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 Page 2 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).) AB 1945 Page 3 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 AB 1945 Page 4 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 AB 1945 Page 5 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 AB 1945 Page 6 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. AB 1945 Page 7 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 AB 1945 Page 8 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 Page 9 by: Sandy Uribe / PUB. S. / (916) 319-3744