Minor whose prior offense was reduced to a misdemeanor under Proposition 47 was not entitled to have the record of her DNA expunged. In 2012 the minor admitted an allegation of second degree burglary by shoplifting (Pen. Code, §§ 459/460), at that time a felony. After the passage of Proposition 47, the minor petitioned to have her offense reduced to a misdemeanor. She also requested that her DNA record be expunged from the state databank, because she would not have been required to provide the sample as a misdemeanant. The trial court reduced the offense to a misdemeanor but denied the request for expungement. She appealed. Held: Affirmed. California law requires the collection of DNA samples from all persons convicted of felonies (Pen. Code, §§ 295, 296, subd. (a)(1)), adults arrested or charged with a felony (Pen. Code, § 296, subd. (a)(2)(C)), and all sex registrants (Pen. Code, § 296, subd. (a)(3)). Persons convicted solely of a misdemeanor are not required to provide DNA samples unless they are required to register as a sex offender. A request to expunge DNA records may be filed in certain circumstances, such as reversal of a qualifying conviction and dismissal of the charges (Pen. Code, § 299). However, subdivision (f) of Penal Code section 299, provides a list of statutes that do not allow a trial court to order expungement of DNA records when granting relief, such as Penal Code section 17, which authorizes the reduction of a wobbler offense to a misdemeanor. After the filing of the minor’s petition, the Legislature enacted Assembly Bill No. 1492, which amended Penal Code section 299, to add section 1170.18 to that list. Therefore, where a trial court reduces a felony to a misdemeanor under Proposition 47, it is not authorized to order the expungement of DNA samples. [Editor’s Note: The court stated that contrary authority in Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 (holding minor was entitled to expungement of DNA record where offenses were reduced to misdemeanors) was abrogated by AB No. 1492.]

Assembly Bill No. 1492 applies retroactively to the minor’s request for expungement of DNA data even though it was enacted after her petition was filed. As a general rule, statutes do not operate retroactively unless the Legislature plainly intends them to do so. However, a statute that merely construes and clarifies, rather than changes, existing law is properly applied to transactions predating its enactment. The provisions of AB No. 1492 prohibit the trial court from expunging DNA records in connection with the granting of a Proposition 47 petition. Because Proposition 47 was ambiguous with respect to expungement of records, the new law “clarifies, rather than changes, the meaning of the relevant provisions of Proposition 47” and therefore applies retroactively to preclude the granting of requests for expungement made prior to its enactment.

The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/A146103.PDF