In re J.B.












Filed 3/24/17 In re J.B. CA4/2







NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.





IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO



In re J.B., a Person Coming Under the Juvenile Court Law.


THE PEOPLE,

Plaintiff and Respondent,

v.

J.B.,

Defendant and Appellant.



E066809

(Super.Ct.No. RIJ120104)

OPINION


APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed.
Joshua L. Siegel, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Eric A. Swenson, Lynne G. McGinnis and Allison V. Hawley, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant J.B. (Minor) appeals the denial of his request to seal his court and school records pursuant to former Welfare and Institutions Code section 786, subdivision (e).[1] In 2010 and 2011, Minor had three petitions filed against him pursuant to section 602 for three separate offenses. The third petition involved an incident on school grounds and was dismissed pursuant to a negotiated disposition in 2011. He successfully completed probation for the first two petitions and the juvenile court agreed to dismiss and seal the records for those two petitions pursuant to section 786. However, the juvenile court denied his request to seal education records for the third petition on the grounds that Minor had failed to establish he successfully completed probation on that petition, so it was not in a position to exercise its discretion for the dismissed petition.
Minor claims that the third petition, which was not adjudicated, was subject to section 786, subdivisions (e)(1) and (e)(2), and the juvenile court erred by failing to seal his school records. Further, any ambiguity in the statute that it only applies to adjudicated petitions and not those dismissed prior to adjudication should be resolved in his favor. Finally, if section 786, subdivision (e) is not applied to him on his third petition, his equal protection rights are violated.
FACTUAL AND PROCEDURAL HISTORY
On July 23, 2010, the Riverside County District Attorney filed a Welfare and Institutions Code section 602 petition against Minor for a charge of receiving stolen property within the meaning of Penal Code section 496, subdivision (a) (Petition 1). Minor admitted the allegation in Petition 1. The proceedings were suspended for the purposes of placing Minor on probation for a period not to exceed three years pursuant to Welfare and Institutions Code section 791, subdivision (b) (deferred entry of judgment).
On March 2, 2011, a Welfare and Institutions Code section 602 petition was filed against Minor for the charges of unlawful possession of methamphetamine, a felony (Health & Saf. Code, § 11377, subd. (a)); unlawful possession of marijuana, a misdemeanor (Health & Saf. Code, § 11357, subd. (b)); and unlawful possession of drug paraphernalia, a misdemeanor (Health & Saf. Code, § 11364) (Petition 2).
Before Petition 2 was resolved, Minor was charged on March 7, 2011, in a Welfare and Institutions Code section 602 petition with possession of a knife on school grounds, a felony (Pen. Code, § 626.10, subd. (a)), and possession of marijuana on school grounds, a misdemeanor (Health & Saf. Code, § 11357, subd. (e)) (Petition 3). On March 18, 2011, the People filed an application to lift the deferred entry of judgment on Petition 1.
All three petitions were heard on March 23, 2011. The People had negotiated a disposition with Minor. The juvenile court lifted the deferred entry of judgment on Petition 1 and Minor was adjudged a ward of the court. Minor admitted to a felony violation of possession of methamphetamine as charged in Petition 2. The remaining charges in Petition 2 were dismissed. Petition 3 was dismissed in its entirety. Minor received 30 to 60 days in juvenile hall and was ordered on supervised probation for a period of three years eight months.
On April 9, 2015, Minor had completed his probation and was 21 years old. The juvenile court terminated the probation and wardship. On May 12, 2016, Minor filed a petition for modification of his Petitions 1 and 2 under Penal Code section 1170.18—Proposition 47—seeking to have his violations of Health and Safety Code section 11377 (Petition 2) and Penal Code section 496, subdivision (a) (Petition 1) reduced to misdemeanors.
On May 17, 2016, Minor requested that the records for Petitions 1, 2 and 3 be sealed pursuant to section 786. The matter was set for hearing on July 14, 2016.
The People filed opposition to the request to seal educational records in the custody of the school districts where the offenses occurred pursuant to section 786 on Petition 3.[2] The People contended that such an order exceeded the jurisdiction of the court; other statutory authorities governed the sealing and destruction of educational records; and Minor’s request lacked good cause. The People argued that Minor had not served any of the school districts with the request, nor notified them of the hearing. Moreover, Minor had failed to establish the specific records to be sealed. The juvenile court thus lacked jurisdiction. The People then argued, “Even if arguably section 786 gives this Court authority to order a non-party, non-noticed public agency such as a school district to seal its internal records, the Court’s reach extends only to records which ‘pertain to the case’” citing to section 786, subdivision (e)(2).
In response, Minor’s counsel argued that the juvenile court should seal records in the custody of Patriot High School and Jurupa Unified School District because a high school is a “public agency” as that term is used in section 786, subdivision (e)(2). Section 786 did not have a notice requirement. Sealing the school records would promote successful reentry and rehabilitation into society by Minor. Minor was attempting to complete his secondary education and any school records released could impact his opportunities.
The matter was heard on July 14, 2016. The juvenile court inquired how ordering the school to seal records was rehabilitative. Such sealing of records would not allow the school officials to deal properly with Minor. Minor’s counsel stated she was concerned with the records being released to third parties, such as colleges. The People again argued the records to be sealed had to be specifically identified. The People also noted that many of these records were already unavailable to third parties and the school internally needed to be able to access these records to appropriately deal with Minor.
The juvenile court also questioned whether the school district had a right to notice under due process principles; however, section 786 appeared to not require notice. The juvenile court inquired about whether the records were already sealed pursuant to the Education Code. Minor’s counsel felt that this sealing was more extensive; the school itself could not use the records. Further, the behavioral issues could not be forwarded to colleges. The juvenile court was concerned it put a burden on the schools to determine what pertained to the petition. The matter was taken under submission.
The matter was recalled on August 8, 2016. The court granted the reduction of the two felonies (Petitions 1 and 2) to misdemeanors pursuant to Proposition 47.
On August 9, 2016, the court issued orders dismissing Petitions 1 and 2. It ordered the sealing of Minor’s juvenile record as to these petitions.
The juvenile court issued a written opinion on the sealing of Minor’s school records pertaining to Petition 3. The juvenile court made the following factual findings: (1) “A petition subsequent was filed against the Minor on March 7, 2011. The petition alleged that on November 5, 2010 the Minor possessed a knife on a school campus in violation of Penal Code section 626.10(a) and possessed marijuana on a school campus in violation of Health and Safety Code section 11357(e)”; (2) “On March 23, 2011, the petition subsequent filed March 7, 2011 was dismissed without the court ever adjudicating the allegations therein or taking jurisdiction of the Minor based thereon”; and (3) “On March 23, 2011, the Minor was made a ward of the court under section 602 based on other petitions that were adjudicated and he thereafter satisfactorily completed a term of probation with respect to the other petitions.”
The juvenile court found, “In the instant case, the Minor never satisfactorily completed a program of informal supervision or probation with respect to a petition that appears to relate to behavior at school. Since the petition filed March 7, 2011, does not fall within the terms of subdivision (a), the court is not in a position to exercise discretion under subdivision (e) [of section 786].”
It further found, “Minor’s argument seems to be that since he completed probation on some adjudicated petitions, the court should sanitize his school records related to any other discipline issues he may have had at school. The Legislature, although expanding the sealing of records substantially in recent years, has set some limits. The law requires that sealing under section 786 be attached to the dismissal of a petition that was earned by completing informal supervision or probation with respect to the petition.”
The juvenile court declined to decide any further issues discussed at the hearing such as whether notice must be given to the school districts, whether the sealing of the record was rehabilitative and other issues discussed at the hearing.
DISCUSSION
Minor insists that the juvenile court erred by denying his request to seal education records relating to Petition 3 as it had discretion under section 786, subdivision (e) to seal the records relating to Petition 3 because he successfully completed probation on Petitions 1 and 2. Moreover, any ambiguity in the statute as to whether it only applies to petitions for which Minor successfully completed probation or also applies to dismissed petitions, should be resolved in his favor. Finally, if section 786 is not applied to him, his equal protection rights are violated. We conclude that section 786, subdivision (e) is not to be applied retroactively; it did not apply to his dismissed Petition 3. Even if it was retroactive, under the plain language of section 786, he was not eligible under that section. Further, he cannot show an equal protection violation as he is not similarly situated to someone who qualifies for sealing of records under section 786, subdivision (e); he has a remedy for sealing records under section 781.
A. SECTION 786
Subdivision (a) of section 786 provided “If a minor satisfactorily completes . . . a term of probation for any offense, the court shall order the petition dismissed. The court shall order sealed all records pertaining to that dismissed petition in the custody of the juvenile court, and in the custody of law enforcement agencies, the probation department, or the Department of Justice. The court shall send a copy of the order to each agency and official named in the order, direct the agency or official to seal its records, and specify a date by which the sealed records shall be destroyed. Each agency and official named in the order shall seal the records in its custody as directed by the order, shall advise the court of its compliance, and, after advising the court, shall seal the copy of the court’s order that was received.”
Subdivision (c)(1) of section 786 provided in pertinent part, “satisfactory completion of an informal program of supervision or another term of probation described in subdivision (a) 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.”
Section 786, subdivision (e)(1) provides: “The court may, in making its order to seal the record and dismiss the instant petition pursuant to this section, include an order to seal a record relating to, or to dismiss, any prior petition or petitions that have been filed or sustained against the individual and that appear to the satisfaction of the court to meet the sealing and dismissal criteria otherwise described in this section.”
Section 786, subdivision (e)(2), provides: “An individual who has a record that is eligible to be sealed under this section may ask the court to order the sealing of a record pertaining to the case that is in the custody of a public agency other than a law enforcement agency, the probation department, or the Department of Justice, and the court may grant the request and order that the public agency record be sealed if the court determines that sealing the additional record will promote the successful reentry and rehabilitation of the individual.”
B. PETITION 3 DOES NOT QUALIFY UNDER SECTION 786
“‘The interpretation of a statute is a question of law we review independently.’ [Citation.] To ascertain legislative intent, we first examine the words of the statute and, if the statutory language is clear and unambiguous, its plain meaning governs. [Citation.] A court may not interpret a statute to reflect an intention that does not appear from its plain language.” (In re A.B. (2016) 2 Cal.App.5th 912, 919.)
Initially, although not considered by the juvenile court, it is clear that section 786, effective January 1, 2016, was not applicable to Minor’s Petition 3, which was dismissed in 2011. We are guided by the well-established rule that “[a] new or amended statute applies prospectively only, unless the Legislature clearly expresses an intent that it operate retroactively.” (People v. Ledesma (2006) 39 Cal.4th 641, 664; see Evangelatos v. Superior Court (1988) 44 Cal.3d 1188, 1207 [“‘[it] is an established canon of interpretation that statutes are not to be given a retrospective operation unless it is clearly made to appear that such was the legislative intent’”].)
Here, Minor’s Petition 3 was dismissed in 2011, which was prior to the effective date of subdivision (e) of section 786. The juvenile court could not apply these provisions to a petition that was already dismissed. Nothing in the language of section 786 provides as such. The plain and unambiguous language of section 786 describes dismissal and sealing together, prospectively. It uses language such as “[t]he court may, in making its order to seal the record and dismiss the instant petition pursuant to this section.” (Italics added.) Based on its plain language, section 786 does not operate retroactively to those petitions dismissed prior to its effective date. (See In re Y.A. (2016) 246 Cal.App.4th 523, 527 (Y.A.) [“[T]he plain language of [former] section 786 does not support the proposition that it was intended to be a panacea for all sealing issues”].) Minor was not entitled to have his school records sealed on a petition dismissed prior to the effective date of the statute.
Moreover, the juvenile court properly determined that it lacked authority to seal Minor’s school records on Petition 3 due to the fact Minor did not satisfactorily complete probation as to Petition 3. When the sealing order was issued, the unambiguous language of section 786 required the court to seal records, pertaining to a petition, based upon first finding that the minor satisfactorily completed probation for an offense alleged in the petition to be dismissed. (Y.A., supra, 246 Cal.App.4th at pp. 526-527.) As stated in Y.A., “Minor has not cited, and we are unaware of, any controlling or persuasive authority supporting the conclusion that [former] section 786 required or permitted the juvenile court to seal records relating to a prior petition for which no finding was made regarding satisfactory probation completion.” (Id. at p. 527.)[3]
Additionally, the plain language of section 786, subdivision (e)(1) refers to “any prior petition or petitions that have been filed or sustained against the individual.” Here, Petition 3 succeeded Petitions 1 and 2.
C. EQUAL PROTECTION
The finding that Minor was not entitled to have his school records sealed pursuant to section 786 for Petition 3 does not violate his equal protection rights as he is entitled to relief by a separate statute, namely, section 781.
“The concept of equal treatment under the laws means that persons similarly situated regarding the legitimate purpose of the law should receive like treatment. [Citation.] ‘“The first prerequisite to a meritorious claim under the equal protection clause is a showing that the state has adopted a classification that affects two or more similarly situated groups in an unequal manner.” [Citations.] This initial inquiry is not whether persons are similarly situated for all purposes, but “whether they are similarly situated for purposes of the law challenged.”’” (People v. Morales (2016) 63 Cal.4th 399, 408.)
For the purpose that Minor challenges the law in this case, Minor is not treated in an unequal manner as he is entitled to seek relief under section 781. Section 781, subdivision (a)(1)(A), effective January 1 2016, provides “In any case in which a petition has been filed with a juvenile court to commence proceedings to adjudge a person a ward of the court, in any case in which a person is cited to appear before a probation officer or is taken before a probation officer pursuant to Section 626, or in any case in which a minor is taken before any officer of a law enforcement agency, the person or the county probation officer may, five years or more after the jurisdiction of the juvenile court has terminated as to the person, or, in a case in which no petition is filed, five years or more after the person was cited to appear before a probation officer or was taken before a probation officer pursuant to Section 626 or was taken before any officer of a law enforcement agency, or, in any case, at any time after the person has reached 18 years of age, petition the court for sealing of the records, including records of arrest, relating to the person’s case, in the custody of the juvenile court and probation officer and any other agencies, including law enforcement agencies, entities, and public officials as the petitioner alleges, in his or her petition, to have custody of the records. . . . 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.” (Italics added.)
Subdivision (B) of section 781 provides, “The court shall send a copy of the order to each agency, entity, and official named in the order, directing the agency or entity to seal its records. Each agency, entity, and official shall seal the records in its custody as directed by the order, shall advise the court of its compliance, and thereupon shall seal the copy of the court’s order for sealing of records that the agency, entity, or official received.”
Based on the language of section 781, Minor could file a request to have his school records sealed under this section.
DISPOSITION
The juvenile court’s order is affirmed. Minor can file a petition pursuant to section 781 seeking to have his school records pertaining to Petition 3 sealed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS


MILLER
J.


We concur:


HOLLENHORST
Acting. P. J.


McKINSTER
J.



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[1] All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. Further, all references to section 786 refer to the version effective January 1, 2016, to January 1, 2017.
[2] The People did not contest the application of section 786 to Petitions 1 and 2.
[3] Although Y.A. discussed the version of section 786 effective January 1, 2015, to January 1, 2016, the reasoning remains the same. The 2015 version did not include the language of subdivision (e). (Y.A, supra, 246 Cal.App.4th at p. 528, fn. 3.)