People v. Edwayne V. , 242 Cal. Rptr. 748 ( 1987 )

MERRILL, J.

I respectfully dissent.

In this case pursuant to Welfare and Institutions Code section 657, the appellant’s jurisdictional hearing was set for April 17, 1986, within 15 judicial days from the date of the detention order. Appellant’s petition was consolidated for hearing with the action of another minor, Rodney M., who participated in the alleged robbery. At the time set for the hearing on April 17, the attorney for Rodney was in trial on another case and, on a 10-minute recess from that case, he appeared in the instant juvenile proceeding and requested a continuance on behalf of his client. The hearing was continued for two judicial days to April 21 over the objection of the attorney for appellant. The court also denied appellant’s motion to be released from detention.

On April 21 appellant’s motion to dismiss the petition for failure to commence the jurisdictional hearing within 15 judicial days from the date of the order directing detention was denied and the allegations of the petition were found to be true. A disposition order was made on May 5 committing the appellant to the Log Cabin Ranch School for a period of time not to exceed five years. On appeal the appellant contends that the case must be reversed because the jurisdictional hearing was not held within 15 judicial days from the date of the order directing detention.

I disagree. California Rules of Court, rule 1352, authorized the court to grant the continuance. Rule 1352 provides in part: “Upon request of counsel for the minor, or upon request of the minor if not represented by counsel after an intelligent waiver, the court may, for good cause shown, continue the jurisdiction hearing beyond the time limit within which the hearing is otherwise required to be commenced.”

A rule of court cannot literally describe every set of facts covered by the rule. We have to look to the intent of the drafter and accord reasonable meaning to the rule. It seems clear that under any reasonable interpretation of the rule it would be applicable to the factual situation in the case at bench. The request for a continuance was by an attorney for a minor in a consolidated action. There is no question but that he showed good cause for the continuance.

It seems illogical to hold that under this situation of a consolidated action that the rule did not authorize the court to grant a brief continuance for two judicial days unless the court were to either order separate hearings and require the victims of this violent attack to testify to the same events twice or release the appellant who the court had already determined should be detained for the protection of the person or property of another. The appellant has the safeguard against any lengthy continuance because good cause is always required.

The case of In re Robin M. (1978) 21 Cal.3d 337 [146 Cal.Rptr. 352, 579 P.2d 1], cited by the majority, is readily distinguishable from our case. In that case a hearing was not held within 15 judicial days and the minor was ordered released and then immediately detained for an additional 15 judicial days on a new petition. The Supreme Court said this procedure would frustrate the law. A jurisdictional hearing was not held until 49 calendar days after the first petition was filed. The issue in In re Robin M., supra, did not concern the question of granting a continuance.

I would affirm the orders of the trial court.

A petition for a rehearing was denied December 21, 1987.