Filed 11/15/13 P. v. Lowe CA4/1
Opinion following transfer from Supreme Court



                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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                    COURT OF APPEAL, FOURTH APPELLATE DISTRICT

                                                  DIVISION ONE

                                           STATE OF CALIFORNIA



THE PEOPLE,                                                         D059007

         Plaintiff and Respondent,

         v.                                                         (Super. Ct. No. RIF132717)

JUSTIN SAMUEL LOWE,

         Defendant and Appellant.


         APPEAL from a judgment of the Superior Court of Riverside County, Harry A.

Staley, Judge. Affirmed as modified, with directions.

         Mark Alan Hart, under appointment by the Court of Appeal, for Defendant and

Appellant.

         Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Enid A. Camps and Lise S.

Jacobson, Deputy Attorneys General, for Plaintiff and Respondent.
                                     INTRODUCTION

       This case arises out of a series of burglaries, forcible sex crimes, and robberies that

Justin Samuel Lowe committed in the City of Riverside between November 2003 and

October 2006. Lowe's identity was established by fingerprint evidence; witness

identification; and, of particular importance in this appeal, his unique DNA profile. That

profile was derived from a buccal (inner cheek) swab sample taken from him without a

warrant in October 2006, while he was under lawful arrest for one of the sex crimes

charged in this case, as authorized by the provisions of Penal Code1 sections 296,

subdivision (a)(2)(C) (hereafter section 296(a)(2)(C)) and 296.1, subdivision (a)(1)(A)

(hereafter section 296.1(a)(1)(A)), as amended effective November 3, 2004, by the

passage of Proposition 69 (also known as the DNA Fingerprint, Unsolved Crime and

Innocence Protection Act & hereafter referred to as the 2004 Amendment).

       Denial of Lowe's Motion In Limine To Suppress DNA Evidence

       Lowe brought an opposed motion in limine to exclude "all DNA evidence" the

police obtained from him while he was under arrest, claiming the evidence was obtained

in violation of the Fourth Amendment to the United States Constitution. The court

denied Lowe's suppression motion, finding that he was under lawful arrest when the

DNA sample was taken and that the statutory provisions authorizing the buccal swab

were constitutional.




1      Undesignated statutory references will be to the Penal Code.
                                              2
       Verdicts

       In July 2010, following the trial in this matter, a Riverside County jury found

Lowe guilty of all 13 offenses charged in the third amended information: three counts of

forcible oral copulation (§ 288a, subd. (c)(2); counts 1, 5, 13) (victims: C.D., Jennifer &

Amanda, respectively); one count of attempted rape (§§ 664, 261, subd. (a)(2); count 2)

(victim: Victoria); two counts of first degree residential burglary "with intent to commit

theft and a felony" (§ 459; counts 3, 7); three counts of robbery (§ 211; counts 4, 8, 12)

(victims: Jennifer, Fran Whitton & Amanda, respectively); one count of rape (§ 261,

subd. (a)(2); count 6) (victim: Jennifer); one count of attempted robbery (§§ 664, 211;

count 9) (victim: Johanna Grosso); one count of misdemeanor child annoyance (§ 647.6,

subd. (a); count 10) (victim: Whitton's granddaughter); and one count of kidnapping for

rape or robbery (§ 209, subd. (b)(1); count 11) (victim: Amanda).

       With respect to counts 1, 5, and 6, the jury found true allegations that Lowe

entered an inhabited dwelling to commit a violent sex offense, committed the offenses

during a burglary, and used a deadly or dangerous weapon (a handgun) within the

meaning of section 667.61, subdivisions (d)(4), (e)(2), and (e)(4), respectively.

       As to counts 8, 9, 11, and 12, the jury found true allegations that Lowe personally

used a deadly or dangerous weapon (a knife) within the meaning of section 12022,

subdivision (b).

       With regard to count 13, the jury found true allegations that Lowe was armed with

a deadly weapon (a knife) within the meaning of section 12022.3, subdivision (b); he

kidnapped the victim and his movement of her increased the risk of harm within the

                                             3
meaning of section 667.61, subdivisions (d)(2), (e)(1); and he personally used a

dangerous or deadly weapon (a knife) within the meaning of section 667.61, subdivision

(e)(4).

          Finally, the jury found true the special allegation that Lowe committed or

attempted to commit rape or oral copulation against multiple victims within the meaning

of section 667.61, subdivision (e)(5).

          Sentence

          The court sentenced Lowe to a determinate term of 15 years eight months plus a

consecutive indeterminate prison term of 107 years to life, calculated as follows: count

1: 25 years to life; count 2: one year; count 3: one year four months; count 4: one year

four months; count 5: 25 years to life; count 6: 25 years to life; count 7: one year four

months; count 8: six years plus one year for the use of the knife; count 9: eight months

plus four months for the use of the knife; count 10: 180 days, concurrent; count 11: seven

years to life plus one year for the use of the knife; count 12: one year four months plus

four months for the use of the knife; and count 13: 25 years to life.

          Contentions

          Challenging the court's denial of his motion to suppress the swab DNA evidence,

Lowe contends that "section 296, as applied in this case to compel [him] to provide a

DNA sample as an investigative tool, violates the Fourth Amendment protection against




                                               4
unreasonable searches and seizures."2 He also contends the sentences imposed for his

two first degree burglary convictions (counts 3 and 7) and for his conviction of

kidnapping Amanda for rape or robbery (count 11) must be stayed under section 654

because the sentences "constitute improper multiple punishment."

       In our unpublished opinion in this matter, we held the 2004 Amendment does not

violate the Fourth Amendment, and, thus, the court properly denied Lowe's suppression

motion. We also concluded the judgment must be modified to stay under section 654 the

execution of the prison sentence of one year four months the court imposed for Lowe's

count 3 conviction of first degree burglary. We affirmed the judgment as modified.

       The California Supreme Court granted review (S207634) and subsequently

transferred the matter back with directions that we vacate our decision and reconsider the

matter in light of the United States Supreme Court's decision in Maryland v. King (2013)

___ U.S. ___ [133 S.Ct. 1958, 186 L.Ed.2d 1] (King).

       In this opinion, we conclude our prior decision is consistent with King.

Accordingly, we restate our analysis and conclusions that (1) the 2004 Amendment

authorizing the mandatory and warrantless collection and analysis of buccal swab DNA

samples from felony arrestees does not violate the Fourth Amendment, and, thus, the

court properly denied Lowe's suppression motion; and (2) the judgment must be modified



2      The California Supreme Court has granted review on the issue presented here of
whether the compulsory collection of biological samples from all adult felony arrestees
for DNA testing under the DNA Act (specifically, §§ 296(a)(2)(C), 296.1(a)(1)(A))
violates the Fourth Amendment to the United States Constitution. (People v. Buza (2011)
197 Cal.App.4th 1424, review granted Oct. 19, 2011, S196200.)
                                             5
to stay under section 654 the execution of the prison sentence of one year four months the

court imposed for Lowe's count 3 conviction of first degree burglary. As modified, the

judgment is affirmed.

                              FACTUAL BACKGROUND

       A. The People's Case

       1. Count 1 (Forcible Oral Copulation of C.D.)

       In the morning on November 11, 2003, shortly after she went to sleep. C.D. awoke

to a loud noise followed by the sound of breaking glass. A tall Black man dressed in

black clothing and wearing a black mask, later identified as Lowe through DNA and

fingerprint evidence (discussed, post), entered her room and pointed a gun in her face.

Lowe asked for money and laughed when she showed him a jar containing some change.

Lowe told C.D. he was not "leaving without getting anything," cursed at her, put the gun

to her head, threatened to "blow [her] brains out," and told her to take off her shirt. When

C.D. refused and said she was a virgin and a Christian, Lowe told her she was going to

give him a "blow job." Lowe pulled his pants down and exposed his penis. When C.D.

said she had never done this before, Lowe told her, "Oh, then this is the biggest dick

you've ever seen" and warned he would shoot her if he felt her teeth.

       C.D. orally copulated Lowe for 15 to 20 minutes, which she testified "seemed like

forever." After Lowe ejaculated into her mouth, C.D. spat his semen into the waste

basket. Before he left, Lowe threatened to return if he saw any police in the area.




                                             6
       C.D. called the police, who recovered the waste basket. Liquid from the waste

basket tested positive for saliva and semen. DNA analysis in 2004 did not match the

semen to any source.

       In 2006 when the police collected the buccal swab from Lowe, they found his

DNA matched the DNA from the waste basket. Lowe's finger and palm prints matched

prints taken from both the sliding glass door that was broken during the incident and from

C.D.'s table.

       2. Count 2 (Attempted Rape of Victoria)

       On November 21, 2003, sometime between 10 p.m. and midnight and 10 days

after he forced C.D. to orally copulate him, Lowe entered a house rented by Victoria,

who at that time was a student at the University of California at Riverside (UCR). He

was again dressed in black, wearing a black ski mask and holding a gun. Lowe grabbed

Victoria, who was screaming, by the arms as they struggled, and then told her to "[s]hut

the fuck up and sit down on the bed." Lowe sat next to her on the bed and touched her

right breast over her clothing. Victoria stood up, screaming, and when Lowe started

pulling her drawstring shorts down, she held on to her shorts and crouched down.

Victoria told Lowe, "I'll give you money. Just take whatever you want and leave."

       As Victoria continued to scream, Lowe said, "Okay. Give me your fucking

money." Victoria gave him $13, which was all the money she had in her wallet. Lowe,

who became very angry, responded, "What the fuck am I going to do with $13?" Lowe

took the money and left.



                                            7
       3. Counts 3 Through 6 (Burglary, Robbery, Forcible Oral Copulation and Rape
of Jennifer)

       In the evening on March 24, 2004─about four months after he attempted to rape

Victoria─Lowe, wearing dark jeans, a dark sweater, and a dark mask, returned to

Victoria's house and found a student named Jennifer alone in the kitchen. Lowe popped

up from behind the kitchen counter and pointed a gun at Jennifer and told her he would

kill her if she screamed. Jennifer and Lowe went to her bedroom and she gave him $12.

When he asked whether that was all the money she had, Jennifer told him she was a

college student and did not have any money.

       Lowe ordered Jennifer to take off her clothes, and she began to cry. Lowe told her

he would shoot her if she did not undress right away. When Jennifer complied, Lowe

fondled and put his mouth on her breasts, pulled down his pants, and told her to give him

oral sex. Jennifer testified that she complied because she "just wanted to survive."

       About five minutes later, Lowe directed Jennifer to get on the bed on her hands

and knees so he could enter her from behind and told her, "You know you want it."

Jennifer complied because she was afraid Lowe would hurt or kill her. Lowe set down

his gun, put his penis in Jennifer's vagina from behind and asked her, "Have you ever

been with a gangster before?" Lowe later told her to roll over on her back, she complied,

and he continued to have intercourse with her.

       A couple of minutes later, Lowe asked Jennifer whether she wanted him to

ejaculate inside of her or on her. Out of self-preservation, and wanting to preserve

evidence so that Lowe would be caught, Jennifer told him to ejaculate inside her and he


                                             8
did. Lowe got off of Jennifer and wiped himself with her sweater. He then left after

telling her he would return in a couple of months.

         DNA extracted from a sample of sperm taken from Jennifer at the hospital

matched Lowe's DNA profile. Fingerprints and a palm print obtained at the scene of the

crime matched Lowe's left thumb and palm prints.

         4. Counts 7 Through 10 (Burglary, Robbery, Attempted Robbery, and Annoying a
Child)

         In the afternoon on October 3, 2006, a Black man later identified as Lowe knocked

on the front door and rang the doorbell for several minutes at Johanna Grosso's home.

Grosso's then-12- or 13-year-old granddaughter, who was inside the home, did not

answer the door. Instead, she called her mother (Grosso's daughter) on her cell phone

and said she was scared because a Black man she did not know was at the door and was

not leaving.

         Lowe was still near the front door when Grosso came home with her friend, Fran

Whitton, and Whitton's granddaughter, who was about 15 years of age at the time of this

incident. Lowe told Grosso he was selling alarm systems. When Grosso told him she

already owned a security system, Lowe asked if he could use the bathroom inside the

house. Grosso allowed him to do so, and Grosso's daughter arrived while Lowe was

using the bathroom. Grosso's daughter testified she saw a "bluish" PT Cruiser parked in

an odd spot on a hill, on a neighbor's property, above the street. When she went inside

the house, Grosso told her she was uncomfortable because a man (Lowe) was in the

bathroom. Grosso's daughter grabbed a knife, but Lowe left without incident.


                                             9
      Lowe returned, however, at around 7:30 p.m. that evening, and entered the house

with a knife, which he held to Whitton's granddaughter's neck as she led him to the room

where the other women were. Lowe told Whitton's granddaughter, "Don't be scared. I'm

not going to hurt anybody. I just need money." Whitton's granddaughter repeated that

warning to the other women. Whitton gave Lowe maybe $30 or $50 from her wallet

because she was afraid. Grosso dumped the contents of her purse on the table and Lowe

took the change.

      At some point Whitton's granddaughter fell to the floor. Lowe pulled her up and

said she was faking.

      Lowe told Grosso and Whitton to get into the bathroom and close the door, and

send the girl to him. Lowe, holding the knife, told Grosso's granddaughter to get into the

closet and she complied. Lowe then told Whitton's granddaughter, "[L]et's make out,"

and put his hand on her shoulder and waist. She rebuffed Lowe and he eventually left.

      About a week later, on October 11, 2006, police showed two photographic

lineups─one with black and white photographs and the other with color photographs,

each of which contained a photograph of Lowe─to four of the women (Grosso, Grosso's

daughter, Grosso's granddaughter, and Whitton's granddaughter) who were present during

the October 3 incident. When the lineup of black and white photographs─in which

Lowe's photograph was photograph No. 1─ was shown to Grosso, Grosso's daughter, and

Grosso's granddaughter, Grosso identified the man in photograph No. 1 (Lowe) as the

suspect with a 99 percent degree of certainty; but Grosso's daughter was unable to make

an identification, and Grosso's granddaughter said the men in photographs Nos. 1 and 2

                                            10
looked like the suspect but she was less than 50 percent sure about the man in photograph

No. 1. When the color lineup─in which Lowe's photograph was photograph No. 5─ was

shown to Whitton's granddaughter, she identified the man in that photograph (Lowe) with

100 percent certainty.

      5. Counts 11 Through 13 (Kidnapping for Rape or Robbery, Robbery, and
Forcible Oral Copulation of Amanda)

       At around noon on October 3, 2006─on the same day as the incident at Grosso's

house─Amanda, who was then 18 years of age, was on her way to her class at UCR when

a tall Black man in his 20's, whom she later identified in person at the police station as

Lowe, approached her and tried to talk to her. Amanda testified she did not talk to him.

Lowe followed her to the elevator, again tried to talk to her, followed her off the elevator,

and walked next to her down a hallway.

       As they walked, Lowe, who had a knife in his hand, suddenly grabbed Amanda by

the neck, covering her mouth, and pulled her about 20 feet into a handicapped stall in the

women's bathroom. Holding the knife to Amanda's neck, Lowe told her he would not

hurt her if she did what he told her to do. He told her that he had a "thing" for Asians and

that his name was "Justin." Lowe later told her that was not his real name; he had

changed it to "Marcus." Amanda testified that Lowe had a black and white tattoo on his

arm that looked something like a cross and that he was wearing tan Nike shoes.

       Amanda also testified that Lowe, who was standing in the stall with her, put her on

the toilet and told her he wanted to have sex with her. When she said, "No," Lowe told

her he was in charge and to do as he said. When another person entered the bathroom,


                                             11
Lowe pressed the knife against Amanda's face and told her he would hurt her if she made

any noise.

       After the person left the bathroom, Lowe undressed, pressed his penis against

Amanda's face, and told her to lick it. He then put his penis in her mouth. Amanda had

never seen a penis, and she felt like she was going to vomit when Lowe put his penis into

her mouth. She stopped giving Lowe oral sex, backed away, and cried. Lowe pulled her

back toward him by pulling her hair. This happened many times with Lowe reminding

her he had the knife in his hand. Lowe removed Amanda's clothes, grabbed her breasts

and bit her nipples, causing pain.

       Amanda testified this lasted a "very, very long time." Lowe then grabbed

Amanda's hand and made her masturbate him until he ejaculated on her arm and hand.

Lowe tried to clean up, asked for money, and then tried to grab Amanda's purse, but she

took it before he could do so. She gave him $60 of the $80 she had for books and living

expenses for the week. Lowe also tried to take her watch but she resisted, telling Lowe

the watch was a gift from her grandmother. Lowe left after telling Amanda not to call the

police and to wait in the bathroom because he was going to come back. Eventually, she

washed herself and left the bathroom, and a friend took her to the police.

       6. Lowe's Arrest, Car Search, and Buccal Swab DNA Sample

       Six days later, on October 9, 2006, a police officer saw a blue PT Cruiser illegally

parked on the UCR campus. As the officer was speaking to the driver, Lowe approached

the car. The officer arrested Lowe, who matched the description of the assailant on

campus, on a misdemeanor traffic warrant. Lowe, who acknowledged the PT Cruiser

                                            12
belonged to his mother, consented to a search of the car. The police found a knife in the

car that Lowe intimated was his and that, according to Amanda at trial, resembled the one

used during the sexual assault on her.

       The police also found in the car a laptop computer with Lowe's name in the user

profile. Investigators determined that the computer found in the PT Cruiser had been

used earlier in the year to visit Internet sites with the titles "All Rape," "Brutal Rapes,"

and "Free Rapes On Line."

       The police took a buccal swab DNA sample from inside Lowe's cheek after his

arrest. Lowe's DNA profile matched the profile of the samples of saliva taken from

Amanda's neck and semen taken from her arms and pants.

       7. Uncharged Crime

       Another student testified that at about 1:00 p.m. on August 10, 2006, she was

jogging from the recreation center at UCR to her apartment complex. As she was

running between two dorms, a Black man running towards her made eye contact with her

and said, "Hey, how you doing?" He grabbed her breast and ran off.

       The student identified Lowe's photograph in a photographic lineup the police

showed her. She told the police she was not 100 percent sure of her identification

because she thought the suspect who grabbed her during the jogging incident was lighter

skinned.

       B. The Defense Case

       The defense presented evidence that other tall African-American men who

matched or partially resembled the description of the suspect were seen in the areas

                                              13
where the crimes against C.D., Victoria, and Jennifer were committed, at around the time

of those crimes.

       A defense investigator who researched guns on the Internet testified that the

description of the gun used in some of the crimes indicated the gun was a Daisy BB

pistol, not a firearm.

                                      DISCUSSION

                                             I

                     DENIAL OF LOWE'S SUPPRESSION MOTION;
                       CONSTITUTIONALITY OF THE DNA ACT

       Lowe challenges the court's denial of his motion to suppress the buccal swab DNA

evidence obtained from him under the 2004 Amendment without a warrant while he was

under arrest, contending that "section 296, as applied in this case to compel [him] to

provide a DNA sample as an investigative tool, violates the Fourth Amendment

protection against unreasonable searches and seizures." We hold that the 2004

Amendment authorizing the mandatory and warrantless collection and analysis of buccal

swab DNA samples from felony arrestees does not violate the Fourth Amendment, and,

thus, the court properly denied Lowe's suppression motion.

       A. Background: Denial of Lowe's Motion In Limine To Suppress DNA Evidence

       Lowe brought an in limine motion under section 1538.5, subdivision (a) to exclude

"all DNA evidence" obtained from him while he was under arrest, asserting "there [was]

no warrant or exigent circumstance," and, thus, the evidence was "obtained in violation of




                                            14
the search and seizure clause of the [Fourth] Amendment to the [United States]

Constitution."

       The prosecution opposed the motion, arguing the police lawfully obtained the

DNA sample pursuant to the mandatory provisions of section 296 (a)(2)(C) by swabbing

Lowe's mouth after he waived his Miranda3 rights, admitted he sexually assaulted

Amanda, and was lawfully arrested.

       At the hearing on the motion, a campus police officer with the UCR Police

Department testified for the prosecution that on October 9, 2006, Amanda identified

Lowe at an in-field lineup as the man who forced her to orally copulate him a few days

earlier on October 3 and that her identification of Lowe provided the officer with

probable cause to arrest him. The officer stated that when Amanda identified Lowe, she

also identified his tattoo and the shoes he was wearing.

       The officer also testified that Lowe thereafter waived his Miranda rights and

agreed to speak with him. During the interview, Lowe made incriminating statements

about his involvement in a sexual assault on Amanda. The officer stated he arrested

Lowe and then made arrangements with a detective to take a buccal swab DNA sample

from Lowe. The detective came to the police station and properly collected the sample.

       The parties stipulated that the sample was collected without a warrant and that the

court could consider the transcript of Lowe's police interview. The transcript showed the

officer informed Lowe early in the interview that he was under arrest for sexual assault.



3      Miranda v. Arizona (1966) 384 U.S. 436.
                                            15
The officer advised Lowe of his Miranda rights, and Lowe waived those rights and

agreed to speak with the officer. Lowe initially told the officer, "I'm being accused of

something I didn't do." The officer told Lowe that semen containing DNA had been

collected from the victim's pants, and Lowe's DNA would be taken later that day. He

also told Lowe that the victim had identified him as her assailant, his knife was found in

his mother's car, and fingerprints had been collected from the crime scene. The transcript

shows that, shortly thereafter, Lowe made numerous incriminating statements showing he

sexually assaulted and robbed Amanda.

       Following oral arguments, the court denied Lowe's suppression motion, finding

that Lowe was under lawful arrest when the DNA sample was taken, and that the statute

authorizing the warrantless taking of the sample is constitutional.

       B. Statutory Scheme

       Since 1984, California law enforcement officials have been authorized to collect

forensic identification blood, saliva or buccal swab samples from persons convicted of

certain serious crimes. (See former § 290.2, added by Stats. 1983, ch. 700, § 1.)

       In 1998, the Legislature enacted the DNA and Forensic Identification Database

and Data Bank Act of 1998 (§ 295 et seq.; Stats. 1998, ch. 696, § 2) (the DNA Act),

which required "DNA and forensic identification data bank samples" from all persons

convicted of specified offenses. (§ 295, subd. (b)(2).)4 The purpose of the program




4      "DNA data base and data bank acts have been enacted in all 50 states as well as by
the federal government. (See 42 U.S.C. §§ 14131–14134; and see Annot., Validity,
                                            16
created by this legislation "is to assist federal, state, and local criminal justice and law

enforcement agencies within and outside California in the expeditious and accurate

detection and prosecution of individuals responsible for sex offenses and other crimes,

the exclusion of suspects who are being investigated for these crimes, and the

identification of missing and unidentified persons, particularly abducted children."

(§ 295, subd. (c).)

       At the November 2004 general election, California voters amended and added

various provisions to the DNA Act by enacting Proposition 69 (the 2004 Amendment).

(Voter Information Guide, Gen. Elec. (Nov. 2, 2004), text of Prop. 69, sec., p. 135 & sec.

III, pp. 135-144; Haskell v. Harris (2012) 669 F.3d 1049, 1051 (Harris).) Proposition 69

significantly enlarged the scope of persons subject to warrantless DNA seizures by,

among other things, providing that beginning January 1, 2009, warrantless seizure of

DNA would be required of any adult arrested for or charged with any felony. (§

296(a)(2)(C);5 Harris, at p. 1051; Voter Information Guide, supra, text of Prop. 69, sec.

3 adding § 296(a)(2)(C), p. 137.)




Construction, and Operation of State DNA Database Statutes (2000) 76 A.L.R.5th 239,
252.)" (Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505.)

5      Section 296(a)(2)(C) provides: "(a) The following persons shall provide buccal
swab samples . . . required pursuant to this chapter for law enforcement identification
analysis: [¶] . . . [¶] (2) Any adult person who is arrested for or charged with any of the
following felony offenses: [¶] . . . [¶] (C) Commencing on January 1 of the fifth year
following enactment of the act that added this subparagraph, as amended, any adult
person arrested or charged with any felony offense." (Italics added.)

                                              17
       As amended by the 2004 Amendment, the DNA Act provides that such collection

of DNA from felony arrestees must take place "immediately following arrest, or during

the booking . . . process or as soon as administratively practicable after arrest, but, in any

case, prior to release on bail or pending trial or any physical release from confinement or

custody." (§ 296.1(a)(1)(A).)6 The taking of a DNA sample is mandatory; law

enforcement officials lack discretion to suspend this requirement. (§ 296, subd. (d);

People v. King (2000) 82 Cal.App.4th 1363, 1373.) Furthermore, collection of DNA

samples for analysis is ordinarily "limited to collection of inner cheek cells of the mouth

(buccal swab samples)." (§ 295, subd. (e).)

       After the DNA sample is taken, it is sent to the DNA Laboratory of the California

Department of Justice (DOJ), which is responsible for the management and

administration of the state's DNA and Forensic Identification Database and Data Bank

Program and which stores, correlates and compares forensic identification samples for

use in criminal investigations. (§§ 295, subds. (f), (g), (i)(1)(C); 295.1, subd. (c); People

v. King, supra, 82 Cal.App.4th at pp. 1368-1370.) The DOJ is required to perform the


6       Section 296.1(a)(1)(A) provides: "(a) The . . . samples . . . required by this chapter
shall be collected from persons described in subdivision (a) of Section 296 for present
and past qualifying offenses of record as follows: [¶] (1) Collection from any adult
person following arrest for a felony offense as specified in subparagraph[] . . . (C) of
paragraph (2) of subdivision (a) of Section 296: [¶] (A) Each adult person arrested for a
felony offense as specified in subparagraph[] . . . (C) of paragraph (2) of subdivision (a)
of Section 296 shall provide the buccal swab samples . . . required pursuant to this
chapter immediately following arrest, or during the booking or intake or prison reception
center process or as soon as administratively practicable after arrest, but, in any case,
prior to release on bail or pending trial or any physical release from confinement or
custody."

                                              18
DNA analysis "only for identification purposes." (§ 295.1, subd. (a).) A genetic profile

is created from the sample based on 13 genetic markers known as "junk DNA," which are

referred to as junk because they are not linked to any known genetic traits. (Harris,

supra, 669 F.3d at p. 1051; see also King, supra, 133 S.Ct. at pp. 1966-1967 ["The

adjective 'junk' . . . apparently is intended to indicate that this particular noncoding region

[of the DNA material in chromosomes], while useful and even dispositive for purposes

like identity, does not show more far-reaching and complex characteristics like genetic

traits."].) The resulting genetic profiles are so highly individuated that the chance of two

randomly selected individuals sharing the same profile are "infinitesimal." (United States

v. Kincade (9th Cir. 2004) 379 F.3d 813, 819 (Kincade), cert. den. sub nom. Kincade v.

United States (2005) 544 U.S. 924.)

       The laboratory uploads each DNA profile into California's DNA data bank, which

is part of the Combined DNA Index System (CODIS), a nationwide collection of federal,

state, and local DNA profiles that can be accessed by local, state and federal law

enforcement agencies and officials. (Harris, supra, 669 F.3d at p. 1052; Haskell v.

Brown (2009) 677 F.Supp.2d 1187, 1190.) "CODIS collects DNA profiles provided by

local laboratories taken from arrestees, convicted offenders, and forensic evidence found

at crime scenes." (King, supra, 133 S.Ct. at p. 1968.)

       When the arrestee's DNA profile is uploaded into CODIS, it is compared to DNA

samples collected from crime scenes. (Harris, supra, 669 F.3d at p. 1052.) In CODIS,

the DNA profile does not include the name of the person from whom the DNA was

collected or any case-related information. It includes a specimen identification number,

                                              19
an identifier for the agency that provided the sample, and the name of the personnel

associated with the analysis. (Haskell v. Brown, supra, 677 F.Supp.2d at p. 1190;

Kincade, supra, 379 F.3d at p. 819, fn. 8.) If a "hit" is made, matching the DNA profile

of the convicted offender or felony arrestee to a crime scene DNA sample, the arrestee's

DNA sample is tested again for confirmation and, if the match is confirmed, CODIS

notifies the submitting laboratory of the identity of the matching DNA profile, and the

laboratory sends that information to the appropriate law enforcement agency. (Harris,

supra, 669 F.3d at p. 1052.)

       The 2004 Amendment specifically provides that DNA samples and profiles may

be released only to law enforcement personnel and contains penalties for unauthorized

use of the arrestee's "specimen, sample, or DNA profile" or unauthorized disclosure of

DNA information. (§ 299.5, subds. (f), (i).)

       A person whose DNA profile has been included in the DNA data bank may have

his or her DNA sample destroyed and the searchable database profile expunged from the

data bank program if he or she "has no past or present offense or pending charge which

qualifies that person for inclusion within the . . . Data Bank Program and there otherwise

is no legal basis for retaining the specimen or sample or searchable profile." (§ 299,

subd. (a).) An arrestee ordinarily must wait until the statute of limitations has run before

requesting the expungement, and the court must then wait 180 days before it can grant the

request. The court's order is not reviewable by appeal or by writ petition, and the

prosecutor can prevent expungement by objecting to the request. (§ 299, subds. (b)(1),



                                             20
(c)(1), (c)(2)(D).) In the alternative, a person may seek expungement after being found

factually innocent or not guilty of the underlying offense. (§ 299, subds. (b)(3), (b)(4).)

       However, an individual may initiate expedited expungement proceedings by filing

a request and supporting documentation with the DOJ DNA Database Program. (See the

DOJ's website: <http://oag.ca.gov/sites/all files/pdfs/bfs/expungement_ app_instruc.pdf>

[as of Nov. 6, 2013].) DOJ may grant an expungement request if the individual submits a

three-page form and provides "sufficient documentation" of his or her identity, legal

status, and criminal history to meet the requirements of section 299. (State of Cal. form

DLE 244, <http://oag.ca.gov/sites/all files/pdfs/bfs/expungement_app_instruc.pdf> [as of

Nov. 6, 2013].) Depending on the grounds for expungement, the required documentation

may be a letter in support of expungement from a district attorney or prosecutor or a

certified or file-stamped copy of a court order, opinion, docket, or minute order. If DOJ

denies the request, the individual may initiate a court proceeding. (Expungement Request

Instructions: <http://oag.ca.gov/sites/all files/pdfs/bfs/expungement_ app_instruc.pdf> [as

of Nov. 6, 2013].) To do so, the individual must file a petition for expungement with

proof of service of the petition on the DOJ's DNA Laboratory, as well as the trial court

and prosecuting attorney of the county where the petitioner was arrested, the conviction

was entered, or the disposition was rendered. (§ 299, subd. (c)(1); Judicial Council

Forms, form CR–185 <http://www.courtinfo.ca.gov/forms/documents/cr185.pdf> [as of

Nov. 6, 2013].)




                                             21
       C. Fourth Amendment Principles

       "The Fourth Amendment of the United States Constitution, which is enforceable

against the states as a component of the Fourteenth Amendment's guaranty of due process

of law[, protects] '[t]he right of the people to be secure in their persons, houses, papers,

and effects, against unreasonable searches and seizures.'" (People v. Williams (1999) 20

Cal.4th 119, 125, quoting U.S. Const., 4th Amend.)

       As the text of the Fourth Amendment indicates, "reasonableness" is the ultimate

measure of the constitutionality of a governmental search, and whether a particular search

meets the reasonableness standard is judged by examining "the totality of the

circumstances" and balancing the intrusion on the individual's Fourth Amendment

privacy interests against its "promotion of legitimate governmental interests." (Samson v.

California (2006) 547 U.S. 843, 848; People v. Robinson (2010) 47 Cal.4th 1104, 1120.)

       Subject only to a few well-delineated exceptions, warrantless searches are per se

unreasonable under the Fourth Amendment, and the state bears the burden of showing the

search at issue is reasonable and therefore constitutional. (See People v. Williams, supra,

20 Cal.4th at p. 127.)

       D. Analysis

       Applying the "totality of the circumstances" test, balancing the intrusion of the

challenged search on privacy interests against its promotion of legitimate governmental

interests (Samson v. California, supra, 547 U.S. at p. 848), we conclude the compulsory

and warrantless collection of buccal swab DNA samples from all adult felony arrestees



                                              22
for DNA testing and analysis, as authorized by the 2004 Amendment to the DNA Act,

does not violate the Fourth Amendment to the federal Constitution.

       1. Intrusion on felony arrestees' privacy interests

       Nonconsensual extractions of biological samples that may be used for DNA

profiling are "searches" entitled to the protection of the Fourth Amendment. (Schmerber

v. California (1966) 384 U.S. 757, 767–771 (blood); People v. Robinson, supra, 47

Cal.4th at pp. 1119, 1121, cert. den. sub nom. Robinson v. California (2010) ___ U.S.

___ [131 S.Ct. 72] (blood); Skinner v. Ry. Labor Executives' Ass'n (1989) 489 U.S. 602,

616–617 (breathalyzer and urine sample); Cupp v. Murphy (1973) 412 U.S. 291, 295

(finger nail scrapings).) In King, the United States Supreme Court recently explained that

"using a buccal swab on the inner tissues of a person's cheek in order to obtain DNA

samples is a search" within the meaning of the Fourth Amendment. (King, supra, 133

S.Ct. at p. 1969.)

       Felony arrestees have a "significantly diminished expectation of privacy."

(Harris, supra, 669 F.3d at p. 1058; see also King, supra, 133 S.Ct. at p. 1978 ["The

expectations of privacy of an individual taken into police custody 'necessarily [are] of a

diminished scope.'"].) They are often booked and placed in a jail cell pending

arraignment or bail, and they are typically subjected at that point to various degrading

physical and emotional intrusions. For example, they may be subjected to visual body

cavity searches (Bell v. Wolfish (1979) 441 U.S. 520, 558 & fn. 39 [upholding searches

where male inmates "must lift [their] genitals and bend over to spread [their] buttocks for

visual inspection" and "[t]he vaginal and anal cavities of female inmates also are visually

                                             23
inspected"]); they may be monitored by guards while they shower and use the toilet

(Johnson v. Phelan (7th Cir. 1995) 69 F.3d 144, 145); and they may have their telephone

access restricted (Valdez v. Rosenbaum (9th Cir. 2002) 302 F.3d 1039, 1048-1049).

       Here, we evaluate Lowe's claim that the buccal swab DNA search authorized by

the 2004 Amendment is unreasonable against the fact that, as discussed, felony arrestees

have diminished privacy rights.

       a. Physical intrusiveness

       We begin by noting that the typical modern DNA collection procedure─the buccal

swab to which Lowe was subjected in this matter─is much less invasive than the blood

test approved in Schmerber v. California, supra, 384 U.S. 757. The collection of a

buccal swab DNA sample involves the brief insertion of a cotton swab into the person's

mouth, whereas the typical blood extraction involves the insertion of a needle into a

blood vessel. (Harris, supra, 669 F.3d at p. 1059.) "The procedure is quick and

painless." (King, supra, 133 S.Ct. at p. 1968.) Thus, a buccal swab cannot seriously be

viewed as an unacceptable physical intrusion. (See King, supra, 133 S.Ct. at p. 1977

["[T]he intrusion of a cheek swab to obtain a DNA sample is a minimal one."]; United

States v. Amerson (2d Cir. 2007) 483 F.3d 73, 84, fn. 11 ["If . . . the DNA were to be

collected by cheek swab, there would be a lesser invasion of privacy [than a blood draw]

because a cheek swab can be taken in seconds without any discomfort."].)

       b. Governmental use and retention of DNA information

       Lowe challenges as unconstitutionally intrusive the governmental use and

retention of the information contained in the DNA sample that was taken from him

                                            24
without a warrant while he was under arrest, as authorized by the 2004 Amendment.

However, as already discussed, a DNA profile derived from a DNA sample taken from a

felony arrestee under the amended DNA Act contains only 13 junk DNA markers that are

not linked to any genetic or physical trait. They are used only to identify the individual.

(See § 295.1, subd. (a), discussed, ante; Kincade, supra, 379 F.3d at p. 837 ["[T]he DNA

profile derived from the defendant's [DNA] sample establishes only a record of the

defendant's identity─otherwise personal information in which the qualified offender can

claim no right of privacy once lawfully convicted of a qualifying offense (indeed, once

lawfully arrested and booked into state custody)."]); United States v. Amerson, supra, 483

F.3d at p. 85 ["[A]t least in the current state of scientific knowledge, the DNA profile

derived from the offender's blood sample establishes only a record of the offender's

identity."].)

       Given the minimal amount of genetic information currently contained in a DNA

profile, we are persuaded that DNA collected, used, and retained under the amended

DNA Act is substantially indistinguishable from traditional fingerprinting as a means of

identifying arrestees and, incidentally, tying them to criminal investigations. As the King

court recently observed, "[b]y the middle of the 20th century, it was considered

'elementary that a person in lawful custody may be required to submit to photographing

and fingerprinting as part of routine identification processes.'" (King, supra, 133 S.Ct. at

p. 1976.) Thus, "[p]erhaps the most direct historical analogue" to the buccal swab DNA

technology "is the familiar practice of fingerprinting arrestees." (Ibid.) The King court



                                             25
also observed that "the only difference between DNA analysis and the accepted use of

fingerprint databases is the unparalleled accuracy DNA provides." (Id. at p. 1972.)

       We acknowledge that DNA collected from felony arrestees is more susceptible to

misuse. However, as already noted, the DNA act, as amended by the 2004 Amendment,

carefully and sharply limits the range of permissible uses of the DNA information

obtained and imposes significant criminal penalties upon those who violate those

limitations. (See §§ 295.1; subd. (a); 299.5, subd. (f); 299.5, subd. (i).) Thus, we

conclude that the collection, use, and retention of information from junk DNA markers as

authorized by the amended DNA Act does not significantly intrude upon a felony

arrestee's privacy.

       2. Promotion of legitimate governmental interests

       On the other side of the Fourth Amendment balance, we weigh four principal and

legitimate governmental interests: identifying arrestees, solving past crimes, preventing

and solving future crimes, and exonerating the innocent.

       a. Identification of arrestees

       The primary purpose of the amended DNA Act is to identify arrestees. (See

§ 295.1, subd. (a) ["The Department of Justice shall perform DNA analysis . . . pursuant

to this chapter only for identification purposes."].) This longstanding governmental

interest is legitimate. (King, supra, 133 S.Ct. at p. 1970 ["[T]he need for law

enforcement officers in a safe and accurate way to process and identify the persons and

possessions they must take into custody" is a "legitimate government interest."]; Jones v.

Murray (4th Cir. 1992) 962 F.2d 302, 306 ["[W]hen a suspect is arrested upon probable

                                             26
cause, his identification becomes a matter of legitimate state interest."]; see also United

States v. Kriesel (9th Cir. 2007) 508 F.3d 941, 947 ["[T]racking . . . identity is the

primary consequence of DNA collection."].)

       b. Solving past crimes

       By accurately identifying felony arrestees, the DNA database helps promote the

legitimate and compelling governmental interest in solving past crimes. When California

voters passed Proposition 69, enacting the 2004 Amendment to the DNA Act, they

expressly recognized the critical importance of expanding the DNA data bank program to

include collection and analysis of DNA samples from felony arrestees in order to

promote the expeditious solving of crimes: "The people of the State of California do

hereby find and declare that . . . [t]here is a critical and urgent need to provide law

enforcement officers and agencies with the latest scientific technology available for

accurately and expeditiously identifying, apprehending, arresting, and convicting

criminal offenders . . . ." (Voter Information Guide, supra, text of Prop. 69, sec. II, subd.

(b), p. 135.)

       If a felony arrestee has committed crimes other than the crime he or she is

currently suspected of committing, those past crimes must be prosecuted as soon as

possible, while victims and witnesses can be located and before memories fade. In this

respect the collection and carefully restricted use of identifying DNA information taken

from felony arrestees promotes the legitimate governmental interest in the accurate and

expeditious solving of past crimes.



                                              27
       In addition, "by contributing to the solution of past crimes, DNA profiling of

qualified . . . offenders helps bring closure to countless victims of crime who long have

languished in the knowledge that perpetrators remain at large." (Kincade, supra, 379

F.3d at p. 839.)

       c. Preventing and solving future crimes

       "'The government's interest in preventing crime by arrestees is both legitimate and

compelling.'" (King, supra, 133 S.Ct. at p. 1973.)

       Implementing the 2004 Amendment provides law enforcement agencies with a

catalogue of arrestees' DNA, a tool that potentially will help solve and prevent future

crimes. The mere existence of the DNA database creates a strong deterrent effect, and a

felony arrestee from whom a DNA sample has been collected pursuant to the 2004

Amendment will be less likely to commit another crime in the future because he or she

knows that the collected DNA is catalogued in the DNA database. (See, e.g., Kincade,

supra, 379 F.3d at pp. 838-839 [mandatory DNA profiles of convicted felons "fosters

society's enormous interest in reducing recidivism"]; Jones v. Murray, supra, 962 F.2d at

p. 311 ["[T]he Commonwealth's interest in combatting and deterring felony recidivism

justifies the involuntary taking of the sample and the creation of the DNA data bank as

reasonable in the context of the Fourth Amendment."].)

       d. Exonerating the innocent

       Last, by helping identify the actual perpetrators of crimes, the DNA database

allows law enforcement officers to eliminate innocent persons from suspect lists. (See

King, supra, 133 S.Ct. at p. 1974 ["[I]n the interests of justice, the identification of an

                                              28
arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing

a person wrongfully imprisoned for the same offense."]; United States v. Sczubelek (3d

Cir. 2005) 402 F.3d 175, 185 ["[T]he DNA samples will help to exculpate individuals

who are serving sentences of imprisonment for crimes they did not commit and will help

to eliminate individuals from suspect lists when crimes occur."].) The privacy intrusion

caused by a buccal swab of a felony arrestee must be viewed as minor compared to

society's compelling goal of ensuring that innocent people are exonerated.

       3. Balancing and holding

       In Harris, supra, 669 F.3d at page 1058, the Ninth Circuit recently explained that

"[t]he 2004 Amendment does not provide the Government carte blanche to take buccal

swabs from anyone and everyone. It applies only to persons arrested on suspicion of

having committed a felony. Before individuals can be required to give a buccal swab

DNA sample under the 2004 Amendment, a law enforcement officer must determine that

there is probable cause to suspect that person of having committed a felony." (Italics

omitted.)

       We conclude that the legitimate governmental interests promoted by the

warrantless collection of buccal swab DNA samples from felony arrestees who are taken

into custody upon probable cause, far outweigh the arrestees' privacy concerns. Our

conclusion is based on the following five reasons: The felony arrestee's diminished

privacy interests; the de minimis nature of the physical intrusion involved in the

collection of a buccal swab DNA sample; the carefully limited scope of the DNA

information that is extracted; the strict limits on the range of permissible uses of the DNA

                                            29
information obtained and the significant criminal penalties imposed upon those who

violate those limitations; and the strong law enforcement interests in obtaining arrestees'

identifying information, solving past and future crimes, deterring future criminal acts, and

exonerating the innocent.

       Accordingly, we hold that the 2004 Amendment authorizing the mandatory and

warrantless collection and analysis of buccal swab DNA samples from felony arrestees

does not violate the Fourth Amendment. Thus, we also conclude the court properly

denied Lowe's suppression motion.

       a. King

       Our decision is consistent with the United States Supreme Court's recent majority

decision in King, which upheld the constitutionality of the Maryland DNA Collection Act

(Maryland Act) that authorizes Maryland law enforcement authorities to collect and

analyze buccal swab DNA samples from persons arrested and charged with qualifying

"serious" offenses.7 (King, supra, 133 S.Ct. at pp. 1965-1966, 1967, 1980.) King



7       The King majority explained that the Maryland Act "authorizes Maryland law
enforcement authorities to collect DNA samples from 'an individual who is charged
with . . . a crime of violence or an attempt to commit a crime of violence; or . . . burglary
or an attempt to commit burglary.' Md. Pub. Saf. Code Ann. § 2–504(a)(3)(i) (Lexis
2011). Maryland law defines a crime of violence to include murder, rape, first-degree
assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Md. Crim.
Law Code Ann. § 14–101 (Lexis 2012). Once taken, a DNA sample may not be
processed or placed in a database before the individual is arraigned (unless the individual
consents). Md. Pub. Saf. Code Ann. § 2–504(d)(1) (Lexis 2011). It is at this point that a
judicial officer ensures that there is probable cause to detain the arrestee on a qualifying
serious offense. If 'all qualifying criminal charges are determined to be unsupported by
probable cause . . . the DNA sample shall be immediately destroyed. § 2–504(d)(2)(i).
DNA samples are also destroyed if 'a criminal action begun against the
                                             30
concluded that "DNA identification of arrestees is a reasonable search that can be

considered part of a routine booking procedure. When officers make an arrest supported

by probable cause to hold for a serious offense and they bring the suspect to the station to

be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like

fingerprinting and photographing, a legitimate police booking procedure that is

reasonable under the Fourth Amendment." (Id. at p. 1980, italics added.)

       In reaching this decision, the majority in King explained that the Maryland Act

served legitimate and substantial governmental interests such as accurately identifying

and processing the persons and property law enforcement officers must take into custody

(King, supra, 133 S.Ct. at p. 1970), solving crimes (id. at pp. 1971-1972), and

exonerating the innocent (id. at p. 1974). Against the governmental interests served by

the Maryland Act the King majority weighed the "minimal" intrusion of a cheek swab to

obtain a DNA sample from the arrestee. (Id. at pp. 1974, 1977-1978.) Noting that "a

detainee has a reduced expectation of privacy," the King majority explained that, "[i]n

light of statutory protections that guard against further invasion of privacy,"8 the analysis



individual . . . does not result in a conviction,' 'the conviction is finally reversed or
vacated and no new trial is permitted,' or 'the individual is granted an unconditional
pardon. § 2–511(a)(1)." (King, supra, 133 S.Ct. at p. 1967.)

8       The King majority stated that the Maryland Act "requires that '[o]nly DNA records
that directly relate to the identification of individuals shall be collected and stored.' Md.
Pub. Saf. Code Ann . § 2–505(b)(1). No purpose other than identification is permissible:
'A person may not willfully test a DNA sample for information that does not relate to the
identification of individuals as specified in this subtitle.' § 2–512(c). This Court has
noted often that 'a "statutory or regulatory duty to avoid unwarranted disclosures"
generally allays . . . privacy concerns.'" (King, supra, 133 S.Ct. at p. 1979-1980.)
                                              31
of the DNA sample "did not amount to a significant invasion of privacy that would render

the DNA identification impermissible under the Fourth Amendment." (Id. at pp. 1978,

1980.)

         King is not limited to the particular provisions of the Maryland Act. Citing an

amicus curiae brief submitted by the State of California, the King majority observed that

"[28] States and the Federal Government have adopted laws similar to the Maryland Act

authorizing the collection of DNA from some or all arrestees. . . . Although those statutes

vary in their particulars, such as what charges require a DNA sample, their similarity

means that this case implicates more than the specific Maryland law. At issue is a

standard, expanding technology already in widespread use throughout the Nation."

(King, supra, 133 S.Ct. at p. 1968, italics added.)

         Although the "particulars" of the Reform Act and the Maryland Act─such as the

qualifying offenses that require the collection of buccal swab DNA samples from

arrestees, and the procedures for destroying DNA samples and expunging DNA database

profiles─differ, those differences do not render our decision inconsistent with the

majority's decision in King. Here, as in King, the minimal intrusion of the buccal swab

into the arrestee's diminished right to privacy is outweighed by the important

governmental interests served by the challenged statute. Here, as in King, scientific and

statutory safeguards (discussed, ante) are provided by the Reform Act such that the

analysis of the collected DNA sample "d[oes] not amount to a significant invasion of

privacy that would render the DNA identification impermissible under the Fourth

Amendment." (King, supra, 133 S.Ct. at p. 1980.)

                                              32
                                            II

                           SECTION 654 (COUNTS 3, 7, & 11)

       Lowe also contends the sentences imposed for his two first degree burglary

convictions (counts 3 and 7) and for his conviction of kidnapping Amanda for rape or

robbery (count 11) must be stayed under section 654 because the sentences "constitute

improper multiple punishment." We conclude the judgment must be modified to stay

under section 654 the execution of the prison sentence of one year four months the court

imposed for Lowe's count 3 conviction of first degree burglary. As modified, the

judgment is affirmed.

       A. Section 654

       Section 654, subdivision (a) provides in part: "An act or omission that is

punishable in different ways by different provisions of law shall be punished under the

provision that provides for the longest potential term of imprisonment, but in no case

shall the act or omission be punished under more than one provision."

       Section 654 "precludes multiple punishment for a single act or omission, or an

indivisible course of conduct" (People v. Deloza (1998) 18 Cal.4th 585, 591) and ensures

the defendant's punishment will be commensurate with his or her criminal culpability

(People v. Kramer (2002) 29 Cal.4th 720, 723). If a defendant suffers two convictions

and punishment for one is barred by section 654, that section requires that the sentence

for one conviction be imposed and the other be imposed and then stayed. (People v.

Deloza, at pp. 591-592.)



                                            33
       Whether a course of conduct is indivisible for purposes of section 654 depends on

the intent and objective of the defendant, not the temporal proximity of the offenses.

(People v. Hicks (1993) 6 Cal.4th 784, 789.) Generally, if all the criminal acts were

incident to one objective, then punishment may be imposed only as to one of the offenses

committed. (People v. Rodriguez (2009) 47 Cal.4th 501, 507; People v. Garcia (1995)

32 Cal.App.4th 1756, 1781.) The question of whether a defendant harbored multiple

criminal objectives is a question of fact for the trial court to decide. (People v. Coleman

(1989) 48 Cal.3d 112, 162.) A trial court's determination that a defendant held multiple

criminal objectives will be upheld on appeal if it is supported by substantial evidence.

(People v. Osband (1996) 13 Cal.4th 622, 730-731.)

       1. Multiple victim exception

       However, under the "multiple victim" exception to section 654, the limitations of

this section do not apply to crimes of violence against multiple victims. (People v. Oates

(2004) 32 Cal.4th 1048, 1063; People v. Garcia, supra, 32 Cal.App.4th at p. 1781;

People v. Deloza, supra, 18 Cal.4th at p. 592 ["Section 654 does not . . . preclude

multiple punishment when the defendant's violent act injures different victims."].) Under

this exception, a defendant may be convicted and punished for each crime of violence

committed against a different victim "even though a defendant entertains but a single

principal objective during an indivisible course of conduct." (People v. Ramos (1982) 30

Cal.3d 553, 587, revd. on other grounds in California v. Ramos (1983) 463 U.S. 992; see

also People v. Garcia, supra, 32 Cal.App.4th at p. 1781.) "The multiple victim

exception, simply stated, permits one unstayed sentence per victim of all the violent

                                             34
crimes the defendant commits incidental to a single criminal intent." (People v. Garcia,

supra, at p. 1784.) Thus, section 654 does not apply where one act has two results each

of which is an act of violence against the person of a separate individual. (People v.

Oates, supra, 32 Cal.4th at p. 1063.)

       The multiple victim exception to section 654 is based on the rationale that "when a

defendant '"commits an act of violence with the intent to harm more than one person or

by means likely to cause harm to several persons," his greater culpability precludes

application of section 654.'" (People v. McFarland (1989) 47 Cal.3d 798, 803; see also

People v. Centers (1999) 73 Cal.App.4th 84, 99; People v. Garcia, supra, 32 Cal.App.4th

at p. 1781.)

       "[W]hether a crime constitutes an act of violence that qualifies for the multiple-

victim exception to section 654 depends upon whether the crime (in conjunction with any

allegations in enhancement) is defined to proscribe an act of violence against the person."

(People v. Hall (2000) 83 Cal.App.4th 1084, 1092.) The mere potential for violence is

insufficient to qualify a crime as violent for purposes of the multiple-victim exception to

section 654. (People v. Solis (2001) 90 Cal.App.4th 1002, 1024-1025, citing People v.

Hall, supra, at pp. 1091-1094.)

       C. Analysis

       1. Count 3

       Lowe first contends the prison sentence of one year four months the court imposed

for his count 3 conviction of first degree burglary must be stayed under section 654. We

conclude the court erred by not staying that sentence under section 654.

                                            35
       When a defendant commits both burglary and the underlying intended felony

against a single victim, section 654 generally permits punishment for one of the crimes,

but not for both, because the burglary is merely incident to, and a means of perpetrating,

the intended felony. (See People v. James (1977) 19 Cal.3d 99, 119-120 [burglary and

intended robbery]; see also People v. Centers, supra, 73 Cal.App.4th at p. 99.)

       Here, Lowe was accused in count 3 of unlawfully entering an inhabited dwelling

house on March 24, 2004, "with intent to commit theft and a felony." The evidence

established that this house was inhabited by Jennifer, one of the victims in this case. The

jury found Lowe guilty of count 3 and three other felony counts he committed against

Jennifer in her home on that date: robbery (count 4); forcible oral copulation (count 5);

and rape (count 6).

       Jennifer was the sole victim of these four crimes. The court punished Lowe for

these offenses by sentencing him to prison terms of one year four months for the count 3

first degree burglary, one year four months for the count 4 robbery, 25 years to life for

the count 5 forcible oral copulation, and 25 years to life for the count 6 rape. As

punishment for all 13 of Lowe's convictions and the related true findings in this matter,

the court imposed a determinate term of 15 years eight months plus a consecutive

indeterminate prison term of 107 years to life.

       Regardless of which of the offenses charged in counts 4 through 6 Lowe intended

to commit when he unlawfully entered Jennifer's home, section 654 precluded separate

punishment for his count 3 burglary conviction because the court imposed punishment for



                                             36
the underlying intended crime or crimes. (See People v. James, supra, 19 Cal.3d at pp.

119-120; People v. Centers, supra, 73 Cal.App.4th at p. 99.)

       The Attorney General disagrees, claiming that Lowe "entertained separated intents

and objectives" in committing the four offenses charged in counts 3 through 6 and, thus,

the court properly imposed separate sentences for each count. In support of this claim,

the Attorney General maintains that substantial evidence supports the court's "implied

finding" that Lowe entered Jennifer's home with the intent to commit a sex crime against

Victoria, the woman he was convicted of attempting to rape (as charged in count 2) in

that same house four months earlier. However, the Attorney General asserts, when Lowe

found Jennifer, not Victoria, in the home, "he formed the intent to rob, rape and force

[Jennifer] to orally copulate him."

       In essence, the Attorney General claims the court properly imposed separate

sentences for each of the four crimes charged in counts 3 through 6─including the

burglary─because, although Lowe did commit burglary by entering Jennifer's home with

the intent to commit a robbery and a sex crime, he acted with a separate intent and

objective in that Jennifer was not the victim he intended to rob and sexually assault when

he unlawfully entered her home; that is, he intended to commit the crimes against

Victoria. This claim is unavailing. In committing the robbery and sex offenses charged

in counts 4 through 6, Lowe acted with the same intent─the intent to commit robbery and

a sex crime─he harbored when he unlawfully entered Jennifer's home and, thus, the

section 654 prohibition of multiple punishment applies. The identity of the actual victim

is immaterial, and the Attorney General has cited no authority (and we are aware of none)

                                            37
in support of the claim that it is relevant. Section 654 ensures the defendant's punishment

will be commensurate with his or her criminal culpability. (People v. Kramer, supra, 29

Cal.4th at p. 723.) The Attorney General does not explain in what respect Lowe's

criminal behavior is more culpable, such that he should suffer an additional consecutive

punishment for the count 3 burglary, merely because his victim was Jennifer rather than

Victoria. Accordingly, we conclude the judgment must be modified to stay under section

654 the sentence of one year four months imposed for Lowe's count 3 burglary

conviction.

       2. Count 7

       We reject Lowe's next contention that the execution of the sentence of one year

four months the court imposed for the count 7 burglary conviction also must be stayed

under section 654. Lowe was charged in that count with unlawfully entering an inhabited

dwelling house on October 3, 2006, "with intent to commit theft and a felony." The

evidence established that this house was inhabited by Grosso, Grosso's daughter, and

Grosso's granddaughter, three of the victims in this case. The jury found Lowe guilty of

count 7 and three other crimes he was accused of committing there on that date: robbery

of Grosso's friend, Whitton (count 8); attempted robbery of Grosso (count 9); and

misdemeanor annoyance of Whitton's granddaughter (count 3).

       We conclude section 654 does not require that the execution of the consecutive

sentence imposed for Lowe's count 7 burglary conviction be stayed because (1) as

discussed, the limitations of this section do not apply to crimes of violence against

multiple victims, even if all the violent crimes were incidental to a single criminal intent

                                             38
(People v. Oates, supra, 32 Cal.4th at p. 1063; People v. Garcia, supra, 32 Cal.App.4th

at pp. 1781, 1784); and (2) here, the multiple victim exception to section 654 applies

because the robbery, the attempted robbery, and the burglary were crimes of violence

against different victims.

       Specifically, robbery and attempted robbery are crimes of violence for purposes of

the multiple victim exception. (People v. Deloza, supra, 18 Cal.4th at p. 592.) Here,

Lowe was convicted of robbing Whitton as charged in count 8 and attempting to rob a

different victim, Grosso, as charged in count 9. Thus, counts 8 and 9 were crimes of

violence for purposes of the multiple victim exception.

       The third felony─burglary (count 7)─that Lowe was convicted of committing

during the incident at the residence where Grosso and her daughter and granddaughter

resided and were present during the incident, was also a crime of violence for purposes of

the multiple victim exception. Ordinarily, burglary is not a violent crime for purposes of

that exception. (People v. Centers, supra, 73 Cal.App.4th at p. 99.) However, it may be

treated as such when there is a finding the defendant either inflicted great bodily injury or

used a weapon in the commission of the burglary. (Ibid.) "Use" of a weapon includes

"conduct which produces a fear of harm or force by means or display" of the weapon.

(People v. Masbruch (1996) 13 Cal.4th 1001, 1007; People v. Centers, supra, 73

Cal.App.4th at p. 99.) Here, substantial evidence supports the implied finding that Lowe

caused his victims to fear harm by brandishing a knife after holding it to Whitton's

granddaughter's neck when he unlawfully entered the home.



                                             39
       For the foregoing reasons, we conclude that section 654 does not preclude

punishment for Lowe's count 7 burglary conviction because the felonies he committed

(counts 7 through 9) were crimes of violence against different victims; and, thus, the

multiple victim exception to section 654 applies. Accordingly, we affirm the sentence

the court imposed for Lowe's count 7 conviction.

       3. Count 11

       Last, we reject Lowe's contention that the execution of the sentence the court

imposed for his count 11 conviction also must be stayed under section 654.

       a. Background

As shown by the count 11 verdict form, Lowe was charged in that count with kidnapping

Amanda "for [r]ape or [r]obbery" (italics added). Lowe also was charged with

committing two other crimes against Amanda: robbery (count 12) and forced oral

copulation (count 13).

       The jury found Lowe guilty of all three counts. In addition, as to counts 11 and

12, the jury found true allegations that Lowe personally used a deadly or dangerous

weapon (a knife) within the meaning of section 12022, subdivision (b). With regard to

count 13, the jury also found true allegations that Lowe was armed with a deadly weapon

(a knife) within the meaning of section 12022.3, subdivision (b); he kidnapped Amanda

and his movement of her increased the risk of harm within the meaning of section 667.61,

subdivisions (d)(2), (e)(1); and he personally used a dangerous or deadly weapon (a

knife) within the meaning of section 667.61, subdivision (e)(4). As punishment for



                                            40
Lowe's count 11 conviction, the court imposed a sentence of seven years to life, plus an

additional one-year enhancement for the use of the knife.

       b. Analysis

       As the Attorney General acknowledges, Lowe correctly cites People v. Lewis

(2008) 43 Cal.4th 415, 519 (Lewis), for the proposition that section 654 prohibits

punishment for both kidnapping to commit robbery and the robbery of the victim of the

kidnapping.

       Relying on Lewis as support for his claim that execution of his count 11 sentence

(including the enhancement for the use of the knife) must be stayed under section 654,

Lowe contends the record fails to support a finding that his objective in kidnapping

Amanda on October 3, 2006, was anything "other than the robbery and forced oral

copulation" for which he was convicted and punished in counts 12 and 13.

       We reject this contention because substantial evidence supports the court's implied

determination in imposing Lowe's count 11 sentence that he kidnapped Amanda with the

objective and intent to rape her in the UCR bathroom stall, but thereafter changed his

mind and, instead, forced her to orally copulate him there. Specifically, as detailed more

fully, ante, substantial evidence supports both his conviction of attempting to rape

Victoria in November 2003 as charged in count 2 and his conviction for raping Jennifer

in March 2004 about four months later as charged in count 6. With respect to the crimes

he committed against Amanda as charged in counts 11 through 13, substantial evidence

shows that, after he threatened her with a knife and dragged her into the UCR women's



                                            41
bathroom stall, Lowe told her he wanted to have sex with her. When Amanda said, "No,"

Lowe forced her to orally copulate him.

       Lowe's reliance on People v. Lewis, supra, 43 Cal.4th 415, is unavailing because,

here, the court did not impose double punishment in violation of section 654. Rather, the

record shows the court properly imposed separate punishments for his criminal acts of (1)

kidnapping Amanda with intent to rape her, (2) robbing her, and (3) forcing her to orally

copulate him. Accordingly, we affirm the sentence imposed for Lowe's count 11

conviction and the related enhancement.

                                      DISPOSITION

       The judgment is modified to stay under Penal Code section 654 the execution of

the prison sentence of one year four months the court imposed for Lowe's count 3

conviction of first degree burglary. As modified, the judgment is affirmed. The trial

court is directed to amend the abstract of judgment to reflect this modification of the

judgment and to forward a certified copy of the amended abstract to the Department of

Corrections and Rehabilitation.


                                                                                 NARES, J.

WE CONCUR:


HUFFMAN, Acting P. J.


HALLER, J.




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