In re I.F.

Filed 6/16/17; pub. order 6/29/17 (see end of opn.)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re I.F., a Person Coming Under the

Juvenile Court Law.

THE PEOPLE,

Plaintiff and Respondent, A146979, A146980

v.

(Marin County

I.F., Super. Ct. Nos. JV25561A-I,

Defendant and Appellant. CIV1501532)

This is an appeal in a juvenile criminal matter involving defendant/appellant I.F.,

who turned 18 years old in November of 2014 (hereinafter, defendant). Defendant

challenges the juvenile court’s orders to deny his motion pursuant to former Welfare &

Institutions Code section 781 to seal his juvenile records following the dismissal of his

underlying wardship petition, and to grant the prosecution’s contingent motion for

disclosure of certain of these records for impeachment purposes in his upcoming adult

criminal trial.1 For reasons set forth below, we reverse the challenged orders and remand

to the juvenile court to apply section 786, the statute governing the sealing of juvenile

records enacted prior to the adjudication of defendant’s sealing petition, to this matter.

1

Unless otherwise indicated, all statutory citations herein are to the Welfare &

Institutions Code.

1

FACTUAL AND PROCEDURAL BACKGROUND

I. Case No. JV25561A (Juvenile Proceedings).

On April 2, 2012, an original wardship petition was filed pursuant to section 602

alleging that defendant, age 15, committed second degree robbery by means of force or

fear (Pen. Code, § 211) (count one), and possessed marijuana (Health & Saf. Code,

§ 11357, subd. (b)) (count two).

On April 18, 2012, defendant entered into a negotiated disposition wherein he

admitted grand theft, a lesser offense of count one, and the juvenile court dismissed count

two. At the subsequent disposition hearing, the juvenile court declared defendant a ward

of the court and placed him on probation.

During defendant’s probationary term, he sustained 21 referrals to the probation

department, prompting eight additional wardship petitions, which, in turn, resulted in four

sustained felonies and eight sustained misdemeanors.

The last wardship petition on behalf of defendant was filed on February 17, 2014,

subsequent to which the juvenile court sustained allegations that defendant possessed

cocaine (Health & Saf. Code, § 11357, subd. (b)), and resisted arrest (Pen. Code, § 148,

subd. (a)(1)).

On May 21, 2014, defendant was placed at a residential treatment facility in the

State of Iowa called Clarinda Academy. Defendant’s placement ended on November 25,

2014, five days after his 18th birthday, at which time he returned to his mother’s custody

in California.

On December 3, 2014, the juvenile court found that defendant had successfully

completed probation, and thus dismissed the probation order and terminated jurisdiction

and wardship. The juvenile court also dismissed defendant’s delinquency and probation

violation petitions. Defendant, in turn, filed a petition asking the court to seal his juvenile

records pursuant to section 781, subdivision (a).

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II. Case No. CIV1501532 (Adult Proceedings).

On April 1, 2015, a felony complaint was filed in Marin County charging

defendant, age 19, with attempted murder (Pen. Code, §§ 187, 664) (count one), and

robbery (Pen. Code, § 211) (count two).

On April 27, 2015, the prosecutor assigned to defendant’s criminal case filed a

petition for disclosure of his juvenile records pursuant to section 827 for the purpose of

impeaching him in his criminal trial. Defendant objected.

On June 11, 2015, the juvenile court ordered the parties to comply with the

procedures governing the sealing of juvenile records set forth in section 781 and

California Rules of Court, rule 5.830. The court also indicated that it would first decide

defendant’s petition to seal his juvenile records, before turning to the prosecutor’s section

827 discovery requests. The next day, the prosecutor filed a second petition for

disclosure, seeking discovery of 10 police reports in defendant’s juvenile file.

On July 9, 2015, in response to a court order, the probation department filed a

report regarding defendant’s section 781 petition, in which it recommended the court

deny it on the ground that “rehabilitation has not been attained.” This report

acknowledged, however, the record of defendant’s rehabilitation was not sufficient to

make an appropriate determination of rehabilitation because his probation had just

recently been terminated successfully. The probation department therefore recommended

delaying final determination of defendant’s sealing request until more time elapsed post-

completion of probation.

Accordingly, on August 3, 2015, the juvenile court ordered the probation

department to “provide a further rehabilitation report of [defendant] for the period of time

from December 4, 2014 to July 9, 2015.” This supplemental probation report was filed

September 16, 2015, and again recommended that defendant’s petition to seal his juvenile

records be denied on the ground that his rehabilitation had not been attained, in part

because of his March 29, 2015 arrest for attempted murder and robbery. Counsel for

neither party appeared at the September 16, 2015 hearing, and the court opted to take this

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matter under submission and to reconsider the prosecution’s petition for disclosure of

defendant’s juvenile records, which had been denied on August 10, 2015.

On October 2, 2015, the juvenile court issued a written order denying defendant’s

petition to seal his juvenile records pursuant to section 781.

On October 23, 2015, following a contested hearing, the juvenile court then

granted the prosecution’s petition for disclosure after learning from defense counsel that

the prosecution’s request had been limited to just two Marin County Sheriff reports in

defendant’s juvenile record.

Defendant’s timely notice of appeal of the trial court’s October 2, 2015 and

October 23, 2015 orders was filed on November 12, 2015.2

DISCUSSION

Defendant contends the juvenile court erred in denying his petition to seal his

juvenile records after he successfully completed probation and his juvenile wardship

petition was dismissed. Defendant further contends the court erred in thereafter granting

the prosecution’s petition for disclosure of certain of his juvenile records in his adult

criminal case.

In raising these challenges, defendant’s primary argument is that the juvenile court

should have applied section 786, which became effective January 1, 2015 and requires

automatic sealing in juvenile cases, such as this one, where the defendant successfully

completes probation for any offense not listed in section 707, subdivision (b). Further,

defendant argues that, to the extent he has forfeited the right to rely on section 786 on

appeal by failing to raise the issue below, any such forfeiture was due to ineffective

assistance from his counsel.

Alternatively, defendant argues that, even assuming the juvenile court properly

applied former section 781, the statute in effect when his petition to seal was filed on

2

We grant the People’s request for judicial notice of a court record indicating that

on November 1, 2016, in criminal case number SC192629A, minor pleaded guilty to

attempted murder in exchange for dismissal of the remaining counts and weapons

allegations. As of November 3, 2016, to wit, the date the People's request was filed, a

sentence had not been imposed. (Evid. Code, §§ 452, 459.)

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November 3, 2014, the juvenile court nonetheless erred in denying his petition because,

first, it permitted the district attorney’s office to improperly delay the sealing process in

violation of controlling law and, second, it wrongfully found that he had not been

successfully rehabilitated for purposes of section 781, subdivision (a). In addition,

defendant contends that he further received ineffective assistance from counsel based on

his attorney’s failure to appear at the hearing on his petition to seal scheduled for

September 16, 2015, with the result that his petition was submitted on the probation

department’s unopposed recommendation to deny sealing. And finally, defendant

contends that, after erroneously denying his petition to seal, the juvenile court further

erred by granting the prosecution’s contingent request for disclosure of two Sherriff’s

reports contained within his juvenile record for the purpose of impeaching him in his

upcoming adult criminal trial. We address each issue to the extent appropriate below.

I. Does Section 781 Or Section 786 Govern Defendant’s Petition to Seal?

In November 2014, when defendant filed the underlying petition to seal his

juvenile delinquency records, section 781, the governing statute, provided in relevant

part: “(a) 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, . . . in any case, at any time after the person has reached the

age of 18 years, 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, and public officials as the

petitioner alleges, in his or her petition, to have custody of the records. . . . If, after

hearing, the court finds that since the termination of jurisdiction or action . . . 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, including the juvenile court record, minute book entries, and entries on dockets,

and any other records relating to the case in the custody of the other agencies, entities,

and officials as are named in the order. . . . Once the court has ordered the person’s

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records sealed, the proceedings in the case shall be deemed never to have occurred . . .”3

(Former § 781, subd. (a); italics added.)

Applying this former version of section 781 to defendant’s petition, the juvenile

court found defendant was not entitled to have his records sealed because he failed to

meet the statutory requirement of attaining rehabilitation to its satisfaction. In so finding,

the court noted, among other things, that defendant failed to graduate from high school or

“obtain any particular skills for employment” while at the residential treatment program,

and was arrested and remained in custody for four felony offenses occurring in March

2015. (See former § 781, subd. (a).) Accordingly, the juvenile court denied his petition

and granted the modified petition of the prosecution for disclosure of a limited number of

defendant’s juvenile records for impeachment purposes in his upcoming adult criminal

trial.

Several months prior to the juvenile court’s orders, however, on January 1, 2015,

section 786 became the operative statute with respect to petitions to seal juvenile

delinquency records where, as here, the defendant successfully completes probation.

This new statute provided in relevant part: “If the minor satisfactorily completes . . . a

term of probation for any offense not listed in subdivision (b) of Section 707, 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 . . . .”4 (Former § 786 (2015

3

The former statute provided two narrow exceptions to the rule that a sealed record

is not open to inspection, neither of which applies here: (1) when there is good cause to

unseal the records so they can be admitted into evidence in a defamation action (former

§ 781, subd. (b)), and (2) when information about an adjudication has been provided to

the Department of Motor Vehicles and is disclosed by that agency to an authorized

insurer for the limited purpose of determining insurance eligibility and rates. (Former

§ 781, subd. (c); see also California Rules of Court, rule 5.830.)

4

Section 786 has twice been amended since its enactment. (Stats 2015 ch 368 § 1

(AB 666); ch 375 § 1.5 (AB 989), both effective January 1, 2016; Stats 2016 ch 86 § 312

(SB 1171), effective January 1, 2017; and Stats 2016 ch 858 § 1 (AB 1945).) In this case,

6

amendment) hereinafter “former section 786”.) It is undisputed that defendant’s juvenile

offenses are not listed in section 707, subdivision (b).

As this amendatory statutory language reflects, juvenile courts now must

automatically seal juvenile records so long as the specified requirements are met. (See In

re Y.A. (2016) 246 Cal.App.4th 523, 526-527 [“the unambiguous language of . . . section

786 required the court to seal records pertaining to the ‘dismissed petition’ based upon

first finding Minor had satisfactorily completed probation for an offense alleged in the

petition”].) At the same time, section 786 is silent as to whether it applies to matters

pending when it became effective on January 1, 2015. As both parties recognize, there is

a “ ‘well-established presumption that statutes apply prospectively in the absence of a

clearly expressed contrary intent.’ ” (See Californians for Disability Rights v. Mervyn’s

LLC (2006) 39 Cal.4th 223, 230 [Californians for Disability Rights]. See also In re Y.A.,

supra, 246 Cal.App.4th at p. 528 [“ ‘new or amended statute applies prospectively only,

unless the Legislature clearly expresses an intent that it operate retroactively’ ”].)

On appeal, defendant argues for the first time that, as a procedural statute that does

not change the legal consequences of past conduct by imposing new or different

liabilities based upon such conduct, section 786 should apply prospectively to all pending

cases as of the statute’s January 1, 2015 effective date, including this case, where the

underlying petition to seal was filed before the statute’s effective date, but the

adjudication and final order on the petition occurred afterward. (See Californians for

Disability Rights, supra, 39 Cal.4th at pp. 231-232 [“courts have found to be prospective,

and thus permissible, the application to pending cases of new statutes . . . [where]

application of the new law to pending cases properly governed the conduct of

proceedings following the law’s enactment without changing the legal consequences of

past conduct”].) In the alternative, defendant contends that, as an ameliorative statute

that lessens punishment for criminal defendants, section 786 should apply retroactively in

however, we are concerned only with the version of section 786 that became effective on

January 1, 2015, while defendant’s petition was pending.

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accordance with the rule set forth in People v. Estrada (1965) 63 Cal.2d 740 [Estrada].

This rule provides 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. . . . This intent seems obvious, because to hold otherwise would be to

conclude that the Legislature was motivated by a desire for vengeance, a conclusion not

permitted in view of modern theories of penology.” (Estrada, supra, 63 Cal.2d at p. 745;

see also People v. Brown (2012) 54 Cal.4th 314, 324-325 [the Estrada rule applies only

when a legislative act intentionally “mitigate[s] the punishment for a particular criminal

offense”].)

For reasons set forth below, we agree with defendant’s first argument – to wit, that

his sealing request should have been considered in light of section 786, the statute

governing the sealing of juvenile records following dismissal of a juvenile’s wardship

petition that became effective while his sealing petition remained pending. However,

before turning to our analysis, we briefly address the People’s contention that defendant

forfeited the right to challenge the orders denying his petition to seal and granting the

prosecution’s petition for disclosure on the basis of the newly-enacted section 786 by

failing to raise this issue before the juvenile court. We agree with the People that, as a

general matter, the forfeiture doctrine applies to juvenile matters. (People v. Tully (2012)

54 Cal.4th 952, 1075.) Nonetheless, in this case, we conclude the best course of action is

to exercise our discretion to consider defendant’s contention, given that it involves a

purely legal issue that may be decided on the undisputed factual record. We thus turn to

the relevant law.

In the more typical situation, where “a statute’s application to a given case is

challenged as impermissibly retroactive, we typically begin our analysis by reiterating the

presumption that statutes operate prospectively absent a clear indication the voters or the

Legislature intended otherwise. [Citations.] The presumption embodies ‘ “ ‘[t]he first

rule of construction[, namely,] that legislation must be considered as addressed to the

8

future, not to the past.” ’ ” [Citations.]’.)” (Californians for Disability Rights, supra, 39

Cal.4th at p. 230.)

Here, however, the issue is a bit different, in that the relevant statutory framework

was amended after the underlying petition to seal was filed, but before it was adjudicated.

Under these circumstances, defendant insists that we are not faced with retroactive

application of a statute, but, rather, prospective application of statute. We agree. As the

California Supreme Court in Californians for Disability Rights explained: “Having

articulated the presumption, ‘[t]here remains the question of what the terms “prospective”

and “retroactive’ mean.’ [Citation.] . . . . ‘In deciding whether the application of a law is

prospective or retroactive, we look to function, not form. [Citations.] We consider the

effect of a law on a party's rights and liabilities, not whether a procedural or substantive

label best applies. Does the law “change[] the legal consequences of past conduct by

imposing new or different liabilities based upon such conduct[?]” [Citation.] Does it

“substantially affect[] existing rights and obligations[?]” [Citation.] If so, then

application to a trial of preenactment conduct is forbidden, absent an express legislative

intent to permit such retroactive application. If not, then application to a trial of

preenactment conduct is permitted, because the application is prospective.’ [Citation.]

Viewed functionally, a statute that establishes rules for the conduct of pending litigation

without changing the legal consequences of past conduct ‘ “ ‘is not made retroactive

merely because it draws upon facts existing prior to its enactment . . . . [Instead,] [t]he

effect of such statutes is actually prospective in nature since they relate to the procedure

to be followed in the future.’[Citations.] For this reason, we have said that “it is a

misnomer to designate [such statutes] as having retrospective effect.’ ” ’ [Citations.]”

(Californians for Disability Rights, supra, 39 Cal.4th at pp. 230-231.)5

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In Californians for Disability Rights, the high court further illustrated the

difference between retroactive and prospective application of new statutes to pending

cases as follows: “Applying these rules in illustrative cases, we have found to

be retroactive, and thus impermissible, the application of new statutes to pending cases in

ways that would have: (a) expanded contractors' tort liability for past conduct by

imposing broader duties than existed under the common law [citation]; (b) subjected

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Here, as previously noted, the former version of section 781, relied upon by the

juvenile court to deny defendant’s petition, permitted sealing of a juvenile’s record only

upon a showing that the juvenile had not been convicted of a felony or of any

misdemeanor involving moral turpitude, and that rehabilitation had been attained to the

satisfaction of the court. (Former § 781, subd. (a).) Thus, by enacting section 786, the

legislature eliminated the requirement of satisfactory rehabilitation and instead mandated

automatic sealing of a juvenile’s records so long as the juvenile completed probation for

a non-section 707, subdivision (b) offense—to wit, statutory requirements defendant has

undisputedly met. (See In re Y.A., supra, 246 Cal.App.4th at pp. 526-527.)

Considering this statutory change under the legal lens articulated by the California

Supreme Court in Californians for Disability Rights, supra, 39 Cal.4th 223, we conclude

that automatic sealing of a juvenile’s records so long as the juvenile has met the more

lenient requirements set forth in the newly added section 786 is clearly not punitive, nor

does it change the legal consequences of a juvenile’s past conduct by imposing new or

different liabilities based upon such conduct, or substantially affect his or her existing

rights and obligations. Rather, the statutory change — permitting juveniles to have their

records automatically sealed after successful completion of probation rather than after

tobacco sellers to tort liability for acts performed at a time when they enjoyed the

protection of an immunity statute [citation]; and (c) subjected persons to increased

punishment for past criminal conduct, or to punishment for past conduct not formerly

defined as criminal [citation]. In each of these cases, application of the new law to

pending cases would improperly have changed the legal consequences of past conduct by

imposing new or different liabilities based upon such conduct. (See [citation].) [¶] In

contrast, courts have found to be prospective, and thus permissible, the application to

pending cases of new statutes: (a) requiring plaintiffs suing under an environmental law

to provide a certificate of merit [citation]; (b) eliminating the right under the anti-SLAPP

law [citation] to dismiss certain public-interest lawsuits [citation]; and (c) eliminating the

right to appeal (as distinguished from the right to file a petition for writ of mandate) from

a superior court’s decision upholding the Medical Board of California’s decision to

revoke a physician’s license [citation]. In each of these cases, application of the new law

to pending cases properly governed the conduct of proceedings following the law’s

enactment without changing the legal consequences of past conduct”].” (Californians for

Disability Rights, supra, 39 Cal.4th at pp. 231-232.)

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proving their attainment of rehabilitation to the court’s satisfaction —is better

characterized as a change in the procedural rules for sealing juvenile delinquency records,

rather than imposition of new or different liabilities for committing criminal conduct. In

other words, while the juvenile court was granted a degree of discretion under former

section 781 when deciding whether to seal a juvenile’s records (to wit, discretion to

decide whether the juvenile was rehabilitated to the court’s satisfaction), the legislature,

by enacting section 786, effectively made the decision to seal a juvenile’s records an

administrative decision based on the type of offense committed and the juvenile’s

completion of probation for that offense. Thus, because “[n]othing a [person] might

lawfully do before [the amendment] is unlawful now, and nothing earlier forbidden is

now permitted,” we conclude application of section 786 must be deemed prospective

rather than retroactive. (See Californians for Disability Rights, supra, 39 Cal.4th at

p. 231 [“Viewed functionally, a statute that establishes rules for the conduct of pending

litigation without changing the legal consequences of past conduct ‘ “ ‘is not made

retroactive merely because it draws upon facts existing prior to its enactment . . . .’ ” ’ ”];

see also Matteo v. Department of Motor Vehicles (2012) 209 Cal.App.4th 624, 634

[affirming a trial court order directing the Department of Motor Vehicles to grant the

respondent a restricted driver’s license based upon his compliance with an amended

version of a Vehicle Code statute that became effective July 1, 2010, a date occurring

after respondent’s commission of a drunk driving offense, but before his conviction for

the offense]. Cf. In re Y.A., supra, 246 Cal.App.4th at pp. 526-528 [declining to hold

that the amended version of section 786 operated retroactively, and affirming a juvenile

court order to seal juvenile records that was based on the version of section 786 in effect

when the sealing order was issued].)

Accordingly, we agree with defendant that his petition to seal should have been

governed by the version of section 786 in effect at the time of the juvenile court’s

adjudication of it. We thus reverse the juvenile court’s orders and remand this matter

with the instruction that the court apply former section 786 to defendant’s petition to seal,

11

as well as to the contingent petition by the prosecution for disclosure of his juvenile

records.

II. This Court Need Not Consider Defendant’s Alternative Arguments.

Finally, given our conclusion that reversal and remand is necessary in this case,

we need not address defendant’s alternative arguments for reversal that he twice received

ineffective assistance from counsel, that consideration of his petition was wrongfully

delayed by the district attorney’s office, and that the juvenile court erred in finding he had

not attained rehabilitation to its satisfaction.

DISPOSITION

The juvenile court orders denying defendant’s petition to seal and granting the

prosecution’s petition for disclosure are reversed, and the matter remanded for

reconsideration in light of the opinions reached herein.

_________________________

Jenkins, J.

We concur:

_________________________

McGuiness, P. J.

_________________________

Pollak, J.

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Filed 6/29/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

In re I.F., a Person Coming Under the

Juvenile Court Law.

THE PEOPLE,

A146979, A146980

Plaintiff and Respondent,

v. (Marin County Super. Ct.

Nos. JV25561A-I, CIV1501532)

I.F.,

Defendant and Appellant. ORDER CERTIFYING OPINION

FOR PUBLICATION

BY THE COURT:

The opinion in the above-entitled matter filed on June 16, 2017, was not certified

for publication in the Official Reports. For good cause, the request for publication is

granted.

Pursuant to California Rules of Court, rules 8.1120 and 8.1105(c)(2), (3) and (4),

the opinion in the above-entitled matter is ordered certified for publication in the Official

Reports.

Dated: _______________ ___________________________________Acting P.J.

1

Trial Court: Superior Court, Marin County

Trial Judge: Hon. Faye D'Opal, Judge

Counsel for Appellant: Violet Elizabeth Grayson,

By Appointment Of The Court Of Appeal,

Under The First District Appellate Project’s

Independent Case System

Counsel for Respondent: Kamala D. Harris, Attorney General,

Gerald A. Engler, Chief Assistant Attorney

General, Jeffrey M. Laurence, Senior

Assistant Attorney General, Donna M.

Provenzano, Supervising Deputy Attorney

General, and Christina Vom Saal, Deputy

Attorney General

In re I.F., A146979, A146980

2