IN RE: KEVIN B.

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Court of Appeal, Second District, Division 2, California.

IN RE: KEVIN B., a Minor, On Habeas Corpus. The People of the State of California, Real Party in Interest.

Cr. 40119.

Decided: August 20, 1981

Wilbur F. Littlefield, Public Defender, Paul A. James, Timothy M. Murphy, Jack T. Weedin, Jr., Deputy Public Defenders, for petitioner. John K. Van De Kamp, Dist. Atty., Donald J. Kaplan, Eugene D. Tavris, Deputy Dist. Attys., for real party in interest.

I

THE ISSUE

The question presented in this case is whether a juvenile may be detained after an adjudication hearing but pending the dispositional hearing even though he was at liberty pending the adjudication hearing.

II

BACKGROUND

The juvenile in this case was charged with committing an act which would have been stealing an automobile if committed by an adult. He previously had been found in violation of the law and was on the juvenile equivalent of probation for an assault charge. In the instant matter, the petition was sustained and the facts were found to be true as alleged that he had violated a criminal statute stealing another person's car. Although he had been at large during the proceedings, after the adjudication, the juvenile court ordered him detained (i. e. remanded to custody) following the adjudication.

Through his lawyer, the public defender, the juvenile sought release from such detention pending the dispositional hearing. He applied to this court for a writ of habeas corpus. We denied the writ and he applied to the Supreme Court. The Supreme Court retransferred the matter to this court. Although seemingly moot because of the passage of time, we read the order of retransfer as directing this court to consider the matter on its merits.

Relying upon In re Macidon (1966) 240 Cal.App.2d 600, 49 Cal.Rptr. 861, the public defender, on behalf of the juvenile, argues that without a showing of new facts since the petition was filed, the petitioner could not be remanded to custody. Counsel for the juvenile declares “The fact situation in Macidon is identical to those in this case, except that in Macidon the detention was pre-adjudication and in this case Abel (presumably referring to the minor Kevin) is detained post -adjudication, pending his dispositional hearing. Still the Macidon standard of ‘new or previously undiscovered facts' should apply.” (Emphasis added.) Of course, the difference between Macidon and this case, although quickly glossed over by counsel, i. e. post-adjudication vs. pre-adjudication orders, is tremendously important. In the case at bench the adjudication hearing did in fact disclose and prove as a matter of legally recognized substance “new facts” which rendered the detention order perfectly valid. The new facts proven were that petitioner had committed a new offense of stealing and also had violated his conditions of probation previously imposed.

The argument presented by the district attorney in the People's answer and return to petition for writ of habeas corpus correctly explains the correctness of the court's conduct and the applicable statute supporting the court's action.

We recognize the teaching of Macidon, “where, as here, the minor has been relinquished to the custody of his parent and remained there for a period of over five weeks there should be some evidence to show new or previously undiscovered facts relating to one of the grounds for detention in order to justify such an order.” (In re Macidon, supra, 240 Cal.App.2d 600, 608, 49 Cal.Rptr. 861.) Granted that Macidon is a correct statement of the law in respect of the situations to which it applies, it is not at all helpful to the minor here at bench.

In Macidon, “there (was) no evidence to show that (the minor) falls within any of the categories of (Welf. & Inst.Code) section 636” (Id. at p. 608, 49 Cal.Rptr. 861.) In this respect, Macidon is inherently distinguishable and different from the case at bench; for Welfare & Institutions Code section 636 specifically authorizes the juvenile court to detain the minor “(i)f it appears upon the hearing that such minor has violated an order of the juvenile court ” The Macidon rule as urged here in Kevin's behalf has no application when it appears that the minor has violated an order of the juvenile court. We note that Welfare & Institutions Code section 635 appears to recognize detention as the appropriate and usual practice whenever the minor has violated an order of the juvenile court:

“ unless it appears that such minor has violated an order of the juvenile court the court shall make its order releasing such minor from custody ” 1 (Welf. & Inst.Code, s 635; see also Welf. & Inst.Code, s 702; Rule 1356(b), California Rules of Court.)

Additionally, the Macidon holding, by its very terms, has no application when there is “evidence to show previously undiscovered facts relating to one of the grounds for detention.” (In re Macidon, supra, at p. 608, 49 Cal.Rptr. 861.) In the case at bench, it was manifestly not until the juvenile court had determined, in the course of the May 7 hearing, that “(m)inor is a person described by Section 602 of the Welfare and Institutions Code”,2 that it could be ascertained that Kevin B. was “in violation of a court order, to wit: the condition that Kevin obey all laws” through the medium if being in violation of his prior probation. In short, therefore, the determination that Kevin “is a person described by Section 602 of the Welfare and Institutions Code”, coupled with his prior probation and the condition thereof that he obey all laws, amply warranted the order under review. Macidon creates no impediment to this conclusion.

The petition for writ of habeas corpus is denied.

FOOTNOTES

1.  The Petition studiously avoids any reference to Welfare & Institutions Code ss 635 and 636.

2.  “Any person who is under the age of 18 years when he violates any law of this state or of the United States or any ordinance of any city or county of this state defining crime other than an ordinance establishing a curfew based solely on age, is within the jurisdiction of the juvenile court, which may adjudge such person to be a ward of the court.” (Welf. & Inst.Code, s 602.)

BEACH, Associate Justice.

FLEMING, Acting P. J., and COMPTON, J., concur.