Metropolitan News-Enterprise


Thursday, May 26, 2005


Page 1


C.A. Rejects Challenge to Retention of Misdemeanant’s DNA Sample


By KENNETH OFGANG, Staff Writer/Appellate Courts


A defendant convicted, on a felony complaint, of an offense punishable as either a felony or misdemeanor may be compelled to give a DNA sample, and is not entitled to have information deleted from the state’s DNA bank if the offense is eventually determined to be a misdemeanor, the First District Court of Appeal has ruled.

Div. Five, in an opinion Tuesday by Justice Laurence T. Stevens, denied  Tariq Coffey’s writ petition challenging the denial of his motion to have his hair and saliva samples returned and the corresponding information deleted under the DNA Data Base Act.

Coffey entered a negotiated plea of guilty to a “wobbler” charge of assault with force likely to produce great bodily injury in January 2003. Under the plea agreement, sentencing was to be deferred for one year, and if the defendant completed a domestic violence counseling program and had no new arrests within that time, the offense was to be reduced to a misdemeanor.

Law Amended

Under the language of the act at the time, a defendant “convicted” of felony assault was subject to the taking of a DNA sample. The law has since been amended to broaden the categories of persons who may be compelled to give samples, and eventually every person charged with a felony will be included under Proposition 69, which was approved by voters last year.

Proposition 69 expressly provides that a person convicted of a qualifying offense will not be relieved of the obligation to provide a sample solely by reason of the conviction being reduced to a misdemeanor at time of sentencing. In a footnote, Stevens acknowledged that the initiative may not be applicable to persons arrested prior to its adoption, but said it could still be used as an aid to interpretation of prior law.

In Coffey’s case, there was no mention of DNA sampling at the time of his plea, but the San Francisco Sheriff’s Department collected the samples before sentencing. At the sentencing hearing, the judge found that he had fully complied with the plea agreement and imposed a misdemeanor sentence of two years probation, including 30 days in jail.

Fourth Amendment Issue

In moving for the return of his samples and expungement of his DNA profile, he contended that the samples were taken in violation of the DNA Data Base Act and the Fourth Amendment. At a hearing on the motion, defense counsel argued that the taking of his samples was a seizure, and that since he had not been convicted of a felony, there was no legal basis for it.

Judge Philip J. Moscone denied the motion, reasoning that even if there was no felony conviction within the meaning of the statute, a reduction of the charge from a felony to a misdemeanor was not one of the grounds on which a profile could be expunged under the terms of the act.

As the law read at the time, the only grounds for expungement were reversal on appeal and dismissal of the case, a finding of factual innocence, or an acquittal.

Stevens, writing for the Court of Appeal, agreed that the taking of the samples was a seizure within the meaning of the Fourth Amendment, but noted that the Court of Appeal held in 2002 that the taking of samples pursuant to the DNA Data Base Act was reasonable.

Under that ruling, Stevens went on to explain, Coffey would be eligible for expungement of his DNA profile, in the discretion of the trial court, if he had not been “convicted” of a felony. The justice, however, concluded that a felony conviction, within the meaning of the statute, occurred when Coffey entered his plea.

“The language of the DNA Data Base Act at the time of the collection of Coffey’s DNA samples suggests it is a defendant’s guilty plea or verdict, not the sentence subsequently imposed, which triggers the DNA collection provision,” the justice wrote.

He cited several provisions, including former Penal Code Sec. 296, which specified that a person convicted of a qualifying offense shall,  “regardless of sentence imposed or disposition rendered,” be required to provide samples.

“Because the Legislature did not intend for the defendant’s sentence or disposition to effect whether the DNA samples would be collected,” Stevens elaborated, “it likely intended the term ‘conviction’ to refer to a guilty plea rather than the ultimate judgment rendered after application of section 17,” which sets forth the procedure by which a wobbler may be reduced to a misdemeanor.

 The case is Coffey v. Superior Court (People), 05 S.O.S. 2469.


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