People v. Harris

15 Cal.App.5th 47

222 Cal.Rptr.3d 781

The PEOPLE, Plaintiff and Respondent,

v.Taleia HARRIS, Defendant and Appellant.

D070711

Court of Appeal, Fourth District, Division 1, California.

Filed September 6, 2017

Randy Mize, Chief Deputy Public Defender, and Michael Begovich, Vista, Deputy Public Defender for Defendant and Appellant.

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y. Lane-Erwen, Deputy Attorneys General for Plaintiff and Respondent.

BENKE, J., Acting P.J.

In December 2013, Taleia Harris pled guilty to felony grand theft from a person for stealing a wallet from the victim's person. ( Pen. Code, ¹ § 487, subd. (c).) In November 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools Act (Proposition 47) ( Cal. Const., art. II, § 10, subd. (a)), which reduced certain crimes from felonies to misdemeanors and allowed a person convicted of one of those felonies before its passage to petition the court to reduce the felony conviction to a misdemeanor and be resentenced. Harris successfully petitioned to have her felony conviction reduced to a misdemeanor under Proposition 47, but the court denied her motion to expunge the DNA sample that law enforcement took by mouth swab when she was booked on her felony charge.

Harris appeals from the order denying her motion to expunge her DNA sample from the state's database. She contends that when a felony is reduced to a misdemeanor under Proposition 47, the state is not permitted to retain an adult misdemeanant's previously collected DNA sample and genetic profile, and that the state's retention of her DNA sample and genetic profile violates her state and federal constitutional right to equal protection of the laws and right of privacy. We affirm.

DISCUSSION

Harris contends that the reduction of her felony conviction to a misdemeanor under Proposition 47 required the court to grant her motion to expunge her DNA from the state's DNA database.² Harris relies primarily on Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 189 Cal.Rptr.3d 907 ( Alejandro N. ), in which this court concluded that because section 1170.18, subdivision (k), provides that a felony that is reduced to a misdemeanor under Proposition 47 "shall be considered a misdemeanor for all purposes," DNA collected in connection with the offense is properly expunged because "the reclassified misdemeanor offense ... no longer qualifies as an offense permitting DNA collection. " ( Alejandro N., at p. 1229, 189 Cal.Rptr.3d 907, original italics.)

I. Relevant Law

A. Proposition 47

"The voters enacted Proposition 47 on November 4, 2014, effective the next day. [Citations.] As summarized by the Legislative Analyst, the proposition ‘reduces penalties for certain offenders convicted of nonserious and nonviolent property and drug crimes' and ‘allows certain offenders who have been previously convicted of such crimes to apply for reduced sentences.’ " ( In re J.C. (2016) 246 Cal.App.4th 1462, 1469, 201 Cal.Rptr.3d 731 ( J.C. ).) Proposition 47 added section 490.2, which reclassifies grand theft violations under section 487 into misdemeanors when the value of the stolen property is $950 or less.³

"Proposition 47 also added section 1170.18 [citation], which provides a remedy for persons previously convicted of a felony ‘who would have been guilty of a misdemeanor under [Proposition 47]’ had it been in effect at the time of their offense. (§ 1170.18, subd. (a)). Under section 1170.18, subdivision (a), a person ‘currently serving a sentence’ for such a conviction ‘may petition for a recall of sentence’ and ‘request resentencing’ in accordance with the statutes as amended by Proposition 47. Section 1170.18, subdivision (b) specifies the procedure for a trial court to follow upon receiving such a petition. If the trial court finds ‘the petitioner satisfies the criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner resentenced to a misdemeanor ... , unless the court, in its discretion, determines that resentencing the petitioner would pose an unreasonable risk of danger to public safety.’ " (§ 1170.18, subd. (b).)

"Section 1170.18, subdivision (k) imposes only one qualification on the recall of these felony convictions: ‘Any felony conviction that is recalled and resentenced under subdivision (b) ... 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 [for being a felon in possession of a firearm].’ " ( J.C., supra , 246 Cal.App.4th at p. 1470, 201 Cal.Rptr.3d 731.)

B. DNA collection

California's DNA and Forensic Identification Database and Data Bank Act of 1998 (Database Act), section 295 et seq, "requires the collection of tissue samples for DNA analysis from all persons convicted of felonies (§§ 295, 296, subd. (a)(1)), adults arrested or charged with a felony (§ 296, subd. (a)(2)(C)), and all persons required to register as a sex or arson offender as a result of the commission of a felony or misdemeanor (id. , subd. (a)(3)). Except as provided in section 296, subdivision (a)(3), persons convicted solely of misdemeanors are not required to provide DNA samples." ( J.C., supra , 246 Cal.App.4th at p. 1470, 201 Cal.Rptr.3d 731.) Subdivision (b) of section 296 provides that the requirements for DNA submission "shall apply to all qualifying persons regardless of sentence imposed ... or any other disposition rendered in the case of an adult or juvenile tried as an adult...."

Two months after this court issued Alejandro N. , the Governor signed into law Assembly Bill No. 1492 (2015–2016 Reg. Sess.) (Bill No. 1492), which amended subdivision (f) of section 299, the statute that governs expungement of DNA records from the state data bank. ( J.C., supra , 246 Cal.App.4th at pp. 1470, 1472, 201 Cal.Rptr.3d 731.) "Prior to the enactment of Bill No. 1492, section 299, former subdivision (f) stated: ‘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 was found not guilty by reason of insanity or pleads no contest to a qualifying offense as defined in subdivision (a) of Section 296.’ " ( Id . at pp. 1470–1471, 201 Cal.Rptr.3d 731.) Bill No. 1492 amended subdivision (f) of section 299 by adding section 1170.18 to its express list of statutes that do not authorize a court judge to relieve a person of the administrative duty to provide a DNA sample if convicted of a qualifying offense. ( J.C., at p. 1472, 201 Cal.Rptr.3d 731.)⁴

II. The Court Correctly Denied Harris's Motion to Expunge Her DNA

A. Statutory construction

Initiative measures are subject to the rules and canons of statutory interpretation ( Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1212, 246 Cal.Rptr. 629, 753 P.2d 585 ), and statutory interpretation is a question of law subject to de novo review on appeal. ( Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176, 86 Cal.Rptr.2d 917.) " ‘We begin as always "with the fundamental premise that the objective of statutory interpretation is to ascertain and effectuate legislative [or voter] intent." [Citation.] To discover that intent we first look to the words of the statute, giving them their usual and ordinary meaning. [Citations.] "Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history." ’ " ( Ibid. )

Proposition 47 does not mention DNA collection or expungement. Section 296 of the DNA Database Act requires "any adult person arrested or charged with any felony offense" to provide a buccal swab DNA sample. (§ 296, subd. (a)(2)(C).) The DNA submission requirement applies "to all qualifying persons regardless of sentence imposed ... or any other disposition rendered in the case of an adult or juvenile tried as an adult...." (Id. at subd. (b), italics added.) Section 299 provides that a person is entitled to expungement of his or her DNA sample from the state DNA database "if the person has no past or present offense or pending charge which qualifies that person for inclusion [in the database] and there otherwise is no legal basis for retaining the specimen or sample or searchable profile." (§ 299, subd. (a), italics added.)⁵ As noted, under section 299, subdivision (f), "[n]otwithstanding any other law, including [section] ... 1170.18 ," a court is prohibited from relieving a person of his or her DNA submission duty if the person has been found guilty of qualifying offense under section 296, subdivision (a). (§ 299, subd. (f), italics added.)

Under the plain meaning of subdivisions (b) and (f) of section 299, Harris is not entitled to DNA expungement because she has a past qualifying offense under section 296, subdivision (a)-i.e., she was convicted of an offense that qualified her for inclusion in the DNA database when her DNA sample was collected. The subsequent reclassification of her offense to a nonqualifying offense does not change the fact that at the time her DNA sample was taken, the taking was lawful because it was based on an offense that qualified for DNA submission. As noted in In re C.B. (2016) 2 Cal.App.5th 1112, 206 Cal.Rptr.3d 785 ( C.B. ),⁶ "the DNA sample submission requirement under the DNA Database Act does not necessarily hinge on whether a person is convicted of a felony or misdemeanor. Rather, under the relevant statutory language, the act's triggering point is when ‘[a]ny person, ... is convicted of or pleads guilty or no contest to any felony...