P. v. Fuller

P. v. Fuller



Filed 8/14/06 P. v. Fuller CA2/3







NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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



SECOND APPELLATE DISTRICT



DIVISION THREE









THE PEOPLE,


Plaintiff and Respondent,


v.


VALERIE LEIALOHA FULLER,


Defendant and Appellant.


B185150


(Los Angeles County


Super. Ct. No. PA049227)


APPEAL from a judgment of the Superior Court of Los Angeles County,


Harvey Giss, Judge. Affirmed.


William Flenniken, Jr., under appointment by the Court of Appeal, for Defendant and Appellant.


Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Mary Sanchez, Lawrence M. Daniels and Allison H. Chung, Deputy Attorneys General, for Plaintiff and Respondent.


_


Valerie Leialoha Fuller appeals from the judgment entered following her conviction by jury on count one - grand theft by embezzlement (Pen. Code, § 487, subd. (a)). The court sentenced her to prison for three years.


In this case, in which the People presented evidence that appellant, a business employee, committed embezzlement by, inter alia, forging the business’s checks and cashing them at a bank, we reject appellant’s claim that the trial court’s exclusion of evidence that (1) a second employee allegedly had complained that he was not the owner and (2) the second employee had a girlfriend, violated appellant’s Sixth Amendment right to present a defense. Appellant proffered the evidence as third party exculpatory evidence to show that the second employee had a motive to steal and therefore committed the instant embezzlement by forging the checks and having his girlfriend, acting as an accomplice, cash them. However, the application of ordinary rules of evidence does not violate a defendant’s right to present a defense, and the trial court properly ruled the proffered evidence was irrelevant and excludable under Evidence Code section 352.


We also conclude that appellant’s claim, that a trial court’s “order” pursuant to Penal Code section 296 requiring appellant to provide a DNA sample is constitutionally overbroad, and therefore this court should, inter alia, order the Department of Justice to retrieve and destroy appellant’s DNA samples, is not cognizable on appeal. The provisions of Penal Code section 296 requiring that appellant provide the sample were self-executing; therefore, the trial court’s “order” was merely an advisement. Moreover, the “order” does not affect the validity of appellant’s conviction or sentence. Finally, appellant is effectively seeking injunctive relief in a criminal appeal, where the state officials and agencies which would be enjoined if her claim were meritorious are not before this court. Therefore, there is no need to reach the merits of appellant’s claim.


FACTUAL SUMMARY


1. People’s Evidence.


Viewed in accordance with the usual rules on appeal (People v. Ochoa (1993) 6 Cal.4th 1199, 1206), the evidence, the sufficiency of which is undisputed, established as follows. Burns Plumbing, Heating, and Cooling Incorporated (Plumbing) was a small family business located in Arleta. Marie Burns (Marie) was its sole owner from 2001 to 2003. Phillip Burns (Phillip) and Gary Burns (Gary), Marie’s sons, were salaried employees. Phillip handled matters in the field, such as repairs and installations. Gary handled more of the business’s administrative matters than Phillip, but Gary also did work in the field. Gary oversaw most of the business’s employees. He signed more payroll checks than Phillip because Gary was at the office more than Phillip.


In January or February 2001, Gary hired appellant as an administrative assistant or secretary. Appellant’s responsibilities included payroll, payroll record keeping, and preparing checks from the business’s Citibank checking account in Arleta to pay vendors. Marie, Gary, and Phillip were authorized signatories on the checks. On February 27, 2003, Plumbing terminated appellant’s employment.


Plumbing later determined that 39 cancelled checks totaling about $29,937 were missing. The checks were written over a period beginning in March 2002 and ending on February 21, 2003. Plumbing obtained copies of the 39 cancelled checks from Citibank, and the copies were admitted in evidence. Each check bore the purported signature of Gary or Phillip as maker and, as to each check, appellant was the payee. However, Gary and Phillip indicated at trial that their purported signatures were forged.


Of the 39 checks, 4 were deposited in appellant’s account at Washington Mutual. The remaining 35 were cashed at the Citibank where Plumbing’s checking account was located. When a person who did not have a Citibank account sought to cash a check at Citibank, the bank required the person to endorse the check, present at least one form of identification, and present a second form of identification if the teller did not know the person. Citibank did not accept photocopies of identification. One of the 39 checks presented to Citibank was not endorsed.


A Citibank financial center operations manager testified as follows. Of the above 39 checks, 35 bore Citibank seals or stamps. The stamps or seals indicated “the person presenting the check for cashing, Valerie Fuller, came in and cashed the checks.” It appeared that, as to each of the 35 checks, the teller asked for identification and processed the check. The 35 checks that bore the seals or stamps also bore a driver’s license number of the person seeking to endorse the check. The teller would compare the photograph of the person on the driver’s license with the person seeking to endorse the check, and write the driver’s license number on the check. On some of those checks, the teller also wrote Visa or “B of A Visa” on the check, plus an expiration date. A detective testified the driver’s license number belonged to appellant’s driver’s license.


Michael Butorac worked at the Los Angeles Police Department as a questioned documents examiner. Butorac testified as follows. Of the 39 checks, appellant probably endorsed 10. Butorac used the term “probably” because he examined photocopies of the endorsements. Appellant may have endorsed an additional 18 checks.


When Plumbing was to pay vendors, appellant generated the Plumbing checks using a QuickBooks computer program to which appellant and Gary had access. The program was protected by a password. Gary had little more than a rudimentary knowledge of the program. The office manager or secretary was responsible for inputting information concerning checks, including the payees, into the program. Although appellant was payee on the 39 cancelled checks, the QuickBooks program reflected that the payees on those checks were vendors, or payees other than appellant.


When Citibank sent to Plumbing its monthly statements, appellant received the mail and was the first person to receive the statements and cancelled checks. Phillip testified that when the statement was received, a reconciliation was done in which “you check your accounting numbers against the bank’s accounting numbers and make sure they both agree.” Plumbing kept its financial documents, including bank statements and checks, in unlocked file cabinets. Plumbing kept employee records in an unlocked drawer.


Phillip testified that during the summer of 2001, a theft occurred when Christine Mitchell acquired missing or stolen Plumbing checks and, without authorization, cashed two of them at a Citibank branch. Mitchell was not a Plumbing employee. Phillip did not testify that Mitchell looked like appellant. Harold Clatt, a Plumbing employee, also committed thefts from Plumbing during the period of appellant’s employment. After 2003, Marie owned 92% of the business, and Phillip and Gary owned the rest equally.


2. Defense Evidence.


In defense, appellant testified as follows. Of the 39 checks, 4 were legitimate payroll checks to appellant which she endorsed and deposited in her Washington Mutual account. Gary or Phillip signed the four checks as maker, despite their testimony to the contrary. As to the remaining 35 checks, appellant denied generating, endorsing,[1] or cashing them. Appellant was not entitled to sign checks as maker.


Appellant’s driver’s license was never stolen while she worked at Plumbing, and she never shared her driver’s license with anyone. Appellant kept her driver’s license in her purse, and she thought she made sure that she took her purse home every night. Appellant was occasionally in the office by herself at the end of a workday.


Appellant’s duties included generating payroll checks, including her own, using QuickBooks. Appellant generated payroll checks for Gary and Phillip, who received salaries. On an almost weekly basis, appellant took Plumbing’s deposits to the Citibank in Arleta. She also cashed her payroll checks at that bank. In January 2002, appellant opened her Washington Mutual account and obtained for that account an ATM debit card with a Visa logo. Appellant did not have any credit cards in 2001.


Plumbing’s accountant, not appellant, was supposed to reconcile the bank account. Appellant had never done a reconciliation. After Plumbing no longer had an accountant,


appellant told Gary that it was impossible for her to reconcile the bank account because she did not know how and the business’s finances made it too difficult.


Appellant received Plumbing’s bank statements and cancelled checks. Those documents, plus employee files, were kept in unlocked file cabinets. The employee files included photocopies of driver’s licenses and social security cards. In 2002, appellant saw Gary’s sister entering the file cabinets.


Appellant used the QuickBooks computer program on a daily basis, and it was a simple program. Appellant denied that a password was needed to access QuickBooks. Gary used a computer on an almost a daily basis, and used appellant’s computer frequently. Appellant found errors in the QuickBooks program after Gary used it. Appellant went on a two-week vacation in March 2002 and, before she left, she showed Gary how to use QuickBooks to generate payroll. Michael Verdict, Gary’s nephew, also used the computer at the office. Appellant did not know what Verdict had been doing on the computer. There were eight employees at Plumbing when appellant worked there. All of them had access to the computers but appellant never saw any employee using the computers.


Plumbing fired appellant on February 27, 2003. She received her last check and returned the key to Gary before she left. The parties stipulated that the business’s locks were changed within one week of appellant’s termination.


CONTENTIONS


Appellant contends (1) the trial court’s evidentiary rulings violated her Sixth Amendment right to present a defense that Gary embezzled the funds and (2) the trial court’s order pursuant to Penal Code section 296 that appellant provide a DNA sample was improper because the section is facially overbroad in violation of her right to due process, the Fourth Amendment, and her constitutional right to privacy.


DISCUSSION


1. The Trial Court’s Evidentiary Rulings Did Not Deny Appellant Her Right to Present a Defense.


a. Pertinent Facts.


(1) Proffered Evidence Concerning Gary’s Ownership Complaints.


During appellant’s direct examination, appellant’s counsel asked appellant, “Now did either Phillip or Gary Burns ever express any complaints to you regarding the fact that they weren’t owners of the company?” The prosecutor posed a relevance objection which the court sustained. The court also asked for an offer of proof.


Subsequently, in chambers, appellant claimed that her question had been “whether either Gary Burns or Phillip Burns had ever complained about not being an owner.” The court indicated it did not see the relevance of the question.


Appellant represented, in pertinent part, the following. Gary had been dissatisfied and frustrated that he was not the owner, and Gary had felt he should have been the owner. The proffered evidence was evidence of Gary’s motive to frame appellant.


The court indicated it would sustain the objection and exclude the proffered evidence under Evidence Code section 352. The court commented appellant was engaged in a fishing expedition. The court also indicated appellant was asking for speculation, conclusions, and hearsay, and the court would sustain the objection.


The court continued to press appellant for an offer of proof. Appellant’s counsel replied that he had appellant’s testimony that Gary was upset because he was not the owner, Gary had an opportunity to frame appellant because he had access to the computer, and Gary had access to all of the documents in question including appellant’s identification. Appellant’s counsel added that without testimony concerning Gary’s behavior, appellant’s counsel had nothing to corroborate his theory.


The court asked why Gary would frame appellant and send her to prison. The court also asked, if appellant was saying Gary was stealing, did appellant have any evidence of a connection between Gary and “a male [sic] cashing those checks or . . . any way of proving that he could copy her handwriting or . . . that he’s the one that was putting those checks through other than speculation[.]” (RT/975-976) Appellant asked the court how could appellant have that information when the court would simply indicate the information was speculative. Appellant asked if the court was asking if appellant would have a person testify that the person framed appellant and forged her handwriting. The court said “we’re on a wild goose chase” and indicated the court would exclude the proffered evidence under Evidence Code section 352.


(2) Proffered Evidence Concerning Gary’s Girlfriend.


Later during the direct examination of appellant, appellant’s counsel asked appellant if Phillip had a spouse when appellant worked at Plumbing. The prosecutor posed a relevance objection which the court sustained unless there was an offer of proof. Appellant’s counsel then asked if Gary had a girlfriend at the time. The prosecutor posed a relevance objection which the court again sustained unless there was an offer of proof.


Subsequently, in chambers, appellant’s counsel indicated as follows. An issue had arisen about the fact that appellant was one of the only females at the premises on a regular basis. Counsel believed there were other females that had access to the premises. Counsel indicated he merely wanted to establish “some of the females that did have access to the premises.” Counsel believed Gary had a girlfriend at the time that appellant was working at Plumbing, and the girlfriend came to the premises.


The court asked if appellant had a factual basis to connect the alleged girlfriend with anything that occurred that related to appellant’s defense. Appellant’s counsel replied, “Other than the fact that I believe the girlfriend did have experience with this program.” The court indicated the question was whether appellant knew whether the girlfriend was working the program or using the computer for business purposes. Appellant’s counsel replied, “She may have been somewhere - I don’t know - [.]”


The court asked if there was evidence that the girlfriends or spouses used the computers with the result that such evidence (1) supported appellant’s defense that other people were tampering with the computer and (2) explained why 35 checks were cashed with appellant’s name, and her identification was used to deposit checks in her Washington Mutual account. Appellant’s counsel indicated that the proffered evidence was supportive because “whoever did this, if it wasn’t my client, there was a female involved.” Appellant’s counsel added that, the day before, the court had indicated there had to be a female involved.


The court commented that, the day before, the court merely had indicated that, if in fact a female had been involved, she would have to have been someone who looked like appellant and passed checks with a California’s driver’s license. The court commented that that would explain why a bank which checked identification would think the female was appellant. Appellant’s counsel indicated that the photograph on the identification did not have to look like appellant if the identification was fake.


The court told appellant that the court thought she was “just throwing stuff on the wall to see what will stick; . . .” The court indicated appellant’s counsel was not to ask about girlfriends, but appellant’s counsel could ask appellant if she knew who used the computer during the period in which appellant was responsible for what was inputted into the computer.


Appellant later testified during direct examination concerning persons who had been on Plumbing’s premises. Appellant’s counsel asked whether any of those persons used the computer. Appellant replied that Verdict used the computer “and to my knowledge that’s possibly all.” During cross-examination, appellant denied knowing what Verdict had been doing on the computer.


b. Analysis.


Appellant claims the trial court erroneously excluded evidence that Gary had a motive to steal and a female accomplice. She asserts “[s]ince all of the forged checks were presented to the bank for payment by a woman, appellant needed to present evidence that Gary . . . had a woman available who could have aided him by presenting the checks for payment. . . .” She argues the exclusion violated her rights to present a defense guaranteed under the due process clause and Sixth Amendment. We reject appellant’s claim.


The application of ordinary rules of evidence does not violate a defendant’s constitutional right to present evidence. (Cf. People v. Mincey (1992) 2 Cal.4th 408, 440.) Although third party exculpatory evidence “need only be capable of raising a reasonable doubt of defendant’s guilt[,] . . . evidence of mere motive . . . to commit the crime in another person, without more, will not suffice to raise a reasonable doubt about a defendant’s guilt: there must be direct or circumstantial evidence linking the third person to the actual perpetration of the crime.” (People v. Hall (1986) 41 Cal.3d 826, 833.) An appellate court applies the abuse of discretion standard of review to any ruling by a trial court on the admissibility of evidence, including rulings concerning relevance and application of Evidence Code section 352. (People v. Waidla (2000) 22 Cal.4th 690, 723-724.)


We first turn to appellant’s proffered evidence concerning Gary’s ownership complaints (and leave aside the fact that appellant never complained below that exclusion of that evidence raised a constitutional issue). At the outset, we note appellant never claimed during her proffer that Gary (1) was dissatisfied because he should have been the owner and (2) as appellant asserts, “inferentially was not paid enough, which furnished a motive for him to steal . . . .” During appellant’s proffer, appellant made no reference to whether Gary was being paid enough. For all the proffer reflects, appellant may have wished to present evidence that Gary was dissatisfied that he lacked the status of owner, apart from whether he was being paid enough.


Second, even if Gary were dissatisfied because he should have been the owner and paid more, a number of noncriminal options were logically available to Gary. He could have (1) accepted his financial circumstances without complaint, (2) requested a raise, (3) worked less for Plumbing, and/or (4) worked independently of Plumbing. In short, the trial court reasonably could have concluded that the fact, if true, that Gary was dissatisfied because he should have been the owner and paid more did not have a tendency in reason (Evid. Code, § 210) to prove that he had a motive to commit a felony and steal. (Cf. People v. Waidla, supra, 22 Cal.4th at p. 723.) Third, appellant never suggested during her offer of proof concerning Gary’s ownership complaints that he had an accomplice or, in particular, that he had an accomplice in the creation or negotiation of the checks at issue. Finally, there is no dispute the trial court properly sustained the prosecutor’s objection to the extent appellant asked about complaints from Phillip.


As to appellant’s later proffer concerning Gary’s alleged girlfriend (and, again, leaving aside the fact that appellant never complained below that exclusion of that evidence raised a constitutional issue), we note that appellant never claimed that the alleged girlfriend was involved in the creation or negotiation of the checks. At one point during the proffer, appellant’s counsel indicated he did not know whether the alleged girlfriend was working the QuickBooks program or using the computer for business purposes. For all the proffer reflects, the alleged girlfriend may have been familiar with the QuickBooks program and may have come to Plumbing’s premises for a reason(s) unrelated to her familiarity with that program. Appellant postulated that if appellant was not involved in the crime, another female had to have been involved, but appellant proffered no evidence that another female in fact had been involved. Nor did appellant proffer any evidence that a woman other than appellant had used fake identification to negotiate the checks.


We conclude the trial court did not violate appellant’s constitutional rights by excluding the proffered evidence, including any third party exculpatory evidence. (Cf. People v. Waidla, supra, 22 Cal.4th at p. 723; People v. Mincey, supra, 2 Cal.4th 408, 440, Evid. Code, §§ 210, 352.)


Finally, as to the issue of prejudice, appellant concedes that someone cashed 35 forged checks (the checks which were not deposited) and thereby committed embezzlement. The issue as to those checks was identity. Gary and Phillip denied signing as makers the 35 checks. Appellant knew how to generate those checks and make herself payee and, in her position as administrative assistant, had sufficient opportunity to observe the signatures of Gary and Phillip in order to forge their signatures. She also had the opportunity to input false data in the QuickBooks program concerning the checks’ payees and remove the cancelled checks from the bank statements when Plumbing received them.


Leaving aside Gary, we note appellant testified at trial that Verdict, a male, used the computer “and to my knowledge that’s possibly all.” There was ample evidence that the person cashing the checks at the bank had to present an original form of identification containing a photograph. Appellant’s driver’s license number was on all 35 checks. No evidence was proffered or presented that a woman who looked like appellant cashed the 35 checks or used identification with a fake photograph of appellant to cash them. The Citibank operations manager testified the stamps or seals on the 35 checks indicated “the person presenting the check for cashing, Valerie Fuller, came in and cashed the checks.” Butorac testified appellant probably endorsed 10 of the 39 checks; this necessarily included some of the 35 checks which were cashed.


Both the People and appellant presented evidence that appellant endorsed and deposited four checks. Accordingly, the jury was entitled to compare the admittedly genuine endorsements by appellant on those four checks with the questioned endorsements on the 35 checks, and to conclude that appellant was the person who endorsed and cashed the latter checks (People v. Rodriguez (2005) 133 Cal.App.4th 545, 547, 551-554) and committed embezzlement. Even appellant conceded during jury argument that at least some of the endorsements on the 35 checks resembled appellant’s signature. Appellant was not completely deprived of an opportunity to present evidence that it was Gary who committed embezzlement, and appellant did present evidence on that issue.


As to the four checks, again, there is no dispute appellant deposited and thereby negotiated them. The issue as to those checks was intent. The other crimes evidence that appellant embezzled the 35 checks provided ample evidence that appellant harbored intent to steal the four checks. We conclude that any error in excluding the proffered evidence was not prejudicial. (Cf. People v. Watson (1956) 46 Cal.2d 818, 836.)


None of the cases cited by appellant, or her arguments, compel a contrary conclusion. In particular, appellant argues the cancelled checks bearing February 2003 dates were missing from their bank statement which Plumbing received in March 2003 and after appellant had been terminated; therefore she could not have removed those checks from the statement. However, first, most of the cashed checks which supported appellant’s embezzlement conviction were dated from March 2002 to January 2003. Second, even if (1) the cancelled checks bearing February 2003 dates were originally included in a February 2003 bank statement received by Plumbing in March 2003 after appellant was terminated, and (2) a third party removed those checks from the statement, that fact would not show that the third party embezzled. Nor would that fact negate the independent substantial evidence that appellant presented those checks to the bank with her identification and cashed them.


2. Appellant’s Challenge to the Trial Court’s “Order” Requiring Appellant to Provide DNA Samples Is Not Cognizable On Appeal.


a. Pertinent Facts.


On August 2, 2005, the court sentenced appellant to prison for three years. The court, without objection, also stated, inter alia, “Defendant is ordered to submit a D.N.A. specimen.” The August 2, 2005 minute order reflects, “The court orders that the defendant provide two specimens of blood, a saliva sample . . . for law enforcement identification analysis.”


b. Analysis.


There is no dispute that the trial court’s “order” that appellant submit a DNA specimen was pursuant to Penal Code section 296. Appellant, in her opening brief, claims that that section, as amended by Proposition 69 in 2004, to require DNA samples from (1) anyone convicted of a felony and (2) beginning five years after the enactment of Proposition 69, anyone arrested for a felony, is facially overbroad in violation of her right to due process, the Fourth Amendment, and her constitutional right to privacy, because the sample requirement should apply, as it did prior to the amendment of the sections, only to a person convicted of a serious felony. Appellant, in her opening brief, argues that, as a matter of remedy, this court must order the Department of Justice (1) to destroy appellant’s DNA samples and profile and (2) to retrieve and destroy appellant’s DNA sample and profile from every domestic or foreign law enforcement agency to whom her sample or profile has been disseminated. She also argues that this court must order (1) the Attorney General to file a certificate, under oath, indicating compliance with the above orders and (2) that appellant’s DNA sample or profile originating from this case may not be used for any purpose. For the reasons discussed below, we conclude appellant’s claim is not cognizable on appeal.


Penal Code sections 295 and 296 are part of the DNA and Forensic Identification Database and Data Bank Act of 1998 (Act), as amended. (People v. Dial (2005) 130 Cal.App.4th 657, 659 (Dial).) Appellant’s offense occurred in 2003. At the time of the offense, former Penal Code section 295, subdivision (a)(2) set forth the Legislature’s intent to require DNA samples for felonies described in former Penal Code section 296, subdivision (a). Former Penal Code section 296, subdivision (a)(1) specified 14 categories of felonies.


The Act was amended by changes effected through the passage of Proposition 69 in the November 2, 2004 general election. (Dial, supra, at p. 661.) As amended by Proposition 69, Penal Code section 295, subdivision (b)(2) sets forth the intent of the People to require DNA samples from, inter alia, all persons convicted of felonies described in Penal Code section 296, subdivision (a). Moreover, Penal Code section 296, subdivision (a), as amended, omits the 14 categories of felonies found in former Penal Code section 296, subdivision (a)(1). Instead, Penal Code section 296, subdivision (a), as amended, requires samples from, in relevant part, “(1) Any person, . . . who is convicted of . . . any felony offense, . . . [¶] (2) Any adult person who is arrested for . . . any of the following felony offenses: [¶] . . . [¶] (C) Commencing on January 1 of the fifth year following enactment of the act that added this subparagraph, as amended, any adult person arrested or charged with any felony offense.” As mentioned, sentencing in this case occurred in 2005.[2]


In Dial, the defendant made a claim similar to appellant’s. The defendant in Dial claimed a sentencing court’s “order” pursuant to Penal Code section 296 requiring the defendant to provide DNA samples violated his Fourth Amendment rights (Dial, supra, 130 Cal.App.4th at pp. 659-660); therefore, the defendant asked the appellate court that the “order” “‘be rescinded and that any information that may have been obtained as a result of this order be both suppressed and destroyed.’” (Id. at p. 660.) Dial concluded the claim was not cognizable on appeal. (Id. at p. 659.)


We will not recite in detail Dial’s analysis here. Suffice it to say that the appellate court in Dial concluded that (1) the defendant was effectively seeking injunctive relief, and the state officials and entities, including the Department of Justice, who would have to have appeared in court in order for such relief to be granted were not before the appellate court in the defendant’s criminal appeal; therefore the appellate court could not grant the relief, (2) the provisions of Penal Code section 296, as amended, were self-executing; therefore, the trial court’s “order” that the defendant submit a DNA specimen was merely an advisement, and (3) the defendant’s attack on that “order” did not affect the validity of his conviction or sentence (Dial, supra, 130 Cal.App.4th at pp. 660-662); therefore, there was no need to reach the merits of the defendant’s challenge. (Id. at p. 662.). Based on Dial, which we find persuasive, we conclude there is no need to reach the merits of appellant’s challenge.[3]


As previously indicated, appellant, in her opening brief, argued that, as a matter of remedy, this court should order the removal of appellant’s DNA from the California database. However, in her belated reply brief, and at oral argument, appellant expressly withdrew that argument. Instead, appellant claims that, based on Penal Code section 299, subdivision (c)(1), only the trial court is authorized to order expungement; therefore, if this court finds meritorious her constitutional challenge, this court should remand the matter to the trial court for expungement proceedings.


We reject the claim. As Dial, supra, 130 Cal.App.4th at p. 661, observed, “Not one of [the responsible] authorities or officials is a party to this action so that we or the trial court could grant injunctive relief if persuaded by Dial’s [constitutional] claims.” (Italics added.) Accordingly, Dial’s rationale still applies and appellant’s claim of constitutional error is not cognizable on appeal; therefore, there is no need to reach the issue of remedy, including whether the matter should be remanded.


We note that Penal Code section 299, appears to permit a defendant to request a trial court to order expungement in specified circumstances, but those circumstances do not expressly include a constitutional challenge to the Act. We express no opinion as to (1) whether appellant should request, on any ground, the trial court to order expungement, or (2) what the trial court’s disposition of any such request should be.


DISPOSITION


The judgment is affirmed.


NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS


KITCHING, J.


We concur:


KLEIN, P.J.


CROSKEY, J


Publication courtesy of San Diego pro bono legal advice.


Analysis and review provided by Poway Property line Lawyers.


[1] We note that during jury argument, appellant invited the jury to look at the purported endorsements on the 35 checks. Appellant’s counsel argued that some of the purported endorsements did not match appellant’s signature, but “[o]thers are still similar, you know. There are similarities.” Appellant’s counsel added, “they resemble her signature.”


[2] Appellant does not expressly claim that application of the Act to the present offense is impermissibly retroactive or violative of ex post facto protections. The Act is expressly made retroactive (Pen. Code, § 296.1, subdivision (b)) and application of the Act to the present offense does not violate ex post facto protections (People v. Espana (2006) 137 Cal.App.4th 549, 552-556.)


[3] Although Dial rejected the defendant’s challenge solely on a procedural ground, we note that Dial observed, “On the merits, [the defendant] concedes that all three published California cases to have considered such challenges have rejected them (People v. Adams (2004) 115 Cal.App.4th 243, 255-259 . . . ; Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 505-512 . . . ; People v. King (2000) 82 Cal.App.4th 1363,


1369-1378 . . . , but he claims they are wrongly decided. We also note what Dial’s briefing does not - that two days before he filed his reply brief, a majority in an en banc decision by the Ninth Circuit similarly rejected such a challenge to a federal DNA database statute. (U.S. v. Kincade (9th Cir. 2004) 379 F.3d 813, cert. den. (2005) _ U.S. _ . . . .)” (Dial, supra, 130 Cal.App.4th at p. 660.)



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