Opinion
A149013
05-26-2017
In re O.V., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. O.V., Defendant and Appellant.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Contra Costa County Super. Ct. No. J1000116)
O.V. (Minor) appeals an order denying in part his request to have his juvenile records sealed. He contends that revisions to Welfare and Institutions Code section 786, effective after his juvenile wardship petition was dismissed, applied retroactively to authorize the juvenile court to seal his records. We shall affirm the order.
All undesignated statutory references are to the Welfare and Institutions Code.
I. BACKGROUND
A juvenile wardship petition was filed in February 2014 alleging Minor, then 15 years old, committed misdemeanor petty theft. The juvenile court placed him on informal probation for six months in September 2014. (§ 654.2.) He completed probation successfully, and, in March 2015, the juvenile court dismissed the petition, ruled that Minor's arrest was deemed not to have occurred, and terminated the case.
At the March 2015 hearing, the juvenile court also considered Minor's motion to have his records sealed; this request included not only his juvenile court records, but also records of the prosecution, the probation department, and law enforcement agencies. At the time, section 786 provided in pertinent part: "If a minor successfully completes (a) an informal program of supervision pursuant to Section 654.2, . . . the court shall order the petition dismissed, and the arrest upon which the judgment was deferred shall be deemed not to have occurred. The court shall order sealed all records pertaining to that dismissed petition in the custody of the juvenile court . . . ." The trial court ordered the records in court custody sealed, but denied the request as to records of other agencies. It concluded that section 786 "by its specific language, says the records in the court's custody shall be sealed," and went on, "[t]o the extent that the [L]egislature changes in the future [section] 786, we can deal with that. But I believe that's the correct interpretation."
In May 2016, Minor brought a new motion to seal his records, including his arrest and probation records and his records in the California Department of Justice. This motion was based upon a recent amendment to section 786, effective January 1, 2016. (Stats. 2015, ch. 368, § 1.) As amended, section 786 provided in pertinent part: "If a minor satisfactorily completes (1) an informal program of supervision pursuant to section 654.2, . . . 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." (Former § 786, subd. (a), italics added.)
Effective January 1, 2017, the Legislature again amended section 786 in a manner that does not affect our analysis. (Stats. 2016, ch. 858, § 1.) --------
On June 2, 2016, the trial court denied the motion on the grounds that it lacked jurisdiction over a closed case and that the recent amendments to section 786 did not provide authority to seal police and Department of Justice records under a previously-granted successful termination of probation.
II. DISCUSSION
Minor contends that, even after the petition was dismissed, the juvenile court retained authority to rule on a motion to seal his records, and that in ruling on such a motion, the court should apply the version of section 786 that went into effect after his case was dismissed.
It is well established that "a 'new or amended statute applies prospectively only, unless the Legislature clearly expresses an intent that it operate retroactively.' [Citation.]" (In re Y.A. (2016) 246 Cal.App.4th 523, 526; accord Pen. Code, § 3.) This rule is subject to a qualification, however, where a criminal statute is amended "after the prohibited act is committed, but before final judgment, by mitigating the punishment." (In re Estrada (1965) 63 Cal.2d 740, 742 (Estrada).) In that case, the punishment provided by the amended statute should be imposed. (Ibid.) This rule is based on our high court's conclusion that "[w]hen the Legislature amends a statute so as to lessen the punishment it has obviously expressly determined that its former penalty was too severe and that a lighter punishment is proper as punishment for the commission of the prohibited act. It is an inevitable inference that the Legislature must have intended that the new statute imposing the new lighter penalty now deemed to be sufficient should apply to every case to which it constitutionally could apply." (Id. at p. 745.) Minor argues that the expansions on sealing criminal records constituted a mitigation of punishment and falls within this rule.
Later cases, however, "have limited Estrada's retroactivity exception to statutory changes that mitigate the penalty for a particular crime." (People v. Cervantes (2017) 9 Cal.App.5th 569, 600.) In People v. Brown (2012) 54 Cal.4th 314, 324 (Brown), our high court explained that "Estrada is today properly understood, not as weakening or modifying the default rule of prospective operation codified in [Penal Code] section 3, but rather as informing the rule's application in a specific context by articulating the reasonable presumption that a legislative act mitigating the punishment for a particular criminal offense is intended to apply to all nonfinal judgments. [Citation.]" (Italics added.) Applying this rule, the high court concluded that a statute increasing the rate at which prisoners could earn credit for good behavior should not be applied retroactively because it did not "represent a judgment about the needs of the criminal law with respect to a particular criminal offense." (Id. at p. 325.)
Here, of course, the petition has been dismissed; thus, unlike the situation in Estrada, we are not considering the effect of an amendment on a nonfinal judgment. (Estrada, supra, 63 Cal.2d at p. 742.) Moreover, the amendment to section 786 does not mitigate the punishment for a particular criminal offense as required for retroactivity under Brown and Estrada. That is, the changes to the statute do not represent a legislative judgment that the minor's offense—petty theft—was punished too harshly under prior law. We conclude the Legislature did not intend the amendments to section 786 to apply in circumstances such as this. (See In re Y.A., supra, 246 Cal.App.4th at p. 528 ["There is no expression of any intent that the amended version of section 786 operate retroactively . . ."].)
We are not persuaded otherwise by Minor's reference to legislative history indicating that, by the 2015 amendment, the Legislature wished to open pathways to college and jobs for youth with criminal histories. This history does not show that the Legislature intended the amendment to apply to cases that had already been dismissed at the time of its enactment. We also note that Minor is not without a remedy: A minor may petition the court, pursuant to section 781, to seal probation records and the records of other agencies, including law enforcement agencies, "five years or more after jurisdiction of the juvenile court has terminated as to the person . . . or, in any case, at any time after the person has reached 18 years of age," upon a showing that the minor has not been convicted of a felony or of a misdemeanor involving moral turpitude and has been rehabilitated. (§ 781, subd. (a).)
III. DISPOSITION
The June 2, 2016 order is affirmed.
/s/_________
Rivera, J. We concur: /s/_________
Reardon, Acting P.J. /s/_________
Streeter, J.