In re J.E.

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Filed 9/1/16 In re J.E. CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 THREE
In re J.E., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
J.E.,
Defendant and Appellant.
A146105
(Contra Costa County
Super. Ct. No. J11-00644)
As in a related case, In re C.B. (Aug. 30, 2016, A146277) __ Cal.App.4th __
[2016 Cal.App. Lexis 725], the defendant in this case, J.E. (minor), appeals from a
juvenile court order denying his request to expunge DNA samples from the state’s DNA
database after his felony offense was redesignated a misdemeanor pursuant to Proposition
47, the Safe Neighborhoods and Schools Act, a measure that reduced the classification of
certain crimes.1 According to minor, his DNA samples should be expunged because, had
his offense been classified as a misdemeanor at the time he admitted committing it, he
would not have been required to submit the samples in the first place. Following the
1 Unless otherwise stated, all statutory citations herein are to the Penal Code.

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same legal reasoning applied by this court in In re C.B., we reject minor’s challenge.2
Accordingly, we affirm the juvenile court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
On November 2, 2010, a juvenile wardship petition was filed pursuant to Welfare
and Institutions Code section 602, alleging that minor committed second degree robbery
in violation of sections 211 and 212.5 (count one), and false imprisonment in violation of
section 236 (count two). This petition was amended on November 22, 2010, to allege
minor committed felony grand theft in violation of section 487, subdivision (c) (count
three). On the same date, minor admitted the felony grand theft count and the remaining
counts were dismissed. His maximum term of confinement was calculated to be three
years.
Minor’s case was then transferred from the County of San Francisco to Contra
Costa County for disposition and adjudication on a previously-filed juvenile wardship
petition, wherein it was alleged that minor committed the offenses of criminal threats and
resisting arrest. After minor admitted the misdemeanor resisting arrest allegation and the
criminal threats allegation was dismissed, the matter was transferred back to the County
of San Francisco, where his mother was residing, for disposition. The juvenile court
thereafter declared minor a ward of the court and placed him on probation in the home of
his mother subject to various terms and conditions. Among these terms and conditions
was the requirement that minor submit to DNA testing.
After several subsequent transfers, minor filed a petition for relief under section
1170.18 in Contra Costa County on June 4, 2015, requesting that his felony grand theft
adjudication be redesignated as a misdemeanor, that the order requiring submission of
DNA samples be vacated, and that his DNA samples be expunged from the state
database. Following a hearing, the juvenile court granted minor’s request to redesignate
2 We decline to restate in full our detailed analysis in In re C.B. in rejecting the
identical legal challenge made herein. However, minor does raise in this case an
additional argument in seeking reversal of the juvenile court’s order based upon the equal
protection clause of the state and federal constitutions that was not raised in the related
case. We address, and ultimately reject, this argument separately below.

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his felony offense as a misdemeanor, but denied his requests to vacate the order to submit
DNA samples and to expunge his samples from the state database. On August 27, 2015,
after his motion for reconsideration was denied, minor filed a timely notice of appeal.
DISCUSSION
Minor’s principle challenge on appeal is identical to the challenge raised in the
aforementioned related case, In re C.B. — to wit, that the juvenile court misconstrued
section 1170.18, which was added upon passage of Proposition 47, when finding that he
was not entitled to have his DNA samples expunged from the state database upon
reclassifying his felony offense as a misdemeanor. According to minor, his DNA
samples should be expunged because, had his offense been classified as a misdemeanor at
the time he admitted committing it, the juvenile court would have had no authority under
the DNA and Forensic Identification Data Base and Data Bank Act of 1998, section 295
et seq. (DNA Database Act or Proposition 69), to order him to submit DNA.3 (See § 296,
subd. (a).) In a related argument, minor adds that the court’s failure to expunge his DNA
samples is a violation of his constitutional right to equal protection under the law
because, had he committed the same offense after passage of Proposition 47, he would
not have been subject to the legal duty to submit DNA. We discuss each of these
arguments to the extent appropriate below.
I. Does Reclassification of Minor’s Offense Under Section 1170.18 Entitle Him
to DNA Expungement?
Minor’s first argument is that, following reclassification of his felony offense as a
misdemeanor, he no longer has a “qualifying offense” that would subject him to the duty
to submit DNA under the DNA Database Act. As such, minor contends, the order
requiring him to submit DNA should be vacated and his DNA samples should be
expunged. (See § 296, subd. (a).) This argument is, in essence, one of statutory or voter-
3 The DNA Database Act was amended in 2004 through passage of Proposition 69
to “substantially expand[] the range of persons who must submit DNA samples to the
state’s forensic identification databank.” (Good v. Superior Court (2008) 158
Cal.App.4th 1494, 1498.)

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initiative interpretation, reviewed on appeal de novo. (Evangelatos v. Superior Court
(1988) 44 Cal.3d 1188, 1212 [rules of statutory interpretation apply to voter initiatives];
Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176.) Accordingly, based upon the
fundamental rule of statutory construction, we must ascertain the intent of the Legislature
so as to effectuate the purpose of the law. (Preston v. State Bd. of Equalization (2001) 25
Cal.4th 197, 213.) “To determine the intent of legislation, we first consult the words
themselves, giving them their usual and ordinary meaning.” (DaFonte v. Up-Right, Inc.
(1992) 2 Cal.4th 593, 601.) “We do not, however, consider the statutory language in
isolation; rather, we look to the entire substance of the statutes in order to determine their
scope and purposes. [Citation.] That is, we construe the words in question in context,
keeping in mind the statutes’ nature and obvious purposes. [Citation.] We must
harmonize the various parts of the enactments by considering them in the context of the
statutory frame work as a whole. [Citation.] 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.” (People v. Cole (2006) 38 Cal.4th
964, 975.)
According to minor, Proposition 47’s directive that reclassified offenses be treated
as misdemeanors “for all purposes” (§ 1170.18, subd. (k)) means reclassified offenses are
no longer qualifying offenses for purposes of the DNA Database Act. (See § 296, subd.
(a)(1) [“Any person, including any juvenile, who is convicted of or pleads guilty or no
contest to any felony offense, or is found not guilty by reason of insanity of any felony
offense, or any juvenile who is adjudicated under [§ 602] for committing any felony
offense” shall provide DNA samples for law enforcement identification analysis].) As
such, minor reasons, the juvenile court erred in finding otherwise.
In addition, minor argues the Legislature’s recent enactment of Assembly Bill
No. 1492 (2015–2016 Reg. Sess.) (hereinafter, Bill No. 1492), which, among other
things, amended section 299, subdivision (f) to state that a trial court is not authorized to
relieve a defendant of his or her administrative duty to submit DNA when granting relief

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under section 1170.18, is irrelevant to his case because: (1) the amendment was not
intended to address DNA expungement, a separate subject covered by a different
provision (to wit, section 299 (e)), and (2) in any event, the amendment constitutes an
unconstitutional and, thus, invalid legislative alteration of Proposition 47.
We just recently addressed and rejected these arguments in In re C.B. (Aug. 30,
2016, A146277) __ Cal.App.4th __ [2016 Cal.App. Lexis 725]. In doing so, we
concluded a felony offense reclassified as a misdemeanor under section 1170.18 should
only be treated as a misdemeanor going forward from the time of reclassification and,
thus, remains a qualifying offense for purposes of the DNA Database Act, precluding the
offender from obtaining additional relief under section 1170.18 in the form of
expungement. Applying the legal reasoning fully set forth in In re C.B., we reach the
same conclusion herein and, thus, reject minor’s contrary claims.
II. Does Retention of Minor’s DNA Samples Violate Equal Protection?
Remaining for our consideration is minor’s related contention, not raised in In re
C.B., that authorizing the state to retain his DNA submissions would violate the equal
protection clause of the state and federal constitutions. (See Cal. Const., Art. I, § 7; U.S.
Const., 14th Amend.) Minor reasons as follows: “A juvenile offender adjudicated prior
to passage of Proposition 47 is similarly situated to a juvenile offender adjudicated for the
same offense after passage of the initiative. Both groups of juveniles have been
adjudicated pursuant to the same justice system for the same conduct. The only
difference is that one group was found to have broken the law prior to November 4, 2014,
and the other group acted unlawfully afterwards. Even under the most lenient standard
for equal protection review, there is no rational basis for treating the DNA collection and
retention differently for these two groups of offenders.” We disagree.
The relevant constitutional principles are not in dispute. “ ‘ “The concept of the
equal protection of the laws compels recognition of the proposition that persons similarly
situated with respect to the legitimate purpose of the law receive like treatment.” ’
[Citation.] ‘The first prerequisite to a meritorious claim under the equal protection clause
is a showing that the state has adopted a classification that affects two or more similarly

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situated groups in an unequal manner.’ [Citations.] This initial inquiry is not whether
persons are similarly situated for all purposes, but ‘whether they are similarly situated for
purposes of the law challenged.’ ” ’ ” (Cooley v. Superior Court (2002) 29 Cal.4th 228,
253.)
Moreover, 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.’ ” [Citations.] ‘This standard of rationality does not depend upon whether
lawmakers ever actually articulated the purpose they sought to achieve. Nor must the
underlying rationale be empirically substantiated. [Citation.] While the realities of the
subject matter cannot be completely ignored [citation], a court may engage in “ ‘rational
speculation’ ” as to the justifications for the legislative choice [citation]. It is immaterial
for rational basis review “whether or not” any such speculation has “a foundation in the
record.” ’ [Citation.] To mount a successful rational basis challenge, a party must ‘
“negative every conceivable basis” ’ that might support the disputed statutory disparity.
[Citations.] If a plausible basis exists for the disparity, courts may not second-guess its ‘
“wisdom, fairness, or logic.” ’ ” (Johnson v. Department of Justice (2015) 60 Cal.4th
871, 881 (Johnson).)
Applying these principles to the case at hand, we first note that, to the extent
minor suggests it is always improper for a statutory amendment to lessen a particular
punishment or penalty for an offense going forward but not relating back, there is a
wealth of case law holding otherwise. (E.g., People v. Floyd (2003) 31 Cal.4th 179, 188-
189 [“Defendant has not cited a single case, in this state or any other, that recognizes an
equal protection violation arising from the timing of the effective date of a statute
lessening the punishment for a particular offense. Numerous courts, however, have
rejected such a claim — including this court”]; accord People v. Cruz (2012) 207
Cal.App.4th 664, 674-680 [rejecting an equal protection challenge to a statutory
amendment permitting broader and, in some cases, less severe sentencing options (such
as drug diversion programs) only for persons sentenced on or after October 1, 2011].)

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Moreover, even accepting for the sake of argument minor’s threshold claim that
the reclassification procedure under section 1170.18 creates two similarly situated classes
of persons for purposes of the DNA Database Act, with the only distinguishing
characteristic being whether the persons admitted or were found to have committed a
particular offense before or after the statute’s operative date, we can nonetheless identify
several plausible or reasonably conceivable reasons for this disparate statutory treatment.
For example, the decision to maintain in the state database the DNA samples submitted
by defendants whose felony offenses have been reclassified as misdemeanors not only
serves the public safety goal identified in Proposition 69 of enhancing criminal
investigative tools available to law enforcement, it also avoids the administrative burden
of having to purge this database of a significant number of DNA samples if these
defendants were found to be entitled to expungement. (See Voter Information Guide,
California General Election Tuesday November 2, 2004, Text of Proposed Laws, § II
(Findings and Declarations of Purpose), page 135 [noting “the majority of violent
criminals have nonviolent criminal prior convictions, and the majority of cold hits and
criminal investigation links are missed if a DNA database or data bank is limited only to
violent crimes”].) While minor questions whether expunging these additional samples
would in fact create a significant administrative cost or burden for the State of California,
any lack of certainty in this regard does not undermine our conclusion that plausible or
reasonably conceivable reasons exist for the disparate treatment of reclassified offenders
under section 1170.18.4 (See Warden v. State Bar (1999) 21 Cal.4th 628, 650 [“when
4 Minor requests that we strike respondent’s brief in light of the references made
therein to extra-record secondary material at pages 21, 23, 27 and 53. Minor further
requests that we order respondent to file a new brief that complies with California Rules
of Court, rule 8.204. This secondary material (to wit, data allegedly from a Department
of Justice study) is not part of the record on appeal and is not the subject of any request
for judicial notice by respondent. We thus agree with minor that respondent’s references
to this material are inappropriate, and therefore disregard them entirely for purposes of
this appeal. (See People v. Jones (1997) 15 Cal.4th 119, 171, fn. 17, overruled in part on
another ground in People v. Hill (1998) 17 Cal.4th 800, 823, fn. 1.) This ruling negates
the need for respondent to file a new brief.

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there is a reasonably conceivable justification for a classification, ‘[i]t is . . .
“constitutionally irrelevant whether [the] reasoning in fact underlay the legislative
decision” ’ [citations], or whether the ‘conceived reason for the challenged distinction
actually motivated the legislature’ ”]; Johnson, supra, 60 Cal.4th at p. 881 [the
underlying rationale need not be empirically substantiated].)
Accordingly, minor’s equal protection challenge fails under the legal authority set
forth above. Simply put, minor has failed his burden to establish that the state lacked a
rational basis for treating the identified categories of offenders differently for purposes of
the DNA Database Act. (Warden v. State Bar, supra, 21 Cal.4th at p. 641.)
Thus, for the reasons provided, we affirm the juvenile court’s ruling to deny
minor’s requests for vacation of the order requiring him to submit DNA samples and for
expungement of his samples from the state database following the reclassification of his
offense from felony to misdemeanor.
DISPOSITION
The juvenile court order denying minor’s requests to vacate the order to submit
DNA samples and for an order to expunge his DNA records from the state database is
affirmed.
_________________________
Jenkins, J.
I concur:
_________________________
McGuiness, P. J.
In re J.E., A146105

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POLLAK, J., — I dissent for the reasons stated in my dissent in In re C.B. (Aug. 30,
2016, A146277) __ Cal.App.4th __ [2016 Cal.App. Lexis 725].
_________________________
Pollak, Acting P.J.
In re J.E., A146015

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