P. v. Espana

Filed 2/14/06 P. v. Espana CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Gregg L. Prickett, Judge. Affirmed.

Richard Schwartzberg, under appointment by the Court of Appeal, for Defendant and Appellant.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, and Scott C. Taylor, Deputy Attorney General, for Plaintiff and Respondent.

In a prior opinion (People v. Espana (Nov. 19, 2004, G033182) [nonpub. opn.]), we affirmed defendant Johnny Espana's conviction of second degree robbery but struck the order for defendant to supply a blood and saliva sample under Penal Code section 296 (all statutory references are to this Code) because he was not convicted of an offense enumerated in that statute. We remanded the case for further proceedings to consider defendant's request to have the sample removed from any law enforcement or DNA data bank.

Before the case returned to the trial court, however, the electorate passed Proposition 69, amending the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (DNA Act), including sections 296 and 296.1. As amended, those sections broadened the scope of qualifying offenses to include collection of DNA from any person with a felony conviction and any person who is imprisoned, confined, or placed in a state correctional facility. The trial court denied defendant's unopposed motion to expunge his previously submitted DNA sample, stating that expungement would be futile in light of section 296's amendment and it was â€