In re V.F.

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Filed 1/24/17 In re V.F. CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 FIVE
In re V.F., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
Plaintiff and Respondent,
v.
V.F.,
Defendant and Appellant.
A147760
(Contra Costa County
Super. Ct. No. J0602308)
V.F. appeals from an order denying his request to have his DNA record expunged
from the state databank after his juvenile adjudications of grand theft and attempted
grand theft were reduced from felonies to misdemeanors under Penal Code section
1170.18, part of the Safe Neighborhoods and Schools Act (Proposition 47).1 We affirm.
BACKGROUND
On March 15, 2007, in a juvenile proceeding under Welfare and Institutions Code
section 602, appellant admitted allegations he had committed the felony offenses of grand
theft person and attempted grand theft person. (§§ 487, subd. (c), 664.) The juvenile
court declared appellant a ward of the court and, pursuant to section 296.1, ordered him
to provide a DNA sample to the state databank.
1 Further statutory references are to the Penal Code unless otherwise indicated.

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In November 2014, the voters enacted Proposition 47, which reclassified certain
property and drug offenses as misdemeanors and, in section 1170.18, created a procedure
for individuals previously convicted of such offenses to have those convictions reduced
to misdemeanors. (In re J.C. (2016) 246 Cal.App.4th 1462, 1469–1470 (J.C.).) On
February 26, 2016, appellant filed a petition to have his juvenile adjudications reduced to
misdemeanors pursuant to Proposition 47. He also requested expungement of his DNA
records from the state DNA databank. At a hearing held on March 1, 2016, the court
granted the request to reclassify the offenses as misdemeanors but denied the request to
expunge the DNA record.
DISCUSSION
Appellant argues the juvenile court was obligated to expunge his DNA records in
light of the reduction of his offenses to misdemeanors. The issue presented is one of
statutory construction and our standard of review is de novo. (See People v. Perkins
(2016) 244 Cal.App.4th 129, 134.)
California law requires “any juvenile who is adjudicated under Section 602 of the
Welfare and Institutions Code for committing any felony offense” to provide a DNA
sample so that his or her DNA profile may be included in the state databank. (§ 296,
subd. (a)(1).) Subject to exceptions not relevant here (§ 296, subd. (a)(3)), juveniles who
are found to have committed misdemeanors are not required to provide DNA samples.
(J.C., supra, 246 Cal.App.4th at p. 1470.)
Under section 299, subdivision (a), a person can seek expungement of his or her
DNA record “if the person has no past or present offense or pending charge which
qualifies that person for inclusion within the [state databank] and there otherwise is no
legal basis for retaining the specimen or sample or searchable profile.” In Alejandro N. v.
Superior Court (2015) 238 Cal.App.4th 1209, 1227, 1230 (Alejandro N.), the Fourth
District Court of Appeal held that a person whose felony offense has been redesignated as
a misdemeanor under Proposition 47 is entitled to expungement of his or her DNA record
under this provision if there is no other basis for retaining it.

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At the time Alejandro N. was decided, 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.” (Italics added.) “The unmistakable implication of the reference to these
statutes in section 299(f) is that the section 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.” (J.C., supra, 246
Cal.App.4th at pp. 1473–1474, italics added.)
About two months after the Alejandro N. decision was issued, the governor signed
a bill that, among other things, amended section 299, subdivision (f), to insert “1170.18”
into the list of statutes that do not authorize a judge to relieve a person of the duty to
provide a DNA sample. (Stats. 2015, ch. 487 (A.B. 1492).) Thus, section 299,
subdivision (f) now provides, “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 [a DNA sample] if a person . . . was adjudicated a ward of
the court by a trier of fact of a qualifying offense. . . .”2 (Italics added.)
In J.C., supra, 246 Cal.App.4th at page 1475, the court concluded the purpose of
this amendment to section 299, subdivision (f) was clear: “[B]y 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.” The court held that the amendment, effective January 1,
2 The primary purpose of the bill was to respond to People v. Buza (2014) 231
Cal.App.4th 1446 [180 Cal.Rptr.3d 753], review granted Feb. 18, 2015, S223698, which
found the statutory requirement of DNA sampling upon arrest to violate the state
constitution. (J.C., supra, 226 Cal.App.4th at pp. 1471–1472.) The aspect of the bill
amending section 299, subdivision (f), to add a reference to section 1170.18 is not
explained in the bill’s legislative history. (Id. at p. 1472.)

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2016, was a clarification of existing law and did not implicate the rule that statutory
amendments ordinarily may not be applied retroactively. (Id. at pp. 1475–1482.)
Two additional published opinions have reached the same conclusion as the court
in J.C. (In re C.H. (2016) 2 Cal.App.5th 1139, 1143–1151 [206 Cal.Rptr.3d 775], review
granted Nov. 16, 2016, S237762; In re C.B. (2016) 2 Cal.App.5th 1112, 1117–1128 [206
Cal.Rptr.3d 785], review granted Nov. 9, 2016, S237801; but see C.B., at pp. 1128–1138
(Pollak, J., dissenting).) We find the reasoning of these cases to be persuasive. (See Cal.
Rules of Court, rule 8.1115(e) [cases pending on review may be cited for persuasive
value].)
Because the amendment to section 299, subdivision (f) applies to appellant’s case
and precludes the expungement of his DNA record based on the reduction of his felony
theft offenses to misdemeanors under Proposition 47, the trial court’s order denying
expungement was correct.
III. DISPOSITION
The juvenile court’s order denying appellant’s request for expungement of his
DNA record is affirmed.

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NEEDHAM, J.
We concur.
JONES, P.J.
SIMONS, J.

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