People v. Roberts ( 2021 )

Filed 8/20/21
CERTIFIED FOR PARTIAL PUBLICATION *
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C081843
Plaintiff and Respondent, (Super. Ct. No. 13F05054 )
v.
RYAN DOUGLAS ROBERTS,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Sacramento County, Gerrit W.
Wood, Judge. Affirmed.
Patricia J. Ulibarri, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris and Xavier Becerra, Attorneys General, Michael P. Farrell,
Assistant Attorney General, Julie A. Hokans, Supervising Deputy Attorney General,
Clara M. Levers, Deputy Attorney General, for Plaintiff and Respondent.
* Pursuant to California Rules of Court, rules 8.1105 and 8.1110, this opinion is certified
for publication with the exception of Parts II through VIII.
1
Thirteen-year-old Jessica F.-H. was brutally murdered in a Sacramento County
park. Her murder went unsolved until defendant’s DNA was linked to her belt buckle
and cigarette butts found at the scene. Defendant’s DNA had been collected after an
unrelated felony arrest more than a year after Jessica’s murder. Although that arrest was
supported by probable cause, he was not formally charged in that matter. Based
primarily on the DNA evidence, a jury found defendant guilty of murder in the first
degree. The jury also found true an enhancement allegation that defendant personally
used a deadly and dangerous weapon, a knife. Defendant was sentenced to an aggregate
term of 26 years to life.
In this case, we address the issue of whether using a DNA sample taken from a
defendant who is validly arrested for a felony on probable cause but never formally
charged, violates the defendant’s federal or state constitutional rights against
unreasonable search and seizure or his state constitutional right to privacy. In the
published portion of this opinion, we conclude defendant’s federal right protecting him
against unreasonable search and seizure was not violated. Like the United State Supreme
Court, we see this situation as no different than taking fingerprints and photographs of
someone arrested on probable cause. And like fingerprints and photographs, once validly
obtained, the later use of that evidence in the investigation of another crime is not
constitutionally prohibited. We further hold that defendant’s state constitutional rights
were not violated, but even if they were, the Truth-in-Evidence provision of Proposition 8
prohibits suppression of the DNA evidence in a criminal trial.
In addition to (1) defendant’s search and seizure and privacy claims concerning
the DNA evidence, defendant also asserts (2) the trial court prejudicially erred in
restricting the scope of his gang expert’s testimony; (3) the trial court prejudicially erred
in precluding the defense from presenting certain demonstrative evidence; (4) the trial
court denied defendant due process by refusing to give his proposed pinpoint jury
instruction on third party culpability; (5) the cumulative effect of the trial court’s errors
2
warrants reversal; (6) the trial court erred in denying defendant’s motion for a new trial
premised on newly discovered evidence; and (7) the trial court erred in concluding a juror
did not commit prejudicial misconduct related to statements made on Twitter during the
trial. As to the last claim, defendant requests that we perform an independent in camera
review of the juror’s Twitter account records, which we have done.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The People’s Case-in-chief
The Night of the Murder
Jessica 1 lived with her mother and her maternal grandmother. She attended a
school, which was adjacent to Rosemont Community Park (the park) where she was
killed.
On Monday, March 5, 2012, Jessica and her mother got into an argument and, at
approximately 5:45 or 6:00 p.m., Jessica left the apartment. She took a pack of Camel
cigarettes with her. Later, at 6:29 p.m., Jessica is seen in a surveillance video, walking
near the west side of the park, smoking a cigarette.
At approximately 6:00 p.m., a little league team finished practice at the park and
the coach locked the dugouts by placing a chain and lock on the dugout entrances. He
did not remember seeing anyone else at the park when he left other than his assistant
coach and that coach’s son.
On that same evening, defendant met up at the park with his friend, J.M. and
J.M.’s son and daughter, eleven-year-old M.K. and nine-year-old M.A. According to
1 Pursuant to the California Rules of Court, rule 8.90, governing “Privacy in Opinions,”
we refer to the victim initially as Jessica F.-H. and thereafter as Jessica. We use the same
convention in referring to certain witnesses, referring to them initially by first name and
last initial, and thereafter by first name only. We refer to certain other witnesses by their
initials.
3
M.K., defendant arrived at the park on his skateboard. 2 While at the park, J.M. and
defendant smoked cigarettes defendant furnished, Marlboro Smooth menthols.
J.M., M.K. and M.A. all remembered seeing Jessica, whom they did not know, in
the park. J.M. first observed Jessica sitting alone at a picnic table smoking. He then saw
her go to the swings. M.K. and M.A. saw Jessica on the swings, alone, smoking a
cigarette. M.A. remembered defendant sitting on a swing talking to Jessica for
approximately 10 minutes. J.M. testified that, at one point, he asked Jessica what she was
doing there, because it was getting late. According to J.M., Jessica responded that she
did not feel like going home yet.
Before leaving the park, J.M. asked Jessica if she was sure she was okay and/or
encouraged her to go home because it was getting late. Jessica responded that she would
be fine and that she just had an argument with her mother and was not ready to go home
yet. J.M. told Jessica to be safe and he and his kids left. According to M.A., they left at
7:00 or 8:00 p.m.; according to J.M., they left when it was getting dark. Defendant left at
the same time, but by a different route. Jessica remained on the swings, alone.
During the evening, a nearby resident was outside of her house when she heard the
sound of a girl screaming in the park. She characterized the scream as different from the
sounds she would typically hear coming from the park, because it “was just a lone
scream” rather than screaming accompanied by laughter or other screams. After the
scream, she heard what sounded like two male voices coming from the area of the
baseball diamond. The resident testified that three or four minutes later, she heard “a car
take off from the park . . . just screaming down the street really, really fast.” When asked
2 M.A. was not sure whether defendant had his skateboard or his motorcycle. J.M.
testified defendant walked to the park that night, and further testified he did not have his
skateboard with him.
4
if she recalled telling officers that she heard the scream between 8:00 and 9:00 p.m., she
responded, “[t]hat sounds right.”
Another resident testified that, between 8:30 and 9:00 p.m., she heard “a bad
scream” that “sounded really bad, like from a horror movie.” The scream came from an
area of the park near a baseball diamond. She had heard screams coming from the park
before, “but not like that.”
The Discovery of Jessica and the Cigarette Butts
On the following morning, Tuesday, March 6, 2012, a woman went to the park to
collect bottles and cans. She looked into a dugout at one of the baseball fields and saw
what she initially thought to be a person sleeping. After taking another look, she realized
“the person didn’t look like they were alive” because the person “was kind of blue.” She
called 911.
Kenneth Clark, a Sheriff’s detective who responded to the scene, observed
Jessica’s lifeless body in the dugout. Clark observed a number of Camel cigarette butts
on the ground in the area of the dugout, which were consistent with a Camel cigarette
package he observed near Jessica.
Defendant’s Discussions with Others After the Murder
The day after they were in the park with defendant and saw Jessica, M.K. heard
J.M. talking on the phone to defendant. J.M. said to defendant, “That girl from last night,
she is on the news.” Defendant came over later in the day.
While at J.M.’s residence, J.M. and defendant watched a news story reporting the
discovery of Jessica’s body in the park. J.M. was shocked and found himself wishing he
had done more to encourage her to leave. He testified defendant was just as shocked.
But defendant did not mention returning to the park or that he went to the dugout area
that night.
Salvador C. was also friends with defendant. Salvador heard a news report about a
girl’s body having been found in the park. He called J.M. and told him about the report.
5
J.M. and defendant later went to Salvador’s apartment. Both J.M. and defendant
indicated they had been at the park the prior night with J.M.’s kids and that they had met
Jessica. They both discussed the substance of the brief exchanges they had with her.
Both J.M. and defendant said they then left the park and went to their respective homes.
Defendant did not mention that he had gone back to the park after initially leaving, that
he met up with Jessica, or that he smoked or shared cigarettes with her. Nor did
defendant mention he had been in the baseball area of the park that night.
Defendant and His Knives
M.K. and M.A. both testified they had previously seen defendant in possession of
a knife. M.K. testified that defendant actually showed J.M. a folding knife while they
were at the park that evening. M.K. also saw defendant with a folding knife two days
after the killing. J.M. testified that defendant owned a tactical folding knife that he would
sometimes have with him, but that defendant did not have the knife with him on the
evening when they saw Jessica.
Salvador had previously seen defendant in possession of knives. He knew
defendant to have three or four knives. Any time defendant got a new knife, he would
show it to Salvador. At times, defendant would have his knives on his person.
According to Salvador, most of the knives defendant had were folding knives. One was a
folding tactical knife like “the military might use.” Salvador testified that defendant
would have a knife clipped onto his pants “maybe every other time I seen him.”
The Forensic Pathology Evidence
Dr. Gregory Reiber, an expert in forensic pathology, performed the autopsy on
Jessica. She was four feet ten inches tall and weighed 87 pounds.
Reiber testified Jessica sustained two stab wounds, one to the right front side of
her neck and the other on the right side back of the neck. The wound on the front right
side was slightly more than an inch long on the surface of the skin, slightly less than one
quarter of an inch wide, and it penetrated just more than two and a half inches deep. It
6
penetrated muscle tissue and Jessica’s carotid artery, cutting “almost all the way
through.” Reiber described this wound as typical of one inflicted by a single-edged knife.
The knife wound to the back of the neck was a “small stab wound” that penetrated
“almost an inch deep.” It did not do any significant internal damage.
Jessica also sustained a skull fracture on the left rear side of her head. Reiber
opined that this wound was the result of “a very forceful impact.” It was “the kind of
fracture that you can sometimes see in a full-standing-height fall backwards in an adult
who passes out and doesn’t do anything to interrupt their fall” onto a hard surface.
Reiber had been to the crime scene and opined that Jessica’s head injury was consistent
with a fall or drop onto the cement surface of the dugout floor.
Reiber also found evidence of asphyxia by chest compression. There were
petechial hemorrhages on Jessica’s face, in her scalp, and in her eyelids. Her face also
showed hypercongestion, meaning that it was very flushed. But there was no evidence of
external neck compression such as bruising, ligature marks, or other compression marks,
leading Reiber to conclude that the asphyxia resulted from a heavy weight being on
Jessica’s chest. He opined that these findings were consistent with a large enough person
sitting or kneeling on Jessica’s chest, placing a great deal of weight on her chest.
Jessica also sustained bruises on the right side of her lower face by her jaw and
chin and abrasions on her neck and hands. Of the bruises on the right side of her lower
face near her jaw, Reiber testified that they were close to the large stab wound, and that
“it’s possible that there could be a connection if her head was forcefully held back with
some fingers for a knife to reach this part of the skin. That might be an explanation for
these bruises in this location.” Additionally, Jessica had bruises on her upper back in the
area of her shoulder blades.
Reiber concluded that the cause of Jessica’s death was a combination of blunt
force head injury, asphyxia by chest compression, and a stab wound to the neck.
According to Reiber, the large stab wound to the neck would have been fatal by itself.
7
Additionally, the asphyxia by chest compression could have been fatal by itself,
depending on how long it lasted. Reiber opined the blunt force injury to Jessica’s head
could have been survivable with medical intervention. However, in combination with the
other injuries, it would have been a significant contributor to her death.
Reiber found no identifiable sperm on any samples taken from Jessica. He also
found no evidence of injury to Jessica’s vaginal or anal areas. Based on toxicology
testing, there was no evidence of alcohol or drugs in Jessica’s body.
The DNA Evidence – Camel Cigarette Butts and Jessica’s Belt Buckle
Jessica spent the weekend prior to her murder at her father’s house. He was a
smoker and smoked Camels. While he did not know whether Jessica took any of his
cigarettes when he returned Jessica to her mother’s house on Sunday afternoon, he had
caught her taking cigarettes from him before. As noted, Detective Clark observed a
number of Camel cigarette butts on the ground in the area of the dugout which were
consistent with pack of Camel cigarettes near Jessica.
Megan Wood, a criminalist at the Sacramento County District Attorney’s
Laboratory of Forensic Services, testified as an expert in DNA analysis. She performed
DNA analysis on cigarette butts collected from the dugout area. One cigarette butt
contained DNA consistent with Jessica’s DNA, but inconsistent with defendant’s DNA.
Two cigarette butts (TM-6 & TM-19) contained DNA consistent with defendant’s DNA,
but inconsistent with Jessica’s. Wood testified that the likelihood of selecting an
individual at random from the Caucasian population whose DNA matched the DNA
profile found on TM-19 was one in 28 quintillion. One cigarette butt (TM-3) contained a
mixture of DNA, with Jessica’s DNA being consistent with the major contributor and
defendant’s DNA being consistent with the minor contributor. The chance that an
individual selected at random from the Caucasian population would have a DNA profile
consistent with the minor contributor was one in two billion. Another cigarette butt (TM-
21) also contained a mixture of DNA, with Jessica’s DNA being consistent with the
8
major contributor and defendant’s DNA being consistent with the minor contributor. The
chance that an individual selected at random from the Caucasian population would have a
DNA profile consistent with the minor contributor was one in one billion. Another
cigarette butt (TM-4) also contained a mixture of DNA, with Jessica and defendant both
being possible donors. Wood testified that the probability of selecting an individual at
random from the Caucasian population who would be included as a possible contributor
to the mixture would be one in 32 million. Another cigarette butt (TM-2) contained a
mixture from what Wood believed to be two contributors. Again, Jessica and defendant
were potential contributors to the mixture. The probability of selecting an individual at
random from the Caucasian population who would be included as a potential contributor
was one in 200 million according to Wood. Another cigarette butt (TM-1) contained
DNA consistent with Jessica as the major contributor, and, based on a partial profile,
defendant could not be excluded as the minor contributor. The probability of selecting an
individual at random from the Caucasian population who could potentially be the minor
contributor was one in 13,000. As for the final cigarette butt (TM-7), Wood testified that
Jessica’s DNA profile was consistent with that of the major contributor, and, while
defendant’s DNA profile could not be excluded as the minor contributor, the probability
of selecting an individual at random from the Caucasian population who could potentially
be the minor contributor was one in two.
In addition to the cigarette butts, Wood performed DNA analysis on Jessica’s belt,
including the buckle. Wood found a mixture of DNA on the buckle. The major
contributor profile was consistent with Jessica’s DNA profile. Defendant’s DNA profile
was consistent with the minor contributor’s profile, based on the six alleles Wood found.
The likelihood of selecting an individual at random from the Caucasian population whose
DNA profile would match the minor contributor’s profile was one in 550.
Wood also examined the oral, vaginal and rectal swabs from the autopsy and
found no spermatozoa.
9
Defendant’s Arrest, Statements to Law Enforcement and Recorded Jail
Phone Call
On the evening of August 7, 2013, almost a year and a half after Jessica was
murdered, Detective Clark and Detective Tony Turnbull contacted defendant outside of a
restaurant and interviewed him. Unbeknown to defendant, his DNA had been matched in
the Combined DNA Index System (CODIS) to items at the crime scene. In the interview,
Clark asked defendant if he recalled a murder of a young girl that took place in the park a
year and a half earlier. Defendant said he did. He stated “my buddy took his kids up to
the park around there. And he was telling me the next day that some kid he saw got
murdered.” Later in the interview, defendant told the detectives that J.M. told him “a
little girl got killed. And he was up there . . . the day before with his, uh, with his kids.”
Detective Clark showed defendant a photograph of Jessica and asked defendant if he had
ever seen her before. Defendant responded that he had not. Defendant denied ever
having been in the dugout. He also denied being in the park at any point on that Monday
or Tuesday. When Clark asked defendant whether there was any reason evidence from
the crime scene would match defendant, defendant responded that there was not. When
asked if there was any reason to believe DNA or fingerprint evidence would match
defendant, he responded, “No, sir.” Defendant again denied having any contact with
Jessica.
At the conclusion of the interview, defendant told the detectives, “you have my
phone number if you need me. And, like, uh, I wanna get cleared out of this. Um, I’d
offer DNA and fingerprints but, honestly, I’m already in the system. So you guys can run
me.”
After their discussion, the detectives decided that they were going to have
defendant arrested. Other deputies arrested defendant and brought him to the homicide
10
bureau where Clark and Turnbull again interviewed him. 3 The interview was recorded,
and the video recording was played for the jury.
As the interview commenced, Clark told defendant that some of what he had told
them did not add up and further told defendant that he was under arrest for murder.
Defendant responded, “okay.” Clark informed defendant of his Miranda 4 rights.
Clark asked defendant if he was sure he had never been in the dugout at the park
before, and defendant responded that he was sure. Clark informed defendant that there
had been a DNA match made between evidence at the crime scene and defendant’s DNA
profile. When defendant asked what items were found to have his DNA on them, Clark
informed defendant that they had discovered cigarette butts in the dugout that belonged to
Jessica. Clark stated that several of the cigarette butts had both defendant’s and Jessica’s
DNA on them. Defendant asked, “Cigarette butts?” Clark responded affirmatively, and
defendant replied, “That’s what has me here?” Clark asked defendant if he had smoked
cigarettes with Jessica, and defendant responded he had not, but that he did smoke
cigarettes. Clark explained he thought defendant was responsible for Jessica’s death,
adding he would not be arresting him otherwise. He then told defendant that he
understood that sometimes things “go[] wrong” and “happen[] rapidly.” Clark continued,
“But you both were there - the evidence shows that. You both had a conversation that
went on for some period of time that was normal and then she is no longer with us. And
so I’d like to know what happened.” Clark asked defendant if Jessica attacked him or if
he had to defend himself. He again asked what went wrong, and how Jessica and
defendant went from smoking cigarettes together to Jessica being dead. Defendant
responded: “That’s reading a lot into cigarette butts.” Clark responded that, from the
3 Both interviews were recorded, and the video recording was played for the jury.
4 Miranda v. Arizona (1966) 384 U.S. 436 [16 L.Ed.2d 694]. Defendant does not
challenge the admissibility of the statements he made during either interview.
11
evidence, he knew Jessica brought the cigarettes to the park, he knew defendant and
Jessica shared a number of them, and that defendant’s and Jessica’s DNA were both on
five or six cigarette butts. Clark stated, he had to wonder why defendant was denying
that he ever met Jessica and that he had ever been in the dugout. He again asked what
went wrong and “why . . . did this occur?” Defendant responded only: “Damn I like
both you guys and I wish we weren’t on opposite sides.”
After a break in the recording, Clark can be seen writing while defendant, with his
chin on his hands resting on a table, says, unprompted, “this is my lesson to quit smoking
cigarettes.” Defendant subsequently professed his innocence. He said he was aware the
detectives could lie to him and expressed skepticism about why, if his DNA matched
evidence at the crime scene, it took detectives a year and a half to speak with him.
Defendant also stated he had been “known to smoke refi’s,” or cigarettes that had
previously been smoked and discarded. Subsequently, alone in the interview room,
defendant laughed to himself and stated: “Once this shit is over with, never smoking
cigarettes again.”
Defendant was transferred to the Sacramento County main jail. In a recorded
phone conversation between defendant and an unidentified male, defendant said he was
“not worried about it.” Defendant said the “only thing they have is old freakin’ cigarette
butts, I guess, at the scene.” He continued: “they got some cigarette butts at the scene
that have my DNA on them and they said they have hers. So either this bitch smoked
after I left my cigarette butts or honestly I smoked after she left mine. [sic] Whatever.
It’s been a year and a half . . . . They’re grasping for straws right now. I could tell in the
interrogation room. They are grasping for straws. This is my [¶] . . . [¶] - sign to quit
smoking.”
Both J.M. and Salvador testified they had never seen defendant pick up and smoke
discarded cigarettes.
12
The Defense
Defendant mounted a third party culpability defense, asserting that the responsible
persons were another young girl, S.L., and/or S.L.’s adult acquaintance, Christopher R.
Jessica and S.L. had gone to the same school adjacent to the park and had been friends.
S.L. was a member of the Juggalos, a criminal street gang, and, according to S.L., Jessica
was scheduled to be initiated into the gang the weekend immediately preceding her death.
We set forth post in the unpublished parts of this opinion additional background related to
defendant’s evidence and other issues he raises.
Verdict and Sentence
The jury found defendant guilty of murder in the first degree (Pen. Code, §§ 187,
subd. (a), 189), 5 and found true the enhancement allegation that defendant personally
used a deadly and dangerous weapon, a knife (§ 12022, subd. (b)(1)). The trial court
sentenced defendant to 25 years to life on count one, plus an additional term of one year
for the weapon enhancement.
DISCUSSION
I. Collection and Analysis of Defendant’s DNA from Subsequent Felony Arrest
A. Additional Background
Prior to trial, defendant moved under section 1538.5 to suppress the DNA
evidence. He asserted that California’s practice of collecting and analyzing DNA from
felony arrestees, including those who are ultimately not formally charged or convicted,
violates the arrestees’ search and seizure rights under the Fourth Amendment to the
United States Constitution and article I, section 13, of the California Constitution, and the
arrestees’ privacy rights und article I, section 1 of the California Constitution. Defendant
attempted to distinguish the Maryland DNA collection law approved by the United States
5 Further undesignated statutory references are to the Penal Code in effect at the time of
the charged offenses.
13
Supreme Court in Maryland v. King (2013) 569 U.S. 435 [186 L.Ed.2d 1] (King) from
California’s law. He pointed out that the Maryland statute authorizes collection and
processing of DNA from a narrower class of arrestees, requires a judicial determination
of probable cause before the sample is analyzed and placed in the DNA database, and
provides for automatic expungement of DNA samples when the charges are judicially
determined to be unsupported by probable cause or do not result in a conviction.
California’s scheme does not have any of those requirements. Because of the differences
between the California and Maryland statutes, defendant asserted California’s statutory
scheme should not be upheld based on King. Defendant asserted that, because all felony
arrestees must have DNA samples taken and analyzed, regardless of whether they are
ever formally charged or convicted, the California statutory scheme grants law
enforcement essentially unfettered discretion to take DNA samples.
In opposition, the prosecution argued that the United States Supreme Court’s
holding in King was unambiguous and noted defendant never mentioned the holding in
his briefing on the motion. As the prosecution pointed out, the King court held: “the
Court concludes that DNA identification of arrestees is a reasonable search that can be
considered part of a routine booking procedure. When officers make an arrest supported
by probable cause to hold for a serious offense and they bring the suspect to the station to
be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate police booking procedure that is
reasonable under the Fourth Amendment.” (King, supra, 569 U.S. at pp. 465-466, italics
added.) The prosecution asserted that the King holding applied, and citing Haskell v.
Harris (9th Cir. 2014) 745 F.3d 1269 (Haskell I), noted that the Ninth Circuit, in holding
that the California statute was not unconstitutional, had rejected similar arguments
14
attempting to distinguish King based on the differences between the Maryland and
California statutes. 6
In a tentative ruling, the trial court denied defendant’s motion, ruling that King
applied. The court also found Haskell I, supra, 745 F.3d 1269, to be persuasive.
Following oral argument, the trial court adopted its tentative ruling.
Thereafter, the parties agreed to the following stipulation:
“1. [Defendant’s] DNA was taken by way of buccal swab on or about June 1,
2013 following a May 30, 2013, lawful arrest for a felony, based upon the officer’s
finding probable cause.[ 7]
“2. On June 3, 2013, the Sacramento County District Attorney’s office reviewed
the reports relating to [defendant’s] arrest and declined to file any charges, felony or
misdemeanor, against [defendant] citing a lack of sufficient evidence.
“3. [Defendant] was released from custody at the Sacramento County Jail on June
4, 2014.
“4. Owing to the lack of charges being filed against [defendant] regarding the
May 30, 2013, arrest, [defendant] never appeared before a magistrate for arraignment on
those allegations.[ 8]
6 The prosecution further asserted that, even if the taking of the DNA sample from
defendant violated his Fourth Amendment rights, suppression was not appropriate based
on the good faith exception to the exclusionary rule, citing Illinois v. Krull (1987) 480
U.S. 340, 347-350 [94 L.Ed.2d 364].
7 According the parties’ pleadings related to defendant’s suppression motion, he had
been arrested on May 30, 2013, for violations of section 273.5, spousal abuse, and section
262, spousal rape.
8 We take judicial notice of the calendar for the year 2013. (Evid. Code, §§ 452, subd.
(h), 459 subd. (a)(2); Douglas v. Janis (1974) 43 Cal.App.3d 931, 936.) May 30, 2013
was a Thursday. Defendant was booked into the jail during the early morning hours of
Friday, May 31, 2013. June 3, 2013, the day the district attorney declined to file charges,
15
“5. [Defendant] has never subsequently been arrested or charged as a result of the
events of May 30, 2013.
“6. After the Sacramento County District Attorney’s Office declined to file
charges relating to the May 30, 2013, arrest and [defendant] was released from custody,
[defendant’s] DNA sample was received by, and tested by, the California Department of
Justice (DOJ)[.]
“7. [Defendant’s] DNA profile, once uploaded into CODIS, remained in that
system and was compared to evidence items an indeterminate number of times.
“8. [Defendant’s] profile was ‘matched’ to items of evidence containing unknown
DNA samples in Sacramento Sheriff’s Department case number 12-48769 relating to the
death of [Jessica] by the Department of Justice, Jan Bashinski Laboratory (DOJ). This
‘match’ occurred on or about August 5, 2013.
“9. As a result of the ‘match’ referenced in number ten (10) [sic], the DOJ
notified the Sacramento County District Attorney’s Crime Lab, who in turn notified the
Sacramento County Sheriff’s Department of the ‘match,’ the items of evidence to which
was a Monday and defendant was released on Tuesday, June 4, 2013. The record is silent
on whether there was a probable cause determination made by an on-call judicial officer
during the weekend, although ordinarily this would have been the case. (See People v.
Buza (2018) 4 Cal.5th 658, 677 (Buza) [“When officers make a warrantless arrest and
take a suspect into custody, due process ordinarily requires that a judicial officer make a
probable cause determination promptly after booking -- ordinarily within 48 hours -- to
justify continued pretrial detention”]; see also County of Riverside v. McLaughlin (1991)
500 U.S. 44, 56-59 [114 L.Ed.2d 49] [“a jurisdiction that provides judicial determinations
of probable cause within 48 hours of arrest will, as a general matter, comply with the
promptness requirement of Gerstein [v. Pugh (1975) 420 U.S. 103 [43 L.Ed.2d 54]]”; if
arrestee does not receive a probable cause determination within 48 hours, the state must
demonstrate “the existence of a bona fide emergency or other extraordinary
circumstance” and a weekend is not such a circumstance]; In re Walters (1975) 15 Cal.3d
738, 743; § 810, subd. (a) [requirement that there be at least one judge available on-call
as a magistrate at all times when court is not in session in the county].)
16
[defendant’s] DNA ‘matched,’ and the identity of [defendant] as the person to whom the
‘match’ was made.
“10. As a direct result of the DOJ match, [defendant] was interviewed at night in a
parking lot on August 7, 2013, and thereafter arrested for violation of . . . section 187 in
the death of [Jessica].
[¶] . . . [¶][ 9]
“12. Prior to June 1, 2013, [defendant’s] DNA profile was unknown, and
unknowable, to law enforcement.” (Italics added.)
B. Defendant’s Contentions
Defendant asserts the collection of his DNA sample in connection with his May
2013, felony arrest, for which no formal charges were ultimately filed, and the later
analysis used to identify and convict him in this case violated his right against
unreasonable searches and seizure under the Fourth Amendment to the United States
Constitution. Defendant asserts that his privacy interests outweigh the government’s
interest in seizing DNA from his body without a warrant supported by probable cause
based only on his status as a felony arrestee. He further asserts that the United States
Supreme Court’s holding in King should not apply here because King addressed a
different DNA collection law which was more narrowly tailored and provided greater
protection for privacy interests than California’s DNA law. According to defendant, in
the absence of formal charges or a judicial probable cause determination following his
felony arrest, the collection, analysis, and use of his DNA under California’s statutory
scheme was constitutionally unreasonable in violation of the Fourth Amendment.
While defendant’s appeal was pending, our high court decided Buza, supra, 4
Cal.5th 658, addressing California’s DNA collection law, section 296. We requested
9 Item No. 11 was crossed out.
17
supplemental briefing from the parties on the impact of Buza on this case. In his
supplemental brief, defendant asserts that Buza left unanswered the question of whether
California’s DNA law violates the Fourth Amendment rights of an arrestee who is
ultimately not charged in connection with the felony arrest for which DNA was collected
and later used to identify him as the perpetrator in an unrelated case. He asserts that Buza
was narrowly decided, is distinguishable on its facts from this case, and has limited
application here. He argues he is of a different class of arrestee than the defendants in
King and Buza because, unlike either of those defendants, he was neither formally
charged nor convicted in connection with his felony arrest which led to the collection of
his DNA sample. According to defendant, the facts of this case meaningfully alter the
constitutional balance the United States Supreme Court struck in King.
Separate from the federal constitutional search and seizure provision, defendant
argues the collection and analysis of his DNA under the facts here violated our state’s
prohibition against unreasonable seizures and searches in California Constitution, article
I, section 13. He maintains the Buza court’s rationale for declining to exercise
independent state judgment by relying primarily on King is not relevant to the facts here
because he was never formally charged with a crime in connection with his May 2013
felony arrest. He asserts that without an automatic expungement of DNA for people like
him who are not formally charged, the DNA Act violates California’s unreasonable
seizures and searches provision in article I, section 13.
Defendant further asserts that the collection and use of his DNA violated
California’s right to privacy in article I, section 1 of the California Constitution.
We reject all of defendant’s claims and conclude that the collection and use of his
DNA to identify him as the perpetrator of Jessica’s murder did not violate his federal
constitutional rights. Nor did it violate his state constitutional rights, and even if it did,
suppression of the DNA evidence is not an available remedy because of the Truth-in-
Evidence provision of Proposition 8.
18
C. General Search and Seizure and Exclusionary Rule Principles
The Fourth Amendment to the United States Constitution provides: “The right of
the people to be secure in their persons, houses, papers, and effects, against unreasonable
searches and seizures, shall not be violated, and no Warrants shall issue, but upon
probable cause, supported by Oath or affirmation, and particularly describing the place to
be searched, and the persons or things to be seized.” The Fourth Amendment is binding
on the States pursuant to the Fourteenth Amendment. (King, supra, 569 U.S. at p. 446.)
“[U]sing a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA
samples is a search” within the scope of the Fourth Amendment. (Ibid.)
Article I, section 13 of the California Constitution provides, in language similar to
the Fourth Amendment: “The right of the people to be secure in their persons, houses,
papers, and effects against unreasonable seizures and searches may not be violated; and a
warrant may not issue except on probable cause, supported by oath or affirmation,
particularly describing the place to be searched and the persons and things to be seized.”
The “ ‘touchstone for all issues’ ” under both the Fourth Amendment and article I,
section 13, of the California Constitution is “ ‘reasonableness.’ ” (Buza, supra, 4 Cal.5th
at p. 670, citing Riley v. California (2014) 573 U.S. 373 [189 L.Ed.2d 430] & Ingersoll v.
Palmer (1987) 43 Cal.3d 1321, 1329; accord, King, supra, 569 U.S. at p. 447.) “The
Fourth Amendment does not proscribe all state-initiated searches and seizures; it merely
proscribes those which are unreasonable.” (Florida v. Jimeno (1991) 500 U.S. 248, 250
[114 L.Ed.2d 297].)
Thus, “[e]ven [when] a warrant is not required, a search is not beyond Fourth
Amendment scrutiny; for it must be reasonable in its scope and manner of execution. . . .
To say that no warrant is required is merely to acknowledge that ‘rather than employing a
per se rule of unreasonableness, we balance the privacy-related and law enforcement-
related concerns to determine if the intrusion was reasonable.’ This application of
‘traditional standards of reasonableness’ requires a court to weigh ‘the promotion of
19
legitimate governmental interests’ against ‘the degree to which [the search] intrudes upon
an individual’s privacy.’ ” (King, supra, 569 U.S. at p. 448.)
Regarding the exclusionary rule remedy for a search and seizure violation,
California Constitution, article I, section 28, subdivision (f)(2), the Truth-in-Evidence
provision enacted by voters in Proposition 8 in 1982, 10 abolished the exclusionary rule as
to “evidence seized in violation of the California, but not the federal, Constitution.” (In
re Lance W. (1985) 37 Cal.3d 873, 879 (Lance W.) [discussing the same provision
previously located in Cal. Const., art. I, § 28, subd. (d), before it was renumbered by
Prop. 9, § 4.1, in 2008].) Thus, “[a]bsent a federal constitutional violation, the
exclusionary rule does not apply.” (People v. Redd (2010) 48 Cal.4th 691, 720, fn. 11
(Redd); accord, Buza, supra, 4 Cal.5th at p. 685 [“in California criminal proceedings,
issues related to the suppression of evidence seized by police are, in effect, governed by
federal constitutional standards”]; People v. Robinson (2010) 47 Cal.4th 1104, 1119
(Robinson) [a trial court may exclude evidence only if exclusion is mandated by the
federal Constitution]; People v. Banks (1993) 6 Cal.4th 926, 934 (Banks) [same].) “Our
Constitution thus prohibits employing an exclusionary rule that is more expansive than
that articulated by the United States Supreme Court.” (Robinson, at p. 1119.)
10 California Constitution, article I, section 28, subdivision (f)(2), states: “Right to
Truth-in-Evidence. Except as provided by statute hereafter enacted by a two-thirds vote
of the membership in each house of the Legislature, relevant evidence shall not be
excluded in any criminal proceeding, including pretrial and post conviction motions and
hearings, or in any trial or hearing of a juvenile for a criminal offense, whether heard in
juvenile or adult court. Nothing in this section shall affect any existing statutory rule of
evidence relating to privilege or hearsay, or Evidence Code Sections 352, 782 or 1103.
Nothing in this section shall affect any existing statutory or constitutional right of the
press.”
20
D. King
In King, the United States Supreme Court expressly held: “When officers make an
arrest supported by probable cause to hold for a serious offense and they bring the
suspect to the station to be detained in custody, taking and analyzing a cheek swab of the
arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking
procedure that is reasonable under the Fourth Amendment.” (King, supra, 569 U.S. at
pp. 465-466, italics added.) In stating this holding, the high court was fully aware that
twenty-eight states, including California, had adopted DNA collection and analysis laws
similar to the Maryland law it addressed, but which varied in their particulars. (Id. at
p. 445, citing the amici curiae brief filed by the State of California et al.) The high court
recognized that “although those statutes vary in their particulars, . . . their similarity
means that [King’s case] implicates more than the specific Maryland law.” (Ibid.)
The defendant in King, was arrested for felony assault related to menacing a group
of people with a shotgun. A buccal swab of his cheek was taken as part of the booking
process. (King, supra, 569 U.S. at p. 440.) Thereafter, his DNA profile was found to
match DNA collected from a rape committed several years earlier and he was
subsequently prosecuted and convicted of that crime. (Ibid.)
The Maryland law at issue in King authorized the collection of DNA samples from
individuals charged with “ ‘a crime of violence or an attempt to commit a crime of
violence’ ” as defined under Maryland law, or burglary or attempted burglary. (King,
supra, 569 U.S. at p. 443, quoting Md. Pub. Saf. Code Ann., § 2-504, subd. (a)(3)(i).)
Under the Maryland law, the DNA could not be placed into a database until the arrestee
was arraigned, at which point there was a judicial determination of probable cause.
(King, at p. 443.) If a judge determined that probable cause was lacking, the statute
required that the sample be immediately destroyed. (Id. at pp. 443-444.) Likewise, if
there was no conviction or the conviction was reversed, automatic destruction of the
sample was required. (Id. at p. 444.)
21
However, in considering the reasonableness of the DNA collection procedure and
articulating its holding, the Supreme Court in King did not focus on the Maryland
statute’s requirement for a later judicial determination of probable cause or whether there
was an eventual conviction. Instead, it focused on the fact that, under the Maryland law,
the arrest itself must be supported by probable cause. (King, supra, 569 U.S. at p. 448.)
As to this, the court noted that, under the law, “all arrestees charged with serious crimes
must furnish the sample on a buccal swab . . . to the inside of the cheeks. The arrestee is
already in valid police custody for a serious offense supported by probable cause.”
(Ibid., italics added.) The King court then held: “the search effected by the buccal swab
. . . falls within the category of cases this Court has analyzed by reference to the
proposition that the ‘touchstone of the Fourth Amendment is reasonableness, not
individualized suspicion.’ ” (Ibid., italics added.)
The high court went on to balance the state interests against the defendant’s
privacy-related interests to determine whether the collection of the DNA was reasonable.
(King, supra, 569 U.S. at p. 448.) The court identified five interrelated governmental
interests (id. at pp. 449-455) and held that “[w]hen probable cause exists to remove an
individual from the normal channels of society and hold him in legal custody, DNA
identification plays a critical role in serving these interests” (id. at p. 450, italics added).
As we emphasize post, these interests exist at the time a person is arrested based on
probable cause and processed through the booking procedure. Nothing in King suggests
the applicability of those interests is to be reevaluated as the arrestee’s case proceeds
through the criminal justice process.
Regarding the specific pertinent governmental interests, the court in King began
with what it described as the “well established” need for law enforcement officers to
process and identify the persons they must take into custody. (King, supra, 569 U.S. at
p. 449.) “It is beyond dispute that ‘probable cause provides legal justification for
arresting a person suspected of crime, and for a brief period of detention to take the
22
administrative steps incident to arrest.’ ” (Ibid., italics added.) The court reasoned that,
because false identifying information can be provided by arrestees in that process, the
identification interest goes beyond name or Social Security number. (Ibid.) Indeed, the
concept of “[i]dentity has never been considered limited to the name on the arrestee’s
birth certificate.” (Ibid.)
The high court held that the identification interest extends to determining the
person’s criminal history. As the high court noted, “[a] suspect’s criminal history is a
critical part of his identity that officers should know when processing him for
detention.” 11 (King, supra, 569 U.S. at p. 450.) The court then noted that law
enforcement already “use[s] routine and accepted means as varied as comparing the
suspect’s booking photograph to sketch artists’ depictions of persons of interest, showing
his mugshot to potential witnesses, and of course making a computerized comparison of
the arrestee’s fingerprints against electronic databases of known criminals and unsolved
crimes.” (Id. at p. 451, italics added.) The court further explained: “[a] DNA profile is
useful to the police because it gives them a form of identification to search the records
already in their valid possession. In this respect the use of DNA for identification is no
different than matching an arrestee’s face to a wanted poster of a previously unidentified
suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or
matching the arrestee’s fingerprints to those recovered from a crime scene. DNA is
another metric of identification used to connect the arrestee with his or her public
persona, as reflected in records of his or her actions that are available to the police. . . .
These data, found in official records, are checked as a routine matter to produce a more
11 As to this, the court in King noted that people detained for minor offenses sometimes
“turn out to be the most devious and dangerous criminals.” (King, supra, 569 U.S. at
p. 450.) As an example, the high court noted that Timothy McVeigh was arrested after
he was stopped for driving without a license plate. (Ibid.)
23
comprehensive record of the suspect’s complete identity. Finding occurrences of the
arrestee’s CODIS profile in outstanding cases is consistent with this common practice. It
uses a different form of identification than a name or fingerprint, but its function is the
same.” (Id. at pp. 451-452, italics added.) The high court further reasoned that, although
DNA is an “analogue” to “the familiar practice of fingerprinting arrestees,” DNA
identification is qualitatively better because DNA analysis provides “unparalleled
accuracy.” (Id. at pp. 451, 458.)
The court in King rejected the defendant’s argument that the delay in obtaining
DNA results makes the analogy to fingerprint identification inapt. (King, supra, 569 U.S.
at p. 459.) It noted that rapid analysis of fingerprints is of relatively recent vintage and it
was not the advent of fingerprint identification technology “that rendered fingerprint
analysis constitutional in a single moment. The question of how long it takes to process
identifying information obtained from a valid search goes only to the efficacy of the
search for its purpose of prompt identification, not the constitutionality of the search.”
(Ibid.) DNA, the court declared, “serves an essential purpose despite the existence of
delays.” (Id. at p. 460.) Looking to the future, the King court recognized that rapid
technical advances are reducing the delay in processing DNA. (Ibid.) The court stated:
“[a]n assessment and understanding of the reasonableness of this minimally invasive
search of a person detained for a serious crime should take account of these technical
advances. Just as fingerprinting was constitutional for generations prior to the
introduction of [automated fingerprint identification], DNA identification of arrestees is a
permissible tool of law enforcement today. New technology will only further improve its
speed and therefore its effectiveness.” (Ibid.)
Summarizing the identification interest, the court in King wrote: “there can be
little reason to question ‘the legitimate interest of the government in knowing for an
absolute certainty the identity of the person arrested, in knowing whether he is wanted
elsewhere, and in ensuring his identification in the event he flees prosecution.’
24
[Citation]. To that end, courts have confirmed that the Fourth Amendment allows police
to take certain routine ‘administrative steps incident to arrest—i.e., . . . book[ing],
photograph[ing], and fingerprint[ing].’ [Citation]. DNA identification of arrestees, of the
type approved by the Maryland statute here at issue, is ‘no more than an extension of
methods of identification long used in dealing with persons under arrest.’ [Citation]. In
the balance of reasonableness required by the Fourth Amendment, therefore, the Court
must give great weight both to the significant government interest at stake in the
identification of arrestees and to the unmatched potential of DNA identification to serve
that interest.” (King, supra, 569 U.S. at p. 461, italics added.)
As to the second interest, one involving risk assessment, the King court noted that
law enforcement officers must ensure that the custody of an arrestee does not create a risk
to staff, the detainee population, or the arrestee; thus “officers must know the type of
person whom they are detaining, and DNA allows them to make critical choices about
how to proceed.” (King, supra, 569 U.S. at p. 452.) For example, knowledge of identity
may provide information indicating the arrestee “is wanted for another offense, or has a
record of violence or mental disorder.” (Ibid., italics added.) In noting that DNA
evidence may establish whether an arrestee is wanted for another offense, the court did
not distinguish between other offenses for which the arrestee had been previously
identified as the perpetrator and those where a DNA match identified him as the
perpetrator of a previously unsolved crime. The reasoning appears to apply to both
situations.
Third, the court in King noted that there is a governmental interest in ensuring that
persons accused of crimes are available for trials. (King, supra, 569 U.S. at p. 453.) As
the court observed, “[a] person who is arrested for one offense but knows that he has yet
to answer for some past crime may be more inclined to flee the instant charges, lest
continued contact with the criminal justice system expose one or more other serious
offenses.” (Ibid.)
25
Fourth, there is a public danger assessment interest. The high court reasoned that
“an arrestee’s past conduct is essential to an assessment of the danger he poses to the
public, and this will inform a court’s determination whether the individual should be
released on bail.” (King, supra, 569 U.S. at p. 453.) This interest, the court noted, “is
both legitimate and compelling.’ ” (Ibid.) “Knowing that the defendant is wanted for a
previous violent crime based on DNA identification is especially probative of the court’s
consideration of ‘the danger of the defendant to the alleged victim, another person, or the
community.’ ” (Ibid.) Further, if the arrestee is released pending trial, later DNA
identification revealing a previously unknown violent past “can and should” lead to
revocation of the arrestee’s release. (Id. at p. 455.) Again, like the last two interests, this
interest applies even in the situation where the arrestee had not been previously identified
as the perpetrator of the prior crime.
Fifth, there is an interest related to the exoneration of innocent persons. “[I]n the
interests of justice, the identification of an arrestee as the perpetrator of some heinous
crime may have the salutary effect of freeing a person wrongfully imprisoned for the
same offense. ‘[P]rompt [DNA] testing . . . would speed up apprehension of criminals
before they commit additional crimes, and prevent the grotesque detention of . . .
innocent people.’ ” (King, supra, 569 U.S. at p. 455.)
After discussing the governmental interests, the Supreme Court next looked to the
arrestee’s privacy interest. “[T]he fact that [an] intrusion is negligible is of central
relevance to determining whether the search is reasonable.” (King, supra, 569 U.S. at
p. 446.) Regarding the physical intrusion associated with the collection of a buccal
sample, the court characterized the intrusion as “a minimal one.” (Id. at p. 461.) The
search involves “ ‘[a] gentle rub along the inside of the cheek [that] does not break the
skin, and it ‘involves virtually no risk, trauma, or pain.’ ” (Id. at pp. 463-464.) The swab
poses no physical danger and “does not increase the indignity already attendant to normal
incidents of arrest.” (Id. at p. 464.) Comparatively, any additional intrusion in collecting
26
a DNA sample by buccal swab beyond the intrusion involved with fingerprinting is “not
significant.” (Id. at p. 459.)
Noting that a finding of reasonableness requires that the government interest
outweigh the degree to which the search invades an individual’s legitimate expectations
of privacy, the court noted, “the necessary predicate of a valid arrest for a serious offense
is fundamental.” (King, supra, 569 U.S. at p. 461.) Persons arrested on probable cause
have diminished expectations of privacy. (Id. at pp. 461, 463.) And “[i]n light of the
context of a valid arrest supported by probable cause respondent’s expectations of
privacy were not offended by the minor intrusion of a brief swab of his cheeks.” (Id. at
p. 465.) The court did not mention later events such as the filing of formal charges, a
judicial probable cause determination, or even a conviction as being necessary events to
weigh into the balance.
The King court went on to highlight scientific and statutory safeguards protecting
an arrestee’s privacy interests. As for scientific safeguards, related to the nature of the
DNA processing at issue, the court concluded that the processing employed did not
“intrude on [the defendant’s] privacy in a way that would make his DNA identification
unconstitutional.” (King, supra, 569 U.S. at p. 464.) This is because the DNA loci used
for identification “come from noncoding parts of the DNA that do not reveal the genetic
traits of the arrestee.” (Ibid.) Commonly referred to as “junk DNA,” the DNA region
used for identification is useful for that purpose, but “does not show more far-reaching
and complex characteristics like genetic traits.” (Id. at pp. 442-443.) Moreover, even if
the noncoding loci could provide sensitive information, they are not tested toward that
end; rather, the analysis generates a unique identifying number against which other
samples can be matched for identification comparison and nothing more. (Id. at p. 464.)
As for the statutory safeguards, the court noted that Maryland law provided statutory
protections that guard against further invasion of privacy by prohibiting and penalizing
the improper use of DNA samples. (Id. at p. 465.) In light of the scientific and statutory
27
safeguards, the high court concluded that “once the [arrestee’s] DNA was lawfully
collected, the . . . analysis of [his] DNA pursuant to CODIS procedures did not amount to
a significant invasion of privacy that would render the DNA identification impermissible
under the Fourth Amendment.” (Ibid.)
Summarizing the constitutional balance, the high court in King stated: “In light of
the context of a valid arrest supported by probable cause respondent’s expectations of
privacy were not offended by the minor intrusion of a brief swab of his cheeks. By
contrast, that same context of arrest gives rise to significant state interests in identifying
respondent not only so that the proper name can be attached to his charges but also so
that the criminal justice system can make informed decisions concerning pretrial
custody.” (King, supra, 569 U.S. at p. 465, italics added.) The high court then held:
“Upon these considerations the Court concludes that DNA identification of arrestees is a
reasonable search that can be considered part of a routine booking procedure. When
officers make an arrest supported by probable cause to hold for a serious offense and
they bring the suspect to the station to be detained in custody, taking and analyzing a
cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate
police booking procedure that is reasonable under the Fourth Amendment.” (Id. at
pp. 465-466, italics added.)
E. California’s DNA Collection Statutory Scheme
“In 2004, California voters passed Proposition 69 (Prop. 69, as approved by
voters, Gen. Elec. (Nov. 2, 2004), known as the DNA Fingerprint, Unsolved Crime and
Innocence Protection Act (DNA Act)) to expand [then] existing requirements for the
collection of DNA identification information for law enforcement purposes. The DNA
Act requires law enforcement officials to collect DNA samples, as well as fingerprints,
from all persons who are arrested for, as well as those who have been convicted of,
felony offenses.” (Buza, supra, 4 Cal.5th at p. 664, citing § 296.1, subd. (a)(1)(A).) Prior
to 2004, the collection of DNA samples was limited to persons convicted of specific
28
felony offenses, “including certain sex offenses, homicide offenses, kidnapping, and
felony assault or battery.” (Buza, at p. 665, citing Stats. 1998, ch. 696, § 2, pp. 4571-
4579 & former § 296, subd. (a).) Thus, the electorate’s passage of the DNA Act in 2004
“substantially expanded the scope of DNA sampling to include individuals who are
arrested for any felony offense.” (Buza, at p. 665.)
“Proposition 69 declared: ‘[t]he state has a compelling interest in the accurate
identification of criminal offenders . . .’; that ‘DNA testing at the earliest stages of
criminal proceedings for felony offenses will help thwart criminal perpetrators from
concealing their identities and thus prevent time-consuming and expensive investigations
of innocent persons’; and ‘it is reasonable to expect qualifying offenders to provide
forensic DNA samples for the limited identification purposes set forth in this chapter.’ ”
(Buza, supra, 4 Cal.5th at p. 666.)
Under the DNA Act, all adult felony arrestees “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.” (§ 296, subd. (a).) The DNA samples are to be
collected by law enforcement “immediately following arrest, or during the booking or
intake or prison reception center process or as soon as administratively practicable after
arrest, but, in any case, prior to release on bail or pending trial or any physical release
from confinement or custody.” (§ 296.1, subd. (a)(1)(A).)
“Collected DNA samples are sent to the California Department of Justice’s DNA
Laboratory for forensic analysis. [Citations.] The laboratory uses the samples to create a
unique DNA identification profile, using genetic loci that are known as ‘junk’ or
‘noncoding’ DNA, because the loci have no known association with any genetic trait,
disease, or predisposition. [Citation.] This profile is stored in California’s DNA
databank. California’s DNA databank is part of the Combined DNA Index System
(CODIS), a nationwide database that enables law enforcement to search DNA profiles
29
collected from federal, state, and local collection programs. [Citations.] DNA profiles
stored by the DNA Laboratory may be accessed by law enforcement agencies. [Citation.]
The DNA Laboratory must ‘store, compile, correlate, compare, maintain, and use’ DNA
profiles for forensic casework, for comparison with samples found at crime scenes, and
for identification of missing persons.” (Buza, supra, 4 Cal.5th at pp. 666-667.)
Section 299 provides a mechanism for expungement of DNA samples. “A person
whose DNA profile has been included in the databank pursuant to this chapter shall have
his or her DNA specimen and sample destroyed and searchable database profile
expunged from the databank program pursuant to the procedures set forth in subdivision
(b) if the person has no past or present offense or pending charge which qualifies that
person for inclusion within the state’s DNA and Forensic Identification Database and
Databank Program and there otherwise is no legal basis for retaining the specimen or
sample or searchable profile.” (§ 299, subd. (a).)
However, expungement is not automatic; the person who seeks expungement must
initiate the process by making a request. (§ 299, subd. (c)(1).) 12 An arrestee may request
expungement if “no accusatory pleading has been filed within the applicable period
allowed by law,” if all qualifying charges against the arrestee are dismissed, or if the
arrestee is found not guilty or is found factually innocent of all qualifying charges.
(§ 299, subd. (b); Buza, supra, 4 Cal.5th at p. 667.)
12 Section 299, subdivision (c)(1) provides: “The person requesting the databank entry to
be expunged must send a copy of his or her request to the trial court of the county where
the arrest occurred, or that entered the conviction or rendered disposition in the case, to the
DNA Laboratory of the Department of Justice, and to the prosecuting attorney of the county
in which he or she was arrested or, convicted, or adjudicated, with proof of service on all
parties. The court has the discretion to grant or deny the request for expungement. The
denial of a request for expungement is a nonappealable order and shall not be reviewed by
petition for writ.”
30
F. Decisional Law Concerning California’s DNA Act
1. Buza
In Buza, our high court considered the application of the DNA Act to persons who
had been validly arrested for a felony offense based on probable cause, but who had not
yet been convicted. (Buza, supra, 4 Cal.5th at p. 665.) However, Buza did not involve
evidence suppression. Rather, the issue the court resolved was the constitutional validity
of a misdemeanor conviction for refusing to give a buccal sample at booking under
section 298.1, subdivision (a). A four-Justice majority in Buza concluded: “the
requirement is valid under both the federal and state Constitutions.” (Buza, at p. 665.)
However, the Buza majority also explicitly stated, “we express no view on the
constitutionality of the DNA Act as it applies to other classes of arrestees.” (Ibid.)
In Buza, the police arrested defendant for arson, having probable cause to do so
based on their observations. (Buza, supra, 4 Cal.5th at p. 667.) At the county jail, during
booking, the defendant refused to comply with the DNA collection procedure. (Id. at
p. 668.) As a result, in addition to the felony arson, the defendant was charged with
misdemeanor refusal to provide a DNA specimen. (§ 298.1, subd. (a).) He was later
convicted of all charges. (Buza, at p. 668.)
Examining King, our high court twice acknowledged the high court’s holding as
the following: “[w]hen officers make an arrest supported by probable cause to hold for a
serious offense and they bring the suspect to the station to be detained in custody, taking
and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and
photographing, a legitimate police booking procedure that is reasonable under the Fourth
Amendment.” (Buza, supra, 4 Cal.5th at pp. 664, 673.) The Buza court also noted the
high court’s holding applied to “both the initial collection of a DNA sample and its
subsequent processing pursuant to CODIS procedures.” (Id. at p. 671.)
Moreover, in its analysis, the Buza court acknowledged and relied upon the five
governmental interests identified and discussed in King. (Buza, supra, 4 Cal.5th at
31
pp. 671-672.) Regarding the significance of the identification interest, the Buza court
emphasized what the court in King recognized—that while “suspects can change their
names, assume a false identity using forged documents, change their hair color, have
tattoos removed, have plastic surgery, and change their eye color with contact lenses,”
they cannot change their DNA. (Id. at p. 687.) Similar to King, our high court further
observed: “ ‘ “for purposes of identifying ‘a particular person’ as the defendant, a DNA
profile is arguably the most discrete, exclusive means of personal identification
possible.” ’ ” (Id. at pp. 687-688.)
Buza asserted that his case was distinguishable from King on three grounds: “(1)
the DNA Act applies to a broader category of arrestees than the Maryland law; (2) the
DNA Act, unlike the Maryland law, authorizes both collection and testing of DNA
samples before an accusatory pleading is filed in court and before a judicial
determination has been made that the charges are valid; and (3) the DNA Act, unlike the
Maryland law, does not provide for automatic destruction of the DNA sample if the
arrestee is cleared of felony charges.” (Buza, supra, 4 Cal.5th at p. 674.)
In rejecting the defendant’s first point—regarding the fact that the Maryland law
applies to a narrower class of arrestees—the Buza court noted that the DNA Act
authorizes collection of DNA samples from all felony arrestees, whereas the Maryland
law only authorized collection from those individuals accused of committing specific
felony crimes. (Buza, supra, 4 Cal.5th at p. 674.) The defendant emphasized the United
States Supreme Court’s statement that “ ‘the necessary predicate of a valid arrest for a
serious offense is fundamental,’ ” as well as the high court’s references to arrests for
“ ‘violent’ ” or “ ‘dangerous’ ” crimes. (Ibid.) However, our high court reasoned that the
defendant “read too much into the language on which he relies,” and recognized that
“[t]he high court identified the question before it more generally as ‘whether the Fourth
Amendment prohibits the collection and analysis of a DNA sample from persons
arrested, but not yet convicted, on felony charges.’ [Citation.] And as a matter of
32
ordinary usage, a felony is considered a ‘serious’ offense.” (Ibid.) The court concluded
that the high court in King did not “limit its holding to those felonies that happen to be
classified as ‘violent’ or ‘dangerous’ as a matter of state law, nor did it purport to create a
new classification of violent offenses as a matter of federal constitutional law.” (Buza, at
pp. 674-675.) The court further noted that the defendant was, in fact, arrested for felony
arson, a serious felony under California law. 13 (Id. at p. 675.)
Regarding the defendant’s second point—that the DNA Act authorizes collection
and testing of DNA samples before an accusatory pleading has been filed and before
there is a judicial determination of probable cause—the Buza court reasoned that the
defendant’s argument consisted of two elements, one as to the timing of the collection of
the DNA sample, and the other as to the timing of the analysis of the sample. (Buza,
supra, 4 Cal.5th at p. 676.) Our high court stated that there was no reason to believe that
any difference between the California and Maryland laws altered the Fourth Amendment
balance, concluding that obtaining and analyzing the sample was part of a legitimate
booking procedure. Our high court stated: “the reasoning of King itself does not lend
substantial support to the argument that” a guarantee that no DNA analysis will occur
until probable cause is confirmed by a neutral magistrate or charges are filed is required.
(Id. at p. 677.) “Again, King approved ‘DNA identification’—which necessarily involves
both taking and analyzing the sample—as a ‘legitimate police booking procedure’ that
enables law enforcement to know whom they have in custody. [Citation.] That interest
is one that attaches as soon as the suspect is ‘formally processed into police custody.’
13 Likewise, we note that defendant here was arrested for spousal rape, a crime that has
been legislatively classified as a violent and serious felony under California law.
(§ 667.5, subd. (c)(3); 1192.12, subd. (c)(3).) He was also arrested for domestic violence,
a violation of section 273.5. We also note that Maryland’s law defined crime of violence
as including rape and sexual assaults. (King, supra, 569 U.S. at p. 443.)
33
[Citation.] The [high] court attached no significance to the timing provision of the
Maryland statute on which defendant relies.” (Ibid., italics added.)
The court in Buza also rejected the defendant’s contention that the collection of a
felony arrestee’s DNA sample should wait until a prosecutor has decided whether to file
charges or a judge makes a probable cause determination. (Buza, supra, 4 Cal.5th at
pp. 677-678.) The defendant’s argument was premised, in part, on the fact that a
probable cause determination ordinarily occurs within 48 hours after booking, while
generating a DNA profile from an arrestee’s DNA sample takes much longer, and
therefore it would pose little burden to postpone processing the DNA sample until after a
probable cause determination is made and charges are filed. 14 (Ibid.) However, the Buza
court recognized, as did the Supreme Court in King (King, supra, 569 U.S. at pp. 454,
459-460), that any given DNA sample may be processed significantly more quickly than
the average, and average processing times are likely to decrease as the technology
evolves and becomes more widespread. (Buza, at p. 678.) The Buza court further noted
that “the high court had been told that the technological capacity already exists to analyze
DNA samples in a matter of minutes, rather than days or weeks, and that technology is
likely to become more widespread in the near future.” (Ibid.) Accordingly, the Buza
court rejected the defendant’s argument that there was no meaningful risk of interference
with the identification interest by a rule delaying the collection or processing of samples
until after a judicial probable cause finding or arraignment. (Ibid.)
Addressing Justice Liu’s dissent in Buza, the majority stated: “Justice Liu
suggests that for purposes of deciding reasonableness of an arrestee’s search, an arrest
14 In Buza, the defendant asserted in California it has typically taken an average of 30
days to generate an identification profile from an arrestee’s DNA sample. (Buza, supra,
4 Cal.5th at p. 677.) Citing California Department of Justice statistics, the People assert
the average turn-around time was 18 days in 2015.
34
should not be considered valid until there has been a judicial determination of its validity.
[Citation.] There is, however, a meaningful difference between the requirement of a
valid arrest and a requirement that a neutral magistrate make such a determination. For
example, in the related context of searches incident to arrest—where a valid arrest is also
essential—there is no such preapproval requirement. [Citations.] The arrestee may have
an exclusionary remedy if the arrest is later determined to have been illegal [citation], but
the search’s reasonableness does not depend on prior judicial authorization for the arrest.
Here, there is no dispute that the arrest was valid. . . . [W]e decline to decide the
constitutional necessity of such a rule in a case in which probable cause has never been
contested.” (Buza, supra, 4 Cal.5th at pp. 679-680, italics added.)
Regarding the defendant’s third point concerning the expungement procedure in
the DNA Act and how it differs from that in the Maryland law considered in King, the
Buza court reasoned that, because the defendant never sought expungement and never
claimed to be entitled to expungement, “we have no occasion here to resolve any
questions that might arise about the implementation of the expungement provisions in
other cases. It suffices to note that many of defendant’s assertions about the operation of
the expungement process are, at this point, necessarily speculative.” (Buza, supra, 4
Cal.5th at p. 683.)
Concerning the search and seizure provision under article I, section 13 of our
state’s Constitution, the Buza court evaluated that state constitutional claim “by
employing the same mode of analysis that the high court applied in King” to analyze the
reasonableness of the search under the Fourth Amendment. (Buza, supra, 4 Cal.5th at
p. 684.) “[W]e determine whether the intrusion on the defendant’s expectation of privacy
is unreasonable by applying ‘a general balancing test ‘weighing the gravity of the
governmental interest or public concern served and the degree to which the [challenged
government conduct] advances that concern against the intrusiveness of the interference
with individual liberty.’ ” Acknowledging the independent force of our state’s
35
Constitution on search and seizure issues where Proposition 8’s Truth-in-Evidence
provision is not controlling (id. at pp. 685-687), our high court reasoned that the question
it had to resolve was “whether adequate reasons are present here to conclude, despite
King, that California voters exceeded constitutional bounds in mandating the collection of
DNA sample from an individual arrested and booked on probable cause to believe he had
committed a serious offense.” (Id. at p. 687.) The court concluded there were not. (Id. at
p. 691.)
Our high court noted that, before King, it had already recognized the identification
interest in its earlier DNA decision in Robinson. (Buza, supra, 4 Cal.5th at pp. 687-688,
citing Robinson, supra, 47 Cal.4th at p. 1134.) In Robinson, the court held that DNA
mistakenly collected from a person convicted of a non-qualifying offense later used to
link him to a sexual assault committed before the arrest in which the DNA was collected
was not a violation of the Fourth Amendment and the DNA evidence need not be
suppressed. (Robinson, at pp. 1119-1123.) Quoting Robinson, the Buza court stated: “ ‘
“for purposes of identifying ‘a particular person’ as the defendant, a DNA profile is
arguably the most discrete, exclusive means of personal identification possible.” ’ ”
(Buza, at pp. 687-688.) A genetic code is far more precise than a physical description or
a name. (Id. at p. 688.) The court further noted that “identification of arrestees is not an
end in itself; rather, the primary purpose of identification is to facilitate the gathering of
information about the arrestee contained in police records, which in turn informs
decisions about how to proceed with the arrestee.” (Ibid., citing Loder v. Municipal
Court (1976) 17 Cal.3d 859, 866-867 (Loder) [upholding retention and use of arrest
records, including fingerprints and other identifying information].)
In rejecting the state constitutional claim, our high court also noted that King flatly
rejected the argument that the delay in obtaining a DNA identification negates the utility
of DNA as a means of identification when compared to fingerprinting, which provides
more immediate results. (Buza, supra, 4 Cal.5th at p. 688.) The Buza court recognized
36
that “the immediate availability of fingerprints for identification purposes is . . . a
relatively recent development.” (Ibid.) At one time, fingerprint identification took weeks
or months, but “[s]uch delays have not been thought to undermine the basic identification
purposes of the information.” (Ibid.)
On the privacy side of the state constitutional balance, the Buza court rejected the
defendant’s argument that the high court in King did not adequately address what Buza
referred to as “the more significant privacy implications posed by the state’s subsequent
analysis and retention of the sensitive information contained in DNA.” (Buza, supra, 4
Cal.5th at p. 689.) This criticism, the Buza court declared, “is misplaced.” (Ibid.) The
court then went on to highlight the minimal nature of the physical intrusion associated
with a buccal swab and the scientific and legislative safeguards that minimize any
privacy intrusion discussed in King, including California’s specific statutory safeguards
against the wrongful use or disclosure of an arrestee’s DNA information. (Id. at pp. 689-
690, 692.)
The court in Buza summarized: “Our holding today is limited. The sole question
before us is whether it was reasonable, under either the Fourth Amendment or article I,
section 13 of the California Constitution, to require the defendant in this case to swab his
cheek as part of a routine jail booking procedure following a valid arrest for felony arson.
Because we conclude the requirement was reasonable as applied to defendant, we hold he
is subject to the statutory penalties prescribed in . . . section 298.1.” (Buza, supra, 4
Cal.5th at p. 691.) 15
15 In his dissent, Justice Liu concluded that the defendant’s conviction for refusing to
comply with the DNA Act was invalid under the California Constitution right against
unreasonable searches and seizures. (Buza, supra, 4 Cal.5th at p. 704 (dis. opn. of Liu,
J.).) He did not consider validity under the Fourth Amendment. (Ibid.) Justice Cuéllar,
also dissenting, likewise concluded that the DNA Act is unconstitutional under the
California Constitution as applied to felony arrestees, “individuals . . . who are not yet
known to be lawfully arrested” based on a determination by a neutral magistrate. (Id. at
37
2. Haskell I
In Haskell I, a class action under 42 U.S.C. § 1983, the plaintiffs challenged the
constitutionality of the DNA Act in an effort to enjoin the collection of DNA from
California arrestees solely based on an arrest for a felony offense. (Haskell I, supra, 745
F.3d at p. 1270.) After a majority of the assigned panel affirmed the denial of the
injunction, an en banc panel of Ninth Circuit also denied the injunction, concluding,
several months before our high court’s decision in Buza, that the plaintiffs failed to
establish a likelihood of success on the merits because the DNA Act does not violate the
Fourth Amendment. The court framed the issue and expressed its holding as follows:
“Plaintiffs’ facial and as-applied challenges turn on essentially the same question: Is
California’s DNA collection scheme constitutional as applied to anyone ‘arrested for, or
charged with, a felony offense by California state or local officials?’ After Maryland v.
King [citation], the answer is clearly yes.” (Id. at p. 1271, italics added.) Upon affirming
the denial of the preliminary injunction, the court remanded the matter back to the district
court after the plaintiffs requested an injunction applicable to a smaller class of people
arrested for felonies they asserted were not covered by King. (Ibid.)
In a concurring opinion, Judge Milan D. Smith, Jr., 16 elaborated, stating: “[t]he
Supreme Court’s decision in King is fatal to Plaintiffs’ claims” and after King, the
plaintiff’s constitutional challenges to the DNA Act “are clearly without merit.” (Haskell
I, supra, 745 F.3d. at p. 1272 (conc. opn. of Smith, J.).) Calling the asserted distinctions
between the Maryland and California statutes “illusory,” Judge Smith reasoned that
“California’s DNA collection law is materially indistinguishable from the Maryland law
p. 726 (dis. opn. of Cuéllar, J.).) He concluded the DNA Act violates both the state
constitutional provision prohibiting unreasonable searches and seizures, as well as our
state’s constitutional right to privacy.
16 Judge Smith was the author of the original majority opinion issued by the three-judge
panel. (See Haskell v. Harris (9th Cir. 2012) 669 F.3d 1049.)
38
upheld in [King].” (Id. at pp. 1271, 1272.) Regarding plaintiffs’ claims that the filing of
formal charges and a judicial determination of probable cause should be conditions
precedent to permissible DNA collection and analysis, Judge Smith wrote: “In light of
the Supreme Court’s focus on the collection of DNA samples in connection with arrest
and booking, Plaintiffs’ argument that the filing of charges and a judicial probable-cause
determination are conditions precedent to permissible DNA collection is unsupportable.
Refusing to draw such a line makes good sense. The government’s interest in identifying
arrestees attaches ‘when an individual is brought into custody,’ [citation], irrespective of
whether the suspect is ultimately charged.” (Id. at p. 1274.)
3. Haskell II
On remand to the district court, the Haskell plaintiffs, who represented members
of a class who were arrested but against whom no formal charges were filed, argued they
were entitled to an injunction. (Haskell v. Brown (2018) 317 F.Supp.3d 1095, 1097, 1099
(Haskell II).) They argued that, while obtaining the DNA sample after the arrest may be
constitutional, the state could not justify analyzing a DNA sample taken after arrest when
the arrestee is no longer accused of a crime. (Id. at p. 1100.) More specifically, they
argued, “ ‘[e]ven if the Fourth Amendment allows the government to seize a DNA
sample from everybody arrested on suspicion of a felony, once the government
determines that it will not prosecute a person, or charges are dismissed, the government’s
interests no longer justify analyzing that sample to obtain a DNA profile.’ ” (Id. at
p. 1099.)
Based on the theory that the governmental interests discussed in King no longer
prevail if the prosecutor decides not to file formal charges, the plaintiffs suggested a rule
allowing law enforcement to seize a sample from all felony arrestees, but delay the
analysis until a prosecutor files formal charges. (Haskell II, supra, 317 F.Supp.3d at
p. 1099.) The district court rejected the argument, noting that “King does not separate out
the two steps in DNA identification,” collection and analysis. (Id. at p. 1100.) Rather,
39
“King held that the government’s interests attach when an individual is taken into
custody.” (Ibid.) The district court noted that the court in Buza recognized that King said
“ ‘DNA identification’ . . . necessarily involves both taking and analyzing the sample.’ ”
(Ibid., quoting Buza, supra, 4 Cal.5th at p. 677.) Thus, the district court reasoned both
the King and Buza courts treated taking and analyzing the DNA sample “as part of a
single ‘identification’ process, rather than two independent searches.” (Haskell II, at
pp. 1100-1101.) “King did not view DNA analysis as a separate search for evidence.”
(Id. at p. 1102.) Moreover, as the district court and the Buza court noted, the high court
in King concluded that analysis of the DNA sample, once collected, does not result in a
privacy intrusion that violates the federal Constitution. (Id. at p. 1101, citing King, supra,569 U.S. at p. 464 & Buza, at p. 673.)
The district court rejected the plaintiffs’ argument that the time lapse between
taking the sample and analysis means the two should not be paired together. Looking to
the future, the court reasoned that it is indisputable that “the time between the two steps is
shrinking” and “it is not difficult to imagine that what once took months will soon take
minutes.” (Haskell II, supra, 317 F.Supp.3d at p. 1102.) In any event, as the district
court noted, the King and Buza courts had already rejected the argument. (Ibid.) Based
on the forgoing, the district court rejected plaintiffs’ contention “that even if it is
permissible to take an arrestee’s DNA at booking, it is unconstitutional to analyze that
sample until or unless the arrestee is charged with a crime.” (Id. at p. 1103.)
The district court reasoned that three of the government interests in King apply in
the context of analyzing DNA from an arrestee even after formal charges have not been
filed -- the identification interest, dangerousness assessment interest and exoneration of
innocent persons interest. (Haskell II, supra, 317 F.Supp.3d at pp. 1104-1106.)
Regarding the identification interest, the district court reasoned, “[t]he government
interest in identifying arrestees—both who they are and what they have done—is present
even if the arrestee is not ultimately charged with the felony for which he has been
40
arrested. … Such an individual might still be linked to a previous crime.” (Id. at
p. 1104.) The court noted that fingerprints and photographs are obtained for the same
identity purpose, retained by the government when arrestees are not charged, and are later
used for the same purpose. (Ibid.) “DNA is no different.” (Ibid.)
As for the public danger assessment interest, while bail determinations do not
apply to people who are not formally charged, taking the arrestee’s DNA at booking
gives law enforcement an early view into the arrestee’s dangerousness. For those
released on bail, that information could be used to revisit that person’s pretrial release
status. (Haskell II, supra, 317 F.Supp.3d at p. 1105.) Again, this interest attaches at
booking.
Regarding the exoneration of innocent persons interest, the district court stated:
“there is no question either that DNA evidence leads to exonerations, or that exonerations
are a worthy interest.” (Haskell II, supra, 317 F.Supp.3d at p. 1105.) The court reasoned
that “[w]hether the government interest in exoneration can ‘alone’ justify the DNA
searches . . . is beside the point, given the other government interests present. [¶] The
Supreme Court in King gave ‘great weight’ to the ‘significant government interest at
stake’ in arrestee DNA analysis. [Citation.] The government’s interests in identifying
arrestees, in assessing their dangerousness, and in exonerating the innocent, present in
King, are also present in the case of individuals arrested for felonies but not charged.”
(Id. at p. 1106.)
Weighing the government’s interest against the arrestee’s “modest interest”
discussed in King, the district court concluded DNA Act searches are reasonable, even
when the arrestee is not formally charged by the prosecutor. (Haskell II, supra, 317
F.Supp.3d at p. 1106.)
41
G. Analysis
1. Fourth Amendment
We begin with the holding in King: “When officers make an arrest supported by
probable cause to hold for a serious offense and they bring the suspect to the station to be
detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate police booking procedure that is
reasonable under the Fourth Amendment.” (King, supra, 569 U.S. at pp. 465-466.)
Based on the reasoning in King underlying this holding, and the reasoning in Buza, we
conclude this holding applies here, even though formal charges were not ultimately filed
against defendant. Our conclusion is buttressed by the Ninth Circuit and district court
opinions in Haskell I and Haskell II, which we find persuasive.
In his original briefing, defendant made the same arguments addressed in Buza
and the two Haskell cases in an effort to disconnect himself from the holding in King. He
argued that King did not apply because, unlike the Maryland law addressed in King, the
DNA Act (1) allows the collection of DNA from any adult charged with any felony
offense, (2) does not require that formal charges be filed and a judicial determination of
probable cause be made before an arrestee’s DNA can be uploaded into the national
database, and (3) does not require automatic expungement of an arrestee’s DNA profile
when no formal charges are filed or if there is no conviction. He makes the same
arguments post-Buza in his supplemental briefing. He argues he is not in the same class
of arrestee as the defendants in King and Buza. He notes that the Buza court did not
answer the specific issue presented here—whether the Fourth Amendment and his
privacy interests were violated by the seizure and testing of his DNA when it was
obtained in connection with an arrest for which no formal charges were filed. (Buza,
supra, 4 Cal.5th at p. 665.) He points out that the court in Buza stated: “ ‘[W]e express
no view on the constitutionality of the DNA Act as it applies to other classes of
42
arrestees.’ ” According to defendant, his circumstances meaningfully alter the
constitutional balance struck in King and Buza. We disagree.
Governmental interests identified in King and discussed in Buza apply here. The
high court was clear that each of the interests “attaches as soon as the suspect is ‘formally
processed into police custody” after having been arrested based on probable cause.
(Buza, supra, 4 Cal.5th at p. 449.) Taking the swab at that point constitutes “a reasonable
search that can be considered part of a routine booking procedure.” (King, supra, 569
U.S. at p. 465.) Thus, the counterbalancing government interests attach the moment a
person is arrested based on probable cause and undergoes the booking process. As for
the analysis of the buccal swab, even though our high court in Buza indicated its holding
was narrow, it nevertheless stated: “the reasoning of King itself does not lend substantial
support to the argument that” a guarantee is required that no DNA analysis will occur
until probable cause is confirmed by a neutral magistrate or charges are filed. (Buza, at
p. 677.) “Again, King approved ‘DNA identification’—which necessarily involves both
taking and analyzing the sample—as a ‘legitimate police booking procedure’ that enables
law enforcement to know whom they have in custody. [Citation.] That interest is one
that attaches as soon as the suspect is ‘formally processed into police custody.’ ” (Ibid.,
italics added; see also Haskell II, supra, 317 F.Supp.3d at p. 1100.)
The electorate’s declaration in amending the DNA Act in Proposition 69
recognizes the well-established identification interest: “The state has a compelling
interest in the accurate identification of criminal offenders.” (Prop. 69, supra, § II, subds.
(e), (f).) The voters further noted: “Like the collection of fingerprints, the collection of
DNA samples pursuant to this chapter is an administrative requirement to assist in the
accurate identification of criminal offenders.” (§ 295, subd. (d).) Long before King, our
high court recognized the import of this governmental interest in the context of DNA
collection and analysis and the utility of DNA for fulfilling that interest. (Buza, supra, 4
Cal.5th at pp. 687-688, citing Robinson, supra, 47 Cal.4th at pp. 1121, 1134.) DNA
43
collection and analysis is a booking process just like the common practices of taking mug
shots and fingerprinting, and “ ‘[i]ndividuals in lawful custody cannot claim privacy in
their identification.’ ” (Buza, at p. 687, quoting Robinson, at p. 1121.)
Moreover, as the high court in King noted regarding fingerprinting, “[f]inding
occurrences of the arrestee’s CODIS profile in outstanding cases is consistent with this
common practice. It uses a different form of identification than a name or fingerprint, but
its function is the same.” (King, supra, 569 U.S. at p. 452.) As DNA matching
technology improves, like fingerprint technology did, we can look forward to the time
when the efficacy of DNA as an identification metric will yield matches as quickly as
fingerprints. (King, at p. 459; Haskell II, supra, 317 F.Supp.3d at p. 1103.) Accordingly,
“[i]n the balance of reasonableness required by the Fourth Amendment, . . . [we] must
give great weight both to the significant government interest at stake in the identification
of arrestees and to the unmatched potential of DNA identification to serve that interest.”
(King, at p. 461.) In our view, placing DNA collection and analysis in the same category
as mug shots and fingerprints—neither of which are destroyed when formal charges are
not filed and both of which remain available for use in other investigations—indicates the
high court in King did not and would not consider formal charges, a judicial probable
cause determination, or a conviction to be constitutionally significant events relative to
the reasonableness of collecting and analyzing DNA as part of a booking process. The
government interest in identifying arrestees attaches when an individual is brought into
custody, “irrespective of whether the suspect is ultimately charged.” (Haskell I, supra,
745 F.3d at p. 1274 (conc. opn. of Smith, J.).)
Regarding the risk assessment interest recognized in King and Buza, again that
interest attaches the moment a person is booked based on an arrest supported by probable
cause. And in determining risk, custodial authorities need to know what other offenses
the arrestee has committed and whether there are prior convictions, pending cases, or
unsolved crimes. They need to know whether the arrestee is “ ‘wanted for another
44
offense.’ ” (King, supra, 569 U.S. at p. 452.) The King court did not distinguish between
offenses for which the arrestee had been previously identified as the perpetrator and those
where a DNA match identifies him as the perpetrator of a previously unsolved crime. As
we see it, the King court’s reasoning applies to both situations, and for purposes of this
governmental interest, we see no difference. Thus, in the future, when DNA analysis
becomes as rapid as fingerprint matches and an arrestee’s DNA is linked to the
commission of a heinous unsolved crime, custodial personnel will know the arrestee has a
heightened incentive to escape because of his involvement in that unsolved crime.
As for the dangerousness assessment interest, knowledge about an arrestee’s past
conduct is critical at all stages. Knowing, based on DNA identification, that a defendant
is wanted for a previous violent crime is probative of the court’s consideration of “ ‘the
danger of the defendant to the alleged victim, another person, or the community.’ ”
(King, supra, 569 U.S. at p. 453.) And if a DNA hit takes place after pretrial release,
“revealing the defendant’s unknown violent past,” that information “ ‘can and should’
lead to revocation of the arrestee’s release.” (Id. at p. 455; see also Buza, supra, 4
Cal.5th at p. 689 [even DNA identification information obtained months later can be
considered in reevaluating an initial release determination or determining to impose new
release conditions and it may also influence custodial housing decisions].) Similarly, a
DNA hit determined after a prosecutor initially declines to file formal charges on the
current arrest could, and in many cases will, result in a reevaluation of that charging
decision. A prosecutor’s charging decision is not necessarily permanent, and a defendant
could later be formally charged as long as the filing is made within the applicable statute
of limitations. And in such a situation, the defendant’s DNA profile would be available
for purposes of confirming his identity upon rearrest.
Finally, while the exoneration of innocent persons interest attaches at the time of
booking for an arrest based on probable cause, this interest continues even if formal
charges are not filed on the current arrest. (Haskell II, supra, 317 F.Supp.3d at p. 1106.)
45
Prompt DNA testing prevents “the grotesque detention of . . . innocent people.” (King,
supra, 569 U.S. at p. 455.) “DNA evidence leads to exonerations” of persons wrongly
accused and “exonerations are a worthy interest.” (Haskell II, at p. 1105.) The electorate
recognized this in enacting the DNA Act, the formal name of which includes the words
“Innocence Protection.” The electorate declared in Proposition 69 that there is a “critical
and urgent need” to provide law enforcement with the technology to “expeditiously . . .
exonerat[e] persons wrongly suspected or accused of crime” and “prevent time-
consuming and expensive investigations of innocent persons.” (Prop. 69, supra, § II,
subds. (b), (e).) It further declared that expanding the DNA data base is a “means to
ensure that persons wrongly suspected or accused of crime are quickly exonerated so that
they may reestablish their standing in the community.” (Prop. 69, supra, § II, subd. (g).)
This government interest is on full display in the instant case, where S.L. and Christopher
could not be truly exonerated until the DNA found on the cigarette butts and Jessica’s
belt buckle was linked to defendant and law enforcement determined there was no
connection between defendant and those individuals.
We conclude that at the time of booking, “there can be little reason to question
‘the legitimate interest of the government in knowing for an absolute certainty the
identity of the person arrested [and] in knowing whether he is wanted elsewhere’ ” (King,
supra, 569 U.S. at p. 461), even if a prosecutor’s office later decides not to file formal
charges. Nor can it be questioned that determining an arrestee’s dangerousness and the
potential for exoneration of innocent persons are legitimate governmental interests to
weigh in the balance, even when formal charges are not filed. And in a situation where
the prosecutor reevaluates the original decision declining to file charges, decides to do so
and the defendant is then rearrested, the defendant’s DNA will be available to confirm his
identity and for purpose of risk assessment in the custodial setting.
Looking at the privacy side of the balance, there is no dispute here that
defendant’s arrest was supported by probable cause. Consequently, his expectation of
46
privacy was diminished. (King, supra, 569 U.S. at pp. 461, 463; Buza, supra, 4 Cal.5th at
p. 673.) The court in King stated, “[i]n light of the context of a valid arrest supported by
probable cause [the defendant’s] expectations of privacy were not offended by the minor
intrusion of a brief swab of his cheeks.” (King, at p. 465.) The high court did not even
hint that later events such as the filing of formal charges, a judicial probable cause
determination, or a conviction would need to be weighed into the balance. Regarding the
physical intrusion in obtaining the sample, the buccal swab process is a “minimal
intrusion,” (id. at p. 459; Buza, at pp. 672-673), and only minimally more intrusive than
fingerprinting (King, at p. 469).
Additionally, a California arrestee’s privacy is protected by the same scientific and
statutory safeguards discussed in King. (King, supra, 569 U.S. at pp. 442-444; Buza,
supra, 4 Cal.5th at pp. 681, 692.) The DNA analyzed is non-sensitive junk DNA, not
suitable for genetic determinations other than identification. (Buza, at p. 673.) It is a
genetic fingerprint, but it is not, as defendant suggests, the equivalent of medical history
information. (See United States v. Mitchell (3rd Cir. 2011) 652 F.3d 387, 408 [“ ‘DNA
profiles, which embody information concerning 13 “core loci,” amount to “genetic
fingerprints” that can be used to identify an individual uniquely, but do not disclose an
individual’s traits, disorders, or dispositions’ ”].) In California, misuse of a DNA profile
is subject to criminal penalties. 17 It is certainly possible that, in the future, the 13 loci
17 As our high court in Buza noted: “Information obtained from an arrestee’s DNA is
confidential and may not be disclosed to the public. [Citation.] DNA samples and the
biological material from which they are obtained may not be used ‘as a source of genetic
material for testing, research, or experiments, by any person, agency, or entity seeking to
find a causal link between genetics and behavior or health.’ [Citation.] Any person who
knowingly uses a DNA sample or profile for any purpose other than ‘criminal
identification or exclusion purposes’ or ‘the identification of missing persons,’ or who
‘knowingly discloses DNA or other forensic identification information . . . to an
unauthorized individual or agency’ for any unauthorized reason is subject to criminal
prosecution and may be imprisoned for up to three years and fined up to $10,000.
47
constituting junk DNA could be used to make other, more private genetic determinations;
but other than pure speculation, there is nothing before us from which to infer science
will move in that direction. And such speculation should not be part of a Fourth
Amendment analysis. On balance, the government interests clearly outweigh defendant’s
privacy interests.
We disagree with defendant’s premise that what subsequently happened after
booking—that he was neither formally charged nor subject to a probable cause
determination by a neutral magistrate—meaningfully alters the Fourth Amendment
calculus. 18 The reasoning in King and Buza set forth ante implicitly disposes of
defendant’s contentions. Indeed, as noted, the high court in King never suggested the
applicability of the governmental interests that attach upon an arrest based on probable
cause should be reevaluated or reconsidered depending on later proceedings in the
criminal justice process, including a prosecutorial charging declination. No such rule is
required for other common identification evidence collected at booking like photographs
and fingerprints, and we see no reason why such a rule should be required for DNA
profiles generated from junk DNA obtained from a person by buccal swab after a valid
arrest as part of the booking process. (See Loder, supra, 17 Cal.3d at pp. 865-868
[reasoning that the multiple purposes for which police, prosecutors, courts, and probation
and parole authorities may consult records of arrests not resulting in conviction, including
fingerprint records and photographs, constitute a substantial governmental interest].)
[Citation.] The Department of Justice is also subject to civil damages for knowing
misuse of a sample or profile by any of its employees.” (Buza, supra, 4 Cal.5th at
p. 667.)
18 Again, we note that the record does not establish whether there was a probable cause
determination by a neutral magistrate or not. (See fn. 8, ante.) But whether there was or
was not makes no difference here, where the record establishes there was probable cause
for arrest.
48
Regarding a judicial determination of probable cause, we note here that defendant
never challenged the constitutional validity of his May 2013 arrest. (See generally Buza,
supra, 4 Cal.5th at pp. 679-680 [addressing the dissent’s suggestion that arrest should not
be deemed valid until there is a judicial determination of validity, and observing that, in
the case before it, there was no dispute the arrest was valid].) To the contrary, defendant
here stipulated that his arrest was lawful, as it was based on probable cause. The parties’
stipulation characterized defendant’s May 30, 2013, arrest as a “lawful arrest for a
felony, based upon the officer’s finding probable cause.” (Italics added.) Thus, this case
does not present a situation where the validity of the arrest is in question. In such a
circumstance, whether DNA evidence collected at booking should be suppressed presents
an entirely different question. (Cf. People v. Marquez (2019) 31 Cal.App.5th 402, 410-
411 [concluding the DNA collection violated the Fourth Amendment because the
prosecution failed to establish the defendant’s arrest was supported by probable cause or,
given an unexplained four-day delay between arrest and obtaining the buccal sample, that
his DNA was collected a part of a routine booking procedure].)
As to the prosecutorial charging declination, the court in Buza impliedly addressed
the argument defendant makes here. The court stated: “Although defendant himself was
charged and convicted, we acknowledge defendant’s concern about the collection of
DNA samples from other individuals who are booked into custody but who ultimately
will never be charged with a qualifying crime, or against whom qualifying charges will
ultimately be dismissed. Voters responded to that concern by providing for a particular
remedy—expungement of the DNA sample and associated records—when the suspect is
cleared of qualifying charges. As King illustrates, voters could also have chosen to
require that all sample processing be postponed until after arraignment, regardless of
technological capacity to proceed more quickly. But given the basic logic of King, we
cannot say that the choice voters made is one that undermines the reasonableness of the
49
search in this case.” (Buza, supra, 4 Cal.5th at p. 679, italics added.) We conclude the
same about the reasonableness of the search in the case before us.
Defendant argues that each time his DNA was run in CODIS and compared to
other profiles, it was, in effect, subjected to additional searches after his release. We
disagree. As the King, Buza, and Haskell courts have emphasized, defendant’s DNA
profile is like his mugshot and fingerprints. And fingerprints and photographs are both
available for law enforcement use once constitutionally obtained. Moreover, it is hard to
see how the subsequent comparisons of defendant’s DNA profile can even be classified a
search. As recognized by the courts in King and Buza, the search that is subject to Fourth
Amendment analysis takes place when the buccal swab sample is obtained and even “the
analysis of the DNA sample, once collected, does not result in a privacy intrusion that
violates the federal Constitution.” (Buza, supra, 4 Cal.5th at p. 673, citing King, supra,569 U.S. at p. 464.) In our view, repeated comparison of an arrestee’s validly obtained
and recorded DNA profile to the profiles in CODIS is no more a search than are future
uses of mugshots for photo lineups or comparisons of fingerprints to latent prints found at
an unrelated crime scene. (See Johnson v. Quander (D.C. Cir. 2006) 440 F.3d 489, 499
[a DNA profile is like a snapshot taken in conformance with the Fourth Amendment and
the government’s storage and use of it does not give rise to an independent Fourth
Amendment claim]; see also Haskell II, supra, 317 F.Supp.3d at p. 1102, quoting
Johnson, at p. 498.) Once an arrestee’s DNA is validly obtained and analyzed as part of
the booking procedure and his or her profile becomes known and recorded, there is no
additional intrusion into the arrestee’s privacy by comparing it to other profiles. (See
Johnson, at pp. 498-499 [concluding that comparing DNA profiles in CODIS is not a
search for Fourth Amendment purposes; “the process of matching one piece of personal
information against government records does not implicate the Fourth Amendment”].)
Rather, a recorded profile, once validly obtained, is essentially in the plain view of law
enforcement. (See Arizona v. Hicks (1987) 480 U.S. 321, 324-325 [94 L.Ed.2d 347]
50
[noting that observing a turntable in plain view while law enforcement executes a valid
search warrant for other items does not constitute an independent search, because the
mere observation of the turntable produces no additional invasion of the defendant’s
privacy interest].) And there is no constitutional impediment to matching information
against other governmental records when that information is in law enforcement’s plain
view as the result of a valid search.
Regarding defendant’s argument that the DNA Act is constitutionally defective
because it does not provide for automatic expungement, we agree with the district court
in Haskell II. “[C]ourts have not held that a state must always return fingerprints or other
identifying information taken at arrest. [Citations]. The court in Buza, [citation], also
observed that ‘retention of an arrestee’s fingerprints, photographs, and other identifying
information in law enforcement files generally has not been thought to raise
constitutional concerns, even though the arrestee may later be exonerated.’ ” (Haskell II,
supra, 317 F.Supp.3d at p. 1110, quoting Buza, supra, 4 Cal.5th at p. 680.) And as the
Buza court observed, nothing in King suggested that the automatic expungement
component of the Maryland law was constitutionally significant. (Buza, at p. 680.) The
Maryland expungement procedure was simply not part of King’s Fourth Amendment
analysis. (Haskell II, at p. 1111.) Given the high court’s holding that DNA serves the
same function as photographing and fingerprinting, we conclude automatic expungement
is not constitutionally required.
Nor do we find anything in California’s expungement procedures that tilts the
balance to a violation of the felony arrestee’s Fourth Amendment rights. Focusing on
various expungement provisions, defendant argues the process for obtaining an
expungement is illusory. We need not detail those provisions here. Suffice it to say we
agree with the district court in Haskell II that “[t]here is no reason to believe that the
California law’s inclusion of a somewhat more burdensome process for accomplishing
[expungement than the Maryland law] would so alter the balancing test as to change its
51
outcome. Instead, California’s expungement process is an inconsequential example of
how states’ laws ‘vary in their particulars’ from the Maryland law.” (Haskell II, supra,
317 F.Supp.3d at p. 1111.)
Furthermore, to our knowledge, defendant never availed himself of the
expungement procedures he characterizes as inadequate here. (See generally Buza,
supra, 4 Cal.5th at p. 683 [court stated it had no occasion to address issues the defendant
raised regarding the statutory expungement procedures where he did not seek
expungement and concluding many of the defendant’s assertions on this topic were
necessarily speculative].) Indeed, defendant here actually invited the investigators to
check his DNA in the database when he said to them at the conclusion of the initial
interview, “Um, I’d offer DNA and fingerprints, but honestly, I’m already in the system.
So you guys can run me.” (Italics added.)
We conclude that the DNA Act, as applied to defendant here, did not violate the
Fourth Amendment.
2. California Constitutional Right Against Unreasonable Search and Seizure
Defendant asserts that the California Constitution independently protects him
above and beyond the federal constitution. The court in Buza recognized, “the California
Constitution is, and has always been, ‘ “a document of independent force” ’ [citation] that
sets forth rights that are in no way ‘dependent on those guaranteed by the United States
Constitution.’ ” (Buza, supra, 4 Cal.5th at p. 684; see Cal. Const., art. I, § 24.)
However, the Buza court made clear, “We evaluate the constitutionality of
searches and seizures under our state Constitution by employing the same mode of
analysis that the high court applied in King [citation]. That is, we determine whether the
intrusion on the defendant’s expectation of privacy is unreasonable by applying ‘a
general balancing test ‘weighing the gravity of the governmental interest or public
concern served and the degree to which the [challenged government conduct] advances
that concern against the intrusiveness of the interference with individual liberty.’ ”
52
(Buza, supra, 4 Cal.5th at p. 684.) Employing that same balancing analysis and the
reasoning in King, our high court concluded the DNA Act did not violate the California
Constitution as applied to Buza. (Id. at pp. 684-691.)
Defendant in making his state constitutional claim again asserts that none of the
considerations or rationales relied upon in King and Buza apply to an arrestee who is
released from jail without formal charges having been filed. And again, we disagree. For
reasons previously discussed, we conclude the identification, risk assessment,
dangerousness assessment, and exoneration interests applicable to the Fourth Amendment
contention apply to defendant’s state constitutional claims. On balance, we conclude the
aforementioned four interests weigh in favor of a finding of reasonableness as to
defendant’s California search and seizure claim.
Defendant also relies on the absence of an automatic expungement provision in the
DNA Act in arguing that it violates California’s Constitution. However, for the same
reasons discussed ante relative to the Fourth Amendment analysis, we do not agree that
the absence of automatic expungement compels the conclusion that the DNA Act, or its
application to defendant, violates article I, section 13, of the California Constitution.
On the privacy side of the California Constitution balance, defendant
acknowledges that the Buza court factored in what it considered “heightened privacy
interests in the sensitive information that can be extracted from a person’s DNA” and that
these interests implicate California’s constitutional search and seizure provision. (Buza,
supra, 4 Cal.5th at pp. 689-690.) But the court in Buza went on to note that, even under
cases involving California’s right to privacy under article I, section I, its “cases have . . .
recognized that safeguards against the wrongful use or disclosure of sensitive information
may minimize the privacy intrusion when the government accesses personal information,
including sensitive medical information.” (Id. at p. 690.) The court went on to state:
“Here, the DNA Act makes the misuse of a DNA sample a felony, punishable by years of
imprisonment and criminal fines. [Citation.] These strong sanctions substantially reduce
53
the likelihood of an unjustified intrusion on the suspect’s privacy. Like the King court,
we acknowledge the possibility that technological change might alter the privacy interests
at stake, requiring a new constitutional analysis. But we are no more inclined than that
court to decide cases on the basis of speculation about future developments that may not
come to pass.” (Ibid.)
Defendant attempts to add weight to the privacy side of the balance, asserting
“[t]he DNA sample analyzed and stored by the state contained [his] entire genetic code,
deeply personal information that surely falls within the realm of guaranteed informational
privacy” and equates it to medical history. (Italics added.) Defendant exaggerates. As
King and Buza recognized, the DNA analysis done by the state reveals junk DNA. It is
not his entire genetic code. Under current technology, it is suitable only for identification
purposes. Nothing about the fact that defendant was not formally charged warrants a
deviation from King’s and Buza’s analysis on this point. As of now, what is at issue is
“junk DNA” suitable only for identification purposes, not a person’s entire genetic code.
Relying on Justice Cuéllar’s dissenting opinion in Buza, defendant asserts that “the
processing, storage and comparison of an arrestee’s DNA sample” represents a “second
intrusion” which is a greater intrusion on the arrestee’s privacy. (Buza, supra, 4 Cal.5th
at p. 720 (dis. opn. of Cuéllar, J.).) 19 However, as we have noted, King and Buza
recognized the identification process includes both the taking and analysis of an
arrestee’s DNA and the governmental interest attaches when the arrestee is taken into
custody on an arrest supported by probable cause. (King, supra, 569 U.S. at pp. 449-450,
465, 466; Buza, at p. 677.) Noting that the King court “treat[ed] . . . the taking and
analyzing as part of a single ‘identification’ process, rather than two independent
19 We note that it is not the physical sample that is stored and compared; it is the profile
determined from the analysis that is stored in the DNA databank and compared to other
profiles. (Buza, supra, 4 Cal.5th at pp. 666-667.)
54
searches,” the district court in Haskell II found this to be significant in finding the DNA
Act constitutional as applied to arrestees for whom formal charges are not filed.
(Haskell, supra, 317 F.Supp.3d at p. 1101.) We conclude the same as to our state charter.
We conclude defendant’s contentions that the DNA Act applied to him violated
article I, section 13, of the California Constitution are without merit. Defendant’s
contentions either were disposed of by the King, Buza and Haskell courts, or do not
sufficiently affect the applicable constitutional balancing analysis so as to render the
DNA Act unconstitutional under our state charter.
3. California Constitutional Right to Privacy
In the trial court and, for the first time on appeal, in his supplemental reply brief, 20
defendant asserts the DNA Act violates his right to privacy under article I, section 1, of
the California Constitution because that provision contains a “more potent privacy
interest” related to informational privacy. 21
Article I, section 1 of the California Constitution provides: “All people are by
nature free and independent and have inalienable rights. Among these are enjoying and
defending life and liberty, acquiring, possessing, and protecting property, and pursuing
and obtaining safety, happiness, and privacy.” (Italics added.) The words “and privacy”
were added to our state charter by ballot initiative approved by the electorate in 1972.
20 After defendant did not object, we granted the People’s request to file a supplemental
surreply brief to address the issue.
21 Our high court defines the informational privacy interest as an interest “in precluding
the dissemination or misuse of sensitive and confidential information.” (Hill v. National
Collegiate Athletic Association (1994) 7 Cal.4th 1, 35 (Hill).) “Informational privacy is
the core value furthered by the Privacy Initiative” (ibid), which added the right to privacy
to our state constitution. “A particular class of information is private when well-
established social norms recognize the need to maximize individual control over its
dissemination and use to prevent unjustified embarrassment or indignity. Such norms
create a threshold reasonable expectation of privacy in the data at issue.” (Ibid.)
55
(Hill, supra, 7 Cal.4th at p. 15.) “The principal ‘ “mischiefs” ’ that the Privacy Initiative
addressed were: ‘(1) “government snooping” and the secret gathering of personal
information; (2) the overbroad collection and retention of unnecessary personal
information by government and business interests; (3) the improper use of information
properly obtained for a specific purpose, for example, the use of it for another purpose or
the disclosure of it to some third party; and (4) the lack of a reasonable check on the
accuracy of existing records.’ ” (Lewis v. Superior Court (2017) 3 Cal.5th 561, 569
(Lewis).)
Our high court has repeatedly stated, in the context of search and seizure, that the
privacy protected by Article I, section 1 of the California Constitution is no broader than
the privacy protected by the Fourth Amendment or by article I, section 13 of the
California Constitution. (In re York (1995) 9 Cal.4th 1133, 1149 (York); Hill, supra, 7
Cal.4th at p. 30, fn. 9; People v. Crowson (1983) 33 Cal.3d 623, 629 (Crowson),
overruled on another ground in People v. Myers (1993) 5 Cal.4th 1193, 1195, 1201, as
stated in People v. Carter (2005) 36 Cal.4th 1114, 1144; see also Smith v. Los Angeles
County Board of Supervisors (2002) 104 Cal.App.4th 1104, 1124 (Smith); People v.
Elwood (1998) 199 Cal.App.3d 1365, 1371-1372 (Elwood).) Rather, the federal and state
search and seizure rights and the state privacy rights are coextensive with each other.
(Crowson, at p. 629.) We are bound by our high court’s determination on this point.
(Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) 22
22 The People argue that even if the right to privacy is not coextensive with search and
seizure rights, defendant has not established that his right to privacy has been violated,
citing the elements for privacy rights violations established by our high court in Hill: (1)
a legally protected privacy interest; (2) a reasonable expectation of privacy in the
circumstances; and (3) conduct constituting a serious invasion of the privacy interest.
(Lewis, supra, 3 Cal.5th at p. 571; Hill, supra, 7 Cal.4th at pp. 39-40.) Given our
Supreme Court’s pronouncement that in the search and seizure context the constitutional
search and seizure rights are coextensive with the constitutional privacy right and the
56
Accordingly, we must apply the same balancing analysis we have applied
concerning the federal and state search and seizure protections. Applying that analysis,
we reject defendant’s state constitutional privacy claim.
4. Proposition 8
Even if we were to conclude defendant’s state search and seizure or privacy rights
were violated, exclusion is not an available remedy. As noted, the Truth-in-Evidence
provision of Proposition 8 eliminated the remedy of exclusion of evidence for violations
of the California Constitution, “except to the extent that exclusion remains federally
compelled.” (Lance W., supra, 37 Cal.3d at pp. 886-887.) “[I]n California criminal
proceedings, issues related to the suppression of evidence seized by police are, in effect,
governed by federal constitutional standards.” (Buza, supra, 4 Cal.5th at p. 685, italics
added; accord, Redd, supra, 48 Cal.4th 691, 720, fn. 11; Robinson, supra, 47 Cal.4th at
p. 1119; Banks, supra, 6 Cal.4th at p. 934; Elwood, supra, 199 Cal.App.3d at pp. 1371-
1372.)
Defendant argues that, while the Buza court recognized the Truth-in-Evidence
provision, it nevertheless addressed the state constitutional grounds asserted by the
defendant, noting the independent force of our state charter. This is true because Buza
addressed the substantive scope of California’s Constitutional provision. Buza was not
an evidence suppression case and our high court was careful to note that Proposition 8’s
Truth-in-Evidence provision must apply in such cases. (Buza, supra, 4 Cal.5th at p. 685.)
Defendant asserts that Proposition 8 does not apply to his state search and seizure
or informational privacy claims because King did not address the collection and analysis
of DNA from an arrestee when the prosecutor later declines to file formal charges and it
did not decide the Fourth Amendment issue “within the context of” his informational
application of the Truth-in-Evidence provision in Proposition 8, which we discuss post,
we need not separately analyze defendant’s privacy right contention under the Hill test.
57
privacy contention. 23 But we look to the “federal constitutional standards” in
determining the scope of Proposition 8. (Buza, supra, 4 Cal.5th at p. 685.) On this point,
we once again note that our high court in Buza twice identified as the holding in King: “
‘[w]hen officers make an arrest supported by probable cause to hold for a serious offense
and they bring the suspect to the station to be detained in custody, taking and analyzing a
cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate
police booking procedure that is reasonable under the Fourth Amendment.’ ” (Id. at
pp. 664, 673, quoting King, supra, 569 U.S. 465-466.) And as we have observed, the
high court’s holding was intentionally broad and apparently intended to cover more than
Maryland’s DNA database law.
Regarding defendant’s informational privacy claim grounded on our state’s
constitutional right to privacy, we have already noted that our high court has on more
than one occasion held the privacy right under article I, section 1 is no broader than the
privacy protected by the Fourth Amendment or by article I, section 13 of the California
Constitution. (York, supra, 9 Cal.4th at p. 1149; Hill, supra, 7 Cal.4th at p. 30, fn. 9;
Crowson, supra, 33 Cal.3d at p. 629; Smith, supra, 104 Cal.App.4th at p. 1124; Elwood,
23 We note that the Truth-in-Evidence provision of Proposition 8, enacted by the
electorate in 1982 is a more recent and more specific constitutional provision than the
Privacy Initiative, enacted in 1972, so the privacy right does not trump Proposition 8.
(Cf. People v. Adelmann (2018) 4 Cal.5th 1071, 1079 [“On the question of venue,
Proposition 47 is both more recent and more specific than the probation transfer statute”;
the focused language of section 1170.18, added by Proposition 47, controls over the more
general provisions of section 1203.9]; In re David T. (2017) 13 Cal.App.5th 866, 872
[“ ‘ “more recent and specific intent underlying Proposition 21’s amendments to section
781 prevail[s] over th[e] general intent” recognized when the statute was initially
enacted’ ”]; Capistrano Taxpayers Assn., Inc. v. City of San Juan Capistrano (2015) 235
Cal.App.4th 1493, 1511 [“if push came to shove and article X, section 2 really were in
irreconcilable conflict with article XIII D, section 6, subdivision (b)(3), we might have to
read article XIII D, section 6, subdivision (b)(3) to have carved out an exception to article
X, section 2, since Proposition 218 is both more recent and more specific”].)
58
supra, 199 Cal.App.3d at pp. 1371-1372 [applying Proposition 8 in the context of a
challenge grounded on article I, section 13 and article I, section 1].) Indeed, in People v.
Guzman (2019) 8 Cal.5th 673, our high court recently rejected an argument that the right
to privacy “outranks” the right to truth-in-evidence under Proposition 8. (Guzman, at
p. 683.) There, our high court concluded that the Truth-in-Evidence provision abrogated
the exclusionary remedy in section 632, subdivision (d). 24 Our high court held:
“Proposition 8 can eliminate the exclusionary remedy without affecting the ‘substantive
scope’ of article I, section 13. [Citation.] In much the same way, Proposition 8 can
eliminate the exclusionary remedy of section 632(d) without affecting the substantive
scope of privacy of article I, section 1 . . . .” (Guzman, at p. 684, italics added.)
We follow our high court’s lead here and conclude that, even if there was a
violation of defendant’s substantive rights under either article I, section 13 or article I,
section 1, exclusion of evidence is not available as a remedy in a criminal proceeding.
5. Conclusion
We note here, as did our high court in Buza, that “ ‘it is our solemn duty to
jealously guard’ the initiative power secured by the California Constitution, and that we
accordingly may not strike down voter measures ‘unless their unconstitutionality clearly,
positively, and unmistakably appears.’ ” (Buza, supra, 4 Cal.5th at p. 694, quoting
Legislature v. Eu (1991) 54 Cal.3d 492, 501.) Here, two separate initiatives are in play,
Proposition 69 and Proposition 8. The voters have spoken twice. As our foregoing
analysis makes clear, we do not find any unconstitutionality clearly, positively, and
unmistakably appearing in the DNA Act or in its application to defendant here.
24 Section 632, subdivision (a) prohibits nonconsensual recording of confidential
communications. Subdivision (d) of section 632 provides in pertinent part: “[E]vidence
obtained as a result of eavesdropping upon or recording a confidential communication in
violation of this section is not admissible in any judicial, administrative, legislative, or
other proceeding.”
59
Accordingly, we conclude that the DNA Act, as applied to defendant, 25 did not
violate his search and seizure rights under the Fourth Amendment or under article I or
section 13, of the California Constitution. 26 Nor did the DNA Act as applied to
defendant violate his right to privacy under article I, section 1 of the California
Constitution. We further conclude that even if his state constitutional rights were
violated, the Truth-in-Evidence provision of Proposition 8 bars exclusion of the DNA
evidence.
II. Additional Background Facts Pertinent to the Remaining Contentions
As noted ante, defendant mounted a third party culpability defense, asserting that
S.L. and/or Christopher, were responsible for Jessica’s death. During the early stages of
the investigation, Jessica’s mother told a Sheriff’s detective that Jessica started having
problems at home and running away after she met S.L. The detective immediately started
looking for S.L.
A. Defense Evidence
S.L. was called as a witness by the defense. 27 She was fourteen at the time of
Jessica’s death and “really good friends” with her. The two of them attended the same
25 To the extent defendant asserts a strictly facial challenge to the DNA Act, we would
find that challenge meritless under King and Buza.
26 In light of our determinations here, we do not address the People’s contentions that
defendant cannot challenge the state’s analysis of his DNA because he acquiesced to it,
and that if the DNA Act is unconstitutional, the good faith exception to the exclusionary
rule should apply.
27 At an Evidence Code section 402 hearing outside the presence of the jury during the
defense case-in-chief, S.L. took the stand and invoked her Fifth Amendment right against
self-incrimination on the advice of appointed counsel. Subsequently, the prosecution
moved pursuant to section 1324 for the trial court to grant S.L. use immunity for her
testimony in this case. The trial court granted the prosecution’s request.
60
middle school, which was located adjacent to the park. Jessica did not have many
friends. According to S.L., Jessica was shy and naïve, and looked up to S.L.
In the weeks preceding her death, Jessica had begun running away because she
was experiencing problems at home, and she would seek out S.L. S.L.’s mother,
Christina L., would let S.L. and Jessica stay in her motel room at Vince’s Motel. Vince’s
Motel was patronized by drug users and prostitutes, as was the motel next door, Casa
Linda, where Christina also stayed on occasion. When Christina was not around, S.L.
would turn to others at the motel to take her in and care for her, including Connie K.,
Michelle S., and Christopher. 28
Connie testified that Jessica was “always in tow with” S.L., and that Jessica
looked up to S.L. Connie also testified “[S.L.] was very jealous of [Jessica]. She was
jealous to the point she almost couldn’t hold back her feelings. She often didn’t, really.”
On the Thursday before Jessica was killed, she had run away and contacted S.L.
S.L. took Christopher and went to look for her. S.L. testified that Christopher knew
Jessica from when Jessica had been at Vince’s Motel.
S.L. testified she did not recall ever having any fights with Jessica, and did not
have any issues with Jessica in the days leading to her death. But S.L. acknowledged
leaving voicemails for Jessica prior to her death in which S.L. was “upset a little.” She
first told detectives that the reason she had been upset was because Jessica had lied to her
about something. She then told detectives that she had been upset because Jessica had
gone to see Jessica’s boyfriend in the park without S.L., and S.L. did not trust Jessica’s
boyfriend. This explanation, too, would prove to be false.
S.L. testified Jessica was going to be initiated into the Juggalos, a gang that
follows the music group Insane Clown Posse. According to S.L., there are two different
28The trial court declared Christopher unavailable to testify after he asserted his Fifth
Amendment right against self-incrimination.
61
types of Juggalos: those who are simply fans of Insane Clown Posse, and those who are
members of the gang. S.L. testified that she was both and that she was a Juggalo gang
member at the time of Jessica’s death. Juggalos throw up hand signs of “W” and “C”
which stands for “Wicked Clown.” According to S.L., a hatchet is the “main symbol” of
the Juggalos and a cartoon symbol of a running person carrying a hatchet is a symbol of
the gang. The leader of a Juggalos gang metaphorically “carr[ies] the hatchet,” and they
also actually have physical possession of a hatchet “in their room. They don’t take it out
in public.” Locally, the Juggalos hung out every day in the gazebo at the park, which was
close to the dugout where Jessica’s body was discovered.
According to S.L., Jessica was to be initiated into the Juggalos at the park on the
Friday prior to her death, but Jessica did not show up. The initiation was rescheduled for
Sunday. Thus, contrary to her earlier claim about a voicemail she had left Jessica, S.L.
testified that it had not been Jessica’s plan to meet her boyfriend in the park on that
Sunday, March 4, 2012, but rather Jessica was to be initiated into the Juggalos that day.
S.L. did not want Jessica to be initiated into the Juggalos.
The last time S.L. saw Jessica alive was on Monday, March 5, 2012, at 7:00 a.m.
at a light rail station. Jessica was with her mother and was on the way to school. S.L. did
not go to school that day. Instead, S.L. was at her friend Shawn D.’s house that day.
S.L. testified that, at approximately 7:15 p.m. on Monday, March 5, 2012, she
called Connie attempting to get in touch with Christina who did not have a phone. There
was conflicting testimony about what S.L. said during this call, and defendant asserts
what was said establishes S.L.’s culpability for the murder.
According to S.L., Connie answered and handed the phone to Christina, but
Christina did not want to talk to S.L. and passed the phone to Christopher. Christopher
asked S.L. when she would be home and S.L. replied 9:30 or 10:00 p.m. S.L. left
Shawn’s house after the phone call, but later returned and stayed there until 11:40 p.m.
62
She then returned to Vince’s Motel, went to Christina’s room, and went to sleep. S.L. did
not recall seeing Christopher at Vince’s Motel that night.
Regarding the phone call, Connie testified that, around dusk, she was walking to
the store with Christina and Christopher when S.L. called and asked for Christina.
Connie handed her phone to Christina, who said to S.L., “ ‘What the fuck do you want?
Leave me the fuck alone.’ ” Christina then handed the phone to Christopher. Connie
testified she could hear S.L. screaming over the phone, “ ‘Could you tell my mom please,
please?’ ” “ ‘Can you come right now? I need your help,’ ” and “ ‘Come right now.’ ”
After testifying S.L. did not say anything else, in response to a leading question by
defense counsel, Connie testified she also heard S.L. say, “ ‘I can’t do this alone.’ ” 29
Connie estimated the telephone conversation lasted approximately 40 minutes.
According to Connie, at some point, Christopher asked Christina, “Should I go to
the park and get the girls?” Christina then asked Connie whether she could borrow a
blanket. From what Connie understood, Christopher planned to pick up the girls in the
park at 9:00 p.m. Christopher borrowed a blanket from Connie. She thought they needed
the blanket because the girls were going to sleep over. However, she thought it was odd
that Christopher took the blanket before going to the park rather than simply getting it
when he came back with the girls. Connie testified she saw S.L. at approximately 11:00
p.m. that night coming out of one motel room and going into Michelle’s room.
Early the next morning, Christopher came to Connie’s room, gave her the blanket,
said, “ ‘I gotta get the fuck out of here,’ ” and left. Connie characterized Christopher as
frantic, scared, panicked, and in a hurry. He was wearing the same clothes he had been
wearing the night before. The blanket did not appear to be the same blanket she had
29 S.L. testified that, during the phone call, she did not tell Christopher “ ‘I’m at the park.
I can’t do this alone.’ ” She also testified Christopher never said he would come meet
her.
63
given him the night before. It was a different color and it was clean, whereas the one she
had given him was not.
Michelle testified that, one night, at approximately 10:00 or 11:00 p.m., S.L. came
by and then left to meet some friends. She returned later that night or in the very early
morning hours the next morning, perhaps at 1:00 or 2:00 a.m. At 7:00 or 8:00 a.m.,
Christina and her boyfriend came into the room and said a little girl had been found dead
in the field at the school. According to Michelle, S.L., who had been sleeping on the
couch, jumped up and said, “ ‘Oh, my God,’ ” and then said, while crying, “ ‘I just beat
her up.’ ” According to Michelle, S.L. repeated these words a few times. Christina and
her boyfriend had not mentioned Jessica’s name, and Michelle wondered how S.L. knew
the identity of the girl found dead at the school. Christina responded to S.L. by saying “
‘Don’t worry about it. We’ll figure this out.’ ” Then S.L., Christina, and Christina’s
boyfriend left. That morning, Michelle noticed that the knife she “shove[d] in the corner”
of her bathroom door to keep it closed was gone. It had been there the night before.
Suzanne S. testified that she lived close to the park and Christopher previously had
been her neighbor. He occasionally visited. Sometime between 7:00 and 10:00 a.m. on
the morning Jessica was found dead, Christopher stopped by to use Suzanne’s phone to
call his brother. Christopher then waited for his brother to come get him. While waiting,
he was not talkative as normal and had a blank look on his face. He looked fatigued and
“like he just came from sleeping out in the bushes or something.” His hair was “messed
up.” He had his backpack with him, as he always did.
Michelle testified that, approximately two weeks after Jessica was killed, she
heard S.L. say, about Christina, “ ‘Fucking bitch is telling on me. I know she is.’ ”
Michelle believed Christina had been called in to speak with police multiple times.
S.L. acknowledged knowing, prior to Sunday, March 11, 2012, when she was
interviewed by the police, that the police suspected the Juggalos gang was involved in
Jessica’s death, and she also knew that she had been under suspicion.
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On cross-examination by the prosecution, S.L. testified that she did not kill
Jessica, she was not there when Jessica was killed, she did not orchestrate the killing, and
she did not know beforehand that the murder was going to take place. She was not with
Jessica on the night she was killed. S.L. testified she never beat up Jessica, and was not
angry enough to do so. She also denied saying, when she first learned of Jessica’s death,
“All I did was beat her up.”
Detective Kevin Reali testified that, on Friday, March 9, 2012, he arrested
Christopher on a felony drug warrant. Reali found a knife on the mattress on which
Christopher was lying, and Christopher had another knife in his pocket. One had a fixed,
non-serrated blade and a black handle with black electrical tape around it. A knife with a
handle wrapped in black electrical tape was found in Christopher’s backpack. Reali also
identified several knives which were seized during a search of defendant’s residence. All
of these knives were tested and Jessica’s DNA was not found on any of them.
B. The Prosecution’s Rebuttal Case
Detective Sergeant Paul Belli testified that, on March 7, 2012, Lora D., the mother
of S.L.’s friend Shawn, told him that S.L. had stayed at her house all day Saturday and
Sunday, and that, when Lora woke up on Monday, at approximately 3:30 a.m., S.L. was
still there. Lora told Belli that she was fairly certain that S.L. stayed at her house all day
Monday until approximately 11:00 p.m. S.L. returned to Lora’s house at 10:00 or 11:00
a.m. on Tuesday, and was there until approximately 4:00 p.m.
A clip from a surveillance video from Vince’s Motel, recorded at 12:03 a.m. on
March 6, 2012, was played for the jury. In the clip, a subject wearing a dark jacket and
dark pants can be seen walking up a flight of stairs and past room 225. S.L. said that it
could be her, and Michelle said that it was S.L.
Belli testified that he interviewed Connie and she never told him she had heard
S.L.’s side of a telephone conversation between S.L. and Christopher. Connie also never
told Belli that S.L. sounded upset during that phone call. And Connie never told Belli
65
she heard S.L. say, “ ‘I can’t do this by myself,’ ” or “ ‘I’m at the park,’ ” during that
telephone conversation. Connie also never told Belli that the blanket Christopher
returned to her was not the same blanket as the one she had given him the day before; nor
did she tell Belli that, when Christopher returned the blanket, he was in a panic, was
visibly upset, or said, “ ‘I got to get the fuck out of here.’ ” Belli testified that, when he
looked at Connie’s telephone’s call log, he saw that the phone call between S.L. and
Christopher lasted approximately two or three minutes, in contrast to Connie’s testimony
that the conversation lasted approximately 40 minutes.
Megan Wood testified in rebuttal that, in examining the cigarette butts, S.L. and
Christopher were both excluded as DNA contributors. They were also both excluded as
contributors to the DNA evidence found on Jessica’s belt.
III. Defense Gang Expert Testimony
A. Additional Background
1. Defendant’s Motion
In his in limine motions, defendant sought to admit expert testimony regarding the
Juggalos gang, but abandoned the motion prior to trial. 30 Later during the trial, the
defense renewed its motion after receiving interviews from Connie and Michelle and the
report of its forensic pathology expert, Dr. Curtis Rollins. Defendant emphasized S.L’s
affiliation with the Juggalos and that Jessica had been scheduled for initiation into the
Juggalos on the weekend immediately preceding her death, but she failed to show up for
the initiation. Defendant further asserted that detectives obtained information during the
investigation that several Juggalos were in the park on the night of the murder. He
argued that law enforcement was focused on S.L. and the Juggalos before obtaining the
30 Regarding the abandonment of the motion, counsel told the court, “we don’t think
[S.L.] was involved, this would no longer be applicable.” Counsel also told the court she
did not intend to introduce evidence regarding the Juggalos.
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DNA results. He argued that S.L. was tied to the murder by Michelle’s statement that
S.L. had said she only “beat up” Jessica, Connie’s statement that S.L. asked Christopher
to help her, and S.L.’s Facebook posts indicating the depth to which she was involved in
the Juggalos. Defendant asserted that he had a federal constitutional right to present a
defense and Proposition 8’s Truth-in-Evidence provision entitled him to present all
relevant evidence.
2. Evidence Code Section 402 Hearing – S.L.’s Testimony
The court indicated it “needed to see some evidence and foundation” on the
matter. After S.L. was granted immunity, the court held an Evidence Code section 402
hearing where she provided testimony. Among other things, she testified she was a
Juggalo gang member, acknowledged that certain friends and relatives were Juggalo gang
members, and testified that she knew “a lot” of people who were Juggalos.
After the hearing, the trial court stated that the defense still needed to establish a
connection between S.L.’s gang affiliation and the killing of Jessica. Defense counsel
asked the court to consider the testimony of its forensic pathologist expert, Dr. Rollins,
scheduled for the following day. The defense proffered that the gang expert would testify
that “asphyxiation, coupled with throat stabbing, is the primary activity of the Juggalos
street gang.” The trial court reserved on the issue.
3. Defense Forensic Pathology Expert Trial Testimony
Dr. Rollins had training as a physician and pathologist, doctor of dental science,
and as a police officer. He reviewed Dr. Reiber‘s autopsy report and photographs,
including the autopsy photos. He testified that Jessica sustained three injuries which
could have caused her death.
The first of these injuries was asphyxia. In Rollins’s opinion, this was the
“initiating event.” Rollins testified that either someone sat on Jessica’s chest with
sufficient force to prevent her from breathing, or someone constricted her neck with a
very soft ligature which would not leave a mark. Rollins noted the presence of petechiae,
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or bruising that arises in the case of asphyxia that “pop out all over the face, the eyes, the
lips, and anywhere above the point of pressure,” from the jaw line or neck up. He
believed that, because it is generally expected that the petechiae will appear from the
place where the traumatic pressure occurred and upward, the site of the pressure causing
Jessica’s asphyxia was at the neck rather than the chest. Rollins also noted there were
two or three distinct, nondescript bruises on Jessica’s neck. He testified that a soft
ligature could have left these bruises, particularly “if [Jessica] is trying to remove it or get
her fingers around it to get relief.” Thus, the presence of bruising on Jessica’s neck did
not mean a soft ligature was not used; rather, it could indicate that Jessica was struggling
to take it off.
The second potentially fatal injury was the knife wound to the neck severing the
carotid artery. Rollins opined that this wound “definitely” occurred after the
asphyxiation. According to Rollins, at the time Jessica’s carotid artery was cut, she had
insufficient blood pressure to create arterial spurt, which explained the absence of arterial
spurt at the scene. Therefore, this wound must have occurred after the asphyxia. He
further opined that it was not possible that this stab wound was inflicted simultaneously
with the asphyxia. According to Rollins, there would have been more spurting because
the blood pressure would be higher if this stab wound was inflicted at the same time as
the asphyxia.
The third potentially fatal injury was the skull fracture with internal bleeding of
the brain. Rollins’s opinion, based on “very little bleeding” associated with the skull
fracture, was that this wound also occurred after the asphyxia. Rollins testified that,
given the facts at issue, there were two ways Jessica could have sustained the skull
fracture: either “she was standing, and forcibly struck the back of her head against the
wall, or she was lying on her back, picked up by her shoulders at the waist level and
slammed back onto the floor.” Rollins opined that the latter scenario was more likely.
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According to Rollins, had Jessica been standing, she would have sustained a whiplash-
type injury and thus injury to her neck.
Regarding the small knife wound to the back of Jessica’s neck, Rollins opined that
it was inflicted postmortem. Rollins testified that the wound did not have any color or
redness to it, “which means no heart was beating, no blood going to that area.”
4. Tentative Ruling
The court indicated it had reached a tentative ruling that the gang expert’s
testimony would be admitted. Thereafter, the prosecution requested an Evidence Code
section 402 hearing with the gang expert, emphasizing that there had not been any
Juggalo homicides in Sacramento. The prosecutor questioned what facts the expert
would rely on in concluding that this was a Juggalo homicide, or a homicide made to
look like a Juggalo homicide.
Defense counsel replied that the pathologists disagreed, and that the defense
pathologist concluded that certain wounds were postmortem, which would be consistent
with a Juggalo murder involving “overkill.”
The trial court tentatively decided that the gang expert could testify “as to issues
that are specifically relevant to this case,” but, although he could testify about the
characteristics of Juggalo murders, he would not be permitted to testify that, in his
opinion, this was a Juggalo killing. The court noted, essentially, that its ruling could
change based on the expert’s testimony at an Evidence Code section 402 hearing. The
court added, “[t]here is a foundational issue of whether he can testify at all.”
5. Evidence Code section 402 Hearing – Gang Expert
The proposed defense gang expert was Sacramento Sheriff’s Detective Kenny
Shelton. Shelton was a detective in the gang suppression unit, and the prosecutor
stipulated to his expertise on the Juggalo gang.
Shelton testified that the Juggalos are “a group of social outcasts.” They do not
consider themselves a gang, they consider themselves a family. He testified that “a
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Juggalo is a follower of . . . the horrorcore brand music, primarily the Insane Clown
Posse.” The lyrics of their music “focused primarily in two areas, one being violence,
and the other being sort of a quasi religion.” Shelton characterized the music as
“ultraviolent.”
Shelton estimated there were approximately 40 documented Juggalos in
Sacramento, the majority of which were males. He had “seen numerous Juggalos in
Rosemont,” and had contacted Juggalos there in the past.
Defense counsel asked Shelton if he had seen Juggalo “stabbings or threatening to
stab” in Sacramento, and Shelton responded: “Within Sacramento, typically we don’t see
it. [¶] A lot of our Sacramento Juggalos are kind of more transient. We have had violent
crimes committed by them. I want to say there was one of the type that you reference,
but I couldn’t begin to give you details.” However, Shelton testified he was aware of no
Sacramento homicides “motivated by some sort of Juggalo desire to commit crime,” and
he had never investigated a murder in Sacramento County connected to a Juggalo.
Shelton had studied murders committed by Juggalos outside of Sacramento
County. He had studied “[d]ozens. A couple dozen” such attacks, “primarily in the
Stockton-Modesto area.” And he talked to investigators involved in the Stockton and
Modesto murders. Additionally, he had researched such attacks in the Midwest, in
Illinois, and in Michigan. Based on his research, such murders were exemplified by: (1)
chopping, hacking, or stabbing attacks, and (2) “overkill,” including infliction of wounds
postmortem, or “just excessively assaulting with a chopping or hacking instrument long
after they are dead.” He explained, “a lot of that is going back to the ultimate violent
message within the music.” When asked whether what he meant by “overkill” was
“multiple stabs, multiple hacks,” Shelton responded, “yes” and testified he had not heard
of a Juggalo killing involving “a single stab.” The Juggalo assaults are typically targeted
from the torso, up. Sometimes stabbing in the head and neck is accompanied by
70
asphyxiation, but there is “no direct correlation” with asphyxiation. Shelton was not
asked what the motives were for any of the killings he had researched.
In opining whether a homicide is Juggalo related, Shelton testified he would look
to the typical things he would look for in any gang crime: “[T]he individuals involved.
Members with the Juggalos. The type of killing would lead me to . . . focus in that
direction.”
He testified that he could validate Juggalo gang membership based on S.L.’s
Facebook posts which showed her with a painted clown face and throwing Juggalo gang
signs, texting they “bang” Juggalo, admission of association with other Juggalos, and
understanding the difference between being a follower of Insane Clown Posse music and
a being a gang member.
He testified that initiation into the Juggalos does not involve killing. Nor does it
“entail the extremes that a traditional gang would.”
On cross-examination, Shelton stated that he had not seen the crime scene
photographs of Jessica in this case. Nor had he been asked any hypotheticals related to
the facts in this case.
After Shelton’s testimony, the court asked for clarification on the scope of the
proposed trial testimony. Defense counsel explained she wanted Shelton to testify to (1)
what it means to be a Juggalo, (2) “the role of knives or stabbing instruments” in Juggalo
homicides, and (3) “primarily the role of overkill or postmortem injuries.”
The prosecutor objected to the testimony on Evidence Code section 352 grounds,
asserting that the relevance would be outweighed by the “enormous waste of time for the
jury to go into these areas.” The prosecutor also emphasized that Shelton had not been
provided with any information concerning this case, and was not asked any hypothetical
questions based on the facts of this case. Further, the prosecutor emphasized that
Shelton’s knowledge was not based on Sacramento homicides, but on homicides in other
areas of California and other states. And while Shelton testified that Juggalo killings
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involve overkill, the prosecutor argued such was not the case here. The prosecutor
asserted that Shelton should only be permitted to testify so as to place the other testimony
concerning Juggalos in context and no further.
Defense counsel argued that failing to give full context to the evidence before the
jury concerning Juggalos would not make sense. The fact that Juggalos carry knives
gives S.L. “motive and opportunity.” Counsel argued the stab wound to the carotid was
inflicted “right at death or right before death.” Counsel suggested there was no reason to
inflict that wound and it is an example of overkill. Counsel also argued that the fact there
were three causes of death indicates overkill, and “is characteristic of the Juggalo gang.”
The trial court ruled that it would allow Shelton to testify to define what a Juggalo
is in general. However, under Evidence Code section 352, the trial court refused to allow
Shelton to “go into the murder in this particular case. He doesn’t have any information
about it. He has never investigated a murder himself attributed to a Juggalo, at least in
Sacramento County. He has read and studied about it, but given the fact that he has no
hands-on experience, and given the fact that he isn’t going to be able to offer anything
relative to this case, under 352 it’s going to be an undue consumption of time. It doesn’t
assist the jury in their ultimate responsibility here. So that’s the Court’s ruling.” (Italics
added.)
Defense counsel advised the court she did not provide case materials to Sheldon
for review because the trial court tentatively indicated it would not allow him to give an
opinion about whether Jessica’s murder was a Juggalo killing. Counsel further advised
she could pose a hypothetical which did not require review of case materials. However,
counsel did not ask to reopen the Evidence Code section 402 hearing to allow her to do
so. Instead, counsel announced she was disinclined to call Shelton as a witness, given the
court’s ruling. Ultimately, Shelton did not testify.
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B. Applicable Legal Principles and Defendant’s Contentions
“A person is qualified to testify as an expert if he has special knowledge, skill,
experience, training, or education sufficient to qualify him as an expert on the subject to
which his testimony relates. Against the objection of a party, such special knowledge,
skill, experience, training, or education must be shown before the witness may testify as
an expert.” (Evid. Code, § 720, subd. (a).) “If a witness is testifying as an expert, his
testimony in the form of an opinion is limited to such an opinion as is: [¶] (a) Related to
a subject that is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact; and [¶] (b) Based on matter (including his special
knowledge, skill, experience, training, and education) perceived by or personally known
to the witness or made known to him at or before the hearing, whether or not admissible,
that is of a type that reasonably may be relied upon by an expert in forming an opinion
upon the subject to which his testimony relates, unless an expert is precluded by law from
using such matter as a basis for his opinion.” (Evid. Code, § 801, subd. (b).)
“ ‘The trial court’s determination of whether a witness qualifies as an expert is a
matter of discretion and will not be disturbed absent a showing of manifest abuse.
[Citation.] “ ‘Where a witness has disclosed sufficient knowledge of the subject to entitle
his opinion to go to the jury, the question of the degree of his knowledge goes more to the
weight of the evidence than to its admissibility.’ ” ’ ” (People v. Nelson (2016) 1 Cal.5th
513, 536, (Nelson) quoting People v. Bolin (1998) 18 Cal.4th 297, 321-322 (Bolin).)
Evidence Code section 352 provides: “The court in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.” “Trial courts
enjoy ‘ “broad discretion” ’ in deciding whether the probability of [an Evidence Code
section 352 counterweight] substantially outweighs probative value” and “ ‘a trial court’s
exercise of discretion will not be disturbed except on a showing the trial court exercised
73
its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a
manifest miscarriage of justice.’ ” (People v. Holford (2012) 203 Cal.App.4th 155, 167-
168 (Holford).)
Defendant asserts that the trial court erred in excluding relevant defense evidence
because Shelton was sufficiently qualified to give expert opinion evidence. Defendant
further asserts that Shelton’s testimony would have been relevant to his third party
culpability theory. He contends it was error for the trial court to limit Shelton’s proposed
testimony to “ ‘what a Juggalo is in general’ ” merely because Shelton had not reviewed
case materials and because he did not have “ ‘hands on’ ” experience investigating
Juggalo homicides in Sacramento. He also asserts the evidence established motive and
opportunity for S.L. to commit the murder, and, because the murder was consistent with
overkill murders committed by Juggalos, the testimony provided a motive for the manner
in which S.L. killed Jessica. 31 Defendant maintains that the trial court’s error violated his
state and federal constitutional rights to present a defense, to confront and cross-examine
witnesses, to due process, and to a fundamentally fair trial.
We conclude the basis for the trial court’s ruling was erroneous. We need not
consider other reasons that could have supported preclusion of the testimony because we
conclude any error was harmless.
31 Defendant also argues for the first time in his reply brief that the Juggalo’s “proclivity
toward stabbing, cutting, and hacking victims was crucial to the jury’s understanding of
why, if [S.L.] was involved, she would engage in the type of assault she did to a person
who was arguably her good friend.” This theory of admissibility is forfeited for failure to
assert it in the trial court. “ ‘A party cannot argue the court erred in failing to conduct an
analysis it was not asked to conduct.’ ” (Holford, supra, 203 Cal.App.4th at p. 169
[concluding defendant forfeited argument the trial court could have sanitized evidence
based on his Evidence Code § 352 objection because defendant failed to suggest to the
trial court a specific evidentiary alternative].)
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C. Analysis
As stated ante, “[a] person is qualified to testify as an expert if he has special
knowledge, skill, experience, training, or education sufficient to qualify him as an expert
on the subject to which his testimony relates.” (Evid. Code, § 720, subd. (a).) “ ‘The
subject matter of the culture and habits of criminal street gangs . . . meets this criterion.’ ”
(People v. Cornejo (2016) 3 Cal.App.5th 36, 53, quoting People v. Gardeley (1996) 14
Cal.4th 605, 617 (Gardeley), disapproved on another ground in People v. Sanchez (2016)
63 Cal.4th 665.) Given the prosecutor’s stipulation, Shelton’s qualifications and
expertise were not at issue. The remaining, related issues were whether there was a
sufficient foundation for Shelton’s proposed testimony and whether that testimony would
have been relevant.
We agree with defendant that Shelton’s proposed testimony, beyond the mere
definition of what a Juggalo is, had some “tendency in reason to prove or disprove any
disputed fact that is of consequence to the determination of the action” and was thus
relevant. (Evid. Code, § 210.) He could have testified about the general nature of
Juggalo killings. In light of the evidence before the trial court establishing a connection
between Jessica, S.L., and the Juggalo gang, and evidence that the Juggalos customarily
congregated in the park, Dr. Rollins’s testimony and Shelton’s proposed testimony
concerning the nature of Juggalo killings, Shelton’s testimony could have some tendency
in reason to prove defendant’s theory of the case. (See Evid. Code, § 210.)
It is well established that gang culture and habits are matters about which a gang
expert may testify. (Gardeley, supra, 14 Cal.4th at p. 617.) The source of such
information might include “conversations with gang members . . . the expert’s personal
investigation of past crimes by gang members and information about gangs learned from
the expert’s colleagues or from other law enforcement agencies.” (People v. Vy (2004)
122 Cal.App.4th 1209, 1223, fn. 9, italics added.) The basis for expert testimony could
come from other sources as well, such as articles and publications on the subject. (Evid.
75
Code, § 801, subd. (b) [in forming their opinions, experts may rely on material of a type
that is reasonably relied upon by experts in the particular field].) Hands on experience is
not necessarily required. The absence of such experience goes to the weight, not the
admissibility of the testimony. (Nelson, supra, 1 Cal.5th at p. 536; Bolin, supra, 18
Cal.4th at pp. 321-322.)
Yet, the trial court ruled the testimony inadmissible under Evidence Code section
352, finding that Shelton’s testimony would result in an undue consumption of time
because Shelton had no case-specific information, never himself investigated a Juggalo
murder, had only read and studied about Juggalo murders, had “no hands-on experience,”
and was not going “offer anything relative to this case.” Not only was Shelton qualified
to testify about the nature of Juggalo murders, but presentation of evidence that goes to
“the heart of the defense” generally does not represent an “undue” consumption of time.
(People v. Minifie (1996) 13 Cal.4th 1055, 1070.) 32
We conclude that the probative value of Shelton’s testimony was not substantially
outweighed by the probability that its admission would necessitate an undue consumption
of time. As defendant notes, Shelton’s Evidence Code section 402 testimony was not
unduly time consuming, and there is little reason to believe that his trial testimony would
32 On appeal, defendant asserts Shelton could have offered an opinion based on a
hypothetical question. We agree that experts may offer such opinions. “ ‘ “Generally, an
expert may render opinion testimony on the basis of facts given ‘in a hypothetical
question that asks the expert to assume their truth.’ [Citation.]” ’ [Citation.] ‘ “Such a
hypothetical question must be rooted in facts shown by the evidence . . . .” ’ ” (People v.
Ewing (2016) 244 Cal.App.4th 359, 382, quoting People v. Vang (2011) 52 Cal.4th 1038,
1045, 1047, 1048.) Consequently, here it was theoretically possible Shelton could have
offered an opinion to whether a hypothetical situation mirroring certain facts of this case
was consistent with a Juggalo killing. However, defendant never posed such a question
to Shelton during the Evidence Code section 402 hearing. Nor did he request to reopen
the hearing to allow him to do so. Consequently, his contention on appeal as to this point
is forfeited. Again, “ ‘[a] party cannot argue the court erred in failing to conduct an
analysis it was not asked to conduct.’ ” (Holford, supra, 203 Cal.App.4th at p. 169.)
76
have been significantly more involved. Moreover, in the context of this case, the number
of witnesses, and the duration of trial, we conclude that Shelton’s proposed testimony
would not have consumed an undue amount of time. In light the relatively short amount
of time Shelton’s testimony would have taken, we conclude the probative value of the
evidence here was not substantially outweighed by the danger that such evidence would
have been unduly time consuming or, for that matter, by the substantial danger of any
other Evidence Code section 352 counterweight.
Based on the foregoing, we agree with defendant that the trial court abused its
discretion in limiting Shelton’s proposed testimony solely to defining what a Juggalo is.
D. Prejudice
Asserting that the trial court’s ruling violated his rights under the federal and
California Constitutions to present a defense, to confront and cross-examine witnesses, to
due process, and to a fair trial, defendant asserts that prejudice must be evaluated under
the standard for federal constitutional error established in Chapman v. California (1967)
386 U.S. 18 [17 L.Ed.2d 705] (Chapman). Under Chapman, “ ‘[t]he reviewing court
must reverse the conviction unless, after examining the entire cause, including the
evidence, and considering all relevant circumstances, it determines the error was
harmless beyond a reasonable doubt.” (People v. Aledamat (2019) 8 Cal.5th 1, 3.)
However, Chapman applies in the context of state evidentiary error only when the error
completely deprives a defendant of a “ ‘meaningful opportunity to present a complete
defense.’ ” (People v. Xiong (2020) 54 Cal.App.5th 1046, 1071-1072, citing Crane v.
Kentucky (1986) 476 U.S. 683, 690 [90 L.Ed.2d 636].) And “[a]pplication of the
ordinary rules of evidence, such as Evidence Code section 352, generally does not
deprive the defendant of the opportunity to present a defense.” (People v. Snow (2003)
30 Cal.4th 43, 90; People v. Hamlin (2009) 170 Cal.App.4th 1412, 1450.) Here,
defendant presented evidence supporting a third party culpability defense as to S.L.,
Christopher, and the Juggalos. Therefore, Chapman does not apply.
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“We review errors in the application of the ‘ordinary rules of evidence’ such as
Evidence Code section 352 under the standard set forth in” People v. Watson (1956) 46
Cal.2d 818, 836 (Watson). (People v. Ghebretensae (2013) 222 Cal.App.4th 741, 750.)
Under Watson, we determine whether it is reasonably probable that, but for the error, the
jury would have reached a result more favorable to defendant. (Watson, at pp. 835-836.)
“[T]he Watson test for harmless error ‘focuses not on what a reasonable jury could do,
but what such a jury is likely to have done in the absence of the error under consideration.
In making that evaluation, an appellate court may consider, among other things, whether
the evidence supporting the existing judgment is so relatively strong, and the evidence
supporting a different outcome is so comparatively weak, that there is no reasonable
probability the error of which the defendant complains affected the result.’ ” (People v.
Beltran (2013) 56 Cal.4th 935, 956 (Beltran), some italics added.)
Looking first at the evidence supporting a different outcome, we conclude it is
weak relative to the evidence supporting defendant’s guilt. We first note that, while the
evidence is clear S.L. was a Juggalo gang member, defendant proffered no evidence
establishing a gang-related motive for Jessica’s murder. Nor was there any evidence
whatsoever that Christopher was a Juggalo member or otherwise associated with the
Juggalos.
Defendant argues that the manner of killing was consistent with overkill
characteristic of Juggalo murders. There is no doubt that Jessica was brutally murdered,
but she sustained no chopping or hacking injuries. She had only two stab wounds and
only one was fatal.
Defendant bases his Juggalo murder theory on Dr. Rollins’s testimony about the
order in which the wounds were inflicted and his opinion about when they were inflicted
relative to death. But evidence presented in the prosecution’s case-in-chief and rebuttal
severely undermined Rollins’s testimony. Dr. Reiber, who actually performed the
autopsy testified that he had done over 9,700 autopsies and testified over 600 times, in 30
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different California counties. He testified that, in performing Jessica’s autopsy, he
considered whether asphyxia was caused by soft ligature. He concluded that there was
no direct evidence to lead to that conclusion, whereas there were indicators consistent
with chest compression asphyxia. Reiber emphasized that there was no sign of injury to
Jessica’s neck, externally or internally, that could have been caused by ligature. He
testified that, if Jessica had been strangled with a soft ligature, he would have expected to
have found injuries to the strap muscles that sit on top of the upper trachea and the voice
box and he did not find any such internal injuries.
Regarding the petechial hemorrhaging purportedly limited to Jessica’s face, Reiber
testified that the face is most susceptible to petechial hemorrhaging regardless of where
the compression occurs. He explained that, based on his experience of having performed
hundreds of autopsies on strangulation victims, “facial petechial hemorrhages from a
ligature strangulation are actually very unusual, because strangulation usually closes off
the arteries as well as the veins.” Regarding ligature strangulation, he explained: “If you
do see the little pinpoint hemorrhages, most often you only see them in the lining of the
eyelids and the whites of the eyes. You rarely will see very many on the face. You may
get some, but it’s not that common.” Reiber also noted the small bruises on Jessica’s
shoulder blades, “which would be the kind of injuries that could result from her being
basically pinned on the concrete slab of the dugout with someone sitting on her chest.”
Reiber also noted that there were, in fact, petechial hemorrhages on Jessica’s neck.
Reiber testified that there was nothing about the bruises to Jessica’s lower face and
on the left side of her neck that suggested to him that they resulted from soft ligature.
With regard to the bruises on the lower part of Jessica’s jaw, Reiber testified that they
were not consistent with soft ligature because they were bruises more than the abrasions
Reiber would expect to see from a soft ligature event. Reiber believed that these bruises
resulted from the attacker’s hands and fingers “controlling [Jessica’s] head to get it out of
the way for the stabbing instrument to have access to the neck.”
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Reiber testified that the large stab wound to the neck was “very definitely a
before-death injury.” He emphasized that the “tissues that have been stabbed through are
noticeably bloody,” and that “[e]verything is reddened here.” Reiber also testified that
Jessica’s substantial blood loss was consistent with a wound that was inflicted while she
was alive.
Reiber “complete[ly] disagreed” with the premise that the blunt force trauma
injury to the back of Jessica’s head occurred postmortem. He emphasized that the
outside of Jessica’s scalp was bruised, the internal layer of her scalp was bruised, and
there were several areas of subdural bleeding inside the skull. Additionally, there was “
‘subarachnoid bleeding’ around the rear of the left hemisphere of the brain, which . . .
you absolutely do not see happening in an injury that is after death.” There were several
areas of bruising of the brain. Reiber testified that “[y]ou don’t get bruising of the brain
after death, so the head injury is absolutely, no question about it, prior to death. And
potentially it could have been the first injury that occurred in the sequence of events.”
Reiber testified that the evidence did not support the hypothetical that Jessica was
first strangled with a ligature, died or was close to death, and then sustained a head injury
as the last injury sustained. If this was the case, according to Reiber, neither the stab
wound nor the head wound would have resulted in so much blood loss.
Addressing what he believed to be the order in which the injuries were inflicted,
Reiber testified: “most likely head injury first. She either falls or is taken down to the
concrete slab of the dugout, and then someone is sitting on her chest. So the asphyxia
mechanism is in play. It’s in progress while the stab wound is occurring. [¶] I think
those two overlap. In my timeline they would overlap. And based on the blood loss, I
think that the stab wound is probably the most important in terms of causation of death.
And the asphyxia and the head injury of course contributed -- the asphyxia probably
significantly, based on how flushed her face was.”
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Regarding blood loss, Reiber, who had been to the scene, testified that there was
blood pooling under both Jessica’s head and neck. Regarding the lack of arterial spurting
from the lethal stab wound to the neck, Reiber opined this could be due to the
compression on the chest, which would decrease the amount of blood flow to the neck.
Also, he noted that Jessica had on multiple layers of clothes that were over the wound
and could have “dampened any potential arterial spurt.”
Reiber “[c]ompletely disagree[d]” that the small stab wound to the back of
Jessica’s neck was inflicted postmortem. He characterized it as “clearly antemortem.”
Reiber relied on the fact that there was “obvious reddening of the edges. You can see
very clearly that this wound is reddened.” According to Reiber, a postmortem wound
will be completely pale “because the person is dead, and the small nerves that cause those
vessels to dilate aren’t functioning anymore.” Reiber testified there was “[n]o question
about it.”
Given the opinion of the person who actually performed the autopsy that there
were no postmortem injuries, defendant’s attempt to show this was a Juggalo overkill
murder was significantly undermined.
Defendant also sought to show that Juggalos carry knives by Shelton’s testimony.
Shelton testified in the Evidence Code section 402 hearing that Juggalo weapons include
“large chopping, hacking, or stabbing instrument[s], . . . machetes, axes, hatchets, large
knives. These are predominately the weapons that they carry when they carry them.”
(Italics added.) Shelton never testified all Juggalo gang members carry such instruments.
Consequently, his testimony did not go very far in establishing S.L. had the “opportunity”
to commit the murder as a knife-carrying Juggalo. Moreover, the evidence clearly
established that defendant habitually carried knives, so Shelton’s testimony would not
have been materially helpful on the point defendant sought to make about S.L.
Connie and Michelle made prior statements materially inconsistent with their trial
testimony. Connie did not tell the detective who interviewed her that she had heard
81
S.L.’s side of the telephone conversation with Christopher, that S.L. sounded upset
during that phone call, or that she heard S.L. say, “ ‘I can’t do this by myself,’ ” or “ ‘I’m
at the park,’ ” during that telephone conversation. Nor did she tell him that the blanket
Christopher returned was not the same blanket she gave him the day before or that, when
he returned the blanket, he was in a panic, was visibly upset, or said, “ ‘I got to get the
fuck out of here.’ ” She claimed the phone call was 40 minutes long, when her phone log
showed it was two to three minutes in duration. Regarding the blanket that was
purportedly not returned, there was no physical evidence at the crime scene indicating a
blanket was used for anything. Surveillance video from Vince’s Motel showed a male,
identified as Christopher, walking east from the area of one part of the motel to another at
8:16 p.m. on March 5, 2012, and walking west from one area of the motel to another at
10:20 a.m. the following morning. In both instances, he carried a bundle under his left
arm. S.L. identified the person in the latter clip as Christopher. Our independent viewing
of the video clips reveals that the individual in the latter clip does not appear in a hurry
and does not appear outwardly frantic or agitated. A district attorney investigator
testified that no one matching that person’s description can be seen leaving the property
of Vince’s Motel carrying a bundle similar to what is seen in the those clips between
those times.
As for Michelle, she never told the police S.L. said she had “only beat her up.”
Both Connie and Michelle were methamphetamine users.
S.L. did not have a phone so she could not have called from the park. S.L.
testified she called from Shawn’s phone and Connie’s phone indicated the call came from
Shawn’s phone. From this, a reasonable jury could infer S.L. was not at the park when
she made the call.
A detective testified that Shawn’s mother Lora, after originally being untruthful,
reached out to him and told him that S.L. was at her house until approximately 11:00 p.m.
that night. Connie testified that she saw S.L. at Vince’s Motel at approximately 11:00
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p.m. The distance between Lora’s house and the motel is approximately a fifteen-minute
walk. Surveillance video captured S.L. at Vince’s Motel at 12:03 a.m. on March 6, 2012.
S.L. and Christopher were both excluded as DNA contributors regarding the
cigarette butts. Importantly, they were also both excluded as contributors to the DNA
evidence found on Jessica’s belt.
Turning now to the evidence supporting the judgment, we conclude it was indeed
strong. Defendant and his friend J.M. talked to Jessica at the park that evening, so
defendant knew she was there alone. M.K. testified that defendant showed J.M. a folding
knife while they were at the park. J.M. and his kids left the park when it was getting dark
according to J.M., or at 7:00 or 8:00 p.m. according to M.K. Defendant left at the same
time, but by a different route. Jessica remained where she was on the swings. Between
8:00 and 9:00 p.m., two residents who lived near the park heard an unusual scream
coming from the park.
Jessica’s body was discovered in a dugout in the park the following morning. A
number of Camel cigarette butts located inside and in the immediate area of the dugout
were consistent with a pack of Camel cigarettes near Jessica. One cigarette butt
contained DNA consistent with Jessica’s DNA. Two cigarette butts contained DNA
consistent with defendant’s DNA and inconsistent with Jessica’s. At least five cigarette
butts contained a mixture of DNA consistent with Jessica’s and defendant’s DNA
profiles, albeit to varying degrees of likelihood. Contrary to defendant’s statement to the
detectives that he was known for smoking “refi’s,” J.M. and Salvador both testified that
they never saw defendant pick up discarded cigarette butts and smoke them. And a
mixture of DNA was discovered on Jessica’s belt buckle, with the major contributor
profile consistent with Jessica’s DNA profile and, based on six alleles, the minor
contributor profile consistent with defendant’s DNA profile.
Given the DNA evidence, it is clear defendant withheld information about
spending additional time with Jessica when talking about the murder with his friends the
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next day. Defendant did not disclose to J.M. or to Salvador that he had returned to the
park after leaving when J.M. and his children left.
And despite the testimony of J.M. and his children showing that defendant met
and conversed with Jessica in the park, and defendant’s admission to Salvador that he had
met Jessica, defendant repeatedly denied to detectives that he had ever met her. He also
denied smoking cigarettes with Jessica or ever being in the dugout. Defendant even
denied that he had been in the park. A jury could reasonably infer that these lies reflected
consciousness of guilt.
In light of the foregoing evidence, we conclude it is not reasonably probable that,
had the court not limited Shelton’s testimony, defendant would have received a better
result. Therefore, we conclude that the error in limiting his testimony was harmless.
(Watson, supra, 46 Cal.2d at p. 836.)
Defendant argues we should factor into our harmless error analysis the time it took
the jury to arrive at a verdict. While we recognize that in some cases our Supreme Court
has inferred a close case from unduly lengthy deliberations we decline to do so under the
facts of this case. As the court reasoned in People v. Walker (1995) 31 Cal.App.4th 432,
“[t]o do so in the absence of more concrete evidence would amount to sheer speculation
on our part. Instead, we find that the length of the deliberations could as easily be
reconciled with the jury’s conscientious performance of its civic duty, rather than its
difficulty in reaching a decision.” (Id. at pp. 438-439.)
Indeed, that the jury here deliberated over six days 33 in a trial that involved 11
days of testimony from 50 witnesses and over 500 exhibits, including recorded interviews
33 The parties state that the jury deliberated over 7 days. However, the jury commenced
deliberations on Monday, September 14, 2015, deliberated daily through Friday,
September 18, and rendered its verdict following additional deliberations early Monday
afternoon, September 21.
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and video surveillance recordings is not surprising. Moreover the six days of
deliberations included eight readbacks and three requests for clarifications.
Looking not to what a reasonable jury could have done, but rather what such a jury
is likely to have done in the absence of the evidentiary error (Beltran, supra, 56 Cal.4th at
p. 956), we conclude the length of the jury deliberations does not undermine our
determination that there is no reasonable probability the evidentiary error here affected
the result. (Watson, supra, 46 Cal.2d at p. 836.)
IV. Demonstrative Evidence
A. Additional Background
1. Trial Evidence Concerning the Gate Leading into the Dugout
The little league coach testified on cross-examination he recalled telling an
investigator that the way the dugout was locked, his son, who was 85-pounds or smaller,
could have gotten through the gate, but he, at five feet eight inches and 230 pounds, could
not have.
On cross-examination, the woman who discovered Jessica’s body estimated that
the size of the opening in the locked gate leading into the dugout was a foot to a foot and
a half, and she testified that she did not think she could have easily fit through the
opening without touching anything. She was five feet four inches tall “but . . . wouldn’t
say [she was] slight.”
On cross-examination, Deputy Kevin Childs acknowledged that, in performing his
measurements at the crime scene, he did not measure the width of the locked gate
opening leading into the dugout. He also acknowledged that, while he assumed a
detective had measured the opening, he should have done so. Childs also acknowledged
the difficulty in judging the size of the opening from photographs, but he estimated the
size of that opening as being 14 inches. Asked if he observed anyone at the crime scene
passing through that opening, Childs responded that he did not, and agreed that it would
be improper to do so because it could disturb the crime scene.
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Sergeant Tamara Mickelson testified she might be able to enter the gate opening
leading into the dugout without disturbing the gate if she took all of her gear off, although
she then stated, “I can’t say. I don’t know.” She subsequently testified that she probably
would not have been able to enter the dugout through the gate opening without touching
the sides. Mickelson was five feet six inches tall and 125 pounds.
Detective Clark examined the gate leading into the dugout. Clark noted in his
report that the opening in the gate was at least 16 inches. He further noted that it “ ‘was
clear that someone of average or smaller size could fit in.’ ” Clark asked someone to
measure the opening, but, to Clark’s knowledge, it was not measured. Clark believed
that, over the course of the approximately eight hours he was at the scene, two people
went into the dugout.
Detective Sergeant Belli acknowledged that, at the scene, he entered the dugout
while it was still locked. Belli testified that the opening, even with the chain lock on it,
was wide enough that he could turn sideways and enter the dugout. Belli testified that he
did not disturb any shoeprints on the ground. He further testified that he was wearing
gloves at the time, and he took care to avoid leaving any of his DNA or fingerprints on
any surfaces. Asked about the purpose of entering the dugout while it was still locked,
Belli testified that he had intended to “survey the scene, see if I could locate any
evidence, and then also to get an idea of what the scene actually looked like.” Belli
testified that, as far as he knew, he did not disturb anything when he entered and exited
the dugout.
Belli testified that he was six feet tall and weighed 215 pounds at the relevant
time. He acknowledged that, when he entered the dugout through the gate, he touched
the surrounding surfaces with his hands. He could not recall whether he also touched the
surfaces with his body. Belli further acknowledged that he did not tell anyone that he had
entered the dugout before it was unlocked until August 24, 2015, approximately three and
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a half years after the fact. Belli acknowledged that there was no emergency that required
him to enter the dugout before the poles and the gate had been searched for fingerprints.
Detective Turnbull testified that he also entered the dugout while it was still
locked. He, too, wore gloves when he did so. Turnbull testified that he was
approximately five feet 11 inches tall and weighed 230 pounds at the time. On cross-
examination, he testified that he did not believe that he disturbed any evidence in entering
the dugout. He testified that he was able to enter the dugout without touching the pole,
the chain, or anything else of evidentiary value.
Deputy Chad Kato attempted to obtain latent fingerprints from the chain link gate
at the entry of the dugout. Kato found no latent prints. He did not perform any analysis
on the chain that secured the gate to a vertical post, but he did look for latent prints on
both vertical posts. However, by the time Kato performed his analysis, the gate had
already been opened. Kato did not process these surfaces for DNA material.
2. Defendant’s Proposed Demonstrative Evidence
Before the defense began presenting its case, the prosecution objected to proposed
defense testimony of Paul Schindler, the defense’s private investigator, on the grounds of
relevance. According to the prosecutor, Schindler had gone to the baseball diamonds at
the park and measured the width of the opening of an outer gate, as opposed to an inner
dugout gate, and, based on his measurements, the defense purchased a chain.
Defense counsel argued that a “constant issue” in this case was whether defendant
“is in the group of people included as those who could enter the dugout.” Defense
counsel further noted that the size of the opening of the locked gate into the dugout was a
contested issue. According to the defense, Schindler had obtained “an identical chain.
He’s measured it. He’s measured a larger fence.” Addressing the fact that the defense
had not measured “the inner gate,” the defense explained it did not have access to that
gate. Defense counsel characterized the salient issue as how wide and tall the opening
was, and further asserted that Schindler would be able to testify as to those matters.
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The trial court inquired as to the relevance of Schindler’s proposed testimony in
light of the fact that “very large men have freely admitted getting through whatever the
size of the opening is.” Defense counsel responded she did not believe the detectives’
testimony that they entered the dugout through the locked gate without touching
anything. Defense counsel emphasized that the detectives’ representations in this regard
did not arise until trial.
The prosecutor objected to the representation that the facsimile chain was identical
to the chain at issue, asserting that there was nothing in Schindler’s report stating as
much, and it was not clear how Schindler could arrive at such a determination. The
prosecutor asserted that the outside fence, which provided access to the baseball diamond
itself, was not at issue in the case. According to the prosecutor, none of the photographs
proffered by Schindler shed any light on the size of the opening of the inner gate which
provided access to the dugout. The prosecutor noted that the inner gate “has been
replaced. It’s not even the same gate as it was back in 2012.”
Defense counsel responded that Schindler would testify that all of the chains, with
the exception of the newly replaced chain, were identical, and he measured and
photographed them. Defense counsel acknowledged that the dugout where Jessica was
killed had been replaced and, therefore, the defense was unable to “recreate it on that
dugout.” However, according to defense counsel, “the other side was not replaced, and
remains exactly as it was, and was an identical matching pair.” Thus, according to
defense counsel, “we are able to look at a gate that was exactly the same as the one that
they have now taken away.” Defense counsel continued: Schindler “didn’t measure the
outside gate next to where they entered, the police entered. It was another very similar
gate with the chain wrapped around it, which you can see in the exhibits. It was in
looking at that the second time that he looked and said, oh, gee, this one is a little bit
taller than the one on the inside.” Defense counsel further asserted that the defense was
not offering Schindler as an expert. Asked whether it was the defense’s position that the
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detectives did not enter the locked gate, despite the fact that defense counsel cross-
examined them extensively on their judgment in doing so, defense counsel responded:
“My position then was they never did it in the first place. I don’t think any competent
investigator in this county and the state would ever do what they say they were doing. [¶]
I say they would do it to include [defendant] as a [person] who could have gotten in the
fenced area, and thus committed the crime. [¶] They never have said this. They’ve been
questioned for hundreds of pages in the preliminary hearing. Clearly, the implication was
my client was larger and could not get in.”
The court inquired of defense counsel how it could be determined that the chain
used by the defense was the same size as the one that had locked the dugout gate.
Defense counsel responded that trial testimony established that 11 links in the chain on
the dugout measured 14 inches, which was consistent with the chain furnished by the
defense. The court responded: “if that’s true, then we have evidence already as to what
the gap would be.” Defense counsel asserted that the gap would actually be a bit larger,
and further asserted that the proposed evidence was also relevant to the height and depth
of the opening. Defense counsel asserted that the proposed evidence was relevant to
show: (1) that it would be difficult or impossible for someone of defendant’s size to get
through the opening, and (2) that law enforcement was willing to make false statements
to prosecute defendant. 34 Defense counsel asserted that the detectives either lied about
getting through the gate opening, or destroyed evidence in the process.
34 As the Attorney General points out, there was no evidence in the trial indicating
defendant’s height and weight on the day of the murder. Defendant asserts that testimony
of one of the detectives, who appellate counsel characterizes as “recalcitrant,” agreed
defendant was five foot ten inches. Defendant further argues that defendant was seated at
counsel table “so the jury could visually see for themselves how big he was.” At best,
our review of the trial record establishes defendant’s height and build was characterized
as “average” at the time of trial. But defendant’s size at the time of arrest or when the
jury observed him in trial did not establish his height and weight in 2012. The defense
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The prosecutor asserted that there was no evidence to establish that the chain
offered by the defense was the same as the chain on the gate in 2012. The prosecutor
further asserted that Schindler would have no greater expertise than anyone else to opine
as to whether or not defendant could have fit through the opening in the gate. According
to the prosecutor, a significant amount of time had already been devoted to evidence
regarding the size of the gate opening, and “[w]hatever points the defense wished to
make on this have been made, and on the grounds of [Evidence Code section] 352, if
nothing else, it is time to move on.” The prosecutor asserted that “we are going well
beyond the grounds of relevance here. It’s irrelevant. To the extent that there is any
slight relevance to it whatsoever, under 352 we have spent enough time on this issue.”
3. The Trial Court’s Ruling Excluding the Evidence
The trial court ruled: “under 352 we’ve beat this horse to death over what that
opening width is. The prosecution witnesses have testified already consistently with
what Mr. Schindler would testify to if given the opportunity. We are just wasting time.
[¶] As far as the height of that gate or that chain, it’s been apparent from the
photographs. The jury will either believe or disbelieve that somebody the size of these
detectives could fit through.”
B. Defendant’s Contentions
Defendant asserts that the trial court erred in excluding evidence regarding the
gate and entry into the dugout that would have impeached law enforcement testimony
and raised an inference of a tainted crime scene. Defendant emphasizes that Belli (six
feet tall, 215 pounds) and Turnbull (5 feet 11 inches tall, 230 pounds) testified that they
could squeeze through gate opening without touching the pole or chain. According to
defendant, the implication of their testimony was that, if they could get in, so could
did not establish through witnesses who knew defendant -- for example J.M. or Salvador
-- defendant’s height and weight in 2012 or whether his size during trial was consistent
with his size back then.
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defendant. However, defendant maintains that other evidence suggested someone the
size of Belli or Turnbull either could not have gotten through the opening, or could not
have done so without tainting the crime scene by wiping away evidence. Defendant
asserts that the proposed demonstrative evidence was relevant to impeach the detectives’
testimony by showing they could not have gotten through the gate. He further asserts that
this demonstrative evidence was not cumulative because it had greater evidentiary weight
and probative value than the evidence already before the jury relevant to this subject.
C. Applicable Principles of Law
“ ‘Demonstrative evidence is evidence that is shown to the jury “as a tool to aid
the jury in understanding the substantive evidence.” ’ ” (People v. Vasquez (2017) 14
Cal.App.5th 1019, 1036.) “Common examples of demonstrative evidence include ‘maps,
charts, and diagrams’ [citation], all of which ‘illustrate a witness’s testimony.’ ” (Ibid.)
“Demonstrative evidence is ‘not offered as substantive evidence, but as a tool to aid the
jury in understanding the substantive evidence.’ ” (Id. at pp. 1022-1023.)
“To be admissible, demonstrative evidence must satisfy two requirements: first
the evidence must be a reasonable representation of that which it is alleged to portray;
and second, the evidence must assist the jurors in their determination of the facts of the
case, rather than serve to mislead them.” (People v. Rivera (2011) 201 Cal.App.4th 353,
363 (Rivera).) “The demonstration must . . . ‘ “have been conducted under at least
substantially similar, although not necessarily absolutely identical, conditions as those of
the actual occurrence.” ’ ” (Ibid.) “ ‘ “Within these limits, ‘ “the physical conditions
which existed at the time the event in question occurred need not be duplicated with
precision nor is it required that no change has occurred between the happening of the
event and the time” ’ ” ’ of the reenactment.” (Ibid.) A trial court’s decision to admit
demonstrative evidence is reviewed for abuse of discretion. (People v. Duenas (2012) 55
Cal.4th 1, 21 (Duenas).)
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D. Analysis
We conclude that the trial court did not abuse its discretion in precluding this
demonstrative evidence. As the People emphasize, defense counsel at trial acknowledged
that the measurements Schindler made, and which he proposed to reproduce in
demonstrative evidence for the jury, were not made of the gate to the dugout where
Jessica was killed, but rather a different gate within the park. Defendant acknowledges as
much on appeal, although he asserts that the gate Schindler measured was “illustrative”
of the gate to the dugout where Jessica was found, and that the differences could have
been explained to the jury. However, we conclude that demonstrative evidence
concerning the dimensions of a different gate and a different chain creating a different
opening were not sufficiently relevant to the size and shape of the opening to the dugout
where Jessica was killed. Defendant failed to make a sufficient showing that the
proposed demonstrative evidence was a “reasonable representation of that which it is
alleged to portray.” (Rivera, supra, 201 Cal.App.4th at p. 363.)
In his reply brief, defendant relies on People v. McDaniel (1976) 16 Cal.3d 156(McDaniel) for the proposition that “such models in the form of demonstrative evidence
need not be built to ‘scale’ or even be the same as the object in question.” In McDaniel,
the defendant appealed from a judgment convicting him of, inter alia, assault with intent
to commit murder (former § 217). (McDaniel, at p. 162.) The victim was returning to
his house trailer with another person, and, when that other person began to open an inner
screen door to the trailer, the trailer exploded from within, causing both men to sustain
severe injuries. (Id. at pp. 163-164.) At trial, the prosecution was allowed to present
evidence in the form of a model bomb prepared by an expert witness. (Id. at p. 174.)
“The model illustrated how it would be possible by applying pressure to a triggering
device to cause an electrical circuit to close and a dynamite cap to detonate, in turn
detonating a charge of dynamite. Neither a cap nor dynamite was used in the model, and
an electric lamp was used to demonstrate the closing of the electrical circuit when force
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was applied to the triggering device.” (Ibid.) The expert testified that “the model he had
prepared and the triggering device he had used were not intended to illustrate the
mechanism which was actually used to detonate the charge of dynamite in the instant
case.” (Ibid.) There was evidence presented at trial that the defendant had borrowed a
clothespin from someone the day before the explosion. (Id. at p. 175.) When the
defendant objected to the use of a clothespin as the model bomb’s triggering device, the
expert stated that a clothespin was only one of a number of devices which he could have
used, he did not know what triggering device was actually used, and that he used a
clothespin only because it was readily available. (Id. at pp. 174, 175.)
On appeal, the defendant asserted that the prosecution had failed to establish that
the model bomb was “substantially and approximately a model of the type which was
exploded in the house trailer,” and therefore the trial court committed prejudicial error in
permitting the prosecution to present that evidence. (McDaniel, supra, 16 Cal.3d at
p. 174.) In affirming the judgment, the McDaniel court concluded: “Defendant’s
contentions of undue prejudice by the prosecution’s utilization of the model is not
supported by the record. The role of the clothespin was not emphasized, and the court
carefully kept the use of the model and implications therefrom in proper perspective.
There was no abuse of discretion in permitting the use of the model under the conditions
imposed by the court. [Citations.] Defendant’s further contention that the prosecution
failed to establish a proper foundation for admission of the model is not only without
merit, but also cannot be urged by defendant for the first time on this appeal.” (Id. at
p. 175, fn. omitted.)
McDaniel does not support defendant’s contention. The prosecution sought to
introduce evidence to demonstrate how an electrical circuit can be closed by a triggering
device, causing a dynamite cap to detonate, in turn causing the bomb to explode.
(McDaniel, supra, 16 Cal.3d at p. 174.) The model employed in McDaniel did exactly
that. This demonstrated how the bomb used in the crime may have functioned. Here,
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defendant did not seek to prove by demonstrative evidence, for example, how a chain and
padlock can keep a gate locked, or that a locked chain with sufficient links can leave a
gap between the two upright posts around which it is fastened. Instead, defendant here
sought to prove the dimensions of the opening in the gate leading into the dugout where
Jessica was killed. He could not do this by using demonstrative evidence relevant to
another chain on another gate creating another opening in another part of the park. In his
reply brief, defendant asserts that the proposed evidence “was illustrative of the type of
gate and entryway to the dugout where [Jessica] was found.” This may be true as far as it
goes, and such a proposition may have been supported by McDaniel, in which the
prosecution sought to prove how the bomb may have functioned. However, here, the
defense was not attempting to establish “the type of gate and entryway to the dugout” at
issue. The defense was attempting to (1) establish the dimensions of the opening in the
locked gate leading into the dugout where Jessica was found to establish that defendant
could not have entered through the opening, and (2) impeach the testimony of Belli and
Turnbull by establishing either that they could not have passed through the gap or they
corrupted the crime scene and destroyed evidence in the process of squeezing into the
dugout. In either case, defendant needed to establish not the type of gate involved, but
the precise dimensions of the opening in this particular gate, which, the parties agree, no
longer exists. A model or facsimile of a different gate was not relevant to this purpose.
A trial court properly applies Evidence Code section 352 in considering whether to
admit demonstrative evidence. (Duenas, supra, 55 Cal.4th at p. 24 [no abuse of
discretion in applying Evid. Code, § 352 to admission of demonstrative evidence].)
In precluding the proposed evidence, the trial court essentially ruled that the evidence
was cumulative and would require an undue consumption of time.
As the People assert, a number of witnesses testified as to the size of the gate
opening leading into the dugout, with their estimates ranging between 14 inches and 20
inches, several photographs were submitted into evidence depicting the locked gate and
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the opening leading into the dugout, and several witnesses testified as to whether or not
they could or did fit through that opening. Under these circumstances, and particularly in
light of the lack of relevance and thus lack of probative value of the proffered evidence,
we conclude that the trial court did not abuse its discretion in concluding that the
evidence was cumulative and any probative value of the evidence was substantially
outweighed by the probability that its admission would necessitate undue consumption of
time. (Evid. Code, § 352; People v. Burgener (1986) 41 Cal.3d 505, 525, disapproved on
another ground in People v. Reyes (1998) 19 Cal.4th 743, 756 [cumulative evidence is
excludable under Evid. Code, § 352 on the basis that its admission will necessitate undue
consumption of time]; People v. Filson (1994) 22 Cal.App.4th 1841, 1850, disapproved
on another ground in People v. Martinez (1995) 11 Cal.4th 434, 452 [Evid. Code, § 352
allows for the exclusion of cumulative evidence if it would necessitate undue
consumption of time].)
Defendant asserts that the evidence should not have been excluded as cumulative
because the proffered evidence would have had greater evidentiary weight or probative
value than the evidence before the jurors. However, as we have concluded, the proffered
demonstrative evidence was irrelevant and thus lacked probative value. Also, given the
differences, under Evidence Code section 352, the proposed demonstration also had the
potential of misleading the jury, the danger of which substantially outweighed any
probative value.
Defendant argues the evidence had additional probative value because it would
have impeached Belli’s and Turnbull’s testimony as to whether they did, in fact, enter the
dugout through the locked gate, or, if they did so, whether they managed to do so without
destroying evidence. However, demonstrative evidence depicting a different gate, not
necessarily of the same dimensions, would not have had impeachment value.
Moreover, there was already evidence before the jury contradicting or
undermining Belli’s and Turnbull’s testimony that they were able to enter the dugout
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through the locked gate. The woman who found Jessica’s body, who was five feet four
inches tall “but . . . wouldn’t say [she was] slight,” testified that she did not think she
could have easily fit through the opening without touching anything. Sergeant Mickelson
testified she was five feet six inches and 125 pounds, that Turnbull and Belli were bigger
than she was, and that she probably would not have been able to enter the dugout through
the gate opening without touching the sides. Detective Clark testified that “ ‘someone of
average or smaller size could fit in.’ ”
Because the proffered demonstrative evidence lacked probative value, was
cumulative, its presentation would necessitate undue consumption of time, and it created
a danger of misleading the jury, we conclude that the trial court did not abuse its
discretion in excluding the evidence.
V. Pinpoint Instruction on Third Party Culpability
A. Additional Background
Defendant filed a motion seeking a pinpoint instruction on third party culpability.
Based on the assertion that the defense had presented substantial evidence to show that
S.L. and/or Christopher had killed Jessica, defendant requested that the trial court instruct
the jury with the following language:
“You have heard evidence that [S.L.] and/or Christopher . . . killed [Jessica]. The
defendant is not required to prove the guilt of [S.L.] and/or Christopher . . . . It is the
prosecution which has the burden of proving that [S.L.] and/or Christopher . . . did not
kill [Jessica], and that the defendant is guilty of the offense beyond a reasonable doubt.
[¶] Evidence that [S.L.] and/or Christopher . . . committed the charged offense may, by
itself, leave you with a reasonable doubt as to the defendant’s guilt. Its weight and
significance are matters for your determination. If, after considering all of the evidence,
including any evidence that [S.L.] and/or Christopher . . . killed [Jessica], you have a
reasonable doubt that the defendant committed the offense, you must find the defendant
not guilty.”
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At a conference on the jury instructions, the trial court stated it found potentially
persuasive the cases relied upon by the prosecution, concluding that instructions like the
pinpoint instruction offered by the defense were argumentative and redundant. However,
the trial court noted that those cases were decided prior to the change from CALJIC to
CALCRIM, and the court wanted to do additional research. The trial court continued:
“the defense-proffered instruction, in the form that it’s in, would not be given. And it
seems that the ultimate issue is whether the jury is to hear that the defendant has no
burden to prove anything, and that the People have a burden to basically disprove
anything offered by the defense. [¶] I haven’t stated that perfectly, but that seems to be
where the issues -- it seems to be where the disagreement exists. [¶] The bottom line is
that if the defense can come up with a more generic instruction, and explain to the Court
why the cases cited by the People shouldn’t be considered by the Court, that would be the
helpful direction to go in. Otherwise, the Court would be of a mind to accept the
People’s proffered instruction, which would add the last sentence of [CALCRIM No.]
315 to standard [CALCRIM No.] 220 on reasonable doubt.”
Subsequently, the court stated in a tentative ruling that it would give CALCRIM
No. 220 without any changes, and then add a sentence reading: “ ‘The defendant need
not prove that he is not guilty, or that someone else is guilty,’ ” and then add the last
paragraph of CALCRIM No. 315, which reads: “ ‘The People have the burden of
proving beyond a reasonable doubt that it was the defendant who committed the crime. If
the People have not met this burden, you must find the defendant not guilty.’ ” The court
stated that this was its “tentative approach to providing a nonargumentative instruction
that directs attention to the defense’s theory of the case.”
Defense counsel protested that, without a pinpoint instruction, the jury may not
know how to assess the information placed before it by the defense. Defense counsel
expressed the concern that the jury might believe that the defense had to prove that it was
S.L. or Christopher or someone else who killed Jessica in order to acquit defendant.
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While defense counsel agreed with the language that the trial court proposed adding in
addition to CALCRIM No. 220, counsel proposed keeping CALCRIM No. 220 as it was
and adding the additional language as a pinpoint instruction.
The prosecution objected to the addition of the proposed language. The
prosecutor emphasized California Supreme Court case law holding that an instruction
stating it is not necessary for the defendant to prove that another person may have
committed the crime and it is not the defendant’s burden to prove his or her innocence
was redundant in light of standard jury instructions. The prosecutor asserted that, once
the court begins repeating concepts over and over again, it becomes an advocate. The
prosecutor contended that CALCRIM No. 220, plus the last sentence from CALCRIM
No. 315, sufficiently explained the burden of proof, and asserted that “[w]e don’t have to
say it the other way around. If we are doing that, we are just hammering the same point
home.”
Defense counsel asserted that there was no third party culpability instruction in
CALCRIM, and, therefore, a pinpoint instruction on third party culpability could not be
redundant. Counsel disagreed that such an instruction would make the court an advocate.
The prosecutor replied that the absence of a third party culpability instruction from
the CALCRIM instructions demonstrated that the issue is covered by the standard
instructions, and there is no need for a separate instruction on the matter.
The trial court stated that it would amend its tentative decision. It ruled that it
would give the jury CALCRIM No. 220 and the last paragraph of CALCRIM No. 315.
The trial court stated that it would not read the language stating: “ ‘The defendant need
not prove that he is not guilty, nor that someone else is guilty.’ ” The trial court relied on
case law for the proposition that third party culpability is not an affirmative defense, but
rather relates to the general issue of reasonable doubt.
Thereafter, the trial court instructed the jury with CALCRIM No. 220, plus the
additional paragraph from CALCRIM No. 315 (shown in italics), as follows:
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“The fact that a criminal charge has been filed against the defendant is not
evidence that the charge is true. You must not be biased against the defendant just
because he has been arrested, charged with a crime, or brought to trial. [¶] A defendant
in a criminal case is presumed to be innocent. This presumption requires that the People
prove a defendant guilty beyond a reasonable doubt. Whenever I tell you the People
must prove something, I mean they must prove it beyond a reasonable doubt unless I
specifically tell you otherwise. [¶] Proof beyond a reasonable doubt is proof that leaves
you with an abiding conviction that the charge is true. The evidence need not eliminate
all possible doubt, because everything in life is open to some possible or imaginary
doubt. [¶] In deciding whether the People have proved their case beyond a reasonable
doubt, you must impartially compare and consider all the evidence that was received
throughout the entire trial. Unless the evidence proves the defendant guilty beyond a
reasonable doubt, he is entitled to an acquittal and you must find him not guilty. [¶] The
People have the burden of proving beyond a reasonable doubt that it was the defendant
who committed the crime. If the People have not met this burden, you must find the
defendant not guilty.”
During deliberations, the jury submitted a note to the court which read as follows:
“We have a juror who insists on finding who else has been at the park. Go to a ‘shadow
of a doubt’ vs ‘reasonable doubt.’ “Requires” us to ‘what if’ every possible scenario. [¶]
Can we get clarification on if this is what we should do?”
In its written response, the trial court stated: “In response to your Request No. 8, I
must be careful in my reply, because as I have already instructed, ‘[y]ou must decide
what the facts are. It is up to all of you, and you alone, to decide what happened . . . .’
[Citation.] You are the exclusive judges of the facts in this case, and I cannot interfere -
or even appear to interfere - in your deliberations. With respect to the legal questions you
pose, however, I would remind you that your decision must be ‘based only on the
evidence that has been presented to you in this trial.’ [Citation]. You cannot base your
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decision on anything outside of the record in this case. While you may draw reasonable
inferences from the evidence produced in this courtroom, you may not speculate about
matters outside of the record. And the burden of proof in this case is proof beyond a
‘reasonable doubt.’ [Citation]. While you may have heard the term ‘shadow of a doubt’
from literature or from some other source, it is not the standard that is applied in this
courtroom, or in any other courtroom in the United States. In these and in all other
instances, you are bound by the law which I have given you in these instructions. You
may not substitute any other standard for those I have given you, and you ‘must follow
the law as I explain it to you, even if you disagree with it.’ ” 35
B. Defendant’s Contentions
Defendant asserts that the trial court erred in refusing to give the pinpoint
instruction on third party culpability. He emphasizes that third party culpability was his
defense, and asserts that the instructions given to the jury failed to adequately inform the
jurors that the defense does not carry any burden of proof as to third party culpability
evidence. Defendant asserts that the trial court erred in refusing to instruct the jury on
third party culpability on the grounds that third party culpability is not an affirmative
defense, and that the reasonable doubt standard adequately covered the issue. According
to defendant, he produced substantial evidence of third party culpability, and therefore,
upon his request, he was entitled to the pinpoint instruction. Defendant asserts that the
trial court’s ruling deprived him of his constitutional right to a jury instruction on his
theory of the case.
C. Analysis
As a general matter, a criminal defendant is entitled, on request, to instructions
that pinpoint the theory of the defense when the instruction is supported by substantial
35 Defendant does not contend that the trial court’s thoughtful response was erroneous.
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evidence. (People v. Gutierrez (2002) 28 Cal.4th 1083, 1142, citing People v. Saille
(1991) 54 Cal.3d 1103, 1119.) “But a trial court need not give a pinpoint instruction if it
is argumentative [citation], merely duplicates other instructions [citation], or is not
supported by substantial evidence.’ ” (People v. Coffman and Marlow (2004) 34 Cal.4th
1, 99.) In general, we review a claim of instructional error de novo. (People v. Selivanov
(2016) 5 Cal.App.5th 726, 751.)
In People v. Hartsch (2010) 49 Cal.4th 472 (Hartsch), the defendant proposed two
instructions related to third party culpability. Proposed instruction I stated, in pertinent
part: “ ‘If the evidence presented in this case convinces you beyond a reasonable doubt
that the defendant is guilty, you should so find, even though you may believe that one or
more other persons are also guilty. [¶] On the other hand, if you entertain a reasonable
doubt of the defendant’s guilt after an impartial consideration of the evidence presented
in the case, including any evidence of the guilt of another person or persons, it is your
duty to find the defendant not guilty.’ ” (Id. at p. 504.) Proposed instruction Z stated:
“ ‘Evidence has been presented during the course of this trial indicating or tending to
prove that someone other than the defendant committed, or may have had a motive and
opportunity to commit, the offense(s) charged. In this regard, it is not required that
defendant prove this fact beyond a reasonable doubt. [¶] The weight and significance of
such evidence are matters for your determination. If after consideration of all of the
evidence presented, you have a reasonable doubt that the defendant committed the
offense(s) charged, you must give the defendant the benefit of the doubt and find him not
guilty.’ ” (Ibid.)
Discussing these proposed instructions, our high court in Hartsch stated: “We
have noted that similar instructions add little to the standard instruction on reasonable
doubt. [Citation.] We have also held that even if such instructions properly pinpoint the
theory of third party liability, their omission is not prejudicial because the reasonable
doubt instructions give defendants ample opportunity to impress upon the jury that
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evidence of another party’s liability must be considered in weighing whether the
prosecution has met its burden of proof.” (Hartsch, supra, 49 Cal.4th at p. 504.)
Such is the case here as well. Defendant’s proposed instruction added little to the
modified instruction given by the trial court on reasonable doubt. Consequently,
omission of defendant’s proposed instruction was not prejudicial because the trial court’s
reasonable doubt instruction allowed defendant to impress upon the jury his contentions
regarding the liability of S.L. and/or Christopher and that their potential liability should
give rise to a reasonable doubt as to defendant’s guilt.
Moreover, defendant’s proposed instruction here was argumentative. It bears a
strong similarity to the defendant’s proposed instruction Z in Hartsch. The first sentence
of instruction Z in Hartsch stated: “ ‘Evidence has been presented during the course of
this trial indicating or tending to prove that someone other than the defendant committed,
or may have had a motive and opportunity to commit, the offense(s) charged.’ ”
(Hartsch, supra, 49 Cal.4th at p. 504.) The Hartsch court concluded that this instruction
was argumentative “because it told the jury that evidence ‘indicat[ed] or tend[ed] to
prove that someone other than the defendant committed, or may have had a motive and
opportunity to commit, the offense(s) charged,’ ” and further stated that it “is improper
for an instruction to indicate an opinion favorable to the defendant regarding the effect of
the evidence.” (Ibid.)
The beginning of defendant’s proposed instruction is even more problematic in
this regard. It stated: “You have heard evidence that [S.L.] and/or Christopher . . . killed
[Jessica]. The defendant is not required to prove the guilt of [S.L.] and/or
Christopher . . . .” The italicized language is far more argumentative than the instruction
in Hartsch, inasmuch as it would have told the jury that there was evidence that actually
proved S.L. or Christopher killed Jessica, as opposed to the Hartsch instruction Z
language which only referenced evidence which indicated or tended to prove that
someone else committed the charged offenses. (Hartsch, supra, 49 Cal.4th at p. 504.)
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Additionally, defendant’s proposed instruction was duplicative in much the way
the second sentence of the Hartsch instruction Z was. As noted, the Hartsch proposed
instruction read: “ ‘In this regard, it is not required that defendant prove this fact beyond
a reasonable doubt.’ ” (Hartsch, supra, 49 Cal.4th at p. 504.) The middle portion of
defendant’s proposed instruction was similar, stating: “The defendant is not required to
prove the guilt of [S.L.] and/or Christopher . . . . It is the prosecution which has the
burden of proving that [S.L.] and/or Christopher . . . did not kill [Jessica], and that the
defendant is guilty of the offense beyond a reasonable doubt. [¶] Evidence that [S.L.]
and/or Christopher . . . committed the charged offense may, by itself, leave you with a
reasonable doubt as to the defendant’s guilt.” Both the Hartsch instruction and that
proposed by defendant were duplicative of the reasonable doubt instruction, as they
repeated the admonishment that it is the prosecution that bears the burden of proving a
defendant’s guilt beyond a reasonable doubt.
Finally, proposed instruction Z in Hartsch ended: “ ‘The weight and significance
of such evidence are matters for your determination. If after consideration of all of the
evidence presented, you have a reasonable doubt that the defendant committed the
offense(s) charged, you must give the defendant the benefit of the doubt and find him not
guilty.’ ” (Hartsch, supra, 49 Cal.4th at p. 504.) Similarly, defendant’s proposed
instruction ended with: “Its weight and significance are matters for your determination.
If, after considering all of the evidence, including any evidence that [S.L.] and/or
Christopher . . . killed [Jessica], you have a reasonable doubt that the defendant
committed the offense, you must find the defendant not guilty.” These passages are
almost identical to the Hartsch instruction. The only substantive departure between the
two is that, unlike proposed instruction Z in Hartsch, the proposed instruction here again
returns to argument, discussing “any evidence that [S.L.] and/or Christopher . . . killed”
Jessica.
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Defendant attempts to distinguish Hartsch, asserting that “[t]he infirmity in the
Hartsch instruction was its failure to limit the instruction to a person against whom there
was evidence that he or she committed the crime,” and that “[i]t cannot be argumentative
to give the precise level of specificity required by the Court in Hartsch.” We do not
agree with defendant’s characterization of Hartsch. Nowhere in Hartsch does our high
court rely on this basis as a ground for determining that proposed instruction Z was
inappropriate. It may be a distinction between this case and Hartsch that, here, the
proposed instruction specifically identified the subjects of defendant’s third party
culpability theory. However, our high court in Hartsch did not rely on this as a basis for
concluding that proposed instruction Z was defective or unnecessary. Instead, the
grounds on which our high court relied were (1) the fact that it was redundant with the
standard reasonable doubt instruction, and (2) that it was argumentative because, similar
to defendant’s proposed instruction here, it “told the jury that evidence ‘indicat[ed] or
tend[ed] to prove that someone other than the defendant committed, or may have had a
motive and opportunity to commit, the offense(s) charged,’ ” and (3) because it “is
improper for an instruction to indicate an opinion favorable to the defendant regarding
the effect of the evidence.” (Hartsch, supra, 49 Cal.4th at p. 504.)
Defendant’s proposed pinpoint instruction suffers from the same shortcomings as
proposed instructions in Hartsch. It adds little to the standard instruction on reasonable
doubt, especially as modified by the trial court, and is redundant in that it restates that
standard. And defendant’s proposed instruction was impermissibly argumentative. The
trial court did not err in refusing to give defendant’s proposed instruction.
VI. Cumulative Error
Defendant asserts that the judgment should be reversed due to cumulative error.
According to defendant, even if we find individual errors to be harmless, the cumulative
effect of these alleged errors deprived him of a fair trial. We reject this contention.
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The premise behind the cumulative error doctrine is that while a number of errors
may be harmless taken individually, their cumulative effect requires reversal. (People v.
Bunyard (1988) 45 Cal.3d 1189, 1236-1237.) We have concluded that defendant’s
claims of error are without merit with the exception of the error related to the limitation
of the gang expert testimony, where we have found the error to be harmless. We have
reviewed all of defendant’s claims and find no cumulative prejudicial error warranting
reversal. Defendant was not deprived of a fair trial.
VII. Newly Discovered Evidence Contention
A. Additional Background
Defendant moved for a new trial on several grounds, including newly discovered
evidence. He stated that, on October 5, 2015, defense counsel and a defense investigator,
Schindler, met with Joseph Madigan, a Sacramento County jail inmate, who had
indicated he had information relevant to this case and was willing to meet with the
defense. Madigan told the defense he knew the people who hang out at Vince’s Motel
and Casa Linda Motel, and that, in April 2013, he had visited Johnny T., Christopher’s
brother. Johnny told Madigan that, on the night of Jessica’s death, S.L., Christina, and
Christina’s boyfriend asked Christopher to bring blankets to the park. When Christopher
arrived at the park, S.L., Christina, Christina’s boyfriend, and two other individuals were
standing near the body of a young girl. Christopher left the park. According to Madigan,
sometime after defendant’s arrest, Madigan and his sister confronted Christina at Casa
Linda Motel with the information he learned from Johnny. She denied being involved in
the death of Jessica, and stated, “ ‘someone already took the fall for it.’ ”
Defense counsel and Schindler contacted Suzanne in an effort to locate Johnny.
Suzanne indicated she had recently spoken with Johnny, who told her that, on the night of
Jessica’s death, S.L., Christina, and Christina’s boyfriend called Christopher and asked
him to bring blankets to the park. When Christopher arrived at the park, the three were
standing near the body of a dead girl. Christopher left.
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Thereafter, Schindler spoke with Johnny, who provided a similar account to those
offered by Madigan and Suzanne. Johnny agreed to sign a declaration.
When Schindler was finally able to locate Christopher, he shared similar
information to what Schindler had learned from the other witnesses. Christopher
indicated that he was “extremely fearful” of S.L., Christina, and Christina’s boyfriend,
and also expressed fear that the prosecutor would attempt to blame him for the murder.
According to the defense’s representation, Christopher agreed that it was wrong for
defendant to be imprisoned for a murder he did not commit. Christopher agreed to sign a
declaration stating that he had gone to the park with blankets after S.L. called him.
However, Christopher “insisted on redacting the names of the responsible
individuals . . . .”
Defendant asserted that, had Christopher testified to this information at trial, there
is a reasonable probability that the outcome of the trial would have been different.
Defendant asserted that such testimony would have corroborated the trial testimony of
Connie, Suzanne, and Michelle.
Defendant submitted declarations purportedly signed by Johnny, Christopher, and
Schindler in support of his new trial motion.
In opposition to defendant’s motion, the prosecution stated that, within 24 hours of
receiving defendant’s motion, investigators with the district attorney’s office interviewed
Christopher, Johnny, his wife, and Madigan. According to the prosecution, “[e]very
single one of these witnesses has denied – on tape – the truth of the allegation that
[Christopher] showed up at the park with a blanket or blankets, and saw people standing
around a body.” Additionally, Christopher and Johnny denied signing the declarations
for the defense. Madigan admitted making his statement to the defense, but “Madigan
now also admits that that statement was not true.” According to the prosecution,
Madigan agreed to make the statement “after he and the defendant had agreed to help
each other out – a false statement in exchange for money on Mr. Madigan’s books.” The
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prosecution asserted that the allegedly newly discovered evidence would not render a
different result probable upon retrial.
At a hearing on the motion, the prosecution emphasized that the witnesses “all
deny having signed the declarations provided by the defense, the two that we are talking
about. And of course the inmate who initially got this all started has indicated that he
made it up.” The prosecutor further asserted that “this is not new evidence” because the
parties fully litigated whether Christopher spent the night of Jessica’s death at Vince’s
Motel or whether he instead left the motel.
The trial court afforded the defense additional time to respond to the claims that
the declarations were signed by individuals other than the purported declarants and stated
that it wanted to read the defense’s reply brief. The matter was continued to the
following Monday.
When the trial court reconvened, the prosecution argued that Christopher’s
purported signature on the declaration “bears no semblance to the known signature of”
Christopher, and further emphasized that Christopher denied signing the declaration or
making any of the statements contained in it. The prosecutor also asserted that Johnny’s
purported signature on his declaration did not match his known signature, and he denied
hearing what was recounted in the declaration. Additionally, the prosecutor emphasized
that Madigan “indicated that this was all a lie. He made this up.” The prosecutor noted
that it was possible that, if defendant’s new trial motion were granted, Christopher could
again assert his rights under the Fifth Amendment, leaving the parties “exactly back
where we started from.” (See fn. 28, ante.) The prosecutor further asserted that
Christopher had offered so many accounts of what happened on the night Jessica was
killed, his testimony would be of very limited probative value. The prosecutor
maintained that the new evidence proffered by the defense would not render a different
result probable on retrial.
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In reply, defense counsel argued that the witnesses’ recantation was not unusual.
However, defense counsel did acknowledge that the signatures on the declarations looked
different from the signatures used as exemplars.
The trial court denied defendant’s new trial motion, ruling that the new evidence
proffered by the defense would not render a different result probable.
B. Defendant’s Contentions
Defendant asserts that the trial court abused its discretion in denying his motion
for a new trial based on newly discovered evidence, and that this error violated his right
to due process. Defendant contends that he made a sufficient showing that it was
probable that at least one juror would have voted to acquit him if the newly discovered
evidence was presented.
C. Standard of Review and Applicable Legal Principles
“ ‘ “ ‘We review a trial court’s ruling on a motion for a new trial under a
deferential abuse-of-discretion standard.’ [Citations.] ‘ “A trial court’s ruling on a
motion for new trial is so completely within that court’s discretion that a reviewing court
will not disturb the ruling absent a manifest and unmistakable abuse of that
discretion.” ’ ” ’ ” (People v. McCurdy (2014) 59 Cal.4th 1063, 1108 (McCurdy); People
v. Delgado (1993) 5 Cal.4th 312, 328 (Delgado).)
“In ruling on a motion for new trial based on newly discovered evidence, the trial
court considers the following factors: ‘ “1. That the evidence, and not merely its
materiality, be newly discovered; 2. That the evidence be not cumulative merely; 3. That
it be such as to render a different result probable on a retrial of the cause; 4. That the
party could not with reasonable diligence have discovered and produced it at the trial; and
5. That these facts be shown by the best evidence of which the case admits.” ’ ” (People
v. Turner (1994) 8 Cal.4th 137, 212 (Turner), quoting People v. Sutton (1887) 73 Cal.
243, 247-248 (Sutton) & Delgado, supra, 5 Cal.4th at p. 328.) As defendant notes, “ ‘a
motion for a new trial should be granted when the newly discovered evidence contradicts
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the strongest evidence introduced against the defendant . . . .’ ” (Delgado, at p. 329,
quoting People v. Martinez (1984) 36 Cal.3d 816, 823.)
“ ‘ “[I]n determining whether there has been a proper exercise of discretion on
such motion, each case must be judged from its own factual background.” ’ ” (Delgado,
supra, 5 Cal.4th at p. 328.) The “ ‘trial court’s factual findings, express or implied, made
on a motion for new trial will be upheld if supported by substantial evidence.’ ” (People
v. Cua (2011) 191 Cal.App.4th 582, 609 (Cua), quoting People v. Drake (1992) 6
Cal.App.4th 92, 97 (Drake).)
D. Analysis
Even when a defendant establishes the above listed factors, “ ‘the trial court may
consider the credibility as well as materiality of the evidence in its determination [of]
whether introduction of the evidence in a new trial would render a different result
reasonably probable.’ ” (Delgado, supra, 5 Cal.4th at p. 329.)
We conclude that, in addition to any obstacles defendant would face with regard to
the admissibility of the newly discovered evidence, the credibility and probative value of
that evidence was severely undermined given Christopher R.’s, Thomas’s and Johnny’s
insistence that they did not execute the declarations, the fact that the signatures on those
declarations did not appear to match the signatures of the individuals who purportedly
signed them, and Madigan’s statement that he fabricated his story in exchange for money
on his jail books and because he was angry at Johnny. Therefore, we conclude that the
trial court was well within its discretion in finding that the asserted new evidence would
not have changed the result on retrial. Inasmuch as the trial court impliedly determined
that the newly discovered evidence lacked credibility, that finding is supported by
substantial evidence and will be upheld. (See Cua, supra, 191 Cal.App.4th at p. 609;
Drake, supra, 6 Cal.App.4th at p. 97.)
Defendant maintains that “the trial court necessarily presumed that the ‘proffered
new evidence’ was credible; otherwise there would have been no need for the court to
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essentially rule ‘that [the] proffered new evidence would not render a different result
probable.” We do not think the inference defendant draws here is warranted. Indeed, as
our high court stated in Delgado, “ ‘the trial court may consider the credibility as well as
materiality of the evidence in its determination [of] whether introduction of the evidence
in a new trial would render a different result reasonably probable.’ ” (Delgado, supra, 5
Cal.4th at p. 329, italics added.) The mere fact that the trial court determined that the
newly proffered evidence would not render a different result reasonably probable on
retrial does not mean that the trial court found or presumed the evidence credible. The
trial court could have determined that the newly discovered evidence would not have
rendered a different result probable because that evidence so lacked in credibility.
We conclude that the trial court did not abuse its discretion in denying defendant’s
new trial motion grounded on newly discovered evidence. This determination cannot be
said to have constituted a manifest and unmistakable abuse of discretion. (See McCurdy,
supra, 59 Cal.4th at p. 1108; Delgado, supra, 5 Cal.4th at p. 328.)
VIII. Review of Sealed Juror Information Related to Allegation of Juror
Misconduct
A. Additional Background
The defense filed a post-verdict motion addressing alleged jury misconduct. 36
The defense indicated that it was seeking compelled authorization granting access to
Juror No. 4’s Twitter account based on pre-verdict tweets written by her indicating she
violated the court’s instructions not to “share information” about the case by any means
of communication, not to talk about the case with anyone, not to discuss the deliberations
with anyone, and not to communicate with anyone during deliberations.
36 Defendant’s written motion does not appear in the record on appeal. However,
because defendant’s contentions are clearly based on oral argument before the trial court,
and because we are performing our own independent review of the relevant materials, we
do not need defendant’s original written motion to resolve this issue.
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The prosecution asserted that Juror No. 4’s pre-verdict tweets were innocuous, at
most amounted to trivial violations of the trial court’s orders, and did not amount to
misconduct, let alone prejudicial misconduct. The prosecution further argued that Juror
No. 4’s tweets did not demonstrate juror bias.
In a tentative ruling, the trial court stated that it intended to make a limited inquiry
of Juror No. 4, and that the inquiry could possibly disclose information sufficient to
warrant an order compelling that juror to authorize access to the juror’s social media
accounts. Subsequently, the court characterized Juror No. 4’s pre-verdict tweet as
misconduct, stating that it had to proceed to determine whether the misconduct was
prejudicial. The prosecutor opposed a hearing on the issue, asserting that, if there was
any prejudice resulting from Juror No. 4’s tweet, it was prejudicial to the prosecution.
The trial court adopted its tentative ruling. The trial court emphasized that Juror
No. 4’s tweet violated the court’s orders and instructions, which amounted to misconduct.
The trial court reconvened on a subsequent date, at which time Juror No. 4 was
present and represented by appointed counsel. The trial court stated, “Given that the
existence of the tweets, according to [Juror Number One v. Superior Court (2012) 206
Cal.App.4th 854 (Juror Number One)], constitutes misconduct, the Court feels compelled
to further explore the Twitter account from which those tweets emanated.” Appointed
counsel for Juror No. 4 indicated that, as discussed in chambers, Juror No. 4 would assert
her right-to-privacy objection, the court would make its ruling, ordering her to execute a
waiver over her objection and granting Juror No. 4 use immunity, and Juror No. 4 would
then execute the waiver and cooperate with the trial court. After Juror No. 4’s counsel
asserted her right-to-privacy objection, the trial court ordered Juror No. 4 to sign a waiver
of her right to privacy and granted her use immunity.
Eventually, Twitter provided the trial court with records from Juror No. 4’s
account which the trial court reviewed in camera. Following the completion of its in
camera review, the trial court stated, in its tentative ruling, that its investigation “has
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revealed no evidence whatsoever of any prejudice that would attach to the Juror No. 4’s
use of social media during the time that she was a sworn juror, and consequently is
terminating its investigation with that finding.”
At a subsequent hearing, the trial court stated it had made the initial finding of
juror misconduct based on the use of social media during trial, which gave rise to a
rebuttable presumption of prejudice. The court stated that “it was the investigation as to
that rebuttal of presumption from which the Court started.” The court stated that, upon
reviewing the undisclosed, sealed tweets, “they turned out to be nothing more than
mental musings put on social media, so there is no evidence whatsoever of prejudice.
That presumption has been rebutted.” The court went on to say, “the allegation of juror
misconduct has been fully investigated, and found that there is no juror misconduct based
on that investigation.”
Defendant requests that we conduct an independent, in camera review of the
sealed juror information reviewed by the trial court. He requests that this court perform a
Pitchess-type 37 review to determine whether the finding of misconduct and the
presumption of prejudice were rebutted. The People do not oppose defendant’s request.
We grant defendant’s request.
B. Analysis
Misconduct by a juror usually raises a rebuttable “ ‘presumption’ of prejudice.”
(In re Hamilton (1999) 20 Cal.4th 273, 295 (Hamilton).) “Still, whether an individual
verdict must be overturned for jury misconduct or irregularity ‘ “ ‘is resolved by
reference to the substantial likelihood test, an objective standard.’ ” ’ [Citations.] Any
presumption of prejudice is rebutted, and the verdict will not be disturbed, if the entire
record in the particular case, including the nature of the misconduct or other event, and
37 Pitchess v. Superior Court (1974) 11 Cal.3d 531.
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the surrounding circumstances, indicates there is no reasonable probability of prejudice,
i.e., no substantial likelihood that one or more jurors were actually biased against the
defendant.” (Id. at p. 296.)
Having reviewed the materials filed under seal, we conclude that the trial court’s
determination is supported by the record. Not only were these tweets mere “mental
musings,” but they had nothing to do with this case. The entire record and all
surrounding circumstances indicate that there is no substantial likelihood that Juror No. 4
was actually biased against defendant. (See Hamilton, supra, 20 Cal.4th at p. 296.)
DISPOSITION
The judgment is affirmed.
/s/
MURRAY, J.
We concur:
/s/
HULL, Acting P. J.
/s/
DUARTE, J.
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