Filed 9/6/17
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D070711
Plaintiff and Respondent,
v. (Super. Ct. No. SCD249624)
TALEIA HARRIS,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, David J.
Danielsen, Judge. Affirmed.
Randy Mize, Chief Deputy Public Defender, and Michael Begovich, Deputy
Public Defender for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, Barry Carlton and Sabrina Y.
Lane-Erwen, Deputy Attorneys General for Plaintiff and Respondent. In December 2013, Taleia Harris pled guilty to felony grand theft from a person
for stealing a wallet from the victim's person. (Pen. Code,1 § 487, subd. (c).) In
November 2014, the voters enacted Proposition 47, the Safe Neighborhoods and Schools
Act (Proposition 47) (Cal. Const., art. II, § 10, subd. (a)), which reduced certain crimes
from felonies to misdemeanors and allowed a person convicted of one of those felonies
before its passage to petition the court to reduce the felony conviction to a misdemeanor
and be resentenced. Harris successfully petitioned to have her felony conviction reduced
to a misdemeanor under Proposition 47, but the court denied her motion to expunge the
DNA sample that law enforcement took by mouth swab when she was booked on her
felony charge.
Harris appeals from the order denying her motion to expunge her DNA sample
from the state's database. She contends that when a felony is reduced to a misdemeanor
under Proposition 47, the state is not permitted to retain an adult misdemeanant's
previously collected DNA sample and genetic profile, and that the state's retention of her
DNA sample and genetic profile violates her state and federal constitutional right to equal
protection of the laws and right of privacy. We affirm.
DISCUSSION
Harris contends that the reduction of her felony conviction to a misdemeanor
under Proposition 47 required the court to grant her motion to expunge her DNA from the
1 All statutory references are to the Penal Code unless otherwise specified.
2 state's DNA database.2 Harris relies primarily on Alejandro N. v. Superior Court (2015)
238 Cal.App.4th 1209 (Alejandro N.), in which this court concluded that because section
1170.18, subdivision (k), provides that a felony that is reduced to a misdemeanor under
Proposition 47 "shall be considered a misdemeanor for all purposes," DNA collected in
connection with the offense is properly expunged because "the reclassified misdemeanor
offense . . . no longer qualifies as an offense permitting DNA collection." (Alejandro N.,
at p. 1229, original italics.)
I. Relevant Law
A. Proposition 47
"The voters enacted Proposition 47 on November 4, 2014, effective the next day.
[Citations.] As summarized by the Legislative Analyst, the proposition 'reduces penalties
for certain offenders convicted of nonserious and nonviolent property and drug crimes'
and 'allows certain offenders who have been previously convicted of such crimes to apply
for reduced sentences.' " (In re J.C. (2016) 246 Cal.App.4th 1462, 1469 (J.C.).)
Proposition 47 added section 490.2, which reclassifies grand theft violations under
section 487 into misdemeanors when the value of the stolen property is $950 or less.3
2 Section 295.1, subdivision (c) provides that "[t]he DNA Laboratory of the Department of Justice shall serve as a repository for blood specimens and buccal swab and other biological samples collected, and shall analyze specimens and samples, and store, compile, correlate, compare, maintain, and use DNA and forensic identification profiles and records. . . ." Section 295.1, subdivision (d) provides that "[t]he computerized data bank and database of the DNA Laboratory of the Department of Justice shall include files as necessary to implement this chapter." 3 Section 490.2, subdivision (a) provides: "Notwithstanding Section 487 or any other provision of law defining grand theft, obtaining any property by theft where the 3 "Proposition 47 also added section 1170.18 [citation], which provides a remedy
for persons previously convicted of a felony 'who would have been guilty of a
misdemeanor under [Proposition 47]' had it been in effect at the time of their offense.
(§ 1170.18, subd. (a)). Under section 1170.18, subdivision (a), a person 'currently
serving a sentence' for such a conviction 'may petition for a recall of sentence' and
'request resentencing' in accordance with the statutes as amended by Proposition 47.
Section 1170.18, subdivision (b) specifies the procedure for a trial court to follow upon
receiving such a petition. If the trial court finds 'the petitioner satisfies the criteria in
subdivision (a), the petitioner's felony sentence shall be recalled and the petitioner
resentenced to a misdemeanor . . . , unless the court, in its discretion, determines that
resentencing the petitioner would pose an unreasonable risk of danger to public safety.'
(§ 1170.18, subd. (b).)
"Section 1170.18, subdivision (k) imposes only one qualification on the recall of
these felony convictions: 'Any felony conviction that is recalled and resentenced under
subdivision (b) . . . 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 [for being a felon in possession of a
firearm].' " (J.C., supra, 246 Cal.App.4th at p. 1470.)
value of the money, labor, real or personal property taken does not exceed nine hundred fifty dollars ($950) shall be considered petty theft and shall be punished as a misdemeanor, except that such person may instead be punished pursuant to subdivision (h) of Section 1170 if that person has one or more prior convictions for an offense specified in clause (iv) of subparagraph (C) of paragraph (2) of subdivision (e) of Section 667 or for an offense requiring registration pursuant to subdivision (c) of Section 290."
4 B. DNA collection
California's DNA and Forensic Identification Database and Data Bank Act of 1998
(Database Act), section 295 et seq, "requires the collection of tissue samples for DNA
analysis from all persons convicted of felonies (§§ 295, 296, subd. (a)(1)), adults arrested
or charged with a felony (§ 296, subd. (a)(2)(C)), and all persons required to register as a
sex or arson offender as a result of the commission of a felony or misdemeanor (id., subd.
(a)(3)). Except as provided in section 296, subdivision (a)(3), persons convicted solely of
misdemeanors are not required to provide DNA samples." (J.C., supra, 246 Cal.App.4th
at p. 1470.) Subdivision (b) of section 296 provides that the requirements for DNA
submission "shall apply to all qualifying persons regardless of sentence imposed . . . or
any other disposition rendered in the case of an adult or juvenile tried as an adult. . . ."
Two months after this court issued Alejandro N., the Governor signed into law
Assembly Bill No. 1492 (2015–2016 Reg. Sess.) (Bill No. 1492), which amended
subdivision (f) of section 299, the statute that governs expungement of DNA records
from the state data bank. (J.C., supra, 246 Cal.App.4th at pp. 1470, 1472.) "Prior to the
enactment of Bill No. 1492, section 299, former subdivision (f) stated: '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 was found
not guilty by reason of insanity or pleads no contest to a qualifying offense as defined in
subdivision (a) of Section 296.' " (Id. at pp. 1470–1471.) Bill No. 1492 amended
5 subdivision (f) of section 299 by adding section 1170.18 to its express list of statutes that
do not authorize a court judge to relieve a person of the administrative duty to provide a
DNA sample if convicted of a qualifying offense. (J.C., at p. 1472.)4
II. The Court Correctly Denied Harris's Motion to Expunge Her DNA
A. Statutory construction
Initiative measures are subject to the rules and canons of statutory interpretation
(Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1212), and statutory
interpretation is a question of law subject to de novo review on appeal. (Argaman v.
Ratan (1999) 73 Cal.App.4th 1173, 1176.) " 'We begin as always "with the fundamental
premise that the objective of statutory interpretation is to ascertain and effectuate
legislative [or voter] intent." [Citation.] To discover that intent we first look to the
words of the statute, giving them their usual and ordinary meaning. [Citations.] "Where
the words of the statute are clear, we may not add to or alter them to accomplish a
purpose that does not appear on the face of the statute or from its legislative history." ' "
(Ibid.)
Proposition 47 does not mention DNA collection or expungement. Section 296 of
the DNA Database Act requires "any adult person arrested or charged with any felony
4 Subdivision (f) of section 299 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 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, or was found not guilty by reason of insanity or pleads no contest to a qualifying offense as defined in subdivision (a) of Section 296."
6 offense" to provide a buccal swab DNA sample. (§ 296, subd. (a)(2)(C).) The DNA
submission requirement applies "to all qualifying persons regardless of sentence
imposed . . . or any other disposition rendered in the case of an adult or juvenile tried as
an adult. . . ." (Id. at subd. (b), italics added.) Section 299 provides that a person is
entitled to expungement of his or her DNA sample from the state DNA database "if the
person has no past or present offense or pending charge which qualifies that person for
inclusion [in the database] and there otherwise is no legal basis for retaining the specimen
or sample or searchable profile." (§ 299, subd. (a), italics added.)5 As noted, under
section 299, subdivision (f), "[n]otwithstanding any other law, including
[section] . . . 1170.18," a court is prohibited from relieving a person of his or her DNA
submission duty if the person has been found guilty of qualifying offense under section
296, subdivision (a). (§ 299, subd. (f), italics added.)
Under the plain meaning of subdivisions (b) and (f) of section 299, Harris is not
entitled to DNA expungement because she has a past qualifying offense under section
296, subdivision (a)i.e., she was convicted of an offense that qualified her for inclusion
in the DNA database when her DNA sample was collected. The subsequent
reclassification of her offense to a nonqualifying offense does not change the fact that at
5 Section 299, subdivision (b) expressly limits the right to seek expungement to "a person who has no past or present qualifying offense" under four circumstances: (1) following arrest, no accusatory pleading has been filed charging the person with a qualifying offense or the qualifying charges have been dismissed prior to adjudication; (2) the qualifying conviction or disposition has been reversed and the case dismissed; (3) the person has been found factually innocent of the qualifying offense; or (4) the defendant has been found not guilty or acquitted of the qualifying offense. (§ 299, subd. (b)(1)-(4).
7 the time her DNA sample was taken, the taking was lawful because it was based on an
offense that qualified for DNA submission. As noted in In re C.B. (2016) 2 Cal.App.5th
1112 (C.B.),6 "the DNA sample submission requirement under the DNA Database Act
does not necessarily hinge on whether a person is convicted of a felony or misdemeanor.
Rather, under the relevant statutory language, the act's triggering point is when '[a]ny
person, . . . is convicted of or pleads guilty or no contest to any felony offense.' (§ 296,
subd. (a)(1), italics added.)" (Id. at p. 1121.)
This court in Alejandro N. decided that DNA collected in connection with a felony
that was later reclassified as a misdemeanor under Proposition 47 is properly expunged
because section 1170.18, subdivision (b) provides that such a reclassified offense "shall
be considered a misdemeanor for all purposes." (Alejandro N., supra, 238 Cal.App.4th at
pp. 1227–1229.) In arguing that DNA expungement was not required, the People in
Alejandro N. relied on People v. Coffey (2005) 129 Cal.App.4th 809 (Coffey), in which
the Court of Appeal held that reduction of a wobbler7 from a felony to a misdemeanor at
sentencing under section 17, subdivision (b),8 did not require expungement of the
6 The California Supreme Court granted review of C.B. on November 9, 2016 (S237801). Under California Rules of Court, rule 8.1115(e), we may cite C.B. as persuasive authority while review is pending.
7 A "wobbler" is an offense that is punishable either as a felony or a misdemeanor in the discretion of the court. (See People v. Holt (1984) 37 Cal.3d 436, 452, fn. 7.)
8 Section 17, subdivision (b)(1), provides: "When a crime is punishable, in the discretion of the court, either by imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a misdemeanor for all purposes under the following 8 defendant's DNA sample taken under the DNA Database Act, in part because
amendments to that act by Proposition 69, which the voters passed in November 2004,
confirmed "that a reduction in a charge pursuant to section 17 does not obviate the
defendant's obligation to provide DNA samples." (Coffey, at p. 821.) Specifically,
Proposition 69 amended section 299 by, among other things, adding subdivision (f) to
provide that a judge was not authorized to relieve a person found guilty of a qualifying
offense of the obligation to provide a DNA sample " '[n]otwithstanding any other
provision of law, including Section . . . 17 . . . .' " (Coffey, at p. 821.)
Alejandro N. distinguished Coffey on the basis that unlike section 17, section
1170.18 was not specified in section 299, subdivision (f), as one of the statutes that did
not authorize a court to relieve a person of the obligation to provide a DNA sample.
Alejandro N. stated: "Coffey noted that section 17, subdivision (b) provides that a
wobbler that is treated as a misdemeanor at sentencing ' "is a misdemeanor for all
purposes," ' but concluded this provision did not apply to the DNA expungement request
at issue before the court. [Citation.] Coffey explained that the Legislature had expressly
stated in the DNA expungement statute (§ 299, subd. (f)) that 'a defendant whose
sentence is reduced to a misdemeanor under section 17, subdivision (b), must provide
DNA samples. . . .' [Citations.] [¶] Unlike the circumstances in Coffey, there is no
statutory provision reflecting a Legislative or voter determination that a DNA sample
circumstances: [¶] (1) After a judgment imposing a punishment other than imprisonment in the state prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 1170."
9 should be retained for an offender whose offense has been designated a misdemeanor
under Proposition 47. Absent express legislative or voter direction on this matter, we
decline to judicially create a DNA retention exception here. . . ." (Alejandro N., supra,
238 Cal.App.4th at pp. 1229–1230, fn. omitted.)
In short, because section 299, subdivision (f), did not specify section 1170.18 in its
list of statutes that do not relieve a defendant of the requirement of providing a DNA
sample, Alejandro N. rejected the People's argument that reduction of a felony to a
misdemeanor under section 1170.18 should be viewed the same as reduction of a felony
to a misdemeanor under section 17 for purposes of DNA expungement. However, Bill
No. 1492's amendment of section 299, subdivision (f), provided what Alejandro N. noted
was missing from that subdivisionnamely, an express reference to section 1170.18. As
a result of that amendment, section 299, subdivision (f) now, in the words of the
Alejandro N. court, "reflect[s] a Legislative or voter determination that a DNA sample
should be retained for an offender whose offense has been designated a misdemeanor
under Proposition 47." (Alejandro N., supra, 238 Cal.App.4th at pp. 1229–1230.) As
noted in In re C.H. (2016) 2 Cal.App.5th 1139, rev. granted Nov. 16, 2016, S237762
(C.H.), "a court's declaration of misdemeanor status renders an offense a misdemeanor
for all purposes, not at all times." (Id. at p. 1146.)9
9 In addition to the express references to section 17 and section 1170.18 in section 299, subdivision (f), we are persuaded by following analysis in C.H. that the term "misdemeanor for all purposes" has the same meaning in both statutes: " ' "It is a well- recognized rule of construction that after the courts have construed the meaning of any particular word, or expression, and the legislature subsequently undertakes to use these 10 Harris argues that section 299, subdivision (f), does not prohibit expungement of a
DNA sample because it does not address expungement of DNA samples but rather limits
a court's authority to "relieve" a person of the administrative "duty to provide" a DNA
sample. We conclude section 299, subdivision (f) limits a court's authority to order
expungement. Section 299 is the statute that governs DNA expungement. The fact that
subdivision (f) of section 299 is located in section 299 (the expungement statute) rather
than section 296, which addresses requirements to provide DNA samples, indicates that it
was intended to address a court's authority to order expungement.
Further, the J.C. court explained that although the language of section 299,
subdivision (f) "appears to prohibit courts only from preventing the provision of a DNA
sample, rather than prohibiting expungement of the record of a sample already
provided, . . . the specific statutory references in section 299(f) demonstrate the latter
exact words in the same connection, the presumption is almost irresistible that it used them in the precise and technical sense which had been placed upon them by the courts." ' [Citations.] Because 'identical language appearing in separate statutory provisions should receive the same interpretation when the statutes cover the same or analogous subject matter' [citations], and because Proposition 47 and section 17 both address the effect to be given the redesignation of a felony (or a wobbler that starts out as a felony) as a misdemeanor, we are presumptively obligated to construe the phrase 'misdemeanor for all purposes' under Proposition 47 to mean the same as it does under section 17namely, that a felony offense redesignated as a misdemeanor under Proposition 47 retains its character as a felony prior to its redesignation, and is treated as a misdemeanor only after the time of redesignation. This is precisely why the appeal of a redesignated offense under Proposition 47 lies with the Court of Appeal and not the appellate division— namely, because the redesignation does not retroactively convert the offense to a misdemeanor at the time of charging, which is the relevant point in time for determining where an appeal lies." (C.H., supra, 2 Cal.App.5th 1139 at pp. 1146–1147.) We cite C.H. as persuasive authority pending review by the California Supreme Court. (Cal. Rules of Court, rule 8.1115(e).)
11 circumstance is also covered." (J.C., supra, 246 Cal.App.4th at p. 1472, italics added.)
The J.C. court noted that "prior to the addition of section 1170.18 by Bill No. 1492,
section 299(f) referred to sections 17, 1203.4, and 1203.4a." (J.C., at p. 1472.) The court
further noted that section 17, which addresses wobbler offenses, provides that when a
wobbler is designated or declared to be a misdemeanor, it is "a misdemeanor for all
purposes" (§ 17, subds. (b) & (c)), and noted that sections 1203.4 and 1203.4a govern the
dismissal of charges following a successful completion of probation.
The J.C. court reasoned: "These statutes have one thing in common. Their
application generally results in the reduction of a felony conviction suffered by a
defendant to something less serious—either a misdemeanor under section 17 or, in the
case of sections 1203.4 and 1203.4a, dismissal altogether. The felony conviction
necessarily required provision of a DNA sample, but the defendant would not have been
required to provide a sample had the conviction been designated a misdemeanor from the
outset or if there had been no criminal charges at all. 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.) "[T]he inclusion of [these] statutes
makes sense only if section 299(f) is interpreted as precluding expungement when an
originally qualifying offense is reduced to a nonqualifying offense in the course of
judicial proceedings." (Id. at p. 1475.)
12 We agree with J.C.'s reasoning. When a person's felony conviction is reduced to a
misdemeanor or something else less serious under any of the statutes specified in section
299, subdivision (f), including section 1170.18, the person has already provided a DNA
sample. Thus, subdivision (f) necessarily contemplates expungement of DNA
samplesi.e., the voters and Legislature in respectively enacting and amending
subdivision (f) intended to prohibit DNA expungement when a felony is reduced to
something less serious under the statutes identified in subdivision (f). As the J.C. court
observed, "the use of the phrase 'relieve . . . of the separate administrative duty to provide'
is not an intuitive way to refer to expungement, but the language has been so understood
since the issuance of Coffey, over 10 years ago." (J.C., supra, 246 Cal.App.4th at
p. 1475, fn. omitted.)
B. Bill No. 1492 did not amend Proposition 47
Harris contends that Bill No. 1492's amendment of section 299, subdivision (f),
constitutes an impermissible amendment of Proposition 47.10 The People argue that Bill
No. 1492 does not amend Proposition 47 but rather clarifies Proposition 69. We agree
that Bill No. 1492 does not amend Proposition 47.
10 Proposition 47 provides that " '[t]he provisions of this measure may be amended by a two-thirds vote of the members of each house of the Legislature and signed by the Governor so long as the amendments are consistent with and further the intent of this act.' " (C.B., supra, 2 Cal.App.5th at p. 1134, dis. opn. of Pollack, J.) "Bill No. 1492 . . . was passed by the required two-thirds vote." (Id. at p. 1135, fn. 8.)
13 An amendment to a voter initiative is " 'a legislative act designed to change an
existing initiative statute by adding or taking from it some particular provision.'
[Citation.] But this does not mean that any legislation that concerns the same subject
matter as an initiative, or even augments an initiative's provisions, is necessarily an
amendment for these purposes. 'The Legislature remains free to address a " 'related but
distinct area' " [citations] or a matter that an initiative measure "does not specifically
authorize or prohibit." ' [Citations.] In deciding whether [a statutory] provision amends
[an initiative], we simply need to ask whether it prohibits what the initiative authorizes,
or authorizes what the initiative prohibits." (People v. Superior Court (Pearson) (2010)
48 Cal.4th 564, 571 (Pearson).)
The J.C. court concluded that Bill No. 1492 does not amend Proposition 47
because Proposition 47 "neither requires nor prohibits the expungement of DNA
records. . . ." (J.C., supra, 246 Cal.App.4th at p. 1482.) We agree with that conclusion,
and with the C.B. majority's observation that Bill No. 1492 did not amend section
1170.18 of Proposition 47, but rather "clarified section 299 [as amended by Proposition
69] by adding section 1170.18 to the otherwise nonexhaustive list of statutes in section
299, subdivision (f) barring lower courts from excusing qualifying defendants from their
administrative duty to submit DNA." (C.B., supra, 2 Cal.App.5th at p. 1127.)
In any event, to the extent Bill No. 1492 is properly viewed as an amendment of
Proposition 47 rather than a clarification of Proposition 69 or Proposition 47, it satisfies
the requirement that any amendment be consistent with and further the proposition's
intent. As the J.C. court reasoned, "[b]ecause . . . Proposition 47 does not clearly either
14 require or prohibit expungement of the records of previously provided DNA samples,
there is no basis for finding the prohibition of expungement in Bill No. 1492 to be
inconsistent with the intent of the proposition." (J.C., supra, 246 Cal.App.4th at p. 1483,
fn. omitted.) Bill No. 1492 did not impermissibly amend Proposition 47.
C. Retention of Harris's DNA sample does not violate her constitutional rights
1. Equal protection rights
Harris contends that permitting the state to retain her DNA sample and genetic
profile would violate her state and federal constitutional right to equal protection of the
laws because she is similarly situated to persons convicted of misdemeanors after the
passage of Proposition 47 who are not required to provide DNA samples. She argues
there is no rational basis for treating misdemeanants whose felony convictions were
reduced to misdemeanors under Proposition 47 differently from post-Proposition 47
misdemeanants with respect to DNA collection and retention.
"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
situated groups in an unequal manner. [Citation.] We do not inquire whether persons are
similarly situated for all purposes, but whether they are similarly situated for purposes of
the law challenged. [Citation.] This prerequisite means that an equal protection claim
cannot succeed, and does not require further analysis, unless there is some showing that
the two groups are sufficiently similar with respect to the purpose of the law in question
that some level of scrutiny is required in order to determine whether the distinction is
justified." (People v. Moreno (2014) 231 Cal.App.4th 934, 941–942.)
15 Assuming that for equal protection purposes, misdemeanants whose felonies were
reduced to misdemeanors under Proposition 47 are similarly situated to post-Proposition
47 misdemeanants with respect to DNA collection, we consider whether disparate
treatment of the two groups is justified, noting that " '[a] rational basis test applies to
equal protection challenges based on sentencing disparities.' " (People v. Dobson (2016)
245 Cal.App.4th 310, 318.) "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.)
In People v. Floyd (2003) 31 Cal.4th 179 (Floyd), the California Supreme Court
noted there is no authority "that recognizes an equal protection violation arising from the
timing of the effective date of a statute lessening the punishment for a particular offense."
16 (Id. at p. 188.) " 'It is not unconstitutional for the legislature to confer such benefit only
prospectively, neither is it unconstitutional for the legislature to specify "a classification
between groups differently situated, so long as a reasonable basis for the distinction
exists. " ' " (Id. at pp. 189–190.)11 " '[T]he 14th Amendment does not forbid statutes
and statutory changes to have a beginning, and thus to discriminate between the rights of
an earlier and later time.' " (Id. at p. 191.) Accordingly, it is not a denial of equal
protection to treat misdemeanants whose convictions were reduced to misdemeanors
under Proposition 47 differently from post-Proposition 47 misdemeanants with respect to
DNA collection and retention.
The C.H. court explained "[t]here is a rational basis supporting the retention of
DNA obtained from offenders convicted of felonies before Proposition 47 whose crimes
have been reduced to misdemeanors. Proposition 69 declares that an expansive DNA
database is: '(1) The most reasonable and certain means to accomplish effective crime
solving in California, to aid in the identification of missing and unidentified persons, and
to exonerate persons wrongly suspected or accused of crime; [¶] (2) The most reasonable
and certain means to solve crime as effectively as other states which have found that the
majority of violent criminals have nonviolent criminal prior convictions, and that the
majority of cold hits and criminal investigation links are missed if a DNA database or
11 The Floyd court noted the following legitimate government interest in treating defendants convicted and sentenced before the effective date of a punishment-lessening statute differently from those sentenced after the effective date of the statute: " 'The Legislature properly may specify that such statutes are prospective only, to assure that penal laws will maintain their desired deterrent effect by carrying out the original prescribed punishment as written.' " (Floyd, supra, 31 Cal.4th at p. 190.) 17 data bank is limited only to violent crimes; [¶] (3) The most reasonable and certain means
to rapidly and substantially increase the number of cold hits and criminal investigation
links so that serial crime offenders may be identified, apprehended and convicted for
crimes they committed in the past and prevented from committing future crimes that
would jeopardize public safety and devastate lives; and [¶] (4) The most reasonable and
certain means to ensure that California's Database and Data Bank Program is fully
compatible with, and a meaningful part of, the nationwide Combined DNA Index System
(CODIS).' " (C.H., supra, 2 Cal.App.5th at pp. 1151–1152.)
Considering these legitimate governmental objectives articulated in Proposition
69, we agree with the C.H. court's conclusion that "[p]reserving 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." (C.H., supra, 2 Cal.App.5th at
p. 1152.) The state's retention of Harris's DNA sample and genetic profile does not
violate her state and federal constitutional right to equal protection of the laws.
2. Privacy Rights
Harris contends that the state's continued retention of her DNA sample and genetic
profile violates her right of privacy under the federal and state constitutions. In
particular, she contends that the government's retention of her DNA violates her right of
privacy under the Fourth Amendment. We conclude that neither the collection of Harris's
18 DNA sample nor the state's retention of the sample after her felony conviction was
reduced to a misdemeanor under Proposition 47 violated her privacy rights under the
federal and state constitutions.
The Fourth Amendment guarantees "[t]he right of the people to be secure in their
persons, houses, papers, and effects, against unreasonable searches and seizures." (U.S
Const., 4th Amend.) "[U]sing a buccal swab on the inner tissues of a person's cheek in
order to obtain DNA samples is a search. Virtually any 'intrusio[n] into the human body,'
[citation], will work an invasion of ' "cherished personal security" that is subject to
constitutional scrutiny' " (Maryland v. King (2013) __ U.S. __ [133 S.Ct. 1958, 1968-
1969] (King).)
" 'As the text of the Fourth Amendment indicates, the ultimate measure of the
constitutionality of a governmental search is "reasonableness." ' [Citation.] [¶]
'Reasonableness . . . is measured in objective terms by examining the totality of the
circumstances' [citation], and 'whether a particular search meets the reasonableness
standard " 'is judged by balancing its intrusion on the individual's Fourth Amendment
interests against its promotion of legitimate governmental interests.' " ' " (People v.
Robinson (2010) 47 Cal.4th 1104, 1120 (Robinson).)
In determining whether a search for which a warrant is not required violates the
Fourth Amendment, " 'we balance the privacy-related and law enforcement-related
concerns to determine if the intrusion was reasonable.' [Citation.] This application of
'traditional standards of reasonableness' requires a court to weigh 'the promotion of
19 legitimate governmental interests' against 'the degree to which [the search] intrudes upon
an individual's privacy.' " (King, supra, 133 S.Ct. at p. 1970.)
"California's Constitution includes an express right to privacy (Cal. Const. art. I,
§ 1), which in many contexts is broader and more protective of privacy than the right to
privacy implied in the federal Constitution. [Citation.] [¶] The evaluation of privacy
claims under our state Constitution requires (1) the identification of a specific, legally
protected privacy interest, (2) a determination whether there is a reasonable expectation
of privacy in the circumstances, (3) an assessment of the extent and gravity of the alleged
invasion of privacy, and (4) a balancing of the invasion against legitimate and competing
interests. [Citation.] The key element in this process is the weighing and balancing of
the justification for the conduct in question against the intrusion on privacy resulting
from the conduct whenever a genuine, nontrivial invasion of privacy is shown." (Alfaro
v. Terhune (2002) 98 Cal.App.4th 492, 508–509.) "[T]he balancing process required by
our state constitutional right of privacy is precisely the same process that other
jurisdictions have applied in upholding the validity of DNA data base and data bank acts
[under the Fourth Amendment]." (Id. at p. 509.)
Thus, with respect to both the federal and California constitutions, we determine
whether the state's retention of Harris's DNA sample violates her constitutional right of
privacy by balancing the intrusion on her privacy resulting from the retention against the
legitimate and competing state interests in the retention.
The collection of Harris's DNA sample was minimally intrusive on her privacy. In
King, the United States Supreme Court, in rejecting a Fourth Amendment challenge to
20 Maryland's DNA Collection Act, observed that "[t]he expectations of privacy of an
individual taken into police custody 'necessarily [are] of a diminished scope.' " (King,
supra, 133 S.Ct. at p. 1978; accord, Haskell v. Harris (9th Cir. 2012) 669 F.3d 1049,
1058 (Harris) [Felony arrestees have a "significantly diminished expectation of
privacy."].) "It is beyond dispute that 'probable cause provides legal justification for
arresting a person suspected of crime, and for a brief period of detention to take the
administrative steps incident to arrest.' " (King, supra, 133 S.Ct. at p. 1970.)
The procedure of collecting DNA by buccal swab is minimally intrusive
physically. "The procedure is quick and painless. The swab touches inside an arrestee's
mouth, but it requires no 'surgical intrusio[n] beneath the skin,' [citation], and it poses no
'threa[t] to the health and safety' of arrestees. . . ." (King, supra, 133 S.Ct. at p. 1968.)
"Nearly half a century ago, the Supreme Court upheld as 'reasonable' a hospital's
extraction of a blood sample, which was done '[a]t the direction of a police officer' who
was investigating a person suspected of driving under the influence." (Harris, supra, 669
F.3d at p. 1058, citing Schmerber v. California (1966) 384 U.S. 757, 758, 771.)
Collecting DNA by buccal swab "is far less invasive than the blood test approved in
Schmerber. . . . The buccal swab cannot seriously be viewed as an unacceptable violation
of a person's bodily integrity." (Harris, at p. 1059.) And "a swab of this nature does not
increase the indignity already attendant to normal incidents of arrest." (King, at p. 1979.)
Moreover, the state's use of DNA samples collected under the Database Act is
strictly limited by statute. DNA samples may be released only to law enforcement
agencies (§ 299.5, subd. (f)), and any person who knowingly uses a DNA sample "for
21 other than criminal identification or exclusion purposes, or for other than the
identification of missing persons, or who knowingly discloses DNA or other forensic
identification information . . . to an unauthorized individual or agency, for other than
criminal identification or exclusion purposes, or for the identification of missing
persons . . . [is subject to punishment by] imprisonment in a county jail not exceeding one
year or by imprisonment in the state prison for 16 months, or two or three years."
(§ 299.5, subd. (i)(1)(A).)
"A DNA profile contains only thirteen 'junk DNA' markers that are not linked to
any genetic or physical trait. They are used only to identify the individual." (Harris,
supra, 669 F.3d at p. 1059; § 295.1, subd. (a) ["The Department of Justice shall perform
DNA analysis and other forensic identification analysis . . . only for identification
purposes."].) We agree with the Harris court that "[g]iven the minimal amount of
information contained in a DNA profile, . . . DNA, as collected and used under the 2004
Amendment [to the DNA Database Act], is substantially indistinguishable from
traditional fingerprinting as a means of identifying arrestees and, incidentally, tying
arrestees to criminal investigations." (Harris, supra, 669 F.3d at pp. 1059–1060.) "With
regard to any privacy interest in identifying information, it is established that individuals
in lawful custody cannot claim privacy in their identification." (Robinson, supra, 47
Cal.4th at p. 1121.)
Addressing the governmental-interest side of the constitutional right of privacy
balancing test, the King court observed that "[w]hen probable cause exists to remove an
individual from the normal channels of society and hold him in legal custody, DNA
22 identification plays a critical role in serving [governmental] interests." (King, supra, 133
S.Ct. at p. 1971.) Those interests include knowing who has been arrested; ensuring that
the custody of an arrestee does not create inordinate risks for facility staff and detainees;
ensuring that persons accused of crimes are available for trial; preventing crime by
arrestees by assessing the danger they pose to the public; and freeing a person wrongfully
imprisoned for a crime the arrestee committed. (Id. at pp. 1972–1974). As noted,
Proposition 69 identified California's interests in maintaining an expansive DNA
database, including the identification of missing and unidentified persons; effective crime
solving; identification, apprehension, and conviction of serial offenders; and ensuring that
California's DNA database is compatible with and a part of CODIS. (C.H., supra, 2
Cal.App.5th at pp. 1151–1152.)
We conclude that these legitimate governmental interests served by buccal swab
collection of DNA samples from felony arrestees greatly outweigh the minimal intrusion
on privacy that the collection entails. As the King court stated, "DNA identification of
arrestees is a reasonable search that can be considered part of a routine booking
procedure. When officers make an arrest supported by probable cause to hold for a
serious offense and they bring the suspect to the station to be detained in custody, taking
and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and
photographing, a legitimate police booking procedure that is reasonable under the Fourth
Amendment." (King, supra, 133 S.Ct. at p. 1980.)
Because the collection of Harris's DNA sample was lawful, she does not have a
constitutional right to its expungement. (People v. Baylor (2002) 97 Cal.App.4th 504,
23 507–508; Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 823.) California's
interests in maintaining an expansive DNA database justify both the collection and
retention of DNA samples from persons required to provide them under section 296,
subdivision (a). Considering the limited scope of the DNA information collected, the
strict limits on the state's use of the DNA, and the criminal punishment imposed on
persons who violate those limitations, we conclude that the state's legitimate interests in
the retention of Harris's DNA sample outweigh any privacy interest that Harris has in its
expungement.
24 DISPOSITION
The order denying Harris's motion to expunge her DNA sample from the state's
database is affirmed.
BENKE, J., Acting P.J.
WE CONCUR:
HUFFMAN, J.
AARON, J.