BILL ANALYSIS Ó
SB 1038
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Date of Hearing: June 10, 2014
Counsel: Shaun Naidu
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 1038 (Leno) - As Amended: June 4, 2014
SUMMARY : Provides for the automatic dismissal of juvenile
petitions and sealing of records, as specified, in cases where a
juvenile successfully completes probation and authorizes the
juvenile court to dismiss a petition, as specified, after a
person reaches the age of 21. Specifically, this bill :
1)Provides that if the minor satisfactorily completes (i) an
informal program of supervision, as specified; (ii) probation,
as specified; or (iii) a term of probation for any offense
other than a specified serious, sexual, or violent offense,
the court shall order the petition dismissed, and the arrest
upon which the judgment was deferred shall be deemed not to
have occurred.
2)Requires the court to seal all records in its custody
pertaining to a petition dismissed according to the above
provision, except that the prosecuting attorney and the
probation department of any county shall have access to these
records after they are sealed for the limited purpose of
determining whether the minor is eligible for deferred entry
of judgment, and the court may access the sealed file for the
limited purpose of verifying the prior jurisdictional status
of a ward who is petitioning the court to resume its
jurisdiction.
3)Removes the restriction that a person be under the age of 21
when a juvenile court dismisses a juvenile delinquency
petition based on the court's finding that the dismissal
serves the interests of justice and the welfare of the person
who is the subject of the petition, or that he or she is not
in need of treatment or rehabilitation.
4)Provides that the above provision is not to be interpreted to
require the court to maintain jurisdiction over a person who
is the subject of a petition between the time the court's
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jurisdiction over that person terminates and the point at
which his or her petition is dismissed.
EXISTING LAW :
1)Provides that five years or more after the jurisdiction of the
juvenile court has terminated over a person adjudged a ward of
the court or after a minor appeared before a probation
officer, or, in any case, at any time after the person has
reached the age of 18, the person or county probation officer,
with specified exceptions, may petition the juvenile court for
sealing of the records, including arrest records, relating to
the person's case, in the custody of the juvenile court, the
probation officer, or any other agency or public official.
(Welf. & Inst. Code, § 781, subd. (a).)
2)States that once the court has ordered the person's records
sealed, the proceedings in the case shall be deemed never to
have occurred, and the person may reply accordingly to any
inquiry about the events. (Welf. & Inst. Code, § 781, subd.
(a).)
3)Allows a judge of the juvenile court in which a petition was
filed, at any time before the minor reaches the age of 21
years, to dismiss the petition or to set aside the findings
and dismiss the petition if the court finds that the interests
of justice and the welfare of the minor require such
dismissal, or if it finds that the minor is not in need of
treatment or rehabilitation. States that the court shall have
jurisdiction to order such dismissal or setting aside of the
findings and dismissal regardless of whether the minor is, at
the time of such order, a ward or dependent child of the
court. (Welf. & Inst. Code, § 782.)
4)States that any person who was under the age of 18 when he or
she was arrested for a misdemeanor may petition the court in
which the proceedings occurred or, if there were no court
proceedings, the court in whose jurisdiction the arrest
occurred, for an order sealing the records in the case,
including any records of arrest and detention, in certain
circumstances. (Pen. Code, § 851.7.)
5)Provides that a person who was under the age of 18 at the time
of commission of a misdemeanor and is eligible for, or has
previously received expungement relief, may petition the court
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for an order sealing the record of conviction and other
official records in the case, including records of arrests
resulting in the criminal proceeding and records relating to
other offenses charged in the accusatory pleading, whether
defendant was acquitted or charges were dismissed. Thereafter
the conviction, arrest, or other proceeding shall be deemed
not to have occurred, and the petitioner may answer
accordingly any question relating to their occurrence. (Pen.
Code, § 1203.45, subd. (a).)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "This bill will
further the dual purposes of the juvenile justice system:
rehabilitation and reintegration, by better ensuring that
juveniles have a clear pathway to clearing their records, when
in compliance with existing statutory and probationary
requirements. The bill recognizes the established role of
California's Juvenile Courts as institutions of reform, not
punishment, and will help individuals with juvenile records<1>
to find and hold jobs, and become fully functioning members of
society.
"Overwhelming research in the field of adolescent behavior
indicates that developmental changes occurring during
adolescence often make it difficult for juveniles to properly
understand the consequences of their actions. It is therefore
essential that as many youth as possible receive a second
chance at rehabilitation, since young people can often turn
their lives around before it is too late. SB 1038 will give
them a second chance at a clean slate when pursuing higher
education or entering the workforce, two of the best ways to
ensure that a youthful offender does not return to the care of
the State as an adult criminal later in life."
2)Sealing and Dismissals of Juvenile Records : Juvenile court
records generally must be destroyed when the person of record
---------------------------
<1> This bill does not apply to juveniles who have committed
"707(b) offenses." 707(b) offenses are serious, violent felonies
outlined in section 707(b) of the Welfare & Institutions Code
such as murder, armed robbery and arson. These offenses are,
and will continue to be, barred from sealing, and are unaffected
by SB 1038.
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reaches the age of 38 unless good cause is shown for
maintaining those records. (Welf. & Inst. Code, § 826.) The
person of record also may petition to destroy records retained
by agencies other than the court. (Welf. & Inst. Code, § 826,
subd. (b).) The request must be granted unless good cause is
shown for retention of the records. (Welf. & Inst. Code, §
826.) When records are destroyed pursuant to the above
provision, the proceedings "shall be deemed never to have
occurred, and the person may reply accordingly to an inquiry."
(Welf. & Inst. Code, § 826, subd. (a).) Courts have held
that the phrase "never to have occurred" means that the
juvenile proceeding is deemed not to have existed. (Parmett
v. Superior Court (Christal B.) (1989) 212 Cal.App.3d 1261, at
1267.)
Minors adjudicated delinquent in juvenile court proceedings may
petition the court to have their records sealed unless they
were found to have committed certain serious offenses. (Welf.
& Inst. Code, § 781.) To seal a juvenile court record, a
petition must be filed by either the person who is the subject
of the record or the probation department. (Welf. & Inst.
Code, § 781.) Juvenile court jurisdiction must have lapsed
five years previously or the person must be at least 18 years
old. (Welf. & Inst. Code, § 781, subd. (a).) The records are
not sealed if the person of record has been convicted of a
felony or a misdemeanor involving moral turpitude. (Welf. &
Inst. Code, § 781, subd. (a).) No offenses listed in Welfare
and Institutions Code section 707, subdivision (b) may be
sealed if the juvenile was 14 years or older at the time of
the offense. Additionally, there can be no pending civil
litigation involving the incident.
For minors who are convicted of a misdemeanor in adult court,
Penal Code section 1203.45 authorizes sealing of such records.
Sealing of the records may be granted if the person has
already received, or is eligible for, post-conviction
dismissal of the case under existing expungement statutes,
that is Penal Code sections 1203.4 and 1203.4a. If relief is
granted under Penal Code section 1203.45, the records are
sealed and the conviction, arrest, or other proceeding is
deemed never to have occurred. With exceptions, to receive
relief, the minor can have been convicted of only one charge,
or count, even in the same case. (Pen. Code, § 1203.45, subd.
(d).) Sealing of records, under this provision, is not
available to a minor convicted of offenses requiring sex
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offender registration or of certain Vehicle Code offenses.
Additionally, the juvenile court may dismiss a juvenile
delinquency petition, with or without a request by the subject
of the adjudication, if the court finds that dismissal serves
the interests of justice and the welfare of the minor, or if
the court finds that the minor does not need treatment or
rehabilitation. (Welf. & Inst. Code, § 782.) In exercising
this authority, the court must state the reasons for its
finding on the record. (In re Juan C. (1993) 20 Cal.App.4th
748.) The court may dismiss the petition only if the person
is under the age of 21. (Welf. & Inst. Code, § 782.) This
bill would remove this age restriction. Moreover, this bill
would require the court to dismiss and seal the petition if
the minor successfully completes informal or formal probation,
except for specified sexual, serious, or violent offenses.
3)Argument in Support : According to the California Public
Defenders Association , "[a]utomatic sealing of the records ?
provides an additional incentive for youth to complete their
probation successfully[, as research] consistently
demonstrates that youth are not motivated by what they view as
'long term consequences' or benefits[;] ? may open
opportunities for youth in terms of their employment, housing
or education[; and] ? will save the courts both time and
money; written petitions and investigations and court hearings
will no longer be necessary.
?
"The notion that youth should not be stigmatized forever for
behavior from their childhood has been a fundamental
proposition since the inception of juvenile court more than
100 years ago. As we move further into the technologically
advanced twenty-first century, an unfortunate consequence has
been the diminished capacity to retain the confidentiality of
juvenile records. SB 1038 represents two modest, yet
important steps towards remedying that problem."
4)Arguments in Opposition :
a) The California State Sheriffs' Association argues that
"[w]hile sealing of records may be appropriate in certain
cases, we are concerned that sealing of records is not
proper in all cases where probation has been completed,
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especially in cases involving acts of violence."
b) The California District Attorneys Association also
states that the mandatory sealing of dismissed juvenile
records is troubling, because, "[o]nce sealed, prosecutors
and probation departments have limited access to those
records."
5)Current Legislation : AB 1756 (Skinner), seeks to provide that
only a person 26 years of age or older may be charged a fee
for petitioning the court for an order sealing his or her
juvenile record. AB 1756 is pending referral in the Senate.
REGISTERED SUPPORT / OPPOSITION :
Support
California Public Defenders Association (Sponsor)
All Of Us Or None
California Attorneys for Criminal Justice
California Coalition for Youth
California Partnership
Californians for Safety and Justice
Center on Juvenile and Criminal Justice
Children's Defense Fund of California
Coalition for Humane Immigrant Rights of Los Angeles
Commonweal Juvenile Justice Program
East Bay Children's Law Offices
East Bay Community Law Center
Ella Baker Center for Human Rights
Friends Committee on Legislation of California
Judicial Council of California
Juvenile Court Judges of California
Lawyers' Committee for Civil Rights of the San Francisco Bay
Area
Legal Services for Prisoners with Children
National Association of Social Workers, California Chapter
Service Employees International Union, Local 1000
Youth Law Center
Opposition
California District Attorneys Association
California State Sheriffs' Association
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Analysis Prepared by : Shaun Naidu / PUB. S. / (916) 319-3744