GOOD v. THE SUPERIOR COURT

Filed 1/16/08

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

Story continued from Part I

Third, we must take note of the statutory purpose of Proposition 69the broad expansion of DNA sample collection based on the findings by the electorate that DNA analysis is a useful law enforcement tool for identifying and prosecuting criminal offenders and exonerating the innocent[,] and that the Act was necessary . . . to enable the states DNA and Forensic Identification Database and Data Bank Program to become a more effective law enforcement tool. ( 295, subd. (b)(1), (3).)

Proposition 69 expanded sample collection to include all felons, including juveniles; adults arrested for or charged with certain felony offenses and, in 2009, any felony offense; and misdemeanant sex offenders. Requiring, for the first time, samples from all felons, from juveniles, from arrestees as opposed to the convicted, and misdemeanant sex offenders shows an intent to broadly expand the use of DNA sample collectionconsistent with the modern trend. (See, e.g., Travis, supra, 139 Cal.App.4th at pp. 1281-1290 [reviewing cases from numerous jurisdictions upholding DNA collection statutes against Fourth Amendment challenges, in light of the interests of law enforcement].) The clear intent of the voters was to maximize the available DNA database to aid in the identification, arrest, and conviction of offenders, as well as exonerate the innocent. In light of the intent and language of Proposition 69, to exclude past misdemeanant registrants would make no practical sense and defies common sense when the goal was to develop a comprehensive database.

Fourth, we must look to the nature of, and the policies behind, sex offender registration. A defendant convicted of a sex offense requiring registration is linked to the justice system for life. He must register every year and when he changes his residence. Failure to register incurs a criminal penalty, and each failure to register is a separate criminal offense. ( 290, subd. (g); People v. Meeks (2004) 123 Cal.App.4th 695, 702.) And registration is no mere clerical requirement. The Legislature has found and declared that sex offenders pose a high risk of recidivism, and keeping track of their whereabouts is necessary to protect the public. (Stats. 1996, ch. 908,  1, pp. 5105-5106; see Wright v. Superior Court (1997) 15 Cal.4th 521, 527.)

Given the very real threat of recidivism, and the facility of the available tool of DNA identification, the electorate intended and expected that all misdemeanant sex offenders provide a DNA sample. As the appellate department concluded below, it is not the date of conviction which is keyit is the current, ongoing, and lifetime obligation to register that triggers the requirement to provide a DNA sample.

Fifth, Proposition 69 added subdivision (d) to section 295, which clarifies the administrative nature of DNA sample collection: Like the collection of fingerprints, the collection of DNA samples pursuant to [the Act] is an administrative requirement to assist in the accurate identification of criminal offenders. As we stressed in Travis, the collection of DNA samples is not penal. (Travis, supra, 139 Cal.App.4th at p. 1295.)

In Travis, the defendants current offense, a felony, was committed prior to the passage of Proposition 69. (Travis, supra, 139 Cal.App.4th at pp. 1278, 1294.) We held that Proposition 69s retroactive section 296.1 was not an ex post facto law, because DNA sample collection is not punitive. [T]he statute was neither intended to nor does inflict punishment for commission of the crime. . . . Examination of the DNA sample collection law reveals that it was not enacted to punish convicted felons, but instead to establish a DNA database to assist in the identification, arrest, and prosecution of criminals. [Citations.] (Travis, supra, at p. 1295.) Accordingly, we concluded that subjecting a defendant to DNA testing is not punishment, and section 296.1 was not invalid as an ex post facto law. (Travis, supra, at p. 1295.)

There is no constitutional bar to requiring DNA samples based on a conviction predating Proposition 69, so long as there remains a current requirement to register.

For all these reasons, we cannot place overriding importance on Proposition 69s failure to amend section 296.2 to include misdemeanant sex offenders. In section 295, subdivision (b)(2) and section 296(a)(3), the people stated their intent that misdemeanant sex offenders must submit DNA samples. We have set forth above the various indications that the people intended this requirement to apply to any misdemeanant sex offender required to currently register, regardless of the date of the offense. That requirement stands, and we believe it is not undercut by the failure to amend section 296.2. Given these clear statements of intent, Proposition 69 contemplates that the simple administrative process for submitting samples at the time of registrationspecified for felons in section 296.2would be followed in the case of misdemeanants. When interpreting legislation, [m]atters to be considered include the context of the legislation, the object in view, the evils to be remedied, the history of the times and of legislation upon the same subject, public policy, and contemporaneous construction. [Citations.] (Flowmaster, Inc. v. Superior Court (1993) 16 Cal.App.4th, 1019, 1028.)[1]

Petitioner, a qualifying offender under section 296(a)(3), is required to register each year or when he changes his residence. The additional administrative requirement, in this case, to provide a DNA sample when he next registers carries out the peoples intent and purpose, and the statutory requirement expressed in Proposition 69.

IV. DISPOSITION

The order to show cause is discharged. The petition for writ of prohibition is denied. The stay heretofore imposed will be dissolved when the remittitur issues.

______________________

Marchiano, P.J.

I concur:

______________________

Swager, J.

CERTIFIED FOR PUBLICATION

MARGULIES, J.:

I respectfully dissent. I have no quarrel with the majoritys conclusion that Good, as a past sex offender, is a person required to provide a DNA sample under Penal Code section 296.[2] What the majority overlooks, however, is that collection of a DNA sample under the DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Stats. 1998, ch. 696, 2, pp. 37183729) (Act) does not follow automatically from a past offenders qualification under section 296. Rather, the Act very specifically delineates, and therefore limits, the circumstances under which a DNA sample may be collected. Those limitations preclude local law enforcement officials from ordering the appearance of a person to provide a DNA sample just because he or she qualifies under section 296.

Section 296.1, subdivision (a) is the primary statute governing when and where DNA samples are to be collected. It states that [t]he specimens, samples, and print impressions required by the chapter shall be collected from persons described in subdivision (a) of Section 296 for present and past qualifying offenses of record as follows. It then specifies, in six separate subdivisions, when samples are to be collected. All of these subdivisions share one common attribute: they apply only to persons who have some current involvement with the criminal justice system through arrest, incarceration, parole, or probation.[3] Because there is no evidence Good has had a recent arrest or conviction, section 296.1 does not apply to him.

Good is, however, a registered sex offender, and he is therefore required to report once a year to his local police station for registration. Although the police department letter directing Good to report for sampling does not appear to have been timed to coincide with his annual registration, the requirement of annual registration does involve Good with the criminal justice system in a current, if limited, way. Section 296.2, subdivision (c) authorizes the collection of a DNA sample from past sex offenders at the time of their annual registration,if the offender has not provided a DNA sample previously. Section 296.2, however, expressly states that it applies only to persons who are required to register as the result of a felony sex offense. Under  the familiar principle of expressio unius est exclusio alterius  (Viva! Internat. Voice for Animals v. Adidas Promotional Retail Operations, Inc. (2007) 41 Cal.4th 929, 944945), which holds that the expression of one thing in a statute ordinarily implies the exclusion of other things (In re J. W. (2002) 29 Cal.4th 200, 209), this express restriction of DNA sampling to felony sex offenders requires us to construe section 296.2 to preclude the sampling of past misdemeanant sex offenders, like Good, at the time of their annual registration.

While the majority acknowledges the foregoing statutory restrictions, it errs in expressly deciding to disregard them. The majority recognizes that the requirement for current sampling of past misdemeanant sex offenders cannot conclusively be derived from section 296 itself, since Proposition 69 did not insert a retroactivity provision in that section. (Maj. opn., ante, at p. 10.) Because it contains no retroactivity provision, amended section 296viewed in isolationretains the ambiguity that permitted People v. Brewer (2001) 87 Cal.App.4th 1298 (Brewer) to conclude that the Act is not retroactive. (Id. at p. 1303.)[4]

Given the ambiguity of section 296, the best source for meaning is the remaining provisions of the Act. (People v. Allegheny Casualty Co. (2007) 41 Cal.4th 704, 708709.) The majority turns first to section 296.1, which it accurately characterizes as a provision to implement the goals of section 296, i.e., by describing the manner in which the samples authorized in section 296 are to be collected. Rather than recognizing the importance of the limitation placed by section 296.1 on section 296, however, the majority simply dismisses it, concluding, Section 296.1 does not deal with sex offender registrants, and never did. (Maj. opn., ante, at p. 11.)

Unable to find an answer in section 296.1, the majority jumps to the conclusion that a one-time sample collection at the next registration from one required to register annually does not need a statutory directive . . . . (Maj. opn., ante, at pp. 1112.) Of course, as discussed ante, there is such a statutory directive. Section 296.2 authorizes the collection of samples from sex offenders at the time of sex registration, but it applies only to felons. Accordingly, section 296.2 must be interpreted as excluding collection of DNA samples from past misdemeanant sex offenders, thereby conclusively answering the question posed by the ambiguity of section 296. Rather than acknowledge the implications of this limitation, the majority decides, instead, not to place overriding importance on section 296.2. (Maj. opn., ante, at p. 15.)

Proposition 69s failure to amend section 296.2 cannot be so easily side-stepped. Because section 296.2 expressly excludes the majoritys construction, its implications can be disregarded only if the failure to delete the restriction to past felony sex offenders can be characterized as a drafting error. Yet under People v. Garcia (1999) 21 Cal.4th 1, courts must refrain from presuming a drafting error when the statute is reasonably susceptible to an interpretation that harmonizes all its parts without disregarding or altering any of them. (Id. at p. 6.) Plainly the interpretation put forward in this dissentthat the statute means what it saysis just such a harmonizing interpretation. As a result, the voters failure to amend section 296.2 to square with the majoritys interpretation cannot be dismissed as a mere oversight.

The majority makes selective use of other interpretive tools as well. Their decision quotes the analysis of the Legislative Analyst, circulated to voters, as concluding that [t]he expanded list of qualifying offenses would be retroactive regardless of when the person was convicted . . . .  (Maj. opn., ante, at p. 12.) Yet the next sentence of the analysis, which the majority omits, states, As a result, DNA would be obtained from adults and juveniles already serving time in correctional facilities as well as those who are on parole or probation for these offenses. (Voter Information Guide, Gen. Elec. (Nov. 2, 2004) analysis of Prop. 69 by Legis. Analyst, pp. 6061, italics added.) In other words, the Legislative Analyst never believed, and voters were never informed, that past misdemeanant sex offenders, despite having no further connection with law enforcement, could be recalled at any time by the police to provide DNA samples.

Accordingly, the majoritys interpretation finds no support in any of the sources considered most important in interpreting legislationrelated statutory provisions and the contemporary legislative history materials. Section 296 itself is unrevealing, since the majority acknowledges that, standing alone, it is ambiguous. Section 296.1 is ruled out, since the majority believes it has nothing to do with sex offenders. Section 296.2 actually contradicts the majoritys position, as does the analysis of the Legislative Analyst.

The majority is forced to cobble together support from less-favored sources of statutory intent and from the nature of, and the policies behind, sex offender registration. (Maj. opn., ante, at p. 14.) Yet even these sources are unhelpful. Section 295, subdivision (b)(2), for example, which states that it is the intent of the people to require DNA samples from all persons, including juveniles, for the felony and misdemeanor offenses described in section 296, does not even mention past offenders, let alone state that the Act is intended to apply to all past offenders, rather than only those who have reoffended. The other indications of statutory intent and purpose relied on by the majority are similarly silent on the precise question before us.

My reading of the statute does not ignore Proposition 69 and its impact on the Act. The timing and language of Proposition 69s retroactivity provisions make clear that their purpose was to overrule Brewer, nothing more. Brewer held that if a person who committed a past qualifying offense under section 296 once again commits a crime, and therefore comes within the collection provisions of section 296.1, a DNA sample may not be collected unless the new crime is also a qualifying offense. Following Proposition 69, if a past qualifying offender once again commits a crime, and therefore comes within section 296.1, a DNA sample must be collected regardless of the nature of the new crime.

In construing a statute, [o]ur objective is to determine the drafters intent. (Alan v. American Honda Motor Co., Inc. (2007) 40 Cal.4th 894, 902.) This is a structured search. [W]e look first to the statutes words, as these  generally provide the most reliable indicator of legislative intent.   (Bernard v. Foley (2006) 39 Cal.4th 794, 804.)  If the language contains no ambiguity, we presume the Legislature meant what it said, and the plain meaning of the statute governs.  (People v. Allegheny Casualty Co., supra, 41 Cal.4th at p. 709.) Viewed as a whole, the language of the Act gives very clear instruction. Although a wide range of past offenders are covered by section 296, police are authorized to collect DNA samples from those offenders only if they reoffend (or are arrested for certain crimes) or are past felony sex offenders. Because Good does not fit these categories, the police exceeded their authority when they ordered him to appear at the station to provide a DNA sample.

Our deferential duty in interpreting legislation was summed up in People v. Castille (2003) 108 Cal.App.4th 469, 490 (judg. vacated and cause remanded sub. nom.Shields v. California(2004) 541 U.S. 930): We will not, and cannot, do what the Legislature could have, but did not do. In passing Proposition 69, what the voters did was overrule Brewer. They manifestly did not approve the general recall of past qualifying offenders authorized by the majoritys decision, which would have required the effective repeal of sections 296.1 and 296.2, subdivision (c). The majority does today what the voters could have, but did not do in 2004. Unlike the voters, however, the majority lacks the legislative authority to make such a change.

_________________________

Margulies, J.

Trial Court: Humboldt County Superior Court

Trial Judge: Honorable Christopher G. Wilson

Attorneys:

Kevin S. Robinson, Public Defender and Michael E. Eannarino, Deputy Public Defender, for Petitioner.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Stan Helfman and Enid A. Camps, Deputy Attorneys General, for Real Party in Interest.

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Analysis and review provided by Chula Vista Property line Lawyers.

Good v. Superior Ct. of HumboldtCounty;

The People, A117317

[1] We disagree with the dissent that we have selectively used interpretive tools to reach a result not intended by the electorate. (Dis. opn., post, at pp. 3-5.) The entire context of Proposition 69which we believe did far more than just overrule Brewershows the intent of the voters to extend the DNA sampling requirement to all sex offenders, including misdemeanants, regardless of the date of their convictions. We do no more than recognize, and uphold, the intent of the people of this state.

[2] All further statutory references are to the Penal Code.

[3] Pursuant to section 296.1, subdivision (a), DNA sample collection is to occur (1) upon arrest for certain felonies; (2) from persons held in custody; (3) from persons on probation, parole, or other release; (4) from parole violators returned to custody; (5) from persons accepted into custody in California from other states; and (6) from federal prisoners. ( 296.1, subd. (a)(1)(6).)

[4] As discussed post, Proposition 69s inclusion of a retroactivity provision in section 296.1 removed this ambiguity in the circumstances described by Brewerthat is, when a past offender is once again detained. Section 296.1 does not, however, address or resolve Goods situation.