Coffey v. Superior Court

• Decision Date: 24 May 2005
• Docket Number: No. A108693.,A108693.
• Citation: 129 Cal.App.4th 809,29 Cal.Rptr.3d 59
• Court: California Court of Appeals Court of Appeals
• Parties: Tariq COFFEY, Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent; The People, Real Party in Interest.

29 Cal.Rptr.3d 59

129 Cal.App.4th 809

Tariq COFFEY, Petitioner, v. The SUPERIOR COURT of San Francisco County, Respondent The People, Real Party in Interest.

No. A108693.

Court of Appeal, First District, Division 5.

May 24, 2005.

As Modified on Denial of Rehearing June 16, 2005.

Jeffrey G. Adachi, Public Defender, Teresa Caffese, Chief Attorney, Christopher F. Gauger, Deputy Public Defender, for Plaintiff and Petitioner.

Bill Lockyer, Attorney General of the State of California, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Enid A. Camps, Supervising Deputy Attorney General, Michael Chamberlain, Deputy Attorney General, for Real Party in Interest.

STEVENS, Acting P.J Tariq Coffey (Coffey) seeks a writ of mandate requiring the trial court to order the return of DNA samples taken under the purported authority of Penal Code section 295 et seq. (DNA and Forensic Identification Data Base and Data Bank Act of 1998) (hereafter, the DNA Data Base Act).¹ Although he pled guilty to a "wobbler" as a felony and the DNA samples were collected, the charge was subsequently reduced pursuant to section 17, subdivision (b), and he was sentenced to a misdemeanor.² Coffey contends the samples were obtained in violation of his rights under the Fourth Amendment to the United States Constitution, because the DNA Data Base Act did not authorize collection of samples from defendants convicted of misdemeanors.

We deny Coffey's petition.

I. FACTS AND PROCEDURAL HISTORY

Pursuant to a negotiated plea agreement, in January 2003 Coffey pled guilty to assault with force likely to produce great bodily injury (§ 245, subd. (a)(1)), as a felony. Although there was no written plea agreement, the terms of the plea were purportedly stated on the record. In furtherance of the agreement, sentencing was set over for one year with the understanding that if Coffey was not arrested during that period, and if he completed a 52-week domestic violence counseling program, he would be sentenced to a misdemeanor. The court stated: "So we can make a determination on the day of sentencing next year if the charge is a misdemeanor or a felony."

At the time of Coffey's plea, former section 296, subdivision (a)(1)(F), of the DNA Data Base Act required the collection of a DNA sample from a defendant "convicted" of felony assault. At the hearing at which Coffey entered his guilty plea, there was no mention whether he would be required to give DNA samples. The probation report, however, recommended that DNA samples be collected pursuant to section 296.

On January 28, 2003, before sentencing, the San Francisco Sheriff's Department collected DNA samples from Coffey. The following October, Coffey's attorney filed a "nonstatutory" motion in the trial court, seeking return of his blood and saliva samples and expungement of the corresponding DNA information from the state's DNA database. Coffey maintained the samples were collected in violation of his Fourth Amendment rights, because the charge against him was to be reduced to a misdemeanor upon his completion of the counseling program, and the DNA Data Base Act did not authorize the collection of samples from a person convicted of a misdemeanor. The parties disagreed over whether conviction of a wobbler occurred upon entry of Coffey's plea or upon his sentencing. The trial court denied the motion without prejudice.³

At the sentencing hearing on March 17, 2004, the court found that Coffey had completed his counseling program and, under the plea agreement, reduced the offense to a misdemeanor pursuant to section 17, subdivision (b), suspended imposition of sentence, and placed Coffey on two years' probation including 30 days in county jail. At the hearing, the parties debated whether Coffey had agreed, as part of his negotiated plea, to provide DNA samples pursuant to the DNA Data Base Act. The court announced it would not make DNA samples a condition of probation because the charge was reduced to a misdemeanor under section 17, subdivision (b), and Coffey had already provided samples in any event.

On June 17, 2004, Coffey filed a second motion seeking return or destruction of his blood and saliva samples and expungement of his DNA profile from the DNA database. Again he argued that the samples were taken in excess of the authority granted by the DNA Data Base Act and in violation of his Fourth Amendment rights. As characterized by counsel at the August 2004 hearing, the issue was whether the word "convicted" in the DNA Data Base Act referred to a point before the defendant was sentenced (e.g., at entry of a guilty plea) or after his sentencing. The trial court denied Coffey's motion, finding that even if conviction occurred at sentencing rather than at the time of the plea, Coffey had not established entitlement to the remedy of expungement under section 299. The court remarked: "[section] 299 of the Penal Code specifically provides four instances ... where expungement [of DNA samples] is warranted. And [Coffey's situation] doesn't fit any of those four categories."

On September 30, 2004, Coffey filed a third motion on this issue, entitled "MOTION TO RECONSIDER PREVIOUS RULING ON MOTION TO EXPUNGE DNA SAMPLE; MOTION FOR RETURN OF PROPERTY AND TO SUPPRESS EVIDENCE PURSUANT TO PENAL CODE SECTION 1538.5 AND THE FOURTH AMENDMENT." In addition to seeking reconsideration of the denial of his June 17 motion, Coffey contended the DNA samples should be suppressed and returned pursuant to section 1538.5, as the result of a seizure in violation of the Fourth Amendment. On October 12, 2004, the court also denied this motion, ruling that a guilty plea constituted a conviction for purposes of the DNA Data Base Act.

Coffey thereafter filed in this court a petition for writ of mandate, seeking reversal of the trial court's decision and an order requiring the return of his DNA samples. We issued an order to show cause why the requested relief should not be granted. Real party in interest filed a return, and Coffey has filed a reply.

II. DISCUSSION

Coffey maintains he is entitled to the return or "expungement" of his biological samples, and expungement of his DNA profile from the state's DNA database, because the samples were seized in violation of his Fourth Amendment rights. After a brief overview of the DNA Data Base Act, we consider whether the writ of mandate Coffey seeks is precluded by the terms of the DNA Data Base Act. We then consider the merits of Coffey's argument.

A. THE DNA DATA BASE ACT

The DNA Data Base Act, as amended, governs the collection of DNA samples and specimens from persons convicted of certain crimes. The California Department of Justice serves as a repository for the collected items, performs a DNA analysis, and maintains the DNA profile for future comparison to DNA profiles from samples taken at crime scenes, in order to establish the "identity and origin" of the crime scene samples. (§§ 295.1, subd. (a), (c), 297, subd. (a).)

At the time of Coffey's plea and sentence, former section 296, subdivision (a)(1), read: "Any person who is convicted of [a qualifying offense] ... shall, regardless of sentence imposed or disposition rendered, be required to provide two specimens of blood, a saliva sample, right thumbprints, and a full palm impression of each hand for law enforcement identification analysis." Felony assault was a qualifying offense. (Former § 296, subd. (a)(1)(F).)

The DNA Data Base Act was modified as of November 2004 by voter initiative known as the DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Proposition 69) propositions/prop69text.pdf> [as of May 24, 2005]). Among other things, Proposition 69 expanded the scope of DNA collection to include collection from all persons convicted of — or who plead guilty or no contest to — any felony offense. (§ 296, subd. (a)(1).)

At the time of Coffey's motions in the trial court, former section 299, subdivision (a), set forth enumerated grounds for expungement. It read: 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 [1] the underlying conviction or disposition serving as the basis for including the DNA profile has been reversed and the case dismissed, [2] the defendant has been found factually innocent of the underlying offense pursuant to Section 851.8, [3] the defendant has been found not guilty, or [4] the defendant has been acquitted of the underlying offense." In addition, the specimen or samples collected from the defendant would be destroyed. (Former § 299, subd. (c).) Whether to grant or deny the request for expungement was directed to the trial court's discretion. (Former § 299, subd. (b)(1).)⁴

Under current and former law, the denial of a request for expungement is a nonappealable order and shall not be reviewed by a petition for a writ. (§ 299, subd. (c)(1); former § 299, subd. (b)(1).)

B. JURISDICTION

As a threshold matter, we consider whether the order from which Coffey seeks relief is subject to writ review. The Attorney General claims it is not, based on the language of the DNA Data Base Act. Coffey responds that at least part of his motion was made not under the DNA Data Base Act, but as a nonstatutory motion for return of property seized in violation of his rights under the Fourth Amendment.

As mentioned, the DNA Data Base Act in its former and current forms sets forth particular grounds for destruction of DNA samples and expungement of DNA profiles (§ 299, subd. (a)), and then declares that an order denying expungement is not subject to review by petition for writ of mandate. Specifically, under both current and former section 299, "[t]he denial of a request for expungement is a nonappealable order and shall not be reviewed by petition for writ." (§ 299, subd. (c)(1); former § 299, subd. (b)(1).)

Here, the Attorney...