SEE CONCURRING OPINION

Filed 8/30/18



## IN THE SUPREME COURT OF CALIFORNIA

In re C.B., a Person Coming Under the ) Juvenile Court Law. )

________________________________ ____ ) ) THE PEOPLE , ) ) Plaintiff and Respondent, ) ) S237801

v. ) ) Ct.App. 1/3 A146277 C.B., ) ) Contra Costa County Defendant and Appellant. ) Super. Ct. No. J1301073

________________________________ ____ ) ) In re C.H., a Person Coming Under the ) Juvenile Court Law. )

________________________________ ____ ) ) THE PEOPLE , ) ) Plaintiff and Respondent, ) ) S237762

v. ) ) Ct.App. 1/3 A146120 C.H., ) ) Contra Costa County Defendant and Appellant. ) Super. Ct. No. J1100679

________________________________ ____ )

The California Department of Justice maintains a databank of DNA samples and genetic profiles collected from certain adult and juvenile offenders2

who have been arrested, convicted, or declared wards of the court. (Pen. Code, §§ 295

– 300.4.) 1 J uveniles declared wards based on felony conduct must submit samples , but need not do so for most misdemeanor offense s . (§ 296, subd. (a).) The Legislature has also establis hed a procedure to seek destruction of a sample and expungement of a profile from th e databank . (§ 299.) In 2014, the passage of Proposition 47 reclassifi ed various drug and property offenses from felonies to misdemeanors

. ( Voter Information Guide , Gen. Elec. (Nov. 4, 2014) text of Prop. 47, §§ 5

– 13, pp. 71

‒ 73 (Proposition 47 Voter
Guide ). ) Appellants here are juveniles who were declared wards of the court based on conduct that was felonious when committed. They urge that because their acts are now misdemeanors, they are entitled to have their DNA s amples and profiles removed from the databank. We hold that Proposition 47 does not authorize that relief, nor does equal protection compel it. The judgments of the Courts of Appeal are affirmed.
I. BACKGROUND
These two cases raise the identical legal issues and were consolidated for argument and decision. In 2011, C.H. entered a department store with two friends, changed into a pair of pants in a dressing room, and left the store alone without paying for the
new pants. H e s aw his friends fighting with a loss prevention officer and joined in, kicking the officer in the head. C.H. was arrested and admitted both theft and
assault

. A juvenile wardship petition was sustained, with findings that C.H.
committed felony grand th eft person . (Welf. & Inst. Code, former § 602,

1 All further unlabeled statutory references are to the Penal Code.3

subd. (a); Pen. Code, § 487, subd. (c) .) He was ordered to submit fingerprints and DNA samples to the California Department of Justice . (Pen. Code, §§ 296,
296 .1 .) In 2013, C.B. entered an unoccupied hom e and took jewelry, a wallet, cell phone, and video game system. When the homeowner unexpectedly returned,
C.B. brandished a knife to attempt escape. The victim and witnesses detained C.B., who confessed when police officers arrived.
The court sustained a wardship petition based on misdemeanor residential burglary and felony grand theft person . ( Welf. & Inst. Code, former § 602,
subd. (a); Pen. Code, §§ 459, 460, subd

. (b), 487, subd. (c) .) C.B. was also ordered to submit fingerprints and DNA sample s. ( Pen. Code, §§ 296, 296.1 .) In 2015, after voter s approved Pr oposition 47, C.B. and C.H. petitioned to have their felony violations redesignated as misdeme anors, their fines reduced,
and th eir DNA samples and profile s expunged from the state databank. (See §§ 299, 490.2, 1170.18 .) In each case, the tr ial court s redesignate d the offense as

a misdemeanor and reduce d the fine

. However, both motion s for expungement
were denied

. Two different panels of the Court of Appeal affirmed, one by a divided vote. ( In re C.B. (2016) 2 Cal.App.5th 1112 ; id. at p. 1128 (dis. opn. of Pollak, Acting P. J. ) ; In re C.H. (2016) 2 Cal.App.5th 1139.) In In re C.B. , t he majority
concluded Proposition 47 did not expand the existing grounds for expungement

. Moreover, after Propos ition 47’s passage the Legislature had amended section 299, subdivision (f) , to clarify t hat redesignation of a felony to a misdemeanor was
not a b asis for removal

. ( In re C.B

. , at pp. 1118

– 1128.) The dissent argued that Proposition 47 required redesigna ted offenses to be treated as misdemeanors for
all purposes, including elig ibility for retention in the databank

. (See § 1170.18,4

subd. (k).) The dissent urged that the Legislature’s amendment of section 299, subdivision (f), was invalid because it contravened Proposition 47.
In re C.H. was issued the same day . There , a unanimous court interpreted the statutory scheme similarly to the In re C.B. majority . It held that Proposition 47 did not change the circumstance that C.H.’s conduct had been a fel ony when
committed and his sample had been properly collected . N o thing in section 299 or section 1170.18 auth orized expungement based on subsequent redesignation of C.H.’s offense. ( In re C.H. , supra , 2 Cal.App.5th at pp. 1145

– 115 1.) The court expressly disagreed with Alejandro N. v. Superior Court ( 2015) 238 Cal.App.4th 1209, 1226

– 1230 , which had held to the contrary

. In re C.H. also rejected the argument that equal protection principles required expung e ment. ( In re C.H. , at

pp. 1151

– 1152.)
II. DISCU SSION
A

. Legal Background
1

. The State DNA Databank
For several decades, “California law [has] required the collection of biological samples from individuals convicted of certain offenses. In 1983, the Legislature enacted legislation requiring certain sex offenders to provide blood and saliva samples before their rel ease or discharge. (Stats. 1983, ch. 700, § 1,

pp. 2680

– 2681, codified at Pen. Code, former § 290.2.) In 1998, the Legislature
enacted the ‘ DNA and Forensic Identification Data Base and Data Bank Act of
1998 , ’ which required the collection of DNA samples from persons convicted of certain felony offenses, including certain sex offenses, homicide offenses, kidnapping, and felony assault or battery. (Sta ts. 1998, ch. 696, § 2, pp. 4571

– 4579; Pen. Code, former § 296, subd. (a).)” ( People v. Buza (2018 ) 4 Ca l.5th 658,
665 .) In 2004, the voters adopted Proposition 69 , which amended the a ct to further expand the class of those obligated to submit samples . This expanded5

group include d all juveniles adjudged wards of the court based on felony conduct. ( Voter I nformation Guide, Gen. Elec. (Nov. 2, 2004) text of Prop. 69 , § III. 3 , pp. 137

- 138 (Proposition 69 Voter Guide) .)
The DNA and Forensic Identification Data b ase and Data Bank Act of 1998 (DNA Act) requires submission of “buccal swab samples, right thumbprint s, and a full palm print impression of each hand, and any blood specimens or other biological samples required pursuant to this chapter for law enforcement identification analysis.” (§ 296, subd. (a).) The buccal swab samples contain the
offender’s DNA. (See § 295, subd. (e).) S amples are submitted to the California Department of Justice’s DNA Laboratory, which creates and stores a genetic profile in the databank. (§§ 295, 295.1; see People v. Buza , supra , 4 Cal.5th at p.
666 .) 2
2

. Proposition 47 In 2014, Proposition 47 reclassified as misdemeanors various drug

- and
theft

- related offenses previously treated as felonies or wobblers. ( People v.
Valencia (2017) 3 Cal.5th 347, 355.) The initiative had both prospective and retroactive aspects, reducin g punishments going forward and providing relief for those who had already suffered felony convictions. To achieve its retroactive purposes, the initiative added section 1170.18, which authorized a petition for
recall of sentence or reclassification of an offense. Felons currently serving a
sentence based on conduct now reclassified as a misdemeanor could petition for
recall of their sentences and imposition of a sentence consistent with their new
misdemeanor status. (§ 1170.18, subds. (a)

– (b); People v. Page (2017) 3 Cal.5th

2 Hereafter, we use “sample” as a shorthand for the full range of biological samples and profile information submitted and stored under the DNA Act, as amended by Proposition 69.6

1175, 1179.) T hose who had already completed a felony sentence could apply to
have the felony redesignated as a misdemeanor. (§ 1170.18, subds. (f)

– (h).) Notably , the initiative gives redesignation broad effect : “A felony convict ion that is recalled and resentenced under subdivision (b) or designated as a misdemeanor under subdivision (g) shall be considered a misdemeanor for all purposes

. . . . ” (§ 1170.18, subd. (k).) 3

N o thing in the text of section 1170.18 explicit ly applies to juveniles. T he various provisions for resentencing or redesignation speak entirely in terms of sentences and convictions, as opposed to juvenile adjudications. (See, e.g., § 1170.18, subds. (a), (b), (f), (k).) “ A juvenile adjudication is not a conviction.” ( People v. Robinson (2010) 47 Cal.4th 1104, 1117, fn. 14; see Welf. & Inst. Code, § 203.) However, Alejandro N. v. Superior Court , supra , 238 Cal.App.4th at

pp. 1224

– 1226 , concluded section 1170.18 applies equ ally to juveniles. T he People do not contest the application to juvenile cases, and we accept the People’s
concession.

B

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

3 The only exception to this “for all purposes” provision is that a grant of relief “ shall not permit that person to own, possess, or have in his or her custody or control a firearm or prevent his or her conviction under Chapter 2 (commencing with Section 29800) of Division 9 of Title 4 of Part 6.” (§ 1170.18, subd. (k).)7

voter intent and turning to extrinsic source s such as ballot materials when

necessary to resolve ambiguities. ( People v. Park (2013) 56 Cal.4th 782, 796

– 798 ; Kwikset Corp. v. Superior Court (2011) 51 Cal.4th 310, 321

. ) Where possible, we seek to harmonize the measures, giving full effect to each. ( State
Farm Mutual Automobile Ins. Co. v. Garamend i (2004) 32 Cal.4th 1029, 1043.)

1

. Text
T he DNA Act, as modified by Proposition 69 , identifies those who m ust provide samples for the databank

. Since 2004, that group has included “any juvenile who is adjudicated under Section 602 of the Welfare and Institutions Code for committing any felony offense.” (§ 296, subd. (a)(1).) C.B. and C.H. became obligated to submit samples when they were found to have committed
felonies . C.B. an d C.H. would not be under a similar obligation today because Proposition 47 reclassified various crimes, including theirs, from felonies to
misdemeanors . (See § 490 .2, added by Prop. 47, § 8.) With respect to sample submission , Propositions 69 and 47 inte ract harmoniously. Proposition 69 identifies , in the abstract , juveniles who must
submi t samples, principally those adjudicated ward s for having committed
felonies

. Proposition 47 operates prospectively to narrow the class of juveniles
who must submit sa mples b ecause it redefin es what offenses a re felonies

. While Proposition 47 spares some future offenders a duty to submit samples , it does not alter the past reality that C.B. and C.H. were adjudicated to have committed felonies and were obligated at the time to provide samples based on those adjudications

. Section 299 governs retention of samples after they have been submitted

. S ection 299, s ubdivi sion (a) , says : “ A person whose DNA profile has been
included in the databank pursuant to this chapt er shall have his or her DNA specimen and sample destroyed and searchable database profile expunged from8

the databank program pursuant to the procedures set forth in subdivision (b) if the

person has no past or present offense or pending charge which quali fies that

person for inclusion within the state’s DNA and Forensic Identification Database
and Databank Program and there otherwise is no legal basis for retaining the specimen or sample or searchable profile .” As enacted, s ub division (a) sets out
three conditions for expungement : (1) “no past or present offense or pending charge which qualifies that person for inclusion , ” (2) no alternate legal basis for
retention , and (3) compliance with “the proc edures set forth in subdivision (b).”
After Proposition 47 , C.B. and C.H. now appear to satisfy the first and
second conditions. The ir felon y findings have b een reclassified and their offenses redesignated as misdemeanors. U nder section 296 , a juvenile adjudication based on a misdemeanor petty theft violation (§ 490.2) does not trigger an obligation to submit a samp le for inclusion . Section 299, subdivision (a) , is written in the
present tense; C.B. and C.H. do not currently have any “past or present offense

. . . which qualifies [them] for inclusion

. ” Further, the People present no other legal bas is for retaining their samples. As for the third condition, petitioners did
mak e written request s for destruction and expungement under section 299,
subd ivision (b) , but they do not satisfy the further requir ements set out in that provision

. To explain the nature of their failure , we trace the history of section 299,
subdivision (b) ’s procedures

. Since the databank’s inception, submis sion and
removal of samples have been governed by di fferent standards

. In 1983, the state began collecting blood and saliva samples from menta lly disordered sex offenders but provided no mechanism for removal or expungement. (Former § 290.2, enacted by Stats. 1983, ch. 700, § 1, pp. 2680

– 2681.) By 1996, the categories of
offenders required to submit samples had expanded to inclu de those convicted of
certain violent felonies. (Former § 290.2, subdivision (a), as amended by Stats.9

1996, ch. 917, § 2, p. 5217.) Biological evidence from known or unknown
suspects could a lso b e included in the databank , but had to be stricken if an
individual was later excluded as a suspect. ( Id. , subd. (f)(3).) The law still contained no p rovision for removing samples submitted by those convicted of
crime s

. In 1998, the DNA Act comprehensively revised the statutory scheme for
both collection and retention of samples, repealing former section 290.2 and
add ing a new chapter to the Penal Code . (Stats. 1998, ch. 696, pp. 4571

– 4587 ; see People v. Brewer (2001) 87 Cal.App.4th 1298, 1 301

– 1303 .) The universe of those required to submit samples again expanded

. (F ormer § 296, enacted by Stats. 1998, ch. 696, § 2, pp. 4574

– 4575

. ) F or the first time , the revised statutory scheme provided standards for removal of samples taken from those who had previously been charged with or convicted of a crime

. (F ormer § 299, enacted by Stats. 1998, ch. 696, § 2, pp. 4582

– 45 83)

. In cases of reversal, acquittal , or a finding of factual innocence, the court entering the judgment was directed to order

e xpungement. ( I

d. , subd. (a). ) In the alternative, an affected individual could request expungement. ( Id. , subd. (b)(1).) 4 In 2004, Proposition 69 reorganized the expungement provisions and
amended the pr ocedures for obtain ing removal , which was still available only in
limited circumstances . (Prop

. 69 Voter Guide, supra , text of Prop. 69 , § III. 9 , pp. 141

– 142 .) The court’s independent duty to order expungement was
eliminated . ( Ibid. ; see former § 299, subd. (a), as enacted by Stats. 1998, ch. 696, § 2, p. 4582. ) T he Department of Justice was no longer required to periodic ally

4 Fo rmer section 299, subdivision (d), also continued the provision for removing samples from individuals determined to no longer be suspects. (Former § 299, subd. (d), enacted by Stats. 1998, ch. 696, § 2, p. 4583.)10

review and purge samples from former suspects. ( Prop. 69 Voter Guide , supra , text of Prop. 69 , § III. 9 , pp. 141

– 142 ; see former § 299, subd. (d) , as enacted by
Stats. 2000 , ch. 823, § 5 , pp. 5680

– 5681 .) An additional basis for expungement
was added , however . B ecause Proposition 69 for the first time extended the duty to submit samples to specified arrestees , it also allowed individuals to seek expungement if charges were not filed or were subsequently dismissed. (§ 299, subd. (b)(1).) Even with this addition, the grounds for exclusion from the
databank remain narrower than the grounds for inclusion in the first instance

. 5 In an important particular, t he current sch eme operates as it has since the
databank’s inception: a show ing of changed circumstances eliminating a duty to
submit a sample is an insufficient basis for expungement of a sample already
submitted. As Coffey v. Superior Court (2005) 129 Cal.App.4th 809, 82 3 , explained, the DNA Act does not “permit expungement of the DNA profile (or destruction of the samples or specimens) merely because [a] charge was subsequently reduced to a misdemeanor: the [Act] permits expu ngement only on limited grounds.” A petition er must demonstrate one of four specific conditions : (1) charges were either not filed or were dismissed, (2) charges resulted in an acquitt al , (3) any conviction was reversed and the case dismisse d, or (4) the

5 The provisions of the DNA Act dealing w ith offenses subject to sex offender and arsonist registration reflect another area where the duty to submit a sample and the right to expungement are not coextensive. Section 296, subdivision (a)(3), requires both felony and misdemeanor offenders to regi ster as sex offenders or arsonists to submit a sample. While the presence of a duty to register requires the submission of a sample, the expiration of that duty does not give rise to a corr esponding right to expungement: “Notwithstanding any other law, t he Department of Justice DNA Laboratory is not required to expunge DNA profile or forensic identification information or destroy or return specimens, samples, or print impressions taken pursuant to this section if the duty to register [as a sex offender or arsonist ] is terminated.” (§ 299, subd. (e).)11

petitioner was found factually innocent

. (§ 299, subd. (b) (1)

– (4)

. ) Th e applicant
must request expungement in writing , with copies to the DNA Laboratory of the Department of Justice, the trial court , and the prosecuting attorney. (§ 299,
subd s

. (b), (c)(1).) There after, the applicant must make “the necessary showing at a noticed hearing

. ” ( I

d. , subd. (c)(2)

. ) T he court has discretion to determine whether that showing is sufficient

. ( I d. , subd. (c)(1) .) The Department of Justice
i s obligated to expunge a sample only after receiving a court o rder directing that action, along with documentary proo f that one of the four condition s for expungement has been satisfied. ( Id. , subd. (c)(2)(B), (D).) Coffey was decided before Proposition 47 was passed. The question here is whether Coffey remains

go od law. We conclude that it does.
After the court’s redesignation orders, C.B. and C.H. no longer stand adjudicated of felonies. But they cannot meet the add itional expungement requirements of subdivision (b): lack of charges, acquittal, appellate reversal, or a finding of factual innocence. On the face of the statute, eligibility for expungement is conf

ined to these circumstances. Nothing in section 299
authorizes expungement on the ground that conduct previously de emed a felony is

now punished only as a misdemeanor. 6
This r eading of the DNA Act , as amended by Proposition 69 , do es no t
confl ict with the text of Proposition 47 , which provides that f elonies redesignat ed as misdemeanors must be treated as such for “all p urposes.” (§ 1170.18,

6 C.B. and C.H. argue that the basis for expungement they would have us add to the statute is analogous to the existing bases for expungement in cases of acquittal or reversal on appeal. But reduction of a crime from a felony to a misdemeanor differs from the statutorily recognized bases in a crucial respect: it lacks a determination that the defendant has not been proven to have any criminal culpability.12

subd. (k).) Section 296’s imposition of a duty to submit a sampl e hinges on the
classification of the offense at the time of adjudication. A later reclassification to
a misdemeanor leaves that former duty undisturbed . Section 299 hinges eligibility
for expungement not only on the present status of any offense, but also on a range of other conditions, none of which are satisfied by the re class ification of the
offense

. The Legislature or drafters of Proposition 69 cou ld have subjected submission and retention of samples to the same standards, so that someone no longer obligated to submit a sample w ould be entitled to expungement

. Alternatively, t he drafters of Proposition 47 could have provided that
reclassification w as now a basis for expungement . Such a provision would have
addressed the established rule from Coffey v. Superior Court , supra , 129 Cal.App.4th 809, that later reduction of a felony to a misdemeanor does not support expungement. Neither alternative was pursued.
C.B. and C.H. offer three interrelated textual arguments. First, they stress
that section 1170.18, subdivision (k) , contain s only one exception to its “misdemeanor for all purposes” rule
, the continued limitation on gun possession.
The v oters should be presumed to know of the state’s DNA collection, and did not
add an additional exception for DNA samples. ( Alejandro N. v. Superior Court , supra , 238 Cal.App.4th at p p

. 1227

– 1228 ; In re C.B. , supra , 2 Cal.App.5th at

p. 113 0 (dis. opn. of Pollak, Acting P. J.)

. ) The difficulty with this argument is that no exception is needed to conclude that expungement is not a consequence of redesignat ion

. After Proposition 47 , redesignation of a category of offenses can terminate the duty to submit samples. But redesignation is largely immaterial to
expungement , which does not hinge on whether an offense would give rise to a duty to submit were it committed today . There is no inconsistency between treating a redesignated offense as a misdemeanor for all purp oses and declining to expunge a previously submitted DNA sample

.13

C.B. and C.H. next contend redesignation of their offenses qualifies them for expungement because they have no past or present offense that would “qualif[y them] for inclusion” in the databan k. (§ 299, subd. (a); Alejandro N. v. Superior
Court , supra , 238 Cal.App.4th at p. 1229 [ redesignated o ffense s are “disqualified for DNA sample retention” ].) This argument ignores the fact that section 299, subdivision (a), does not operate in isolation: b y its terms, section 299 also requires satisfaction of at least one of the additional conditions in subdivision (b). Finally, C .B. and C.H. argue that section 299, subdivision (b)’s express list
of conditions should not be deemed exhaustive . They rely on Alejandro N. v. Superior Court , supra , 238 Cal.App.4th at pages 122 8

– 122 9, which so held . They
also cite Coffey v. Superior Court , supra , 129 Cal.App.4th at pages 816

– 817 , which considered a constitutional challenge to the retention of a DNA sample ,

ev en though that petitioner had not sought to satisfy the statutory section 299
condi tions for expungement

. (S ee also In re C.B. , supra , 2 Cal.App.5th at

pp. 1130

– 1131, 1137 (dis. opn. of Pollak, Acting P. J. )

. ) Coffey stands fo r an unexceptional principle: the state or federal C onstitution may impose limits on the operation of a statutory scheme above and beyond those contained in the scheme
itself. Coffey offers no authority for what C.B. and C.H. seek here, judicial
amend ment of a statute base d on purely statutory con siderations. Alejandro N. v. Superior Court , supra , 238 Cal.App.4th 1209, to the extent it held th e language of Proposition 47 could justify inserting an additional unwritten basis for expungement into section 299, subdivision (b) , was mistaken , and is disapproved

. In sum, the text of Proposition 47 and the DNA Act as amended by Proposition 69 can be harmonized. Proposition 47 narrows the universe of those who must submit samples in the future under section 296. It does not, howe ver, expand the universe of those who may seek expunge ment of samples already
submitted.14 2

. Ballot Arguments and Other Indicia of Purpose This interpretation of the statutory scheme advances the ballot arguments put forwa rd in support of Proposition 69 and is consistent with those articulated in support of Proposition 47. Proponents of Proposition 69 offered two principal reasons for expanding the state’s existing DNA databank to include samples from all felons and some arrestees. First, the measure wo uld allow law enforcement to solve additional

cases. 7 Second, it c ould exclude individuals as potential suspects , thus preventing wrongful accusation. 8 Highlighting these twin purposes, the initiative was titled the “DNA Fingerprint, Unsolved Crime and I nnocence Protection Act.” ( Prop. 69 Voter Guide, supra , text of Prop. 69 , § I. (a) , p. 135 .) The initiative’s codified and uncodified statements of purpose likewise stressed apprehension and exoneration in equal measure

. 9 Interpreting the amended DNA Act by its terms, to require more stringent
condit ions for expungement than for initial inclusion, supports these purposes.

7 See Proposition 69 Voter Guide, supra , argument in favor of Proposition 69, page 62 (“DNA IDENTIFIES CRIMINALS”; the measure “helps solve crime”; “Currently, California’s DNA database is too small,” allowing more crimes to go unsolved).
8 See Proposition 69 Voter Guide, supra , argument in favor of Prop osition 69, page 62 (the measure will “help[]

. . . free those wrongfully accused”; “DNA evidence is one of the most effective ways to prove someone was not involved with a crime. 69’s complete DNA database helps ensure people are not wrongfully accused.” ).
9 See Penal Code section 295, subdivision (c) (the purpose of the state’s databank is to assist law enforcement “in the expeditious and accurate detection and prosecution of individuals responsible for sex offenses and other crimes [and] the exclusion of suspects who are being investigated for these crimes”); Proposition 69 Voter Guide, supra , text of Proposition 69, section II.(a)

– (g), page 135; Good v. Superior Court (2008) 158 Cal.App.4th 1494, 1508

– 1509

.15

The b roader the databank ’s reach , consistent with voter intent and constitutional limits, the more likely a sample will be available to inculpate, or exculpate, a suspect in a given case.
As for Proposition 47 , proponents emphasiz e d the goal of reducing costs and reallocating both prosecutorial and prison resources. Reclassifying various felonies as misdemeanors, pro ponents urged, would “focus[] law enforcement
dollars on violent and serious crime” and “[s]top[] wasting money on warehousing people in prisons for nonviolent petty crimes, saving hundreds of millions of taxpayer funds every year.” ( Prop. 47 Voter Guide, supra , argument in favor of Prop. 47, p. 38 ; see id. , rebuttal to argument a gainst Prop. 47, p. 39.) The measure’s uncodified findings and statement of p urpose likewise emp hasize d “ensur[ing] that prison spending is focused on viole nt and serious offenses” ( i d. , text of Prop. 47, § 2 , p. 70 ) and “sav[ing] significant sta te corrections dollars” that
could better be spent elsewhere ( id. , § 3(6) , p. 70 ). Absent from these materials is any indication Proposition 47 was intended to retroactively alter t he state’s existing DNA databank

. Modifying th e databank
neither advances nor impedes Proposition 47 ’s goals to r educ e the prison population and re allocat e resources. Even reframing Proposition 47’s goal more generally as reducing the puni shment for certain crimes does not suggest a
different conclusion. Because requir ing th e submission of a sample is not punishment ( Good v. Superior Court , supra , 158 Cal.App.4th at p. 1510; People v.
Travis (2006 ) 139 Cal.App.4th 1271 , 1295 ) , i t follows that retenti on of a sample is not punishment either

. C.B. and C.H. highlight cases that have construed Pr oposition 47 as broadly intending to extinguish all collateral consequences for redesignated offenses , other
than limits on future gun posse ssion . (See People v. Evans (2016) 6 Cal.App.5th 894, 900

– 901 , r eview granted and held on other grounds for People v. Valenzuela ,16

review granted Mar. 1, 2017, S239122 ; Alejandro N. v. Superior Court , supra , 238 Cal.App.4th at p. 1228; In re C.B. , supra , 2 Cal.App.5th at p. 1130 (dis. opn. of
Pollak , Acting P. J. ) .) In their view, this intent supports e xpungement because
their offenses have been redesignated

. Th e argument fails

. T here is no evidence the voter s intended to expand the grounds for expungement. While many other sections of the Penal Code were amended (see People v. Valencia , supra , 3 Cal.5th at p. 355), the text of the
expungement statute was left untouched. Proposition 47 necessarily revis ed the operation of secti on 296 ’s requirement that a sample be submitted after a felony
conviction by changing what crimes constitute a felony

. But Proposition 47 did not modify section 299, subdivision (b) , to insert a new fifth basis for
expungement.
C

. H

. also highlights Prop o sition 47 ’s direction that its provisions “shall be
liberal ly construed to effectuate its purposes .” (Prop. 47 Voter Guide, supra , text of Prop. 47 , § 18 , p. 74 ; see id. , § 15 , p. 74 .) The initiative’s overt ends emphasize reallocating resources and saving money by reducing penaltie s for certain offenses. The retention of already

- submitted samples generates no additional costs and imposes no punishment . Whether samples are retained or not is
unrelated to the stat ed purposes of Proposition 47 . T he princip le of liberal
construction does not advance C.H.’s cause

. C.B. and C.H. argue that the state’s public safety interest in collecting samples under Proposition 69 does not extend to most misdemeanants, so
expungemen t would not conflict with the initiative’s purposes. (S ee In re C.B. , supra , 2 Cal.App.5th at pp. 1137

– 1138 (dis. opn. of Pollak, Acting P. J. ) .) Yet t he
state’s interest in retaining samples is also as broad as Prop osition 69 and section
299 indicate. If one looks to section 296 to define the sta te’s interest in collecting samples , one must look equally to section 299 ’s limits on expungement to17

determine the state’s interest in retaining them

. Expand ing expungement beyond
th e explicit requirements of section 299 would be inconsistent with Proposition 69’s purposes. In a related argument, C.B. contends he has a privacy interest in his sample
that exceeds the state’s public safety interest. C.B. does not contest the compelling nature of the state’s interest in properly prosecuting crimes and exonerating the innocent. ( People v. Robinson , supra, 47 Cal.4th at p. 1121

. ) He
does not claim that collection of samples under section 296 as it applied before passage of Proposition 47 violat e d his privacy rights

. ( See People v. Travis , supra , 139 Cal.App.4th at pp. 1281

– 1290 .) Instead, his argument appears to be that passage of Proposition 47 indicates a reduced state interest in collecting
certain s amples

. He reasons that his privacy interests should now outweigh any state interest in retention. Once again, there is no basis to disregard section 299 as an equally relevant measure of the state’s interest in retaining samples. The passage of Proposition 47 did nothing to d iminish that interest. If, as C.B. concedes, neither the collection of his sam ple nor its retention was a privacy
violation before Proposition 47, approval of the initiative does not change that
calculus. C.B. discusses his privacy interests solely as a m eans of bolstering his claim that the statutory scheme should be read in a particular fashion. He disavows the assertion of any constitutional privacy claim. Accordingly, we express no views whatsoever on the merits of such a claim. In short, no purpose underlying Pr oposition 47 or 69 require s expungemen t here. Proposition 69 expands the state’s databan k to advance the compelling
interest s in public safety and appropriate exoneration through more accurate
identification of criminals. The retention of ex isting samples is consistent with
th at goal. Proposition 47 reduces punishments for certain crimes as a means of18

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

C

. Equal Protection C.H. argues that reading the statutory schem e to allow retention of his sample in the databank deprives him of equal protection under the state and federal Constitutions. (U.S. Const., 14th Amend.; Cal. Const., art. I, § 7,
subd. (a).) 11 He contends offenders who commit future acts reclassified as misdemeanors by Proposition 47 and those who committed the same act s before the initiative’s passage must be treated the same with respect to inclusion of samples in the stat e’s DNA databank.

“ ‘The concept of equal protection recognizes that persons who are similarly situated with respect to a law’ s legitimate purposes m ust be treated equally.’ ” ( People v. Valencia , supra , 3 Cal.5th at p. 376 .) I t does not require, however, that d ifferent th ings must be treated as though they a re the same.

10 The People also rely on section 299, subdi vision (f), as amended by the Legislature in 2015. That provision limits a court’s ability “ to relieve a person of the separate administrative duty to provide specimens, samples, or print impressions required by this chapter if a person has been found gui lty or was adjudicated a ward of the court by a trier of fact of a qualifying offense as defined in subdivision (a) of Section 296, or was found not guilty by reason of insanity or pleads no contest to a qualifying offense as defined in subdivision (a) of Section 296 .” (§ 299, subd. (f).) In 2015, the Legislature amended the provision to add section 1170.18 to the list of laws explicitly identified as not supplying a basis for court relief from the duty to submit a sample. (§ 299, subd. (f), as amended b y Stats. 2015, ch. 487, § 4.) Given our determination that other portions of the statutory scheme preclude the relief petitioners seek, we need not address the import of this provision.

11 C.H. does not differentiate between the state and federal Constitu tions or suggest the analysis under either should differ. Accordingly, we address his state and federal claims together. (See, e.g., Johnson v. Department of Justice (2015) 60 Cal.4th 871, 881.)19

( Briggs v. Brown (2017) 3 Cal.5th 808, 842.) Drawing on these two principles, we
have noted that a meritorious equal protection claim must demonstrate “ ‘ “ that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner. ” ’ ” ( People v. Morales (2016) 63 Cal.4th 399, 408.) “Similarly situated” in this context means that the compared groups are

“ ‘similarly situated for purposes of the law challenged.’ ” ( Cooley v. Superior
Court (2002) 29 Cal.4th 228, 253.) C.H. contends those who committed offenses subject to Proposition 47 reclassification before the initiative and those who
committed the same offenses after are sufficiently similarly situated to warrant application of equal protection principles. We assume , without deciding, that this
is so.
C.H . presents no argument that a distinction between those who committed
offenses before and after November 2014 implicates a suspect classification or fundamental right . C ounsel acknowledged at oral argument that no such argument had been preserved . In the absence of any demonstration of a suspect
classification or a distinction that impacts a fundamental right , the challenged disparity in treatment need only survive rational basis scrutiny

. ( Johnson v. Department of Justice , supra , 60 Cal.4th at p. 881.) Any reasonably conceivable
basi s for the disparity that is rooted in a legitimate government purpose , whether or not expressly ar ticulated by the voters, is suffic i e nt . ( See People v. Turnage (2012) 55 Cal.4th 62, 74

– 75.) Here, the voters rationally could differentiate between those who have submitted samples and those w ho have not based on cost considera tions

. (See People v. Chatman (2018) 4 Cal.5th 277, 290 [“Preserving the government’s financial integrity and resources is a legitimate state interest.”].) They could
conclude some crimes a re no longer serious enough to justify the additiona l cost s of ob taining samples. Y et they could also view the risk of recidivism from those20

who committed similar crimes when they were felonies as not slight enough to justify the additional cost s of expunging samples already obtained . Such expenditures would diminish the savings derived from other portions of the initiative and the amounts available to pursue the initiative’s ends. (See Prop. 47 Voter Guide, supra , text of Prop. 47 , § 4 , p. 70 [creating the “ ‘Safe Neighborhoods and Schools Fund’ ”]; Gov. Code, § 759 9.1, subd. (a) [size of the Fund dependent on a calculation of “the savings that accrued to the state from the implementation of” the initiative] .) C.H. bears the burden of negating every plausible grou nd for the contest e d difference in treatment . (S ee P eople v. Turnage , supra , 55 Cal.4th at p. 75. ) Because he cannot , his constitutional challenge must fail

. III. DISPOSITION
W e affirm the judgment s of the Court s of Appeal. CORRIGAN, J.

WE CONCUR:

CANTIL

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

_______________________

* Associate Justice of the Court of Appeal, Third Appellate District, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.1 CONCURRING OPINION BY LIU, J.

Our holdings today

— that C.B. and C.H. do not qualify for expungement under Penal Code section 299 (maj. opn., ante , at pp. 6

– 18) and that there is a
rational basis for treati ng individuals who have already submitted DNA samples differently from those who have not ( id. at pp. 18

– 20)

— are limited to the claims presented in these cases. As n oted , neither C.B. nor C.H. presse d any claim that
the state’s retention of his DNA samp les implicates a constitutionally protected privacy interest. ( Id. at pp. 17, 19; see Cal . Const., art. I, § 1; People v. Buza (2018) 4 Cal.5th 658, 689

– 690.) Such a claim may give rise to a cause of action
under the California right to privacy (see Hill v. National Collegiate Athletic Assn. (1994) 7 Cal. 4th 1 , 35

– 40 ) or require a m ore stringent equal protection analysis (see Serrano v. Priest (1971) 5 Cal.3d 584, 597) in a future case.

LIU, J.See next page for addresses and telephone numbers for counsel who argued in Supreme Court.

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

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

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

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

__________________________________________________________________________________ Counsel:

Ann e Mania, under appointment b y the Supreme Court, for Defendant and Appellant C.B.
Patricia Noel Cooney, under appointment by the Supreme Court, for Defendant and Appellant C. H

. Kamala D. Harris and Xavier Becerra, Attorneys General, Gerald A. Engler Chief Assistant Attorney General , Jeffrey M. Laurence, Assistant Attorney General, Donna M. Provenzano , Aileen Bunney, Laurence K. Sullivan, Eric D. Share and Enid A. Camps, Deputy Attorneys General, for Plaintiff and Respondent in No. S237801.
Kamala D. Harris and Xavier Becerra, Attor neys General, Gerald A. Engler Chief Assistant Attorney General, Jeffrey M. Laurence, Assistant Attorney General, Laurence K. Sullivan, Eric D. Share , Huy T. Luong and Enid A. Camps , Deputy Attorneys General, for Plaintiff and Respondent in No. S237762.

J ackie Lacey, District Attorney (Los Angeles), Roberta Schwartz and John Pomeroy, Deputy District Attorneys, for Los Angeles County District Attorney as Amicus Curiae on behalf of Plaintiff and Respondent i n No. S237762

.Counsel who argued in Supreme C ourt (not intended for publication with opinion):

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

- 1818
Enid A. Camps Deputy Attorney General 455 Golden Gate Avenue, Suite 11000 San Francisco, CA 94102

- 7004 (415) 703

- 597 6