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People v. Buza

Supreme Court of California

April 2, 2018

THE PEOPLE, Plaintiff and Respondent,
v.
MARK BUZA, Defendant and Appellant.

          San Francisco County Super. Ct. No. SCN 207818, Ct.App. 1/2 A125542 Carol Yaggy Judge

          J. Bradley O'Connell and Kathryn Seligman, under appointments by the Supreme Court; and Janice Wellborn, under appointment by the Court of Appeal, for Defendant and Appellant.

          Michael T. Risher; Joseph R. Grodin; Paul Hastings, Peter C. Meier, Eric A. Long and Jamie L. Williams for American Civil Liberties Union Foundation of Northern California as Amicus Curiae on behalf of Defendant and Appellant.

          Hanni Fakhoury, Jennifer Lynch and Lee Tien for Electronic Frontier Foundation as Amicus Curiae on behalf of Defendant and Appellant.

          Linda F. Robertson and Jennifer Friedman for California Public Defenders Association, California Attorneys for Criminal Justice and Los Angeles County Public Defender as Amici Curiae on behalf of Defendant and Appellant.

          Daniel J. Broderick, David Porter and Rachelle D. Barbour for Federal Public Defender of the Eastern District of California and National Association of Criminal Defense Lawyers as Amici Curiae on behalf of Defendant and Appellant.

          Edmund G. Brown Jr., Kamala D. Harris and Xavier Becerra, Attorneys General, Edward C. DuMont, State Solicitor General, Dane R. Gillette and Gerald A. Engler, Chief Assistant Attorneys General, Jeffrey M. Laurence, Assistant Attorney General, Steven T. Oetting and Michael J. Mongan, Deputy State Solicitors General, Max Carter-Oberstone, Associate Deputy State Solicitor General, Joyce Blair, Stan Helfman and Enid A Camps, Deputy Attorneys General, for Plaintiff and Respondent.

          Fulbright & Jarowski, Norton Rose Fulbright US, Eric A. Herzog, Tillman James Breckenridge and Jonathan S. Franklin for DNA Saves as Amicus Curiae on behalf of Plaintiff and Respondent.

          Steve Cooley and Jackie Lacey, District Attorneys (Los Angeles), Irene Wakabayashi, Steven Katz, Phyllis C. Asayama and Roberta Schwartz, Deputy District Attorneys, for Los Angeles County District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.

          Jan Scully, District Attorney (Sacramento), Anne Marie Schubert, Deputy District Attorney; W. Scott Thorpe, Mark Zahner and Albert C. Locher for California District Attorneys Association as Amicus Curiae on behalf of Plaintiff and Respondent.

          Jones & Mayer, Martin J. Mayer, James Touchstone and Deborah Pernice-Knefel for California State Sheriffs' Association, California Police Chiefs' Association and California Peace Officers' Association as Amici Curiae on behalf of Plaintiff and Respondent.

          Hill Wallack, Christopher H. Asplen; Newton Rimmel and Ronald F. Rimmel for Global Alliance for Rapid DNA Testing as Amicus Curiae on behalf of Plaintiff and Respondent.

          Tony Rackauckas, District Attorney (Orange), Jim Tanizaki and Camille Hill, Assistant District Attorneys, Scott G. Scoville, Tammy Sprugeon, Andrew E. Katz, Katherine David and Nancy Hayashida, Deputy District Attorneys, for Orange County District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.

          KRUGER, J.

         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 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. (Pen. Code, § 296.1, subd. (a)(1)(A).)

         Defendant Mark Buza was arrested for arson and related felonies and transported to jail. At booking, a jail official informed defendant that he was required to provide a DNA sample by swabbing the inside of his cheek. He refused. A jury later convicted him of both the arson-related felonies and the misdemeanor offense of refusing to provide a specimen required by the DNA Act. (Pen. Code, § 298.1, subd. (a).)

         SEE DISSENTING OPINIONS

         The Court of Appeal reversed defendant's misdemeanor refusal conviction, holding that the DNA Act violated defendant's rights under the Fourth Amendment to the United States Constitution. While the case was pending on appeal, the United States Supreme Court addressed a similar issue in Maryland v. King (2013) 569 U.S. 435 (King), and reached a different conclusion. The high court held that "[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. 465-466.)

         Following the high court's decision in King, this case returned to the Court of Appeal. On remand, the Court of Appeal again reversed defendant's misdemeanor refusal conviction, this time on the ground that the DNA Act violates the California Constitution's prohibition on unreasonable searches and seizures. (Cal. Const., art. I, § 13.)

         Defendant raises a number of questions about the constitutionality of the DNA Act as it applies to various classes of felony arrestees. But the question before us is a narrower one: Whether the statute's DNA collection requirement is valid as applied to an individual who, like defendant, was validly arrested on "probable cause to hold for a serious offense"-here, the felony arson charge for which defendant was ultimately convicted-and who was required to swab his cheek as "part of a routine booking procedure" at county jail. (King, supra, 569 U.S. at p. 465.) Under the circumstances before us, we conclude the requirement is valid under both the federal and state Constitutions, and we express no view on the constitutionality of the DNA Act as it applies to other classes of arrestees. We accordingly reverse the judgment of the Court of Appeal in this case.

         I.

         A.

         For decades before the DNA Act, California law had required the collection of biological samples from individuals convicted of certain offenses. In 1983, the Legislature enacted legislation requiring certain sex offenders to provide blood and saliva samples before their release or discharge. (Stats. 1983, ch. 700, § 1, pp. 2680-2681, codified at Pen. Code, former § 290.2.) In 1998, the Legislature enacted the "DNA and Forensic Identification Data Base and Data Bank Act, " which required the collection of DNA samples from persons convicted of certain felony offenses, including certain sex offenses, homicide offenses, kidnapping, and felony assault or battery. (Stats. 1998, ch. 696, § 2, pp. 4574-4579; Pen. Code, former § 296, subd. (a).)

         When the California electorate voted to pass Proposition 69 on the 2004 general election ballot, it substantially expanded the scope of DNA sampling to include individuals who are arrested for any felony offense, as well as those who have been convicted of such an offense. In People v. Robinson (2010) 7 Cal.4th 1104');">47 Cal.4th 1104 (Robinson), this court upheld the expanded DNA collection requirement as applied to persons convicted of felony offenses. The question now before us concerns the application of the DNA Act to persons who have been arrested for, but not yet convicted of, a felony offense.

         In its statutory findings and declarations of purpose, Proposition 69 explained that expansion of the DNA databank program was warranted to serve a "critical and urgent need to provide law enforcement officers and agencies with the latest scientific technology available for accurately and expeditiously identifying, apprehending, arresting, and convicting criminal offenders and exonerating persons wrongly suspected or accused of crime." (Prop. 69, supra, § II, subd. (b).) With respect to arrestees in particular, Proposition 69 declared: "The 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." (Id., § II, subds. (e), (f).)

         The DNA Act provides that, as of January 1, 2009, 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." (Pen. Code, § 296, subd. (a).) Providing a buccal swab sample requires the arrestee to apply a swab to the inside of his or her cheek to collect the "inner cheek cells of the mouth, " which contain DNA. (Id., § 295, subd. (e).) The statute provides that these specimens, samples, and print impressions shall be collected "immediately following arrest, or during the booking . . . process or as soon as administratively practicable . . . but, in any case, prior to release on bail or pending trial or any physical release from confinement or custody." (Id., § 296.1, subd. (a)(1)(A).) Refusal to provide any of the required specimens is punishable as a misdemeanor. (Id., § 298.1, subd. (a).)

         Collected DNA samples are sent to California Department of Justice's DNA Laboratory for forensic analysis. (Pen. Code, §§ 295, subds. (f), (g), (i)(1)(C), 295.1, subd. (c).) 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. (See King, supra, 569 U.S. at pp. 442-443, 445.) 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. (See ibid.; Pen. Code, § 299.6, subd. (b); Cal. Dept. of Justice (DOJ), Bureau of Forensic Services (BFS), Laboratory Services, DNA Analysis, <https://oag.ca.gov/bfs/services> [as of Apr. 2, 2018].) DNA profiles stored by the DNA Laboratory may be accessed by law enforcement agencies. (Pen. Code, § 299.5, subd. (f).) 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. (Id., § 295.1, subd. (c).)

         Information obtained from an arrestee's DNA is confidential and may not be disclosed to the public. (Pen. Code, § 299.5.) 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." (Id., § 295.2.) 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. (Id., § 299.5, subd. (i)(1).) The Department of Justice is also subject to civil damages for knowing misuse of a sample or profile by any of its employees. (Id., § 299.5, subd. (i)(2)(A).)

         The DNA Act provides that if an arrestee is cleared of charges and there is no other basis for keeping the information, the arrestee "shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the databank program." (Pen. Code, § 299, subd. (a).) An arrestee may request expungement if he or she is released without being charged, if all qualifying charges against the arrestee are dismissed, or if the arrestee is found not guilty or factually innocent of all qualifying charges. (Id., § 299, subd. (b).) The federal legislation establishing CODIS likewise requires participating states to "promptly expunge" the DNA profile of any person who is cleared of qualifying charges. (34 U.S.C. § 12592(d)(2)(A).)

         The DNA Act includes a broad severability provision. The provision specifies that the invalidity of certain provisions or their application "shall not affect other provisions or applications that can be given effect without the invalid provision or application." (Prop. 69, supra, § V, subd. (b).)

         B.

         On the afternoon of January 21, 2009, a San Francisco police officer saw defendant running away from a police car that had burning tires. Police found defendant hiding nearby and searched him. Matches were found in defendant's pocket, a container of oil was found in his backpack, and a road flare and a bottle containing a liquid that smelled like gasoline were discovered in the area where he had been hiding.

         Defendant was arrested and taken to county jail. There, several hours after the initial arrest, a San Francisco sheriff's deputy asked defendant to swab the inside of his cheek for purposes of providing a sample of his DNA. The deputy told defendant he was required by law to provide the sample, asked defendant to read a form that described the pertinent requirements, and warned defendant that refusing to provide a DNA sample was a misdemeanor. Defendant refused.

         On January 22, 2009, a judge of the Superior Court found probable cause to believe that defendant committed a public offense for which he could be detained, namely, felony arson in violation of Penal Code section 451, subdivision (d). The next day, the district attorney filed a felony complaint charging defendant with that offense, as well as possession of combustible material or incendiary device (id., § 453, subd. (a)), and vandalism (id., § 594, subd. (b)(1)). The complaint also charged defendant with misdemeanor refusal to provide a DNA specimen (id., § 298.1, subd. (a)). Defendant was arraigned on the same day and pleaded not guilty to the charges.

         Approximately three months later, defendant was tried before a jury. Defendant moved for judgment of acquittal on the misdemeanor refusal charge, arguing that the Fourth Amendment did not permit the state to compel arrestees to furnish DNA samples. The court denied the motion. At trial, defendant admitted to setting the police car on fire; he testified that while he regarded setting the fires as a justified protest against government overreach, he knew his act was regarded as illegal. Defendant also admitted to refusing to provide a DNA sample in accordance with Penal Code section 298.1. The jury convicted defendant of all charges.

         The trial court ordered defendant to provide a DNA sample before he was sentenced, and when defendant initially refused to comply with the order, the court authorized the Sheriff's Department to use reasonable force to obtain the sample. Defendant then furnished a DNA sample. The court sentenced defendant to a prison term of 16 months on the arson charge, imposed concurrent sentences on the charges of possession of combustible material and misdemeanor refusal to provide a DNA specimen, and stayed the sentence on the vandalism charge under Penal Code section 654.

         On appeal, the Court of Appeal reversed defendant's conviction for refusing to provide a DNA sample. The court held that "the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution."

         We granted review. While the case was still pending, the United States Supreme Court issued its decision in King, supra, which upheld a similar DNA collection requirement against Fourth Amendment challenge. Following King, we transferred this case to the Court of Appeal for reconsideration.

         The Court of Appeal again reversed defendant's conviction. Although the court observed that California's DNA collection law is broader than the Maryland law at issue in King, the court declined to decide whether the differences between the California law and the Maryland law change the Fourth Amendment calculus under King. The Court of Appeal instead rested its decision on the prohibition on unreasonable searches and seizures in article I, section 13 of the California Constitution. In language closely paralleling its initial decision, the court held that "the DNA Act, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees' expectation of privacy and is invalid under article I, section 13, of the Constitution."

         In the wake of King, other California Courts of Appeal have addressed the constitutionality of the DNA Act in the context of reviewing decisions regarding the suppression of evidence derived from DNA samples collected from felony arrestees. Those courts have concluded that, under King's reasoning, the collection and testing of arrestee DNA samples under the DNA Act does not violate the Fourth Amendment.

         We granted review to decide whether the collection and analysis of forensic identification DNA database samples from felony arrestees, as required by Proposition 69, violates either article I, section 13 of the California Constitution or the Fourth Amendment to the United States Constitution.[1]

         II.

         The Fourth Amendment to the United States Constitution provides, in pertinent part: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." Article I, section 13 of the California Constitution provides, in essentially identical language: "The right of the people to be secure in their persons, houses, papers, and effects against unreasonable seizures and searches may not be violated."

         As the constitutional language itself makes plain, the "touchstone for all issues" under both provisions is "reasonableness." (Ingersoll v. Palmer (1987) 43 Cal.3d 1321, 1329; accord, e.g., Riley v. California (2014) 573 U.S. ___, ___ [134 S.Ct. 2473');">134 S.Ct. 2473, 2482].) The question before us is whether it was unreasonable within the meaning of one or both of these provisions to require defendant to use a cheek swab to provide a DNA sample to jail officials as part of the booking process following his arrest for arson. If so, defendant cannot be penalized for failure to comply, and his misdemeanor refusal conviction must be reversed. If, on the other hand, the requirement was reasonable, then defendant's conviction stands. (See Birchfield v. North Dakota (2016) 579 U.S. ___, ___ - ___ [136 S.Ct. 2160');">136 S.Ct. 2160, 2172- 2173].)

         The United States Supreme Court's decision in King, which was issued while this appeal was pending, has significantly altered the terms of the debate. After King, defendant no longer argues, as he had argued in the courts below, that the Fourth Amendment categorically forbids the mandatory collection of DNA from persons who have been arrested but not yet convicted of felony offenses. Defendant argues instead that King should be either distinguished on its facts or rejected as a matter of state constitutional law. Because both arguments require us to consider the import of the United States Supreme Court's decision in King, we will begin there.

         A.

         King came to the high court against the backdrop of increasingly widespread use of DNA technology in criminal justice systems nationwide. As the court observed, all 50 states and the federal government require the collection of DNA samples from individuals who are convicted of felony offenses. In recent years, a majority of states and the federal government have also authorized the collection of DNA from some or all persons arrested for felony offenses. (King, supra, 569 U.S. at p. 445.) Although courts had generally approved the collection of DNA samples following conviction, the permissibility of this expansion of DNA sampling proved more controversial. The high court granted review in King to resolve a conflict among federal and state courts "as to whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges." (Id. at p. 442.)

         The specific question before the court concerned the application of a Maryland law that authorized law enforcement authorities to collect DNA samples from an individual charged with certain statutorily defined "crime[s] of violence, " including murder, rape, first degree assault, kidnapping, arson, and sexual assault, as well as burglary and an attempt to commit one of these enumerated crimes. (King, supra, 569 U.S. at p. 443.) The defendant in King had been arrested and charged with one such offense, "first- and second-degree assault for menacing a group of people with a shotgun." (Id. at p. 440.) The same day, his cheek was swabbed for DNA as part of the booking process. The sample matched DNA that had been collected from a rape victim several years earlier, and the defendant was charged with and convicted of the rape. Appealing that conviction, defendant argued that the DNA sample had been taken in violation of his Fourth Amendment rights and should have been suppressed. The Maryland Court of Appeals agreed and overturned the rape conviction. (Ibid.)

         The United States Supreme Court reversed. The high court agreed with the Maryland court that a buccal swab for the collection of DNA samples-like any invasion of the body-is a search within the meaning of the Fourth Amendment, "gentle" though the search may be. (King, supra, 569 U.S. at p. 446.) But the court held that both the initial collection of a DNA sample and its subsequent processing pursuant to CODIS procedures is, "like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." (Id. at p. 466.)

         The high court explained that, as a general rule, a search is presumptively unreasonable if it is undertaken in the absence of a warrant or individualized suspicion of wrongdoing. (Vernonia School Dist. 47J v. Acton (1995) 515 U.S. 646, 652-653.) But "[i]n some circumstances, such as '[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.' " (King, supra, 569 U.S. at p. 447, quoting Illinois v. McArthur (2001) 531 U.S. 326, 330.) The court concluded that the buccal swab of an arrestee on booking falls into a category of routine searches, justified by special law enforcement needs, that is properly analyzed "by reference to the proposition that the 'touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.' " (King, at p. 448.)

         Weighing the privacy-related concerns at stake against law enforcement needs, the court concluded that the search was reasonable. On the law enforcement side of the balance, the court identified five interrelated governmental interests in obtaining the DNA sample. First, the court explained, the state has an interest in knowing " 'who has been arrested and who is being tried.' " (King, supra, 469 U.S. at p. 450, quoting Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt County (2004) 542 U.S. 177, 191.) "A suspect's criminal history, " the high court continued, "is a critical part of his identity that officers should know when processing him for detention, " and "[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" for the suspect's criminal history. (King, at pp. 450-451.) In this respect, the court said, the profile serves the same purpose as a name or fingerprints. (Id. at p. 451.) Second, the high court reasoned, "DNA identification can provide untainted information to those charged with detaining suspects and detaining the property of any felon, " which is significant because "officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed." (Id. at p. 452.) Third, the court noted, using DNA samples to determine whether the accused has committed other crimes furthers the state's " 'substantial interest in ensuring that persons accused of crimes are available for trials.' " (Ibid.) This is so, it said, because "[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, " thereby presenting "a risk to law enforcement officers, other detainees, victims of previous crimes, witnesses, and society at large." (Id. at p. 453.) Fourth, the court explained, "an arrestee's past conduct is essential to an assessment of the danger he poses to the public, " which may determine "whether the individual should be released on bail." (Ibid.) And fifth, the court noted, "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." (Id. at p. 455.)

         Law enforcement agencies, the court explained, "routinely have used scientific advancements in their standard procedures for the identification of arrestees" (King, supra, 569 U.S. at p. 456), including photographs, body measurements, and fingerprints. The court observed that fingerprinting, in particular, is "[p]erhaps the most direct historical analogue to the DNA technology" at issue in the case (id. at p. 458): fingerprints have long been taken for purposes of comparison to identify suspects and for purposes of matching them to fingerprints taken from the scene of unsolved crimes, and electronic databases are now available that facilitate the comparison (id. at pp. 436, 458-459). DNA identification, the court noted, is a "markedly more accurate form of identifying arrestees" and the "additional intrusion upon the arrestee's privacy beyond that associated with fingerprinting is not significant." (Id. at p. 459.) "DNA identification, " the court reasoned, "is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson." (Ibid.)

         Compared to this set of governmental interests, the high court concluded that the privacy interests at stake were more limited. To begin with, the court explained, the buccal swab used to obtain a DNA sample is a "minimal intrusion." (King, supra, 569 U.S. at p. 463.) Moreover, the court noted, "[o]nce an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, " that person has a diminished expectation of privacy and "freedom from police scrutiny." (Ibid.) This diminished expectation distinguishes arrestee searches from "the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens" (id. at p. 462), such as checkpoint searches or the drug testing of political candidates, for which the court has "insisted on some purpose other than 'to detect evidence of ordinary criminal wrongdoing.' " (Id. at p. 463.)

         The high court further concluded that analysis of the DNA sample, once collected, does not result in a privacy intrusion that violates the federal Constitution. (King, supra, 569 U.S. at p. 464.) It explained that the processed DNA loci "come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee" and that "law enforcement officers analyze DNA for the sole purpose of generating a unique identifying number against which future samples may be matched." (Ibid.) It also noted that Maryland's DNA law "provides statutory protections that guard against further invasion of privacy" (id. at p. 465.); in the court's view, these statutory protections allayed the privacy concerns associated with the state's analysis of the DNA sample (ibid., citing NASA v. Nelson (2011) 562 U.S. ___, ___ [131 S.Ct. 746, 750]).

         For these reasons, the court held that "[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." (King, supra, 569 U.S. at pp. 465-466.)

         B.

         At least at first glance, King would seem to resolve the Fourth Amendment question raised in this case. King holds that DNA identification of arrestees is reasonable on booking following an arrest supported by probable cause to believe the arrestee has committed a serious offense. Defendant in this case was asked to provide a cheek swab as part of a routine booking procedure following an arrest supported by probable cause to believe he had committed a serious offense- namely, felony arson.

         Defendant urges us to take a second look, however. He notes that while California's legal framework for the collection, analysis, and retention of arrestee DNA is in many ways similar to the Maryland law upheld in King, it is not identical. Defendant highlights three features of the DNA Act in particular that, in his view, distinguish this case from King: (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.

         Although these differences between the California and Maryland laws may be relevant in another case involving a differently situated arrestee, this case involves a defendant who was validly arrested on probable cause to believe he had committed felony arson, and who was promptly charged with (and ultimately convicted of) that offense. In the context of the particular case before us, we conclude that none of the differences to which defendant points meaningfully alters the constitutional balance struck in King.

         We begin with defendant's first argument, about the scope of the DNA Act's collection requirement. Defendant observes that the Maryland law at issue in King authorized DNA collection only from those accused of specified serious crimes, including a category defined as "crime[s] of violence" under state law, whereas the DNA Act authorizes DNA collection from all felony arrestees. (King, supra, 569 U.S. at p. 443.) Defendant argues that this difference is important because the seriousness of the crime of arrest figures prominently in the high court's balancing analysis: The high court's opinion states that "the necessary predicate of a valid arrest for a serious offense is fundamental" (id. at p. 461), and elsewhere uses language that suggests the court was particularly concerned with persons arrested for "violent" or "dangerous" crimes (id. at pp. 453, 455). Such a limitation makes sense, defendant contends, because such crimes are the kinds of crimes that typically yield DNA evidence.

         Defendant appears to read too much into the language on which he relies. The 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." (King, supra, 569 U.S. at p. 442.) And as a matter of ordinary usage, a felony is considered a "serious" offense. (See, e.g., Carachuri-Rosendo v. Holder (2010) 560 U.S. 563, 574 ["A 'felony, ' we have come to understand, is a 'serious crime usu[ally] punishable by imprisonment for more than one year or by death.' "].) Though the court also occasionally referred to "violent" and "dangerous" crimes, King did not purport to 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.[2]

         But in any event, even if the federal Constitution permitted states to mandate collection of DNA samples only from persons arrested for felonies classified as particularly serious or violent, defendant in this case was arrested for felony arson in violation of Penal Code section 451, subdivision (d), a crime that is classified as a "serious felony" under California law. (See Pen. Code, § 1192.7, subd. (c)(14).) Defendant does not dispute the characterization.

         Defendant's argument would thus seem to amount to a request that we reverse his conviction based not on any defect in the DNA Act's application to his case, but based on the Act's potential application to other, differently situated individuals. This is more than he may reasonably ask. The ordinary rule is "that one will not be heard to attack a statute on grounds that are not shown to be applicable to himself." (In re Cregler (1961) 56 Cal.2d 308, 313 (Cregler).) This rule does have limited exceptions-most commonly invoked in free speech cases-but none is relevant here. (Sabri v. United States (2004) 541 U.S. 600, 609-610 (Sabri); see, e.g., United States v. Mitchell (3d Cir. 2011) 652 F.3d 387, 415, fn. 26 (en banc) (Mitchell) [felony arrestee could not raise a successful facial challenge to federal DNA collection law on the ground that it applies to misdemeanor arrestees and is therefore overbroad]; cf. Rakas v. Illinois (1978) 439 U.S. 128, 133-134 [" 'Fourth Amendment rights are personal rights which, like some other constitutional rights, may not be vicariously asserted.' "].) Outside of these limited exceptions, and "absent a good reason, we do not extend an invitation to bring overbreadth claims." (Sabri, at p. 610.) No such reason appears in this case.

         Defendant next points out that the Maryland law upheld in King permitted collection of a DNA sample only of arrestees "charged" with qualifying crimes (Md. Code Ann., Pub. Saf., § 2-504(b)(1)), and prohibited officials from testing the sample or loading the profile into the statewide database until after the arrestee was arraigned and a judicial officer determined that the arrest was based on probable cause (id., § 2-504(d)(1)). The DNA Act, by contrast, allows collection "immediately following arrest" and provides that the samples shall "immediately" be forwarded to the laboratory for analysis. (Pen. Code, § 295(i)(1)(C).) Defendant argues that these differences in the time prescribed for the collection and testing of DNA samples tip the balance against their constitutionality.

&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;&nbsp;There are two elements to this argument: one concerning the timing of the collection, the other concerning the timing of analysis. As to the timing of collection, there is no reason to believe that the differences between California&#39;s law and Maryland&#39;s change the Fourth Amendment balance applicable in this case. Although the text of the DNA Act does purport to authorize the collection "immediately following arrest, " that provision was not invoked and is not at issue here. Rather, jail officials in this case sought to collect a sample of defendant&#39;s DNA on booking, as part of the routine collection of identifying information. And King, once again, upheld DNA collection as a "legitimate police booking procedure, " like fingerprinting or photographing, that enables jail officials to know whom they have taken into custody. (King, supra, 569 U.S. at p. 466, italics added.) King itself involved a sample collected on booking. (Id. at p. 441; see King v. State (Md. 2012) 42 A.3d 549, 557.)[3] And there are practical reasons for collecting the required DNA sample at the time of booking, along with taking photographs and fingerprints. Among other things, if the arrestee is released pending adjudication, officials may not have another opportunity. (See Mario W. v. Kaipio (Ariz. 2012) 281 P.3d 476, 482 ["If . . . a juvenile is released pending adjudication and later fails to appear ...


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