People v. Travis

Decision Date26 May 2006
Docket NumberNo. A109342.,A109342.
Citation139 Cal.App.4th 1271,44 Cal.Rptr.3d 177
CourtCalifornia Court of Appeals Court of Appeals
PartiesThe PEOPLE, Plaintiff and Respondent, v. Antwan TRAVIS, Defendant and Appellant.

Richard C. Neuhoff, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Gerald A. Engler, Assistant Attorneys General, Enid A. Camps, Michael Chamberlain, Deputy Attorneys General, for Plaintiff and Respondent.

SWAGER, J.

In this appeal from a judgment of conviction following a guilty plea defendant challenges the constitutionality of the most recent amendment of the California DNA sample collection law, Penal Code section 296.1, upon which the trial court relied to impose an order for DNA testing upon him. We conclude that the statute does not offend constitutional principles, and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY1

Defendant entered a negotiated plea of guilty to one count of felony driving under the influence of alcohol (Veh.Code, § 23152, subd. (a)), and admitted that he suffered two prior convictions for driving under the influence of alcohol within the past 10 years (Veh.Code, § 23550.5).2 He was sentenced to a state prison term of 16 months, to run concurrently with a six-year sentence imposed in a separate Contra Costa County Superior Court action. Over objection by the defense, the trial court also ordered defendant to "submit to DNA testing" and provide print impressions pursuant to Penal Code section 296, subdivision (a)(1).3

DISCUSSION

Defendant challenges the constitutionality of section 296, subdivision (a)(1), which specifies that a DNA sample and print impressions must be provided for collection and storage in a state database by, "Any person, including any juvenile, who is convicted of or pleads guilty or no contest to any felony offense, or is found not guilty by reason of insanity of any felony offense, or any juvenile who is adjudicated under Section 602 of the Welfare and Institutions Code for committing any felony offense."4 (Italics added.) Section 296 in its present form was enacted as part of the 2004 DNA Fingerprint, Unsolved Crime and Innocence Protection Act (Prop.69). (§ 295, subd. (a).) Section 296 and the remainder of the DNA and Forensic Identification Database and Data Bank Act govern the collection of DNA samples and specimens from persons convicted of all felonies, rather than only enumerated crimes as provided under the former statute. (Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 814, 29 Cal.Rptr.3d 59.) The California Department of Justice (DOJ) is responsible for implementing the act (§ 295, subd. (h)), the DNA Laboratory, Department of Corrections, Board of Corrections, and Department of the Youth Authority, has the authority to adopt policies and enact regulations for the implementation of the act (§ 295, subds. (h)(1), (i)(1)), and the county sheriffs or chief administrative officers at jails or other county facilities have responsibility for collection of samples in accordance with approved procedures. (§ 295, subd. (i)(1), (2); People v. Dial (2005) 130 Cal.App.4th 657, 661, 30 Cal.Rptr.3d 252.) The DOJ then serves as a repository for the collected samples, performs a DNA analysis, and maintains the DNA profiles for comparison to samples taken at other crime scenes, in order to establish the identity and origin of those crime scene samples. (§§ 295.1, subds.(a), (c), 297, subd. (a); Coffey v. Superior Court, supra, at p. 814, 29 Cal. Rptr.3d 59.) The provisions of the act are mandatory and automatic upon conviction of a felony. (People v. Brewer (2001) 87 Cal.App.4th 1298, 1302, 105 Cal.Rptr.2d 293; People v. Hong (1998) 64 Cal.App.4th 1071, 1083, 76 Cal.Rptr.2d 23.) The persons specified in the act—that is, anyone convicted of any felony offense—"shall" provide samples, "and the requirements of the chapter (Pen.Code, pt. 1, tit. 9, ch. 6; §§ 295-300.3) `shall apply to all qualifying persons regardless of sentence imposed ... or any other disposition rendered in the case of an adult ..., or whether the person is diverted, fined, or referred for evaluation....' (§ 296, subd. (b).)" (People v. Dial, supra, at p. 662, 30 Cal.Rptr.3d 252.)

The trial court acted under the authority of the current version of section 296, subdivision (a)(1), by ordering defendant to submit a DNA sample as a result of his felony conviction of driving under the influence of alcohol. In this appeal, defendant presents several constitutional objections to the forced extraction and collection of DNA samples from all felony offenders: that the intrusion upon his privacy rights violated the Fourth Amendment prohibition against unreasonable searches and seizures; that his equal protection rights were violated; that the statute is overbroad and offends due process principles; and, that as applied to him the statute constitutes an ex post facto law. He requests that we modify his sentence to "exclude the mandatory sampling required by section 296," and "if [the] samples have already been taken," to order the samples "removed from any data bank and destroyed."

I. The Claim of Mootness.

Before we proceed to the substance of the constitutional claims presented by defendant, we deal with respondent's contention, made almost in passing, that defendant's appeal is "moot because he is independently required to provide a DNA sample based on his prior felony convictions" pursuant to section 296.1, subdivision (a)(2)(A)(i).5 Respondent's position seems to be that the availability of a basis for requiring a DNA sample from defendant other than merely his present driving under the influence conviction renders his challenge to the trial court's order moot.

We do not find the present appeal moot. "`As a general rule, "an appeal presenting only abstract or academic questions is subject to dismissal as moot." [Citation.]' [Citation.]" (In re Joshua C. (1994) 24 Cal.App.4th 1544, 1547, 30 Cal. Rptr.2d 10.) "`When no effective relief can be granted, an appeal is moot and will be dismissed.' [Citations.]" (MHC Operating Limited Partnership v. City of San Jose (2003) 106 Cal.App.4th 204, 214, 130 Cal.Rptr.2d 564; see also Lester v. Lennane (2000) 84 Cal.App.4th 536, 566, 101 Cal.Rptr.2d 86.) "`"It necessarily follows that when, pending an appeal from the judgment of a lower court, and without any fault of the defendant, an event occurs which renders it impossible for this court, if it should decide the case in favor of plaintiff, to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal."' [Citations.]" (Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 921, 45 Cal. Rptr.2d 1; see also People v. DeLong (2002) 101 Cal.App.4th 482, 486, 124 Cal. Rptr.2d 293; In re Joel H. (1993) 19 Cal. App.4th 1185, 1193, 23 Cal.Rptr.2d 878.) Although defendant may qualify for DNA testing under section 296.1 based upon his prior felony convictions for driving under the influence, in addition to the conviction obtained in the present case, we are not prevented from rendering effective relief if the statute is found unconstitutional. Defendant has challenged the constitutionality of section 296 in its entirety, and specifically the provisions that mandate collection of DNA samples for all felony convictions and for prior convictions for driving under the influence. If we rule in favor of defendant on the constitutional claims he has raised, he will obtain the relief he seeks. Defendant has also presented us with constitutional issues of public interest that may recur between these parties or others, which we have discretion to address even if we were to consider the appeal moot. (See White v. Davis (2003) 30 Cal.4th 528, 537, 133 Cal.Rptr.2d 648, 68 P.3d 74; Cucamongans United for Reasonable Expansion v. City of Rancho Cucamonga (2000) 82 Cal.App.4th 473, 479-480, 98 Cal. Rptr.2d 202; In re Robert A. (1992) 4 Cal.App.4th 174, 182, 5 Cal.Rptr.2d 438.) Thus, we decline to find that defendant has raised only moot points. (See Edelstein v. City and County of San Francisco (2002) 29 Cal.4th 164, 171-172, 126 Cal.Rptr.2d 727, 56 P.3d 1029; In re William M. (1970) 3 Cal.3d 16, 23, 89 Cal.Rptr. 33, 473 P.2d 737; People v. Matute (2002) 103 Cal. App.4th 1437, 1444-1445, 127 Cal.Rptr.2d 472; People v. DeLong, supra, at p. 492, 124 Cal.Rptr.2d 293.)

II. The Validity of Section 296 Under the Fourth Amendment.

We turn to defendant's claim that section 296 "as amended in 2004 violates the Fourth Amendment." His argument is that the statute mandates the collection of DNA samples, without the necessity of a warrant or probable cause, for an excessively broad range of qualifying convictions that includes "all felonies," and particularly his current and prior convictions for driving under the influence.

We commence our analysis with recognition of the established principle that the compulsory, nonconsensual extraction of DNA samples constitutes a search and seizure under the Fourth Amendment. (See Skinner v. Railway Labor Executives' Assn. (1989) 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639; Schmerber v. California (1966) 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908; Loder v. City of Glendale (1997) 14 Cal.4th 846, 867, 59 Cal.Rptr.2d 696, 927 P.2d 1200; People v. Adams (2004) 115 Cal.App.4th 243, 255-256, 9 Cal.Rptr.3d 170.) Governmentally compelled testing also implicates the state right of privacy. (Cal. Const., art. I, §§ 1, 13; Loder v. City of Glendale, supra, at p. 896, 59 Cal.Rptr.2d 696, 927 P.2d 1200; Wainwright v. Superior Court (2000) 84 Cal.App.4th 262, 267-268, 100 Cal.Rptr.2d 749.) "`"[S]earches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable"' under the Fourth Amendment's warrant requirement unless they fall within one of a few narrow exceptions thereto. [Citation...

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