In re B.B. CA4/2 ( 2023 )

Filed 12/26/23 In re B.B. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
In re B.B., a Person Coming Under the
Juvenile Court Law.
THE PEOPLE,
E081240
Plaintiff and Respondent,
(Super.Ct.No. J250130)
v.
OPINION
B.B.,
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Charles J. Umeda,
Judge. Affirmed.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and
Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant Attorney
General, Charles C. Ragland, Assistant Attorney General, Collette C. Cavalier and
Kathryn Kirschbaum, Deputy Attorneys General, for Plaintiff and Respondent.
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Benjamin B. admitted one count of forcible lewd conduct (Pen. Code, § 288, subd.
(b)) and was adjudged a ward of the court and committed to the Division of Juvenile
Justice (DJJ). Almost a decade after his wardship was terminated, Benjamin filed a
motion to dismiss the petition and set aside the prior adjudication under Welfare and
Institutions Code section 782. (Unlabeled statutory citations refer to this code.)
Benjamin also sought to seal his records under section 781 and to terminate his duty to
register as a sex offender under Penal Code section 290.008. While the motion was
pending, Benjamin filed a supplemental motion to dismiss under section 1179 on the
ground that the DJJ had recently granted him an honorable discharge. After a hearing,
the juvenile court concluded that Benjamin was entitled to dismissal under both section
782 and section 1179 but was not entitled to record sealing or termination of the
registration requirement.
On appeal, Benjamin argues that the juvenile court erred by denying his remaining
requests for relief. He asserts that a dismissal under section 782 eliminates all future
adverse consequences associated with the prior adjudication and therefore entitles him to
have his records sealed and to be relieved from the registration requirement. We
conclude that Benjamin’s argument lacks merit, and we accordingly affirm.
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BACKGROUND
In June 2013, when Benjamin was 20 years old, he took a polygraph exam for
employment with the San Bernardino County Sheriff’s Department. During the exam,
Benjamin admitted that he had sexually molested his younger sister. After being notified
of those statements by the sheriff’s department, the Colton Police Department opened an
investigation. In an interview with police, Benjamin’s sister reported that Benjamin had
continuously sexually abused her over a period of about two years, starting when she was
eight years old. She said that Benjamin had intercourse with her against her will and
made her masturbate and orally copulate him. Benjamin was arrested and confessed to
the abuse. He admitted that he had bribed his sister with video games to get her to orally
copulate him and engage in vaginal and anal intercourse.
On July 1, 2013, the People filed a petition under section 602, alleging that
Benjamin committed two counts of forcible lewd conduct (Pen. Code, § 288, subd.
(b)(1)) and one count of continuous sexual abuse (Pen. Code, § 288.5). The petition
alleged that the two counts of lewd conduct took place between January 1, 2006 (when
Benjamin was 13 years old and his sister was eight) and January 1, 2008 (when Benjamin
was 15 and his sister was 10). The petition alleged that the conduct underlying the
continuous abuse count took place between January 1, 2006, and June 28, 2009. Along
with the petition, the People requested a fitness hearing under former section 707,
subdivision (c), which applied a rebuttable presumption of unfitness to minors who were
alleged to have committed enumerated serious or violent felonies when they were 14
3
years old or older. On July 11, 2013, the probation department filed a report
recommending that Benjamin was unfit for the juvenile justice system and should be
transferred to criminal court.
On August 30, 2013, Benjamin admitted one count of forcible lewd conduct as
alleged in the petition in exchange for the dismissal of the People’s transfer request and
the two remaining counts. At the dispositional hearing the following month, the juvenile
court adjudged Benjamin a ward of the court and committed him to the DJJ for a
maximum term of confinement of 10 years. Less than two years later, in May 2015,
Benjamin received a grant of discharge from the DJJ. In September 2015, after Benjamin
successfully completed probation, the court terminated his wardship.
In March 2021, Benjamin filed a motion to have his juvenile records sealed and
his petition dismissed under sections 781 and 782, respectively. He also sought to
terminate his duty to register as a sex offender, arguing that dismissal under section 782
eliminated all negative future consequences of the prior adjudication, including the
mandatory registration requirement under Penal Code section 290.008. To support his
motion, Benjamin stated that he had completed a sexual behavior treatment program at
the DJJ and that, since discharge, he had remained law-abiding and steadily employed.
The People opposed the motion, arguing that dismissal was neither in the interests of
justice nor in Benjamin’s best interest. In May 2021, the juvenile court denied
Benjamin’s motion in its entirety.
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About two years later, in February 2023, Benjamin filed the present motion,
requesting the same relief as his motion from 2021. Benjamin stated that he has
continued on the same positive trajectory since his previous motion. He stated that he
remains law-abiding and was promoted to district sales manager within his company.
The People opposed the motion.
On April 6, 2023, while the motion was pending, the DJJ granted Benjamin an
honorable discharge. (§ 1177.) The following day, Benjamin filed a supplemental
motion that cited section 1179 as an alternate, independent basis for dismissing the
petition. He argued that whereas dismissal is discretionary under section 782, dismissal
is mandatory under section 1179 if the petitioner has been granted an honorable
discharge. The People did not respond to the supplemental motion.
The juvenile court held a hearing on the motion on May 3, 2023. Because of
Benjamin’s honorable discharge and his progress since reentering society, the court
concluded that he was entitled to dismissal under both section 1179 and section 782.
However, the court also concluded that Benjamin was not entitled to the other relief
requested. As for the registration requirement, the court reasoned that nothing in section
782 or section 1179 authorized termination or shortening of the 10-year minimum
requirement contained in Penal Code section 290.008, subdivision (d)(2). Regarding the
sealing request, the court determined that relief was barred by section 781’s provision
that “a record relating to an offense listed in subdivision (b) of Section 707 that was
committed after attaining 14 years of age for which the person is required to register
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pursuant to Section 290.008 of the Penal Code shall not be sealed.” (§ 781, subd.
(a)(1)(F).) The court noted that Benjamin could file a motion to terminate his duty to
register in two years, once the mandatory 10-year period expired.
DISCUSSION
Benjamin argues that the juvenile court erred by denying his request to seal his
records and terminate the registration requirement. He contends that the dismissal of his
petition under section 782 released him from all future adverse consequences associated
with the adjudication, which includes the sealing limitation in section 781 and the 10-year
registration requirement in Penal Code Section 290.008. We disagree.
A. The Relevant Statutes
Benjamin’s argument presents a question of statutory interpretation subject to de
novo review. (In re Jhonny S. (2022) 85 Cal.App.5th 282, 286.) In construing statutory
provisions, we ascertain the Legislature’s intent “‘by examining the statute’s words,
giving them a plain and commonsense meaning.’” (In re Greg F. (2012) 55 Cal.4th 393,
406.)
Section 782 grants the juvenile court the power to “dismiss the petition” or “set
aside the findings and dismiss the petition” if the court finds that dismissal serves “the
interests of justice and the welfare of the person who is the subject of the petition.”
(§ 782, subd. (a)(1).) Section 782 was amended, effective January 1, 2023, to state that a
“[d]ismissal of a petition, or setting aside of the findings and dismissal of a petition,
pursuant to this section, . . . does not alone constitute a sealing of records as defined in
6
Section 781 or 786” and that “[a]ny unsealed records pertaining to the dismissed petition
may be accessed, inspected, or used by the court, the probation department, the
prosecuting attorney, or counsel for the minor in juvenile court proceedings commenced
by the filing of a new petition alleging the person is a person described by Section 602.”
(§ 782, subd. (e).)
Section 781 governs the sealing of juvenile records. In relevant part, the statute
states that “five years or more after the jurisdiction of the juvenile court has terminated as
to the person,” the person may “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, entities,
and public officials as the petitioner alleges, in the petition, to have custody of the
records.” (§ 781, subd. (a)(1)(A).) The court shall order the records sealed if, after a
hearing, it “finds that since the termination of jurisdiction . . . the person 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.” (Ibid.)
Subdivisions (a)(1)(D) and (a)(1)(E) of section 781 contain additional
requirements for the sealing of records relating to any of the serious or violent felony
offenses listed in subdivision (b) of section 707. However, subdivision (a)(1)(F) of
section 781 contains an express sealing prohibition for a subset of sex offenses listed in
section 707, subdivision (b). Section 781, subdivision (a)(1)(F), states:
“Notwithstanding subparagraphs (D) and (E), a record relating to an offense listed in
7
subdivision (b) of Section 707 that was committed after attaining 14 years of age for
which the person is required to register pursuant to Section 290.008 of the Penal Code
shall not be sealed.” (§ 781, subd. (a)(1)(F).)
Finally, Penal Code section 290.008 governs the registration requirement for
juveniles adjudicated wards of the court for specified sex offenses. The statute contains a
list of enumerated sex offenses, some of which are also serious or violent felonies under
subdivision (c) of Penal Code section 667.5. Juvenile offenders who have suffered an
adjudication for an enumerated sex offense that is not a serious or violent felony are
considered tier one offenders, and they are required to register for a minimum of five
years. (Pen. Code, § 290.008, subd. (d)(1).) Juvenile offenders who have suffered an
adjudication for an enumerated sex offense that is a serious or violent felony are
considered tier two offenders, and they are required to register for a minimum of 10
years. (Pen. Code, § 290.008, subd. (d)(2).) Subdivision (a) of section 290.008 states
that persons required to register “shall register in accordance with the Act unless the duty
to register is terminated pursuant to Section 290.5 or as otherwise provided by law.”
(Pen. Code, § 290.008, subd. (a).)
B. Benjamin Is Not Entitled to Record Sealing or Termination of the
Registration Requirement
Benjamin is a tier two juvenile offender under Penal Code section 290.008
because his offense of forcible lewd conduct (Pen. Code, § 288, subd. (b)) is both an
enumerated sex offense and a serious or violent felony under Penal Code section 667.5,
8
subdivision (c). (Pen. Code, § 290.008, subd. (d)(2).) As a tier two offender, Benjamin
must register for a minimum of 10 years. Because that period had not yet expired when
the court ruled on Benjamin’s request, the court correctly determined that he was not
entitled to termination of the registration requirement. (Ibid.)
Relying on Penal Code section 290.008’s statement that the duty to register may
be terminated pursuant to Penal Code section 290.5 or “as otherwise provided by law”
(Pen. Code, § 290.008, subd. (a)), Benjamin argues that section 782 is a statute that
otherwise provides for termination because it provides for dismissal of the adjudication
that triggered the registration requirement. The juvenile court rejected that argument on
the ground that section 782 does not say anything about Penal Code section 290.008 or
the duty to register. We agree with the juvenile court. Because section 782 is silent as to
registration, it does not “otherwise provide[]” a mechanism for terminating the
registration requirement within the meaning of Penal Code section 290.088, subdivision
(a).
Benjamin argues that if section 782 does not authorize termination of the
registration requirement upon dismissal, then the “as otherwise provided by law”
language in subdivision (a) of Penal Code section 290.008 would be rendered surplusage.
That is incorrect. As the People point out, there are other statutes that expressly provide
for termination of the registration requirement when certain conditions have been met.
(See, e.g., § 781, subd. (a)(1)(C) [duty to register terminates upon the sealing of a
record].) Section 782 is not one of those statutes.
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As for Benjamin’s request for record sealing, because his adjudication requires
him to register as a sex offender and because he committed the offense when he was
older than 14, the prohibition on sealing in subdivision (a)(1)(F) of section 781 applies to
him. Consequently, even if Benjamin could satisfy the requirements for sealing (i.e.,
suffering no convictions for crimes of moral turpitude and attaining rehabilitation),
section 781, subdivision (a)(1)(F), directs the court not to seal his records. (See In re
Chong K. (2006) 145 Cal.App.4th 13, 20-21 [concluding that the sealing limitation in
former section 781 applied to the appellant even though his prior adjudication was
dismissed under section 1772].)
Citing In re David T. (2017) 13 Cal.App.5th 866 (David T.), Benjamin argues that
dismissal under section 782 releases him from all future adverse consequences associated
with his prior adjudication, including the sealing prohibition in section 781 and the
registration requirement in Penal Code section 290.008. Benjamin’s reliance on David T.
is misplaced because that opinion interpreted a version of section 782 that was materially
different from the current version. In David T., the court concluded that former section
782 was analogous to Penal Code section 1385 because both provisions granted courts
the power to enter dismissals in furtherance of justice and neither provision contained
language limiting the effect of such dismissals. (David T., at pp. 874-877.) Because
neither statute contained any limiting language, the court held that a dismissal under
former section 782 released the petitioner from “any and all future adverse
10
consequences” associated with the dismissed adjudication, including a sealing limitation
1
contained in an earlier version of section 781. (Id. at p. 877.)
After David T. was issued, however, the Legislature amended section 782 to add
limitations to the effect of a dismissal, including a limitation regarding record sealing.
(Stats. 2022, ch. 970 (A.B. 2629), § 1.) Because of those recent amendments, David T.’s
reason for concluding that a dismissal under section 782 eliminates all future adverse
consequences associated with the adjudication no longer applies. As noted, section 782
now states that a “setting aside of the findings and dismissal of a petition, pursuant to this
section, . . . does not alone constitute a sealing of records as defined in Section 781.”
(§ 782, subd. (e).) Thus, contrary to David T., Benjamin is not automatically entitled to
have his records sealed. (See David T., supra, 13 Cal.App.5th at pp. 877, 879.) Rather,
Benjamin must seek such relief under section 781, which, as discussed, contains a record
sealing limitation that applies to him. (§ 781, subd. (a)(1)(F).)
For all of these reasons, the juvenile court did not err by denying Benjamin’s
requests to seal his records and to terminate his registration requirement.
1 The version of section 781 in effect at the time stated: ‘“Notwithstanding any
other law, the court shall not order the person’s records sealed in any case in which the
person has been found by the juvenile court to have committed an offense listed in
subdivision (b) of Section 707 when he or she had attained 14 years of age or older.”’
(Former § 781, subd. (a)(1)(D).)
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DISPOSITION
The order is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MENETREZ
J.
We concur:
RAMIREZ
P. J.
McKINSTER
J.
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