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).




                                              2
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



                                              3
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.)

                                              4
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


                                                5
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.


                                              7
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

5
       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

                                               9
       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.)


                                             10
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.




                                               12
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
