of defendant's blood for the March 2, 1999 blood sample constituted a Fourth Amendment violation, application of the federal exclusionary rule would not be appropriate for such a violation. (See Hudson v. Michigan (2006) 547 U.S. 586, 590, 602 (Hudson) ...