Raul P. v. Superior Court

Opinion

WOODS, P. J. This petition for mandate requires determination of the issue of whether a written social study report pursuant to Welfare and Institutions Code section 707, subdivision (c), is a jurisdictional prerequisite to a determination of unfitness.

We conclude that submission of such a report by the probation department and.its consideration by the juvenile court are mandated by case law, statute, and court rule, and that the determination of unfitness made in absence of such report is void.

[296]The facts are not in dispute.

On October 6, 1983, a petition was filed with the respondent juvenile court ■ pursuant to Welfare and Institutions Code section 602 alleging that the minor petitioner had committed an attempted murder, and assault with a deadly weapon, a shotgun, in a gang-related incident.

A detention hearing was held October 7 and detention was ordered. Rehearing on the detention issue was set for October 13 and on that date petitioner waived his right to an adjudication hearing within the prescribed statutory period. (Welf. & Inst. Code, § 657.) The detention rehearing was continued to October 17 and detention was on that date ordered to continue pending the adjudication hearing.

On October 17, the People filed a notice of motion to find minor unfit for juvenile court treatment. Petitioner waived time for his fitness hearing from the 13th day following his initial detention until November 8.

The fitness motion was called for hearing on November 8. The People advised respondent that no probation report had been prepared pursuant to Welfare and Institutions Code section 707, subdivision (c), and California Rules of Court, rule 1348(a), due to the probation department’s failure to assign a deputy to that task. After extensive argument as to the applicable law, respondent gave the People the option either to proceed with the fitness hearing without the required written report or to request a continuance (with the minor being released) of at least 14 days to enable preparation of the requisite social study report.

Had the People elected on November 8 to continue the fitness hearing, California Rules of Court, rule 1346(a), would have required petitioner’s release from detention pending resumption of the fitness hearing. That rule mandates that a detained minor’s fitness hearing must occur within 13 judicial days following the detention order, while a nondetained minor’s fitness hearing may occur within 25 judicial days following detention. Petitioner contended that if he were released the People still had, by reason of his limited time waiver beyond the “13th day,” 2 weeks within which to commence the hearing with a report.