California Court of Appeal Dec 26, 2023 No. E081240Unpublished
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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
“Notwithstanding subparagraphs (D) and (E), a record relating to an offense listed in
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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,
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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
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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).) 11