Filed 2/6/15 P. v. Dragasits CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

THE PEOPLE,

Plaintiff and Respondent,

v.

STEPHEN JOSEPH DRAGASITS,

Defendant and Appellant.

 D064288

 (Super. Ct. No. SCD233681)

APPEAL from a judgment of the Superior Court of San Diego County, Melinda J. 

Lasater, Frederick Maguire, and Charles R. Gill, Judges. Affirmed as modified.

Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and 

Appellant. 

Kamala D. Harris, Attorney General, Julie L. Garland, Assistant Attorney General, 

Barry Carlton, Lise Jacobson and Christopher P. Beesley, Deputy Attorneys General, for 

Plaintiff and Respondent. 

As a result of a buccal swab taken in February 2011 after Stephen Joseph 

Dragasits's arrest on another charge, police found incriminating evidence connecting 
2

Dragasits to crimes occurring in April 2011. Dragasits unsuccessfully moved to suppress 

the evidence, and thereafter, a jury convicted him of two counts of shooting at an 

occupied vehicle (Pen. Code,1 § 246; counts 3 and 4), two counts of assault with a deadly 

weapon (§ 245, subd. (a)(2); counts 5 and 6), and found true great bodily injury and 

firearm use enhancement allegations.2 

Dragasits contends the trial court should have suppressed the DNA evidence 

linking him to his crimes because hours before his DNA was taken in February 2011, the 

crime for which he was arrested had been reduced to a misdemeanor, and therefore the 

sample was obtained in violation of section 296.1 of the DNA and Forensic Identification 

Data Base and Data Bank Act of 1998 (the DNA Act). Dragasits argues that to the extent 

this court construes section 296 of the DNA Act to authorize collection of a DNA sample 

from every person initially arrested for a felony, it is unconstitutional and violates the 

Fourth Amendment. Dragasits further contends he was denied due process when police 

consumed the entire DNA sample found on the shell casings found at the crime scene. 

He contends that even if we conclude no due process violation occurred in the 

 

1 Statutory references are to the Penal Code unless otherwise indicated.

2 On the count 3 offense of shooting at an occupied vehicle, the jury found true 

allegations that Dragasits personally inflicted great bodily injury (§ 12022.7, subd. (a)) 

and discharged a firearm causing great bodily injury (§ 12022.53, subd. (d)). With 

respect to the count 5 assault, the jury found true allegations that Dragasits inflicted great 

bodily injury (§ 12022.7, subd. (a)) and personally used a firearm (§ 12022.5 subd. (a)). 

As to counts 3, 4, 5 and 6, the jury found true allegations that Dragasits used a firearm 

within the meaning of section 1192.7, subdivision (c)(8). The court sentenced Dragasits 

to an indeterminate term of 25 years to life plus a determinate term of 11 years 4 months 

in state prison.
3

consumption of his DNA sample, the trial court nevertheless prejudicially erred by 

refusing his pinpoint jury instruction addressing his inability to produce his own DNA 

evidence. Finally, Dragasits contends, and the People concede, that the abstract of 

judgment must be corrected to reflect the custody credits awarded by the court during the 

sentencing hearing. We affirm the judgment as modified to correct the custody credits. 

FACTUAL AND PROCEDURAL HISTORY3

Initial Arrest and Booking

On February 26, 2011, Marcus Wilson was driving southbound on State Route 163 

when a large object hit his car and knocked off one of his mirrors. He saw the object 

come from a motorhome parked on a road next to the freeway. Wilson took the next exit 

and pulled up behind the motorhome. He saw Dragasits throwing big pieces of rocks 

onto the freeway and called police. One of the rocks was the size of a football. 

San Diego Police Officer Eric Obendorfer, who was called to the scene, 

determined based on the size of the rocks that they were inherently likely to cause great 

bodily injury or death. Officer Obendorfer arrested Dragasits on a felony charge of 

throwing a substance at a vehicle that is capable of causing serious bodily harm with 

intent to cause great bodily injury (Veh. Code, § 23110, subd. (b)) and took him to the 

county jail. There, the officer prepared a booking slip and a declaration of charges 

indicating Dragasits was arrested for a felony violation of Vehicle Code section 23110, 

subdivision (b). 

 

3 Some of the background facts are taken from testimony elicited at Dragasits's 

preliminary hearing.
4

On February 27, 2011, a magistrate judge reviewed Officer Obendorfer's 

declaration concerning Dragasits's arrest and determined that there was probable cause to 

believe Dragasits had committed a crime. The officer's declaration in part stated that 

Dragasits was standing next to his motorhome "throwing numerous rocks approximately 

2" by 3" in diameter at moving vehicle [sic] on the freeway" and that he struck a vehicle 

in the Clairemont Mesa Boulevard exit lane causing damage to it. The victim whose 

vehicle was struck exited the freeway and witnessed Dragasits throw three more rocks 

onto the freeway. 

On February 28, 2011, at approximately 6:00 a.m., San Diego County Deputy 

Sheriff Lourdes Kirkpatrick, one of the deputies responsible for swabbing inmates for 

DNA at the San Diego Central Jail, was given a list of inmates flagged for DNA samples, 

including Dragasits. At about the same time that morning, San Diego Police Department 

Detective Michael Brogdon was assigned as a follow-up investigator to Dragasits's arrest. 

After reviewing the case, Detective Brogdon reduced Dragasits's charge from a felony to 

a misdemeanor charge under Vehicle Code section 23110, subdivision (a), by filling out a 

change of charge form. By 7:00 a.m., Detective Brogdon had made a copy of the change 

of charge form, which was later faxed to the district attorney's office, the city attorney's 

office, and the San Diego County Jail, with the original going to the San Diego Police 

Department records division.

At 2:38 p.m., Deputy Kirkpatrick took Dragasits's DNA sample via buccal swab. 
5

The Shootings

On April 5, 2011, near the same area that Dragasits threw objects onto the 

freeway, an individual fired at least eleven rounds of a .22-caliber rifle at passing cars. 

Two of the bullets hit cars, one of which pierced the side of a victim. A third bullet 

struck a building across the freeway. A dash camera picture captured, and some 

witnesses saw, Dragasits's motorhome parked in the area where the gun shots were heard. 

Officers recovered eleven shell casings along the side of the freeway and submitted them 

for analysis. 

Two days later, a California Highway Patrol investigator received a "break" in the 

case: a city attorney advised him she had a rock-throwing case involving Dragasits who 

was known to live in a motorhome in the area. The investigator obtained photographs 

and reports of the rock-throwing incident, and he obtained Dragasits's motorhome's 

license plate, make and model. Investigators returned to the area to look for additional 

evidence and as they were leaving, observed Dragasits's motorhome parked along the 

roadway. The next day, the investigators decided to conduct surveillance and placed a 

GPS tracker on Dragasits's motorhome. The following day, April 9, 2011, investigators 

located and collected another shell casing in the area. 

About a week later, officers were advised that DNA found on the shell casings 

matched Dragasits's DNA. The officers then conducted a search of Dragasits's 

motorhome and found a rifle scope, a receipt for ammunition, additional .22-caliber shell 

casings, and a scale to reload gun powder and make new ammunition. A criminalist 

determined that all but one of the casings (item 28) found inside the motorhome were 
6

fired by the same gun—a semi-automatic rifle—from which the casings found alongside 

the freeway had been fired. Item 28 had been chambered in and extracted from the same 

gun. 

Preliminary Hearing—Dragasits's First Suppression Motion

Before his preliminary hearing, Dragasits moved under section 1538.5, the Fourth 

Amendment, and the California Constitution to suppress incriminating evidence from the 

search of his motorhome including the rifle scope, shell casings and receipt, as well as the 

DNA taken from him in February 2011. In part, he argued it was unreasonable under the 

Fourth Amendment to seize the DNA profile of an arrestee without a warrant or exigent 

circumstances. 

At the suppression motion, Officer Obendorfer described the booking process 

Dragasits underwent when he was arrested and taken to county jail. He testified that he 

arrested Dragasits for a felony and Dragasits was booked under the felony section of 

section 23110. Officer Obendorfer testified he did not learn that Dragasits's charge had 

been reduced to a misdemeanor until just before the preliminary hearing. 

San Diego Deputy Sheriff Angel Sevilla, assigned to inmate classification at the 

San Diego Central Jail, described the procedures for taking a suspect's DNA. He 

explained that when an inmate came into their custody they would run a criminal 

background check, check the inmate's rap sheet for prior felony convictions, and look at 

the booking summary to see the inmate's current arrests to determine whether DNA 

should be taken. He testified that if anything came in as a felony arrest and DNA had not 

been taken, the arrestee would "automatically be flagged for DNA." According to 
7

Deputy Sevilla, once the classification deputy determined an inmate's DNA should be 

taken, the deputy would flag it in the system and the flag would trip another report that is 

generated and sent to the floor deputy, who would print out the report. The report would 

explain why DNA was to be taken and the inmate's charges. The timing of DNA 

collection would vary with each inmate, but it would sometimes be taken immediately if 

a deputy was available. 

Deputy Sevilla testified that the booking staff was responsible for updating the 

booking summary, which contained the inmate's name and social security number, 

booking number, arrest date, charges, case number, and disposition date, and would also 

make clarifications if charges were changed, added or subtracted. He stated that 

notifications occurred four times a day as to changes in charges, convictions or 

dispositions, and the booking summary would keep the most current charges. Deputy 

Sevilla testified that if an inmate's charge was reduced or changed to a misdemeanor, the 

inmate would no longer qualify for DNA collection unless he had other qualifying 

factors. 

Deputy Kirkpatrick testified that a person assigned to taking DNA samples would 

be handed a list from their supervisor, then start calling the different modules and either 

meet with the inmate or have the inmate brought to the second floor where DNA 

collection would be performed. As for her team, her sergeant printed out their list at the 

beginning of their shift and handed it to the assigned deputy at their 6:00 a.m. briefing. 

The deputy would run his or her own list and start working on it. Deputy Kirkpatrick 

acted according to her list printed out from the morning; though she acknowledged it was 
8

not unusual for inmates to have their charges changed while in custody, it was not their 

procedure to conduct a secondary check to ensure the individuals on the DNA collection 

list still had qualifying offenses. She testified that it was very rare that an individual's 

DNA was mistakenly taken. Once the individual's DNA was taken, the deputy notified 

the classification division that the DNA collection was completed and the individual was 

removed from the list. 

After considering counsels' arguments, Superior Court Judge Melinda Lasater 

found that the arresting officer acted reasonably and within the scope of his duties under 

the circumstances in deciding that Dragasits's conduct in the rock throwing incident 

qualified as a felony. The court ruled that the investigating officer's decision to reduce 

the felony to a misdemeanor did not negate the fact that Dragasits was arrested for a 

felony, and that even though the jail had been notified of the change, the officer who took 

Dragasits's DNA sample later that day did not know about the reduction in charge, but 

took the sample based on her paperwork and with "an honest and good faith belief . . . 

that [Dragasits] was on the list." The court ruled the DNA collection was a valid act, a 

minimal invasion of privacy under the totality of the circumstances, and did not justify 

suppressing the evidence. The court made it clear that the result would have been 

different had the collection officer known of the reduction in charge, since a suppression 

motion is intended to penalize law enforcement officers who act outside the scope of their 

duties and do not follow the constitution. 
9

Dragasits's Renewed Suppression Motion

Dragasits renewed his suppression motion before trial under section 1538.5, 

subdivision (i). In addition to arguing that the collection of his DNA as a mere arrestee 

was unreasonable and violated the Fourth Amendment, he argued Deputy Kirkpatrick did 

not act in good faith when she took his buccal swab because she did not check the records 

for updates despite knowing they were updated several times a day to reflect an inmate's 

charges, and the sheriff's department had no procedure to check internal records for the 

continued existence of qualifying offenses. He also argued he was not lawfully arrested 

with a felony in February 2011, because Officer Obendorfer was mistaken about the 

felony offense's elements. He further argued his DNA was illegally submitted to the 

Combined DNA Index System (CODIS). In opposition, the prosecutor argued that 

because Dragasits was arrested for a felony, Deputy Kirkpatrick's good faith did not

matter, but that Judge Lasater nevertheless correctly found she acted in good faith. She 

argued that the same reasons justified the DNA's submission to CODIS, regardless of the 

later reduction in Dragasits's charge to a misdemeanor. 

Superior Court Judge Frederick Maguire denied the motion. He found ample 

evidence supported Judge Lasater's conclusion that Dragasits was lawfully arrested for a 

felony; that there was probable cause for a felony Vehicle Code section 23110 charge. 

He agreed with Judge Lasater that if a person is arrested on a felony, his or her DNA may 

be collected even though the case gets reduced at a later point in time, and the DNA can 

be submitted to the CODIS database. In a lengthy analysis of case law, Judge Maguire 

explained that as to the good faith of law enforcement, the focus was on objective 
10

culpability: whether a reasonably well-trained officer would have known the search was 

illegal. Judge Maguire stated he would have to find there was systematic negligence, or 

reckless, deliberate or egregious conduct in taking Dragasits's DNA to justify application 

of the exclusionary rule, and that the circumstances showed "nothing more than simple 

negligence;" there was no evidence of systematic negligence on the part of the officers in 

this case.4

DISCUSSION

I. The Court Did Not Err by Denying Dragasits's Motion to Suppress Under the Good 

Faith Exception to the Exclusionary Rule

Dragasits contends the trial court improperly denied his motion to suppress the 

DNA evidence linking him to the shell casings as well as the evidence found in his 

motorhome. He advances a series of challenges to collection of his DNA, contending it 

violated the terms of the DNA Act under a proper interpretation of the term "arrested" in 

the statute as well as the Fourth Amendment, because at the time his buccal swab was 

 

4 In part, Judge Maguire said: "My sense is that [Deputy] Kirkpatrick acted in good 

faith. I don't see a systematic deficiency causing a systematic negligence. But I do see it 

as—I don't know if I see it as negligent. They are doing as much as they can. They are 

dealing with lots of people. And, you know, at some point in time, the information has to 

make its way through the system. [¶] I think it is probably legally at least negligence, 

based on the way the court has interpreted the previous cases. But I don't see it as 

systematic negligence. [¶] Secondly, once he is arrested for the felony, they can take 

[his DNA]. And, if they take it, it can go in the CODIS database. That's kind of the way 

I see it. [¶] I don't think [Judge Lasater] had it wrong. I would have to find that she was 

wrong in her application of the law, or her understanding of the law. . . . [¶] . . . You 

can't willfully take a blind eye to something. And they thought he was arrested for a 

felony. He was arrested for a felony. So they could take it. But they thought he was still 

in custody for a felony, when, at the time, the information was several hours old. [¶] But 

I think it qualifies as good faith, and it is nothing more than simple negligence." 
11

taken, he was under arrest for a misdemeanor offense and did not qualify for DNA 

collection. As we shall explain, we do not reach these issues, because assuming without 

deciding that the collection of Dragasits's DNA violated both the DNA Act and the 

Fourth Amendment, we conclude there is no basis for exclusion under the good faith 

exception to the exclusionary rule as applied in Herring v. United States (2009) 555 U.S. 

135, 139 (Herring) and People v. Robinson (2010) 47 Cal.4th 1104, 1119 (Robinson).

A. Standard of Review

" 'The standard of appellate review of a trial court's ruling on a motion to suppress 

is well established. We defer to the trial court's factual findings, express or implied, 

where supported by substantial evidence. In determining whether, on the facts so found, 

the search or seizure was reasonable under the Fourth Amendment, we exercise our 

independent judgment.' " (People v. Maury (2003) 30 Cal.4th 342, 384; see also People 

v. Letner (2010) 50 Cal.4th 99, 145.) This court "consider[s] the correctness of the trial 

court's ruling itself, not the correctness of the trial court's reasons for reaching its 

decision." (Letner, at p. 145.) 

B. The Fourth Amendment and the Good Faith Exception to the Exclusionary Rule

" 'Pursuant to article I, section 28, of the California Constitution, a trial court may 

exclude evidence under Penal Code section 1538.5 only if exclusion is mandated by the 

federal Constitution.' [Citation.] Our Constitution thus prohibits employing an 

exclusionary rule that is more expansive than that articulated by the United States 

Supreme Court." (Robinson, supra, 47 Cal.4th at p. 1119.) 
12

The Fourth Amendment of the U.S. Constitution provides: "The right of the 

people to be secure in their persons, houses, papers, and effects, against unreasonable 

searches and seizures, shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly describing the place to 

be searched, and the persons or things to be seized." (U.S. Const., 4th Amend.) The 

guarantee of the Fourth Amendment has been incorporated into the Fourteenth 

Amendment to the federal Constitution and is applicable to the states. (People v. 

Camacho (2000) 23 Cal.4th 824, 829.) The touchstone of the Fourth Amendment is 

reasonableness. (Riley v. California (2014) ___ U.S.___ [134 S.Ct. 2473, 2482].) A

warrantless search is unreasonable per se unless it falls within one of the "specifically 

established and well-delineated exceptions." (Katz v. United States (1967) 389 U.S. 347, 

357; see also People v. Baker (2008) 164 Cal.App.4th 1152, 1156-1157; People v. 

Chavez (2008) 161 Cal.App.4th 1493, 1499.)

The U.S. Supreme Court points out that the Fourth Amendment " 'contains no 

provision expressly precluding the use of evidence obtained in violation of its 

commands.' " (Herring, supra, 555 U.S. at p. 139.) The court has nevertheless 

established a judicially-created remedy, the exclusionary rule, which is designed to 

safeguard Fourth Amendment rights generally through its deterrent effect. (Id. at p. 140.) 

When applicable, the exclusionary rule forbids the use of improperly obtained evidence 

at trial. (Id. at p. 139.) 

Exclusion, however, is not a necessary consequence of a Fourth Amendment 

violation: "The fact that a Fourth Amendment violation occurred—i.e., that a search or 
13

arrest was unreasonable—does not necessarily mean that the exclusionary rule applies. 

[Citation.] Indeed, exclusion 'has always been our last resort, not our first impulse,'

[citation], and our precedents establish important principles that constrain application of 

the exclusionary rule. [¶] First, the exclusionary rule is not an individual right and 

applies only where it ' "result[s] in appreciable deterrence." ' [Citations.] . . . Instead we 

have focused on the efficacy of the rule in deterring Fourth Amendment violations in the 

future. [Citations.] [¶] In addition, the benefits of deterrence must outweigh the costs. 

[Citation.] 'We have never suggested that the exclusionary rule must apply in every 

circumstance in which it might provide marginal deterrence.' [Citation.] '[T]o the extent 

that application of the exclusionary rule could provide some incremental deterrent, that 

possible benefit must be weighed against [its] substantial social costs.' " (Herring, supra, 

555 U.S. at p. 141.)

In Herring, the court confronted the question of whether evidence should be 

suppressed where police personnel are responsible for an error, and held the "extent to 

which the exclusionary rule is justified by these deterrence principles varies with the 

culpability of the law enforcement conduct." (Herring, supra, 555 U.S. at p. 143.)5 "To 

 

5 Herring involved an officer's arrest and search incident to the arrest of a defendant

who was found with a gun and drugs. (Herring, supra, 555 U.S. at p. 137.) The arresting 

officer had relied on a county warrant clerk's assertion that the defendant had an active 

arrest warrant. (Id. at p. 137.) The clerk based her assertion on another law enforcement 

employee's bookkeeping entry that falsely indicated the defendant had an active arrest 

warrant. (Id. at pp. 137-138, 145 ["this case . . . concern[s] false information provided by 

police"].) In holding that the good faith exception applied, the United States Supreme 

Court emphasized that not all recordkeeping errors were immune from the exclusionary 

rule (id. at p. 146), but it reasoned that "the conduct at issue was not so objectively 
14

trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion 

can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price 

paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter 

deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or 

systemic negligence." (Id. at p. 144.) However, "when police mistakes are the result of 

negligence . . . rather than systemic error or reckless disregard of constitutional 

requirements, any marginal deterrence does not 'pay its way.' [Citation.] In such a case, 

the criminal should not 'go free because the constable has blundered.' " (Id. at pp. 147-

148.) In California, these principles have been applied to erroneous information provided 

to police by parole officers or a California Department of Corrections data entry clerk, 

who are considered adjuncts to the law enforcement team. (People v. Willis (2002) 28 

Cal.4th 22, 38-39; see People v. Ferguson (2003) 109 Cal.App.4th 367, 373-374.)

The good faith exception to the exclusionary rule does not apply if an officer does 

not act reasonably. (People v. Willis, supra, 28 Cal.4th at p. 33.) " '[T]he standard of 

reasonableness . . . is an objective one; [it] does not turn on the subjective good faith of 

individual officers.' " (Ibid.; see also United States v. Leon (1984) 468 U.S. 897, 922-

923.) "Where . . . the prosecution invokes the good faith exception, the government has 

'the burden . . . to prove that exclusion of the evidence is not necessary because of [that] 

 

culpable as to require exclusion." (Ibid.) Exclusion would be justified if police were 

"shown to be reckless in maintaining a warrant system, or to have knowingly made false 

entries to lay the groundwork for future false arrests," but there was no evidence in that 

case that errors in the county's system were "routine or widespread" and neither clerk 

testified they could remember similar miscommunication ever happening on their watch. 

(Id. at pp. 146-147.)
15

exception.' [Citation.] Thus, 'the government has the burden of establishing "objectively 

reasonable" reliance' . . . . [Citation.] Establishing that the source of the error acted 

objectively reasonably is part of that burden." (Willis, 28 Cal.4th at pp. 36-37.)

C. Substantial Evidence Supports Application of the Good Faith Exception 

As stated, the trial court found Dragasits was lawfully arrested for a felony that 

was supported by probable cause, and that the circumstances did not establish the type of 

objectively culpable, grossly negligent or egregious behavior on the part of the law 

enforcement personnel charged with collecting his DNA at the jail where Dragasits was 

housed. Assuming arguendo error occurred here, we hold that substantial evidence 

supports the court's finding that the error was merely negligent, and therefore exclusion 

would not deter the type of law enforcement mistake made in this case in that the benefit 

of suppressing the evidence " 'would be marginal or nonexistent.' " (See Herring, supra, 

555 U.S. at pp. 138-139.) 

Our conclusion is compelled in part by Robinson, supra, 47 Cal.4th 1104. In 

Robinson, the defendant's DNA profile within California's DNA database linked him to 

several felony sexual offenses. (Robinson, supra, 47 Cal.4th at pp. 1112-1113.) There 

was no dispute, however, that his DNA had been erroneously collected by local and state 

agencies in administering the DNA Act. (Id. at pp. 1113, 1116.) The law enforcement

personnel who had taken his blood sample and entered it into the state data bank did so 

mistakenly believing the defendant had been convicted of a qualifying offense under the 
16

DNA Act, when in fact he was not. (Id. at p. 1118.6) As a consequence, the defendant 

argued the federal exclusionary rule was the appropriate remedy to apply to the unlawful 

collection of his genetic material via the police personnel errors. (Id. at p. 1116.) 

The California Supreme Court disagreed. (Robinson, supra, 47 Cal.4th at p. 

1116.) Pointing out the California Constitution prohibited employing an exclusionary 

rule that was more expansive than that articulated by the U.S. Supreme Court (id. at p. 

1119), it concluded that the nonconsensual blood draw, though a state statutory violation 

under the existing provisions DNA Act, did not violate the Fourth Amendment. (Ibid.)7 

 

6 When the blood sample underwent a California Department of Justice

(Department) nonstatutory verification process, a Department employee noticed that 

defendant's conviction for spousal abuse was not a qualifying misdemeanor, but that

employee then mistakenly determined that the defendant had a qualifying prior juvenile 

adjudication for assault with a deadly weapon. (Robinson, supra, 47 Cal.4th at pp. 1118-

1119.) As a result of that mistake, the blood sample was deemed to be qualified for 

inclusion in the state database. (Id. at p. 1119.)

7 The court reasoned that while invasions of the body, including nonconsensual 

blood extraction from an incarcerated felon, was a search entitled to the protection of the 

Fourth Amendment, the ultimate measure of the constitutionally of such a search under 

the Fourth Amendment was reasonableness. (Robinson, supra, 47 Cal.4th at pp. 1119-

1120.) It pointed out that U.S. Supreme Court decisions had explained that an intrusion 

caused by a blood test was commonplace and not significant, and that convicted criminals 

did not enjoy the same expectation of privacy as nonconvicts. (Id. at p. 1120.) It agreed 

with state appellate courts that had upheld the reasonableness of nonconsensual 

extractions of biological samples from adult felons given the diminished expectation of 

privacy, the minimal intrusion, and the fact the Act served compelling state interests 

including the overwhelming public interest in prosecuting crimes accurately. (Id. at p. 

1121.) Robinson held that the fact defendant's blood was collected in violation of 

California law at the time did not change the Fourth Amendment analysis, because for 

that purpose, it was not dispositive that a search and seizure was impermissible under 

state law. (Id. at p. 1122 [" 'whether state law authorized the search [is] irrelevant' "].) 

The relevant question was "whether, under all the circumstances, the nonconsensual 

collection of DNA from a convicted felon is reasonable ' " 'judged by balancing its 
17

The court further held that even assuming the nonconsensual extraction of the defendant's 

blood did violate the Fourth Amendment, the law enforcement personnel errors that led to 

the mistaken collection of that sample would not have triggered the federal exclusionary 

rule. (Ibid.)

On the latter point, the court stated: "[E]ven assuming, without deciding, that the 

state statutory violation that led to the nonconsensual extraction of defendant's blood . . . 

constituted a Fourth Amendment violation, application of the federal exclusionary rule 

would not be appropriate for such a violation." (Robinson, supra, 47 Cal.4th at p. 1124.) 

This was so because the exclusionary rule applies only " 'where its deterrence benefits 

outweigh its "substantial social costs," ' " and thus suppression of evidence " 'has always 

been [the court's] last resort.' " (Id. at p. 1124.) " '[T]o trigger the exclusionary rule, 

police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, 

and sufficiently culpable that such deterrence is worth the price paid by the justice 

system. . . . [T]he exclusionary rule serves to deter deliberate, reckless, or grossly

negligent conduct, or in some circumstances, recurring or systematic negligence.' " (Id. 

at p. 1124, quoting Herring, supra, 555 U.S. at p. 136.)

In Robinson, the parties agreed that the Act's violations were unintentional 

mistakes made during early implementation of the Act, but characterized the acts 

differently, with the defendant contending in part that the mistakes were the result of a 

 

intrusion on the individual's Fourth Amendment interests against its promotion of 

legitimate governmental interests.' " ' " (Robinson, 47 Cal.4th at p. 1123.) Because a 

lawfully convicted and incarcerated felon did not have a Fourth Amendment right to 

prevent state authorities from collecting a blood sample for DNA profiling, the court 

concluded defendant's sample was properly admitted into evidence at his trial. (Ibid.)
18

" 'cascading series of errors' that were 'indicative of a systemic breakdown.' " (Robinson,

supra, 47 Cal.4th at p. 1125.) Focusing on whether the facts demonstrated deliberate, 

reckless or grossly negligent conduct, or recurring or systemic negligence, the court held 

the mistakes did not rise to that level. (Id. at p. 1126.) Substantial evidence supported 

the trial court's finding that the mistakes leading to the unlawful collection were made 

because correctional staff was under pressure to immediately implement a newly enacted 

law that was complex and confusing; that the motivation for the collection of the March

2, 1999 blood sample was a good faith belief, possibly based on a negligent analysis by 

another individual, that the defendant was a qualified offender; and that the Department, 

though it did not act in a " 'perfect manner,' " acted responsibly and conscientiously in 

" 'trying to keep [its] errors to a very low level.' " (Robinson, at p. 1126.) The Robinson 

court agreed that "the law enforcement personnel errors in this case were the result of 

negligence, 'rather than systematic error or reckless disregard of constitutional 

requirements,' that the unlawful collection of genetic material under the Act was not 

'sufficiently deliberate that exclusion can meaningfully deter it,' and that the law 

enforcement personnel were not sufficiently culpable that such deterrence is worth the 

price paid by the justice system." (Id. at p. 1129.) Thus, the challenged errors did not by 

themselves " 'require the "extreme sanction of exclusion." ' " (Ibid., quoting Herring, 

supra, 555 U.S. at p. 140.)

In this case, county jail personnel responsible for taking Dragasits's DNA relied on 

a list generated from booking records reflecting an inmate's charges; in this case, the list 

showed Dragasits was arrested for a felony violation of Vehicle Code section 23110, an 
19

offense for which a probable cause determination had already been made. Changes to the 

booking data were known to occur but, as Deputy Kirkpatrick stated, mistakes in taking 

DNA were rarely made. There is no evidence she or those officers charged with DNA 

collection made a conscious or deliberate effort to avoid checking the database before 

swabbing the inmates on their list, or otherwise acted recklessly in conducting their 

duties. " 'Gross negligence' long has been defined . . . as either a 'want of even scant care'

or 'an extreme departure from the ordinary standard of conduct.' " (City of Santa Barbara 

v. Superior Court (2007) 41 Cal.4th 747, 754.) The jail personnel may well have been 

negligent in failing to check the booking summary updates through the course of the day. 

But this is not enough. (Herring, supra, 555 U.S. at p. 140 [negligent error "is not 

enough by itself to require 'the extreme sanction of exclusion' "].)

Nor is there evidence that DNA collection errors at the jail were "widespread," or 

symptomatic of a system that routinely led to such errors. (See Herring, supra, 555 U.S. 

at pp. 146-147.) In Herring, the court indicated that grave concern might arise " '[i]f a 

widespread pattern of violations were shown.' " (Ibid., quoting Hudson v. Michigan 

(2006) 547 U.S. 586, 604.) Accordingly, nothing permits an inference that jail 

personnel's reliance on the early-morning booking reports was objectively unreasonable 

or that officers who relied on those reports were reckless because the system was prone to 

error. Rather, the evidence permits a reasonable inference Deputy Kirkpatrick and the 

other personnel did not act in reckless disregard of constitutional requirements, and they 

relied in good faith on the information they had received from their supervisor. Because 

Dragasits did not show the type of systemic error that would raise grave concern, or 
20

sufficiently culpable or egregious misconduct such that exclusion would meaningfully 

deter it, the exclusionary rule does not apply. The trial court did not err in denying 

Dragasits's motion to suppress the evidence.

II. Claim of Failure to Preserve Evidence

During the investigation, investigators had the eleven shell casings found along the 

freeway swabbed for contact DNA; one swab was used for one group of five casings, and 

another swab was used for a second group of six casings. Only one of the swabs had 

human DNA on it to generate a profile. Because the swab was entirely consumed during 

the DNA testing process, Dragasits moved to dismiss his charges on grounds the 

destruction of the evidence denied him due process. The court denied the motion, ruling 

Dragasits had not shown the consumed DNA had known exculpatory value, and he did 

not show bad faith on the part of police in having all of the DNA consumed as part of 

their investigation. 

Dragasits contends he was denied due process when investigators authorized DNA 

analysts to consume all of the DNA swabbed from the shell casings for testing, leaving 

no DNA remaining when his defense counsel requested retesting of the samples. 

Dragasits concedes that no due process violation occurs when evidence in the 

prosecution's possession is destroyed because the prosecution finds it necessary to 

consume the evidence in order to test it. (See People v. Griffin (1988) 46 Cal.3d 1011, 

1021 (Griffin) ["The prosecution must be allowed to investigate and prosecute crime, and 

due process does not require that it forego investigation in order to avoid destroying 

potentially exculpatory evidence"]; Arizona v. Youngblood (1988) 488 U.S. 51, 57.) He 
21

argues that the circumstances of his case falls outside these principles, because when the 

district attorney investigator gave permission to consume the entire sample, the evidence 

"was as likely to be exculpatory as inculpatory" and, unlike in Griffin, the government 

did not assert or show that destruction of the entire sample was necessary in order to 

process it. 

Under California v. Trombetta (1984) 467 U.S. 479, " '[l]aw enforcement agencies 

have a duty, under the due process clause of the Fourteenth Amendment, to preserve 

evidence "that might be expected to play a significant role in the suspect's defense." ' " 

(People v. Carter (2005) 36 Cal.4th 1215, 1246, quoting Trombetta, at p. 488.) 

California has adopted this standard. (See ibid.; People v. Beeler (1995) 9 Cal.4th 953, 

976, abrogated on another ground in People v. Pearson (2013) 56 Cal.4th 393, 462.) 

" 'To fall within the scope of this duty, the evidence "must both possess an exculpatory 

value that was apparent before the evidence was destroyed, and be of such a nature that 

the defendant would be unable to obtain comparable evidence by other reasonably 

available means." [Citations.] The state's responsibility is further limited when the 

defendant's challenge is to "the failure of the State to preserve evidentiary material of 

which no more can be said than that it could have been subjected to tests, the results of 

which might have exonerated the defendant." [Citation.] In such case, "unless a criminal 

defendant can show bad faith on the part of the police, failure to preserve potentially 

useful evidence does not constitute a denial of due process of law." ' " (Carter, at p. 

1246.)
22

A finding as to "whether evidence was destroyed in good faith or bad faith is 

essentially factual: therefore, the proper standard of review is substantial evidence."

(People v. Memro (1995) 11 Cal.4th 786, 831.) Thus, on our review, " 'we must 

determine whether, viewing the evidence in the light most favorable to the superior 

court's finding, there was substantial evidence to support its ruling.' " (People v. Carter, 

supra, 36 Cal.4th at p. 1246; see People v. Beeler, supra, 9 Cal.4th at p. 976.)

Apparently conceding he cannot show the exculpatory value of his DNA was 

apparent to law enforcement before it was entirely consumed, Dragasits urges us to treat 

DNA evidence differently from other kinds of physical evidence under the above 

principles. He argues that the value of an unanalyzed DNA sample is never known, and 

can never be apparent before its analysis, and thus to preserve his constitutional rights we 

should presume its exculpatory value. We decline to extend Trombetta's principles of 

constitutional materiality as Dragasits proposes, when the high court made clear that 

"[w]hatever duty the Constitution imposes on the States to preserve evidence, that duty 

must be limited to evidence that might be expected to play a significant role in the 

suspect's defense." (California v. Trombetta, supra, 467 U.S. at p. 488, italics added; 

People v. Cook (2007) 40 Cal.4th 1334, 1349 [defendant must show evidence actually 

contained possibly exculpatory evidence]; People v. Houston (2005) 130 Cal.App.4th 

279, 302 [applying these principles in a case involving DNA analysis on a bullet].) 

" 'Due process does not impose upon law enforcement "an undifferentiated and absolute 

duty to retain and to preserve all material that might be of conceivable evidentiary 

significance in a particular prosecution." ' " (People v. Duff (2014) 58 Cal.4th 527, 549.) 
23

The mere possibility that an item might help the defense does not establish "materiality"

in the constitutional sense. (People v. Fauber (1992) 2 Cal.4th 792, 829.)

Here, Dragasits points to no evidence that at the time the investigator authorized 

the forensic DNA analyst to consume all of the DNA on the swabs, or at the time the 

analyst tested the shell casings, either could have known whether or to what extent the 

DNA on the swabs matched Dragasits's DNA.8 In other words, there is no evidence

indicating that the officer or analyst had any more knowledge than that the DNA 

material, if any, on the shell casings was potentially exculpatory—that it was "evidentiary 

material of which no more can be said than that it could have been subjected to tests, the 

results of which might have exonerated the defendant." (Arizona v. Youngblood, supra, 

488 U.S. at p. 57, italics added; see also People v. Duff, supra, 58 Cal.4th at p. 549.) It is 

not enough, as Dragasits argues, that the investigation by that time had focused on 

Dragasits, investigators having learned of his earlier February 2011 rock-throwing 

incident. Thus, in this case "[t]he presence or absence of bad faith by the police for 

purposes of the Due Process Clause . . . necessarily turn[s] on the police's knowledge of 

the exculpatory value of the evidence at the time it was lost or destroyed." (Youngblood,

at pp. 56-57; People v. Beeler, supra, 9 Cal.4th at p. 1000.) A due process violation only 

occurs under these circumstances when the state actor is aware that the evidence could 

 

8 Indeed the evidence was that the forensic DNA analyst had never to her 

knowledge tested anything containing Dragasits's DNA, that she was unaware that the 

sheriff's crime lab had ever conducted such tests to develop a DNA profile of Dragasits, 

and she was not aware that Dragasits was a suspect in the case when she conducted her 

analysis. 
24

form a basis for exonerating the defendant and fails to preserve it as part of a conscious 

effort to circumvent its constitutional discovery obligation. (California v. Trombetta, 

supra, 467 U.S. at p. 488; Beeler, at p. 1000; People v. Zapien (1993) 4 Cal.4th 929,

964.) Negligent failure to preserve potentially exculpatory evidence, without evidence of 

bad faith, will not give rise to a due process violation. (Youngblood, at p. 58.) 

Dragasits further suggests that in order to avoid a due process violation, the People 

should have presented evidence showing it was actually necessary to consume the entire 

DNA sample to run the tests; he maintains the forensic DNA analyst's testimony did not 

rise to this level but rather expressed a "rationale of convenience" instead of necessity. 

He states the analyst's "belief it might be better to consume the whole sample falls short 

of necessity," and "unless the government is required to show actual necessity, there is no 

practical limit to police discretion to authorize destruction of all but the largest DNA 

samples." The question in these circumstances, however, under California v. Trombetta, 

supra, 467 U.S. 479 and Griffin, supra, 46 Cal.3d 1101, is whether the analyst's decision 

to consume the entire DNA sample in her testing was in any way done in bad faith, as 

opposed to "in furtherance of the state's legitimate interests in examining the [casings] in 

the course of the police investigation." (People v. Houston, supra, 130 Cal.App.4th at p. 

303.) In Houston, a forensic biologist conducted an examination that digested all of the 

DNA from a bullet for DNA testing after consulting with a firearms expert. (Id. at pp. 

302-303.) The appellate court rejected the appellant's contention that the biologist "acted 

improperly because she 'made no attempt to find an alternative to total consumption of 

the sample other than consulting with a firearms expert, who presumably was not well 
25

versed in DNA testing and solutions to her problem' " and that the appellant " 'was 

foreclosed from determining the reliability of the extraction process itself' "

notwithstanding the availability of some extracted DNA for testing. (Id. at p. 303.) The 

Court of Appeal, citing Griffin, supra, 46 Cal.3d at p. 1022, held the biologist's "lack of 

action by itself . . . does not indicate bad faith, which is an essential element to appellant's 

claim." (Ibid.) Absent evidence that the biologist "deliberately avoided finding ways to 

partially consume the biological material, or that any method in fact exists that would 

have allowed her to partially consume the biological material on the bullet," there was no 

bad faith. (Houston, at p. 303.)

Here, when cross-examined as to why she asked for permission to consume the 

entire swab, the DNA analyst stated, "Typically we will ask for permission when we are 

consuming, because then there will [be] no additional for defense testing. But the main 

reason why I asked permission to consume is the more—if you have touch DNA or little 

amounts of DNA, the more you analyze, the more likely you will be able to generate a 

DNA profile off of that item." On redirect, she explained further that "if I take the whole 

swab, I'm more likely to get a profile that has been on that swab versus taking half, 

risking the DNA was not on that half, it was on the other half, or there was a little on one 

half or a little on the other half and the sample falls below our detection limits or other 

lower limit." She further testified that if it was possible to obtain a DNA profile and not 

consume an entire sample, it was her practice not to do so: "[Prosecutor:] If you believe 

it possible to still obtain a DNA profile and not consume an entire sample, is that your 

practice? [¶] [Analyst:] Yes, it is. So if I had a huge blood stain right here on this piece 
26

of paper, I know that blood is going to generate an automatic profile, so I'm not going to 

take the whole stain, that would give me way too much. So I would just take a small 

cutting, because I don't need to consume the entire item or the entire stain." 

Contrary to Dragasits's contention, the analyst's testimony demonstrates that given 

the small amounts of DNA she expected on the casings and her usual practices, it was 

indeed necessary for her to consume all of the DNA. And, there is no showing she 

deliberately avoided finding some way to only partially consume the material or failed to 

use another method that would have preserved some of it. Under the circumstances, 

Dragasits has not shown any law enforcement personnel made a "conscious effort to 

suppress exculpatory evidence" (California v. Trombetta, supra, 467 U.S. at p. 488; 

People v. Zapien, supra, 4 Cal.4th at p. 965) or took other acts in bad faith. There was no 

due process violation.

III. Claim of Instructional Error

Dragasits contends that if the People's consumption of all of the DNA sample is 

not a constitutional violation, the court nevertheless prejudicially erred by refusing his 

proposed pinpoint instruction stating: "The prosecution has introduced evidence of the 

results of scientific testing of a _____ <e.g., blood> sample in this case. That ___ sample 

was entirely consumed by that scientific testing. There was nothing improper about the 

fact that the sample was entirely consumed in this testing, but this fact does mean that the 

defendant did not have the opportunity to have separate and independent testing of a 

portion of the sample accomplished in order to determine whether such independent 

testing would yield the same result or a different result. You are entitled to consider this 
27

lack of opportunity for independent testing by the defendant in deciding how much 

weight, if any, to give to the evidence introduced by the prosecution." 

Our high court has held that in the absence of bad faith on the part of law 

enforcement in failing to preserve evidence, a trial court need not instruct the jury 

regarding inferences that may be drawn in a defendant's favor or against the prosecution. 

(People v. Cook, supra, 40 Cal.4th at p. 1351; People v. Farnam (2002) 28 Cal.4th 107, 

166-167.) Because we have concluded substantial evidence supports the trial court's 

finding as to the absence of bad faith conduct by law enforcement, the court did not err in 

refusing Dragasits's proposed instruction.

IV. Correction of Abstract of Judgment

Dragasits contends that the abstract of judgment does not accurately reflect the 

number of presentence custody credits awarded by the sentencing court; he points out the 

court awarded 815 days of actual credit for time served with an additional 122 days of 

conduct credits, for a total of 937 days of credit. The People concede the error, and agree 

the abstract of judgment should be modified to correct the error. We agree the abstract of 

judgment, which erroneously reflects 815 days of "total credits," and 122 days of "actual"

time served, does not reflect the court's oral pronouncement. We order the abstract of 

judgment be corrected accordingly.
28

DISPOSITION

The judgment is modified to award Stephen Joseph Dragasits 815 days of actual 

credit and 122 days of conduct credits for a total of 937 days presentence custody credit. 

The superior court is directed to modify the abstract of judgment accordingly and forward 

a certified copy of the amended abstract to the Department of Corrections and 

Rehabilitation. In all other respects the judgment is affirmed. 

O'ROURKE, J.

WE CONCUR:

McCONNELL, P. J.

AARON, J.