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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

Under the Juvenile Court Law.

_____________________________

THE PEOPLE OF THE STATE 

OF CALIFORNIA,

Plaintiff and Respondent,

v.

L.S.,

 Defendant and Appellant.

2d Juv. No. B301870

(Super. Ct. No. TJ22870)

(Los Angeles County)

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 

1 All undesignated statutory references are to the Welfare 

and Institutions Code.
2

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.
3

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 
4

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. 

2 Section 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.” 
5

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 
6

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 
7

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 nonviolent offenses can have their records automatically sealed upon 
8

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.”

5 Former subdivision (e) of section 786 provided: “(1) The 

court may, in making its order to seal the record and dismiss the 
9

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.) 
10

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.
11

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.” 
12

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.
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.