Opinion
As Modified on Denial of Rehearing Jan. 6, 1992.
Review Granted Feb. 20, 1992.
Previously published at 1 Cal.App.4th 629, 13 Cal.App.4th 382, 7 Cal.App.4th 1557
Wilbur F. Littlefield, Public Defender, Laurence M. Sarnoff, Sue Robin Pollock, and John Hamilton Scott, Deputy Public Defenders, for petitioner.
De Witt W. Clinton, County Counsel, Frederick R. Bennett, Asst. County Counsel, for respondent.
HINZ, Associate Justice.
INTRODUCTION
Petitioner seeks to conform juvenile court procedures regarding probable cause determinations for minors arrested without a warrant to the 48-hour period established for adult criminal matters by the United States Supreme Court. We deny the petition.
Petitioner Alfredo A., a minor taken into custody pursuant to Welfare & Institutions Code section 602, filed a petition for writ of habeas corpus on July 25, 1991. By its order to show cause filed July 26, 1991, Division Three of the Court of Appeal of the State of California, Second Appellate District, deemed the petition a petition for writ of mandate. The July 26, 1991, order directed respondent Los Angeles County Superior Court to show cause why a peremptory writ of mandate should not issue ordering it to apply a 48-hour period for determining probable cause to juvenile proceedings.
Unless otherwise specified, statutes in this opinion will refer to the Welfare & Institutions Code.
By a July 29, 1991, letter, the Los Angeles County Public Defender informed this court that on July 26, 1991, a juvenile petition was filed alleging that petitioner came within the provisions of section 602 by violating Health & Safety Code sections 11351.5 and 11351 on July 24, 1991. When petitioner appeared in court on the next judicial day, July 29, 1991, no detention report was provided to the juvenile court, which released the petitioner from custody. Time for arraignment was waived, and petitioner's arraignment was calendared for August 19, 1991.
ISSUES
Petitioner claims on appeal that:
1. The court should reach and resolve issues presented in this petition even if the matter becomes moot as to this particular petitioner; and that
2. A juvenile arrested without a warrant is in custody illegally if not provided with a prompt judicial determination of probable cause.
FACTS
The facts as alleged in the petition, undisputed by respondent, are as follows. Petitioner, a minor, was arrested without a warrant on July 24, 1991, and released after five days in custody.
On July 11, 1991, the Honorable Jaime R. Corral, Presiding Judge of the Los Angeles County Juvenile Court, sent a memorandum to all juvenile court judges, commissioners, and referees. The county counsel provided the juvenile court with an opinion about whether Riverside v. McLaughlin (1991) 500 U.S. 44, 111 S.Ct. 1661, 114 L.Ed.2d 49 requiring probable cause determinations no later than 48 hours after a warrantless arrest, applied to juveniles. The county counsel's opinion stated that McLaughlin " 'does not require probable cause hearings in California for juveniles under different circumstances than currently provided for in the Juvenile Court Law.' " Presiding Judge Corral and the supervising judges unanimously agreed that the juvenile court's official position would be consistent with the county counsel's opinion.
The petition contended that procedures followed in Los Angeles County Juvenile Court deprived petitioner and those held in similar circumstances of their liberty because he did not receive a prompt judicial determination of probable cause following his warrantless arrest. The petition further contended that petitioner has no speedy or adequate remedy at law. No judicial order exists requiring his detention, and neither an order of that kind nor the juvenile court's memorandum are appealable. The petition further alleges that it is filed in this court because it presents a question of law and because it would be fruitless to seek relief in the superior court, since that court's official policy requires his detention. DISCUSSION
Petitioner acknowledges that his release after five days in custody renders the petition moot as to him. As illustrated by events following the filing of the petition, in a pretrial detention case, termination of an appellant's claim does not render it moot. Since review usually takes longer than the temporary detention, the appellant, and others in similar circumstances, could be detained under the procedures challenged by this petition. Because the claim is "capable of repetition, yet evading review," it remains suitable for this court's review even if moot as to this petitioner. (Gerstein v. Pugh (1975) 420 U.S. 103, 110, fn. 10, 95 S.Ct. 854, 861, fn. 10, 43 L.Ed.2d 54; In re Talbott (1988) 206 Cal.App.3d 1290, 1292, 254 Cal.Rptr. 421.)
Gerstein held that states must provide "... fair and reliable determination of probable cause as a condition for any significant pretrial restraint of liberty, and this determination must be made by a judicial officer either before or promptly after arrest." (Id., 420 U.S. at p. 125, 95 S.Ct. at p. 868.) In County of Riverside v. McLaughlin, the United States Supreme Court defined its task as clarifying what constitutes "prompt" determination of probable cause following a warrantless arrest. McLaughlin held: "[A] jurisdiction that provides judicial determinations of probable cause within 48 hours of arrest will, as a general matter, comply with the promptness requirement of Gerstein." (111 S.Ct. at p. 1670.) Weekends and holidays do not toll the 48-hour period. (Id., at p. 1671.)
This appeal raises the issue whether McLaughlin applies to juvenile court proceedings.
Subject to some exceptions not relevant to this appeal, California's statutory framework sets forth the following procedures. Without a warrant, a peace officer may take a minor into temporary custody when the officer has reasonable cause to believe the minor has violated a federal or state law or city or county ordinance. (§§ 625, subd. (a), and 602.) By filing a petition, the prosecuting attorney commences juvenile court proceedings to declare a minor a ward of the court pursuant to section 602. (§ 650, subd. (b).) A minor taken into custody must be released within 48 hours, excluding nonjudicial days, unless a petition to declare the minor a ward has been filed. (§ 631, subd. (a).)
Section 632, subdivision (a) states: "Except as provided in subdivision (b), unless sooner released, a minor taken into custody under the provisions of this article shall, as soon as possible but in any event before the expiration of the next judicial day after a petition to declare the minor a ward or dependent child has been filed, be brought before a judge or referee of the juvenile court for a hearing to determine whether the minor shall be further detained. Such a hearing shall be referred to as a 'detention hearing.' "
Petitioner argues that because a petition need not be filed until 48 hours after arrest, and the minor need not be brought before court until the first judicial day after the petition is filed, a detention hearing can be delayed for a substantial period after a minor's arrest. Based on Gerstein and McLaughlin, petitioner claims that federal constitutional law requires an earlier probable cause determination than that provided by California's statutory scheme.
In Schall v. Martin (1984) 467 U.S. 253, 104 S.Ct. 2403, 81 L.Ed.2d 207 three juveniles had been detained for six, six, and more than seven days, respectively, before the equivalent of a detention hearing pursuant to the New York Family Court Act. (Id., at pp. 257-260, 104 S.Ct. at pp. 2406-2408.) The New York Family Court Act, it should be noted, gives the court authority to direct "preventive detention" of the juvenile at an "initial appearance." The statute permits a brief pretrial detention if the court finds a serious risk exists that an arrested juvenile may commit a crime before the return date for a probable cause hearing. (Id., at pp. 255-256, 263, 104 S.Ct. at pp. 2405-2406, 2409.) As the Schall opinion notes, California, like all other states, has an analogous preventive detention provision, section 628. (Id., at pp. 266-267, 104 S.Ct. at pp. 2410-2412.) Schall held, first, that pretrial detention of juveniles "promotes the interests both of society and the juvenile," and "... serves a legitimate regulatory purpose compatible with the 'fundamental fairness' demanded by the Due Process Clause in juvenile proceedings." (Id., at p. 268, 104 S.Ct. at p. 2412.) Schall held, second, that such pretrial detention of juveniles was a regulatory rather than a punitive measure, serving a legitimate state objective. (Id., at p. 274, 104 S.Ct. at p. 2415.)
Schall held, third, that given the procedural protections preceding its imposition, preventive detention did not violate the due process clause of the Fourteenth Amendment. (Id., at pp. 274-281, 104 S.Ct. at p. 2415-2419.) One of several factors underpinning this holding was that under the New York statute, "[t]he initial appearance may be adjourned for no longer than 72 hours or until the next court day, whichever is sooner, to enable an appointed law guardian or other counsel to appear before the court." (Id., at p. 275, 104 S.Ct. at p. 2416.) Schall further found that the failure to make a finding of probable cause at the initial appearance does not amount to a deprivation of due process. Hence a detained juvenile is entitled to a formal, adversarial probable-cause hearing within three days of the initial appearance, with one three-day extension possible for good cause shown. (Id., at pp. 276-277, 104 S.Ct. at pp. 2416-2417.)
Thus Schall approved a statutory scheme in which as many as six, or, on a showing of good cause, even nine days may elapse between the detention and a probable cause hearing. Gerstein similarly indicated approval of a pretrial detention procedure that supplies a probable-cause hearing within five days of the initial detention. (Gerstein v. Pugh, supra, 420 U.S. 103, 124, fn. 25, 95 S.Ct. 854, 868, fn. 25, 43 L.Ed.2d 54.)
Petitioner correctly points out that Schall stated that the issue of the propriety of detention for a period of as long as 72 hours before the initial appearance was not at issue in that case. (Schall v. Martin, supra, 467 U.S. at pp. 257-258, fn. 5, 104 S.Ct. at pp. 2406-2407, fn. 5.) However, Schall also explored the differences between the criminal prosecution of adults and the very different objectives of juvenile proceedings. "We have held that certain basic constitutional protections enjoyed by adults accused of crimes also apply to juveniles. [Citations.] But the Constitution does not mandate elimination of all differences in the treatment of juveniles. [Citation.] The State has 'a parens patriae interest in preserving and promoting the welfare of the child,' [citation] which makes a juvenile proceeding fundamentally different from an adult criminal trial. We have tried, therefore, to strike a balance--to respect the 'informality' and 'flexibility' that characterize juvenile proceedings, [citation] and yet to ensure that such proceedings comport with the 'fundamental fairness' demanded by the Due Process Clause. [Citations.]" (Id., at p. 263, 104 S.Ct. at pp. 2409.)
These protections include notice of charges, right to counsel, privilege against self-incrimination, right to confrontation and cross-examination, proof beyond a reasonable doubt, and double jeopardy. (Schall v. Martin, supra, 467 U.S. 253, 263, 104 S.Ct. 2403, 2409, 81 L.Ed.2d 207, and cases there cited.)
In terms of the New York statutory scheme, Schall reiterated that the New York Family Court "... is charged not with finding guilt and affixing punishment, [citation] but rather with determining and pursuing the needs and best interests of the child insofar as those are consistent with the need for the protection of the community. [Citation.] Juvenile proceedings are, thus, civil rather than criminal, although because of the restrictions that may be placed on a juvenile adjudged delinquent, some of the same protections afforded accused adult criminals are also applicable in this context. [Citation.]" (Id., at p. 257, fn. 4, 104 S.Ct. at p. 2406, fn. 4.)
Schall indicates that custody is a due process right which juvenile court jurisdiction treats differently from adult criminal proceedings. Although a juvenile's interest in freedom from institutional restraints is "substantial," it "... must be qualified California Juvenile Court Law likewise predicates itself on a "protective and rehabilitative philosophy" that distinguishes it from adult criminal law. (T.N.G. v. Superior Court (1971) 4 Cal.3d 767, 776, fn. 10, 94 Cal.Rptr. 813, 484 P.2d 981, quoting Report of the Governor's Special Study Commission on Juvenile Justice, Part I--Recommendations for Changes in California's Juvenile Court Law (1960).) This factor alone distinguishes the instant petition from McLaughlin. So do the procedures set forth in the statutory scheme for making custody determinations for minors who have been arrested. The statutes provide several choices available in determining custody of an arrested minor.
Section 626 authorizes an officer taking a minor into temporary custody to: release the minor; deliver or refer the minor to an agency with which the city or county has an agreement to provide shelter care, counseling, or diversion services; prepare a written notice to appear before the county probation officer, and after obtaining a written promise to appear from the minor, the minor's parent or guardian, or from a responsible relative, release the minor with notice to the probation officer; or to deliver custody of the minor to the probation officer along with a written statement of the probable cause for taking the minor into temporary custody. Section 626 concludes with a statement of policy: "In determining which disposition of the minor to make, the officer shall prefer the alternative which least restricts the minor's freedom of movement, provided that alternative is compatible with the best interests of the minor and the community."
Section 627 requires an officer taking a minor before a probation officer or any other place of confinement to "take immediate steps to notify the minor's parent, guardian, or a responsible relative that such minor is in custody and the place where he is being held." Section 654 authorizes a probation officer, with the consent of the minor and parent or guardian, to "delineate specific programs of supervision for the minor ... and attempt thereby to adjust the situation which brings the minor within the jurisdiction of the court...."
Section 628 requires a probation officer to investigate the minor's circumstances and the facts surrounding the minor's being taken into custody. Section 628 requires the probation officer to release the minor immediately to a parent, guardian, or responsible relative unless one of several conditions exist: the minor needs parental care and has no one to provide it; the minor is destitute, lacks the necessities of life, or has no home; the minor's home is unfit because of negligent, cruel, depraved, or physically abusive parents or guardians; the minor must be detained because of immediate, urgent necessity to protect the minor or because of reasonable necessity to protect the person or property of another; the minor is likely to flee the court's jurisdiction; the minor has violated a juvenile court order; or the minor is physically dangerous to the public because of a mental or physical deficiency, disorder, or abnormality. Even if the minor meets one or more of these criteria for detention, if the probation officer believes that 24-hour secure detention is not necessary, the probation officer, subject to some exceptions and conditions, is required to release the minor to home supervision. (§ 628.1.)
If, on the other hand, the probation officer determines that the minor should be retained in custody, the officer must immediately file a petition and set the matter for hearing on the detention calendar. (§ 630.) Unless a criminal complaint or a petition to declare the minor a ward has been filed, Section 631, subdivision (b) states in part: "In all cases involving the detention of a minor pursuant to this subdivision, any decision to detain the minor more than 24 hours shall be subject to written review and approval by a probation officer who is a supervisor as soon as possible after it is known that the minor will be detained more than 24 hours." Subdivision (c) requires that if a minor is held in custody for more than 24 hours is subsequently released and no petition is filed, the probation officer shall prepare and file within 72 hours after the minor is released a written explanation of why the minor was held in custody for more than 24 hours, with a copy sent to the parents, guardian, or other person having care or custody of the minor.
Finally, section 632, subdivision (a) states that "Except as provided in subdivision (b) unless sooner released, a minor taken into custody under the provisions of this article shall, as soon as possible but in any event before the expiration of the next judicial day after a petition to declare the minor a ward or dependent child has been filed, be brought before a judge or referee of the juvenile court for a hearing to determine whether the minor shall be further detained...."
As we have noted in the quotation, supra, section 632 requires a detention hearing before the expiration of the next judicial day after a petition is filed, or in some cases within 48 hours after having been taken into custody, excluding nonjudicial days. Subdivision (c) states that if the minor is not brought before the juvenile court within the period prescribed by section 632, the minor shall be released.
These statutes provide procedural safeguards that accommodate the individual's right to liberty and the state's duty to control crime. They reflect the balance that must be struck between the informality and flexibility of juvenile proceedings even as they comport with the fundamental fairness required by due process. The statutory scheme protects a minor's right to freedom, consistent with the state interest in protecting the minor and society.
We deny the petition.
DISPOSITION
The petition is denied.
KLEIN, P.J., and DANIELSON, J., concur.