People v. Buza, A125542

• Court: California Court of Appeals
• Writing for the Court: Kline, P.J.
• Citation: 231 Cal.App.4th 1446,180 Cal.Rptr.3d 753
• Parties: The PEOPLE, Plaintiff and Respondent, v. Mark BUZA, Defendant and Appellant.
• Docket Number: A125542
• Decision Date: 03 December 2014

231 Cal.App.4th 1446
180 Cal.Rptr.3d 753

The PEOPLE, Plaintiff and Respondent
v.
Mark BUZA, Defendant and Appellant.

A125542

Court of Appeal, First District, Division 2, California.

Filed December 3, 2014

American Civil Liberties Union Foundation, San Francisco, Michael T. Risher, Paul Hastings LLP, Peter C. Meier, Eric A. Long, Jamie L. Williams, University of California Hastings College of the Law, San Francisco, Professor Joseph R. Grodin, Electronic Frontier Foundation, Hanni Fakhoury, California Public Defenders Association, California Attorneys for Criminal

180 Cal.Rptr.3d 757

Justice & Los Angeles County Public Defender, Linda F. Robertson, Jennifer Friedman, Federal Public Defender of the Eastern Dist. of CA, National Assoc. of Criminal Defense Lawyers, Los Angeles, Daniel J. Broderick, Federal Defender, David Porter, Asst. Federal Defender, Rachelle D. Barbour, Attorneys for Amicus Curiae in support of Appellant.

Edmund G. Brown Jr., Attorney General, Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Asst. Atty. General, Gerald A. Engler, Sr. Asst. Atty. General, Joyce Blair, Supervising Deputy A.G., Stan Helfman, Supervising Deputy A.G., Jeffrey M. Laurence, Supervising Deputy A.G., Enid A. Camps, Deputy Attorney General, Attorneys for Respondent.

Fulbright & Jarowski, Tillman James Breckenridge, Jonathan S. Franklin, Attorneys for Amicus Curiae DNA Saves, in support of Respondent.

Los Angeles County District Attorney, Steve Cooley, District Attorney, Irene Wakabayashi, Deputy District Attorney, Phyllis C. Asayama, Deputy District Attorney, Roberta Schwartz, Deputy District Attorney, California District Attorneys Association, W. Scott Thorpe, Attorneys for Amicus Curiae in support of Respondent.

Opinion

Kline, P.J.

231 Cal.App.4th 1450

The sole issue in this case is the constitutionality of a provision of the DNA and Forensic Identification Data Base and Data Bank

231 Cal.App.4th 1451

Act of 1998, as amended (Pen. Code, § 295 et seq. ) (the DNA Act),¹ which requires that a DNA sample be taken from all adults arrested for or charged with any felony offense “immediately following arrest, or during the booking ... process or as soon as administratively practicable after arrest....” (§§ 296.1, subd. (a)(1)(A); 296, subd. (a)(2)(C).) In a prior opinion, we held that the seizure of appellant's DNA shortly after his arrest, at a time when he was entitled to the presumption of innocence and there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested, violated his right under the Fourth Amendment to the United States Constitution to be free from unreasonable searches and seizures. (People v. Buza, A125542, Aug. 4, 2011.) The case now returns to us with directions from the California Supreme Court to vacate our prior decision and reconsider the matter in light of Maryland v. King (2013) ––– U.S. ––––, 133 S.Ct. 1958, 186 L.Ed.2d 1 (King ).

We have done so, and again reverse the judgment of conviction under the DNA Act. As we will explain, because of significant differences between the California DNA Act and the Maryland law considered in King, we question whether King establishes the validity of the California Act's application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.

FACTS AND PROCEEDINGS BELOW

Shortly after 3 o'clock on the morning of January 21, 2009, San Francisco Police Sergeant Jody Kato saw an orange glow emanating from a parked police car. When he realized the vehicle was on fire he saw a man, later identified as appellant, pop up from behind the vehicle and run into a nearby wooded area holding something in his hand. When another officer called out for him to surrender, appellant stepped out of the woods with his hands up. A search of the wooded area produced a road flare and a bottle containing a mixture of oil and gasoline. Matches were

180 Cal.Rptr.3d 758

found in appellant's pocket and a container of oil was found in his backpack. A fire department investigator concluded that all four tires of the patrol car had been damaged by fire, and traces of polystyrene, gasoline residue and/or medium weight oil were found on two of the tires.

Several hours after his arrest, while he was confined in county jail and prior to any appearance before a magistrate or judge, appellant was asked to

231 Cal.App.4th 1452

provide a DNA sample, as required by section 296, and refused, even after being informed that refusal to provide a sample would constitute a misdemeanor with which he would be charged.

On February 17, 2009, appellant was charged by information with arson (§ 451, subd. (d)–count 1); possession of combustible material or incendiary device (§ 453, subd. (a)–count 2); vandalism (§ 594–count 3); and refusal or failure to provide a DNA specimen (§ 298.1, subd. (a)–count 4). Appellant pleaded not guilty to all four counts.

With respect to the first three counts, appellant admitted at trial that he set fire to the patrol car's tires using a mixture of oil, gasoline, and styrofoam as an accelerant. He did not commit his acts maliciously, he testified, but to protest what he considered a corrupt government and system and to call attention to a political group he had formed, whose web sites had been “deleted from the Internet.”

As to the fourth count, shortly after appellant's arrest and while he was in county jail, San Francisco Sheriff's Deputy Kenneth Washington advised appellant that state law required him to provide a DNA sample, which would be obtained by swabbing the inside of his cheek with a cotton-tipped swab. When appellant stated he did not wish to provide a sample, Deputy Washington showed appellant a Penal Code section 296 collection form which stated “the law about 296 PC requirements.” After appellant read the form, Deputy Washington again asked him to provide a sample, and appellant again refused. Appellant continued to refuse after being advised that his refusal was a misdemeanor offense with which he would be charged under section 298.1. Deputy Washington stated that provision of a DNA sample was required of all persons arrested for a felony offense, appellant had not been singled out, his DNA was not sought to connect him to evidence found at the scene, and it was not used for that purpose. Washington testified that at the time San Francisco deputy sheriffs seek a DNA sample from arrestees they also obtain two thumbprints and a signature, and he apparently had no difficulty obtaining these items from appellant.

On April 22, 2009, appellant unsuccessfully moved for judgment of acquittal on count 4, contending that his arrest for a felony offense does not create a constitutionally adequate basis for requiring him to provide a biological sample.

On April 30, 2009, the jury returned a verdict finding appellant guilty of all counts. That same day, the court ordered appellant to provide a DNA sample prior to sentencing. On May 28, 2009, after learning of appellant's refusal to comply with this order, the court issued an order permitting the San Francisco

231 Cal.App.4th 1453

Sheriff's Department or the Department of Corrections to use “reasonable force, as outlined in P.C. 298.1, and in conjunction with guidelines of the Department of Corrections,” to “bring defendant Buza into compliance” with section 296. Prior to the July 6, 2009 sentencing hearing, appellant provided a DNA sample.

Appellant was sentenced to the low term of 16 months in state prison on count 1, with an additional concurrent 16–month sentence on count 2, and a concurrent six-month county jail term on count 4, refusal

180 Cal.Rptr.3d 759

to provide a DNA sample. A 16–month sentence on count 3 was stayed pursuant to section 654. The court granted appellant appropriate custody and conduct credits, imposed appropriate restitution fines, and ordered him to register as an arson offender under section 457.1. The court also informed appellant that he would be included in the State's DNA and forensic identification database and data bank program.

After this court reversed the conviction on count 4, the California Supreme Court granted respondent's petition for review (People v. Buza (2011) –––Cal.4th ––––, 132 Cal.Rptr.3d 616, 262 P.3d 854 ), held the case pending the United States Supreme Court's decision in King, supra, 133 S.Ct. 1958, then returned it to us for reconsideration. (People v. Buza, S196200, January 16, 2013.)

DISCUSSION

I.

The Statutory Scheme

California law enforcement officials have been authorized to collect forensic identification blood, saliva or buccal (cheek)...