Expunging DNA and Retroactive Laws

California collects DNA samples from people convicted of felonies or the juvenile court equivalent. Proposition 47 reclassified many felonies as misdemeanors and allowed reclassification of old convictions. If a pre-Prop. 47 felony conviction is reclassified as a misdemeanor, is the defendant entitled to expunge his DNA from the database?

No, the California Supreme Court ruled unanimously today in In re C.B., No. S237801.

The decision is mostly an exercise in statutory interpretation which may not have much relevance to other states. Another interesting aspect of the case, though, is the effect of retroactively applying changes in the law when the prosecutors would likely have charged the same conduct differently if current law had been in effect then.

Under California theft law, a theft is petty theft if the property has less than a threshold value, subject to a number of exceptions. Some kinds of theft are always grand theft regardless of the value of the property. Among these is "When the property is taken from the person of another." (Penal Code §487(c).) This is colloquially known as "grand theft person."

Before Proposition 47 most varieties of grand theft, including "grand theft person," were "wobblers" (Penal Code §489(c)), which could be sentenced as either misdemeanors or felonies in the discretion of the court.  Proposition 47 did not amend Penal Code sections 487 or 489 but instead added a new and contradictory section 490.2, which says that almost all thefts below $950 of property value will be considered petty thefts anyway and punished as misdemeanors. Section 1170.18 provides for reopening old cases and resentencing them according to the new law.

Proposition 47 also did not amend Penal Code section 211. In California, as in most states, taking property by force or fear is robbery. Robbery is a straight felony, not a "wobbler." (Penal Code § 213.) It is easy to see that in most cases of robbery the perpetrator is also guilty of "grand theft person." Which crime the defendant is convicted of will be a matter of discretion or a plea bargain in many cases.

Now let's look at what these punks did, from the opinion:

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. He saw 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 theft person.

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In 2013, C.B. entered an unoccupied home 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.

In C.H.'s case, his own theft was neither grand theft person nor robbery, so the grand theft charge must have been the result of his assisting his friends. Yes, kicking a person in the head qualifies as "force," so he was actually guilty of robbery. In C.B.'s case, pulling a knife meets the "fear" element, so he is also actually guilty of robbery.

Although the opinion doesn't say, in both cases either the prosecutor or the judge must have decided to let these two juveniles off with a charge that is less than the most serious crime they actually committed. Grand theft person, unlike robbery, is not designated a "violent felony," a designation with potentially serious consequences in the future. Surely if these cases were prosecuted today, the prosecutors would have sought robbery convictions.

By applying retroactively to what the perpetrators were convicted of rather than what they actually did, Proposition 47 takes a past act of leniency and lowers it much further. C.H. and C.B. are actually robbers (an armed robber, in C.B.'s case) but their records are lowered to mere petty theft.

This is why we must be very, very careful with retroactive application of any law that reduces sentences. Doing so risks letting criminals off with considerably less than they would have received if their cases had actually been prosecuted under the new law.

Expunging DNA and Retroactive Laws curated from Crime and Consequences Blog