Espana

In a prior opinion (People v. Espana (Nov. 19, 2004, G033182) [nonpub. opn.]), we affirmed defendant Johnny España’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 (§ 295 et seq.; 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 “not going to require the…