In re T.H.

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Filed 3/28/17 In re T.H. 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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 T.H., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
T.H.,
Defendant and Appellant.
A145862
(Contra Costa County
Super. Ct. No. J1400799)
Defendant T.H. 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,
T.H. also asked the court to order that a DNA sample he provided at the time of his
adjudication be expunged from the state’s DNA databank. The court reduced T.H.’s
grand theft adjudication to a misdemeanor but declined to order expungement of his
DNA from the state databank. On appeal, T.H. challenges the latter ruling, contending
section 1170.18 requires expungement. We affirm.
I. BACKGROUND
On July 16, 2014, the Alameda County District Attorney filed a juvenile wardship
petition (Welf. & Inst. Code, § 602, subd. (a)) alleging T. H. committed robbery (§ 211).
1 All undesignated statutory references are to the Penal Code.

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The district attorney later moved to amend the petition to replace the robbery allegation
with one count of felony grand theft from a person (§ 487, subd. (c)), which Travon H.
admitted. The Alameda County juvenile court sustained the allegation and ordered the
case transferred to Contra Costa County (where T.H. resided) for disposition. (See Welf.
& Inst. Code, § 750.)
On August 7, 2014, the Contra Costa County juvenile court adjudged T.H. a ward
of the court and committed him to the Orin Allen Youth Rehabilitation Facility (OAYRF)
for 270 days, followed by a 90-day parole period. The court imposed various terms and
conditions of probation, including ordering T.H. to provide a DNA sample for inclusion
in the state’s databank (see §§ 296, subd. (a)(1), 296.1). In October 2014, T.H. admitted
to a probation violation arising from an incident at OAYRF, and the court added 30 days
to his commitment.
On May 14, 2015, T.H. filed a petition seeking reduction of his felony grand theft
adjudication to a misdemeanor and expungement of his DNA sample from the state’s
DNA databank. At a hearing on June 4, 2015, the court reduced T.H.’s felony grand theft
adjudication to a misdemeanor but denied his request for expungement of his DNA
sample from the state databank.2 The court, relying in part on Coffey v. Superior Court
(2005) 129 Cal.App.4th 809 (Coffey), which it found “instructive,” concluded the
reduction of a felony adjudication to a misdemeanor does not require expungement of the
offender’s DNA sample. On July 30, 2015, the court terminated T.H.’s probation
successfully. On July 31, 2015, T.H. filed a notice of appeal challenging the court’s
denial of his request for DNA expungement.
II. DISCUSSION
T.H., relying on a recent decision by 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
2 At the hearing, the parties stipulated that the record of oral argument in another
case presenting the same legal issue (People v. S.B., Super. Ct. Contra Costa County,
2015, No. J1301068) be incorporated into the record in this case.

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misdemeanor pursuant to section 1170.18. In response, the Attorney General argues that
(1) the Alejandro court incorrectly concluded section 1170.18 requires expungement, and
(2) a subsequent legislative enactment, Assembly Bill No. 1492 (2015–2016 Reg. Sess.)
(Bill No. 1492) clarifies 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

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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.3 (§ 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 committing
a 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
3 Section 1170.18, subdivision (k) states a felony conviction that is reclassified as
a misdemeanor “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 under Chapter 2 (commencing with
Section 29800) of Division 9 of Title 4 of Part 6.”

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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 T.H. filed his petition for relief, 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 this District 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.).)
Despite the language of section 299, subdivision (f), T.H. 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

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with regard to restrictions on ownership or possession of firearms. T.H. 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 T.H.’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 should not “carve out other exceptions” “absent some reasoned
statutory or constitutional basis for doing so.” (Alejandro, supra, 238 Cal.App.4th at
p. 1227.)
As we shall explain, we reject T.H.’s argument, and we respectfully disagree with
the holding in Alejandro. We instead agree with the holdings of our colleagues in
Divisions One and Three that redesignation of a felony as a misdemeanor under section
1170.18 does not require expungement of an offender’s DNA samples from the state
databank. (See In re C.H. (2016) 2 Cal.App.5th 1139, 1151, review granted Nov. 16,
2016, S237762 (C.H.); C.B., supra, 2 Cal.App.5th at p. 1116, rev. granted; J.C., supra,
246 Cal.App.4th at pp. 1467–1468.)
First, as noted, neither section 1170.18 nor any other provision of Proposition 47
mentions DNA expungement. We are not authorized to add text to a statute’s language.
(Hampton v. County of San Diego (2015) 62 Cal.4th 340, 350.)
Second, the DNA Database Act does not support a conclusion that reclassification
of an offense from a felony to a misdemeanor, without more, necessitates expungement
of the offender’s DNA records. We note T.H. is incorrect in suggesting that only a
felony conviction triggers the obligation to submit DNA samples. The obligation applies
to those who admit to the commission of a felony (§ 296, subd. (a)(1)), and applies to
some categories of misdemeanants, including those required to register as sex or arson
offenders. (§ 296, subd. (a)(3).) Moreover, the DNA Database Act authorizes

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expungement only for persons with “no past or present qualifying offense” whose cases
fall into one of four categories: (1) after arrest, no accusatory pleading was filed, or a
qualifying charge was dismissed prior to adjudication; (2) the qualifying conviction or
disposition was reversed and the case was dismissed; (3) the individual was found
factually innocent; or (4) the individual was found not guilty or acquitted of the
qualifying offense. (§ 299, subd. (b)(1)–(4).) T.H., who admitted committing a
qualifying offense, does not fit into any of these categories.4
We also find persuasive the decision in Coffey, supra, 129 Cal.App.4th at page
823, in which the court held that a defendant who pled guilty to a “wobbler” offense as a
felony was not entitled to expungement of his DNA sample after the court reduced the
charge pursuant to section 17 and sentenced him to a misdemeanor.5 Although section
17, subdivision (b) provides that an offense reduced to a misdemeanor under that statute
is “a misdemeanor for all purposes,” the Coffey court explained that language means the
offense is a misdemeanor “for all purposes thereafter, without any retroactive effect.”
(Coffey, supra, 129 Cal.App.4th at pp. 818, 823.) Because Coffey was convicted of a
felony when he pled guilty to the wobbler offense as a felony, he was subject to the DNA
Database Act when his DNA samples were taken. (Id. at p. 823.) The samples thus were
lawfully collected, and he had no constitutional right to have them returned. (Ibid.)
By analogy, the treatment of an offense redesignated under section 1170.18 as a
misdemeanor “for all purposes” (§ 1170.18, subd. (k)) means the offense is treated as a
felony up until the time of redesignation, and is only treated as a misdemeanor following
the redesignation. (See C.H., supra, 2 Cal.App.5th at pp. 1146–1147, rev. granted.)
Section 299 authorizes expungement of an offender’s DNA sample only “if the person
4 We do not hold section 299 provides the exclusive basis for expungement of
DNA from the databank, which may be required on constitutional grounds in an
appropriate case. (See C.H., supra, 2 Cal.App.5th at p. 1148, fn. 5, rev. granted, citing
Coffey, supra, 129 Cal.App.4th at p. 817.)
5 A “wobbler” offense is one that can be treated as a felony or a misdemeanor in
the discretion of the sentencing court. (Coffey, supra, 129 Cal.App.4th at p. 812, fn. 2.)

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has no past or present offense or pending charge which qualifies that person for
inclusion.” (§ 299, subd. (a).) “If a felony conviction redesignated as a misdemeanor
pursuant to section 1170.18 is treated as a felony up until the time of redesignation,
similar to a wobbler felony conviction under section 17, the defendant would continue to
have a past qualifying conviction even after the redesignation. Under the terms of section
299, the defendant would not be entitled to expungement of his or her DNA record.”
(J.C., supra, 246 Cal.App.4th at p. 1479; accord, C.B., supra, 2 Cal.App.5th at pp. 1123–
1124, rev. granted.)
The Alejandro court found Coffey distinguishable because the DNA expungement
statute, section 299, subdivision (f), expressly provided a defendant whose sentence was
reduced to a misdemeanor under section 17, subdivision (b) must provide DNA samples,
while no statutory provision reflected a similar legislative or voter determination as to an
offense redesignated a misdemeanor under Proposition 47. (Alejandro, supra, 238
Cal.App.4th at pp. 1229–1230.) We note that, even before its recent amendment, section
299, subdivision (f) stated that, “[n]otwithstanding any other provision of law,” a judge
cannot relieve a defendant of the administrative duty to provide DNA for inclusion in the
state’s DNA databank. (§ 299, former subd. (f), added by Prop. 69, § 4, as approved by
voters, Gen. Elec. (Nov. 2, 2004), italics added.) In light of this language, we decline to
read the more general language in section 1170.18 that a reclassified offense is to be
treated as a misdemeanor “for all purposes” as a grant of authority to disregard the
restrictions imposed by section 299, subdivision (f).
In any event, to the extent there was uncertainty about the relationship between
Proposition 47 and the DNA Database Act, the Legislature has resolved it with Bill
No. 1492, which adds section 1170.18 to section 299, subdivision (f)’s non-exclusive list
of statutes that do not authorize a judge to relieve an otherwise qualified person from the
administrative duty to submit DNA samples. (See C.B., supra, 2 Cal.App.5th at p. 1126,
rev. granted.) This amendment clarifies that the redesignation procedure under section
1170.18 does not relieve a defendant of his or her DNA submission obligations.

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In his reply brief, T.H. argues section 299, subdivision (f) (both before and after
the enactment of Bill No. 1492) does not address expungement, since it only states a
judge may not “relieve” a defendant of the “duty to provide” DNA samples. We
disagree. As noted, section 299, subdivision (f) lists sections 17, 1170.18, 1203.4 and
1203.4a as examples of provisions that do not authorize a judge to relieve a person of the
duty to provide DNA samples. Those listed statutes address situations in which a court
reduces an originally qualifying offense to something less serious: sections 17 and
1170.18 provide for the reduction of a felony to a misdemeanor; sections 1203.4 and
1203.4a provide for dismissal of charges upon successful completion of probation or
sentence. The inclusion of those statutes only makes sense if section 299, subdivision (f)
is construed to preclude expungement when a court reduces an originally qualifying
offense to a nonqualifying offense. (See J.C., supra, 246 Cal.App.4th at p. 1475.) Under
a reasonable reading of section 299, if a court is not authorized to relieve a defendant of
the duty to provide DNA, the court also is not authorized to order expungement of the
defendant’s DNA. (C.B., supra, 2 Cal.App.5th at p. 1127, rev. granted.)
We reject T.H.’s suggestion that the Legislature could only achieve this result by
amending subdivision (b) or subdivision (e) of section 299, which expressly address
expungement and its prohibition. “It is not our place to dictate to the Legislature the
statutory structure” (J.C., supra, 246 Cal.App.4th at p. 1475, fn. 8), and, as we have
discussed, the intent and meaning of section 299, subdivision (f) are clear from its
language.
T.H. also notes the Legislature stated in Bill No. 1492 that the bill was intended to
address People v. Buza (2014) 231 Cal.App.4th 1446, review granted February 18, 2015,
S223698 (Buza), a case concerning the proper scope of section 299 that is pending before
our Supreme Court. (Stats. 2015, ch. 487, § 1; see § 299, subd. (g).) But that does not
persuade us the bill addressed only that issue. As discussed, the bill’s amendment of
section 299, subdivision (f), which will remain in effect regardless of the outcome in
Buza (see Stats. 2015, ch. 487, §§ 4–5), directly addresses the issue raised by T.H. in this
appeal.

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Finally, T.H. contends that Bill No. 1492 is an invalid amendment to Proposition
47, which states it can only be amended in a manner “consistent with and [in]
further[ance of]” its intent. (Ballot Pamp., Gen. Elec. (Nov. 4, 2014), text of Prop. 47,
§ 15, p. 74; see People v. Superior Court (Pearson) (2010) 48 Cal.4th 564, 568 [“The
Legislature may not amend an initiative statute without subsequent voter approval unless
the initiative permits such amendment, ‘and then only upon whatever conditions the
voters attached to the Legislature’s amendatory powers.’ ”].) But not all legislation that
addresses the same subject matter as an initiative, or even augments its provisions, is an
amendment for this purpose. (People v. Superior Court (Pearson), supra, at p. 571.)
Instead, to determine whether a legislative enactment amends an initiative, a court must
“ask whether it prohibits what the initiative authorizes, or authorizes what the initiative
prohibits.” (Ibid.)
T.H. argues Bill No. 1492 qualifies as an amendment to Proposition 47 because
section 1170.18, subdivision (k) requires treatment of reclassified offenses as
misdemeanors “for all purposes” except firearms restrictions, and the addition of section
1170.18 to the list of statutes in section 299, subdivision (f) “alters the ‘misdemeanors for
all purposes’ provision of Proposition 47 and creates an additional exception not
authorized by the voters.” We disagree.
As discussed, Bill No. 1492 did not amend section 1170.18. Instead, the bill
clarified section 299 by adding section 1170.18 to the non-exhaustive list of statutes in
subdivision (f) barring courts from excusing qualifying defendants from the
administrative duty to submit DNA. Even assuming the prior version of the statute was
susceptible to the interpretation that reclassification of an offense under section 1170.18
requires expungement of the offender’s DNA, the existence of two equally reasonable
interpretations confirms Bill No. 1492 was a clarification of, not a change to, the statute.
(See C.B., supra, 2 Cal.App.5th at pp. 1127–1128, rev. granted; J.C., supra, 246
Cal.App.4th at pp. 1479–1480, 1482 [“Because . . . Proposition 47 neither requires nor
prohibits the expungement of DNA records, Bill No. 1492 does not, as so defined, amend
the proposition.”].)

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III. DISPOSITION
The juvenile court’s order denying T.H.’s request for expungement of his DNA
samples from the state databank is affirmed.

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

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