P. v. Hernandez

Filed 7/18/06 P. v. Hernandez CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

APPEAL from a judgment of the Superior Court of Los Angeles County, Kathleen Kennedy Powell, Judge; original proceeding, petition for writ of habeas corpus. Judgment affirmed with instructions; petition denied.

Fay Arfa for Defendant, Appellant and Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.

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Javier Hernandez pleaded no contest to second degree murder (Pen. Code,[1] § 187) and was sentenced to 15 years to life in state prison. On appeal, he contends that the trial court's order that he provide blood and saliva samples and that he pay a $20 court security fee renders his sentence different from the terms of his negotiated plea, violating his due process rights; he also contends that the blood and saliva sample order violates his rights under Fourth and Fourteenth Amendments to the United States Constitution. In his habeas corpus petition, Hernandez alleges that he received ineffective assistance of counsel; that he should be permitted to withdraw his guilty plea because his decision was based on erroneous information about the prosecution's intent and about his parole eligibility; and that he did not make a knowing and voluntary waiver of his right to a preliminary hearing. We affirm the judgment and summarily deny the habeas corpus petition.

FACTUAL AND PROCEDURAL BACKGROUND

As a result of the December 3, 2003 death of Hernandez's eight-month old son Brian, Hernandez was charged with murder (§ 187); assault on a child under the age of eight, causing death (§ 273ab); and child abuse (§ 273a, subd. (a)). With respect to the abuse charge, it was also alleged that Hernandez willfully caused, permitted a child to suffer, and inflicted unjustifiable physical pain and injury that resulted in the baby's death.

Pursuant to a negotiated plea agreement, Hernandez pleaded no contest to the murder count. The trial court determined that the murder was in the second degree, dismissed the remaining counts, and sentenced Hernandez to state prison for a term of 15 years to life. The court also ordered Hernandez to provide DNA samples and to pay a $20 court security fee. Hernandez did not object to either condition at sentencing.

Hernandez filed an appeal and requested a certificate of probable cause on December 27, 2004. The trial court denied the request for a certificate of probable cause. Hernandez also filed a petition for habeas corpus. This court ordered that the appeal and the habeas corpus petition be considered together.

DISCUSSION

I. Direct Appeal

A. Order to Provide DNA Samples

The trial court ordered Hernandez to provide DNA samples as required by section 296. Hernandez contends that the law violates the Fourth Amendment to the United States Constitution because it mandates the nonconsensual seizure of bodily fluids from inmates for DNA profiling without any individualized suspicion of criminal activity.

California courts have uniformly rejected Hernandez's claim of a Fourth Amendment violation. (People v. Adams (2004) 115 Cal.App.4th 243; Alfaro v. Terhune (2002) 98 Cal.App.4th 492; People v. King (2000) 82 Cal.App.4th 1363; see also People v. Travis (2006) 139 Cal.App.4th 1271, People v. Johnson (2006) 139 Cal.App.4th 1135; People v. Dial (2005) 130 Cal.App.4th 657; cf. U.S. v. Kincade (9th Cir. 2004) 379 F.3d 813 [rejecting constitutional challenge to a similar federal statute].) We agree with these courts that although the compelled giving of DNA samples implicates Fourth Amendment interests, the subject population has a diminished expectation of privacy, the intrusion is minimal, and it is justified by a compelling state interest in accurately prosecuting crime and in deterring it. Regardless of whether this issue was forfeited by the failure to object at sentencing, as the Attorney General contends, Hernandez's claim fails on its merits.

B. Imposition of Statutorily-Required Conditions

Hernandez contends that it violates due process of law for him to be subjected to the statutorily-required DNA sampling and $20 court security fee because neither was mentioned in the plea agreement. Although Hernandez was not specifically advised of the fee and the sampling requirement when he pleaded no contest, neither requirement amounts to a violation of due process. These requirements cannot be understood as punishment that â€