Opinion
A135197 A144804
11-17-2017
In re L.H., a Person Coming Under the Juvenile Court Law. THE PEOPLE, Plaintiff and Respondent, v. L.H., Defendant and Appellant.
(San Francisco County Super. Ct. No. JW106650) BY THE COURT:
It is ordered that the opinion filed herein on November 17, 2017, be modified as follows:
In the caption, the San Francisco Superior Court number JS106650 should be deleted and replaced with JW106650.
This modification does not change the judgment. Dated: __________ /s/_________
Kline, P.J.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (San Francisco County Super. Ct. No. JS106650)
These consolidated appeals arise from a juvenile court case that began in 2010 and eventually included three wardship petitions.
In 2010, L.H. admitted to first degree robbery, which is an offense listed in Welfare and Institutions Code section 707, subdivision (b), as alleged in the first petition. Eleven months later L.H. moved to set aside his admission on the ground that he had not been fully informed of the immigration consequences of the plea. The motion was denied in 2012 and L.H. appeals (A135197). We will affirm.
Further statutory references are to the Welfare and Institutions Code unless otherwise stated.
The unusual procedural history of this case explains why we are now reviewing the order denying L.H.'s motion to withdraw his admission to robbery. In June 2012, L.H.'s former appellate counsel filed a brief in appeal A135197 in accordance with People v. Wende (1979) 25 Cal.3d 436; in August 2012, we affirmed the denial of L.H.'s petition to withdraw his admission to robbery. In December 2016, we granted L.H.'s motion to recall the remittitur on the ground that he was not represented in that appeal by a fully-licensed attorney. We later granted L.H.'s motion to consolidate the renewed appeal in A135197 with the other appeal (A144804) that is addressed in this opinion.
In 2015, L.H. asked the juvenile court to seal records pertaining to the second and third wardship petitions, relying on section 786, which then stated that if a "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 shall seal records pertaining to the dismissed petition. (Stats. 2014, ch. 249, § 2, adding section 786 effective Jan. 1, 2015.) The juvenile court denied L.H.'s request, relying on In re Jeffrey T. (2006) 140 Cal.App.4th 1015 (Jeffrey T.), a case interpreting section 781, a different statutory provision governing the sealing of records, to conclude that it could not "split the files," and that because L.H. had previously admitted robbery, an offense listed in section 707, subdivision (b), in connection with the 2010 petition in the case, the court had no authority under section 786 to address the merits of the request even if the petitions L.H. sought to seal did not involve section 707, subdivision (b) offenses. L.H. appeals (A144804). Because we conclude that Jeffrey T. does not apply to section 786, we will reverse and remand for the juvenile court to consider the merits of L.H.'s request to seal.
Appeal A135107: Motion to Withdraw Admission to Robbery
A. Factual and Procedural Background
1. First Petition
In November 2010, L.H., aged 16, and a girlfriend, J.R., were aboard a Muni bus when they approached a fellow passenger. The passenger, who claimed to be familiar with firearms, reported that L.H. was holding a revolver in his front sweatshirt pocket, with the barrel of the gun protruding from the pocket and pointing at the passenger. L.H. demanded that the passenger hand over everything he had, and threatened to shoot him if he did not comply. When the passenger denied having anything in his possession, L.H. grabbed an iPod from the passenger's pocket. L.H. and J.R. then fled.
J.R. was arrested days later with L.H.'s passport in her bag. She told police that L.H. used a BB gun to rob the passenger. L.H. surrendered himself soon after. In an interview with police he admitted committing the robbery, but denied using a gun, claiming that the blade of a pocketknife, rather than a gun barrel, was protruding from his sweatshirt.
In December 2010, the San Mateo County District Attorney filed a juvenile wardship petition under section 602 alleging three counts, including first degree robbery (Pen. Code, § 212.5, subd. (a)) with a firearm enhancement. According to the detention report, L.H.'s mother informed the probation department that L.H. was living in the United States illegally, and the department notified Immigrations and Customs Enforcement (ICE). At the jurisdiction hearing later in December 2010, L.H. admitted the robbery count; the remaining counts and all enhancements were dismissed.
The matter was transferred to San Francisco, the county of L.H.'s residence, for disposition. At the disposition hearing in January 2011, L.H. was declared a ward of the court and committed to juvenile hall for 49 days, with credit for 49 days served, and placed on probation subject to terms and conditions. He was placed in ICE custody two days later, and released in late March 2011 to home probation. While L.H. was in ICE custody, his girlfriend S.O. gave birth to their child.
2. Second Petition
In June 2011 the San Francisco District Attorney filed a wardship petition charging L.H., who was known to associate with the Norteño street gang, with felony and misdemeanor counts arising from his allegedly making terrorist threats to a young woman because of her affiliation with a rival gang. On the same day, the probation department filed a notice of motion to revoke probation, alleging that L.H. possessed live ammunition at home. L.H. was detained at juvenile hall, and the wardship petition was soon amended to add a felony count for possession of live ammunition (Pen. Code, § 12316, subd. (b)(1)), with an allegation of possession of a firearm by a prohibited person on the grounds that he had a violation of Penal Code section 212.5, subdivision (a) sustained against him.
In late June 2011, L.H. admitted the ammunition possession charge and the firearm enhancement (which entailed admitting that in December 2010 a violation of Penal Code section 212.5, subdivision (a) was sustained against him) in exchange for dismissal of the remaining counts in the petition. At the disposition hearing in July, the juvenile court committed L.H. to juvenile hall and reinstated home probation with various terms and conditions, including special gang terms. When he was released from juvenile hall he was taken into ICE custody, where he remained until the end of September 2011, when he was released on home probation.
3. Third Petition
In November 2011, L.H. was the subject of another wardship petition by the San Francisco District Attorney, this one alleging felony and misdemeanor charges arising from an incident in which L.H. allegedly came up behind S.O. while she was walking down the street and carrying their infant in a baby carrier. L.H. pushed S.O. into a wall, and demanded the baby. When S.O. continued to refuse him, L.H. threatened her and then grabbed the baby from the carrier and got into a car driven by a Norteño gang member. The car left the scene with L.H. in the front passenger seat, holding the baby in his lap. The petition was eventually amended to add a count of felony inflection of corporal injury on a cohabitant (Pen. Code, § 273.5, subd. (a)), which L.H. admitted in September 2012 in exchange for dismissal of the other charges in the petition and dismissal of two motions to revoke probation, which we discuss below.
4. Motion to Withdraw Admission
A week after the third wardship petition was filed, L.H. filed a motion under Penal Code section 1018 to set aside his December 2010 admission to the robbery charge alleged in the first wardship petition, arguing that he was not fully informed of the potential immigration consequences of the admission, nor the consequences of admitting a strike count. In support of the motion, L.H. submitted three exhibits. Exhibit A was the declaration of attorney Bonnie L. Miller, who represented L.H. in San Mateo County. The substantive portion of the declaration comprises just two sentences: "During my representation of [L.H.], I do not recall whether I thoroughly advised him of the immigration consequences of an admission in his delinquency matter," and "During my representation of [L.H.], I do not recall whether I thoroughly advised him of the fact that the charge he admitted was a strike and what the consequences of such an admission would be."
Exhibit B was a transcript of the December 2010 hearing at which L.H. admitted the robbery allegation.
At that hearing, after L.H. advised the court that he was born in Guatemala, the following exchange took place:
"THE COURT: Okay. [L.H.], do you understand that— [¶] "Have you, Ms. Miller, discussed the immigration consequences of this admission with your client?
"MS. MILLER [L.H.'s attorney]: We did talk about that.
"THE COURT: Okay. If you are not a citizen, [L.H.], of the United States, your admission to this petition may result in deportation. If you leave the country voluntarily, you may be excluded from returning to this country. And you may be denied the ability to naturalize as a United States citizen as a consequence of your admission. In other words, this admission could perhaps have serious immigration consequences for you. [¶] Do you understand this?
"[L.H.]: Yes.
"THE COURT: Have you discussed this with your attorney, Ms. Miller?
"[L.H.]: Yes.
"THE COURT: And notwithstanding that, you still wish to proceed?
"[L.H.]: Yeah."
Exhibit C was the declaration of L.H., who stated that he "d[id] not recall" discussing any immigration consequences of his plea or the consequences of admitting a strike before he made his admission, and that "[i]t was not until July 2011 that I was advised for the first time that there are immigration consequences to the San Mateo plea and that it was a strike."
At the February 6, 2012 hearing on the motion to set aside the admission, the juvenile court heard argument and denied the motion saying, "I have read the transcript of the prior hearing. [¶] I think it's pretty clear that the minor is unable to meet the burden by clear and convincing evidence, that there was either ineffective assistance of counsel, or that the minor was not properly advised of the immigration consequences of this plea." A written order denying the motion to withdraw admission was filed on February 7, 2012. L.H. timely appealed (Case A135197). B. Discussion
1. Applicable Law and Standard of Review
Penal Code section 1018 provides in relevant part as follows: "On application of the defendant at any time before judgment or within six months after an order granting probation is made if entry of judgment is suspended, the court may . . . for a good cause shown, permit the plea of guilty to be withdrawn and a plea of not guilty substituted." Penal Code section 1018 "is not expressly applicable to admissions in juvenile court, and it does not have a statutory counterpart in delinquency proceedings. However, the principles that underlie the statute have been imported into delinquency proceedings in other respects." (In re Matthew N. (2013) 216 Cal.App.4th 1412, 1420.) We agree with the parties that the statute and related jurisprudence are applicable here.
The parties dispute whether the motion to withdraw the admission was timely filed. We will assume, without deciding, that it was.
" 'Mistake, ignorance or any other factor overcoming the exercise of free judgment is good cause for withdrawal of a guilty plea' under [Penal Code] section 1018 (People v. Cruz (1974) 12 Cal.3d 562, 566 (Cruz)), and [Penal Code] section 1018 states that its provisions 'shall be liberally construed . . . to promote justice.' A defendant seeking to withdraw a guilty plea on grounds of mistake or ignorance must present clear and convincing evidence in support of the claim.' (Cruz, at p. 566.)" (People v. Patterson (2017) 2 Cal.5th 885, 894 (Patterson).)
In 1977, the Legislature enacted Penal Code section 1016.5, which requires that before accepting a guilty or no contest plea, the trial court "shall administer the following advisement on the record to the defendant: [¶] If you are not a citizen, you are hereby advised that conviction of the offense for which you have been charged may have the consequences of deportation, exclusion from admission to the United States, or denial of naturalization pursuant to the laws of the United States." (Pen. Code, § 1016.5, subd. (a).) Our Supreme Court has held that a defendant who is subject to immigration consequences as a result of a plea may seek relief under Penal Code section 1018 on grounds of mistake or ignorance even if the required advisement under Penal Code section 1016.5 has been given. (Patterson, supra, 2 Cal.5th at p. 895.)
"[U]nder [Penal Code] section 1018, a court asked to set aside a guilty plea based on mistake or ignorance of the deportation consequences is 'properly vested with discretion to grant or deny the motion after considering all factors necessary to bring about a just result.' ([People v. Superior Court (Giron) (1974)] 11 Cal.3d [793,] 798.) In exercising that discretion a trial court may take into consideration the defendant's reaction to the section 1016.5 advisement—for example, whether the defendant acknowledged understanding the advisement and whether he or she expressed concerns about possible deportation consequences or sought additional time to consult with counsel. These considerations, along with any others that bear on the defendant's state of mind at the time of the plea, may assist courts in evaluating a later claim that the defendant would not have entered the plea had he or she understood the plea would render the defendant deportable." (Patterson, supra, 2 Cal.5th at pp. 898-899.)
We review the trial court's decision whether to permit a defendant to withdraw a guilty plea under Penal Code section 1018 for abuse of discretion. (Patterson, supra, 2 Cal.5th at p. 894.)
2. Analysis
L.H. argues that the juvenile court abused its discretion in concluding that he had not established by clear and convincing evidence the good cause necessary to support his motion to withdraw his admission. We disagree.
The evidence in support of L.H.'s motion was equivocal at best. Less than eight months after L.H.'s admission, attorney Miller, who represented L.H. at the time, could state in her declaration only that she did not "recall" whether she "thoroughly" advised him of the immigration consequences of his admission, L.H. submitted a similarly vague declaration, stating in November 2011 that he did not recall discussing the immigration consequences of his plea with his attorney in December 2010. These failures of recollection contrast with statements at the December 2010 hearing, where attorney Miller affirmed that she had talked with her client about the immigration consequences of his plea, and where L.H., after being told by the juvenile court judge that his admission could result in "serious immigration consequences" including deportation, exclusion from the country and denial of the ability to become a naturalized citizen, answered "yes" to the judge's question whether he understood and whether he had discussed this with his attorney. In these circumstances, we see no abuse of discretion in the juvenile court's conclusion that L.H. did not meet his burden to show by clear and convincing evidence that he was not properly advised of the immigration consequences of this plea.
L.H. contends that the advisement provided to him by the court at his December 2010 hearing was "ineffectual," suggesting that under Patterson the court or L.H.'s attorney was required to explain to him on the record that the "consequences [of his plea] were mandatory deportation and exclusion from the United States." We are not persuaded. As an initial matter, L.H. cites no authority, and we are aware of none, that requires a defendant's attorney to explain the immigration consequences of a plea to the client on the record. Further, at the December 2010 hearing where L.H. admitted to robbery, he received the advisement from the court that is required by Penal Code section 1016.5, and he does not argue otherwise. Patterson does not require a court to provide advisements beyond those set forth in Penal Code section 1016.5. Patterson simply stands for the proposition that receipt of the Penal Code section 1016.5 advisement does not prevent a defendant from seeking to withdraw a plea under Penal Code section 1018 on the grounds of mistake or ignorance. (Patterson, supra, 2 Cal.5th at pp. 895-896, 898.)
There is no basis for L.H.'s contention that his receipt of the advisement required under Penal Code section 1016.5 was the sole reason the court later denied his motion to withdraw his admission. To the contrary, the juvenile court explicitly found that L.H. had not met his burden under Penal Code section 1018 to show mistake or ignorance by clear and convincing evidence.
L.H. also argues that he established a reasonable probability that he would not have made his admission if he had known of the immigration consequences. (See Patterson, supra, 2 Cal.5th at pp. 898-899.) The argument lacks merit. The only evidence L.H. offered the juvenile court in support of that point was a declaration from his San Francisco attorney, submitted with L.H.'s motion, but not marked as an exhibit, stating that L.H. "informed [him] that he would not have entered his plea . . . had he been fully informed of the legal and immigration consequences prior to entering the plea." L.H.'s own declaration contains nothing to that effect.
In sum, we find no error in the juvenile court's denial of L.H.'s motion to withdraw his admission.
Appeal A144804: Motion to Seal Juvenile Records
A. Additional Factual and Procedural Background
1. Developments after the Third Wardship Petition Was Filed
Shortly after the district attorney filed the November 2011 wardship petition, the probation department filed a motion to revoke probation, based on commission of the offenses in that November 2011 petition, as well as failure to comply with gang conditions and to attend school on a regular basis. L.H. was detained at juvenile hall and eventually released to a facility where, according to a manager, L.H. violated policy and exhibited behaviors suggesting that he was "preparing to AWOL." As a result, in February 2012 the probation department requested an order of detention, which the juvenile court granted.
Later in February 2012, L.H., then age 18, was reinstated on probation. That spring, he was arrested again, and charged as an adult with felony assault with a deadly weapon committed against a public transit employee (Pen. Code, § 245.2), felony participation in a criminal street gang (Pen. Code, § 186.22, subd. (a)), and misdemeanor destroying evidence (Pen. Code, § 135). In connection with these new charges the probation department filed a motion in the juvenile court in May 2012 to revoke L.H.'s probation, alleging that L.H. failed to comply with gang conditions, obey his probation officer, and keep his guardian informed of his whereabouts.
According to papers filed by the district attorney in the juvenile court, L.H. eventually pleaded guilty to one of the charges, felony participation in a street gang.
The November 2011 and May 2012 motions to revoke probation were dismissed in September 2012, in connection with L.H.'s admission to felony inflection of corporal injury on a cohabitant, as alleged in the amended third wardship petition.
At a hearing on December 12, 2012, the juvenile court redeclared L.H. a ward of the court and reinstated his home probation with various terms and conditions. L.H. was also on adult "gang member probation."
In April 2014, the juvenile court relieved L.H, then age 20, of all juvenile probation conditions, and ordered him to remain on juvenile court probation "for immigration purposes."
In October 2012, the juvenile court granted L.H.'s motion for an order making the factual findings necessary for L.H. to petition the immigration court for "special immigrant juvenile status" under federal law. (See 8 U.S.C. § 1101(a)(27)(J) and 8 C.F.R § 204.11.) L.H.'s counsel informed the juvenile court that for L.H. to remain eligible for special immigrant juvenile status, L.H. had to remain under the juvenile court's jurisdiction until the immigration court acted on his request, and stated that she expected the immigration case to be resolved by sometime in December 2014.
2. Motions in the Juvenile Court
In December 2014, L.H. filed a motion under section 782 to dismiss the first wardship petition, and a motion under Penal Code section 17, subdivision (b)(3) to reduce his felony convictions in the second and third petitions to misdemeanors. Both motions were denied later that month.
After January 1, 2015, L.H. asked the court to seal his records under then newly-effective section 786. In a February 2015 order, the juvenile court terminated probation, ordered that "[r]ecords cannot be sealed until all Court Ordered obligations have been fulfilled regarding Victim Restitution, Restitution Fines and/or Community Service," and retained jurisdiction solely "for sealing purposes."
In March 2015, the probation department filed a document with the juvenile court entitled "Wardship Review / 786 W&I," reporting that L.H. had complied with or completed his probation conditions. The review stated that although L.H.'s probation officer said "[L.H.] is a success story," L.H. was not eligible to have his records sealed under section 786 because of the sustained allegation of felony robbery, an offense listed in section 707, subdivision (b). The department "recommended that probation be terminated satisfactory [and] that the matter not be sealed pursuant to section 786 of the Welfare and Institution[s] Code, due to ineligibility."
At an April 2015 hearing, L.H.'s counsel argued that the court should seal the records of the second and third wardship petitions, which, he argued, did not include sustained allegations of any offenses listed in section 707, subdivision (b). The juvenile court concluded that because of the sustained allegation of robbery, which was listed in section 707, subdivision (b), in connection with the first petition, it had no authority to consider the merits or grant L.H.'s request, and denied it on that basis. The juvenile court determined that granting the request would involve "splitting [the] file into different petitions," an approach that had been rejected in Jeffrey T., where sealing was requested under section 781. A formal order denying L.H.'s request to seal the records was filed on April 10, 2015, and L.H. timely appealed the denial insofar as it applied to records of the second and third petitions (Appeal A144804). B. Discussion
1. Applicable Law and Standard of Review
At the time of L.H.'s motion to seal, section 786 provided in relevant part: "If a 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, except that the prosecuting attorney and the probation department of any county shall have access to these records after they are sealed for the limited purpose of determining whether the minor is eligible for deferred entry of judgment pursuant to Section 790." (Former § 786, added by Stats. 2014, ch. 249, § 2.)
"Although appellate courts normally review a juvenile court's denial of a petition to seal juvenile records for an abuse of discretion, where, as here, the review involves determining the proper interpretation of a statute, we utilize the de novo standard of review." (In re David T. (2017) 13 Cal.App.5th 866, 871 (David T.), citing Jeffrey T., supra, 140 Cal.App.4th at p. 1018.)
"Our fundamental task in construing a statute 'is to ascertain the Legislature's intent [and] effectuate the law's purpose. [Citation.] We begin our inquiry by examining the statute's words, giving them a plain and commonsense meaning. [Citation.] In doing so, however, we do not consider the statutory language "in isolation." [Citation.] Rather, we look to "the entire substance of the statute . . . in order to determine the scope and purpose of the provision . . . . [Citation.]" [Citation.] That is, we construe the words in question " 'in context, keeping in mind the nature and obvious purpose of the statute . . . .' [Citation.]" [Citation.] We must harmonize "the various parts of a statutory enactment . . . by considering the particular clause or section in the context of the statutory framework as a whole." [Citations.] We must also avoid a construction that would produce absurd consequences, which we presume the Legislature did not intend. [Citations.]' " (In re Greg F. (2012) 55 Cal.4th 393, 406, quoted in David T., supra, 13 Cal.App.5th at p. 871.)
2. Analysis
We address here a very narrow legal question: Under section 786, as it existed in 2015, did the sustained allegation of a section 707, subdivision (b) offense in a wardship petition preclude the sealing of records of other petitions that are filed in the same case? We conclude that the answer to that question is no.
We begin with the language of section 786. By its terms, section 786 requires the juvenile court to dismiss a petition that alleges an offense not listed in section 707, subdivision (b) and to seal the records pertaining to that petition, if the minor successfully completes a term of probation for the offense. Section 786 does not condition the dismissal and sealing of one petition on any fact about any other petition that might be part of the same juvenile's case. Therefore, section 786 implies that one petition in a case might be dismissed and sealed even if another is not. This reading of section 786 is supported in In re Y.A. (2016) 246 Cal.App.4th 523. There, a minor was the subject of two petitions, neither of which involved an offense listed in section 707, subdivision (b). (Id. at pp. 525-526.) In Y.A., the juvenile court found the minor had satisfactorily completed the terms of probation for only the offense alleged in the second petition, and decided to dismiss and seal the records associated with that second petition but not the first. (Id. at p. 525.) The minor appealed, arguing that records pertaining to the first petition should also have been sealed, but the Court of Appeal affirmed, noting that the plain language of the statute required the dismissal and sealing of petitions on a petition-by-petition basis. (Id. at pp. 527-528.)
The application of section 786 to petitions on an individual basis is consistent with the purpose of the legislation, which was enacted to "better ensure[e] that juveniles have a clear pathway to clearing their records, when in compliance with existing statutory and probationary requirements." (Sen. Com. on Public Safety, Analysis of Sen. Bill No. 1038 (2013-2014 Reg. Sess.) as amended Mar. 28, 2014, p L., quoted in In re A.V. (2017) 11 Cal.App.5th 697, 707 (A.V.).) Accordingly, section 786 "authorizes the juvenile court to employ a streamlined, court-initiated procedure for dismissing juvenile delinquency petitions and sealing juvenile records . . . when a ward 'satisfactorily completes' probation of supervision, as long as the offense is not one listed in section 707, subdivision (b)." (A.V., supra, 11 Cal.App.5th at p. 705.)
The Attorney General argues that the analysis of section 781 in Jeffrey T. supports the juvenile court's decision here that L.H.'s admission to a section 707, subdivision (b) offense in the first petition categorically prevents the dismissal and sealing of the other petitions. We disagree. Jeffrey T. arose in a procedural context different from the one here, and it analyzes a different statute, section 781, which authorizes the sealing of juvenile records in certain circumstances but only after five or more years have passed from the termination of juvenile court jurisdiction.
In Jeffrey T., a former ward of the juvenile court moved to seal his juvenile records under section 781, which under certain circumstances authorized individuals to petition for the sealing of juvenile records "relating to the person's case" but prohibited the sealing of records "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." (140 Cal.App.4th at pp. 1017, 1019, italics omitted.) Jeffrey T. was the subject of a single petition charging him with section 707, subdivision (b) and non-section 707, subdivision (b) offenses committed after he was 14 years old. (Id. at pp. 1017-1018.) The petition initially charged him with simple battery (a misdemeanor) and battery with serious bodily injury (a felony) in connection with a confrontation between Jeffrey T. and two other people. (Id. at p. 1017.) Six months later, while those charges were pending, Jeffrey T. was involved in another confrontation with another person, and the district attorney filed an amended petition adding a charge of assault by force likely to produce great bodily injury with an enhancement of inflicting great bodily injury. (Id. at pp. 1017-1018.) Jeffrey T. admitted the felony battery charge and the related misdemeanor battery charge was dismissed. (Id. at p. 1018.) The assault charge was sustained after a trial, and the juvenile court designated the assault as arising under section 707, subdivision (b). (Ibid.) Jeffrey T. was committed to the California Youth Authority, and then received parole and was honorably discharged, with the result that the juvenile court petition was set aside. (Ibid.) Later, as a graduate student pursuing an advanced degree, Jeffrey T. sought to seal the records connected with the battery offense, which was not a section 707, subdivision (b) offense. (Ibid.) The juvenile court denied the request on the grounds that section 781 precluded sealing the records in a case where a juvenile was found to have committed a section 707, subdivision (b) offense. (Ibid.)
The Court of Appeal affirmed, agreeing with the juvenile court that section 781 by its terms "quite simply prohibits the juvenile court from 'order[ing] 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.' " (Jeffrey T., supra, 140 Cal.App.4th at p. 1020, italics added, referring to § 781, subd. (a) as it existed then.) The Court of Appeal also agreed with the juvenile court that in his case, Jeffrey T. was found to have committed such an offense, and that "applying the statutory language's usual and ordinary meaning, the juvenile court properly determined it could not 'order [his] records sealed.' " (Ibid.) We disagree with the Attorney General's contention that the analysis of Jeffrey T. applies to our case.
Section 781 has been amended several times since Jeffrey T. was decided. (Stats. 2011, ch. 459, § 21; Stats. 2013 ch. 269, §1; Stats. 2015, ch. 388, § 2.) Most recently, section 781 has recently been amended to permit the sealing of records relating to a section 707, subdivision (b) offense in certain circumstances. (Stats. 2017, ch. 679, § 1.)
The statutory language differs significantly between section 781, at issue in Jeffrey T., and section 786, at issue here, even though both statutory sections concern the sealing of juvenile records. Section 781 authorized the sealing of a case if a former ward has not been convicted of a felony or a misdemeanor involving moral turpitude since the termination of juvenile court jurisdiction. (Jeffrey T., supra, 140 Cal.App.4th at p. 1019.) In contrast, section 786 authorizes the dismissal and sealing of a petition upon the completion of probation for a non-section 707, subdivision (b) offense. Furthermore, section 781 referred to the sealing of a "case" (ibid.), while the more recently enacted section 786, which did not exist when Jeffrey T. was decided, refers specifically to sealing records pertaining to a "petition." We presume that in enacting section 786 in 2014 the Legislature was aware of related code sections, including section 781, and that the Legislature was aware of the interpretation put on section 781 by the courts, including the interpretation in Jeffrey T., which had been decided in 2006. (See Leider v. Lewis (2017) 2 Cal.5th 1121, 1135.) Although "it has long been the practice to file successive juvenile petitions under a single case number" (In re Kasaundra D. (2004) 121 Cal.App.4th 533, 549), nothing in section 786 suggests that a sustained section 707, subdivision (b) offense that is alleged in one petition prevents the dismissal and sealing of a petition that does not include such an offense. Accordingly, we presume that the Legislature chose to use the word "petition" in section 786, requiring the sealing of records related to petitions, in distinction to the sealing of a "case" as authorized in section 781.
Our interpretation of section 786 is consistent with 2015 and 2016 amendments to the statute that clarify the relationship of sections 786 and 707, subdivision (b). (Stats. 2015, ch. 368, § 1 & ch. 375, § 1.5; Stats. 2016, ch. 86, § 312 & ch. 858, § 1.) Section 786, subdivision (a) now provides "If a person who has been alleged or found to be a ward of the juvenile court satisfactorily completes . . . a term of probation for any offense, the court shall order the petition dismissed [and] shall order sealed all records pertaining to the dismissed petition . . ." and subdivision (d) provides, "A court shall not seal a record or dismiss a petition pursuant to this section if the petition was sustained based on the commission of an offense listed in subdivision (b) of Section 707 that was committed when the individual was 14 years of age or older, unless the finding on that offense was dismissed or was reduced to a lesser offense that is not listed in subdivision (b) of Section 707." The language of section 786 continues to refer to a "petition," making clear that an individual petition is subject to dismissal and sealing, depending upon the nature of the offenses sustained in that petition and the satisfactory completion of probation.
In addition, 2015 amendments to section 786 authorize the juvenile court when dismissing a petition and sealing the associated records to "seal a record relating to, or to dismiss, any prior petition or petitions that have been filed or sustained against the individual and that appear to the satisfaction of the court to meet the sealing and dismissal criteria otherwise described in this section." (§ 786, subd. (e)(1), added by Stats. 2015, ch. 368, § 1 & ch. 375, § 1.5.) This further indicates the Legislature's intent to facilitate the dismissal of specific petitions and the sealing of records associated with them, as opposed to the sealing of records pertaining to an entire case
Section 786 has recently been further amended, with the result that subdivision (e)(1) will be designated subdivision (f)(1) effective January 1, 2018. (Stats. 2017, ch. 679, § 2.5 & ch. 685, § 1.5.)
Our colleagues in Division One reached a similar conclusion about section 786 in a case that required interpreting the statute as amended effective January 1, 2016 and January 1, 2017. (In re W.R. (2017) ___ Cal.App.5th ___, ___ [2017 WL 5117912 at p. *5, fn. 5].) There, the minor pointed to language in the statute stating that "[u]pon the court's order of dismissal of the petition, the arrest and other proceedings in the case shall be deemed not to have occurred" (§ 786, subd. (b), italics added) to argue that as long as he satisfactorily completed probation, the statute requires sealing all the records in his case file. (Id. at p. ___ [WL p. *4].) The Court of Appeal examined the statute as a whole in light of the Legislature's purpose, explained that "[v]iewed in its ordinary syntactic context, 'in the case' clearly tethers the records to be sealed to the dismissed petition," and concluded that the records to be sealed under section 786 "are those pertaining to a particular petition." (Id. at p. ___ [WL p. *6].)
In sum, we conclude that the juvenile court erred when it interpreted section 786 to mean that L.H.'s admission of a section 707, subdivision(b) offense in connection with his first wardship petition prevented the court from considering whether to seal the records pertaining to the second and third petitions in his case. But we do not agree with L.H. that we should now order the juvenile court to dismiss the second and third petitions and seal the records pertaining to them.
L.H.'s argument on that score rests on his contentions that the sustained charges from his second and third petitions are not listed in section 707, subdivision (b), and that "there is no dispute that [he] successfully completed his term of probation," as required by section 786 at the time his case was heard by the juvenile court. The juvenile court never considered that issue, and L.H. does not address the arguments made by the district attorney and the Attorney General that his probation was not successfully completed, given his arrests and convictions while on probation, including his arrest and conviction on felony charges as an adult while he was still on juvenile probation. The probation department characterized L.H. as "a success story" and recommended that probation be "terminated satisfactory," but the probation report is advisory, not determinative (People v. Warner (1978) 20 Cal.3d 678, 683, superseded by statute on another ground as stated in People v. Douglas (1999) 20 Cal.4th 85, 92, fn. 6), and the juvenile court made no decision on the merits of the issue. We will remand to the trial court for it to consider whether the second and third petitions should be dismissed and sealed under section 786.
DISPOSITION
The February 7, 2012 order of the juvenile court denying L.H.'s motion to set aside his admission to first degree robbery is affirmed. The April 10, 2015 order of the juvenile court denying L.H.'s motion to seal is reversed and the matter is remanded for the juvenile court to consider on the merits.
/s/_________
Miller, J. We concur: /s/_________
Kline, P.J. /s/_________
Richman, J.