BILL ANALYSIS Ó
AB 1945
Page 1
Date of Hearing: April 5, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
AB
1945 (Mark Stone) - As Amended March 15, 2016
SUMMARY: Authorizes a child welfare agency to access sealed
juvenile records for limited purposes. Specifically, this bill:
1)Authorizes a county child welfare agency responsible for the
supervision and placement of a minor or non-minor dependent of
the court to access sealed juvenile records for the limited
purpose of determining an appropriate placement or service
that has been ordered by the court for that dependent.
2)Allows the child welfare agency to share the information in
the sealed record with the court and with service and
placement providers for the sole purpose of implementing the
court ordered service or placement.
3)States that access to the sealed records pursuant to these
provisions shall not be construed as a modification of the
court's order dismissing the petition and sealing the case
records.
4)Allows the court to seal a record based on a specified serious
or violent offenses if the original charge was reduced to a
misdemeanor.
AB 1945
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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. (Welf. & Inst. Code, § 786,
subd. (a).)
2)Requires the court to send a copy of the order of dismissal
and sealing to the agencies named in the order and directing
the agencies to destroy the sealed records. (Welf. & Inst.
Code, § 786, subd. (a).)
3)Allows the court access a file that has been sealed 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. (Welf. & Inst. Code,
§ 786, subd. (f)(1).)
4)Gives the prosecuting attorney and the probation department of
any county access to those records after they are sealed for
the limited purposes. (Welf. & Inst. Code, § 786, subd.
(f)(1).)
5)States that access for these limited purposes shall not be
considered an unsealing of the records. (Welf. & Inst. Code,
§ 786, subd. (f).)
6)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).)
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7)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).)
8)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).)
9)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.)
10)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.)
11)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.)
12)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
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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:
1)Author's Statement: According to the author, "AB 1945 is a
clean-up proposal for my AB 666 from last year. It
accomplishes the following:
"Ensures child welfare agencies have limited access to valuable
information necessary for making appropriate foster care
placements and service recommendations for a child's safety
and well-being; and
"Clarifies that a 707 charge that has been reduced by the court
to a misdemeanor will qualify an individual for auto-sealing
of records, even if the misdemeanor for which the 707 charge
is reduced is a wobbler. This was the intent of AB 666.
Clearer legislative guidance is needed to pursue sealing in
these limited circumstances to allow youth to further their
education and employment goals."
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
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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.
In 2014, the legislature enacted a 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.)
Last year there were two follow up measures which permit the
probation department and district attorney to view the sealed
records for several other limited purposes, such as to
determine whether a minor is ineligible for informal
supervision, to comply with the requirements of federal Title
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IV-E, and for purposes of determining a minor's prior program
referrals and risk-needs assessments.
In a similar fashion, this bill will allow county child
welfare agencies responsible for the supervision and placement
of a minor or non-minor dependent of the court to access
sealed juvenile records for purposes of determining
appropriate placement and services.
3)Welfare and Institutions Code section 707, subdivision (b)
Adjudications: The current automatic sealing provisions
prohibit the sealing of the serious, sexual, or violent
offenses listed in Welfare and Institutions Code 707,
subdivision (b) (hereinafter 707(b)) except in cases where the
offense was reduced to a lesser included offense.
In In re G.Y. (2015) 234 Cal.App.4th 1196, the appellate court
reviewed the companion statute on juvenile record sealing
after appellant filed a petition to seal his juvenile records
pertaining to an assault with a firearm case that occurred
when he was 17 years old. (Welf. & Inst. Code, § 781.) The
court rejected the petitioner's argument that because the
offenses were reduced to misdemeanors, they were no longer a
bar to sealing the records. The controlling question is
whether an offense is listed in section 707(b), not whether it
is classified as a felony or a misdemeanor. The statute
clearly says that the juvenile court does not have authority
to seal records in any case in which (1) the juvenile court
had found the person committed an offense listed in 707(b),
and (2) the offense was committed when the person was 14 years
or older. (Id. at p. 1201.)
This bill allows a person who has had a 707(b) offense reduced
to a misdemeanor to obtain an automatic sealing of the
records, if the person otherwise qualifies. Out of the 30
offenses listed in 707(b), only a handful qualify as alternate
felony/misdemeanors. These include assault with a deadly
weapon or assault with force likely to produce great bodily
injury, shooting a firearm into an occupied dwelling, and
witness or victim intimidation. Therefore, the change
proposed by this bill is not as far-reaching as it initially
appears.
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It should be noted that currently both juvenile record sealing
statutes contain the same limitation on sealing 707(b)
offenses. However, this bill only amends the automatic
sealing provisions (Welf. & Inst. Code, § 786), thereby
creating an inconsistency in the statutes. Should Welfare and
Institutions Code section 781 also be amended?
4)Argument in Support: According to the California Attorneys
for Criminal Justice, "AB 1945 would allow some flexibility
for county child welfare agencies responsible for the
supervision and placement of a minor or dependent to access a
record that has been ordered sealed for the limited purpose of
determining an appropriate placement or service. ?
"AB 1945 reflects a progressive view that those juveniles who
have demonstrated their ability to overcome past wrongdoings
have earned the rights to have their criminal history sealed
from the view of others. This can give those individuals the
greatest opportunity to live productive lives in their
communities.
"We all know too well the tragic and sometimes life-long
consequences individuals suffer from having a criminal record.
Whether it is employment, housing, government benefits, or
any number of other areas, having a criminal conviction, even
as a minor, can do irreparable harm when trying to attain the
above. AB 1945 continues the step forward to remove obstacles
for youth."
5)Argument in Opposition: According to the California District
Attorneys Association, "The offenses for which juvenile
records cannot be sealed (found in WIC 707(b)) are among the
most serious and violent offenses that a person can be charged
with. The nature of these particular offenses is precisely
why the preservation of and access to those records of
criminal history are so critical to law enforcement. Under
the record sealing provisions enacted over the last two years,
even we as prosecutors are largely prohibited from accessing
sealed records.
"AB 1945, as currently drafted, would additionally allow for
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records to be sealed in cases where a person was convicted of
assault with a deadly weapon, assault with force likely to
cause great bodily injury, discharge of a firearm into an
occupied dwelling, and witness intimidation, just to name a
few.
"Just last year, California's Sixth District Court of Appeal
held that records of 707(b) offenses could not be sealed
simply because a court later reduced them to misdemeanors.
(In re G.Y. 234 Cal.App.4th 1196.) This bill would overturn
that decision."
6)Prior Legislation:
a) AB 666 (Stone), Chapter 368, Statutes of 2015, requires
records in the custody of law enforcement agencies, the
probation department, or the Department of Justice to also
be sealed, in a case where the court has ordered a juvenile
record sealed.
b) AB 989 (Cooper), Chapter 375, Statutes of 2015,
authorizes district attorneys and probation departments to
access sealed records for additional limited purposes.
c) SB 1038 (Leno), Chapter 249, Statutes of 2014, provides
for the automatic dismissal of juvenile petitions and
sealing of records, as specified, in cases where a juvenile
offender successfully completes probation.
REGISTERED SUPPORT / OPPOSITION:
Support
American Civil Liberties Union
California Attorneys for Criminal Justice
Commonweal
Opposition
California District Attorneys Association
Analysis Prepared
AB 1945
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by: Sandy Uribe / PUB. S. / (916) 319-3744