Skip to content
Name: In re D.P.
Case #: E068174
Court: CA Court of Appeal
District 4 DCA
Division: 2
Opinion Date: 03/09/2018

Welfare and Institutions Code section 653.5, subdivision (d) time limit for prosecutor to initiate proceedings against ward of the juvenile court is directory rather than mandatory. D.P. was a ward of the court and a probationer. He was not in custody. The prosecutor filed a subsequent Welfare and Institutions Code section 602 petition against him 39 judicial days after receiving an affidavit from the probation officer regarding a new alleged offense and requesting the filing of a subsequent petition. The trial court dismissed the petition as untimely (Welf. & Inst. Code, § 653.5, subd. (d)). The prosecution appealed. Held: Reversed. Where the minor is not in custody and is already a ward of the court or a section 602 probationer, the prosecutor must institute proceedings within five judicial days of receipt of the probation officer’s affidavit, unless additional information is needed regarding the alleged offense (Welf. & Inst. Code, § 653.5, subd. (d)). A statutory requirement may be either directory or mandatory, which denotes whether the failure to comply with a particular step will or will not invalidate the governmental action to which the procedural step relates. “Unless the Legislature clearly expresses a contrary intent, time limits are typically deemed directory.” This presumption may be overcome where the statute contains a consequence or penalty for failure to perform the act within the time frame set forth. Here, the statute does not provide any penalty or consequence for failure to comply with the five-day time limit, which is a strong indication that it is directory. The use of the word “shall” in the statute is not dispositive. Upon review of the legislative history and statutory language, the court determined the word “shall” was directory in this context and did not impose a mandatory five-day limitation on prosecuting attorneys.

The full opinion is available on the court’s website here: