BILL ANALYSIS �
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair S
2013-2014 Regular Session B
1
0
3
SB 1038 (Leno) 8
As Amended March 28, 2014
Hearing date: April 8, 2014
Welfare and Institutions Code
AA:mc
JUVENILE JUSTICE:
DISMISSAL OF PETITIONS AND SEALING OF RECORDS
HISTORY
Source: California Public Defenders Association
Prior Legislation: None
Support: Lawyers' Committee for Civil Rights of the San
Francisco Bay Area; California Partnership; East Bay
Community Law Center; East Bay Children's Law Offices;
All of Us or None; Legal Services for Prisoners with
Children; Juvenile Court Judges of California; Ella
Baker Center for Human Rights; National Employment Law
Project; Commonweal; The Juvenile Justice Program;
Youth Law Center; California Attorneys for Criminal
Justice
Opposition:California State Sheriffs' Association (unless
amended); California District Attorneys Association
KEY ISSUE
(More)
SB 1038 (Leno)
PageB
SHOULD THE JUVENILE LAW BE REVISED TO EXPEDITE THE DISMISSAL OF
JUVENILE PETITIONS AND THE SEALING OF JUVENILE RECORDS IN
NON-707(B) CASES?
PURPOSE
The purpose of this bill is to 1) provide for the automatic
dismissal of juvenile petitions and sealing of records in
non-707(b) cases where a juvenile offender successfully
completes probation, as specified; and 2) authorize the juvenile
court to dismiss a delinquency petition after a person reaches
the age of 21, as specified.
Under current law , the purpose of juvenile court law "is to
provide for the protection and safety of the public and each
minor under the jurisdiction of the juvenile court and to
preserve and strengthen the minor's family ties whenever
possible, removing the minor from the custody of his or her
parents only when necessary for his or her welfare or for the
safety and protection of the public." (Welfare and Institutions
Code ("WIC") � 202.)
Minors under the jurisdiction of the juvenile court
as a consequence of delinquent conduct shall, in
conformity with the interests of public safety and
protection, receive care, treatment, and guidance
that is consistent with their best interest, that
holds them accountable for their behavior, and that
is appropriate for their circumstances. This
guidance may include punishment that is consistent
with the rehabilitative objectives of this chapter.
(Id.)
Current law expressly defines the scope and nature of
"punishment" in the juvenile court:
(More)
SB 1038 (Leno)
PageC
As used in this chapter, "punishment" means the
imposition of sanctions. It shall not include a
court order to place a child in foster care as
defined by Section 727.3. Permissible sanctions may
include the following:
(1) Payment of a fine by the minor.
(2) Rendering of compulsory service
without compensation performed for the
benefit of the community by the minor.
(3) Limitations on the minor's
liberty imposed as a condition of probation
or parole.
(4) Commitment of the minor to a
local detention or treatment facility, such
as a juvenile hall, camp, or ranch.
(5) Commitment of the minor to the
Department of the Youth Authority.
"Punishment," for the purposes of this chapter, does
not include retribution. (Id.)
Current law provides that when a minor is adjudged a delinquent
ward of the court, "the court may make any and all reasonable
orders for the care, supervision, custody, conduct, maintenance,
and support of the minor, . . ." (WIC � 727.)
Current law generally authorizes courts to order minors subject
to a delinquency petition with a period of informal or formal
probation, as specified. (WIC �� 654.2, 725 and 727.)
Current law , further authorizes a process of "deferred entry of
judgment" ("DEJ") in juvenile court cases, which generally
requires the court to dismiss charges against a minor "upon the
successful completion of the terms of probation, the positive
recommendation of the probation department, and the motion of
the prosecuting attorney," for minors subject to DEJ, as
specified. (WIC � 790 et seq.)
Current law provides that a judge of the juvenile court in which
(More)
SB 1038 (Leno)
PageD
a petition was filed, at any time before the minor reaches the
age of 21 years, may dismiss the petition or may set aside the
findings and dismiss the petition if the court finds that the
interests of justice and the welfare of the minor require such
dismissal, or if it finds that the minor is not in need of
treatment or rehabilitation. The court shall have jurisdiction
to order such dismissal or setting aside of the findings and
dismissal regardless of whether the minor is, at the time of
such order, a ward or dependent child of the court.
This bill would delete the requirement that these dismissals be
made before a minor reaches the age of 21.
Current law prohibits the sealing or destruction of juvenile
records "in any case in which the person has been found by the
juvenile court to have committed an offense listed in
subdivision (b) of Section 707 when he or she had attained 14
(More)
SB 1038 (Leno)
PageE
years of age or older." <1> (Welfare and Institutions Code
---------------------------
<1> WIC Section 707 (b) offenses are the following: (1)
murder; (2) arson, as specified; (3) robbery; (4) rape with
force or violence or threat of great bodily harm; (5) sodomy by
force, violence, duress, menace, or threat of great bodily harm;
(6) lewd or lascivious act with a child under 14, as specified;
(7) oral copulation by force, violence, duress, menace, or
threat of great bodily harm; (8) forcible sexual penetration, as
specified; (9) kidnapping for ransom; (10) kidnapping for
purpose of robbery; (11) kidnapping with bodily harm; (12)
attempted murder; (13) assault with a firearm or destructive
device; (14) assault by any means of force likely to produce
great bodily injury; (15) discharge of a firearm into an
inhabited or occupied building; (16) specified crimes against
older or physically disabled persons, as specified; (17)
specified firearm offenses; (18) any felony offense in which the
minor personally used a weapon, as specified; (19) specified
felonies involving victim intimidation; (20) manufacturing,
compounding, or selling one-half ounce or more of any salt or
solution of a controlled substance, as specified; (21) any
violent felony, as specified; (22) escape, by the use of force
or violence, from any county juvenile hall, home, ranch, camp,
or forestry camp, as specified, where great bodily injury is
intentionally inflicted upon an employee of the juvenile
facility during the commission of the escape; (23) torture, as
specified; (24) aggravated mayhem, as specified; (25)
carjacking, as specified, while armed with a dangerous or deadly
weapon; (26) kidnapping, as specified; (27) kidnapping relating
to carjacking, as specified; (28) specified offenses involving
firearms in vehicles; (29) specified crimes involving explosive
devices; and (30) voluntary manslaughter, as specified.
(More)
SB 1038 (Leno)
PageF
("WIC") � 781(a); (d)<2>.)
Current law otherwise generally authorizes a petition to seal
juvenile delinquency court records five years or more after the
persons was cited, court jurisdiction terminated, once the
person has reached 18 years of age, as specified. (WIC �
781(a).)
Current law generally requires the juvenile court to notify the
district attorney, the county probation officer, and enumerated
---------------------------
<2> Section 781(d) specifically provides: "Unless for good
cause the court determines that the juvenile court record shall
be retained, the court shall order the destruction of a person's
juvenile court records that are sealed pursuant to this section
as follows: five years after the record was ordered sealed, if
the person who is the subject of the record was alleged or
adjudged to be a person described by Section 601; or when the
person who is the subject of the record reaches the age of 38 if
the person was alleged or adjudged to be a person described by
Section 602,
except that if the subject of the record was found to be a
person described in Section 602 because of the commission of an
offense listed in subdivision (b), of Section 707, when he or
she was 14 years of age or older, the record shall not be
destroyed. Any other agency in possession of sealed records may
destroy its records five years after the record was ordered
sealed." See also WIC � 826.
(More)
SB 1038 (Leno)
PageG
others having relevant evidence, as specified. (Id.)
Current law generally provides that if, after hearing, the court
finds that 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," the court shall order all records, papers, and exhibits
in the person's case in the custody of the juvenile court
sealed, as specified. (Id.)
Current law provides that "(o)nce 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." (Id.)
Current law sets forth additional provision concerning the
treatment of juvenile records, including the destruction of
sealed juvenile records. (Id.)
Current law requires that, starting next year, each court and
probation department shall ensure that information regarding the
eligibility for and the procedures to request the sealing and
destruction of records pursuant to this section be provided to
juveniles before the juvenile court, as specified. (WIC �
781(g).)
This bill would provide that, if a minor satisfactorily
completes informal or formal probation, as specified, for any
offense not listed in subdivision (b) of Section 707, the court
shall order the petition dismissed, and the arrest upon which
the judgment was deferred shall be deemed not to have occurred.
This bill further would require the court to order sealed all
records pertaining to that dismissed petition in the custody of
the juvenile court, except that the prosecuting attorney and the
probation department of any county shall have access to these
records after they are sealed for the limited purpose of
determining whether the minor is eligible for deferred entry of
judgment pursuant to Section 790.
(More)
SB 1038 (Leno)
PageH
This bill further would provide that the court "may access a
file that has been sealed under these provisions for the limited
purpose of verifying the prior jurisdictional status of a ward
who is petitioning the court to resume its jurisdiction relating
to specified dependency proceedings relating to foster care
placement and transition jurisdiction.<3> "This access shall
not be deemed an unsealing of the record and shall not require
notice to any other entity."
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the last several years, severe overcrowding in California's
prisons has been the focus of evolving and expensive litigation
relating to conditions of confinement. On May 23, 2011, the
United States Supreme Court ordered California to reduce its
prison population to 137.5 percent of design capacity within two
years from the date of its ruling, subject to the right of the
state to seek modifications in appropriate circumstances.
Beginning in early 2007, Senate leadership initiated a policy to
hold legislative proposals which could further aggravate the
prison overcrowding crisis through new or expanded felony
prosecutions. Under the resulting policy, known as "ROCA"
(which stands for "Receivership/ Overcrowding Crisis
Aggravation"), the Committee held measures that created a new
felony, expanded the scope or penalty of an existing felony, or
otherwise increased the application of a felony in a manner
which could exacerbate the prison overcrowding crisis. Under
these principles, ROCA was applied as a content-neutral,
provisional measure necessary to ensure that the Legislature did
not erode progress towards reducing prison overcrowding by
passing legislation, which would increase the prison population.
In January of 2013, just over a year after the enactment of the
historic Public Safety Realignment Act of 2011, the State of
---------------------------
<3> Specifically, subdivision (e) of Welfare and Institutions
Code section 388.
(More)
SB 1038 (Leno)
PageI
California filed court documents seeking to vacate or modify the
federal court order requiring the state to reduce its prison
population to 137.5 percent of design capacity. The State
submitted that the, ". . . population in the State's 33 prisons
has been reduced by over 24,000 inmates since October 2011 when
public safety realignment went into effect, by more than 36,000
inmates compared to the 2008 population . . . , and by nearly
42,000 inmates since 2006 . . . ." Plaintiffs opposed the
state's motion, arguing that, "California prisons, which
currently average 150% of capacity, and reach as high as 185% of
capacity at one prison, continue to deliver health care that is
constitutionally deficient." In an order dated January 29,
2013, the federal court granted the state a six-month extension
to achieve the 137.5 % inmate population cap by December 31,
2013.
The Three-Judge Court then ordered, on April 11, 2013, the state
of California to "immediately take all steps necessary to comply
with this Court's . . . Order . . . requiring defendants to
reduce overall prison population to 137.5% design capacity by
December 31, 2013." On September 16, 2013, the State asked the
Court to extend that deadline to December 31, 2016. In
response, the Court extended the deadline first to January 27,
2014 and then February 24, 2014, and ordered the parties to
enter into a meet-and-confer process to "explore how defendants
can comply with this Court's June 20, 2013 Order, including
means and dates by which such compliance can be expedited or
accomplished and how this Court can ensure a durable solution to
the prison crowding problem."
The parties were not able to reach an agreement during the
meet-and-confer process. As a result, the Court ordered
briefing on the State's requested extension and, on February 10,
2014, issued an order extending the deadline to reduce the
in-state adult institution population to 137.5% design capacity
to February 28, 2016. The order requires the state to meet the
following interim and final population reduction benchmarks:
143% of design bed capacity by June 30, 2014;
141.5% of design bed capacity by February 28, 2015; and
(More)
SB 1038 (Leno)
PageJ
137.5% of design bed capacity by February 28, 2016.
If a benchmark is missed the Compliance Officer (a position
created by the February 10, 2016 order) can order the release of
inmates to bring the State into compliance with that benchmark.
In a status report to the Court dated February 18, 2014, the
state reported that as of February 12, 2014, California's 33
prisons were at 144.3 percent capacity, with 117,686 inmates.
8,768 inmates were housed in out-of-state facilities.
The ongoing prison overcrowding litigation indicates that prison
capacity and related issues concerning conditions of confinement
remain unresolved. While real gains in reducing the prison
population have been made, even greater reductions may be
required to meet the orders of the federal court. Therefore,
the Committee's consideration of ROCA bills -bills that may
impact the prison population - will be informed by the following
questions:
Whether a measure erodes realignment and impacts the
prison population;
Whether a measure addresses a crime which is directly
dangerous to the physical safety of others for which there
is no other reasonably appropriate sanction;
Whether a bill corrects a constitutional infirmity or
legislative drafting error;
Whether a measure proposes penalties which are
proportionate, and cannot be achieved through any other
reasonably appropriate remedy; and,
Whether a bill addresses a major area of public safety
or criminal activity for which there is no other
reasonable, appropriate remedy.
COMMENTS
1. Stated Need for This Bill
(More)
SB 1038 (Leno)
PageK
The author states:
Current law allows the automatic sealing of certain
juvenile records upon the completion of a
"probationary term" imposed by the court. These
automatic provisions apply to felonies as well as
misdemeanors. For other cases, including less serious
offenses, the youth must wait until they are 18 years
old or five years after jurisdiction is terminated
before they can even file a petition to seal their
record. Because the petition to seal requires the
involvement of the probation office, the prosecutor,
and the court, there are often lengthy delays as well
as significant costs associated with sealing.
Moreover, many youth are unaware of their right to
petition, or may have moved out of state and are
unable to complete the process.
Current law also authorizes a court to approve a
dismissal petition, or set aside the findings and
dismiss the charges in a delinquency case, if the
court finds it is in the interest of justice and the
welfare of the minor, or if it finds the minor is not
in need of additional treatment or rehabilitation.
The court may only do so, however, prior to the time a
minor turns 21.
The fact that many youth are unaware of their right to
seal their juvenile record, or are unable to complete
the process due to procedural, logistical or financial
barriers is a serious shortcoming of our juvenile
justice system. The same can be said of the arbitrary
age limit of 21 for filing a dismissal petition. SB
1038 seeks to remedy these shortcomings in current law
by streamlining the process for sealing a juvenile's
record and removing the arbitrary age limit of 21 for
filing a dismissal petition.
In doing so, this bill will further the dual purposes
of the juvenile justice system: rehabilitation and
(More)
SB 1038 (Leno)
PageL
reintegration, by better ensuring that juveniles have
a clear pathway to clearing their records, when in
compliance with existing statutory and probationary
requirements. The bill recognizes the established
role of California's Juvenile Courts as institutions
of reform, not punishment, and will help individuals
with juvenile records to find and hold jobs, and
become fully functioning members of society.
Overwhelming research in the field of adolescent
behavior indicates that developmental changes
occurring during adolescence often make it difficult
for juveniles to properly understand the consequences
of their actions. It is therefore essential that as
many youth as possible receive a second chance at
rehabilitation, since young people can often turn
their lives around before it is too late. SB 1038
will give them a second chance at a clean slate when
pursuing higher education or entering the workforce,
two of the best ways to ensure that a youthful
offender does not return to the care of the State as
an adult criminal later in life.
2. What This Bill Would Do
This bill would provide for the automatic dismissal of juvenile
petitions, and sealing of related records, in cases where the
minor satisfactorily completed their term of probation. The
bill expressly excludes from these provisions any offense
described in Welfare and Institutions Code section 707(b),
enumerated in footnote (1) above. The bill also removes the age
ceiling (currently 21 years of age) in the current law
authorizing courts to dismiss juvenile petitions.
3. Arguments in Support
(More)
SB 1038 (Leno)
PageM
As explained by the author in Comment (1) of this analysis,
proponents submit this bill furthers the purpose of the juvenile
court by ensuring that the petitions and records of youthful
offenders who successfully complete terms of probation are
dismissed and sealed. For example, Commonweal argues:
A primary purpose of the Juvenile Court law in
California is to provide for the rehabilitation of
juveniles with delinquency offense records.
Successful completion of diversion or probation should
mark a point in time in which the minor earns a clean
start - as to family, school, community and
employment. Dismissal and record sealing provide the
best guarantee that a minor who completes his or her
justice-system obligations can resume a normal path of
development. . . .
SB 1038 is consistent with the emerging doctrine of
"developmental differences" adopted by the US Supreme
Court, distinguishing culpability and punishments
appropriate for those under the age of majority from
those appropriate for adults. The auto-sealing of
delinquency records in non-707cases is a
developmentally appropriate change that will promote
social and economic reintegration by former court
wards, contributing both to personal success and to
public safety.
4. Argument in Opposition
The California State Sheriffs' Association states:
Senate Bill 1038 mandates a juvenile court to dismiss
a petition and seal all records whenever a juvenile
was granted a term of probation and in all cases where
a minor satisfactorily completes probation. While
sealing of records may be appropriate in certain
cases, we are concerned that sealing of records is not
proper in all cases where probation has been
completed, especially in cases involving acts of
(More)
SB 1038 (Leno)
PageN
violence.
5. Background: The Nature of Juvenile Offenders and Criminal
Punishment
Punishment for the most serious criminal acts has caused the
United States Supreme Court as well as many state supreme
courts, including California's, to consider the differences
between minors and adults. In 2010, the United States Supreme
Court ruled that it is unconstitutional to sentence a youth who
did not commit homicide to a sentence of life without the
possibility of parole (LWOP). ( Graham v. Florida (2010) 130
S.Ct. 2011.) The Court discussed the fundamental differences
between juvenile and adult offenders, and reasserted its earlier
findings from Roper v. Simmons (2005) 543 U.S. 551(prohibiting
the death penalty for defendants who committed their crimes
before the age of 18), that juveniles have lessened culpability
than adults due to those differences.
In the 2005 Roper decision, Justice Kennedy, joined by Justices
Stevens, Souter, Ginsburg, and Breyer, explained in part:
(More)
. . . The susceptibility of juveniles to immature and
irresponsible behavior means "their irresponsible
conduct is not as morally reprehensible as that of an
adult." . . . Their own vulnerability and comparative
lack of control over their immediate surroundings mean
juveniles have a greater claim than adults to be
forgiven for failing to escape negative influences in
their whole environment. . . . The reality that
juveniles still struggle to define their identity means
it is less supportable to conclude that even a heinous
crime committed by a juvenile is evidence of
irretrievably depraved character. From a moral
standpoint it would be misguided to equate the failings
of a minor with those of an adult, for a greater
possibility exists that a minor's character
deficiencies will be reformed. Indeed, "[t]he relevance
of youth as a mitigating factor derives from the fact
that the signature qualities of youth are transient; as
individuals mature, the impetuousness and recklessness
that may dominate in younger years can subside." . . .
(citation); see also Steinberg & Scott 1014 ("For most
teens, [risky or antisocial] behaviors are fleeting;
they cease with maturity as individual identity becomes
settled. Only a relatively small proportion of
adolescents who experiment in risky or illegal
activities develop entrenched patterns of problem
behavior that persist into adulthood"). Roper v.
Simmons , 543 U.S. 551, 569-570 [some citations
(More)
SB 1038 (Leno)
PageP
omitted].) <4>
More recently, the Court reaffirmed these views. Justice
Kennedy, joined by Justices Stevens, Ginsburg, Breyer and
Sotomayor, noted in 2010:
No recent data provide reason to reconsider the
Court's observations in Roper about the nature of
juveniles. As petitioner's amici point out,
developments in psychology and brain science continue
to show fundamental differences between juvenile and
adult minds. For example, parts of the brain involved
in behavior control continue to mature through late
adolescence. See Brief for American Medical
Association et al. as 16-24; Brief for American
Psychological Association et al. as 22-27. Juveniles
are more capable of change than are adults, and their
actions are less likely to be evidence of
"irretrievably depraved
character" than are the actions of adults. . . . It
----------------------
<4> In her dissent in Roper , Justice O'Connor disagreed with
the majority's decision but not the conclusion that juveniles
are different than adults. "It is beyond cavil that juveniles
as a class are generally less mature, less responsible, and less
fully formed than adults, and that these differences bear on
juveniles' comparative moral culpability. See, e.g., Johnson v.
Texas, 509 U.S. 350, 367, 125 L. Ed. 2d 290, 113 S. Ct. 2658
(1993) ("There is no dispute that a defendant's youth is a
relevant mitigating circumstance"); id., at 376, 125 L. Ed. 2d
290, 113 S. Ct. 2658 (O'Connor, J., dissenting) ("[T]he
vicissitudes of youth bear directly on the young offender's
culpability and responsibility for the crime"); Eddings, 455
U.S., at 115-116, 71 L. Ed. 2d 1, 102 S. Ct. 869 ("Our history
is replete with laws and judicial recognition that minors,
especially in their earlier years, generally are less mature and
responsible than adults"). But even accepting this premise, the
Court's proportionality argument fails to support its
categorical rule."
SB 1038 (Leno)
PageQ
remains true that "[f]rom a moral standpoint it would
be misguided to equate the failings of a minor with
those of an adult, for a greater possibility exists
that a minor's character deficiencies will be
reformed." . . . ( Graham v. Florida (2010) 560 U.S.
48, 68 [some citations omitted].)
***************