P. v. Samaniego

Filed 8/7/06 P. v. Samaniego CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SIX

Francisco Samaniego appeals from the judgment entered after the trial court revoked probation and sentenced him to three years state prison for petty theft with a prior. (Pen. Code, § 666.)^[1] Appellant claims that he was denied due process and that the trial court erred in ordering him to provide DNA samples. We affirm.

Procedural History

On August 19, 2004, appellant entered a nolo contendre plea to petty theft with priors and admitted a prior theft conviction. (Pen. Code, § 666.) The trial court suspended imposition of sentence and granted felony probation. Appellant was already on misdemeanor probation in another case in Glendale (No. 2GL02650).

On October 27, 2004, appellant failed to report for probation supervision or appear. The trial court summarily revoked probation and issued a bench warrant.

Appellant was served with the warrant while in custody on a new robbery charge (No. BURGA06191501). Appellant told his probation officer "that he made a mistake and want[ed] another chance." At the July 8, 2005 preliminary hearing on the robbery case, Los Angeles County Superior Court Judge Patrick Hegarty revoked appellant's misdemeanor probation.

The felony probation revocation hearing in the instant case was conducted on September 21, 2005. Appellant was offered a two year prison sentence but rejected the offer. The trial court warned, "if I find you in violation [of probation], you are going to get maxed out." Appellant was urged to consider the offer and advised that "the only reason you weren't found in violation [of probation] on the felony case is because the magistrate [Judge Hegarty] didn't have the file." Counsel for appellant agreed "the issue that would be litigated on the felony [probation violation] has already been litigated in the misdemeanor probation violation,"

The trial court took judicial notice of the preliminary hearing transcript in the robbery case (No. BURGA06191501) and the minute order revoking probation in the Glendale case (No. 2GL02650). It found appellant in violation of probation and sentenced him to three years state prison. Appellant was ordered to provide blood and saliva samples for DNA analysis. (§ 296.)

Morrissey Hearing

Relying on Morrissey v. Brewer (1972) 408 U.S. 471 [33 L.Ed.2d 484] and Gagon v. Scarpelli (1973) 411 U.S. 778 [36 L.Ed.2d 656], appellant argues that the probation revocation is not supported by the evidence. "[U]nder the due process clause of the federal Constitution, a defendant at a parole or probation revocation hearing generally has the right 'to confront and cross-examine adverse witnesses (unless the hearing officer specifically finds good cause for not allowing confrontation) . . . .' . . . [A]t a probation revocation hearing, the prosecution may not introduce the transcript of a witness's preliminary hearing testimony in lieu of the witness's live testimony 'in the absence of the declarant's unavailability or other good cause.'" (People v. Arreola (1994) 7 Cal.4th 1144, 1148.)

Here the trial court took judicial notice of the preliminary hearing transcript in the robbery case and found appellant in violation of probation. The Attorney General argues, and we agree, the error is harmless. Due process is a flexible concept and requires only those procedural protections that the particular situation demands. (Morrissey v. Brewer, supra, 408 U.S. at p. 481 [33 L.Ed.2d at p. 494.)

In People v. Martin (1992) 3 Cal.App.4th 482 defendant's probation was revoked without a formal probation revocation hearing or an express waiver of his right to such a hearing. The Court of Appeal held that defendant impliedly waived his right to a hearing by filing a statement in mitigation for a reduced sentence. (Id., at p. 486.) The court concluded that it would be a "meaningless gesture" to remand the case because defendant "admitted the fact of the probation violation in his statement to the probation officer." (Ibid.)

The same principle applies here. The supplemental probation report lists the following probation violations: failure to report for probation supervision, desertion, and commission of a new offense (i.e., the charged robbery). In the report, appellant admits "that he made a mistake and wants another chance." At the probation revocation hearing, counsel agreed that appellant had "[n]o defense. . . . [I]f the court is reading the preliminary hearing transcript, I think it even contain[s] an admission so I don't have a defense to present as to the charges."

In People v. Arreola, supra, 7 Cal.4th 1144, the prosecution relied on a preliminary hearing transcript in another case to prove a probation violation. (Id., at p. 1150.) Our Supreme Court concluded that the error was harmless because defendant was ultimately convicted of the new offense. (Id., at pp. 1160-1161.) "Thus, affording defendant a new probation revocation hearing would be a futile act because, on remand, the trial court would have before it defendant's conviction of the offense whose circumstances formed the basis for that court's previous action revoking probation – a conviction that presently in itself, would support a proper revocation of probation. [Citation.]" (Id., at p. 1162.)

Remanding this case for a new probation revocation hearing would elevate procedure over substance. The trial court had before it appellant's admission, both in the preliminary hearing transcript and in the supplemental probation report, that he had violated probation. Like the defendant in People v. Martin, supra, 3 Cal.App.4th 482, appellant admitted violating probation when he spoke to his probation officer and impliedly waived his right to an evidentiary hearing. Counsel agreed the probation violation had already been litigated in the Glendale case when Judge Hegarty violated appellant's misdemeanor probation.

Due process concerns of confrontation and cross-examination are not at issue.^[2] "We therefore conclude that the error in admitting the preliminary-hearing transcript at [appellant's] probation revocation hearing was harmless beyond a reasonable doubt." (People v. Arreola, supra, 7 Cal.4th at p. 1162.)

DNA Order

Appellant challenges the order to provide blood and saliva samples for DNA analysis pursuant to the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (DNA Act; § 295 et seq.). When appellant entered the change of plea, petty theft with a prior was not a qualifying offense requiring him to provide a DNA sample. (§ 296, subd. (a).)

On November 3, 2004, the voters enacted Proposition 69 to broaden the scope of qualifying offenses requiring collection of DNA samples. Section 296, as amended, now provides that any person convicted of a felony and any person who is imprisoned, confined, or placed in a state correctional facility must submit a DNA sample. (See § 296.1, subd. (b)(1) [providing for retroactive collection of DNA samples]; People v. Espana (2006) 137 Cal.App.4th 549, 551-552 [rejecting ex post facto challenge].)

Proposition 69 Retroactivity

Appellant was sentenced on September 21, 2005 and did not object to the order to provide DNA samples. In a letter brief, he argues that an illegal sentence was imposed. (See People v. Walker (2000) 85 Cal.App.4th 969, 971 [DNA order may be challenged for first time on appeal].) Citing section 296, appellant contends that Proposition 69 does not retroactively apply to a defendant who committed a felony not enumerated in section 296, subdivision (a) before it was amended on November 3, 2004.

Section 296.1, subdivision (a)(2)(A), as amended, provides: "Any person

. . . who is imprisoned or confined or placed in a state correctional institution . . . after a conviction of any felony . . . whether or not that crime or offense is one set forth in subdivision (a) of Section 296," must provide a DNA sample, "immediately at intake, or during the prison reception center process, or as soon as administratively practicable at the appropriate custodial or receiving institution . . . if [¶] (i) The person has a record of any past or present conviction . . . of a qualifying offense described in subdivision (a) of Section 296 . . . ." (Emphasis added.)

Section 296.1, subdivision (b)(1) states in pertinent part: "Subdivision (a) and all of its paragraphs shall have retroactive application. Collection shall occur pursuant to paragraphs (1), (2), (3), (4), (5), and (6) of subdivision (a) regardless of when the crime charged or committed became a qualifying offense pursuant to this chapter, and regardless of when the person was convicted of the qualifying offense described in subdivision (a) of Section 296 . . . ." (Emphasis added.)

Here, the triggering event is the violation of probation, the imposition of a state prison sentence, and the commitment to state prison. "The obligation imposed by section 296.1 is both mandatory and retroactive for any felony conviction received for any felony conviction received before the initiative's enactment. (§ 296.1, subds. (a)(2)(A), (b)(1).)" (People v. Espana, supra, 137 Cal.App.4th at p. 552.) Stated another way, Proposition 69 "broaden[s] the scope of qualifying offenses to include collection of DNA from any person with a felony conviction and any person who is imprisoned, confined or placed in a state correctional facility." (Id., at p. 551.)

Like the defendant in Espana, appellant was ordered to provide DNA samples as part of his prison sentence. The date of the felony conviction does not control because Proposition 69 expands the reach of section 296 to "[a]ny person . . . who is convicted of or pleads guilty or no contest to any felony offense[.]" (§ 296, subd. (a).) Proposition 69 requires that appellant provide DNA samples "immediately at intake" into the state prison system (§ 296.1, subd. (a)(2) (A).) It does not violate the ex post facto clause. (People v. Espana, supra, 137 Cal.App.4th at p. 552; People v. Travis (2006) 139 Cal.App.4th 1271, 1295.)

Privacy

Appellant argues that Proposition 69 is overbroad and an unreasonable intrusion of his privacy interests as protected by the Fourth Amendment. He contends that the DNA information could be misused and that the DNA samples and data bank information should be "expunged."

Under the DNA Act, management and administration of the DNA sample and profile information is vested in the Department of Justice. (§ 295, subd. (g).) In People v. Dial (2005) 130 Cal.App.4th 657, the First District Court of Appeal held that a challenge to a post-conviction order for DNA samples was not cognizable on appeal from the criminal judgment because (1) the challenge does not affect the judgment of conviction in any way, and (2) the Department of Justice was not a party to the criminal proceeding. (Id., at pp. 660-661.)

We concur and adopt the same reasoning here. Appellant's "attack on the order cannot affect the validity of his conviction and sentence or relieve him of the DNA Act's mandatory requirements." (Id., at p. 662.) Even if appellant's "original DNA sample were expunged, he would be required [under Proposition 69] to submit a new sample as either an inmate or parolee. It would be an idle act to remove [appellant'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 " ' "The law neither does nor requires idle acts." [Citation.]' [Citations.]" (People v. Espana, supra, 137 Cal.App.4th at p. 553.) Appellant's argument that the order to provide DNA samples is overbroad and violates his due process rights is without merit. (People v. Travis (2006)139 Cal.App.4th 1271, 1279 [rejecting overbreadth, due process, equal protection, and ex post facto arguments]; Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505-509 [same].)

Appellant claims that his privacy rights could be violated because the DNA Act authorizes the Department of Justice to share DNA profile information with other states, the federal government, and foreign countries. (§ 295, subd. (a).) As a convicted felon, appellant has no expectation of privacy in his identity whether it be by photograph, fingerprint, or his DNA profile. (People v. Adams (2004) 115 Cal.App.4th 243, 259; People v. King (2000) 82 Cal.App.4th 1363, 1374-1375; see Groceman v. U.S. Dept. of Justice (5th Cir. 2004) 354 F.3d 411, 413-414 ["persons incarcerated after conviction retain no constitutional privacy right against their correct identification"]; Rise v. State of Oregon (9th Cir, 1995) 59 F.3d 1556, 1560 [convicted felons "do not have the same expectations of privacy in their identifying genetic information that 'free persons' have"].) "By their commissions of a crime and subsequent convictions, persons such as appellant have forfeited any legitimate expectation of privacy in their identities. In short, any argument that Fourth Amendment privacy interests do not prohibit gathering information concerning identity from the person of one who has been convicted of a serious crime, or of retaining that information for crime enforcement purposes, is an argument that long ago was resolved in favor of the government." (People v. King, supra, 82 Cal.App.4th at p. 1375.)

Exporting DNA Information

Appellant complains that the possible dissemination of DNA profile information to foreign countries violates a constitutional right to have his DNA profile information kept in the United States. Appellant cites no authority for this argument and we have found none.

The assertion that Proposition 69 authorizes the Department of Justice to "export" California's entire DNA database to a foreign entity is equally without merit. Section 295, subdivision (g) merely authorizes the Department of Justice to act as a "liason" with the Federal Bureau of Investigation (FBI) should the state participate in an international DNA database and data bank program.^[3] (Alfaro v. Terhune, supra, 98 Cal.App.4th at p. 508.) Other sections of Proposition 69 provide that the DNA profile information is confidential and "shall be released only to law enforcement agencies . . . ." (§ 299.5, subd. (f).) Unauthorized use or disclosure of DNA database information is punishable by fines and imprisonment. (§ 299.5, subd. (i)(1)(/a).) "The Department of Justice must comply with the provisions of the Information Practices Act of 1977 (Civ. Code, § 1798 et seq.) which 'requires a public agency to limit the collection and retention of personal information to that necessary to accomplish the agency's specific purpose, and restricts disclosure of such information. (Civ. Code, §§ 17984.14, 1798.24; [citation].) These provisions are relevant in determining the extent of an intrusion upon privacy interests and in balancing the intrusion against the public interests to be served. [Citation]. [Citation.]" (People v. Adams, supra, 115 Cal.App.4th at p. 258.)

It is well settled that "[t]he reduction in a convicted person's reasonable expectation of privacy specifically extends to that person's identity . . . . As to convicted persons, there is no question but that the state's interest extends to maintaining a permanent record of identity to be used as an aid in solving past and future crimes, and this interest overcomes any privacy rights the individual might retain." (People v. King, supra, 82 Cal.App.4th at p. 1374.) The Fourth Amendment does not prohibit the government from storing appellant's genetic fingerprint in a database and making it available for law enforcement purposes.^[4] (Johnson v. Quander (D.C. Cir. 2006) 440 F.3d 489, 498 [process of matching one piece of personal information against government records does not violate Fourth Amendment].) "DNA profiling serves society's 'overwhelming interest' in insuring that a parolee complies with th[e] requirements [of his release] and is returned to prison if he fails to do so.' [Citations.] The deterrent effect of such profiling [citations] similarly fosters society's enormous interest in reducing recidivism." (U.S. v. Kincade (9th Cir. 2004) 379 F.3d 813, 838-839.)

Expungement Procedure

Appellant finally argues that section 299 which sets for the procedures for expunging a DNA sample is ambiguous. We do not reach the issue because appellant has made no showing that the collection and submission of his DNA was improper or that he meets the criteria for expungement.

The judgment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

COFFEE, J.

Teri Schwartz, Judge

Superior Court County of Los Angeles

______________________________

William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Mary Sanchez and Lawrence M. Daniels, Supervising Deputy Attorneys General, Allison H. Chung, Deputy Attorney General, for Plaintiff and Respondent.

Publication courtesy of San Diego free legal advice.

Analysis and review provided by Santee Real Estate Attorney.

^[1] All statutory references are to the Penal Code.

^[2] In People v. Arreola, supra, 7 Cal.4th 1144, the court distinguished between documentary evidence and the use of a preliminary hearing transcript as a substitute for the live testimony of an adverse witness. (Id., at pp. 1156-1157.) The court held that a Morrissey due process determination should be made on a case-by-case basis and includes factors such as the significance of the particular evidence "and whether other admissible evidence, including, for example, any admissions made by the probationer, corroborates the former testimony . . . ." (Id., at p. 1160, emphasis added; see e.g., People v. Maki (1985) 39 Cal.3d 707, 709 [hotel and car rental receipts signed by defendant in Illinois admissible to prove defendant violated probation by leaving California without permission].)

^[3] Section 295, subdivision (g), as amended by Proposition 69, provides: "The Department of Justice, through its DNA Laboratory, shall be responsible for the management and administration of the state's DNA and Forensic Identification Database and Data Bank Program and for liason with the Federal Bureau of Investigation (FBI) regarding the state's participation in a national or international DNA database and data bank program such as the FBI's Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide."

^[4] Section 295, subdivision (c) provides: "The purpose of the DNA and Forensic Identification Database and Data Bank Program is to assist federal, state, and local criminal justice and law enforcement agencies within and outside California in the expeditious and accurate detection and prosecution of individuals for sex offenses and other crimes, the exclusion of suspects who are being investigated for these crimes, and the identification of missing and unidentified persons, particularly abducted children."