Opinion
A146121
04-28-2017
In re ERIC F., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. ERIC F., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J14-00583)
BACKGROUND
In July 2014, Eric F. (the minor) pled no contest to one count of attempted grand theft (Pen. Code, §§ 487, subd. (c), 664), a felony at that time. In connection with his plea, the minor was required to submit a DNA sample to the state databank. (§§ 296, subd. (a)(1), 296.1.) Thereafter, the electorate passed the Safe Neighborhoods and Schools Act (Proposition 47) in November 2014, which reduced certain crimes—including theft of property valued at less than $950—from felonies to misdemeanors. (See People v. Rivera (2015) 233 Cal.App.4th 1085, 1091; § 490.2.) As a consequence, the minor petitioned to have his violation reduced to a misdemeanor and to have his DNA record expunged from the state database. The juvenile court reduced the minor's violation to a misdemeanor, but denied his DNA expungement request. The minor's motion for reconsideration of the DNA issue in light of Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 (Alejandro N.) was similarly denied. The minor now appeals, again arguing—based on Alejandro N.—that since he is no longer a felon and since misdemeanants are not required by law to provide a DNA sample for the state database, his existing sample should be expunged. We disagree and affirm.
All statutory references are to the Penal Code unless otherwise indicated.
When the record of a person's DNA sample is expunged, "his or her DNA specimen and sample [is] destroyed and [his or her] searchable database profile [is] expunged from the databank program." (§ 299, subd. (a).)
DISCUSSION
California law requires "any juvenile who is adjudicated under section 602 of the Welfare and Institutions Code for committing any felony offense" to provide a DNA sample so that his or her DNA profile may be included in the state databank. (§ 296, subd. (a)(1).) Subject to exceptions not relevant here (§ 296, subd. (a)(3)), juveniles who are found to have committed misdemeanors are not required to provide DNA samples. (In re J.C. (2016) 246 Cal.App.4th 1462, 1470 (J.C.).) Under section 299, subdivision (a), a person can seek expungement of his or her DNA record "if the person has no past or present offense or pending charge which qualifies that person for inclusion within the [state databank] and there otherwise is no legal basis for retaining the specimen or sample or searchable profile." In Alejandro N., supra, 238 Cal.App.4th 1209, the Fourth District Court of Appeal held that a person whose felony offense has been redesignated as a misdemeanor under Proposition 47 is entitled to expungement of his or her DNA record under this provision if there is no other basis for retaining it. (Id. at pp. 1227, 1230.)
At the time Alejandro N. was decided, section 299, subdivision (f) provided: "Notwithstanding any other provision of law, including Sections 17, 1203.4, and 1203.4a, a judge is not authorized to relieve a person of the separate administrative duty to provide [a DNA sample] if a person has been found guilty or was adjudicated a ward of the court by a trier of fact of a qualifying offense as defined in subdivision (a) of Section 296, or . . . pleads no contest to a qualifying offense as defined in subdivision (a) of Section 296." As our colleagues in Division One recently opined: "The unmistakable implication of the reference to these statutes in section 299(f) is that the section was intended to prohibit trial courts, when reducing or dismissing charges pursuant to the listed statutes, from also expunging the DNA record given in connection with the original felony conviction." (J.C., supra, 246 Cal.App.4th at pp. 1473-1474, italics added.)
About two months after the Alejandro N. decision was issued, the governor signed a bill that, among other things, amended section 299, subdivision (f), to insert "1170.18" into the list of statutes that do not authorize a judge to relieve a person of the duty to provide a DNA sample. (Stats. 2015, ch. 487 (Assem. Bill No. 1492).) Thus, section 299, subdivision (f), now provides: "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 [a DNA sample] if a person . . . was adjudicated a ward of the court by a trier of fact of a qualifying offense . . . ."
Section 1170.18 sets forth the procedure for requesting resentencing under Proposition 47. (J.C., supra, 246 Cal.App.4th at p. 1470.)
The primary purpose of A.B. 1492 was to respond to People v. Buza (2014) 231 Cal.App.4th 1446, review granted Feb. 18, 2015, S223698, which found the statutory requirement for DNA sampling upon arrest to violate the state constitution. (J.C., supra, 226 Cal.App.4th at pp. 1471-1472.) The portion of the bill amending subdivision (f) of section 299 to add a reference to section 1170.18 is not explained in the bill's legislative history. (J.C., supra, 226 Cal.App.4th at p. 1472.)
In J.C., supra, 246 Cal.App.4th at page 1475, Division One concluded that the purpose of this amendment to section 299, subdivision (f) was clear: "[B]y inserting a reference to section 1170.18 in section 299(f), the Legislature has prohibited the expungement of a defendant's DNA record when his or her felony offense is reduced to a misdemeanor pursuant to section 1170.18." The J.C. court further opined that the amendment, effective January 1, 2016, was a clarification of existing law and did not implicate the rule that statutory amendments ordinarily may not be applied retroactively. (J.C., supra, 246 Cal.App.4th at pp. 1475-1482.)
Recently, our colleagues in Division Three have reached the same conclusion as the court in J.C. (In re C.H. (2016) 2 Cal.App.5th 1139, 1143-1151, review granted Nov. 16, 2016, S237762; In re C.B. (2016) 2 Cal.App.5th 1112, 1117-1128 (C.B.), review granted Nov. 9, 2016, S237801; but see C.B., supra, 2 Cal.App.5th at pp. 1128-1138 (Pollak, Acting P. J., dissenting).) We find the reasoning of these cases to be persuasive. (See Cal. Rules of Court, rule 8.1115(e) [cases pending on review may be cited for persuasive value].) Because the amendment to section 299, subdivision (f), applies to the minor's case and precludes the expungement of his DNA record based on the reduction of his felony theft offense to a misdemeanor under Proposition 47, the trial court's order denying expungement was proper.
DISPOSITION
The juvenile court's order denying the minor's request for an order to expunge his DNA records from the state database is affirmed.
/s/_________
REARDON, ACTING P. J. We concur: /s/_________
RIVERA, J. /s/_________
STREETER, J.