P. v. Dunkley
Filed 5/15/06 P. v. Dunkley CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. LEO JAMES DUNKLEY, Defendant and Appellant. | D046072 (Super. Ct. No. SCD172929) |
APPEAL from a judgment of the Superior Court of San Diego County, Richard E. Mills, Judge. Affirmed.
On January 7, 2005, defendant Leo James Dunkley was convicted of being willfully cruel to an elder and dependent adult in a manner likely to result in great bodily injury or death. (Pen. Code,[1] § 368, subd. (b)(1).) The court suspended imposition of sentence and granted Dunkley three years' formal probation.
On appeal, Dunkley contends the court erred at sentencing by requiring him to comply with the DNA and Forensic Identification Database and Data Bank Act of 1998 (the DNA Act; § 295 et seq.), as amended by Proposition 69, which the voters approved at the General Election of November 2, 2004, to require any convicted felon to submit DNA samples for law enforcement use. (§ 296, subd. (a)(1).) Dunkley contends the amendment is unconstitutionally overbroad as it " unreasonably lumps the white-collar embezzler with the sexual predator or murderer." Dunkley also contends Proposition 69 is inapplicable because he committed his crime before its effective date. He asks that his DNA specimen be " expunged" from any database to which it was disseminated and destroyed.
We agree with the People, however, that under People v. Dial (2005) 130 Cal.App.4th 657 (Dial), Dunkley's claim for injunctive relief is not cognizable on appeal. Accordingly, we affirm the judgment.
BACKGROUND
Dunkley began caring for his elderly mother, Eleanor Dunkley (Eleanor), in her home in 1993 after she fell and injured herself. Eleanor also suffered from Alzheimer's disease.
Eleanor died on August 12, 2002, at the age of 90. When emergency personnel entered her home, they were struck by the overpowering smell of decaying flesh, urine and feces. They found Eleanor lying on the floor in a filthy room, naked from the waist down and soiled with excrement. An autopsy showed she had pneumonia, a blood clot and heart disease. She also suffered from numerous " decubitus ulcers," or infected bedsores, and she was chronically malnourished.
DISCUSSION
As amended by Proposition 69, section 296 provides in part: " (a) The following persons shall provide buccal swab samples, right thumbprints, and a full palm print impression of each hand, and any blood specimens or other biological samples required pursuant to this chapter for law enforcement identification analysis: [¶] (1) Any person
. . . who is convicted of or pleads guilty or no contest to any felony offense . . . ." Before Proposition 69, persons convicted of specified crimes were required to comply with the DNA Act. Those crimes included murder, voluntary manslaughter, felony spousal abuse, aggravated sexual assault of a child, felony assault or battery, kidnapping, mayhem, torture, burglary, robbery, arson, carjacking and terrorist activity. (Former § 296, subd. (a)(1)(A)-(N).)
Dunkley takes issue with the breadth of Proposition 69, and also asserts it applies only to crimes committed before its November 3, 2004, effective date. The People point out that amended section 296, subdivision (a)(1) refers to a conviction as the operative event, and not the commission of a crime. (See Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 817-818.) The People also contend Proposition 69 is not constitutionally overbroad because it is limited to a discrete class of persons, felons, and poses no present danger of interfering with freedoms beyond its intended and legitimate scope. (See Williams v. Garcetti (1993) 5 Cal.4th 561, 577.)
We are not required to reach the merits of these issues, however, because we are persuaded by Dial, supra, 130 Cal.App.4th 657, that Dunkley may not challenge the DNA Act on appeal of his criminal conviction.[2] In Dial, the defendant was convicted of receiving stolen property, a crime not enumerated in former section 296, subdivision (a)(1). He contended on appeal that the court ordered him to comply with the DNA Act, as amended by Proposition 69, in violation of his Fourth Amendment right to be free of unreasonable government intrusion. The defendant requested " that the 'order' requiring DNA samples 'be rescinded and that any information that may have been obtained as a result of this order be both suppressed and destroyed.' " (Dial, supra, 130 Cal.App.4that p. 660.)
The court did not reach the merits, concluding the defendant's constitutional challenge could not be reached or effectively remedied on appeal. (Dial, supra, 130 Cal.App.4th at p. 660.) The court noted the defendant's challenge did not affect the judgment of conviction, as was the case in other appeals that reached the merits of constitutional challenges to the DNA Act. For instance, in People v. Adams (2004) 115 Cal.App.4th 243, the defendant, who was convicted of first degree murder with rape and sodomy special circumstances, moved at trial to suppress blood evidence taken when he was in prison for inclusion in the state's convicted offender DNA database. The court considered and rejected the defendant's Fourth Amendment challenge to the DNA Act. (Id. at pp. 255-259; see also People v. King (2000) 82 Cal.App.4th 1363.)
In contrast, in Alfaro v. Terhune (2002) 98 Cal.App.4th 492, prisoners challenged the implementation of the DNA Act on constitutional grounds, by suing " state officials charged with implementing the [DNA] Act." (Id. at pp. 497, 500.)
The Dial court explained that after Proposition 69 " the responsibility for the DNA [Database] Act's management and administration remains vested in the Department of Justice (DOJ) through its DNA Laboratory (§ 295, subd. (g)). The DOJ is responsible for implementing the act (§ 295, subd. (h)), and authority to adopt policies and enact regulations for its implementation rests with the DNA Laboratory, Department of Corrections, Board of Corrections, and Department of the Youth Authority (id., subd. (h)(1)), with responsibility for collection at jails or other county facilities resting with the county sheriff or chief administrative officer of such facilities (id., subd. (i)(1)). Once samples are collected, those authorities must forward the samples to the DOJ (§ 298, subd. (a)), which enters the information (id., subd. (b)(6)), and samples analysis, storage and use remain the responsibility of the DOJ and its DNA Laboratory (§ 295.1, subds. (a) & (c))." (Dial, supra, 130 Cal.App.4th at p. 661.) The court explained, " Not one of those authorities or officials is a party to this action so that we or the trial court could grant injunctive relief if persuaded by Dial's Fourth Amendment claims." (Ibid.)
The defendant in Dial sought the rescission of the trial court's order that he supply DNA samples, and the court acknowledged that " is surely something this or the trial court could do." (Dial, supra, 130 Cal.App.4th at p. 661.) The court, however, concluded that the " order in the scheme of the DNA Act . . . shows that it is more akin to an advisement and that the act's requirements that specified persons give DNA samples are, to use the People's term, 'self-executing' in that they are mandatory and arise with or without a trial court advisement or order to that effect." (Id. at pp. 661-662.) The court found the defendant's attack on the order could not relieve him of the DNA Act's mandatory requirements. (Ibid.)
Here, Dunkley contends his " DNA sample and profile must be expunged and the Attorney General be ordered to retrieve and destroy all of [his] DNA samples or profiles that have been disseminated elsewhere, and certify under oath that [it] has done so." He also contends " this Court must order that any DNA samples or profiles originating from this case can be used for no purposes whatsoever." Under the reasoning of Dial, however, he may not obtain any relief on appeal of his criminal conviction. We also note that Dunkley did not properly raise the DNA issue before the trial court. Issues not presented to the trial court are ordinarily waived on appeal. (Royston v. Montanez (1982) 134 Cal.App.3d 362, 367.)[3]
DISPOSITION
The judgment is affirmed.
McCONNELL, P. J.
WE CONCUR:
NARES, J.
IRION, J.
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[1] All section references are to the Penal Code.
[2] Dunkley ignores Dial, supra, 130 Cal.App.4th 657, even though the People rely on the opinion in the respondent's brief.
[3] In People v. Espana (2006) 137 Cal.App.4th 549 (Espana), the Court of Appeal in an earlier appeal had reversed an order for the defendant to supply a DNA sample because his felony conviction was not for an offense enumerated in the original version of section 296. The court remanded the matter for the lower court's consideration of the defendant's request to have the sample removed from any law enforcement or DNA data Bank. (Espana, at p. 552.) By the time the trial court heard the matter, however, the voters had approved Proposition 69, and based thereon the court denied the defendant's motion for an order of expungement. On the second appeal, the court affirmed the denial because " if defendant's original DNA sample were expunged, he would be required [under Proposition 69] to submit a new sample as either an inmate or a parolee. It would be an idle act to remove defendant's DNA from the data bank if the state could turn around and compel a new DNA sample and then again place it in the data bank." (Espana, at p. 553.)
