In re Leopoldo L.

• Decision Date: 21 October 2004
• Docket Number: No. 1 CA-JV 04-0074.,1 CA-JV 04-0074.
• Citation: 209 Ariz. 249,99 P.3d 578
• Parties: In re LEOPOLDO L.
• Court: Arizona Court of Appeals

99 P.3d 578

209 Ariz. 249

In re LEOPOLDO L.

No. -0074.

Court of Appeals of Arizona, Division 1, Department E.

October 21, 2004.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Richard M. Romley, Maricopa County Attorney By Linda Van Brakel, Deputy County Attorney, Phoenix, Attorneys for Appellee.

James J. Haas, Maricopa County Public Defender By Suzanne Sanchez, Deputy Public Defender, Mesa, Attorneys for Appellant.

OPINION

TIMMER, Judge.

¶ 1 Leopoldo L. appeals the juvenile court's disposition order that he submit to deoxyribonucleic acid ("DNA") testing. He argues that the court erred in entering this order because (1) Arizona Revised Statutes ("A.R.S.") section 13-610(O)(1) (Supp.2003), which authorizes DNA testing of juveniles adjudicated delinquent for sexual offenses, is inapplicable to adjudications for attempted sexual offenses, and (2) the involuntary taking of a DNA sample under § 13-610 is an unreasonable search that violates his federal and state constitutional rights to privacy. For the reasons that follow, we disagree and therefore affirm.

BACKGROUND

¶ 2 On September 5, 2003, the State charged Leopoldo with sexual abuse, a class 3 felony, for inappropriately touching a schoolmate. On March 11, 2004, Leopoldo admitted to committing attempted public indecency to a minor, a class 6 undesignated felony, in violation of A.R.S. §§ 13-1001 and 1403(B). On April 21, the juvenile court adjudicated Leopoldo delinquent of the admitted charge, placed him on probation, and ordered that he submit to DNA testing. Leopoldo objected to the DNA test on the grounds that the requisite statute requiring testing did not apply to attempted sexual offenses, and that the ordered test violated his constitutional rights to privacy. The court rejected these arguments, and this timely appeal followed.

DISCUSSION

A. Applicability of A.R.S. § 13-610(O)(1)

¶ 3 Leopoldo argues that the juvenile court erred by ordering him to submit to DNA testing because A.R.S. § 13-610, which mandates DNA testing in certain circumstances, does not apply to juveniles adjudicated delinquent of attempted sexual offenses. We review issues of statutory construction de novo. Ariz. Dep't of Revenue v. Dougherty, 200 Ariz. 515, 517, ¶ 7, 29 P.3d 862, 864 (2001).

¶ 4 Section 13-610(C), A.R.S., provides that within thirty days after a juvenile is adjudicated delinquent for specified offenses and placed on probation, "the county probation department shall secure a sufficient sample of blood or other bodily substances" from the juvenile for DNA testing. Results of the DNA test are then maintained in a database for law enforcement identification purposes, and for use in criminal prosecutions, juvenile adjudications, and proceedings relating to sexually violent persons. A.R.S. § 13-610(H), (I). Significantly, for purposes of this appeal, subsection O provides in part that § 13-610 applies to persons adjudicated delinquent for the following offenses:

1. A violation or an attempt to violate any offense in chapter 11 of this title, any felony offense in chapter 14 or 35.1 of this title or § 13-1507, 13-1508 or 13-3608.

(emphasis added). Leopoldo contends that the word "attempt" only applies to homicide offenses listed in chapter 11 and does not apply to the remaining offenses listed within § 13-610(O)(1). Because the court adjudicated him delinquent for attempting to commit a chapter 14 felony offense, Leopoldo asserts that the court erred by requiring him to submit to DNA testing. The State counters that the court correctly ordered DNA testing because § 13-610(O)(1) requires such testing when a juvenile is adjudicated for attempting to commit any of the offenses listed in that provision.

¶ 5 To determine the legislature's intent in enacting A.R.S. § 13-610(O)(1), we look first to the language of the provision, Calmat of Ariz. v. State ex rel. Miller, 176 Ariz. 190, 193, 859 P.2d 1323, 1326 (1993), and will ascribe plain meaning to its terms unless they are ambiguous. Rineer v. Leonardo, 194 Ariz. 45, 46, ¶ 7, 977 P.2d 767, 768 (1999). Because it is possible to read § 13-610(O)(1) in the manner advocated by either party, we employ other principles of statutory interpretation to glean the legislature's intent. See State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997)

.

¶ 6 First, we can discern the legislature's intent in enacting § 13-610(O)(1) by examining the development of that provision. Haas v. Colosi, 202 Ariz. 56, 58, ¶ 6, 40 P.3d 1249, 1251 (App.2002). In 1993, the legislature enacted A.R.S. § 13-4438, which the legislature renumbered in 2002 as § 13-610. Laws 1993, Ch. 235, § 1. Prior to 1998, § 13-4438 provided, in relevant part, that DNA testing was required when a person is "convicted or adjudicated delinquent of [an enumerated] sexual offense." A.R.S. § 13-4438(C) (Supp. 1996). The statute did not mention convictions or adjudications for attempted offenses.

¶ 7 In 1997, this court issued In re Sean M., 189 Ariz. 323, 942 P.2d 482 (App.1997), which addressed whether DNA testing was required for juveniles adjudicated delinquent for attempted sexual offenses. The juvenile in that case argued that because the plain language of § 13-4438(C) did not require testing following adjudications for attempted sexual offenses, the juvenile court erred by ordering such testing. Sean M., 189 Ariz. at 324-25, 942 P.2d at 483-84. We rejected this argument, reasoning that no distinction exists between attempted and completed sexual offenses sufficient to require DNA testing only if a juvenile is adjudicated delinquent for the completed offense. Id. at 325, 942 P.2d at 484. Thus, giving § 13-4438 its fair meaning and taking into account the statute's underlying policies, we held that the provision applies if a juvenile is adjudicated delinquent for attempting to commit any of the listed sexual offenses. Id. at 326, 942 P.2d at 485; see also State v. Lammie, 164 Ariz. 377, 380-81, 793 P.2d 134, 137-38 (App.1990)

(holding sex offender registration provision applied to persons convicted of attempted as well as completed sexual offenses even though provision made no reference to attempted offenses).

¶ 8 In 1998, possibly in response to Sean M., the legislature amended § 13-4438 and specifically provided that DNA testing is required when a person is convicted of or adjudicated delinquent for "an attempt to commit a sexual offense." 1998 Ariz Sess. Laws, Ch. 291, § 6. This requirement continued through subsequent amendments to § 13-4438, and prior to the 2002 amendment the statute provided, in pertinent part, as follows:

I. This section applies to persons who are convicted of or adjudicated delinquent for the following offenses:

1. A violation of or an attempt to violate [various offenses listed in chapters 14, 36, and 38].

2. Beginning on January 1, 2001, a violation of or an attempt to violate title 13, chapter 11, § 13-1507 or § 13-1508.

2001 Ariz. Sess. Laws, Ch. 382, § 4.

¶ 9 In 2002, the legislature rewrote § 13-4438 and renumbered it as § 13-610. 2002 Ariz. Sess. Laws, Ch. 226, § 2. Significantly, for purposes of this appeal, the legislature wrote subsection (O)(1) to include the offenses previously listed separately in § 13-4438(I)(1) and (2), as well as additional offenses. See supra ¶ 4. We see no indication from our review of the amendment or the hearings held on the Senate bill that eventually culminated in the amendment that the legislature intended to restrict mandated DNA testing for attempted offenses to attempted homicides. Indeed, as reflected in Senate hearing testimony, one purpose of the amendment was to expand the list of crimes for which a person, when convicted or adjudicated delinquent, must submit to DNA testing. See DNA testing identification database: Hearings on S.B. 1396 Before the Comm. on Appropriations, 44th Leg., 2nd Reg. Sess. (April 16, 2002) (testimony of Joy Hicks, Majority Research Analyst). Moreover, in light of the holding in Sean M. and the prior amendment to § 13-4438 to clearly apply that provision to attempted sexual offenses, we would expect the legislature to have explicitly stated that § 13-610 no longer applies to attempted sexual offenses if that was the legislature's intention. Because the legislature did not do so, and in light of the legislative development of § 13-610(O)(1), the correct interpretation is that the legislature intended that provision to apply to attempts to commit any of the listed offenses.

¶ 10 Second, we must interpret § 13-610(O)(1) in light of subsection (O)(2). See Goulder v. Ariz. Dep't of Transp., Motor Vehicle Div., 177 Ariz. 414, 416, 868 P.2d 997, 999 (App.1993)

("Statutes relating to the same subject matter should be read in pari materia to determine legislative intent and to maintain harmony."). Subsection (O)(2) provides that § 13-610 is applicable to juveniles adjudicated delinquent for any offense for which a person is required to register as a sex offender pursuant to A.R.S. § 13-3821. Pursuant to § 13-3821(A), a person must register if convicted of committing or attempting to commit any of an enumerated list of offenses, including those listed within A.R.S. title 13, chapter 14. Thus, if Leopoldo's contention is correct, an attempt to commit a felony offense listed in chapter 14 and subject to § 13-3821 would be treated differently under § 13-610(O)(1) and (2). The interpretation that sensibly harmonizes these provisions is the one that interprets subsection (O)(1) as requiring DNA testing of a juvenile adjudicated delinquent for attempting to commit a felony sexual offense. See Phoenix v. Superior Court, 139 Ariz. 175, 178, 677 P.2d 1283, 1286 (1984) (noting court should interpret statute so as to give it a fair and sensible meaning).

¶ 11 In sum, we hold that A.R.S. § 13-610(O)(1) mandates DNA testing of a juvenile adjudicated delinquent for attempting to commit any offense listed in that subsection,...