Opinion
Certified for Partial Publication.
Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of parts I-V.
Review Granted May 2, 1991.
Previously published at 228 Cal.App.3d 492
Richard Jay Moller, Redway, under appointment by the Court of Appeal, for defendant and appellant.
John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Janelle B. Davis and Pamela A. Ratner, Deputy Attys. Gen., for plaintiff and respondent.
OPINION
WALLIN, Associate Justice.
Thomas Scarth McVickers was convicted of six counts of lewd and lascivious acts upon a minor, five counts of using a minor in pornography, five counts of unlawful sexual intercourse with a minor, four counts of furnishing narcotic drugs to a minor, eight counts of oral copulation with a minor, and two counts of sodomy with a minor. He contends: (1) the trial court erroneously denied his motion to suppress evidence; (2) the trial court erred in giving CALJIC No. 4.71 as to count eight; (3) the prosecution failed to elect the act upon which it relied for conviction on counts one and three; (4) his twenty-three year sentence constitutes cruel and unusual punishment; (5) the court denied probation and sentenced him to the maximum term based upon improper speculation that he was mentally ill; and (6) retroactive application of mandatory AIDS testing provisions of Penal Code section 1202.1 violated the ex post facto clause. We affirm with a modification striking the order for AIDS testing.
* * *
During 1983 and 1984 McVickers took pornographic photographs of 13 year-old Holly R. and engaged in acts of intercourse and oral copulation with her. He recorded the sexual acts in a diary and ledger; a major theme was debasement. Between January and March 1988, when Holly was 17, McVickers gave her cocaine and engaged in additional acts of intercourse and oral copulation with her.
On multiple occasions in 1985 and 1986, McVickers engaged in acts of sodomy, oral copulation and sexual intercourse with Linda M., then 16 and 17 years old, plying her with drugs and taking pornographic photos on some occasions. More than once McVickers involved his or Linda's friends in the debauchery. He also memorialized most of the encounters in his diary, graphically depicting them and stressing his theme of debasement.
See footnote *, ante.
VI
McVickers contends retroactive application of the mandatory AIDS testing provisions of Penal Code section 1202.1 violated the ex post facto clauses of the United States and California Constitutions (art. I, § 10 and art. I, § 9 respectively). We agree.
"[F]or a criminal or penal law to be ex post facto ... it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." (Weaver v. Graham (1981) 450 U.S. 24, 28-29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17, fn. omitted.) Such laws include those which "(1) impose criminal liability for conduct innocent when it occurred, (2) increase the punishment prescribed for a crime at the time it was committed, or (3) by necessary operation and ' "in [their] relation to the offense, or [their] consequences, alter the situation of the accused to his disadvantage...." ' [Citations.]" (Conservatorship of Hofferber (1980) 28 Cal.3d 161, 180, 167 Cal.Rptr. 854, 616 P.2d 836.)
" '[A] law need not impair a "vested right" to violate the ex post facto prohibition.' [Citation.] ... [However,] '[c]hanges which may be designated as procedural do not, as a rule, come within the ex post facto doctrine, but that in itself is not the true test.' [Citation.] ... 'Alteration of a substantial right, however, is not merely procedural, even if the statute takes a seemingly procedural form.' [Citation.] This is because 'it is the effect, not the form, of the law that determines whether it is ex post facto.' [Citation.] Yet the [United States Supreme Court has not undertaken] to define what is a 'substantial right' for this purpose, less still to prepare an inclusive list of such rights. [p] As to all but the most obvious examples of ex post facto legislation, in short, the general rule is that there is no general rule. Each new statute challenged on this ground must be individually weighed in the constitutional scales, in the context of a specific case, and the outcome will often depend on matters of degree--e.g., on how substantial is the right that the statute impairs and how significant is that impairment." (People v. Smith (1983) 34 Cal.3d 251, 259-260, 193 Cal.Rptr. 692, 667 P.2d 149, fns. omitted; see In re Jackson (1985) 39 Cal.3d 464, 472, fn. 7, 216 Cal.Rptr. 760, 703 P.2d 100 [containing a non-exhaustive list of "procedural" changes].)
Penal Code section 1202.1, enacted after McVickers' crimes, provides for mandatory AIDS blood testing for those convicted of certain offenses, some of which apply to McVickers. The Attorney General correctly asserts the purpose of the statute is to put AIDS carriers on notice so their punishments can been increased for future criminal sexual acts. Recognizing the principles stated above, he argues these consequences and those cited by McVickers are "merely procedural" because they are speculative, insubstantial and not punitive.
The section reads in relevant part: "[T]he court shall order every person convicted of a violation of a sexual offense listed in subdivision (d) ... to submit to a blood test for evidence of ... AIDS.... Each person tested under this section shall be informed of the results of the blood test. [p] (b) ... [T]he results of the blood test ... shall be transmitted ... to the Department of Justice. [p] (c) ... [T]he Department of Justice shall provide the results ... as to persons under investigation or being prosecuted under Section 647f or 12022.85 [punishing persons for engaging in certain crimes with knowledge they have AIDS] ... to the prosecuting attorney upon request for the sole purpose of preparing counts for a subsequent offense under Section 647f or sentence enhancement under Section 12022.85. [p] (d) For purposes of this section, sexual offenses include ... [u]nlawful intercourse ... in violation of Penal Code section 261.5" (Pen.Code, § 1202.1.)
To the statutory consequences, McVickers adds isolation in prison, social ostracism, and the psychological stress of knowing one has an incurable disease.
The Attorney General fails to consider the threshold "disadvantage" to McVickers, the invasion of his search and seizure and privacy rights inherent in a nonconsensual blood test. In Johnetta J. v. Municipal Court (1990) 218 Cal.App.3d 1255, 267 Cal.Rptr. 666, the court recognized these rights were implicated in the withdrawal of blood for AIDS testing pursuant to Health and Safety Code section 199.95. The court concluded, however, that public safety and the magnitude of the danger justified the invasion of these rights.
That section requires such a procedure where a person has mingled bodily fluids with a public safety official (e.g., by a bite).
In doing so it reasoned, " '[A] "compelled intrusio[n] into the body for blood to be analyzed ..." must be deemed a Fourth Amendment search.' [Citation.] The Fourth Amendment applies to an expectation of privacy 'that society accepts as objectively reasonable. [Citations.]' [Citations.] 'In light of our society's concern for the security of one's person, [citation], it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable. The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested [person's] privacy interests. [Citation.]' [Citation.] Indeed, because of privacy 'concerns about bodily integrity' and the potential revelation of 'private medical facts,' even the nonsurgical collection of breath and urine for chemical testing must be considered a search under the Fourth Amendment. [Citations.] The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.' [Citation.]" (Id. at p. 1271, 267 Cal.Rptr. 666.)
The court in Johnetta J. correctly concluded the invasion of these rights is justified by greater societal concerns. But in doing so the court properly recognized the rights are substantial. The loss of significant rights as the result of a criminal conviction has long been considered "punishment" for ex post facto purposes. In Sovereign v. People (1983) 144 Cal.App.3d 143, 192 Cal.Rptr. 469, Division Two of this district held ex post facto considerations prohibited retroactive application of a statute delaying a convicted felon's pardon eligibility because of the rights affected by the conviction. (Id. at p. 154, 192 Cal.Rptr. 469.)
California expressly recognizes the right to privacy apart from its existence in the search and seizure analysis. (Cal. Const., art. I, § 1.)
Our dissenting colleague misses the mark by balancing the societal interest in AIDS testing against the magnitude of the intrusion. That approach is proper in a Fourth Amendment analysis but not in considering whether a law is being applied in an ex post facto manner.
In doing so the court relied on venerable United States Supreme Court precedent. (See Cummings v. Missouri (1867) 71 U.S. (4 Wall.) 277, 18 L.Ed. 356; Ex Parte A.H. Garland (1867) 71 U.S. (4 Wall.) 333, 18 L.Ed. 366.) The court concluded, "If denying persons their civil and political rights ... constitutes 'punishment,' then surely prolonging the time that ex-prisoners remain subject to these penalties constitutes punishment, as well." (Sovereign v. People, supra, 144 Cal.App.3d at p. 154, 192 Cal.Rptr. 469.)
If our focus for determining "punishment" were on the enhanced penalties for a subsequent conviction of sex crimes by an AIDS carrier, the dissent's reliance on Carter v. Municipal Court (1983) 149 Cal.App.3d 184, 196 Cal.Rptr. 751 might have merit. We reiterate: Our focus is upon the intrusion of an involuntary blood test.
The blood test here involves the deprivation of McVickers' constitutional rights, although their deprivation is permissible under Johnetta J. v. Municipal Court, supra, 218 Cal.App.3d 1255, 267 Cal.Rptr. 666. Still, those rights may not be forfeited as a consequence of conviction where the statutory proviso is enacted after the crime. McVickers may not be subjected to the provisions of Penal Code section 1202.1.
The judgment is ordered modified by striking the order for blood testing pursuant to Penal Code section 1202.1. (Pen.Code, § 1260.) As modified, the judgment is affirmed.
SONENSHINE, J., concurs.
MOORE, Associate Justice, concurring and dissenting.
I concur in parts I, II, III, IV and V of the majority opinion, but dissent from part VI. I do not believe application of the mandatory AIDS testing provision of Penal Code section 1202.1 violates the ex post facto clauses of the United States and California Constitutions.
The majority reasons that the required blood test deprives McVickers of constitutional rights which, although permissible under Johnetta J. v. Municipal Court (1990) 218 Cal.App.3d 1255, 267 Cal.Rptr. 666, constitutes a "punishment" for ex post facto purposes. Accordingly, those rights may not be forfeited as a consequence of conviction because the statutory proviso was enacted after the crime. Acknowledging the fact that this invasion of McVickers's rights may be justified by greater societal concerns, the majority finds the deprivation of his rights was "substantial." I disagree.
"The reasonableness of a particular type of search 'is judged by balancing its intrusion on the individual's Fourth Amendment interests against its promotion of legitimate governmental interests.' (Delaware v. Prouse (1979) 440 U.S. 648, 654, 99 S.Ct. 1391, 1396, 59 L.Ed.2d 660 [citation], fn. omitted.)." ( Johnetta J. v. Municipal Court, supra, 218 Cal.App.3d at p. 1272, 267 Cal.Rptr. 666.) It is well known the administration of a blood test involves only a minimal physical intrusion of a person's body. (Skinner v. Railway Labor Exec. Assn. (1989) 489 U.S. 602, 625, 109 S.Ct. 1402, 1417, 103 L.Ed.2d 639, 665; Winston v. Lee (1985) 470 U.S. 753, 762, 105 S.Ct. 1611, 1617, 84 L.Ed.2d 662; Schmerber v. California (1966) 384 U.S. 757, 771, 86 S.Ct. 1826, 1836, 16 L.Ed.2d 908.) Furthermore, the dissemination of the test results is limited by section 1202.1's purpose of increasing a defendant's punishment in case of future criminal sexual conduct. (See Love v. Superior Court (1990) 226 Cal.App.3d 736, 276 Cal.Rptr. 660.)
The Legislature has declared that "[t]he rapidly spreading AIDS epidemic poses an unprecedented major public health crisis in California, and threatens, in one way or another, the life and health of every Californian." (Health & Saf.Code, § 199.45, subd. (a).) In 1989 the Legislature found and declared "that people with HIV infection may not avail themselves of early intervention services unless they are aware of the availability of the services and the efficacy of early intervention in prolonging life. This awareness by HIV-infected persons is critical to maximizing the benefits of early intervention...." (Health & Saf.Code, § 144.)
In light of this express Legislative intent, I believe the majority erroneously concludes the required blood test constitutes a punishment for ex post facto purposes. The testing of persons under Penal Code section 1202.1, with a subsequent penalty enhancement for future criminal sexual acts, "are a means to deter acts known to spread the disease." (Love v. Superior Court, supra, 226 Cal.App.3d 736, 743, 276 Cal.Rptr. 660.) The statutory scheme "addresses the problem of the awareness of members of a high-risk group of their HIV status for their own protection and that of those to whom they could transmit the virus.... [T]he testing requirement ... serves an obvious and compelling 'special need'." (Id. at p. 743, 276 Cal.Rptr. 660, fn. omitted.) Public safety and the magnitude of danger justifies the minimal invasion of McVickers's rights.
The majority relies primarily upon Sovereign v. People (1983) 144 Cal.App.3d 143, 192 Cal.Rptr. 469 in support of its holding that McVickers's rights may not be forefeited as a consequence of conviction because section 1202.1 was enacted after his crime. (Maj. opn., pp. 3-4.) However, Sovereign is distinguishable. There, a former prisoner successfully petitioned the superior court for a certificate of rehabilitation to restore his civil and political rights. (Pen.Code, § 4852.01 et seq.) Almost one year later, the People sought to vacate the order, alleging the applicant had not completed the necessary waiting period in light of a statutory amendment that substantially lengthened the waiting period before such a petition could be filed. The amendment was enacted after petitioner's release from prison, but before he filed the petition for rehabilitation. The Court of Appeal affirmed the denial of the People's motion to vacate holding that prolonging the civil and political disabilities to which the applicant was subject violated the constitutional prohibitions against ex post facto laws. (Id. at p. 154, 192 Cal.Rptr. 469.) By contrast, the mandatory AIDS testing provision of Penal Code section 1202.1 does not impose a substantially greater penalty for a repeat offender, but permits the imposition of an enhanced sentence for any subsequent conviction.
Even assuming, as does the majority, that Penal Code section 1202.1 imposes a substantially greater penalty for a repeat offender, it does not constitute an ex post facto law. A statute has an ex post facto effect when it alters a situation to the accused's disadvantage by: (a) making criminal an action innocent when done; (b) making more serious an act already criminal when done; (c) inflicting greater punishment than that attending the act at the time it was done; or (d) permitting a person to be convicted with less than was required when the act was done. (Carter v. Municipal Court (1983) 149 Cal.App.3d 184, 188, 196 Cal.Rptr. 751.) None of these considerations applies here. There is no attempt to make criminal an act which was innocent when done, nor does the statute increase the punishment for the prior convictions. Rather, the prior convictions are merely permissible factors to be considered by the court in determining the sentence for a subsequent conviction. It is clear so-called recidivist statutes--laws which utilize prior conduct to enhance the penalty for a new crime--are constitutionally permissible: "Heavier penalties are often provided by law for a second or any subsequent offense than for the first; and it has not been deemed objectionable that in providing for such heavier penalties the prior conviction authorized to be taken into account may have taken place before the law was passed [citations]. In such case it is the second or subsequent offense which is punished, not the first." (People v. James (1925) 71 Cal.App. 374, 378, 235 P. 81.) Penal Code section 1202.1 provides the results of the AIDS testing shall be provided to the defendant as well as the prosecuting attorney "for the sole purpose of preparing counts for a subsequent offense...." Thus, it is only the subsequent offense which is punishable, not the first.
"A statute is not retroactive in operation merely because it draws upon facts antecedent to its enactment for its operation.... The crime for which the defendant is punished in an instance such as we have here is not the earlier felony, but the new and separate crime of which the prior felony conviction is only a constituent element. Without the defendant's commission of new and additional acts after he has notice of the new legislation, the statute passed or amended after the constituent felony conviction would not come into play." (People v. Venegas (1970) 10 Cal.App.3d 814, 823, 89 Cal.Rptr. 103; see also People v. Sweet (1989) 207 Cal.App.3d 78, 83, 254 Cal.Rptr. 567; People v. Williams (1983) 140 Cal.App.3d 445, 448, 189 Cal.Rptr. 497.)
. Carter v. Municipal Court, supra, 149 Cal.App.3d 184, 196 Cal.Rptr. 751 is instructive. There, the defendant was convicted in 1977 and 1981 of drunk driving. In 1982 she was again charged with drunk driving and her prior convictions were alleged for the purpose of enhancing punishment under newly-enacted laws substantially increasing the penalties for repeat offenders. The Court of Appeal rejected defendant's contention that the use of the pre-1982 convictions to enhance punishment under the new statutes constituted an ex post facto law, noting the earlier convictions were "merely factors to be considered by the court in determining the sentence for the 1982 conviction." (Id. at p. 189, 196 Cal.Rptr. 751.) Without the defendant's commission of a subsequent crime under the new statute, the prior convictions would not come into play. (Id. at p. 189, 196 Cal.Rptr. 751; see also People v. Sweet, supra, 207 Cal.App.3d at pp. 86-87, 254 Cal.Rptr. 567.) So it is here.
I would affirm the judgment of conviction without modification.
We recognize the AIDS threat to society is real and substantial. No one questions the propriety of civil and criminal legislation aimed at stopping its spread. But no case has suggested that a criminal law may be applied ex post facto if its goal is noble enough. Indeed, most criminal laws have a compelling societal interest behind their enactment.
The dissent acknowledges the purpose behind Penal Code section 1202.1 is deterring future criminal sex acts by AIDS carriers. As such, it is subject to the ex post facto analysis. We decline to adopt our colleague's apparent rejection of Johnetta J.'s pronouncement that the invasion inherent in a mandatory blood test is substantial.