PEOPLE v. McVICKERS

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Court of Appeal, Fourth District, Division 3, California.

The PEOPLE, Plaintiff and Respondent, v. Thomas Scarth McVICKERS, Defendant and Appellant.

No. G008398.

Decided: August 29, 1991

Richard Jay Moller, Redway, under appointment by the Court of Appeal, for defendant and appellant. John K. Van de Kamp, Atty. Gen., Richard B. Iglehart, Chief Asst. Atty. Gen., Harley D. Mayfield, Sr. Asst. Atty. Gen., Janelle B. Davis and Pamela A. Ratner, Deputy Attys. Gen., for plaintiff and respondent.

Thomas Scarth McVickers was convicted of six counts of lewd and lascivious acts upon a minor, five counts of using a minor in pornography, five counts of unlawful sexual intercourse with a minor, four counts of furnishing narcotic drugs to a minor, eight counts of oral copulation with a minor, and two counts of sodomy with a minor.   He contends:  (1) the trial court erroneously denied his motion to suppress evidence;  (2) the trial court erred in giving CALJIC No. 4.71 as to count eight;  (3) the prosecution failed to elect the act upon which it relied for conviction on counts one and three;  (4) his twenty-three year sentence constitutes cruel and unusual punishment;  (5) the court denied probation and sentenced him to the maximum term based upon improper speculation that he was mentally ill;  and (6) retroactive application of mandatory AIDS testing provisions of Penal Code section 1202.1 violated the ex post facto clause.   We affirm with a modification striking the order for AIDS testing.2

During 1983 and 1984 McVickers took pornographic photographs of 13–year–old Holly R. and engaged in acts of intercourse and oral copulation with her.   He recorded the sexual acts in a diary and ledger;  a major theme was debasement.   Between January and March 1988, when Holly was 17, McVickers gave her cocaine and engaged in additional acts of intercourse and oral copulation with her.

On multiple occasions in 1985 and 1986, McVickers engaged in acts of sodomy, oral copulation and sexual intercourse with Linda M., then 16 and 17 years old, plying her with drugs and taking pornographic photos on some occasions.   More than once McVickers involved his or Linda's friends in the debauchery.   He also memorialized most of the encounters in his diary, graphically depicting them and stressing his theme of debasement.

I–V *

VI

McVickers contends retroactive application of the mandatory AIDS testing provisions of Penal Code section 1202.1 violated the ex post facto clauses of the United States and California Constitutions (art. I, § 10 and art. I, § 9, respectively).   We agree.

“[F]or a criminal or penal law to be ex post facto ․ it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it.”  (Weaver v. Graham (1981) 450 U.S. 24, 28–29, 101 S.Ct. 960, 963–964, 67 L.Ed.2d 17, fn. omitted.)   Included is “ ‘any statute [1] which punishes as a crime an act previously committed, which was innocent when done;  [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed․’ ” (Collins v. Youngblood, supra, 497 U.S. at p. ––––, 110 S.Ct. at p. 2716–2717;  see also Tapia v. Superior Court, supra, 53 Cal.3d at. p. 294, 279 Cal.Rptr. 592, 807 P.2d 434.)4

 Penal Code section 1202.1, enacted after McVickers' crimes, provides for mandatory AIDS blood testing for those convicted of certain offenses, some of which apply to McVickers.5  The Attorney General correctly asserts the purpose of the statute is to put AIDS carriers on notice so their punishments can be increased for future criminal sexual acts.   Recognizing the principles stated above, he argues these consequences and those cited by McVickers 6 are “merely procedural” because they are speculative, insubstantial and not punitive.

The Attorney General fails to consider the threshold “disadvantage” to McVickers, the invasion of his search and seizure and privacy rights inherent in a nonconsensual blood test.   In Johnetta J. v. Municipal Court (1990) 218 Cal.App.3d 1255, 267 Cal.Rptr. 666, the court recognized these rights were implicated in the withdrawal of blood for AIDS testing pursuant to Health and Safety Code section 199.95.7  The court concluded, however, that public safety and the magnitude of the danger justified the invasion of these rights.

 In doing so it reasoned, “ ‘[A] “compelled intrusio[n] into the body for blood to be analyzed ․” must be deemed a Fourth Amendment search.’   [Citation.]  The Fourth Amendment applies to an expectation of privacy ‘that society accepts as objectively reasonable.  [Citations.]’  [Citations.]  ‘In light of our society's concern for the security of one's person, [citation], it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable.   The ensuing chemical analysis of the sample to obtain physiological data is a further invasion of the tested [person's] privacy interests.  [Citation.]’  [Citation.]   Indeed, because of privacy ‘concerns about bodily integrity’ and the potential revelation of ‘private medical facts,’ even the nonsurgical collection of breath and urine for chemical testing must be considered a search under the Fourth Amendment.  [Citations.]  ‘The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State.’  [Citation.]”  (Id. at p. 1271, 267 Cal.Rptr. 666.)

 The court in Johnetta J. correctly concluded the invasion of these rights 8 is justified by greater societal concerns.   But in doing so the court properly recognized the rights are substantial.9  The loss of significant rights as the result of a criminal conviction has long been considered “punishment” for ex post facto purposes.10  In Sovereign v. People (1983) 144 Cal.App.3d 143, 192 Cal.Rptr. 469, Division Two of this court held retroactive application of a statute delaying a convicted felon's pardon eligibility violated the ex post facto clause because to do so would protract the loss of rights occasioned by the conviction.  (Id. at p. 154, 192 Cal.Rptr. 469.)

In reaching its conclusion, the court relied on venerable United States Supreme Court precedent.  (See Cummings v. Missouri (1867) 71 U.S. (4 Wall.) 277, 18 L.Ed. 356;  Ex Parte A.H. Garland (1867) 71 U.S. (4 Wall.) 333, 18 L.Ed. 366.)   The court concluded, “If denying persons their civil and political rights ․ constitutes ‘punishment,’ then surely prolonging the time that ex-prisoners remain subject to these penalties constitutes punishment, as well.”  (Sovereign v. People, supra, 144 Cal.App.3d at p. 154, 192 Cal.Rptr. 469.) 11

 The blood test here involves the deprivation of McVickers' constitutional rights, although their deprivation is permissible under Johnetta J. v. Municipal Court, supra, 218 Cal.App.3d 1255, 267 Cal.Rptr. 666.   Still, those rights may not be forfeited as a consequence of conviction where the statutory proviso is enacted after the crime.   McVickers may not be subjected to the provisions of Penal Code section 1202.1.

The prior opinion is ordered vacated and the judgment is ordered modified by striking the order for blood testing pursuant to Penal Code section 1202.1.  (Pen.Code, § 1260.)   As modified, the judgment is affirmed.

I concur in Parts I, II, III, IV and V of the majority opinion, but dissent from Part VI.   I do not believe application of the mandatory AIDS testing provision of Penal Code section 1202.1 violates the ex post facto clauses of the United States and California Constitutions.

This court filed its original opinion February 13, 1991, from which I dissented from Part VI.   On May 2, 1991, our Supreme Court granted review and transferred the case back to us with directions to reconsider the cause in light of Tapia v. Superior Court (1991) 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434 and Collins v. Youngblood (1990) 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30.1

In response to that remand with directions, the majority has seen fit to re-print their initial decision verbatim with the sole addition of one paragraph paying lip service to Tapia and Collins.   In doing so, my colleagues ignore both the directions of our Supreme Court and the fact that the two cases we were directed to consider necessarily affect their reasoning and opinion.

The majority reasons that the required blood test deprives McVickers of constitutional rights which, although permissible under Johnetta J. v. Municipal Court (1990) 218 Cal.App.3d 1255, 267 Cal.Rptr. 666, constitutes a “punishment” for ex post facto purposes.   Accordingly, those rights may not be forfeited as a consequence of conviction because the statutory proviso was enacted after the crime.   Acknowledging the fact that this invasion of McVicker's rights may be justified by greater societal concerns, the majority nonetheless notes those rights were “substantial.”

But, the majority employs the wrong test.   A determination that those rights were “substantial” has no bearing on the issue of whether Penal Code section 1202.1, applied retroactively, constitutes an impermissible ex post facto application of law.   The Supreme Court in Collins v. Youngblood, supra, 497 U.S. 37, 110 S.Ct. 2715, 111 L.Ed.2d 30, rejected a line of cases which held the ex post facto clause was violated when a “substantial protection” existing at the time the offense was committed is eliminated.   The court stated that any references in its earlier cases “to ‘substantial protections' and ‘personal rights' should not be read to adopt without explanation an undefined enlargement of the [ex post facto clause].”  (Collins, supra, 497 U.S. at p. ––––, 110 S.Ct. at p. 2721.)   And our Supreme Court in Tapia v. Superior Court, supra, 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434, in reviewing Collins has stated that “After Collins, we need not determine ‘how substantial is the right that the statute impairs and how significant is that impairment.’  [Citation.]”  (Id. 53 Cal.3d at pp. 294–295, 279 Cal.Rptr. 592, 807 P.2d 434.)   In Collins v. Youngblood, supra, 497 U.S. 37, 110 S.Ct. 2715, the court was faced with the issue of whether a Texas statute passed after respondent's crime was committed which allowed the reformation of an improper jury verdict, violated the ex post facto clause of Article I, Section 10 of the United States Constitution.   In holding that it did not, the court embarked upon an exhaustive review of case law interpreting the ex post facto clause.   The court concluded its rulings in Calder v. Bull (1798) 3 U.S. (3 Dall.) 386, 390, 1 L.Ed. 648 (Calder) and Beazell v. Ohio (1925) 269 U.S. 167, 169–170, 46 S.Ct. 68, 68–69, 70 L.Ed. 216 (Beazell) were “faithful to our best knowledge of the original understanding” of the ex post facto clause.  (Collins v. Youngblood, supra, 497 U.S. at p. ––––, 110 S.Ct. at p. 2719.)   Those cases held that “ ‘any statute [1] which punishes as a crime an act previously committed, which was innocent when done;  [2] which makes more burdensome the punishment for a crime, after its commission, or [3] which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.’ ”   (Id. at p. ––––, 110 S.Ct. at p. 2719, quoting Beazell, supra, 269 U.S. at pp. 169–170, 46 S.Ct. at pp. 68–69.)

Since our first decision, our Supreme Court has held that Collins, supra, in its reliance upon Beazell, supra, and Calder, supra, 3 U.S. (3 Dall.) 386, also provide the meaning of the ex post facto clause under our own state constitution.   The court in Tapia stated, “Nor does an independent meaning for the state ex post facto clause emerge from our own opinions.   Although this court has often cited the state clause together with the federal, we have never given the state clause an independent interpretation or held, in any case, that the state clause required a different result than the federal clause.”  (Id. 53 Cal.3d at p. 296, 279 Cal.Rptr. 592, 807 P.2d 434.)

We now look to the majority opinion to see whether it withstands scrutiny under Collins, supra, and Tapia, supra.   It does not.   The majority correctly cites Johnetta J. v. Municipal Court, supra, 218 Cal.App.3d 1255, 267 Cal.Rptr. 666 as holding that the rights implicated in AIDS testing are substantial.   However, in doing so, the majority fails to consider both Collins and Tapia which, in applying the categories first enunciated in Calder, supra, 3 U.S. (3 Dall.) 386, and Beazell, supra, 269 U.S. 167, 46 S.Ct. 68, prohibited as ex post facto only those statutes which punish as a crime an act previously committed which was innocent when done, make more burdensome the punishment for a crime after its commission, or deprive one charged with crime of any defense available according to law at the time when the act was committed.  (Collins, supra, 497 U.S. at p. ––––, 110 S.Ct. at p. 2719;  Tapia, supra, 53 Cal.3d at p. 294, 279 Cal.Rptr. 592, 807 P.2d 434.)  Penal Code section 1202.1 does not implicate any of these criteria, and therefore, is not retrospective nor an impermissible ex post facto application of law.   The majority's continual reference to the loss of “significant rights” by McVickers and the fact those rights are “substantial” employs a test which both our Supreme Court and the United States Supreme Court have rejected.   As the Supreme Court stated in Collins, in overruling one of its prior decisions in Thompson v. Utah (1898) 170 U.S. 343, 18 S.Ct. 620, 42 L.Ed. 1061, “The right to jury trial provided by the Sixth Amendment is obviously a ‘substantial’ one, but it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause.”  (Collins, supra, 497 U.S. at p. ––––, 110 S.Ct. at p. 2724.)   Our Supreme Court has spoken similarily, stating:  “Tapia argues that we should perpetuate ‘substantial protection’ analysis by adopting it as a matter of state law.   We decline to do so.”   (Tapia, supra, 53 Cal.3d at p. 295, 279 Cal.Rptr. 592, 807 P.2d 434.)

Here, though the privacy interest which is implicated may arguably be “substantial,” “it is not a right that has anything to do with the definition of crimes, defenses, or punishments, which is the concern of the Ex Post Facto Clause.”  (Collins, supra, 497 U.S. at p. ––––, 110 S.Ct. at p. 2724.)

Because only punishment for future criminal sexual conduct is increased, the forbidden ex post facto categories first enunciated in Calder, supra, 3 U.S. (3 Dall.) 386 are not implicated.   Increased punishment for future conduct does not involve punishment for an act previously committed which was innocent when done.   It does not make punishment for future conduct more burdensome, increase the punishment for a crime after its commission, or deprive one charged with crime of any defense available according to law at the time the act was committed.  (Collins, supra, 497 U.S. at p. ––––, 110 S.Ct. at p. 2719;  Tapia, supra, 53 Cal.3d at p. 94, 279 Cal.Rptr. 592, 807 P.2d 434.)   Rather, the statute's enhancement of punishment for future sexual conduct constitutes a recidivist statute—a law utilizing prior conduct to enhance the penalty for a new crime.   Such statutes are constitutionally permissible:  “Heavier penalties are often provided by law for a second or any subsequent offense than for the first;  and it has not been deemed objectionable that in providing for such heavier penalties the prior conviction authorized to be taken into account may have taken place before the law was passed [Citations].   In such case it is the second or subsequent offense which is punished, not the first.”  (People v. James (1925) 71 Cal.App. 374, 378, 235 P. 81.)

“A statute is not retroactive in operation merely because it draws upon facts antecedent to its enactment for its operation․  The crime for which the defendant is punished in an instance such as we have here is not the earlier felony, but a new and separate crime of which the prior felony conviction is only a constituent element.   Without the defendant's commission of new and additional acts after he has notice of the new legislation, the statute passed or amended after the constituent felony conviction would not come into play.”  (People v. Venegas (1970) 10 Cal.App.3d 814, 823, 89 Cal.Rptr. 103;  see also People v. Sweet (1989) 207 Cal.App.3d 78, 82–83, 254 Cal.Rptr. 567;  People v. Williams (1983) 140 Cal.App.3d 445, 448, 189 Cal.Rptr. 497.)

The majority relies primarily upon Sovereign v. People (1983) 144 Cal.App.3d 143, 192 Cal.Rptr. 469 in support of its holding that McVicker's rights may not be forfeited as a consequence of conviction because section 1202.1 was enacted after his crime.  (Maj. Opn., p. 155.)   However, Sovereign is distinguishible.   There, a former prisoner successfully petitioned the superior court for a certificate of rehabilitation to restore his civil and political rights.  (Pen.Code, § 4852.01 et seq.)   Almost one year later, the People sought to vacate the order, alleging the applicant had not completed the necessary waiting period in light of a statutory amendment that substantially lengthened the waiting period before such a petition could be filed.   The amendment was enacted after petitioner's release from prison, but before he filed the petition for rehabilitation.   The Court of Appeal affirmed the denial of the People's motion to vacate, holding that prolonging the civil and political disabilities to which the applicant was subject violatedthe constitutional prohibitions against ex post facto laws.  (Id. at p. 154, 192 Cal.Rptr. 469.)   By contrast, the mandatory AIDS testing provision of Penal Code section 1202.1 does not impose a substantially greater penalty for a repeat offender, but permits the imposition of an enhanced sentence for any subsequent conviction.  Sovereign is thus inapposite.

Here, without the defendant's commission of a subsequent crime under the statute, any enhancement for such a subsequent offense based upon the statutory mandate of section 1202.1 would not come into play.  (See Carter v. Municipal Court (1983) 149 Cal.App.3d 184, 189, 196 Cal.Rptr. 751;  People v. Sweet, supra, 207 Cal.App.3d at pp. 86–87, 254 Cal.Rptr. 567.)   As only future conduct is implicated, section 1202.1 as applied here is not ex post facto.   In addition, section 1202.1 does not involve the categories which our Supreme Court and the United States Supreme Court represent as exclusive for determining whether a law violates the ex post facto clause.   The retroactive application of section 1202.1 to an offense committed before its passage is thus not ex post facto.

I would affirm the judgment of conviction without modification.

FOOTNOTES

2.   We originally decided this case on February 13, 1991.   The Supreme Court granted review and transferred the matter here “with directions to vacate [our] opinion and to reconsider the cause in light of Tapia v. Superior Court (1991) 53 Cal.3d 282, 279 Cal.Rptr. 592, 807 P.2d 434 and Collins v. Youngblood (1990) 497 U.S. 37, 110 S.Ct. 2715 [111 L.Ed.2d 30].”   We proceed to do so.*   *   *

FOOTNOTE.   See footnote 1, ante.

4.   The dissent criticizes our failure to examine Collins and Tapia further, but they are not factually apt here.   They involved matters of trial procedure and simply cast aside any suggestion the ex post facto clause applies to procedural protections, no matter how “substantial.”   The three listed catagories define the limits of ex post facto protection.  (Collins v. Youngblood, supra, 497 U.S. at p. ––––, 110 S.Ct. at pp. 2720–2721, 111 L.Ed.2d at pp. 40–41;  Tapia v. Superior Court, supra, 53 Cal.3d at p. 294, 279 Cal.Rptr. 592, 807 P.2d 434.)   We will conclude mandatory AIDS testing falls within the second catagory.

5.   The section reads in relevant part:  “[T]he court shall order every person convicted of a violation of a sexual offense listed in subdivision (d) ․ to submit to a blood test for evidence of ․ AIDS․  Each person tested under this section shall be informed of the results of the blood test.  [¶] (b) ․ [T]he results of the blood test ․ shall be transmitted ․ to the Department of Justice.  [¶] (c) ․ [T]he Department of Justice shall provide the results ․ as to persons under investigation or being prosecuted under Section 647f or 12022.85 [punishing persons for engaging in certain crimes with knowledge they have AIDS] ․ to the prosecuting attorney upon request for the sole purpose of preparing counts for a subsequent offense under Section 647f or sentence enhancement under Section 12022.85.  [¶] (d) For purposes of this section, sexual offenses include ․ [u]nlawful intercourse ․ in violation of Penal Code section 261.5” (Pen.Code, § 1202.1.)

6.   To the statutory consequences, McVickers adds isolation in prison, social ostracism, and the psychological stress of knowing one has an incurable disease.

7.   That section requires such a procedure where a person has mingled bodily fluids with a public safety official (e.g., by a bite).

8.   California expressly recognizes the right to privacy apart from its existence in the search and seizure analysis.  (Cal. Const., art. I, § 1.)

9.   We recognize the AIDS threat to society is real and substantial.   No one questions the propriety of civil and criminal legislation aimed at stopping its spread.   But no case has suggested that a criminal law may be applied ex post facto if its goal is noble enough.   Indeed, most criminal laws have a compelling societal interest behind their enactment.

10.   We have considered whether the blood test is “significant” or “substantial” punishment in this context only, despite the dissent's claim that by doing so we have violated the mandates of Collins v. Youngblood, supra, 497 U.S. at p. ––––, 110 S.Ct. at p. 2720–2721, 111 L.Ed.2d at p. 40–41 and Tapia v. Superior Court, supra, 53 Cal.3d at pp. 294–295, 279 Cal.Rptr. 592, 807 P.2d 434.   As we have mentioned, the cases used those terms in the context of changes in trial procedure, not consequences of conviction.

11.   If our focus for determining “punishment” were on the enhanced penalties for a subsequent conviction of sex crimes by an AIDS carrier, the dissent's reliance on Carter v. Municipal Court (1983) 149 Cal.App.3d 184, 196 Cal.Rptr. 751 et al. might have merit.   We reiterate:  Our focus is upon the intrusion of an involuntary blood test.

1.   After the initial decision, the Attorney General petitioned the Supreme Court for review.   At that time, he considered the AIDS issue one of substantial importance because he asked that the Supreme Court settle “an important question of law.”   Inexplicably, following remand the Attorney General filed no supplemental brief, even though he had an absolute right to do so (Cal.Rules of Court, rule 29.4(f)) and even though appellant filed a supplemental brief.   This omission is inexcusable.

WALLIN, Associate Justice.

SONENSHINE, Acting P.J., concurs.

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