Opinion
No. 1 CA-CR 13-0398
06-26-2014
STATE OF ARIZONA, Appellee, v. DAVID ADRIAN ZAMORA, Appellant.
Arizona Attorney General's Office, Phoenix By Adele Ponce Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Louise Stark Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Maricopa County
No. CR 2011-138118-003
The Honorable Edward W. Bassett, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Arizona Attorney General's Office, Phoenix
By Adele Ponce
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Louise Stark
Counsel for Appellant
MEMORANDUM DECISION
Judge Margaret H. Downie delivered the decision of the Court, in which Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.
DOWNIE, Judge:
¶1 David Zamora appeals from an order requiring him to submit to and pay for deoxyribonucleic acid ("DNA") testing. We affirm the testing order but vacate the requirement that Zamora pay testing costs.
FACTS AND PROCEDURAL HISTORY
¶2 Zamora was charged with: (1) aggravated assault, a class three dangerous felony; (2) aggravated assault, a class two dangerous felony and dangerous crime against children; (3) kidnapping, a class two dangerous felony; (4) kidnapping, a class two dangerous felony and dangerous crime against children; and (5) burglary in the first degree, a class two dangerous felony. After a five-day trial, the jury convicted Zamora on all counts and found three aggravating factors.
¶3 The superior court sentenced Zamora while he was present in the courtroom, imposing concurrent and consecutive terms of imprisonment. The minute entry issued after the sentencing hearing included the following order:
IT IS FURTHER ORDERED that Defendant must submit to DNA testing for law enforcement identification purposes and pay the applicable fee for the cost of that testing in accordance with A.R.S. § 13-610.
This provision was not recited at the sentencing hearing. Zamora argues the court erred by ordering him to submit to DNA testing via minute entry and by requiring him to pay for the testing. We have jurisdiction over his timely appeal pursuant to Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, -4033(A).
DISCUSSION
I. DNA Testing Order
¶4 Zamora contends the order that he submit to DNA testing was not issued at the time of sentencing and was "illegally" added via minute entry. His contention is premised on the notion that the testing order is a term of his sentence.
¶5 Although Arizona law requires that a defendant be present when sentence is pronounced, Ariz. R. Crim. P. 26.9; see also State v. Powers, 154 Ariz. 291, 295, 742 P.2d 792, 796 (1987), ordering a defendant to submit to DNA testing is not a term of the defendant's sentence. Section 13-610(A) provides, in relevant part:
Within thirty days after a person is sentenced . . . the state department of corrections shall secure a sufficient sample of blood or other bodily substances for [DNA] testing and extraction from the person if the person was convicted of [a felony offense] and was sentenced to a term of imprisonment . . . .
The plain language of § 13-610(A) establishes that the testing requirement arises only after a person is sentenced. See, e.g., State v. Anderson, 169 Ariz. 381, 382, 819 P.2d 967, 968 (App. 1991), vacated in part on other grounds, 171 Ariz. 34, 827 P.2d 1129 (1992) (mandatory time payment fee "arises only after sentencing," is not part of sentence itself, and may be imposed in sentencing minute entry).
¶6 Additionally, the term "sentence" means "the pronouncement by the court of the penalty imposed upon the defendant after a judgment of guilty." Ariz. R. Crim. P. 26.1 (emphasis added); accord State v. Muldoon, 159 Ariz. 295, 298, 767 P.2d 16, 19 (1988) ("A sentence is a judicial order requiring a defendant convicted in a criminal case to presently suffer a specified sanction . . . ."). Fines, felony assessments, and restitution are part of a criminal sentence and must be ordered in the defendant's presence. See Powers, 154 Ariz. at 295, 742 P.2d at 796; State v. Lewus, 170 Ariz. 412, 414, 825 P.2d 471, 473 (App. 1992). We have previously held, though, that the objective of § 13-610 "is to aid investigative efforts in identifying repeat offenders by 'matching up' a person with a [certain] crime." State v. Reyes, 232 Ariz. 468, 471, ¶ 10, 307 P.3d 35, 38 (App. 2013). Post-sentencing DNA collection is an investigatory/regulatory tool, not punishment for a specific offense. Cf. De Veau v. Braisted, 363 U.S. 144, 160 (1960) (court should consider
"whether the legislative aim was to punish [an] individual for past activity, or whether the restriction of the individual comes about as a relevant incident to a regulation of a present situation"); State v. Olvera, 191 Ariz. 75, 77, 952 P.2d 313, 315 (App. 1997) (prohibition against felon possessing firearms is not punishment but "bona fide regulation of conduct which the legislature has power to regulate"); Maricopa County Juvenile Action Nos. JV-512600 and JV-512797, 187 Ariz. 419, 422-23, 930 P.2d 496, 499-500 (App. 1996) (statute requiring juvenile sex offenders to submit to DNA testing does not constitute punishment).
¶7 Because the order that Zamora submit to DNA testing was not part of his punishment for the underlying offenses, it was properly included in the minute entry from the sentencing hearing.
II. Testing Cost
¶8 The State concedes the superior court erred by requiring Zamora to pay the costs of DNA testing. We agree and therefore vacate that portion of the order. See Reyes, 232 Ariz. at 472, ¶ 11, 307 P.3d at 39 ("Because the legislature did not specifically state that a convicted felon has to pay a specific portion of the cost associated with his DNA testing in § 13-610, there is no basis for a court to order a convicted defendant to directly pay the testing fee.").
CONCLUSION
¶9 For the reasons stated, we affirm the order that Zamora submit to DNA testing but vacate the requirement that he pay for the testing.