Opinion
A151133
10-15-2018
In re E.B., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. E.B., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco City and County Super. Ct. No. JW15-6233)
E.B. (minor) appeals from a juvenile court order denying her request to expunge her DNA sample from the state database following a reduction of her conviction to an infraction under Proposition 64 (Health & Saf. Code, § 11361.8). We affirm.
Proposition 64, the Control, Regulate and Tax Adult Use of Marijuana Act, was adopted by voters on November 8, 2016. (See People v. Fews (Sept. 24, 2018, A151727) ___ Cal.App.5th ___, ___ [2018 Cal.App. Lexis 848 at p. *7].) "Proposition 64 was intended to decriminalize certain marijuana offenses . . . ." (People v. Laird (Aug. 30, 2018, D072642) ___ Cal.App.5th ___, ___ [2018 Cal.App. Lexis 841 at p. *6] (Laird).) We requested and received supplemental briefing on Laird and In re C.B. (2018) 6 Cal.5th 118.
FACTUAL AND PROCEDURAL BACKGROUND
A 2015 juvenile wardship petition alleged the minor sold or transported marijuana and possessed marijuana for sale. In 2016, the minor admitted felony possession of marijuana for sale; the court placed her on nonwardship probation and ordered her to submit a DNA sample to the state database. The minor was later adjudged a ward of the court (Welf. & Inst. Code, § 602). In November 2016, she filed a petition pursuant to Proposition 64. In January 2017, the court reclassified the minor's felony offense to an infraction and ordered other relief but ultimately declined to expunge her DNA from the state database.
DISCUSSION
The minor contends her DNA must be expunged from the state database because the court redesignated her offense as an infraction "for all purposes" under Proposition 64. She also contends retention of her DNA sample violates her right to equal protection.
The Fourth District Court of Appeal recently considered and rejected these arguments. (Laird, supra, ___ Cal.App.5th ___ .) In Laird, the defendant pled guilty to a felony count of possessing not more than eight ounces of concentrated cannabis; the court later reduced the offense to a misdemeanor after the defendant completed informal probation. (Id. at p. ___ [2018 Cal.App. Lexis 841 at p. *2].) In March 2017, the defendant petitioned "to set aside the misdemeanor conviction and to designate an infraction under Proposition 64, which the court did." (Ibid.) The defendant then moved to have his DNA sample expunged from the state database. The trial court denied the expungement request and the defendant appealed. (Ibid.)
In a thorough and well-reasoned opinion, Laird held Proposition 64 does not require DNA expungement. As the court explained, "Proposition 64 was intended to decriminalize certain marijuana offenses by reducing sentences, dismissing marijuana-related offenses from criminal records, and prohibiting refiling of charges after prior marijuana-related convictions are reduced. [Citation.] To conclude DNA retention is included within the goal of reduced penalties would require us to conclude DNA collection and retention are punishments. However, DNA collection 'is not punitive, does not involve concepts of retroactivity or ex post facto implications, but is confined to a simple administrative identifying procedure akin to fingerprinting or keeping ones' whereabouts known to law enforcement.' [Citations.] Because DNA collection occurs at the time of the felony arrest ([Pen. Code,] § 296.1) and is administrative [citations] the redesignation to an infraction for all purposes under Proposition 64 does not relate back to the initial charge for purposes of DNA expungement." (Laird, supra, ___ Cal.App.5th at pp. ___-___ [2018 Cal.App. Lexis 841 at pp. *6-*7].)
Next, Laird concluded Penal Code "sections 296 and 299 require a DNA sample from an offender who is convicted of or pleads guilty to a felony, and expungement of the sample is not permitted if the offender is guilty of a past or present qualifying offense. [Citations.] Subdivision (f) of section 299 places these limitations on expungement notwithstanding any other law . . . . [¶] [The defendant] was a 'qualifying person' under section 296 because he was arrested and charged with a felony offense and because he pleaded guilty to a felony offense. [Citations.] The issue is whether, based on the redesignation of the offense to an infraction for all purposes, his status as a 'qualifying person' is retroactively removed, meaning expungement is required because he has 'no past or present offense or pending charge which qualifies [him] for inclusion within' the database. [Citation.] While [the defendant's] felony conviction was redesignated an infraction for all purposes, the retroactive impact is limited to ameliorate the punitive effects of the conviction. [Citation.] DNA collection and retention [are] not punitive. [Citation.] Thus, the redesignation has no effect on the DNA retention." (Laird, supra, ___ Cal.App.5th at pp. ___-___ [2018 Cal.App. Lexis 841 at pp. *9-*10, fn. omitted].)
Finally, Laird held retention of the defendant's DNA sample did not violate equal protection. The court determined the defendant was "not in the same class of persons as the post-Proposition 64 individuals age 18 to 20 who are convicted of unlawful possession of concentrated cannabis. [The defendant] pleaded guilty to and was convicted of a felony, which places him in a class distinct from post-Proposition 64 individuals who do not plead guilty to and are not convicted of a felony at any point in time. The distinction is reasonable because the collection of DNA is administrative and satisfies a legitimate purpose . . . . Though [the defendant] contends that before and after Proposition 64, the penalties for the same offense are different because what was once a felony is now an infraction (see Health & Saf. Code, § 11361.8), the inclusion of [the defendant's] DNA in the state's data bank is administrative not punitive. . . . Thus, this distinction does not form the basis of an equal protection claim." (Laird, supra, ___ Cal.App.5th at pp. ___-___ [2018 Cal.App. Lexis 841 at pp. *14-*15, fn. omitted].) Laird also determined "disparate treatment [was] justified," even assuming the two groups were similarly situated. (Id. at p. ___ [2018 Cal.App. Lexis 841 at p. *15].) The court explained that "the purposes provided for collecting and retaining the DNA of all individuals who plead guilty to a felony serve a rational basis, even when those convictions are later reduced to a charge that would not have originally required DNA collection." (Id. at p. ___ [2018 Cal.App. Lexis 841 at p. *17].)
The minor's supplemental briefing has not persuaded us Laird was wrongly decided or that it is distinguishable. We adopt Laird's reasoning and conclude the court properly denied the minor's DNA expungement request after reducing her felony violation to an infraction pursuant to Proposition 64.
For the first time in her reply brief, and in summary fashion, the minor argues her DNA sample should be expunged because the court dismissed her wardship petition pursuant to Welfare and Institutions Code section 786. The minor did not raise Welfare and Institutions Code section 786 as a basis for expungement in the trial court or in her opening brief. We decline to address the merits of this conclusory argument, raised for the first time in reply brief (People v. Tully (2012) 54 Cal.4th 952, 1075), particularly where the minor offers no justification for failing to present the argument before. (People v. Selivanov (2016) 5 Cal.App.5th 726, 794.) --------
Our conclusion is supported by In re C.B., supra, 6 Cal.5th 118, where the California Supreme court interpreted nearly identical redesignation language in Proposition 47 and held that defendants whose felony theft adjudications had been reduced to misdemeanors "for all purposes" under Proposition 47 were not entitled to DNA expungement. (In re C.B., at pp. 122-123, 133.) In re C.B. concluded Penal Code "[s]ection 296's imposition of a duty to submit a sample hinges on the classification of the offense at the time of adjudication. A later reclassification to a misdemeanor leaves that former duty undisturbed." (In re C.B., at p. 129, italics omitted.) As the court explained, "redesignation of a category of offenses can terminate the duty to submit samples. But redesignation 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. There is no inconsistency between treating a redesignated offense as a misdemeanor for all purposes and declining to expunge a previously submitted DNA sample." (Ibid., italics omitted.) Our high court also held the retention of the DNA sample did not violate equal protection. (Id. at pp. 133-135.)
In re C.B.'s reasoning applies with equal force here. "[T]he fundamental structure of [Proposition 64] is the same as Propositions 36 and 47—all three initiatives reduce the penalties for designated offenses and provide a re-sentencing mechanism for persons sentenced under the old law. Accordingly, to the extent legal issues are addressed under one of the initiatives, their resolution likely will inform the resolution of the same issue in the context of other initiatives." (Couzens & Bigelow, Proposition 64: "Adult Use of Marijuana Act" Resentencing Procedures and Other Selected Provisions (Nov. 2016) pp. 4-5) <http://www.courts.ca.gov/documents/prop64-Memo-20161110.pdf> [as of Oct. 15, 2018].) The minor suggests we "not follow In re C.B." We cannot. We are bound to follow the decisions of the California Supreme Court. (See Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455.) Applying Laird and In re C.B., we conclude the court properly denied the minor's request to expunge her DNA sample from the state database.
DISPOSITION
The order denying the minor's request to expunge her DNA from the state database is affirmed.
/s/_________
Jones, P. J. We concur: /s/_________
Needham, J. /s/_________
Bruiniers, J.