Supreme Court to Rule on Constitutionality of DNA Measure

Friday, February 20, 2015

Page 1

Supreme Court to Rule on Constitutionality of DNA Measure

By KENNETH OFGANG, Staff Writer

The California Supreme Court yesterday agreed to decide whether an initiative measure mandating the collection of DNA samples from all persons arrested on felony charges violates the state and/or federal Constitution.

The justices, at their weekly conference in San Francisco Wednesday, voted unanimously to grant review in People v. Buza, A125542. The First District Court of Appeal’s Div. Two held in December that a portion of Proposition 69, the Forensic Identification Data Base and Data Bank Act of 1998, violates the state Constitution’s ban on unreasonable searches and seizures.

This is the second time the Supreme Court has granted review in the case, in which a San Francisco Superior Court judge ordered the taking of a DNA sample, by force if necessary, from Mark Buza. Buza was subsequently sentenced to 16 months in prison for arson, along with a 16-month concurrent term for possession of an incendiary device, and a six-month concurrent term for refusing to provide a DNA sample following his arrest.

On his first appeal, Div. Two ruled in People v. Buza (2011) 197 Cal.App.4th 1424 that the Fourth Amendment prohibits the forced taking of DNA samples from felony arrestees in the absence of a judicial determination of probable cause.

High Court Case

The California Supreme Court granted review, but before it could rule, the U.S. Supreme Court decided Maryland v. King (2013) 133 S.Ct. 1958, which upheld Maryland’s DNA collection law. The state high court then sent the case back to the Court of Appeal so that it could reconsider its decision in light of King.

The panel again said the law was unconstitutional, but this time based its decision on Art. I, §13 of the state Constitution.

Presiding Justice J. Anthony Kline, writing for the court, expressed doubts that King was controlling on the federal question, given significant differences between Maryland’s law and Proposition 69.

He pointed out that the Maryland law applies only to those arrested for “serious crimes,” a more limited category than all accused felons, and that it prohibits familial DNA searches, in which a partial match between an individual’s DNA profile and a profile in the DNA database is used to implicate a close biological relative of the DNA donor as a possible criminal suspect.

California Authorities

California authorities, the presiding justice acknowledged, limit familial searches to samples taken from those who have been convicted of felonies. But there is no such limitation in the text of Proposition 69, he noted.

In any event, Kline went on to say, there are strong policy reasons why forced taking of samples under Proposition 69 fails to pass muster under the state Constitution, even if it does not violate the Fourth Amendment.

Kline wrote:

“Like the four dissenting Justices in King, we are unwilling to accept the premises that analysis of arrestees’ DNA is intended or in fact used for identification rather than investigation, or that ‘identification’ encompasses investigating criminal history. The King majority’s construction of a new governmental interest in ‘identity’ that includes not only verification of who an arrestee is but also what that person has done in the past allowed the court to elevate the ‘governmental interest’ side of the balance in weighing the law’s promotion of ‘legitimate governmental interests’ against its intrusion on arrestee’s reasonable expectation of privacy. Because this definition of ‘identity’ folds investigation into identity verification, and because DNA testing at the time of arrest does not further actual identity verification, the court’s analysis distorted the ‘totality of the circumstances’ required to be examined in measuring the reasonableness of the search at issue.”

Other Action

In other conference action, the justices:

•Left standing an $18 million punitive damage award to a man who contracted mesothelioma. This district’s Div. Three held in Izell v. Union Carbide Corp., 231 Cal.App.4th 962, that the defendant “acted with a reprehensible indifference to the health and safety of others,” including plaintiff Bobbie Izell, when it concealed internal studies establishing that even brief exposure to asbestos caused cancer.

Izell worked as a cement contractor in the 1950s and worked as a general contractor building small houses in the Los Angeles area until he retired in 1994. He was diagnosed with mesothelioma in 2011, when he was 85 years old.

Presiding Justice Joan Dempsey Klein, who has since retired, said the punitive damage award, being 4.62 times Union Carbide’s 65 percent share of the responsibility for compensatory damages of $6 million, was consistent with State Farm Mut. Auto Ins. Co. v. Campbell (2003) 538 U.S. 408.

The Campbell court said that a punitive damage award violates the Excessive Fines Clause if is disproportionate to the award of compensatory damages, the reprehensibility of the defendant’s conduct, and the amount of civil penalties authorized for similar conduct.

•Depublished the ruling of the Court of Appeal in In re Walgreen Company Overtime Cases (2014) 231 Cal.App.4th 437, which relied on Brinker Restaurant Corp. v. Superior Court (2012) 53 Cal.4th 1004 to uphold the denial of class certification in an action by employees claiming they were denied meal breaks mandated by statute.

Brinker held that while an employer must make breaks available, it need not ensure that employees take them. The plaintiffs in Walgreen argued that, given the difficulty of determining in each individual case whether an employee was or was not offered breaks, a rebuttable presumption should be applied that an employee who worked more than five hours without a meal break wasn’t offered one.

Justices Kathryn M. Werdegar and Goodwin H. Liu, who concurred in Brinker, argued for such a presumption. But this district’s Div. One, in its Walgreen ruling, noted that theirs was a minority view.

Two members of the Brinker majority have since retired. The decision to depublish the Walgreen opinion was unanimous.

•Agreed to review two Court of Appeal rulings, in People v. Chaney (2014) 31 Cal. App. 4th 1391, from the Third District, and People v. Valencia, F067946, from the Fifth District, in which courts rejected the argument that last year’s enactment of Proposition 47 retroactively alters the standard by which trial courts must rule on motions for resentencing of “third-strike” offenders under Proposition 36.

Proposition 47 reduces a number of drug- and theft-related offenses to misdemeanors and provides that a defendant previously convicted of a felony may petition for resentencing if the offense would now be a misdemeanor. The prosecution can oppose resentencing on the ground that the defendant presents an “unreasonable risk of danger to public safety,” which the measure defines as “an unreasonable risk that the petitioner will commit a new violent felony” that is one of the “superstrike” crimes listed in Penal Code §667.

Those crimes include violent sex offenses, child molestation, homicide and attempted homicide, solicitation to commit murder, assault with a machine gun on a peace officer or firefighter, possession of a weapon of mass destruction, and serious or violent felonies punishable by life imprisonment or death.

Proposition 36 similarly provides that a previously sentenced three-strikes offender who would otherwise be eligible for a reduced sentence is not entitled to resentencing if the prosecution can show that the defendant presents “an unreasonable risk of danger to society,” but defines that term far more broadly than Proposition 47 does.

Chaney and Valencia both held that Proposition 47 does not retroactively amend the definition for purposes of Proposition 36.

The grant of review in Chaney was limited to that issue, leaving intact the court’s principal holding that the defendant, forfeited his right to have his Proposition 36 petition for resentencing heard by the original sentencing judge by not objecting until after another judge denied it.