P. v. Sheets

Filed 4/6/07 P. v. Sheets CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

APPEAL from a judgment of the Superior Court of Los Angeles County, Richard F. Walmark, Judge. Affirmed.

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

Bill Lockyer, Attorney General, Mary Jo Graves, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Scott A. Taryle, Mary Sanchez and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

_________________________

Defendant and appellant Craig Alan Sheets appeals from the judgment entered following a jury trial that resulted in his conviction for possession of a controlled substance, methamphetamine, while armed with a firearm. The trial court suspended imposition of sentence and placed Sheets on probation for three years, on the condition he serve 270 days in jail.

Sheets contends the trial court erred by misinstructing the jury, refusing a pinpoint instruction, and erroneously admitting evidence. He further asserts that the courts order that he submit DNA samples was unauthorized, because the DNA and Forensic Identification Database and Data Bank Act of 1998, as amended by Proposition 69 (the DNA Act) is facially unconstitutional. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. Facts.

a. Peoples case.

Viewed in accordance with the usual rules governing appellate review (People v. Rodriguez (1999) 20 Cal.4th 1, 11; People v. Johnston (2003) 113 Cal.App.4th 1299, 1303-1304), the evidence relevant to the issues presented on appeal established the following. On March 26, 2004, special agents employed with the California Department of Justices Bureau of Narcotic Enforcement (BNE), along with other law enforcement personnel, executed a search warrant at Sheetss Sylmar house. The residence was approximately 1300 square feet and had four bedrooms. Sheets occupied the southwest bedroom. His two-year-old daughter, Natalia, occupied the directly adjacent southeast bedroom. A housemate, John Bansbach, occupied the west central bedroom.

In Sheetss bedroom, agents found the following items: (1) a loaded, holstered revolver in the top drawer of a dresser;^[1](2) on top of the dresser, a silver-colored vial, attached to a key chain, which contained a residue containing methamphetamine; (3) a baggie in a safe in the bedroom closet, containing a residue containing methamphetamine; and (4) a short, blue, plastic straw in a lipstick container in the bottom nightstand drawer, containing a residue containing methamphetamine and cocaine. A gas company bill and an Automobile Club card bearing Sheetss name were found on top of the dresser and in the nightstand drawer, respectively.

In the kitchen trash can, an agent discovered a glass pipe of the type commonly used to smoke methamphetamine, which contained unidentified residue.

In Sheetss daughters bedroom, Special Agent Scott Barker found a pair of adult-sized denim shorts. The shorts contained two baggies and a plastic straw, as well as Sheetss California identification card. One of the baggies contained approximately 0.19 grams of a powder containing methamphetamine. The other contained approximately 0.31 grams of a solid substance containing methamphetamine.

b. Defense case.

Sheets testified in his own behalf. He denied using methamphetamine. He likewise denied possessing or owning the shorts or the two baggies therein; the items with the residual methamphetamine allegedly recovered in his bedroom; and the glass pipe. Sheetss AAA card was kept in his wallet, not in his nightstand. According to Sheets, Natalias mother, Nancy Smith, had lived at the residence but had moved out over a year before the search. Sheets discovered Smith was a methamphetamine user before she moved out. Sheets had seen a glass tube similar to the glass pipe, and baggies containing white powder, in Smiths purse. Smith left many of her belongings behind when she moved out. Approximately two weeks before Sheets testified, he had found marijuana pipes in Bansbachs bedroom, causing him to evict Bansbach.

2. Procedure.

Trial was by jury. Sheets was convicted of possession of methamphetamine with a firearm (Health & Saf. Code, 11370.1, subd. (a)). The jury acquitted Sheets of child endangerment. The trial court suspended imposition of sentence and placed Sheets on probation for three years, on the condition he serve 270 days in jail. It imposed a restitution fine, a suspended parole revocation fine, a court security assessment, and a laboratory analysis fee and related penalty assessment. Sheets appeals.

DISCUSSION

1. The trial court did not err by instructing the jury with CALJIC No. 12.52.

Sheets argues that the trial court failed to properly instruct the jury that to be found guilty of violating Health and Safety Code section 11370.1, there must exist a facilitative nexus between the drugs and the firearm. Sheetss argument is based on People v. Bland (1995) 10 Cal.4th 991, in which the California Supreme Court held that such a facilitative nexus is required for a Penal Code section 12022 arming enhancement. The People counter that Sheets has misread the instruction actually given, and, in any event, Health and Safety Code section 11370.1 -- unlike Penal Code section 12022 -- does not require proof of a facilitative nexus.

a. Health and Safety Code section 11370.1 and Penal Code section 12022.

Health and Safety Code section 11370.1, subdivision (a), provides in pertinent part: every person who unlawfully possesses any amount of a substance containing [methamphetamine, cocaine, or other specified controlled substances] while armedwith a loaded, operable firearm is guilty of a felony . . . . (Italics added.) The statute expressly defines the arming requirement: As used in this subdivision, armed with means having available for immediate offensive or defensive use. (Health & Saf. Code, 11370.1, subd. (a).)

Penal Code section 12022 provides for a sentence enhancement when a defendant is armed during commission of a felony. In contrast to the language of Health and Safety Code section 11370.1, Penal Code section 12022 provides, in pertinent part, that any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. (Italics added.)

b. People v. Bland.

In People v. Bland, supra, 10 Cal.4th 991, the California Supreme Court considered whether a defendant was subject to Penal Code section 12022s arming enhancement when he possessed both drugs and a gun, and kept them together, but was not present when the police seized them from his home. Bland answered affirmatively. (Id. at p. 995.) The courtreasoned: Possessory drug offenses are continuing crimes that extend throughout a defendants assertion of dominion and control over the drugs, even when the drugs are not in the defendants immediate physical presence. (Ibid.) Therefore, Bland explained, when a firearm is found in close proximity to the illegal drugs in a place frequented by the defendant, a jury may reasonably infer the defendant knew of the firearms presence, that its presence together with the drugs was not coincidental, and that at some point during the period of illegal drug possession the defendant had the firearm close at hand and available for immediate use to aid in the drug offense. These reasonable inferences are sufficient to warrant a determination that the defendant was armed with a firearm in the commission of a felony within the meaning of section 12022, whether or not the defendant was present when police seized the firearm and drugs. (Id. at p. 995.) Bland explained, A firearm kept near the drugs creates an ongoing risk of serious injury or death from use of the weapon to protect the defendant during a drug sale, to guard against theft of the drugs, or to ward off police.(Id. at p. 1002.)

Bland pointed out, however, that under Penal Code section 12022, contemporaneous possession of illegal drugs and a firearm will satisfy the statutory requirement of being armed with a firearm in the commission of felony drug possession only if the evidence shows a nexus or link between the firearm and the drugs, i.e., a facilitative nexus. (People v. Bland, supra, 10 Cal.4th at p. 1002.) In other words, for Penal Code section 12022 to apply, the firearm must have some purpose or effect with respect to the drug crime; its presence or involvement cannot be the result of accident or coincidence. [Citation.] (Id. at p. 1002.) [F]or a defendant to be subject to additional punishment for being armed with a firearm, California law requires the arming to be in the commission or attempted commission of the underlying felony. ( 12022, subd. (a)(1).) With respect to felony drug possession, a defendant is armed in the commission of that crime so long as the defendant had the firearm available for use in furtherance of the drug offense at some point during the defendants possession of the drugs. Thus, by specifying that the added penalty applies only if the defendant is armed with a firearm in the commission of the felony offense, section 12022 implicitly requires both that the arming take place during the underlying crime and that it have some facilitative nexus to that offense. (People v. Bland, supra, at p. 1002, some italics added.)

Bland addressed whether the evidence was sufficient to support the arming enhancement in that case and concluded any instructional error was harmless. The question of whether CALJIC No. 17.15 -- the standard jury instruction on Penal Code section 12022 -- adequately apprises the jury of the need for a facilitative nexus is currently pending before the California Supreme Court. (People v. Pitto (2005) 133 Cal.App.4th 1544, review granted Feb. 8, 2006, S139609.)

c. Application here.

Here, the trial court instructed the jury with CALJIC No. 12.52, the standard jury instruction relevant to Health and Safety Code section 11370.1. Mirroring the statutory language, that instruction provided: Armed with means having available for immediate offensive or defensive use. (Italics added.) CALJIC No. 12.52 defined actual and constructive possession, and listed the elements of a violation of Health and Safety Code section 11370.1 as follows: 1. A person exercised control over or the right to control a substance containing methamphetamine; [] 2. That person knew of its presence; [] 3. That person knew of its nature as a controlled substance; [] [4. The substance was in an amount sufficient to be used as a controlled substance; and [] [5.] That person did so while armed with a loaded, operable firearm.

Sheets, assuming that Blands facilitative nexus requirement applies equally in the context of Health and Safety Code section 11370.1, argues that CALJIC No. 12.52 did not adequately convey the facilitative nexus aspect of the offense to the jury. In particular, Sheets objects that the word immediate should have been included in the instruction, before the words offensive or defensive use. The People, on the other hand, contend no facilitative nexus requirement applies to section 11370.1. They also point out that Sheets has misread the instruction given, which did, in fact, include the word immediate where Sheets suggests it should have been. The People are correct on both points.

We discern no flaw in the instruction given. First, contrary to Sheetss argument, the jury was instructed that Armed with means having available for immediate offensive or defensive use. (Italics added.) Immediate was not deleted from the instruction. To the extent Sheetss argument is premised on the instructions purported omission of the word immediate, it necessarily fails.

Second, Blands facilitative nexus element cannot logically be engrafted onto Health and Safety Code section 11370.1. Blands analysis was rooted in the specific statutory language of Penal Code section 12022, i.e., that the section 12022 enhancement applies to any person who is armed with a firearm in the commission of the underlying felony. (Pen. Code, 12022, subd. (a)(1), italics added.) Health and Safety Code section 11370.1 does not contain this phrasing. To the contrary, Health and Safety Code section 11370.1 applies when a person unlawfully possesses specified drugs while armed, i.e., while having a loaded, operable firearm available for immediate offensive or defensive use. (Health & Saf. Code, 11370.1, subd. (a), italics added.) Unlike Penal Code section 12022, Health and Safety Code section 11370.1s express statutory language does not suggest the arming must have been in the commission of the felony. To the contrary, the plain language of section 11370.1 covers the situation where the defendant simply possesses drugs while armed. Where the Legislature has used materially different language in statutory provisions addressing the same or related subjects, we generally infer the Legislature intended a difference in meaning. (Singh v. Superior Court (2006) 140 Cal.App.4th 387, 399.)

Moreover, the legislative intent behind Health and Safety Code section 11370.1 was to address a deficiency in California law which did not specifically make it a public offense for a person to possess or be under the influence of a small amount of a controlled substance while in the immediate possession of a firearm. (People v. Edwards (1991) 235 Cal.App.3d 1700, 1706-1707; People v. Pena (1999) 74 Cal.App.4th 1078, 1082.) As People v. Pena explained: The bill was introduced at the request of the San Diego County Sheriff to address a current deficiency in California law. It is not broad enough, direct enough or tough enough to deter and stop the growing menace from a very deadly combination -- illegal drugs and firearms. [Citation.] Proponents of the legislation noted that armed controlled substance abusers posed a threat to the public and to peace officers. [Citation.] The bill was intended to protect those groups by deterring drug users from possessing operable firearms while under the influence. [Citation.] (People v. Pena, supra, at p. 1082, italics added.) Section 11370.1 was therefore intended to provide enhanced punishment for individuals convicted of possessing small quantities of drugs for personal use while possessing a loaded firearm. (People v. Edwards, supra, at p. 1707.)

To hold that section 11370.1 applies only when the People can prove the gun was used to protect the drug cache or assist in drug sales would defeat the expressed legislative purpose to deter all drug users from possessing drugs and loaded, operable firearms simultaneously. Given the statutory language and the purpose underlying Health and Safety Code section 11370.1, Blands facilitative nexus requirement cannot logically be applied to Health and Safety Code section 11370.1. Accordingly, there was no deficiency in the instruction given.

2. The trial court properly refused the requested pinpoint instruction.

Sheets unsuccessfully requested that the trial court give the following pinpoint instruction: If after consideration of all of the evidence, particularly photographic evidence, you have a reasonable doubt as to the presence of either methamphetamine or defendants California I.D. card in the jean shorts at the time of entry by law enforcement into the residence, then you should find the defendant not guilty of any count as to which possession of a controlled substance is an element. Sheets urges that the trial courts refusal to sua sponte modify and give the instruction was error. We disagree.

Under appropriate circumstances, a trial court may be required to give a requested jury instruction that pinpoints a defense theory of the case by, among other things, relating the reasonable doubt standard of proof to particular elements of the crime charged. [Citations.] (People v. Bolden (2002) 29 Cal.4th 515, 558.) However, a court must refuse an argumentative instruction, that is, an instruction of such a character as to invite the jury to draw inferences favorable to one of the parties from specified items of evidence. [Citation.] (People v. Panah (2005) 35 Cal.4th 395, 486; People v. Earp (1999) 20 Cal.4th 826, 886.) A court may also refuse a pinpoint instruction if it is an incorrect statement of law (People v. Gurule (2002) 28 Cal.4th 557, 659), is confusing (People v. Moon (2005) 37 Cal.4th 1, 30), or if it merely duplicates other instructions. (People v. Bolden, supra, 29 Cal.4th at p. 558.) An instruction that does no more than affirm that the prosecution must prove a particular element of a charged offense beyond a reasonable doubt merely duplicates the standard instructions defining the charged offense and explaining the prosecutions burden to prove guilt beyond a reasonable doubt. Accordingly, a trial court is required to give a requested instruction relating the reasonable doubt standard of proof to a particular element of the crime charged only when the point of the instruction would not be readily apparent to the jury from the remaining instructions. (Id. at pp. 558-559.)

Here, the proposed instruction was concededly incorrect. As Sheets acknowledges, the words either and defendants California I.D. card should have been omitted. Even if the California identification card was placed in the shorts by BNE agents, this fact would not necessarily have entitled him to a not guilty verdict, though it would certainly have cast very serious doubt on the veracity of the prosecutions witnesses. Sheetss argument that the trial court should have sua sponte corrected the instruction is meritless. A trial court has no sua sponte duty to give a pinpoint instruction. (People v. Hughes (2002) 27 Cal.4th 287, 361.)

More significantly, the proposed instruction was duplicative. The jury received accurate and complete instructions on the prosecutions burden of proof and on the elements of the crime, including that Sheets must have exercised control over the methamphetamine, must have known of its presence, and must have known of its nature as a controlled substance. Sheetss counsel argued at length that, based in part on photographs taken at different times during the search, the denim shorts containing the methamphetamine were not present on the floor of Sheetss daughters bedroom when the search began, but were planted there by authorities. The jury knew, both from the parties arguments and as a matter of common sense, that if the evidence was planted by agents the elements set forth in the jury instructions could not have been met. The requested instruction was therefore duplicative. For these same reasons, even assuming the instruction was refused in error, Sheets suffered no prejudice from the trial courts refusal to give it. (See generally People v. Earp, supra, 20 Cal.4th at p. 887.) Under the circumstances, it is not reasonably probable the jury would have come to a different conclusion had it been instructed with the pinpoint instruction. (Ibid.)

3. The trial court did not err by admitting evidence of residual methamphetamine found in Sheetss residence.

a. Additional facts and contentions.

Prior to trial, Sheets sought a ruling that certain items recovered in the search were inadmissible unless the People presented evidence regarding which agent initially found the items. The People made an offer of proof that Agent Barker would testify that he observed the items in their respective locations in the residence during the search. The trial court ruled the evidence would be admissible if Agent Barker so testified. Accordingly, over Sheetss renewed objection at trial, the trial court admitted into evidence Peoples exhibits 15 (photographs depicting residual methamphetamine recovered from a safe in Sheets bedroom closet); 19 (the key-ring vial containing residual methamphetamine recovered from the top of Sheetss bedroom dresser); and 21 (the lipstick container holding a blue straw that contained residual methamphetamine, recovered from Sheetss bedroom nightstand drawer).

Testimony regarding the discovery of the evidence was as follows. Agent Barker was the agent in charge of overseeing the search of Sheetss residence. Six agents, including Barker, conducted the search. Barker performed some search duties himself, but delegated much of the search to other members of the team. When the searchers found an item they believed might have evidentiary value, they would notify Barker, who would generally come to the items location in the home, inspect the item, and, if appropriate, have the item bagged as evidence and in some instances, photographed.

Barker was not the first agent to observe the items containing residual methamphetamine, i.e., the silver vial, the baggie found in the bedroom closet safe, and the blue straw in the lipstick container. He was, however, in the room or in the doorway when each of the items was first discovered. The items were immediately pointed out to him, and he immediately observed each of the items in the locations where they were found.

b. Discussion.

Sheets contends exhibits 15, 19, and 21 were improperly admitted because each person involved in the chain of custody failed to testify at trial; because the BNEs stated policy to document the identity of the person who originally found each item was not followed; and there is far more than a barest speculation that there was tampering. We disagree.

The rules for establishing chain of custody are as follows: The burden on the party offering the evidence is to show to the satisfaction of the trial court that, taking all the circumstances into account including the ease or difficulty with which the particular evidence could have been altered, it is reasonably certain that there was no alteration. [] The requirement of reasonable certainty is not met when some vital link in the chain of possession is not accounted for, because then it is as likely as not that the evidence analyzed was not the evidence originally received. Left to such speculation the court must exclude the evidence. [Citations.] Conversely, when it is the barest speculation that there was tampering, it is proper to admit the evidence and let what doubt remains go to its weight.  (People v. Lucas (1995) 12 Cal.4th 415, 444; People v. Catlin (2001) 26 Cal.4th 81, 134.) It is  not incumbent on the People to negate all possibility of tampering or substitution.  (People v. Lewis (1987) 191 Cal.App.3d 1288, 1299.) The trial courts exercise of discretion in admitting the evidence is reviewed on appeal for abuse of discretion. (People v. Catlin, supra, at p. 134; County of Sonoma v. Grant W. (1986) 187 Cal.App.3d 1439, 1448.) The erroneous admission of evidence requires reversal only if it is reasonably probable that appellant would have obtained a more favorable result had the evidence been excluded. (Evid. Code, 353, subd. (b); People v. Earp, supra, 20 Cal.4th at p. 878.)

We discern no abuse of discretion. The essence of Sheetss argument appears to be that the items were inadmissible because there was a lack of foundation regarding their discovery. However, Barker testified, in regard to each piece of evidence, that he was in the room or the doorway when each item was initially discovered; that he examined the items immediately; and that he observed the items in the locations where they were found. This testimony provided sufficient foundation for admission of the evidence. Contrary to Sheetss suggestion, there is no requirement that the individual who first found an item must testify where, as here, another officer who observed the items immediately after their discovery testified to what he saw. (See generally People v. Lucas, supra, 12 Cal.4th at p. 445 [although identity of the deputy who actually seized jeans and bloodstained boxer shorts was uncertain, evidence would not have been excluded on chain of custody grounds where there was little question jeans were seized from defendants home]; People v. Williams (1989) 48 Cal.3d 1112, 1132-1135 [business card containing defendants fingerprint properly admitted despite mishandling of evidence and doubt about whether card was found in bedroom or kitchen].) In any event, While a perfect chain of custody is desirable, gaps will not result in the exclusion of the evidence, so long as the links offered connect the evidence with the case and raise no serious questions of tampering. (People v. Catlin, supra, 26 Cal.4th at p. 134.) Here, as we have explained, there was no significant gap. Barker was in the room when the items were discovered and examined them immediately. There was no unaccounted for period of time during which the evidence could have been altered. Sheets was, of course, free to argue to the jury that the People had failed to produce the agents who actually discovered the evidence, but the absence of such testimony did not make the evidence inadmissible.

Furthermore, where a party relies upon expert analysis of demonstrative evidence, the party must show that it is in fact the evidence found at the scene of the crime, and that between receipt and analysis there has been no substitution or tampering. . . . (People v. Riser (1956) 47 Cal.2d 566, 580, overruled on other grounds in People v. Morse (1964) 60 Cal.2d 631, 649.)When a vital link in the chain is unaccounted for the evidence may be inadmissible because then it is as likely as not that the evidence analyzed was not the evidence originally received. (People v. Catlin, supra, 26 Cal.4th at p. 134.) These principles are not directly applicable here. In the instant matter, there was no contention that the items seized were contaminated, altered, or switched before they were tested. Instead, the defense theory was that the items were planted.

Sheets further argues that the evidence was inadmissible because the BNE agents failed to follow their own procedure, as outlined in a training manual, requiring documentation of which agent found which item. But the BNE procedures manual is not the equivalent of a rule of evidence. As Sheets ultimately acknowledges, the failure to follow procedures in the manual did not itself render the evidence inadmissible. While Sheets was free to argue the failure to follow procedures to the jury, the deviation did not affect admissibility of the evidence.

Edgerton v. State Personnel Bd. (2000) 83 Cal.App.4th 1350, does not compel a contrary conclusion. In Edgerton, a Caltrans employee was terminated after his urine sample tested positive for methamphetamine. The State Personnel Board upheld the termination. The employee and his union filed a combined petition for writ of administrative mandamus and a complaint in superior court. The trial court concluded, inter alia, that the termination decision was not supported by substantial evidence because Caltrans had not met its burden of proving the chain of custody tracking the urine specimen. (Id. at p. 1355.) The trial courts decision was upheld on appeal. (Id. at p. 1354.) The court explained that federal regulations required that in order to prove the employee failed a drug test, Caltrans had to prove a medical review officer reviewed the chain of custody to ensure that it [was] complete and sufficient on its face. (Id. at p. 1356.) Because no evidence was admitted at the hearing documenting the internal chain of custody at either of two testing laboratories, the evidence was insufficient. (Id. at p. 1357.) The court explained: Caltrans failed to sustain its burden of proving that Edgerton suffered a positive drug test because its documentation of the chain of custody for Edgertons samples was lacking. Although a violation of chain of custody procedures does not per se invalidate a drug test [citation], based on the documentation before him, the [medical review officer] did not have enough information to certify that the chain of custody was complete and sufficient, as required by the federal regulations. (Id. at p. 1358.) The positive test results were thus obtained in violation of the federal regulations and failed to support the Boards decision to terminate Edgarton. (Ibid.)

Edgerton has little relevance here. This was not a wrongful termination suit in which the employer was required by federal regulations to follow specific and detailed chain of custody procedures in order to demonstrate good cause to terminate. Further, in Edgarton, during the course of almost one month, there [was] no documentation of the chain of custody of Edgertons samples. (Edgerton, supra, 83 Cal.App.4th at p. 1357.) Here, in contrast, the only alleged deficiency in the chain of custody was the failure to identify the agent who first found the items. However, Barker testified that he saw the challenged items in their original locations immediately or almost immediately after their discovery. Thus, there was no comparable gap in the chain of custody. Finally, Sheetss defense was not that the items seized were contaminated or switched with other evidence, resulting in a false positive result. To the contrary, his unequivocal defense was that the drugs had been planted. Under these circumstances, Edgarton does not assist Sheets.

In sum, we conclude the trial court did not abuse its discretion in admitting the challenged evidence.

4. Cumulative error.

Sheets contends that the cumulative effect of the purported errors undermined the fundamental fairness of the trial. However, as we have either rejected on the merits defendants claims of error or have found any assumed errors to be nonprejudicial, we reach the same conclusion with respect to the cumulative effect of any purported errors. (People v. Cole (2004) 33 Cal.4th 1158, 1235-1236.)

5. Sheetss constitutional challenge to the DNA requirement fails.

At sentencing, the trial court ordered Sheets to supply specimens for law enforcement identification analysis, presumably pursuant to the DNA Act (Pen. Code, 296). Sheets argues that the DNA Act, as amended by Proposition 69 in November 2004, is facially unconstitutional. He complains that section 295, subdivision (g) of the DNA Act provides the authority for the transfer of Californias DNA database to foreign entities outside the territorial boundaries of the United States. This foreign dissemination provision, he urges, violates his constitutional right to privacy. Therefore, he seeks remand so the trial court can reimpose DNA collection under a statute that passes constitutional muster.

Sheetss contentions were recently rejected by People v. McCray (2006) 144 Cal.App.4th 258. McCrays analysis is directly applicable here. First, as in McCray, Sheetss constitutional challenge is waived because he failed to object to the courts DNA order on any ground. (Id. at p. 263.) The California Supreme Court has repeatedly held that constitutional objections must be interposed in order to preserve such contentions on appeal. [Citations.] (Ibid.) The DNA requirement was not an unauthorized sentence excepted from the waiver rule, in that the DNA order was not a punishment. (Ibid.)

In any event, Sheetss argument fails on the merits. As persuasively explained in McCray, the DNA Act does not provide for such wholesale database exportation as Sheets contends, and does not violate his privacy rights. (People v. McCray, supra, 144 Cal.App.4th at p. 264.) Because McCray is persuasive and dispositive of Sheets arguments, we quote it at some length. On November 3, 2004, the voters enacted Proposition 69 to broaden the scope of qualifying offenses requiring collection of DNA samples. Penal Code 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. [Citation.] Defendants facial challenge focuses on Penal Code section 295, subdivision (g), which provides: The Department of Justice, through its DNA Laboratory, shall be responsible for the management and administration of the states DNA and Forensic Identification Database and Data Bank Program and for liaison with the Federal Bureau of Investigation (FBI) regarding the states participation in a national or international DNA database and data bank program such as the FBIs Combined DNA Index System (CODIS) that allows the storage and exchange of DNA records submitted by state and local forensic DNA laboratories nationwide. (Italics added.)

Defendant asserts that the DNA Acts authorization of potential participation in international database and data bank programs violates his privacy rights under the federal Constitutions Fourth Amendment and article I, section 1 of the California Constitution. According to defendant, those provisions support a right to prevent his DNA profile information from leaving the United States. We are aware of no such constitutional privacy interest. To the contrary, the relevant decisional law instructs that defendants privacy rights in this context are highly attenuated at best. As a convicted felon, defendant has a diminished expectation of privacy in his identity. [Citation.] 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 . . . 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. [Citations.] Accordingly, [t]he legitimate governmental interest in maintaining a permanent, reliable record of identification of all convicted felons remains unassailable under the current version of [Penal Code] section 296, subdivision (a)(1), and outweighs the minor intrusion involved in taking prisoners saliva or blood samples and storing their DNA profiles, given prisoners reduced expectation of privacy in their identities . . . . [Citations.] [Citation.]

Moreover, defendants underlying contention -- that the DNA Act authorizes the Department of Justice to export Californias entire DNA database to any foreign entity -- fails as a matter of statutory construction. Penal Code section 295, subdivision (g), merely authorizes the Department of Justice to act as a liaison with the FBI should the state participate in an international DNA database and data bank program. [Citation.] Other sections of the DNA Act provide that the DNA profile information is confidential and shall be released only to law enforcement agencies . . . . [Citation.] Penal Code section 295 itself makes it clear that any sharing of DNA information will be limited primarily, if not exclusively, to law enforcement agencies for the purposes of crime detection, the exclusion of suspects under criminal investigation, and the identification of missing or unidentified persons. (Pen. Code, 295, subd. (c).) Further, unauthorized use or disclosure of DNA database information is punishable by fines and imprisonment. (Pen. Code, 299.5, subd. (i)(1).) The Department of Justice must comply with the provisions of the Information Practices Act of 1977 [citation] which requires a public agency to limit the collection and retention of personal information to that necessary to accomplish the agencys specific purpose, and restricts disclosure of such information. [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.] [Citation.]

In short, the assertion that the DNA Act in general, and Penal Code section 295, subdivision (g) in particular, invests the Department of Justice with free reign to turn over its DNA database to any foreign entity is contrary to the statutes plain terms. (People v. McCray, supra, 144 Cal.App.4th at pp. 265-267.)

We agree with the analysis in McCray, and adopt it here. Accordingly, Sheetss constitutional challenge to the DNA requirement fails.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

ALDRICH, J.

We concur:

KLEIN, P. J.

CROSKEY, J.

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^[1] Sheets informed agents of the revolvers presence in the drawer in response to their questions.