Detention Hearings _Outline_ WMunoz 11-09

							                          DETENTION HEARING OUTLINE
                  By: Walter Muñoz, Deputy Public Defender, Juvenile Division


A.   WHEN IS DETENTION HEARING REQUIRED?

     $      M in custody at arraignment on new petition or probation violation.
     $      M is placed on CDP (i.e., house arrest). (W&IC '' 628.1, 636(b)).
     $      Detaining M at later court appearance. (In re Ryan B. (1990) 216 Cal.App.3d 1519,
            requiring change of circumstances and notice of intent to detain prior to hearing).


B.   WHEN SHOULD INITIAL DETENTION HEARING BE HELD?

     $      Timelines are strictly construed B must release M if there is a timeline violation. (In re
            Tan T. (1997) 55 Cal.App.4th 1398).
     $      Felony, violent misdemeanor, or on probation: on felony, violent misdemeanor, or
            where M is currently on probation, petition must be filed within 48 hours of original
            detention (W&IC 631(a); Cal. R. Ct. 5.752(d)) and M must be brought to court by the end
            of the first judicial day after petition has been filed. (W&IC 632(a); Cal. R. Ct. 5.752(f)).
     $      Non-violent misdemeanors where M not on probation: petition must be filed within 48
            hours of detention (W&IC 631(b)) and M must be brought to court within 48 hours of
            original detention. (W&IC 632(b); Cal. R. Ct. 5.752(e)).
     $      All timelines exclude non-judicial days.


C.   REQUIREMENTS FOR DETAINING A MINOR

     AThe court MUST RELEASE the child unless the court finds that@ (Cal. R. Ct. 5.758):

     1)     A PRIMA FACIE SHOWING is made that M is person described by W&IC ' 602 (i.e.,
            committed a crime).

            $      In the absence of a stipulation of a prima facie showing, the prosecutor submits the
                   matter to the court on the basis of the police report. (In re Larry (1971) 16
                   Cal.App.3d 290; Cal. R. Ct. 5.756(c)).
            $      Burden of proof = probable cause = Asuch a state of facts as would lead a person
                   of ordinary caution and prudence to believe and conscientiously entertain a strong
                   suspicion of guilt of the accused.@ (Marcus W. (2002) 98 Cal.App.4th 36, 41).

     2)     GROUND FOR DETENTION EXISTS (W&IC ' 635; Cal. R. Ct. 5.758, 5.760):
            $      Violation of court order;
            $      Escape from commitment;
            $      Likely to flee;
            $      Matter of immediate and urgent necessity for the protection of M; or
            $      Reasonably necessary for the protection of the person or property of another.

            Practice tip - MUST review Cal. R. Ct. 5.760 for SUB-FACTORS!!!!!!

     3)     CONTINUANCE IN HOME IS CONTRARY TO CHILD=S WELFARE. (W&IC '
            635; Cal. R. Ct. 5.758).

            Practice tip - Get creative. Argue that home is best alternative and detention would be
            highly detrimental to M. Make sure to discuss the supervision M will receive and the
            services that will be in place (e.g., counseling) if M is released.
D.   CONDUCT OF DETENTION HEARING

     $   Rule: the court Amust consider any relevant evidence that the child, the parent, the
         guardian, or counsel presents.@ (Cal. R. Ct. 5.756; W&IC ' 635).
     $   Practice tip - having representatives from M=s work, counseling services, church, school
         to testify at detention hearing often makes a difference in obtaining M=s release.


E.   REMEDY IS RELEASE NOT DISMISSAL

     $   If proper showing is not made at detention hearing, remedy is release. (W&IC ' 631(a)).
     $   Benefits of release:
         -       Avoid detrimental effects of detention upon minor;
         -       Aid in preparation for adjudication (especially if multiple defense witnesses
                 involved); and
         -       Aid in disposition (e.g., getting minor in counseling and regularly attending school
                 to strengthen argument that minor should remain in community).


F.   RIGHT TO REHEARING

     $   DENNIS H. HEARING: Rehearing on Prima Facie Showing (W&IC ' 637; Cal. R. Ct.
         5.762(c))

         RULES:
         -    This rehearing must occur within 3 court days. The Court may grant DA a
              continuance up to 2 addnl. court days if witnesses unavailable. (W&IC ' 637).
         -    M has right to cross-examine preparers of any reports court relies on.
         -    M has no right to cross-examine complaining witness. (In re Luis M. (1986) 180
              Cal.App.3d 1090). However, M may subpoena percipient witnesses (including
              complaining witness) if it would be Arelevant to the issue of detention.@ (See Cal.
              R. Ct. 5.756(b).)
         -    Affirmative defense okay if relevant to ground for detention. (In re Korry K.
              (1981) 120 Cal.App.3d 967).
         -    Involuntary confessions: M is entitled to hearing on whether confession is
              coerced. (Marcus W. (2002) 98 Cal.App.4th 36).
         -    M under 14 - Gladys R.: DA must make prima facie showing that M knew the
              wrongfulness of his act in order to justify detention. (In re Mary T. (1985) 176
              Cal.App.3d 38).

         PROS & CONS:
         -    Preview of officer testimony;
         -    Provides foundation for impeachment by a prior inconsistent statement at
              adjudication;
         -    Highlights additional areas of investigation that may be needed;
         -    Showing judge that case is weak or that conduct is misdemeanor rather than felony
              conduct for subsequent PC 17(b) motion;
         -    Con: may alert DA to uncharged conduct;
         -    Con: may reveal defense to DA.

     $   WILLIAM M. HEARING: Rehearing on Grounds for Detention (In re William M.
         (1970) 3 Cal.3d 16).

         PRACTICE TIPS:
         -    Highlight mitigation;
         -    Review Cal. Rules of Court Rule 5.760 for detention grounds sub-factors!!!!!;
         -    Again, it often helps to call employer, coach, teacher, counselor, probation officer,
              minister as witness at hearing. Discuss supervision M will receive and services
              that will be in place if M released.
G.   FITNESS HEARINGS - EDSEL P.

     $     Edsel P. (1985) 165 Cal.App.3d 763: M is entitled to prima facie showing that he
           committed alleged offense prior to fitness hearing.
     $     Showing must be made in same manner as a Dennis H. hearing.
     $     Remedy = release, not dismissal. (David B. (1983) 142 Cal.App.3d 623).


H.   REFILING OF CASES AFTER DISMISSAL B RELEASE

     $     Cal. R. Ct. 5.774 prohibits detention where petitions are refiled after dismissal for failure to
           comply with time limits.


I.   ADJUDICATION (W&IC ' 657; Cal. R. Ct. 5.774)

     $     Detained Ms have a right to adjudication w/in 15 court days of court=s detention order.
     $     Non-detained Ms have right to adjudication within 30 calendar days from date the petition
           is filed.
     $     If adjudication continued at DA=s request, taking case outside period, M must be released.
           (In re Robin M. (1978) 21 Cal.3d 337).


J.   POST-ADJUDICATION

     $     If M released pre-adjudication and petition sustained, court can detain pending dispo. (In
           re Kevin B. (1981) 122 Cal.App.3d 808).
     $     If M released post-adjudication and case transferred for dispo via Inter County Transfer,
           new court cannot detain pre-dispo w/out Anew or previously undiscovered facts.@ (In re
           Tori Talbott (1988) 206 Cal.App.3d 1290).