Filed 1/21/15 P. v. Marquez 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


THE PEOPLE,

     Plaintiff and Respondent,                                         G048762

         v.                                                            (Super. Ct. No. 08CF3587)

DANIEL JOSEPH MARQUEZ,                                                 OPINION

     Defendant and Appellant.



                   Appeal from a judgment of the Superior Court of Orange County, Gregg L.
Prickett, Judge. Affirmed as modified.
                   Kevin D. Sheehy, 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, Peter
Quon, Jr., Parag Agrawal, and Scott Taylor Deputy Attorneys General, for Plaintiff and
Respondent.
                                          *                  *                  *
               Defendant Daniel Joseph Marquez (defendant) was convicted of two counts
of second degree burglary, in violation of Penal Code sections 211 and 212.5, subdivision
(c), and one count of assault with a deadly weapon, in violation of Penal Code section
245, subdivision (a)(1), with a sentencing enhancement under Penal Code section 667,
subdivision (a)(1).1 He was sentenced to 25 years to life on the robbery and assault
charges, plus 15 years for the sentencing enhancement.
               Defendant maintains that he never could have been tied to the 2008 bank
robbery had his DNA sample not been seized and entered into the DNA data bank in
2006. He contends that the seizure of his DNA sample was unlawful because it was not
authorized under the DNA and Forensic Identification Database and Data Bank Act of
1998 (§ 295 et seq.) (the Act), as in effect in 2006, and because it violated his federal and
state constitutional rights.
               The People argue, inter alia, that even if the statutory scheme in effect in
2006 did not permit the nonconsensual taking of defendant’s DNA sample, the taking did
not violate his Fourth Amendment rights. They further argue that even if defendant’s
state constitutional rights were violated, his federal constitutional rights were not
violated, so the exclusionary rule was inapplicable and it was not error to deny his
suppression motion. We agree.
               Defendant also argues that the abstract of judgment fails to correctly reflect
the presentence custody credits to which he was entitled. The People agree, as do we.
The abstract of judgment shall be amended to reflect the proper number of presentence
custody credits as specified herein. The judgment as so modified is affirmed.




1              All subsequent statutory references are to the Penal Code unless otherwise
specifically stated.


                                              2
                                             I
                                         FACTS
A. Background:
              Defendant has a very long criminal record, with many convictions,
including those for multiple bank robberies. In 2008, defendant was again arrested for
bank robbery, based on a DNA “hit.”
              Defendant filed a suppression motion, and supplement thereto, in which he
sought to suppress both a DNA sample collected from him in 2006 and the evidence
tying him to the 2008 bank robbery. As noted above, he argued he never could have been
linked to the 2008 evidence, and thus the 2008 bank robbery, without the DNA data bank.


B. Stipulation:
              At the time of the hearing on the suppression motion, the People and
defendant stipulated: “[D]efendant was arrested for a violation of Health and Safety
Code section 11350(a) in Ventura County on September 29, 2006. October 3, 2006,
authorities from Ventura County collected a sample of defendant’s DNA[, without a
warrant and without his consent]. The ‘qualifying offense’ listed for the taking of
defendant’s DNA [was] ‘PC 459.’ Defendant was never convicted of, or even charged
with, the violation of section 11350 in Ventura County. However, defendant had
previously been convicted of a felony violation of Penal Code section 459 (second degree
burglary), in Orange County, on February 13, 1986. [¶] The DNA profile generated from
the October 3, 2006 sample was entered into the California Department of Justice DNA
Data Bank.
              “On September 18, 2007, the defendant entered a guilty plea to a felony
count of violating Health and Safely Code section 11350(a) in Orange County case
#07NF3339. He was placed on probation and ordered to submit to DNA testing pursuant



                                            3
to Penal Code section 296. He was further ordered to submit to search and seizure by law
enforcement.
               “On February 25, 2008, the defendant admitted to violating his terms of
probation after failing to appear for a court-ordered case review. He was reinstated on
probation and again ordered to submit to DNA testing.”
               The parties further stipulated that evidence was left by a suspect at the
scene of a robbery on August 5, 2008, and that DNA taken from the evidence matched
defendant’s DNA profile in the DNA data bank.
               “On October 21, 2008, the defendant admitted to a second violation of
probation in Orange County case number 07NF3339. He was reinstated on probation and
again ordered to submit to DNA testing.”
               On November 25, 2008, defendant was arrested and another DNA sample
was taken. That sample matched the DNA from the robbery evidence.


C. Trial Court Ruling:
               The trial court denied defendant’s motion to suppress. It held that
defendant’s DNA sample was not collected unlawfully, but even if it had been, there was
an independent intervening act when, in 2007, defendant was convicted of another felony
and ordered to provide a DNA sample at that time.
                                              II
                                       DISCUSSION
A. Motion to Suppress:
               Section 1538.5, subdivision (a)(1)(A) provides that “[a] defendant may
move . . . to suppress as evidence any tangible or intangible thing obtained as a result of a
search or seizure . . .” if “[t]he search or seizure without a warrant was unreasonable.”
“‘Pursuant to article I, section 28, of the California Constitution, a trial court may exclude



                                              4
evidence under Penal Code section 1538.5 only if exclusion is mandated by the federal
Constitution.’ [Citation.]” (People v. Robinson (2010) 47 Cal.4th 1104, 1119.)
              “In ruling on a motion to suppress, the trial court finds the historical facts,
then determines whether the applicable rule of law has been violated. ‘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.]’ [Citation.]”
(People v. Hernandez (2008) 45 Cal.4th 295, 298-299.)


B. DNA Testing:
              (1) Penal Code sections 296, 296.1 and 297—
              Defendant argues that the collection of his DNA sample in 2006 was
unlawful pursuant to sections 296 and 296.1 as then in effect.
              Section 296, subdivision (a)(1), (2) provides in pertinent part: “(a) The
following persons shall provide buccal swab samples, right thumbprints, and a full palm
print impression of each hand, . . . for law enforcement identification analysis: [¶] (1)
Any person, . . . who is convicted of . . . any felony offense . . . . [¶] (2) Any adult person
who is arrested for or charged with any of the following felony offenses: [¶] (A) Any
felony offense specified in Section 290 . . . . [¶] (B) Murder or voluntary manslaughter
. . . . [¶] (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.” As defendant points out, Proposition 69, effective November 3, 2004, is
the act triggering the five-year date described subdivision (a)(2)(C). (Prop. 69, as
approved by voters, Gen. Elec. (Nov. 2, 2004); cf. Good v. Superior Court (2008) 158
Cal.App.4th 1494, 1503-1504.)




                                               5
                Defendant argues the section 296, subdivision (a)(2)(C) mandate that any
adult arrested for any felony shall provide a buccal swab sample had not yet become
effective when his DNA sample was taken in October 2006. Consequently, he reasons,
the collection of his DNA sample in 2006 was unlawful under section 296, subdivision
(a)(2)(C) as then in effect.
                He further observes that section 296.1, subdivision (a), as amended by
Proposition 69, reads: “The specimens, samples, and print impressions 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 subparagraphs (A), (B),
and (C) of paragraph (2) of subdivision (a) of Section 296: [¶] . . . [¶] (2) Collection from
persons confined or in custody after conviction or adjudication: [¶] . . . [¶] (3) Collection
from persons on probation, parole, or other release: [¶] . . . [¶] (4) Collection from parole
violators and others returned to custody: [¶] . . . [¶] (5) Collection from persons accepted
into California from other jurisdictions: [¶] . . . [¶] (6) Collection from persons in federal
institutions: . . . .”
                Defendant says that when he was arrested in 2006, “he was not then in
confinement or custody for any conviction or adjudication; on probation, parole or other
release; a parole violator or other person being returned to custody; a person accepted
into California from another jurisdiction; or a person in a federal institution; hence, the
provisions of section 296.1, subdivision (a)(2), (a)(3), (a)(4), (a)(5), or (a)(6) did not
apply to [him].”
                Even though, when defendant was in custody in 2006, he had previously
been convicted of a felony, in 1986, he does not construe either section 296, subdivision
(a)(1) or section 296.1, subdivision (a)(2) as being applicable because he was not in
custody with respect to the 1986 conviction when his sample was taken. He appears to



                                               6
construe the section 296.1, subdivision (a)(2), language concerning the taking of samples
“from persons confined or in custody after conviction” as meaning that the person must
be in custody both after conviction and on account of the conviction.
              Interestingly, while the People argued before the trial court that sections
296 and 296.1, as in effect in 2006, then permitted the taking of defendant’s DNA
sample, they now appear to drop that argument. However, the People make several other
points.
              They argue, inter alia, that even if the collection of defendant’s DNA
sample was not permitted under sections 296 and 296.1 as then in effect, section 297
made clear that this was not a ground for reversal of his resulting conviction. Former
section 297, subdivisions (e) and (f), as amended by Proposition 69, read: “(e) The
limitation on the types of offenses set forth in subdivision (a) of Section 296 as subject to
the collection and testing procedures of this chapter is for the purpose of facilitating the
administration of this chapter by the Department of Justice, and shall not be considered
cause for . . . reversing a verdict or disposition. [¶] (f) The . . . conviction of a person
based upon a data bank match . . . is not invalidated if it is determined that the specimens,
samples, or print impressions were obtained or placed or retained in a data bank or
database by mistake.” (Prop. 69, as approved by voters, Gen. Elec. (Nov. 2, 2004), italics
added; see now current § 297, subds. (f), (g).)
              (2) Violation of Federal Constitutional Rights—
              Defendant retorts that section 297 does not control, because it cannot
immunize a criminal conviction from invalidation when the conviction is the result of a
federal Fourth Amendment violation. The People maintain that even if the taking of
defendant’s DNA sample was not permitted by California statute in 2006, the taking
nonetheless did not violate defendant’s Fourth Amendment rights. We agree with the
People.



                                               7
               It is clear that the nonconsensual taking of a DNA sample is a search
“entitled to the protections of the Fourth Amendment. [Citation.]” (People v. Robinson,
supra, 47 Cal.4th at pp. 1119-1120; People v. King (2000) 82 Cal.App.4th 1363, 1370-
1371.) “‘As the text of the Fourth Amendment indicates, the ultimate measure of the
constitutionality of a governmental search is “reasonableness.”’ [Citation.] [¶]
‘Reasonableness . . . is measured in objective terms by examining the totality of the
circumstances’ [citation], and ‘whether a particular search meets the reasonableness
standard “‘is judged by balancing its intrusion on the individual’s Fourth Amendment
interests against its promotion of legitimate governmental interests.’”’ [Citations.]”
(People v. Robinson, supra, 47 Cal.4th at p. 1120; People v. King, supra, 82 Cal.App.4th
at p. 1371.)
               “The reduction in a convicted person’s reasonable expectation of privacy
specifically extends to that person’s identity. Indeed, not only persons convicted of
crimes, but also those merely suspected of crimes, routinely are required to undergo
fingerprinting for identification purposes. As to convicted persons, there is no question
but that the state’s interest extends to maintaining a permanent record of identity to be
used as an aid in solving past and future crimes, and this interest overcomes any privacy
rights the individual might retain.” (People v. King, supra, 82 Cal.App.4th at p. 1374.)
               “In short, any argument that Fourth Amendment privacy interests do not
prohibit gathering information concerning identity from the person of one who has been
convicted of a serious crime, or of retaining that information for crime enforcement
purposes, is an argument that long ago was resolved in favor of the government.”
(People v. King, supra, 82 Cal.App.4th at p. 1375, fn. omitted.) As our California
Supreme Court has put it, the “nonconsensual extraction of biological samples from adult
felons is reasonable because ‘those convicted of serious crimes have a diminished
expectation of privacy and the intrusions authorized by the Act are minimal’ while ‘the



                                             8
Act serves compelling governmental interests,’ including ‘“the overwhelming public
interest in prosecuting crimes accurately.” [Citation.]’” (People v. Robinson, supra, 47
Cal.4th at p. 1121.)
              Given this, the California Supreme Court in People v. Robinson, supra, 47
Cal.4th 1104, concluded that even though the defendant’s DNA sample was taken in
violation of the Act, the statutory violation did not give rise to a Fourth Amendment
violation.2 (Id. at p. 1119.) The court observed: “The fact that [the defendant’s] blood
was collected in violation of our state law at the time does not alter our Fourth
Amendment analysis. That law was more restrictive than the Fourth Amendment and, for
Fourth Amendment purposes, it is not dispositive that a search and seizure was not
permissible under state law. The United States Supreme Court has held that, as far as the
federal Constitution is concerned, ‘whether state law authorized the search [is]
irrelevant.’ [Citations.] The Supreme Court explained that the Fourth Amendment is not
historically understood ‘as a redundant guarantee of whatever limits on search and
seizure legislatures might have enacted’ [citation], and that its meaning does not change
‘with local law enforcement practices,’ which ‘“vary from place to place and from time
to time.”’ [Citation.]” (People v. Robinson, supra, 47 Cal.4th at p. 1122.)
              Defendant maintains that the case of People v. Robinson, supra, 47 Cal.4th
1104 is trumped by the United States Supreme Court’s more recent decision in Maryland


2              Because we hold that there was no violation of defendant’s Fourth
Amendment rights in this case, we need not address the alternate holding in People v.
Robinson, supra, 47 Cal.4th 1104. The Robinson court also held that even if there were a
Fourth Amendment violation, it would not be appropriate to apply the federal
exclusionary rule. (Id. at p. 1124.) It stated, inter alia, that “‘[b]ecause the broad scope
of [the Proposition 69] amendment all but eliminates the likelihood that biological
specimens will be mistakenly collected or analyzed, no deterrent effect would be
achieved by excluding evidence obtained from a sample mistakenly collected under an
earlier version of the Act when the same search would be lawful under current law.’” (Id.
at p. 1129, fn. 23.)


                                             9
v. King (2013) __ U.S. __ [133 S.Ct. 1958]. He further contends that the decision in
Maryland shows that the collection of his DNA sample was a Fourth Amendment
violation.
              In Maryland v. King, supra, __ U.S. __ [133 S.Ct. 1958], the Supreme
Court addressed the constitutionality of taking a DNA swab pursuant to a Maryland
statute. (Maryland v. King, supra, __ U.S. __ [133 S.Ct. at pp. 1965-1966].) That statute
allowed the collection of DNA samples from arrestees charged with certain crimes, but
provided that the samples could not be processed before the arrestees were arraigned, at
which point a judicial officer determined the existence of probable cause to detain the
arrestee. (Maryland v. King, supra, __ U.S. __ [133 S.Ct. at p. 1967].)
              The Supreme Court in Maryland v. King, supra, __ U.S. __ [133 S.Ct.
1958] stated: “In . . . the context of a valid arrest supported by probable cause [an
arrestee’s] expectations of privacy [are] not offended by the minor intrusion of a brief
swab of his cheeks. By contrast, that same context of arrest gives rise to significant state
interests in identifying [an arrestee] not only so that the proper name can be attached to
his charges but also so that the criminal justice system can make informed decisions
concerning pretrial custody. Upon these considerations the Court concludes 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.” (Maryland v. King, supra, __ U.S. __ [133 S.Ct. at p. 1980].)
              Relying on Maryland v. King, supra, __ U.S. __ [133 S.Ct. 1958],
defendant contends that because, in October 2006, he was arrested without being
charged, and was released without a probable cause determination by a judicial officer,



                                             10
the collection of a DNA sample without a warrant and without his consent was a Fourth
Amendment violation. We disagree.
               We do not read more into Maryland v. King, supra, __ U.S. __ [133 S.Ct.
1958] than it says. While the Supreme Court in that case was addressing a statute that
specified DNA samples could be processed only after an arrestee had been arraigned, and
the court found the statutory procedure constitutional, the court did not state that the
collection and processing of DNA samples is unconstitutional in all other contexts. It
certainly did not state that the collection and processing of an arrestee’s DNA is
constitutional when done after arraignment but unconstitutional when done after a felony
conviction.3
               The People note that the Ninth Circuit, in Haskell v. Harris (9th Cir. 2014)
745 F.3d 1269, recently addressed the “question: Is California’s DNA collection scheme
constitutional as applied to anyone ‘arrested for, or charged with, a felony offense by
California state or local officials?’” (Id. at p. 1271.) It held: “After Maryland v. King,
__ U.S. __, 133 S.Ct. 1958, 186 L.Ed.2d 1 (2013), the answer is clearly yes.” (Haskell v.
Harris, supra, 745 F.3d at p. 1271.)
               The particular question before us is whether, when an individual is arrested
for a felony offense, and his or her DNA is collected not on account of that arrest, but
with respect to a prior felony conviction, the DNA collection constitutes a Fourth
Amendment violation. Surely, if it is constitutional to collect his or her DNA because of
the current arrest, a fortiori, it is also constitutional to collect his or her DNA because of a




3             We note that the court in the recent case of People v. Buza (2014) 231
Cal.App.4th 1446 was critical of the Supreme Court in Maryland v. King, supra, __ U.S.
__ [133 S.Ct. 1958]. Whether or not we find any of those criticisms to be persuasive, we
apply Maryland v. King, supra, __ U.S. __ [133 S.Ct. 1958] as we interpret it.


                                              11
prior felony conviction.4 (Cf. Maryland v. King, supra, __ U.S. __ [133 S.Ct. 1958].)
              (3) Violation of State Constitutional Rights—
              In his opening brief on appeal, defendant did not raise any arguments based
on the California Constitution. However, after we held oral argument in this matter, a
case was decided addressing whether the collection of DNA samples under the Act
violates the California Constitution. (People v. Buza, supra, 231 Cal.App.4th 1446.)
Defendant requested that we vacate submission of this matter and permit both further
briefing on People v. Buza and additional oral argument. We granted the request to
vacate submission and permit further briefing, but did not grant the request for additional
oral argument. The parties each submitted further briefing.
              In People v. Buza, supra, 231 Cal.App.4th 1446, the court addressed “the
constitutionality of a provision of the [Act], which requires that a DNA sample be taken
from all adults arrested for or charged with any felony offense ‘immediately following
arrest, or during the booking . . . process or as soon as administratively practicable after
arrest . . . .’ [Citations.]” (Id. at pp. 1450-1451, fn. omitted.) The Buza court vigorously
criticized the Supreme Court’s decision in Maryland v. King, supra, __ U.S. __ [133
S.Ct. 1958], but made clear that it based its decision “solely upon article I, section 13, of
the California Constitution, which in [its] view undoubtedly prohibit[ed] the search and
seizure at issue.” (People v. Buza, supra, 231 Cal.App.4th at pp. 1451, 1459-1465.)
              The defendant in People v. Buza, supra, 231 Cal.App.4th 1446 was arrested
for setting fire to a police car in January 2009. A few hours after his arrest, he was asked
to provide a DNA sample and refused, even though he was told that his refusal would
constitute a misdemeanor. (Id. at pp. 1451-1452.) Ultimately, the defendant was found
guilty of refusing to provide a DNA sample (§ 298.1, subd. (a)), in addition to arson,


4            Given this holding, we need not address the People’s additional arguments
concerning the independent source doctrine and the inevitable discovery doctrine.


                                             12
vandalism, and possession of combustible material. (People v. Buza, supra, 231
Cal.App.4th at pp. 1452-1453.)
              On appeal, the defendant in People v. Buza did “not challenge the . . . Act
in all its applications—such as its requirement of postconviction DNA testing.” (People
v. Buza, supra, 231 Cal.App.4th at p. 1467, fn. 7.) Rather, the defendant challenged
“only the specific search demanded of him, after his arrest and before he was formally
charged.” (Ibid.)
              The court observed that “the scope of permissible searches of arrestees is
one of the specific areas in which article I, section 13, [of the California Constitution] has
been held to provide greater protection than the Fourth Amendment. [Citations.]”
(People v. Buza, supra, 231 Cal.App.4th at p. 1480.) Greater protection notwithstanding,
“[s]ince the adoption of Proposition 8, evidence cannot be excluded as violative of state
protections against unreasonable search and seizure unless it would also be inadmissible
under the Fourth Amendment. [Citation.]” (People v. Buza, supra, 231 Cal.App.4th at p.
1483, fn. omitted.) The Buza court further stated: “[I]t would be surprising to find
California cases decided after Proposition 8 discussing differences in the substantive
scope of the state and federal search and seizure provisions, as it is highly unusual for
search and seizure issues to arise in any context other than a suppression motion, which
Proposition 8 requires to be decided according to federal law. The unavailability of the
exclusionary rule as a remedy for violations of the state Constitution that are not
violations of the Fourth Amendment means that state courts considering suppression of
evidence must engage in a Fourth Amendment analysis. [Citation.]” (People v. Buza,
supra, 231 Cal.App.4th at p. 1485.) The court reiterated that the case before it had
“nothing to do with the exclusionary rule,” stating: “The question here is not whether an
illegal search and seizure requires suppression of evidence at trial but whether the state




                                             13
can criminalize the refusal to comply with a search that would violate the state’s
proscription against unreasonable searches.” (Id. at pp. 1485-1486.)
              The People in the matter before us aptly observe that People v. Buza, supra,
231 Cal.App.4th 1446 is inapposite, inasmuch as it did not involve a suppression motion,
whereas the case before us does. That being so, we apply the rule that, even if the
collection of defendant’s DNA sample violated the state constitution, it would not be
error to deny his suppression motion unless collection of the sample also violated the
Fourth Amendment. (Id. at p. 1485.)
              Defendant maintains that the collection of his DNA sample violated both
the state constitution and the Fourth Amendment, so the evidence should have been
suppressed under People v. Buza, supra, 231 Cal.App.4th 1446. However, as we have
already discussed, there was no Fourth Amendment violation in this matter.
Consequently, People v. Buza, supra, 231 Cal.App.4th 1446 does not compel reversal.


C. Custody Credits:
              The court awarded defendant credit for 1,602 actual days served and 240
days of conduct credit, for a total of 1,842 days. Defendant argues the court should have
awarded him credit for 1,906 days.
              As defendant explains, he was taken into custody on December 24, 2008.
At the time of sentencing on July 8, 2013, he had been in custody for 1,658 actual days.
That number of days, multiplied by 15 percent, equals 248 days—the number of days of
conduct credit defendant should have received under section 2933.1. Consequently,
defendant’s total custody credit award should have been 1,906 days (the sum of 1,658
and 248 days). (§§ 2900.5, 2933.1.)
              The People agree. So do we.




                                            14
                                           III
                                     DISPOSITION
             The judgment is modified to award defendant 1,906 total credits for time
served, consisting of 1,658 actual days served and 248 days in conduct credits. The clerk
of the superior court is directed to prepare an amended abstract of judgment and send a
certified copy to the Department of Corrections and Rehabilitation. The judgment is
affirmed as modified.



                                                 MOORE, J.

WE CONCUR:



O’LEARY, P. J.



BEDSWORTH, J.




                                           15
