People v. Laird

• Decision Date: 30 August 2018
• Docket Number: D072642
• Citation: 27 Cal.App.5th 458,238 Cal.Rptr.3d 313
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Gavin Scott LAIRD, Defendant and Appellant.

27 Cal.App.5th 458

238 Cal.Rptr.3d 313

The PEOPLE, Plaintiff and Respondent,

v.Gavin Scott LAIRD, Defendant and Appellant.

D072642

Court of Appeal, Fourth District, Division 1, California.

Filed August 30, 2018

As Modified September 21, 2018

Angela Bartosik, 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, Senior Assistant Attorney General, Enid Camps and Adrian R. Contreras, Deputy Attorneys General, for Plaintiff and Respondent.

O'ROURKE, Acting P. J.Gavin Laird appeals the denial of his motion for expungement of his DNA sample from the state's data bank following a reduction in his conviction to an infraction "for all purposes" under Proposition 64. His appeal raises an issue of first impression: when an offender whose guilty plea to a felony marijuana conviction is later reduced to an "infraction for all purposes," does the redesignation justify expungement of his previously collected DNA sample from the state's database? We conclude it does not and affirm the trial court's order.

BACKGROUND

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. 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, 104 Cal.Rptr.3d 219, 223 P.3d 77.) 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, 94 Cal.Rptr.2d 375, 996 P.2d 27.) 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, 87 Cal.Rptr.2d 205, 980 P.2d 912.) 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, 87 Cal.Rptr.2d 205, 980 P.2d 912.) 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, 44 Cal.Rptr.3d 261, 135 P.3d 669.)

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, 142 Cal.Rptr.3d 824, 278 P.3d 1182.) A statute will not be applied retroactively unless there is clearly intent to do so. ( Id. at p. 319, 142 Cal.Rptr.3d 824, 278 P.3d 1182 ; § 3 ["No part of [the Penal Code] is retroactive, unless expressly so declared."].) Proposition 64 is silent 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, 216 Cal.Rptr.3d 385 ( 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, 216 Cal.Rptr.3d 385.) 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, 139 Cal.Rptr.3d 837, 274 P.3d 456 ; People v. Rayford (1994) 9 Cal.4th 1, 20, 36 Cal.Rptr.2d 317, 884 P.2d 1369.) 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, 216 Cal.Rptr.3d 285, 392 P.3d 437, quoting In re Lance W. (1985) 37 Cal.3d 873, 890, fn. 11, 210 Cal.Rptr. 631, 694 P.2d 744 ), 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 Cal.App.5th 1139, 1147, 206 Cal.Rptr.3d 775, rev. granted Nov. 16, 2016, No. S237762 ( C.H. ).)³

The language of redesignation in Propositions 47 and 64 is nearly identical; Proposition 64 states that a conviction that is recalled and resentenced "shall be considered a misdemeanor or infraction for all purposes." ( Health & Saf. Code, § 11361.8, subd. (h).) However, the later redesignation as an infraction does not change the character of the original charge for administrative actions occurring before the redesignation, and the original felony guilty plea is a proper basis for collecting a DNA sample. (See C.H., supra , 2 Cal.App.5th at p. 1147, 206 Cal.Rptr.3d 775.)

Laird's argument that voter intent supports DNA expungement is unfounded because Proposition 64 is silent on the topic of DNA. Laird contends the lack of reference to expungement means the proposition does not authorize the ongoing retention of an offender's DNA in the database. This misstates the significance of the omission. It would be improper to read anything DNA-related into Proposition 64 because we are not authorized to add text to a statute's language. ( Hampton v. County of San Diego (2015) 62 Cal.4th 340, 350, 195 Cal.Rptr.3d 773, 362 P.3d 417.)

Proposition 64 was intended to decriminalize certain marijuana offenses by reducing sentences, dismissing marijuana-related offenses from criminal records, and prohibiting refiling of charges after prior marijuana-related convictions are reduced. (Prop. 64 Voter Materials, text of Prop. 64, § 3, subd. (z), p. 180.) To conclude DNA retention is included within the goal of reduced penalties would require us to conclude DNA collection and retention are punishments. However, DNA collection "is not punitive, does not involve concepts of retroactivity or ex post facto implications, but is confined to a simple administrative identifying procedure akin to fingerprinting or keeping ones' whereabouts known to law enforcement." ( Good v. Superior Court (2008) 158 Cal.App.4th 1494, 1508, 71 Cal.Rptr.3d 125 ( Good ); see § 299, subd. (f) [referencing the DNA sample as a "separate administrative duty"].) Because DNA collection occurs at the time of the felony arrest (§ 296.1) and is administrative ( Good , at p. 1508, 71 Cal.Rptr.3d 125 ; § 299, subd. (f) ), the redesignation to an infraction for all purposes under Proposition 64 does not relate back to the initial charge for purposes of DNA expungement.

B. Proposition 69 does not authorize DNA expungement

The DNA and Forensic Identification Database and Data Bank Act of 1998 (DNA Database Act), section 295 et seq., requires qualifying persons to submit buccal swab DNA samples (§ 296, subd. (a) ) and describes procedures for expunging the samples (§ 299). Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act, amended the DNA Database Act in 2004 by expanding the pool of persons who must submit DNA samples. ( Good, supra , 158 Cal.App.4th at p. 1498, 71 Cal.Rptr.3d 125.) The DNA submission requirements "apply to all qualifying...