In re X.H. CA1/5

Filed 6/21/16 In re X.H. CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 X.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. X.H., A146107 Defendant and Appellant. (Contra Costa County Super. Ct. No. J14-00200)

X.H. appeals from an order denying his request to have his DNA record expunged from the state databank after his juvenile adjudication of grand theft person was reduced from a felony to a misdemeanor under Penal Code section 1170.18, part of the Safe Neighborhoods and Schools Act (Proposition 47).1 Another division of this court has concluded that in light of recent legislation clarifying existing law, juvenile defendants are not entitled to have their DNA records expunged as part of a Proposition 47 reduction, even if they would not have been required to provide DNA samples if their crimes had originally been adjudicated as misdemeanors. (In re J.C. (2016) 246 Cal.App.4th 1462, pet. filed June 3, 2016.) We agree and therefore affirm.

1 Further statutory references are to the Penal Code unless otherwise indicated.

1

I. BACKGROUND In February 2014, when he was 14 years old, appellant took some headphones from a student who had borrowed them from another student, Z.H. After unsuccessfully attempting to reclaim the headphones from appellant, Z.H. reported the incident to school authorities, who retrieved the headphones from appellant’s backpack. Later in the day, appellant punched Z.H. several times for having “snitched” on him. The Contra Costa County District Attorney filed a juvenile wardship petition under Welfare and Institutions Code section 602 alleging appellant had committed five offenses: grand theft person (§ 487, subd. (c)), receiving stolen property (§ 496, subd. (a)), intimidating a witness (§ 136.1, subd. (c)(1)), assault by means of force likely to cause great bodily injury (§ 245, subd. (a)(4)), and battery on school property (§§ 242, 243.2, subd. (a)(1)). On June 9, 2014, appellant admitted a felony violation of grand theft person in violation of section 487, subdivision (c), and a misdemeanor violation of assault by means of force likely to cause great bodily injury in violation of section 245, subdivision (a)(4), in exchange for dismissal of the remaining charges. At the dispositional hearing held June 24, 2014, appellant was declared a ward of the juvenile court and placed on probation subject to various conditions, including the requirement he provide a DNA sample under section 296.1. On November 4, 2014, the voters enacted Proposition 47, which “reclassified certain drug-and theft-related offenses that were felonies or ‘wobblers’ as misdemeanors, and provided a resentencing process for individuals who would have been entitled to lesser punishment if their offenses had been committed after its enactment.” (People v. Rouse (2016) 245 Cal.App.4th 292, 294.) Newly-enacted section 1170.18, subdivision (a), allows a “person currently serving a sentence for a conviction, whether by trial or plea, of a felony or felonies who would have been guilty of a misdemeanor . . . had this act been in effect at the time of the offense” to apply for resentencing as if the crime were a misdemeanor. Section 1170.18 applies to juvenile defendants as well as adults. (Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, 1216–1217 (Alejandro N.).)