Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County. Los Angeles County Super. Ct. No. YA 059916 Mark S. Arnold, Judge
Waldemar D. Halka, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Michael C. Keller and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
ROTHSCHILD, J.
James Calbert was convicted of four rapes and three robberies and sentenced to state prison for 413 years to life. He challenges various aspects of his conviction and sentence. We conclude that one of the restitution orders was unauthorized and must be vacated, but we otherwise affirm the judgment.
BACKGROUND
The second amended information charged Calbert with four counts of forcible rape in violation of Penal Code section 261 (counts 1, 2, 4, and 6) and three counts of robbery in violation of Penal Code section 211 (counts 3, 5, and 7). All of the rape charges were accompanied by allegations that Calbert bound or tied the victims in the commission of the offenses. (§ 667.61, subds. (a), (c), (e).) The information further alleged that Calbert used a firearm in the commission of counts 1 and 2 (§ 667.61, subds. (a), (c), (e)), and that he committed count 4 during the commission of a burglary (§ 667.61, subds. (a), (c), (e)). Counts 1 through 4 also alleged that Calbert had been convicted of seven prior serious or violent felonies within the meaning of the “Three Strikes” law (§§ 667, subds. (a)(1), (b)-(i), 1170.12, subds. (a)-(d)), and had served three prior prison terms (§ 667.5, subd. (b)).
All further statutory references are to the Penal Code.
The rapes and robberies were committed in 1999 to 2001. The authorities linked Calbert to the crimes by means of samples of his DNA collected on November 5, 2004, when he was being held in the lockup facility of the Torrance courthouse. Calbert was in custody as a result of his conviction in 2003 of attempted second degree robbery and being an ex-felon in possession of a firearm. (See People v. Calbert (Mar. 23, 2004, B167389) [non-pub. opn.].)
Calbert pled not guilty to each count and denied all of the special allegations. The court granted Calbert’s motion to bifurcate trial of the prior conviction allegations. A jury found Calbert guilty on all counts and found all of the remaining special allegations true. He waived his right to jury trial on the prior conviction allegations, which the court found true after a bench trial.
The trial court sentenced Calbert to 413 years to life, which the court calculated as follows: (1) on each rape count, 25 years to life pursuant to section 667.61, subdivisions (a), (c), and (e), tripled pursuant to the Three Strikes law, plus 5 years pursuant to section 667, subdivision (a)(1), for a total of 80 years to life on each of those four counts; (2) on each robbery count, 25 years to life pursuant to the Three Strikes law, plus 5 years pursuant to section 667, subdivision (a)(1), for a total of 30 years to life on each of those three counts; (3) three one-year terms pursuant to section 667.5, subdivision (b); and (4) all terms to run consecutively. The court further ordered that the sentence imposed in this case run consecutively to a sentence imposed in a previous case, number SA043117-01.
At a later restitution hearing, the parties stipulated to, and the court ordered, restitution in the amount of $66,233.53 to Donna C. and $59,899.71 to CIGNA Insurance.
DISCUSSION
I. Denial of the Motion to Suppress the DNA Evidence
When Calbert was convicted of the two offenses in 2003, section 296 required only persons convicted of certain enumerated felonies—not including those of which Calbert was convicted in 2003—to provide DNA samples. (See § 296 (2003); People v. Calbert, supra, B167389.) By the time the authorities collected DNA samples from Calbert on November 5, 2004, however, section 296 had been amended to require all convicted felons—including those whose felony convictions predated amendment of the statute—to provide such samples. (§ 296, subd. (a)(1); § 296.1, subd. (b).)
Before trial, Calbert moved to suppress the DNA evidence on the ground that the collection of his DNA samples was not authorized by statute when he was convicted of the offenses in 2003. The trial court denied the motion. On appeal, Calbert argues that the court should have suppressed the DNA evidence because (1) the retroactive application of the requirement that all convicted felons provide DNA samples violates the ex post facto clause of the United States Constitution, and (2) the collection of the DNA samples violated his rights under the Fourth Amendment and his constitutional right to privacy.
Insofar as Calbert argues on appeal that the collection of his DNA samples was not statutorily authorized when it took place, he is mistaken. The current version of section 296, authorizing collection of DNA samples from all convicted felons and providing for retroactive application, became effective on November 3, 2004, two days before Calbert’s samples were collected.
We disagree. The application of the current version of section 296 to persons convicted before the statute was amended does not violate the ex post facto clause because the collection of DNA samples does not constitute punishment. (People v. Travis (2006) 139 Cal.App.4th 1271, 1294-1295; People v. Espana (2006) 137 Cal.App.4th 549, 553-556.) Nor does the collection of DNA samples pursuant to section 296 violate the Fourth Amendment or the right to privacy. (People v. Travis, supra, 139 Cal.App.4th at pp. 1281-1290.)
II. Questions Concerning Calbert’s Failure to Seek Independent Testing of the DNA Evidence
At trial, the prosecution presented testimony from experts who were involved in testing the DNA samples and matching the profiles that the tests generated. One of the experts, John Bockrath, testified that he used just a portion of the sample that was collected from one of the victims and that he returned the rest of the sample to storage. He further testified that one of the reasons to preserve part of the sample is to make it available if the defense wants to conduct its own tests. The prosecution asked him whether the defense had ever requested the sample to do its own testing, and he said they had not. The defense objected to the question, but the court overruled the objection.
The prosecution’s remaining experts testified that they returned to storage the unused portions of their samples to preserve the samples for possible additional testing. Unlike Bockrath, those witnesses were not asked, and hence did not say, whether the defense ever asked for access to those samples in order to test them.
Calbert argues that all of the foregoing testimony concerning the unused portions of the DNA samples should have been excluded because it “implied to the jury the defense’s failure to test the DNA evidence established appellant’s guilt, thereby improperly shifting the burden of proof to the defendant.” He argues that his case is analogous to Griffin v. California (1965) 380 U.S. 609, in which the United States Supreme Court held that the Fifth Amendment prohibits comment on a defendant’s exercise of the privilege against self-incrimination.
“It has long been established that ‘although Griffin prohibits reference to a defendant’s failure to take the stand in his own defense, that rule “does not extend to comments on the state of the evidence or on the failure of the defense to introduce material evidence or to call logical witnesses.”’ (People v. Vargas (1973) 9 Cal.3d 470, 475 . . .; see 5 Witkin & Epstein, Cal. Criminal Law (3d ed. 2000) Criminal Trial, § 575, pp. 822–823 [collecting cases].) Thus, ‘[a]s a general principle, prosecutors may allude to the defense’s failure to present exculpatory evidence’ (People v. Guzman (2000) 80 Cal.App.4th 1282, 1289 . . .), and such commentary does not ordinarily violate Griffin or erroneously imply that the defendant bears a burden of proof [citations].” (People v. Lewis (2004) 117 Cal. App.4th 246, 257.)
For all of the foregoing reasons, we find Calbert’s argument unpersuasive. The prosecution’s allusions to Calbert’s failure to conduct and present his own tests of the DNA evidence did not violate Griffin v. California, supra, 380 U.S. 609, or erroneously imply that the defense bore the burden of proof.
III. Cruel and Unusual Punishment
Calbert argues that his sentence of 413 years to life constitutes cruel and unusual punishment in violation of both the federal Constitution and the California Constitution. He contends that because he “has only one life to give, . . . multi-life sentences such as his are simply absurd and disproportionate to the crimes committed.” He concludes that his sentence, “which is the functional equivalent to a life sentence without the possibility of parole,” should “be declared unconstitutional and modified to a single life term.” We disagree.
The trial court imposed the sentence as punishment for four rapes and three robberies, and Calbert had been convicted of seven prior serious or violent felonies within the meaning of the Three Strikes law. Under these circumstances, his sentence does not constitute cruel and unusual punishment under the federal Constitution. (See Lockyer v. Andrade (2003) 538 U.S. 63, 74-75, fn. 1, 77, 79 [rejecting a habeas petitioner’s argument that a sentence of 50 years to life—in effect a sentence of life without the possibility of parole—constituted cruel and unusual punishment for petty theft with a prior].) Nor does Calbert’s sentence constitute cruel and unusual punishment under the California Constitution. (See In re Lynch (1972) 8 Cal.3d 410, 423-427 [describing the framework for analysis of allegedly cruel and unusual sentences under the California Constitution]; In re Maston (1973) 33 Cal.App.3d 559, 560-566 [applying In re Lynch, supra, and concluding that a sentence of life without the possibility of parole was not cruel and unusual punishment when imposed on defendants who “kidnapped, beat, robbed and raped a woman” and then pled guilty to “kidnap-robbery with bodily harm”].)
IV. Restitution
Calbert argues that the order to pay $59,899.71 to CIGNA must be reversed because CIGNA was not a victim of his crimes within the meaning of section 1202.4. We agree.
We reject respondent’s argument that Calbert waived this issue by stipulating to the restitution award, because a challenge to an unauthorized restitution award can be raised for the first time on appeal. (People v. Smith (2001) 24 Cal.4th 849, 853.)
Respondent concedes that “an insurance company that is not a direct victim of crime cannot be awarded restitution.” (See People v. Saint-Amans (2005) 131 Cal.App.4th 1076, 1085 [“Insurance companies that merely indemnify a direct victim of a crime . . . are not entitled to restitution.”].) Respondent nonetheless attempts to salvage the restitution order by arguing that, in substance, restitution was awarded only to Donna C., who was a direct victim of Calbert’s crimes. We disagree. The challenged “Order for Restitution to Crime Victim” expressly orders payment of restitution to “CIGNA Insurance” in the amount of $59,899.71. Because CIGNA was not a direct victim of Calbert’s crimes, the trial court lacked authority to order Calbert to pay restitution to CIGNA.
DISPOSITION
The order to pay restitution to CIGNA Insurance is reversed. The judgment is otherwise affirmed.
We concur: VOGEL, Acting P. J., JACKSON, J.
(Judge of the L. A. S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)