BILL ANALYSIS Ó
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 1945 Hearing Date: June 14, 2016
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|Author: |Mark Stone |
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|Version: |May 31, 2016 |
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|Urgency: |No |Fiscal: |No |
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|Consultant:|AA |
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Subject: Juveniles: Sealing of Records
HISTORY
Source: California Welfare Directors' Association; Commonweal
The Juvenile Justice Project
Prior Legislation:AB 666 (Stone) - Chapter 368, Statutes of 2015
AB 989 (Cooper) - Chapter 375, Statutes of 2015
SB 1038 (Leno) - Chapter 249, Statutes of 2014
Support: American Civil Liberties Union of California;
California Attorneys for Criminal Justice; California
Youth Empowerment Network
Opposition:Legal Services for Prisoners with Children
Assembly Floor Vote: 77 - 0
PURPOSE
The purpose of this bill relating to the sealing of juvenile
records is to 1) clarify that existing sealing laws pertaining
to informal supervision or probation apply even if the person
with the juvenile records no longer is a minor; 2) allow the
county child welfare agency responsible for a minor or nonminor
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dependent to access these sealed records for the limited purpose
of determining an appropriate placement or service that has been
ordered by the court, providing that the information contained
in the sealed record and accessed by the child welfare worker or
agency may be shared with the court or with a service or
placement provider as necessary to implement the court-ordered
service or placement but otherwise remain confidential, as
specified; 3) explicitly state in statute that a juvenile case
file that is covered by or included in record sealing order
pursuant to Section 781 or 786 may not be inspected except as
specified by those sections, as specified; and 4) make
additional conforming cross-references in related sections.
Current law provides that, if a minor satisfactorily
completes<1> 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).)
This bill revises this language to clarify that the application
of this section is not limited to when a person is a minor, as
specified.
This bill would add that, "a person is eligible to have his or
her records sealed and petition dismissed pursuant to this
section after satisfactorily completing an informal program of
supervision or another term of probation described in
subdivision (a) while he or she was subject to the jurisdiction
of the juvenile court pursuant to Section 602."
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<1> For this purpose "satisfactory completion of an informal
program of supervision or another term of probation . . . shall
be deemed to have occurred if the person has no new findings of
wardship or conviction for a felony offense or a misdemeanor
involving moral turpitude during the period of supervision or
probation and if he or she has not failed to substantially
comply with the reasonable orders of supervision or probation
that are within his or her capacity to perform. The period of
supervision or probation shall not be extended solely for the
purpose of deferring or delaying eligibility for dismissal of
the petition and sealing of the records under this section."
(WIC § 786(c)(1).)
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Current law allows a record sealed under this section to be
accessed, inspected, or utilized under any of the following
circumstances:
By the prosecuting attorney, the probation department,
or the court for the limited purpose of determining whether
the minor is eligible and suitable for deferred entry of
judgment pursuant to Section 790 or is ineligible for a
program of supervision as defined in Section 654.3.
By the court for the limited purpose of verifying the
prior jurisdictional status of a ward who is petitioning
the court to resume its jurisdiction pursuant to
subdivision (e) of Section 388.
If a new petition has been filed against the minor for a
felony offense, by the probation department 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.
Upon a subsequent adjudication of a minor whose record
has been sealed under this section and a finding that the
minor is a person described by Section 602 based on the
commission of a felony offense, by the probation
department, the prosecuting attorney, counsel for the
minor, or the court for the limited purpose of determining
an appropriate juvenile court disposition. Access,
inspection, or use of a sealed record as provided under
this subparagraph shall not be construed as a reversal or
modification of the court's order dismissing the petition
and sealing the record in the prior case.
Upon the prosecuting attorney's motion, made in
accordance with Section 707, to initiate court proceedings
to determine the minor's fitness to be dealt with under the
juvenile court law, by the probation department, the
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prosecuting attorney, counsel for the minor, or the court
for the limited purpose of evaluating and determining the
minor's fitness to be dealt with under the juvenile court
law. Access, inspection, or use of a sealed record as
provided under this subparagraph shall not be construed as
a reversal or modification of the court's order dismissing
the petition and sealing the record in the prior case.
By the person whose record has been sealed, upon his or
her request and petition to the court to permit inspection
of the records.
The probation department of any county may access the
records for the limited purpose of meeting federal Title
IV-B and Title IV-E compliance. (WIC § 786(f).)
This bill additionally would provide that the "child welfare
agency of a county responsible for the supervision and placement
of a minor or nonminor dependent may access a record that has
been ordered sealed by the court under this section for the
limited purpose of determining an appropriate placement or
service that has been ordered for the minor or nonminor
dependent by the court. The information contained in the sealed
record and accessed by the child welfare worker or agency under
this subparagraph may be shared with the court or with a service
or placement provider as necessary to implement the
court-ordered service or placement but shall in all other
respects remain confidential. Access to the sealed record under
this subparagraph shall not be construed as a modification of
the court's order dismissing the petition and sealing the record
in the case."
Current law generally limits the inspection of juvenile case
files, as specified. (WIC § 827.)
This bill would provide that a "case file that is covered by or
included in an order of the court sealing a record pursuant to
Section 781 or 786 may not be inspected except as specified by
Section 781 or 786."
Current law generally limits the release of juvenile police
records in Los Angeles County, as specified. (WIC § 827.9.)
This bill would add technical cross-references to conform these
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provisions to other sections pertaining to the sealing of
records, as specified. This bill makes an additional conforming
cross-reference in Welfare and Institutions Code section 828,
concerning information gathered by a law enforcement agency
relating to the taking of a minor into custody, to sealing
provisions, as specified.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized
legislation referred to its jurisdiction for any potential
impact on prison overcrowding. Mindful of the United States
Supreme Court ruling and federal court orders relating to the
state's ability to provide a constitutional level of health care
to its inmate population and the related issue of prison
overcrowding, this Committee has applied its "ROCA" policy as a
content-neutral, provisional measure necessary to ensure that
the Legislature does not erode progress in reducing prison
overcrowding.
On February 10, 2014, the federal court ordered California to
reduce its in-state adult institution population to 137.5% of
design capacity by February 28, 2016, as follows:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and,
137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as "of
December 9, 2015, 112,510 inmates were housed in the State's 34
adult institutions, which amounts to 136.0% of design bed
capacity, and 5,264 inmates were housed in out-of-state
facilities. The current population is 1,212 inmates below the
final court-ordered population benchmark of 137.5% of design bed
capacity, and has been under that benchmark since February
2015." (Defendants' December 2015 Status Report in Response to
February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge
Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One
year ago, 115,826 inmates
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were housed in the State's 34 adult institutions, which amounted
to 140.0% of design bed capacity, and 8,864 inmates were housed
in out-of-state facilities. (Defendants' December 2014 Status
Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM
DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn.
omitted).)
While significant gains have been made in reducing the prison
population, the state must stabilize these advances and
demonstrate to the federal court that California has in place
the "durable solution" to prison overcrowding "consistently
demanded" by the court. (Opinion Re: Order Granting in Part and
Denying in Part Defendants' Request For Extension of December
31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,
Coleman v. Brown, Plata v. Brown (2-10-14). The Committee's
consideration of bills that may impact the prison population
therefore will be informed by the following questions:
Whether a proposal erodes a measure which has contributed
to reducing the prison population;
Whether a proposal addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy;
Whether a proposal addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a proposal corrects a constitutional problem or
legislative drafting error; and
Whether a proposal proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy.
COMMENTS
1.Stated Need for This Bill
The author states:
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SB 1038 (Leno), passed in 2014, and AB 666 (Stone),
passed in 2015, both make it easier for juvenile
records to be sealed under WIC Sec. 786. While
juvenile sealing already existed under WIC 781, the
process has been costly and previously necessitated an
individual to hire a lawyer and then petition for a
sealing of his or her juvenile record. SB 1038 and AB
666 provided an alternative and largely "automatic"
process, requiring the court to seal records on its
own initiative in non-707 offenses and upon
satisfactory completion of probation. The legal
effect of sealing and dismissal is that the offense is
deemed not to have occurred as such by job and college
applicants.
WIC 786 specifies limited circumstances under which a
record that has been ordered sealed may be accessed,
inspected or utilized by prosecuting attorneys,
probation departments or the courts. Child welfare
agencies are not among those listed entities, and as a
result, social workers are unable to review sealed
juvenile court records in order to determine
appropriate placement and services.
2.What This Bill Would Do
Some juvenile record sealing laws generally have been
streamlined over the last few years. This bill refines these
revisions further to 1) clarify that existing sealing laws
pertaining to informal supervision or probation apply even if
the person with the juvenile records no longer is a minor; 2)
allow the county child welfare agency responsible for a minor or
nonminor dependent to access these sealed records for the
limited purpose of determining an appropriate placement or
service that has been ordered by the court, providing that the
information contained in the sealed record and accessed by the
child welfare worker or agency may be shared with the court or
with a service or placement provider as necessary to implement
the court-ordered service or placement but otherwise remain
confidential, as specified; 3) explicitly state in statute that
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a juvenile case file that is covered by or included in record
sealing order pursuant to Section 781 or 786 may not be
inspected except as specified by those sections, as specified;
and 4) make additional conforming cross-references in related
sections.
3.Background: 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. (WIC § 826.) The person
of record also may petition to destroy records retained by
agencies other than the court. (WIC § 826, subd. (b).) The
request must be granted unless good cause is shown for retention
of the records. (WIC § 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." (WIC § 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. (WIC § 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. (WIC § 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. (WIC § 786.) When the record is sealed, the arrest in
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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 IV-E, and for
purposes of determining a minor's prior program referrals and
risk-needs assessments.
4.Opposition
Legal Services for Prisoners with Children opposes this bill,
stating in part:
Although the intent of this bill is to help young
people, accessing their sealed court records in order
to meet that goal is not an appropriate means. Once a
record is sealed it should be treated as such.
Increasing access to these records may increase stigma
against the young person as well as not give real
information about the situation or actions of the
young person. . . . We recommend that employees of
child welfare agencies have conversations with the
young people they are seeking to serve in order to
ascertain what their needs are. . . .
5.Technical Consideration
As currently in print, this bill proposes language amending
subdivision (c) of Welfare and Institutions Code section 786,
which generally pertains to the sealing of juvenile informal
probation and probation records. The author may wish to review
this proposed added language, which appears to be intended to
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perfect the statute's application to persons with these juvenile
records who no longer are minors, to ensure it clearly achieves
that clarification. In the alternative, the author may wish to
delete that language in light of the very clear clarification
this bill makes to subdivision (a) of that section.
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