BILL ANALYSIS Ó AB 666 Page 1 Date of Hearing: April 14, 2015 Counsel: Stella Choe ASSEMBLY COMMITTEE ON PUBLIC SAFETY Bill Quirk, Chair AB 666 (Mark Stone) - As Amended April 9, 2015 SUMMARY: Requires records in the custody of law enforcement agencies, the probation department, or any other public agency having records pertaining to the case, to also be sealed, in a case where a court has ordered a juvenile's records to be sealed, as specified. Specifically, this bill: 1)Requires the court to send a copy of the order to each agency and official named therein, directing the agency to seal its records and specifying a date thereafter to destroy the sealed records. 2)States that each such agency and official shall seal the records in its custody as directed by the order, advise the court of its compliance and thereupon seal the copy of the court's order or sealing of records that was received. 3)Requires the court to provide notice to the minor and minor's counsel that it has ordered the petition dismissed and the record sealed in the case, including notice of the minor's right to nondisclosure of the arrest and proceedings as specified. AB 666 Page 2 4)States that upon the court's order of dismissal of the petition, the arrest and other proceedings in the case shall be deemed not to have occurred and the person who was the subject of the petition may properly reply accordingly to any inquiry by employers, educational institutions or other persons or entities regarding the arrest and proceedings in the case. 5)Provides that satisfactory completion of informal supervision or another term of probation shall be deemed to have occurred if the person has no new finding of wardship or conviction for a felony offense for or a misdemeanor involving moral turpitude during the period of supervision or probation and if he or she has not failed substantially to comply with the reasonable orders of supervision or probation that are within his or her capacity to perform. 6)Prohibits the extension of the period of supervision or probation solely for the purpose of deferring or delaying eligibility for dismissal of the petition and sealing of the records. 7)States that an unfulfilled order or condition of restitution that can be converted to a civil judgment shall not be deemed to constitute unsatisfactory completion of supervision or probation. 8)Specifies that a record that has been ordered sealed by the court under this section may be accessed, inspected or used only under the following circumstances: a) By the prosecuting attorney and the probation department for the limited purpose of determining whether the minor is eligible for deferred entry of judgment or for a program of supervision, as defined. b) By the court for the limited purpose of verifying the prior jurisdictional purpose of a ward who is petitioning the court to resume its jurisdiction. c) If a new petition has been filed against a minor for a felony offense, by the probation department for the limited AB 666 Page 3 purpose of identifying the minor's previous court-ordered programs or placements, and in that event solely to determine the individual's eligibility or suitability for remedial programs or services. The information obtained under this exception shall not be disseminated to other agencies or individuals, except as necessary to implement referral to a remedial program or service, and shall not be used to support the imposition of penalties or detention or other sanctions upon the minor. d) By the person whose record has been sealed, upon his or her request and petition to the court to permit inspection of the records. 9)States that access to or inspection of a sealed record authorized by these provisions shall not be deemed an opening of the record and shall not require notice to any other agency. 10)Requires Judicial Council to adopt rules of court, and shall make available appropriate forms, providing for the standardized implementation of this section by the juvenile courts. 11)Revises the exclusion of 707(b) offenses from sealing under this section to specify that the offense must have been committed when the minor was 14 years of age or older. 12)States the finding of the Legislature that in order to protect the privacy of children who have had their juvenile delinquency court records sealed, it is necessary that related records in the custody of law enforcement agencies, the probation department, or any other public agency also be sealed. 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, AB 666 Page 4 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)Prohibits, notwithstanding any other provision of law, the court from ordering a person's records sealed in any case in which the person has been found to have committed an offense listed in section 707(b), which are offenses for which certain minors could be tried in adult court. (Welf. & Inst. Code, § 781, subd. (a).) 4)Permits the court to access a file that has been sealed for the limited purpose of verifying the prior jurisdictional status of the ward who is petitioning the court to resume its jurisdiction, as specified. This access is not to be deemed an unsealing of the records. (Welf. & Inst. Code, § 781, subd. (e).) 5)Allows a judge of the juvenile court in which a petition was filed 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 person who is the subject of the petition require that dismissal, or if it finds that he or she is not in need of treatment or rehabilitation. The court has jurisdiction to order dismissal or setting aside of the findings and dismissal regardless of whether the person who is the subject of the petition is, at the time of the order, a ward or dependent child of the court. (Welf. & Inst. Code, § 782.) AB 666 Page 5 6)Provides that, if a minor satisfactorily completes an informal program of supervision, probation as specified, or a term of probation for any offense other than a specified serious, sexual, or violent offense, then the court shall order sealed all records pertaining to that dismissed petition in the custody of the juvenile court, 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. The court may access a file that has been sealed pursuant to this section for the limited purpose of verifying the prior jurisdictional status of a ward who is petitioning the court to resume its jurisdiction. This access shall not be deemed an unsealing of the record and shall not require notice to any other entity. (Welf. & Inst. Code, § 786.) 7)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.) 8)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 for an order sealing the record of conviction and other official records in the case, including arrest records and records relating to other offenses charged in the accusatory pleading, whether the defendant was acquitted, or the charges 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: AB 666 Page 6 1)Author's Statement: According to the author, "AB 666 is an important measure that can reduce recidivism and open doors to jobs and education for many of California youth. The goal is to open pathways to college and jobs for justice-involved youth whose criminal records and histories stand in the way of employment and other re-entry opportunities. SB 1038 (Leno, 2014) revised the central policy and process for the sealing and dismissal of charges in non-violent juvenile delinquency cases. However, in the past few months experience in the courts has revealed implementation concerns. If passed AB 666 will provide for statewide standards for the courts and ensure access of youth to jobs and higher education." 2)Sealing and Destruction of Records: 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.) A person may have his or her juvenile court records sealed by petitioning the court "five years or more after the jurisdiction of the juvenile court has terminated over [the] person adjudged a ward of the court or after [the] minor appeared before a probation officer, or, in any case, at any time after the person has reached the age of 18." (Welf. & Inst. Code, § 781, subd. (a).) Once the court has ordered the records sealed, the proceedings in the case shall be deemed never to have occurred, and the person may properly reply accordingly to any inquiry about the events. (Ibid.) The relief consists of sealing all of the records related to the case, including the arrest record, court records, entries on dockets, and any other papers and exhibits. The court must send a copy of the order to each agency and official named in the petition for sealing records, directing the agency to seal its records and stating the date thereafter to destroy the sealed records. (Ibid.) The court may also order the dismissal of a minor's juvenile court case and have the court records sealed without a petition from the minor if the minor has been found to have satisfactorily completed an informal program of supervision or probation, except in specified cases. (Welf. & Inst. Code, § 786.) Upon sealing of the record, the arrest upon which the AB 666 Page 7 judgment was deferred shall be deemed to have never occurred. (Ibid.) The court shall order sealed all records in its custody pertaining to a petition dismissed. (Ibid.) 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. 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. (Ibid.) The automatic dismissal and sealing of a minor's juvenile court records described above was established by SB 1038 (Leno), Chapter 249, Statutes of 2014. According to the bill analysis, "[b]ecause the petition to seal requires the involvement of the probation office, the prosecutor, and the court, there are often lengthy delays as well as significant costs associated with sealing. Moreover, many youth are unaware of their right to petition, or may have moved out of state and are unable to complete the process. "The fact that many youth are unaware of their right to seal their juvenile record, or are unable to complete the process due to procedural, logistical or financial barriers is a serious shortcoming of our juvenile justice system. . . . SB 1038 seeks to remedy these shortcomings in current law by streamlining the process for sealing a juvenile's record . . . "In doing so, 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 to find and hold jobs, and become fully functioning members of society." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1038 (2013-2014 Reg. Sess.) as amended Mar. 28, 2014.) Unlike the sealing process under Welfare and Institutions Code AB 666 Page 8 § 781, SB 1038 did not require the court to order records sealed in the possession of other public agencies such as law enforcement or probation. Arrest records and probation records can be damaging on an individual's ability to pursue higher education or find a job. This bill seeks to address these concerns by requiring those records to be sealed as well, and provides access to those records for the limited purposes of determining DEJ eligibility or suitability for referral to a program or service, and resuming the court's jurisdiction. The bill specifies that the information in the records "shall not be used to support the imposition of penalties or detention or other sanctions upon the minor." This bill also clarifies that the 707(b) exclusion from sealing applies if the offense was committed when the minor was 14 years of age or older, which mirrors the exclusion in Welfare and Institutions Code § 781. 3)Deferred Entry of Judgment (DEJ): DEJ is a form of diversion. Generally, if a defendant is granted DEJ, entry of judgment on the defendant's guilty plea is deferred pending successful completion of a program or other conditions. If a defendant placed in a DEJ program fails to complete the program or comply with the conditions imposed by the court, criminal proceedings resume and the defendant, having already pleaded guilty, is sentenced. In the juvenile justice setting, DEJ is available to minors who are at least 14 years of age and alleged to have committed a felony offense. Additionally, the minor must have not been previously declared a ward of the court for the commission of a felony offense; the current offense charged must not be one of the enumerated offenses in Welfare and Institutions Code section 707(b); the minor must not have previously been committed to the custody of the Division of Juvenile Justice; the minor's record must not indicate that probation has ever been revoked without being completed; and the minor must be eligible for probation. (Welf. & Inst. Code, § 790, subd. (a).) The prosecuting attorney has to duty to determine whether the minor is eligible for DEJ and file a declaration with the court or state on the record the grounds upon which the AB 666 Page 9 determination was made. The minor must admit to the charges and the court must also find that the minor is suitable for DEJ. (Welf. & Inst. Code, § 790, subd. (b).) This bill allows access to sealed juvenile court records in order to determine whether a minor is eligible for DEJ. 4)Argument in Support: According to Commonweal, the sponsor of this bill, "SB 1038 requires the Juvenile Court to seal the court records and to dismiss the petition in delinquency cases where the minor has satisfactorily completed probation or a program of informal probation supervision. Sealing and dismissal under Section 786 are intended to be automatic (court-initiated), as an alternative to the existing, cumbersome and costly petition process that is so little utilized and largely inaccessible by former juvenile offenders. "AB 666 meets needs that have become apparent since SB 1038 was enacted, including: a) Inconsistent implementation. Implementation of the auto-sealing and dismissal provisions of Section 786 has been inconsistent among California courts, based on the information we are getting from counsel in sealing cases. Some courts are asking for prior probation department approval to initiate the new sealing process or are requiring that the minor make the sealing request-even though the process in qualifying cases was intended to be self-initiated by the Court. AB 666 would require the Judicial Council to adopt rules and forms to assure the consistent and standardized implementation of the new sealing law. b) Records not covered. In addition, SB 1038 did not cover arrest and other law enforcement records. A key goal of SB 1038 was to open doors to employment and higher education for former juvenile offenders who have met their justice system obligations. To achieve this goal, arrest and probation records need to be included in the scope of records that the court requires to be sealed upon dismissing the charges. AB 666 adds this protection, which also brings Section 786 into alignment with the older AB 666 Page 10 sealing statute, WIC Section 781. . . . "We also indicate our support for . . . better guidance to courts in determining what constitutes 'satisfactory completion' of probation or supervision under Section 786. We are recommending that 'satisfactory completion' be defined utilizing two criteria. First (drawing from WIC Section 781, the 'older' sealing statute) that the individual not have been adjudicated or convicted for a new felony or misdemeanor involving moral turpitude during the period of supervision. Second, that the person did not fail substantially to comply with the reasonable orders of probation that were within his or her capacity to perform. This latter criterion is viewed as providing a 'passing grade' standard for 'satisfactory' completion. Many probation orders in delinquency cases are checklists of conditions that are difficult or impossible for many adolescents to perform at an 'A' grade level-including such conditions as 'must attend all school classes' and 'must obey all orders of parents or guardian'. On occasion, children on probation backslide by perhaps failing a drug test or skipping an appointment-but this does not mean that they cannot or do not rebound to a level of satisfactory overall performance. We find support in case law and prior legislation for the concept that successful completion of probation does not require the fulfillment of every probation condition. See, for example, In re Timothy N, 216 Cal.App.4th 725 (2013) where the court ruled that probation was successfully completed even though the minor had an unfulfilled order and condition of restitution. . . [Citation omitted.] "Our goal, after all, is to support the re-entry, rehabilitation and employability of juveniles having justice system histories, and not to impose lifetime barriers to success based on probation performance criteria that are too rigid or unrealistic from an adolescent development perspective." 5)Argument in Opposition: According to the California District Attorneys Association, "In determining what 'care, treatment, AB 666 Page 11 and guidance' is best for a minor, a simple rule of thumb applies (and is articulated throughout the W&I code) - the more information the court and other involved agencies have, the more likely the juvenile justice system as a whole will be able to tailor the services provided to the minor to ensure that those services address the minor's specific needs. Restricting access to potentially important information about a minor's prior contact with law enforcement or the juvenile justice system in this manner is tantamount to telling a diagnosing physician that she cannot consider a patient's entire medical record in determining a treatment plan. "In an effort to extend the confidentiality of juvenile records so that delinquency contacts from years past do not burden people unduly in the future, this bill will in fact have the unfortunate effect of preventing the juvenile court, probation, and other agencies from accurately assessing what level of intervention and treatment is appropriate for a minor who has multiple contact with the system. This certainly is not of benefit to the minor, and is contrary to 'conformity with the interests of public safety and protection.'" 6)Related Legislation: AB 989 (Cooper) would authorize the probation department of any county to access a minor's sealed records for the limited purposes of determining a minor's prior program referrals and risk-needs assessments. AB 989 will be heard by this Committee today. 7)Prior Legislation: a) SB 1038 (Leno), Chapter 249, Statutes of 2014, provides for the automatic dismissal of juvenile petitions and sealing of records when a juvenile offender successfully completes probation. b) AB 1756 (Skinner), of the 2013-2014 Legislative Session, would have provided 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 was held on the Senate Committee on Appropriation's Suspense File. REGISTERED SUPPORT / OPPOSITION: AB 666 Page 12 Support Commonweal, The Juvenile Justice Program (Sponsor) American Civil Liberties Union of California California Attorneys for Criminal Justice California Coalition for Youth Center on Juvenile and Criminal Justice Juvenile Court Judges of California League of Women Voters of California Legal Services for Prisoners with Children National Association of Social Workers, California Chapter Youth Law Center Opposition California District Attorneys Association Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744