Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from a judgment of the Superior Court of Los Angeles County. Craig E. Veals, Judge, Ct. No. BA271083
William Flenniken, Jr., 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, Mary Sanchez and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.
RUBIN, ACTING P. J.
Edward Dwayne Lewis appeals from the judgment entered after he pleaded no contest to forcible rape, contending that his arrest was based on DNA evidence taken from him years earlier in violation of his constitutional right against unreasonable government searches and seizures. We agree with the several California appellate court decisions that have rejected such contentions and affirm the judgment.
FACTS AND PROCEDURAL HISTORY
A woman was forcibly raped and sodomized by a man who threatened her with a box cutter in March 2002. After reporting the crime to the police, the woman was examined by a member of a police sex assault response team, who saw bruises, tears, abrasions, and swelling around her vagina and rectum. There was also dried blood on her underpants. DNA testing of sperm found in the blood drew a match with Edward Dwayne Lewis, who had been required to give a blood sample while on parole years earlier pursuant to the state’s DNA database act. (Pen. Code, §§ 295-300.3.) An oral swab was used to take another DNA sample from Lewis in 2004, and the test results confirmed that by an extremely high probability the DNA found in the victim’s underpants came from Lewis. The victim also identified Lewis from live and photo lineups and at the preliminary hearing.
All further section references are to the Penal Code.
The odds of another match were placed at one out of 197.5 quadrillion.
Lewis was charged with three counts of forcible sodomy, and one count each of forcible rape, second degree robbery, kidnapping to commit another crime and burglary. He moved to suppress the DNA evidence on the ground that it was obtained in violation of his constitutional right to be free from unreasonable government searches and seizures. When that motion was denied, he pleaded no contest to the forcible rape count, the other counts were dismissed, and he was given a sentence of 25 years to life in state prison. Lewis contends the trial court erred when it denied his motion to suppress.
DISCUSSION
Pursuant to section 296, convicted felons must provide blood and other biological samples as part of the state’s DNA databank, which was created to help law enforcement identify criminals and exonerate the innocent. Lewis had been convicted of several felonies, including robbery, burglary, and unlawful firearms possession, and was on parole when DNA samples were taken from him in 2003. He was discharged from parole in February 2004, and his DNA sample was matched in this case about five months later.
Relying on three United States Supreme Court decisions – Illinois v. Lidster (2004) 540 U.S. 419 (Lidster), Ferguson v. City of Charleston (2001) 532 U.S. 67 (Ferguson), and Indianapolis v. Edmond (2000) 531 U.S. 32 (Edmond) – Lewis contends section 296 violates his Fourth Amendment protection against unreasonable searches and seizures because it is a general law enforcement tool and authorizes searches and seizures without individualized suspicion.
Lidster and Edmond were highway checkpoint cases and Ferguson involved drug testing of pregnant women. Every reported California appellate decision to consider the applicability of those three decisions to section 296 has rejected contentions identical to those of Lewis and affirmed the constitutionality of section 296. (See People v. Travis (2006) 139 Cal.App.4th 1271, 1281-1290 (Travis); People v. Johnson (2006) 139 Cal.App.4th 1135, 1158-1168 (Johnson); People v. Adams (2004) 115 Cal.App.4th 243, 255-259 (Adams); see also Alfaro v. Terhune (2002) 98 Cal.App.4th 492 [rejecting constitutional challenges in action to enjoin implementation of section 295 et seq.].) The underlying rationale of those decisions rests on the diminished privacy expectations of convicted felons, combined with the minimal intrusion involved in obtaining samples and the compelling government interest served by the DNA database. (See Adams, at pp. 257-258.) Lewis asks us to find their reasoning faulty particularly because he was no longer on parole when the database was searched.
We find his purported distinction without merit. Under his reasoning, the DNA samples obtained would either have to be deleted, or could not be searched, if the person who gave the sample had completed all terms of his sentence. The distinction is neither logical nor relevant to the question whether the sample was properly obtained at the time it was given. We agree with and adopt the reasoning of Travis, Johnson, and Adams.
Those three decisions so thoroughly and convincingly discussed and analyzed this issue that we see no reason to replow the ground they already dug.
Lewis also contends that a provision of section 295 that gives international police agencies access to the DNA databank violates his constitutional right to privacy. We reject this contention for two reasons. First, section 295 does not give the Department of Justice free reign to turn over its DNA database to a foreign entity and, regardless, it does not violate a convicted felon’s diminished privacy expectations. (People v. McCray (2006) 144 Cal.App.4th 258, 266-267 (McCray).) Second, relief by way of direct appeal is not available because the party with primary responsibility for collecting and disseminating information from the databank is the Department of Justice, which is not a party, and compliance with the DNA law is required by law even without a trial court order. (McGray, at p. 264; see also People v. Dial (2005) 130 Cal.App.4th 657, 661-662.)
Section 295, subdivision (g) provides that the California Department of Justice is responsible for managing the databank and for “liaison with the Federal Bureau of Investigation (FBI) regarding the state’s participation in a national or international DNA database . . . .”
We reject Lewis’s contention that this portion of McCray was dicta. Regardless, we deem it persuasive and adopt it in either event.
DISPOSITION
For the reasons set forth above, the judgment is affirmed.
WE CONCUR: FLIER, J., BIGELOW, J.