The opinion
REYNOSO, J.
I dissent.
The majority would weaken the constitutional protections guaranteed by the Fourth Amendment, Fifth Amendment and the Ninth Amendment (right of privacy) to aid the prosecution’s theory that defendant received AFDC funds for her minor child when she failed to report that a male was living in her home. The majority requires both defendant and her three-year-old daughter, Tanya, who is not a party, to submit to blood sampling.
*701 Let us examine Tanya’s situation. I agree with the majority that under People v. Browning (1980) 108 Cal.App.3d 117 [ 116 Cal.Rptr. 293 ], a law-abiding citizen (Tanya) is entitled to the same Fourth Amendment protections as a criminal defendant (her mother). However, I am bewildered by the majority’s refusal to grant her those protections. Tanya is three years old, not a party, and unrepresented by counsel in these proceedings. She is not the victim of a crime, nor is Tanya a witness to the crimes charged.
When dealing with the intrusion into the body or privacy of victims and witnesses, the courts appear to express no sound public policy which guides them, but rather “have developed an attitude resting uncomfortably somewhere between studied indifference and benign neglect.” (People v. Browning, supra, 108 Cal.App.3d 117, 122 .) Browning was sharply critical of cases in which unreasonable intrusions into the body or privacy of victims have been sanctioned, particularly People v. Bynon (1956) 146 Cal.App.2d 7 [ 303 P.2d 75 ], a case relied upon by the majority. In Bynon , a child victim of section 288 was ordered to submit to a blood test “without a word as to the child’s rights, simply assuming that as a part of criminal discovery, the child should submit to the removal of her blood on the basis that the results might be beneficial to the defense.. .[as] the obligation of all citizens to support their government.” (People v. Browning, supra, 108 Cal.App.3d 117, 123 .) The Browning court cites the more extreme example of the practice of court-ordered psychiatric examinations of the complaining witness in a sex case. “This must be a matter of some concern to the women of the State of California. If a woman who has been raped has to submit to a psychiatric examination, why not a man who has been robbed.. .It is a small wonder that the percentage of reported rapes is considerably less than the percentage of reported robberies.” (Ibid.)
The Browning court held that witnesses have the same Fourth Amendment protection against government intrusion into their bodies as do defendants in criminal cases, and, unlike the majority, ruled that the requested bodily intrusion was constitutionally impermissible.
In like manner, People v. Scott (1978) 21 Cal.3d 284 [ 145 Cal.Rptr. 876 , 578 P.2d 123 ], although relied upon by the majority, ruled the bodily intrusion constitutionally offensive. In applying the balancing test mandated by Scott, supra, Tanya deserves some sensitivity to her *702 rights to privacy and freedom from governmental intrusion. These rights are firmly based on the Constitution. The taking of a sample of her blood involves potential consequences more than the physical intrusion of a “simple needle prick” as the majority states. 1
The resultant establishment (or not) of paternity extends the intrusion beyond the physical. The consequences are psychologically, socially, and legally very serious, and involves an invasion into personal dignity and privacy comparable to, if not greater than, the physical intrusion prohibited by the California Supreme Court in People v. Scott, supra. A determination of paternity has grave implications for all concerned—the alleged father, the child, the mother and the state. The child, who has been forgotten in the case at bench, is actually the one who has the most at stake. Her identity, in a very real sense, is being litigated when paternity is determined by the court. This judicial determination will have profound sociological and psychological ramifica- . tions. The child’s rights of support and inheritance, as well as her future obligation to support her father are also involved. The establishment of paternity is a serious interference with the family and the fundamental right of privacy and requires the use of the least intrusive alternative. As enunciated by the Supreme Court in Scott, supra, the balancing test requires that “the more it intrudes upon essential standards of privacy, the greater must be the showing for the procedure’s necessity.” (People v. Scott, supra, 21 Cal.3d at p. 293 .) What could be more essential than the most basic biological relationship—that of parent and child? The California Supreme Court has termed the interest in maintaining a parent-child relationship “a compelling one, ranked among the most basic of civil rights. .. .” (In re B. G. (1974) 11 Cal.3d 679, 688 [ 114 Cal.Rptr. 444 , 523 P.2d 244 ]) and said that “[fjreedom from an incorrect imposition of that relationship on either a parent or a child is an equally compelling interest.” (Salas v. Cortez (1979) 24 Cal.3d 22, 28 [ 154 Cal.Rptr. 529 , 593 P.2d 226 ].) “‘If the child is to have anything, it must have a right to have his paternity ascertained in a fair and *703 efficient manner.’” (Citation omitted; italics in original.) {Id., at pp. 33-34.)
The state’s attempt to seek a blood sample to prove defendant’s perjury and fraud clearly invades Tanya’s rights of privacy and of the Fourth and Fifth Amendments.
I turn to the defendant. She has been charged with perjury and fraud. Given the serious ramifications of the order to submit to blood sampling, surely the prosecution is bound to use the least intrusive means of acquiring the evidence it needs to secure a conviction. I can think of several alternatives,—the use of the child’s birth certificate, or the use of the administrative fair hearing process. The best alternative, however, is the filing of a civil suit to determine paternity. This is routinely done by county officials and is the method most desireable, for it protects the rights of all, and assures due process of law.
I would issue the writ.
Petitioner’s application for a hearing by the Supreme Court was denied February 19, 1981. Caldecott, J., * participated therein. Bird, C. J., and Tobriner, J., were of the opinion that the application should be granted.
I entertain serious doubt that the court has jurisdiction over a nonparty to order this type of test. The majority cites People v. Bynon (1956) 146 Cal.App.2d 7 [ 303 P.2d 75 ] for the proposition that “there is no question but that the court has jurisdiction to order the blood tests.” Bynon was decided in 1956. Three Supreme Court justices voted to grant certiorari. It has been cited by California courts on only two occasions since then; once in People v. Crawford (1962) 205 Cal.App.2d Supp. 858 , 861 [ 23 Cal.Rptr. 566 ], and again in People v. Browning, supra, where, as I mentioned in the text, it was sharply criticized. In my mind, this hardly qualifies Bynon as dispositive of the issue. We are a court of equal standing. 1 find its reasoning unpersuasive.
Assigned by the Chairperson of the Judicial Council.