In re Lucas

Filed 11/28/05 In re Lucas F. CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yolo)

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In re LUCAS F., a Person Coming Under the Juvenile Court Law.
THE PEOPLE, Plaintiff and Respondent, v. LUCAS F., Defendant and Appellant.	C049882 (Super. Ct. No. JD01399)

In December 2001 Lucas F. (the minor) pleaded no contest in juvenile court to felony vandalism (Pen. Code, § 594, subd. (b)(1)), misdemeanor vandalism (Pen. Code, § 594, subd. (b)(2)(A)) and resisting a peace officer (Pen. Code, § 148, subd. (a)). The court deferred entry of judgment for one year.

On December 2, 2002, the court found the minor had complied with the terms of deferred entry of judgment (DEJ) and dismissed the charges. The court did not order the minor’s juvenile records sealed at this time.

On March 21, 2005, the minor filed a motion pursuant to Welfare and Institutions Code section 781^[1] to seal his “criminal records . . . relating to events which occurred prior to the date of [his] majority” that were in the possession of the Yolo County Superior Court, the Yolo County Probation Department, the Yolo County District Attorney, the Davis Police Department, and the California Department of Justice.^[2]

On April 28, 2005, the court ruled on the motion as follows: “The Court is ruling these records are sealed under [section] 793.^[[3]] It’s at the time Judge Fall granted the dismissal of the DEJ which was in December 2002. Those orders were sealed. There is nothing else in this file to seal . . . And so there is nothing you can do under [section] 781 because there is nothing to seal. The orders are already sealed. And there is nothing to talk about.” The minute order of April 28, 2005, states: “Court grants Mot. [t]o Seal‑‑under [section] 793 nunc pro tunc to 12/2/02.”

On appeal, the minor argues and respondent agrees the matter must be remanded to the juvenile court for it to determine whether the minor’s records should be ordered sealed pursuant to section 781.

“[S]ection 781 insures that a juvenile may obtain an order, five years after his detention or when he becomes 21, which seals his juvenile court record even from inspection by juvenile court personnel and which requires the destruction of all records pertaining to the case in the custody of ‘any other agencies, including law enforcement agencies, and public officials as petitioner alleges, in his petition, to have custody of such records.’” (T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 777, italics added.)

In contrast, section 793 limits the sealing of the minor’s juvenile records to those records in the possession of the juvenile court. (§ 793, subd. (c).) Therefore, the court’s order sealing the minor’s records pursuant to section 793 affected only those records in the possession of the juvenile court and did not address the records in the custody of the Yolo County Superior Court, the Yolo County Probation Department, the Yolo County District Attorney, the Davis Police Department, and the California Department of Justice.

Despite the juvenile court’s failure to address the sealing of the minor’s records in the custody of these agencies, the minor correctly recognizes that this court cannot order a sealing of his records but, rather, must remand the matter back to the juvenile court. This is because section 781 provides for a sealing order only after a hearing and finding by the juvenile court “that since the termination of jurisdiction . . . [the minor] 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.” (§ 781, subd. (a).)

DISPOSITION

The matter is remanded to the juvenile court to determine, pursuant to section 781, whether to order sealed the minor’s juvenile records that are in the custody of the Yolo County Superior Court, the Yolo County Probation Department, the Yolo

County District Attorney, the Davis Police Department, and the California Department of Justice.

BUTZ , J.

We concur:

SIMS , Acting P. J.

RAYE , J.

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^[1] Undesignated statutory references are to the Welfare and Institutions Code.

^[2] Section 781, subdivision (a) provides in pertinent 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, 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 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.” (Italics added.)

^[3] Section 793, subdivision (c) provides in pertinent part: “(c) If the minor has performed satisfactorily during the period in which deferred entry of judgment was granted, at the end of that period the charge or charges in the wardship petition shall be dismissed and the arrest upon which the judgment was deferred shall be deemed never to have occurred and any records in the possession of the juvenile court shall be sealed, 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 a minor is eligible for deferred entry of judgment pursuant to Section 790.” (Italics added.)