Jermaine B., In re

• Decision Date: 18 January 1994
• Docket Number: No. C015913,C015913
• Court: California Court of Appeals Court of Appeals
• Parties: In re JERMAINE B., a Person Coming Under the Juvenile Court Law. The PEOPLE, Plaintiff and Respondent, v. JERMAINE B., Defendant and Appellant.

Page 612

26 Cal.Rptr.2d 612

21 Cal.App.4th 1280

In re JERMAINE B., a Person Coming Under the Juvenile Court Law.

The PEOPLE, Plaintiff and Respondent, v. JERMAINE B., Defendant and Appellant.

No. C015913.

Court of Appeal, Third District, California.

Jan. 18, 1994.

Certified for Partial Publication ^*

Rehearing Denied Feb. 14, 1994.

Review Denied April 13, 1994.

[21 Cal.App.4th 1281] Rudy Kraft, Cutten, under appointment by the Court of Appeal, for defendant and appellant.

Daniel E. Lungren, Atty. Gen., George Williamson, Chief Asst. Atty. Gen., Robert R. Anderson, Sr. Asst. Atty. Gen., Michael J. Weinberger and Stephen G. Herndon, Deputy Attys. Gen., for plaintiff and respondent.

SIMS, Associate Justice.

Following a jurisdiction hearing, the minor, Jermaine B., was found to have violated Penal Code section 459 (burglary) and Vehicle Code section 10851, subdivision (a) (vehicle theft).

At the disposition hearing, the juvenile court continued the minor as a ward of the court and committed him to the California Youth Authority (CYA). The minor has appealed.

In an unpublished portion of this opinion, we consider and reject the minor's contentions that prejudicial error occurred at the jurisdiction hearing.

In this published portion of the opinion, we consider the minor's contention that the juvenile court erroneously refused to consider an alternative to CYA commitment on the ground rule 1493(e) of the California Rules of Court ¹ mandated commitment to CYA because the minor was a CYA parolee. We shall conclude the minor's interpretation of rule 1493(e) is correct and the juvenile court erred in concluding it had no discretion to consider dispositional alternatives to CYA. We shall therefore reverse the disposition order and remand for a new disposition hearing.

FACTS ^**

DISCUSSION

I-II**

III

At the disposition hearing, the minor's counsel wished to present evidence and argument with respect to the minor's suitability for placement in the Rite of Passage (ROP) program.

The juvenile court refused to entertain argument or evidence on the question, ruling rule 1493(e) required the court to send the minor to CYA because he was a CYA parolee.

Rule 1493(e) states: "If at the time of the disposition hearing the child is a ward of the Youth Authority under a prior commitment, the court may either recommit or return the child to the Youth Authority. If the child is returned to the Youth Authority, the court may:

"(1) Recommend that the ward's parole status be revoked;

"(2) Recommend that the ward's parole status not be revoked; or

"(3) Make no recommendation regarding revocation of parole." (Italics added.)

The juvenile court concluded the rule allowed the court only two choices: to recommit or return the child to CYA. This restrictive interpretation of the rule was erroneous for several reasons.

First, the rule says the court "may" either recommit or return the child to the Youth Authority. As used in the juvenile court rules, " 'shall' is mandatory and 'may' is permissive." (Rule 1401(b)(1).) Since "may" is permissive in rule 1493(e), the rule does not mandate sending a minor to CYA. Rather, by this straightforward interpretation, the rule is designed to tell the juvenile court what to do if it determines the minor should be sent to CYA. The rule specifies two choices: (1) a return under a prior commitment or (2) a new commitment. "Recommitment is administratively more cumbersome and costly, in that many of the same procedures required in the original commitment are followed. If the minor is 'returned,' it is not necessary to follow commitment procedures." (Advisory Com. Comment, Deering's Ann.Cal.Rules of Court, former rule 1372 (1988), p. 487.) We see no reason why we should not adopt this interpretation of the rule that gives effect to the permissive use of "may" as rule 1401(b)(1) commands.

Second, the predecessor rule to rule 1493(e) clearly specified that the juvenile court retained authority to consider dispositional alternatives other than CYA; we perceive no intent in rule 1493 to effect a substantive change from the prior rule.

Thus, rule 1493, effective January 1, 1991, contains language similar to the language of former rule 1372 as amended effective January 1, 1986. Former rule 1372(c) outlined dispositional options for wardship under Welfare and Institutions Code sections 726, 727, 730 and 731: ³ "When a minor is adjudged a ward of the court, the court may make any and all reasonable orders for the care, supervision, custody, conduct, maintenance, and support of the minor, including medical treatment, and including orders to the parents and guardians of the minor to appear before a county financial evaluation officer, subject to the further order of the court. The court may order the care, custody, control and conduct of the minor to be under the supervision of the probation officer or may commit the minor to the care, custody and control of any person or organization enumerated in section 727. If the minor was adjudged a ward of the court as a person described by section 602, the court, as additional alternatives, may make an order for the treatment or commitment of the minor under either section 730 or 731."

Former rule 1372(d), the counterpart to current rule 1493(e), stated: "If the minor has previously been committed to the Youth Authority and is at the time of the disposition hearing a ward of the Youth Authority, the court may, as a disposition under subdivision (c), either recommit or return the ward to the Youth Authority. If the minor is returned to the Youth Authority, the court may make a recommendation to the Authority that the minor's parole status be revoked, not be revoked, or the court may make no recommendation." (Italics added.) The Advisory Committee Comment regarding former rule 1372(d) states that subdivision "describes the dispositional alternatives available when the minor is a Youth Authority parolee. In addition to the alternatives under subdivision (c), the minor may be 'recommitted' or 'returned' to the Youth Authority...." (Advisory Com. Comment, Deering's Ann.Cal.Rules of Court, former rule 1372 (1988), p. 487, italics added.)

We have no reason to believe new rule 1493(e) constituted a substantive revision of former rule 1372(d). Rather, the new rule seems to be merely a recodification of the former rule.

Third, our interpretation of rule 1493(e) is necessary to avoid a conflict between the rule and a statute. A rule of court promulgated by the Judicial Council for governance of the juvenile court cannot be inconsistent with a statute. (Cal. Const. art. VI, § 6; § 265.)

No statute mandates that a CYA parolee must be sent to CYA upon a new disposition. On the other hand, section 730 provides in pertinent part, "When a minor is adjudged a ward of the court on the ground that he is a person described by ...