In re F.P.

Filed 6/23/17 In re F.P. CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
FOURTH APPELLATE DISTRICT
DIVISION THREE
In re F.P., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
F.P.,
Defendant and Appellant.
G053275
(Super. Ct. No. DL040527-006)
O P I N I O N
Appeal from a postjudgment order of the Superior Court of Orange County,
Lewis W. Clapp, Judge. Affirmed.
Ava R. Stralla, under appointment by the Court of Appeal, for Defendant
and Appellant.
Kamala D. Harris, Attorney General, Gerald A. Engler, Chief Assistant
Attorney General, Julie L. Garland, Assistant Attorney General, Arlene A. Sevidal and
Minh U. Le, Deputy Attorneys General, for Plaintiff and Respondent.
* * *

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INTRODUCTION
The juvenile court found that F.P. (defendant), then 16 years old, had
possessed methamphetamine, a felony. Pursuant to Penal Code section 1170.18, the
court later redesignated defendant’s felony to a misdemeanor, but denied defendant’s
request that his DNA samples be expunged from the state’s DNA database. (All further
statutory references are to the Penal Code unless otherwise indicated.) Defendant, now
20 years old, appeals; we affirm.
Section 299, subdivision (f) specifically provides that, notwithstanding
section 1170.18, a court shall not expunge DNA samples that were originally required to
be given by a defendant. We conclude this statute means what it says, and agree with the
other courts that have reached the same conclusion.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
In July 2013, the Orange County District Attorney filed a petition under
Welfare and Institutions Code section 602, alleging that defendant violated Health and
Safety Code section 11377, subdivision (a), by possessing methamphetamine. Defendant
admitted the allegations of the petition. The juvenile court granted him probation. As a
term of probation, defendant was ordered to provide fingerprints and DNA samples
pursuant to section 296.
In June 2015, defendant filed a petition to recall his sentence and reduce his
felony offense to a misdemeanor, pursuant to section 1170.18. The prosecution agreed
that defendant’s offense was eligible for recall and resentencing. The juvenile court
granted defendant’s petition, designated his conviction for drug possession as a
misdemeanor, and continued defendant’s wardship.
In January 2016, defendant filed a motion to destroy his DNA samples and
expunge his searchable database profile from the state’s DNA and Forensic Identification
Database and Databank Program, pursuant to section 299. The prosecution opposed the

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motion. Following a hearing, the court denied defendant’s motion; the court concluded it
was “bound to follow the legislative mandate set forth in [section] 299(f), which
specifically or explicitly states that a judge is not authorized to relieve a person of the
separate administrative duty to provide a specimen or sample of prints if that person has
been found guilty or adjudicated a ward of the court, and it says any other laws on that
issue, including [section] 1170.18 [notwithstanding] that mandate, which is that [the
court] cannot relieve a person of the separate administrative duty.”
DISCUSSION
California law requires that DNA samples be collected from, among others,
every person convicted of a felony. (§ 296, subd. (a)(1).) Persons who are convicted
only of a misdemeanor are not required to provide DNA samples, with certain exceptions
not relevant here. (See § 296, subd. (a)(3).) Section 299, subdivision (a), permits a
person to request that his or her DNA information be expunged from the state’s database
“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.” Former section 299, subdivision (f), provided:
“Notwithstanding any other 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
specimens, samples, or print impressions required by this chapter 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 . . . .” This subdivision prohibits
expungement when a felony conviction for a wobbler offense is reduced to a
misdemeanor. (Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 820-823.)
In November 2014, the California voters enacted the Safe Neighborhoods
and Schools Act (Proposition 47). Among other things, Proposition 47 reclassified

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certain felony drug offenses as misdemeanors, and provided a means by which
individuals previously convicted of those felony crimes could petition for reclassification.
(§ 1170.18.)
In Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1217
(Alejandro N.), the appellate court held that, when a felony offense is reclassified as a
misdemeanor pursuant to section 1170.18, a juvenile offender may request expungement
of DNA materials from the state’s database, unless there is a basis apart from the
commission of the reclassified crime justifying their retention. In that case, the juvenile
admitted committing felony burglary, and was declared a ward of the court.
(Alejandro N., supra, at p. 1217.) The juvenile court denied a request to reclassify the
offense as a misdemeanor, and to expunge the juvenile’s DNA profile from the state’s
database. (Id. at p. 1218.) The appellate court reversed the juvenile court’s order,
reclassified the juvenile’s offense as a misdemeanor, and directed the juvenile court to
reconsider the request to expunge. (Id. at p. 1230.)
In response to the court’s holding in Alejandro N., the Legislature amended
subdivision (f) of section 299, to provide that reclassification under section 1170.18 does
not authorize a judge to relieve anyone of the duty to provide DNA samples. That
subdivision now reads: “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 specimens, samples, or print impressions required by this
chapter 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 . . . .”
Following the amendment of section 299, subdivision (f), all published
cases addressing this issue have concluded that expungement of a juvenile’s DNA sample
is not permitted when the felony of which the juvenile was found guilty is reclassified as
a misdemeanor. We agree with the reasoning and analysis of these cases, and therefore
we reach the same conclusion.

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In In re J.C. (2016) 246 Cal.App.4th 1462, 1467, the minor had admitted an
allegation of second degree burglary by shoplifting, which was then a felony. Following
the passage of Proposition 47, the minor successfully petitioned the juvenile court to
reduce the violation to a misdemeanor. (In re J.C., supra, at p. 1467.) The juvenile
court, however, denied the minor’s request to expunge his DNA record. (Ibid.) In
affirming the juvenile court’s order, the appellate court concluded that the addition of the
reference to section 1170.18 in section 299, subdivision (f) was “intended to prohibit trial
courts, when granting a petition to recall a sentence under section 1170.18, from
expunging the record of a DNA sample provided by the defendant in connection with the
original felony conviction.” (In re J.C., supra, at p. 1472.) The appellate court noted
specifically that before its amendment, section 299, subdivision (f) had provided that
expungement of DNA samples was not permitted when a defendant obtained relief under
sections 17 (treating a wobbler as a misdemeanor rather than a felony), 1203.4 (dismissal
of charges after completion of probation), and 1203.4a (dismissal of misdemeanor or
infraction charges). (In re J.C., supra, at pp. 1472-1474, citing Coffey v. Superior Court,
supra, 129 Cal.App.4th 809.) “Given this background, the meaning of the Legislature’s
inclusion of section 1170.18 in section 299(f) is clear. The original inclusion of a
reference to section 17 in section 299(f) prohibited the expungement of a DNA record
after a defendant’s wobbler felony conviction is reduced to a misdemeanor pursuant to
section 17. By the same logic, by 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.”
(In re J.C., supra, at p. 1475.)1
1 Another issue addressed in In re J.C. was whether the amendment to
section 299, subdivision (f) could apply, as the minor’s request for expungement of the
DNA was filed before the amended statute’s effective date. (In re J.C., supra, 246
Cal.App.4th at pp. 1475-1483.) In the present case, the request for expungement was
first filed after the effective date of the amendment.

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In re C.B. (2016) 2 Cal.App.5th 1112, 1116-1117, review granted
November 9, 2016, S237801,2 the juvenile court granted the minor’s request to
redesignate his felony grand theft adjudication as a misdemeanor, but denied his request
that an order requiring DNA samples be vacated, and that his DNA samples be expunged
from the state DNA database. The appellate court rejected the minor’s challenge because
the DNA sampling requirement was an administrative, not a punitive, act (id. at p. 1121),
and because the taking of DNA samples was lawful, as they were taken when the court
had adjudicated him guilty of a felony (id. at pp. 1122-1123). The court concluded “that
section 1170.18 should be treated like section 17 for purposes of the DNA Database Act,
with the effect that a felony reclassified as a misdemeanor under section 1170.18 remains
a qualifying offense under the act, precluding the offender from obtaining additional
relief in the form of expungement on the basis of such reclassification.” (Id. at p. 1124.)
Moreover, the court noted that “even before its recent amendment, section 299,
subdivision (f), expressly stated that, notwithstanding any other law, a judge cannot
relieve a defendant of the administrative duty to provide DNA for inclusion in the state’s
DNA database. Given this particular language, we decline to read the more general
language in section 1170.18, subdivision (k) that an offense reclassified as a
misdemeanor must be treated as a misdemeanor ‘for all purposes’ as a legislative grant of
authority to a judge to disregard the restrictions placed upon his or her authority by
section 299, subdivision (f).” (Id. at p. 1124.)
2 The Supreme Court has not ordered that the opinion be depublished or
that it is not citable, in whole or in part. (Cal. Rules of Court, rules 8.1105(e)(2),
8.1115(e)(3).) While this opinion has no binding or precedential effect while on review,
it is cited here as persuasive authority. (Id., rules 8.1105(e)(1)(B), 8.1115(e)(1).)

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In In re C.H. (2016) 2 Cal.App.5th 1139, 1144, review granted November
16, 2016, S237762,3 the minor admitted to a felony violation of grand theft from a
person, in violation of section 487, subdivision (c). Following the passage of Proposition
47, the juvenile court granted the minor’s petition to redesignate the felony as a
misdemeanor, but denied the minor’s request to expunge his DNA sample. (In re C.H.,
supra, at p. 1144.) The appellate court concluded that redesignation of a felony to a
misdemeanor under section 1170.18 did not require expungement of DNA samples
already taken from the minor. (In re C.H., supra, at p. 1151.) In reaching its conclusion,
the court analyzed the language of Proposition 47 and Proposition 69, which established
the DNA databank program, and explained how their language must properly be read
together. “To the extent there is any possible tension between section 1170.18 and
sections 296 and 299, our job is to harmonize them where reasonably possible,
reconciling inconsistencies and construing them to give force and effect to all of their
provisions. [Citation.] Our conclusion today does just that. Section 1170.18
redesignates C.H.’s felony to be a misdemeanor for all future purposes, while at the same
time giving force to the mandates of sections 296 and 299 that provide offenders must
contribute DNA to the state database upon conviction or plea and set forth the statutory
basis for expungement.” (In re C.H., supra, at p. 1149.)4
3 The Supreme Court has not ordered that the opinion be depublished or
that it is not citable, in whole or in part. (Cal. Rules of Court, rules 8.1105(e)(2),
8.1115(e)(3).) While this opinion has no binding or precedential effect while on review,
it is cited here as persuasive authority. (Id., rules 8.1105(e)(1)(B), 8.1115(e)(1).)
4 The appellate court in In re C.H. also addressed the minor’s equal
protection argument, which is not raised in this case.

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DISPOSITION
The postjudgment order is affirmed.
FYBEL, J.
WE CONCUR:
O’LEARY, P. J.
MOORE, J.

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