Filed 7/23/15

                             CERTIFIED FOR PUBLICATION


                COURT OF APPEAL - FOURTH APPELLATE DISTRICT

                                      DIVISION ONE

                                  STATE OF CALIFORNIA



ALEJANDRO N.,                                   D067445

        Petitioner,                             (San Diego County
                                                 Super. Ct. No. JCM230808)
        v.

THE SUPERIOR COURT OF SAN
DIEGO COUNTY,

        Respondent,


THE PEOPLE,

        Real Party in Interest.


        Proceedings in mandate after superior court denied juvenile offender's petition for

reclassification of offense from felony to misdemeanor under Proposition 47. Robert J.

Trentacosta, Judge. Petition granted in part and denied in part.

        Randy Mize, Chief Deputy Public Defender, Maryann Addezio Kotler, Deputy

Public Defender, for Petitioner.

        No appearance for Respondent.
       Bonnie M. Dumanis, District Attorney, James E. Adkins and Marcella O.

McLaughlin, Deputy District Attorneys, for Real Party in Interest.

       Keker & Van Nest, Daniel Purcell and Chessie Thacher for Californians for Safety

and Justice/Vote Safe, the American Civil Liberties Union of Northern California, the

American Civil Liberties Union of Southern California, the American Civil Liberties

Union of San Diego and Imperial Counties, and Michael Romano, in his capacity as

director of the Stanford Three Strikes Project; Jonathan Laba for Pacific Juvenile

Defender Center, as Amici Curiae on behalf of Petitioner.


       Proposition 47, passed by the voters in November 2014, reclassified certain

nonserious, nonviolent offenses from felonies to misdemeanors. Proposition 47 also

enacted a statute (Pen. Code, § 1170.18)1 that permits offenders to petition the superior

court to redesignate their felony convictions and reduce their sentences based on the new

misdemeanor classification. After the passage of Proposition 47, Alejandro N.

(Alejandro) filed a section 1170.18 petition to change his juvenile felony adjudication to

a misdemeanor. Ruling on the petition, the superior court agreed that Alejandro's offense

now qualified as a misdemeanor for purposes of section 1170.18's sentence reduction

provisions. Based on Welfare and Institutions Code section 726, which provides that a

juvenile offender cannot be physically confined longer than an adult offender for the

same offense, the court reduced Alejandro's maximum period of confinement to the

misdemeanor level. However, the court declined to reclassify Alejandro's offense from a


1      Subsequent unspecified statutory references are to the Penal Code.
                                             2
felony to a misdemeanor under section 1170.18's offense reclassification provisions,

ruling that because section 1170.18 uses the adult offender terminology of "conviction,"

the statute does not apply to juvenile offenders.

       Alejandro filed a petition for writ of mandate challenging the superior court's

ruling. We issued an order to show cause, obtained briefing from the parties and various

amici curiae, and heard oral arguments. In the proceedings before the superior court, the

parties agreed that Alejandro's case would serve as the lead case for numerous other

juvenile offenders who had filed modification petitions based on Proposition 47, and our

resolution of the legal issues raised in Alejandro's petition concerning Proposition 47

would apply to the other juvenile modification petitions filed in the superior court.

       We hold that the offense reclassification provisions set forth in section 1170.18

apply to juveniles. Welfare and Institutions Code section 602 provides for a minor to be

declared a ward of the juvenile court when the minor commits a crime set forth in the

Penal Code and other codes defining criminal offenses primarily in the adult criminal

context. The section thereby incorporates the entire body of laws defining criminal

offenses as the basis for juvenile wardship jurisdiction. Accordingly, when a criminal

offense is reclassified from a felony to a misdemeanor in the adult context—as occurred

under Proposition 47—the reclassification likewise applies in juvenile wardship

proceedings. By adding section 1170.18 to the Penal Code, the Proposition 47 voters

made this felony-to-misdemeanor reclassification available to qualifying offenders on a

retroactive basis. Thus, section 1170.18 concerns the very same offenses that are

incorporated into the juvenile wardship proceedings via Welfare and Institutions Code

                                             3
section 602, and it follows that section 1170.18's offense reclassification provisions are

equally applicable to juvenile offenders.

       Based on the reclassification of his offense from a felony to a misdemeanor,

Alejandro also requested that the superior court (1) order his DNA sample and

information removed from the state's data base, and (2) reduce his fine to a misdemeanor

level. We agree that a reclassified misdemeanor offense under Proposition 47 cannot

alone support retention of DNA materials in the state's DNA data bank, and we shall

direct the superior court to expunge Alejandro's DNA unless there is another basis to

retain it apart from his mere commission of the reclassified misdemeanor offense. (Pen.

Code, §§ 296, 296.1.) As to Alejandro's request for a fine reduction, he has not refuted

the trial court's finding that his $50 fine was already at the misdemeanor level.

       Accordingly, we grant the petition in part and direct the superior court to (1)

reclassify Alejandro's felony offense as a misdemeanor, and (2) reconsider his request for

DNA expungement. We deny the petition as to his request for fine reduction.

                   FACTUAL AND PROCEDURAL BACKGROUND

       In March 2013, the People filed a petition requesting that Alejandro be declared a

ward of the juvenile court based on his committing the felony offense of commercial

burglary. In April 2013, Alejandro admitted that he committed the felony offense, and

the court ruled he was a ward of the court, his maximum period of confinement for the

burglary was three years, and he should pay a $50 fine and provide a DNA sample for

inclusion in the California Department of Justice (DOJ) DNA database.



                                             4
       Based on the November 2014 approval of Proposition 47 reducing certain offenses

from felonies to misdemeanors, on November 5, 2014, Alejandro filed a modification

petition in superior court stating he was currently detained in custody as a juvenile

offender; his commercial burglary offense (Pen. Code, §§ 459, 460) was now a

misdemeanor shoplifting offense with a maximum confinement of six months (Pen.

Code, §§ 459.5, 19); and he had been confined beyond his maximum confinement term.

He requested that his maximum confinement term be reduced based on the misdemeanor

classification; that he be released from custody; that his offense be reclassified as a

misdemeanor; that his DNA materials be removed from the DOJ database; and that his

fine be reduced to an amount appropriate to a misdemeanor.

       Responding to these requests, the People acknowledged that Alejandro's offense

was now a misdemeanor under Proposition 47 with a six-month maximum term of

confinement and that, to comport with an adult offender's maximum term as required by

Welfare and Institutions Code section 726, Alejandro's maximum term should be reduced

and he should be released from custody. However, the People maintained that section

1170.18 did not apply to juveniles and accordingly Alejandro, unlike an adult offender,

was not entitled to have his offense reclassified as a misdemeanor. The People also

opposed his requests for DNA expungement and fine reduction.

       At a hearing on November 5, 2014, the superior court ruled that Alejandro's

maximum term of confinement was eight months based on the new misdemeanor

classification for his offense, and ordered that he be released from custody because he



                                              5
had already been confined for 368 days.2 At a hearing on January 14, 2015, the court

addressed his additional requests for reclassification of his offense to a misdemeanor,

DNA expungement, and fine reduction. The court denied his request that his offense be

designated as a misdemeanor under section 1170.18, ruling that section 1170.18 applies

to persons who have been convicted of the affected offenses; a juvenile wardship

adjudication is not a conviction; and accordingly section 1170.18 does not apply to

juvenile cases.

       The court also denied Alejandro's request for DNA expungement, stating that

"even if a felony is later reduced to a misdemeanor, return of DNA is not required unless

one of the conditions for expungement listed in section 299 is also met," and Alejandro

had not met any of these conditions. Finally, the court denied Alejandro's request for fine

reduction, stating his $50 fine was an "amount normally imposed for a misdemeanor."

                                       DISCUSSION

       Alejandro contends that section 1170.18's offense reclassification provisions were

intended to apply to juvenile offenders, and any contrary interpretation violates

constitutional equal protection principles. Disagreeing with these claims, the People

argue that because section 1170.18 uses the terminology of " 'conviction' " and

" 'sentence' " associated with the adult criminal system, the voters did not intend that it

apply to juvenile offenders, and there are no equal protection concerns because adult and



2     Alejandro's eight-month maximum confinement term was apparently based on the
six-month term generally prescribed for misdemeanor offenses (Pen. Code, § 19), plus a
consecutive two-month term for a previous offense he had committed.
                                              6
juvenile offenders are not similarly situated or, alternatively, there is a rational basis to

treat them differently.

       To evaluate these contentions, we first set forth general principles applicable to

juvenile wardship proceedings under the Welfare and Institutions Code, and then

delineate the statutory changes made by the passage of Proposition 47.

                                       I. Relevant Law

                              A. Juvenile Wardship Principles

       Welfare and Institutions Code section 602, subdivision (a) provides that a minor

may be adjudged a ward of the juvenile court "when he or she violates any law of this

state . . . defining crime . . . ."3 (Italics added.) Thus, pursuant to Welfare and

Institutions Code section 602, laws that define criminal behavior for adults are used to

define the criminal behavior that can cause a minor to be declared a ward of the juvenile

court. However, the juvenile wardship system and the adult criminal system are two

distinct systems; the two systems use different terminology; and their underlying

purposes have a different focus. (See In re Eric J. (1979) 25 Cal.3d 522, 530-532; In re

A.G. (2011) 193 Cal.App.4th 791, 804-805; In re Myresheia W. (1998) 61 Cal.App.4th

734, 740-741 [overall purpose of juvenile wardship focuses on rehabilitation rather than

punishment].)


3      Welfare and Institutions Code section 602, subdivision (a) states: "Except as
provided in subdivision (b) [concerning certain aggravated crimes], any person who is
under 18 years of age when he or she violates any law of this state or of the United States
or any ordinance of any city or county of this state defining crime other than an ordinance
establishing a curfew based solely on age, is within the jurisdiction of the juvenile court,
which may adjudge such person to be a ward of the court."
                                               7
       For example, juvenile offenders are not defendants; their cases are handled by

juvenile courts, not criminal courts; they do not plead guilty but admit the allegations of a

petition; they incur adjudications of criminal acts, not criminal convictions; their cases

are resolved by dispositions, not sentences; and they are confined or committed rather

than imprisoned. (In re Eric J., supra, 25 Cal.3d at pp. 530-531; In re Myresheia W.,

supra, 61 Cal.App.4th at pp. 736-737; People v. West (1984) 154 Cal.App.3d 100, 107-

108; Welf. & Inst. Code, § 203 [an "order adjudging a minor to be a ward of the juvenile

court shall not be deemed a conviction of a crime for any purpose . . . ."]; see In re Jovan

B. (1993) 6 Cal.4th 801, 812 (Jovan B.).) Also, juvenile courts have broader

dispositional discretion over minors than is available for adult criminal offenders under

the adult determinate sentencing scheme. (Jovan B., supra, 6 Cal.4th at p. 809; In re

A.G., supra, 193 Cal.App.4th at pp. 803-806.)

       Notwithstanding the differences between the two systems, the essential

constitutional due process protections afforded adult offenders have been extended to

juvenile offenders, based on the recognition that a juvenile "alleged to have violated the

criminal law . . . like an adult accused, faces both the stigma of adjudged criminality and

the significant loss of liberty by confinement in a correctional institution if the allegations

prove true." (People v. Nguyen (2009) 46 Cal.4th 1007, 1019, 1022 [although juvenile

has no jury trial right, virtually all other procedural protections apply].) Further, to

ensure fair treatment as between a minor and an adult offender, a minor's maximum

period of physical confinement may not exceed the maximum term that could be imposed

on an adult offender for the same offense. (Welf. & Inst. Code, § 726, subd. (d)(1); see

                                               8
In re Eric J., supra, 25 Cal.3d at p. 532; In re Bryant R. (2003) 112 Cal.App.4th 1230,

1237.)

         As to other matters associated with the treatment of criminal offenders, the extent

to which statutes enacted in the adult context apply to juveniles depends on the particular

statutory enactments under consideration. For example, in Jovan B., the court held that

even though the enhancement statute at issue (for offenses committed while released on

bail) used adult terminology such as " 'conviction' " and " 'sentencing' " and made no

explicit reference to juveniles, the enhancement properly applied to juvenile offenders.

(Jovan B., supra, 6 Cal.4th at pp. 811-813.) The Jovan B. court reasoned the Welfare and

Institutions Code statute (Welf. & Inst. Code, § 726, subd. (d)(1)) requiring that the

juvenile's maximum confinement term not exceed an adult's maximum imprisonment

term for the same offense includes provisions that "expressly adopt[] [the adult] system

of enhancements for purposes of computing a juvenile ward's maximum confinement or

commitment." (Jovan B., supra, at p. 811.) The court explained: "Of course, juvenile

proceedings do not literally result in 'convictions' and juvenile confinements are not

'sentences,' but that cannot be dispositive of the question whether the bail/O.R.

enhancement applies to juvenile wards. Because they were enacted in an adult context,

all felony sentence enhancements set forth in the [Determinate Sentencing Act] are

defined in terms of 'conviction' and 'sentence' or 'punishment' for an underlying offense.

If use of this adult terminology were enough to prevent these enhancements from

applying to juvenile wardship matters, . . . [the] Welfare and Institutions Code section



                                               9
726 [provisions incorporating the enhancement system] would be meaningless." (Id. at p.

812, italics added.)

       Given the express intent reflected in Welfare and Institutions Code section 726 to

incorporate the entire " 'system or body of laws' " set forth in the adult determinate

sentencing statute (including its enhancement provisions) when calculating a juvenile's

maximum confinement, the Jovan B. court concluded the enhancement scheme should be

fully applied in juvenile proceedings, "except insofar as the focus of a particular

enhancement is manifestly at odds with the principles of juvenile law." (Jovan B., supra,

6 Cal.4th at pp. 813, 816.) The court then examined the concerns underlying the bail

enhancement, found they were equally applicable to juvenile offenders, and held the mere

use of adult procedural terminology in the bail enhancement statute did not "evidence an

intent manifestly incompatible with its application to juvenile offenses" or override the

express command of Welfare and Institutions Code section 726. (Jovan B., at p. 813; see

In re Damien V. (2008) 163 Cal.App.4th 16, 20, 24-26 [although alternative sentencing

scheme applicable to gang-related offenses used adult "convicted" terminology, the

scheme applied in juvenile cases for purposes of calculating maximum confinement;

statute was ambiguous but ballot materials and statutory scheme as whole showed voters

intended gang sentencing statute to apply to juveniles].)

       In contrast, in In re Derrick B. (2006) 39 Cal.4th 535, the court concluded that a

statutory provision allowing imposition of a sex offender registration requirement for

statutorily-unlisted offenses based on specific findings " 'at the time of conviction or

sentencing' " did not apply to juveniles. (Id. at pp. 538-541, & fn. 4.) The Derrick B.

                                             10
court reasoned the terms " '[c]onviction' " and " 'sentencing' " are "terms of art usually

associated with adult proceedings"; the Legislature is assumed to be aware of the well-

established principle that juvenile adjudications are not criminal convictions; and absent

evidence of a different legislative intent, the court would assume the use of the adult

terms meant the statute was intended to be confined to adult proceedings. (Id. at pp. 540-

541.) The court also observed that the statute at issue included a provision that expressly

addressed when adults are required to register as sex offenders upon the commission of

statutorily-listed offenses, and a distinct provision that explicitly addressed when

juveniles are required to register upon the commission of statutorily-listed offenses. (Id.

at pp. 542, 544, 546.) The court concluded the fact that the Legislature had "carefully

distinguished . . . between the offenses requiring registration by adults and those

requiring registration by juveniles" supported that the Legislature had not abandoned this

differentiation in the provision addressing statutorily-unlisted offenses, but rather used

the adult terminology with the intent that the latter provision apply to adult offenders

only. (Id. at p. 546.) Distinguishing Jovan B., the Derrick B. court explained that, unlike

in Jovan B., there was no relevant Welfare and Institutions Code provision that

established a "broader context to expand upon the clear language chosen by the

Legislature." (Id. at pp. 542-543.)

                                      B. Proposition 47

       Proposition 47 enacted " 'the Safe Neighborhoods and Schools Act' " (the Act),

effective November 5, 2014. (Notes, Deering's Ann. Pen. Code (2015 Supp.) foll.

§ 1170.18.) The Act changed portions of the Penal Code and Health and Safety Code to

                                             11
reduce various drug possession and theft-related offenses from felonies (or wobblers) to

misdemeanors, unless the offenses were committed by certain ineligible offenders.

(People v. Rivera (2015) 233 Cal.App.4th 1085, 1091.)4 Proposition 47 set forth a list of

purposes concerning the Act, including to "ensure that prison spending is focused on

violent and serious offenses"; "maximize alternatives for nonserious, nonviolent crime";

"invest the savings . . . into prevention and support programs"; "ensure[ ] that sentences

for people convicted of dangerous crimes like rape, murder, and child molestation are not

changed"; "[r]equire misdemeanors instead of felonies for nonserious, nonviolent

offenses like petty theft and drug possession, unless the defendant has prior convictions

for specified violent or serious crimes"; "[a]uthorize consideration of resentencing for

anyone who is currently serving a sentence for any of the offenses . . . that are now

misdemeanors"; and "[r]equire a thorough review of criminal history and risk assessment

of any individuals before resentencing to ensure that they do not pose a risk to public

safety." (Notes, Deering's, Ann. Pen. Codes, supra, foll. § 1170.18.) The Proposition

further stated that the Act "shall be liberally construed to effectuate its purposes." (Ibid.)

       In addition to reclassifying certain felonies as misdemeanors, Proposition 47 also

added section 1170.18 to the Penal Code. Section 1170.18 provides an opportunity for

qualifying offenders who incurred their felony convictions before the effective date of the



4      Defendants who have a prior felony conviction classified as a "super strike"
(certain statutorily-specified highly serious or violent offenses) or who are required to
register as sex offenders are deemed to have committed a felony even if they commit a
drug or theft-related offense that is now generally classified as a misdemeanor under
Proposition 47. (See People v. Rivera, supra, 233 Cal.App.4th at p. 1092.)
                                              12
Act to benefit from the Act's reclassification provisions. Subdivisions (a) and (b) of

section 1170.18 provide that a "person currently serving a sentence for a conviction" of a

felony that would have been a misdemeanor under the Act can petition for resentencing

based on the misdemeanor classification, and the court is required to resentence the

petitioner unless he or she "would pose an unreasonable risk of danger to public safety."

(Italics added.)5 As to a person "who has completed his or her sentence for a conviction"

of a felony, subdivisions (f), (g), and (h) of section 1170.18 provide that the person may

petition the court to have the felony conviction designated as a misdemeanor.6 (Italics



5       Section 1170.18, subdivisions (a) and (b) states:
        "(a) A person currently serving a sentence for a conviction, whether by trial or
plea, of a felony or felonies who would have been guilty of a misdemeanor under the act
that added this section ('this act') had this act been in effect at the time of the offense may
petition for a recall of sentence before the trial court that entered the judgment of
conviction in his or her case to request resentencing in accordance with Sections 11350,
11357, or 11377 of the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496,
or 666 of the Penal Code, as those sections have been amended or added by this act.
        (b) Upon receiving a petition under subdivision (a), the court shall determine
whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the
criteria in subdivision (a), the petitioner's felony sentence shall be recalled and the
petitioner resentenced to a misdemeanor pursuant to Sections 11350, 11357, or 11377 of
the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496, or 666 of the Penal
Code, [as] those sections have been amended or added by this act, unless the court, in its
discretion, determines that resentencing the petitioner would pose an unreasonable risk of
danger to public safety."

6       Section 1170.18, subdivisions (f), (g), and (h) states:
        "(f) A person who has completed his or her sentence for a conviction, whether by
trial or plea, of a felony or felonies who would have been guilty of a misdemeanor under
this act had this act been in effect at the time of the offense, may file an application
before the trial court that entered the judgment of conviction in his or her case to have the
felony conviction or convictions designated as misdemeanors.
        (g) If the application satisfies the criteria in subdivision (f), the court shall
designate the felony offense or offenses as a misdemeanor.
                                               13
added.) The statute requires that these applications be made within three years of the

Act's effective date absent a good cause showing for a later filing (§ 1170.18, subd. (j)),

and provides that a felony conviction that is resentenced or designated as a misdemeanor

"shall be considered a misdemeanor for all purposes" except with respect to firearm

restrictions (§ 1170.18, subd. (k), italics added).7

                                         II. Analysis

                      A. Application of Section 1170.18 to Juveniles

       When interpreting statutory provisions enacted by voter initiative or legislative

action, our primary purpose is to ascertain and effectuate the intent of the enactors.

(People v. Briceno (2004) 34 Cal.4th 451, 459.) To determine this intent, we consider the

plain, commonsense meaning of the language used, and construe the language in the

context of the overall enactment. (Id. at pp. 459-460; People v. Murphy (2001) 25

Cal.4th 136, 142.) When multiple statutory schemes are relevant, we evaluate each

scheme and seek to harmonize them to carry out their evinced intent. (Murphy, supra, at

pp. 142, 157-158.)




       (h) Unless requested by the applicant, no hearing is necessary to grant or deny an
application filed under subsection (f)."

7      Section 1170.18, subdivision (k) states: "Any 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, except that such resentencing
shall not permit that person to own, possess, or have in his or her custody or control any
firearm or prevent his or her conviction under Chapter 2 (commencing with Section
29800) of Division 9 of Title 4 of Part 6."
                                              14
       Evaluating section 1170.18 in conjunction with the jurisdictional provision set

forth in Welfare and Institutions Code section 602 for juvenile wardships, we conclude

section 1170.18 was intended to apply to juvenile offenders.

       As set forth above, Welfare and Institutions Code section 602 expressly provides

that jurisdiction over juveniles who are made wards of the court is premised on the

juvenile's violation of criminal laws. These criminal laws are contained in the Penal

Code and other codes, and they define offenses primarily for purposes of adult criminal

proceedings. Thus, when the Proposition 47 voters reclassified certain criminal offenses

from felonies to misdemeanors, they necessarily reclassified these offenses for juvenile

offenders by virtue of Welfare and Institutions Code section 602's correlation of wardship

jurisdiction with violations of criminal laws. Indeed, there is no dispute that the Penal

Code and Health and Safety Code offenses reclassified by Proposition 47 for purposes of

adult criminal proceedings are likewise reclassified for purposes of juvenile wardship

proceedings. That is, if a crime is classified as a misdemeanor in the adult system, it is

also a misdemeanor in the juvenile system, and the same applies to felony classifications.

       Proposition 47's addition of section 1170.18 to the Penal Code concerns this very

same classification of offenses, and the statute simply extends the Act's reclassification in

retroactive fashion to qualified offenders who incurred their convictions before the Act's

effective date. Section 1170.18 does not address matters collateral to the substantive

offenses that are incorporated into juvenile proceedings under Welfare and Institutions

Code section 602, but rather involves the very definition of the offenses themselves—i.e.,

permitting their characterization as misdemeanors rather than felonies and allowing

                                             15
resentencing in accordance with the misdemeanor classification. When Proposition 47

was passed by the voters, Welfare and Institutions Code section 602 had long been in

existence, and it was well established that, pursuant to this provision, jurisdiction over

juvenile offenders was based on the codes defining substantive criminal offenses in the

adult context.

       An enacting body is deemed to be aware of existing laws at the time legislation is

enacted and to have enacted or amended a statute in light thereof; this principle applies as

well to legislation enacted by voter initiative. (People v. Superior Court (Cervantes)

(2014) 225 Cal.App.4th 1007, 1015 (Cervantes).) Thus, we presume the Proposition 47

voters were aware that under Welfare and Institutions Code section 602, criminal

substantive offenses in the adult arena are used to determine when a juvenile should be

declared a ward of the court, and that changes to these adult criminal offenses would

effectuate corresponding changes in the substantive offenses applied in the juvenile

arena. Given Welfare and Institutions Code section 602's reliance on the substantive

criminal offenses promulgated in the adult context to create juvenile wardship

jurisdiction, the statutory schemes as a whole reflect a clear intent to apply section

1170.18's substantive offense reclassification provisions to juvenile offenders.

       Considered in its broader context, section 1170.18's use of adult criminal

terminology does not reflect an intent to exclude juvenile offenders from its provisions.

Section 1170.18's use of terms associated with adult criminal proceedings logically

comports with the fact that the Penal Code and other codes defining crimes define the

offenses primarily for use in the adult context, and that these substantive criminal offense

                                             16
provisions are then engrafted onto the juvenile proceedings in wholesale fashion by

means of Welfare and Institutions Code section 602. In Jovan B., the California Supreme

Court recognized that when the Welfare and Institutions Code incorporates an entire

system of laws set forth in the Penal Code to define matters in juvenile wardships,

changes made in this system of laws would generally apply in the juvenile context

regardless of the use of adult criminal terminology or the timing of the amendment.

(Jovan B., supra, 6 Cal.4th at pp. 812-813, 816.) Here, Welfare and Institutions Code

section 602's incorporation of the entire system of substantive Penal Code offenses to

define juvenile wardship jurisdiction reflects an intent that Penal Code statutes

effectuating a change in these substantive offenses apply in equal fashion to juvenile

offenders.

       This interpretation of section 1170.18, as illuminated by Welfare and Institutions

Code section 602, is also consistent with Welfare and Institution Code section 726's

requirement that a juvenile's maximum physical term of confinement not exceed the

maximum sentence that could be imposed on an adult offender who commits the same

offense. The trial court recognized that Welfare and Institutions Code section 726

mandated that Alejandro's maximum confinement term be reduced to the misdemeanor

sentencing level given that his offense was now classified as a misdemeanor for adult

offenders and he qualified for the reclassification. If Alejandro is denied the substantive-

offense reclassification allowed under section 1170.18, he is deemed to have committed a

felony, but he can only be confined as if he had committed a misdemeanor. Also,

although he cannot exceed an adult's confinement term for the same offense, for that very

                                             17
same offense he will have a felony on his record whereas an adult will have only a

misdemeanor. This result creates incongruities that serve no logical purpose.

       The People raise numerous arguments to support the position that section 1170.18

should not be interpreted to apply to juvenile offenders, including, for example, that

Proposition 47 focuses on reducing prison costs and juveniles are not sent to prison, and

the impact of a juvenile felony adjudication is mitigated by the confidentiality of juvenile

records. Alejandro and amici curiae raise numerous arguments to support a contrary

interpretation, including that reduction in prison costs is only one purpose of the Act, and

a juvenile felony adjudication can create harsher outcomes in subsequent juvenile,

criminal or immigration proceedings, and can seriously impact employment, military, and

college admission opportunities, which is contrary to the rehabilitative purpose of the

juvenile system. We need not delve into the merits of these various arguments, nor need

we address the parties' differing views on the constitutional equal protection issue. As we

explained, it is clear from the plain language of Welfare and Institutions Code section

602 that changes effectuated in the substantive offenses defined by the Penal Code apply

to juvenile wardships, and because section 1170.18 directly involves changes to these

substantive offenses, it likewise applies to juvenile offenders. The People have not

presented any considerations that override this voter and legislative intent reflected in the

relevant statutory schemes.

       Section 1170.18 authorizes a reduction in an offender's sentence if (1) the offender

qualifies for misdemeanor reclassification (i.e., he or she has no "super strikes" and is not

required to register as a sex offender), and (2) the offender does not pose an unreasonable

                                             18
risk of danger to public safety. (See fns. 4 & 5, ante.) When finding that Alejandro was

entitled to a reduction in his maximum confinement period from the felony level to the

misdemeanor level and to be released from custody, the court necessarily found that

Alejandro met these requirements for misdemeanor treatment of his offense.

Accordingly, Alejandro is also entitled to have his juvenile adjudication redesignated as a

misdemeanor.

                                   B. DNA Expungement

       The Penal Code authorizes collection of a DNA sample under a variety of

circumstances, including when a person incurs a felony conviction or felony juvenile

adjudication; however, it does not authorize the collection based solely on the

commission of a misdemeanor. (§§ 296, 296.1.) Nevertheless, the trial court ruled that

reduction of an offense from a felony to a misdemeanor under Proposition 47 did not

provide a basis for DNA expungement because the misdemeanor reclassification did not

fall within the expungement categories set forth in section 299. We disagree.

       As noted, Proposition 47 made its misdemeanor reclassification benefit available

to eligible offenders on a retroactive basis by adding section 1170.18 to the Penal Code.

Section 1170.18, subdivision (k) expressly addresses the impact of an offender's

successful reclassification of his or her felony offense to a misdemeanor, stating: "Any

felony conviction that is recalled and resentenced . . . or designated as a

misdemeanor . . . shall be considered a misdemeanor for all purposes, except that such

resentencing shall not permit that person to own, possess, or have in his or her custody or



                                             19
control any firearm or prevent his or her conviction under [the firearm restriction

statutes]." (Italics added; see fn. 7, ante.)

       The plain language of section 1170.18, subdivision (k) reflects the voters intended

the redesignated misdemeanor offense should be treated exactly like any other

misdemeanor offense, except for firearm restrictions. Because the statute explicitly

addresses what, if any, exceptions should be afforded to the otherwise all-encompassing

misdemeanor treatment of the offense, and because only the firearm restriction was

included as an exception, the enactors effectively directed the courts not to carve out

other exceptions to the misdemeanor treatment of the reclassified offense absent some

reasoned statutory or constitutional basis for doing so.8

       At the time they enacted section 1170.18, the voters were presumed to have

known of the existing statute authorizing DNA collection for felony, but not

misdemeanor, offenders (see Cervantes, supra, 225 Cal.App.4th at p. 1015), and yet they

did not include DNA collection as an exception to the misdemeanor treatment of the

offense. Thus, absent an intervening enactment providing otherwise, future offenders

who commit a Proposition 47 reclassified misdemeanor offense will not be subject to

DNA collection based solely on that offense. The fact that the voters chose to extend the


8       We note that in People v. Rivera, supra, 233 Cal.App.4th 1085, the court
concluded an appeal involving an offense that was charged and convicted as a felony and
then reclassified as a misdemeanor under Proposition 47 was properly brought to the
Court of Appeal (which has jurisdiction over felony cases) rather than to the superior
court's appellate division (which has jurisdiction over misdemeanor cases). (Rivera, at
pp. 1093-1097.) Unlike the circumstances here, this conclusion was supported by the
governing statutes and rules that define the meaning of felony cases for purposes of
appellate jurisdiction. (See id. at pp. 1095-1097.)
                                                20
benefits of Proposition 47 on a broad retroactive basis to persons convicted of felonies

before the Act's effective date—allowing them to petition to reclassify their offenses and

reduce their sentences—supports that the voters likewise intended to provide retroactive

relief with regard to retention of already-secured DNA samples. Based on the broad

mandate set forth in section 1170.18, subdivision (k) to treat reclassified offenses as

misdemeanors for all purposes except for firearm restrictions, as well as the extension of

an expansive retroactive remedy under section 1170.18, we conclude the voters did not

intend that a reclassified misdemeanor offense be deemed a felony for purposes of

retention of DNA samples.

       The fact that reclassification of a felony to a misdemeanor is not among the

grounds listed in section 299 for DNA expungement does not convince us the remedy is

unavailable for Proposition 47 reclassified misdemeanor offenses. Section 299 provides

for DNA expungement when a person "has no past or present offense or pending charge

which qualifies that person for inclusion within" the DNA databank, and then lists several

circumstances that provide the basis for an expungement request. (§ 299, subds. (a), (b),

italics added.)9 The grounds for expungement listed in section 299 concern




9       Section 299, subdivisions (a) and (b) states:
        "(a) A person whose DNA profile has been included in the data bank pursuant to
this chapter shall have his or her DNA specimen and sample destroyed and searchable
database profile expunged from the data bank 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 Data Bank Program and there otherwise is no legal basis for
retaining the specimen or sample or searchable profile.
                                             21
circumstances where an alleged offender is charged with an offense that qualifies for

DNA collection, and then the case is not pursued or is dismissed, or the alleged offender

is found not guilty or innocent. (See fn. 9, ante.) In these circumstances, the charged

offense retains its qualification for DNA collection, but expungement of the DNA is

warranted because the particular defendant is not guilty of that offense. In contrast here,

under Proposition 47 the reclassified misdemeanor offense itself no longer qualifies as an

offense permitting DNA collection. This circumstance is outside the matters

contemplated by the Penal Code DNA expungement statute. There is nothing in section

299 that obviates section 1170.18's broad directive that, except for firearm restrictions,

redesignated offenses are misdemeanors for all purposes, and they are therefore

disqualified for DNA sample retention. (See, e.g., In re Nancy C. (2005) 133

Cal.App.4th 508, 510-512 [juvenile court's erroneous failure to designate offense as

misdemeanor or felony at time of adjudication as required by Welfare and Institutions


       (b) Pursuant to subdivision (a), a person who has no past or present qualifying
offense, and for whom there otherwise is no legal basis for retaining the specimen or
sample or searchable profile, may make a written request to have his or her specimen and
sample destroyed and searchable database profile expunged from the data bank program
if:
       (1) Following arrest, no accusatory pleading has been filed within the applicable
period allowed by law charging the person with a qualifying offense as set forth in
subdivision (a) of Section 296 or if the charges which served as the basis for including
the DNA profile in the state's DNA Database and Data Bank Identification Program have
been dismissed prior to adjudication by a trier of fact;
       (2) The underlying conviction or disposition serving as the basis for including the
DNA profile has been reversed and the case dismissed;
       (3) The person has been found factually innocent of the underlying offense
pursuant to Section 851.8, or Section 781.5 of the Welfare and Institutions Code; or
       (4) The defendant has been found not guilty or the defendant has been acquitted of
the underlying offense." (Italics added.)
                                             22
Code section 702 allows minor to seek DNA expungement should trial court designate

offense as misdemeanor upon remand].)

       The People's citation to Coffey v. Superior Court (2005) 129 Cal.App.4th 809

(Coffey) does not support a contrary conclusion. In Coffey, the defendant was charged

with a wobbler offense that could be treated as a felony or a misdemeanor; the defendant

pled guilty to a felony; and at sentencing the trial court reduced the offense to a

misdemeanor. (Id. at pp. 812-813.) However, the trial court refused to order

expungement of the DNA collected at the time of the defendant's plea to the felony, and

the appellate court concluded the denial of the expungement request was correct. (Id. at

pp. 812-813, 823.) Coffey noted that section 17, subdivision (b) provides that a wobbler

that is treated as a misdemeanor at sentencing " 'is a misdemeanor for all purposes,' " but

concluded this provision did not apply to the DNA expungement request at issue before

the court. (Coffee, at pp. 818, fn. 7, 821, 823.) Coffey explained the Legislature had

expressly stated in the DNA expungement statute (§ 299, subd. (f)10) that "a defendant

whose sentence is reduced to a misdemeanor under section 17, subdivision (b), must

provide DNA samples . . . ." (Coffey, at pp. 821, 823; see generally People v. Park

(2013) 56 Cal.4th 782, 793-795 [wobbler reduced from felony to misdemeanor is




10      Section 299, subdivision (f) states: "Notwithstanding any other provision of law,
including Section[ ] 17 . . . , a judge is not authorized 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 . . . ." (Italics
added.)
                                              23
misdemeanor for all purposes, except when Legislature has enacted statute providing that

it be treated as felony for specified purpose].)

       Unlike the circumstances in Coffey, there is no statutory provision reflecting a

Legislative or voter determination that a DNA sample should be retained for an offender

whose offense has been designated a misdemeanor under Proposition 47. Absent express

legislative or voter direction on this matter, we decline to judicially create a DNA

retention exception here, particularly since—distinct from wobbler offenses—the

offenses now classified as misdemeanors for qualifying offenders under Proposition 47

have permanently been removed from the felony category and are no longer subject to

DNA collection.

       Alejandro requests that we direct the superior court to order removal of his DNA

sample. On this record, we cannot determine whether there is another statutory basis to

retain Alejandro's DNA apart from his Proposition 47 reclassified misdemeanor offense.

Accordingly, we shall direct the superior court to reconsider his expungement request and

make this determination.

                                           C. Fine

       Alejandro contends the $50 fine ordered by the court at the time of his felony

adjudication should be reduced to a misdemeanor level amount. Rejecting his request,

the trial court stated the $50 fine was appropriate for a misdemeanor. Welfare and

Institutions Code section 730.6 requires that the court impose a restitution fine between

$100 and $1,000 if the juvenile's offense is a felony, or a restitution fine of not more than

$100 if the juvenile's offense is a misdemeanor. (Welf. & Inst. Code, § 730.6, subd.

                                              24
(b)(1), (2).) The $50 fine was within the misdemeanor level prescribed by statute, and

Alejandro has presented no argument to show an abuse of discretion by the trial court

concerning this matter. We deny his request for relief concerning the fine.

                                      DISPOSITION

       Let a peremptory writ of mandate issue directing the superior court to vacate the

portions of its January 14, 2015 order that ruled on Alejandro's requests for offense

reclassification and DNA expungement. The superior court shall issue a new order

changing Alejandro's commercial burglary felony offense (§§ 459, 460) to a

misdemeanor shoplifting offense (§ 459.5). The superior court is also directed to

reconsider Alejandro's request for removal of his DNA sample from the state database

and to order removal unless there is another statutory basis for retention of the DNA apart

from the reclassified misdemeanor offense alone.

       The petition for writ of mandate is denied as to Alejandro's request that the

superior court be ordered to reduce his fine.


                                                                               HALLER, J.
WE CONCUR:



HUFFMAN, Acting P. J.



NARES, J.




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