BILL ANALYSIS
AB 168
Page 1
Date of Hearing: March 31, 2009
ASSEMBLY COMMITTEE ON JUDICIARY
Mike Feuer, Chair
AB 168 (Nava) - As Amended: March 19, 2009
As Proposed to be Amended
SUBJECT : JUVENILE CASE FILES: CIVIL COMMITMENT PROCEEDINGS
KEY ISSUE : SHOULD CERTAIN STATE OFFICIALS HAVE ACCESS TO
OTHERWISE SEALED JUVENILE CRIME RECORDS IN CIVIL COMMITMENT
PROCEEDINGS UNDER THE SEXUALLY VIOLENT PREDATOR LAW?
FISCAL EFFECT : As currently in print this bill is keyed
fiscal.
SYNOPSIS
Some juvenile crime records may now be sealed by court order
after the passage of time. Records regarding other offenses,
however, cannot be sealed. Under this bill, the Department of
Corrections and the Department of Mental Health, as well as
district attorneys, would be permitted to obtain and use
previously-sealed records for use in civil commitment
proceedings under the Sexually Violent Predator (SVP) law.
Specifically, the bill would allow access, for the first time,
to sealed juvenile records involving specified sex crimes. This
would effectively reverse a 2007 court decision holding that
such court-sealed records may not be accessed as the law is
currently written. Supporters argue that the records of
offenses that would be made available for inspection under this
bill would be only a slight expansion of the documents currently
available to the relevant agencies for SVP proceedings.
Supporters state that in order to be committed the offender must
suffer from a currently diagnosable mental disorder making it
likely that the person would commit a sexually violent predatory
crime if released into the community. Evidence from the
respondent's juvenile records is therefore potentially relevant
in many SVP cases, supporters argue, in order to ascertain
whether or not the respondent's illicit conduct was isolated or
an indication of a legally recognized mental disorder making the
individual eligible for SVP commitment. Opponents argue that
there are good reasons for the current practice of sealing
juvenile court records in light of the temporary lack of
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judgment children often exhibit. They further argue that the
bill will significantly increase the number of court trials and
appeals by significantly raising the stakes of conviction to
which the minor might otherwise stipulate, as they frequently do
now because they are assured that the juvenile court record will
be sealed. Finally, opponents argue that the bill should at
least be limited to new convictions so that juveniles are not
unfairly penalized for prior stipulations entered with the
understanding that the records would remain sealed. This
measure is substantially the same as a bill by the author last
year, which was held in the Appropriations Committee.
SUMMARY : Authorizes the Department of Corrections and
Rehabilitation (CDCR), the Department of Mental Health (DMH),
and the district attorney to access court-sealed records of
sustained juvenile petitions for specified sex offenses of a
person 14 years or older, in an action, investigation or
proceeding based on the sexually violent predator (SVP) law, as
specified. Specifically, this bill :
1) Allows CDCR, DMH and prosecutors to obtain court-sealed
records of sustained juvenile petitions for specified
violations of the SVP law.
2) Provides that in any civil proceeding based on SVP laws,
the court as well as counsel for the parties, any jury, and
any other person authorized by the court may obtain and use
these records.
3) Adds the offenses specified in this bill to the existing
exceptions related to the destruction of juvenile records upon
reaching the age of 38, and allows inspection of juvenile case
files in SVP cases, as specified.
EXISTING LAW :
1)Provides for a petition to seal specified juvenile crime
records after the passage of specific periods, after notice to
and testimony by the district attorney of the county and the
county probation officer if he or she is not the petitioner,
and the district attorney or probation officer or any of their
deputies or any other person having relevant evidence. If,
after hearing, the court finds that since the termination of
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jurisdiction or action pursuant to existing law, the person
has not been convicted of a felony or of any misdemeanor
involving moral turpitude, and that rehabilitation has been
attained to the satisfaction of the court, it shall order all
records, papers, and exhibits in the person's case in the
custody of the juvenile court sealed, including the juvenile
court record, minute book entries, and entries on dockets, and
any other records relating to the case in the custody of the
other agencies and officials as are named in the order. 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 properly reply accordingly to any
inquiry about the events, the records of which are ordered
sealed. (Welfare and Institutions Code (WIC) Section 781(a).)
2)In any case in which a ward of the juvenile court is subject
to the registration requirements set forth in provisions of
law related to sex offender registration, a court in ordering
the sealing of the juvenile records of the person, also shall
provide in the order that the person is relieved from the
registration requirement and for the destruction of all
registration information in the custody of the Department of
Justice and other agencies and officials. (WIC Section
781(a).)
3)Provides, however, that notwithstanding any other provision of
law, the court shall not order the person's records sealed in
any case in which the person has been found by the juvenile
court to have committed specified offenses when he or she had
attained 14 years of age or older. (WIC Section 781(a).)
COMMENTS : According to the author, "AB 168 would authorize
access to records of SVP predicate offenses, as defined in
Welfare and Institution Code 6600(b), committed when the
person attained 14 years of age or older. Under existing law,
courts are already prohibited from sealing most SVP predicate
offenses because they are cross listed as Welfare & Institutions
Code 707(b) offenses. AB 168 will allow access to sealed
juvenile records involving SVP predicate offenses such as rape
by threat of future retaliation and continuous sexual abuse of a
child for the purposes of a sexual violent predator commitment
hearing. This law will only apply where the respondent has
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already been convicted as an adult of an SVP offense. SVP
predicate offenses are egregious crimes which show significant
indications of an individual's propensities to engage in future
sexually violent crimes. Records of these offenses contain
sociological and psychological reports that would be a valuable
tool for inspection and use in a SVP proceeding. With this
information, the Department of Mental Health, the Department of
Corrections and Rehabilitation, and petitioning attorneys would
be in a better position to evaluate the sexual and violent
propensity of an individual."
The author states, "In 2007, the Court of Appeals decided In re
James H, (2007)154 Cal.App.4th 1078 that the sealed juvenile
records of a respondent's sex crimes could not be disclosed to
the Board of Parole Hearings for sexually violent predator (SVP)
evaluation purposes except in limited enumerated circumstances.
This case has prevented the Department of Mental Health, the
Department of Corrections and Rehabilitation, and petitioning
attorneys from accessing highly probative information that would
assist in assessments to determine whether or not an individual
is eligible for the SVP civil commitment program. This bill
will allow these entities to access juvenile records of SVP
predicate crimes during an assessment hearing if they have
committed one as an adult."
SVP Law and "Sexually Violent Offenses." California's SVP Act
became effective January 1, 1996. The Act created a new civil
commitment for SVPs. The Legislature disavowed any "punitive
purpose" and declared its intent to establish "civil commitment"
proceedings in order to provide "treatment" to mentally
disordered individuals who cannot control sexually violent
criminal behavior. (See AB 888 (Rogan), Chapter 763, Stats.
1995.) The Legislature also made clear that despite their
criminal records persons eligible for commitment and treatment
as SVPs are to be viewed "not as criminals, but as sick
persons." (WIC Section 6250.) Consistent with these remarks,
the SVP Act was placed in the WIC, surrounded by other schemes
concerned with the care and treatment of various mentally ill
and disabled groups. (See WIC Section 5000
(Lanterman-Petris-Short Act) and WIC Section 6500 (Mentally
Retarded Persons Law).)
The SVP law tries to ensure that sexual predators suffering from
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mental disorders and deemed likely to re-offend are treated in a
secure facility through a civil commitment process. The CDCR
and the Board of Parole Hearings (BPH) screen cases to determine
if they meet the criteria specified in the statute. If so, the
prisoner is referred to the DMH for clinical evaluation by two
clinical evaluators. If both clinical evaluators find that the
prisoner meets the criteria, the case is referred to the county
district attorney who may file a petition for civil commitment.
Once a petition has been filed, a judge holds a probable cause
hearing; if probable cause is found, the prisoner is scheduled
for a trial. If the jury finds beyond a reasonable doubt that
the offender meets the statutory criteria, the prisoner may then
be civilly committed to a DMH facility for treatment.
The SVP law was substantially amended by Proposition 83
("Jessica's Law") operative on November 7, 2006 and SB 1128
(Alquist), Chapter 337, Stats. 2006. Existing law now states a
person committed as a SVP may be held for an indeterminate term
upon commitment. Review of the offender's status shall be
conducted on an annual basis, but he or she may not be released
until the DMH determines the offender no longer meets the
definition of a SVP or less restrictive placement is
appropriate. (WIC Section 6605(b).) The definition of
"sexually violent offenses," was also expanded by Jessica's Law.
The stated intent of this bill is to conform the offenses
listed in Jessica's Law to provisions of law related to serious
juvenile offenders so as to access prior juvenile records for
the purposes of SVP evaluations and commitments.
Current Law Related to Sealed Juvenile Records. Existing law
allows a court to seal a juvenile criminal record when the
offender reaches a certain age, with some exceptions. The court
will not seal a juvenile record where the respondent was held to
answer for a crime listed in WIC Section 707(b). (WIC Section
781(a).) These are offenses believed to be of a more serious
nature for which a juvenile 14 years of age or older may be
tried in adult court. Some of those offenses include rape,
sodomy, child molestation and oral copulation when these
offenses are committed by force, violence or threat of great
bodily injury. (WIC Section 707(b).) As mentioned, a juvenile
held to answer for those offenses, may not have those records
sealed and are subject to examination in specified
circumstances.
As the author's statement points out, there are few crimes that
are in the definition of "sexually violent offense" in the SVP
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law that are not on the WIC Section 707(b) list. Those offenses
are sex offenses, as specified, committed through the use of the
threat of future retaliation. Because those offenses are not on
the list of offenses for which the court may not seal the record
of conviction, district attorneys, DMH and CDCR are not able to
use those offenses to show the offender is a SVP. The Court has
reinforced this interpretation in the case of In re James H.
(2007) 154 Cal.App. 4th 1078. In that case, the inmate argued
that the juvenile court exceeded its authority when it provided
the BPH with copies of sealed records that the juvenile court
had previously ordered sealed. The court agreed and stated,
among other things, that there was no statutory authorization
for the release of the sealed records in that case because it
did not fall within one of the two specified exceptions. The
court stated, "[Welfare and Institutions Code Section 781] goes
on to provide two narrow exceptions to the rule that a sealed
record is not open to inspection: when there is good cause to
unseal the records so they can be admitted into evidence in a
defamation action (internal citation omitted) and when
information about an adjudication has been provided to the
Department of Motor Vehicles and is disclosed by that agency to
an authorized insurer for the limited purpose of determining
insurance eligibility and rates." (In Re James H., at 1083.)
"It is questionable whether the appellant had adequate notice
and an opportunity to be heard. The Legislature could have
written the SVP Act to specifically allow the use of such
records in sexually violent predator proceedings or amended
781 to do so, but it did not. If the Legislature determines
that sealed records should be available for this purpose, it may
amend section 781 or the SVP Act to so permit their release."
(In Re James H., at 1088.)
ARGUMENTS IN SUPPORT : The Los Angeles County District
Attorney's Office states: "Under existing law, courts are
already prohibited from sealing most SVP predicate offenses in
the first place because they are cross-listed as Welfare &
Institutions Code 707(b) offenses. (See Welfare &
Institutions Code 781.) In effect, the records of offenses
that would be made available for inspection under this proposal
would only be a slight expansion of the documents currently
available to the relevant agencies for SVP proceedings. AB 168
would allow access, for the first time, to sealed juvenile
records involving the sex crimes of continuous child molestation
and three other SVP predicate offenses - rape, sodomy, and oral
copulation - committed by the threat of future 'retaliation'.
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In addition, assault with the intent to commit specified
forcible sex crimes would be covered."
The LA District Attorney's Office further states, "SVP predicate
offenses are egregious crimes which show significant indications
of an individual's propensities to engage in sexually violent
crimes and would be a valuable tool for inspection and use in a
SVP proceeding. With this information, the Department of Mental
Health, the Department of Corrections and Rehabilitation, and
petitioning attorneys would be in a better position to evaluate
the sexual and violent propensity of an individual. The
additional information would help these agencies determine if
the individual should or should not be committed into the SVP
program. AB 168 would also amend existing law to prohibit
unlawful disclosure of juvenile records by the reviewing and
committing agencies involved in a SVP procedure. Violation of
this prohibition would be a misdemeanor. AB 168 provides for
very limited access to sealed juvenile records in order to
improve evaluations under the sexually violent predator law. It
is important pubic safety legislation."
ARGUMENTS IN OPPOSITION : According to the Legal Services for
Prisoners with Children, "Serious sexual offenses committed by a
juvenile are generally transferred to adult court. In many
cases, sexual offenses which remain in juvenile court are less
serious and/or the minor is very young. Considering the
hormones of teens and pre-teens can be powerful, but passing, it
is for good reason that less serious sexual conduct of a minor
(often with another minor) remains sealed in juvenile court."
They state further, "In our experience, we find that minors are
often encouraged or even pressured to 'stipulate' to
allegations, rather than fight disputed or dubious charges.
Minors and their parents are often told that they need not worry
about a juvenile court record because it will be sealed.
Additionally, the standards to prove an offense and obtain a
conviction in juvenile court are less stringent than in adult
court. For these reasons, a juvenile court finding does not
have the same reliability as an adult court conviction. If
enacted, this bill would increase the number of juvenile court
trials and appeals because it significantly raises the stakes
for the minor, costing counties and the state more money. This
is counter to the underlying purposes of juvenile court.
Finally, changing the rules after the fact is simply unfair. We
should not treat children this way."
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Author's Proposed Technical Amendments . In order to correct
drafting and other errors, the author judiciously proposes to
amend the bill so that it conforms to the amendments made by
this Committee to the similar measure by the author last year:
(2) In any investigation, action, or proceeding based on
the
sexually violent predator laws (Article 4 (commencing with
Section
6600) of Chapter 2 of Part 2 of Division 6), a court, upon
a
showing of good cause, may permit the Department of
Corrections
and Rehabilitation, the State Department of Mental Health,
and
the attorney petitioning for commitment, or their agents,
may to
obtain and use records specified in paragraph (3) relevant
to the
civil commitment proceeding as determined by the court, in
camera, that have been sealed pursuant to this section,
provided
that the subject of the investigation, action or proceeding
has been
convicted of a sexually violent offense, as defined in
subdivision
(b) of Section 6600 and in Section 6600.1 committed when
the person
had attained 14 years of age or older. In any civil
commitment proceeding
based on the sexually violent predator laws, the court,
counsel for the parties,
any jury, and any other person authorized by the court, may
obtain and use
these records. The records shall remain confidential and
shall only be
used for the purpose of investigation, action, or
proceedings under
the sexually violent predator laws and for subsequent
treatment
by the State Department of Mental Health. Upon the judgment
in
the action or proceeding becoming final, the court shall
order the
records sealed.
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(3) The records subject to paragraph (2) are limited to
those pertaining to sustained petitions for a violation of
an offense described in subdivision (b) of Section 6600, as
that section existed on January 1, 2009.
Prior Related Legislation. AB 2409 (Nava) of 2008 was a
substantially similar measure, which passed this Committee but
was held in Assembly Appropriations.
Pending Related Legislation. AB 337 (Torres) would require the
court to provide to every person who has reached 18 years of age
and who is eligible to have his or her records sealed with a
written notification containing a clear explanation of that
person's rights to have his or her records sealed and destroyed.
That measure has been referred to the Public Safety Committee.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County District Attorney's Office (sponsor)
California District Attorneys Association
Crime Victims United of California
Peace Officers Research Association of California (PORAC)
Opposition
Legal Services for Prisoners with Children
Analysis Prepared by : Kevin G. Baker / JUD. / (916) 319-2334