Filed 4/28/16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

In re J.C., a Person Coming Under the 

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent,

v.

J.C.,

Defendant and Appellant.

 A146103

 (Contra Costa County

 Super. Ct. No. J12-00416)

In 2012, J.C. (minor) admitted an allegation of second degree burglary by 

shoplifting, a violation of Penal Code sections 459 and 460, subdivision (b) and, at the 

time, a felony. In November 2014, the electorate passed Proposition 47, the Safe 

Neighborhoods and Schools Act, which reduced several crimes from felonies to 

misdemeanors. Among these was shoplifting, so long as the stolen property was worth 

less than $950. Proposition 47 also allowed a person serving a felony sentence for a 

crime reduced to a misdemeanor to petition the court for redesignation of the conviction 

and a reduction in sentence. Pursuant to this provision, the minor petitioned to reduce her 

felony violation to a misdemeanor. In addition, the minor sought to have her DNA 

record expunged from the state databank, on the theory she would not have been required 

to provide a DNA sample as a misdemeanant. While the juvenile court reduced her

violation to a misdemeanor, it declined to order expungement of the minor’s DNA 

record.

We affirm the denial of the minor’s request for DNA record expungement. Since 

the filing of the minor’s request, the Legislature has enacted Assembly Bill No. 1492 
2

(2015–2016 Reg. Sess.) (hereafter Bill No. 1492), which prohibits the granting of a 

request for expungement in connection with a petition for recall of sentence under 

Proposition 47. Because Bill No. 1492 clarifies, rather than changes, the meaning of the 

relevant provisions of Proposition 47, the bill precludes the granting of requests for 

expungement made prior to its enactment.

I. BACKGROUND

The minor was made a ward of the juvenile court pursuant to Welfare and 

Institutions Code section 602 in 2012, after she admitted committing second degree 

burglary by shoplifting, a felony at the time. (Pen. Code,1§§ 459, 460, subd. (b).) In 

connection with that admission, the minor was required to submit a DNA sample to the 

state’s databank. 

In June 2015, the minor filed a petition seeking relief under section 1170.18, 

which had been enacted the prior year by the passage of Proposition 47. Among other 

changes to California criminal law, Proposition 47 reduced several crimes from felonies 

to misdemeanors, including the shoplifting of property valued at less than $950. (See 

§§ 459.5, 490.2.) Under section 1170.18, any person “currently serving a sentence” for 

one of the crimes reduced from a felony to a misdemeanor by Proposition 47 is permitted

to petition for a recall of sentence. (§ 1170.18, subd. (a).) Upon receipt of such a 

petition, the trial court must reduce the defendant’s conviction to a misdemeanor and 

resentence him or her under the amended statute, unless the court determines the change 

would pose an unreasonable risk to public safety. (§ 1170.18, subd. (b).) In her petition, 

the minor argued the value of shoplifted property underlying her violation was less than 

$950, entitling her to a redesignation of the violation from a felony to a misdemeanor, a 

reduction in her maximum term of confinement to six months, and expungement of the

record of the DNA sample she was required to provide.2 

 

1 All subsequent statutory references are to the Penal Code.

2 When the record of a person’s DNA sample is expunged, “his or her DNA 

specimen and sample [is] destroyed and searchable database profile [is] expunged from 

the databank program.” (§ 299, subd. (a).)
3

The juvenile court granted the petition in part, redesignating her violation and 

reducing her maximum term of confinement, but the court declined her request for 

expungement of the DNA record. The court relied on Coffey v. Superior Court (2005) 

129 Cal.App.4th 809 (Coffey) in concluding Proposition 47 does not require 

expungement, despite the reduction of the minor’s violation from a felony to a 

misdemeanor.3

Since the juvenile court’s denial of the minor’s request for expungement of her

DNA record, there have been two legal developments of note. At the time of the court’s 

ruling, there was no published appellate decision bearing on the expungement of DNA 

records under section 1170.18. That changed on July 23, 2015, when the Fourth 

Appellate District issued Alejandro N. v. Superior Court (2015) 238 Cal.App.4th 1209 

(Alejandro N.), which holds that a minor is entitled to expungement of his or her DNA 

record when the minor’s violation is reduced from a felony to a misdemeanor under 

section 1170.18, assuming there is no other reason to retain the record. (Alejandro N., at 

pp. 1229–1230.)4 Second, on October 4, 2015, the Governor signed Bill No. 1492. 

(Stats. 2015, ch. 487.) Among other things, Bill No. 1492 amended section 299, which 

governs the expungement of DNA records, by inserting a reference to section 1170.18 

into a list of statutes that do not authorize a judge to relieve a person of the duty to 

provide a DNA sample.

II. DISCUSSION

Relying on Alejandro N., the minor contends the juvenile court was required to 

grant the request to expunge her DNA record. The Attorney General argues Alejandro N.

was wrongly decided, and, in any event, Bill No. 1492 represents a legislative declaration 

that section 1170.18 was never intended to authorize expungement. We need not address 

 

3

The juvenile court’s rationale for denying DNA record expungement was 

articulated in a different case, but the parties in this matter agreed to be bound by the 

court’s ruling in that case. 

4

The minor sought reconsideration of the court’s denial of record expungement 

after the issuance of Alejandro N., but the motion was denied. 
4

the validity of Alejandro N. because we conclude Bill No. 1492 requires the denial of the 

minor’s request for expungement.

A. Governing Law

1. Proposition 47

The voters enacted Proposition 47 on November 4, 2014, effective the next day. 

(Cal. Const., art. II, § 10, subd. (a); People v. Lynall (2015) 233 Cal.App.4th 1102, 1108 

(Lynall).) As summarized by the Legislative Analyst, the proposition “reduces penalties 

for certain offenders convicted of nonserious and nonviolent property and drug crimes” 

and “allows certain offenders who have been previously convicted of such crimes to 

apply for reduced sentences.” (Voter Information Guide, Gen. Elec. (Nov. 4, 2014) 

analysis by the Legis. Analyst of Prop. 47, p. 35 (Ballot Pamphlet).) One of those 

“nonserious and nonviolent property and drug crimes” is shoplifting, so long as the value 

of the stolen property is less than $950. (Ballot Pamphlet, supra, text of Prop. 47, § 5, 

p. 71.) The purpose of this and other similar changes was “to ensure that prison spending 

is focused on violent and serious offenses [and] to maximize alternatives for nonserious,

nonviolent crime.” (Ballot Pamphlet, supra, text of Prop. 47, § 2, p. 70.)

Proposition 47 also added section 1170.18 (Ballot Pamphlet, supra, text of 

Prop. 47, § 14, pp. 73–74), which provides a remedy for persons previously convicted of 

a felony “who would have been guilty of a misdemeanor under [Proposition 47]” had it 

been in effect at the time of their offense. (§ 1170.18, subd. (a).) Under section 1170.18, 

subdivision (a), a person “currently serving a sentence” for such a conviction “may 

petition for a recall of sentence” and “request resentencing” in accordance with the 

statutes as amended by Proposition 47. Section 1170.18, subdivision (b) specifies the 

procedure for a trial court to follow upon receiving such a petition. If the trial court finds 

“the petitioner satisfies the criteria in subdivision (a), the petitioner’s felony sentence 

shall be recalled and the petitioner resentenced to a misdemeanor . . . , unless the court, in 

its discretion, determines that resentencing the petitioner would pose an unreasonable risk 

of danger to public safety.”
5

Section 1170.18, subdivision (k) imposes only one qualification on the recall of 

these felony convictions: “Any felony conviction that is recalled and resentenced under 

subdivision (b) . . . 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 [for being a felon in possession of a 

firearm].”

2. DNA Collection

California law requires the collection of tissue samples for DNA analysis from all 

persons convicted of felonies (§§ 295, 296, subd. (a)(1)), adults arrested or charged with 

a felony (§ 296, subd. (a)(2)(C)), and all persons required to register as a sex or arson 

offender as a result of the commission of a felony or misdemeanor (id., subd. (a)(3)). 

Except as provided in section 296, subdivision (a)(3), persons convicted solely of 

misdemeanors are not required to provide DNA samples. (Alejandro N., supra, 

238 Cal.App.4th at p. 1227.)

Under section 299, a person can obtain expungement of his or her DNA records 

from the databank “if the person has no past or present offense or pending charge which 

qualifies that person for inclusion within the [DNA collection program] and there 

otherwise is no legal basis for retaining” the records. (Id., subd. (a).) Among other 

circumstances, a request for expungement may be made if a felony arrestee is not timely 

charged, a qualifying conviction is reversed and the charges dismissed, or a person is 

acquitted of a qualifying offense. (Id., subd. (b).)

Prior to the enactment of Bill No. 1492, former section 299, subdivision (f) stated: 

“Notwithstanding any other law, including Sections 17, 1203.4, and 1203.4a, a judge is 

not authorized to relieve a person of the separate administrative duty to provide [a DNA 

sample] 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.” Section 299, subdivision (f) (hereafter section 299(f)) 

has been interpreted to preclude a defendant from obtaining expungement of his or her 
6

DNA record despite the reduction of a felony conviction for a wobbler offense to a 

misdemeanor. (Coffey, supra, 129 Cal.App.4th at pp. 820–823.)

3. Alejandro N.

In Alejandro N., the court relied on section 1170.18, subdivision (k) in concluding 

a felony conviction redesignated a misdemeanor under Proposition 47 cannot support 

retention of a person’s DNA record. As noted, section 1170.18, subdivision (k) states 

that a felony redesignated by Proposition 47 shall be treated as a misdemeanor “for all 

purposes,” other than a continued ban on firearms possession. Alejandro N. reasoned, 

“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.” 

(Alejandro N., supra, 238 Cal.App.4th at p. 1227, fn. omitted.) The court in Alejandro N. 

concluded its decision was consistent with the expungement provisions of section 299 

because a felony redesignated a misdemeanor by Proposition 47 “no longer qualifies as 

an offense permitting DNA collection” and is therefore “outside the matters contemplated 

by the Penal Code DNA expungement statute.” (Alejandro N., at p. 1229.)

4. Bill No. 1492

Bill No. 1492, signed into law by the Governor two months after Alejandro N. was 

issued, was intended primarily to respond to People v. Buza (2014) 231 Cal.App.4th 

1446, review granted Feb. 18, 2015, No. S223698 (Buza), a decision currently pending 

review by the Supreme Court.5 In Buza, Division Two of this court found the 

requirement of DNA sampling upon arrest to violate article I, section 13 of the California 

Constitution. In responding to the potential for affirmance of Buza, Bill No. 1492

 

5

Section 1 of Bill No. 1492 states: “It is the intent of the Legislature to limit the 

analysis of [DNA samples] taken from felony arrestees . . . only to the extent required by 

the decision in People v. Buza, and to further the purposes of [the requirement of arrestee 

sampling] in light of that decision.” (Stats. 2015, ch. 487, § 1.)
7

enacted two alternative versions of sections 298 and 299. One version is currently 

effective and will remain so if the Supreme Court reverses Buza. (Stats. 2015, ch. 487, 

§§ 2(d), 4(g).) If Buza is affirmed, the other version will be become effective. (Stats. 

2015, ch. 487, §§ 3(d), 5(g).)

The portion of Bill No. 1492 pertinent to our concerns will persist regardless of 

the fate of Buza because it is contained in both of the versions of section 299 enacted by 

the bill. That portion amends section 299(f) by inserting “1170.18” into the list of 

statutes that do not authorize a judge to relieve a person of the duty to provide a DNA 

sample. As a result, section 299(f) now reads: “Notwithstanding any other law, 

including Sections 17, 1170.18, 1203.4, and 1203.4a, a judge is not authorized to relieve 

a person of the separate administrative duty to provide [a DNA sample] if a person has 

been found guilty or was adjudicated a ward of the court by a trier of fact of a qualifying 

offense . . . .” (Stats. 2015, ch. 487, §§ 4(f), 5(f).) Neither the Legislative Counsel’s 

Digest nor section 1 of Bill No. 1492, which explains the purpose of the statute, mentions 

this aspect of the bill, and we have been unable to find any explanatory reference to it in 

the bill’s legislative history.

B. The Meaning of Bill No. 1492

In determining the significance of Bill No. 1492 for this case, we begin with the 

meaning of the legislative decision to amend section 299(f) to add a reference to 

section 1170.18. The Attorney General argues the amendment is intended to prohibit 

trial courts, when granting a petition to recall a sentence under section 1170.18, from 

expunging the record of a DNA sample provided by the defendant in connection with the 

original felony conviction. For the reasons stated below, we agree.

Section 299(f), is part of the statute governing the expungement of DNA records. 

By its terms, section 299(f) prohibits a court from “reliev[ing]” a person of the “separate 

administrative duty to provide” a DNA sample if the person has been found guilty of an 

offense otherwise qualifying for DNA sampling. That language, standing alone, appears 

to prohibit courts only from preventing the provision of a DNA sample, rather than 
8

prohibiting expungement of the record of a sample already provided, but the specific 

statutory references in section 299(f) demonstrate the latter circumstance is also covered. 

Prior to the addition of section 1170.18 by Bill No. 1492, section 299(f) referred to 

sections 17, 1203.4, and 1203.4a. Section 17 governs “wobbler” offenses, which are 

offenses that can be treated as felonies or misdemeanors in the discretion of the 

sentencing court. (Lynall, supra, 233 Cal.App.4th 1102, 1108.) Subdivision (b) of 

section 17 dictates “when” a wobbler is treated as a misdemeanor, including after a 

defendant has been sentenced to a punishment other than prison (id., subd. (b)(1)), when 

a court declares a wobbler a misdemeanor upon granting probation (id., subd. (b)(3)), and 

when the prosecutor designates the crime as such in a charging document (id., 

subd. (b)(5)). In addition, under subdivision (c) of section 17, if a juvenile is committed 

to the Division of Juvenile Justice on the basis of a wobbler conviction, the violation is 

“thereafter . . . deemed a misdemeanor for all purposes” following his or her discharge.6 

 

6

Section 17, subdivisions (b) and (c) state as follows:

“(b) When a crime is punishable, in the discretion of the court, either by 

imprisonment in the state prison or imprisonment in a county jail under the provisions of 

subdivision (h) of Section 1170, or by fine or imprisonment in the county jail, it is a 

misdemeanor for all purposes under the following circumstances:

“(1) After a judgment imposing a punishment other than imprisonment in the state 

prison or imprisonment in a county jail under the provisions of subdivision (h) of Section 

1170.

“(2) When the court, upon committing the defendant to the Division of Juvenile 

Justice, designates the offense to be a misdemeanor.

“(3) When the court grants probation to a defendant without imposition of 

sentence and at the time of granting probation, or on application of the defendant or 

probation officer thereafter, the court declares the offense to be a misdemeanor.

“(4) When the prosecuting attorney files in a court having jurisdiction over 

misdemeanor offenses a complaint specifying that the offense is a misdemeanor, unless 

the defendant at the time of his or her arraignment or plea objects to the offense being 

made a misdemeanor, in which event the complaint shall be amended to charge the 

felony and the case shall proceed on the felony complaint.

“(5) When, at or before the preliminary examination or prior to filing an order 

pursuant to Section 872, the magistrate determines that the offense is a misdemeanor, in 
9

Sections 1203.4 and 1203.4a govern the dismissal of charges following a successful 

completion of probation. (See, e.g., Doe v. Harris (2013) 57 Cal.4th 64, 72–73.) These 

statutes have one thing in common. Their application generally results in the reduction of 

a felony conviction suffered by a defendant to something less serious—either a 

misdemeanor under section 17 or, in the case of sections 1203.4 and 1203.4a, dismissal 

altogether. The felony conviction necessarily required provision of a DNA sample, but 

the defendant would not have been required to provide a sample had the conviction been 

designated a misdemeanor from the outset or if there had been no criminal charges at all. 

The unmistakable implication of the reference to these statutes in section 299(f) is that 

the section was intended to prohibit trial courts, when reducing or dismissing charges 

pursuant to the listed statutes, from also expunging the DNA record given in connection 

with the original felony conviction.

This interpretation of section 299(f) was adopted in Coffey, supra, 

129 Cal.App.4th 809. The defendant in Coffey pleaded guilty to a felony conviction for a 

wobbler offense, on the understanding the conviction would be reduced to a 

misdemeanor at sentencing if he satisfied certain conditions. (Id. at p. 812.) When the 

conviction was later reduced to a misdemeanor, as agreed, the trial court declined to 

expunge the defendant’s DNA record. (Id. at p. 813.) In affirming the denial, the Coffey

court based its decision on the language of section 296, but it found its conclusion 

bolstered by the language of section 299(f). (Coffey, at pp. 821–823).

As Coffey explained, section 296 requires any person “convicted” of a qualifying 

offense to provide a DNA sample. (Coffey, supra, 129 Cal.App.4th at p. 817.) Since at 

 

which event the case shall proceed as if the defendant had been arraigned on a 

misdemeanor complaint.

“(c) When a defendant is committed to the Division of Juvenile Justice for a crime 

punishable, in the discretion of the court, either by imprisonment in the state prison or 

imprisonment in a county jail under the provisions of subdivision (h) of Section 1170, or 

by fine or imprisonment in the county jail not exceeding one year, the offense shall, upon 

the discharge of the defendant from the Division of Juvenile Justice, thereafter be deemed 

a misdemeanor for all purposes.”
10

least 1925, a conviction under a wobbler offense charged as a felony has been considered 

to be a felony until that status is changed by the trial court through sentencing (id. at 

p. 820), and the later reduction to a misdemeanor does not retroactively eliminate the 

original felony conviction. (See Doble v. Superior Court (1925) 197 Cal. 556, 576–577 

(Doble) [“the charge stands as a felony for every purpose up to judgment, . . . but if the 

judgment is for a misdemeanor it is deemed a misdemeanor for all purposes thereafter”].) 

The Coffey court found that concept reflected in the language of section 296, which 

requires “that ‘Any person who is convicted of any of the following crimes . . . shall, 

regardless of sentence imposed or disposition rendered, be required to provide [DNA 

samples].’ ” (Coffey, at p. 821, italics added by Coffey.) As the court concluded, 

“Because the Legislature did not intend for the defendant’s sentence or disposition to 

[a]ffect whether the DNA samples would be collected, it likely intended the term 

‘conviction’ [in section 296] to refer to a guilty plea rather than the ultimate judgment 

rendered after application of section 17.” (Ibid.)

Subdivision (f) was added to section 299 by proposition after the date of the 

Coffey defendant’s offense.7 As the court noted, the amendment “confirm[s] that a 

reduction in a charge pursuant to section 17 does not obviate the defendant’s obligation to 

provide DNA samples.” (Coffey, supra, 129 Cal.App.4th at p. 821.) Rather than 

effecting a change in the law, Coffey concluded the addition of section 299(f) “merely 

clarified existing law” that a defendant is not entitled to expungement of a DNA record

when a wobbler conviction is reduced to a misdemeanor. (Coffey, at p. 822.)

Given this background, the meaning of the Legislature’s inclusion of 

section 1170.18 in section 299(f) is clear. The original inclusion of a reference to 

section 17 in section 299(f) prohibited the expungement of a DNA record after a 

defendant’s wobbler felony conviction is reduced to a misdemeanor pursuant to 

section 17. By the same logic, by inserting a reference to section 1170.18 in 

 

7

Section 299(f) was added as part of Proposition 69, enacted in 2004. (Coffey, 

supra, 129 Cal.App.4th at p. 821.)
11

section 299(f), the Legislature has prohibited the expungement of a defendant’s DNA 

record when his or her felony offense is reduced to a misdemeanor pursuant to 

section 1170.18.

The minor argues section 299(f) could not have been intended to affect a court’s 

duty to order expungement under section 299, subdivision (b) because section 299(f)

speaks of “reliev[ing]” a defendant of the “duty to provide” a DNA sample, language 

that, as the minor argues, “applies to a situation where a person has yet to submit a 

sample.” As explained above, while we might agree in the absence of the statutory 

references to sections 17, 1203.4, and 1203.4a, the inclusion of those statutes makes 

sense only if section 299(f) is interpreted as precluding expungement when an originally 

qualifying offense is reduced to a nonqualifying offense in the course of judicial 

proceedings. We acknowledge the use of the phrase “relieve . . . of the separate 

administrative duty to provide” is not an intuitive way to refer to expungement, but the 

language has been so understood at least since the issuance of Coffey, over 10 years ago.8

The minor also argues Bill No. 1492 was intended to deal with a possible 

affirmance of Buza, rather than to address expungement of DNA records under 

Proposition 47. While there is no doubt the primary purpose of Bill No. 1492 is to cope 

with Buza, the Legislature is permitted to address more than one issue in a single bill. 

The amendment of section 299(f), which remains in effect regardless of whether Buza is 

reversed or affirmed, is clearly aimed at a different issue, the one addressed here.

C. The Propriety of Applying Bill No. 1492 to Events Preceding Its Enactment

For the reasons stated above, Bill No. 1492 has the effect of abrogating the 

holding of Alejandro N. by precluding the expungement of DNA records in connection 

 

8

The minor also argues the Legislature would have included the reference to 

section 1170.18 in section 299, subdivisions (b) or (e) if it intended to prohibit 

expungement, since these subdivisions expressly address, respectively, expungement and 

its prohibition. It is not our place to dictate to the Legislature the statutory structure. As 

discussed in the text, the intent of section 299(f) is clear from its language, regardless of 

its location within section 299, and the meaning of the insertion of section 1170.18 in 

section 299(f) is unambiguous.
12

with sentence recall under section 1170.18. The question remains, however, whether the 

bill applies to the minor’s request for expungement, since her request and the reduction of 

her violation to a misdemeanor occurred well before the effective date of Bill No. 1492. 

Because Proposition 47 is ambiguous in its treatment of expungement, we conclude Bill 

No. 1492 must be understood to have clarified, rather than changed, the law. The bill 

therefore may be applied to circumstances predating its enactment.

1. Governing Law

The “general rule” is statutes “do not operate retroactively ‘unless the Legislature 

plainly intended them to do so.’ ” (In re Marriage of Fellows (2006) 39 Cal.4th 179, 

183, fn. omitted.) This general rule, however, rests on a particular definition of the term 

“retroactive.” In common parlance, “retroactive” can be understood to refer generically 

to a statute’s application to circumstances arising prior to its effective date. In the law, 

however, a statute does not operate retroactively unless, when applied to preexisting 

circumstances, it alters the legal effect of those circumstances. (E.g., Myers v. Philip 

Morris Companies, Inc. (2002) 28 Cal.4th 828, 839 (Myers) [“a statute that operates to 

‘increase a party’s liability for past conduct’ is retroactive”].) For that reason, the 

application of a statute to events predating its enactment, while it might seem 

“retroactive” in the common use of the term, does not constitute a retroactive application 

under the law unless it changes the legal consequences of those events.

As explained in Western Security Bank v. Superior Court (1997) 15 Cal.4th 232 

(Western Security): “A statute has retrospective effect when it substantially changes the 

legal consequences of past events.[9] [Citation.] A statute does not operate 

retrospectively simply because its application depends on facts or conditions existing 

before its enactment. [Citation.] Of course, when the Legislature clearly intends a statute 

to operate retrospectively, we are obliged to carry out that intent unless due process 

considerations prevent us. [Citation.]

 

9

The Supreme Court’s use of “retrospective” in Western Security is a possible 

source of confusion. The term is used interchangeably with “retroactive.” (Myers, 

supra, 28 Cal.4th at p. 839.)
13

“A corollary to these rules is that a statute that merely clarifies, rather than 

changes, existing law does not operate retrospectively even if applied to transactions 

predating its enactment. We assume the Legislature amends a statute for a purpose, but 

that purpose need not necessarily be to change the law. [Citation.] Our consideration of 

the surrounding circumstances can indicate that the Legislature made material changes in 

statutory language in an effort only to clarify a statute’s true meaning. [Citations.] Such 

a legislative act has no retrospective effect because the true meaning of the statute 

remains the same. [Citations.]

“One such circumstance is when the Legislature promptly reacts to the emergence 

of a novel question of statutory interpretation: ‘ “An amendment which in effect 

construes and clarifies a prior statute must be accepted as the legislative declaration of the 

meaning of the original act, where the amendment was adopted soon after the controversy 

arose concerning the proper interpretation of the statute. . . . [¶] If the amendment was 

enacted soon after controversies arose as to the interpretation of the original act, it is 

logical to regard the amendment as a legislative interpretation of the original act—a 

formal change—rebutting the presumption of substantial change.” ’ ” (Western Security, 

supra, 15 Cal.4th at pp. 243–244, fn. omitted.)

In Western Security, the Court of Appeal had interpreted a statute to excuse the 

failure to honor a letter of credit. Before a year had elapsed, the Legislature passed a bill 

abrogating the court’s decision by amending four statutes. A clause in the bill stated it 

was the Legislature’s intent to “ ‘confirm and clarify’ ” the law as it had existed prior to 

the Court of Appeal decision. (Western Security, supra, 15 Cal.4th at pp. 238, 241–242.) 

In deciding whether to apply the legislation in the case in which the Court of Appeal 

decision originally had been rendered, the Supreme Court first determined whether the 

statutory amendments “effected a change in the law, or instead represented a clarification 

of the state of the law before the Court of Appeal’s decision.” (Id. at p. 246.) After an 

extensive analysis of the law of letters of credit as it existed prior to the Court of Appeal 

decision, the Supreme Court found “the Legislature’s action did not effect a change in the 

law.” (Id. at p. 252.) Accordingly, the court concluded, “Because the legislative action 
14

did not change the legal effect of past actions, [the legislation] does not act 

retrospectively; it governs [the original] case.” (Ibid.)

The Supreme Court turned more recently to retroactivity in Carter v. California 

Dept. of Veterans Affairs (2006) 38 Cal.4th 914 (Carter), in which the Legislature had 

again enacted legislation expressly to clarify the law by amending a statute to abrogate 

the ruling in a Court of Appeal decision. A subsequent appellate court had concluded the 

Legislature’s amendment was not, contrary to its declaration, a clarification of the 

meaning of the existing statute, but rather a change in its meaning, and therefore refused 

to apply the new legislation to events predating its enactment. (Id. at pp. 919–920.) The 

Supreme Court began with the proposition “[a] statute that merely clarifies, rather than 

changes, existing law is properly applied to transactions predating its enactment.” (Id. at 

p. 922.) In deciding whether the new legislation constituted a clarification of preexisting 

law or a change, the court examined the original statute to determine whether it “could 

not have been properly construed” in the manner of the purportedly clarifying legislation. 

(Id. at p. 924.) After a review, the court concluded the original statutory language was 

“ambiguously worded” and both parties had been able to make “credible arguments in 

favor of their positions.” (Id. at p. 926.) Similarly, a review of the legislative history of 

the original legislation failed to establish a clear legislative intent. (Id. at pp. 928–930.) 

Given the ambiguity in the existing statute and the Legislature’s prompt action to clarify 

that ambiguity in response to the appellate decision, the Supreme Court concluded “the 

Legislature merely clarified existing law” in the new legislation and the legislation could 

be applied to circumstances predating its enactment “ ‘because the true meaning of the 

statute remains the same.’ ” (Id. at p. 930.)

2. Clarification Versus Change in the Law

As discussed above, statutory amendments ordinarily may not be applied 

retroactively. Under Western Security and Carter, however, an amendment is not 

deemed to apply retroactively merely because it is applied to events predating its 

enactment. Rather, an impermissible retroactive application occurs only if the 

amendment is applied to conduct predating its enactment and that application 
15

“substantially changes the legal consequences” of the earlier conduct. (Western Security, 

supra, 15 Cal.4th at pp. 238, 243.) Because the minor’s violation and disposition 

occurred well before the effective date of Bill No. 1492, the bill cannot be applied to her 

circumstances unless such an application would not be “retroactive”—that is, would not 

effect a change in the legal consequences of her conduct, but would act merely to clarify 

the preexisting law. We turn now to that distinction.

In evaluating the proper application of Bill No. 1492, we begin, consistent with the 

approach of Western Security and Carter, with an evaluation of the meaning of the 

original legislation to determine whether the Legislature’s interpretation is a clarification 

of prior law or a change in its established meaning.

The case for interpreting Proposition 47 to require expungement was forcefully 

made by Alejandro N. In brief, Alejandro N. relied on section 1170.18, subdivision (k), 

which states that a felony reduced to a misdemeanor pursuant to section 1170.18 “shall 

be considered a misdemeanor for all purposes,” with the exception that the misdemeanant 

continues to be subject to the firearms ban applicable to felons. The court reasoned that 

because subdivision (k) lists only one exception to the requirement to treat the recalled 

sentence as a misdemeanor for all purposes, “the enactors effectively directed the courts 

not to carve out other exceptions to the misdemeanor treatment of the reclassified 

offense.” (Alejandro N., supra, 238 Cal.App.4th at p. 1227.) The court squared this 

interpretation with section 299, governing expungement, by treating the redesignated 

conviction as though it had been a misdemeanor conviction from the beginning. Under 

section 299, a person is entitled to expungement only if he or she “has no past or present 

offense . . . which qualifies that person for inclusion” within the DNA collection 

program. (§ 299, subd. (a).) By interpreting the recall of sentence as effective from the 

time of conviction, as Alejandro N. held, “the reclassified misdemeanor offense itself no 

longer qualifies as an offense permitting DNA collection” after the redesignation. (Id. at 

p. 1229, italics omitted.)

While this is an entirely plausible reading of the relevant statutes, a different and 

similarly plausible reading is available by analogy to the treatment of wobbler felony 
16

convictions under section 17. As discussed above in connection with Coffey, supra, 

129 Cal.App.4th 809, a conviction for a wobbler offense charged as a felony has 

traditionally been regarded as a felony until the point in time at which the trial court’s 

sentencing decision converts it to a misdemeanor. As the court held in Doble, it is 

“deemed a misdemeanor for all purposes thereafter.” (Doble, supra, 197 Cal. 556, 576–

577, italics added).) Coffey relied on this approach in finding a person whose felony 

conviction has been converted to a misdemeanor at sentencing is not entitled to 

expungement of his or her DNA record.

10

 (See, e.g., People v. Williams (2016) 

245 Cal.App.4th 458, 466–468 [finding redesignation under Proposition 47 to operate 

prospectively from the date of redesignation, in part by analogy to § 17].)

If redesignation under section 1170.18 is similarly analogized to the treatment of 

wobbler offenses, the redesignation of a felony conviction would not justify DNA record

expungement. Under section 299, subdivision (b), a person is entitled to expungement of 

his or her DNA record only “if the person has no past or present offense or pending 

charge which qualifies that person for inclusion.” (§ 299, subd. (a).) If a felony 

conviction redesignated as a misdemeanor pursuant to section 1170.18 is treated as a 

felony up until the time of redesignation, similar to a wobbler felony conviction under 

section 17, the defendant would continue to have a past qualifying conviction even after 

the redesignation. Under the terms of section 299, the defendant would not be entitled to 

expungement of his or her DNA record.

While there are solid arguments both for and against the approach of Alejandro N. 

and the analogy to section 17, none of these arguments is conclusive. Because 

 

10 A similar analogy to section 17 was adopted by People v. Rivera (2015) 

233 Cal.App.4th 1085, to support its conclusion that the Court of Appeal retained 

jurisdiction over an appeal filed with respect to a felony conviction after the conviction 

had been reduced to a misdemeanor pursuant to a section 1170.18 petition for recall of 

sentence. (Rivera, at pp. 1094–1096.) As Rivera concluded, “Since . . . we look at how 

the offense was charged to determine appellate jurisdiction, the later designation of the 

offense as a misdemeanor under Proposition 47 does not apply retroactively to convert 

this case from a felony case to a misdemeanor case for the purpose of determining which 

court has jurisdiction over the appeal.” (Id. at pp. 1096–1097.)
17

section 1170.18 does not make clear whether a redesignated conviction is to be treated as 

a misdemeanor from the date of conviction, as Alejandro N. concluded, or from the date 

of sentence recall, as would be dictated by analogy to section 17, Proposition 47 is 

ambiguous in this regard. Further, there are, as the Supreme Court observed in Carter, 

“credible arguments in favor of [both] positions.” (Carter, supra, 38 Cal.4th at p. 926.) 

Accordingly, Bill No. 1492 must be regarded as clarifying, rather than changing, 

Proposition 47, and it can be applied to preexisting circumstances without changing the 

then-existing legal relations.

3. The Legislature’s Intent

That conclusion does not quite end our inquiry. As noted above, in both Western 

Security and Carter the Legislature had expressly stated its intent in the amending 

legislation to clarify the statutory interpretation and abrogate the contrary holding of the 

Court of Appeal. The circumstances are somewhat different here. While Bill No. 1492

was issued soon after Alejandro N. and had the unmistakable effect of abrogating its 

statutory interpretation, there is no declaration of that intent in the legislation. Nor did 

the legislation claim to clarify Proposition 47. Further, it is clear from the legislative 

history that the portion of Bill No. 1492 amending section 299(f), was not enacted in 

reaction to Alejandro N., despite the coincidental timing. While the legislative history of 

Bill No. 1492 is a bit tangled, it is clear the portion of Bill No. 1492 inserting a reference 

to section 1170.18 into section 299(f) was included in the legislation no later than June 

2015, thereby predating the issuance of Alejandro N. by at least a month.11

 

11 As first introduced in February 2015, Bill No. 1492 was addressed to matters of 

insurance.

(<http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1492

> [as of Apr. 28, 2016].) In June 2015, the original content of the bill was deleted, and an 

entirely different text was substituted, similar to that of the final bill. 

(<http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1492

> [as of Apr. 28, 2016].) The text substituted into Bill No. 1492 in June 2015 contained 

the amendment to section 299(f) at issue here. That substituted text appears to have been 

drawn from another bill, Assembly Bill No. 84 (2015–2016 Reg. Sess.), which was never 

enacted. The last version of Assembly Bill No. 84 (2015–2016 Reg. Sess.), from April 
18

Nonetheless, there is some evidence the Legislature viewed the amendment of 

section 299(f) in Bill No. 1492 to be a clarification of the meaning of Proposition 47. 

The provision amending section 299(f) in Bill No. 1492 was also contained in a different, 

unsuccessful bill, Assembly Bill No. 390 (2015–2016 Reg. Sess.) (hereafter Assembly 

Bill 390), which was pending before the same Senate committee at the same time as 

Bill No. 1492.

12

 The primary purpose of Assembly Bill 390 was to amend section 296 to 

require the collection of DNA samples from persons convicted of the crimes that 

Proposition 47 had changed from wobblers to misdemeanors. In July 2015, Assembly 

Bill 390 was amended to include the insertion of a reference to section 1170.18 into 

section 299(f), the same amendment at issue here. 

(<http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB390> 

[as of Apr. 28, 2016].) A memorandum prepared for the Senate Committee on Public 

Safety upon consideration of this amended version of Assembly Bill 390 states: “This 

bill provides that even if a person is resentenced under [Proposition 47], a court could not 

relieve their duty to give a DNA sample and thus the person could not seek to have his or 

her DNA removed from the data bank.”13 (Sen. Com. on Public Safety, Analysis of 

Assem. Bill No. 390 (2015–2016 Reg. Sess.) July 13, 2015, p. 8.) Although the 

legislative history of Bill No. 1492 does not similarly address this aspect of the bill, it 

does contain references to the concurrent pendency of Assembly Bill 390. (Sen. Com. on 

 

2015, while it addresses Buza, does not contain an amendment of section 299(f).

(<http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB84> 

[as of Apr. 28, 2016].) The amendment of section 299(f) was therefore formulated 

sometime between April 2015 and June 2015, well prior to the issuance of Alejandro N.

12 Assembly Bill 390 failed a vote in the Senate Committee on Public Safety in 

July 2015 and has not been considered since. 

(<http://leginfo.legislature.ca.gov/faces/billHistoryClient.xhtml?bill_id=201520160AB39

0> [as of Apr. 28, 2016].)

13 The quotation is from a paragraph entitled, “Can’t Have DNA Removed if 

Felony is Now a Misdemeanor.” A copy of the memorandum can be downloaded at 

<http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201520160AB3

90> (as of Apr. 28, 2016).
19

Public Safety, Analysis of Assem. Bill No. 1492 (2015–2016 Reg. Sess.), July 13, 2015, 

p. 10.)14 Accordingly, while there is no indication the Legislature was aware of 

Alejandro N.’s statutory interpretation at the time Bill No. 1492 was passed, members of 

the Legislature had already recognized the possibility of such an interpretation and were 

attempting to preclude it by amending section 299(f). Bill No. 1492 enacted that 

amendment.

In deciding whether this is sufficient to support the application of Bill No. 1492 to 

the minor’s circumstances, we are guided by this general principle from Carter: “A 

statute that merely clarifies, rather than changes, existing law is properly applied to 

transactions predating its enactment.” (Carter, supra, 38 Cal.4th at p. 922.) The same 

principle appears to be established in Western Security, in which the court concluded, 

“Because the legislative action did not change the legal effect of past actions, [it] does not 

act retrospectively; it governs this case.” (Western Security, supra, 15 Cal.4th at p. 252.) 

Such language suggests that if legislation clarifies the law rather than changes it, the 

clarification applies to circumstances predating the time of the legislative enactment, 

regardless of whether the Legislature affirmatively expressed its intent regarding 

clarification. (See similarly Negrette v. California State Lottery Com. (1994) 

21 Cal.App.4th 1739, 1744 [“An amendment which merely clarifies existing law may be 

given retroactive effect even without an expression of legislative intent for 

retroactivity.”].) For the reasons discussed above, we have determined that Bill No. 1492

merely clarified, rather than changed, Proposition 47. Under the guidance of Carter and 

Western Security, the fact of clarification is, standing alone, sufficient to support the 

application of the amended terms of section 299(f) in this case.

Two other grounds support our conclusion. First, as noted above, the same 

provision in Assembly Bill No. 390 was interpreted upon presentation to the Senate 

Committee on Public Safety as clarifying the law in exactly this manner. While of 

 

14 A copy of this memorandum can be downloaded at 

<http://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill_id=201520160AB1

492> (as of Apr. 28, 2016).
20

limited value as legislative history, this does demonstrate the identical understanding by 

some legislators of the effect of amending section 299(f). Second, a refusal to apply 

Bill No. 1492 to pending cases would severely limit its effectiveness. Proposition 47 was 

enacted in November 2014. Because a recall of sentence under section 1170.18, 

subdivision (a) provided immediate sentence relief for those affected, most petitions for 

recall were presumably filed soon after the proposition was passed and have long since 

been resolved. For that reason, most situations affected by the amendment of 

section 299(f) in Bill No. 1492 would, as a practical matter, be beyond its reach if the bill 

is denied application to petitions for recall of sentence made prior to its enactment.

4. Inconsistency with Proposition 47

As final matter, the minor argues Bill No. 1492 is not a proper amendment of 

Proposition 47 because, by its express terms, Proposition 47 can only be amended in a 

manner “consistent with and [in] further[ance of]” its intent. (Ballot Pamphlet, supra, 

text of Prop. 47, § 15, p. 74.) In People v. Superior Court (Pearson) (2010) 48 Cal.4th 

564, the Supreme Court adopted a relatively strict rule for determining whether a 

legislative enactment amends the terms of a proposition. “In deciding whether this 

particular provision amends [the proposition], we simply need to ask whether it prohibits 

what the initiative authorizes, or authorizes what the initiative prohibits.” (Id. at p. 571.) 

Because, as explained above, Proposition 47 neither requires nor prohibits the 

expungement of DNA records, Bill No. 1492 does not, as so defined, amend the 

proposition.

Yet even if we treated Bill No. 1492 as an amendment, rather than a clarification,

of Proposition 47, it would satisfy the proposition’s requirement that any amendment be 

consistent with and further its intent. The minor’s claim of inconsistency is premised on 

the argument that the language of Proposition 47 requires expungement of DNA records 

when a felony conviction is redesignated a misdemeanor, for the reasons articulated by 

Alejandro N. Given this reading, the prohibition on expungement in Bill No. 1492 would 

be inconsistent with the proposition. As discussed above, however, while we do not 

reject the rationale of Alejandro N., there is an alternative and equally plausible reading 
21

of the language of Proposition 47 under which expungement would be prohibited. 

Because we conclude Proposition 47 does not clearly either require or prohibit 

expungement the records of previously provided DNA samples, there is no basis for 

finding the prohibition of expungement in Bill No. 1492 to be inconsistent with the intent 

of the proposition.15

III. DISPOSITION

The judgment of the trial court is affirmed.

_________________________

Margulies, J.

We concur:

_________________________

Humes, P.J.

_________________________

Banke, J.

 

15 Proposition 47 also requires a two-thirds vote of both houses of the Legislature 

for its amendment. (Ballot Pamphlet, supra, text of Prop. 47, § 15, p. 74.) The bill 

history demonstrates Bill No. 1492 was passed unanimously in the Senate and over a 

single dissenting vote in the Assembly, easily satisfying the two-thirds majority 

requirement. The bill history can be found at

<http://leginfo.legislature.ca.gov/faces/billNavClient.xhtml?bill_id=201520160AB1492>

(as of Apr. 28, 2016).
22

Trial Court: Contra Costa County Superior Court

Trial Judge: Hon. Thomas M. Maddock

Counsel: 

Melanie Martin del Campo, under appointment by the Court of Appeal, for Defendant 

and Appellant.

Kamala D. Harris, Attorney General, Gerald A. Engler and Jeffrey M. Laurence, 

Assistant Attorneys General, Eric D. Share and Huy T. Luong, Deputy Attorneys General 

for Plaintiff and Respondent.