Appendix — Nilsen v. California

TABLE OF CONTENTS

APPENDIX A, Decision of the Supreme Court of

California

APPENDIX B, Declaration of attorney Brent

TLE LEAFLET RL ES IE PILE TRE OE LE .

APPENDIX C, Declaration of attorney William J.

DIN Jccc 70 cut co cede ccaksesasucennaneceseeabeeneeseees |

APPENDIX D, Declaration of John Steadman

Nilsen

APPENDIX E, Declaration of attorney Correen

Ferrentino

2a

Appendix A

51765296

IN THE SUPREME COURT OF CALIFORNIA

Kn Bane

In re John Steadman Nilsen on Habeas Corpus.

The petition for writ of habeas corpus is denied.

SUPREME COURT

FILED

MAY 20 2010

rederick K. Ohlrich Clerk

Deputy

GEORGE

Chief Justice

ja

Appendix B

Declaration of Brent Romney

I. Brent I. Romney, say:

l. I am an attorney at law, licensed to practice

in the Courts of the State of California, and | am in

good standing with the California State Bar

2. I was retained to represent petitioner, John

Steadman Nilsen, on direct appeal from Orange

County Superior Court case No. 04WF0832; Court of

Appeal case number G038070. I filed Nuilsen’s

opening and reply briefs. In April, 2008, I associated

in Attorney Thomas Dunn as co-counsel. On June

17, 2008, Mr. Dunn argued Nilsen’s case before the

Court of Appeal, Fourth Appellate District, Division

Three.

3. On June 30, 2008 Nilsen’s conviction was

affirmed by the Court of Appeal, in an unpublished

,

opinion.

4. In a letter dated February 5, 2009, | wrote to

Nilsen to advise him of the decision of the appellate

court and inform him that a Petition for Rehearing

with the Court of Appeal and a Petition for Review

with the California Supreme Court had been filed. |

wrote: “I want to update you on the status of your

appeal. On September 22, 2008, the Court of Appeal

affirmed your conviction. Since that date, a Petition

for Re-Hearing was filed and denied. A subsequent

petition to the Supreme Court to hear and consider

your appeal was also denied. I am dismayed by the

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decisions of the appellate courts in your case

However, I have now exhausted all appellate

remedies in your case.”

5. I intended to cause a Petition for Rehearing

and a Petition for Review with the California

Supreme Court be filed in Nilsen’s case, but neither

were filed. As stated in my May 18, 2009 e-mail to

attorney Bill Kopeny, “I recall asking Tom [co

counsel Tom Dunn] to file Application for

Reconsideration, and if denied, petition Supreme

Court for hearing (sic). I then began another 187

jury trial, then another. I didn’t talk to Tom for a

while. John Nilsen inquired as to the status of his

case. | had heard nothing re Tom or appeal (sic), so |]

wrote John Nilsen and advising him of the outcome

(sic). I recall I told him that application for

rehearing was denied and supreme court did not

grant hearing (sic), assuming I would have heard

otherwise if anything different had occurred. I| also

told John Nilsen that a writ should be considered . .

. A few days later, I contacted Tom, who told me he

thought I was going to file application for

reconsideration, then petition supreme court if

necessary (sic) so, no application for hearing was

filed nor was petition to supreme court filed.”

6. In the February 5 letter, I provided Nilsen the

wrong date that the Court of Appeal affirmed his

conviction. I wrote that the conviction was affirmed

on September 22, 2008. The conviction was actually

affirmed June 30, 2008.

7. When retained to represent Nilsen, I advised

him that I would file his appeal and ensure that his

state appellate rights were exhausted. | was awar

he might want to later file a writ of habea corpus 1n

‘tate and federal court

e. The failure to file the Petition for Kehearing

and Petition for Review to exhaust state remedic

was not strategic and was not due to any fault or

delay on the part of Mr. Nilsen

| declare under penalty of perjury that the

foregoing is true and correct

DATED: 9-14-09 es)

Brent F. Romne

Attorney At Law

Dal

Appendix C

Declaration of Wilham J. Kopeny

|, Wilham J. Kopeny, say

1. | am an attorney at law, licensed to practice

in the Courts of the State of California and of the

United States. | have been a member in yvood

standing of the California State Bar since Decembe)

20, 1974. | am certified by the California State Bar

as a specialist in the areas of Criminal Law and

Appellate Law

2. ‘This declaration } made at the request ol

Correen Ferrentino, KEsq., attorney for Nilsen

California State Prison Number C-28087

3. My entire acquaintance and interaction with

Mr. Nilsen took place between April and dune, 2009

4. | received a letter dated May 1, 2009) from

Mr. Nilsen asking me to consider representing him

to seek to attack his conviction in Orange County

Superior Court case number 0OAWFO8382, in which he

was sentenced to an eighty (80) year prison term

kinclosed in Mr. Nilsen’s letter was a letter dated

lebruary 5, 2009 from attorney Brent Romney, an

attorney with whom I have been familiar for many

years. | have attached a copy of the 2/5/09 Romney

letter as Exhibit A to this Declaration

» In the letter. My ltiomne VY wrote

| beheve this letter was actually sent late in April becauss

came in an envelope | retained which ts postmarked 4/28/09

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“On September 22, 2008, the court of Appeal

affirmed your conviction. Since that date a Petition

for Re-Hearing was filed and denied. A subsequent

petition to the Supreme Court to hear and consider

your appeal was also denied. [4] I am dismayed by

the decisions of the appellate courts in your case.

However, I have now exhausted all appellate

remedies in your case.” Please see Exhibit A, 2/5/09

Romney Letter to John Steadman Nilsen, C28087.

6. On May 2, 2009 | mailed and sent via

facsimile a letter to Mr. Romney indicating that |

had been contacted by John Nilsen for possible post-

appeal representation, asking for copies of the

appellate briefs, including the Petition for

Rehearing and Petition for Review, and the orders

denying each as referenced in Exhibit A. I have

attached a copy of my 5/2/09 letter to Mr. Romney as

Exhibit B to this Declaration. Please see Exhibit B,

5/2/09 Kopeny Letter to Brent F. Romney, Esq..

7. Sometime after receiving Mr. Nilsen’s letter, I

researched the online website for his Court of

Appeal case and learned: (a) that the California

Court of Appeal, Fourth District, Division Three on

line case information for case number G0388070

indicated that the opinion affirming Mr. Nilsen’s

conviction in full was filed on June 30, 2008. I have

attached a copy of the California Courts—Appellate

Courts Case Information Docket for this case as

Exhibit C to this Declaration.

8. No Petition for Rehearing was shown on the

docket and it contained dates following June 30,

2008 beyond the 15 day Remittitur Issued on

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September 3, 2008, but did not note any Petition for

Review being filed. Please see Exhibit C, California

Courts-Appellate Courts Case Information Docket

for Case Number G038070, p.3 of 4.

9. I also searched the on line records for the

California Supreme Court which also contained no

record of any Petition for Review being filed on

behalf of Mr. Nilsen in this case.

10.1 did not receive a response to my May 2,

2009 letter to Mr. Romney, which was faxed and

mailed, so on May 18, 2009 I researched Mr.

Romney’s public e-mail address as listed on the

California State Bar website and sent him an e-

mail. In that e-mail thread, attached as Exhibit D to

this Declaration, I: (a) referenced my prior (5/2/09)

letter; (b) indicated that there may be a timing issue

for Mr. Nilsen; and (c) requested a reply to my

letter. Please see Exhibit D, 5/18/09 Kopeny E-mail

to Romney.

11.Mr. Romney responded to my e-mail on May

18, 2009 stating I substance: (a) he had received my

letter dated 5/2/09; (b) he was then lon 5/18/09] in

trial; (c) he had Mr. Nilsen’s entire appeal file; (d) he

worked on the appeal with Thomas Dunn, Esq.; (e)

he “recallfed] asking Tom [Dunn] to file an

Application for Reconsideration, and if denied,

petition Supreme Court for hearing.”; (f) John

Nilsen inquired of the status of the case, and at the

time he [Romney] had heard nothing but he

assumed if rehearing or review had been granted, he

would have heard so he wrote and told Mr. Nilsen

that both had been denied; (g) “A few days later” he

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spoke with Mr. Dunn, who told Romney that he

thought Romney was going to file both petitions: (h)

“So, no application for rehearing was filed, nor was

petition to Supreme Court filed.” Please see Exhibit

D, 5/18/09 Romney E-mail to Kopeny.

12.In the e-mail, Mr. Romney expressed views

that caused me to conclude that neither he nor Mr.

Dunn were familiar with California Rule of Court,

Rule 8.508, which allows appellate counsel to file an

abbreviated Petition for Review in the California

Supreme Court for the purpose of exhausting state

remedies, which is a prerequisite for filing a federal

petition under 28 U.S.C. §2254 (habeas corpus by a

state prisoner) which seeks to raise _ federal

constitutional issues raised in the state direct

Ss

appeal. I reached this conclusion in part because

Mr. Romney told me in the 5/18/09 e-mail that he

and Dunn discussed the fact (sometime after

Romney wrote to Mr. Nilsen in May of 2009) that

the “petition to supreme court had _ nothing

sufficiently novel that supreme court would grant

cert.” (sic)?, but he went on to state that one of the

issues on appeal was sufficiency of the evidence,

2 ] assume Mr. Romney meant to refer to a petition to the

Supreme Court of California seeking Review, not certiorari. If

he actually meant to discuss a “cert” petition, then it is also

apparent that there is also a misunderstanding of the need to

fairly present any federal claim to the United States Supreme

Court. Because, however, Mr. Romney’s e-mail referred to a

“petition for hearing” in the California Supreme Court, |

simply concluded that he is not readily familiar with appellate

court nomenclature, and that he may rely on Mr. Dunn for

technical knowledge in appeal.

10a

which is a federal constitutional issue in criminal

cases.'

13.It is my understanding that: (a) after being

retained to represent Mr. Nilsen on direct appeal,

Mr. Romney assured Mr. Nilsen that he would “do

everything I can to have conviction reversed”‘; (b)

Mr. Nilsen relied on Mr. Romney to follow all

procedural steps available to present his claims to

the California Appellate Courts on direct appeal,

including filing a Petition for Rehearing in the

Court of Appeal and a Petition for Review in the

California Supreme Court; (c) based on Mr.

Romney's 2/5/09 letter to Mr. Nilsen (Exhibit A),

and on Mr. Romney’s 5/18/09 e-mail to me, Mr.

Romney believed it was his obligation to file both

the Petition for Rehearing and Petition for Review

for Mr. Nilsen; (d) Mr. Nilsen believed these

petitions would be filed for him: (e) Mr. Romney

intended to cause them to be filed, but they never

were.

14.0n May 19, 2009, I wrote to Mr. Nilsen,

advising him that Mr. Romney had stated to me

that he has not filed the Petition for Rehearing or

the Petition for Review in the California Supreme

Court.

15.In early June, 2009, I received a letter from

Mr. Nilsen asking for advice in view of the fact that

he had not exhausted state remedies on his direct

3 Please see Exhibit D.

4 Please see May 29, 2008 Romney Letter to Mr. Nilsen,

attached as Exhibit E.

lla

appeal. I wrote back to him on June 19, 2009

advising him that it was possible for him to seck

relief from his counsel’s failure to file the Petition

for Review to exhaust state remedies on his direct

appeal issues. In that letter I also referred him to

attorneys who I know handle habeas corpus

matters.°

16. Based on the information I have about Mr.

Nilsen’s situation, | beheve that he has valid

grounds for a petition for writ of habeas corpus

under either the rationale of Jn re Benort (1973) 10

Cal.3d 73 [because he reasonably relied on

assurances of his counsel, who did not communicate

with him about his case until almost 8 months after

his conviction was affirmed in the Court of Appeal,

and then, in his 2/5/09 letter inaccurately advised

him that the Petition for Rehearing and Petition for

Review he had promised to file Aad been filed, and

denied]; or Roe v. Flores-Ortega (2000) 528 U.S. 470

[because appellate counsel was ineffective for failing

to file a Petition for Review to exhaust state

remedies, the availability of which he was unaware,

and pursuant to Roe, Mr. Nilsen was prejudiced

because he was denied that appellate proceeding].

In this regard it should also be noted that the

United States Supreme Court has established that a

state prisoner who is entitled to appeal is

constitutionally entitled to “a complete and effective

®’ Although I have prepared and filed dozens of habeas corpus

petitions during the 34 years I have been practicing law, in

general, I no longer handle habeas corpus cases.

12a

appellate review of his conviction...” and that in

Roe v. Flores-Ortega, supra, the Supreme Court

described its own holding as follows: “’[Wle hold

that when counsel’s’ constitutionally deficient

performance deprives a defendant of an appeal that

he otherwise would have taken, the defendant has

made out a successful ineffective assistance of

counsel claim entitling him to an appeal.” Roe, 528

U.S. at p. 484.

Executed this August 21, 2009 at Irvine,

California.

| declare under penalty of perjury that the

foregoing is true and correct.

ae /s/ ito

William J. Kopeny

Attorney at Law

6 Entsminger v. Iowa (1967) 386 U.S. 748, 752, 87 S.Ct. 1402,

1404, 18 L.Ed.2d 501.

13a

EXHIBIT A

TO DECLARATION OF WILLIAM J. KOPENY

(REFERENCE—JOHN NILSEN)

Blumenthal

Law Offices

Devoted exclusively to the defense of the accused

February 5, 2009

John Steadman Nilsen C28087

CSP-SAC C3-i1

P.O.Box 29066

Represa, CA 95671

Dear Mr. Nilsen,

1 want to update you on the status of your

appeal. Unfortunately, I do not have good news. As

you are aware, I asked E. Thomas Dunn, a law

professor and very experienced appellate attorney,

to work with me on your appeal. The Appellant’s

Opening Brief on November 1, 2007. The Attorney

General filed the Respondent’s Brief on March 3,

2008, I was present when Mr. Dunn argued your

appeal orally before the Court of Appeal. I had Mr.

Dunn argue the appeal because he has previously

worked as a research attorney at the Court of

Appeal and was personally familiar with the legal

concerns of each of the justices who considered your

appeal.

On September 22, 2008, the Court of Appeal

affirmed your conviction. Since that date, a Petition

for Rehearing was filed and denied. A subsequent

14a

petition to the Supreme Court to hear and consider

your appeal was also denied.

1 am dismayed by the decisions of the

appellate courts in your case. However | have now

exhausted all appellate remedies in your case. The

appellate court rarely appoints counsel to represent

an inmate for purposes of filing a writ of habeas

corpus; they do so only when it appears there is a

clear indication that trial counsel was ineffective or

newly discovered evidence of your innocence exists. |

am not of the opinion that either basis exists in your

case. If you or your family desire, however, to

pursue a writ of habeas corpus, | recommend tyou

promptly contact E. Thomas Dunn, who specializes

in handling appeals and writs in the appellate

courts. You can contact him as follows:

Edward Thomas Dunn

675 N. Euclid Street, Suite 301

Anaheim, CA 92801

Please contact me if you have any questions

or if I may be of service to you in the future.

Very truly yours,

Brent F. Romney

Marilyn Dutkus

L5a

EXHIBIT B

TO DECLARATION OF WILLIAM J. KOPENY

(REFERENCE—JOHN NILSEN)

Law Offices of

William J. Kopeny & Associates

May 2, 2009

Via Facsimile (951-788-6303)

And U.S. Mail

Brent F Romney, Esq.

Blumenthal Law Offices

The Riverside Barrister Building

3993 Market Street

Riverside, CA 92501

Re: John S. Nilsen

Dear Mr. Romney:

[ have been contacted by John Nilsen for

possible post-appeal representation.

To that end, I am asking that you send to me

your appellate briefs, including the Petition for

Rehearing and Petition for Review, and the orders

denying each, as referenced in your February 5,

2009 letter to Mr. Nilsen.

Thank you for your courtesy in this matter.

Very truly yours,

WILLIAM J. KOPENY & ASSOCIATES

/s/

William J. Kopeny

16a

EXHIBIT C

TO DECLARATION OF WILLIAM J. KOPENY

(REFERENCE—JOHN NILSEN)

CALIFORNIA APPELLATE COURTS

Case Information

4th Appellate District Division 3

Court date last updated: 04/30/2009 06:05 PM

Docket (Register of Actions)

The People v. Nilsen

Case Number G038070

Date: 01/05/2007

Description: Notice of Appeal lodged/received

(criminal).

Notes: By aplt John Steadman Nilsen: 80 yrs to life

w/three consecutive terms of life w/o parole

Date: 01/05/2007

Description: Notice to reporter to prepare transcript.

Notes: CSR: J. Bullard

Date: 02/07/2007

Description: Record on appeal filed.

Notes: CT-3 w/prob. ofcr. rpt., RT-6. [w/11

confidential envelopes].

Date: 02/07/2007

Description: Sealed document filed******

Notes: 9 sealed envelopes filed: 8 confidential

envelopes [pages 6&7, pages 9-11, pages 12-

13, pages 16&17, pages 18 &19, pages 141-

144, pages 315-323, pages 507-51]; 1 In-

camera hearing [pages53-55).

L7a

Date: 02/07/2007

Description: Marsden transcript sent.

Notes: 2 Marsden hearings [10/25/06 pp.622-624 and

10/26/06 pp. 867-870].

Date: 03/13/2007

Description: Counsel appointment order filed.

Notes: Atty Janyce K. Blair appointed for aplt John

Steadman Nilsen.

Date: 04/09/2007

Description: Requested—extension of time

Notes: for AOB

Date: 04/12/2007

Description: Granted—extension of time

Notes: 1%t ext aob ext’d to 5/23/07

Date: 04/18/2007

Description: Substitution of attorneys filed for

Notes: Filed on 4/17/2007 ~ Appellant subs out

appt’d atty/Janice Blair and subs in

atty/Brent I. Romney.

Date: 05/22/2007

Description: Requested—-extension of time

Date: 05/24/2007

Description: Appellant notified pursuant to rule

8.220 (a)(1).

Notes: Notice RESCINDED on 5/25/07

Date: 05/25/2007

Description: Filed order vacating and appointing

new counsel.

13a

Notes: Atty Janyce Blair is vacated and Brent

Romney is retained as counsel submitted

from ADI.

Date: 05/25/2007

Description: Note

Notes: Notice rescinding default notice for aob

submitted this date

Date: 05/25/2007

Description: Granted—-extension of tims

Note: 18t ext — aob ext’s to 6/22/07

Date: 06/25/2007

Description: Requested—extension of time

Date: 06/25/2007

Description: Granted—extension of time

Date: 07/26/2007

Description: Requested—extension of time

Date: 07/27/2007

Description: Granted—extension of time

Note: 4t* ext aob ext’d to 8/23/07

Date: 08/23/2007

Description: Requested—extension of time

Date: 08/23/2007

Description: Granted—extension of time

Date: 09/25/2007

Description: Appellant notified pursuant to rule

8.360.

Date

Des

Date

Desc

Date

Desc

Date

Desc

—

~

a

Date:

Desc

Date

Desc

Date

Desc

~

~

—

Date:

Desc

Date

Desc

Notes:

Date:

| Jese

Date

Desc

Date

Desc

Ne

—~

10/24/2007

iption: Requ ted exXxTensiol

10/25/2007

iption: Granted extension of tin

11/01/2007

‘Iption Appellant opening

11/29/2007

iption: Requested—extension of

1 1/29/2007

iption: Granted —extension of time

12/27/2007

1ption Requ req CXTC) Ion of

12/27/2007

Iption Granted CXTeNSION OF Tt)

01/29/2008

‘Iption: Requested —extension |

01/30/2008

iption: Granted—extension of t

3'4 ext to 03/03/08 for RB

03/03/2008

Iption: Respondent's brief

03/07/2008

iption: Argument letter sent

03/21/2008

‘Iption Reque ted CXTeNSION OF TI

Date: 03/21/2008

Description (;sranted

Date: 03/27/2008

Description: Request for oral argument filed by

Notes Atty Brent Romne Y COUNSE or Apit lime

‘stimate boomin

Date: 04/14/2008

Description: Appellant's reply

Date 04/14/2008

Description Case fully brnefed

Date 04/14/2008

Description: Association of attorneys filed for

Notes: Aplt associates in Att/Thomas Dunn as co

counsel with atty/Brent I. Romney. Orivinal ec'd

(to fax) 4/15/08. (no signature of atty/Brent

Romney, he will fax a signed assn. of counse!

atty. Out of area at present.)

Date: 04/23/2008

Description: Association of attorney

Notes: Aplt’s aaty/Brent Romney a

atty/Thomas Dunn as co-counsel

Date: 04/24/2008

Description Case briefed and on a InN pune

Notes: For June 2008 Calendar:

Date: 05/08/2008

Description: Calendar notice sent. Calendar dat

Notes: 6-17-08 at 9:00 a.m

Date: 06/17/2008

21a

Description: Cause argued and submitted.

Notes: Atty E. Thomas Dunn, Jr. argued for aplt

Andrew Mestman, Deputy AG argued for resp.

Date: 06/30/2008

Description: Opinion filed.

Notes: AFFIRMED. (signed unpublished) Ikola/Sills

Bedsworth

Date: 06/30/2008

Description: Submission order filed.

Dates: 09/03/2008

Description: Remittitur issued

Date: 09/03/2008

Description: Case complete.

Date: 03/11/2009

Description: Sealed file/record sent to storage.

2009 Judicial Council of California

22a

EXHIBIT D

TO DECLARATION OF WILLIAM J. KOPENY

(REFERENCE—JOHN NILSEN)

William J. Kopeny | SOUR

Krom: Brent Romney

[bromney@blumenthallawoffices.com]

Sent: Monday, May 18, 2009 8:44 PM

To: William J. Kopeny

Subject: RE: John Nilsen Habeas

Hi Bill!

I got your letter; sorry I did not respond quickly. ['m

in trial and everything else seems to get put off.

Anyway, want to get back to you ASAP and share

with you my recall of events re John Nilsen’s appeal,

I have his entire appeal file, and can provide it to

you if you need it. Tom Dunn and I worked on it

together. If you look at appeal there was not a lot to

argue on appeal from the transcripts of the trial. We

thought the Pub Def did pretty good job. Tom orally

argued it because we felt he knew 4:3 panel better

than I did. Court of appeal affirmed conviction.

Afterwards, Tom and I talked about the decision,

and both of us thought the court’s decision was

expected. In our discussions, I recall asking Tom to

file Application for Reconsideration, and if denied,

23a

petition Supreme Court for hearing. I then began

another 187 jury trial, then another. I didn’t talk to

Tom for a while. John Nilsen inquired as to status of

case. | had heard nothing re Tom or appeal, so I

wrote John Nilsen and advised him of outcome. |

recall I told him that application for rehearing was

denied and supreme court did not grant hearing,

assuming I would have heard otherwise if anything

different had occurred. I also told John Nilsen that a

writ should be considered, and I believe | told him (1

don’t have the letter in front of me) the writ would

not be limited to the transcript of the trial. That is

where newly discovered evidence or ineffective

assistance of counsel could be raised. A few days

later, I contacted Tom, who told me he thought |

was going to file application for reconsideration,

then petition supreme court if necessary. So, no

application for hearing was filed, nor was petition to

supreme court filed. Tom and I again discussed case

and concluded that any basis for reconsidering

ruling was slight if non-existent, and petition to

supreme court had nothing sufficiently novel that

supreme court would grant cert. Primary issue on

appeal was sufficiency of 1D testimony, and related

issues. Tom and 1 also discussed whether we

thought the publ defender was effective or not, and

both of us felt she did quite a good job, given the

evidence.

I hope this helps. I also hope you can find something

credible that can be raised in petition for writ. Quite

frankly, I do not see anything that may have merit,

but that is why the writ attorney should always be

another atty than the atty who handled the trial or

the appeal. I’m glad he has contacted you. Please let

24a

me know if I can provide you with any assistance. If

you believe an IAC argument can be raised, either

at trial or appeal level, I (and I am sure Tom) will be

supportive and assist you, if possible. Nilsen’s right

to fair trial and appeal by competent attys is more

important than any ego | may have as far as the

appeal goes. Please let me know if 1 can help. Brent

From: William J. Kopeny

[mailto‘wjk@writsnappeals.com|

Sent: Monday, May 18, 2009 6:19 PM

To: Brent Romney

Subject: John Nilsen Habeas

Dear Brent:

I sent you a letter a week or two ago, and | am

writing to be sure you received it. There may be a

time issue regarding this client’s ability to file a

timely state and/or federal habeas petition, and |

would very much appreciate receiving a reply to my

letter.

Thank you,

Bill Kopeny

25a

KXHIBIT ke

TO DECLARATION OF WILLIAM J. KOPENY

(REFERENCE—JOHN NILSEN)

LAW OFFICES OF

BRENT F. ROMNEY

101 S. Kraemer Blvd., Suite 240

Placentia, California 92870

Phone (714) 524-3314

Fax (714)524-3315

May 29, 2008

John S. Nilsen C-288087

CPS-SAC C3-111

P.O. Box 290066

Represa, CA 95671

Dear John,

Thank you for your letter dated March 19, 2008

wherein you ask several questions regarding the

appellate briefs, and in particular, the response by

the Attorney General. I want to address each of your

questions.

Initially, the appeal can address constitutional

issues (as we do in Argument #2 in the Opening

Brief), legal error by the court, or sufficiency of the

evidence (as we do in Argument #1). As I reviewed

the entire transcript of the trial, | did not see any

“legal error” by the judge. I also asked a very

experienced appellate specialist, Tom Dunn, to

review it also, and he came to the same conclusion.

Thinking that two heads are better than one, |

26a

requested the court’s permission to associate Tom

Dunn as co-counsel, since he and I spent a lot of

time discussing your appeal. Under separate cover,

you will receive that request of the court.

1) Kye witness identification issues are normally

a “sufficiency of the evidence” issue. That is, it is a

question of fact, and if there is substantial, credible

evidence of the identification of the defendant, that

appellate court will defer to that of the jury, and not

re-weigh the evidence. However, if the evidence

pertaining to the ID of the defendant is not

substantial and credible, then it is a legal question.

That is, if the evidence is so confusing and

inconsistent that the appellate court concludes that

no reasonable jury could have found the evidence of

ID sufficiently substantial and credible then the

court of appeal can reveres on this basis. I discussed

this legal standard of review on pages 31-32 of the

Opening Brief, as well as in the Reply Brief.

2) As far as the DNA evidence, the Statement of

“acts indicate that DNA found in a glove consistent

with your DNA was established, However, the facts

clearly stated the glove was found more than a block

away. Further, it was dissimilar to the glove

observed on the suspect’s hand in the surveillance

video. Our Reply Brief did not make these facts

clear, so I will argue them during Oral Argument

that currently is scheduled for June 2, 2008 in

Santa Ana.

3) The failure of matching any latent

fingerprints or DNA on any surfaces that the

suspect touched with you is very significant. |

27a

reviewed the Reporter’s Transcript and there is a

reference to those latent prints being lifted and no

match. Again, I will point that out in Oral Argument

as | argue that “lack of evidence” is very significant

because if the suspect were in fact you, there should

have been a match. This will go toward the fact that

there was not sufficient credible evidence to

convince a reasonable jury beyond a _ reasonable

doubt.

4) The newspaper article that was photographed

was, in my opinion, clearly staged. | did not include

much discussion on that because I wanted to see if

the Attorney General picked up on that and argued

it in their Respondent’s Brief. They did. Rather than

point this out in our Reply Brief, | wanted to argue

this orally when I can catch the AG by surprise.

That, I have found, gets the attention of the

appellate court justices more effectively than if it

simply gets buried in the Reply Brief. Thank you for

pointing this out, however. Your comments and

insights are very helpful and much appreciated.

5) This issue cannot be raised in the appeal

because it is not part of the record. However, it is a

very good issue for a subsequent Writ of Habeas

Corpus petition where we can really flesh it out.

The AG talked about the various items of evidence

that tended to corroborate the shaky ID testimony.

We intentionally focused on the ID testimony of

witnesses in an effort to create doubt in the minds of

the justices. If the eye witness testimony is

questioned, it matters not if there tends to be some

28a

corroboration, since that evidence would. be

insufficient to convict.

I very much agree with you that “reasonable doubt”

is written al]l over this case. I promise you that I will

continue to do everything I can to have your

conviction reversed. If we are granted a new trial, |

would love to represent you. I think we could really

exploit the weaknesses in the case and perhaps

obtain an acquittal. In any event, let’s focus right

now on the appeal.

| hope all is well with you. I will stay in touch

Best wishes,

Brent F. Romney

2Ya

.ppendix D

Declaration of John Steadman Nilsen

I. John Steadman Nilsen, declare

1. I am petitioner in the Habeas Corpus petition

of JOHN STEADMAN NILSEN, Orange County

Superior Court case No. 04WF0832; Court of Appeal

case No. G038070.

2. This declaration is made at the request of my

habeas’ attorney, Correen Ferrentino, and

documents my communication with my _ prior

appellate attorney, Brent Romney, about the

Petition for Review to the Supreme Court.

3. When I hired Mr. Romney to represent me on

appeal, he promised to do everything legally possible

to protect my rights and fight my conviction

including making sure the record was “preserved”

for later review in federal court if my appeal was not

successful. I relied on Mr. Romney to do this. Mr.

Romney knew that I might one day need to pursue

further post conviction relief in my case if we lost on

Appeal. On March 19, 2008, Mr. Romney stated in a

letter to me regarding a question I had about

appellate briefs), “this issue cannot be raised in the

appeal because it is not part of the record. However

it is a very good issue on habeas.” Also, in a letter

dated February 5, 2009, advising me that my appeal

was affirmed, he wrote: “If you or your family desire,

however, to pursue a writ of habeas corpus, |

recommend you contact KE. Thomas Dunn....”

4. In a letter dated February 5, 2009, Mr.

Romney wrote to me: “Il want to update you on the

30a

status of your appeal. “on September 22, 2008, the

Court of Appeal affirmed your conviction. Since that

date, a Petition for Rehearing was filed and denied.

S subsequent petition to the Supreme Court to hear

and consider your appeal was also denied. I am

dismayed by the decisions of the appellate courts in

your case. However, I have now exhausted all

appellate remedies in your case.”

5. My appeal was affirmed on June 30, 2008.

Mr. Romney never told me about this at the time.

He instead waited 8 months before informing me

about the appellate court decision. I did not find out

about this until Mr. Romney notified me in his letter

of February 5, 2009.

6. In the February 5 letter, Mr. Romney gave me

the wrong date that the Court of Appeal affirmed

my conviction. He wrote “On September 22, 2008,

the Court of Appeal affirmed your conviction.” The

conviction was actually affirmed months earlier,

June 30, 2008.

7. I relied on Mr. Romney to keep his promises

to me and file my petition for review in the Supreme

Court as he told, He would do and told me in writing

he did do. If I had known that he had not done this,

I would have hired another attorney to do it, or

made sure I did this, so my right to have a federal

court review my conviction was protected.

8. I relied upon Mr. Romney’s assurances that

my Petition for Review was filed. I also relied upon

the incorrect dates he provided me about when my

case was affirmed.

ola

9. At no time did I cause any delay in this

process nor am I at fault for my Petition for

Rehearing or my Petition for Review in the Supreme

Court not having been filed. After Mr. Romney

notified me of the appellate court decision, 8 months

after the fact, I promptly contacted appellate

attorneys Bill Kopeny and on advice Correen

Ferrentino, to obtain representation and help

I declare under penalty of perjury that th

foregoing is true and correct

DATE: 9/2/09 /es|

Jonn Steadman Nilse!

Declarant

cs

Za

Appendix E

Declaration of Correen Ferrentino

1. Correen Ferrentino, say

[ am an attorney licensed to practice law in

the state of California, the U.S. District Court

Central District and the Ninth District Court of

Appeal. My state bar number 172485

2. | am the current habhea

Petitione)

3. 1 was retained on August

purposes of seeking habeas relief

1 Petitioner wrote to me in June of 2009

eeking assistance by way of habeas corpus relief

Because | was engaged in a four week trial |

was not available and was not made immediately,

aware of petitioner's request

6. | received a second letter from Petitione:

July of 2009

7. | immediately wrote to Petitioner and

explained what he would need to accomplish in

order to retain my service

8. Soon thereafter I received correspondencs

from Petitioner indicating his desire to retain me

and the necessary instruction to do so since he wa

incarcerated

9. At all times Petitioner has been diligent in hi

communicathL

preparing thi

4a

Appendix F

LEXSKE 2008 CAL APP UNPI

THE PEOPLI

KOHN STEADMAN

COURT OF APPEAL OF CALIFORNIA, FOURTH

APPELLATE DISTRICT, DIVISION THRE]

2008 Cal App Unpub LiXtIS 530¢

June 30, 2008, Filed

NOTICE NO’ Oo BkKE PUBLISHED I!

OFFICIAL REPORTS. CALIFORNIA RULES O|]

COURT, RULE &.1115la), PROHIBITS COURTS

AND PARTIES FROM CITING OR RELYING ON

OPINIONS NOT CERTIFIED FOR PUBLICATION

OR ORDERED PUBLISHED MACK T \!

SPECIFIED BY RULE 8.11150b). THIS OPINION

HAS NOT BEEN CERTIFIED FOR PUBLICATION

OR ORDERED PUBLISHED FOR THE PURPOSI

OF RULE 8.1115

PRIOR HISTORY: [*1|

Appeal from a judgment of the

ot Orange County No. { iW KO 7

l‘roeberg, Judge

DISPOSITION

COUNSEL: Brent Fk. Romney

for ey fendant and App llant

30a

Kdmund G. Brown, Jr., Attorney General, Dane R.

Gillette, Chief Assistant Attorney General, Gary W.

Schons, Assistant Attorney General, Lynne

McGinnis and Andrew Mestman, Deputy Attorneys

General, for Plaintiff and Respondent.

JUDGES: IKOLA, J.; SILLS, P. J... BEDSWORTH,

J. concurred.

OPINION BY: IKOLA

OPINION

A jury convicted defendant John Steadman

oes;

212.5, subd. (c)), and found true the special

Nilsen of first degree murder (Pen. Code, § 187,

S

subd. (a)) 1 and second degree robbery (§

circumstance allegation he committed the murder

during the commission of a robbery (§ 190.2, subd.

(a)(17)(A)), and the enhancements he discharged a

firearm causing great bodily injury or death (§

12022.53, subd. (d)), and personally used a firearm

(§ 12022.53, subd. (b)). In a bifurcated trial, the jury

found true allegations defendant had suffered nine

prior convictions. The court sentenced defendant to

an indeterminate term of life without possibility of

parole, tripled, and a determinate sentence of 80

years.

1 All statutory references are to the Penal [*2]

Code.

Defendant contends (1) insufficient evidence

supports the jury verdict because eyewitness

identifications of him were inconsistent and

36a

untrustworthy, and (2) the trial court's denial of his

pretrial suppression motion was erroneous because

the forcible taking of his D.N.A. sample in 1995

under former section 290.2 2 violated his Fourth

Amendment right to be free from unreasonable

searches and seizures. We disagree and affirm the

judgment.

2 Former section 290.2 was repealed in 1988 and

replaced by section 295 et seq., the DNA and

Forensic Identification Database and Data Bank Act

of 1998 (Act). (§ 295; Stats. 1998, ch. 696, § 2, p

3719.)

FACTS

On the evening of January 29, 2004, Anna Peters

assistant manager of a 99 Cents Only Store, was

working at the back of the store in a warehouse

open only to employees. Another employee brought

into the warehouse a man who was looking for a

manager. Peters asked the man, "Can I help you?"

Pulling a gun from his waist area, the man pointed

it at Peters's chest and asked, "Where's the safe?"

Peters replied, "The safe is in the front." The man

stated, "I'm not kidding." Peters said, "Please calm

down. The safe is in the front." "I'm gonna give [*3]

you all the money." The man told Peters they would

"go to the front."

They were about to exit the warehouse when

a third employee, Jovani Fuerte, entered. The man

grabbed Fuerte, saying he wanted money. Fuerte,

seeing the man had a gun hidden in his jacket,

pulled out his wallet. The man grabbed the wallet

and put it in his pocket. He said he wanted more

9-7,

dla

money and asked Fuerte where the cashier or the

safe box was. The man said, "Let's go to the front."

He walked out of the warehouse pushing Fuerte

ahead of him and holding his gun to Fuerte's back.

Peters was behind them, but at some point

"not that close." She hid "in front of the end cap on

the next aisle" and tried to phone 911 on a cell

phone.

The man and Fuerte walked quickly to the

registers at the front of the store. Shawna Wolfgram

was working at a register. The man came up to

Wolfgram's register and reached in. There was a

"rattling" sound as the man either tried to take cash

from the register tray or to take the entire tray, and

Wolfgram tried to "slap it back down," "cover the

money with her hands and hold the register down."

Wolfgram "said, ‘I'm being robbed' into the

microphone." The man pulled out a gun and shot her

in the [*4] chest. Wolfgram fell to the ground and

turned blue. The man ran from the store, stopped at

a cinder block wall in the parking lot, looked back

for a second, then "jumped over the wall."

Video taken by the store's” surveillance

cameras captured the suspect's left hand wearing a

dark glove. An investigator found a black and gray

glove in a parking lot near an alley behind the wall

over which the suspect had jumped.

A forensic scientist collected a swab with

sufficient D.N.A. from inside the glove to enable him

"to obtain a full genetic profile." He also developed a

genetic profile for defendant taken from an oral

swab. He determined that although there was

D.N.A. from at least three individuals" taken from

38a

inside the glove, a profile of the major contributor

was "the same as the profile obtained from

[defendant's] standard." This "major profile would

be expected to occur less than one in one trillion

unrelated individuals within the population."

In a photographic lineup of six photographs

shown to eyewitnesses on March 19 and 20, 2004,

defendant's photograph was number four. Peters,

the assistant manager, and Sandra Estrada, a

customer who had received change from Wolfgram

just before the [*5] shooting, identified the

perpetrator as the man in photograph number four.

Another eyewitness, Karen Birdsong (the customer

at the register next to Wolfgram's), indicated at first

she did not recognize anyone in the photographic

lineup, but after being asked if any person was

“even close," she pointed to photograph number four

and said "his mustache and eyes looked similar." A

fourth eyewitness, Kristian Hayes (a customer

behind Estrada in Wolfgram's line), eliminated

photographs one, two, three and six, but could not

eliminate photographs four or five.

All four of these eyewitnesses identified

defendant in court as Wolfgram's killer.

A March 24, 2004 search of defendant's

apartment uncovered brushes (which can be used to

clean guns) and a 99 Cents Store bag. The police

also found a January 31, 2004 Orange County

Register containing an article about Wolfgram's

murder underneath the refrigerator. In a small

fenced-in patio area outside the apartment, behind a

small figurine of a Buddha in "a knot hole of [al

tree," an officer found "an expended .38-caliber shell

casing... ." Defendant was arrested that same day.

39a

Defendant's older brother, Ken Nilsen, with

police permission, went to [*6] defendant's

apartment on March 24, 2004, to "pick up and store"

defendant's personal belongings. There he "located a

handgun, holster, and ski mask" which he gave to

the police. 3

3 The brother was "eliminated as a_ possible

contributor to the D.N.A. detected on the inside of

the glove."

A police investigator who inspected the gun

found it "was loaded with five rounds" and "the

chamber underneath the hammer was empty." A

forensic scientist determined the gun was a .357

magnum revolver and the ammunition was Federal

brand .38 special caliber bullets. He opined the fired

casing found in the knot hole of the tree was fired by

the gun. He further determined that "recovered

fragments of the projectile from [Wolfgram's|

autopsy" appeared to come from a Federal brand .38

special or .357 magnum bullet. But due in part to

the “heavy impact damage" to the projectile, he

could not identify or “eliminate that particular

bullet as having been fired from this revolver."

As we shall discuss in further detail below,

the defense presented evidence that the eyewitness

descriptions of the suspect conflicted in certain

respects with one another and with the defense

testimony of defendant's neighbor.

Defendant's [*7] forensic expert testified that

although defendant could not be excluded as a

contributor to the D.N.A. inside the glove, it was not

clear his D.N.A. was actually on the glove. This

uncertainty resulted from the size and mixed nature

40a

of the sample, the impossibility of knowing how

many donors were in the mixed sample, the

possibility that an intermediary could have

transferred defendant's D.N.A. onto the glove, and

the potential that D.N.A. can last for a long time,

even months and years, 1n a sample.

Defendant's expert on eyewitness

identification, a psychology professor, testified about

studies done with staged test crimes that have

demonstrated the risk factors involved in obtaining

accurate eyewitness identification of suspects based

on photo lineups. In general, for more accurate

identifications, lineups should be conducted sooner

rather than later. In addition, the expert testified

about the rehability of cross-racial identification:

"[Pleople are generally better at identifying

somebody of their own racial lor] ethnic background

Wl

Defendant presented evidence that brushes of

the type found at his apartment can be bought at

auto parts stores.

The parties stipulated, inter [*8] alia, that no

D.N.A. "was found on the tennis shoes and shell

casing found during the search of [defendant's]

home," nor were his fingerprints on the "gun,

holster, Buddha, shell casing, for] rounds found in

the gun" (although the Buddha "was not processed

for D.N.A. or fingerprints"). In addition, fingerprints

of comparison value found at the store were not

defendant's.

DISCUSSION

4la

Substantial Evidence Supported Defendant's

Conviction

Defendant contends "insufficient proof was

adduced to prove to a reasonable jury that he was

the culprit." He argues that = given’ the

"inconsistencies in the descriptions of the

perpetrator given by the various witnesses" and the

"undisputed expert testimony .. . about the inherent

dangers of eyewitness identifications," the jury's

verdict was unreasonable.

"In assessing a claim of insufficiency of

evidence, the reviewing court's task is to review the

whole record in the lhght most favorable to the

judgment to determine whether it~ discloses

substantial evidence -- that is, evidence that is

reasonable, credible, and of solid value -- such that a

reasonable trier of fact could find the defendant

guilty beyond a reasonable doubt." (People v.

Rodriguez (1999) 20 Cal.4th 1, 11.) [*9] "Reversal

on this ground is unwarranted unless it appears

'that upon no hypothesis whatever is there sufficient

substantial evidence to support [the conviction]."

(People v. Bolin (1998) 18 Cal.4th 297, 331.)

At the time of his arrest, defendant measured

6'3" tall and weighed 200 pounds. He was 46 years

old at the time of the shooting. A 1985 fingerprint

card records his height as 6'2", his weight at 185

pounds, his build as medium, his hair as blond, and

his eyes as blue. A 1989 fingerprint card notes his

height as 6'3", his weight at 190 pounds, his build as

heavy, his hair as blond, and his eyes as hazel.

Defendant compares these statistics to those

contained in eyewitness descriptions of him, and

42a

concludes the eyewitness identifications were vague

and/or inaccurate. The six eyewitness descriptions,

given in police interviews on the day of the murder,

were as follows:

(1) Hayes "described the suspect as a male

white [6'1" to 6'2"] in his late forties [or]

early fifties with a skinny © build,

A

approximately [150 to 170 pounds]," "a

grayish goatee," and = short gray _ hair

(protruding from under a faded blue baseball

cap), "Wearing a t-shirt under a light colored

flannel long-sleeved shirt."

(2) [*10] Peters "described the suspect as a

male white, [age] 40, [6' to 6'1"], [with a] thin

to medium build, approximately [180

pounds], having short black and gray hair,

unknown facial hair, wearing a long-sleeved

light blue possible flannel shirt = with

unknown color t-shirt, Levi's and unknown

colored shoes." While watching the

surveillance video, she identified the suspect

but “pointed to his head where he was

wearing a beanie .. . and said she did not

remember [him] having that on when he

confronted her in the warehouse."

(3) Birdsong described the suspect as a "male

white" "in his late forties or early fifties"

approximately 6'1" tall, weighing

approximately 190 pounds, with "a_ thick

mustache that extended down past the

corners of his mouth" and wearing "a grayish

blue knit beanie cap, blue jean pants, and a

medium gray long-sleeved sweater."

43a

(4) Estrada described the suspect as a male

white "in his fifties," approximately 6'3" to

6'5", "thin to a medium build," wearing "some

type of beanie," blue jeans and a _ blue

sweatshirt, with gray or white hair and a

"sucked up and dirty" face, "deep, sunken eye

sockets," and "slender facial features."

(5) Fuerte described the suspect as a male

white [*11] in his forties, with short, blond

hair "sticking out of a black beanie," with an

unshaven mustache, weighing about 160 to

175 pounds, over six feet tall, and "tall and

skinny."

(6) Jon Hook, a witness who observed the

suspect run out of the store and jump over a

cinder block wall, described the man as

wearing "some kind of long-sleeve attire and

a beanie.” At tnal Hook described the

suspect as “about six one-ish, [with al]

slender build."

Contrary to defendant's assertion that these

six descriptions are replete with inaccuracies and

inconsistent with one another, they share much in

common and generally accord with defendant's vital

statistics. All six eyewitnesses described the suspect

as a (1) white man, (2) around 6'1" or slightly taller,

(3) wearing a long-sleeved top (with the exception of

Fuerte who did not describe any clothing) and some

type of cap (with the exception of Peters who did not

recall the man wore a hat in the warehouse), and (4)

in his forties (with the exception of Estrada who

specified in his fifties, and Hook who apparently did

not mention age).

44a

Defendant stresses he weighed 200 pounds

"at the time of his arrest (less than two months after

the crimes)." The eyewitnesses 1[*12] judged his

weight as between 170 to 190 pounds (with the

exception of Estrada and Hook who did not estimate

his weight in pounds). In addition, Hayes called the

suspect's build "skinny," and Fuerte and Hook

"slender." Of course, defendant may have gained

weight in the intervening two months between the

shooting and his arrest. Also, the long-sleeved top

worn by the suspect may have cloaked his build to a

certain extent. Finally, opinions as to what

constitutes a slender build, compared to a medium

one, will vary with the beholder; even the official

fingerprint cards designated defendant as_ of

medium or heavy build based on a differential of

only five pounds. (The fingerprint cards also

conflicted on his height by one inch and his eye

color, blue versus hazel.)

Defendant asserts he "did not have blonde

hair," yet Fuerte described his hair as blond. But

defendant fails to inform us of his true hair color or

to point us to any record reference on this subject.

Instead, he asserts a 1998 black and white

photograph in the record shows he has "virtually no

hair at all," a statement unsupported by the actual

photo. Defendant's 1985 and 1989 fingerprint cards

record his hair as blond at that [*13] time. Hayes,

Estrada, and Peters described the suspect's hair

color as, respectively, gray; white or gray; or gray

and black -- descriptions defendant does not contend

are inaccurate.

Defendant alleges other inaccuracies,

inconsistencies, or failure of recall. He points out

Ada

Peters could not "identify [his] shoes or their color."

He notes the only witness who described a gray

long-sleeved sweater was Birdsong. He quibbles that

he is not exactly 6'1." He complains Hayes is the

only witness who saw a gray goatee or a faded blue

baseball cap. He observes Estrada is the only one

who saw a sucked up, dirty face. He contrasts the

eyewitness descriptions with his _ neighbor’:

testimony for the defense that defendant was tall

"and regular," not "overly" or "real skinny," and the

neighbor did not recall him having a beard or "Fu

Manchu mustache" or ever looking "scruffy" or

"dirty."

These purported Inconsistencies Or

inaccuracies do not render the jury's” verdict

unreasonable "TWhher the circumstance

surrounding the identification and its weight are

explored at length at trial, land] where eyewitness

identification is believed by the trier of fact, that

determination is binding on the reviewing [*14|

court." (In re Gustavo M. (1989) 214 Cal.App.3d

1485, 1497.) "Apropos the question of identity, to

entitle a reviewing court to set aside a jury's finding

of guilt the evidence of identity must be so weak as

to constitute practically no evidence at = all

[Citations.| The strength or weakness of the

identification, the incompatibility of and

discrepancies in the testimony, if there were any,

the uncertainty of recollection, and the qualification

of identity and lack of positiveness in testimony are

matters which go to the weight of the evidence and

the credibility of the witnesses, and are for the

observation and consideration, and directed solely to

46a

the attention of the jury " (People v. Lindsay

(1964) 227 Cal.App.2d 482, 493-494.)

Moreover, additional substantial evidence

(besides the eyewitness identifications) supported

defendant's conviction: the dark glove seen on the

surveillance video and found on the suspect's escape

route; the D.N.A. inside the glove to which

defendant was a major contributor; the fired .38

caliber casing in a tree outside his home; the

discovery 1n his apartment of a newspaper article on

the killing, several brushes, and the .357 handgun

which fired |*15] the expended shell and could not

be excluded as the weapon that shot Wolfgram; and

the "Federal" brand shared by the ammunition in

the gun and the bullet that killed Wolfgram

Accordingly, defendant's substantial evidence

challenge to his convictions fail

The Trnal Court Did Not Err by Denying

Defendant's Suppression Motion

Defendant filed a section 1538.5 pretrial motion to

suppress evidence, arguing, inter alia, the 1995

taking of his D.N.A. without his consent pursuant to

former section 290.2 constituted an illegal seizure. 4

The court denied defendant's suppression motion

except as to four items irrelevant to the issue at

hand

f The People's opposition to the suppression

motion alleged that in 1995, defendant was in

prison serving a sentence for kidnapping, robbery,

assault with a deadly weapon (firearm), and other

felony counts

On ippeal actendant

hould have granted hi u ‘SS1IOnN motLon ber

he "would not have even been a su pect in this case

absent a cold ‘hit’ which indicated a potential mate!

between the D.N.A. sample found in the glove

and a I).N.A. sample the] was compelled to pr

In 1YYD5 " He argues the taking of his D.N

be 16] 1995 violated his Fourth Amendment

be tree from unreasonabl earches and

ind conclude ‘the evidence

including the identity

ult of the polsonou

ndant icknowledge

controlling case

Latute na r)

peen nacted in all yt)

federal! rovernment

constitutional challenge

rejected consistently [Citation

former section 290.2, the predece

rejected in this state by People v. King [2000]

Cal.App.4th 1363 The various decisional

authorities addressing and rejecting constitutional

challenges to state DNA data base and data bank

acts are collected in the Annotation, Validity

Construction, and Operation of State DNA Databasi

Statutes [(2000)] 76 A.L.R. 5th 239.|'] (P] In view of

the thoroughness with which constitutional

challenges to DNA data base and data bank act

have been discussed, there is httle we would venture

identifi

mterest

dimin}

pecifically

Icitation]})]

cite TLE TVIIN

methodol

OnVICclION

rie dec) hOT Ag

Cory lude that

he validity of

}

\pp ith

|

mar

onditional

Kpectation

joned

whelming

by the collection

olfenders, we must con

prohilang of quahfied federal off

under the totahty of the circum

we today re ahign ourselvi

ue quarely holding that

Backlog Khmination

requirement oft th

49a

Kincade (9th Cir. 2004) 379 F.3d 813,

omitted.)

Defendant argues "binding United States

Supreme Court precedent .. . requires a ‘special

need' beyond that of ordinary law enforcement in

order to engage in a balancing of competing

interests of the government and the person tested."

This argument echoes the Adams_ defendant's

contention the appellate court was required to

"identify a "special needs" beyond the normal need

for law enforcement’ before undertaking a balancing

analysis." (Adams, supra, 115 Cal.App.4th at p.

258.) The Court of Appeal rejected that assertion,

explaining it "overlooks the fact that the class of

persons [*19] subject to the Act is convicted

criminals, not the general population. As stated

above, convicted criminals do not enjoy the same

expectation of privacy that nonconvicts do. The

cases on which defendant relies involved different

populations of test subjects. [Indianapolis - v.

Edmund (2000) 531 U.S. 32,] 41, involved motorists

being stopped at drug interdiction checkpoints for

the primary purpose of uncovering evidence of

criminal wrongdoing. Ferguson lv. Charleston

(2001) 532 U.S. 67,] 77-78, involved state hospital

obstetrics patients who had an expectation of

privacy in their medical records and who were

subjected to an invasion of privacy which was ‘far

more substantial’ than in the cases of other drug

test subjects." (Ibid.) Here, defendant's reliance on

National Treasury Employees Union v. Von Raab

(1989) 489 U.S. 656 to assert the necessity for a

"special needs" analysis, is similarly misplaced,

since that case involved employees of the United

50a

States Customs Service seeking "transfer or

promotion to certain positions." (Id. at p. 659.)

Finally, defendant argues a law requiring an

invasion of a parolee's or inmate's’ Fourth

Amendment rights must "serve [*20] a legitimate

penological interest," relying on Turner v. Safley

(1987) 482 U.S. 78. But that case explained that

“when a prison on regulation impinges on inmates'

constitutional rights, the regulation is valid if it is

reasonably related to legitimate penological

interests." (Id. at p. 89, italics added.) We are not

dealing here with a prison regulation.

DISPOSITION

The judgment is affirmed. IKOLA, J.

WE CONCUR: SILLS, P. J.,. BEDSWORTH, J.