Opinion
NOT TO BE PUBLISHED
Contra Costa County Super. Ct. No. J0801229.
SIGGINS, J.
J.M. appeals from an order denying a petition to seal his juvenile records. His contentions that the juvenile court abused its discretion or, at a minimum, was required to state its reasons are without merit. Accordingly, we affirm.
BACKGROUND
A. The Gun On Campus
The following facts are taken from the probation report. On July 18, 2008, Pinole police were notified that a student at Pinole Valley High School saw another student leave a bus in front of the school with a rifle under his shirt. The school was searched and the students were evacuated.
A witness told the investigating officer that he saw one of the suspects, K.W., on the bus with what appeared to be a long gun with a scope. The witness saw that the weapon’s magazine was loaded with bullets. K.W. showed the weapon to another suspect, M.C. The witness heard K.W. say “I’m comin to get this nigga, [D.B.]”
An officer spoke with D.B. He said that J.M. told him someone brought a gun to school and sold it for $400, but that the gun was no longer on campus. K.W. told D.B. that the gun was a “choppa, ” and K.W. pulled out a wad of $400 in cash and counted it out in front of him. D.B. later revised this story and told police he was on the bus when someone sent him a text message that said K.W. was at school with a gun wanting to kill him. D.B. got off the bus and went home.
The officer searched K.W. and found $400 in his pocket. K.W. said the money was his, but could not say where he got it. He said J.M. asked him to hold the gun on the bus because he did not want to get caught with it, and that J.M. took the gun back when they arrived at school and went to hide it in his car. When he returned, he told K.W. he had taken the gun to his sister’s house and sold it to her boyfriend.
Police later showed K.W. pictures of three weapons and asked him what his rifle looked like. K.W. pointed to one of the pictures, but said his gun was better because it was “tricked out” and the handle could be folded. K.W. said it was stupid of him to bring the gun to school, but that he had problems with D.B., who had threatened to kill him.
Officers searched J.M.’s car and found six small “dime baggies” of suspected marijuana and a plastic pill bottle with more “dime baggies” in the trunk. Several unused small baggies and $160 in cash were found in the car’s interior. There were no guns in the car.
J.M. was uncooperative with officers and said he knew nothing about the gun on campus. However, a search of his cell phone disclosed that J.M. had sent and received text messages about police looking for a gun. J.M. sent messages that said the gun was no longer on campus and that police were not going to find anything.
B. The Juvenile Court Proceedings
J.M. was charged with possession of a firearm by a minor, possessing a firearm in a school zone, and misdemeanor possession of marijuana at school. Following a contested hearing, the juvenile court sustained the marijuana allegation and dismissed the firearm charges.
In a subsequent interview with his probation officer J.M. professed that he did not know there was marijuana in his car or how it got there. He disavowed any knowledge about the gun incident or ever possessing a gun. When asked about the text messages on his phone, J.M. said they were taken out of context and had nothing to do with a gun being on campus.
J.M.’s teacher reported that J.M. was one of his better students and was doing well. J.M.’s mother owned the car where the marijuana was found, but J.M. was the primary driver. The car was clean when J.M.’s mother bought it and there was no marijuana in the trunk. This was J.M.’s first referral to the probation department.
J.M. was placed on six months of formal probation commencing in January 2009. In April 2009 he was riding in a friend’s car when it was stopped because it had no license plates. A small quantity of marijuana was found in the car. The incident was referred to the probation department but was closed at intake. Aside from this referral, J.M. successfully complied with all conditions of his probation, and it was terminated in July 2009.
In May 2010, after he turned 18, J.M. petitioned the juvenile court to seal his records pursuant to Welfare and Institutions Code section 781. His probation officer submitted a report and recommendation in support of the petition. It was her opinion that J.M. “successfully completed the terms of juvenile probation. He has no arrests or convictions as an adult. He is eligible, suitable and deserving of having his record sealed.”
Unless otherwise noted, further statutory citations are to the Welfare and Institutions Code.
A hearing on the petition was scheduled for June 17, 2010. Although notice was given, neither J.M. nor his attorney appeared. The court denied the petition. In response to J.M.’s later request for a settled statement, it issued the following “Statement of Decision”: “On June 17, 2010, the case was called by the Court with probation officer and district attorney present. [¶] The bailiff... called the case in the hall, and petitioner was not present for the hearing. The matter was called again at 1:30 and still no presence by the petitioner. [¶] The Court reviewed the petition and having considered the minor’s file and delinquent history and the minor’s absence, the Court denied the petition.” J.M. filed this timely appeal.
J.M.’s appellate attorney represents that J.M. told her he only received the notice after the hearing date. The district attorney and probation officer attended the June 17 proceedings.
DISCUSSION
Section 781 governs the sealing of juvenile records. In relevant part, it 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... the person or the county probation officer may... at any time after the person has reached the age of 18 years, petition the court for sealing of the records.... The court shall notify 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 may testify at the hearing on the petition. If, after hearing, the court finds that since the termination of jurisdiction... he or she 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....” (§ 781, subd. (a), italics added.)
We review the juvenile court’s denial of a petition to seal for abuse of discretion. (In re Jeffrey T. (2006) 140 Cal.App.4th 1015, 1018.) “The appropriate test for abuse of discretion is whether the trial court exceeded the bounds of reason. When two or more inferences can reasonably be deduced from the facts, the reviewing court has no authority to substitute its decision for that of the trial court. [Citation.]” (In re Emmanuel R. (2001) 94 Cal.App.4th 452, 465, internal quotation marks omitted.)
J.M.’s abuse of discretion claim is based primarily on his probation officer’s conclusion he was suitable and deserving of having his record sealed, and the fact that the prosecution filed no written opposition and presented no evidence at the June 17 proceedings. But it was J.M.’s burden to establish that his rehabilitation was sufficiently successful to warrant sealing – not the prosecutor’s to prove that it was not. (§ 781; Evid. Code, § 500; see People v. Glasper (2003) 113 Cal.App.4th 1108, 1115; People v. Lopez (1997) 52 Cal.App.4th 233, 251.) In determining whether J.M. satisfied that burden, the court was under no requirement to adopt the probation officer’s recommendation. A probation report is advisory only, not determinative of the disposition. (People v. Warner (1978) 20 Cal.3d 678, 683.) “[T]he court ‘may reject in toto the report and recommendation of the probation officer.’ [Citations.] ‘The primary function served by the probation report... is to assist the court in determining an appropriate disposition....” [Citation.] In the final analysis that determination is a matter of judgment for the court, not the probation officer.” (Ibid.)
We are satisfied here that the record before the juvenile court sufficiently supports the departure from the probation officer’s recommendation. In considering whether to seal J.M.’s record, the court could properly consider not only the sustained marijuana allegation, but also indications that J.M. had some degree of involvement in the significantly more serious firearm incident. (See In re Robert H. (2002) 96 Cal.App.4th 1317, 1329 [“relevant policies of juvenile court law require that the court consider ‘the broadest range of information’ in determining how best to rehabilitate a minor and afford him adequate care.”]; In re Carl N. (2008) 160 Cal.App.4th 423, 432-433 [juvenile court must consider both rehabilitation of the minor and protection of the community].) The court could also have had concerns about J.M.’s rehabilitative progress based on circumstances related to the sustained marijuana allegation. Despite the true finding, J.M. continued to deny responsibility for the six or more individual “dime” baggies of marijuana found in his car and told his probation officer he knew nothing about them. He was also present and on probation when police found marijuana in a car he was riding in. On this record, the trial court could, and presumably did, have reasonable concerns about J.M.’s rehabilitation.
J.M. also contends it was inappropriate for the court to rely on his failure to appear for his June 17, 2010 court date because the rules of court explicitly allow the hearing to be held without his appearance. (Cal. Rules of Court, rule 5.830(a)(2)(D)(ii).) He misses the point. We can readily see why the court may have been concerned about J.M.’s rehabilitation. Perhaps if J.M. had appeared at the hearing he could have addressed the court and assuaged its concerns. He did not do so. The court was required to assess whether J.M. satisfied his burden of demonstrating satisfactory rehabilitation without the benefit of his possible explanation or assessment of his demeanor. His appearance could have made a difference.
Alternatively, J.M. asks us to remand the case to the juvenile court “for a statement explaining why it denied the petition, so that [he] may obtain meaningful appellate review of the lower court’s decision.” There is no justification for our doing so in the absence of a statutory directive. “The Legislature has the means by which to require such a statement when it elects to do so.” (In re John H. (1978) 21 Cal.3d 18, 25.) The record demonstrates a sufficient basis for the court’s ruling. While J.M. correctly observes that a transcript from the hearing on his petition would provide additional material for this court to review, he can hardly complain about its absence caused by his own failure to attend the hearing. Moreover, nothing in the record indicates, as J.M. suggests, that the juvenile court failed to understand the appropriate legal standard for ruling on the petition. “A judgment or order of the lower court is presumed correct[, and a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown.” (In re Julian R. (2009) 47 Cal.4th 487, 498, internal quotation marks omitted.) We apply “the general rule ‘that a trial court is presumed to have been aware of and followed the applicable law. [Citations.]’ ” (Ibid.; People v. Stowell (2003) 31 Cal.4th 1107, 1114.) There is nothing to prevent J.M. from again applying for a sealing order if circumstances warrant.
DISPOSITION
The order denying the sealing petition is affirmed.
I concur: McGuiness, P.J.
Pollak, J.—Concurring.
I concur in the majority opinion, but wish to emphasize the significance of J.M.’s failure to appear at the hearing on the petition to seal his records. As the majority states, J.M. was not required to attend the hearing, but his failure to do so deprived the court of the opportunity to question him and to satisfy any doubts it may have had concerning whether rehabilitation has in fact been attained. The majority opinion points out various matters in J.M.’s not too distant past that might well have caused the court concern. J.M.’s subsequent behavior may or may not be sufficient to show that he has put his youthful misconduct behind him and is now prepared to lead a productive and law-abiding life as an adult. It is his burden to satisfy the court that this is so and the court very understandably may wish to question and observe him before coming to a positive conclusion. As the majority also indicates, J.M. is entitled to reapply for a sealing order. He would be well-advised to appear before the court in support of a renewed petition to attempt to personally persuade the court that he is truly rehabilitated.