People v. D.P. (In re D.P.)

RAMIREZ P.J.

*158 Welfare and Institutions Code 1 section 653.5, subdivision (d) provides: "In all matters where the minor is not in custody and is already a ward of the court or a probationer under Section 602, the prosecuting attorney, within five judicial days of receipt of the affidavit from the probation officer, shall institute proceedings in accordance with his or her role as public prosecutor pursuant to subdivision (b) of Section 650 of this code and *898 Section 26500 of the Government Code, unless it appears to the prosecuting attorney that the affidavit was not properly referred or that the offense for which the minor was referred requires additional substantiating information, in which case he or she shall immediately notify the probation officer of what further action he or she is taking." (Italics added.)

At all relevant times, minor D.P. was already a ward of the court and a probationer under section 602, plus he was not in custody. The prosecuting attorney, however, filed a subsequent section 602 petition against him not five judicial days, but some 39 judicial days after receiving the affidavit from the probation officer. For this reason, the trial court…