In re Erick M.

 

 

 

 

 

 

 

 

Filed 5/21/13  In re Erick M. CA2/7

 

 

 

 

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IN
THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

 

SECOND
APPELLATE DISTRICT

 

DIVISION
SEVEN

 

 
>

In re ERICK M., a Person Coming Under the Juvenile Court Law.	B241728         (Los Angeles County       Super. Ct. No. FJ49957)
THE PEOPLE,               Plaintiff and Respondent,               v.   ERICK M.,               Defendant and Appellant.

 

 

            APPEAL from
an order of the Superior Court
of href="http://www.adrservices.org/neutrals/frederick-mandabach.php">Los Angeles
County, Robert J. Totten, Juvenile Court Referee.  Affirmed as modified.

            Bruce G.
Finebaum, under appointment by the Court of Appeal, for Defendant and
Appellant.

            Kamala D.
Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General,
Lance E. Winters, Senior Assistant Attorney General, Steven D. Matthews and
Analee J. Brodie, Deputy Attorneys General, for Plaintiff and Respondent.

____________________

            Erick M. appeals from the juvenile court’s order
declaring him a ward of the court after finding he had committed misdemeanor
vandalism.  Erick contends, and the
Attorney General concedes, he was improperly ordered to provide a DNAhref="#_ftn1" name="_ftnref1" title="">[1] sample as a condition of
probation.  We strike that portion of the
juvenile court’s order and otherwise affirm.

FACTUAL AND PROCEDURAL BACKGROUND

            Police
detained Erick and a companion after they used a piece of glass to cut the roof
of a convertible car.  The People filed a
Welfare and Institutions Code section 602 petition alleging Erick had
committed second degree burglary
(§ 459) and felony
vandalism (§ 594, subd. (a)).

            Pursuant to
a negotiated agreement, Erick admitted the vandalism count; and the court
dismissed the burglary charge.  The court
then granted a defense motion to reduce the felony offense to a misdemeanor
under section 17, subdivision (b).  The
court declared Erick a ward of the juvenile court and ordered him suitably
placed.  Over a defense objection the
court ordered Erick to provide a DNA sample pursuant to section 296.

DISCUSSION

            As Erick
contends and the People acknowledge, the juvenile court erred in ordering him
to submit a DNA sample.

            Section 296
is part of DNA and Forensic Identification Database and Data Bank Act of
1998.  (§ 295 et seq.; see >People v. Robinson (2010) 47 Cal.4th
1104, 1113.)  The Act became effective January 1, 1999.  (Stats. 1998, ch. 696, § 4.)  “It created a data bank to assist ‘criminal
justice and law enforcement agencies within and outside California in the
expeditious detection and prosecution of individuals responsible for sex
offenses and other violent crimes, the exclusion of suspects who are being
investigated for these crimes, and the identification of missing and
unidentified persons, particularly abducted children.’”  (Robinson,
at pp. 1116-1117.)  After several
amendments (see id. at p. 1117, fn. 13),
the Act currently mandates the collection of DNA samples from all adults and
juveniles convicted of any felony offense, required to register as a sex
offender because of the commission or the attempt to commit a felony or
misdemeanor offense or housed in a mental health facility or sex offender
treatment program upon referral by a court after being charged with a felony
offense.  (§ 296, subd. (a)(1)
& (3).)         

            Because
misdemeanor vandalism is not one of the offenses for which a DNA sample may be
collected under section 296, we strike that portion of the court’s disposition
order requiring Erick to provide a DNA sample. 
(People v. >Walker (2000)
85 Cal.App.4th 969, 973-974.)  If
the sample has already been collected, Erick may seek relief pursuant to the
expungement procedure provided by section 299. 
(In re Nancy >C. (2005) 133 Cal.App.4th 508,
512.)

DISPOSITION

            The portion
of the disposition order requiring submission of a DNA sample is stricken.  In all other respects the juvenile court’s
order is affirmed. 

 

 

                                                                                                PERLUSS,
P. J.

 

 

            We
concur:

 

 

 

                        WOODS,
J.

 

 

 

                        ZELON,
J.