BILL ANALYSIS Ó
AB 989
Page 1
Date of Hearing: April 14, 2015
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Bill Quirk, Chair
AB
989 (Cooper) - As Amended April 8, 2015
As Proposed to be Amended in Committee
REVISED
SUMMARY: Authorizes the district attorney and probation
department to access sealed juvenile records for additional
limited purposes. Specifically, this bill:
1)Authorizes the prosecutor and the probation department to
access a juvenile's sealed records for the limited purpose of
determining whether the minor is ineligible for informal
supervision.
2)States that if a new petition has been filed against the minor
for a felony offense, the probation department can access the
sealed records 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 pursuant to this subparagraph shall not be
disseminated to other agencies or individuals, except as
necessary to implement a referral to a remedial program or
service, and shall not be used to support the imposition of
penalties, detention, or other sanctions upon the minor.
AB 989
Page 2
3)Authorizes the probation department to access sealed juvenile
records for the limited purpose of meeting Federal Title IV-E
compliance.
4)States that this access shall not be considered an unsealing
of the records.
EXISTING LAW:
1)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 dependency or
delinquency 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.)
2)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).)
3)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.
AB 989
Page 3
(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.)
6)Allows the probation officer to destroy all records and papers
in the proceedings concerning a minor after five years from
the date on which the jurisdiction of the juvenile court over
the minor is terminated. (Welf. & Inst. Code, § 826.)
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
AB 989
Page 4
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, "In 2014, SB
1038 (Leno) regarding juvenile records sealing was signed into
law. The bill provided for the automatic dismissal of juvenile
petitions and sealing of records in cases where a juvenile
offender successfully completes probation. The intent was to
provide incentives for youth to successfully complete
probation and foster employment, housing, and education
opportunities by setting forth a process to have juvenile
records sealed.
"Upon implementation there have been varying legal opinions as
to whether probation records such as program referrals and
risk/needs assessments are considered part of the court record
and would therefore be required to be sealed under the
provisions of SB 1038. This inhibits the ability of probation
to access their internal records should a minor, who has had
their record sealed, come back into the custody of the
juvenile court and probation department.
"Therefore, there are cases when a youth comes back into the
custody of the juvenile court and probation is unable to view
their previous program referrals and risk/needs assessments to
make the most appropriate determination on getting them
connected to services. Further, it is important that probation
be able to access records on a limited basis for the purposes
of determining AB 12 extended foster care eligibility,
eligibility for informal probation, and Federal Title IV-E
purposes. In order to achieve the best outcomes for these
minors, it is important that probation have access to this
information to make the most effective case plan
determinations for the minor's treatment.
"AB 989 would continue the practice and original intent of SB
1038 to ensure that minors' records are automatically sealed
AB 989
Page 5
upon successful completion and would clarify that in cases
where a juvenile record has been sealed pursuant to Welfare &
Institutions Code 786, if a youth subsequently comes back into
the custody of the juvenile court, probation may access
limited information as it pertains to determining AB 12
extended foster care eligibility, informal probation
eligibility, Federal Title IV-E purposes, previous risk/needs
assessments, and prior program and service referrals in order
to most appropriately develop a case plan to address the
treatment needs of the minor."
2)Sealing and Dismissals of Juvenile Records: Juvenile court
records generally must be destroyed when the person of record
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, either
the minor or the probation department must petition the court.
(Ibid.) 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. (Ibid.) 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.
AB 989
Page 6
Last year SB 1038 (Leno), Chapter 249, Statutes of 2014,
enacted another process for automatic juvenile record sealing
(i.e. without a petition from the minor) in cases involving
satisfactorily-completed informal supervision or probation,
except in cases involving serious offenses, namely Welfare and
Institutions Code section 707, subdivision (b) offenses.
(Welf. & Inst. Code, § 786.) When the record is sealed, the
arrest in the case is deemed never to have occurred. (Ibid.)
The court must order all records in its custody pertaining to
the petition sealed. However, the prosecuting attorney and
the probation department can access these records after they
are sealed for the limited purpose of determining whether the
minor is eligible for deferred entry of judgment. Also, 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.)
This bill seeks to permit the probation department and
district attorney to view the sealed records for several other
limited purposes. First, the prosecutor and probation
department would be able to access the sealed records to
determine whether minor is ineligible for informal
supervision. Second, the probation department would be able
to access the sealed records to comply with the requirements
of federal Title IV-E, which enables a local probation
department to obtain federal funds from the federal foster
care program. Finally, the probation department would be able
to access the sealed records for the purposes of determining a
minor's prior program referrals and risk-needs assessments.
As to this final purpose, it seems beneficial for a probation
department to be able to verify what programs have been tried
successfully and unsuccessfully. However, should the bill
include a limitation preventing a probation department from
using the information to impose detention or other sanctions
on the minor who has successfully had his or her record
sealed?
3)Title IV-E: The largest federal funding stream for child
welfare activities is Title IV-E of the Social Security Act.
It comprises the Foster Care and Adoption Assistance programs,
AB 989
Page 7
which are open-ended entitlements (the state receives a
certain level of reimbursement from the federal government for
every eligible claim submitted), and the Chafee Foster Care
Independence Program, which is a capped entitlement (the state
is entitled to get reimbursed for every single claim it
submits to the federal government, up to a certain level, or
cap).
"Funds are available for monthly maintenance payments for the
daily care and supervision of eligible children;
administrative costs to manage the program; training of staff
and foster care providers; recruitment of foster parents and
costs related to the design, implementation and operation of a
state-wide data collection system."
( http://www.acf.hhs.gov/programs/cb/resource/title-ive-foster-c
are .)
4)Informal Supervision: The juvenile court can order either
pre-petition or post-petition informal probation, also known
as diversion. (Welf. & Inst. Code, §§ 654, 654.2.) Welfare
and Institutions Code section 654.3 lists the eligibility
criteria for both of these forms of diversion. Some of the
factors to be considered are the type of offense committed,
whether the offense occurred on school grounds, involved gang
activity, and whether more than $1000 in victim restitution
would be owed. (Welf. & Inst. Code, § 654.3.)
If the probation department concludes that the minor is within
the juvenile court's jurisdiction or likely soon will be, the
probation officer can delineate a specific program of
supervision for the minor for up to six months to try to
adjust the situation that brings the minor within the juvenile
court's jurisdiction. (Welf. & Inst. Code, § 654; In re Adam
R. (1997) 57 Cal.App.4th 348.) This is known as pre-petition
informal supervision. The underlying purpose of informal
supervision is to avoid a true finding on criminal
culpability, which would result in a criminal record for the
minor. (In re Abdirahman S. (1997) 58 Cal.App.4th 963, 968.)
The discretion to initially determine whether to institute
informal supervision against the minor rests with the
probation officer and cannot be delegated to the prosecution.
(Charles S. v. Superior Court (1982) 32 Cal.3d 741, 746.)
AB 989
Page 8
If the probation officer determines informal supervision is not
appropriate, the juvenile court should conduct a new hearing
on the minor's suitability for post-petition informal
supervision and shall exercise its independent discretion in
making its decision. (Welf. & Inst. Code, § 654.2; In re
Armondo A. (1992) 3 Cal.App.4th 1185, 1189-90.) With Welfare
and Institutions Code section 654.2m the Legislature intended
to further address delinquency at its inception within a less
structured program even after a delinquency petition is filed.
The statute created a new power in the juvenile courts by
allowing them to order informal supervision after a petition
had been filed. This power is in addition to the probation
officer's already existing pre-petition discretion. (Derick
B. v. Superior Court (2009) 180 Cal.App. 4th 295, 302.)
The court cannot require a minor to admit the truth of the
petition before granting informal supervision. (In re Ricky J.
(2005) 128 Cal.App.4th 783.) When ordering informal
supervision, the juvenile court should not even make a true
finding on the allegations in the petition. (In re Omar R.
(2003) 105 Cal.App.4th 1434, 1437-1438.) Since informal
supervision pursuant to Welfare and Institutions Code section
654.2 is available pre-adjudication only, it is not a viable
alternative at a dispositional hearing. (In re Abdirahman S.
(1997) 58 Cal.App.4th 963, 968.)
5)Argument in Support: The Chief Probation Officers of
California, the sponsor of this bill, state, "By way of
background, in 2014, SB 1038 (Leno) regarding juvenile records
sealing was signed into law. The bill provides for the
automatic dismissal of juvenile petitions and sealing of
records in cases where a juvenile offender successfully
completes probation. The intent was to provide incentives for
youth to successfully complete probation and foster
employment, housing, and education opportunities by setting
forth a process to have juvenile records sealed.
"Upon implementation there have been varying legal opinions as
to whether probation records, such as program referrals and
risk/needs assessments are considered part of the court record
and would therefore be required to be sealed under the
provisions of SB 1038. This inhibits the ability of probation
AB 989
Page 9
to access their internal records should a minor, who has had
their record sealed, come back to the custody of the juvenile
court and probation department.
"Therefore, there are cases when a youth comes back into the
custody of the juvenile court and probation is unable to view
their previous program referrals and risk/needs assessments to
make the most appropriate determination on getting them
connected to services. Further, it is important that
probation be able to access records on a limited basis for the
purpose of determining AB 12 extended foster care eligibility,
eligibility for informal probation, and for Federal Title IV-E
purposes. In order to achieve the best outcomes for these
minors, it is important that probation have limited access to
this information, when a minor comes back into our care for a
subsequent violation, to make the most effective case plan
determinations for the minor's treatment."
6)Argument in Opposition: According to Legal Services for
Prisoners with Children, "California's confidentiality laws
are intended to protect children from present and future
adverse consequences and unnecessary emotional harm. Juvenile
courts are intended to have exclusive authority in determining
whether a juvenile record is to be shared. Under current law,
entities must petition the court to obtain someone's
confidential juvenile records. This process gives the
defending party an opportunity to contest the sharing of
information that may be detrimental to his or her
rehabilitation and best interests.
"AB 989 would add a new subsection (b)(3) to Welfare and
Institutions Code Section 786 to grant probation departments
access to sealed juvenile records, for the limited purpose of
determining program referrals. This proposal is unnecessary
because district attorneys already make informed decisions to
refer young defendants to programs, regardless of probation
records. District attorneys already have access to sealed
juvenile records to decide eligibility for deferred entry of
judgment. Additionally, we are concerned that it will be
difficult to limit access to this stated 'limited purpose,'
and difficult to know whether access was limited in this
fashion or whether probation officers used this information
AB 989
Page 10
for other purposes."
7)Related Legislation: AB 666 (Stone) 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. AB 666 is
pending hearing in this committee today.
8)Prior Legislation: 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.
REGISTERED SUPPORT / OPPOSITION:
Support
Chief Probation Officers of California (Sponsor)
American Federation of State, County and Municipal Employees
California District Attorneys Association
Fraternal Order of Police, N. California Probation Lodge 19
Los Angeles County Probation Officers Union
Riverside Sheriffs' Association
San Joaquin Probation Officers Association
San Mateo County Probation and Detention Association
Santa Clara County Probation Peace Officers' Union
SEIU Local 721
State Coalition of Probation Organizations
Ventura County Professional Peace Officers' Association
Opposition
Legal Services for Prisoners with Children
Analysis Prepared
by: Sandy Uribe / PUB. S. / (916) 319-3744
AB 989
Page 11