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In our unpublished opinion in this matter, we held the 2004 Amendment does not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
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.
42
Filed 12/4/13
CERTIFIED FOR PARTIAL PUBLICATION*
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D059007
Plaintiff and Respondent, (Super. Ct. No. RIF132717)
v. ORDER MODIFYING OPINION AND CERTIFYING OPINION FOR JUSTIN SAMUEL LOWE, PARTIAL PUBLICATION
Defendant and Appellant. NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed herein on November 15, 2013, be modified as
follows:
1. On page 5, first line, footnote 2 is deleted in its entirety.
2. On page 26, first sentence of the first full paragraph, the word with a strikethrough, "more," is deleted.
3. On page 32, second full paragraph, the two references to "Reform Act" are deleted and replaced with "2004 Amendment," so the paragraph reads:
Although the "particulars" of the 2004 Amendment and the Maryland Act─such as the qualifying offenses that require the collection of buccal swab DNA samples from arrestees, and the
* Pursuant to California Rules of Court, rule 8.1110(b), this opinion is certified for publication with the exception of part II.
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 2004 Amendment 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.)
There is no change in the judgment.
The opinion in the above-entitled matter filed on November 15, 2013, was not
certified for publication in the Official Reports. For good cause it now appears that the
opinion should be published with the exception of part II, pursuant to California Rules of