Hamilton v. Brown

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

GEORGE HAMILTON, 
Plaintiff-Appellant, No. 09-15236
v.
 DC No.
CV 04-5929 NVW
EDMUND G. BROWN JR.,* Attorney
General, et al., OPINION
Defendants-Appellees.

Appeal from the United States District Court
for the Eastern District of California
Neil V. Wake, District Judge, Presiding

Submitted December 10, 2010**
San Francisco, California

Filed January 4, 2011

Before: Robert E. Cowen,*** A. Wallace Tashima, and
Barry G. Silverman, Circuit Judges.

Opinion by Judge Tashima.

*Edmund G. Brown Jr. is substituted for his predecessor as Attorney
General of California pursuant to Fed. R. App. P. 43(c)(2).
**The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2)(C).
***The Honorable Robert E. Cowen, Senior United States Circuit
Judge for the Third Circuit, sitting by designation.

273
276 HAMILTON v. BROWN

COUNSEL

George Hamilton, Kern Valley State Prison, Delano, Califor-
nia, plaintiff-appellant, appearing pro se.

No appearance for the defendants-appellees.

OPINION

TASHIMA, Circuit Judge:

We must decide whether California state prison inmates
constitutionally may be required to provide blood samples for
DNA identification under California’s DNA and Forensic
Identification Database and Data Bank Act of 1998, as
amended, Cal. Pen. Code § 295 et seq. (the “Act” or the “Cal-
ifornia DNA Act”). Pro se plaintiff George Hamilton, a Cali-
fornia state prison inmate, alleges that prison officials forcibly
extracted a blood sample for DNA identification without his
consent. He contends that this violated his rights under the
Fourth, Eighth, and Fourteenth Amendments to the United
States Constitution and under California state law. The district
court dismissed Hamilton’s second amended complaint
(“SAC”) with prejudice.1 This appeal followed. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.
1
Because the district court dismissed this action at the screening stage
under the Prison Litigation Reform Act (“PLRA”), 28 U.S.C. § 1915A(a),
defendants did not enter an appearance either in the district court or here
on appeal.
 HAMILTON v. BROWN 277
H3>I

BACKGROUND

A. Hamilton’s allegations2

Hamilton is serving a sentence of thirty-nine years to life
in state prison. He alleges that, on October 7, 2003, Corcoran
State Prison guards attempted to break his arm in retaliation
for his trouble-making, which included filing complaints
against prison officials, accusing them of corruption, and
helping a legally-blind fellow inmate to file a lawsuit against
prison officials. The day after that incident, the same prison
guards escorted Hamilton to the prison medical clinic and
demanded that Hamilton provide a blood sample for DNA
analysis. Hamilton refused on the grounds that he did not
receive a written notice or proof of a valid court order. Hamil-
ton alleges that defendants’ true motive in collecting a blood
sample was to “set him up” in retaliation for his complaints.

After Hamilton’s refusal, he received a notice stating that
blood sample collection is authorized by Cal. Penal Code
§ 296. The notice also stated: “ON 10/8/03 YOU WERE
INFORMED OF YOUR REQUIREMENT TO SUBMIT
AND YOU REFUSED. AS A RESULT, YOU ARE NOW
SUBJECT TO USE OF FORCE.” In response, Hamilton
wrote to various state and federal officials to inform them that
he was “the victim of malicious and excessive force,” and that
prison officials were trying to force him to turn over a blood
sample without proper written notice or a “bona fide court
order.”

On November 17, 2003, Hamilton received a medical pass,
allowing him to visit the prison hospital the next day for what
2
These facts are taken from the allegations in Hamilton’s SAC, which
we accept as true for purposes of this appeal. Resnick v. Warden Hayes,
213 F.3d 443, 447 (9th Cir. 2000).
278 HAMILTON v. BROWN
he thought was a podiatry appointment. The next day, defen-
dant M. Jost came to Hamilton’s cell, handcuffed him and
escorted him to the medical clinic. When Hamilton arrived,
defendants Sgt. E. Lawton, M. Chapman, a medical assistant,
and a nurse demanded that he provide a blood sample. When
he refused, the defendants exerted force. They strapped Ham-
ilton, still handcuffed, into a chair and extracted a blood sam-
ple. On the prison’s record of Hamilton’s visit to the medical
clinic, Hamilton wrote, “My DNA was taken against my will,
under deception, fraud, force and fear, while I was hand-
cuffed.”

B. Procedural History

In his complaint, Hamilton named the state Attorney Gen-
eral, a State Senator, and Does 1-100, identified as personnel
of the state’s Forensic Identification Data Base and Data
Bank, as defendants. Reviewing Hamilton’s complaint pursu-
ant to the PLRA, 28 U.S.C. § 1915A,3 the magistrate judge
dismissed the complaint for failure to state a claim, with leave
to amend. The court explained that Hamilton “must link each
named defendant with some affirmative act or omission that
demonstrates a violation of plaintiff’s federal rights.” In addi-
tion, the court explained that Hamilton could not pursue a
claim for damages against the Attorney General in his official
capacity.

Hamilton then filed an amended complaint, which the mag-
istrate judge again dismissed with leave to amend. The court
explained that Hamilton again failed to link his claims to any
named defendant or any Doe defendant. The order reiterated
3
The PLRA requires a court to review, before docketing or as soon
thereafter as practicable, any civil action brought by a prisoner seeking
redress from a governmental entity, officer or employee. 28 U.S.C.
§ 1915A(a). At the screening stage, the court must dismiss the complaint
or any portion thereof that is “frivolous, malicious, or fails to state a claim
upon which relief may be granted,” or “seeks monetary relief from a
defendant who is immune from such relief.” Id. § 1915A(b).
 HAMILTON v. BROWN 279
that the Attorney General could not be sued for damages in
his official capacity. Hamilton was instructed that he was
required to

demonstrate in the Second Amended Complaint how
the conditions complained of resulted in a depriva-
tion of his constitutional rights. [Citation omitted.]
The Second Amended Complaint must specifically
state how each Defendant is involved. Further, there
can be no liability under 42 U.S.C. § 1983 unless
there is some affirmative link or connection between
a defendant’s actions and the claimed deprivation.

Hamilton’s SAC adds as defendants prison officials and
employees allegedly involved in the collection of the blood
sample, including the prison warden, two prison guards, and
prison medical clinic personnel. On January 6, 2009, the dis-
trict judge dismissed the SAC with prejudice. He concluded
that it was “not organized into a short and plain statement of
the claim,” in violation of Fed. R. Civ. P. 8(a). In addition, the
district court stated that Hamilton failed to “allege that [he]
suffered a specific injury as a result of specific conduct of a
defendant and show an affirmative link between the injury
and the conduct of the defendant.”

Hamilton timely appealed.

II

STANDARD OF REVIEW

We review de novo a district court’s dismissal of a prisoner
complaint under 28 U.S.C. § 1915A for failure to state a claim
upon which relief can be granted. Resnick, 213 F.3d at 447.
“Under § 1915A, when determining whether a complaint
states a claim, a court must accept as true all allegations of
material fact and must construe those facts in the light most
favorable to the plaintiff.” Id. “Additionally, in general, courts
280 HAMILTON v. BROWN
must construe pro se pleadings liberally.” Id. (citing Balistreri
v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).
We may affirm the district court on any ground supported by
the record. O’Guinn v. Lovelock Corr. Ctr., 502 F.3d 1056,
1059 (9th Cir. 2007).

III

DISCUSSION

A. Overview of the California DNA Act

[1] The California DNA Act, Cal Pen. Code §§ 295-300.3,
was adopted in 1998

to assist federal, state, and local criminal justice and
law enforcement agencies . . . in the expeditious and
accurate detection and prosecution of individuals
responsible for sex offenses and other crimes, the
exclusion of suspects who are being investigated for
these crimes, and the identification of missing and
unidentified persons, particularly abducted children.

Cal. Pen. Code § 295(c). California contributes information in
its DNA database to a national DNA index maintained by the
Federal Bureau of Investigation. The FBI uses a computer
program to identify forensic unknowns (e.g. crime scene sam-
ples) with reference to a felony offender’s known sample that
was previously obtained, analyzed, and stored in accordance
with state or federal law. United States v. Kincade, 379 F.3d
813, 818-820 (9th Cir. 2004) (en banc) (plurality opinion);
Cal. Pen. Code § 295(c), (g), (h)(4).

[2] As is relevant here, the Act requires California prison
inmates4 to “provide buccal swab samples and thumb and
4
The Act applies to “qualifying persons.” Qualifying persons include
“any person, including any juvenile, who is convicted of or pleads guilty
 HAMILTON v. BROWN 281
palm print impressions and any blood or other specimens
required pursuant to this chapter.” Id. § 296.1(a)(2)(A). The
submission of samples is “mandatory and appl[ies] whether or
not the court advises a person . . . that he or she must provide
the data bank and database specimens, samples, and print
impressions.” Id. § 296(d); People v. Travis, 44 Cal. Rptr. 3d
177, 183 (Ct. App. 2006) (“The provisions of the act are man-
datory and automatic upon conviction of a felony.”). A pris-
oner who refuses to provide a sample after receiving a written
or oral request is subject to the use of reasonable force. Spe-
cifically, the Act provides that

authorized law enforcement, custodial or corrections
personnel, including peace officers . . . , may employ
reasonable force to collect blood specimens, saliva
samples, or thumb or palm print impressions pursu-
ant to this chapter from individuals who, after writ-
ten or oral request, refuse to provide those
specimens, samples, or thumb or palm print impres-
sions.

Cal. Pen. Code § 298.1(b)(1). Prison officials must make “ef-
forts to secure voluntary compliance” before applying reason-
able force. 15 Cal. Code Regs. § 3025(k).5

or no contest to any felony offense.” Cal. Pen. Code § 296(a)(1). Since
2009, the term “qualifying persons” also includes any adult “arrested for
or charged with” any felony offense. Id. § 296(a)(2)(A)-(C). A challenge
to the expansion of the Act to those merely arrested on felony charges is
pending on appeal. Haskell v. Brown, No. 10-15152 (argued and submitted
July 13, 2010) (appeal of denial of preliminary injunction, see 677 F.
Supp. 2d 1187 (N.D. Cal. 2009)). We are concerned in this appeal only
with application of the Act to convicted felons.
5
Reasonable force is defined in Department of Corrections regulations
as “[t]he force that an objective, trained and competent correctional
employee, faced with similar facts and circumstances, would consider nec-
essary and reasonable to subdue an attacker, overcome resistance, effect
custody, or gain compliance with a lawful order.” 15 Cal. Code Regs.
§§ 3268(a)(1), 3025(j).
282 HAMILTON v. BROWN
B. The Fourth Amendment Does Not Preclude the Col-
lection of Blood Samples from Prison Inmates for
DNA Identification

[3] Hamilton alleges that the warrantless, suspicionless
taking of his blood sample was an illegal seizure in violation
of the Fourth Amendment, which protects “[t]he right of the
people to be secure in their persons, . . . against unreasonable
searches and seizures.” U.S. Const. amend. IV. This claim
fails as a matter of law. “The compulsory extraction of blood
for DNA profiling unquestionably implicates the right to per-
sonal security embodied in the Fourth Amendment, and thus
constitutes a ‘search’ within the meaning of the Constitution.”
Kincade, 379 F.3d at 821 n.15. We have repeatedly held,
however, that such compulsory blood extractions from con-
victed felons on supervised release do not violate the Fourth
Amendment.6 Id. at 836 (citations omitted); United States v.
Kriesel, 508 F.3d 941, 946 (9th Cir. 2007) (concluding that
the federal DNA Act, as amended in 2004 to expand the qual-
ifying offenses to all felonies, did not violate the Fourth
Amendment); United States v. Hugs, 384 F.3d 762, 769 (9th
Cir. 2004) (“A condition of supervised release requiring a
qualified felon to provide a DNA sample pursuant to the pro-
cedures set forth in the DNA Act, 42 U.S.C. § 14135a, does
not violate the Fourth Amendment.” (citing Kincade)).7 Simi-
6
We recently held that required submission of a DNA sample is an
allowable condition of pre-trial release under the Bail Reform Act, 18
U.S.C. § 3142. United States v. Pool, 621 F.3d 1213 (9th Cir. 2010); but
see Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009) (holding unconsti-
tutional the warrantless, suspicionless forcible taking of a DNA sample
from pre-trial detainee). A petition for rehearing en banc is pending in
Pool.
7
The federal DNA Analysis Backlog Elimination Act, Pub. L. No. 106-
546, 114 Stat. 2726 (2000), as amended by the Justice for All Act, Pub.
L. No. 108-405, § 203(b), 118 Stat. 2260, 2270 (2004), requires the collec-
tion of DNA samples from individuals arrested for, facing charges, or con-
victed of “qualifying federal offenses,” which include any felony, any
crime of violence, any crime of sexual abuse, or conspiracy to commit any
such crime. 42 U.S.C. § 14135a(a), (d); 28 C.F.R. § 28.2 (providing a
complete list of qualifying offenses). The federal DNA Act applies to indi-
viduals in custody or on probation, parole or supervised release. 42 U.S.C.
§ 14135(a)(1), (2).
 HAMILTON v. BROWN 283
lar state laws have been upheld, in this and other circuits, with
respect to state prison inmates. E.g., Rise v. Oregon, 59 F.3d
1556 (9th Cir. 1995) (upholding Chapter 669, Oregon Laws
1991 against prison inmate’s Fourth Amendment challenge);
Roe v. Marcotte, 193 F.3d 72, 74 (2d Cir. 1999) (upholding
a Connecticut law requiring convicted sexual offenders to
submit blood samples to a DNA bank); Vanderlinden v. Kan-
sas, 874 F. Supp. 1210 (D. Kan. 1995) (upholding Kansas law
requiring convicted felons to submit blood samples for DNA
identification), aff’d sub nom. Schlicher v. Peters, 103 F.3d
940, 941 (10th Cir. 1996); Jones v. Murray, 962 F.2d 302 (4th
Cir. 1992) (upholding Virginia law requiring convicted felons
to submit blood specimens for DNA identification). The Cali-
fornia DNA Act is substantially similar to the federal and
state law this circuit previously has upheld against Fourth
Amendment challenges; it passes constitutional muster for the
same reasons.

[4] Kincade addressed the application of the federal DNA
Act to convicted felons on supervised release. 379 F.3d at
816. The Kincade plurality considered whether the search
(i.e., the taking of a blood sample) was reasonable by weigh-
ing the degree of intrusion on individual privacy against the
degree to which the search was necessary to promote legiti-
mate government interests.8 Id. at 831-32, 836. First, the Kin-
cade court considered the reasonable expectation of privacy
of those on supervised release. Id. at 836. After noting that
blood draws are a routine fact of modern life, the court elabo-
rated that
8
Kincade was a plurality opinion. Five judges voted to uphold the fed-
eral DNA Act against the Fourth Amendment challenge using a totality of
the circumstances analysis. 379 F.3d at 832. One judge voted to uphold
the federal DNA Act applying the special needs analysis. Id. at 840
(Gould, J., concurring). Five judges on the en banc panel would have
found a Fourth Amendment violation. Id. at 842 (Reinhardt, J., dissenting)
(joined by three judges); id. at 871 (Kozinski, J., dissenting); id. at 875
(Hawkins, J., dissenting).
284 HAMILTON v. BROWN
[f]or parolees and supervised releasees especially—
individuals who while in custody have been lawfully
subject to much more severe intrusions of their cor-
poreal privacy than a sterile blood draw conducted
by a trained medical professional, and who therefore
leave prison with substantially reduced sensitivities
to such exposure—the DNA Act’s compelled breach
of their bodily integrity is all the less offensive.

Id. at 837. It follows that the physical intrusion occasioned by
a blood draw is no more, or perhaps even less, invasive for
those who are currently incarcerated, like Hamilton, and
therefore have even less of an expectation of privacy. Fried-
man, 580 F.3d at 862 (explaining that “Fourth Amendment
rights for inmates . . . fall on the lowest end of the expectation
of privacy spectrum”) (Callahan, J., dissenting).

According to the Kincade plurality, the privacy intrusion of
the DNA identification itself is similarly small. 379 F.3d at
837. The plurality explained that “the DNA profile derived
from the defendant’s blood sample establishes only a record
of the defendant’s identity—otherwise personal information
in which the qualified offender can claim no right of privacy
once lawfully convicted of a qualifying offense (indeed, once
lawfully arrested and booked into state custody.” Id. In fact,
“once a person is convicted of one of the felonies included as
predicate offenses under [the DNA Act], his identity has
become a matter of state interest and he has lost any legiti-
mate expectation of privacy in the identifying information
derived from blood sampling.” Id. (quoting Rise, 59 F.3d at
1560). The en banc plurality therefore concluded that the
intrusion into privacy was minimal.

[5] Here, DNA testing under the California DNA Act, like
the federal law, is limited to the collection of identifying
information. Cal. Pen. Code § 299.5 (limiting use of samples
to criminal identification, exclusion of suspects, and identifi-
cation of missing persons and imposing penalties for misuse).
 HAMILTON v. BROWN 285
Having been convicted and incarcerated, Hamilton has no
legitimate expectation of privacy in the identifying informa-
tion derived from his DNA. Accordingly, the DNA identifica-
tion at issue here is no more intrusive than that considered by
the court in Kincade.

[6] Finally, the Kincade plurality measured the govern-
ment’s interest in obtaining DNA identification from those on
supervised release and concluded that it is “monumental.” Id.
at 839. The compelling interests included: (1) ensuring com-
pliance with the conditions of supervised release (by making
it more likely that violations will be detected); (2) deterrence
(by alerting the supervised releasee that the government will
be able to identify him if he re-offends); and (3) “contributing
to the solution of past crimes” to “help[ ] bring closure to
countless victims of crime who have languished in the knowl-
edge that perpetrators remain at large.” Id. at 838-39. The plu-
rality concluded that compulsory DNA profiling of qualified
offenders under the federal DNA Act was reasonable. Id. at
839.

[7] Here, the Kincade interests in ensuring compliance
with conditions of release and deterrence are less immediate,
as Hamilton alleges that he is not eligible for parole until at
least 2028. However, the Rise court, considering the Oregon
law compelling DNA samples from prisoners convicted of
serious felonies including murder and sexual offenses, con-
cluded that the interest in preventing recidivism and identify-
ing and prosecuting offenders was a sufficiently compelling
government interest to outweigh the minimal privacy intru-
sion. 59 F.3d at 1562. Although the California DNA Act
applies to a broader range of felons, the state’s interest in
adding convicted felons to its DNA data bank is at least as
immediate as in Rise. See People v. Robinson, 224 P.3d 55,
66 (Cal. 2010) (citing “the overwhelming public interest in
prosecuting crimes accurately“ as a “compelling government
interest” justifying the “minimal” intrusion of non-consensual
collection of blood samples from felons (citations omitted)).
286 HAMILTON v. BROWN
In light of the applicable precedent and the persuasive reason-
ing of the Kincade plurality, we conclude that Hamilton fails
to state a claim under the Fourth Amendment for which relief
may be granted.9

C. The Remaining Constitutional Challenges Are
Without Merit

In addition to his Fourth Amendment claim, Hamilton
alleges an array of other federal and state constitutional chal-
lenges against the California DNA Act. We review them
briefly below. All of them are meritless.

1. Due Process Claim

[8] The Ninth Circuit explicitly has rejected the argument
that prison officials are required to provide a hearing before
requiring an inmate to provide a blood sample for DNA anal-
ysis. Rise, 59 F.3d at 1562. In Rise, the court explained:

The extraction of blood from an individual in a sim-
ple, medically acceptable manner, despite the indi-
vidual’s lack of an opportunity to object to the
procedure, does not implicate the Due Process
Clause. Schmerber v. California, 384 U.S. 757, 759-
60 (1966) (upholding withdrawal of blood despite
defendant’s refusal to consent); Breithaupt v. Abram,
352 U.S. 432, 435 (1957) (upholding blood extrac-
tion from unconscious person). Because the only cri-
terion under Chapter 669 for extracting blood is a
9
We note that some of Hamilton’s allegations could be read to suggest
that his blood sample was not taken in accordance with state law, but
rather in retaliation for Hamilton’s conduct as a prison gadfly. However,
despite having been given three opportunities, Hamilton has failed to con-
nect the collection of his blood sample to the malign intent of any named
defendant. We hold only that the neutral application of the Act to prison
inmates does not violate the Fourth Amendment.
 HAMILTON v. BROWN 287
conviction for a predicate offense, there would be lit-
tle of substance to contest at any provided hearing.

Id. at 1562-63. The same is undoubtedly true here. Under the
California DNA Act, all “qualifying persons,” without excep-
tion, must submit the required specimens and samples. This
includes “any person . . . who is convicted of or pleads guilty
or no contest to any felony offense.” Cal. Pen. Code
§ 296(a)(1). California courts have explained that “the [Act’s]
requirements that specified persons give DNA samples are . . .
‘self-executing’ in that they are mandatory and arise with or
without a trial court advisement or order to that effect.” Peo-
ple v. Dial, 30 Cal. Rptr. 3d 252, 254 (Ct. App. 2005).
Accordingly, we conclude that Hamilton’s claims for relief
based on an alleged due process violation were properly dis-
missed. See also Graham v. Connor, 490 U.S. 386, 395
(1989) (“Because the Fourth Amendment provides an explicit
textual source of constitutional protection against . . . physi-
cally intrusive governmental conduct, that Amendment, not
the more generalized notion of ‘substantive due process,’
must be the guide for analyzing these claims.”)

2. Eighth Amendment Claim

[9] Hamilton alleges that by forcibly taking his blood sam-
ple, defendants demonstrated “reckless and deliberate indif-
ference” in violation of the Eighth Amendment. This claim
fails as a matter of law. The Supreme Court has held that “de-
liberate indifference to serious medical needs of prisoners
constitutes the unnecessary and wanton infliction of pain . . .
proscribed by the Eighth Amendment.” Estelle v. Gamble,
429 U.S. 97, 104 (1976). Deliberate indifference may include
a prison doctor’s inadequate response to a prisoner’s medical
needs, “prison guards intentionally denying or delaying access
to medical care, or intentionally interfering with the treatment
once prescribed.” Id. at 104-105. Here, Hamilton makes no
allegation that any defendant remained deliberately indifferent
288 HAMILTON v. BROWN
to his serious medical needs. Accordingly, his deliberate
indifference claim fails as a matter of law.

[10] To the extent the SAC can be read to allege that
defendants’ use of physical force to extract the blood sample
violates the Eighth Amendment, this claim fails as well. In
order to state a claim under the Eighth Amendment, a plaintiff
must allege that the challenged force was applied for the pur-
pose of causing harm, i.e., “maliciously and sadistically,”
rather than for legitimate reasons, such as maintaining order
or discipline in the prison. Wilkins v. Gaddy, 130 S. Ct. 1175,
1180 (2010) (quoting Hudson v. McMillian, 503 U.S. 1, 9
(1992)). Notably, Hamilton does not allege that defendants, in
subjecting him to a blood draw against his will, caused “the
unnecessary and wanton infliction of pain.” Whitley v. Albers,
475 U.S. 312, 319 (1986). He does not allege that he was sub-
ject to physical force in connection with the taking of the
blood sample beyond being handcuffed and then restrained in
a chair. He does not allege the infliction of pain beyond the
needle stick and the discomfort of the temporary restraint.
Even assuming that Hamilton found this experience uncom-
fortable, frustrating and humiliating, on these facts, there is no
viable Eighth Amendment claim. See Sanders v. Conan, 864
F. Supp. 496, 499-501 (E.D.N.C. 1994) (finding no Eighth
Amendment violation where prison officials used reasonable
force to collect DNA samples from unwilling prisoners pursu-
ant to North Carolina statute). We conclude that this claim for
relief was properly dismissed.

3. Remaining Claims

[11] Hamilton’s state law claims also fail as a matter of
law. He challenges the California DNA Act as violating the
right to procedural due process under the California Constitu-
tion. The California courts, however, have rejected this argu-
ment. See Travis, 44 Cal. Rptr. 3d at 192-95. California courts
also have repeatedly rejected Hamilton’s argument that the
collection of blood samples under the Act is an illegal search
 HAMILTON v. BROWN 289
or seizure. See Robinson, 224 P.3d at 67; Travis, 44 Cal. Rptr.
3d at 184; People v. Adams, 9 Cal. Rptr. 3d 170, 183-84 (Ct.
App. 2004); People v. King, 99 Cal. Rptr. 2d 220, 230 (Ct.
App. 2000); see generally 4 Witkin, CAL. CRIMINAL LAW, Ille-
gal Evidence § 326B (3d ed. 2010) (compiling cases).

We have reviewed appellant’s remaining federal and state
law claims and we find them to be without merit.

IV

CONCLUSION

For the reasons stated herein, the judgment of the district
court is

AFFIRMED.