BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 666 Hearing Date: June 23, 2015
-----------------------------------------------------------------
|Author: |Mark Stone |
|-----------+-----------------------------------------------------|
|Version: |June 11, 2015 |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Urgency: |No |Fiscal: |Yes |
-----------------------------------------------------------------
-----------------------------------------------------------------
|Consultant:|AA |
| | |
-----------------------------------------------------------------
Subject: Juveniles: Sealing of Records
HISTORY
Source: Commonweal, The Juvenile Justice Program
Prior Legislation:SB 1038 (Leno), Chapter 249, Statutes of 2014
Support: American Civil Liberties Union of California;
Aspiranet; California Attorneys for Criminal Justice;
California Coalition for Youth; California Public Defenders
Association; 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; California
State Sheriffs' Association
Assembly Floor Vote: 42 - 33
PURPOSE
The purpose of this bill is to make a number of clarifications
and revisions concerning the sealing of juvenile records and the
AB 666 (Mark Stone ) Page
2 of ?
dismissal of juvenile cases, as specified.
Current law 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).)
Current law 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).)
Current law 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 under specified
circumstances. (Welf. & Inst. Code, § 781, subd. (a).)
Current law 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).)
Current law 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 (Mark Stone ) Page
3 of ?
Current law 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.)
Current law 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).)
Current law 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.)
This bill would revise this provision to provide the following:
1)Require 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.
AB 666 (Mark Stone ) Page
4 of ?
2)State 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)Require 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.
4)State 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)Provide 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)Prohibit 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)State 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)Specify 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
AB 666 (Mark Stone ) Page
5 of ?
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
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.
1)State 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.
2)Require the 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.
3)Revise 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 unless
the finding on that offense was dismissed or was reduced to a
lesser offense that is not listed in subdivision (b) of
Section 707.
4)State 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
AB 666 (Mark Stone ) Page
6 of ?
probation department, or any other public agency also be
sealed.
5)Authorize the court, in making its order to seal the record
and dismiss the instant petition pursuant to this section,
include an order to seal a record relating to, or to dismiss,
any prior petition or petitions that have been filed or
sustained against the individual and that appear to the
satisfaction of the court to meet the sealing and dismissal
criteria otherwise described in this section.
This bill would enact a new law to provide that,
"(n)otwithstanding any other law, a record sealed pursuant to
Section 781 or 786 may be accessed by a law enforcement agency,
probation department, court, or other state or local agency that
has custody of the sealed record for the limited purpose of
complying with data collection or data reporting requirements
that are imposed by other provisions of law. However, no
personally identifying information from a sealed record accessed
under this subdivision may be released, disseminated, or
published by or through an agency, department, court, or
individual that has accessed or obtained information from the
sealed record."
This bill would provide that "(n)otwithstanding any other law, a
court may authorize a researcher or research organization to
access information contained in records that have been sealed
pursuant to Section 781 or 786 for the purpose of conducting
research on juvenile justice populations, practices, policies,
or trends, if both of the following are true:
1) The court is satisfied that the research project or
study includes a methodology for the appropriate protection
of the confidentiality of an individual whose sealed record
is accessed pursuant to this subdivision.
2) Personally identifying information relating to the
individual whose sealed record is accessed pursuant to this
subdivision is not further released, disseminated, or
published by or through the researcher or research
organization.
This bill provides that for the purposes of this section
"personally identifying information" 6 has the same meaning as
AB 666 (Mark Stone ) Page
7 of ?
in Section 1798.79.8 of the Civil Code.
This bill makes legislative findings concerning limitation on
the public's right of access to the meetings of public bodies or
the writings of public officials and agencies within the meaning
of Section 3 of Article I of the California Constitution "to
demonstrate the interest protected by this limitation and the
need for protecting that interest: 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."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight years, this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In February of this year the administration reported that as "of
February 11, 2015, 112,993 inmates were housed in the State's 34
adult institutions, which amounts to 136.6% of design bed
capacity, and 8,828 inmates were housed in out-of-state
facilities. This current population is now below the
court-ordered reduction to 137.5% of design bed capacity."(
Defendants' February 2015 Status Report In Response To February
10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman
AB 666 (Mark Stone ) Page
8 of ?
v. Brown, Plata v. Brown (fn. omitted).
While significant gains have been made in reducing the prison
population, the state now must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Stated Need for This Bill
AB 666 (Mark Stone ) Page
9 of ?
The author states:
AB 666 clarifies and amends Section 786 of the Welfare
and Institutions Code (WIC), added last year by
Senator Leno's SB 1038. SB 1038 provided for the
automatic sealing of court records and auto-dismissal
of charges upon satisfactory completion of diversion
or probation by juveniles with non-violent/non-serious
("non 707") offenses. Since enactment of SB 1038
problems have arisen with the implementation of the
statute. AB 666 seeks break down the barriers to
achieving the goals set out in SB 1038.
Specifically AB 666 does the following:
" Requires Judicial Council to adopt rules and forms
to assure the consistent and standardized
implementation of the new sealing law established by
SB 1038.
" Provides better guidance to courts in determining
what constitutes "satisfactory completion" of
probation or supervision, which is a requirement for
auto-sealing.
" Includes arrest and probation records in the
sealing requirement.
" States that an unfulfilled order or condition of
restitution that can be converted to a civil
judgment shall not delay the sealing of a record.
" Permits probation departments to unseal records
for the limited purpose of identifying the
juvenile's previous court-ordered programs or
placements only for the purpose of determining
eligibility of suitability for programs for
services.
1.Sealing and Destruction of Records
Minors adjudicated delinquent in juvenile court proceedings
may petition the court to have their records sealed unless
AB 666 (Mark Stone ) Page
10 of ?
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.)
A minor's juvenile court case is dismissed and the court
records are 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 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.)
2.Statement in Support
Commonweal, the Juvenile Justice Program, is the sponsor of
this bill. It submits in part:
Implementation of the auto-sealing and dismissal
provisions of Section 786 under SB 1038 has been
AB 666 (Mark Stone ) Page
11 of ?
inconsistent among California courts, . . . Some
courts are asking for prior probation department
approval to initiate the SB 1038 sealing process or
are requiring that the minor ask the court to proceed
with sealing and dismissal, 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 Section 786. . . .
. . . 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 orders to be sealed upon
dismissing the charges. AB 666 adds this protection,
which also brings Section 786 into alignment with the
older sealing statute, WIC Section 781. . . .
SB 1038 (and section 786) require the court to seal
the record and dismiss the petition in qualifying
cases where the minor has satisfactorily completed a
term of diversion or probation. However, SB 1038 did
not define "satisfactory completion". AB 666 provides
guidance to courts by adding a definition of
"satisfactory completion". The definition now provided
in AB 666 was circulated and essentially approved by
multiple stakeholders prior to being amended into the
bill, including the Juvenile Court Judges Association,
the Chief Probation Officers of California and defense
counsel organizations. . . .
AB 666 retains the SB 1038 limitation that the record
cannot be sealed under Section 786 where the
presenting offense is a serious or violent felony
listed in subdivision (b) of Section 707 (offenses
that are the basis for prosecution of juveniles in
adult criminal court). This same exclusion appears in
Section 781, the extant "sealing by petition" code
section. AB 666 conforms to Section 786 to Section
781 in this respect by excluding minors whose 707 (b)
offense was committed at age 14 or older. In addition,
AB 666 adds the qualification that where the court has
AB 666 (Mark Stone ) Page
12 of ?
subsequently dismissed or reduced the 707 (b) finding
to a lesser (non 707) offense, the individual retains
eligibility for sealing under section 786 if the other
performance criteria for sealing are met. This
responds to a request from the Sixth Appellate Court
to make this statutory change, articulated in In re
G.Y., 234 Cal. App. 4th 1196 (2015). In the G.Y.
decision, a minor adjudicated in Juvenile Court for
making a victim threat with a firearm (without an
actual shooting) was found to have committed a 707 (b)
assault crime. After being sentenced to the Santa
Clara County juvenile probation ranch, G.Y. enlisted
in the military where he was promoted to the rank of
sergeant and received three Army commendation medals
for outstanding service in Iraq and Kuwait.
Subsequently, the Court reduced the 707 (b) findings
to misdemeanors, and G.Y. petitioned for sealing of
the juvenile records in the case. The appeals court
concluded that under Section 781 it lacked the
authority to seal the record,
even though the 707 charges had been reduced by the
trial court to misdemeanors. The Court directed this
request to the Legislature: "Though appellant provided
overwhelming evidence of his rehabilitation, the
juvenile court properly concluded that it had no
authority to seal his juvenile records pursuant to
Welfare and Institutions Code section 781. We
respectfully invite the Legislature to enact
legislation that would remedy this unjust result." AB
666 proposes this remedy, at least in relation to the
Court's authority to seal the record under Section
786. . .
The legal effect of sealing a record and dismissing a
petition under Section 786 is that the arrest is then
deemed not to have occurred. AB 666 removes a
superfluous and confusing reference to deferred entry
of judgment, inadvertently retained in Section 786. It
also clarifies the legal effect of sealing and
dismissal of the petition at subdivision (b) to state
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
AB 666 (Mark Stone ) Page
13 of ?
accordingly to any inquiry by employers, educational
institutions or other persons or entities". In part
this change is intended to make it even clearer that
the person whose petition is dismissed is legally
entitled not to disclose the arrest and prosecution in
subsequent employment, education and other re-entry
situations. While stated a bit differently, this
Section 786 right of nondisclosure mirrors the
protection provided after sealing of the record in
petitioned cases covered by Section 781. . . .
. . . AB 666 would permit the court to order the
sealing and dismissal of prior petitions the
individual may have, so long as the court determines
that the person has met all other Section 786 criteria
for sealing and dismissal in relation to the prior
petitions. This discretion to seal priors would apply
only in cases where the current petition (in an active
probation case) is before the court. It would not
apply retroactively by requiring the Court to initiate
sealing of records in older cases. The added burden of
sealing priors in a case that is already before the
court under Section 786 is viewed as minimal. Defense
counsel in particular have identified the need to be
able to seal prior petitions in qualifying cases in
order to meet the fundamental SB 1038 policy goal of
opening pathways to employment and education for
children who have completed their justice system
obligations. The authorization to seal prior
petitions, added at a new subdivision (e), is entirely
discretionary and would be applied only if the court
determines that the prior petitions merit sealing by
meeting all WIC 786 sealing requirements. . . .
To ensure that data reporting will not be disrupted by
a growing volume of sealed juvenile case records, AB
666 adds a new Section 787 to the WIC, providing that
law enforcement, probation and courts can access
information in sealed records in order to make data
reports required by other provisions of law, provided
that personally identifying information obtained from
sealed records for this reason cannot be released,
disseminated or published by the acquiring agency. . .
.
AB 666 (Mark Stone ) Page
14 of ?
IN SUMMARY, we have endeavored with AB 666 to resolve
a range of concerns . . . to ensure the uniform, fair
and effective implementation of SB 1038. The
fundamental policy reform underlying AB 666 has
already been approved by the Senate, the Assembly and
the Governor. That policy is that a minor who has
satisfactorily completed his or her justice system
obligations should, under the Juvenile Court law, not
be hindered by the justice system record when it comes
to seeking employment, enrolling in higher education
or enlisting in the military. AB 666 is a clean-up
and clarification measure that provides practical
guidance to courts and allied justice agencies on
implementation of the policy direction established
last year by SB 1038. . . .
3.Statement in Opposition
The California District Attorneys Association, which
opposes this bill, submits:
Welfare and Institutions Code section 202(b) sets
forth the key purposes of delinquency jurisdiction:
Minors under the jurisdiction of the juvenile
court as a consequence of delinquent conduct
shall, in conformity with the interests of
public safety and protection, receive care,
treatment, and guidance that is consistent with
their best interest, that holds them accountable
for their behavior, and that is appropriate for
their circumstances.
In determining what "care, treatment, 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 contacts with law enforcement or the juvenile
AB 666 (Mark Stone ) Page
15 of ?
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
contacts with the system. This is certainly not of
benefit to the minor, and is contrary to "conformity
with the interests of public safety and protection."
4.Related Bills
This Committee heard and passed SB 504 (Lara) earlier this
year (5-2). That bill has been narrowed since leaving this
Committee to limiting fees associated with sealing juvenile
records and other potential liabilities, and to prohibiting
an unfulfilled order of restitution that has been converted
to a civil judgment from barring the sealing of a juvenile
record. The bill would also prohibit outstanding
restitution fines and court-ordered fees from being
considered when assessing whether a petitioner's
rehabilitation has been attained to the satisfaction of the
court and from barring the sealing of a record. SB 504 is
now in the Assembly.
AB 989 (Cooper), also before the Committee, amends the same
statute as this bill
(AB 666) concerning the dismissal of juvenile petitions.
As now in print AB 666 is broader than AB 989. The authors
of these bills may wish to add chaptering amendments to
harmonize these provisions.
-- END -
AB 666 (Mark Stone ) Page
16 of ?