In re KERRY K.,

Filed 5/1/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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ORIGINAL PROCEEDING: Petition for writ of habeas corpus. Superior Court of Sacramento County, John A. Mendez, Judge. Writ denied.

Paulino G. Duran, State Public Defender, Arthur L. Bowie and Chet Templeton, Assistant Public Defenders, for Petitioner.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Mary Jo Graves and Daniel Bernstein, Assistant Attorneys General, and Marcia A. Fay, Deputy Attorney General, for Respondent.

By petition for writ of habeas corpus, petitioner Kerry K. (the minor) challenges the juvenile court's denial of his request for release from detention following the continuance of his jurisdictional hearing. The minor contends he could not be held beyond the statutory limits specified in Welfare and Institutions Code sections 657 and 682,^[1] even if the jurisdictional hearing was continued for good cause. The issue of when the continuance of a jurisdictional hearing over a minor's objection mandates release of that minor has repeatedly come before this court, so we take this opportunity to clarify a minor's rights under these circumstances.

We conclude that the juvenile court erred when it refused to release Kerry K. However, because he was released from custody subsequent to the filing of his writ petition, we deny the petition for writ of habeas corpus.

PROCEDURAL BACKGROUND

On July 12, 2005, the district attorney filed a petition alleging the minor committed two counts of arson (Pen. Code, § 451, subds. (c), (d)) and one count of being in possession of flammable material with malicious intent (Pen. Code, § 453, subd. (a)). At the detention hearing the following day, the juvenile court ordered the minor detained and set the jurisdictional hearing for August 3, 2005. Thereafter, the district attorney filed an amended petition and a subsequent petition, alleging in total an additional 24 counts of arson and three counts of possession of flammable material with malicious intent. At hearings in July and August, the minor requested or acquiesced to two continuances of the jurisdictional hearing, which ultimately was set for October 5, 2005.

On September 30, the juvenile court granted the district attorney's motion to join another juvenile, Kevin O. (the coparticipant), for the contested jurisdictional hearing. On the same day, the court heard a motion by coparticipant's counsel to continue the jurisdictional hearing. The minor objected to the continuance and argued that, if the court continued the hearing, he was entitled to be released. The court granted the coparticipant's motion to continue and denied the minor's request to be released. The court set the jurisdictional hearing for October 25, 2005.

The minor's petition for writ of habeas corpus was filed with this court on October 14, 2005.

DISCUSSION

I. Mootness

Subsequent to the filing of this writ petition, the juvenile court granted another continuance of the jurisdictional hearing and released the minor from custody. The Attorney General argues that, because he is no longer in custody, there is no justiciable issue before the court and the case should be dismissed as moot. We disagree.

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