People v. Edwayne V.

[173]Opinion

SCOTT, Acting P. J. I

Procedural Background

On March 26, 1986, a petition was filed in the San Francisco Superior Court alleging that appellant Edwayne V., a minor, came within the provisions of section 602 of the Welfare and Institutions Code,1 in that he had committed an offense under Penal Code section 211 (robbery). On March 27, 1986, appellant was ordered detained pending a jurisdictional hearing scheduled for April 17, 1986. On April 17, the matter came on for hearing jointly with the jurisdictional hearing of another minor, Rodney M., who had participated in the same alleged robbery. The attorney representing Rodney M. requested a continuance of the joint hearing because of a conflict he had with another pending juvenile trial. Counsel for appellant objected to a continuance, and moved that his client be released if the hearing were continued. The court stated it found good cause for a continuance, continued the hearing to April 21, and denied the request for appellant’s release.

On April 21, appellant’s counsel moved to dismiss the petition against his client pursuant to section 6572 and California Rules of Court, rule 1351.3He argued that because the court had denied his client’s release pending the continued hearing, and because the hearing had not commenced within “15 [174]judicial days” after detention under section 657, the court was required to dismiss the petition pursuant to rule 1351 (d). The court denied the motion.

The hearing went forward, the court determined a factual basis existed for the allegation of robbery in the petition, and that appellant came within the provisions of section 602. At the dispositional hearing on May 5, the court ordered appellant committed to Log Cabin Ranch School for a period not to exceed five years.

II

Issue on Appeal

The sole issue on appeal is whether the trial court was required to dismiss the petition pursuant to rule 1351 (d), because the jurisdictional hearing was not commenced within 15 judicial days after detention, appellant was not released prior to the jurisdictional hearing, and the hearing was not continued pursuant to one of the grounds for continuance enumerated in rule 1352.