BILL NUMBER: AB 168 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY APRIL 14, 2009
AMENDED IN ASSEMBLY MARCH 19, 2009
INTRODUCED BY Assembly Member Nava
( Coauthors: Assembly Members
Jeffries, Nielsen, and Price )
JANUARY 28, 2009
An act to amend Sections 781 and 827 of the Welfare and
Institutions Code, relating to juveniles.
LEGISLATIVE COUNSEL'S DIGEST
AB 168, as amended, Nava. Juvenile case files: sexually violent
predator proceedings.
Existing law provides for sentencing enhancements on the basis of
prior felony convictions, which are defined to include certain
offenses adjudicated before the juvenile court. However, existing law
generally provides for the confidentiality of juvenile records,
reports, and related information. Those records may be sealed and
eventually destroyed, unless the subject of the record was found to
be a ward of the court because of the commission of specified felony
offenses committed when he or she was 14 years of age or older.
Certain persons, including law enforcement personnel who are actively
participating in criminal or juvenile proceedings involving a minor,
may inspect those records and reports concerning that minor, but
those persons may not disseminate the records or reports, or related
information, without the prior approval of the presiding judge of the
juvenile court, except as specified.
Existing sexually violent predator laws set forth procedures under
which a person under the jurisdiction of the Department of
Corrections and Rehabilitation may be referred for evaluation at
least 6 months prior to the person's scheduled date for release from
prison if the director determines that the person may be a sexually
violent predator, as defined. The sexually violent predator laws
provide, under certain circumstances, that this person may be
required to stand trial, be found beyond a reasonable doubt to be a
sexually violent predator, and be committed for an indeterminate term
to the custody of the State Department of Mental Health for
appropriate treatment and confinement in a secure facility until his
or her diagnosed mental disorder has so changed that he or she is not
likely to engage in sexually violent criminal behavior if
discharged, as specified.
This bill would authorize, in any investigation, action, or
proceeding based on the sexually violent predator laws, a court, upon
a showing of good cause, to permit the Department of Corrections and
Rehabilitation, the State Department of Mental Health, and the
attorney petitioning for commitment, or their agents, to obtain and
use records that have been sealed, that are relevant to the civil
commitment proceeding as determined by the court, in camera, and
pertaining to sustained petitions for specified sexually violent
offenses that were committed when the person had attained 14 years of
age or older. The bill also would authorize, in any civil commitment
proceeding based on the sexually violent predator laws, the court,
counsel for the parties, any jury, and any other person authorized by
the court, to obtain and use the records. The bill would
provide that the records would remain confidential, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 781 of the Welfare and Institutions Code is
amended to read:
781. (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, in any case in which a person is cited to appear before a
probation officer or is taken before a probation officer pursuant to
Section 626, or in any case in which a minor is taken before any
officer of a law enforcement agency, the person or the county
probation officer may, five years or more after the jurisdiction of
the juvenile court has terminated as to the person, or, in a case in
which no petition is filed, five years or more after the person was
cited to appear before a probation officer or was taken before a
probation officer pursuant to Section 626 or was taken before any
officer of a law enforcement agency, or, in any case, at any time
after the person has reached 18 years of age, 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. 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 or action pursuant to Section 626, as the case may be,
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 and officials as are
named in the order. In any case in which a ward of the juvenile court
is subject to the registration requirements set forth in Section 290
of the Penal Code, a court, in ordering the sealing of the juvenile
records of the person, also shall provide in the order that the
person is relieved from the registration requirement and for the
destruction of all registration information in the custody of the
Department of Justice and other agencies and officials.
Notwithstanding any other provision of law, the court shall not order
the person's records sealed in any case in which the person has been
found by the juvenile court to have committed an offense listed in
subdivision (b) of Section 707 when he or she had attained 14 years
of age or older. Once the court has ordered the person's records
sealed, the proceedings in the case shall be deemed never to have
occurred, and the person may properly reply accordingly to any
inquiry about the events, the records of which are ordered sealed.
The court shall send a copy of the order to each agency and official
named therein, directing the agency to seal its records and stating
the date thereafter to destroy the sealed records. Each agency and
official shall seal the records in its custody as directed by the
order, shall advise the court of its compliance, and thereupon shall
seal the copy of the court's order for sealing of records that it,
he, or she received. The person who is the subject of records sealed
pursuant to this section may petition the superior court to permit
inspection of the records by persons named in the petition, and the
superior court may so order. Otherwise, except as provided in
subdivision (b), the records shall not be open to inspection.
(b) (1) In any action or proceeding based upon defamation, a
court, upon a showing of good cause, may order any records sealed
under this section to be opened and admitted into evidence. The
records shall be confidential and shall be available for inspection
only by the court, jury, parties, counsel for the parties, and any
other person who is authorized by the court to inspect them. Upon the
judgment in the action or proceeding becoming final, the court shall
order the records sealed.
(2) In any investigation, action, or proceeding based on the
sexually violent predator laws (Article 4 (commencing with Section
6600) of Chapter 2 of Part 2 of Division 6), a court, upon a showing
of good cause, may permit the Department of Corrections and
Rehabilitation, the State Department of Mental Health, and the
attorney petitioning for commitment, or their agents, to obtain and
use records specified in paragraph (3) relevant to the civil
commitment proceeding as determined by the court, in camera, that
have been sealed pursuant to this section, provided that the subject
of the investigation, action or proceeding has been convicted of a
sexually violent offense, as defined in subdivision (b) of Section
6600 and in Section 6600.1 , committed when the person had
attained 14 years of age or older . In any civil commitment
proceeding based on the sexually violent predator laws, the court,
counsel for the parties, any jury, and any other person authorized by
the court, may obtain and use these records. The records shall
remain confidential and shall only be used for the purpose of
investigation, action, or proceedings under the sexually violent
predator laws and for subsequent treatment by the State Department of
Mental Health. Upon the judgment in the action or
proceeding becoming final, the court shall order the records sealed.
(3) The records subject to paragraph (2) are limited to those
pertaining to sustained petitions for a violation of an offense
described in subdivision (b) of Section 6600 as that section
read on January 1, 2009.
(c) (1) Subdivision (a) does not apply to Department of Motor
Vehicles records of any convictions for offenses under the Vehicle
Code or any local ordinance relating to the operation, stopping and
standing, or parking of a vehicle where the record of any such
conviction would be a public record under Section 1808 of the Vehicle
Code. However, if a court orders a case record containing any such
conviction to be sealed under this section, and if the Department of
Motor Vehicles maintains a public record of such a conviction, the
court shall notify the Department of Motor Vehicles of the sealing
and the department shall advise the court of its receipt of the
notice.
Notwithstanding any other law, subsequent to the notification, the
Department of Motor Vehicles shall allow access to its record of
convictions only to the subject of the record and to insurers that
have been granted requestor code numbers by the department. Any
insurer to which a record of conviction is disclosed, when that
conviction record has otherwise been sealed under this section, shall
be given notice of the sealing when the record is disclosed to the
insurer. The insurer may use the information contained in the record
for purposes of determining eligibility for insurance and insurance
rates for the subject of the record, and the information shall not be
used for any other purpose nor shall it be disclosed by an insurer
to any person or party not having access to the record.
(2) This subdivision shall not be construed as preventing the
sealing of any record which is maintained by any agency or party
other than the Department of Motor Vehicles.
(3) This subdivision shall not be construed as affecting the
procedures or authority of the Department of Motor Vehicles for
purging department records.
(d) Unless for good cause the court determines that the juvenile
court record shall be retained, the court shall order the destruction
of a person's juvenile court records that are sealed pursuant to
this section as follows:
(1) Five years after the record was ordered sealed, if the person
who is the subject of the record was alleged or adjudged to be a
person described by Section 601.
(2) When the person who is the subject of the record reaches 38
years of age if the person was alleged or adjudged to be a person
described by Section 602, except that if the subject of the record
was found to be a person described in Section 602 because of the
commission of an offense listed in paragraph (2) of subdivision (b)
or an offense listed in subdivision (b) of Section 707, when he or
she was 14 years of age or older, the record shall not be destroyed.
(3) Any other agency in possession of sealed records may destroy
its records five years after the record was ordered sealed.
(e) This section shall not permit the sealing of a person's
juvenile court records for an offense where the person is convicted
of that offense in a criminal court pursuant to the provisions of
Section 707.1. This subdivision is declaratory of existing law.
SEC. 2. Section 827 of the Welfare and Institutions Code is
amended to read:
827. (a) (1) Except as provided in Section 828, a case file may
be inspected only by the following:
(A) Court personnel.
(B) (i) The district attorney, a city attorney, or city prosecutor
authorized to prosecute criminal or juvenile cases under state law.
(ii) In any investigation, action, or proceeding based on the
sexually violent predator laws (Article 4 (commencing with Section
6600) of Chapter 2 of Part 2 of Division 6), if authorized by
paragraphs (2) and (3) of subdivision (b) of Section 781, the
Department of Corrections and Rehabilitation, the Department of
Mental Health, the attorney petitioning for commitment, or their
agents.
(C) The minor who is the subject of the proceeding.
(D) The minor's parents or guardian.
(E) The attorneys for the parties, judges, referees, other hearing
officers, probation officers, and law enforcement officers who are
actively participating in criminal or juvenile proceedings involving
the minor.
(F) The county counsel, city attorney, or any other attorney
representing the petitioning agency in a dependency action.
(G) The superintendent or designee of the school district where
the minor is enrolled or attending school.
(H) Members of the child protective agencies as defined in Section
11165.9 of the Penal Code.
(I) The State Department of Social Services, to carry out its
duties pursuant to Division 9 (commencing with Section 10000), and
Part 5 (commencing with Section 7900) of Division 12, of the Family
Code to oversee and monitor county child welfare agencies, children
in foster care or receiving foster care assistance, and out-of-state
placements, Section 10850.4, and paragraph (2).
(J) Authorized legal staff or special investigators who are peace
officers who are employed by, or who are authorized representatives
of, the State Department of Social Services, as necessary to the
performance of their duties to inspect, license, and investigate
community care facilities, and to ensure that the standards of care
and services provided in those facilities are adequate and
appropriate and to ascertain compliance with the rules and
regulations to which the facilities are subject. The confidential
information shall remain confidential except for purposes of
inspection, licensing, or investigation pursuant to Chapter 3
(commencing with Section 1500) and Chapter 3.4 (commencing with
Section 1596.70) of Division 2 of the Health and Safety Code, or a
criminal, civil, or administrative proceeding in relation thereto.
The confidential information may be used by the State Department of
Social Services in a criminal, civil, or administrative proceeding.
The confidential information shall be available only to the judge or
hearing officer and to the parties to the case. Names that are
confidential shall be listed in attachments separate to the general
pleadings. The confidential information shall be sealed after the
conclusion of the criminal, civil, or administrative hearings, and
may not subsequently be released except in accordance with this
subdivision. If the confidential information does not result in a
criminal, civil, or administrative proceeding, it shall be sealed
after the State Department of Social Services decides that no further
action will be taken in the matter of suspected licensing
violations. Except as otherwise provided in this subdivision,
confidential information in the possession of the State Department of
Social Services may not contain the name of the minor.
(K) Members of children's multidisciplinary teams, persons, or
agencies providing treatment or supervision of the minor.
(L) A judge, commissioner, or other hearing officer assigned to a
family law case with issues concerning custody or visitation, or
both, involving the minor, and the following persons, if actively
participating in the family law case: a family court mediator
assigned to a case involving the minor pursuant to Article 1
(commencing with Section 3160) of Chapter 11 of Part 2 of Division 8
of the Family Code, a court-appointed evaluator or a person
conducting a court-connected child custody evaluation, investigation,
or assessment pursuant to Section 3111 or 3118 of the Family Code,
and counsel appointed for the minor in the family law case pursuant
to Section 3150 of the Family Code. Prior to allowing counsel
appointed for the minor in the family law case to inspect the file,
the court clerk may require counsel to provide a certified copy of
the court order appointing him or her as the minor's counsel.
(M) A court-appointed investigator who is actively participating
in a guardianship case involving a minor pursuant to Part 2
(commencing with Section 1500) of Division 4 of the Probate Code and
acting within the scope of his or her duties in that case.
(N) A local child support agency for the purpose of establishing
paternity and establishing and enforcing child support orders.
(O) Juvenile justice commissions as established under Section 225.
The confidentiality provisions of Section 10850 shall apply to a
juvenile justice commission and its members.
(P) Any other person who may be designated by court order of the
judge of the juvenile court upon filing a petition.
(2) (A) Notwithstanding any other law and subject to subparagraph
(A) of paragraph (3), juvenile case files, except those relating to
matters within the jurisdiction of the court pursuant to Section 601
or 602, that pertain to a deceased child who was within the
jurisdiction of the juvenile court pursuant to Section 300, shall be
released to the public pursuant to an order by the juvenile court
after a petition has been filed and interested parties have been
afforded an opportunity to file an objection. Any information
relating to another child or which could identify another child,
except for information about the deceased, shall be redacted from the
juvenile case file prior to release, unless a specific order is made
by the juvenile court to the contrary. Except as provided in this
paragraph, the presiding judge of the juvenile court may issue an
order prohibiting or limiting access to the juvenile case file, or
any portion thereof, of a deceased child only upon a showing by a
preponderance of evidence that release of the juvenile case file or
any portion thereof is detrimental to the safety, protection, or
physical or emotional well-being of another child who is directly or
indirectly connected to the juvenile case that is the subject of the
petition.
(B) This paragraph represents a presumption in favor of the
release of documents when a child is deceased unless the statutory
reasons for confidentiality are shown to exist.
(C) If a child whose records are sought has died, and documents
are sought pursuant to this paragraph, no weighing or balancing of
the interests of those other than a child is permitted.
(D) A petition filed under this paragraph shall be served on
interested parties by the petitioner, if the petitioner is in
possession of their identity and address, and on the custodian of
records. Upon receiving a petition, the custodian of records shall
serve a copy of the request upon all interested parties that have not
been served by the petitioner or on the interested parties served by
the petitioner if the custodian of records possesses information,
such as a more recent address, indicating that the service by the
petitioner may have been ineffective.
(E) The custodian of records shall serve the petition within 10
calendar days of receipt. If any interested party, including the
custodian of records, objects to the petition, the party shall file
and serve the objection on the petitioning party no later than 15
calendar days of service of the petition.
(F) The petitioning party shall have 10 calendar days to file any
reply. The juvenile court shall set the matter for hearing no more
than 60 calendar days from the date the petition is served on the
custodian of records. The court shall render its decision within 30
days of the hearing. The matter shall be decided solely upon the
basis of the petition and supporting exhibits and declarations, if
any, the objection and any supporting exhibits or declarations, if
any, and the reply and any supporting declarations or exhibits
thereto, and argument at hearing. The court may solely upon its own
motion order the appearance of witnesses. If no objection is filed to
the petition, the court shall review the petition and issue its
decision within 10 calendar days of the final day for filing the
objection. Any order of the court shall be immediately reviewable by
petition to the appellate court for the issuance of an extraordinary
writ.
(3) Access to juvenile case files pertaining to matters within the
jurisdiction of the juvenile court pursuant to Section 300 shall be
limited as follows:
(A) If a juvenile case file, or any portion thereof, is privileged
or confidential pursuant to any other state law or federal law or
regulation, the requirements of that state law or federal law or
regulation prohibiting or limiting release of the juvenile case file
or any portions thereof shall prevail. Unless a person is listed in
subparagraphs (A) to (O), inclusive, of paragraph (1) and is entitled
to access under the other state law or federal law or regulation
without a court order, all those seeking access, pursuant to other
authorization, to portions of, or information relating to the
contents of, juvenile case files protected under another state law or
federal law or regulation, shall petition the juvenile court. The
juvenile court may only release the portion of, or information
relating to the contents of, juvenile case files protected by another
state law or federal law or regulation if disclosure is not
detrimental to the safety, protection, or physical or emotional
well-being of a child who is directly or indirectly connected to the
juvenile case that is the subject of the petition. This paragraph
shall not be construed to limit the ability of the juvenile court to
carry out its duties in conducting juvenile court proceedings.
(B) Prior to the release of the juvenile case file or any portion
thereof, the court shall afford due process, including a notice of
and an opportunity to file an objection to the release of the record
or report to all interested parties.
(4) A juvenile case file, any portion thereof, and information
relating to the content of the juvenile case file, may not be
disseminated by the receiving agencies to any persons or agencies,
other than those persons or agencies authorized to receive documents
pursuant to this section. Further, a juvenile case file, any portion
thereof, and information relating to the content of the juvenile case
file, may not be made as an attachment to any other documents
without the prior approval of the presiding judge of the juvenile
court, unless it is used in connection with and in the course of a
criminal investigation or a proceeding brought to declare a person a
dependent child or ward of the juvenile court.
(5) Individuals listed in subparagraphs (A), (B), (C), (D), (E),
(F), (H), and (I) of paragraph (1) may also receive copies of the
case file. In these circumstances, the requirements of paragraph (4)
shall continue to apply to the information received.
(b) (1) While the Legislature reaffirms its belief that juvenile
court records, in general, should be confidential, it is the intent
of the Legislature in enacting this subdivision to provide for a
limited exception to juvenile court record confidentiality to promote
more effective communication among juvenile courts, family courts,
law enforcement agencies, and schools to ensure the rehabilitation of
juvenile criminal offenders as well as to lessen the potential for
drug use, violence, other forms of delinquency, and child abuse.
(2) Notwithstanding subdivision (a), written notice that a minor
enrolled in a public school, kindergarten to grade 12, inclusive, has
been found by a court of competent jurisdiction to have committed
any felony or any misdemeanor involving curfew, gambling, alcohol,
drugs, tobacco products, carrying of weapons, a sex offense listed in
Section 290 of the Penal Code, assault or battery, larceny,
vandalism, or graffiti shall be provided by the court, within seven
days, to the superintendent of the school district of attendance.
Written notice shall include only the offense found to have been
committed by the minor and the disposition of the minor's case. This
notice shall be expeditiously transmitted by the district
superintendent to the principal at the school of attendance. The
principal shall expeditiously disseminate the information to those
counselors directly supervising or reporting on the behavior or
progress of the minor. In addition, the principal shall disseminate
the information to any teacher or administrator directly supervising
or reporting on the behavior or progress of the minor whom the
principal believes needs the information to work with the pupil in an
appropriate fashion, to avoid being needlessly vulnerable or to
protect other persons from needless vulnerability.
Any information received by a teacher, counselor, or administrator
under this subdivision shall be received in confidence for the
limited purpose of rehabilitating the minor and protecting students
and staff, and shall not be further disseminated by the teacher,
counselor, or administrator, except insofar as communication with the
juvenile, his or her parents or guardians, law enforcement
personnel, and the juvenile's probation officer is necessary to
effectuate the juvenile's rehabilitation or to protect students and
staff.
An intentional violation of the confidentiality provisions of this
paragraph is a misdemeanor punishable by a fine not to exceed five
hundred dollars ($500).
(3) If a minor is removed from public school as a result of the
court's finding described in paragraph (2), the superintendent shall
maintain the information in a confidential file and shall defer
transmittal of the information received from the court until the
minor is returned to public school. If the minor is returned to a
school district other than the one from which the minor came, the
parole or probation officer having jurisdiction over the minor shall
so notify the superintendent of the last district of attendance, who
shall transmit the notice received from the court to the
superintendent of the new district of attendance.
(c) Each probation report filed with the court concerning a minor
whose record is subject to dissemination pursuant to subdivision (b)
shall include on the face sheet the school at which the minor is
currently enrolled. The county superintendent shall provide the court
with a listing of all of the schools within each school district,
within the county, along with the name and mailing address of each
district superintendent.
(d) Each notice sent by the court pursuant to subdivision (b)
shall be stamped with the instruction: "Unlawful Dissemination Of
This Information Is A Misdemeanor." Any information received from the
court shall be kept in a separate confidential file at the school of
attendance and shall be transferred to the minor's subsequent
schools of attendance and maintained until the minor graduates from
high school, is released from juvenile court jurisdiction, or reaches
18 years of age, whichever occurs first. After that time the
confidential record shall be destroyed. At any time after the date by
which a record required to be destroyed by this section should have
been destroyed, the minor or his or her parent or guardian shall have
the right to make a written request to the principal of the school
that the minor's school records be reviewed to ensure that the record
has been destroyed. Upon completion of any requested review and no
later than 30 days after the request for the review was received, the
principal or his or her designee shall respond in writing to the
written request and either shall confirm that the record has been
destroyed or, if the record has not been destroyed, shall explain why
destruction has not yet occurred.
Except as provided in paragraph (2) of subdivision (b), no
liability shall attach to any person who transmits or fails to
transmit any notice or information required under subdivision (b).
(e) For purposes of this section, a "juvenile case file" means a
petition filed in any juvenile court proceeding, reports of the
probation officer, and all other documents filed in that case or made
available to the probation officer in making his or her report, or
to the judge, referee, or other hearing officer, and thereafter
retained by the probation officer, judge, referee, or other hearing
officer.