Filed 2/18/16 P. v. Batten CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G050277

         v.                                                            (Super. Ct. No. 11HF1885)

TRAVIS DEWAYNE BATTEN, JR.,                                            OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Sheila F.
Hanson and Patrick Donahue, Judges. Affirmed.
                   Sharon M. Jones, under appointment by the Court of Appeal, for Defendant
and Appellant.
                   Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne
G. McGinnis and Felicity Senoski, Deputy Attorneys General, for Plaintiff and
Respondent.
                                          *                  *                  *
              Defendant Travis Dewayne Batten, Jr., was found guilty of a number of sex
offenses after trial by jury. He raises two issues on appeal: (1) That the police obtained
his DNA as a result of a prolonged detention in violation of the Fourth Amendment, and
with the suppression of that evidence there was insufficient evidence to convict him of
any of the charges; and (2) Even if the DNA evidence is not ordered suppressed, the
evidence was insufficient to support his conviction for kidnapping.
              Defendant had been lawfully detained for driving with illegally tinted
windows. He asks us to conclude the detention was unduly prolonged by police so they
could surreptitiously obtain his DNA from a breath test straw and that introduction of his
DNA obtained from the straw prejudiced him at trial. Defendant is correct that the DNA
sample was obtained in violation of his Fourth Amendment rights and that evidence
should have been suppressed. The error was harmless, however, because a buccal swab
containing his DNA was taken when he was arrested days after the traffic stop.
Defendant did not challenge the lawfulness of his arrest. Needless to say, the DNA
profiles obtained from the breath tests straw and the buccal swab were the same.
Defendant’s DNA from the buccal swab matched the DNA samples left on each victim
by their attacker. Additionally, defendant left his thumbprint on the duct tape he used to
bind one of the victims.
              We also find the evidence supports the kidnapping charge. Accordingly,
we affirm the judgment.
                                             I
                                          FACTS
              The district attorney charged defendant in the information with a number
of offenses arising out of two instances involving two different female victims. Based on
a May 20, 2005 incident, defendant was charged with one count each of residential




                                             2
burglary (Pen. Code,1 §§ 459, 460, subd.(a); count one), kidnapping to commit a sex
offense (§ 209, subd. (b)(1); count two), assault with intent to commit a sex offense
(§ 220; count three), and dissuading a witness by force or threat (§ 136.1, subd. (c)(1);
count four). Based on a November 30, 2006 incident, defendant was charged with
penetration with a foreign object (§ 289, subd. (a)(1); count five), two counts of forcible
rape (§ 261, subd. (a)(2); counts six and eight), forcible sodomy (§ 286, subd. (c)(2);
count seven), and assault with intent to commit a sexual offense during a first degree
burglary (§ 220, subd. (b); count nine).2
              After the prosecution’s case-in-chief, the court dismissed counts one and
four pursuant to defendant’s section 1118.1 motion because the applicable statute of
limitations had expired before those charges were filed. The jury convicted defendant on
the remaining counts (counts two, three, and five through nine) and found the special
sentencing allegations true.
              The court sentenced defendant to life in prison with the possibility of parole
on count two (kidnapping to commit sex offense). On counts five (penetration with a
foreign object), six (forcible rape), seven (forcible sodomy), and eight (forcible rape), the
court sentenced defendant to four consecutive terms of 25 years to life, for a total
commitment of life with a consecutive term of 100 years to life. The sentences on counts
three (assault with intent to commit a sex offense) and nine (assault with intent to commit
a sex offense during commission of a first degree burglary) were ordered stayed pursuant
to section 654.




              1   All undesignated statutory references are to the Penal Code.

              2  Four charges and their attendant special allegations based on an alleged
July 8, 2010 incident involving a third alleged victim were dismissed prior to trial on the
district attorney’s motion.

                                               3
Counts Two and Three
              In May 2005, Karen S. lived alone in a second floor condominium in
Newport Beach. Her garage was on the street level. On May 20, 2005, she returned
home at approximately 8:00 p.m., after working out at the gym and grocery shopping.
The front door was not locked because Karen had been having trouble with the lock.
Upon entering her residence, Karen heard a noise and saw something to her left, out of
the corner of her eye. It was a man wearing a dark mask that covered his head, except for
his eyes. Although she could not see his face, Karen saw the man’s arms and believed he
was Caucasian.
              The intruder lunged at Karen and tackled her before she could go back out
the front door. He said he was there to rob her, and something about being in the wrong
house. He said he was going to “hog-tie” her and if she cooperated, she would be alright.
The man then pulled Karen to inside a bedroom about six or seven feet from where he
had tackled her, pushed her onto the bed in the room, duct taped her arms behind her
back, wrapped duct tape around her mouth and head, and said he would hurt her if she
did not cooperate. He also said something about a knife.
              The man said he heard a noise in the back of the house and asked if anyone
else was in the residence. He moved Karen into the hallway and toward the back
bedroom. Feeling she was not going to be robbed, Karen attempted to bargain with the
man, offering him her Mercedes and her purse. He pushed Karen into the master
bedroom and put her on the left side of the bed, about 30 feet from where they were when
he duct taped her mouth. No lights were on and it was dark in the master bedroom. It
had been lighter where the man first tackled Karen.
              Karen was seated on the side of the bed and face-to-face with the intruder.
He lifted her light sweatshirt and started to lick her breasts. He told her not to look at
him. He also said something about having been in jail and that he was lost. Karen feared
for her life and started fighting. The man punched her. She struggled to stay conscious.

                                              4
At one point during the struggle, he was on top of Karen and put his hand between her
legs over her shorts. The struggle lasted about five minutes. Karen attempted to chew
her way through the duct tape covering her mouth, but felt no one would hear her scream
because she was so far away from the front door.
              The intruder threw Karen to the ground and told her he would return if she
called the police. He left and when she heard the front door close, Karen freed herself
and called 911. When the police arrived, a female officer cut the duct tape off of Karen
and preserved the tape for any biological evidence. She also took swabs from areas the
intruder licked on Karen’s breasts. The swabs were subsequently submitted to the
Orange County’s crime lab for DNA analysis.
              Later that night, about 11:50 p.m., defendant went to an emergency room
for what was diagnosed as a fracture of his fourth metacarpal of his right hand, for what
is known as “boxer’s fracture.” The term refers to poor boxing skills. Defendant told the
treating physician he had injured his hand at work when a cylinder fell on his hand.
When defendant went to work at Fletcher Jones Motor Cars on May 23, 2005, he had a
bandage on his right hand and claimed to have been in a bar fight over the weekend.
              Karen drove a Mercedes she had purchased from the Fletcher Jones
dealership. She had the car serviced there a number of times in 2005.


Counts Five Through Nine
              Danielle F. was a receptionist at a gym in November 2006. She lived in a
studio apartment while attending school. On November 30, 2006, she went out for dinner
with her boyfriend and other friends. After dinner she went with her boyfriend to his
apartment for a while before returning home to write a paper for school. After working
on the paper for “a long time,” Danielle decided to take a shower and return to her
boyfriend’s residence. It was about 11:00 p.m. or later. Danielle did not remember
whether her front door was locked or unlocked.

                                            5
                 Danielle was in the shower for about 15 to 30 minutes. She got out and put
a towel around her before she began brushing her hair. Her cell phone rang and when she
went to answer it, a man lunged at her and tackled her. He came at her from the direction
of the front door. The man wore a white T-shirt and jeans. There was “something
wrapped around his face.” It appeared to be a ripped cloth or T-shirt type material and
was “pinkish orange.” Danielle could only see his eyes, hair, and arms.
                 The intruder used zip ties to tie Danielle’s arms behind her back as soon as
he took her to the ground. She screamed and the man commented that it was loud and he
hoped nobody heard. The man made Danielle get up and turn off all the lights in the
apartment. She did as she was told. He left the television on and made Danielle lay face
down on the ground. Once she was on the ground, the man asked her if it had been her
boyfriend who called her cell phone. He asked Danielle her name, and she told him.
                 Danielle started to fight back when the man began touching her breasts. He
tore the towel off her, put his hands around her neck, and threatened to choke her or
break her neck. She was still on her stomach when the intruder began to rape her. He
sodomized her as well, but she jumped because it hurt. The male then entered her vagina
again. The man climaxed onto Danielle’s back. He cleaned Danielle off with a towel.
He got a pair of scissors, cut off the zip ties, and took Danielle back to the shower, and
asked her to get inside. Danielle knew any DNA evidence was on her back, so she made
sure to only wash the front of her body. When she got out of the shower, he was gone
and the back door slider was open.
                 Danielle got dressed and went to her boyfriend’s residence, where a friend
called 911. She returned to her apartment with a police officer. Danielle noticed the
towel she had been wearing was missing. The zip ties were gone too. She then went to
the hospital where multiple swabs were taken. The swabs were booked into evidence for
later testing.



                                                6
The Investigation and Other Evidence
               On July 11, 2011, Irvine Police Officer Erika Hutchcraft, who was one of
the investigating officers on the incident involving Danielle, observed a dark gray
Chevrolet Silverado pickup truck with dark tinted windows driving on the street that
surrounds the apartment complex in which Danielle lived. About half an hour later, she
saw the pickup driving through the apartment complex. Hutchcraft’s partner noted the
license plate number of the pickup and a subsequent DMV check disclosed the truck was
registered to defendant. Hutchcraft also obtained defendant’s photograph and a digital
photograph of his right thumbprint.
               A fingerprint expert was then asked to compare a fingerprint lifted from the
duct tape used on Karen with a defendant’s thumbprint from DMV. The expert found 15
points of similarity between the two prints and concluded the latent print on the duct tape
was left by defendant. The latent was also compared with thumbprint from defendant’s
citation for tinted windows and once defendant was arrested, with his rolled prints. They
all matched.
               On July 14, 2011, defendant’s pickup truck was stopped by Irvine Police
for tinted windows and issued a citation. The car stop with its attendant citation was a
ruse to give the police an opportunity to surreptitiously obtain a DNA sample from
defendant. When the attempt to get defendant to lick his thumb before putting his
thumbprint on the ticket failed, the police decided to attempt to get defendant to take a
breath test with a preliminary alcohol screening (PAS) device. Defendant agreed to take
the test. He took the first test, waited two minutes, and took the test a second time.
Detective Victoria Hurtado requested the crime lab process the PAS straws for DNA and
if DNA was retrieved, to compare it with the DNA profile from Karen and Danielle’s
cases.
               On July 19, 2011, a search warrant issued for defendant’s home, pickup
truck, and his workplace at Fletcher Jones. Bundles of zip ties were found in his truck

                                              7
and in his workplace at Fletcher Jones.
              On July 20, 2011, at about 10:00 a.m., Hurtado got a call back from the
crime lab. Defendant was arrested later that day.
              The crime lab analyzed the swab samples obtained from Karen’s right
breast and Danielle’s back, the sample obtained from a PAS straw, and the sample
obtained from a buccal swab sample taken from defendant on the day of his arrest. The
breast swab was compared to the back swab: both contained DNA from the same male.
The frequency of randomly obtaining such a result was one in one trillion. The DNA
sample obtained from Karen’s breast was compared to defendant’s DNA obtained from
the PAS straw. It was a match. The DNA obtained from the swab of Danielle’s back
was compared to the defendant’s DNA from the PAS straw. It matched too. The DNA
from the PAS straw matched the DNA from the buccal swab obtained on the date of
defendant’s arrest.
                                             II
                                      DISCUSSION
A. Sufficiency of the Evidence
              Defendant contends the evidence does not support his conviction for
kidnapping (count two). We disagree.
              In reviewing whether the evidence supports a verdict, we “review[] the
entire record in the light most favorable to the judgment to determine whether it discloses
evidence that is reasonable, credible, and of solid value such that a reasonable” fact finder
could find beyond a reasonable doubt the accused violated the charged statute. (People v.
Rountree (2013) 56 Cal.4th 823, 852-853.) We “presume[] in support of the judgment
the existence of every fact the trier could reasonably deduce from the evidence.” (People
v. Kraft (2000) 23 Cal.4th 978, 1053.) If such evidence is found to exist, it does not
matter that the evidence could also be consistent with innocence. (People v. Farris
(1977) 66 Cal.App.3d 376, 383.)

                                             8
              Defendant was convicted in count two of the information with violating
section 209, subdivision (b)(1). “Any person who kidnaps or carries away any individual
to commit robbery, rape, spousal rape, oral copulation, sodomy, or any violation of
Section 264.1, 288, or 289, shall be punished by imprisonment in the state prison for life
with the possibility of parole.” (§ 209, subd. (b)(1).) In order to violate this provision,
the defendant must have moved the victim a substantial distance and in doing so,
“‘substantially increased the risk of physical or psychological harm to the person beyond
that necessarily present in the rape or sexual penetration.’” (People v. Robertson (2012)
208 Cal.App.4th 965, 987.) Additionally, “‘[w]here a defendant drags a victim to another
place, and then attempts a rape, the jury may reasonably infer that the movement was
neither part of nor necessary to the rape.’ [Citation.]” (Id. at p. 984.)
              The crime of kidnapping for purposes of rape requires the jury to initially
find the movement of the victim was not “merely incidental” to the rape. (People v.
Robertson, supra, 208 Cal.App.4th at p. 983.) If this first element is met, the jury must
then decide whether the movement increased the risk of harm over than necessarily
present in the rape. (Ibid.) The evidence supports the jury’s determination that both
elements were proven.
               “‘Where the movement changes the victim’s environment, it does not have
to be great in distance to be substantial.’ (People v. Shadden [(2001) 93 Cal.App.4th
[164,] 169, 167–169 [dragging a store clerk nine feet from the front counter of a store to a
small back room for the purpose of raping her was sufficient to support aggravated
kidnapping conviction]; People v. Smith (1995) 33 Cal.App.4th 1586, 1594 [moving
victim 40 to 50 feet from driveway that could be viewed from the street into a camper at
the rear of the house for the purpose of rape was sufficient to support aggravated
kidnapping conviction]; People v. Salazar (1995) 33 Cal.App.4th 341, 348–349
[movement of victim 29 feet from outside walkway to bathroom of motel room for the
purpose of rape was sufficient to support aggravated kidnapping conviction].)” (People

                                               9
v. Robertson, supra, 208 Cal.App.4th at p. 986.)
              Here, defendant confronted and tackled Karen just inside the door to her
residence. After that, he dragged her six or seven feet into an adjacent area of the
apartment where he tied and bound her. Then, he took her to the bedroom at the back of
the residence, about 30 feet from the front door where he initially assaulted her. This
distance increased the risk of harm to Karen. Having been moved such a distance from
the front door, Karen felt it would have been useless to scream because no one would
hear her so far from the front door. The movement to the back of the residence decreased
the chance of detection. The movement from the front door, where Karen may have been
heard had she called out, to the back bedroom and a point where she felt no one would
hear her if she screamed, changed the physical and psychological environment where
defendant sexually assaulted her. (People v. Robertson, supra, 208 Cal.App.4th at p.
987.) The evidence supports the conviction.


B. The Motion to Suppress Evidence
              Defendant’s second issue is more difficult. Defendant filed a motion to
suppress evidence pursuant to section 1538.5 for a purported violation of his Fourth
Amendment right to be free from unreasonable searches or seizures. He sought to
suppress DNA samples obtained as a result of what he contended was an unlawfully
prolonged detention. The superior court denied the motion.
              “In ruling on a motion to suppress, the trial court must find the historical
facts, select the rule of law, and apply it to the facts in order to determine whether the law
as applied has been violated. [Citation.] We review the court’s resolution of the factual
inquiry under the deferential substantial evidence standard. The ruling on whether the
applicable law applies to the facts is a mixed question of law and fact that is subject to
independent review. [Citation.]” (People v. Ramos (2004) 34 Cal.4th 494, 505.)
              On July 14, 2011, Hurtado asked Irvine Police Officer Jenny Lindsey to

                                             10
stop defendant’s pickup truck on a pretext and to surreptitiously obtain a sample of his
DNA during the stop. Lindsey went on patrol that day with “a clean ticket book and a
clean pen.” That evening, she received word defendant’s vehicle was on the move.
When Lindsey saw defendant’s pickup truck, it had already been stopped by Officer
Wong for a tinted window violation. The stop and interaction between Lindsey and
defendant was recorded.
              At 7:23 p.m., Wong was behind defendant’s pickup truck. Three seconds
later, Wong activated his red light. Defendant stopped his pickup truck at the driveway
entrance to his apartment complex. When stopped, he half blocked the underground
parking driveway. Wong approached defendant’s pickup truck and Lindsey subsequently
arrived at the car stop at 7:26:41 p.m. Wong had obtained defendant’s driver license and
gave it to Lindsey when she arrived. Lindsey approached defendant, who was in his
pickup truck, and told him he was stopped because of the tinted windows on the truck.
She went back to her patrol car and wrote defendant a citation. She explained the citation
to defendant and he signed it. After he signed the citation, Lindsey asked him for his
thumbprint on the citation. The idea was to get defendant to lick his thumb before giving
the thumbprint. That way his DNA could be obtained from the citation. Lindsey told
defendant her ink pad was dry and asked him to lick his thumb prior to rolling it across
the ink pad. That ploy did not work because defendant’s hands were dirty from work, so
he used bottled water to wet his thumb.
              Ordinarily, a detention for tinted windows would end with the issuance of
“a fix-it ticket.” When the plan to obtain DNA from the thumbprint did not work,
Lindsey extended the detention and told defendant to wait. She returned to the squad cars
and cooked up an idea whereby Wong, a DUI (driving under the influence) enforcement
officer, would attempt to get defendant to consent to a breath test with the PAS
breathalyzer. Wong returned to defendant’s pickup truck. He said he was a member of
the DUI enforcement team and wanted to make sure defendant was “okay to drive.” He

                                            11
asked defendant to take a breath test. Defendant was already at the entry of his driveway
and the officers observed absolutely no sign that he may be impaired. Having defendant
take a breath test was “purely a ruse.” After the citation process was completed and
defendant waited for the breath test, he removed the tinting from his pickup’s windows,
with Lindsey’s permission.
              Defendant agreed to perform the test. Wong returned to his squad car and
obtained a PAS device. He then had defendant get out of his pickup truck and provide
two breath samples. The PAS device was taken to Lindsey’s squad car and defendant
was released. The only DNA evidence obtained that day was from the PAS test.
Defendant had been detained for approximately 20 minutes. The detention ended at
7:47:43 p.m. Ordinarily, a stop based on window tint would take five to seven minutes.
              Defendant contends his detention was unduly prolonged so the police could
obtain a DNA sample and that once he signed the citation the police had no valid reason
to detain him any longer. The Attorney General argues the detention was not prolonged,
because the time it took to get defendant to agree to take a PAS test and to perform the
test did not “measurably” extend defendant’s detention, relying on the United States
Supreme Court’s decision in Arizona v. Johnson (2009) 555 U.S. 323, 333. The
applicable test, however, is set forth in Rodriguez v. United States (2015)       U.S.
[135 S.Ct. 1609].
              In Rodriguez, a K-9 officer stopped Rodriguez for driving on a highway
shoulder in violation of Nebraska law. (Rodriguez v. United States, supra,          U.S. at p.
   [135 S.Ct. at p. 1612].) The police officer issued Rodriguez a written warning and
returned to Rodriguez and his passenger their identifications. (Id. at p.       [135 S.Ct. at
p. 1613].) Although the basis for detaining Rodriguez had terminated at that point, the
officer asked Rodriguez for permission to walk his dog around Rodriguez’s vehicle.
Rodriguez denied permission, at which point the officer ordered Rodriguez to turn off the
ignition, get out of the vehicle, and stand in front of the officer’s patrol vehicle. (Ibid.)

                                              12
Backup arrived about five or six minutes after Rodriguez had signed the citation. (Ibid.)
Halfway through a second pass around the vehicle, the dog alerted to the presence of
drugs. “[A] large bag of methamphetamine” was then found during a search of the
vehicle. (Ibid.)
                 The Supreme Court analogized a car stop for a traffic violation to a “Terry
stop.”3 (Rodriguez v. United States, supra,          U.S. at p.   [135 S.Ct. at p. 1614].)
“Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is
determined by the seizure’s ‘mission’—to address the traffic violation that warranted the
stop, [citation], and to attend to related safety concerns, [citation].” (Ibid.) The court
noted it had previously held in Illinois v. Caballes (2005) 543 U.S. 405, 407, “that a
traffic stop ‘can become unlawful if it is prolonged beyond the time reasonably required
to complete th[e] mission’ of issuing a warning ticket. [Citation.]” (Rodriguez v. United
States, supra,        U.S. at p.    [135 S.Ct. at pp. 1614-1615].) The court held a police
officer may conduct certain inquiries unrelated to a lawful traffic stop only so long as the
inquiries do not prolong the traffic stop. (Id. at p.      [135 S.Ct. at p. 1615].) The court
observed that unlike inquiries concerning review of the driver’s license and a check for
outstanding warrants, using a dog to sniff the vehicle was not aimed at the “mission” of
issuing a citation, but rather was “aimed at ‘detect[ing] evidence of ordinary criminal
wrongdoing.’ [Citation.]” (Ibid.) Because the dog sniff took place after the “mission” of
the stop—issuance of the citation—the court remanded the matter to the appellate court
to determine “whether reasonable suspicion of criminal activity justified detaining
Rodriguez beyond completion of the traffic infraction investigation.” (Id. at p.        [135
S.Ct. at pp. 1616-1617].) If such evidence did not exist, the prolonged detention was
unlawful and the fruits of the dog sniff (methamphetamine) was unlawfully obtained in
violation of the Fourth Amendment and must be suppressed.


                 3   Terry v. Ohio (1968) 392 U.S. 1.

                                                13
              Here, as in Rodriguez, the police completed the “mission” underlying the
stop of defendant’s pickup truck when an officer issued defendant a fix-it citation for the
tinted windows. Defendant should have been released once he signed the citation and put
his thumbprint on it at the officer’s direction. There has been no argument to the effect
that the police had a justification to detain defendant any further. Instead, it is argued that
once defendant agreed to take the breath test, what was inarguably a detention up to that
point, became a consensual encounter. The argument is without merit.
              The police are certainly free to approach an individual and speak with him
or her without implicating the Fourth Amendment. This occurs during what is commonly
referred to as a consensual encounter. Such encounters result in “no restraint of an
individual’s liberty whatsoever.” (Wilson v. Superior Court (1983) 34 Cal.3d 777, 784,
citing Florida v. Royer (1983) 460 U.S. 491.) Defendant was detained when he complied
with Wong’s demand (red light) to pull over. (People v. Brown (2015) 61 Cal.4th 968,
976-977.) Thereafter he was cited for having tinted windows, and before he was released
by the police, Wong, a member of the DUI enforcement team, approached defendant and
said he wanted to make sure defendant was safe to drive and that to do so, he wanted
defendant to take a breath test. Defendant agreed to take the tests and was then directed
to get out of his vehicle.
              There is nothing in the facts presented below to turn the detention into a
consensual encounter. If the Attorney General’s argument were to be accepted, every
driving under the influence detention would become a consensual encounter as soon as
the suspect “voluntarily” performed the field sobriety tests or provided a breath sample at
the officer’s request. It is one thing for a police officer to approach a person on the street
and ask if he or she minds answering some questions, and quite another for the police to
use a show of authority, such as a red light, in order to get a suspect to submit to the
police and pull over. An encounter is consensual if “a reasonable person would feel free
to disregard the police and go about his or her business.” (In re Manuel G. (1997) 16

                                              14
Cal.4th 805, 821.) No reasonable person in defendant’s position would have felt he was
free to leave when confronted by a police officer who pulled him over and said he wants
defendant to submit to a breath test because he does not know whether defendant can
dive safely. The fact that the police had absolutely no reason to suspect defendant was
impaired adds nothing to the consensual encounter versus detention analysis.
              Defendant’s detention was prolonged after the reason for the stop—the
tinted window issue—had been resolved. The DNA obtained from the PAS device used
to obtain defendant’s breath samples was obtained in violation of defendant’s Fourth
Amendment rights (Rodriguez v. United States, supra,         U.S.     [135 S.Ct. 1609]) and
should have been suppressed. That does not, however, resolve the matter.
              At trial, the district attorney introduced evidence of the DNA sample
obtained from the PAS device. The district attorney also introduced evidence of DNA
obtained from a buccal swab taken on the day of defendant’s subsequent arrest. The
record does not indicate whether defendant was arrested and the buccal swab obtained
that same day occurred because of the DNA obtained from the PAS device. There was
other damning evidence tying defendant to the charges. For instance, defendant left his
thumbprint on duct tape used to bind Karen. Determining that the latent print matched
defendant’s known print obtained from DMV records and/or the traffic stop (which is not
alleged to have been obtained in violation of defendant’s Fourth Amendment rights)
would support arresting defendant for the crimes perpetrated on Karen. Indeed, a day
before the crime lab notified the detective of the DNA results, a search warrant issued to
search defendant’s residence, pickup truck, and his workplace at Fletcher Jones.
              Defendant contends the DNA sample obtained when he was arrested should
be suppressed as the tainted fruit of his prolonged detention. (See Wong Sun v. United
States (1963) 371 U.S. 471, 485 [“exclusionary rule has traditionally barred from trial
physical, tangible materials obtained either during or as a direct result of” a Fourth
Amendment violation].) The record does not support his contention. At the hearing on

                                             15
defendant’s motion to suppress evidence, he established his detention was unduly
prolonged to obtain his DNA sample on the PAS device. There was, however, no
evidence presented regarding any other evidence to be suppressed. Neither was there any
evidence concerning defendant’s arrest.
               “Evidence obtained as a direct result of an unconstitutional search or
seizure is plainly subject to exclusion. The question to be resolved when it is claimed
that evidence subsequently obtained is ‘tainted’ or is ‘fruit’ of a prior illegality is whether
the challenged evidence was ‘“come at by exploitation of [the initial] illegality or instead
by means sufficiently distinguishable to be purged of the primary taint.”’ [¶ ] It has been
well established for more than 60 years that evidence is not to be excluded if the
connection between the illegal police conduct and the discovery and seizure of the
evidence is ‘so attenuated as to dissipate the taint’. . . . It is not to be excluded, for
example, if police had an ‘independent source’ for discovery of the evidence.” (Segura v.
United States (1984) 468 U.S. 796, 804-805.) There was no evidence connecting
defendant’s arrest and the taking of the buccal swab with the unlawful extension of
defendant’s detention to obtain his DNA sample by using a ruse to get him to blow into a
PAS device despite a complete lack of evidence indicating defendant was impaired at the
time.
               “‘As for secondary evidence, the defendant bears the burden of making a
prima facie case that such evidence was “tainted” by—i.e., causally linked to—the
primary illegality.’ [Citation.] To do this, the defendant ‘must show more than that the
challenged evidence “would not have come to light but for the illegal actions of the
police”; rather, [the defendant] must establish that it “‘has been come at by exploitation
of that illegality . . . .’”’ [Citation.]” (People v. Mayfield (1997) 14 Cal.4th 668, 760,
overruled on another ground in People v. Scott (2015) 61 Cal.4th 363, 390, fn. 2.) The
burden then shifts to the prosecution to prove the secondary evidence is not tainted by the
prior illegality. (Maldonado v. Superior Court (2012) 53 Cal.4th 1112, 1138 [defendant

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bears the initial burden to demonstrate the secondary evidence is tainted, “after which the
government ‘has the ultimate burden of persuasion to show its evidence is untainted’”].)
As defendant never introduced prima facie evidence of a taint, the prosecution was not
required to prove the lack of taint.
              Admission of evidence obtained in violation of the Fourth Amendment
requires reversal of the conviction unless the prosecution can demonstrate the error was
harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18, 24.)
The prosecutor introduced evidence of the DNA sample obtained from PAS device in
violation of defendant’s Fourth Amendment rights. Additionally, however, there was
also evidence that a buccal swab was obtained from defendant at the time of his arrest,
and that DNA profile matched the DNA profile obtained from the PAS device. This
raises the question of whether defendant was prejudiced by the introduction of the DNA
profile obtained from the PAS device. If the profile obtained from the PAS device was
the same as the profile obtained from the defendant’s buccal swab and that profile was
the same as the profile obtained from the swab from Karen’s breast where her assailant
licked, and the swab from Danielle’s back where her assailant ejaculated are the same—
and they all were—evidence of the profile obtained from the PAS device was mere
surplusage and its admission was harmless. Evidence of defendant’s DNA sample from
the PAS device added nothing to the weight of evidence against defendant.
              In conclusion, we find the DNA sample obtained on July 14, 2011, as a
result of defendant’s unlawfully prolonged detention was seized in violation of
defendant’s Fourth Amendment rights. Defendant did not introduce evidence that the
DNA obtained from a buccal swab taken when he was arrested was tainted by his earlier
unlawfully prolonged detention when the first DNA sample was taken. The failure to
suppress the evidence of the DNA obtained from PAS device was harmless because the
prosecution also introduced evidence of defendant’s DNA sample obtained as a result of
his arrest days later. That DNA profile was the same as the one obtained during the

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unlawful detention and the same as the DNA profile obtained from swabs taken from
each of the victims, and defendant’s thumbprint was found on duct tape he used when he
tied and bound Karen.
                                          III
                                    DISPOSITION
             The judgment is affirmed.




                                                MOORE, ACTING P. J.

WE CONCUR:



FYBEL, J.



IKOLA, J.




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