Opinion
E068453
07-11-2018
In re A.S., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. A.S., Defendant and Appellant.
Jeanine G. Strong, 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, Michael Pulos and Marvin E. Mizell, 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. RIJ1500052) OPINION APPEAL from the Superior Court of Riverside County. Walter H. Kubelun, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed and remanded with directions. Jeanine G. Strong, 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, Michael Pulos and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
I
INTRODUCTION
In January 2015, a petition pursuant to Welfare and Institutions Code section 602 was filed against defendant and appellant A.S. (minor), alleging he committed misdemeanor possession of marijuana on school grounds while school was in session (Health & Saf. Code, § 11357, subd. (e)). Minor was subsequently placed on informal probation pursuant to Welfare and Institutions Code section 654.2. In August 2015, the juvenile court dismissed the petition without prejudice after it concluded minor successfully completed his informal supervision program.
All future references are to the Welfare and Institutions Code unless otherwise stated.
In May 2016, minor filed a request to seal his records under section 786. The People opposed the request only as to sealing minor's school records because the People believed a school is not considered an " 'agency' " within the meaning of section 786. The trial court partially granted the request, denying the request to seal minor's school records. The trial court agreed with the People's position and found a school is not a governmental agency within the meaning of section 786.
Minor subsequently appealed, arguing the juvenile court erred in denying his request to seal the school records related to his juvenile court proceedings. The Attorney General conceded the error. In a nonpublished opinion in case No. E066079 (In re A.S. (Feb. 10, 2017, E066079) [nonpub. opn.]), this court agreed with the parties that the juvenile court had failed to exercise its discretion under section 786, former subdivision (e)(2), now subdivision (f)(2), whether to seal the school records and remanded the matter to allow the juvenile court to exercise its discretionary authority.
Upon remand, the juvenile court did not rule on the merits of minor's request to seal the school records, but instead asked minor to obtain all relevant school records so the court could determine whether it would order them sealed. The juvenile court indicated that it would likely seal minor's school records, but that it could not be certain it would do so unless minor provided those records so the court could decide if sealing them would promote minor's successful reentry and rehabilitation. Minor subsequently appealed.
On appeal, minor contends remand is required because: (1) the mandatory language of section 786, subdivision (a) and former subdivision (e)(1), require a juvenile court to order the records sealed upon dismissal of the petition; (2) the court erred in requiring minor to submit his school records for review; and (3) there is no reason to treat public agencies, such as schools, differently from other public agencies pursuant to section 786. We conclude the pertinent language of section 786 does not require the mandatory sealing of minor's school records upon dismissal of the petition. We also find the court acted within its discretion in requiring minor to submit his school records for review before determining whether sealing minor's school records would promote the successful reentry and rehabilitation of minor. However, because the record reveals the juvenile court did not rule on minor's motion to seal his records, we believe a remand is necessary for minor to produce his school records, and for the juvenile court to then accordingly exercise its discretion as to whether sealing minor's school records will promote the successful reentry and rehabilitation of minor. (§ 786, subd. (f)(2).)
II
The details of minor's criminal conduct are not relevant to the limited issue raised in this appeal, and we will not recount them here. Instead, we will recount only those facts and procedural background that are pertinent to the issue we must resolve in this appeal.
DISCUSSION
On remand, the juvenile court determined that it was "possible" sealing minor's school records would promote minor's reentry and rehabilitation and thus the records regarding his juvenile court proceedings should be sealed. However, the court stated it did not "know what records are in the school records, where they are kept, who has them, who would be sealing them." The court explained: "The Court is not comfortable with blanket orders. Too much could be sealed, or too little could be sealed at the detriment of the minor. If the Court determines that sealing is appropriate, I want the minor to get the full benefit of the sealing of the records; therefore, the Court's opinion is that the minor does have the opportunity to have the school records sealed. The minor does have access . . . to his school records and, therefore, can bring those to the Court for the proper analysis to determine if the sealing would be in the minor's best interests and promote rehabilitation."
Minor's counsel asked the court to seal minor's records outright, explaining "the burden on the defense is that it will help the minor's rehabilitation and reentry." Minor's counsel explained: "I don't think there's any analysis on which documents need to be sent. I think that's a burden on the minor that should not be placed on the minor. [¶] There's a corresponding—sealing regarding police, law enforcement, DA, and there's no requirement there that we bring forth the documents and provide which ones to be sealed and which ones not to be sealed [sic]. This is essentially a mirror sealing order that's been created by the law, and putting that on the defense is a burden. One, we can't control that we get all the documents. I think it should be the burden on [the] school to seal, as the law states, any related documents to the [Health and Safety Code section] 11357 petition on the specific date of offense. [¶] Further, I think the minor meets his rehabilitation and reentry in that he completed informal probation. He completed that in May of 2016. He started on probation in February 2015. The offense date is from May of 2014. So we are looking at, . . . three years, for what is now an infraction offense.[] That this is only going to harm the minor having this on his record going to college, applying for letters of rec amongst his own teachers, and for where . . . the notice should be sent, it should be sent to the school district, which holds all the minor's school records."
The juvenile court reduced the possession of marijuana offense to an infraction.
The prosecutor asserted that "it's the People's position that the school be noticed as to whatever extent possible to either appear and agree, and/or appear and object. So other than stating that, . . . the People submit to the Court."
The court responded that "the school districts are distinguishable from law enforcement agencies on the analysis." The court clarified as follows: "Law enforcement agencies are always, in dealing with sealing of records—and have them and have established policies and procedures for that. School districts may have policies and procedures. The Court is unaware. The Court has not been provided that information, although it's given the public defender's office multiple opportunities to do so.
"I believe all school districts are different, and the minor's argument is mixed, both indicating that the minor can't get all of their records, . . . [b]ut at the same time saying that the notice should be sent to the school district, which holds all the records. The school district holds all the records. The minor then has access to all those records and can obtain them.
"This is not meant to be a burden on the minor. It is meant to make sure that the Court orders as follows: When law enforcement agencies have sensitive information and records, again, they are in the practice of sealing those and have been so for a decade. School districts, maybe not so. New school districts, charter schools, the Court can't be sure what its dealing with. The Court wants to make sure that, in this case, which the Court believes, the minor does have a good argument to have the matter sealed based on the arguments made by Counsel. The Court can't be sure that the minor would receive the entire benefit of the sealing. The records could be missed. The records could be somewhere else that the Court is unaware of. Simply sealing the district records, if they hold them all, would be fantastic; however, the Court has also been informed on occasion that records are held at the individual schools as well. There might be duplicate copies there. Again, the Court hasn't been provided with that information.
"Therefore, the Court, as always, is uncomfortable blanket sealing records, which might be overbroad, and leave it to some clerk in the school district's office to do so. The Court is more comfortable allowing the minor to take control of their own future to ensure that they are fully compensated or protected from this analysis.
"So, again, the Court would be indicating that in this case it appears that the records—well, it would be a good argument to seal the records. The Court does not believe that the school district needs notice. But the Court does need the proper information to make sure that all of the proper records are sealed if that would promote the rehabilitation of the minor."
Minor argues the mandatory language of section 786, subdivision (a) and former subdivision (e)(1), requires a juvenile court to order the records sealed upon dismissal of the petition. He also asserts the juvenile court's ruling, requiring minor to obtain the school records he wished to have sealed, and submit them to the court for review, violates the express and unambiguous terms of section 786. The juvenile court's ruling raises a question of statutory interpretation.
A. Legal Standard
" '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." (Adoption of A.B. (2016) 2 Cal.App.5th 912, 919.)
" '[O]ur primary task is to determine the lawmakers' intent. [Citation.] . . . To determine intent, " 'The court turns first to the words themselves for the answer.' " [Citations.] "If the language is clear and unambiguous there is no need for construction, nor is it necessary to resort to indicia of the intent of the Legislature (in the case of a statute) . . . ." ' [Citation.] 'We give the language of the statute its "usual, ordinary import and accord significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose. A construction making some words surplusage is to be avoided. The words of the statute must be construed in context, keeping in mind the statutory purpose . . . . Both the legislative history of the statute and the wider historical circumstances of its enactment may be considered in ascertaining the legislative intent." ' [Citations.] In addition, ' "[w]e must harmonize 'the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole.' [Citations.] We must also avoid a construction that would produce absurd consequences, which we presume the Legislature did not intend." ' [Citation.]" (In re A.V. (2017) 11 Cal.App.5th 697, 704-705 (A.V.), quoting In re Greg F. (2012) 55 Cal.4th 393, 406.)
B. Statutory Background of Section 786
Section 786 provides that if a ward of the juvenile court "satisfactorily completes" formal or informal probation, "the court shall order the petition dismissed" and "shall order sealed all records pertaining to the 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." (§ 786, subd. (a); see In re G.F. (2017) 12 Cal.App.5th 1, 5.) Satisfactory completion of probation "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 . . . 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." (§ 786, subd. (c)(1).)
We note effective January 1, 2017, the Legislature amended section 786, subdivision (a), to state "a person" instead of "a minor." (Stats. 2016, ch. 858, § 1; see In re G.F., supra, 12 Cal.App.5th at p. 5, fn. 3.)
Section 786, subdivision (f)(1), states: "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." (Italics added.)
Section 786, subdivision (f)(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." (Italics added.)
As we previously held, a public school is a "public agency" within the meaning of section 786, subdivision (f)(2). (See Gov. Code, § 53050 ["The term 'public agency,' as used in this article, means a district, public authority, public agency, and any other political subdivision or public corporation in the state, but does not include the state or a county, city and county, or city."]; Hovd v. Hayward Unified Sch. Dist. (1977) 74 Cal.App.3d 470, 472 [vocational skills center was not "public agency" within meaning of Government Code section 53051 requiring public agencies to file certain information with Secretary of State and county clerk, since it was a subdivision of a district].) --------
"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 [§ 781 grants the court discretion to seal a juvenile's delinquency records].) Thus, "a reviewing court will disturb the trial court's decision . . . only 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 § 388].)
C. Analysis
Relying on A.V., supra, 11 Cal.App.5th 697, minor argues section 786 requires the juvenile court to " 'seal the record and dismiss the petition as a single order.' " (A.V., at p. 710, italics omitted.) In A.V., the minor was placed on deferred entry of judgment (DEJ) probation after he admitted the allegations of a section 602 petition. The juvenile court subsequently lifted DEJ, imposed judgment, declared the minor a ward of the court, and placed him on probation with terms and conditions. (A.V., at pp. 701-702.) Following two violations and reinstatements of probation, the minor's probation officer recommended that the petition be dismissed because the minor had " 'completed all of his Court ordered obligations, has continued to submit chemical tests negative for intoxicating substances, and is now actively employed.' " (Id. at p. 704.) The minor's attorney asked the court to dismiss the petition and order the sealing of the minor's records. (Ibid.) The court dismissed the petition, but declined to order sealing. The court credited the prosecutor's assertion that the minor had not "substantially [] complied" with the terms of his probation, as contemplated in section 786, because a prior grant of DEJ had been lifted and he had sustained two probation violations. The court advised the minor that " 'as soon as you turn 18, you can petition the Court under [section] 781 to have this record sealed. It's not the automatic sealing under [section] 786. . . .' " (A.V., at p. 704.)
The Court of Appeal reversed and remanded with directions that the juvenile court dismiss the petition and order that all records pertaining to the petition be sealed pursuant to subdivision (a) of section 786. (A.V., supra, 11 Cal.App.5th at p. 712.) The appellate court concluded that "if A.V.'s performance was good enough to warrant dismissal of the petition, it was good enough to warrant the sealing of the petition." (Id. at p. 711.) The court also recognized that "section 786 requires only 'satisfactory completion' with probation and, to underscore the point, specifically defines 'satisfactory completion' as 'substantial[] compl[iance].' (§ 786, subd. (c)(1).) Substantial compliance is not perfect compliance." (Id. at p. 709.) The Court of Appeal made clear, however, that "[b]y reaching [our] conclusion, we do not restrict the court's discretion to find, or not to find, that a ward before the court has satisfactorily completed his or her probation. We hold only that, whichever way the juvenile court exercises its discretion, it applies to dismissing and sealing the petition." (Id. at p. 711, italics omitted.)
The Court of Appeal explained: "The language of section 786 is noteworthy in several respects. First, it consistently uses the word 'shall.' 'If a person who has been alleged or found to be a ward of the juvenile court satisfactorily completes [supervision or probation], the court shall order the petition dismissed . . . [and] shall order sealed all records pertaining to the dismissed petition . . . .' (§ 786, subd. (a), italics added.) 'Upon the court's order of dismissal of the petition, the arrest and other proceedings in the case shall be deemed not to have occurred . . . .' (§ 786, subd. (b), italics added.) 'For purposes of this section, satisfactory completion of [supervision or probation] shall be deemed to have occurred if the person has . . . not failed to substantially comply with the reasonable orders of supervision or probation . . . .' (§ 786, subd. (c)(1), italics added.) 'The word "shall" is usually deemed mandatory, unless a mandatory construction would not be consistent with the legislative purpose underlying the statute.' [Citations.] Section 786 by its terms requires both dismissal and sealing of the records upon a proper showing." (A.V., supra, 11 Cal.App.5th at p. 710.)
The court also noted, "It is noteworthy also that section 786 consistently uses the terms 'dismiss' and 'seal' together. Section 786, subdivision (a) provides that 'the court shall order the petition dismissed. The court shall order sealed all records pertaining to the dismissed petition.' (Italics added.) Section 786 states, in subdivision (b), that '[u]pon the court's order of dismissal of the petition, the arrest and other proceedings in the case shall be deemed not to have occurred.' (Italics added.) Section 786 subdivision (d) provides that '[a] court shall not seal a record or dismiss a petition pursuant to this section' in a section 707, subdivision (b) case. (Italics added.) Section 786, subdivision (e)(1) describes the court's order to seal the record and dismiss the petition as a single order." (A.V., supra, 11 Cal.App.5th at p. 710.)
Here, under the circumstances of this case, minor's reliance on A.V. to support his claim that the mandatory language of section 786 requires the juvenile court to order his school records sealed upon the dismissal of the petition is misplaced. A.V. involved the sealing of records pursuant to subdivision (a) of section 786, not former subdivision (e)(2) of section 786. Under subdivision (a) of section 786, if a minor satisfactorily completes informal supervision, it is mandatory for the juvenile court to dismiss the petition and "order sealed all records pertaining to the 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." (§ 786, subd. (a).) However, the requirement that the juvenile court automatically seal records upon the dismissal of the petition does not apply to the sealing of public agency records because the sealing of public agency records under section 786, subdivision (f)(2), is discretionary. Under section 786, subdivision (f)(2), "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." (Italics added.) The use of the word " ' "may" ' " is generally permissive. (People v. Reiley (1987) 192 Cal.App.3d 1487, 1489-1490.) By its express language, subdivision (f)(2) of section 786, unlike subdivision (a) of section 786, allows judicial discretion as to whether records held by a public agency and related to a dismissed petition should be sealed.
Under subdivision (f)(2) of section 786, the juvenile court has discretion to order the public agency records sealed if it determines sealing those records will promote the successful reentry and rehabilitation of minor. Accordingly, we find that section 786, subdivision (f)(2), does not mandatorily require the juvenile court to order his school records sealed upon the dismissal of the petition.
We also find that the juvenile court did not abuse its discretion in requiring minor to submit his school records to the court for review before ruling on his motion to seal his school records. Examining the exact same issue as in the present case, this court in In re M.L. (2017) 18 Cal.App.5th 120 (M.L.) recently held that the juvenile court acted within its discretion in requiring the minor to provide his school records for review by the court before ordering his school records sealed. (Id. at pp. 122-124.) We explained: "First, education records, including student disciplinary records, are already protected from disclosure under state and federal laws. (Rim of the World Unified School Dist. v. Superior Court (2002) 104 Cal.App.4th 1393, 1396-1399; 20 U.S.C § 1232g.) Thus, it is unclear why a court-ordered sealing of those records would be necessary. [¶] Second, the only proffered reason respecting how sealing of Minor's school records would 'promote the successful reentry and rehabilitation of' Minor was that Minor would be applying to colleges soon. [Citation.] However, Minor did not carry his burden of showing that colleges would require the entirety of Minor's school records, i.e., that colleges would require any records which would contain any reference to the allegation in the petition. Moreover, as the People and the court below have suggested, it could be beneficial for a school to continue to have access to information regarding the incident both for the purposes of helping to rehabilitate and educate Minor and to protect other students." (M.L., at p. 124.)
We also rejected the minor's claim that requiring him to provide the records to the court for review prior to any sealing order would be impractical. (M.L., supra, 18 Cal.App.5th at p. 124.) We noted that the minor "had more ready access to those documents than did the court," and that the minor "bore the burden of producing evidence to support his request." (Ibid.) We rationalized: "Without access to the records Minor was requesting be sealed, or at least without some more specific description of those records, the court could not truly exercise its discretion in ordering the records sealed. Likewise, as also suggested by the court below, ordering Minor's school records sealed without any specific description of which documents were being sealed posed the danger that the sealing order would be interpreted overly broad to include records to which school personnel might need access and which had nothing to do with the incident." (Ibid.) We concluded that the juvenile court acted within its discretion in denying the minor's request without prejudice to the minor renewing the request later with evidence to support it. (Ibid.)
We adhere to our conclusion in M.L. As such, we find that the juvenile court acted within its discretion in requiring minor to submit his school records for review before determining whether sealing minor's school records would promote the successful reentry and rehabilitation of minor. However, because the record reveals the juvenile court did not rule on minor's request to seal his school records, we believe a remand is necessary to allow minor to produce his school records, if he chooses to do so, and for the court to accordingly exercise its discretionary authority. (See Pen. Code, § 1260 [appellate courts "may . . . remand the cause to the trial court for such further proceedings as may be just under the circumstances"].)
III
DISPOSITION
The judgment is affirmed, and the matter is remanded with directions, in accordance with this opinion.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: McKINSTER
J. SLOUGH
J.