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