Filed 11/3/17




                             CERTIFIED FOR PUBLICATION

                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                              FOURTH APPELLATE DISTRICT

                                        DIVISION THREE


In re DEAN W., a Person Coming Under
the Juvenile Court Law.


THE PEOPLE,
                                                      G053807
    Plaintiff and Respondent,
                                                      (Super. Ct. No. DL049617-001)
        v.
                                                      OPINION
DEAN W.,

    Defendant and Appellant.



                  Appeal from an order of the Superior Court of Orange County,
Cheryl L. Leininger, Judge. Reversed with directions.
                  Lindsey M. Ball, 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, Barry Carlton and Heidi
Salerno, Deputy Attorneys General, for Plaintiff and Respondent.
                                    *          *          *
                                      INTRODUCTION
              The juvenile court found that Dean W. (the ward) had committed a
misdemeanor violation of Vehicle Code section 23152, driving under the influence. The
court later found that the ward had successfully completed his probation and terminated
his wardship. The court granted the ward’s request to seal his juvenile court records,
except for one document regarding his acknowledgement that he knew driving under the
influence of drugs or alcohol was dangerous to human life.
              The Welfare and Institutions Code allows minors who have completed their
rehabilitation to have “all” records of their juvenile adjudication sealed. The Vehicle
Code authorizes criminal prosecutors to use a criminal defendant’s acknowledgement of
the dangerousness of driving under the influence as evidence of implied malice in a later
second degree murder case. We publish this case because, based on the words of the
statutes and their underlying purposes and policies, the ward’s right to have all of his
juvenile records sealed includes the ward’s acknowledgement of the dangerousness of
driving under the influence. Therefore, we reverse the juvenile court’s order, with
directions to seal the entirety of the ward’s records, to ensure that other government
agencies specified in the statute seal the ward’s records, and to consider whether other
government agencies also be ordered to do so.


                    STATEMENT OF FACTS AND PROCEDURAL HISTORY
              In the juvenile court, the ward admitted to misdemeanor driving while
under the influence, in violation of Vehicle Code section 23152, subdivision (b). He was
declared a ward of the court and placed on probation. The ward signed an advisement
pursuant to Vehicle Code section 23593 and People v. Watson (1981) 30 Cal.3d 290, 296
(Watson), which stated: “You are hereby advised that being under the influence of
alcohol or drugs, or both, impairs your ability to safely operate/drive a motor vehicle.
Therefore, it is extremely dangerous to human life to drive while under the influence of

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alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or
drugs, or both, and, as a result of that driving, someone is killed, you can be charged with
murder.” The juvenile court also recited the Watson advisement at the hearing at which
wardship was declared and probation was imposed.
              Twenty-three months later, the juvenile court found the ward had
successfully completed probation and terminated his wardship. The ward requested to
have his juvenile records sealed under Welfare and Institutions Code section 786. The
district attorney argued that sealing the ward’s signed Watson advisement would violate
public policy. The court ordered that the ward’s juvenile record would be sealed, with
the exception of the Watson advisement. The ward timely filed a notice of appeal.


                                        DISCUSSION
              The issue before us is whether the trial court properly decided not to seal
the ward’s juvenile record in full. This question requires us to analyze two statutes—
Welfare and Institutions Code section 786 and Vehicle Code section 23593. We review
the matter de novo. (In re Joshua R. (2017) 7 Cal.App.5th 864, 867.)
              1. Welfare and Institutions Code Section 786
              Welfare and Institutions Code section 786, which makes the sealing of
juvenile records mandatory when the juvenile has successfully completed his or her
probation or term of supervision, is intended to further the goals of rehabilitation and
reintegration by giving juveniles the opportunity to clear their records so that they may
pursue education, employment, or military service. Section 786 provides: “(a) If a
person who has been alleged or found to be a ward of the juvenile court satisfactorily
completes (1) an informal program of supervision pursuant to Section 654.2, (2)
probation under Section 725, or (3) a term of probation for any offense, 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

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enforcement agencies, the probation department, or the Department of Justice. . . . [¶]
(b) 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 and the person who was the subject of the
petition may reply accordingly to an inquiry by employers, educational institutions, or
other persons or entities regarding the arrest and proceedings in the case.” (Id., § 786,
subds. (a), (b), italics added.) Sealing of the records in the possession of the public
agencies specified in subdivision (a) of this statute is mandatory.
              Welfare and Institutions Code section 786 also gives the juvenile court
discretion to seal records in the custody of other public agencies in order to achieve the
statute’s goals. “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.” (Id.,
§ 786, subd. (e)(2).)


              2. Vehicle Code Section 23593
              Vehicle Code section 23593, subdivision (a), provides: “The court shall
advise a person convicted of [driving under the influence] as follows: ‘You are hereby
advised that being under the influence of alcohol or drugs, or both, impairs your ability to
safely operate a motor vehicle. Therefore, it is extremely dangerous to human life to
drive while under the influence of alcohol or drugs, or both. If you continue to drive
while under the influence of alcohol or drugs, or both, and, as a result of that driving,
someone is killed, you can be charged with murder.’” (Ibid.) This statute was enacted in
response to Watson, supra, 30 Cal.3d at page 294, in which the California Supreme Court
held that a person who kills someone while driving under the influence of alcohol may be

                                              4
charged with second degree murder rather than vehicular manslaughter “if the facts
surrounding the offense support a finding of ‘implied malice.’” The court further held
that “malice may be implied when a person, knowing that his conduct endangers the life
of another, nonetheless acts deliberately with conscious disregard for life.” (Id. at
p. 296.) Thus, Vehicle Code section 23593 enables the prosecutor to establish a
defendant’s knowledge of the dangerousness of the conduct by use of the record of
advisement.
              Vehicle Code section 23593, by its terms, applies to persons “convicted of”
driving under the influence. A juvenile adjudication is not a conviction. We question
whether the Watson advisement was improper in this case because the ward was not
convicted of driving under the influence. Nevertheless, the ward signed the Watson
advisement, and the issue before us is whether that advisement is subject to being sealed.


              3. Analysis
              As to the documents covered by Welfare and Institutions Code section 786,
subdivision (a), we conclude the unambiguous language of the statute means what it says:
The juvenile court shall seal all records relating to the ward’s dismissed petition, and
shall order any law enforcement agency, the probation department, and the Department
of Justice to do the same. Having found that the ward in this case successfully completed
his probation, the juvenile court did not have the discretion to seal only a portion of the
records regarding the ward’s case. (See In re A.V. (2017) 11 Cal.App.5th 697, 701 [“The
court has the discretion under section 786 to find the ward has or has not substantially
complied with his probation so as to be deemed to have satisfactorily completed it; but if
the court finds the ward in substantial compliance so that he or she has satisfactorily
completed probation, the court must dismiss the petition and seal the ward’s records in
accordance with the statute.”].) The duty to seal applies to “all” the records pertaining to
the petition that has been dismissed; there are no exceptions. Therefore, the juvenile

                                              5
court erred by excluding the ward’s signed Watson advisement from its order sealing
documents.
              The Attorney General argues that sealing the Watson advisement could
result in a gross miscarriage of justice if the ward later commits another violation of
Vehicle Code section 23152 and a person is killed. The Attorney General suggests that
the prosecutor in that later case could not admit the Watson advisement into evidence as
proof that the ward knowingly endangered the lives of others. The Attorney General is
making a policy argument that is best addressed to the Legislature. The Attorney
General’s argument is inconsistent with the express words of the Welfare and Institutions
Code section 786.
              Another panel of this court addressed a similar issue in In re Joshua R.,
supra, 7 Cal.App.5th 864. Joshua successfully completed his juvenile probation and
requested that his juvenile record be sealed. (Id. at pp. 866-867.) One of the probation
conditions that had been imposed on Joshua was that he not own or possess a firearm
until age 30, pursuant to Penal Code section 29820. (In re Joshua R., supra, at p. 866.)
The trial court refused to seal Joshua’s record because of the continuing prohibition of
Penal Code section 29820. (In re Joshua R., supra, at p. 867.)
              The appellate court held the requirement that Joshua’s juvenile record be
sealed could be reconciled with enforcement of the statutory limitations on his ability to
own or possess a firearm. (In re Joshua R., supra, 7 Cal.App.5th at p. 868.) While the
broad language of Welfare and Institutions Code section 786 required that Joshua’s
juvenile court records be sealed, Penal Code section 29820’s prohibition on firearms
applies “[n]otwithstanding any other law.” (Pen. Code, § 29820, subd. (d).) The
appellate court therefore concluded that “although Welfare and Institutions Code section
786 requires sealing the record, the form described in Penal Code section 29820,
subdivision (d), is exempt from the requirement of destruction for the limited purpose of
determining ‘eligibility to acquire a firearm.’ Thus, while the rest of the record must be

                                             6
sealed and destroyed by the date the court specifies in the order it will issue after remand,
the Firearm Form need not be ordered destroyed until Joshua’s 30th birthday.” (In re
Joshua R., supra, at p. 869.)
              The present case differs significantly from In re Joshua R. in that Vehicle
Code section 23593 does not contain the words or the concept that it applies
“notwithstanding any other law.” Specifically, and quite simply, Vehicle Code
section 23593 does not provide that the forms memorializing the Watson advisement may
be used in later criminal actions notwithstanding any other law. In the absence of
language exempting the Watson advisement from Welfare and Institutions Code section
786, that statute’s requirement that all records be sealed applies.
              The record shows that the trial court electronically transmitted the ward’s
juvenile court records to the Department of Motor Vehicles. These records include, at a
minimum, the code section violated and the probation conditions imposed, both of which
reflect the alcohol-related nature of the violation. In supplemental briefing, the parties
state that the Watson advisement itself was not provided to the Department of Motor
Vehicles. However, the record on appeal includes the following reference: “Verbal
notice document on file.” The appellate record does not show whether this verbal notice
is the language of the Watson advisement. What is clear is that Vehicle Code sections
     1          2
1803 and 1816 require that a court notify the Department of Motor Vehicles of

         1
           “The clerk of a court in which a person was convicted of a violation of this
code . . . shall prepare within five days after conviction and immediately forward to the
department at its office at Sacramento an abstract of the record of the court covering the
case in which the person was so convicted. If sentencing is not pronounced in
conjunction with the conviction, the abstract shall be forwarded to the department within
five days after sentencing and the abstract shall be certified by the person so required to
prepare it to be true and correct.” (Veh. Code, § 1803, subd. (a)(1).)
        2
          “Every judge of the juvenile court, juvenile hearing officer, duly constituted
referee of a juvenile court, or other person responsible for the disposition of cases
involving traffic offenses required to be reported under Section 1803 committed by
persons under 18 years of age shall keep a full record of every case in which a person is

                                              7
information regarding violations of Vehicle Code. Vehicle Code section 23593,
                3
subdivision (c), specifically requires that the Department of Motor Vehicles must be
provided with the fact that the individual was given the Watson advisement, and it is
possible that the “verbal notice” was intended to fulfill that requirement.
              Welfare and Institutions Code section 786, subdivision (e)(2) gives the
juvenile court the discretion to order the ward’s records that have been transmitted to the
Department of Motor Vehicles to be sealed. We will remand the matter to permit the
juvenile court to exercise its discretion to determine whether it should order those records
to be sealed, too.




charged with such a violation, and shall report the offense to the department at its office
in Sacramento not more than 30 days after the date on which it was committed, and in no
case less than 10 days after adjudication. The report required by this section shall be
required for any determination that a minor committed the violation, including any
determination that because of the act the minor is a person described in Section 601 or
602 of the Welfare and Institutions Code or that a program of supervision should be
instituted for the minor. No report shall be made if it is found that the alleged offense
was not committed. [¶] The report required by this section shall be made upon a form
furnished by the department and shall contain all necessary information as to the identity
of the offender, the arresting agency, the date and nature of the offense, and the date the
finding was made.” (Veh. Code, § 1816.)
        3
          “The court shall include on the abstract of the conviction or violation submitted
to the department under Section 1803 or 1816, the fact that the person has been advised
as required under subdivision (a) [with the Watson advisement].” (Veh. Code, § 23592,
subd. (c).)

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                                       DISPOSITION
              The order is reversed and the matter is remanded with directions to (1) seal
the ward’s juvenile records in full; (2) order the ward’s juvenile records in the possession
of law enforcement agencies, the probation department, and the Department of Justice to
be sealed in full; and (3) determine whether any of the ward’s juvenile records in the
possession of the Department of Motor Vehicles should also be ordered to be sealed.




                                                 FYBEL, J.

WE CONCUR:



O’LEARY, P. J.



THOMPSON, J.




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