California Sex Registration by Darren Chaker

In People v. Brandao (2012) 203 Cal.App.4th 436 [137 Cal.Rptr.3d 672], the mandatory sex registration requirement for defendants convicted of misdemeanor annoying or molesting a child (Pen. Code, § 647.6, subd. (a)) does not violate equal protection of the law. Darren Chaker notes that Appellant pled guilty to misdemeanor annoying or molesting a child for sending amorous text messages to a 15-year-old girl. (Pen. Code, § 647.6, subd. (a).)

On appeal he challenged the mandatory sex registration requirement for that offense (Pen. Code, § 290, subd. (c)) on state and federal equal protection grounds, citing People v. Hofsheier (2006) 37 Cal.4th 1185. Appellant's case was transferred to the Court of Appeal. In Hofsheier, the mandatory registration requirement for persons convicted of oral copulation with a minor (Pen. Code, § 288b, subd. (b)(1)) was held to violate equal protection because persons convicted of sexual intercourse with a minor (Pen. Code, § 261.5, subd. (c)) faced only discretionary registration.

The Court of Appeal noted that those cases refusing to extend Hofsheier to other sexual offenses "focused on the dissimilarities between the two classes of offenders, distinguishing" their crimes from Hofsheier-type offenses. While it is true that a violation of section 647.6, subdivision (a) may involve conduct less overtly sexual than other offenses for which registration is discretionary, nonetheless, the defendant's conduct must have objectively irritated or disturbed a reasonable person "regardless of the defendant's intent." This distinguishes the crime from Hofsheier-type offenses. The fact that a section 647.6, subdivision (a) offense is a misdemeanor does not render it less deserving of mandatory registration because "the unique motivational requirement” (an unnatural or abnormal sexual interest or intent with respect to children) sets the statute apart. Thus, those defendants convicted of violating 647.6, subdivision (a) are not similarly situated to defendants convicted of Hofsheier-type offenses.

© 2011 Darren Chaker. All Rights Reserved.

Inadequate Investigation Found

Darren Chaker agrees that adequate investigation is critical in any legal case. The Court of Appeal in San Diego agrees. In re Hill (2011) 198 Cal.App.4th 1008 [129 Cal.Rptr.3d 856], Defense counsel has an obligation to investigate all possible defenses and must not select a strategy without carrying out an adequate investigation. Petitioner was convicted of numerous counts of child molest and sentenced to multiple life terms.

The case involved a credibility contest between petitioner, the two alleged victims, one of whom had recanted twice, and the prosecution's expert witness, a doctor. According to defense counsel's post-trial declaration, she was provided the medical forensic report but failed to obtain photographs taken during the examination of the victim and did not consult with a medical expert prior to trial. Her trial strategy was to show that the one victim lied when she made her accusations but then told the truth when she recanted and that the second victim lied.

According to the post-trial declaration of a medical expert, the testimony of the prosecution's expert witness was subject to significant impeachment. The appellate court found that by not adequately investigating all possible defenses, i.e., impeachment of the prosecution's expert witness with a defense medical expert, defense counsel could not make a rational and informed decision on strategy and tactics for trial and, thus, petitioner was denied effective assistance of counsel. Because the case was a credibility contest, if counsel had the assistance of a medical expert, there is a reasonable probability that petitioner would have obtained a more favorable result. Therefore, the petition for writ of habeas corpus was granted, with the convictions reversed.

© 2011 Darren Chaker. All Rights Reserved.

Proposition 36 Nonviolent Possession

In People v. Parodi, 198 Cal. App. 4th 1179 (2011), the court found bringing drugs into a jail is not a "nonviolent drug possession offense" for purposes of Proposition 36. Darren Chaker notes that Appellant was arrested for possession of illegal drugs. Before entering the jail, he was asked if he had anything on his person he did not want to bring in -- he answered "no." A sign at the jail entry warned it was a criminal offense to enter with contraband. Drugs were found on appellant. He pled guilty to bringing drugs into the jail (Pen. Code, §4573). At sentencing he was denied drug treatment after the trial court found the offense was not a "nonviolent drug possession offense." Penal Code section 1210, subdivision (a), defines a "nonviolent drug possession offense" as the unlawful use, possession or transportation for personal use, of illegal drugs, excluding violations of sections 4573.6 or 4573.8 (drug possession in correctional facilities).

The focus of section 4573 is the act of bringing illegal substances into the jail, not on simple possession or use of drugs. The fact the Legislature did not list a violation of section 4573 as an excluded offense, as it did sections 4573.6 and 4573.8, does not mean it determined the act of bringing drugs into a jail constitutes a nonviolent drug possession offense. More likely, the Legislature wanted to exclude possession offenses in secure facilities from the scope of Proposition 36; it was unnecessary to list section 4573 because more than mere possession, i.e., smuggling drugs, is prohibited by that statute. Thus, a violation of section 4573 is not a "nonviolent drug possession offense" rendering appellant eligible for drug treatment under Proposition 36.

© 2011 Darren Chaker. All Rights Reserved.

California Expungement Darren Chaker

Darren Chaker writes about various cases, however also have a site dedicated to California expungement, see http://darren-chaker.info/ . There's another site which will focus on spoilation of evidence, http://www.darren-chaker.com/

Hope you enjoy them!

© 2011 Darren Chaker. All Rights Reserved.

Authenticate Electronic Evidence

Authenticating electronic discovery is difficult at times. Darren Chaker found to authenticate MySpace as use as evidence in Orange County to be simplified in People v. Valdez (2011) 201 Cal.App.4th 1429, 1437 [135 Cal.Rptr.3d 628, 635].

In Valdez, the requirement of a password to post and delete content on MySpace pages, as well as the consistency of the content on the pages, provides the necessary authentication for introduction of the MySpace pages for corroboration and foundation purposes. As a result of his involvement in two shooting incidents, appellant was charged with and convicted of numerous substantive offenses and gang enhancements. On appeal, he contended that the introduction of MySpace pages by an Orange County District Attorney investigator, as corroboration of a witness' statement that he recognized appellant, and as foundation for the gang expert's testimony, was error as the evidence had not been authenticated.

The appellate court rejected the contention, finding that the prosecution met its initial burden of authentication to support its claim that the MySpace site belonged to appellant and that the entries were not falsified. Evidence that a password was required for posting and deleting content to the site suggested that appellant controlled the posted material, such that the trier of fact could reasonably conclude the proffered MySpace writing was authentic. The site contained a photograph of appellant forming a gang sign, greetings addressing him by name, and his stated interests in gangs. The evidence also did not violate the rule against hearsay as it was not offered for the truth, and the jury was so instructed. Lastly, it was not more prejudicial than probative because the fact that the evidence reflected negatively on appellant was not grounds for exclusion.

© 2011 Darren Chaker. All Rights Reserved.

GPS Requires Warrant by Darren Chaker

Being a privacy advocate, Darren Chaker tended to lean against use of GPS devices absent a warrant to enforce the Fourth Amendment. The Supreme Court found in U.S. v. Jones (2012) 132 S.Ct. 945, determined by attaching a GPS device to a person's vehicle to track their movements constitutes a search within the meaning of the Fourth Amendment. Authorities obtained a search warrant to install a GPS device on defendant’s car as part of a drug trafficking investigation. They did not install the device until after the warrant expired. The device was used to track defendant's movements for almost a month. When charges were filed against defendant he moved to suppress the GPS evidence as the product of an illegal search. His motion was denied in part. The D.C. Circuit reversed the conviction based on the admission of this evidence.

The U.S.S.C. found the government's use of a GPS monitoring device is a search within the meaning of the Fourth Amendment and therefore must be reasonable. The majority decision was not based on the reasonable expectation of privacy test for challenges to law enforcement surveillance which is generally employed. (Katz v. U.S. (1967) 389 U.S. 347.) The majority based its decision on common law trespass principals, holding that attaching a GPS device to a vehicle (an "effect") for purposes of data collection constitutes a search because the government physically occupied private property for the purpose of information gathering. The majority stated the reasonable expectation of privacy test "has been added to, not substituted for, the common-law trespassory test." It affirmed the district court's reversal. The concurring opinion was critical of the trespass theory, stating the majority should have used the reasonable-expectation-of-privacy test. [Ed. note: Did the high court address the government's argument regarding a warrant or probable cause standard? See differing opinions in Scotusblog articles: http://www.scotusblog.com/2012/01/jones-confounds-the-press/#more-137791 and http://www.scotusblog.com/?p=137614 ]  

© 2011 Darren Chaker. All Rights Reserved.

California Gang Enhancement

Darren Chaker writes about yet another case involving a California gang enhancement appeal. The court found in People v. Louie (Cal. Ct. App. 2012) 136 Cal.Rptr.3d 646, that a gang enhancement under Penal Code section 186.22, subdivision (b)(1) may not be imposed when subdivision (b)(4) or (b)(5) applies instead. A jury convicted appellant of dissuading a witness (Pen. Code, § 136.1) and found true a street terrorism enhancement. The trial court imposed both a life sentence pursuant to Penal Code section 186.22, subdivision (b)(4)(C) and a stayed five-year enhancement pursuant to subdivision (b)(1)(B). Section 186.22, subdivision (b) establishes alternative methods of punishment. A subdivision (b)(1) enhancement may not be applied when subdivision (b)(4) or (b)(5) applies instead. Because dissuading a witness is specifically listed in subdivision (b)(4), the court struck the subdivision (b)(1)(B) enhancement.

The punishment for the substantive street gang offense must be stayed pursuant to Penal Code section 654 when the sentences on other crimes are enhanced with the street gang enhancement. The issue of whether a defendant can be punished for both the substantive offense of street terrorism (Pen. Code, § 186.22, subd. (a)) and another felony where the other felony is the "felonious criminal conduct" of the gang that is used to establish the charge of street terrorism has not been consistently decided and is pending in the California Supreme Court in People v. Mesa (2010) 186 Cal.App.4th 773, review granted October 27, 2010, S185688. In a concurring majority opinion, the court reasoned that a determination of whether a defendant can be punished for two crimes or, alternatively, must be punished for only one depends on whether punishing the defendant for just one of the crimes "insures that the defendant's punishment will be commensurate with his culpability." (People v. Perez (1979) 23 Cal.3d 545, 551 [alterations omitted].) Here, Penal Code section 654 prohibits punishment pursuant to Penal Code section 186.22, subdivision (a) because the defendants were already punished for the same gang aspect of the crimes when their sentences were enhanced pursuant to subdivision (b)(4)(C). The concurring majority opinion declined to follow People v. Herrera (1999) 70 Cal.App.4th 1456.

© 2011 Darren Chaker. All Rights Reserved.

Darren Chaker-Unfair Trial Reversed

Darren Chaker believes most defendants who go to trial, typically do so with the cards stacked against them: public defender, wearing jail clothes, prior convictions, and often don't look too innocent - even if they are. In this case, People v. Sanchez (2011) 200 Cal.App.4th 70 [132 Cal.Rptr.3d 537, 538] the court abused its discretion when it places a deputy near the defendant while he testifies on the basis of a general courtroom policy with no case-specific concerns for security. The Supreme Court transferred this case back to the Court of Appeal for reconsideration after People v. Hernandez (2011) 51 Cal.4th 733 [uniformed deputy stationed at the witness stand must be based on individualized facts showing the defendant poses a safety or flight risk or would otherwise disrupt proceedings; Watson review standard is applied].

Here, a deputy followed the defendant from counsel table to the witness stand when he testified in a prosecution for indecent exposure. The deputy stood "at ease" or sat behind the defendant while he testified and then followed him back to his seat at counsel table. There was no discussion of the procedure beforehand, but defense counsel sought a mistrial afterward on the basis that it deprived defendant of a fair trial. Such error is reviewed to determine whether it is reasonably probable that the defendant would have obtained a more favorable result absent the presence of the deputy. There was no indication the deputy's demeanor was anything other than respectful and appropriate, the defendant was dressed in street clothes, the eyewitness testimony was very strong, and the defendant's version of events lacked persuasive appeal.

© 2011 Darren Chaker. All Rights Reserved.

Darren Chaker-California Self Defense

People v. Valenzuela (2011) 199 Cal.App.4th 1214 [133 Cal.Rptr.3d 196]

California self defense is similar to most states. Here, trial was held in Los Angeles Superior Court. Trial court had no sua sponte duty to instruct on imperfect self defense where there is no evidence defendant’s fear of harm was unreasonable. Darren Chaker notes Appellant was convicted of murder and other offenses, along with gang and gun use enhancements which is common here in Los Angeles. The offenses arose from two separate exchanges between rival gang members.

In May, 2006, appellant shot at an occupied motor vehicle, believing that its occupants were going to shoot him. Two months later, the same vehicle followed appellant's car in a high-speed chase, during which appellant thought he saw a gun. He phoned a fellow gang member and requested help. During the chase shots were fired and a person was killed. Appellant argued the court erred in not instructing the jury on imperfect self defense. The Court of Appeal found that while the evidence could have supported a finding of actual self defense, a reasonable jury would not conclude appellant's fear of death or great bodily injury was unreasonable, during either of the events. Appellant had shot at the same vehicle several months before the high-speed chase, because the occupants yelled gang challenges, the passenger moved as though retrieving a gun and appellant heard popping sounds. In the chase several months later, a rival gang member was carrying a gun and shooting at appellant. "Imperfect self defense is not a 'true' defense, but a 'shorthand description of one form of voluntary manslaughter.'" Where the defendant's version of events supports a finding of actual self defense and the prosecution's evidence negates both actual and imperfect self defense, there is no sua sponte duty to instruct on imperfect self defense.

The trial court did not err by giving mutual combat instructions. Appellant argued the trial court erred by instructing on mutual combat as it relates to self defense. However, there was substantial evidence of mutual combat based on the manner in which the vehicles engaged in a chase, during which gunfire was exchanged. Any error in giving the instruction was harmless.

There was no error where the court instructed the jury on compelling another to commit a crime. The court instructed the jury that a person who compels another to commit a crime is guilty of the offense compelled. This instruction conformed to Penal Code section 31, which defines principals to a crime as including those who compel another to commit an offense. This concept is not limited to situations where an innocent person is used as a conduit to commit a crime. There was evidence appellant called a fellow gang member and solicited help, including asking him to obtain a weapon and to come to the scene of the chase. Thus, the instruction was not erroneously given and, in any event, was harmless.

Defense counsel consented to allowing an uncharged special allegation to go to the jury. The trial court instructed the jury regarding the special allegation of shooting a gun from a vehicle pursuant to Penal Code section 190, subdivision (d), which provides increased punishment of 20 years to life for second degree murder. Although this allegation was not alleged, the court stated its intent to give the allegation to the jury and defense counsel did not object. The jury found the allegation true and appellant received 20 years to life for second degree murder. As defense counsel consented to the inclusion of the allegation without amendment of the information, appellant has forfeited the right to claim lack of notice. The Court of Appeal rejected an allegation of ineffective assistance of counsel, finding no prejudice was shown.

The gang enhancement could not be imposed in addition to the section 12022.5 enhancement. The trial court erred in imposing a 15-year minimum parole eligibility period under section 186.22, subdivision (b)(5) for several attempted murder counts. The jury found only that a principal personally used a firearm in the commission of these counts. Therefore, appellant was not subject to an enhancement for participation in a criminal street gang in addition to the gun use enhancement imposed pursuant to section 12022.5 as there was no finding he personally used a gun in the commission of the offense. (Pen. Code, § 12022.53, subd. (e)(2).)

© 2011 Darren Chaker. All Rights Reserved.

Darren-Chaker Certificate of Probable

First, thank you for reading - Darren Chaker. Second, and most importantly, in People v. Maultsby --- P.3d ----12 Cal. Daily Op. Serv. 238, 2012 WL 19370, the California Supreme Court found Penal Code section 1237.5 is inapplicable where appellant is convicted by trial of the substantive offense but has admitted a prior conviction and appeals. Appellant was convicted by a jury of felony petty theft. In a bifurcated proceeding, appellant admitted a "strike" and several prior convictions for theft. Without obtaining a certificate of probable cause, he appealed, contending he had not been properly advised before he entered his admissions. The appellate court dismissed the appeal, holding a certificate of probable cause was required to raise the issue. The Supreme Court reversed, disapproving People v. Fulton (2009) 179 Cal.App.4th 1230. Applying rules of statutory construction to Penal Code section 1237.5, the Court concluded that Penal Code section 1237, subdivision (a), not section 1237.5, applies where a defendant does not plead guilty or no contest. Furthermore, requiring appellant to obtain a certificate of probable cause to contest the "strikes" admission would not promote judicial economy, that being the underlying purpose of section 1237.5, because with the jury trial conviction, a defendant has the right to pursue an appeal without limitation.

© 2011 Darren Chaker. All Rights Reserved.

Felon in Constructive Possession of Gun by Darren Chaker

In People v. Sifuentes (2011) 195 Cal.App.4th 1410 [125 Cal.Rptr.3d 903] the court dealt with the possession of a gun by a fellow gang member occupying the same motel room does not equate to possession by a felon based on constructive possession. Of course, Darren Chaker notes this felony may have been expunged depending on the charge which allows restoration of gun rights in some cases.

Nonetheless, officers went to a motel room rented by Sifuentes who had a "no-bail" parole arrest warrant. Another occupant of the room, a fellow gang member Lopez, was located next to a mattress which concealed a loaded handgun. The gun was not tested for DNA or fingerprints. At trial, a gang expert testified about the prominent role that guns play in the gang subculture: a "gang gun" is passed among members for their criminal endeavors; gang members inform others if they possess a firearm because it garners respect and it warns members who may have penal consequences based on probation or parole. No direct evidence tied the particular gun in this case to other gang members or indicated that it had been used by the gang. There was insufficient evidence to support Sifuentes’ conviction for being a felon in possession of the firearm based on the doctrine of constructive possession. There was a failure to prove that he knowingly exercised a right of control over the firearm, either directly or through another person. Mere proximity, standing alone, is not sufficient evidence of possession.

The failure to bring a motion to suppress does not support a claim of ineffective assistance of counsel in this case. Defense counsel was not asked for an explanation, but he reasonably may have concluded that such a motion was unlikely to succeed. A review of the record indicates there was an arrest warrant for Sifuentes who was on parole. Payton v. New York (1980) 445 U.S. 573, 602-603, holds an arrest warrant carries with it the authority to enter a dwelling in which the suspect lives when there is reason to believe the suspect is within. The motel manager testified at trial that identification and a credit card are required to rent a room. Sifuentes was the registered guest in the room. The officers did not receive a response to their announcement, but heard movement in the room from which it was reasonable to assume that he was in the room.

The complete failure to obtain a waiver of jury trial and a waiver of other constitutional rights requires reversal of the strike allegation and the prior prison term allegations. The defense motion to bifurcate the trial on the priors from the remaining charges was granted at the time defense counsel represented that the defendant intended to admit the allegations. There was no waiver of jury trial at that point. After the jury verdicts on the substantive charges, the court did not advise him of his constitutional rights or obtain waivers. It is a silent record case. It may not be inferred from a totality of the circumstances that the admissions were voluntary and intelligent. People v. Mosby (2004) 33 Cal.4th 353, 359-360, only supports consideration of the defendant's prior experience with the criminal system in cases with incomplete advisements. The reversal would not bar a retrial of the prior conviction allegations.

© 2011 Darren Chaker. All Rights Reserved.

Penal Code 288 and Battery by Darren Chaker

In People v. Gray (2011) 199 Cal.App.4th 167 [131 Cal.Rptr.3d 674] it was decided every lewd act is also a battery, therefore the court has a sua sponte duty to instruct on battery (Pen. Code, sec. 242), as a lesser included offense of a lewd and lascivious act (Pen. Code, sec. 288, subd. (a)). This form of battery would likely not be able to be expunged. Battery encompasses the slightest touching, with a general intent, so long as it is harmful or offensive. Any touching of a child for the purpose of sexual arousal would also be a touching that is harmful or offensive and constitute a battery. In this case, the defendant's touching of the victim met both definitions and was such that no reasonable jury would conclude the touching was merely offensive. The instructional error was not prejudicial in this case and therefore it was harmless error.

The imprecise testimony from the five-year-old witness as to the date of the offense rendered a sentence under the One Strike law a violation of ex post facto prohibition. Penal Code section 667.61, the One Strike law, went into effect on November 30, 1994. The information alleged certain counts occurred between January 1, 1994 and May 1, 1996. The increased punishment could not be applied to those offenses because the evidence at trial did not prove the offenses were committed after the effective date. The child gave inconsistent testimony and admitted she wasn't really sure about dates. The jury was not asked to render verdicts which would establish the date of the offenses. Four counts were remanded for resentencing without the application of section 667.61.

Continuous sexual abuse, a violation of Penal Code section 288.5, could not be sentenced under the One Strike law when the offenses occurred long before section 288.5 was added to the list of offenses subject to the greater punishment. Section 288.5 was added to section 667.61 and qualified for the greater sentence effective September 20, 2006. Sentences for continuous abuse which ended in 1995, as to one count, and 1998 as to another count, had to be reversed and remanded for resentencing without application of section 667.61.

The defendant's testimony about DNA evidence was properly excluded under Evidence Code section 352. The defendant's proffered testimony was not hearsay but was offered to demonstrate the defendant's consciousness of innocence in agreeing to cooperate and to provide DNA to the investigator. The trial court had discretion to find the slight probative value was outweighed by the risk of confusing issues. The defense was not precluded from presenting a consciousness of innocence defense through other admissible testimony.

© 2011 Darren Chaker. All Rights Reserved.

Lifetime Sex Offender Registration by Darren Chaker

Darren Chaker reflects on another new sex offender case in People v. Miranda (2011) 199 Cal.App.4th 1403 [132 Cal.Rptr.3d 315].

Here, the court decided if the victim's capacity to consent in a sex offense can be established by the jury's assessment of the victim's demeanor. Appellant was convicted of attempted rape, oral copulation, and sexual penetration of his 15-year-old granddaughter who suffered from cerebral palsy. All three convictions were based on the theory that the victim was incapable of giving legal consent to the acts because of a mental disorder or developmental physical disability.

The appellate court rejected appellant's contention that insufficient evidence was presented that the victim lacked the capacity to consent due to a mental disorder. No expert testimony on this issue is required. Here, sufficient circumstantial evidence was presented to establish that the victim lacked capacity to consent: when assaulted, she did not respond to the assailant’s question as to whether she liked the sexual assault; her description of the assault at trial was childlike–one syllable responses and hand gestures to direct questions; witnesses described her as suffering from cerebral palsy with related seizures, and that she attended special education classes, and had problems walking and talking.

Evidence of a prior false complaint may be excluded under Evidence Code section 352 if its relevance is questionable, it is unclear, and it involves layers of statements to develop its point. Evidence of a prior false report of molestation is relevant to the credibility of the victim. Here, defense counsel sought to introduce evidence that victim was listed as victim and her father as a suspect in a prior molest incident. The appellate court found no abuse of discretion in its exclusion because it was unclear who made the complaint, the prosecutor claiming the victim’s mother complained to a social worker; there was no showing that it was false; the evidence had a potential for confusing the jury; and there was an independent witness in the present case whereas there was no witness in the prior case.

Lifetime sex offender registration for a person convicted of offenses against a victim incapable of consent does not violate equal protection. The court rejected appellant's claim that lifetime registration violated equal protection, finding that there was no showing that appellant was in a class similarly situated to the individual for whom there is no lifetime registration. (See People v. Hofsheier (2006) 37 Cal.4th 1185 where defendant was convicted of oral copulation of a 16-year-old-girl.) Unlike Hofsheier, appellant was convicted of violent, nonconsensual crimes.

© 2011 Darren Chaker. All Rights Reserved.

Confidential Informants in Prison by Darren Chaker

Darren Chaker thinks this is an interesting twist to keeping confidential informants, well, confidential. In Ochoa v. Superior Court (2011) 199 Cal.App.4th 1274 [132 Cal.Rptr.3d 233] a parole proceeding, the warden may decline to disclose the identity of a prison informant against the inmate if there is a valid state interest in keeping the informant's identity confidential. Glasgow was convicted of first degree murder in 1980 and sentenced to state prison for thirty years to life.

In 2010, the Board of Parole Hearings (Board) found him suitable for parole but the Governor revsered the decision, based, in part, on confidential information that Glasgow sold his prescribed pain medication to other inmates. Glasgow challenged the decision in a writ action and the superior court ordered disclosure of the confidential information or reconsideration of parole without the information. The appellate court issued a peremptory writ vacating the order.

An inmate seeking parole does not have the same minimum due process rights as the parolee in a Morrissey hearing (Morrissey v. Brewer (1972) 408 U.S. 471.) Instead, the rights of an inmate seeking parole are considered on a case by case basis, with the state's interests weighed against those of the inmates. For security and safety, the warden may refuse to disclose confidential information (Evid. Code, sec. 1040). If a claim of privilege is made, the court may require an in camera hearing to determine if the information is privileged and if it is, it may not be disclosed. Here, the superior court, in an in camera hearing, determined that the confidential documents were relevant and reliable, allowing the warden to exert non disclosure under section 1040. However, the appellate court concluded that an in camera hearing with the warden must now be held to determine how much of the confidential information could be disclosed without disclosing the informant's identity, such that Glasgow's rights to a fair parole determination can be balanced with the state’s right of nondisclosure.

© 2011 Darren Chaker. All Rights Reserved.

DNA Database Unconstitutional

By Darren Chaker

People v. Buza, 197 Cal.App.4th 1424, --- Cal.Rptr.3d ----, 2011 WL, Cal.App. 1 Dist.,2011, DNA and Forensic Identification Data Base and Data Bank Act held unconstitutional in part.   

The DNA and Forensic Identification Data Base and Data Bank Act of 1998, to the extent it requires felony arrestees to submit a DNA sample for law enforcement analysis and inclusion in the state and federal DNA databases, without independent suspicion, a warrant or even a judicial or grand jury determination of probable cause, unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution. 
Applying the totality of the circumstances test of reasonableness, the court first discussed the privacy interests of arrestees, noting that they have greater privacy rights than probationers, parolees or convicted prisoners, and that an arrestee who has not yet been the subject of a judicial determination of probable cause, falls closer to the ordinary citizen end of the continuum than one as to whom probable cause has been found by a judicial officer or grand jury. The court also noted that many arrestees are legally innocent, yet their DNA profiles, specimens, and samples remain in government control unless they successfully obtain expungement.

The court then found that the governmental interest in DNA testing for identification at such an early juncture in the criminal process is problematic, as testing under the DNA Act currently could not be used to immediately verify who an arrestee is, while the investigative use of DNA testing appeared to be of incremental utility at best. The court therefore held that the portion of the DNA Act 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, was unconstitutional.

Of course Buza is contrary to United States v. Pool, 09-015-EJG-GGH, Eastern District of California, May 27, 2009, where the court upheld the constitutionality of DNA sample collection from all those arrested upon probable cause for the commission of a federal felony finding that after a judicial or grand jury determination of probable cause has been made for felony criminal charges against a defendant, no Fourth Amendment or other Constitutional violation is caused by a requirement that the defendant undergo a mouth swab or blood test for the purposes of DNA analysis to be used for criminal law enforcement identification purposes. This decision was upheld by the Ninth Circuit .
text © 2011 Darren Chaker. All Rights Reserved.