Supreme Court of California Justia
Citation 47 Cal. 4th 1104, 224 P.3d 55, 104 Cal. Rptr. 3d 727

People v. Robinson

Filed 1/25/10



IN THE SUPREME COURT OF CALIFORNIA



THE PEOPLE,

Plaintiff and Respondent,

S158528

v.

Ct.App. 3 C044703

PAUL EUGENE ROBINSON,

Sacramento County

Defendant and Appellant.

Super. Ct. No. 00F06871

____________________________________)


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.)1

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.)2 As relevant here, a


1

All statutory references are to the Penal Code unless otherwise specified

2

We note that, since February 28, 2005, section 803, subdivision (g)(1), has

provided that, “[n]otwithstanding any other limitation of time described in this
chapter, a criminal complaint may be filed within one year of the date on which
the identity of the suspect is conclusively established by DNA testing, if both of
the following conditions are met: [¶] (A) The crime is one that is described in
subdivision (c) of Section 290. [¶] (B) The offense was committed prior to
January 1, 2001, and biological evidence collected in connection with the offense

(Footnote continued on next page.)

1


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.)3 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, 2000,4 four days before the statute of limitations

would have expired, the Sacramento County District Attorney filed a felony



(Footnote continued from previous page.)

is analyzed for DNA type no later than January 1, 2004, or the offense was
committed on or after January 1, 2001, and biological evidence collected in
connection with the offense is analyzed for DNA type no later than two years from
the date of the offense.” Effective January 1, 2001, a prior version of section 803
was amended to extend the statute of limitations in unknown offender sex cases so
that a complaint would be timely filed if filed “within one year of that date on
which the identity of the suspect is conclusively established.” (Former § 803, as
amended by Stats. 2000, Ch. 235, repealed as subsequently amended by Stats.
2005, ch. 2.) Neither the current nor the 2001 amendment applies to the present
case because the statute of limitations had already run as to the crimes perpetrated
against Deborah L. by January 1, 2001.
3

We note that, while subdivision (g) of section 803 may now reduce the

need to commence sex crime prosecutions within the applicable limitations
periods by use of warrants, indictments, and complaints that identify yet-unknown
suspects by their DNA profiles, nothing in that subdivision of section 803 limits
subdivision (d) of section 804, which permits the commencement of prosecution in
all cases by the issuance of sufficiently particularized fictitious name arrest
warrants.
4

All further date references are to the year 2000 unless otherwise specified.

2

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 period5; (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.6

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


5

To simplify our analysis, we discuss only the adequacy of a John Doe DNA

arrest warrant to timely commence a criminal action. Because a prosecution
commences either when a complaint is issued (§ 804, subd. (b)) or when an arrest
warrant “is issued, provided the warrant names or describes the defendant with the
same degree of particularity required for an indictment, information, or complaint”
(§ 804, subd. (d)), our analysis of the adequacy of a John Doe DNA arrest warrant
to timely commence a criminal action applies with equal force to the adequacy of
a John Doe DNA complaint.
6

We also granted review on a fourth issue, but ordered briefing deferred,

pending disposition of a related issue in another pending case. That case is now
final and has resolved the fourth issue in the present case. (People v. Nelson
(2008) 43 Cal.4th 1242, 1260-1265.)

3

statute of limitations is satisfied if the prosecution is commenced by the filing of

the “John Doe” arrest warrant within the limitations period.7 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.8

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.


7

By using the descriptive term “unique,” we refer to an individual DNA

profile, such as the 13-loci DNA profile of the defendant, that has essentially no
chance of being duplicated in the human population except in the case of a
genetically identical sibling.
8

During the attack, Deborah‟s assailant said he was “Mexican” or

“Chicano.” Deborah thought he was Black, but she said he could have been either
a very dark-skinned Mexican or a light-skinned Black man.

4

As the man dressed, he said he would kill Deborah if she looked at him. Once he

was gone, she called 911.9

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


9

In the case before us, defendant was charged with additional counts

involving another woman. The jury was unable to reach a verdict on those
charges, a mistrial was declared, and the charges were dismissed. We limit our
discussion to the facts and law pertaining to the offenses that resulted in
convictions.

5

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

6

population.10 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)),11 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.)12 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.

II. DISCUSSION

A. Applicability of the Federal Exclusionary Rule to Unlawful

Collection of Defendant’s Genetic Material Under the Act

1. Introduction

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.


10

The discrepancy in the random match probability statistics in Ms. Spriggs‟s

testimony and those set forth in the arrest warrant does not affect our analysis of
the issues presented in this case.
11

The abstract of judgment erroneously designates this offense as a violation

of section 288, subdivision (a)(2). We shall order that the abstract of judgment be
amended to correct this error.
12

Like the Court of Appeal, we assume the trial court intended to strike the

alleged prior conviction enhancements (§§ 667, 667.5, subd. (b), and 1170.12)
because the underlying convictions were entered after defendant committed the
crimes against Deborah L. (See People v. Rojas (1988) 206 Cal.App.3d 795, 802.)

7

2. Background of the Act

The Act became effective January 1, 1999. (Stats. 1998, ch. 696, § 4.)13 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).)


13

The Act has been amended several times since its enactment. (E.g., Stats.

2002, ch. 916; Prop. 69, as approved by voters, Gen. Elec. (Nov. 2, 2004); Stats.
2006, ch. 69, § 28.) Unless otherwise pertinent, we discuss and apply the law as
originally enacted (Stats. 1998, ch. 696, § 2), which was the law in effect when
defendant‟s blood was drawn and analyzed in 1999. We simply note that the
present version of section 296 was enacted on November 2, 2004, with the voters‟
passage of Proposition 69. Currently, it provides that anyone convicted of a
felony, “regardless of the sentence imposed . . . or any other disposition rendered
in the case . . . or whether the person is diverted, fined, or referred for evaluation,”
must provide samples for DNA analysis and identification. (Current § 296, subd.
(b).)

8

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).)14 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


14

A juvenile adjudication is not a conviction. (Welf. & Inst. Code, § 203; In

re Bernardino S. (1992) 4 Cal.App.4th 613, 618.)

9

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.15 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.16 As a result

of that mistake, a sample of defendant‟s blood was drawn on March 2, 1999.


15

At the time officers collected defendant‟s blood samples in 1999, felony

burglary was not yet listed as a qualifying offense requiring collection of blood
and saliva for DNA analysis. (See former § 296, subd. (a)(1).) We do not address
the People‟s contention that defendant‟s March 2, 1999 sample was properly
collected because “he was in custody on a parole hold arising from a prior felony
first-degree burglary conviction, following his December 1998 misdemeanor
conviction.” Having limited the issues for review to address the appropriate
remedy for the unlawful collection of genetic material under the Act, we impliedly
accepted the Court of Appeal‟s conclusion that there was, at a minimum, a
statutory violation of the Act in this case. (See Cal. Rules of Court, rule 8.516.)
Similarly, we note that a second blood sample was collected from defendant on
September 2, 2002, after the Act was expanded to include first degree burglaries.
(Stats. 2001, ch. 906.) That sample, received by the Department‟s laboratory on
September 9, 2002, was entered into the Department‟s DNA database on
November 22, 2002. The issue of inevitable discovery, litigated before the Court
of Appeal, is not before us.
16

Spousal battery is punishable either as a misdemeanor or a felony. (§§ 17,

273.5, subd. (a).) Only a felony conviction of spousal abuse was a qualifying
offense under former section 296, subdivision (a)(1)(D), and defendant had been
convicted of misdemeanor, rather than felony, spousal abuse.

10

The March 2, 1999 blood sample was submitted to the Department‟s

laboratory database section where it underwent a Department-initiated,

nonstatutory, 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 nonqualifying misdemeanor. That

employee then mistakenly determined that defendant had a qualifying prior

juvenile adjudication for assault with a deadly weapon (§ 245).17 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


17

Although the rap sheet indicated “211 and 245 to Juvenile Hall,” sealed

records of the 1985 juvenile adjudication later revealed that defendant had
suffered a felony grand theft (§ 487) adjudication only. The employee mistakenly
concluded the juvenile adjudication, for which defendant had been ordered to
participate in a juvenile work project, constituted a qualifying offense under the
Act as it read in 1999; she also mistakenly concluded the adjudication was for
felony assault, rather than for felony grand theft, a nonqualifying felony. (See
former §§ 296, subd. (a)(1)(F), 296.1, subd. (c).)

11

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

12

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

13

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-[4]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

14

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].)18

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.

18

We note that a California federal district court recently held that “after a

judicial or grand jury determination of probable cause has been made for felony
criminal charges against a defendant, no Fourth Amendment or other
Constitutional violation is caused by a universal requirement that a charged
defendant undergo a „swab test,‟ or a blood test when necessary, for the purposes
of DNA analysis to be used solely for criminal law enforcement, identification
purposes.” (U. S. v. Pool (E.D.Cal. 2009) 645 F.Supp.2d 903, 917.)

15

__ [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

16

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.19

Having decided that a lawfully convicted and incarcerated felon, such as

defendant, does not have a Fourth Amendment right to prevent state authorities


19

We note that, by restricting the offenses that would permit the collection of

DNA samples in the original version of the Act, our Legislature did not concede it
lacked an interest in collecting DNA identification information from convicted
criminals who had not committed one of the qualifying offenses. The Legislature
explained in former section 297, subdivision (e), that “[t]he limitation on the types
of offenses set forth in subdivision (a) of Section 296 as subject to the collection
and testing procedures of this chapter is for the purpose of facilitating the
administration of this chapter. The . . . conviction of a person based upon a data
bank match or data base information is not invalidated if it is later determined that
the . . . samples . . . were obtained or placed in the data bank or data base by
mistake.” A finding that our Legislature saw no compelling interest in the identity
of defendant merely because the offense he committed was not listed would be an
error that would “frustrate rather than further state policy.” (Moore, supra, 553
U.S. at p. __ [128 S.Ct. at p. 1606].) In Moore, the high court rejected the
defendant‟s argument that the State “has no interest in arrest when it has a policy
against arresting for certain crimes.” (Id. at p. __ [128 S.Ct. at p. 1605].) Instead,
it found that the state policy demonstrated “that the State values its interests in
foregoing arrests more highly than its interests in making them, [citation]; or as
showing the State places a higher premium on privacy than the Fourth
Amendment requires” (id. at p. __ [128 S.Ct. at p. 1606]), rather than
demonstrating that the state lacks any interest in the arrest. The court observed
that the arrest still serves the interests underlying the Fourth Amendment rule
allowing such an arrest, including ensuring the suspect will appear at trial,
preventing him from committing further offenses, and allowing officers to
investigate more fully. (Id. at p. __ [128 S.Ct. at p. 1605].)

17

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) [statutory knock-

and-announce violation does not necessarily trigger the exclusionary rule].)20

The exclusionary rule applies only “where its deterrence benefits outweigh

its „substantial social costs.‟ ” (Pennsylvania Bd. of Probation and Parole v. Scott

(1998) 524 U.S. 357, 363, quoting United States v. Leon (1984) 468 U.S. 897,

907; accord, Arizona v. Evans (1995) 514 U.S. 1, 13; see also People v. Reyes

(1998) 19 Cal.4th 743, 755-756.) The United States Supreme Court has cautioned

that “[s]uppression of evidence. . . has always been our last resort.” (Hudson,

supra, 547 U.S. at p. 591.) In Hudson, the court emphasized that the exclusionary


20

We reject the People‟s argument that expungement is the sole potential

remedy available for the unlawful collection of genetic material under the Act.
Section 299 does not presently expressly provide a remedy for the unlawful
collection of a blood sample where an individual was not convicted of a qualifying
offense at the time the sample was taken. (Current § 299, subd. (a).) We note,
however, that former section 297, subdivision (e), stated that “[t]he detention,
arrest, wardship, or conviction of a person based upon a data bank match or data
base information is not invalidated if it is later determined that the specimens,
samples, or print impressions were obtained or placed in a data bank or data base
by mistake.” We also note that former section 299, subdivision (c), similarly
provided that “[a]ny identification, warrant, probable cause to arrest, or arrest
based on a data bank match is not invalidated due to a failure to expunge or a
delay in expunging records.”

18

rule‟s “ „costly toll‟ upon truth-seeking and law enforcement objectives presents a

high obstacle for those urging [its] application.” (Ibid.)

In Herring v. United States (2009) ___ U.S. ___ [129 S.Ct. 695] (Herring),

the United State Supreme Court explained that “[t]o trigger the exclusionary rule,

police conduct must be sufficiently deliberate that exclusion can meaningfully

deter it, and sufficiently culpable that such deterrence is worth the price paid by

the justice system. As laid out in our cases, the exclusionary rule serves to deter

deliberate, reckless, or grossly negligent conduct, or in some circumstances

recurring or systematic negligence.” (Id. at p. ___ [129 S.Ct. at p. 702].)

The facts in Herring involved an officer who reasonably, but mistakenly,

believed there was an outstanding warrant for Herring. When Herring appeared at

the sheriff‟s department to get something from his impounded truck, investigator

Anderson recognized him and asked a county clerk to check for outstanding

warrants for Herring‟s arrest. When none were found, Anderson asked the clerk to

check with her counterpart in a neighboring county. That clerk replied that there

was an active arrest warrant for Herring‟s failure to appear on a felony charge.

Because of a negligent bookkeeping error by another law enforcement employee,

the fact that the warrant had been recalled had not been entered in the database.

The incorrect information was relayed to Anderson, who, along with a sheriff‟s

deputy, followed Herring from the impound lot and arrested him. During a search

incident to the arrest, methamphetamine was found in Herring‟s pocket, and a

pistol was found in his vehicle. (Herring, supra, ___ U.S. at p. __ [129 S.Ct. at p.

699].)

In agreeing with the Eleventh Circuit Court of Appeals that the challenged

evidence was admissible, the Supreme Court stated, “In light of our repeated

holdings that the deterrent effect of suppression must be substantial and outweigh

any harm to the justice system, e.g., [United States v. ] Leon, [supra, ] 468 U.S. at

19

909-910, we conclude that when police mistakes are the result of negligence such

as that described here, rather than systemic error or reckless disregard of

constitutional requirements, any marginal deterrence does not „pay its way.‟ Id., at

909-908, n. 6 (internal quotations marks omitted). In such a case, the criminal

should not „go free because the constable has blundered.‟ People v. Defore, 242

N.Y. 13, 21, 150 N.E. 585, 587 (1926) (opinion of the Court by Cardozo, J.).”

(Herring, supra, __ U.S. at p. ___ [129 S.Ct. at p. 704].)

The parties before us agree the violations of the Act in defendant‟s case

were unintentional mistakes made during the early implementation of the Act.

The People characterize those mistakes as “non-deliberate, non-flagrant, and non-

systemic; in other words, as “ „non-culpable negligence, at most.‟ ” On the other

hand, defendant contends the mistaken collection of the March 2, 1999 blood

sample was the result of a “cascading series of errors” that were “indicative of a

systemic breakdown,” the order to draw blood was not attenuated from its seizure

from defendant, and “the search in Herring was limited to the suspect‟s clothes

and vehicle, whereas the seizure here occurred from [defendant‟s] very body.”

We first note that nothing in Herring supports defendant‟s suggestion that

whether or not the exclusionary rule is triggered in a particular case should depend

upon whether “an error results in a seizure of evidence from a suspect‟s body

rather than from the suspect‟s „person.‟ ” We reject defendant‟s claim that “the

seizure of biological material from [his] very body affects the determination of

whether the police conduct here was more culpable or reckless than mere

negligence.”

We next note that the Supreme Court‟s general holding regarding what

conduct triggers the exclusionary rule does not focus on the issue of attenuation,

and we find that issue has no relevance to our analysis in this particular case.

(Herring, supra, ___ U.S. at p. __ [129 S.Ct. at p. 702].) Instead, the high court

20

requires us to focus on whether the facts presented warrant application of the

exclusionary rule “to deter deliberate, reckless, or grossly negligent conduct,

or . . . recurring or systemic negligence.” (Id. at p. __ [129 S.Ct. at p. 702]) As in

Herring, we find that “[t]he error in this case does not rise to that level.” (Id. at p.

__ [129 S.Ct. at p. 702])

On appeal, we uphold any express or implied factual findings of the trial

court that are supported by substantial evidence. (People v. Williams (1988) 45

Cal.3d 1268, 1301.) Here, in ruling the March 2, 1999 blood sample and DNA

test evidence were admissible, the trial court found that the mistakes that led to the

unlawful collection of defendant‟s blood were made because correctional staff was

under pressure to immediately implement a newly enacted law that was complex

and confusing, that the motivation for the collection of the March 2, 1999 blood

sample “was a good faith belief, possibly based on a negligent analysis by

someone, that the defendant was a qualified offender and that the law directed his

sample to be obtained.” The trial court also found that, while the Department did

not act in a “perfect manner,” it acted in a “responsible” and “conscientious”

manner in “trying to keep [its] errors to a very low level.” The following evidence

presented at the motion to suppress supports the trial court‟s findings that the

errors in this case were negligent rather than deliberate, reckless, or systemic.

The director of the Department‟s Bureau of Forensic Services Toxicology

Laboratory (the Director) testified that he worked “full time” on implementation

of the Act as of December 1998. In the early months of that assignment, he

reviewed the legislation, consulted the Attorney General, and developed materials

that he delivered to various locations. He later created a specific information

bulletin that was distributed to approximately 600 law enforcement agencies

throughout the state. The Director quickly worked to disseminate information

about the Act because the Department had to inform law enforcement agencies

21

“what they needed to do to be able to provide us with the new samples.” His

typical presentations included information regarding “what were qualifying

offenses. He also discussed how they would decide what the process was to be

able to find out whether they were qualifying offenses.” In that regard, the

Director advised law enforcement personnel to use the Department‟s “automated

criminal history system” to “pull up the rap sheet” in order to determine whether

an individual in custody had a qualifying felony offense and how to distinguish

whether “wobblers” were misdemeanor or felony offenses.

The Director gave at least 36 presentations throughout California during

1999; during those training sessions, law enforcement personnel occasionally

expressed “confusion in terms of how to implement” the Act because “[]it was a

“very difficult law to understand.” The first training session in the Sacramento

area was in April 1999. The first information bulletin, including an attachment

that delineated qualifying offenses and detailed that individuals “needed to be

convicted rather than adjudicated to qualify,” was sent out in July 1999. In his

testimony, the Director explained that the Act expanded the number of offenses

that qualified for DNA analysis,21 that, upon implementation of the Act, the

Department “was serious” about only allowing qualifying offenses or qualifying

offenders into the data bank, and that law enforcement was advised to request a

record of disposition from the courts whenever an ambiguity arose as to whether

the prisoner had a qualifying offense. The Director further testified that he did not

personally train DNA data bank employees on qualifying samples for inclusion in

the data bank, but that he was aware the data bank provided in-house training


21 Compare former section 290.2 (Stats. 1994, 1st Ex. Sess. 1993-1994, ch. 42, §
1, p. 8735) with former section 296.

22

under the direction of Kenneth Konzak, the criminalist manager of California‟s

DNA data bank laboratory.

At the hearing on the motion to suppress, Konzak testified that he helped

establish the FBI‟s Combined DNA Index System (CODIS), which is software

that compares qualifying offender samples to profiles collected at a crime scene.

Testifying as an expert, Konzak noted that, as to all state and federal government

data banks, “for offenders there‟s a qualifying requirement . . . for a conviction or

adjudication of some kind.” Konzak explained that California‟s DNA data bank

employees were trained regarding “who are qualifying offenders” by “on-the-job”

training and in training sessions. He admitted the Act initially was

“administratively very complicated”; because it greatly expanded the number of

qualifying offenders, it required the rapid hiring of many new analysts, and the

implementation process required the DNA data bank laboratory to “call in to our

legal unit almost every day about some issue or another.” He refuted any

suggestion that the Department had a systemic or deliberate policy of entering

nonqualifying profiles into its database by noting that the draconian sanction for

such a policy could be expulsion from the national crime solving index and

removal of the CODIS software from a noncompliant laboratory. Konzak noted

that, although in 1999 and 2000 there was no statutory requirement for the DNA

laboratory to confirm that an individual had been appropriately identified as a

qualifying offender,22 the laboratory did so in an “attempt to do the best we could


22

Effective January 1, 2001, the Act was amended to provide that “[t]he DNA

laboratory procedures shall confirm that the offender qualifies for entry into the
DNA data bank prior to actual entry of the information into the DNA data bank.”
(Former § 298, subd. (b)(4), as amended by Stats. 2000, ch. 823, § 4.) In 2004,
that language was deleted. (Prop. 69, § 3, as approved by voters, Gen. Elec. (Nov.
2, 2004.)

23

to follow the statute.” To confirm the presence of a qualifying offense, laboratory

employees used an automated criminal history system, the California Law

Enforcement Telecommunications System (CLETS), to track the criminal history

(rap sheet) associated with an offender‟s fingerprints and his or her CII (criminal

identification index) number. Finally, Konzak testified that in June 1999, the lab

manager stopped all searches of the database to verify “tens of thousands” of

offender profiles after discovering, in an unrelated case similar to the one before

us now, that a profiled offender who had been thought to have a qualifying offense

actually had been convicted only of misdemeanor spousal abuse (§ 273.5).

Deputy Sheriff Lawrence Ortiz testified that in February 1999 he was

trained regarding how to identify and collect DNA samples pursuant to the

recently passed Act from individuals at the Center who had been convicted of sex

and violent offenses. He then began training the Center‟s civilian records officers

on how to identify qualified offenders. Ortiz testified that the staff was alerted

about the system‟s “capabilities to look for qualifying” offenses, that only certain

felony offenses constituted qualifying offenses, and that the system and CLETS

“read[] out felony or misdemeanor depending on the severity of the conviction.”

He said staff “early on” exhibited “confusion” about what constituted a qualifying

offense, and that even in 2003, the year he testified, “there‟s an occasional

question as to [the] qualifications.” Ortiz said he and the staff would “err on the

side of caution” and treat juvenile adjudications as nonqualifying offenses if they

resulted in a juvenile hall disposition only. He noted that early implementation of

the Act at the Center resulted in “[b]orderline chaos” because he and his large staff

were under pressure to quickly identify offenders and complete the collection kits

provided by the Department. At the time defendant‟s blood was collected,

approximately 16 records officers were working in four shifts day and night to

determine whether inmates at the Center had qualifying offenses. Ortiz relied on

24

his staff‟s indication that there was a qualifying offense without verifying that

assessment because he lacked the time to “personally validate” each

determination. However, whenever an inmate indicated he did not believe he was

a qualified offender, Ortiz would research the issue himself. Ortiz conceded that,

in March of 1999, if a rap sheet indicated that a person “had a [section] 245 as a

juvenile, sent to juvenile hall,” he “might possibly” have mistakenly collected a

DNA blood sample from that individual. At the time defendant‟s March 2, 1999

blood sample was collected, Ortiz believed defendant “did in fact have a

qualifying offense.” He believed everybody on his staff “knew the difference

between a misdemeanor and a felony [section] 273.5” and that the employee who

qualified defendant‟s section 273.5 offense therefore must have believed it was a

felony conviction.

We agree with the trial court that, although errors were made during the

early implementation of the Act, law enforcement employees conscientiously tried

to follow its requirements for collection of biological samples and inclusion of

those samples in the state data bank, including conscientiously trying to make

accurate determinations regarding whether an individual had a qualifying offense

under former section 296. The trial court‟s finding that law enforcement tried to

keep errors at a low level is supported by the training implemented in response to

the Act and the fact that the Department‟s laboratory initiated its own nonstatutory

verification process to confirm a prisoner‟s qualified offender status after the

qualification determination that resulted in collection of a biological sample.

Here, as in Herring, we hold that the challenged errors do not, by

themselves, “require the „extreme sanction of exclusion.‟ ” (Herring, supra, __

U.S. at p. ___ [129 S.Ct. at p. 700].) We agree with the trial court that the law

enforcement personnel errors in this case were the result of negligence, “rather

than systematic error or reckless disregard of constitutional requirements,” that the

25

unlawful collection of genetic material under the Act was not “sufficiently

deliberate that exclusion can meaningfully deter it,” and that the law enforcement

personnel were not sufficiently culpable that such deterrence is worth the price

paid by the justice system. (Herring, supra, ___ U.S. at p. __ [129 S.Ct. at p.

704].)23

We have analyzed the nonconsensual extraction of defendant‟s blood for

the March 2, 1999 blood sample as a state statutory violation that did not violate

the Fourth Amendment, and, alternatively, as an assumed federal constitutional

violation. In either case, we agree with the Court of Appeal that “the exclusionary

rule is inapplicable to suppress the [blood and DNA test] evidence in this case.”

B. Satisfaction of Constitutional and Statutory Particularity

Requirements with a Warrant Identifying a Person to be Arrested
by a Description of His Unique DNA Profile


On August 21, 2000, a complaint was filed, and one day later, a

corresponding arrest warrant issued against “John Doe, unknown male” for

charges based on the sexual assault against Deborah L. on August 25, 1994. In the


23

In this regard, we agree with the Court of Appeal that “the definition of a

qualifying offense has been expanded and simplified, thereby reducing the
possibility of similar mistakes in the future. At the November 2, 2004 General
Election, the voters adopted Proposition 69, which expanded the definition of a
qualifying offense to include any felony, whether committed by a juvenile or an
adult and whether suffered by conviction or juvenile adjudication. (§ 296, subd.
(a)(1), amended by Initiative Measure; Prop. 69, III.I.) Because the broad scope of
this amendment all but eliminates the likelihood that biological specimens will be
mistakenly collected or analyzed, no deterrent effect would be achieved by
excluding evidence obtained from a sample mistakenly collected under an earlier
version of the Act when the same search would be lawful under current law.”

26

complaint John Doe was described by his unique 13 loci DNA profile. That

description was incorporated by reference into the arrest warrant.24

Defendant contends the prosecution was not commenced within the six-

year statute of limitations because “the „particularity‟ requirements of the Fourth

Amendment to the United States Constitution, our state Constitution‟s article I,

section 13, and Penal Code section 804, subdivision (d), were not met in the case

by the prosecuting authority‟s use of the unknown suspect‟s DNA profile, as a

description of the unknown suspect, in the „John Doe‟ complaint and „John Doe‟

arrest warrant.”25 We agree with the Court of Appeal, that “an arrest warrant,

which indentifies the person to be arrested by incorporation of the [unique] DNA

profile of the assailant, satisfies the statutory particularity requirement of section

804, subdivision (d) read in the light of section 813, subdivision (a) and pertinent

constitutional provisions.”

1. Relevant Statutory and Constitutional Provisions

As relevant here, our statute of limitations provides that “prosecution for an

offense punishable by imprisonment in the state prison for eight years or more

shall be commenced within six years after commission of the offense” (§ 800), and

a felony prosecution is commenced when an arrest warrant is issued, “provided the


24

A warrant may cross-reference other documents (Groh v. Ramirez (2004)
540 U.S. 551, 557), and defendant does not claim otherwise.
25

As the Court of Appeal appropriately noted, defendant “does not claim the

[arrest] warrant is unsupported by probable cause, the warrant was improperly
executed, or that he was improperly arrested because he was not the person
described in the warrant. Indeed at the time the warrant was executed, defendant‟s
true name and identity were known to the officers and he was located using
traditional methods of identification. Thus, defendant makes no claim that his
arrest was invalid on Fourth Amendment grounds.”

27

warrant names or describes the defendant with the same degree of particularity

required for an indictment, information, or complaint.” (§ 804, subd. (d).)

Section 813, subdivision (a), provides, in pertinent part, that “the magistrate

shall issue a warrant for the arrest of the defendant” only when “a complaint is

filed with a magistrate charging a felony originally triable in the superior court . . .

if, and only if, the magistrate is satisfied from the complaint that the offense

complained of has been committed and that there is reasonable ground to believe

that the defendant has committed it.”

Section 815 provides: “A warrant of arrest shall specify the name of the

defendant or, if it is unknown to the . . . issuing authority, the defendant may be

designated therein by any name.” As relevant here, section 959, paragraph 4

similarly provides that “[t]he accusatory pleading is sufficient if it can be

understood therefrom” that “the defendant is named, or if his name is unknown,

that he is described by a fictitious name, with a statement that his true name is . . .

unknown.”

The Fourth Amendment to the United States Constitution guarantees that

“no warrants shall issue, but upon probable cause, supported by oath or

affirmation, and particularly describing . . . the persons to be seized.” (Italics

added.) According to the Federal Rules of Criminal Procedure, rule 4(b)(1) (18

U.S.C.), a warrant “shall contain the name of the defendant or, if his name is

unknown, any name or description by which he can be described with reasonable

certainty.” The California Constitution, article I, section 13 provides that “a

warrant may not issue, except on probable cause . . . particularly describing the . . .

persons . . . to be seized.”

2. The Particularity Requirement

Defendant contends a John Doe arrest warrant accompanied by a DNA

genetic profile does not constitute “a means of description „reasonable to the

28

circumstances‟ ” because, rather than “describ[ing]” the person to be arrested, it

only “identifies a defendant by the use of a fictitious name without any description

whatsoever” and therefore does not describe that person “with sufficient

certainty.” Defendant argues that a fictitious name or a John Doe name is

insufficient to identify anyone, and therefore is insufficient to identify anyone with

particularity.

Under both federal and state law, an accusatory pleading or arrest warrant

may issue with a fictitious name provided it names or describes the person being

charged with reasonable certainty. (See, e.g., Cabell, supra, 153 U.S. at p. 85 [an

arrest warrant “must truly name [the person charged], or describe him sufficiently

to identify him”]; People v. Montoya, supra, 255 Cal.App.2d at pp. 142-143; Ernst

v. Municipal Court of Los Angeles (1980) 104 Cal.App.3d 710, 718.) As the court

in Montoya explained, “[w]here a name that would reasonably identify the subject

to be arrested cannot be provided, then some other means reasonable to the

circumstances must be used to assist in the identification of the subject of the

warrant.” (Montoya, supra, 255 Cal.App.2d at p. 142, citing U. S. v. Swanner

(E.D. Tenn. 1964) 237 F.Supp. 69, 71, italics added; see also Blocker v. Clark

(1906) 54 S.E. 1022; 3 LaFave, Search and Seizure (3d ed. 1996 & Supp. 2003)

§ 35.1(g).)26

We first consider whether the arrest warrant that issued in this case satisfied

the Fourth Amendment‟s requirement, as well as our state Constitution‟s

26

We note that the court in Montoya held that the description in the warrant,

“John Doe, white male adult, 30 to 35 years, 5‟10” 175 lbs. dark hair medium
build,” (Montoya, supra, 255 Cal.App.2d at p. 141) was “too general a description
[in that case because] [i]t could be applied to a great number of persons in a city
the size of Oakland.” (Id. at p. 143.) By contrast, as we explain, post, a warrant
describing the person sought by a unique DNA profile permits identification of the
person with the reasonable certainty that is constitutionally required.

29

requirement, that a warrant must particularly describe the person to be seized. The

relevant language of article 1, section 13 of the California Constitution parallels

the relevant language of the Fourth Amendment, and “the issue of particularity

resolves itself identically under both federal and California standards.” (People v.

Tockgo (1983) 145 Cal.App.3d 635, 640, fn. 2 (Tockgo).)

In the context of the Fourth Amendment, “[p]articularity is the requirement

that the warrant must clearly state what is sought.” (U. S. v. Towne (9th Cir. 1993)
997 F.2d 537, 544.) “It is familiar history that indiscriminate searches and

seizures conducted under the authority of „general warrants‟ were the immediate

evils that motivated the framing and adoption of the Fourth Amendment.”

(Payton v. New York (1980) 445 U.S. 573, 583, fn. omitted.) The particularity

requirement of the Fourth Amendment helps to ensure that a search or seizure

“will not take on the character of the wide-ranging exploratory searches [or

seizures] the Framers intended to prohibit.” (Maryland v. Garrison (1987) 480

U.S. 79, 84, fn. omitted; see also People v. Bradford (1997) 15 Cal.4th 1229, 1296

[“The purpose of the „particularity requirement of the Fourth Amendment is to

avoid general and exploratory searches by requiring a particular description of the

items to be seized”].)

However, a warrant “need only be reasonably specific” (U. S. v. Hayes (9th

Cir. 1986) 794 F.2d 1348, 1354), and “the specificity required „varies depending

on the circumstances of the case and the type of items involved.‟ ” (U. S. v. Rude

(9th Cir. 1996) 88 F.3d 1538, 1551; see also U. S. v. Bridges (9th Cir. 2003) 344

F.3d 1010, 1016; U. S. v. Jones (7th Cir. 1995) 54 F.3d 1285, 1289-1290.) The

constitutional and statutory requirements of particularity are satisfied if the

warrant “imposes a meaningful restriction upon the objects to be seized.”

(Burrows v. Superior Court (1974) 13 Cal.3d 238, 249.) The requirement of

reasonable particularity “is a flexible concept, reflecting the degree of detail

30

available from the facts known to the affiant and presented to the issuing

magistrate.” (Tockgo, supra, 145 Cal.App.3d at p. 640; see United States v.

Ventresca (1965) 380 U.S. 102, 108-109; Spinelli v. U.S. (8th Cir. 1967) 382 F.2d

871, 886, revd. on other grounds (1969) 393 U.S. 410.) Here, at the time the John

Doe arrest warrant issued and the John Doe complaint was filed in this case, there

was no more particular, accurate, or reliable means of identification available to

law enforcement than the suspect‟s unique DNA profile.

In the context of a search of a place, the Fourth Amendment requirement of

particularity and our state statutory particularity requirement in section 152527 are

met “if the description is such that the officer can with reasonable effort ascertain

and identify the place intended.” (Steele v. United States (1925) 267 U.S. 498,

503; see People v. Coulon (1969) 273 Cal.App.2d 148, 152.) While a search

warrant must describe items to be seized with particularity sufficient to prevent a

general, exploratory rummaging in a person‟s belongings, the test for determining

the validity of a warrant considers “whether any reasonable probability exists that

the officers may mistakenly search another premise.” (U. S. v. Mann (9th Cir.

2004) 389 F.3d 869, 876.)

State courts that have considered the validity of a warrant that described the

suspect by his DNA profile have concluded that a unique DNA profile qualifies as

a reasonable means of identifying the subject of a warrant or complaint when that

DNA profile is the best description available. (See State v. Martinez (N.Y. App.

Div. 2008) 855 N.Y.S.2d 522 (Martinez); State v. Danley 853 N.E.2d 1224 (Ohio


27

Section 1525 provides that a “search warrant cannot be issued but upon

probable cause, supported by affidavit, naming or describing the person to be
searched or searched for, and particularly describing the property, thing, or things
and the place to be searched.” (See also § 1529 [requiring “reasonable
particularity” of the description].)

31

Ct. Com. Pl. 2006) (Danley); State v. Davis (Wis. 2005) 698 N.W.2d 823; State v.

Dabney (Wis.Ct.App. 2003) 663 N.W.2d 366 (Dabney); cf. State v. Belt (Kan.

2008) 179 P.3d 443, 450 (Belt) [approving the practice “in the abstract,” but

affirming dismissal where charging documents did not set forth suspect‟s unique

DNA profile].) For the reasons stated below, we find these authorities persuasive.

A warrant or complaint “ „is an accusation against a person, and not against

a name,‟ ” and “ „[w]hen the name is unknown, the person may be identified with

„the best description available.‟ ” (Danley, supra, 853 N.E.2d at p. 1227, quoting,

inter alia, Dabney, supra, 663 N.W.2d 366; see Commonwealth v. Laventure (Pa.

2006) 894 A.2d 109, 116, fn. 7 [when a name cannot be provided, “ „some other

means reasonable to the circumstances‟ ” may be used to assist in the

identification.]; 4 Blackstone, Commentaries 302.)

The Dabney court correctly noted that “case law suggests that the complaint

and warrant satisfy the sufficiency standard when the description clearly

demonstrates that the „law enforcement authorities had probable cause to suspect a

particular person of committing a crime.‟ (Powe v. City of Chicago, 664 F.2d 639,

646 (7th Cir. 1981).” (Dabney, supra, 663 N.W.2d at pp. 371-372.) We agree

with Dabney that, “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 p. 372; accord, Danley, supra, 853

N.E.2d at p. 1227.) At the Dabney court explained, “ „A genetic code describes a

person with far greater precision than a physical description or a name.‟ Meredith

A. Bieber, Comment, Meeting the Statute or Beating It: Using „John Doe‟

Indictments Based on DNA to Meet the Statute of Limitations, 150 U.Pa.L.Rev.

1079, 1085 (2002).” (Dabney, supra, 663 N.W.2d at p. 372.)

In Belt, supra, the Supreme Court of Kansas recently considered whether a

John Doe arrest warrant that describes the suspect by a unique marker profile on a

32

DNA autoradiograph identifies the suspect with sufficient particularity and

reasonable certainty to satisfy the requirements of the Fourth Amendment to the

United States Constitution and its state‟s statutory codification of that

constitutional standard with regard to Kansas arrest warrants (Kan. Stat. Ann.

§ 22-2304(1)). (Belt, supra, 179 P.3d at pp. 449-450.) Citing Cabell, supra, 153

U.S. at page 85, Belt first noted that “there is precedent to support the contention

that a warrant need not provide the name of a suspect, so long as it describes the

suspect „sufficiently to identify‟ him or her.” (Belt, supra, 179 P.3d at p. 449.)

Although the State conceded that the particular warrants at issue in Belt contained

insufficient identifying information because, at most, they “mentioned only DNA

loci common to all humans” (ibid.), Belt stated that, “in the abstract,” it agreed

with “the proposition that a warrant identifying the person to be arrested for a

sexual offense by description of the person‟s unique DNA profile, or incorporating

by reference an affidavit containing such a unique profile, can satisfy

constitutional and statutory particularity requirements.” (Id. at p. 450.)

For purposes of the Fourth Amendment, we conclude that the arrest warrant

in question, which described the defendant by his 13-loci DNA profile and

included an explanation that the profile had a random match probability such that

there was essentially no chance of its being duplicated in the human population

except in the case of genetically identical sibling, complied with the mandate of

our federal Constitution that the person seized be described with particularity.28


28

In People v. Nelson, supra, 43 Cal.4th at page 1262, footnote 1, we recently

noted that “some courts have suggested that, when the odds are like those here, it
might be appropriate for [an] expert to testify that, except for identical twins or
maybe close relatives, „ “it can be concluded to a reasonable scientific certainty
that the evidence sample and the defendant sample came from the same
person.” ‟ ”

(Footnote continued on next page.)

33

(Maryland v. Garrison, supra, 480 U.S. at p. 84.)29 For the reasons stated above,

we likewise conclude the arrest warrant in question described the defendant with

sufficient particularity to avoid a violation of the warrant particularity requirement

of our state Constitution. (Cal. Const., art. I, § 13.)

We now turn to the specific particularity requirement set forth in section

804, subdivision (d), namely, that, a felony prosecution is “commenced” when an



(Footnote continued from previous page.)



In those rare cases in which an arrest warrant is issued describing the

suspect by his DNA profile and it is later discovered that he has a genetically
identical sibling, the DNA profile described in the arrest warrant may not match
only that of the perpetrator of the crime in question. Here, the record contains no
expert testimony regarding the likelihood that a suspect described in such a
warrant will have an identical sibling, nor is there testimony addressing the
likelihood that the 13-loci DNA profiles of identical siblings will be genetically
identical. We therefore do not address the significance, if any, of the possibility
that a suspect described in a DNA-profile arrest warrant may have a genetically
identical sibling. We note that, when our Legislature specifically focused its
attention on DNA in the context of certain sexual offenses and the statute of
limitations, it explicitly recognized that the threat of prosecution for an indefinite
period of time may be warranted once the DNA of a suspect has been collected.
(See § 803, subd. (g)(1).)
29

We note that the constitutional requirement that the subject of an

indictment, complaint, or warrant be identified therein with particularity has
nothing to do with notice to the subject that a warrant has issued or charges have
been filed. The subject receives notice when a warrant is executed, or an
accusatory pleading is served, and no other notice is necessarily required. (See,
e.g., U. S. v. Muse (2d Cir. 1980) 633 F.2d 1041, 1043-1044 [absent prejudice,
sealed indictment is timely though defendant was not apprehended and indictment
was not made public until after limitations period expired]; Fed.R.Crim.Proc., rule
6(e)(4)(18 U.S.C.) [allowing sealing of timely filed indictment until defendant is
in custody].) The constitutional particularity requirement guards against general
arrest warrants and mistaken execution or service against the wrong persons. As
discussed ante, a warrant limited by the unique DNA profile of the intended
subject is not a general warrant because there almost no likelihood that a
description so specific will lead to an erroneous arrest or prosecution.

34

“arrest warrant is . . . issued,” “provided the warrant names or describes the

defendant with the same degree of particularity required for an indictment,

information or complaint.” (Italics added.) The statutory scheme that allows a

qualifying arrest warrant to commence prosecution for purposes of the statute of

limitations clearly incorporates the standards of particularity required by our state

and federal Constitutions. The specific rules by which the sufficiency of our state

accusatory pleadings, including an indictment, information, and complaint, is

determined are prescribed in our Penal Code. (§ 948.) While an accusatory

pleading must specify the “names of the parties” (§ 950), the code provides that,

“[w]hen a defendant is charged by a fictitious or erroneous name, and in any stage

of the proceedings his true name is discovered, it must be inserted in the

subsequent proceedings, referring to the fact of his being charged by the name

mentioned in the accusatory pleading.” (§ 953.) With regard to the name of the

accused, section 959 similarly provides that an “accusatory pleading is sufficient if

it can be understood therefrom: [¶] . . . [¶] 4. That the defendant is named, or if his

name is unknown, that he is described by a fictitious name, with a statement that

his true name is to the grand jury, district attorney, or complainant, as the case

may be, unknown.” Section 960 provides that “[n]o accusatory pleading is

insufficient, nor can the trial, judgment, or other proceeding thereon be affected by

reason of any defect or imperfection in matter of form which does not prejudice a

substantial right of the defendant upon the merits.”

In People v. Erving (1961) 189 Cal.App.2d 283, the indictment charged

“ „Jane Doe (Charlene)‟ ” and described her as “ „female Negro, 39 years, 5' 7' ,

weight 165 lbs, olive complexion.‟ ” (Id. at p. 284.) The court found meritless

defendant‟s argument the indictment was “defective in that the person allegedly

indicted was not adequately named or described in the indictment so that she could

be identified,” although the prosecution conceded that the indictment contained an

35

erroneous weight (165 pounds instead of 110 pounds) and there was some dispute

regarding her complexion. (Id. at p. 290.) Citing Erving, the court in People v.

McCrae (1963) 218 Cal.App.2d 725, similarly rejected an argument that “the

accused was not adequately named or described so that he could be identified as

the defendant herein.” (Id. at p. 728.) In McCrae, the defendant was charged by

the fictitious name of “ „John Doe “Bill” ‟ ” and described as “ „Male Negro, 30-

35 yrs, 5' 7'' - 5' 10' , 150-160 lbs., black hair, brown hair, brown eyes,‟ ” while his

true name was William Martin McCrae and his own description of himself

corresponded closely, though not exactly, with that set forth in the indictment. (Id.

at p. 728; see also People v. Le Roy (1884) 65 Cal. 613, 615 [fact that defendant

was designated by different names in the information was not a ground for setting

it aside under section 995].) The court in McCrae cited an early case of this court,

People v. Kelly (1856) 6 Cal. 210, which, in upholding the constitutionality of

section 953 and discussing how it avoids the delay and expense of remanding a

prisoner for a new indictment when a misnomer is found, observed that “names

are but sounds to designate particular individuals, and, as such, are employed to

describe the person charged with the crime,” and that use of a name in an

accusatory pleading, such as an indictment, “is only designed to identify the

person.” (Kelly, at p. 213.) Here, we conclude the use of a fictitious name and the

description of defendant‟s unique DNA profile adequately described defendant

with the particularity required for an indictment, information, or complaint under

section 950 et seq.

We simply add that, in any event, the fact that defendant was first described

by a fictitious name and his unique DNA profile “did not tend to prejudice the

substantial rights of the defendant.” (People v. Goscinsky (1921) 52 Cal.App. 62,

64.) The fact that defendant was so identified until a cold hit match provided his

36

true name “in no way interfered with his defense to the charge” or created “a

miscarriage of justice.” (Ibid.)

We conclude that, when there is no more particular, accurate, or reliable

means of identification available to law enforcement, an arrest warrant or a

complaint that describes the person to be arrested by a fictitious name and his

unique DNA profile, or incorporating by reference an affidavit containing such a

unique DNA profile, satisfies the particularity requirements of the Fourth

Amendment, the California Constitution, and subdivision (d) of section 804.30

C. The Statute of Limitations

Defendant contends the California Legislature has indicated a “clear intent

that neither a „John Doe‟ complaint nor a „John Doe arrest warrant can timely

commence a criminal action and thereby satisfy a statute of limitations.” He

claims the John Doe warrant that issued regarding the offenses perpetrated against

Deborah L. “circumvented” the limitations period intended by the Legislature and

denied him “due process under the Fourteenth Amendment and the state

Constitution.” Defendant acknowledges this discrete argument is based solely on

the fact that “the complaint and the arrest warrant both were in the name of

defendant „John Doe,‟ an unknown suspect.” He correctly concedes that section

815 permits a John Doe warrant to issue when the defendant‟s name is unknown,

30

Like the constitutional requirement, the statutory particularity requirement

does not mean the defendant must have notice, within the limitations period, that
prosecution has commenced. Instead, the statutory requirement, which the
Legislature could abandon entirely, simply guards against stale claims by
establishing that the state has not slept on its rights, or skirted the limitations
period by initiating a shell action against nobody in particular. The requirement
ensures that a prosecution has validly commenced, within the period set by law,
against the specific person the authorities believe to have committed the subject
crimes. Again, a warrant or complaint that identifies the charged suspect by his
unique DNA profile satisfies these concerns.

37

but he poses the question “whether our Legislature meant section 815 to coexist in

harmony with section 804, so that the action against [him] could commence with

the filing of a „John Doe‟ complaint or the issuance of a „John Doe‟ arrest

warrant.”

In our discussion of the particularity requirements for an arrest warrant or a

complaint, we impliedly answered defendant‟s question in the affirmative. We

explicitly do so below.

In chapter 4 of our Penal Code, which deals with arrests warrants, section

815 provides, in relevant part, that “[a] warrant of arrest shall specify the name of

the defendant or, if it is unknown to the . . . issuing authority, the defendant may

be designated therein by any name.” Section 804 provides, in relevant part, that,

“for the purposes of this chapter, prosecution for an offense is commenced when

any of the follow occurs: [¶] . . . [¶] (d) An arrest warrant or bench warrant is

issued, provided the warrant names or describes the defendant with the same

degree of particularity required for an indictment, information, or complaint.”

(Italics added.)

“Under settled canons of statutory construction, in construing a statute we

ascertain the Legislature‟s intent in order to effectuate the law‟s purpose. (Dyna-

Med, Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379, 1386-

1387.) We must look to the statute‟s words and give them their usual and ordinary

meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) The statute‟s

plain meaning controls the court‟s interpretation unless its words are ambiguous.”

(Green v. State of California (2007) 42 Cal.4th 254, 260.)

By its plain language, section 815 allows an arrest warrant to issue

designating the defendant by a fictitious name if the defendant‟s name is

unknown. By its plain language, section 804 explains that the prosecution for an

offense commences when an arrest warrant is “issued” that “describes the

38

defendant with the same degree of particularity required for an indictment,

information, or complaint.” (§ 804, subd. (d).) Nothing in the plain language of

either section 815 or 804, subdivision (d), suggests that the latter statutory

provision was intended to exclude arrest warrants that designate the defendant by a

fictitious name but describe the defendant with the required particularity from the

general category of arrest warrants that commence a prosecution and thereby

satisfy the statute of limitations. We see no reason not to give effect to the plain

language in both statutes, and we find nothing in the plain language of the two

statutes that suggests they do not coexist in harmony.31

We are aware that defendant relies upon the 1984 California Law Revision

Commission‟s comment to section 804 that “[i]ssuance of a „Doe‟ warrant does

not reasonably inform a person that he or she is being prosecuted and therefore

does not satisfy the statute of limitations.” (Recommendation Relating to Statutes

of Limitations for Felonies (Jan. 1984) 17 Law Revision Com. Rep. (1984) com.

on Pen. Code § 804, p. 322; hereafter, Law Revision Commission Comment.)

That comment goes on to state that “[i]f the name specified in the warrant is not

the precise name of the defendant, it is sufficient that the name identifies the

defendant with reasonable certainty.” (Ibid., italics added.)

First, as defendant recognizes, official comments of the California Law

Revision Commission, while persuasive, are “ „not conclusive[] evidence of

[legislative] intent.‟ ” (Department of Alcoholic Beverage Control v. Alcoholic


31

In that regard, we simply note that our Legislature has not insisted that a

warrant be executed, or that the suspect receive notice a prosecution has
commenced, within the applicable limitations period. The statutes require only
that prosecution must commence within a specified time, and does commence for
this purpose upon issuance of a warrant that either names the suspect or describes
him or her with the requisite particularity.

39

Beverage Control Appeals Board (2006) 40 Cal.4th 1, 12, fn. 9.) We simply note

that the only two cases cited by the commission immediately after the portion of

the comment relied upon by defendant do not stand for the proposition that a John

Doe warrant that describes a defendant with reasonable certainty cannot satisfy the

statute of limitations. Instead, both cases hold there is no due process violation

when a defendant is charged by a fictitious or erroneous name if the true name is

inserted in subsequent proceedings pursuant to section 953. (See People v.

McCrae, supra, 218 Cal.App.2d 725; People v. Erving, supra, 189 Cal.App.2d

283.) The defendants in those two cases claimed the Doe indictments under which

they were initially brought before the court were technically deficient because they

failed to establish that the Does named therein, and the respective defendants

themselves, actually were the same. The Courts of Appeal found that the physical

descriptions and other facts set forth in the indictments, as well as the sworn

testimony of the involved law enforcement officers, left no doubt the defendants

were the specific individuals to whom the indictments referred. Here, the use of

the defendant‟s unique DNA profile had the same effect.

Second, neither the Legislature nor the official comment of the California

Law Revision Commission discusses the precise issue before us, which is whether

a fictitious name such as John Doe, when coupled with the unique DNA profile of

the defendant, identifies the defendant with reasonable certainty such that the

warrant reasonably informs the person that he or she is being prosecuted. As to

this precise question, we reach the same conclusion reached by the New York

appellate court in Martinez, supra, 855 N.Y.S.2d 522, which held that “an

40

indictment that identifies a defendant solely by his or her [unique] DNA markers

satisfies the defendant‟s constitutional right to notice.” (Id. at p. 523.)32

In the New York State trial court, defendant Martinez had argued that the

John Doe designation accompanied by the DNA profile “was defective inasmuch

as it did not „name a person‟ and did not „adequately describe‟ him”; that he was

“given „inadequate notice‟ that he was accused of a crime because he did not know

his own DNA profile”; that he “had been denied his constitutional right to a

speedy trial”; and that “the statute of limitations had lapsed.” (Martinez, supra,

855 N.Y.S.2d at p. 524.) After noting that some of these claims had been waived

by the defendant, the appellate court rejected each claim on the merits by

reasoning as follows: “The right to notice that a defendant is entitled to by


32

However, we agree with the following portion of the Law Revision

Commission Comments to section 804: “Nothing in subdivision (d) limits the
constitutional due process and speedy trial requirements that the warrant be
executed without unreasonable delay. [Citation.]” (Law Revision Com., supra,
17 Cal. Law Revision Com. Rep. p. 323.) We note that the Court of Appeal held
that defendant failed “to establish prejudice for the three-week delay between
August 25, 2000, when the statute of limitations was set to expire, and September
15, the day he was arrested.” (See People v. Archerd (1970) 3 Cal.3d 615, 640 [to
show due process violation defendant must show absence of any legitimate reason
for delay and prejudice].) As the Court of Appeal noted, defendant simply raised
questions about the possibility that someone with a DNA profile matching the one
specified in the warrant might not be found for decades, impairing his ability to
establish a defense. That is not the case here, where law enforcement promptly
processed the crime scene on the day of the crime, collected evidence, took a
vaginal swab from the victim, and developed a DNA profile for the assailant
within the period of limitations. Defendant was arrested a mere three weeks after
the expiration of that period. His sole defense was to contest the reliability of the
statistical probability evidence. Thus, the Court of Appeal properly concluded that
defendant‟s “ability to defend against the charges was not impaired by the
passage of time.” In any event, this due process issue is not before us. (See
People v. Nelson, supra, 43 Cal.4th at pp. 1249-1257; People v. Catlin (2001) 26
Cal.4th 81, 107; People v. Martinez (2000) 26 Cal.4th 750, 765.)

41

indictment is the right to „fair notice of the accusations made against him, so that

he will be able to prepare a defense‟ [Citation.] This function of the indictment is

founded on the notice requirement of . . . our State Constitution as well as the 6th

Amendment to the Federal Constitution. To satisfy this notice requirement, the

indictment must allege all the legally material elements of the charged crime and

state that defendant in fact committed the acts which comprise the elements. The

„basic essential function of an indictment . . . is simply to notify the defendant of

the crime of which he stands indicted‟ [Citation].” (Id. at p. 525.)

The Martinez court explained that, “given the advances in science, the

practice of indicting by DNA is starting to take a foothold in this country‟s

criminal justice system [citation].” (Martinez, supra, 855 N.Y.S. at p. 525.) The

court‟s review of the status of DNA indictments throughout the country is

thorough, and we incorporate it here as part of our analysis: “Some states have

employed non-statutory DNA indictments, but in addition to the federal legislation

(18 USC § 3282) there are four states utilizing statutory DNA indictments. The

non-statutory states include Wisconsin [citation] and Massachusetts [citation].

Examples of legislative implementation of DNA indictments include Ark. Code

Ann. § 5-1-109(b)(1)(B), (i)-(j); Del. Code Ann. tit. 11, § 3307(a); Mich. Comp.

Laws § 767.24(2)(b); N.H. Rev. State. Ann. § 592-A:7(II); and 18 USC § 3282).

States in which a genetic material has been indicted (see Moyer & Anway,

Biotechnology and the Bar: A Response to the Growing Divide Between Science

and the Legal Environment, 22 Berkeley Tech. L.J. 671, 688 [2007]) include

California,[33] Texas, Wisconsin, North Dakota, Pennsylvania, Oklahoma, New


33

We presume the reference to California was based on the Court of Appeal

opinion in this case, an opinion that no longer is citable as representing our state‟s
nonstatutory position on DNA warrants or complaints.

42

York, Utah, Missouri and Kansas [citation].” (Martinez, supra, at pp. 525-526.)

We agree with the court in Martinez that, “[a]bsent a constitutional or

statutory prohibition, a DNA indictment is an appropriate method to prosecute

perpetrators of some of the most heinous criminal acts. Indeed, the prevalence of

DNA databanks today as a criminal justice tool supports the conclusion that a

defendant can be properly identified by a DNA profile, especially in light of the

accuracy of this identification. The chance that a positive DNA match does not

belong to the same person may be less than one in 500 million (see Moyer &

Anway, supra, 22 Berkeley Tech. LJ at 684 n. 64). Therefore, in the instant case,

given the nature of the crime, the notice of the charges received by defendant was

„reasonable under all the circumstances‟ [citation].” (Martinez, supra, 855

N.Y.S.2d at p. 526.) We also agree with Martinez that a defendant‟s

“constitutionally grounded right to fair notice of the crime of which he is accused

is not dependent on the subjective capacity of defendant to understand it. Just as

defendant is not required to be literate for a written indictment to be valid, he is

not required to be a geneticist to be subject to indictment by DNA profile.” (Ibid.)

Defendant‟s argument to the contrary, there is no material difference

between the words “description” and “identification” that would alter our analysis.

The only difference is semantic. As relevant here, the Oxford English Dictionary

defines “describe” in its “ordinary current sense” as “to give a detailed or graphic

account of” “by reference to qualities, recognizable features, or characteristic

marks.” (4 Oxford English Dict. (2d ed. 1989) p. 511.) That dictionary‟s general

definition of “describe” is “[t]o write down, set forth in writing, or in written

words.” (Id., italics added.) Identification is the act of identifying, and a relevant

definition of “identify” is “[t]o ascertain the origin, nature, or definitive

characteristics of.” (American Heritage Dict. (4th ed. 2000) p. 871.) A relevant

definition of “characteristic” is a “distinctive mark, trait, or feature; a

43

distinguishing or essential peculiarity or quality.” (3 Oxford English Dict. (2d ed.

1989) p. 33.) As the Court of Appeal aptly noted, “it cannot be disputed that DNA

analysis is as close to an infallible measure of identity as science can presently

obtain.” “ „A genetic code describes a person with far greater precision than a

physical description or a name[,]‟ ” as physical characteristics can be altered in an

attempt to avoid criminal accountability, but a DNA profile cannot. (Dabney,

supra, 663 N.W.2d at p. 372; see also State v. Danley, supra, 853 N.E.2d at p.

1227; Belt, supra, 179 P.3d at p. 450.)34

The Court of Appeal correctly pointed out that, “[i]n passing the [Act], the

California Legislature found that „(DNA) and forensic identification analysis is a

useful law enforcement tool for identifying and prosecuting sexual and violent

offenders.‟ (Former § 295, subd. (b)(1), as added by Stats. 1998, ch. 696, § 2; see

also People v. King (2000) 82 Cal.App.4th 1363, 1378 [finding there is no

question but that DNA testing provides an efficient means of identification].)

Similar findings have been made by all other states and the federal government,

which have enacted DNA database and data bank acts. (Alfaro v. Terhune

[, supra,] 98 Cal.App.4th [at p.] 505; see Annot., Validity, Construction, and

Operation of State DNA Database Statutes (2000) 76 A.L.R. 5th 239, 252; 42

U.S.C. §§ 14131-14134.)” While a DNA profile match does not guarantee that the

individual matched is guilty of the charged offense, studies have shown that the

chance a positive match does not belong to the same person may be less than one

in 500 million. (Martinez, supra, 855 N.Y.S.2d at p. 526, citing Moyer & Anway,

Biotechnology and the Bar: A Response to the Growing Divide Between Science

and the Legal Environment, supra, 22 Berkeley Tech L.J. at p. 684, fn. 64.)


34

Even a Social Security number may not accurately describe an individual

because a person‟s Social Security number may be false, stolen, or altered.

44

Defendant argues that, because a DNA profile merely provides information

about genetic makeup not apparent to the naked eye, an arrest cannot be readily

executed. However, the intent of the particularity requirement is to “prevent[] the

seizure of one thing under a warrant describing another,” and to ensure that

“nothing is left to the discretion of the officer executing the warrant.” (Marron v.

United States (1927) 275 U.S. 192, 196.) The requirement of particularity is

satisfied and preserved by incorporation of a suspect‟s unique DNA profile in an

arrest warrant. “No matter how well a warrant describes the individual, extrinsic

information is commonly needed to execute it. If a name is given, information to

link the name to the physical person must be acquired.” (Dabney, supra, 663

N.W.2d at p. 372; see also Danley, supra 853 N.E.2d at p. 1228; U.S. v. Doe (1983

3d. Cir.) 703 F.2d 745, 748.) Here, given the reliability of a DNA profile, the

requirement of particularity is satisfied although extrinsic information is needed to

enable law enforcement officers to execute an arrest warrant based on a fictitious

name and DNA profile. (See U.S. v. Doe, supra, 703 F.2d at p. 747 [even with a

detailed written description on a warrant, extrinsic information will be necessary

to execute it].)

In light of the above, we conclude that the prosecution in this case was

properly commenced within the six-year period of limitations by the filing of the

John Doe arrest warrant that described the person suspected of committing the

offenses perpetrated against Deborah L. solely by his unique DNA profile and its

random match probability.

45

DISPOSITION

We remand the matter to the Court of Appeal, Third District, with

directions to remand the matter to the trial court with directions to amend the

abstract of judgment and the minute order of sentencing to reflect the correct Penal

Code section and subdivision for forcible oral copulation. In all other respects, the

judgment is affirmed.

CHIN, J.

WE CONCUR:

GEORGE, C.J.
KENNARD, J.
BAXTER, J.
CORRIGAN, J.

46










CONCURRING AND DISSENTING OPINION

BY MORENO, J.




I dissent from that portion of the majority opinion that holds that the statute

of limitations is satisfied by the filing of a “John Doe” arrest warrant that identifies

the suspect by only a DNA profile. As explained below, the original arrest

warrant filed in this case was not a true warrant because it did not actually

authorize the arrest of anyone; it was a clever artifice intended solely to satisfy the

statute of limitations until the identity of the perpetrator could be discovered.

When this occurred, through a “cold hit” match of defendant‟s DNA, the arrest

warrant was amended to reflect defendant‟s name and only then, after the statute

of limitations had expired, did the warrant become effective and permit defendant

to be arrested.

On August 25, 1994, Deborah L. was raped in her home by an unknown

assailant. It was dark and the victim could provide only a general description of

her attacker as a male of Hispanic or African-American descent with a “medium

black complexion,” appearing to be in his twenties, approximately 5‟7” tall,

weighing about 180 pounds, with brown eyes. A semen sample was recovered

from her vagina when she was treated for her injuries shortly after the crime.

Sacramento Police Detective Peter Willover was assigned as the lead investigator,

but the file lay on his desk, unsolved, for nearly six years.

1

In 2000, Detective Willover was aware that the statute of limitations would

soon expire1 and spoke to the prosecutor about “the possibility of doing some

DNA work on cases that were about to expire in statute of limitations.” Detective

Willover had requested that the semen sample be analyzed for DNA in 1994, but

he did not know if such an analysis had been conducted. Because advances had

been made in DNA technology, he again requested that the sample be tested.

On August 21, 2000, four days before the statute of limitations was to

expire, a felony complaint was filed charging “JOHN DOE 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), D18S5a (20,20), D5S818 (8,13),

D13S317 (10,11)” with rape and four related sexual offense against the victim on

August 25, 1994.

On August 22, 2000, Detective Willover executed a declaration in support

of an arrest warrant for John Doe stating that “DNA was extracted from the sperm

fraction obtained and this DNA was typed at 13 genetic locations.” The

declaration recited the above quoted DNA profile that was included in the

complaint. An arrest warrant was issued that day for “JOHN DOE,” describing

him only as a Black male. A related document stated, under the designation

“REMARKS”: “SUSPECT IDENTIFIABLE BY GENETIC PROFILE IN

SACRAMENTO POLICE DEPARTMENT REPORT [94-]70626. CONTACT

SPD DET. PETE WILLOVER [telephone number] OR SACRAMENTO


1

Penal Code section 800 provides that the statute of limitations for this crime

expires “six years after commission of the offense.”

2

DISTRICT ATTORNEY‟S ADULT SEXUAL ASSAULT UNIT [telephone

number].”

On September 15, 2000, an analysis of defendant‟s DNA resulted in a “cold

hit” match with the DNA profile obtained from the semen recovered from the

victim in this case. On September 18, 2000, more than six years after the victim

was sexually assaulted, the complaint and the arrest warrant were amended to

replace the “John Doe” designation and DNA profile with the name of defendant,

Paul Robinson, and defendant was arrested.

On November 20, 2000, defendant filed a motion to dismiss on the ground

that the statute of limitations had expired before the amended complaint was filed.

At a subsequent hearing, the district attorney who prepared the original complaint

and arrest warrant testified that the suspect‟s DNA profile had not been entered on

the face of the arrest warrant because “the way the computer system is set up, it

will not take that many characters in identifying information.” She agreed that a

peace officer would not have had enough information to make an arrest based

upon the arrest warrant alone without contacting Detective Willover or herself.

A clerk in the warrants section of the Sacramento Police Department

testified that standard procedure includes entering a felony arrest warrant in either

the “California wanted persons or NCIC, which is nationwide want[ed] persons

system,” but it is not possible to do so without certain “mandatory information,”

which includes “the name, sex, date of birth, [and] height.” Neither warrant

system permits entry of a DNA profile. Accordingly, the arrest warrant in the

present case had not been entered into either the statewide or national system

because there were “not enough criteria for entry.” The clerk explained: “There

would be really nothing for us to do. There is not enough information here to go

forward with any of the record checks.”

3

Standard procedure also includes assigning a peace officer to execute the

warrant. The warrant in the present case had not been assigned to an officer

because “[t]here was not enough information to assign it to anybody . . . .” When

asked whether she would have assigned the arrest warrant to an officer to execute

if a DNA profile had appeared on the face of the warrant, the clerk replied she

would not, because “I know nothing about DNA.”

Detective Willover acknowledged that the original arrest warrant did not

authorize the arrest of any individual, stating: “I would not, as a peace officer,

arrest somebody just on the face of this” because the arrest warrant “doesn‟t

identify the individual named in the warrant.” If an officer had telephoned him, as

called for in the “Remarks” section of the document accompanying the warrant,

Detective Willover testified he “would explain to the officer it is a warrant in the

name of John Doe due to the fact we don‟t know who the individual is, and I

would explain to the officer that most likely we have not had a DNA hit yet and

there is nobody to arrest.” It was not until September 15, 2000, when he received

word from the crime lab that defendant‟s DNA had been matched to the semen

sample, that there was sufficient information to arrest anyone based upon the

arrest warrant.

The detective admitted that the only reason to issue the arrest warrant was

to prevent the statute of limitations from expiring:

“Q. Detective, you testified you knew you could not execute the warrant

until after a match; is that correct?

“A. Yes, sir.

“Q. Why is that?

“A. I didn‟t know who the person was.

“Q. So why did you get the warrant?

“. . . .

4

“[A.] I was aware that once a warrant is issued on the case, a statute of

limitations would not expire as long as you showed due diligence. In my mind, I

was hoping to be able to identify and prosecute the person who committed these

crimes.”

In my view, the trial court should have granted the motion to dismiss

because the prosecution of defendant was not commenced until after the statute of

limitations had expired. The arrest warrant that was issued a few days before the

statute of limitations expired was not a true arrest warrant; it was a mere

placeholder, because it did not authorize the arrest of any individual. It was not

until the warrant was amended to replace the name John Doe and the reference to

the DNA profile with defendant‟s name that the warrant became effective and the

prosecution commenced; but this was too late, because the statute of limitations

had already expired.

I do not impugn the motives of Detective Willover or the prosecutor. They

made an inventive attempt to continue investigating a serious crime. But

permitting this attempt to succeed creates a large loophole in the statute of

limitations that the Legislature did not intend.

Statutes of limitation are not required by either the state or federal

Constitutions, and “[t]here is no statute of limitations for murder, embezzlement of

public funds, and certain other offenses punishable by life imprisonment.

[Citation.]” (People v. Frazer (1999) 21 Cal.4th 737, 743; see id. at pp. 769-770.)

The interests of the state protected by statutes of limitation “include both societal

repose and the protection of individuals whose means of defense might be

impaired by the passage of time. [Citations.]” (Id. at p. 770.) Statutes of

limitation “encourage the swift and effective enforcement of the law, hopefully

producing a stronger deterrent effect.” (People v. Zamora (1976) 18 Cal.3d 538,

547.) “[A]doption of a period of limitation represents a legislative recognition that

5

for all but the most serious of offenses (such as murder or kidnapping) a never-

ending threat of prosecution is more detrimental to the functioning of a civilized

society than it is beneficial. [Citations.]” (Ibid.)

“California‟s criminal statutes of limitation were first enacted in 1851 and

codified in 1872.” (People v. Frazer, supra, 21 Cal.4th at p. 743.) In 1981, the

Legislature directed the California Law Revision Commission (sometimes

hereafter Commission) to study the statutes of limitations and make

recommendations. (Stats. 1981, ch. 909, § 3, p. 3443.) As a result, “[t]he entire

scheme . . . was overhauled in 1984. [Citation.]” (Id. at p. 743; Stats. 1984,

ch. 1270, § 2, p. 4335.)

The Law Revision Commission began its recommendations by examining

the functions of statutes of limitations in felony prosecutions: “The pre-eminent

function of a felony limitations statute is to protect a person accused of crime both

from having to face charges based on evidence that may be unreliable and from

losing access to the evidentiary means to defend against the accusation. . . . [W]ith

the passage of time, memory becomes less reliable, witnesses die or become

otherwise unavailable, and physical evidence becomes more difficult to obtain

. . . .” (Recommendation Relating to Statutes of Limitation for Felonies (Jan.

1984) 17 Cal. Law Revision Com. Rep. (1984) p. 308 (hereafter

Recommendation).)

The Law Revision Commission carefully explained why it recommended

that certain acts should be deemed to commence prosecution sufficient to satisfy

the statute of limitations: “The statute should be satisfied when the accused is

informed of the decision to prosecute and the general nature of the charge with

sufficient promptness to allow the accused to prepare a defense before evidence of

his or her innocence becomes weakened with age. Actions that satisfy this general

standard should amount to commencement of prosecution for the purpose of the

6

statute of limitations.” (Recommendation, supra, at p. 316.) The Commission

concluded that the “finding of an indictment, the filing of an information, and the

certification of a case to the superior court are all acts that commence

prosecution,” stating: “Each of these events marks a formal decision by the

prosecution as to the general nature of the charge and the identity of the accused,

and will ordinarily come to the attention of the accused.” (Ibid., italics added.)

The Commission‟s reason for adding the filing of an arrest warrant to the

list of actions that commence a prosecution and satisfy the statute of limitations

stemmed, in part, from its recommendation that the statute of limitations no longer

be tolled while the suspect is absent from the jurisdiction. The Commission

recommended that instead of tolling the statute of limitations while the suspect is

absent from the jurisdiction, “the statute of limitations can be satisfied by issuing a

warrant for arrest of the person.” (Recommendation, supra, at p. 315.) But

issuing an arrest warrant would satisfy the statute of limitations only if “the

warrant specifies the name of the defendant or identifies and describes the

defendant with sufficient particularity. Otherwise there is the possibility that a

„Doe‟ warrant would satisfy the statute without ever reasonably informing a

person that he or she is being prosecuted.” (Id. at p. 316, italics added.)

The Law Revision Commission recommended that Penal Code section 804,

subdivision (d)2 be added to provide that “prosecution of an offense is commenced

when . . . [¶] . . . [¶] (d) An arrest warrant is issued, provided the warrant names

or describes the defendant with the same degree of particularity required for an

indictment, information, or complaint.” (Recommendation, supra, at p. 322.) The

Commission added a comment explaining that the warrant must “specify the name


2

Further undesignated statutory references are to the Penal Code.

7

of the defendant or describe the defendant with particularity” because “[i]ssuance

of a „Doe‟ warrant does not reasonably inform a person that he or she is being

prosecuted and therefore does not satisfy the statute of limitations.” (Ibid.) The

Legislature enacted section 804 exactly as the Commission proposed, except for

adding the words “or bench warrant” to subdivision (d). (Stats. 1984, ch. 1270,

§ 2, p. 4336.)

“Because the official comments of the California Law Revision

Commission „are declarative of the intent not only of the draftsman of the code but

also of the legislators who subsequently enacted it‟ [citation], the comments are

persuasive, albeit not conclusive, evidence of that intent. [Citation.]” (Bonanno v.

Central Contra Costa Transit Authority (2003) 30 Cal.4th 139, 148.) Nothing in

the legislative history of section 804, subdivision (d), runs counter to the above-

quoted comment. Nothing in that history suggests that the Legislature intended

that the filing of a “John Doe” arrest warrant that refers to a DNA profile would

satisfy the statute of limitations. Rather, it is abundantly clear that such a warrant

is deficient for statute of limitations purposes, because it “does not reasonably

inform a person that he or she is being prosecuted and therefore does not satisfy

the statute of limitations.” (Recommendation, supra, at p. 322.)

The majority reasons that the arrest warrant was sufficient because the

reference to a DNA profile prevented the warrant from being a “general warrant,

upon which any other person might as well have been arrested.” (West v. Cabell

(1894) 153 U.S. 78, 86.) I agree that this was not a general warrant. The flaw

here is not that the warrant authorized the arrest of too many people, but that it

authorized the arrest of no one at all.

The majority acknowledges that the statute of limitations would not be

satisfied by “initiating a shell action against nobody in particular.” (Maj. opn.

ante, at p. 37, fn. 30.) It is true that the DNA warrant in this case was aimed at

8

one particular suspect, but it still was a shell action, because the prosecution did

not yet know the identity of that suspect. In fact, the prosecution likely would

never had been able to identify the suspect had he not been arrested for a new

crime and been forced to provide a blood sample. The investigating officer

candidly admitted that the warrant was not intended to authorize the arrest of

anyone until a match had been found for the DNA sample. The Attorney General

states that “until a match was made, the warrant could not be executed.” When

that happened, the warrant was amended to reflect defendant‟s name and then, and

only then, was it transformed from a shell action into a true warrant that could

authorize the arrest of a person.

The majority concludes that the DNA arrest warrant satisfied section 804,

which requires that the warrant “describe” the defendant with particularity. I

disagree. The original arrest warrant in the present case did not describe the

defendant at all, because it gave no means for a peace officer attempting to

execute the warrant to recognize the defendant and make an arrest. The Oxford

English Dictionary defines the word “describe” as follows: “To set forth in words,

written or spoken, by reference to qualities, recognizable features, or characteristic

marks; to give a detailed or graphic account of. (The ordinary current sense.)” (4

Oxford English Dict. (2d ed. 1989) p. 511, col. 3.) A DNA profile does not

consist of words and does not refer “to qualities, recognizable features, or

characteristic marks.” A DNA profile can be used to identify a person, in the

same sense that a valid Social Security number can identify an individual, but

neither a Social Security number nor a DNA profile “describes” that person.

Unlike a detailed physical description, a DNA profile neither describes the

suspect in the conventional sense that would permit an arresting officer to

recognize and arrest the suspect, nor identifies a particular person. At most, a

DNA profile is information that can be used to identify a suspect once a DNA

9

match is made, but it is not a substitute for the detailed physical description

required in a “John Doe” warrant.

The rule the majority creates does not result in an injustice in this particular

case. To the contrary, defendant is guilty of heinous crimes and deserves the

punishment he will receive. But the effect of the majority‟s rule is not limited to

this case. It will permit this type of sham arrest warrant to be used to circumvent

the statute of limitations in any criminal prosecution in California in which

biological evidence is left at the crime scene from which DNA can be extracted.

Our ruling is not limited to situations like the present case in which DNA is

extracted from semen recovered from a rape victim. It would apply equally if a

human hair is found at the crime scene from which DNA can be extracted, or if the

suspect left blood at the scene. And it is not limited to cases involving a sexual

assault. Thus, the prosecution can effectively circumvent the statute of limitations

in any case in which the police happen to find DNA evidence linking a suspect to

the crime. In those cases, an arrest warrant identifying the suspect only by his or

her DNA profile can be filed and the statute of limitations will not bar the case

from being prosecuted whenever a match is made — whether that be a matter of

months, years, or decades.

The majority opinion will have the unfortunate effect of usurping the

Legislature‟s reasoned and measured treatment of the statute of limitations in

cases involving DNA evidence. After the statute of limitations had expired in this

case, the Legislature enacted subdivision (g)(1) of section 803, which establishes a

special one-year statute of limitations for certain sexual offenses, including rape,

that runs from “the date on which the identity of the suspect is conclusively

10

established by DNA testing.”3 The Legislature carefully limited the scope of

section 803, subdivision (g)(1). It is limited to those sexual offenses for which a

conviction would result in lifetime sexual offender registration under section 290.

The DNA evidence must be analyzed “no later than two years from the date of the

offense.” And the criminal complaint must be filed within one year from when the

identity of the suspect is established. None of these limitations apply to the

majority‟s holding. A DNA arrest warrant may be filed for any criminal offense.

The DNA evidence may be analyzed at any time before the ordinary statute of

limitations for the offense has run. And because the filing of the DNA arrest

warrant satisfies the statute of limitations, if the DNA profile later is matched to a

suspect‟s DNA, there is no further statute of limitations governing when the

prosecution must amend the arrest warrant and arrest the suspect and file a

criminal complaint.

The majority‟s holding will thus abrogate the careful limitations crafted by

the Legislature. The prosecution can use DNA arrest warrants to satisfy the statute

of limitations for crimes expressly excluded from the scope of section 803,

subdivision (g)(1). For sexual crimes covered by section 803, subdivision (g)(1),

if the prosecution fails to analyze the DNA evidence within two years from the

date of the offense, the majority‟s holding would still permit the prosecution to

analyze the evidence and file a DNA arrest warrant at any time before the ordinary

statute of limitations for the offense expires. And if the prosecution has satisfied


3

It is interesting to note that the Legislature used the phrase “the date on

which the identity of the suspect is conclusively established by DNA testing” to
mean when a DNA profile obtained from evidence collected from the crime scene
is matched to a particular suspect. This is at odds with the majority‟s holding that
obtaining a DNA profile from evidence collected from a crime scene identifies the
suspect.

11

the statute of limitations by filing a DNA arrest warrant, the limitation imposed by

section 803, subdivision (g)(1) that a criminal complaint must be “filed within one

year of the date on which the identity of the suspect is conclusively established by

DNA testing” does not apply.

Our resolve as a court is tested when we are called upon to release a guilty

person in order to defend a principle. This defendant certainly committed heinous

crimes against an innocent victim, but it is our duty to apply the laws enacted by

the Legislature evenly and rationally, even if that means letting a guilty person go

free. “[T]he potential that a guilty person will avoid just punishment is inherent in

all statutes of limitations. Society has assumed this loss in exchange for other

considerations.” (People v. Frazer (1999) 21 Cal.4th 737, 784 (dis. opn. of

Brown, J.).)

The DNA arrest warrant in this case was not a true warrant, because it did

not authorize the arrest of anyone. It was a shell, a clever artifice designed to

satisfy the statute of limitations so the criminal investigation could continue

indefinitely until the perpetrator was identified. The filing of the DNA arrest

warrant in this case did not commence a criminal prosecution against defendant

and, thus, did not satisfy the statute of limitations.

MORENO, J.

I CONCUR: WERDEGAR, J.

12

See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion People v. Robinson
__________________________________________________________________________________

Unpublished Opinion

Original Appeal
Original Proceeding
Review Granted
XXX 156 Cal.App.4th 508
Rehearing Granted

__________________________________________________________________________________

Opinion No.
S158528
Date Filed: January 25, 2010
__________________________________________________________________________________

Court:
Superior
County: Sacramento
Judge: Peter N. Mering*

__________________________________________________________________________________

Attorneys for Appellant:

Cara DeVito, under appointment by the Supreme Court, for Defendant and Appellant.




__________________________________________________________________________________

Attorneys for Respondent:

Bill Lockyer and Edmund G. Brown, Jr., Attorneys General, Mary Jo Graves and Dane R. Gillette, Chief
Assistant Attorneys General, Gerald A. Engler and Michael P. Farrell, Assistant Attorneys General,
Michael Chamberlain, Stephanie A. Mitchell, Doris A. Calandra and Enid A. Camps, Deputy Attorneys
General, for Plaintiff and Respondent.








*Retired judge of the Sacramento Superior Court, assigned by the Chief Justice pursuant to article VI,
section 6 of the California Constitution.





Counsel who argued in Supreme Court (not intended for publication with opinion):

Cara DeVito
6520 Platt Avenue
West Hills, CA 91307-3218
(818) 999-0456

Enid A. Camps
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5976

Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. The court limited the issues to be briefed and argued to the following: (1) Does the issuance of a "John Doe" complaint and arrest warrant timely commence a criminal action and thereby satisfy the statute of limitations? (2) Does an unknown suspect's DNA profile satisfy the "particularity" requirement for an arrest warrant? (3) What remedy is there, if any, for the unlawful collection of genetic material under the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Pen. Code, section 295 et seq.)?

Opinion Information
Date:Citation:Docket Number:Category:Status:
Mon, 01/25/201047 Cal. 4th 1104, 224 P.3d 55, 104 Cal. Rptr. 3d 727S158528Review - Criminal Appealsubmitted/opinion due

Parties
1The People (Plaintiff and Respondent)
Represented by Doris A. Calandra
Office of the Attorney General
455 Golden Gate Aveneue, Suite 11000
San Francisco, CA

2The People (Plaintiff and Respondent)
Represented by Enid A. Camps
Office of the Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA

3Robinson, Paul Eugene (Defendant and Appellant)
High Desert State Prison
P.O. Box 3030
Susanville, CA 96130

Represented by Cara DeVito
Attorney at Law
6520 Platt Avenue, PMB 834
West Hills, CA


Opinion Authors
OpinionJustice Ming W. Chin
ConcurJustice Carlos R. Moreno
DissentJustice Carlos R. Moreno

Dockets
Nov 27 2007Request for publication filed (initial case entry)
Plaintiff and Respondent: The PeopleAttorney: Doris A. Calandra   The People, respondent by Doris A. Calandra, Deputy Attorney General
Nov 28 2007Received:
  Letter from Third District Court of Appeal dated 11-26-2007, enclosing the correct order signed on 11-26-2007, denying respondent's request to publish Parts II and III of the opinion filed 10-26-2007.
Nov 29 2007Petition for review filed
  Appellant Paul Eugene Robinson Attorney Cara DeVito, Court of Appeal appt.
Dec 7 2007Received:
  Request for Publication of Part II of the Opinion by Enid A. Camps, Deputy Attorney General
Dec 11 2007Record requested
  via email
Dec 12 2007Received Court of Appeal record
  one doghouse
Jan 22 2008Time extended to grant or deny review
  The time for granting or denying reivew in the above-entitled matter is hereby extended to and including February 27, 2008, or the date upon which review is either granted or denied.
Feb 13 2008Petition for review granted (criminal case)
  The petition for review is granted. The issues to be briefed and argued are limited to the following issues and any issues fairly subsumed within them: 1) Does the issueance of a "John Doe" complaint and arrest warrant timely commence a criminal action and thereby satisfy the statute of limitations? (2) Does an unknown suspect's DNA profile satisfy the "particularity" requirement for an arrest warrant? (3) What remedy is there, if any, for the unlawful collection of genetic material under the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Pen. Code, section 295 et seq.)? Briefing on the following issue is deferred pending consideration and disposition of a related issue in People v. Nelson, S147051: Is the methodology for assessing the statistical significance of a "cold hit" from a DNA database a novel scientific question requiring proof of general scientific acceptance under People v. Kelly (1976) 17 Cal.3d 24? Votes: George, C.J., Kennard, Baxter, Wedegar, Chin, Moreno, and Corrigan, JJ.
Feb 22 2008Counsel appointment order filed
  Upon request of appellant for appointment of counsel, Cara DeVito is hereby appointed to represent appellant on the appeal now pending in this court. Appellant's brief on the merits must be served on or before thirty (30) days from the date of this order.
Mar 17 2008Request for extension of time filed
  Appellant Paul Eugene Robinson requesting extension till May 23, 2008 to file opening brief on the merits. by Cara DeVito, counsel
Mar 20 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including May 23, 2008.
May 19 2008Request for extension of time filed
  Appellant - Paul Eugene Robinson requesting additional extension until June 23, 2008, to file opening brief on the merits. by Cara Devito, counsel
May 21 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the opening brief on the merits is extended to and including June 23, 2008.
Jun 30 2008Opening brief on the merits filed
  Paul Eugene Robinson, appellant by Cara DeVito, counsel
Jul 23 2008Request for extension of time filed
  Respondent - The People requesting sixty (60) day extension until September 29, 2008 to file respondents brief on the merits. by Enid A. Camps, Deputy Attorney General
Jul 28 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including September 29, 2008.
Sep 26 2008Request for extension of time filed
  Respondent - The People requesting thirty (30) day extension until October 29, 2008 to file respondent's reply brief on the merits. by Enid A. Camps, Deputy Attorney General
Oct 6 2008Extension of time granted
  On application of respondent and good cause appearing, it is ordered that the time to serve and file the answer brief on the merits is extended to and including October 29, 2008.
Oct 29 2008Filed:
  Application re: request to file respondent's brief in excess of 14,000 words. by Enid A. Camps, Deputy Attorney General
Oct 31 2008Answer brief on the merits filed
  The People, respondent by Enid A. Camps, Deputy Attorney General filed with permission
Nov 10 2008Request for extension of time filed
  Appellant Paul Eugene Robison's request for extension of time until December 22, 2008 to file reply brief on the merits. by Cara DeVito, counsel
Nov 13 2008Extension of time granted
  On application of appellant and good cause appearing, it is ordered that the time to serve and file the reply brief on the merits is extended to and including December 22, 2008.
Dec 11 2008Compensation awarded counsel
  Atty DeVito
Dec 24 2008Received:
  Appellant Paul Eugene robinson's motion to file oversized reply brief on the merits. by Cara Devito, counsel crc.8.25(b)
Dec 30 2008Reply brief filed (case fully briefed)
  Paul Eugene Robinson, appellant by Cara DeVito, counsel filed with permission.
Feb 11 2009Supplemental briefing ordered
  The parties are hereby directed to file with the Clerk of the Supreme Court on or before February 25, 2009, simultaneous letter briefs addressing the effect, if any, of the holding in Herring v. United States (2009) ___ U.S. ___ [129 S.Ct. 695] on the following issue. (1) Does the issue of whether the exclusionary rule applies to blood samples mistakenly collected from defendant Robinson by law enforcement for inclusion in our state DNA data base? Simultaneous reply briefs may be filed on or before March 11, 2009. Werdegar, J. was absent and did not participate.
Feb 25 2009Supplemental brief filed
  Paul Eugene Robinson, appellant by Cara Devito, counsel
Feb 25 2009Supplemental brief filed
  The People, respondent by Enid A. Camps, Deputy Attorney General
Mar 11 2009Supplemental brief filed
  Eugene Paul Robinson, appellant by Cara DeVito, counsel
Mar 11 2009Supplemental brief filed
  The People, respondent (reply) by Enid A. Camps, Deputy Attorney General
Mar 13 2009Received:
  letter dated March 11, 2009 from appellant's counsel - Cara Devito regarding scheduling oral arguments.
Jun 5 2009Order filed
  On application of respondent and good cause appearing, it is ordered that the time to serve and file respondent's answer brief on the merits is extended to and including September 29, 2008. This order is entered nunc pro tunc as of July 28, 2008 due to clerical error.
Oct 1 2009Case ordered on calendar
  to be argued Tuesday, November 3, 2009, at 9:00 a.m., in Berkeley
Oct 14 2009Request for extended media coverage filed
  by The California Channel.
Oct 16 2009Request for extended media coverage granted
  The request for extended media coverage, filed by The California Channel on October 14, 2009, is granted subject to the conditions set forth in rule 1.150, California Rules of Court.
Oct 20 2009Request for extended media coverage filed
  by The Daily Journal (still camera).
Oct 22 2009Request for extended media coverage granted
  The request for extended media coverage, filed by The Daily Journal on October 20, 2009, is granted subject to the conditions set forth in rule 1.150, California Rules of Court.
Oct 23 2009Received:
  Additional authority for oral argument (November 3, 2009) by Cara Devito, counsel for appellant.
Oct 23 2009Received:
  additional authority for oral argument (November 3, 2009). by Enia A. Camps, counsel for respondent
Nov 3 2009Cause argued and submitted
 
Jan 22 2010Notice of forthcoming opinion posted
  To be filed on Monday, January 25, 2010 at 10 am.

Briefs
Jun 30 2008Opening brief on the merits filed
 
Oct 31 2008Answer brief on the merits filed
 
Dec 30 2008Reply brief filed (case fully briefed)
 
Brief Downloads
application/pdf icon
s158528_-_petition_for_review.pdf (3615811 bytes) - Petition for Review
application/pdf icon
s158528_-_opening_brief_on_the_merits.pdf (3268067 bytes) - Opening Brief on the Merits
application/pdf icon
s158528_-_answer_brief_on_the_merits.pdf (5532798 bytes) - Answer Brief on the Merits
application/pdf icon
s158528_-_reply_brief_on_the_merits.pdf (2122545 bytes) - Reply brief on the Merits
application/pdf icon
s158528_-_appellant_supplemental_brief_-_02-25-09.pdf (466212 bytes) - Appellant's Supplemental Brief
application/pdf icon
s158528_-_respondent_reply_supplemental_brief_-_02-25-09.pdf (487029 bytes) - Respondent's Supplemental Brief
application/pdf icon
s158528_-_appellant_supplemental_brief_-_03-11-09.pdf (227069 bytes) - Appellant's Reply Supplemental Brief
application/pdf icon
s158528_-_respondent_reply_supplemental_brief_-_03-11-09.pdf (555116 bytes) - Respondent's Reply Supplemental Brief
If you'd like to submit a brief document to be included for this opinion, please submit an e-mail to the SCOCAL website
May 2, 2010
Annotated by billyb1

Facts:
The police filed a “John Doe” arrest warrant including a description of Defendant’s unique DNA profile but not including Defendant’s actual name six days before the statute of limitations passed for a forcible rape violation. After identifying Defendant, several weeks after the statute of limitations passed, the police amended the warrant to include his real name and he was arrested the same day. The police DNA lab matched Defendant’s DNA collected from semen sample on the victim the day of the rape to a blood sample collected from Defendant while in prison serving felony burglary and misdemeanor spousal abuse sentences. The statute that allows taking blood from felons provides a list of enumerated felonies, and officers at the prison and lab mistakenly thought Defendant qualified when in actuality he did not (the enumerated crime was felony spousal abuse and felony burglary wasn’t added until several years later).

Procedural Posture:
Defendant was convicted by a jury of five felony sexual offenses. He appealed, citing three reasons he was wrongly convicted: (1) the issuance of a “John Doe” complaint or arrest warrant does not timely commence a criminal action and therefore does not satisfy the statute of limitations; (2) an unknown suspect’s DNA profile does not satisfy the “particularity” requirement for an arrest warrant; and (3) the unlawful collection of genetic material evidence under the 1998 version of the Data Base and Data Bank Act requires exclusion of the evidence in court. The California Court of Appeal affirmed the conviction, rejecting all of Defendant’s theories, and Defendant sought further review.

Opinion (J. Chin)
The California Supreme Court affirmed the Court of Appeal’s holding and remanded to the trial court to fix a minor mistake in sentencing documentation (the wrong Penal Code section was cited for one of the felonies).

On the first point, the Court found that the issuance of a “John Doe” arrest warrant does timely commence a criminal action and therefore the police satisfied the statute of limitations requirement in this case. Defendant claimed that, according to legislative comments in 1984, Cal. Pen. Code § 804, which describes the necessary features of an acceptable “John Doe” arrest warrant, and § 815, which governs which documents are acceptable to satisfy the statute of limitations, cannot exist in harmony and that John Doe warrants, although acceptable as long as the defendant is reasonably described, are not acceptable documents to meet the statute of limitations. The Court looked to the plain language of both statutes and found that this is not the case. § 804 permits warrants that do not include the name of the defendant as long as he or she is reasonably described and § 815 allows warrants that either include the actual name or a reasonable description to meet the statute of limitations. The Court found that the second type of warrant applies in this case.

On the second point, the Court found that the “John Doe” arrest warrant did satisfy the particularity requirement under both the Fourth Amendment of the U.S. Constitution and the California Constitution. The Court relied on U. S. v. Hayes, 794 F.2d 1348, 1354, (9th Cir. 1986) in ruling that a warrant only needs to be reasonably specific. Furthermore, “the specificity required, varies depending on the circumstances of the case and the type of items involved.” U. S. v. Rude, 88 F.3d 1538, 1551 (9th Cir. 1996). When applying such a flexible rule to this case, the Court found that “there was no more particular, accurate, or reliable means of identification available to law enforcement than the suspect’s unique DNA profile.” Thus, the police satisfied the reasonableness requirement for particularity.

Finally, The Court ruled that Defendant was not entitled to the exclusionary rule when authorities mistakenly collected his blood sample. Defendant contended that unjustly taking his blood violated the California Constitution. The Court looked to the Fourth Amendment of the U.S. Constitution to determine if this was such a violation, since the California Constitution defers to the U.S. Constitution in that an exclusionary rule cannot exceed the scope of the Fourth Amendment. The Court applied a reasonableness test to determine the constitutionality of such a “search.” In doing so, it looked at the totality of the circumstances, finding that drawing blood is so commonplace these days that doing so is a minimal violation of the Fourth Amendment, and in prison situations, where drawing blood is part a routine part of medical procedures, it is even further minimized. To determine if the minimal violation qualified for the exclusionary rule, the Court imposed a balancing test, balancing the rights of Defendant with the state’s legitimate interests. The court found that the minimal violation of Defendant’s rights lost out to the state’s need for a “reasonable law enforcement tool for solving crimes.” Finally, because the police officials exercised a good faith attempt to ensure Defendant’s rights when determining whether they were permitted to take blood from him, the violation does not qualify for the exclusionary rule.

Concurrence and Dissent (J. Moreno)
This opinion only took issue with the statute of limitations, concurring with the particularity and mistaken blood sample decisions. The dissent concluded that the original “John Doe” warrant was a sham, filed only for the purpose of meeting the statute of limitations, and as such should not count.

The dissent determined that the second warrant that included the name of Defendant, and thus the commencement of the prosecution, should have been the date relied on for determining if the statute of limitations had been met. The detective assigned to the case was not sure about the DNA matching when he initially filed an arrest warrant, leading the dissent to believe he was scrambling to find another method of keeping the case alive. Also, in order to meet the statute of limitations, a warrant must give a defendant proper notice, which in this case was nonexistent because the DNA code was like a “Social Security number” in that it can identify an individual but it does not sufficiently “describe” a person the way § 804 requires.

Jan 9, 2009
Annotated by diana teasland

Written by Kelly Lowenberg

Issues: “Petition for review after the Court of Appeal affirmed a judgment of conviction of criminal offenses. The court limited the issues to be briefed and argued to the following: (1) Does the issuance of a "John Doe" complaint and arrest warrant timely commence a criminal action and thereby satisfy the statute of limitations? (2) Does an unknown suspect's DNA profile satisfy the "particularity" requirement for an arrest warrant? (3) What remedy is there, if any, for the unlawful collection of genetic material under the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Pen. Code, section 295 et seq.)?” http://appellatecases.courtinfo.ca.gov/search/case/mainCaseScreen.cfm?di...

Background:
In 1994, a man broke into a second story apartment in Sacramento, woke the sleeping occupant, and raped her. The victim identified her attacker as a man who was probably African-American, but may have been Hispanic. The crime went unsolved, but on August 21, 2000, four days before the statute of limitations would have expired, the Sacramento police created a 13-locus DNA profile from the semen found on the victim, charged a John Doe with that DNA profile for the rape and put out a warrant for that John Doe. Three weeks later, police were notified that the DNA profile in their warrant matched an existing DNA profile (called a “cold hit”) in the California Department of Justice Convicted Offender DNA Database for Paul Eugene Robinson. The warrant was amended to include Robinson’s name, and he was arrested.
Robinson’s DNA, however, should not have been entered into the Convicted Offender DNA Database. Under the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Pen. Code § 295 et seq. [link to document # 11]), Robinson’s criminal record did not qualify him for inclusion in the database. Due to a series of errors made by personnel at the correctional facility housing Robinson and at the DOJ, Robinson’s blood was taken in 1999, and his DNA was entered into the database.

Summary of Superior Court Holding [link document #2]
Robinson’s defense attorney, Johnny Griffin, moved for dismissal because Robinson was identified after the statute of limitation had expired. Judge Peter Mering denied the motion to dismiss and ruled that the DNA profile in the John Doe warrant satisfied the “reasonable particularity requirement” as described in West v. Cabell (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=us&vol=153&invol=78). Moreover, Judge Mering wrote that DNA appears “to be the best identifier of a person that we have.” Superior Court Opinion at 136.
At trial, the defense argued that the DNA evidence was insufficiently reliable to establish guilt. The prosecutor, Anne Marie Schubert, Deputy District Attorney for the County of Sacramento called three expert witnesses to testify to the statistical significance of a cold hit in California's DNA database, including Gary Sims, the (then) director of the Richmond CA state crime lab ([link to document #14]), Dr. Ranajit Chakraborty, (then) a professor at the University of Cincinnati College of Medicine ([link to document #13]), and Dr. George Sensabaugh, a professor at UC Berkeley ([link to document #12]). The defense called two expert witnesses, including Dr. Laurence Mueller, a population geneticist and evolutionary biologist, to testify that there is no accepted statistical technique to test for the significance of a cold hit match. According to the prosecution’s expert witnesses, the probability of a match at all 13-loci of the DNA sample was one in 650 quadrillion in the African American population, one in six sextillion in the Caucasian population, and one in 33 sextillion in the Hispanic population. These numbers were contradicted by the defense’s expert witnesses. Robinson was convicted of one count of forcible oral copulation, two counts of penetration with a foreign object and two counts of rape. Judge Peter Mering sentenced Robinson to 65 years in prison, the maximum on each count.

Summary of Court of Appeals Holding [link to document #3]
On appeal, Cara Devito represented Mr. Robinson, and Prosecutors were listed as Edmund G. Brown, Jr., Bill Lockyer, Attorneys General, Mary Jo Graves, Dane R. Gillette, Chief Assistant Attorneys General, Gerald A. Engler, Senior Assistant Attorney General, Michael Chamberlain, Doris A. Calandra and Enid A. Camps, Attorneys General, for Plaintiff and Respondent. Presiding Judge Coleman Blease wrote the opinion for the Court of Appeals in the Third Appellate District of California, which was published in part. In this opinion, the Court of Appeals affirms the Mr. Robinson’s convictions.
The Appellate decision is written in five parts, and only the first part is published. In the first and published section, the opinion discusses the validity of the DNA John Doe arrest warrant. Sections two through five are as follows: the involuntary collection of Mr. Robinson’s blood, the admission of the statistical methodology used in the DNA analysis, statistical estimates for the significance of DNA match in databases characterized by ethnicity or race, and the imposition of the upper term in sentencing. Only two of these sections are immediately relevant to the issues the California Supreme Court has granted review: Section 1 regarding the validity of the warrant and its ability to toll the statute of limitations and Section 2 regarding whether a remedy exists for the unlawful collection of the defendant’s blood. Accordingly, these two sections are discussed below. The issue of whether a Kelly hearing should have been held to examine the scientific validity of the statistical methodology for testing the significance of a cold hit was also granted review. The California Supreme Court, however, has another case with a similar issue, so it has deferred briefing on this issue.

John Doe DNA Warrant
A crime is within the statute of limitations if prosecution began before that period had elapsed from the date of the crime. Under § 804(d)[link to document #50], the issuance of an arrest warrant begins a prosecution. In light of § 813(a), a warrant can be issued only if a magistrate has concluded that there is reasonable ground to believe the defendant committed the crime in question [link to document #51]. Furthermore, § 815 specifies that if the defendant’s name is not known, the defendant may be designated by a fictitious name.
Therefore, even if the name on the warrant is fictitious, the warrant is valid if it indicates with “reasonable particularity” the identification of the person to be arrested. Here the Court of Appeals cites People v. Montoya (1967) 255 Cal.App.2d 137, relying on Cabell (link above). Under Montoya, if the offender’s name is not known, the particularity requirement is satisfied by a person’s occupation, personal appearance, peculiarities, place of residence or other means of identification. The Court of Appeals states that a DNA John Doe warrant more “more than satisfies the reasonable certainty standard because DNA is the most accurate and reliable means of identifying an individual presently available to law enforcement” ([link to document #3] at 15). State of Wisconsin v. Dabney (2003) 264 Wis.2d 843 (Trial Court: http://www.denverda.org/DNA_Documents/Dabney.PDF, Appeals Court: http://www.denverda.org/DNA_Documents/DabneyCA.PDF) is discussed at length as
precedent for John Doe DNA warrants satisfying the requirement for particularity. State of Ohio v. Danley (
http://www.denverda.org/DNA_Documents/Danley.pdf) and State of Wisconsin v. Davis (http://www.denverda.org/DNA_Documents/Davis.pdf) are also cited for support.
The defense also claimed that tolling the statute of limitations based on a John Doe DNA warrant violated Robinson’s right to due process. The Court of Appeals rejected the due process claim because the defense did not establish that Robinson was harmed by the delay in bringing his case to trial. According the court, the defense must prove prejudice or the absence of any legitimate reason for the three-week delay between the expiration of the statute of limitations and the amended warrant. The Court of Appeals does not deal with the situation in which that period of delay could be sufficient to impair the defense’s case.
Before the California Supreme Court, the defense will attempt to show that the legislative intent for § 804(d), as reflected in the Law Revision Commission’s comments, specifically prohibits a John Doe warrant from commencing a prosecution and tolling the statute of limitations. (Link to Weslaw, subscription needed: http://web2.westlaw.com/result/default.wl?srch=TRUE&rltdb=CLID_DB2382793...) This intent distinguishes Robinson’s case from cases in Dabney, Danley, and Davis because the Ohio and Wisconsin laws do not have the same legislative history.

Unlawful collection of DNA
In section 2, Judge Blease writes that in reviewing the trial courts determination not to suppress the DNA evidence under § 1538.5 [link to document #56], the Court of Appeals can overturn the trial court’s determination only if exclusion is required by the federal Constitution. In this case, exclusion is not required, and therefore DNA evidence obtained from Robinson cannot be excluded. Even if Robinson’s Fourth Amendment right was violated by the unlawful collection of his blood, that violation would not necessarily require the exclusion of the DNA evidence. Therefore, the Court of Appeals does not rule on whether Robinson’s Fourth Amendment rights were violated, although it does mention that privacy rights of those who are incarcerated are significantly reduced (relying on Hudson v. Palmer (1984) 468 U.S. 517, http://www.law.cornell.edu/supct/html/04-1360.ZS.html).
Penal Code § 296, at the time Robinson’s blood was collected, did not qualify Robinson to be included in the database. 1998 version of DNA Act § 296(a)(1), [link to document #5]. Although Robinson’s blood was not lawfully collected under the 1998 DNA Act, the exclusionary rule does not apply. Following Pennsylvania Board of Probation v.
Scott (1998) 524 U.S. 357, the exclusionary rule is “applicable only where its
deterrence benefits outweigh its’ substantial social costs.” (Scott available at http://www.law.cornell.edu/supct/html/97-581.ZS.html.)
Deterrent benefits are not realized in cases where officers acted in good faith or their infractions were minor (following United States v. Leon (1984) 468 U.S. 897
http://www.law.cornell.edu/supct/html/historics/USSC_CR_0468_0897_ZS.html.) In Robinson’s case, the court found the mistakes were minor and made in good faith, and there were very few deterrent benefits to excluding the DNA evidence.
According to the 1998 version of § 297, the limits on which felons were included in the database were put in place only to facilitate administering the law by crime labs with limited capacity and resources [link to document #6]. In fact, in 2004, proposition 69 (http://ag.ca.gov/bfs/prop69.php) changed the law to require DNA from all people convicted of any felony either as an adult or a juvenile should be included in the database (current version at http://www.leginfo.ca.gov/cgi-bin/displaycode?section=pen&group=00001-01...). There is no reason to deter the police from including people like Robinson in the DNA database because now police would be legally required to include him.
At the time, the decision to include him in the database was innocently made in good faith. Both the correctional facility personnel and the DOJ employee who erroneously relied on a misdemeanor spousal abuse conviction and a grand theft juvenile adjudication, respectively, to include Robinson in the database did so believing they were following the newly-enacted law. The law is now simplified, so these mistakes should be avoidable. Additionally, there are already existing criminal penalties for not promptly expunging non-qualifying samples (42 U.S.C. § 14132(d)(2)(A) http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t41t42+801...) and for knowingly obtaining and unauthorized sample (42 U.S.C. § 14132(b)(2)(B) http://uscode.house.gov/uscode-cgi/fastweb.exe?getdoc+uscview+t41t42+801...).
The defense argued that the 1998 DNA Act on its face violated Mr. Robinson’s constitutional right against unlawful search and seizure. The Court of Appeals denied that the act on its face infringes on a constitutional right, discussed the value of DNA evidence to the justice system, and found the claim without merit (following Alfaro v. Terhune, 98 Cal.App.4 492, free summary at http://ncstl.org/search/results/view/618?page=2&category=4, full opinion with subscription at WestLaw at http://web2.westlaw.com/find/default.wl?rs=WLW8.11&ifm=NotSet&fn=_top&sv....)

Related Issues
The California Supreme Court will revisit these issues to determine whether the John Doe DNA warrant was valid, whether it commenced the prosecution within the statute of limitations, and whether Mr. Robinson has any remedy for his DNA being unlawfully collected and cataloged under § 296.

The Court of Appeals ruling that the warrant was valid and had sufficient particularity is closely aligned with what other states have decided. The facts of Robinson make it an easy comparison to the Wisconsin and Ohio cases; Dabney, Danley, Davis and Robinson involve brutal rapes committed by a stranger. The DNA sample was taken from the victim’s vagina after the rape, establishing probable cause. Additionally, the three week delay between the expiration of the statute of limitations and Robinson’s arrest seems unlikely to have impacted Robinson’s defense.
If these warrants are recognized as having reasonable particularity, as I believe they do, could they also be used in cases of non-violent crimes after considerable delays? For example, could DNA found at the scene of a burglary become the basis for a John Doe DNA warrant? What if that DNA were in a strand of hair? Could the warrant be executed after 15 years? In this hypothetical situation, the defense’s case may rely heavily on eye witness accounts or other time sensitive information. The delay in arresting a suspect with a matching DNA profile would be substantial and would probably impair the defendant’s ability to present his case. It is possible that even if John Doe DNA warrants are valid, the DNA alone would not justify an arrest warrant, in which case, a warrant could not be issued without additional information. Additionally, the defendant in this situation might not be convicted because of due process concerns arising from the delay and subsequent harm to the defendant’s case.
Regarding the unlawful collection of Robinson’s DNA, if the Court finds a remedy, either sample destruction or evidence suppression, only under § 295 et seq. (See § 297, [link to document #6]), the remedy will be limited to people whose DNA profiles are kept in the California DOJ database. The issue of unlawfully collected and stored DNA, however, is not contained to the DOJ Convicted Offender Database. A broader ruling might impact people, never convicted of a felony, who allege they were coerced into providing a DNA sample and their DNA profiles are being stored in DNA databases by law enforcement.

Timeline

This timeline is a chronology of events in the Sacramento serial rape cases of which Robinson appeals his conviction, and events in Robinson’s life. The juxtaposition of these events does not imply this author believes there is more than a temporal relationship between the two.

Events in the Sacramento serial rape cases are color coded in white.

Events in Robinson’s life his arrested for these crimes are color coded in orange.

Events relating to general history of the Data Base and Data Bank Act of 1998 (DNA Act) are color coded in green.

October 18, 1969, Paul Eugene Robinson is born

July 11, 1985, Robinson, at 16 years-old, receives juvenile adjudication for felony grand theft after he knocked a 14-year-old off a bicycle and took it.

October 1993, Assault on Alanna S. (first in a series of sexual assaults from 1993-2000)

January 1994, Assault on Heather M.

July 14, 1994, Robinson convicted of misdemeanor spousal abuse.

May 1994, Assault on Paula F.

August 25, 1994, Assault on Deborah L. Man breaks into victim’s second story bedroom and rapes her at knifepoint, crime goes unsolved. (Counts 1-5 of which Robinson was eventually convicted.)

December 1994, Assault on Terry B.

November 1995 – October 1998, Robinson is incarcerated (convicted of several felony offenses, unrelated to unsolved sexual assaults)

September 22, 1998, DNA and Forensic Identification DNA Act passed, which requires DNA to be collected from people convicted of certain offenses, including convictions for felony assault and for felony spousal abuse. [link to document #11]

November 1998 – July 1999, Robinson is incarcerated. He is convicted of two misdemeanors, loitering and prowling (outside of a woman’s apartment), and his parole was revoked on a prior conviction for first-degree burglary. He is held at the Rio Consumes Correctional Center (RCCC)

January 1, 1999, while Robinson is still in custody was at RCCC, the DNA Act goes into effect.

March 2, 1999, while Robinson is still in custody was at RCCC, Robinson’s blood was mistakenly drawn for inclusion in the database. Although Robinson only had a misdemeanor spousal abuse conviction, and a felony conviction is required for inclusion in the database, RCCC records personnel did not specify whether Robinson’s spousal abuse conviction was a misdemeanor or a felony.

March 5, 1999, Robinson’s blood delivered to the DOJ laboratory, where it underwent a verification process to confirm his convicted offender status.
June 1999, all searches of the database to verify “tens of thousands” of federal profiles after discovering in an unrelated case, that one profiled offender had only been convicted of a misdemeanor violation of section 273.5.

July 1999, a DOJ employee caught that Robinson’s spousal abuse conviction was a misdemeanor, not a felony, and therefore did not qualify him for inclusion in the DNA database. She, however, mistook his juvenile adjudication for grand theft (which did not qualify him for inclusion) as a conviction for felony assault (which did qualify him), and therefore included his DNA in the
database.

February 2000, Assault on Heather O. (Counts 6-13, on which the jury hung.)

August 2000, DOJ develops DNA profile from the vaginal swab taken from rape victim, which is entered into DOJ Convicted Offender Databank.

August 21, 2000, John Doe with DNA profile from vaginal swab charged and warrant issued [link to document #1]

August 25, 2000, Statute of limitations on rape expires

September 11, 2000, a “match” was made between the DNA profile developed from crime scene evidence in the Deborah L. case, and Robinson’s DNA profile developed from his 1999 blood sample.

September 15, 2000, Detective notified of DNA cold hit match

September 19, 2000, Robinson is arrested, Amended complaint filed naming Robinson

January 1, 2002, Statute of limitations for sex crimes is extended to ten years, instead of six.

June 26, 2003 Superior Court of Sacramento convicts Robinson of rape (motion to dismiss at [link to document #2])

August 4, 2003 Defense files notice of appeal

November 3, 2004, California adopts Proposition 69, which expands the definition of
a qualifying offense to include any felony, whether committed by a juvenile or an adult and whether suffered by conviction or juvenile adjudication. http://ag.ca.gov/bfs/prop69.php

October 26, 2007, Court of Appeals, Third District of California affirms conviction [link to document #3]

February 13, 2008, California Supreme Court petition for review accepted