Opinion
E066324
07-07-2017
In re B.A., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. B.A., Defendant and Appellant.
Cynthia M. Jones, 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, and Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. RIJ1501320) OPINION APPEAL from the Superior Court of Riverside County. Roger A. Luebs, Judge. Affirmed. Cynthia M. Jones, 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, and Barry Carlton and Heidi Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant and appellant, B.A. (Minor), completed a program of informal supervision under Welfare and Institutions Code section 654 after the People alleged Minor had committed misdemeanor vandalism. (Pen. Code, § 594, subd. (a)(1); ¶ 1.) After the court dismissed the petition and ordered Minor's records sealed, Minor's counsel requested the court seal Minor's middle school records as well; the court declined to do so. On appeal, Minor contends the court deprived him of due process by not affording him a hearing on the issue and abused its discretion by summarily denying the request without evidentiary justification. We affirm.
I. PROCEDURAL HISTORY
On November 19, 2015, the People filed a juvenile delinquency petition alleging Minor had committed vandalism. (Pen. Code, § 594, subd. (a)(1); ¶ 1.) On December 14, 2014, Minor agreed to and the court found Minor eligible for a program of supervision pursuant to Welfare and Institutions Code sections 654 and 654.2.
On June 2, 2016, a probation officer filed a review memorandum in which she noted that Minor's overall performance had been good. Minor had completed all aspects of his program except community service, of which he had completed 12 of the 20 required hours.
The officer expected Minor to complete the remainder of his community service by June 29, 2016. The officer recommended the court extend the program of supervision by 45 days to allow Minor time to complete his community service. The officer included in the review memorandum a proposed sealing order which would provide that Minor's records be sealed as to the superior court, the probation department, the public defender's office, and the district attorney's office.
At a hearing on June 13, 2016, Minor's counsel noted that Minor was expected to complete his community service hours that day. Minor's counsel requested a continuance to the next day. The court set the matter for June 28, 2016, instead.
On June 28, 2016, the court found Minor had completed his program of informal supervision and dismissed the case. The court noted: "And he's eligible now to have his record sealed. I have a proposed sealing order. Has everyone reviewed it? It looks like this has the public defender listed here." Minor's counsel responded: "Yes. . . . Probation gave me the original to give to the Court. And I did strike that from the order. Also, I didn't add that the public defender would request that the minor's middle school . . . be added to the order. I believe that's allowable under [Welfare and Institutions Code section] 786 that the Court can seal the school records as well related to this petition . . . ." The court replied: "No. I'm not going to grant that request. But I will go ahead and sign the sealing order that was submitted to me."
II. DISCUSSION
Minor contends the court deprived him of due process by not affording him a hearing on the issue and abused its discretion by summarily denying the request without evidentiary justification. Assuming arguendo that Minor was entitled to a hearing, we hold that defendant forfeited any such hearing by failing to even attempt to present a prima facie showing that his middle school records should be sealed.
On October 7, 2016, Minor filed a request for judicial notice. On October 26, 2016, we ordered ruling on the request deferred for consideration on appeal. We now deny the request as unnecessary to our resolution of the issues on appeal. --------
"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." (Welf. & Inst. Code, § 786, subd. (e)(2).)
"Under 'well-settled principle[s] of statutory construction,' we 'ordinarily' construe the word 'may' as permissive and the word 'shall' as mandatory, 'particularly' when a single statute uses both terms. [Citation.] In other words, '[w]hen the Legislature has, as here, used both "shall" and "may" in close proximity in a particular context, we may fairly infer the Legislature intended mandatory and discretionary meanings, respectively.' [Citation.]" (Tarrant Bell Property, LLC v. Superior Court (2011) 51 Cal.4th 538, 542.)
A denial of a motion for permissive intervention is reviewed for an abuse of discretion. (Simpson Redwood Co. v. State of California (1987) 196 Cal.App.3d 1192, 1199; In re J.W. (2015) 236 Cal.App.4th 663, 668 [Welf. & Inst. Code, § 781 grants the court discretion to seal a juvenile's delinquency records].) Thus, "a reviewing court will disturb the trial court's decision . . . if, under all the circumstances, that choice is arbitrary and capricious and is wholly unreasonable. [Citation.]" (People v. Moran (2016) 1 Cal.5th 398, 403.) "Generally, the moving party bears the burden to put the supporting evidence before the court." (People v. Ochoa (2016) 248 Cal.App.4th 15, 29, fn. 3; see In re J.P. (2014) 229 Cal.App.4th 108, 127 [petitioner must make a prima facie showing to trigger right to a hearing pursuant to Welf. & Inst. Code, § 388].)
Here, Minor's counsel apparently had possession of the proposed sealing order well before the hearing on the matter. Nonetheless, Minor's counsel neglected to add Minor's middle school to the proposed order or file a supplemental order proposing sealing of Minor's middle school records regarding the matter. Furthermore, Minor's counsel never even attempted to offer any evidence as to why the sealing of Minor's middle school records would "promote the successful reentry and rehabilitation of" Minor. Minor's counsel could have done so via a petition filed before the hearing or have simply offered some evidence in the oral motion made to the court. Instead, Minor's counsel simply requested the sealing and neglected to even request the opportunity to offer any evidence on the matter when the court denied his bare request. Without any evidence to support the request, the court acted within its discretion in denying the petition.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
McKINSTER
J. We concur: RAMIREZ
P. J. MILLER
J.