When a felony is reduced to a misdemeanor under Proposition 47, the state may retain an adult misdemeanant’s previously collected DNA sample, taken incident to a felony arrest. In December 2013, Harris pleaded guilty to felony grand theft from the person (Pen. Code, § 487, subd. (c)). After the voters passed Proposition 47 in November 2014, Harris successfully petitioned to have her conviction reduced to a misdemeanor, but the court denied her request to expunge the DNA sample that police took when she was booked on her felony charge. She appealed the denial of expungement. Held: Affirmed. Proposition 47 reduced a number of nonviolent drug and theft-related felonies to misdemeanors and allows qualified offenders previously convicted of such crimes to apply for reduced sentences (Pen. Code, § 1170.18). It added Penal Code section 490.2, which reclassifies grand theft violations under section 487 into misdemeanors when the value of the property taken is $950 or less. Under California law, any adult arrested or charged with any felony offense is required to provide a DNA sample (Pen. Code, § 296, subd. (a)(2)(C)), which applies to all qualifying persons regardless of the sentence imposed. With some exceptions (Pen. Code, § 296, subd. (a)(3)) DNA samples are not collected from misdemeanants. There are statutory provisions to seek expungement of such data where a person has no past or present offense or pending charge which mandates inclusion in the state’s DNA database. (See Pen. Code, § 299.) However, section 299 was recently amended by AB 1492 to add section 1170.18 in its list of statutes that do not relieve a defendant of the requirement of providing a DNA sample and which limits a court’s authority to order expungement (Pen. Code, § 299, subd. (f)). Harris was convicted of an offense that qualified her for inclusion in the state’s DNA database when her DNA was collected. Section 299, subdivision (f) prohibits DNA expungement based on her felony being reduced to a misdemeanor under Proposition 47.
Assembly Bill No. 1492 did not constitute an impermissible amendment of Proposition 47. Harris argued that AB 1492’s addition of Penal Code section 1170.18 to section 299, subdivision (f) constituted an impermissible amendment of Proposition 47. However, not all legislation that concerns the same subject matter as an initiative constitutes an amendment of that legislation. The question is whether the statutory provision prohibits what the initiative authorizes or authorizes what the initiative prohibits. Proposition 47 neither requires nor prohibits the expungement of DNA records. There is no basis for finding the prohibition for expunging DNA records when a felony is reduced to a misdemeanor pursuant to section 1170.18, is inconsistent with Proposition 47’s intent.
Retention of petitioner’s DNA sample does not violate her equal protection rights. Harris argued that she is similarly situated to persons convicted of misdemeanors after Proposition 47’s passage, who are not required to provide DNA samples. Therefore, the retention of her DNA sample after her felony conviction was reduced to a misdemeanor under Proposition 47 violates her right to equal protection of the laws. Assuming the two groups are similarly situated, 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 an offense. In any event, an expansive DNA database aids in effective crime fighting, identification of missing persons, exonerating innocent persons, and increases the number of cold case hits. “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 enactment of Proposition 47, even if they would not be required to provide DNA if convicted after the effective date.” (Quoting In re C.H. (2016) 2 Cal.App.5th 1139, 1152, rev. granted Nov. 16, 2016, S237762.)
The state’s retention of petitioner’s DNA sample does not violate her privacy rights. Harris argued the state’s retention of her genetic profile after her felony was reduced to a misdemeanor violates her Fourth Amendment privacy rights. Obtaining a DNA sample from the inside of an arrestee’s mouth is a search. To determine whether a search for which a warrant is not required violates the Fourth Amendment, the privacy-related and law enforcement-related concerns must be balanced against one another. The state’s use of the DNA sample is strictly limited by statute, i.e., for identification purposes. An arrestee has no reasonable expectation of privacy as to her identity. On the governmental interest side, once a person is arrested based on probable cause, DNA identification plays an important role in assessing the risks posed to others by the arrestee, in freeing a person wrongfully imprisoned for a crime actually committed by the arrestee, and to confirm the arrestee’s identity. The invasion of Harris’ privacy occasioned by the state’s retention of her DNA sample is outweighed by the legitimate and competing state interest in its retention.
The full opinion is available on the court’s website here: http://www.courts.ca.gov/opinions/documents/D070711.PDF
