Opinion
A163931 A165077
01-31-2023
In re ERIC N., a Person Coming Under the Juvenile Court Law. v. ERIC N., Defendant and Appellant. THE PEOPLE, Plaintiff and Respondent,
NOT TO BE PUBLISHED
(Solano County Super. Ct. No. J41321)
TUCHER, P.J.
Eric N. (Eric) appeals orders denying his requests to dismiss his juvenile petitions and seal his record. We conclude the juvenile court did not apply the correct standards in evaluating his requests to dismiss under section 782 of the Welfare and Institutions Code and to seal his records under section 781, and we shall remand the matter for the court to exercise its discretion under the correct standards. We also conclude that, in the event the juvenile court declines to dismiss the petitions under section 782, Eric is nevertheless entitled to have them dismissed under section 1179.
All undesignated references are to the Welfare and Institutions Code.
FACTUAL AND PROCEDURAL BACKGROUND
In 2008, a juvenile wardship petition (§ 602) was filed in Napa County alleging Eric, then 13 years old, committed misdemeanor oral copulation of two people under the age of 18 (Former Pen. Code, § 288a, subd. (b)(1); see Pen. Code, § 287, subd. (b)(1)). Eric admitted the allegations of the petition. The Napa County juvenile court declared him a ward on May 14, 2008, and he was placed in a sexual offender treatment program. He was continued as a ward and returned to his mother's care on December 28, 2011 after he successfully completed treatment.
A wardship petition was filed in Solano County in February 2012, alleging then 17-year-old Eric committed a lewd act on a child under the age of 14. (Pen. Code, § 288, subd. (a).) Eric admitted the allegation. On August 22, 2012, the juvenile court continued him as a ward and committed him to the California Department of Corrections and Rehabilitation, Division of Juvenile Justice (DJJ), calculating his maximum period of confinement as eight years, eight months, and ordered him to register as a sex offender upon his release. (Pen. Code, § 290.)
The Solano County juvenile court accepted the transfer of the Napa County case on October 17, 2012.
Eric arrived at DJJ on November 6, 2012, and he participated in a sexual behavior treatment program. He made progress in the program and was committed to his treatment. He completed high school, and he was elected grievance clerk in his residential program. However, less than a year before his discharge, he attempted to sexually assault a peer because he was" 'stressed out' and wanted his sexual needs met," and he did not complete his sex-offender treatment. DJJ recommended that Eric be referred to outpatient sex-offender treatment after his discharge.
Eric was discharged from DJJ, returned to Solano County, and placed on probation on March 4, 2015. Among his terms of probation, he was required to enroll in a sex-offender treatment program.
Eric was placed in a transitional living program in March 2015 and received mandatory sex-offender treatment through New Beginnings Education Programs, Inc. It appears that he attended his sex-offender treatment program regularly, but he did not complete it or pay full victim restitution before he turned 21 in June 2015, when the wardship was terminated.
DJJ granted Eric an honorable discharge on January 11, 2019. Eric moved to dismiss the juvenile petitions pursuant to section 782, seal his juvenile record, and terminate the sex registration pursuant to section 781. He argued that since his release from probation in 2015, he had lived a lawabiding life and accrued no criminal record, he had stable employment, he lived at home and cared for his disabled mother, and he volunteered in the community. After a hearing on October 28, 2021, the juvenile court denied the motion. In case No. A163931, Eric appealed the order.
On January 26, 2022, while this appeal was pending, the DJJ wrote to the juvenile court informing it that Eric had received an honorable discharge and that, pursuant to section 1179, subdivision (b), those who receive an honorable discharge and petition the court for relief may cite, and the court shall recognize receipt of, an honorable discharge as evidence of rehabilitation. The honorable discharge order stated that since his discharge from probation, Eric had obtained steady employment, furthered his education, rebuilt family relationships, and refrained from criminal conduct.
Eric then moved for an order dismissing the petitions pursuant to section 1179, subdivision (d) and sealing his records. On April 18, 2022, the court ruled it could not hear the request because of the pending appeal. In case No. A165077, Eric appealed from this order. We consolidated the appeals in case Nos. A163931 and A165077 for purposes of briefing, oral argument, if any, and decision.
DISCUSSION
I. Dismissal of Petitions
Two statutes authorizing dismissal of a juvenile petition are at issue in this case. First, at the time of the rulings at issue here, section 782 authorized "[a] judge of the juvenile court in which a petition was filed" to dismiss the petition if it found "that the interests of justice and the welfare of the person who is the subject of the petition require that dismissal" or that the person is "not in need of treatment or rehabilitation."
Section 782 has since been amended, inter alia, to add the words "or that has taken jurisdiction of a case pursuant to Section 750" to the first sentence of this section (now designated subdivision (a)(1)). (Assem. Bill 2629, Stats. 2022, ch. 970, § 1.)
Second, section 1179 provides that "[e]ach person honorably discharged by the Board of Juvenile Hearings shall thereafter be released from all penalties or disabilities resulting from the offenses for which the person was committed, including, but not limited to, penalties or disabilities that affect access to education, employment, or occupational licenses." (§ 1179, subd. (a).) However, this release does not affect the requirement of those convicted under specified statutes to register as a sex offender (Pen. Code, § 290.008) and it does not affect certain limitations on qualification to serve as a peace officer (Gov. Code, § 1029). (§ 1179, subds. (a) &(c).) The court must accept receipt of an honorable discharge "as evidence of rehabilitation." (§ 1179, subd. (b).) The DJJ must certify the honorable discharge in writing and transmit the certification to the committing court, which "shall thereupon dismiss the accusation and the action pending against that person." (§ 1179, subd. (d).)
In the order on appeal in case No. A163931, the juvenile court denied Eric's motion to dismiss the juvenile petitions pursuant to section 782. He makes three challenges to this ruling: that he was statutorily entitled to dismissal under section 1179, which provides that the juvenile court "shall" dismiss the petition after an honorable discharge; that his counsel rendered ineffective assistance by proceeding only under section 782, under which dismissal of a petition is discretionary; and that even under section 782, denial of the motion was an abuse of discretion.
The Attorney General has offered a partial concession. As to the Napa County case, he argues the Solano County juvenile court did not have authority to dismiss the petition. But, he concedes, Eric had a right to have the Solano County petition dismissed under section 1179; this concession, the Attorney General argues, renders moot Eric's arguments that he received ineffective assistance of counsel and that it was an abuse of discretion to decline to dismiss the Solano County petition under section 782.
A. Authority to Dismiss Napa County Petition
If the only issue before us were the propriety of the order under section 782, the Attorney General's argument that the juvenile court lacked authority to dismiss the petition would find some support in the case law. At the time the court made its order, section 782 authorized the court "in which a petition was filed" to dismiss the petition. (Former § 782, subd. (a).) The court in Steven R. v. Superior Court (2015) 241 Cal.App.4th 812 (Steven R.), ruled that this "unambiguous" provision meant what it said: only the court in which a juvenile petition was filed-not a court to which it was transferred for disposition-had jurisdiction under section 782 to dismiss it. (Steven R., at pp. 815-816; see id., at pp. 817-821.)
Section 1179, however, which the Attorney General concedes mandates dismissal here, contains no such limitation. Rather, it requires the DJJ to send "the committing court" certification of a minor's honorable discharge, which must then dismiss the action. (§ 1179, subd. (d).) It appears from the record that the Solano County court committed Eric not only for the offense in Solano County but also for the Napa County offenses for two reasons. First, it calculated his maximum term of confinement as eight years, eight months, an amount unexplained in the record before us, but that may be reached by adding the eight-year maximum for a felony violation of section 288, subdivision (a) and two terms of one-third of the one-year term for the two misdemeanor violations of former section 288a, subdivision (b)(1). Second, in committing Eric to the DJJ, the Solano County court granted credit for 87 days he spent in custody in Napa County. It is thus apparent that Solano County became the committing court for both the Napa County and Solano County petitions, and it was therefore authorized to dismiss both petitions under section 1179.
B. Dismissal Under Section 1179
Under section 1179, as the Attorney General (at least as to the Solano County petition) concedes, Eric is entitled to have the petitions dismissed. He was granted an honorable discharge, and the DJJ certified the discharge and sent notice to the trial court. In these circumstances, the committing court "shall thereupon dismiss the accusation and the action pending against that person." (§ 1179, subd. (d).) The mandatory language indicates this duty exists independent of the court's discretionary authority under section 782. (See In re Jhonny S. (2022) 85 Cal.App.5th 282.)
We recognize that Eric did not rely on section 1179 before the juvenile court. But the Attorney General concedes that, as a matter of law, he was entitled to such a dismissal. In the circumstances, we will not treat the issue as forfeited. (See Mitchell v. United National Ins. Co. (2005) 127 Cal.App.4th 457, 470-471 [appellate court has discretion to consider for first time question on law on undisputed facts].) As a result, we need not consider Eric's argument that his counsel provided ineffective assistance by neglecting to raise the issue.
C. Dismissal Under Section 782
Eric also contends the juvenile court abused its discretion in declining to dismiss his petition under section 782. The Attorney General argues we need not reach this issue in light of his concession that dismissal of the Solano County petition was required under section 1179. We are not persuaded the concession moots the issue. The scope of a dismissal mandated by section 1179, subdivision (d), while broad, is arguably narrower than dismissal under section 782. In particular, section 1179 specifies that dismissal does not affect certain persons' duty to register as a sex offender, and that one who has received an honorable discharge may not serve as a peace officer if prohibited by Government Code section 1029, with limited exceptions. (§ 1179, subds. (a), (c).) Dismissal under section 782, on the other hand, "is fundamentally different from other forms of dismissal"; it is "a general dismissal statute, and once a juvenile court has determined in its discretion 'the interest of justice and the welfare of the person who is the subject of the petition require that dismissal' (§ 782), such a dismissal is intended to erase a prior adjudication-not merely reduce or mitigate it-and to thereby protect the person from any and all future adverse consequences based on that adjudication." (In re David T. (2017) 13 Cal.App.5th 866, 877.)
In denying Eric's motion, the juvenile court cited two factors. The court concluded first that, because Eric had not completed sex-offender treatment, he was in need of further rehabilitation, and second, that removal of the requirement that he register as a sex offender would be contrary to public safety. But in making this ruling, the court appears to have overlooked the provision in section 1179 that "[p]ersons who receive an honorable discharge and who petition the court for relief otherwise provided for by law may cite and the court shall recognize receipt of an honorable discharge as evidence of rehabilitation." (§ 1179, subd. (b).) Dismissal of a juvenile petition under section 782 is "relief otherwise provided for by law," and Eric explained in his moving papers that he had received an honorable discharge from DJJ and, in his own comments to the court, briefly mentioned the discharge. However, no one mentioned the effect of subdivision (b) of section 1179, either in written briefing or at the hearing. While that statute does not provide that an honorable discharge is conclusive evidence of rehabilitation for purposes of "relief otherwise provided for by law" (§ 1179, subd. (b)), there is no indication here that the court took its requirements into account in making its ruling. This, we conclude, was an abuse of discretion. We shall therefore remand the matter for the court to reconsider Eric's motion under section 782 under the correct legal standards, recognizing the honorable discharge as evidence of rehabilitation.
We also note that subsequent events call into question the second basis for the juvenile court's ruling, that public safety would be served by a continuing duty to register as a sex offender. On July 20, 2022, the Attorney General notified Eric that he was no longer required to register as a sex offender based on his 2012 adjudication. On remand, the juvenile court shall take this notification into account in exercising its discretion.
On August 4, 2022, Eric filed a request for judicial notice of the Attorney General's notification. We grant the request. Eric filed a second request for judicial notice on October 24, 2022, of an October 4, 2022 press release from the Governor's office issued upon his signing the Youth Justice Act, Assembly Bill 2629. We deny the request as unnecessary to our decision. Finally, Eric filed a motion to augment the record on June 14, 2022, which we construed as a request for judicial notice. The requested materials have since been added to the record on appeal, and Eric acknowledges in his opening brief that the motion to augment/request for judicial notice is now moot.
Eric also argues that the court in Steven R. erred in holding that only a court in the county in which a juvenile petition was filed may dismiss it under section 782. (Steven R., supra, 241 Cal.App.4th at pp. 815-816.) We need not consider this argument. Effective January 1, 2023, authority to dismiss a petition under section 782 now expressly extends to a court to which a case has been transferred under section 750. (§ 782, subd. (a); Assem. Bill 2629, Stats. 2022, ch. 970, § 1.)
II. Denial of Motion to Seal Juvenile Record
The juvenile court also denied Eric's motion to seal his juvenile records. Section 781, subdivision (a) authorizes a court to seal juvenile records if certain timing or age conditions are met, after which "the person has not been convicted of a felony or of any misdemeanor involving moral turpitude and . . . rehabilitation has been attained to the satisfaction of the court." Eric contends he is entitled to a finding of rehabilitation under section 782 and that, as a result, he is likewise entitled to have his records sealed under section 781. We review the juvenile court's ruling for abuse of discretion. (In re J.W. (2015) 236 Cal.App.4th 663, 668.)
For the same reasons we reverse the order declining to dismiss the petitions under section 782, we also reverse the order declining to seal Eric's records. That is, the record indicates the juvenile court did not take into account Eric's honorable discharge from the DJJ as evidence of his rehabilitation. On remand, the court shall reconsider the motion under the correct legal standards, giving weight to Eric's honorable discharge as evidence of his rehabilitation.
III. Motion under Section 1179
Eric also contends the juvenile court erred in refusing to consider his motion to dismiss the petitions under section 1179, subdivision (d), which he brought during the pendency of his appeal from the order denying the motion to dismiss under section 782 and seal his records under section 781. Because we conclude section 1179 entitles Eric to dismissal of the petitions, we need not consider this argument.
DISPOSITION
The October 28, 2021 order denying Eric's motion to dismiss the petitions and seal his record is reversed, and the matter is remanded to the juvenile court for further proceedings consistent with this opinion. In considering Eric's motion to dismiss the petitions, the juvenile court shall first exercise its discretion under section 782, applying the standards set forth in this opinion. In the event it declines to dismiss the petitions under section 782, it shall then dismiss them under section 1179.
WE CONCUR: FUJISAKI, J., RODRIGUEZ, J.