In re Jorge G.

Filed 10/26/06 In re Jorge G. CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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

FIRST APPELLATE DISTRICT

DIVISION ONE

On August 8, 2005, defendant, a juvenile, admitted to allegations in an amended Welfare and Institutions Code section 602 petition that he was an accessory after the fact to a felony. Defendant further agreed that he would not seek to have the offense reduced to a misdemeanor for a period of three years. On September 13, 2005, the juvenile court adjudicated defendant a ward of the court and placed him on in-home formal probation. On January 13, 2006, the district attorney filed a motion seeking an order compelling defendant to provide DNA samples as required by Penal Code section 296, subdivision (a)(1) (section 296). Defendant’s attorney opposed the motion, arguing that section 296 is an unconstitutional infringement on Fourth Amendment rights, the due process and equal protection clauses of the federal Constitution and the right to privacy guaranteed by article 1, section 1 of California’s Constitution. The juvenile court, rejecting these arguments, granted the motion.

Defendant has filed an appeal from the order compelling him to submit to DNA testing. Appellate counsel has submitted a brief raising no issues and asking this court to conduct an independent review of the matter pursuant to People v. Wende (1979) 25 Cal.3d 436 and Anders v. California (1967) 386 U.S. 738 (Anders). Counsel includes an issues statement, as authorized by Anders, supra, at page 744, essentially directing the court to the contentions made by defendant’s trial counsel.

Discussion

While there appears to be no appeal from the jurisdictional and dispositional orders, per se, our review of the record reveals no arguable issues relating to either order. There was evidence that defendant had acted as an accessory to a felony. According to a police report, defendant was with two other young men who approached the victim. One of defendant’s companions brandished a socket wrench and demanded that the victim give him his money. The victim refused, after which defendant’s companion hit him with the wrench. The victim apparently lunged back at defendant’s companion, who ran away while defendant and the other young man threw rocks at the victim. All three young men ran off, with the victim giving chase. Defendant’s companion admitted that he had committed an assault on the victim with the intent to commit great bodily harm, a felony. (Pen. Code, § 245, subd. (a)(1).) Defendant was represented in the proceedings by an attorney who consented to his admission and stipulated to the factual basis underlying it. Defendant’s admission fully justified the court’s decision to make him a ward of the court. The dispositional order of formal in-home probation was well within the juvenile court’s discretion, and the various conditions attached to probation were appropriate to the crime and to defendant’s circumstances.

Section 296 requires “. . . any juvenile, who is . . . adjudicated under Section 602 of the Welfare and Institutions Code for committing any felony offense,” to provide DNA samples: Defendant, upon his admissions was adjudicated of having committed a felony offense. The section, accordingly applies to him. (Contrast In re Nancy C. (2005) 133 Cal.App.4th 508, 512: juvenile defendant’s admission to a “wobbler” is not an admission to a felony offense.) While it is recognized that nonconsensual extraction of biological samples for identification purposes implicates constitutional interests, statutes such as section 296 consistently have withstood constitutional challenge. (Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505, and see Annot., Validity, Construction, and Operation of State DNA Database Statutes (2000) 76 A.L.R.5th 239.) This court upheld section 296’s predecessor, Penal Code section 290.2, against a Fourth Amendment challenge. (People v. King (2000) 82 Cal.App.4th 1363, passim.) The statute does not violate California’s privacy rights. (Alfaro v. Terhune, supra, at pp. 509-510, 512.) There is no violation of defendant’s equal protection rights. Section 296 does not single out any class to which defendant belongs, including juveniles, for special treatment.

Conclusion

We have thoroughly reviewed the record and find no arguable issues. While we have selected certain matters for discussion, we have scrutinized the record in its entirety. There are no issues requiring further briefing.

The judgment is affirmed.

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STEIN, J.

We concur:

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MARCHIANO, P. J.

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SWAGER, J.

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