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
SYLVER DEAN GOOD, Petitioner, v. THE SUPERIOR COURT OF HUMBOLDT COUNTY, Respondent; THE PEOPLE, Real Party in Interest. | A117317 (Humboldt County Super. Ct. No. E94401M) |
Proposition 69, the DNA Fingerprint, Unsolved Crime and Innocence Protection Act of 2004, substantially expanded the range of persons who must submit DNA samples to the states forensic identification data bank. The expansion included misdemeanants who must register as sex offenders pursuant to Penal Code section 290.[1] In this case we hold that Proposition 69 requires misdemeanants who must register as sex offenders to provide DNA samples, regardless of whether the conviction triggering the registration requirement occurred before or after the 2004 passage of Proposition 69.
I. FACTUAL & PROCEDURAL BACKGROUND
Petitioner Sylver Dean Good was convicted of indecent exposure ( 314, subd. (1)), a misdemeanor, in 1996.[2] Because of this conviction, Good has an ongoing, lifetime obligation to annually register as a sex offender under section 290, and to update his registration whenever he changes his residence. ( 290, subd. (a)(1)(A), (1)(D) & (2)(A).)[3]
At the time of Goods conviction, collection of DNA samples was governed by former section 290.2, which only required DNA samples from defendants who were required to register as sex offenders because of convictions for certain felonies, and who were confined in a state prison or a state hospital. (Former 290.2, added by Stats. 1983, ch. 700, 1, pp. 2680-2681 and repealed by Stats. 1998, ch. 696, 1, p. 3718; see Alfaro v. Terhune (2002) 98 Cal.App.4th 492, 497-498.) Thus, at the time of his 1996 conviction Good was required to register as a sex offender, but was not required to provide a DNA sample.
Good successfully completed a three-year term of probation in 1999, but was required to register as a sex offender annually.
As we shall discuss further below, the 2004 passage of Proposition 69 changed the law to mandate that all persons required to register as sex offenders, misdemeanants as well as felons, submit DNA samples. On September 20, 2005, the Eureka Police Department sent Good a letter directing him to report to the department and submit a DNA sample.
Good filed a motion for declaratory relief in the trial court, arguing the change in the law was not retroactive to his 1996 conviction. The trial court denied relief, ruling that Proposition 69 applied to Good and required him to submit a DNA sample. Good filed a petition for writ of mandate/prohibition with the appellate department of the superior court. The appellate department denied the petition, rejecting Goods retroactivity argument as follows:
The difficulty with [Goods] argument is that it assumes that the operative factor in requiring provision of the [DNA] samples is the conviction. Such is not the case. Rather, it is the present requirement to register under . . . section 290 that is the operative fact giving rise to the requirement to submit to sample collection. (Italics added.)
Good petitioned this court for a writ of prohibition. We issued a stay and an order to show cause, and the People have filed a return.
II. STATUTORY BACKGROUND
As we have noted, DNA sample collection at the time of Goods 1996 conviction was limited to defendants who were required to register as sex offenders because of convictions for certain felonies, and who were confined in a state prison or a state hospital. There have been two subsequent significant expansions of DNA sample collection: by legislative enactment in 1998 and by initiative, Proposition 69, in 2004.
A. The 1998 Legislation
The DNA and Forensic Identification Data Base and Data Bank Act of 1998 (Stats. 1998, ch. 696, 2, pp. 3718-3729) (Act) added section 295 et seq. to the Penal Code. One of the primary reasons for the Act was the desire to close loopholes in former section 290.2. (People v. Brewer (2001) 87 Cal.App.4th 1298, 1301 (Brewer).) The Act was intended to reach a broader class of offenders and apply regardless of the sentence imposed or the disposition rendered. [Citation.] (Brewer, supra, at p. 1302.) The Act required DNA samples from defendants convicted of a number of listed felony offenses, as well as defendants required to register for a felony sex offense pursuant to section 290.
The Act contained clear statements of legislative purpose in section 295. In section 295, subdivision (b)(1), the Legislature found and declared that Deoxyribonucleic acid (DNA) and forensic identification analysis is a useful law enforcement tool for identifying and prosecuting sexual and violent offenders. (Stats. 1998, ch. 696, 2, p. 3719.) Subdivision (b)(3) of section 295 stated that the Act was necessary . . . to enable the states DNA and forensic identification data base and data bank program to become a more effective law enforcement tool.
Subdivision (b)(2) of section 295 stated that it was the intent of the Legislature, in order to further the purposes of [the Act], to require DNA and forensic identification data bank samples for the felony offenses described in subdivision (a) of Section 296. (Stats. 1998, ch. 696, 2, p. 3719.)
These felonies, known as qualifying offenses, were listed in section 296, subdivision (a)(1). They included murder, voluntary manslaughter, felony spousal abuse, felony assault or battery, and kidnapping. (Stats. 1998, ch. 696, 2, pp. 3720-3721; see Brewer, supra, 87 Cal.App.4th at p. 1302.)
The Act retained the prior laws requirement for DNA samples from felony sex offenders. Section 296, subdivision (a)(2) mandated DNA samples from defendants who had to register as a sex offender because of the commission of . . . a felony offense specified in Section 290 . . . and who are confined, granted probation, or released from a state hospital. (Stats. 1998, ch. 696, 2, p. 3721.)
Section 296 contemplate[d] that submission to testing will occur as soon as administratively practicable, regardless of the type of confinement [citation] . . . . (Brewer, supra, 87 Cal.App.4th at p. 1302.)
To that end, section 296.1 set forth administrative procedures for sample collection from certain basic categories of offenders: those sentenced to state prison; those not sentenced to state prison, but instead placed on probation or committed to a county jail; those on parole; those who have violated parole and are returned to prison; those accepted from other states pursuant to an interstate compact; and those incarcerated in federal institutions inside California. (Stats. 1998, ch. 696, 2, pp. 3721-3723.)
Former section 296.2 also set forth administrative procedures. Subdivision (a) involved replacement of inadequate samples. Subdivision (b) formally authorized the DNA Laboratory of the Department of Justice to analyze submitted samples. Subdivision (c) involved registered felony sex offenders, and provided that such offenders who had not yet submitted a sample were to receive an appointment for sample collection when they registered or updated their registration. (Stats. 1998, ch. 696, 2, pp. 3723-3724.)
Division Two of this court interpreted key provisions of the Act in the 2001 Brewer decision. The defendant in Brewer had been convicted of sexual battery and served a prison term for that offense from May 1987 to May 1989. (Brewer, supra, 87 Cal.App.4th at p. 1301.) Over 10 years later, in December 1999, he pleaded no contest to grand theft and was placed on three years probation. As a condition of probation, the trial court ordered the defendant to submit DNA samples under the provisions of the Act. (Ibid.)
Defendant Brewers past offense of sexual battery was a qualifying offense under the Act; his current offense of grand theft was not. But the trial court imposed the DNA sample requirement under the purported authority of section 296.1, subdivision (d), which required samples from a defendant who comes within [the Act] for an offense set forth in subdivision (a) of Section 296, and who is on probation or parole . . . . (Stats. 1998, ch. 696, 2, p. 3722.)
By its express terms, section 296.1, subdivision (d) shall apply regardless of when the crime committed became a qualifying offense pursuant to [the Act]. (Stats. 1998, ch. 696, 2, p. 3722.) Interpreting this sentence, and noting its language was narrower in scope than a related provision of the Act, the Brewer court concluded that subdivision (d) applies when the current offense is a qualifying offense, regardless of when the offense became defined as a qualifying offense. Thus, reading the statute as a whole . . . we conclude that section 296.1, subdivision (d), applies only when the current conviction is for a qualifying offense. (Brewer, supra, 87 Cal.App.4th at p. 1307.)[4]
The court also concluded that legislative history showed that section 296.1, subdivision (d) should not apply when the current conviction is not a qualifying offense, but the defendant has a prior conviction which is a qualifying offensei.e., that the subdivision should not in essence apply retroactively to past behavior which led to a conviction of a qualifying offense under the Act. (Brewer, supra, 87 Cal.App.4th at p. 1308.)
The Assembly Committee on Appropriations, the standing committee charged with the bills development, expressed concern early in the development of the . . . Act about the general retroactive application of the bill. [Citation.] Specifically, the committee was concerned with the logistics of finding qualifying offenders no longer in custody and obtaining personal identification samples from them. [Citation.] (Brewer, supra, 87 Cal.App.4th at p. 1308.) The court noted that the original version of section 296.1, subdivision (d) contained a clause which expressly applied the subdivision to convictions for qualifying offenses which predated the Act. That clause was deleted. The Brewer court concluded from the removal of this language that the Legislature did not necessarily intend for the statute to apply whenever an individual has committed a qualifying offense at any time in the past. (Brewer, supra, at p. 1308.)
The Act remained substantially unchanged until 2004.[5]
B. The 2004 Initiative (Proposition 69)
The voters of this state approved Proposition 69 on November 2, 2004. Proposition 69 made significant amendments to the Act and was an urgent law that became immediately effective on November 3, 2004.
The legislative findings and intent set forth in section 295, subdivision (b)(1), (2) and (3) became those of the people of the State of California. In particular, section 295, subdivision (b)(2) was amended as follows: It is the intent of the people of the State of California, in order to further the purposes of [the Act], to require DNA and forensic identification data bank samples from all persons, including juveniles, for the felony and misdemeanor offenses described in subdivision (a) of Section 296. (Italics added.) The expressed purpose was to assist law enforcement in the expeditious and accurate detection of those responsible for sex offenses and other crimes. ( 295, subd. (c).)
Proposition 69 amended section 296, subdivision (a) to substantially broaden the scope of DNA sample collection. The new subdivision (a)(1) requires DNA samples from any adult or juvenile convicted of any felony offense, not just the listed offenses in the prior law. (See People v. Travis (2006) 139 Cal.App.4th 1271, 1278 (Travis).)[6] The new subdivision (a)(2) requires samples from any adult arrested for or charged with felony sex offenses requiring registration; murder or voluntary manslaughter or the attempt thereof; and, beginning in 2009, any felony offense.
The new section 296, subdivision (a)(3), an amended version of former subdivision (a)(2), added misdemeanant sex offenders to the universe of defendants required to submit DNA samples.[7] The statute requires samples from Any person, including any juvenile, who is required to register under Section 290 or 457.1 because of the commission of, or the attempt to commit, a felony or misdemeanor offense . . . . (Italics added.) New subdivision (a)(3) also deleted the requirement that the registrant be confined, on probation, or released from a state hospital.
Former section 296.1 was substantially rewritten and restructured. New section 296.1, subdivision (a), sets forth administrative procedures for sample collection from six categories of offenders: (1) adults arrested for felonies (subd. (a)(1)); (2) defendants confined after conviction (subd. (a)(2)); (3) defendants on probation, parole or other release (subd. (a)(3)); (4) parole violators and others returned to custody (subd. (a)(4)); (5) defendants accepted into California from other jurisdictions (subd. (a)(5)); and (6) defendants in federal institutions (subd. (a)(6)). ( 296.1, subd. (a)(1)-(6).)
With a clear intent to countermand Brewer, Proposition 69 made section 296.1, subdivision (a), expressly retroactive. As enacted, section 296.1, subdivision (b) stated: Subdivision (a) and all of its paragraphs shall have retroactive application. Collection shall occur pursuant to paragraphs (1), (2), (3), (4), (5) and (6) of subdivision (a) regardless of when the crime charged or committed became a qualifying offense pursuant to [the Act], and regardless of when the person was convicted of the qualifying offense described in subdivision (a) of Section 296 . . . .
Section 296.1, subdivision (b) was amended in 2006 to delete references to paragraph (1) of subdivision (a). (Stats. 2006, ch. 170, 1, pp. 1571-1572.) Subdivision (b) currently provides that Paragraphs (2), (3), (4), (5), and (6) of subdivision (a) shall have retroactive application. Collection shall occur pursuant to paragraphs (2), (3), (4), (5), and (6) of subdivision (a) regardless of when the crime charged or committed became a qualifying offense pursuant to [the Act], and regardless of when the person was convicted of the qualifying offense described in subdivision (a) of Section 296 . . . .
Thus, the administrative procedures for collection of DNA samples from five major categories of offenders, those confined after conviction, on probation or parole, parole violators returned to custody, defendants accepted from other states, and defendants in federal prisons, are expressly retroactive.
Proposition 69 did not amend section 296.2, which involves (in subdivision (c)) administrative procedures for defendants required to register for felony sex offenses. Indeed, section 296.2 has not been amended since it was added to the Act in 1998. On its face, section 296.2, subdivision (c) applies only to felons and not to misdemeanant sex offenders.[8]
III. DISCUSSION
As we construe petitioner Goods argument, he contends that section 296.2 does not apply to him because he is not a felon; section 296.1 is expressly retroactive, but also does not apply to him; and, by contrast, the Legislature did not make section 296 expressly retroactive. Thus, Good concludes, new section 296, subdivision (a)(3) (section 296(a)(3)) does not apply to him and he is not required to give a DNA sample because of his 1996 conviction.
We disagree. Our interpretation of the language of the pertinent provisions of Proposition 69, in the context of the statutory purpose, leads us to conclude that the electorate intended misdemeanant sex offenders to submit DNA samples regardless of the date of their misdemeanor conviction. Accordingly, we deny the petition.[9]
We review de novo a question of statutory interpretation. (Argaman v. Ratan (1999) 73 Cal.App.4th 1173, 1176.)
The fundamental rule of statutory construction is that a court should ascertain the intent of the Legislature so as to effectuate the purpose of the law. [Citation.] (OKane v. Irvine (1996) 47 Cal.App.4th 207, 211.) To determine the intent of legislation, we first consult the words themselves, giving them their usual and ordinary meaning. [Citations.] (DaFonte v. Up-Right, Inc. (1992) 2 Cal.4th 593, 601.) Other courts refer to the plain and commonsense meaning of statutory language. (People v. Cole (2006) 38 Cal.4th 964, 975 (Cole); see People v. Murphy (2001) 25 Cal.4th 136, 142.)
We do not, however, consider the statutory language in isolation; rather, we look to the entire substance of the statutes in order to determine their scope and purposes. [Citation.] That is, we construe the words in question in context, keeping in mind the statutes nature and obvious purposes. [Citation.] We must harmonize the various parts of the enactments by considering them in the context of the statutory frame work as a whole. [Citation.] If the statutory language is unambiguous, then its plain meaning controls. If, however, the language supports more than one reasonable construction, then we may look to extrinsic aids, including the ostensible objects to be achieved and the legislative history. [Citation.] (Cole, supra, 38 Cal.4th at p. 975.)[10]
We agree that Proposition 69 could be subject to two interpretations on the issue before us. On the one hand, as the People maintain, the plain language of section 296(a)(3) applies to any person who is required to register as a sex offender because of the commission of a misdemeanor. The use of the present tense speaks to the current requirement to register. (See Brewer, supra, 87 Cal.App.4th at p. 1305.) This current (and ongoing) requirement flows from Goods conviction, despite the convictions predating Proposition 69 and is an administrative requirement to carry out the purpose of Proposition 69 to secure a current, comprehensive database.
On the other hand, the lack of express retroactivity in section 296, contrasted with the express retroactivity in section 296.1, might suggest that the addition of misdemeanors to section 296(a)(3) was not meant to be retroactivesince the statute governing the administrative procedures for felon sex registrants, section 296.2, was not amended to include misdemeanant sex offenders.
But viewing the statutory language in the context of the statutory purpose, with due regard to the nature and purpose of sex offender registration, we conclude that the Peoples interpretation must prevail.
First, section 296 must be viewed not in isolation, but in the context of the entire statutory framework. Section 296 specifies the qualifying offenses which require defendants to submit samples. The retroactivity provision of section 296.1 (subdivision b) integrates section 296 by stating that the bulk of the provisions of subdivision (a) apply regardless of when the person was convicted of the qualifying offense described in subdivision (a) of section 296. Thus, by this provision, Proposition 69 contemplates that the provisions of new section 296 will be retroactive in effect, and not merely forward looking. We thus conclude that Goods emphasis on the lack of express retroactivity in section 296 lacks persuasiveness when viewed in the context of section 296.1, subdivision (b).
In our view, the controlling provision of Proposition 69 is section 296, which authorized DNA sample collection from listed categories of offenders. Section 296.1 is merely a provision to implement the goals of section 296. Section 296.1, both before and after Proposition 69, dealt only with the mechanics of obtaining DNA samples from defendants in various conditions of confinement or under direct supervision. The wording of section 296.1 is somewhat complex, and provides for the implementation of sample collection in the context of institutional and other systemic realities.
For instance, paragraph (2) of section 296.1 requires sample collection from state prison inmates immediately at intake, or during the prison reception center process, or as soon as administratively practicable at the appropriate custodial or receiving institution . . . . Paragraph (3) requires sample collection from probationers and parolees within five calendar days of being notified by the court, or a law enforcement agency or other agency authorized by the Department of Justice. The samples shall be collected . . . at a county jail facility or a city, state, local, private, or other facility designated for this collection. Paragraph (5) requires collection from inmates received from other states by a two-tiered system, depending on whether the inmate is confined or released on supervision.
Section 296.1 does not deal with sex offender registrants, and never did. In contrast to a defendant in confinement or under supervision, a sex offender registrant generally enjoys a certain freedom of movementbut must report to register at least once a year. Given the administrative realities of sex offender registration, a one-time sample collection at the next registration from one required to register annually does not need a statutory directive as do the other more intricate, qualifying events set forth in section 296.1which invoke the realities of institutional confinement or the administrative particulars of supervised release.
Proposition 69, immediately effective, listed felon and misdemeanant registrants as among those who qualified for DNA sampling. The requirement is not punitive, does not involve concepts of retroactivity or ex post facto implications, but is confined to a simple administrative identifying procedure akin to fingerprinting or keeping ones whereabouts known to law enforcement.
Second, section 296(a)(3) deletes the requirement of confinement or probationary supervision at the same time it adds misdemeanant sex offenders. Thus, such offenders are required to submit a sample even though they are no longer confined and have completed probation. It is reasonable to conclude that Proposition 69 contemplates the submission of DNA samples by misdemeanant sex offenders who were convicted before November 2004, and had time to complete their sentences of confinement or their periods of probation prior to the passage of the initiative.[11]
Moreover, the Legislative Analysts analysis of Proposition 69 stated that the ballot measure expands the collection of DNA to include all convicted felons and some nonfelons, and that [t]he expanded list of qualifying offenses would be retroactive regardless of when the person was convicted . . . . (Voter Information Guide, Gen. Elec. (Nov. 2, 2004) analysis of Prop. 69 by Legis. Analyst, pp. 60-61, italics added; see also
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[1] Subsequent statutory references are to the Penal Code.
[2] The crime had to have been Goods first offense, as a second offense under the statute is a felony. ( 314, subd. (2).)
[3] Indecent exposure was included in section 290 at the time Good was convicted. (Stats. 1995, ch. 85, 1, p. 211; Stats. 1995, ch. 91, 120, pp. 341-342; Stats. 1995, ch. 840, 2, p. 6390.)
[4] The court compared the language of section 296.1, subdivision (d) with the broader language of section 296.1, subdivision (c), which was also relied upon by the trial court but which the Brewer court held inapplicable for various reasons we need not discuss. (Brewer, supra, 87 Cal.App.4th at pp. 1304-1307.)
[5] There were minor legislative amendments to sections 295, 296, and 296.1 between 1998 and 2004. (Stats. 1999, ch. 475, 3, pp. 2612-2613; Stats. 2000, ch. 135, 132, pp. 1673-1675; Stats. 2000, ch. 823, 1, 2, pp. 4372-4375; Stats. 2001, ch. 906, 1, pp. 5713-5715; Stats. 2002, ch. 160, 1, pp. 626-628; Stats. 2002, ch. 916, 1, pp. 4505-4506.) These amendments do not concern the issue raised in this proceeding.
[6] For the purposes of this discussion, and for simplicity of style, we use the terminology of adult criminal proceedings. We understand, of course, that juvenile delinquency proceedings employ different terminology, such as adjudication rather than conviction.
[7] In this opinion, we use misdemeanant sex offenders interchangeably with misdemeanants required to register as a sex offender.
[8] Section 296.2, subdivision (c) provides, in pertinent part: Any person who is required to register under Section 290 for the commission of any felony offense specified in Section 290 who has not provided the . . . [DNA] samples . . . described in [the Act] for any reason . . . as an additional requirement of registration or of updating his or her annual registration . . . shall give . . . [DNA] samples . . . for inclusion in the states DNA and forensic identification data base and data bank.
At the time the person registers or updates his or her registration, he or she shall receive an appointment designating a time and place for the collection of the . . . [DNA] samples . . . if he or she has not already complied with the provisions of [the Act].
[9] We reject the Peoples argument that the petition should be denied as untimely because it was filed more than 60 days after the appellate departments order. There is no statutory time limit for most writ petitions. A filing period of 60 days is typically recognized, but a petition filed after 60 days will not be denied unless the respondent can show prejudice. (See Peterson v. Superior Court (1982) 31 Cal.3d 147, 163; People v. Superior Court (Lopez) (2005) 125 Cal.App.4th 1558, 1562.) The People can show no prejudice here.
[10] These rules of statutory construction apply to initiative measures as well as legislative enactments. (Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1212; see Amador Valley Joint Union High Sch. Dist. v. State Bd. of Equalization (1978) 22 Cal.3d 208, 244-246.)
[11] We believe that the dissent places too much focus on sections 296.1 and 296.2, and not enough focus on section 296, which is the polestar of Proposition 69. Section 296, viewed in the entire statutory context, authorizes the collection of DNA samples from misdemeanant sex offenders regardless of the date of their conviction.
[12] The dissent argues that we have selectively used the Legislative Analysts analysis by omitting the sentence immediately following the one we have quoted: 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. (Dis. opn., post, at pp. 3-4.) But this sentence was not intended to be a comprehensive statement of the scope of Proposition 69. In the first place, new section 296(a)(3) deleted the requirement of confinement or probationary supervision. In the second place, the sentence did not mention at all that Proposition 69 also applied to sex offenders required to registerwhether felons or misdemeanants.
