Good v. Superior Court

• Decision Date: 16 January 2008
• Docket Number: No. A117317.,A117317.
• Citation: 71 Cal.Rptr.3d 125,158 Cal.App.4th 1494
• Parties: Sylver Dean GOOD, Petitioner, v. The SUPERIOR COURT of Humboldt County, Respondent; The People, Real Party in Interest.
• Court: California Court of Appeals Court of Appeals

71 Cal.Rptr.3d 125

158 Cal.App.4th 1494

Sylver Dean GOOD, Petitioner, v. The SUPERIOR COURT of Humboldt County, Respondent The People, Real Party in Interest.

No. A117317.

Court of Appeal, First District, Division 1.

January 16, 2008.

As Modified February 1, 2008.

Kevin S. Robinson, Public Defender and Michael E. Eannarino, Deputy Public Defender, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman and Enid A. Camps, Deputy Attorneys General, for Real Party in Interest.

MARCHIANO, P.J.

Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act of 2004, substantially expanded the range of persons who must submit DNA samples to the state's forensic identification data bank. The expansion included misdemeanants who must register as sex offenders pursuant to former Penal Code section 290.¹ In this case we hold that Proposition 69 requires misdemeanants who must register as sex offenders to provide DNA samples, regardless of whether the conviction triggering the registration requirement occurred before or after the 2004 passage of Proposition 69.

I. FACTUAL & PROCEDURAL BACKGROUND

Petitioner Sylver Dean Good was convicted of indecent exposure (§ 314, subd. (1)), a misdemeanor, in 1996.² Because of this conviction, Good has an ongoing, lifetime obligation to annually register as a sex offender under the Sex Offender Registration Act, and to update his registration whenever he changes his residence. (§§ 290, subds. (b) & (c), 290.012, subd. (a), 290.013, subd. (a).)³

At the time of Good's conviction, collection of DNA samples was governed by former section 290.2, which only required DNA samples from defendants who were required to register as sex offenders because of convictions for certain felonies, and who were confined in a state prison or a state hospital. (Former § 290.2, added by Stats.1983, ch. 700, § 1, pp. 2680-2681 and repealed by Stats.1998, ch. 696, § 1, p. 3718; see Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 497-98, 120 Cal.Rptr.2d 197.) Thus, at the time of his 1996 conviction Good was required to register as a sex offender, but was not required to provide a DNA sample.

Good successfully completed a three-year term of probation in 1999, but was required to register as a sex offender annually.

As we shall discuss further below, the 2004 passage of Proposition 69 changed the law to mandate that all persons required to register as sex offenders, misdemeanants as well as felons, submit DNA samples. On September 20, 2005, the Eureka Police Department sent Good a letter directing him to report to the department and submit a DNA sample.

Good filed a motion for declaratory relief in the trial court, arguing the change in the law was not retroactive to his 1996 conviction. The trial court denied relief, ruling that Proposition 69 applied to Good and required him to submit a DNA sample. Good filed a petition for writ of mandate/prohibition with the appellate department of the superior court. The appellate department denied the petition, rejecting Good's retroactivity argument as follows:

"The difficulty with [Good's] argument is that it assumes that the operative factor in requiring provision of the [DNA] samples is the conviction. Such is not the case. Rather, it is the present requirement to register under ... [former] section 290 that is the operative fact giving rise to the requirement to submit to sample collection." (Italics added.)

Good petitioned this court for a writ of prohibition. We issued a stay and an order to show cause, and the People have filed a return.

II. STATUTORY BACKGROUND

As we have noted, DNA sample collection at the time of Good's 1996 conviction was limited to defendants who were required to register as sex offenders because of convictions for certain felonies, and who were confined in a state prison or a state hospital. There have been two subsequent significant expansions of DNA sample collection: by legislative enactment in 1998 and by initiative, Proposition 69, in 2004.

A. The 1998 Legislation

The DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Stats.1998, ch. 696, § 2, pp. 3718-3729) (Act) added section 295 et seq. to the Penal Code. One of the "primary reasons" for the Act "was the desire to close loopholes" in former section 290.2. (People v. Brewer (2001) 87 Cal.App.4th 1298, 1301, 105 Cal.Rptr.2d 293 (Brewer).) The Act "was intended to reach a broader class of offenders and apply regardless of the sentence imposed or the disposition rendered. [Citation.]" (Brewer, supra, at p. 1302, 105 Cal.Rptr.2d 293.) The Act required DNA samples from defendants convicted of a number of listed felony offenses, as well as defendants required to register for a felony sex offense pursuant to former section 290.

The Act contained clear statements of legislative purpose in section 295. In section 295, subdivision (b)(1), the Legislature found and declared that "Deoxyribonucleic acid (DNA) and forensic identification analysis is a useful law enforcement tool for identifying and prosecuting sexual and violent offenders." (Stats.1998, ch. 696, § 2, p. 3719.) Subdivision (b)(3) of section 295 stated that the Act was "necessary ... to enable the state's DNA and forensic identification data base and data bank program to become a more effective law enforcement tool."

Subdivision (b)(2) of section 295 stated that it was the intent of the Legislature, "in order to further the purposes of [the Act], to require DNA and forensic identification data bank samples for the felony offenses described in subdivision (a) of Section 296." (Stats.1998, ch. 696, § 2, p. 3719.)

These felonies, known as "qualifying offenses," were listed in section 296, subdivision (a)(1). They, included murder, voluntary manslaughter, felony spousal abuse, felony assault or battery, and kidnapping. (Stats.1998, ch. 696, § 2, pp. 3720-3721; see Brewer, supra, 87 Cal.App.4th at p. 1302, 105 Cal.Rptr.2d 293.)

The Act retained the prior law's requirement for DNA samples from felony sex offenders. Section 296, subdivision (a)(2) mandated DNA samples from defendants who had to register as a sex offender "because of the commission of ... a felony offense specified in [former] Section 290 ..." and who are confined, granted probation, or released from a state hospital. (Stats.1998, ch. 696, § 2, p. 3721.)

Section 296 "contemplate] that submission to testing will occur as soon as administratively practicable, regardless of the type of confinement [citation]...." (Brewer, supra, 87 Cal.App.4th at p. 1302, 105 Cal.Rptr.2d 293.)

To that end, section 296.1 set forth administrative procedures for sample collection from certain basic categories of offenders: those sentenced to state prison; those not sentenced to state prison, but instead placed on probation or committed to a county jail; those on parole; those who have violated parole and are returned to prison; those accepted from other states pursuant to an interstate compact; and those incarcerated in federal institutions inside California. (Stats.1998, ch. 696, § 2, pp. 3721-3723.)

Former section 296.2 also set forth administrative procedures. Subdivision (a) involved replacement of inadequate samples. Subdivision (b) formally authorized the DNA Laboratory of the Department of Justice to analyze submitted samples. Subdivision (c) involved registered felony sex offenders, and provided that such offenders who had not yet submitted a sample were to receive an appointment for sample collection when they registered or updated their registration. (Stats.1998, ch. 696, § 2, pp. 3723-3724.)

Division Two of this court interpreted key provisions of the Act in the 2001 Brewer decision. The defendant in Brewer had been convicted of sexual battery and served a prison term for that offense from May 1987 to May 1989. (Brewer, supra, 87 Cal.App.4th at p. 1301, 105 Cal.Rptr.2d 293.) Over 10 years later, in December 1999, he pleaded no contest to grand theft and was placed on three years' probation. As a condition of probation, the trial court ordered the defendant to submit DNA samples under the provisions of the Act. (Ibid.)

Defendant Brewer's past offense of sexual battery was a qualifying offense under the Act; his current offense of grand theft was not. But the trial court imposed the DNA sample requirement under the purported authority of section 296.1, subdivision (d), which required samples from a defendant "who comes within [the Act] for an offense set forth in subdivision (a) of Section 296, and who is on probation or parole...." (Stats.1998, ch. 696, § 2, p. 3722.)

By its express terms, section 296.1, subdivision (d) "shall apply regardless of when the crime committed became a qualifying offense pursuant to [the Act]." (Stats.1998, ch. 696, § 2, p. 3722.) Interpreting this sentence, and noting its language was narrower in scope than a related provision of the Act, the Brewer court concluded that "subdivision (d) applies when the current offense is a qualifying offense, regardless of when the offense became defined as a qualifying offense. Thus, reading the statute as a whole ... we conclude that section 296.1, subdivision (d), applies only when the current conviction is for a qualifying offense." (Brewer, supra, 87 Cal. App.4th at p. 1307, 105 Cal.Rptr.2d 293.)⁴

The court also concluded that legislative history showed that section 296.1, subdivision (d) should not apply when the current conviction is not a qualifying offense, but the defendant has a prior conviction which is a qualifying offense—i.e., that the subdivision should not in essence apply retroactively to past behavior which led to a conviction of a qualifying offense under the Act. (Brewer, supra, 87 Cal.App.4th at p. 1308, 105 Cal.Rptr.2d 293.)

"The Assembly Committee on Appropriations, the "standing committee charged with the bill's...