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.
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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
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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,
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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.)
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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:
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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
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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
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§ 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
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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
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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,
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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:
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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