People v. King

• Decision Date: 14 August 2000
• Citation: 82 Cal. App. 4th 1363,99 Cal.Rptr.2d 220
• Court: California Court of Appeals Court of Appeals
• Parties: (Cal.App. 1 Dist. 2000) THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD KING, Defendant and Appellant. A079943 Filed

99 Cal.Rptr.2d 220 (Cal.App. 1 Dist. 2000)

THE PEOPLE, Plaintiff and Respondent, v. JAMES EDWARD KING, Defendant and Appellant.

A079943

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA, FIRST APPELLATE DISTRICT,

DIVISION ONE

Filed 8/14/00

(Contra Costa County Super. Ct. No. 9608696)

Trial Judge: Honorable James J. Marchiano

Attorneys for Appellant: Kyle Gee, First District Appellate Project

Attorneys for Respondent: Bill Lockyer, Attorney General, David Druliner, Chief Assistant Attorney General, Ronald A. Bass, Senior Assistant Attorney General,

Stan M. Helfman, Supervising Deputy Attorney General, Enid A. Camps, Deputy Attorney General

CERTIFIED FOR PARTIAL PUBLICATION^*

On May 28, 1997, a jury returned a verdict finding appellant James Edward King guilty of murder with special circumstances, first-degree burglary, sodomy and attempted rape. The jury did not, however, find that appellant's crimes warranted the death penalty. The trial court accordingly sentenced appellant to life in prison without the possibility of parole consecutive to a determinate term of 30 years.

In appealing his conviction and sentence, appellant does not deny that he in fact committed the crimes. He contends, rather, that the jury's findings were based on inadmissible evidence; specifically evidence of Deoxyribonucleic acid ("DNA") profiling matching appellant's DNA profile with that of DNA recovered from the crime site, and evidence of statements taken from appellant after his arrest for the crimes.¹

BACKGROUND

Appellant had been convicted of forcible rape in 1984, for which he served a term in state prison.² In January 1991, before appellant's release, and as required by former Penal Code section 290.2, appellant provided blood samples for analysis by a DNA laboratory operated by California's Department of Justice (the DNA Lab). The samples provided by appellant were analyzed, a profile was developed, and the profile placed in the DNA Lab's data bank.

On September 28, 1992, approximately nine months after appellant's release from prison, the body of 76-year-old Leticia Smith was found in the living room of her home. The cause of death was strangulation, apparently by means of a ligature fashioned from a pair of pantyhose. The victim had suffered blunt trauma injuries to her head and face, and it appeared that she had been sexually assaulted. Fluids from the victim's genital and anal area were collected and analyzed. The anal smears contained sperm.

The DNA Lab was not fully funded at that time, and no attempt was made to match the DNA recovered from the crime scene with profiles, such as that developed from the samples provided by appellant, maintained in the DNA Lab's data bank. In early 1995, however, samples of blood and sperm recovered from the crime scene were forwarded to the DNA Lab for analysis. Comparisons were made, and the profile of the DNA from the crime scene was found to match the DNA profile from the samples collected from appellant in 1991. Additional procedures were run on a semen stain recovered from the victim's bathrobe and on blood drawn from appellant in 1995. Again, the DNA profiles matched. There was evidence that the statistical likelihood that a Caucasian would have a particular profile is one in one-hundred and fifty trillion, that a Black person would have a particular profile is one in eight-hundred trillion and that an Hispanic person would have a particular profile is one in one-hundred and seventy trillion.³⁴

Appellant was arrested on March 6, 1995. He was interrogated on the same day, and again on March 7, 1995. During the second day of interrogation, appellant essentially admitted that he had been in the home of the victim on the day of her murder, had struggled with her, and knew that he had injured her. He stated that he had no memory of any sexual assault.

DISCUSSION

I.

Appellant's Fourth Amendment Challenge to former Penal Code section 290.2

Former Penal Code section 290.2

Penal Code section 290.2, as in effect in 1991, required persons convicted of specified sex offenses, including rape, or of murder or felony assault and battery, and who were "discharged or paroled from" a "state prison, county jail, or any institution," to "provide two specimens of blood and a saliva sample." It provided that the blood should be withdrawn in a medically approved manner. It required the Department of Justice to perform a DNA analysis on the specimens, and provided that "DNA analysis and other genetic typing analysis" could be used only for law enforcement purposes. It authorized the Department of Justice to maintain a computerized data bank system for the purposes of filing DNA and other genetic typing information, and prohibited the inclusion of such information in the state summary criminal history information. The data could be collected only from the individuals convicted of the specified crimes or from crime scenes. Evidence taken from a crime scene was to be "stricken from the data bank when it is determined that the person is no longer a suspect in the case." (Pen. Code, 290.2, subd. (d).) DNA or other genetic typing information could be disseminated only to law enforcement agencies and district attorney offices, or to defense counsel for defense purposes in compliance with discovery. (Pen. Code, 290.2, subds. (e), (g).)

Penal Code section 290.2 was amended in 1993 to permit the use of samples by local public DNA laboratories, and to permit dissemination of genetic typing information to Department of Corrections parole officers and parole authority hearing officers. (Stats. 1993, ch. 457, 1; Stats 1993-1994, 1st Ex. Sess., ch. 42, 1, 2.) In 1996, Penal Code section 290.2 again was amended to change the time for providing samples from the time of release to the time of commitment to a specified institution. (Stats. 1996, ch. 917.) Penal Code section 290.2 was repealed in 1998, and reenacted, with modifications, in Penal Code section 295 et. seq. (Stats. 1998, ch. 696, 2.) The new legislation has expanded the class of persons required to provide samples for DNA testing, and requires such persons to provide replacement specimens if the original samples prove to be unusable. (Pen. Code, 296-296.2.) We, however, are not concerned with whether the state legitimately can require all such persons to provide samples, or whether persons who are not incarcerated may be required to provide samples or replace samples taken while they were in a penal institution. We determine only whether one such as appellant, imprisoned for having committed a crime involving a sexual assault, might be required to provide samples of blood and saliva for DNA analysis in accordance with the procedures outlined in former Penal Code section 290.2. It is noteworthy that although all 50 states have enacted laws comparable to California's DNA profiling laws, and although a number of other jurisdictions have considered the question of whether such laws violate Fourth Amendment principles, and have used any of several theories to resolve that question, appellant has been unable to cite any that has resolved it against DNA profiling.

The Fourth Amendment

It is not disputed that the non-consensual extraction of blood is an invasion of the rights protected by the Fourth Amendment of the United States Constitution.⁵ It also is true that even less intrusive methods of collecting samples, and the ensuing chemical analysis of such samples to obtain physiological data, implicate Fourth Amendment privacy interests. (Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 616-617, and see Schmerber v. California (1966) 384 U.S. 757, 767.) It also is true, however, that to find the Fourth Amendment applicable to the procedures at issue here "is only to begin the inquiry into the standards governing such intrusions. [Citations.] For the Fourth Amendment does not proscribe all searches and seizures, but only those that are unreasonable." (Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at p. 619.)

Necessity of a Warrant Issued Upon Probable Cause

As a general rule, the question of whether a particular practice is unreasonable, and thus violates the Fourth Amendment, " 'is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.' " (Skinner v. Railway Labor Executives' Assn., supra, at p. 619, quoting from Delaware v. Prouse (1979) 440 U.S. 648, 654, and United States v. Martinez-Fuente (1976) 428 U.S. 543.) "Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted." (Bell v. Wolfish (1979) 441 U.S. 520, 559.)

Appellant contends, however, that it is improper to engage in such a balancing test here. His position is that the general rule is that a search may be initiated only after a warrant has been issued upon probable cause, and that a court should engage in the balancing test only if it first determines that the case falls within a recognized exception to the general rule. Appellant's contention is developed from language in Skinner v. Railway Labor Executives' Assn., supra, 489 U.S. at page 619, where the court, after recognizing the need to balance the relevant interests, found: "In most criminal cases, we strike this balance in favor of the procedures described by the Warrant Clause of the Fourth Amendment. [Citations.] Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause. [Citations.] We have recognized exceptions to this rule, however, 'when "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable." ' [Citations.] When faced with such special needs, we have not hesitated to balance the governmental and...