BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                    AB 1945


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          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.








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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  








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          by:              Sandy Uribe / PUB. S. / (916) 319-3744