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Court of Appeal, Second District, Division 1, California.

IN RE: ROBIN M., a minor, on habeas corpus.

Cr. 31107.

Decided: November 29, 1977

Martin E. Aguilar, Montebello, for petitioner. Wilbur F. Littlefield, Public Defender, Dennis A. Fischer, Kenneth I. Clayman and Albert J. Menaster, Deputy Public Defenders, as amici curiae on behalf of petitioner. John H. Larson, County Counsel and Philip H. Hickok, Deputy County Counsel, for respondent. John K. Van De Kamp, Dist. Atty., Donald J. Kaplan and Barry R. Levy, Deputy Dist. Attys. for real party in interest.

This petition for writ of habeas corpus tests the validity of subdivision (e) of rule 1351, California Rules of Court, which permits the detention of a juvenile pursuant to Welfare and Institutions Code section 602 upon a subsequent detention hearing where a prior petition for wardship has been dismissed for failure to hold an adjudication hearing within the statutory period.1 Concluding that the rule is authorized by the California Constitution and by statute, we deny the petition.


On July 21, 1977, a petition was filed asserting that Robin M. was a person subject to the Juvenile Court Law by reason of his commission of seven acts of robbery over an eight day period. Robin M. was detained at a hearing held the day that the petition was filed. With the consent of Robin M. and his counsel, the adjudication hearing was set for August 12. At the beginning of the adjudication hearing, the district attorney stated that he was unable to proceed because of the absence of the investigating police officer. Denying the district attorney's motion for a continuance, the juvenile court dismissed the petition for failure of prosecution without prejudice.

Robin M. was returned to the juvenile hall to be released. Upon his formal release, Robin M. was again detained by the probation officer and a new petition seeking his adjudication as a ward of the court and alleging the same acts of criminality as those in the prior petition was filed on August 15. A detention hearing was again held on August 15. Robin M. was ordered detained, and an adjudication hearing was set over Robin M.‘s motion for immediate release. Robin M. filed his petition for writ of habeas corpus with this court claiming that he could not be detained prior to hearing for a period in excess of 15 days despite the filing of the new petition and the second detention hearing in the juvenile court. We denied the petition. Robin M. then sought hearing in the Supreme Court and petitioned that body for immediate release. The Supreme Court denied the petition for immediate release but granted hearing. It issued its order to show cause on the petition for habeas corpus returnable in this court.

Robin M. was adjudged a ward of the juvenile court on September 7, 1977. On September 23 he was placed in the juvenile court's camp community placement program.


We note at the outset that contrary to the contention of respondent juvenile court, the matter at bench is not here mooted by the adjudication of wardship and camp placement of Robin M. The Supreme Court, by its order to show cause returnable in this court, has determined that the matter at bench is appropriate for the proceeding ordered by it. (See In re Hochberg (1970) 2 Cal.3d 870, 875-876, fn. 4, 87 Cal.Rptr. 681, 471 P.2d 1.) The record before the high court when it issued its order disclosed that the jurisdictional hearing at which Robin M.‘s status would be determined was set in a few days. The Supreme Court denied a petition for immediate release at the same time it issued the order to show cause. Necessarily then, the order to show cause was issued to secure institutional review of a significant legal issue of public importance (see 5 Witkin, Cal.Procedure (2d ed.) Extraordinary Writs, s 69), and not solely to review for correctness the matter of Robin M.‘s continued detention.


As amended in 1976, Welfare and Institutions Code section 636 states: “If it appears upon the (detention) hearing that . . . it is a matter of immediate and urgent necessity for the protection of such minor or reasonably necessary for the protection of the person or property of another that he be detained . . . the court may make its order that such minor be detained in the juvenile hall . . . for a period not to exceed 15 judicial days . . .. The circumstances and gravity of the alleged offense may be considered, in conjunction with other factors, to determine whether it is a matter of immediate and urgent necessity for the protection of the minor or the person or property of another that the minor be detained.”

Section 657 of the Welfare and Institutions Code requires that, where a minor is detained, a petition to adjudge him a ward of the court for criminal conduct be set for hearing within 15 judicial days. Section 700.5 states: “Except where a minor is in custody, any hearing on a petition . . . may be continued by the court for not more than 10 days . . . whenever the court is satisfied that an unavailable and necessary witness will be available within such time.”

Rule 1351, California Rules of Court, provides in subdivision (d) that if the jurisdiction hearing is not set within the required time limits “the court shall order the petition dismissed.” Subdivision (e) of rule 1351 provides that such an order dismissing the petition prior to the jurisdiction hearing “shall not in itself bar the filing of a subsequent petition commencing new proceedings based upon the same allegations as in the original petition.” Subdivision (e) states also: “If the minor is detained at the time a subsequent petition is filed, a new detention hearing shall be held.”

In sum, the statutes governing detention of a minor require that a hearing on wardship be held within 15 judicial days of detention but are silent on the consequences of a failure to hear the issue within the statutory time. The applicable rule of court amplifies the statute by requiring dismissal of the petition if it is not heard within the statutory time, by authorizing the petition to be refiled on the same factual basis as contained in the dismissed petition, and by authorizing a new detention hearing upon the refiled petition.

Thus, if subdivision (e) of rule 1351 is valid, Robin M.‘s petition for habeas corpus must be denied. The petition alleges only that Robin M.‘s detention on the refiled petition is illegal because the maximum 15-day period of detention was exhausted by confinement on the dismissed petition.2 Subdivision (e) of rule 1351 authorizes the procedure which Robin M. attacks.

We conclude that subdivision (e) of rule 1351 must be given effect.

Article VI, section 6 of the California Constitution authorizes the Judicial Council to “adopt rules for court administration, practice and procedure, not inconsistent with statute . . . .” “(I)f they do not transcend legislative enactments or constitutional provisions, (those rules) have the force of positive law . . . .” (Albermont Petroleum, Ltd. v. Cunningham (1960) 186 Cal.App.2d 84, 89, 9 Cal.Rptr. 405, 408, see also Cantillon v. Superior Court (1957) 150 Cal.App.2d 184, 187, 309 P.2d 890; Trickey v. Superior Court (1967) 252 Cal.App.2d 650, 654, fn. 4, 60 Cal.Rptr. 761.) Welfare and Institutions Code section 265 also mandates that the Judicial Council “establish rules governing practice and procedure in the juvenile court not inconsistent with law.”

If subdivision (e) of rule 1351 is a procedural rule not inconsistent with law, it governs the case at bench. The issue distills primarily to the consistency of the subdivision with Welfare and Institutions Code sections 636, 657, and 700.5, there being no contention that the rule violates constitutional principles or decisional law.

We approach the issue of validity of the Rule of Court applying a strong presumption in its favor. We must uphold the rule if any reasonable hypothesis supports it. Any close question of existence of the hypothesis must be resolved in favor of validity.

The adoption of the rule necessarily means that the rule-making body has determined that the rule is valid and within its authority to adopt. Rules of court are adopted by the California Judicial Council of which the Chief Justice is chairperson. Another Supreme Court justice, three judges of the Court of Appeal, and ten trial court judges sit on the Council. Four members of the body are lawyers chosen by the Board of Governors of the State Bar, and two are members of the Legislature. (Cal.Const., art. VI, s 6.) Implicit in the method of selection of members of the Judicial Council is their choice for special capacity, knowledge, expertise, and judgment. A Court of Appeal may not rule contra to the persuasion of such a body absent the clearest of showings that the body was wrong in its implicit determination that the rule it adopted is valid.

Here subdivision (e) of rule 1351 can reasonably be construed as a rule establishing procedure to be followed by the juvenile court when a petition is refiled.

Here subdivision (e) of rule 1351 can reasonably be construed as consistent with statute. Welfare and Institutions Code sections 636 and 657 deal only with detention pursuant to and the time for hearing of a “petition.” They are silent on detention pursuant to and the time for hearing of a second petition filed after an earlier one has been dismissed without prejudice. A reasonable construction of those statutes is that they do not cover the situation on which they are silent. Section 700.5 authorizes a 10-day continuance of the jurisdiction hearing for absence of an unavailable and necessary witness only when the juvenile is not in “custody.” A reasonable construction of that statute is that it is not inconsistent with subdivision (e) of rule 1351 if the detention of the minor after a second hearing on refiling after an earlier petition has been dismissed is not in essence a continuance of hearing on the petition. One possible reasonable hypothesis is that the refiling and second detention does not have the effect of a continuance where, at the second detention hearing, the court determines: (1) that the earlier petition was dismissed without prejudice in good faith and for reasonable cause; (2) the juvenile is not prejudiced by the dismissal and refiling; and (3) despite the earlier detention it is a matter of immediate and urgent necessity for the protection of the minor or reasonably necessary for the protection of the person or property of another that the minor be detained on the refiled petition.

Here there is no assertion of lack of good faith or lack of reasonable cause in the dismissal without prejudice of the first petition or of prejudice to Robin M. from refiling. Here there is no contention of a lack at the time of the second detention of immediate and urgent necessity to confine Robin M. for his own protection and a reasonable necessity to confine him for the protection of the person and property of others.


The petition for writ of habeas corpus is denied.


1.  Amici curiae raise the additional point of eligibility of juveniles to bail pending the adjudication hearing. The point not having been raised by the parties, we do not consider it. (Pratt v. Coast Trucking, Inc. (1964) 228 Cal.App.2d 139, 143, 39 Cal.Rptr. 332.)

2.  Dismissal of the original petition does not bar refiling on the same grounds. (Neil G. v. Superior Court (1973) 30 Cal.App.3d 572, 106 Cal.Rptr. 505; Alex T. v. Superior Court (1977) 72 Cal.App.3d 24, 140 Cal.Rptr. 17.)

THOMPSON, Associate Justice.

WOOD, P. J., and LILLIE, J., concur.

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