People v. McVickers

• Decision Date: 03 December 1992
• Docket Number: No. S020115,S020115
• Citation: 13 Cal.Rptr.2d 850,4 Cal.4th 81
• Court: California Supreme Court
• Parties: , 840 P.2d 955 The PEOPLE, Plaintiff and Respondent, v. Thomas Scarth McVICKERS, Defendant and Appellant.

Page 850

13 Cal.Rptr.2d 850

4 Cal.4th 81, 840 P.2d 955

The PEOPLE, Plaintiff and Respondent, v. Thomas Scarth McVICKERS, Defendant and Appellant.

No. S020115.

Supreme Court of California In Bank.

Dec. 3, 1992.

Rehearing Denied Jan. 28, 1993.

Richard Jay Moller, Redway, under appointment by the Supreme Court, for defendant and appellant.

John K. Van de Kamp and Daniel E. Lungren, Attys. Gen., Richard B. Iglehart and George Williamson, Chief Asst. Attys. Gen., Harley D. Mayfield and Gary W. Schons, Asst. Attys. Gen., Janelle B. Davis and Pamela A. Ratner, Deputy Attys. Gen., for plaintiff and respondent.

MOSK, Justice.

Penal Code section 1202.1 (hereafter section 1202.1) requires every person convicted of rape, statutory rape, spousal rape, sodomy, or oral copulation to submit to a blood test for evidence of acquired immune deficiency syndrome (AIDS). The statute ( § 1202.1, subd. (c)) allows a positive test result to be used to enhance the sentence for a subsequent conviction of any of the crimes listed above (see Pen.Code, § 12022.85).

We granted review in this case to determine whether the application of section 1202.1 to a defendant whose offense was committed prior to the statute's effective date (Jan. 1, 1989) violates the ex post facto clause of the federal Constitution (U.S. Const., art. I, § 10, cl. 1) or of the California Constitution (Cal. Const., art. I, § 9).

The Court of Appeal held that the proposed AIDS test was "punishment" within the meaning of the ex post facto clause, and thus that section 1202.1 could not be applied to this defendant. For the reasons discussed below we conclude the blood test cannot be considered "punishment," and hence the statute requiring that it be administered does not violate the ex post facto clause.

Defendant was convicted in April 1989 of various offenses involving sexual activity with minors, including several listed in section 1202.1, based on incidents occurring between 1983 and 1988. In July 1989 the court sentenced him to 23 years in prison and ordered a mandatory blood test for AIDS pursuant to section 1202.1.

Defendant appealed. The Court of Appeal affirmed the judgment, but, in a divided opinion, invoked the ex post facto clauses of the United States and California Constitutions to strike the order for blood testing. We granted review and directed the Court of Appeal to vacate its decision and to reconsider the cause in light of Tapia v. Superior Court (1991) 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434 (hereafter Tapia ), and Collins v. Youngblood (1990) 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30 (hereafter Collins ). The court again affirmed the judgment and struck the AIDS testing order. We granted review for the second time, and now address defendant's contention that the proposed AIDS test is punishment for ex post facto purposes.

The United States Supreme Court has recently restructured its analysis of the ex post facto clause. As now interpreted, the clause prohibits three legislative categories: legislation " ' which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed....' " (Collins, supra, 497 U.S. 37, ----, 110 S.Ct. 2715, 2719, quoting Beazell v. Ohio (1925) 269 U.S. 167, 169, 46 S.Ct. 68, 68, 70 L.Ed. 216.) The court, returning the clause to its historical roots, overruled a line of prior cases holding that a law violates the ex post facto clause if it eliminates a "substantial protection" in place when the offense was committed. This court recently held that the ex post facto clause of the California Constitution is to be analyzed identically. (Tapia, supra, 53 Cal.3d 282, 295, 279 Cal.Rptr. 592, 807 P.2d 434.)

Defendant does not challenge the use of the results of the AIDS test to enhance sentences for any later crimes. Rather, he contends the testing and disclosure provisions of section 1202.1 disadvantage him in violation of the ex post facto clause. He focuses on the added "burden" of the test, a focus that appears to be based on the now-defunct "substantial protection" analysis. To the extent that defendant relies, as he does, on pre-Collins cases, he is unpersuasive.

Under Collins, supra, 497 U.S. 37, 110 S.Ct. 2715, the ex post facto clause prohibits not just a burden but a more burdensome punishment. Thus, at issue in the present case is the meaning of the word "punishment" as used in the second Collins category. The proper inquiry is whether the mandatory AIDS test makes defendant's punishment more burdensome and thus falls within the Collins prohibition. The Court of Appeal held that it did, stating that "The loss of significant rights as the result of a criminal conviction has long been considered 'punishment' for ex post facto purposes." Focusing its analysis solely on the statute's effect on defendant and not on the statute's purpose, it struck the order for blood testing as violative of the ex post facto clause.

Criteria for deciding whether or not legislation is punitive have yet to be fully developed. Commonly understood definitions of punishment are intuitive: there is little dispute that additional jail time or extra fines are punishment. (See, e.g., Weaver v. Graham (1981) 450 U.S. 24, 33-34, 101 S.Ct. 960, 967, 67 L.Ed.2d 17.) However, punishment has historically included a variety of methods limited only by human imagination, yet in situations going beyond traditional notions of punishment intuition alone does not provide adequate guidance. To determine whether an AIDS test should be considered "punishment" within the meaning of Collins, we examine both the purposes served by the ban on ex post facto legislation and the manner in which the cases have defined punishment.

The prohibition against ex post facto legislation in the federal Constitution emanates, like many protections created by that document, from the excesses of colonial rulers "stimulated by ambition, or personal resentment and vindictive malice." (Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 389, 1 L.Ed. 648.) It serves two main purposes: first, "to assure that legislative Acts give fair warning of their effect and permit individuals to rely on their meaning until explicitly changed" (Weaver v. Graham, supra, 450 U.S. 24, 28-29, 101 S.Ct. 960, 964); and second, to restrict "governmental power by restraining arbitrary and potentially vindictive legislation" (id. at p. 29, 101 S.Ct. at p. 964). The clause thus protects defendants from retrospective legislation with a punitive effect or purpose.

As noted above, Collins, supra, 497 U.S. 37, 110 S.Ct. 2715, overruled cases holding that legislation violated the ex post facto clause if it eliminated "substantial protections." The categories it adopted dated back over half a century. But because the statute there in issue--allowing an appellate court to reform an improper verdict without a new trial--concededly did not fall into the prohibited categories, Collins itself furnishes no definitive answer to the question of the meaning of punishment.

Federal cases prior to Collins offer guidance in determining whether a statute is punitive. In Trop v. Dulles (1958) 356 U.S. 86, 96, 78 S.Ct. 590, 596, 2 L.Ed.2d 630, the plurality declared: "In deciding whether or not a law is penal, this Court has generally based its determination upon the purpose of the statute.... [A] statute has been considered nonpenal if it imposes a disability, not to punish, but to accomplish some other legitimate governmental purpose." (Fns. omitted. See also Flemming v. Nestor (1960) 363 U.S. 603, 615-616, 80 S.Ct. 1367, 1375, 4 L.Ed.2d 1435.)

Kennedy v. Mendoza-Martinez (1963) 372 U.S. 144, 168-169, 83 S.Ct. 554, 567-568, 9 L.Ed.2d 644 considered several factors to determine whether or not a law was punitive: "Whether the sanction involves an affirmative disability or restraint, whether it has historically been regarded as a punishment, whether it comes into play only on a finding of scienter, whether its operation will promote the traditional aims of punishment--retribution and deterrence, whether the behavior to which it applies is already a crime, whether an alternative purpose to which it may rationally be connected is assignable for it, and whether it appears excessive in relation to the alternative purpose assigned...." (Fns. omitted.)

After Collins, supra, 497 U.S. 37, 110 S.Ct. 2715, federal courts have applied the reasoning of early ex post facto cases to modern questions about the nature of punishment. Jones v. Murray (4th Cir.1992) 962 F.2d 302 is an example. In that case, the court held that legislation requiring prisoners to donate blood samples for a DNA data bank did not violate the ex post facto clause as applied to prisoners who had committed their crimes before the legislation's effective date, provided that failure to submit to testing did not result in a postponement of mandatory parole. The court reasoned that " '[T]he requirement that prisoners provide blood samples is not punitive in nature.... The blood sample is taken and analyzed for the sole purpose of establishing a data bank which will aid future law enforcement.' " (Id. at p. 309.)

Similarly, United States v. Bodre (1st Cir.1991) 948 F.2d 28 held that legislation altering judicial authority to recommend against deportation was not ex post facto as applied to an alien who committed the crime leading to deportation before the legislation was passed. The court observed that despite "the severe consequences that deportation may have on an alien, the Supreme Court has repeatedly held that deportation is not punishment for the commission of crimes." (Id. at p. 32.) Deportation, like DNA blood testing, appears to have a legitimate nonpunitive government purpose, and is thus not considered punitive despite its...