Laird was arrested on felony marijuana charges in May 2014, at which time he
provided his DNA by mouth swab (buccal swab). He pleaded guilty to one felony count
for violating Health and Safety Code section 11357, subdivision (a) for possessing not
more than eight ounces of concentrated cannabis.1 As part of his plea, the state agreed to
reduce the charge to a misdemeanor after 18 months of successful, informal probation. In
October 2016, Laird filed a petition for reduction of his offense to a misdemeanor under
Penal Code section 1170.18, subdivisions (f) and (g).2 The court granted the petition. In
March 2017, Laird filed a petition asking the court to set aside the misdemeanor
conviction and to designate an infraction under Proposition 64, which the court did.
1 A subsequent declaration by Laird as well as the charging document and the police officer's report indicate Laird was not in possession of concentrated cannabis, but he possessed less than 28.5 grams of cannabis at the time of his arrest.
2 Further statutory references are to the Penal Code unless otherwise specified. 2
Laird then moved to have his DNA expunged from the state's database, which the court
denied.
DISCUSSION
Laird contends his conviction's redesignation to an infraction for all purposes
under Proposition 64 justifies his DNA sample's expungement under that proposition, as
well as under Proposition 69. As we explain, we disagree.
The interpretation of a statute is a question of law, subject to de novo review.
(Goodman v. Lozano (2010) 47 Cal.4th 1327, 1332.) We review voter initiatives by
applying the same principles that govern our interpretation of statutes passed by the
Legislature. (People v. Rizo (2000) 22 Cal.4th 681, 685.) In doing so, we turn first to the
words of the provision adopted by voters, giving language its plain and ordinary
meaning. (People v. Birkett (1999) 21 Cal.4th 226, 231.) If the language is ambiguous,
"we refer to other indicia of the voters' intent, particularly the analyses and arguments
contained in the official ballot pamphlet." (Id. at p. 243.) We construe statutory
language "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 frame work as a whole." (People v. Cole (2006) 38 Cal.4th 964, 975.)
A. Proposition 64 does not require DNA expungement
As a general rule, unless a statute expressly states it is retroactive, it is treated
prospectively. (People v. Brown (2012) 54 Cal.4th 314, 324.) A statute will not be
applied retroactively unless there is clearly intent to do so. (Id. at p. 319; § 3 ["No part of
[the Penal Code] is retroactive, unless expressly so declared."].) Proposition 64 is silent
3
as to the scope of its retroactivity beyond providing a procedure for application of a lesser
punishment to persons who have already been sentenced. (See Health & Saf. Code,
§ 11361.8; but see People v. Rascon (2017) 10 Cal.App.5th 388, 394 (Rascon)
["Proposition 64 . . . 'is not silent on the question of retroactivity.' . . . It provides for a
procedure . . . 'for application of the new lesser punishment to persons who have
previously been sentenced' "].) The statute's purpose is to reduce penalties through
redesignation of marijuana felonies to misdemeanors or infractions. (Ballot Pamp., Gen.
Elec. (Nov. 8, 2016) text of Prop. 64, §§ 2(G) & 3, subd. (z)., pp. 179-180 (Prop. 64
Voter Materials).) Consistent with this stated purpose, Proposition 64 has been used to
resentence a defendant based on the redesignated offense after a court review determines
the offender does not pose a threat to public safety. (Rascon, at p. 394.) However, case
law to date has not considered whether Proposition 64 resentencing and redesignation
relate back to the original plea and conviction for purposes of DNA expungement. We
conclude they do not.
Like Proposition 64, which reduces some convictions from felonies to
misdemeanors "for all purposes" and some from misdemeanors to infractions "for all
purposes," section 1170.18 reduces some convictions from felonies to misdemeanors "for
all purposes." "[I]dentical language appearing in separate statutory provisions should
receive the same interpretation when the statutes cover the same or analogous subject
matter." (People v. Cornett (2012) 53 Cal.4th 1261, 1269, fn. 6; People v. Rayford
(1994) 9 Cal.4th 1, 20.) Because "[t]he electorate 'is presumed to be aware of existing
laws and judicial construction thereof,' " (People v. Gonzales (2017) 2 Cal.5th 858, 869,
4
quoting In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11), for guidance we look to how
courts have interpreted the meaning of the phrase "for all purposes" in the context of
redesignated convictions.
Proposition 47, the Safe Neighborhoods and Schools Act, reclassifies certain drug
and theft felonies to misdemeanors. (§ 1170.18.) Section 1170.18, a provision added by
Proposition 47, states a person who was found to have committed a felony, but "would
have been guilty of a misdemeanor under [Proposition 47] . . . had [it] been in effect at
the time of the offense" can request a redesignation of the felony as a "misdemeanor for
all purposes" except as to restrictions to firearm ownership and possession. (§ 1170.18,
subds. (a), (f), & (k).) Therefore, Proposition 47 is retroactive to the extent it is
applicable to crimes committed before its passage. However, redesignation does not alter
the original status of the charge as a felony, so the triggering event for the obligation to
provide a DNA sample is unaffected by the later change in offense. (In re C.H. (2016) 2
Taken together, sections 296 and 299 require a DNA sample from an offender who
is convicted of or pleads guilty to a felony, and expungement of the sample is not
permitted if the offender is guilty of a past or present qualifying offense. (§§ 296, subd.
(a) & 299, subds. (a) & (f).) Subdivision (f) of section 299 places these limitations on
expungement notwithstanding any other law, including sections 1170.18, 1203.4, and
1203.4a.7
Laird was a "qualifying person" under section 296 because he was arrested and
charged with a felony offense and because he pleaded guilty to a felony offense. (See
§ 296, subd. (a).) The issue is whether, based on the redesignation of the offense to an
infraction for all purposes, his status as a "qualifying person" is retroactively removed,
meaning expungement is required because he has "no past or present offense or pending
charge which qualifies [him] for inclusion within" the database. (§ 299, subd. (a).)
While Laird's felony conviction was redesignated an infraction for all purposes, the
retroactive impact is limited to ameliorate the punitive effects of the conviction. (See
5 We include C.B. as persuasive authority pending review by the California Supreme Court. (Cal. Rules of Court, rule 8.1115.)
6 We include Harris as persuasive authority pending review by the California Supreme Court. (Cal. Rules of Court, rule 8.1115.)
7 Section 1170.18 was added to this nonexhaustive list in 2017 as part of Assembly Bill Number 1492 (AB 1492) after the passage of Proposition 47 and before Proposition 64. (Harris, supra, 15 Cal.App.5th at p. 54; C.B., supra, 2 Cal.App.5th at p. 1120.) 9
People v. Buycks (2018) 5 Cal.5th 857, 876, 878 (Buycks).) DNA collection and
retention is not punitive. (Good, supra, 158 Cal.App.4th at p. 1508.) Thus, the
redesignation has no effect on the DNA retention.
Additionally, analogous case law indicates the redesignation does not justify
expungement under Proposition 69. In J.C., after the felony was reduced to a
misdemeanor for all purposes, the trial court denied the request for DNA expungement,
concluding a felony conviction redesignated as a misdemeanor for all purposes is treated
as a felony until the time of redesignation. (J.C., supra, 246 Cal.App.4th at pp. 1467,
1479.) The felony before redesignation is a "past offense" which qualifies for inclusion
in the DNA database. (Id. at p. 1479.) Similarly, in C.B., a juvenile offender's felony
grand theft offense was redesignated to a misdemeanor under Proposition 47, but the
court denied C.B.'s request for expungement of DNA records because C.B. admitted
committing the felony, which meant he had a past qualifying offense. (C.B., supra, 2
Cal.App.5th at pp. 1115-1116, 1123-1124, discussing § 299, subd. (f).) Finally, in
Harris, the trial court reduced the defendant's felony to a misdemeanor for all purposes,
but it denied the request for DNA expungement. (Harris, supra, 15 Cal.App.5th at p.
52.) We concluded that the amendments to the DNA Database Act, read in conjunction
with Proposition 47, prohibits DNA expungement when a felony is reduced to something
less serious because the guilty plea established a qualifying offense. (Id. at pp. 55-56, 58-
59.)
Before us now is an expungement request similar to the situation that faced the
defendant in Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209, superseded by
10
statute as stated in Harris, supra, 15 Cal.App.4th 47, in which we directed the superior
court to reconsider the expungement request of a juvenile whose offense was
redesignated under Proposition 47 to a misdemeanor for all purposes. (Alejandro N., at
pp. 1227-1230.) There is one notable difference: when we decided Alejandro N., AB
1492 was not available to guide us. Laird urges us to follow our reasoning in Alejandro
N. because we decided it before the Legislature amended section 299 to reference section
1170.18, while Harris was published later. He attempts to distinguish his case from the
Proposition 47 cases based on the omission of Health and Safety Code section 11361.8
from the expungement statute. However, the exclusion of Health and Safety Code
section 11361.8 is not determinative. The list in subdivision (f) of section 299 is
nonexhaustive; " 'the words "include" and "including" are ordinarily words of
enlargement, and not of limitation.' " (People v. Wesson (2006) 138 Cal.App.4th 959,
968, quoting People v. Horner (1970) 9 Cal.App.3d 23, 27.) Thus, including a specific
reference to Health and Safety Code section 11361.8 is unnecessary. Moreover, the
addition of section 1170.18 to subdivision (f) of section 299 clarified the Legislature's
intention to limit court authorization of DNA expungement, the opposite of what Laird
now seeks. (Harris, supra, 15 Cal.App.5th at pp. 58-59.) We read the language of the
statute plainly: Health and Safety Code section 11361.8 is another law, and its existence
does not separately authorize a court to expunge a DNA sample. (See § 299, subd. (f).)
Our reasoning in Harris applies here. Though Laird's conviction was redesignated
under Proposition 64 from a misdemeanor for all purposes to an infraction for all
purposes and Harris's redesignation was to a misdemeanor for all purposes, this
11
difference is meaningless for purposes of DNA expungement. Laird, like Harris, pleaded
guilty to a felony, which was a "qualifying offense." For both Laird and Harris, section
299 does not authorize DNA expungement because the plea to a felony is a past
qualifying offense. (§ 299, subd. (a).)
Finally, Laird argues the rule of lenity justifies DNA expungement under
Proposition 64. The rule of lenity is unhelpful to Laird. It exists to " 'ensure[] that
criminal statutes will provide fair warning concerning conduct rendered illegal and
strikes the appropriate balance between the legislature, the prosecutor, and the court in
defining criminal liability. [Citation.]' " (People ex rel. Lungren v. Superior Court
(1996) 14 Cal.4th 294, 312-313, quoting Liparota v. United States (1985) 471 U.S. 419,
427.) Here there is no concern that Laird lacked warning regarding the impact of his
conduct. At the time he committed the offense, Laird was lawfully required to provide a
DNA sample. Additionally, he acknowledged part of his plea agreement that he would
provide DNA samples under section 296.
C. Retention of Laird's DNA sample does not violate his constitutional rights
1. Equal protection rights
Laird contends retention of his DNA sample in the state's data bank violates
federal and state equal protection clauses because he is similarly situated to persons
charged with infractions, and those offenders do not provide DNA samples. We disagree.
We review an equal protection claim de novo. (California Grocers Assn. v. City
of Los Angeles (2011) 52 Cal.4th 177, 208.) The California equal protection clause offers
substantially similar protection to the federal equal protection clause. (Manduley v.
12
Superior Court (2002) 27 Cal.4th 537, 571-572.) For a successful equal protection claim,
Laird must show the state classifies two similarly situated groups in an unequal way.
(Harris, supra, 15 Cal.App.5th at p. 60.) We consider whether the identified groups are
similarly situated for the purposes of the challenged law. (Cooley v. Superior Court
(2002) 29 Cal.4th 228, 253; People v. Moreno (2014) 231 Cal.App.4th 934, 941-942
["[A]n 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."].) Additionally, the Legislature can
classify groups as different "so long as a reasonable basis for the distinction exists."
(People v. Floyd (2003) 31 Cal.4th 179, 189-190 (Floyd).)
The premise of Laird's argument is that DNA samples are not collected from
offenders convicted only of an infraction, and as a person now convicted of an infraction
for all purposes, the collection and retention of his DNA sample means he has been
treated differently. However, Laird is not in the same class of persons as the post-
Proposition 64 individuals age 18-20 who are convicted of unlawful possession of
concentrated cannabis. Laird pleaded guilty to and was convicted of a felony, which
places him in a class distinct from post-Proposition 64 individuals who do not plead
guilty to and are not convicted of a felony at any point in time. The distinction is
reasonable because the collection of DNA is administrative and satisfies a legitimate
purpose, as we discuss post. Though Laird contends that before and after Proposition 64,
the penalties for the same offense are different because what was once a felony is now an
13
infraction (see Health & Saf. Code, § 11361.8), the inclusion of Laird's DNA in the state's
data bank is administrative not punitive, as discussed ante. Thus, this distinction does not
form the basis of an equal protection claim.8
Assuming for equal protection purposes that the two groups are similarly situated,
we consider whether disparate treatment is justified. Proposition 69 provides the basis
for retaining DNA and explains the purpose of collecting and maintaining an expansive
DNA database as "(1) [t]he 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) [t]he
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 data bank is limited only to violent crimes; [¶] (3) [t]he 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 [¶]
8 Even if the DNA sample and retention requirement were treated as different penalties, 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." (Floyd, supra, 31 Cal.4th at p. 188.) The Legislature can "confer such benefit only prospectively." (Id. at pp. 189-190.) Likewise, " 'the 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.) 14
(4) [t]he 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)." (Prop. 69 Voter Materials, text of Prop. 69, p.
135.)
Evaluating the analogous Proposition 47 for equal protection, the C.H. court
explained: "Preserving 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 the enactment of Proposition 47, even if they would not be required to provide
DNA if convicted after its effective date." (C.H., supra, 2 Cal.App.5th at p. 1151.) The
same is true for Proposition 64; the purposes provided for collecting and retaining the
DNA of all individuals who plead guilty to a felony serve a rational basis, even when
those convictions are later reduced to a charge that would not have originally required
DNA collection.
2. Privacy rights
Laird contends the collection of the DNA sample violates his Fourth Amendment
protections because his DNA was collected when he was booked, without a probable
cause determination and without indication, a warrantless search would be appropriate.
This argument is premised on the notion that a redesignation to an infraction for all
purposes means there is no authority to collect or retain a DNA sample because the
redesignation relates back to the time of the plea. He also contends the retention of his
DNA sample in the state's data bank violates his constitutional right of privacy under
federal and state law. We find Laird's first contention unpersuasive for reasons we have
15
already discussed. Because Laird was charged with and convicted of a felony, the
collection of his DNA did not violate his privacy rights. The retention of Laird's DNA
sample likewise does not violate Laird's state or federal right to privacy because a
balancing of the intrusion from DNA retention against legitimate, competing state
interests tips the balance in favor of the state.
The Fourth Amendment to the United States Constitution and the California
Const., art. I, § 13.) There is no dispute that taking a buccal swab from the inside cheek
of an individual to obtain a DNA sample is a search. (Maryland v. King (2013) 569 U.S.
435, 446 (King).) Thus, the measure of constitutionality is "reasonableness." (People v.
Buza (2018) 4 Cal.5th 658, 671 (Buza).) " '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.) To
determine if a search 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 legitimate governmental interests' against 'the degree to which
[the search] intrudes upon an individual's privacy.' " (King, supra, 569 U.S. 435 at p.
448.)
16
California's Constitution expressly provides for privacy. (Cal. Const., art. I, § 13.)
"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." (Alfaro v. Terhune (2002) 98 Cal.App.4th
492, 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, we evaluate whether the requirement that Laird provide the DNA sample is
reasonable, balancing the intrusion to his privacy resulting from its collection and
retention against the state's legitimate and competing state interests.
An individual in police custody has a diminished expectation of privacy. (King,
supra, 569 U.S. at pp. 447-448.) The collection of a DNA sample via buccal swab is a
"brief and minimal intrusion with 'virtually no risk, trauma, or pain,' [citation] [that] does
not increase the indignity already attendant to normal incidents of arrest." (Id. at p. 438,
quoting Schmerber v. California (1966) 384 U.S. 757, 771; Harris, supra, 15
Cal.App.5th at p. 64.) The DNA samples retained in the data bank are limited to markers
not linked to a genetic or physical trait and used for identification purposes only. (King,
at p. 438; Harris, at p. 64.) Additionally, the state's use of DNA samples is limited by
statute, which permits release only to law enforcement agencies. (§ 299.5, subd. (f).) A
person who knowingly uses a DNA sample for purposes other than identification or who
17
discloses the DNA to unauthorized persons for uses other than criminal identification or
exclusion or to identify a missing person is subject to punishment. (§ 299.5, subd.
(i)(1)(A).) These statutes create a duty to avoid unwarranted disclosures of the DNA
information and thus help to ameliorate privacy concerns. (King, supra, 569 U.S. at p.
465.)
There are legitimate government interests served by the collection and retention of
DNA samples. As we noted ante, Proposition 69 identified state interests in maintaining
an expansive DNA database related to identification and crime solving. Additional
interests include "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." (Harris,
supra, 15 Cal.App.5th at p. 65.)
Laird emphasizes that DNA collection from convicted felony offenders is
distinguishable from DNA collection from those convicted of an infraction, noting that
case law has not held retention of DNA samples is warranted when a Proposition 64
beneficiary obtains an infraction for all purposes. But Laird's DNA collection resulted
from his felony arrest and conviction, and his conviction's later reduction to an infraction
for all purposes does not relate back to the original charge for purposes of administrative
acts. (See Buycks, supra, 5 Cal.5th at pp. 876, 878.)
In Buza the California Supreme Court considered whether Proposition 69's DNA
collection requirement is valid as applied to an individual who is "validly arrested on
18
'probable cause to hold for a serious offense' " and concluded "the requirement is valid
under both the federal and state Constitutions."9 (Buza, supra, 4 Cal.5th at p. 665.) The
United States Supreme Court has similarly held "the initial collection of a DNA sample
and its subsequent processing pursuant to CODIS procedures is, 'like fingerprinting and
photographing, a legitimate police booking procedure that is reasonable under the Fourth
Amendment.' " (Id. at p. 671, quoting King, supra, 569 U.S. at pp. 465-466.)
Even with Laird's redesignation to an infraction for all purposes, the state's
legitimate interests in the collection and retention of Laird's DNA, especially in light of
"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," outweighs any privacy interest Laird may have in expungement. (See
Harris, supra, 15 Cal.App.5th at p. 65.)
9 The California Supreme Court declined to evaluate whether the Fourth Amendment requires expungement of an arrestee's DNA sample or identification profile after an arrest has been shown invalid or the arrestee is cleared of charges. (Buza, supra, 4 Cal.5th at p. 679.) However, like the defendant in Buza, Laird was arrested and convicted on a felony charge. 19
DISPOSITION
The order denying Laird's motion to expunge his DNA sample from the state's
database is affirmed.
O'ROURKE, Acting P. J.
WE CONCUR:
AARON, J.
GUERRERO, J.
20
Filed 9/21/18
CERTIFIED FOR PUBLICATION
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D072642
Plaintiff and Respondent,
v. (Super. Ct. No. SCD256119)
GAVIN SCOTT LAIRD, ORDER MODIFYING OPINION AND CERTIFYING FOR Defendant and Appellant. PUBLICATION
NO CHANGE IN JUDGMENT
THE COURT:
It is ordered that the opinion filed August 30, 2018, be modified as follows:
1. On page 17, the first full paragraph, the first sentence and citation is deleted and replaced with the following:
California's Constitution expressly provides for privacy. (Cal. Const., art. I, § 1.)
There is no change in judgment.
The opinion was not certified for publication. It appearing the opinion meets the
standards for publication specified in California Rules of Court, rule 8.1105(c), the
request pursuant to rule 8.1120(a) for publication is GRANTED.
IT IS HEREBY CERTIFIED that the opinion meets the standards for publication
specified in California Rules of Court, rule 8.1105(c); and
21
ORDERED that the words "Not to Be Published in the Official Reports" appearing
on page 1 of said opinion be deleted and the opinion herein be published in the Official
Reports.
O'ROURKE, Acting P. J.
Copies to: All parties
22
AI Brief
AI-generated · verify before citing
Holding. The redesignation of a felony marijuana conviction to an infraction under Proposition 64 does not entitle an offender to the expungement of a DNA sample previously collected under the DNA Database Act. Because DNA collection is an administrative procedure rather than a punitive one, the redesignation does not retroactively invalidate the original felony-based requirement for DNA submission.
Issues
Does the redesignation of a felony conviction to an infraction under Proposition 64 require the expungement of a previously collected DNA sample?
Does the retention of a DNA sample after a conviction is reduced to an infraction violate equal protection or privacy rights?
Does the DNA Database Act authorize the expungement of DNA samples when the underlying felony conviction is later reduced to an infraction?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude it does not and affirm the trial court's order.”