Opinion
A146229
01-31-2017
In re A.R., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.R., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1200949)
As in a related case, In re C.B. (2016) 2 Cal.App.5th 1112, the defendant in this case, A.R. (minor), appeals from a juvenile court order denying his request to expunge DNA samples from the state's DNA database after his felony offense was redesignated a misdemeanor pursuant to Proposition 47, the Safe Neighborhoods and Schools Act, a measure that reduced the classification of certain crimes. According to minor, his DNA samples should be expunged because, had his offense been classified as a misdemeanor at the time he admitted committing it, he would not have been required to submit the samples in the first place. Following the same legal reasoning applied by this court in In re C.B., we reject minor's challenge. Accordingly, we affirm the juvenile court's order.
The California Supreme Court granted review in this matter on November 9, 2016, docket number S237801. (See Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e).)
Unless otherwise stated, all statutory citations herein are to the Penal Code.
We decline to restate in full our detailed analysis in In re C.B. in rejecting the identical legal challenge made herein. However, minor does raise in this case an additional argument in seeking reversal of the juvenile court's order based upon the equal protection clause of the state and federal constitutions that was not raised in the related case. We address, and ultimately reject, this argument separately below.
FACTUAL AND PROCEDURAL BACKGROUND
On July 2, 2012, a juvenile wardship petition was filed in Contra Costa County pursuant to Welfare and Institutions Code section 602, alleging that minor committed the offenses of felony display of a deadly weapon in violation of section 417, subdivision (a)(1) (count one), misdemeanor resisting an officer in violation of section 69 (count two), and misdemeanor threatening an officer in violation of section 71 (count three). On October 12, 2012, minor admitted the misdemeanor offense of threatening an officer and the remaining counts were dismissed.
Prior to disposition in this matter, another juvenile wardship petition was filed on September 5, 2012, this time in Alameda County, alleging that minor committed the offenses of felony robbery in violation of section 211 (counts one, two and three), felony receipt of stolen property in violation of section 496 (count four), felony attempted first degree burglary in violation of sections 664/459 (count five), and misdemeanor loitering in violation of section 647, subdivision (h) (count 6). On September 13, 2012, after the felony robbery count was amended to felony grand theft, minor admitted the amended count, and the remaining counts were dismissed. The maximum term of confinement was set at three years.
Minor's case was then transferred from Alameda County to Contra Costa County for disposition on both matters. Following the dispositional hearing, the juvenile court declared minor a ward of the court and placed him on probation under the care of the probation officer subject to various terms and conditions. Among these terms and conditions was the requirement that minor submit to DNA testing.
On May 28, 2014, the juvenile court found that that minor was no longer in need of placement and his placement order was set aside. However, on September 22, 2014, minor was found in violation of his probation after testing positive for marijuana and was ordered to enroll in substance abuse counseling and to undergo continued drug testing.
On June 16, 2015, minor filed a petition for modification under Welfare and Institutions Code sections 726, 775 and 778, requesting that his felony grand theft adjudication be reduced to misdemeanor petty theft, that the maximum period of his confinement be recalculated to 14 months, that the order requiring submission of DNA samples be vacated and his DNA samples be expunged from the state database, and that the fine imposed under Welfare and Institutions Code section 790.6 be recalculated to an amount in accordance with a misdemeanor finding. Following a hearing, the juvenile court granted all of minor's requests with the exception of his requests to vacate the order to submit DNA samples and to expunge his samples from the state database. On September 14, 2015, after minor's petition for reconsideration was denied, he filed a timely notice of appeal.
On May 26, 2016, the People filed a motion to dismiss minor's appeal, arguing that there was no basis for affording minor the relief he seeks (to wit, expungement of his DNA sample) because the state's DNA database program does not have a forensic identification sample from him. On June 24, 2016, this court denied the People's motion to dismiss, and the parties were ordered to proceed with briefing. Following the People's timely filing of a Respondent's Brief, minor declined to file a Reply Brief.
DISCUSSION
Minor's principle challenge on appeal is identical to the challenge raised in the aforementioned related case, In re C.B. — to wit, that the juvenile court misconstrued section 1170.18, which was added upon passage of Proposition 47, when finding that he was not entitled to have his DNA samples expunged from the state database upon reclassifying his felony offense as a misdemeanor. According to minor, his DNA samples should be expunged because, had his offense been classified as a misdemeanor at the time he admitted committing it, the juvenile court would have had no authority under the DNA and Forensic Identification Data Base and Data Bank Act of 1998, section 295 et seq. (DNA Database Act or Proposition 69), to order him to submit DNA. (See § 296, subd. (a).) In a related argument, minor adds that the court's failure to expunge his DNA samples is a violation of his constitutional right to equal protection under the law because, had he committed the same offense after passage of Proposition 47, he would not have been subject to the legal duty to submit DNA. We discuss each of these arguments to the extent appropriate below.
The DNA Database Act was amended in 2004 through passage of Proposition 69 to "substantially expand[] the range of persons who must submit DNA samples to the state's forensic identification databank." (Good v. Superior Court (2008) 158 Cal.App.4th 1494, 1498.)
I. Does Reclassification of Minor's Offense Under Section 1170.18 Entitle Him to DNA Expungement?
Minor's first argument is that, following reclassification of his felony offense as a misdemeanor, he no longer has an offense that would subject him to the duty to submit DNA under the DNA Database Act. As such, minor contends, the order requiring him to submit DNA should be vacated and his DNA samples should be expunged. (See § 296, subd. (a).) This argument is, in essence, one of statutory or voter-initiative interpretation, reviewed on appeal de novo. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1212 [rules of statutory interpretation apply to voter initiatives]; Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176.) Accordingly, based upon the fundamental rule of statutory construction, we must ascertain the intent of the Legislature so as to effectuate the purpose of the law. (Preston v. State Bd. of Equalization (2001) 25 Cal.4th 197, 213.) "To determine the intent of legislation, we first consult the words themselves, giving them their usual and ordinary meaning." (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) "We do not, however, consider the statutory language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statutes' nature and obvious purposes. [Citation.] We must harmonize the various parts of the enactments by considering them in the context of the statutory frame work 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.)
According to minor, Proposition 47's directive that reclassified offenses be treated as misdemeanors "for all purposes" (§ 1170.18, subd. (k)) means reclassified offenses are no longer qualifying offenses for purposes of the DNA Database Act. (See § 296, subd. (a)(1) ["Any person, including any juvenile, who is convicted of or pleads guilty or no contest to any felony offense, or is found not guilty by reason of insanity of any felony offense, or any juvenile who is adjudicated under [§ 602] for committing any felony offense" shall provide DNA samples for law enforcement identification analysis].) As such, minor reasons, the juvenile court erred in finding otherwise.
In addition, minor argues the Legislature's recent enactment of Assembly Bill No. 1492 (2015-2016 Reg. Sess.) (hereinafter, Bill No. 1492), which, among other things, amended section 299, subdivision (f) to state that a trial court is not authorized to relieve a defendant of his or her administrative duty to submit DNA when granting relief under section 1170.18, is irrelevant to his case because the amendment was not intended to address DNA expungement, a separate subject covered by a different provision (to wit, section 299 (e)).
We just recently addressed and rejected these arguments in In re C.B. (2016) 2 Cal.App.5th 1112 (rev. granted November 9, 2016; see Cal. Rules of Court, rules 8.1105(e)(1)(B), 8.1115(e).) In doing so, we concluded a felony offense reclassified as a misdemeanor under section 1170.18 should only be treated as a misdemeanor going forward from the time of reclassification and, thus, remains a qualifying offense for purposes of the DNA Database Act, precluding the offender from obtaining additional relief under section 1170.18 in the form of expungement. Applying the legal reasoning fully set forth in In re C.B., we reach the same conclusion herein and, thus, reject minor's contrary claims.
II. Does Retention of Minor's DNA Samples Violate Equal Protection?
Remaining for our consideration is minor's related contention, not raised in In re C.B., that authorizing the state to retain his DNA submissions would violate the equal protection clause of the state and federal constitutions. (See Cal. Const., Art. I, § 7; U.S. Const., 14th Amend.) Minor reasons as follows: "By its decision, the juvenile court creates two classes of offenders who are similarly situated, yet treated unequally: juvenile offenders who are adjudicated prior to the passage of Prop. 47 are required to submit DNA samples and juvenile offenders adjudicated for the same offense after the passage of the initiative are not required to provide a DNA sample. (In re Eric J. (1979) 25 Cal.3d 522, 530 (first prerequisite to equal protection claim is to show a state classification affecting two or more similarly situated groups in unequal manner.) [¶] Even under the more lenient test for equal protection review, there is no rational basis for treating the DNA collection and retention differently for these two groups of similarly situated offenders." We disagree.
" ' "The concept of the equal protection of the laws compels recognition of the proposition that persons similarly situated with respect to the legitimate purpose of the law receive like treatment." ' [Citation.] 'The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.' [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but 'whether they are similarly situated for purposes of the law challenged.' " ' " (Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.)
Moreover, where, "as here, a disputed statutory disparity implicates no suspect class or fundamental right, 'equal protection of the law is denied only where there is no rational relationship between the disparity of treatment and some legitimate governmental purpose.' " [Citations.] 'This standard of rationality does not depend upon whether lawmakers ever actually articulated the purpose they sought to achieve. Nor must the underlying rationale be empirically substantiated. [Citation.] While the realities of the subject matter cannot be completely ignored [citation], a court may engage in " 'rational speculation' " as to the justifications for the legislative choice [citation]. It is immaterial for rational basis review "whether or not" any such speculation has "a foundation in the record." ' [Citation.] To mount a successful rational basis challenge, a party must ' "negative every conceivable basis" ' that might support the disputed statutory disparity. [Citations.] If a plausible basis exists for the disparity, courts may not second-guess its ' "wisdom, fairness, or logic." ' " (Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881 (Johnson).)
Applying these principles to the case at hand, we first note that, to the extent minor suggests it is always improper for a statutory amendment to lessen a particular punishment or penalty for an offense going forward but not relating back, there is a wealth of case law holding otherwise. (E.g., People v. Floyd (2003) 31 Cal.4th 179, 188 ["Defendant has not cited a single case, in this state or any other, that recognizes an equal protection violation arising from the timing of the effective date of a statute lessening the punishment for a particular offense. Numerous courts, however, have rejected such a claim — including this court"]; accord People v. Cruz (2012) 207 Cal.App.4th 664, 674-680 [rejecting an equal protection challenge to a statutory amendment permitting broader and, in some cases, less severe sentencing options (such as drug diversion programs) only for persons sentenced on or after October 1, 2011].)
Moreover, even accepting for the sake of argument minor's threshold claim that the reclassification procedure under section 1170.18 creates two similarly situated classes of persons for purposes of the DNA Database Act, with the only distinguishing characteristic being whether the persons admitted or were found to have committed a particular offense before or after the statute's operative date, we can nonetheless identify several plausible or reasonably conceivable reasons for this disparate statutory treatment. To name one such reason, the decision to maintain in the state database the DNA samples submitted by defendants whose felony offenses have been reclassified as misdemeanors not only serves the public safety goal identified in Proposition 69 of enhancing criminal investigative tools available to law enforcement, it also avoids the administrative burden of having to purge this database of a significant number of DNA samples if these defendants were found to be entitled to expungement. (See Voter Information Guide, California General Election Tuesday November 2, 2004, Text of Proposed Laws, § II (Findings and Declarations of Purpose), page 135 [noting "the majority of violent criminals have nonviolent criminal prior convictions, and the majority of cold hits and criminal investigation links are missed if a DNA database or data bank is limited only to violent crimes"].)
Accordingly, minor's equal protection challenge fails under the legal authority set forth above. Simply put, minor has failed his burden to establish that the state lacked a rational basis for treating the identified categories of offenders differently for purposes of the DNA Database Act.
Thus, for the reasons provided, we affirm the juvenile court's ruling to deny minor's requests for vacation of the order requiring him to submit DNA samples and for expungement of his samples from the state database following the reclassification of his offense from felony to misdemeanor.
In light of this holding, we need not address the People's argument that minor's appeal is moot and should be dismissed because it does not appear that he has in fact submitted a DNA sample to the state database. In so concluding, we note that, even assuming the People are correct that minor has no DNA sample currently in the state database that could be subject to expungement, the underlying order that he submit the DNA sample - to wit, the order he asks this court to vacate - remains in the record. For this reason, we disagree with the People that no effective relief could be ordered in this case.
DISPOSITION
The juvenile court order denying minor's requests to vacate the order to submit DNA samples and for an order to expunge his DNA records from the state database is affirmed.
/s/_________
Jenkins, J. I concur: /s/_________
McGuiness, P. J. POLLAK, J., Dissenting.
For the reasons set forth in my dissenting opinion in In re C.B. (2016) 2 CalApp.5th 1112, I respectfully dissent. In addition, because defendant has not provided the state's DNA database with a sample of his DNA and there is no indication of any attempt to compel him to do so following the redesignation of his offense as a misdemeanor, the present appeal is likely moot, as the Attorney General suggests.
/s/_________
Pollak, J.