P. v. DeMaria

Filed 4/6/06 P. v. DeMaria CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FOURTH APPELLATE DISTRICT

DIVISION TWO

APPEAL from the Superior Court of San Bernardino County. John M. Tomberlin, Judge. Affirmed.

Fay Arfa for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Rhonda Cartwright-Ladendorf, Supervising Deputy Attorney General, and Raymond M. Diguiseppe, Deputy Attorney General, for Plaintiff and Respondent.

Pursuant to a plea agreement, defendant pleaded guilty to one count of committing a lewd act upon a child under the age of 14 (Pen. Code, § 288, subd. (a))^[1]; in return, the remaining six allegations were dismissed, and defendant was promised an eight-year prison sentence. Immediately thereafter, upon defendant's request and waiver of a probation report, the trial court sentenced defendant to the agreed-upon sentence of eight years in state prison and ordered defendant to provide blood and saliva samples for deoxyribonucleic acid (DNA) collection pursuant to section 296. On appeal, defendant contends (1) the trial court denied his constitutional rights by ordering him to provide blood and saliva samples for DNA testing and collection pursuant to the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (the DNA Act); and (2) the trial court violated the plea agreement by ordering him to provide blood and saliva samples pursuant to the DNA Act. For the reasons explained below, we reject these contentions and affirm the judgment.

I^[2]

DISCUSSION

A. Constitutionality of the DNA Testing/Collection Requirement

At the sentencing hearing, over defense counsel's objection, the trial court ordered defendant to submit blood and saliva samples for DNA typing and filing pursuant to section 296.^[3] Defendant now contends that the order requiring him to submit his blood and saliva samples for DNA testing and collection under the DNA Act, codified as section 295 et seq., is an unreasonable search or seizure in violation of the Fourth Amendment. We disagree.

Defendant's argument has been rejected by every court addressing the issue. In the most recent challenge, the appellate court in People v. Dial (2005) 130 Cal.App.4th 657 not only rejected the defense attack on a postconviction order for DNA samples, but also held the issue was not cognizable on appeal from the criminal judgment on two grounds: (1) the challenge does not affect the judgment of conviction in any way; and (2) the Department of Justice, authorized to enforce the statute, was not a party to the criminal proceeding. (Id. at pp. 660-661.) Based on this procedural rationale ‑‑ with which we agree ‑‑ we need not address the merits of defendant's attack.

However, in the alternative, defendant fails on the merits as well. In People v. Adams (2004) 115 Cal.App.4th 243 (Adams), a sister appellate court held that DNA identifying evidence was admissible in a subsequent trial for a new offense, notwithstanding the defendant's contention that it violated his Fourth Amendment right to be free from such intrusions. The court reasoned that the defendant forfeited that particular privacy right once convicted of a serious felony, and the statute authorizing the taking of DNA samples was warranted for crime prevention and investigation, notwithstanding the minimal intrusion suffered by a felon. (Id. at pp. 258-259.)

In Alfaro v. Terhune (2002) 98 Cal.App.4th 492 (Alfaro), the Third District also rejected a constitutional challenge to the DNA Act. The court noted that â€