In re S.B.

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Filed 4/19/17 In re S.B. CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re S.B., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
S.B.,
Defendant and Appellant.
A145488
(Contra Costa County
Super. Ct. No. J1301068)
MEMORANDUM OPINION1
S.B. (Minor) appeals an order denying his request to expunge his DNA from the
state’s DNA database.
In 2013, Minor admitted felony grand theft (Pen. Code,2 § 487, subd. (c)) and
misdemeanor battery (§ 242) and was adjudged a ward of the court. He provided a DNA
sample pursuant to the DNA and Forensic Identification Database and Data Bank Act of
1988. (§ 295 et seq.; § 296.1.) In 2015, Minor petitioned to have his felony offense
reclassified as a misdemeanor pursuant to Proposition 47, the Safe Neighborhood and
1 We resolve this case by a memorandum opinion pursuant to section 8.1(1), (2),
California Standards of Judicial Administration. The factual circumstances underlying
this case are known to the parties and are not pertinent to the narrow issues before us on
appeal.
2 All undesignated statutory references are to the Penal Code.

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Schools Act, and to have his DNA expunged from the state’s DNA database. (§ 295 et
seq.; see § 490.2.) The juvenile court granted Minor’s request to reduce the felony
charge to a misdemeanor but denied his request to remove the DNA sample and expunge
the data from the database. Minor contends the juvenile court erred and that it deprived
him of his constitutional right to equal protection in denying his request.
Our colleagues in Division One have concluded DNA expungement is not
appropriate in circumstances such as these, and we agree. (In re. J.C. (2016)
246 Cal.App.4th 1462.) Briefly stated:
Proposition 47, effective November 5, 2014, reduces penalties for certain
nonserious and nonviolent property crimes and allows those previously convicted of such
crimes to apply for reduced sentences. (In re J.C., supra, 246 Cal.App.4th at p. 1469.)
Section 1170.18, subdivision (k), added by Proposition 47, provides: “Any felony
conviction that is recalled and resentenced under subdivision (b) or designated a
misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes
[except certain restrictions regarding firearms].”
California also requires that DNA samples be collected from all persons convicted
of felonies, including juveniles adjudicated under Welfare and Institutions Code section
602 for committing any felony offense. (§§ 295, 296, subd. (a)(1); In re J.C., supra,
246 Cal.App.4th at p. 1470.) Under section 299, a person can obtain expungement of his
or her DNA records from the databank under certain circumstances, including if a
qualifying conviction is reversed and the case dismissed. (§ 299, subd. (b)(2).)
At the time the trial court made its ruling in this case, 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.” (See In re J.C., supra, 246 Cal.App.4th at pp. 1470-1471.) Our
colleagues explained in In re J.C. that this provision “has been interpreted to preclude a

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defendant from obtaining expungement of his or her DNA record despite the reduction of
a felony conviction for a wobbler offense to a misdemeanor.” (Id. at p. 1471, citing
Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 820-823.) But in Alejandro N. v.
Superior Court (2015) 238 Cal.App.4th 1209, 1226-1230 (Alejandro N.), Division One of
the Fourth Appellate District concluded that section 299 did provide a basis for DNA
expungement when an offense was redesignated as a misdemeanor under Proposition 47.
In a thorough and well-reasoned decision, our colleagues in In re J.C. concluded
that Alejandro N. was superseded by the Legislature’s amendment of section 299,
subdivision (f), which followed closely on the heels of the decision in Alejandro N. As
amended by Assembly Bill No. 1492 (2015-2016 Reg. Sess.) (Bill No. 1492), section
299, subdivision (f) now inserts section “1170.18” among the statutes that do not
authorize a judge to relieve a person of the duty to provide a DNA sample. (In re J.C.,
supra, 246 Cal.App.4th at pp. 1469, 1472.) The effect of this amendment was to
“prohibit[] the expungement of a defendant’s DNA record when his or her felony offense
is reduced to a misdemeanor pursuant to section 1170.18.” (Id. at p. 1475.) The court
also held that this amendment merely clarified, rather than changed, existing law, and
hence could properly be applied to events that occurred before its effective date. (Id. at
pp. 1475-1482.) Finally, the court concluded that Bill No. 1492 was not an improper
amendment of Proposition 47, both because it clarified, rather than amended, Proposition
47 and because, even if it were treated as an amendment, it was not inconsistent with the
intent of Proposition 47. (Id. at pp. 1482-1483.) The court thus concluded the trial court
there had properly refused the minor’s request for expungement. (Id. at pp. 1467-1468.)
Our colleagues in Division Three have recently agreed with In re J.C.’s reasoning
and concluded the juvenile court properly denied a DNA expungement request after
reducing a felony to a misdemeanor pursuant to Proposition 47. (In re C.H. (2016)
2 Cal.App.5th 1139, 1143-1152, review granted Nov. 16, 2016, S237762; In re C.B.
(2016) 2 Cal.App.5th 1112, 1117-1128, review granted Nov. 9, 2016, S237801; but see
In re C.B. at pp. 1128-1138 (dis. opn. of Pollak, J.).) We also agree with the reasoning of
In re J.C. and will follow it here.

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Minor also contends the order denying expungement deprives him of equal
protection because he would not have had to provide a DNA sample if Proposition 47 had
been in effect at the time he was adjudicated a ward. Our colleagues in Division Three
recently rejected a similar contention, stating: “ ‘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.’ ” ’ [Citation.]” (In re C.H., supra,
2 Cal.App.5th at p. 1151, review granted.) The court found such a rational relationship:
“Preserving the integrity and vitality of the state’s DNA database system provides a
rational basis to retain the DNA and profiles of offenders who were convicted before
enactment of proposition 47, even if they would not be required to provide DNA if
convicted after its effective date. It is reasonable to conclude that a more comprehensive
database, with samples from more offenders, is a more effective and utilitarian database.”
(Id. at p. 1152.) We agree with this reasoning and adopt it here.
The trial court properly denied Minor’s request to expunge his DNA from the state
database.
DISPOSITION
The order is affirmed.

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_________________________
Rivera, J.
We concur:
_________________________
Reardon, Acting P.J.
_________________________
Streeter, J.

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People v. S.B. (A145488)

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