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, 01/25/2010 | 47 Cal. 4th 1104, 224 P.3d 55, 104 Cal. Rptr. 3d 727 | S158528 | Review - Criminal Appeal | submitted/opinion due |
Parties
| 1 | The People (Plaintiff and Respondent) Represented by Doris A. Calandra Office of the Attorney General 455 Golden Gate Aveneue, Suite 11000 San Francisco, CA |
| 2 | The People (Plaintiff and Respondent) Represented by Enid A. Camps Office of the Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA |
| 3 | Robinson, 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 | |
| Opinion | Justice Ming W. Chin |
| Concur | Justice Carlos R. Moreno |
| Dissent | Justice Carlos R. Moreno |
| Dockets | |
| Nov 27 2007 | Request 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 2007 | Received: 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 2007 | Petition for review filed Appellant Paul Eugene Robinson Attorney Cara DeVito, Court of Appeal appt. |
| Dec 7 2007 | Received: Request for Publication of Part II of the Opinion by Enid A. Camps, Deputy Attorney General |
| Dec 11 2007 | Record requested via email |
| Dec 12 2007 | Received Court of Appeal record one doghouse |
| Jan 22 2008 | Time 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 2008 | Petition 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 2008 | Counsel 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 2008 | Request 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 2008 | Extension 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 2008 | Request 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 2008 | Extension 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 2008 | Opening brief on the merits filed Paul Eugene Robinson, appellant by Cara DeVito, counsel |
| Jul 23 2008 | Request 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 2008 | Extension 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 2008 | Request 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 2008 | Extension 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 2008 | Filed: Application re: request to file respondent's brief in excess of 14,000 words. by Enid A. Camps, Deputy Attorney General |
| Oct 31 2008 | Answer brief on the merits filed The People, respondent by Enid A. Camps, Deputy Attorney General filed with permission |
| Nov 10 2008 | Request 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 2008 | Extension 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 2008 | Compensation awarded counsel Atty DeVito |
| Dec 24 2008 | Received: Appellant Paul Eugene robinson's motion to file oversized reply brief on the merits. by Cara Devito, counsel crc.8.25(b) |
| Dec 30 2008 | Reply brief filed (case fully briefed) Paul Eugene Robinson, appellant by Cara DeVito, counsel filed with permission. |
| Feb 11 2009 | Supplemental 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 2009 | Supplemental brief filed Paul Eugene Robinson, appellant by Cara Devito, counsel |
| Feb 25 2009 | Supplemental brief filed The People, respondent by Enid A. Camps, Deputy Attorney General |
| Mar 11 2009 | Supplemental brief filed Eugene Paul Robinson, appellant by Cara DeVito, counsel |
| Mar 11 2009 | Supplemental brief filed The People, respondent (reply) by Enid A. Camps, Deputy Attorney General |
| Mar 13 2009 | Received: letter dated March 11, 2009 from appellant's counsel - Cara Devito regarding scheduling oral arguments. |
| Jun 5 2009 | Order 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 2009 | Case ordered on calendar to be argued Tuesday, November 3, 2009, at 9:00 a.m., in Berkeley |
| Oct 14 2009 | Request for extended media coverage filed by The California Channel. |
| Oct 16 2009 | Request 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 2009 | Request for extended media coverage filed by The Daily Journal (still camera). |
| Oct 22 2009 | Request 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 2009 | Received: Additional authority for oral argument (November 3, 2009) by Cara Devito, counsel for appellant. |
| Oct 23 2009 | Received: additional authority for oral argument (November 3, 2009). by Enia A. Camps, counsel for respondent |
| Nov 3 2009 | Cause argued and submitted |
| Jan 22 2010 | Notice of forthcoming opinion posted To be filed on Monday, January 25, 2010 at 10 am. |
| Briefs | |
| Jun 30 2008 | Opening brief on the merits filed |
| Oct 31 2008 | Answer brief on the merits filed |
| Dec 30 2008 | Reply brief filed (case fully briefed) |
| Brief Downloads | |
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| May 2, 2010 Annotated by billyb1 | Facts: Procedural Posture: Opinion (J. Chin) 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) 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: Summary of Superior Court Holding [link document #2] Summary of Court of Appeals Holding [link to document #3] John Doe DNA Warrant Unlawful collection of DNA Related Issues 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. 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. 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 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 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 |
