Metropolitan News-Enterprise


Tuesday, November 7, 2017


Page 1


Court of Appeal:

Judge Can’t Craft Exception to Sealing of Juvenile’s Records

Panel Rejects A.G.’s Position That Written Acknowledgement by Minor of Dangerousness of DUI Must Be Preserved for Use in the Event of Like Offense in the Future Resulting in Death


By a MetNews Staff Writer


A minor who drove under the influence, and acknowledged in writing his awareness of the dangerousness of the activity, will not face the prospect that his acknowledgement will be used to establish implied malice, necessary for a second degree murder finding, should he drive in such a state in the future and cause a death, under a decision of the Fourth District Court of Appeal.

The panel rejected public policy objections by the Office of Attorney General, mirroring concerns expressed in the trial court by the Orange County District Attorney’s Office.

By virtue of successfully completing probation and consequently gaining a dismissal of the delinquency petition, Justice Richard D. Fybel of Div. Three said in an opinion filed late Friday, youthful offender was entitled, under Welfare and Institutions Code §786(a), to a sealing of “all records pertaining to the dismissed petition.” That language does not permit an exception for signed acknowledgements, pursuant to Vehicle Code §23593, he said.

Although the appellant is referred to in the opinion as “Dean W.,” the docket identifies him as Dean Welch.

Mandatory Advisement

The Vehicle Code section provides that a person convicted of driving under the influence be advised, by the judge or on a plea form:

“You are hereby advised that being under the influence of alcohol or drugs, or both, impairs your ability to safely operate/drive a motor vehicle. Therefore, it is extremely dangerous to human life to drive while under the influence of alcohol or drugs, or both. If you continue to drive while under the influence of alcohol or drugs, or both, and, as a result of that driving, someone is killed, you can be charged with murder.”

The statute was enacted in response the California Supreme Court’s 1981 decision in People v. Watson. (1981). There, then-Justice Frank Richardson (now deceased) wrote:

“[D]efendant asserts that by charging him with second degree murder based upon implied malice…, the prosecution has charged him with an unintentional killing. He argues that because vehicular manslaughter also is an unintentional killing, the two crimes are coterminous, and that the more specific statute excludes the more general one.

“This argument is not persuasive. The requisite culpability for the vehicular manslaughter charged here is gross negligence…, which has been defined as the exercise of so slight a degree of care as to raise a presumption of conscious indifference to the consequences….On the other hand, malice may be implied when a person, knowing that his conduct endangers the life of another, nonetheless acts deliberately with conscious disregard for life.”

Fybel pointed out:

“Thus, Vehicle Code section 23593 enables the prosecutor to establish a defendant’s knowledge of the dangerousness of the conduct by use of the record of advisement.”

Questions Statute’s Applicability

He expressed skepticism that the section applies to juveniles, explaining:

“Vehicle Code section 23593, by its terms, applies to persons ‘convicted of’ driving under the influence. A juvenile adjudication is not a conviction. We question whether the Watson advisement was improper in this case because the ward was not convicted of driving under the influence. Nevertheless, the ward signed the Watson advisement, and the issue before us is whether that advisement is subject to being sealed.”

A deputy district attorney persuaded Orange Superior Court Judge Cheryl L. Leininger that sealing of the acknowledgement of the advisement would contravene public policy, and on appeal, Deputy Attorneys General Heidi Salerno and Barry Carlton took a like stance.

Thwarting of Justice

“The Attorney General argues that sealing the Watson advisement could result in a gross miscarriage of justice if the ward later commits another violation of Vehicle Code section 23152 and a person is killed” Fybel recited. “The Attorney General suggests that the prosecutor in that later case could not admit the Watson advisement into evidence as proof that the ward knowingly endangered the lives of others.”

The justice responded:

“The Attorney General is making a policy argument that is best addressed to the Legislature. The Attorney General’s argument is inconsistent with the express words of the Welfare and Institutions Code section 786.”

January Decision

Fybel made note of his division’s Jan. 19 decision in In re Joshua R. There, the panel, in an opinion by Justice Eileen Moore, said that while a juvenile was required to seal the minor’s records, no sealing was required as to a form sent to the Department of Justice relating to the statutory ineligibility of the offender to possess a firearm prior to the age of 30.

Moore pointed to Welfare & Institutions Code §29820 which says:

 “The juvenile court, on forms prescribed by the Department of Justice, shall notify the department of persons subject to this section. Notwithstanding any other law, the forms required to be submitted to the department pursuant to this section may be used to determine eligibility to acquire a firearm.”

Cases Distinguishable

Fybel declared:

“The present case differs significantly from In re Joshua R. in that Vehicle Code section 23593 does not contain the words or the concept that it applies ‘notwithstanding any other law.’ Specifically, and quite simply, Vehicle Code section 23593 does not provide that the forms memorializing the Watson advisement may be used in later criminal actions notwithstanding any other law. In the absence of language exempting the Watson advisement from Welfare and Institutions Code section 786, that statute’s requirement that all records be sealed applies.”

Fybel’s opinion directs not only a sealing “in full” of the Santa Clara Superior Court records relating to Welch, but also those “in the possession of law enforcement agencies, the probation department, and the Department of Justice.” It instructs the trial court to exercise its statutory discretion in determining whether to order sealing of records in the possession of the Department of Motor Vehicles.

San Diego attorney Lindsey M. Ball, under appointment by the Court of Appeal, represented Welch.

The case is In re Dean W., 17 S.O.S. 5343.


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