In re L.S. CA2/6

Filed 3/23/21 In re L.S. CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

In Re L.S., a Person Coming 2d Juv. No. B301870
Under the Juvenile Court Law. (Super. Ct. No. TJ22870)
(Los Angeles County)
_____________________________

THE PEOPLE OF THE STATE
OF CALIFORNIA,

Plaintiff and Respondent,

v.

L.S.,

Defendant and Appellant.

L.S. appeals the juvenile court’s order denying his motion
under Welfare and Institutions Code1 section 786, subdivision (e),
to seal the records of his juvenile delinquency petitions after the

All undesignated statutory references are to the Welfare
1

and Institutions Code.
court dismissed the petitions due to appellant’s incompetency.
We agree with appellant that he is entitled to have his records
sealed under these circumstances. Accordingly, we reverse and
remand.
STATEMENT OF FACTS
On August 7, 2017, a section 602 petition was filed against
appellant alleging that he had committed the offenses of being a
minor in possession of a firearm and ammunition (Pen. Code, §§
29610, 29650). The following day, another petition was filed
alleging that appellant had driven or taken a vehicle without
consent (Veh. Code, § 10851, subd. (a)).
On August 29, 2017, appellant’s attorney declared a doubt
as to his competency. Proceedings were suspended and Dr. Kory
Knapke was appointed to evaluate appellant, who remained
detained in juvenile hall.
On September 24, 2017, Dr. Knapke submitted a report
opining “it is exceedingly clear that this minor is not competent
to stand trial based upon his [i]ntellectual [d]isability and the
fact that he has virtually no understanding of even the basics of
the courtroom.” The doctor further opined that “[b]ecause of
[appellant’s] [i]ntellectual [d]isability, which I believe is quite
significant, I believe it is highly doubtful that this minor can be
restored to competency.” Dr. Nancy Kaser-Boyd, who was
retained by the prosecution to provide a second opinion, agreed
that appellant was incompetent due to Attention Deficit
Hyperactivity Disorder (ADHD), developmental and learning
disabilities, and emotional disturbances, but further opined that
his competency could be restored through competency attainment
services.

2
 On November 7, 2017, appellant was charged in an
amended section 602 petition with three counts of attempted
willful, deliberate, and premeditated murder (Pen. Code, §§ 187,
subd. (a), 664), two counts of possession of a firearm by a minor
(id., § 29610), and one count each of assault with a firearm (id.,
§ 245, subd. (a)(2)), assault by means of force likely to produce
great bodily injury (id., § 245, subd. (a)(4)), and shooting at an
occupied motor vehicle (id., § 246).
On January 10, 2018, pursuant to the parties’ stipulation,
the court found appellant incompetent. On February 1, 2018,
appellant was ordered to undergo competency training and such
training commenced in April 2018.
On October 16, 2018, appellant was charged in another
section 602 petition with being a minor in possession of a firearm
and ammunition. On January 24, 2019, yet another petition was
filed alleging that appellant committed an attempted willful,
deliberate, and premeditated murder (Pen. Code, §§ 187, subd.
(a), 664) and an assault with a semiautomatic weapon (id., § 245,
subd. (b)), with further allegations that the crimes were
committed for the benefit of a criminal street gang (id., § 186.22,
subd. (b)(1)(C)). Proceedings remained suspended, while
appellant continued with competency attainment and mental
health services in juvenile hall.
On May 21, 2019, appellant filed motions to dismiss the
two August 2017 petitions pursuant to section 709, on the ground
that appellant remained incompetent and had received over a

3
year of competency attainment services.2 Appellant asserted that
“[a]s he is currently incompetent and there is a statutory ban on
pursuing any further competency attainment services, the only
appropriate solution is dismissal of the petition against him.” In
opposing the motions, the prosecution acknowledged that the
statutory time limits set forth in section 709 are mandatory, yet
asserted that those limits had not yet been exceeded as to the
August 2017 petitions because all of the petitions filed against
appellant “share the same case number and the same home court
with the expectation that these petitions are to be resolved
together and as a whole.” Following a hearing on July 10, 2019,
the court dismissed the two August 2017 petitions “on the
grounds that the minor still remains incompetent and on the
grounds that the minor’s undergone competency proceedings . . .
for a year and five months on those . . . petition[s].”
On July 31, 2019, appellant filed a motion to dismiss the
remaining petitions pursuant to section 709, on the ground that
appellant remained incompetent and that there was no
substantial probability he would obtain competency in the
foreseeable future.3 Appellant argued: “The court has provided
[appellant] with 18 months of competency attainment services.

2Section 709, subdivision (h)(3) states that “the total
remediation period [for an incompetent minor] shall not exceed
one year from the finding of incompetency.”

3 Subdivision (e) of section 709 states in relevant part that
“[i]f the court finds, by a preponderance of [the] evidence, that the
minor is incompetent, all proceedings shall remain suspended for
a period of time that is no longer than reasonably necessary to
determine whether there is a substantial probability that the
minor will obtain competency in the foreseeable future.”

4
They have not succeeded. It is now time to accept the reality that
[he] will never be competent. Both [section] 709 and the Los
Angeles County Juvenile Competency Protocol insist that
attainment services cannot proceed indefinitely. There must be a
‘substantial probability’ that [appellant] will regain competency
in the ‘foreseeable future’ in order to continue attainment
services. [Appellant] does not meet that criteria for continuing
services.” On September 10, 2019, Dr. Knapke submitted a
report opining that “given that [appellant] has already received
approximately one year of attainment services without reaching
restoration, I believe it is unlikely that he will attain competency
to stand trial in the foreseeable future with further attainment
services.”
The prosecution did not submit a written opposition to the
motion. At the September 26, 2019 hearing on the motion, the
prosecutor argued that with regard to attainment services the
court should “reset the clock for each case” and that if the court
was unwilling to do so, “I don’t think the minor should get credit
for the remediation he’s received on the other cases.”
The court dismissed the petitions. The court reasoned
among other things that “[appellant] suffers from an intellectual
disability and his intellectual functioning is impaired and it is
permanently impaired, and while there may be ways to help him
cope with [that] in the future . . . , there is nothing in any of the
materials that the court has read that suggests that [appellant’s]
intellectual functioning is going to change and that means his
competency is not going to change.” The court added that
“although this court is going to terminate [section] 602
jurisdiction . . . , [appellant] will remain a ward of the
dependency court. [The court] will be provided with reports on a

5
regular basis as to [appellant’s] status and everything is being
done to both assist [him] going forward and to protect the public,
but . . . I cannot keep a 15-year-old in essentially jail . . . until
he’s 18 years old because these really serious allegations have
been filed against him, nor is the court willing to keep him in
juvenile detention for another nine months which is what the
People would request.”
After the petitions were dismissed, appellant’s attorney
moved the court to seal all records pertaining to those petitions
pursuant to section 786, subdivision (e). The prosecution did not
offer any arguments on the issue or otherwise oppose the request.
In denying the motion, the court reasoned that “[t]o begin with, I
think the statute specifically carves out sealing for [a section]
707(b) offense. . . . [S]o that deals with the last petition[.]
Secondly, I understand what the plain language of the statute
says, but . . . given that the last petition . . . alleges a [section]
707(b) offense[] I’m not going to split them up . . . . [Appellant],
through his lawyer, can move probation to seal the [records], but
I’m not going to do it piecemeal. The court declines to seal the
records.”
DISCUSSION
Appellant contends the juvenile court erred in refusing to
seal the records of his delinquency petitions under section 786,
subdivision (e), after those petitions were dismissed based on the
findings that appellant was incompetent, had received over one
year of competency attainment services, and was not likely to
become competent in the foreseeable future. We agree.
Decisions whether to seal juvenile records are generally
reviewed for an abuse of discretion. (In re A.V. (2017) 11
Cal.App.5th 697, 711.) Because the issue here is one of statutory

6
interpretation, however, our review is de novo. (In re Joshua R.
(2017) 7 Cal.App.5th 864, 867.)
Section 786, subdivision (e), as amended by Assembly Bill
[AB] 529 effective January 1, 2018, provides in relevant part: “If
a person who has been alleged to be a ward of the juvenile court
has his or her petition dismissed by the court, whether on the
motion of the prosecution or on the court’s own motion, . . . the
court shall order sealed all records pertaining to the dismissed
petition in the custody of the juvenile court, and in the custody of
law enforcement agencies, the probation department, or the
Department of Justice.” (Stats. 2017, ch. 685, § 1.5; In re W.R.
(2018) 22 Cal.App.5th 284, 290-291 (W.R.).) The Legislative
Counsel’s Digest states that “[t]his bill would require, if a person
who has been alleged to be a ward of the juvenile court, and has
his or her petition dismissed or if the petition is not sustained by
the court after an adjudication hearing, the court to seal all
records pertaining to that dismissed petition that are in the
custody of the juvenile court, and in the custody of law
enforcement agencies, the probation department, or the
Department of Justice in accordance with a specified procedure.”
(Legis. Counsel’s Dig., Assem. Bill No. 529 (2017-2018 Reg. Sess.)
The legislative history makes clear that the law is intended
to require the sealing of records where, as here, a minor’s
delinquency petitions are dismissed based on incompetency:
“According to [AB 529’s] cosponsor, ‘under most circumstances a
youth that has his case dismissed due to insufficient evidence, or
in the interest of justice, without an adjudication must wait until
he is at least 18 to petition the court to seal his record. However,
minors that commit and are adjudicated for non-serious or non-
violent offenses can have their records automatically sealed upon

7
completion of probation. This means that the court orders the
petition be dismissed and the juvenile court records are sealed
immediately. [Assembly Bill No.] 529 . . . extends this same
process to similar cases where a minor has had his delinquency
petition dismissed without an adjudication due to insufficient
evidence, in the interest of justice or because he is incompetent
and not likely to become competent in the foreseeable future,
regardless of the alleged offense.” (W.R., supra, 22 Cal.App.5th at
p. 291, italics added, quoting Assem. Com. on Public Safety,
Analysis of Assem. Bill No. 529 (2017-2018 Reg. Sess.) as
introduced Feb. 13, Jun 2017, p. 6.)
W.R., supra, 22 Cal.App.5th 284, is instructive. In that
case, the minor was found incompetent to stand trial on a section
602 petition charging him with felony assault. On the minor’s
motion, the juvenile court dismissed the petition in the interests
of justice pursuant to section 782 based on its finding that the
minor was incompetent and was not likely to regain competency
in the foreseeable future.4 (W.R., at pp. 289-290.) The court
declined, however, to seal the records of that petition under the
version of section 786, subdivision (e) that was then in effect.5
(Id. at p. 290.)

4 Section 782 provides in pertinent part: “A judge of the
juvenile court in which a petition was filed may dismiss the
petition . . . if the court finds that the interests of justice and the
welfare of the person who is the subject of the petition require
that dismissal, or if it finds that he or she is not in need of
treatment or rehabilitation.”
5Former subdivision (e) of section 786 provided: “(1) The
court may, in making its order to seal the record and dismiss the

8
 The issue in W.R. was whether the recently-amended
version of section 786, subdivision (e), which went into effect
while the appeal in that case was pending, applied retroactively.
Prior to answering that question in the affirmative, the court
noted that “[t]he parties agree that if the amended statute
applies, the minor is entitled to all the relief he seeks. . . . The
petition [charging appellant with felony assault] . . . was
dismissed by the court in the interests of justice, after the minor
was found incompetent to stand trial and not likely to become
competent in the foreseeable future. Thus, section 786,
subdivision (e) requires the sealing of records pertaining to that
petition as well.” (W.R., supra, 22 Cal.App.5th at p. 292.)
Here, the juvenile court declined to seal appellant’s records
under section 786, subdivision (e), based on the fact that his most
recent petition alleged offenses listed in section 707, subdivision
(b). Appellant contends, and the People concede, that this was
error because sealing is only prohibited for petitions that were

instant petition pursuant to this section, include an order 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. [¶] (2) An
individual who has a record that is eligible to be sealed under
this section may ask the court to order the sealing of a record
pertaining to the case that is in the custody of a public agency
other than a law enforcement agency, the probation department,
or the Department of Justice, and the court may grant the
request and order that the public agency record be sealed if the
court determines that sealing the additional record will promote
the successful reentry and rehabilitation of the individual.”
(Stats. 2016, ch. 86 (Sen. Bill No. 1171), § 312, eff. Jan. 1, 2017.)

9
sustained based on the commission of an offense listed in
subdivision (b) of section 707. (§ 786, subd. (d).)
The People nevertheless contend, for the first time on
appeal, that appellant is not entitled to have his records sealed
under subdivision (e) of section 786 because the statute refers to
a juvenile who “has their petition dismissed by the court, whether
on the motion of the prosecution or on the court’s own motion.”
(Italics added.) The People note that appellant, rather than the
People or the court, sought the dismissal of his petitions based on
his incompetency.
In W.R., however, the People conceded that section 786
required the sealing of records after the court dismissed the
petition due to the minor’s incompetency.6 As appellant correctly
points out, the minor in that case brought a motion to dismiss,
and the opinion makes clear that the court “granted the motion to
dismiss . . . .” (W.R., supra, 22 Cal.App.5th at pp. 289-290.)
In any event, in reviewing questions of statutory
interpretation “we may reject a literal construction that is
contrary to the legislative intent apparent in the statute or that
would lead to absurd results.” (Simpson Strong-Tie Co., Inc. v.
Gore (2010) 49 Cal.4th 12, 27.) The literal construction of section

6 On our own motion, we also take judicial notice of the
recent unpublished opinion in People v. S.G. (Sept. 4, 2020,
B296711 [nonpub. opn.].), in which the People conceded that
section 786, subdivision (e) requires the sealing of delinquency
petitions dismissed under sections 709 and 782 based on a
finding that the minor is incompetent and unlikely to regain
competency in the foreseeable future. Suffice to state that on
issues of statutory interpretation, the People should not be taking
contradictory positions in different cases raising the same issue.

10
786, subdivision (e) urged by the People meets both of these
criteria. The statute is plainly intended to apply where, as here,
a delinquency petition is dismissed upon a finding that the minor
is incompetent and unlikely to regain competency in the
foreseeable future. It would also be absurd to conclude that the
statute requires sealing when the court or prosecution initiates a
dismissal on this ground, but not when it is initiated by the
minor. The court must dismiss a petition under the
circumstances presented here, regardless of whether or not the
minor asks it to do so.
Moreover, the fact that appellant “moved” the court to
dismiss the petitions does not compel a conclusion that the
petitions were dismissed “on the defendant’s motion.” There is no
statutory basis for a defense motion to dismiss under section 709
or section 782. The latter statute is substantially similar to
Penal Code section 1385, which governs the dismissal of criminal
cases in the interests of justice.7 Although defendants regularly
bring self-styled “motions” to dismiss under Penal Code section
1385, the statute does not confer any right to bring such a
motion. “While a defendant can informally suggest a court
consider the dismissal of charges against him, [Penal Code]
section 1385 does not provide a formal defense motion to
accomplish the same result. [Citation.] In other words, a
defendant may ask the trial court to exercise its discretion under
section 1385.” (People v. Superior Court (Flores) (1989) 214

7 Penal Code section 1385, subdivision (a) provides in
pertinent part that “[t]he judge or magistrate may, either on his
or her own motion or upon the application of the prosecuting
attorney, and in furtherance of justice, order an action to be
dismissed.”

11
Cal.App.3d 127, 137; see also People v. Barraza (1994) 30
Cal.App.4th 114, 121, fn. 8.)
As W.R. makes clear, a delinquency petition must be sealed
under section 786, subdivision (e) where the juvenile court has
dismissed the petition pursuant to section 782 upon a finding
that the minor is incompetent and unlikely to regain competency
in the foreseeable future. Although appellant filed a motion to
dismiss and invoked section 709 rather than section 782, the
petitions were dismissed based on his continuing incompetency,
which is undisputed. For purposes of sealing under subdivision
(e) of section 786, it simply does not matter that appellant asked
the court to exercise its duty to dismiss under these
circumstances, or that he referred to section 709 rather than
section 782.
DISPOSITION
The order denying appellant’s motion to seal the records of
his juvenile petitions under section 786, subdivision (e), is
reversed. The matter is remanded to the juvenile court with
directions to grant the motion and order the records sealed.
NOT TO BE PUBLISHED.

PERREN, J.

We concur:

GILBERT, P.J. TANGEMAN, J.

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 Melissa N. Widdifield, Judge
Superior Court County of Los Angeles
______________________________

Laini Millar Melnick, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Idan Ivri, Supervising Deputy
Attorney General and John Yang, Deputy Attorney General, for
Plaintiff and Respondent.