People v. C.B. (In Re C.B.)

Filed 8/30/18

IN THE SUPREME COURT OF CALIFORNIA

In re C.B., a Person Coming Under the )
Juvenile Court Law. )
____________________________________)
)
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S237801
v. )
) Ct.App. 1/3 A146277
C.B., )
) Contra Costa County
Defendant and Appellant. ) Super. Ct. No. J1301073
____________________________________)
)
In re C.H., a Person Coming Under the )
Juvenile Court Law. )
____________________________________)
)
THE PEOPLE, )
)
Plaintiff and Respondent, )
) S237762
v. )
) Ct.App. 1/3 A146120
C.H., )
) Contra Costa County
Defendant and Appellant. ) Super. Ct. No. J1100679
____________________________________)

The California Department of Justice maintains a databank of DNA
samples and genetic profiles collected from certain adult and juvenile offenders

SEE CONCURRING OPINION
who have been arrested, convicted, or declared wards of the court. (Pen. Code,
§§ 295–300.4.)1 Juveniles declared wards based on felony conduct must submit
samples, but need not do so for most misdemeanor offenses. (§ 296, subd. (a).)
The Legislature has also established a procedure to seek destruction of a sample
and expungement of a profile from the databank. (§ 299.)
In 2014, the passage of Proposition 47 reclassified various drug and
property offenses from felonies to misdemeanors. (Voter Information Guide, Gen.
Elec. (Nov. 4, 2014) text of Prop. 47, §§ 5–13, pp. 71‒73 (Proposition 47 Voter
Guide).) Appellants here are juveniles who were declared wards of the court
based on conduct that was felonious when committed. They urge that because
their acts are now misdemeanors, they are entitled to have their DNA samples and
profiles removed from the databank. We hold that Proposition 47 does not
authorize that relief, nor does equal protection compel it. The judgments of the
Courts of Appeal are affirmed.
I. BACKGROUND
These two cases raise the identical legal issues and were consolidated for
argument and decision.
In 2011, C.H. entered a department store with two friends, changed into a
pair of pants in a dressing room, and left the store alone without paying for the
new pants. He saw his friends fighting with a loss prevention officer and joined
in, kicking the officer in the head. C.H. was arrested and admitted both theft and
assault.
A juvenile wardship petition was sustained, with findings that C.H.
committed felony grand theft person. (Welf. & Inst. Code, former § 602,

1 All further unlabeled statutory references are to the Penal Code.

2
subd. (a); Pen. Code, § 487, subd. (c).) He was ordered to submit fingerprints and
DNA samples to the California Department of Justice. (Pen. Code, §§ 296,
296.1.)
In 2013, C.B. entered an unoccupied home and took jewelry, a wallet, cell
phone, and video game system. When the homeowner unexpectedly returned,
C.B. brandished a knife to attempt escape. The victim and witnesses detained
C.B., who confessed when police officers arrived.
The court sustained a wardship petition based on misdemeanor residential
burglary and felony grand theft person. (Welf. & Inst. Code, former § 602,
subd. (a); Pen. Code, §§ 459, 460, subd. (b), 487, subd. (c).) C.B. was also
ordered to submit fingerprints and DNA samples. (Pen. Code, §§ 296, 296.1.)
In 2015, after voters approved Proposition 47, C.B. and C.H. petitioned to
have their felony violations redesignated as misdemeanors, their fines reduced,
and their DNA samples and profiles expunged from the state databank. (See
§§ 299, 490.2, 1170.18.) In each case, the trial courts redesignated the offense as
a misdemeanor and reduced the fine. However, both motions for expungement
were denied.
Two different panels of the Court of Appeal affirmed, one by a divided
vote. (In re C.B. (2016) 2 Cal.App.5th 1112; id. at p. 1128 (dis. opn. of Pollak,
Acting P. J.); In re C.H. (2016) 2 Cal.App.5th 1139.) In In re C.B., the majority
concluded Proposition 47 did not expand the existing grounds for expungement.
Moreover, after Proposition 47’s passage the Legislature had amended section
299, subdivision (f), to clarify that redesignation of a felony to a misdemeanor was
not a basis for removal. (In re C.B., at pp. 1118–1128.) The dissent argued that
Proposition 47 required redesignated offenses to be treated as misdemeanors for
all purposes, including eligibility for retention in the databank. (See § 1170.18,

3
subd. (k).) The dissent urged that the Legislature’s amendment of section 299,
subdivision (f), was invalid because it contravened Proposition 47.
In re C.H. was issued the same day. There, a unanimous court interpreted
the statutory scheme similarly to the In re C.B. majority. It held that Proposition
47 did not change the circumstance that C.H.’s conduct had been a felony when
committed and his sample had been properly collected. Nothing in section 299 or
section 1170.18 authorized expungement based on subsequent redesignation of
C.H.’s offense. (In re C.H., supra, 2 Cal.App.5th at pp. 1145–1151.) The court
expressly disagreed with Alejandro N. v. Superior Court (2015) 238 Cal.App.4th
1209, 1226–1230, which had held to the contrary. In re C.H. also rejected the
argument that equal protection principles required expungement. (In re C.H., at
pp. 1151–1152.)
II. DISCUSSION
A. Legal Background
1. The State DNA Databank
For several decades, “California law [has] required the collection of
biological samples from individuals convicted of certain offenses. In 1983, the
Legislature enacted legislation requiring certain sex offenders to provide blood
and saliva samples before their release or discharge. (Stats. 1983, ch. 700, § 1,
pp. 2680–2681, codified at Pen. Code, former § 290.2.) In 1998, the Legislature
enacted the ‘DNA and Forensic Identification Data Base and Data Bank Act of
1998,’ which required the collection of DNA samples from persons convicted of
certain felony offenses, including certain sex offenses, homicide offenses,
kidnapping, and felony assault or battery. (Stats. 1998, ch. 696, § 2, pp. 4571–
4579; Pen. Code, former § 296, subd. (a).)” (People v. Buza (2018) 4 Cal.5th 658,
665.) In 2004, the voters adopted Proposition 69, which amended the act to
further expand the class of those obligated to submit samples. This expanded

4
group included all juveniles adjudged wards of the court based on felony conduct.
(Voter Information Guide, Gen. Elec. (Nov. 2, 2004) text of Prop. 69, § III.3,
pp. 137-138 (Proposition 69 Voter Guide).)
The DNA and Forensic Identification Database and Data Bank Act of 1998
(DNA Act) requires submission of “buccal swab samples, right thumbprints, and a
full palm print impression of each hand, and any blood specimens or other
biological samples required pursuant to this chapter for law enforcement
identification analysis.” (§ 296, subd. (a).) The buccal swab samples contain the
offender’s DNA. (See § 295, subd. (e).) Samples are submitted to the California
Department of Justice’s DNA Laboratory, which creates and stores a genetic
profile in the databank. (§§ 295, 295.1; see People v. Buza, supra, 4 Cal.5th at p.
666.)2
2. Proposition 47
In 2014, Proposition 47 reclassified as misdemeanors various drug- and
theft-related offenses previously treated as felonies or wobblers. (People v.
Valencia (2017) 3 Cal.5th 347, 355.) The initiative had both prospective and
retroactive aspects, reducing punishments going forward and providing relief for
those who had already suffered felony convictions. To achieve its retroactive
purposes, the initiative added section 1170.18, which authorized a petition for
recall of sentence or reclassification of an offense. Felons currently serving a
sentence based on conduct now reclassified as a misdemeanor could petition for
recall of their sentences and imposition of a sentence consistent with their new
misdemeanor status. (§ 1170.18, subds. (a)–(b); People v. Page (2017) 3 Cal.5th

2 Hereafter, we use “sample” as a shorthand for the full range of biological
samples and profile information submitted and stored under the DNA Act, as
amended by Proposition 69.

5
1175, 1179.) Those who had already completed a felony sentence could apply to
have the felony redesignated as a misdemeanor. (§ 1170.18, subds. (f)–(h).)
Notably, the initiative gives redesignation broad effect: “A felony conviction that
is recalled and resentenced under subdivision (b) or designated as a misdemeanor
under subdivision (g) shall be considered a misdemeanor for all purposes . . . .”
(§ 1170.18, subd. (k).)3
Nothing in the text of section 1170.18 explicitly applies to juveniles. The
various provisions for resentencing or redesignation speak entirely in terms of
sentences and convictions, as opposed to juvenile adjudications. (See, e.g.,
§ 1170.18, subds. (a), (b), (f), (k).) “A juvenile adjudication is not a conviction.”
(People v. Robinson (2010) 47 Cal.4th 1104, 1117, fn. 14; see Welf. & Inst. Code,
§ 203.) However, Alejandro N. v. Superior Court, supra, 238 Cal.App.4th at
pp. 1224–1226, concluded section 1170.18 applies equally to juveniles. The
People do not contest the application to juvenile cases, and we accept the People’s
concession.

B. The Scope of the Statutory Entitlement to Expungement from the
State Databank
C.B. and C.H. argue Proposition 47’s “misdemeanor for all purposes”
requirement (§ 1170.18, subd. (k)) entitles them to exclusion from the DNA
databank. That contention hinges on the construction of two different voter
enactments, Proposition 69, which expanded the databank, and Proposition 47,
which reclassified various offenses. We apply the same interpretive principles to
initiatives as to legislative enactments, beginning with the text as the best guide to

3 The only exception to this “for all purposes” provision is that a grant of
relief “shall not permit that person to own, possess, or have in his or her custody or
control a firearm or prevent his or her conviction under Chapter 2 (commencing
with Section 29800) of Division 9 of Title 4 of Part 6.” (§ 1170.18, subd. (k).)

6
voter intent and turning to extrinsic sources such as ballot materials when
necessary to resolve ambiguities. (People v. Park (2013) 56 Cal.4th 782, 796–
798; Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321.) Where
possible, we seek to harmonize the measures, giving full effect to each. (State
Farm Mutual Automobile Ins. Co. v. Garamendi (2004) 32 Cal.4th 1029, 1043.)
1. Text
The DNA Act, as modified by Proposition 69, identifies those who must
provide samples for the databank. Since 2004, that group has included “any
juvenile who is adjudicated under Section 602 of the Welfare and Institutions
Code for committing any felony offense.” (§ 296, subd. (a)(1).) C.B. and C.H.
became obligated to submit samples when they were found to have committed
felonies. C.B. and C.H. would not be under a similar obligation today because
Proposition 47 reclassified various crimes, including theirs, from felonies to
misdemeanors. (See § 490.2, added by Prop. 47, § 8.)
With respect to sample submission, Propositions 69 and 47 interact
harmoniously. Proposition 69 identifies, in the abstract, juveniles who must
submit samples, principally those adjudicated wards for having committed
felonies. Proposition 47 operates prospectively to narrow the class of juveniles
who must submit samples because it redefines what offenses are felonies. While
Proposition 47 spares some future offenders a duty to submit samples, it does not
alter the past reality that C.B. and C.H. were adjudicated to have committed
felonies and were obligated at the time to provide samples based on those
adjudications.
Section 299 governs retention of samples after they have been submitted.
Section 299, subdivision (a), says: “A person whose DNA profile has been
included in the databank pursuant to this chapter shall have his or her DNA
specimen and sample destroyed and searchable database profile expunged from

7
the databank program pursuant to the procedures set forth in subdivision (b) if the
person has no past or present offense or pending charge which qualifies that
person for inclusion within the state’s DNA and Forensic Identification Database
and Databank Program and there otherwise is no legal basis for retaining the
specimen or sample or searchable profile.” As enacted, subdivision (a) sets out
three conditions for expungement: (1) “no past or present offense or pending
charge which qualifies that person for inclusion,” (2) no alternate legal basis for
retention, and (3) compliance with “the procedures set forth in subdivision (b).”
After Proposition 47, C.B. and C.H. now appear to satisfy the first and
second conditions. Their felony findings have been reclassified and their offenses
redesignated as misdemeanors. Under section 296, a juvenile adjudication based
on a misdemeanor petty theft violation (§ 490.2) does not trigger an obligation to
submit a sample for inclusion. Section 299, subdivision (a), is written in the
present tense; C.B. and C.H. do not currently have any “past or present offense
. . . which qualifies [them] for inclusion.” Further, the People present no other
legal basis for retaining their samples. As for the third condition, petitioners did
make written requests for destruction and expungement under section 299,
subdivision (b), but they do not satisfy the further requirements set out in that
provision.
To explain the nature of their failure, we trace the history of section 299,
subdivision (b)’s procedures. Since the databank’s inception, submission and
removal of samples have been governed by different standards. In 1983, the state
began collecting blood and saliva samples from mentally disordered sex offenders
but provided no mechanism for removal or expungement. (Former § 290.2,
enacted by Stats. 1983, ch. 700, § 1, pp. 2680–2681.) By 1996, the categories of
offenders required to submit samples had expanded to include those convicted of
certain violent felonies. (Former § 290.2, subdivision (a), as amended by Stats.

8
1996, ch. 917, § 2, p. 5217.) Biological evidence from known or unknown
suspects could also be included in the databank, but had to be stricken if an
individual was later excluded as a suspect. (Id., subd. (f)(3).) The law still
contained no provision for removing samples submitted by those convicted of
crimes.
In 1998, the DNA Act comprehensively revised the statutory scheme for
both collection and retention of samples, repealing former section 290.2 and
adding a new chapter to the Penal Code. (Stats. 1998, ch. 696, pp. 4571–4587; see
People v. Brewer (2001) 87 Cal.App.4th 1298, 1301–1303.) The universe of those
required to submit samples again expanded. (Former § 296, enacted by Stats.
1998, ch. 696, § 2, pp. 4574–4575.) For the first time, the revised statutory
scheme provided standards for removal of samples taken from those who had
previously been charged with or convicted of a crime. (Former § 299, enacted by
Stats. 1998, ch. 696, § 2, pp. 4582–4583). In cases of reversal, acquittal, or a
finding of factual innocence, the court entering the judgment was directed to order
expungement. (Id., subd. (a).) In the alternative, an affected individual could
request expungement. (Id., subd. (b)(1).)4
In 2004, Proposition 69 reorganized the expungement provisions and
amended the procedures for obtaining removal, which was still available only in
limited circumstances. (Prop. 69 Voter Guide, supra, text of Prop. 69, § III.9,
pp. 141–142.) The court’s independent duty to order expungement was
eliminated. (Ibid.; see former § 299, subd. (a), as enacted by Stats. 1998, ch. 696,
§ 2, p. 4582.) The Department of Justice was no longer required to periodically

4 Former section 299, subdivision (d), also continued the provision for
removing samples from individuals determined to no longer be suspects. (Former
§ 299, subd. (d), enacted by Stats. 1998, ch. 696, § 2, p. 4583.)

9
review and purge samples from former suspects. (Prop. 69 Voter Guide, supra,
text of Prop. 69, § III.9, pp. 141–142; see former § 299, subd. (d), as enacted by
Stats. 2000, ch. 823, § 5, pp. 5680–5681.) An additional basis for expungement
was added, however. Because Proposition 69 for the first time extended the duty
to submit samples to specified arrestees, it also allowed individuals to seek
expungement if charges were not filed or were subsequently dismissed. (§ 299,
subd. (b)(1).) Even with this addition, the grounds for exclusion from the
databank remain narrower than the grounds for inclusion in the first instance.5
In an important particular, the current scheme operates as it has since the
databank’s inception: a showing of changed circumstances eliminating a duty to
submit a sample is an insufficient basis for expungement of a sample already
submitted. As Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 823,
explained, the DNA Act does not “permit expungement of the DNA profile (or
destruction of the samples or specimens) merely because [a] charge was
subsequently reduced to a misdemeanor: the [Act] permits expungement only on
limited grounds.” A petitioner must demonstrate one of four specific conditions:
(1) charges were either not filed or were dismissed, (2) charges resulted in an
acquittal, (3) any conviction was reversed and the case dismissed, or (4) the

5 The provisions of the DNA Act dealing with offenses subject to sex
offender and arsonist registration reflect another area where the duty to submit a
sample and the right to expungement are not coextensive. Section 296,
subdivision (a)(3), requires both felony and misdemeanor offenders to register as
sex offenders or arsonists to submit a sample. While the presence of a duty to
register requires the submission of a sample, the expiration of that duty does not
give rise to a corresponding right to expungement: “Notwithstanding any other
law, the Department of Justice DNA Laboratory is not required to expunge DNA
profile or forensic identification information or destroy or return specimens,
samples, or print impressions taken pursuant to this section if the duty to register
[as a sex offender or arsonist] is terminated.” (§ 299, subd. (e).)

10
petitioner was found factually innocent. (§ 299, subd. (b)(1)–(4).) The applicant
must request expungement in writing, with copies to the DNA Laboratory of the
Department of Justice, the trial court, and the prosecuting attorney. (§ 299,
subds. (b), (c)(1).) Thereafter, the applicant must make “the necessary showing at
a noticed hearing.” (Id., subd. (c)(2).) The court has discretion to determine
whether that showing is sufficient. (Id., subd. (c)(1).) The Department of Justice
is obligated to expunge a sample only after receiving a court order directing that
action, along with documentary proof that one of the four conditions for
expungement has been satisfied. (Id., subd. (c)(2)(B), (D).) Coffey was decided
before Proposition 47 was passed. The question here is whether Coffey remains
good law. We conclude that it does.
After the court’s redesignation orders, C.B. and C.H. no longer stand
adjudicated of felonies. But they cannot meet the additional expungement
requirements of subdivision (b): lack of charges, acquittal, appellate reversal, or a
finding of factual innocence. On the face of the statute, eligibility for
expungement is confined to these circumstances. Nothing in section 299
authorizes expungement on the ground that conduct previously deemed a felony is
now punished only as a misdemeanor.6
This reading of the DNA Act, as amended by Proposition 69, does not
conflict with the text of Proposition 47, which provides that felonies redesignated
as misdemeanors must be treated as such for “all purposes.” (§ 1170.18,

6 C.B. and C.H. argue that the basis for expungement they would have us add
to the statute is analogous to the existing bases for expungement in cases of
acquittal or reversal on appeal. But reduction of a crime from a felony to a
misdemeanor differs from the statutorily recognized bases in a crucial respect: it
lacks a determination that the defendant has not been proven to have any criminal
culpability.

11
subd. (k).) Section 296’s imposition of a duty to submit a sample hinges on the
classification of the offense at the time of adjudication. A later reclassification to
a misdemeanor leaves that former duty undisturbed. Section 299 hinges eligibility
for expungement not only on the present status of any offense, but also on a range
of other conditions, none of which are satisfied by the reclassification of the
offense. The Legislature or drafters of Proposition 69 could have subjected
submission and retention of samples to the same standards, so that someone no
longer obligated to submit a sample would be entitled to expungement.
Alternatively, the drafters of Proposition 47 could have provided that
reclassification was now a basis for expungement. Such a provision would have
addressed the established rule from Coffey v. Superior Court, supra, 129
Cal.App.4th 809, that later reduction of a felony to a misdemeanor does not
support expungement. Neither alternative was pursued.
C.B. and C.H. offer three interrelated textual arguments. First, they stress
that section 1170.18, subdivision (k), contains only one exception to its
“misdemeanor for all purposes” rule, the continued limitation on gun possession.
The voters should be presumed to know of the state’s DNA collection, and did not
add an additional exception for DNA samples. (Alejandro N. v. Superior Court,
supra, 238 Cal.App.4th at pp. 1227–1228; In re C.B., supra, 2 Cal.App.5th at
p. 1130 (dis. opn. of Pollak, Acting P. J.).) The difficulty with this argument is
that no exception is needed to conclude that expungement is not a consequence of
redesignation. After Proposition 47, redesignation of a category of offenses can
terminate the duty to submit samples. But redesignation is largely immaterial to
expungement, which does not hinge on whether an offense would give rise to a
duty to submit were it committed today. There is no inconsistency between
treating a redesignated offense as a misdemeanor for all purposes and declining to
expunge a previously submitted DNA sample.

12
 C.B. and C.H. next contend redesignation of their offenses qualifies them
for expungement because they have no past or present offense that would “qualif[y
them] for inclusion” in the databank. (§ 299, subd. (a); Alejandro N. v. Superior
Court, supra, 238 Cal.App.4th at p. 1229 [redesignated offenses are “disqualified
for DNA sample retention”].) This argument ignores the fact that section 299,
subdivision (a), does not operate in isolation: by its terms, section 299 also
requires satisfaction of at least one of the additional conditions in subdivision (b).
Finally, C.B. and C.H. argue that section 299, subdivision (b)’s express list
of conditions should not be deemed exhaustive. They rely on Alejandro N. v.
Superior Court, supra, 238 Cal.App.4th at pages 1228–1229, which so held. They
also cite Coffey v. Superior Court, supra, 129 Cal.App.4th at pages 816–817,
which considered a constitutional challenge to the retention of a DNA sample,
even though that petitioner had not sought to satisfy the statutory section 299
conditions for expungement. (See also In re C.B., supra, 2 Cal.App.5th at
pp. 1130–1131, 1137 (dis. opn. of Pollak, Acting P. J.).) Coffey stands for an
unexceptional principle: the state or federal Constitution may impose limits on the
operation of a statutory scheme above and beyond those contained in the scheme
itself. Coffey offers no authority for what C.B. and C.H. seek here, judicial
amendment of a statute based on purely statutory considerations. Alejandro N. v.
Superior Court, supra, 238 Cal.App.4th 1209, to the extent it held the language of
Proposition 47 could justify inserting an additional unwritten basis for
expungement into section 299, subdivision (b), was mistaken, and is disapproved.
In sum, the text of Proposition 47 and the DNA Act as amended by
Proposition 69 can be harmonized. Proposition 47 narrows the universe of those
who must submit samples in the future under section 296. It does not, however,
expand the universe of those who may seek expungement of samples already
submitted.

13
 2. Ballot Arguments and Other Indicia of Purpose
This interpretation of the statutory scheme advances the ballot arguments
put forward in support of Proposition 69 and is consistent with those articulated in
support of Proposition 47.
Proponents of Proposition 69 offered two principal reasons for expanding
the state’s existing DNA databank to include samples from all felons and some
arrestees. First, the measure would allow law enforcement to solve additional
cases.7 Second, it could exclude individuals as potential suspects, thus preventing
wrongful accusation.8 Highlighting these twin purposes, the initiative was titled
the “DNA Fingerprint, Unsolved Crime and Innocence Protection Act.” (Prop. 69
Voter Guide, supra, text of Prop. 69, § I.(a), p. 135.) The initiative’s codified and
uncodified statements of purpose likewise stressed apprehension and exoneration
in equal measure.9
Interpreting the amended DNA Act by its terms, to require more stringent
conditions for expungement than for initial inclusion, supports these purposes.

7 See Proposition 69 Voter Guide, supra, argument in favor of Proposition
69, page 62 (“DNA IDENTIFIES CRIMINALS”; the measure “helps solve
crime”; “Currently, California’s DNA database is too small,” allowing more
crimes to go unsolved).
8 See Proposition 69 Voter Guide, supra, argument in favor of Proposition
69, page 62 (the measure will “help[] . . . free those wrongfully accused”; “DNA
evidence is one of the most effective ways to prove someone was not involved
with a crime. 69’s complete DNA database helps ensure people are not
wrongfully accused.”).
9 See Penal Code section 295, subdivision (c) (the purpose of the state’s
databank is to assist law enforcement “in the expeditious and accurate detection
and prosecution of individuals responsible for sex offenses and other crimes [and]
the exclusion of suspects who are being investigated for these crimes”);
Proposition 69 Voter Guide, supra, text of Proposition 69, section II.(a)–(g), page
135; Good v. Superior Court (2008) 158 Cal.App.4th 1494, 1508–1509.

14
The broader the databank’s reach, consistent with voter intent and constitutional
limits, the more likely a sample will be available to inculpate, or exculpate, a
suspect in a given case.
As for Proposition 47, proponents emphasized the goal of reducing costs
and reallocating both prosecutorial and prison resources. Reclassifying various
felonies as misdemeanors, proponents urged, would “focus[] law enforcement
dollars on violent and serious crime” and “[s]top[] wasting money on warehousing
people in prisons for nonviolent petty crimes, saving hundreds of millions of
taxpayer funds every year.” (Prop. 47 Voter Guide, supra, argument in favor of
Prop. 47, p. 38; see id., rebuttal to argument against Prop. 47, p. 39.) The
measure’s uncodified findings and statement of purpose likewise emphasized
“ensur[ing] that prison spending is focused on violent and serious offenses” (id.,
text of Prop. 47, § 2, p. 70) and “sav[ing] significant state corrections dollars” that
could better be spent elsewhere (id., § 3(6), p. 70).
Absent from these materials is any indication Proposition 47 was intended
to retroactively alter the state’s existing DNA databank. Modifying the databank
neither advances nor impedes Proposition 47’s goals to reduce the prison
population and reallocate resources. Even reframing Proposition 47’s goal more
generally as reducing the punishment for certain crimes does not suggest a
different conclusion. Because requiring the submission of a sample is not
punishment (Good v. Superior Court, supra, 158 Cal.App.4th at p. 1510; People v.
Travis (2006) 139 Cal.App.4th 1271, 1295), it follows that retention of a sample is
not punishment either.
C.B. and C.H. highlight cases that have construed Proposition 47 as broadly
intending to extinguish all collateral consequences for redesignated offenses, other
than limits on future gun possession. (See People v. Evans (2016) 6 Cal.App.5th
894, 900–901, review granted and held on other grounds for People v. Valenzuela,

15
review granted Mar. 1, 2017, S239122; Alejandro N. v. Superior Court, supra, 238
Cal.App.4th at p. 1228; In re C.B., supra, 2 Cal.App.5th at p. 1130 (dis. opn. of
Pollak, Acting P. J.).) In their view, this intent supports expungement because
their offenses have been redesignated.
The argument fails. There is no evidence the voters intended to expand the
grounds for expungement. While many other sections of the Penal Code were
amended (see People v. Valencia, supra, 3 Cal.5th at p. 355), the text of the
expungement statute was left untouched. Proposition 47 necessarily revised the
operation of section 296’s requirement that a sample be submitted after a felony
conviction by changing what crimes constitute a felony. But Proposition 47 did
not modify section 299, subdivision (b), to insert a new fifth basis for
expungement.
C.H. also highlights Proposition 47’s direction that its provisions “shall be
liberally construed to effectuate its purposes.” (Prop. 47 Voter Guide, supra, text
of Prop. 47, § 18, p. 74; see id., § 15, p. 74.) The initiative’s overt ends emphasize
reallocating resources and saving money by reducing penalties for certain
offenses. The retention of already-submitted samples generates no additional
costs and imposes no punishment. Whether samples are retained or not is
unrelated to the stated purposes of Proposition 47. The principle of liberal
construction does not advance C.H.’s cause.
C.B. and C.H. argue that the state’s public safety interest in collecting
samples under Proposition 69 does not extend to most misdemeanants, so
expungement would not conflict with the initiative’s purposes. (See In re C.B.,
supra, 2 Cal.App.5th at pp. 1137–1138 (dis. opn. of Pollak, Acting P. J.).) Yet the
state’s interest in retaining samples is also as broad as Proposition 69 and section
299 indicate. If one looks to section 296 to define the state’s interest in collecting
samples, one must look equally to section 299’s limits on expungement to

16
determine the state’s interest in retaining them. Expanding expungement beyond
the explicit requirements of section 299 would be inconsistent with Proposition
69’s purposes.
In a related argument, C.B. contends he has a privacy interest in his sample
that exceeds the state’s public safety interest. C.B. does not contest the
compelling nature of the state’s interest in properly prosecuting crimes and
exonerating the innocent. (People v. Robinson, supra, 47 Cal.4th at p. 1121.) He
does not claim that collection of samples under section 296 as it applied before
passage of Proposition 47 violated his privacy rights. (See People v. Travis,
supra, 139 Cal.App.4th at pp. 1281–1290.) Instead, his argument appears to be
that passage of Proposition 47 indicates a reduced state interest in collecting
certain samples. He reasons that his privacy interests should now outweigh any
state interest in retention. Once again, there is no basis to disregard section 299 as
an equally relevant measure of the state’s interest in retaining samples. The
passage of Proposition 47 did nothing to diminish that interest. If, as C.B.
concedes, neither the collection of his sample nor its retention was a privacy
violation before Proposition 47, approval of the initiative does not change that
calculus.
C.B. discusses his privacy interests solely as a means of bolstering his
claim that the statutory scheme should be read in a particular fashion. He
disavows the assertion of any constitutional privacy claim. Accordingly, we
express no views whatsoever on the merits of such a claim.
In short, no purpose underlying Proposition 47 or 69 requires expungement
here. Proposition 69 expands the state’s databank to advance the compelling
interests in public safety and appropriate exoneration through more accurate
identification of criminals. The retention of existing samples is consistent with
that goal. Proposition 47 reduces punishments for certain crimes as a means of

17
refocusing prison and prosecutorial resources on other crimes judged more
serious. Nothing in the retention of samples hinders those aims.10

C. Equal Protection
C.H. argues that reading the statutory scheme to allow retention of his
sample in the databank deprives him of equal protection under the state and
federal Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7,
subd. (a).)11 He contends offenders who commit future acts reclassified as
misdemeanors by Proposition 47 and those who committed the same acts before
the initiative’s passage must be treated the same with respect to inclusion of
samples in the state’s DNA databank.
“ ‘The concept of equal protection recognizes that persons who are
similarly situated with respect to a law’s legitimate purposes must be treated
equally.’ ” (People v. Valencia, supra, 3 Cal.5th at p. 376.) It does not require,
however, that different things must be treated as though they are the same.

10 The People also rely on section 299, subdivision (f), as amended by the
Legislature in 2015. That provision limits a court’s ability “to relieve a person of
the separate administrative duty to provide specimens, samples, or print
impressions required by this chapter if a person has been found guilty or was
adjudicated a ward of the court by a trier of fact of a qualifying offense as defined
in subdivision (a) of Section 296, or was found not guilty by reason of insanity or
pleads no contest to a qualifying offense as defined in subdivision (a) of Section
296.” (§ 299, subd. (f).) In 2015, the Legislature amended the provision to add
section 1170.18 to the list of laws explicitly identified as not supplying a basis for
court relief from the duty to submit a sample. (§ 299, subd. (f), as amended by
Stats. 2015, ch. 487, § 4.) Given our determination that other portions of the
statutory scheme preclude the relief petitioners seek, we need not address the
import of this provision.
11 C.H. does not differentiate between the state and federal Constitutions or
suggest the analysis under either should differ. Accordingly, we address his state
and federal claims together. (See, e.g., Johnson v. Department of Justice (2015)
60 Cal.4th 871, 881.)

18
(Briggs v. Brown (2017) 3 Cal.5th 808, 842.) Drawing on these two principles, we
have noted that a meritorious equal protection claim must demonstrate “ ‘ “that the
state has adopted a classification that affects two or more similarly situated groups
in an unequal manner.” ’ ” (People v. Morales (2016) 63 Cal.4th 399, 408.)
“Similarly situated” in this context means that the compared groups are
“ ‘similarly situated for purposes of the law challenged.’ ” (Cooley v. Superior
Court (2002) 29 Cal.4th 228, 253.) C.H. contends those who committed offenses
subject to Proposition 47 reclassification before the initiative and those who
committed the same offenses after are sufficiently similarly situated to warrant
application of equal protection principles. We assume, without deciding, that this
is so.
C.H. presents no argument that a distinction between those who committed
offenses before and after November 2014 implicates a suspect classification or
fundamental right. Counsel acknowledged at oral argument that no such argument
had been preserved. In the absence of any demonstration of a suspect
classification or a distinction that impacts a fundamental right, the challenged
disparity in treatment need only survive rational basis scrutiny. (Johnson v.
Department of Justice, supra, 60 Cal.4th at p. 881.) Any reasonably conceivable
basis for the disparity that is rooted in a legitimate government purpose, whether
or not expressly articulated by the voters, is sufficient. (See People v. Turnage
(2012) 55 Cal.4th 62, 74–75.)
Here, the voters rationally could differentiate between those who have
submitted samples and those who have not based on cost considerations. (See
People v. Chatman (2018) 4 Cal.5th 277, 290 [“Preserving the government’s
financial integrity and resources is a legitimate state interest.”].) They could
conclude some crimes are no longer serious enough to justify the additional costs
of obtaining samples. Yet they could also view the risk of recidivism from those

19
who committed similar crimes when they were felonies as not slight enough to
justify the additional costs of expunging samples already obtained. Such
expenditures would diminish the savings derived from other portions of the
initiative and the amounts available to pursue the initiative’s ends. (See Prop. 47
Voter Guide, supra, text of Prop. 47, § 4, p. 70 [creating the “ ‘Safe
Neighborhoods and Schools Fund’ ”]; Gov. Code, § 7599.1, subd. (a) [size of the
Fund dependent on a calculation of “the savings that accrued to the state from the
implementation of” the initiative].) C.H. bears the burden of negating every
plausible ground for the contested difference in treatment. (See People v.
Turnage, supra, 55 Cal.4th at p. 75.) Because he cannot, his constitutional
challenge must fail.
III. DISPOSITION
We affirm the judgments of the Courts of Appeal.
CORRIGAN, J.

WE CONCUR:

CANTIL-SAKAUYE, C. J.
CHIN, J.
LIU, J.
CUÉLLAR, J.
KRUGER, J.
MURRAY, J.*

_______________________
* Associate Justice of the Court of Appeal, Third Appellate District, assigned
by the Chief Justice pursuant to article VI, section 6 of the California Constitution.

20
 CONCURRING OPINION BY LIU, J.

Our holdings today — that C.B. and C.H. do not qualify for expungement
under Penal Code section 299 (maj. opn., ante, at pp. 6–18) and that there is a
rational basis for treating individuals who have already submitted DNA samples
differently from those who have not (id. at pp. 18–20) — are limited to the claims
presented in these cases. As noted, neither C.B. nor C.H. pressed any claim that
the state’s retention of his DNA samples implicates a constitutionally protected
privacy interest. (Id. at pp. 17, 19; see Cal. Const., art. I, § 1; People v. Buza
(2018) 4 Cal.5th 658, 689–690.) Such a claim may give rise to a cause of action
under the California right to privacy (see Hill v. National Collegiate Athletic Assn.
(1994) 7 Cal.4th 1, 35–40) or require a more stringent equal protection analysis
(see Serrano v. Priest (1971) 5 Cal.3d 584, 597) in a future case.

LIU, J.

1
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

Name of Opinion In re C.B. and In re C.H.
__________________________________________________________________________________

Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 2 Cal.App.5th 1112 and 2 Cal.App.5th 1139
Rehearing Granted

__________________________________________________________________________________

Opinion No. S237801 & S237762
Date Filed: August 30, 2018
__________________________________________________________________________________

Court: Superior
County: Contra Costa
Judge: Thomas M. Maddock

__________________________________________________________________________________

Counsel:

Anne Mania, under appointment by the Supreme Court, for Defendant and Appellant C.B.

Patricia Noel Cooney, under appointment by the Supreme Court, for Defendant and Appellant C.H.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano, Aileen Bunney,
Laurence K. Sullivan, Eric D. Share and Enid A. Camps, Deputy Attorneys General, for Plaintiff and
Respondent in No. S237801.

Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler Chief Assistant Attorney
General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan, Eric D. Share, Huy T.
Luong and Enid A. Camps, Deputy Attorneys General, for Plaintiff and Respondent in No. S237762.

Jackie Lacey, District Attorney (Los Angeles), Roberta Schwartz and John Pomeroy, Deputy District
Attorneys, for Los Angeles County District Attorney as Amicus Curiae on behalf of Plaintiff and
Respondent in No. S237762.
Counsel who argued in Supreme Court (not intended for publication with opinion):

Anne Mania
Law Office of Anne Mania
1946 Embarcadero
Oakland, CA 94606
(510) 479-1818

Enid A. Camps
Deputy Attorney General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 703-5976