Opinion
A153054
12-12-2018
In re A.J., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.J., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J11-01479)
In this appeal, appellant A.J. challenges the juvenile court's denial of his request in his Proposition 47 petition to expunge his DNA profile from the state's databank and to destroy his DNA sample. A.J. contends that Penal Code section 1170.18 compels the expungement and subsequent destruction of his DNA sample.
All undesignated statutory references are to the Penal Code.
Based on the recent Supreme Court decision in In re C.B. (2018) 6 Cal.5th 118, we affirm the juvenile court's ruling denying A.J.'s request for expungement of his DNA profile and destruction of his DNA sample.
BACKGROUND
On October 19, 2017, A.J. filed a petition to designate his 2011 adjudication for felony grand theft from a person (§ 487, subd. (c)) a misdemeanor under Proposition 47 and asked that his DNA sample be expunged from the state's DNA databank. On October 31, 2017, the juvenile court reduced A.J.'s felony adjudication to a misdemeanor but denied his request to expunge his DNA sample. A.J. appealed.
DISCUSSION
A.J., relying on a 2015 decision by Division One of the Fourth Appellate District, Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, contends his DNA sample should be expunged because his felony adjudication was converted to a misdemeanor pursuant to section 1170.18. In response, the Attorney General argues that more recent decisions and a subsequent legislative enactment, Assembly Bill No. 1492 (2015-2016 Reg. Sess.), establish that resentencing under section 1170.18 does not provide a basis for expungement. Since the parties filed their briefs, Alejandro has been disapproved by the Supreme Court in In re C.B., supra, 6 Cal.5th at page 130.
We review de novo questions of statutory or voter-initiative interpretation. (People v. Park (2013) 56 Cal.4th 782, 796 [rules of statutory interpretation apply to voter initiatives]; Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176.) Our task is to determine the intent of the drafters so as to effectuate the purpose of the law. (Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 213.) But we do not consider the language in isolation; instead, we construe it "in context, keeping in mind the statutes' nature and obvious purposes," and we "harmonize the various parts of the enactments by considering them in the context of the statutory framework as a whole. [Citation.] If the statutory language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then we may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history." (People v. Cole (2006) 38 Cal.4th 964, 975.)
Proposition 47, enacted by the voters in November 2014, reduced certain drug and theft offenses to misdemeanors unless the offenses were committed by otherwise ineligible defendants. (People v. Rivera (2015) 233 Cal.App.4th 1085, 1089, 1091.) Section 1170.18, the resentencing provision added by Proposition 47, provides that a person who was found to have committed a felony, yet "who would have been guilty of a misdemeanor under [Proposition 47]" had it been in effect at the time of the offense, may request that the offense be designated a misdemeanor. (§ 1170.18, subds. (a), (f).) Neither section 1170.18 nor any other provision of Proposition 47 addresses whether the redesignation of a felony as a misdemeanor requires the expungement of DNA samples previously collected as a result of a felony conviction or adjudication. Subdivision (k) of section 1170.18 only states that an offense designated a misdemeanor pursuant to the statute "shall be considered a misdemeanor for all purposes" except as to restrictions on the person's ability to own or possess a firearm.
Section 1170.18, subdivision (k) states a felony conviction that is reclassified as a misdemeanor "shall be considered a misdemeanor for all purposes, except that such resentencing shall not permit that person to own, possess, or have in his or her custody or control any firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6."
The DNA and Forensic Identification Database and Data Bank Act of 1998 (DNA Database Act), section 295 et seq., requires qualifying persons to submit DNA samples to the state's databank (§ 296, subd. (a)) and specifies procedures for expungement of those samples (§ 299). The DNA Database Act was amended in 2004 through passage of Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, which "substantially expanded the range of persons who must submit DNA samples to the state's forensic identification data bank." (Good v. Superior Court (2008) 158 Cal.App.4th 1494, 1498.) Persons qualifying under the DNA Database Act for submission of DNA samples include: any person, including any juvenile, who is convicted of or who pleads guilty or nolo contendere to a felony offense; any juvenile who is adjudicated under section 602 of the Welfare and Institutions Code for committing a felony offense; and any person, including any juvenile, who is required to register under section 290 (sex offender registration) or section 457.1 (arson offender registration) because of the commission of, or the attempt to commit, a felony or misdemeanor offense. (§ 296, subd. (a).) The DNA submission requirements "shall apply to all qualifying persons regardless of sentence imposed . . . and regardless of disposition rendered or placement made in the case of a juvenile who is found to have committed any felony offense . . . ." (§ 296, subd. (b).)
Section 299, subdivision (a) provides that a person whose DNA profile has been included in the state databank "shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from the databank program . . . if the person has no past or present offense or pending charge which qualifies that person for inclusion within the state's DNA and Forensic Identification Database and Databank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile." Under subdivision (f) of this statute, "[n]otwithstanding any other law" (italics added), a judge is prohibited from relieving a person of his or her administrative duty to submit DNA if the person has been found guilty or was adjudicated a ward of the court for a qualifying offense under section 296, subdivision (a), or pleaded no contest to a qualifying offense.
When Alejandro N. v. Superior Court, supra, 238 Cal.App.4th 1209 was decided, subdivision (f) of section 299 set forth a non-exhaustive list of three statutes—sections 17, 1203.4, and 1203.4a—that do not authorize a judge to relieve a person of the duty to provide a DNA sample for a qualifying offense. (§ 299, former subd. (f), added by Prop. 69, § 4, as approved by voters, Gen. Elec. (Nov. 2, 2004).) Assembly Bill No. 1492, which was signed into law in October 2015, added section 1170.18 to that list. Accordingly, effective January 1, 2016, section 299, subdivision (f) states: "Notwithstanding any other law, including Sections 17 , 1170.18, 1203.4, and 1203 .4a, a judge is not authorized to relieve a person of the separate administrative duty to provide . . . samples . . . required by this chapter if a person . . . was adjudicated a ward of the court by a trier of fact of a qualifying offense as defined in subdivision (a) of Section 296 . . . ." (Italics added.)
Additionally, the DNA Database Act authorizes expungement only for persons with "no past or present qualifying offense" whose cases fall into one of four categories: (1) after arrest, no accusatory pleading was filed, or a qualifying charge was dismissed prior to adjudication; (2) the qualifying charge was reversed and the case was dismissed; (3) the individual was found factually innocent; or (4) the individual was found not guilty or acquitted of the qualifying offense. (§ 299, subd. (b)(1)-(4).)
With this background, we address each of the issues raised by A.J. in his brief below.
1. A Reclassified Misdemeanor Does Not Qualify A.J. for Expungement of His DNA Sample
Citing Alejandro, A.J. contends that the retention of DNA from a juvenile offender whose adjudicated felony offense has been reclassified as a misdemeanor under section 1170.18 is unauthorized because section 1170.18, subdivision (k) expressly states that a reclassified misdemeanor "shall be a misdemeanor for all purposes" and, thus, the "enactors effectively directed the courts not to carve out other exceptions to the misdemeanor treatment of the reclassified offense absent some reasoned statutory or constitutional basis for doing so." (Alejandro N. v. Superior Court, supra, 238 Cal.App.4th at p. 1227.)
The Supreme Court recently rejected the argument that Proposition 47's "misdemeanor for all purposes" requirement necessarily includes expungement from the DNA data bank. (In re C.B., supra, 6 Cal.5th at p. 129.) The court explained that the DNA Act, as modified by Proposition 69, identifies those who must provide samples for the databank. (In re C.B., p. 129.) Proposition 47 operates prospectively to narrow the class of juveniles who must submit samples because it redefines what offenses are felonies. (In re C.B., p. 126.) Section 299 governs the retention of samples after they have been submitted and the circumstances under which the samples may be expunged. (In re C.B., pp. 126-128.) While the appellants in In re C.B. no longer stood adjudicated of felonies after the court's redesignation orders, they were unable to meet the additional expungement requirements of section 299, subdivision (b)(1)-(4). (In re C.B., p. 128.) The court held that nothing in section 299 authorized expungement just because conduct previously deemed a felony was now punished only as a misdemeanor. (Ibid.)
A.J. contends that, unlike a wobbler offense, offenses now classified as misdemeanors for qualifying offenders under Proposition 47 have permanently been removed from the felony category and are therefore no longer subject to DNA collection. In Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 823, the court held that the DNA Act does not "permit expungement of the DNA profile . . . merely because [a] charge was subsequently reduced to a misdemeanor: the DNA Data Base Act permits expungement only on limited grounds." The court explained that a "reduction of the charge under section 17 renders it a misdemeanor for all purposes thereafter, without any retroactive effect." (Coffey, at p. 823.) Coffey was decided before Proposition 47 was passed. In addition to finding that Coffey remains good law, the Supreme Court in In re C.B. confirmed that a showing of changed circumstances which altogether eliminates a duty to submit a sample is an insufficient basis for expungement of a sample already submitted. (In re C.B., supra, 6 Cal.5th at p. 128.)
A.J. further contends that he falls within the scope of section 299, subdivision (a) and thus qualifies for expungement because he no longer has an offense or pending charge that qualifies him for inclusion in the databank. This argument was rejected by the Supreme Court in In re C.B. The court found no exception is needed to conclude that expungement is not a consequence of redesignation. (In re C.B., supra, 6 Cal.5th at p. 129.) "[R]edesignation is largely immaterial to expungement, which does not hinge on whether an offense would give rise to a duty to submit were it committed today." (Ibid.) Expungement under section 299 still requires satisfaction of at least one of the additional conditions in subdivision (b) of that statute. (In re C.B., p. 129.)
A.J. contends that this contrary interpretation is inconsistent with the intent of the voters who passed Proposition 47 to allow DNA expungement for those who qualified for a reclassification. A.J. argues that the voters intended to extend the benefits of Proposition 47 on a broad retroactive basis.
This argument was also rejected by the Supreme Court in In re C.B. The court explained that the proponents of Proposition 47 emphasized the goal of reducing costs and reallocating both prosecutorial and prison resources. (In re C.B., supra, 6 Cal.5th at p. 131.) Reclassifying various felonies as misdemeanors would allow law enforcement to focus its dollars on violent and serious crime and stop spending taxpayer funds on sending those who committed nonviolent petty crimes to prison. (Ibid.) The court further stated "Absent from these materials is any indication Proposition 47 was intended to retroactively alter the state's existing DNA databank. Modifying the databank neither advances nor impedes Proposition 47's goals to reduce the prison population and reallocate resources." (In re C.B., p. 131.) "There is no evidence the voters intended to expand the grounds for expungement." (Id. at p. 132.) The court went on to say that the retention of already-submitted samples generates no additional costs and imposes no punishment. (Ibid.) Whether samples are retained or not is unrelated to the stated purposes of Proposition 47. (In re C.B., p. 132.) The court went on to explain that Proposition 69 expands the state's databank to advance the compelling interests in public safety and appropriate exoneration through more accurate identification of criminals. (In re C.B., p. 133.) The retention of existing samples is consistent with that goal. (Ibid.)
A.J. finally argues that Assembly Bill No. 1492, which added section 1170.18 to the list of statutes that do not authorize a judge to relieve a person of the duty to provide a DNA sample (§ 299, subd. (f)), did not amend any other subdivisions of section 299, including those that directly address the right to apply for expungement of DNA that has been previously collected. The Attorney General contends that the Legislature's clarification of Proposition 69 in Assembly Bill No. 1492 precludes the court from ordering expungement of A.J.'s sample under Proposition 47. The Supreme Court declined to address the import of this provision given its determination that other portions of the statutory scheme preclude the expungement relief sought by the petitioners. (In re C.B., supra, 6 Cal.5th at p. 133, fn. 10.) We also base our ruling on the other portions of the statutory scheme that preclude expungement relief for A.J.
In this case, although A.J.'s felony conviction has been reclassified as a misdemeanor "for all purposes," he is unable to meet the additional expungement requirements of section 299, subdivision (b)(1)-(4). The DNA Database Act authorizes expungement only for persons with "no past or present qualifying offense" whose cases fall into one of four categories: (1) after arrest, no accusatory pleading was filed, or a qualifying charge was dismissed prior to adjudication; (2) the qualifying charge was reversed and the case was dismissed; (3) the individual was found factually innocent; or (4) the individual was found not guilty or acquitted of the qualifying offense. (§ 299, subd. (b)(1)-(4).) A.J., who admitted committing a qualifying offense, does not fit into any of these categories. The juvenile court properly denied his motion for expungement.
2. Retention of A.J.'s DNA Sample Does Not Deprive Him of Equal Protection Under the Law
A.J. argues that precluding expungement for persons whose felony adjudications have been reclassified as misdemeanors pursuant to Proposition 47 would result in a classification that affects two similarly situated groups in an unequal manner. He argues there is no rational basis for distinguishing between individuals who have admitted committing (or who have been found to have committed) an offense reclassified as a misdemeanor before or after Proposition 47's operative date. The Attorney General contends there is a rational basis to treat A.J. differently from juvenile offenders who committed the same felony offense after Proposition 47 became effective.
Equal protection does not require that different things be treated as though they are the same. (Briggs v. Brown (2017) 3 Cal.5th 808, 842.) A meritorious equal protection claim must demonstrate " ' "that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner." ' " (People v. Morales (2016) 63 Cal.4th 399, 408.) Since the distinction at issue here does not implicate a suspect classification or fundamental right, the challenged disparity in treatment need only survive rational basis scrutiny. (People v. Turnage (2012) 55 Cal.4th 62, 74-75.)
As the Supreme Court stated in In re C.B., the voters rationally could differentiate between those who have submitted samples and those who have not based on cost considerations. "They could conclude some crimes are no longer serious enough to justify the additional costs of obtaining samples. Yet they could also view the risk of recidivism from those who committed similar crimes when they were felonies as not slight enough to justify the additional costs of expunging samples already obtained. Such expenditures would diminish the savings derived from other portions of the initiative and the amounts available to pursue the initiative's ends." (In re C.B., supra, 6 Cal.5th at p. 134.) We also agree with the Attorney General that additional factors such as public safety and the prevention of recidivism provide a rational basis for DNA sample retention from A.J. and those similarly situated to him. (See, e.g., People v. Cruz (2012) 207 Cal.App.4th 664, 674-680.)
A.J. bears the burden of negating every plausible ground for the contested difference in treatment. We find that he has not met his burden.
DISPOSITION
We affirm the judgment of the trial court.
LEE, J. We concur: STREETER, Acting P. J.
TUCHER, J.
Judge of the Superior Court of California, County of San Mateo, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.