People v. A.M. (In re A.M.)

In re A.M., a Person Coming Under the Juvenile Court Law.

THE PEOPLE, Plaintiff and Respondent, v. A.M., Defendant and Appellant.

A149824

COURT OF APPEAL OF THE STATE OF CALIFORNIA FIRST APPELLATE DISTRICT DIVISION FOUR

December 15, 2017

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. J1000383)

Defendant A.M. filed a petition requesting that the juvenile court reduce his adjudication for felony grand theft (Pen. Code, § 487, subd. (c))¹ to a misdemeanor pursuant to section 1170.18, the resentencing provision of Proposition 47. In his petition, A.M. also asked the court to order that a DNA sample he provided in connection with his adjudication be expunged from the state's DNA databank. The court reduced A.M.'s grand theft adjudication to a misdemeanor but declined to order expungement of his DNA from the state databank. On appeal, A.M. challenges the latter ruling, contending section 1170.18 requires expungement. We affirm.

I. BACKGROUND

On October 13, 2016, A.M. filed a petition to designate his 2010 felony grand theft adjudication (§ 487, subd. (c)) a misdemeanor under Proposition 47 and asked that his DNA sample be expunged from the state's DNA databank. (A.M.'s juvenile case was dismissed in 2013, apparently upon his completion of a term of probation.) On October 18, 2016, the juvenile court reduced A.M.'s felony adjudication to a misdemeanor but denied his request to expunge his DNA sample. A.M. appealed.

II. DISCUSSION

A.M., relying on a 2015 decision by Division One of the Fourth District Court of Appeal, Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 (Alejandro), 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.) (Bill No. 1492) establish that resentencing under section 1170.18 does not provide a basis for expungement.

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.) To determine legislative intent, we first look to the words of the statute and give them their usual and ordinary meaning. (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) 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." (People v. Cole (2006) 38 Cal.4th 964, 975.) "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." (Ibid.)

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. Section 1170.18 only states, in subdivision (k), 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.² (§ 1170.18, subd. (k).)

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 committinga 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 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." (§ 299, subd. (a).) Under subdivision (f) of this statute, "[n]otwithstanding any other law," 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. (§ 299, subd. (f), italics added.)

When Alejandro 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).) 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 . . . ." (§ 299, subd. (f), italics added.) Divisions One and Three of thisDistrict have held that section 299, subdivision (f) "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." (In re J.C. (2016) 246 Cal.App.4th 1462, 1473-1474 (J.C.); accord, In re C.B. (2016) 2 Cal.App.5th 1112, 1123, review granted Nov. 9, 2016, S237801 (C.B.).) In addition, in People v. Harris (2017) 15 Cal.App.5th 47, 56-58, review granted Nov. 21, 2017, S244792 (Harris) (which was issued after the completion of briefing in this appeal), the court that decided Alejandro (Division One of the Fourth District) adopted the position taken by Divisions One and Three of this District, holding that, under the current version of section 299, subdivision (f), reclassification of an offense under section 1170.18 does not require expungement of the offender's DNA sample.

Despite the language of section 299, subdivision (f), A.M. contends a court's redesignation of an offense under Proposition 47 does trigger a right to expungement of the offender's DNA records because section 1170.18, subdivision (k) states that, upon redesignation, an offense "shall be considered a misdemeanor for all purposes," except with regard to restrictions on ownership or possession of firearms. A.M. argues this provision requires expungement of his DNA samples because a juvenile is not required to submit such samples unless he or she is found to have committed a felony. The decision in Alejandro supports A.M.'s position, as the court there held that a felony redesignated a misdemeanor pursuant to Proposition 47 "no longer qualifies as an offense permitting DNA collection" and is therefore "outside the matters contemplated by the Penal Code DNA expungement statute." (Alejandro, supra, 238 Cal.App.4th at p. 1229.) The Alejandro court reasoned that, because section 1170.18 specifies only the firearm restriction as an exception to "the otherwise all-encompassing misdemeanor treatment of the offense," courts...