Opinion
H047743
06-15-2023
THE PEOPLE, Plaintiff and Respondent, v. JERRY ALLEN HOWARD, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 196824
BAMATTRE-MANOUKIAN, ACTING P.J.
I. INTRODUCTION
In June 2006, the prosecution filed a petition to commit defendant Jerry Allen Howard as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.). More than 13 years later, the jury trial on the commitment petition occurred in November and December 2019. The jury found that defendant met the criteria of an SVP and the trial court ordered defendant committed to the State Department of State Hospitals for an indeterminate term. On appeal, defendant does not challenge the sufficiency of the evidence supporting his commitment. Rather, he alleges that his due process right to a speedy trial was violated by the delay in bringing him to trial. We conclude that the trial court acted within its discretion in determining defendant's due process right was not violated. (People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, 55 (Vasquez).) We therefore affirm the judgment.
All statutory references are to the Welfare and Institutions Code unless otherwise indicated.
II. BACKGROUND
A. Defendant's Convictions and the Initial SVP Commitment Proceedings
In 1987, defendant was convicted of unlawful sexual intercourse with a 15-year-old girl, who said that defendant threatened her not to disclose the offense. Also in 1987, defendant was convicted of offenses resulting from twice attempting to have sexual intercourse with the 15-year-old's 13-year-old sister, and also making her orally copulate him. After being released from prison, defendant befriended a family with a nine-year-old foster child. In 1991, he was convicted of various acts of touching the family's foster child and also of touching, orally copulating, and engaging in intercourse with the family's eight-year-old biological child.
In May 1997, the prosecution petitioned to commit defendant as an SVP. After this court issued a writ of mandate, finding that hearsay victim statements in probation reports are admissible at SVPA probable cause hearings (People v. Superior Court (Howard) (1999) 70 Cal.App.4th 136, 155-156), the trial court in July 1999 found probable cause to detain defendant for trial as an SVP. In 2002, a jury found defendant met the SVP criteria and the trial court committed defendant under the SVPA for a period of two years. In 2004, the prosecution petitioned to extend defendant's commitment. In 2006, a jury again found defendant met the criteria for commitment as an SVP, and defendant was ordered to be committed for two more years.
B. 2006-2008
The prosecution filed a petition in June 2006 to again extend defendant's SVPA commitment. In October 2006, the trial court found probable cause to hold defendant until trial. While trial was pending on this petition, the prosecution brought a motion to retroactively convert defendant's first commitment from a two-year term to an indeterminate term, citing a 2006 change in California law that provided for an indeterminate period of commitment under the SVPA in place of renewable two-year commitments. (§ 6604, as amended by Stats. 2006, ch. 337, § 55; § 6604.1, subd. (a), as amended by Stats. 2006, ch. 337, § 56.) The trial court ordered defendant committed for an indeterminate term, but this court reversed the trial court's order on May 29, 2008, pursuant to the earlier decision in another case, People v. Whaley (2008) 160 Cal.App.4th 779 (Whaley). In Whaley, this court held that the amendments to sections 6604 and 6604.1 apply prospectively, and that "a person already committed as a sexually violent predator before the amendments to sections 6604 and 6604.1 in 2006 is entitled to an extension proceeding at which there would be a new determination of the person's status as a sexually violent predator." (Id. at p. 803.)
C. 2008-2011
Following three hearings in September and October 2008, the trial court on October 10, 2008 heard and denied a defense motion to dismiss the petition for allegedly improper procedures employed by evaluators. At this same hearing, defendant demanded a jury trial, and the trial court set a trial date of October 5, 2009.
On September 22, 2009, the trial court heard motions in limine. At this time, the trial court reset the trial date for October 7, 2009, two days later than the original trial date. However, on September 24, 2009, the defense moved to continue the trial, alleging that before defendant's 1991 convictions, the prosecutor failed to disclose the existence of video footage of the sexual assault examination of one of defendant's victims. The defense motion for a continuance noted that defense counsel was waiting for an expert to review the video that had recently been provided to the defense, and that a continuance was necessary because the defense was considering whether to collaterally attack one of the 1991 convictions. The defense motion for a continuance asserted that in addition to possibly challenging one of the 1991 convictions, expert review of the video evidence could be relevant to issues in defendant's SVP trial. Thus, the defense declared that it was "not ready for trial and cannot reasonably be ready" for the October 2009 trial date. On the same day as the defense continuance motion, defendant personally executed a "waiver of appearance and speedy trial" document in which defendant stated that he understood that he had a due process right to a speedy trial on the SVP petition, he gave up his right to a speedy trial to allow the defense to more adequately and thoroughly prepare his case for trial, and he had discussed this right with his attorney. Pursuant to the defense motion for a continuance, the trial court vacated the October 7, 2009 trial date and reset the trial date for February 1, 2011. Defendant was present when the court granted the defense motion for a continuance.
On October 9, 2009, the prosecution moved to amend the June 2006 SVP commitment petition to include defendant's 1987 convictions. On January 19, 2010, defendant moved for new evaluations and a new probable cause hearing on the petition, alleging that his prior evaluations were based on invalid protocols under In re Ronje (2009) 179 Cal.App.4th 509 (Ronje), which was decided after the trial court denied defendant's 2008 motion to dismiss based on allegedly improper evaluation procedures. The prosecution opposed the defense motion, and on January 22, 2010, the trial court ordered pursuant to Ronje that new evaluations of defendant be conducted and a new probable cause hearing be held, with the new evaluations due to the trial court no later than April 28, 2010. During all of the above developments between 2008 and 2010, defendant was represented by Deputy Public Defender Patrick Hoopes.
In Ronje, supra, 179 Cal.App.4th at p. 513, the Court of Appeal concluded that the assessment protocol used to evaluate the subjects of SVP commitment petitions was invalid as an "underground regulation." The court determined that the appropriate remedy was to order new evaluations using a valid assessment protocol and to conduct a new probable cause hearing based on the new evaluations. (Id. at p. 514.) The California Supreme Court later held "that relief arising from use of an invalid protocol in an SVP evaluation should depend on a showing that the error was material" and disapproved of Ronje to the extent it "omitted the materiality requirement." (Reilly v. Superior Court (2013) 57 Cal.4th 641, 655.)
The next hearing noted in the record took place on April 28, 2010, the day new evaluations were due to the court. Defendant was represented by a new deputy public defender, Brian Matthews. At this hearing, the trial court continued the matter to May 14, 2010 to set the probable cause hearing. The trial court continued the matter three more times, with notations that it was still awaiting at least one evaluation report. On June 9, 2010, the defense moved to appoint a second independent evaluator, alleging that the two mental health professionals who performed defendant's new evaluations following the trial court's January 2010 order disagreed about whether defendant met the SVP commitment criteria, and that an independent evaluator later opined that defendant met the commitment criteria. As a result, the defense motion requested that the trial court "order that a second independent evaluator be appointed to render an opinion about whether [defendant] meets the commitment criteria." The prosecutor opposed the motion on July 7, 2010, and on July 27, 2010, the trial court denied the defense motion to appoint another evaluator. In denying the defense motion, the trial court noted that the February 1, 2011 trial date remained in place, and it continued the matter to August 20, 2010 to set a date for the new probable cause hearing.
The basis for the defense's motion was section 6601, subsection (e), which states: "If one of the professionals performing the evaluation pursuant to subdivision (d) does not concur that the person meets the criteria specified in subdivision (d), but the other professional concludes that the person meets those criteria, the Director of State Hospitals shall arrange for further examination of the person by two independent professionals selected in accordance with subdivision (g)."
Defendant challenged the trial court's denial of the defense motion to appoint another evaluator by filing a petition for an alternative writ of mandate with this court. The trial court maintained the February 1, 2011 trial date in hearings from August to November 2010, and on November 5, 2010, the trial court granted the prosecution's motion to amend the June 2006 petition. On December 17, 2010, the trial court set a January 21, 2011 date for the probable cause hearing on the amended petition. In so doing, the trial court noted that defendant's petition for an alternative writ of mandate was still pending before this court, but that defense counsel advised the trial court that "the Attorney General is conceding the writ." On January 7, 2011, the trial court ordered appointment of an additional evaluator after this court issued an alternative writ of mandate. On January 21, 2011, following additional motions and hearings, the trial court continued the probable cause hearing to March 11, 2011, and it reset the trial date from February 1, 2011, to June 4, 2012.
D. 2011-2014
On March 2, 2011, before the scheduled probable cause hearing, defendant moved to dismiss the SVP petition, alleging that the four evaluations that had been conducted under valid evaluation protocol were split as to whether he met the SVP commitment criteria. The prosecution opposed the defense motion to dismiss on March 11, 2011, the day of the scheduled probable cause hearing. That same day, the trial court continued the probable cause hearing by six days to March 17, 2011. On March 16, 2011, defendant submitted a reply to the prosecution's opposition to the motion to dismiss.
On the rescheduled date of the probable cause hearing, March 17, 2011, the trial court denied the defense's motion to dismiss and continued the probable cause hearing to April 29, 2011. However, the probable cause hearing did not take place in April 2011, and between April 29 and September 2, 2011, seven status hearings took place. For the last three of these status hearings, starting August 5, 2011, Deputy Public Defender Jeffrey Dunn took over representation of defendant from Matthews. During these hearings, the trial court set the probable cause hearing for November 30 and December 6, 2011 and set a new trial date for February 4, 2013. At the September 2, 2011 status hearing at which the trial date was reset, the trial court noted "Litmon waiver" in an apparent reference to defendant's waiver of his speedy trial right. (People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon).) Three hearings on motions took place later in September 2011, and on September 13, 2011, defendant signed a written waiver of his speedy trial right, which was substantively similar to the written waiver he submitted in September 2009.
The probable cause hearing on the SVP commitment petition took place on November 30, December 6, and December 9, 2011. Defendant waived his right to appear at the probable cause hearing, and Dunn continued to represent defendant during the probable cause hearing. On December 9, 2011, the trial court found that probable cause existed to support the petition, and it maintained the scheduled trial date of February 4, 2013. The court ordered that defendant remain in custody at a state hospital until the trial was completed.
At the next hearing noted in the record, which took place on October 5, 2012, the trial court vacated the trial date of February 4, 2013. At this hearing, with defendant not present, the trial court noted, "oral Litmon waiver taken." Additional hearings took place on December 7, 2012, and March 15, 2013, with the trial court noting at the March 2013 hearing, "oral Litmon waiver entered on 10/5/12." On July 12, 2013, the trial court set a May 5, 2014 trial date, scheduling a November 1, 2013 status hearing. At the November 1, 2013 status hearing, the trial court maintained the May 5, 2014 trial date.
At the next hearing noted in the record, on March 7, 2014, the trial court vacated the trial date, resetting the trial for January 5, 2015. Defendant was not present at the hearing where this trial date was vacated, and he was no longer represented by Dunn at this point but instead by Hoopes, who had represented defendant from 2007 to 2010. The trial court noted "pending written waiver from PD" at this hearing, and it noted that either defendant or defense counsel "agrees verbally to continuance." The minute order from this hearing does not provide any additional indication why the trial date was vacated. However, one month before the hearing, on February 7, 2014, the trial court ordered three updated evaluations of defendant, noting that the most recent evaluations in this case were performed in 2010, and it ordered that a fourth evaluator be appointed to replace one of the evaluators.
E. 2014-2018
The trial did not take place as scheduled in January 2015, and over the next four years, the trial court repeatedly vacated scheduled trial dates. On October 3, 2014, the trial court vacated the January 5, 2015 trial date, resetting the trial for September 8, 2015. The minute order from this hearing does not state why the trial date was vacated. However, on September 23, 2014, shortly before this hearing, the trial court signed another order for updated evaluations and appointment of a fourth evaluator, indicating that the trial court may not have received the updated evaluations and that a fourth evaluator had not been appointed since the February 2014 order. At a hearing on October 24, 2014, defendant, now represented by Deputy Public Defender Christopher Yuen, submitted another written speedy trial waiver, which was substantively identical to the waiver defendant signed in 2011. At or near the same time that defendant executed this third speedy trial waiver, he decided to begin formal sex offender management therapy upon the advice of his attorney.
The next hearings noted in the record took place on April 17 and April 24, 2015. At the latter hearing, the trial court vacated the September 8, 2015 trial date, noting that the trial was estimated to last 14 days. A week later, at a status hearing on May 1, 2015, defense counsel requested a continuance to speak to defense experts. The minute order from this hearing does not note how long of a continuance the defense requested. At another hearing two weeks later, the trial court noted that the trial was now estimated to last "3-4 weeks due to litigation this case has been involved with." On June 5, 2015, the trial court set an April 4, 2016 trial date.
At the next hearing noted in the record on January 8, 2016, the trial court vacated the April 4, 2016 trial date. The minute order from the hearing does not note the reason for vacating the trial date. However, 11 days later, the trial court issued an order to produce hospital records for use at trial. Hearings then took place on January 29 and March 4, 2016. At the latter of these two hearings, Deputy Public Defender Heather Harris took over defendant's representation, and a note from the trial court states: "Need to get Litmon waiver." Around this point, the trial court set a new trial date of December 5, 2016.
At a status hearing on July 8, 2016, the trial court maintained the December 5, 2016 trial date, noting that the prosecution had recently received updated evaluations and would copy them for the defense. The trial court continued to maintain this trial date at a September 9, 2016 status hearing. However, on September 23, 2016, the trial court vacated the December 5, 2016 trial date. The minute order from this hearing notes that the trial was continued at the defense's request. Hearings then took place on December 2, 2016 and January 20, 2017 without establishing a new trial date. At the latter of these two hearings, the trial court's minute order states: "Court, DA & PD to coordinate availability to set jury trials [sic] in order of 'defense ranking preference.' If necessary, judge will sign orders for [the Director of State Hospitals] to prepare & provide undated [sic] reports." At a hearing on February 3, 2017, the trial court set a trial date of October 16, 2017, noting that the prosecutor would obtain updated evaluation reports and would seek a court order if required.
Another hearing is not reflected in the record until September 15, 2017, at which the trial court noted that updated evaluation reports had still not been provided. Two weeks later on September 29, 2017, the trial court vacated the October 16, 2017 trial date, again noting that evaluation reports had still not been received. After the prosecution moved on October 30, 2017 to release records, another hearing took place on December 1, 2017 concerning an order to release records. At this point, the trial court had not set a new trial date.
At a January 5, 2018 hearing, the trial court ordered the parties to provide information about the availability of their witnesses. A minute order from a February 9, 2018 hearing indicates that defense counsel had not yet received one evaluation report (the "fourth report") and that defense counsel "will have [defendant] sign new Litmon waiver - has been unable to confer w/ [defendant]." On March 16, 2018, the trial court noted that defense counsel had still not received the "fourth report" and that defense counsel would confer with defendant. The trial court also noted without explanation, "& Litmon wvr." Following an April 20, 2018 hearing, the trial court ordered the production of documents from the Department of Corrections and Rehabilitation. On May 18, 2018, Harris informed the trial court that new counsel, Leah Gillis, would be defendant's defense attorney. Gillis represented defendant from this point through the trial on the SVP petition. At this May 18, 2018 hearing, the trial court also noted that the "fourth report" had still not been provided.
On June 29, 2018, the trial court set a new trial date of December 10, 2018 and a hearing date of November 16, 2018 to consider an anticipated motion to dismiss from defendant based on an alleged violation of his right to a speedy trial.
F. Defense Motion to Dismiss
The defense filed its motion to dismiss on September 17, 2018. The parties also filed motions in limine on October 12, 2018, and the trial court began hearing the motions in limine on this same date, continuing its consideration of the motions in limine to October 26, 2018 and then to November 1, 2018. The prosecution filed its opposition to defendant's motion to dismiss on October 24, 2018, and defendant replied on November 6, 2018.
The motion to dismiss alleged a violation of defendant's due process right to a speedy trial. Defendant contended that his representation had changed 10 times since the SVP petition was filed, that eight trial dates had been delayed or vacated since December 2011, and that "[s]everal of these postponements of jury trial relate to a change in counsel." In support of the motion, defendant submitted a declaration in which he outlined the different attorneys who represented him, stated that he had not personally appeared in court since his 2002 jury trial, and recounted his efforts to contact defense counsel Harris including a September 6, 2016 letter in which stated that he "questioned the need for another postponement of [his] trial" and asked Harris to contact him.
Defendant's motion to dismiss also asserted that his constitutional right to equal protection was denied by the delay, reasoning that a more affluent defendant who could hire his or her own counsel would not be faced with frequent substitution of counsel. Defendant does not raise this argument on appeal.
With regard to defendant's assertion in this declaration that he had not personally appeared in court since his 2002 jury trial, minute orders for proceedings prior to September 2008 are not included in the appellate record. The record contains an order signed by the trial court to produce defendant for a hearing addressing motions in limine on September 22, 2009, and the minute order for this hearing states that defendant was present for this hearing.
The prosecution's opposition asserted that "the vast majority of the delay has been attributable to reasons that are commonplace in SVP proceedings given their strict statutory requirements and the unfortunate but necessary delays that are inherent in the complex evaluation process," and that the delays from December 2011 onward were "either [at defendant's] request or at the joint request of the parties for receipt and review of reports that are necessary for trial." The prosecution's opposition argued that defendant's speedy trial waivers weighed against defendant, that any delay by defense counsel is attributable to defendant, and that defendant was not prejudiced by the delay.
The trial court heard argument on defendant's motion to dismiss on November 16, 2018. The defense compared defendant's case to the facts in the Second District Court of Appeal's decision in Vasquez, supra. The defense asserted that defendant's case was "more egregious than what occurred in Vasquez's case" because the two cases involved similar periods of delay, because defendant was not personally present during the proceedings during the time in which the delay occurred unlike the defendant in Vasquez, and because "the Court, the People, and the defense were very willy-nilly with continuances" in defendant's case and "[n]ot a lot was put on the record," whereas in Vasquez, better documentation as to the reasons for delays was made. Defense counsel also argued that the speedy trial waivers defendant signed did not require that the motion to dismiss be denied, because the most recent waiver occurred in 2014 and because defendant was not present during the proceedings when the decisions to delay occurred. In terms of prejudice from the delay, defense counsel asserted that some evaluations over the preceding years found that defendant did not meet the SVP criteria (although the evaluators later changed their positions), and thus "there were moments in time when it should have been seized and trial should have happened." Defense counsel also acknowledged that in the period leading up to the probable cause hearing in November and December 2011, "quite a lot of litigation" occurred, and thus defense counsel stated, "that's not the time frame in which I'm asking the Court to consider the delay." However, defense counsel asserted that following the probable cause hearing in late 2011, "the reason for delay is 100 percent the revolving door of transfers from one attorney to another within the Public Defender's Office," and that "in almost every instance" the change in counsel came when the court was "within months of trial," necessitating delays. Defense counsel asserted that the trial court should have taken additional measures to prevent unnecessary delays, including securing defendant's appearance at proceedings where delays were discussed and bringing in a supervisor from the public defender's office. Finally, defense counsel asserted that the State Department of State Hospitals delayed the release of a 2017 evaluation report for more than a year, and that absent this action, trial could have taken place in 2017.
The prosecutor responded by asserting that no "systemic breakdown in the system" occurred in this case unlike in Vasquez. The prosecutor noted that in Vasquez, significant issues with the public defender's office occurred including a budget cut of 50 percent and loss of personnel such that the office had "no ability to effectively defend Mr. Vasquez," leading to the 17-year period in bringing Vasquez to trial. By contrast, the prosecutor asserted that a "huge part of the delay" in defendant's case involved efforts by defense counsel to advocate for defendant, including the writ petition and a challenge to one of defendant's underlying convictions in the period leading up to May 2011. Thus, the prosecutor argued that "the longest possible period that is relevant" was from May 2011 to the November 2018 motion hearing, which was a significantly shorter period than the delay in Vasquez. The prosecutor also argued that defendant "did not actively start participating in sex offender treatment until 2015," and thus the focus on any delay should not start until 2015. The prosecutor also asserted that the defense had only produced its expert report one month before the hearing on the motion to dismiss, and that the trial court could not have forced the defense to go to trial before that point when the defense was not prepared.
Finally, the prosecutor noted that defendant executed speedy trial waivers, including one four years earlier.
Following additional argument from defense counsel, the court issued its ruling on the same day, November 16, 2018. The court began by reviewing the activities that took place from the initial SVP petition in 1997 onward. The trial judge noted that she was assigned to this case in January 2017, at which time minute orders indicated that evaluations were still pending and counsel was to provide information about witness availability. The trial court reviewed the facts of the Vasquez opinion, and it articulated the factors it needed to consider under Barker v. Wingo (1972) 407 U.S. 514, 530 (Barker).
As to the length of and reasons for the delay, the trial court stated as follows: "I agree that the delay is long, but the case has been litigated. And the defendant has been found to be a sexually violent predator by a jury in 2002 and, again, in 2006. [¶] And a third petition was filed in 2006. And a probable cause hearing was held. And after much litigation back and forth, there was a second probable cause hearing in December of 2011. And that's when the - we get a series of public defenders who don't seem motivated to work on the case between 2012 and 2018. [¶] The personnel changes have been - resulted repeatedly in a delay of the case, which looks to me like invited error. [¶] I don't like the feeling of being extorted when new attorneys show up and say, 'You can't make me go to trial because I'm incompetent and you're baking in [ineffective assistance of counsel] from the very beginning.' "
The trial court noted that according to a declaration defendant submitted with the motion to dismiss, defendant "has never objected or sought to come to court" until the past calendar year. The trial court also noted that "defendant has been repeatedly evaluated by experts" both because "mental health is fluid and it can change," and because "evaluations have a shelf life of about no more than a year," after which an evaluation "doesn't tell me much about the current state of mind of the defendant." The court observed as follows concerning the evaluation reports: "I don't agree that the Department of State Hospitals or any of the attorneys that they use are under my jurisdiction, nor that I can make them do anything or that they have any responsibility. They're not part of the prosecution team. They're not part of the criminal court. They do what they do. And we subpoena them to get their records and subpoena their evaluators to make them come to court." The court recognized that under Vasquez, "the primary burden is on the court as the gatekeeper to make sure the case is brought to trial," but it observed, "I don't know how I can prevent the Public Defender's Office from repeatedly delaying the case by assigning new counsel until there's enough of a delay to support a dismissal." The trial judge also noted that since she took over defendant's case, she had designated trial dates as "a date certain," but that the issue of attorneys on both sides not adhering to trial dates in the judge's cases represented "a systemic problem."
Despite the trial court's statements regarding delay due to changes in counsel, and despite the trial court's recognition that "it's taken a long time" to bring defendant's case to trial, the court stated: "I think [defendant's case] materially is different from Vasquez in that it has been litigated extensively. And a lot of work has been done extensively." The trial court noted that defendant only recently sought to withdraw his speedy trial waivers, which further distinguished his case from Vasquez. As a result, the trial court denied the motion to dismiss, noting that the scheduled trial date of December 10, 2018, remained in place.
G. 2018-2019
Six days before the scheduled trial, on December 4, 2018, the prosecution moved to continue the trial. While the prosecution's declaration setting forth reasons for the motion was filed under seal, the prosecutor discussed the reasons for the motion during defendant's later trial, asserting that "the whole reason we delayed the trial for a year" was to investigate reports that defendant was running an illicit business in which he facilitated purchases of prohibited items that would be brought into the hospital for other residents. Additionally, at trial defense counsel stated that when motions in limine were drafted in 2018, "we had no idea that there were 700 pages of police reports associated with my client and alleged criminal conduct that spanned the last nine years," and that "[w]e then spent the last year litigating with Coalinga State Hospital in order to get those documents." Defense counsel also stated that she "spent the last year" calling the Fresno County District Attorney's Office about whether defendant was going to be charged for any offense defendant committed while in the hospital.
The defense opposed the motion to continue. The defense's opposition did not address the prosecution's reasons for the requested continuance, but it stated that defendant had not signed a speedy trial waiver since 2014, and that defendant's current counsel (Gillis) had informed the court that defendant would not sign any more speedy trial waivers. On December 5, 2018, the trial court granted the prosecution's motion to continue the trial, vacating the scheduled December 10, 2018 trial date. While the defense opposed the prosecution's motion to continue the trial, on December 7, 2018, a trial court notation on a minute order stated that defendant "stipulates" to the already ruled upon motion for a continuance.
Defendant then filed a "petition for writ of mandate/prohibition" with this court challenging the trial court's grant of a continuance, and this court denied the petition on January 18, 2019. On March 29, 2019, the trial court set a trial date of November 4, 2019, estimating that the trial would last four weeks.
At hearings between April and June 2019, the trial court maintained the November 4, 2019 trial date, though it repeatedly noted that the trial date might not have been "confirmed" at that point. On June 21, 2019, the trial court issued an order to show cause why the State Department of State Hospitals custodian of records should not be held in contempt of court for failing to comply with an earlier order to disclose records. Further hearings took place between June 27 and August 29, 2019, covering the status of subpoenaed records. At each hearing, the trial court maintained the November 4, 2019 trial date. At a hearing on October 11, 2019, the trial court noted that the prosecution announced it was ready to proceed. At this hearing, the trial court again maintained the November 4, 2019 trial date, but it noted that it would issue an order to produce documents "if [jury trial] confirmed." At a hearing on October 24, 2019, the court again maintained the November 4, 2019 trial date.
On October 31, 2019, the trial court vacated the trial date and rescheduled the trial for November 12, 2019, noting that the prosecutor requested the continuance and the defense opposed it. The minute order from this hearing does not otherwise note the reason for the eight-day continuance.
H. Jury Trial
Defendant's jury trial commenced on November 12, 2019. The trial ended on December 9, 2019. The prosecution called 15 witnesses.
Much of the prosecution's case focused on rule violations defendant committed during his commitment. In October 2007, police discovered that defendant received a brochure in the mail that he had paid for, containing images of "various people naked, nude women, children, men." In November 2010, a search of defendant's room found a prohibited cell phone and memory cards. When police officers and hospital staff tried to seize the materials, defendant removed the phone's battery and memory card and physically struggled with police and staff to prevent them from taking the items. Officials were not able to retrieve the phone's memory card, and a police officer testified that he may have heard a staff member telling defendant, "spit it out." When the items that were found in the 2010 search were eventually reviewed, police found a folder containing 52 images of defendant exposing himself in the hospital. Police also discovered videos and images of children approximately five to nine years old in various states of undress, and two images of children engaged in sexual acts. Police also found two videos with titles indicative of child pornography on the materials seized from defendant's room.
In July 2012, police searched defendant's room after receiving a report that he had a cell phone and was accessing the Internet. Accessing the Internet was prohibited in the hospital. Police found a PlayStation Portable device with Internet connectivity, electronic media storage devices, and other electronic devices. An analysis of the materials found several Internet browsers and evidence that defendant had accessed the Internet, along with two video chat programs. The analysis of the materials also revealed that defendant's PlayStation Portable device was used to bookmark a Russian website that displayed images of girls typically 10 to 12 years old posing in bikinis or shorts, some of which were uploaded under defendant's username. The analysis also found that defendant viewed fashion websites involving girls of approximately the same age, and additional materials depicting children were found in this analysis.
In August 2012, police confiscated an unauthorized laptop from defendant's room. Police also recovered a "portable modem" device that allowed defendant to connect the laptop to the Internet, bypassing measures the hospital put in place to prohibit Internet access from laptops. A forensic review of the laptop revealed that defendant used the laptop to search for and access child pornography. The analysis of the laptop also revealed that defendant accessed a file sharing site to view files associated with nudism, and that he accessed the same Russian site from the laptop that he did on the PlayStation Portable device. The analysis of the laptop also revealed deleted images of children posed in a sexually suggestive manner, with the age of the children averaging 10 years old.
In February 2013, police responded to a report that defendant was accessing the Internet from his room. Police found "just an abundant amount of material," including "thousands of CDs," thumb drives and digital storage cards, and a PlayStation Portable device. Another search in July 2014 revealed "a bunch of papers" that contained titles indicative of child pornography.
In May 2018, police searched defendant's room, finding a cell phone, an Internet "hot spot" device, and an "Intel PC stick." A forensic search of the cell phone revealed that defendant exchanged messages with another person with the username "Pictuurree Just Me" in which defendant asked about "Pictuurree Just Me" touching his daughter. The messages included links to another Internet service and indications that defendant was communicating via video and audio with "Pictuurree Just Me." In the messages, defendant asked how "Pictuurree Just Me" was going to show his daughter to defendant, and "Pictuurree Just Me" discussed taking video footage of the daughter while she was in the shower. The analysis of the cell phone also revealed "three videos that appeared to show juvenile or pre-pubescent teenagers, primarily female" that had been collected from the Internet, along with evidence that defendant was chatting with "either teenage, pre-pubescent juvenile female[s]" through a video Internet service.
In September 2018, police investigated a report of "extortion and money transferring" concerning defendant. The report alleged defendant acted "basically like the bank accountant for the [hospital]," with patients using defendant "to transfer money, purchase goods for them." In the investigation, defendant admitted to collecting patients' money via postage stamps that patients used as currency or through a PayPal account, and then having his mother purchase the items for patients and arrange for them to be delivered to the hospital. Defendant admitted that these transactions ranged from the hundreds of dollars to "several thousand dollars." Although defendant told an investigator that his mother purchased the items for delivery to the hospital, subsequent investigation revealed that defendant arranged for these purchases through a contract worker in the hospital restaurant, who would bring contraband materials including computer modem devices into the hospital. An analysis of defendant's primary PayPal account revealed that he transferred more than $152,000 out of this account over the course of 15 months. Defendant told the mental health professionals who evaluated him that he used the money he made from this business to purchase A vehicle along with 40 acres of land in Nevada, where he planned to live in modified shipping containers after his release. Defendant reported to one evaluator that he did not regret running the contraband business because it offered him financial opportunities such as helping him buy property and a vehicle, and because "he discovered being an entrepreneur was a talent he had, and he felt good about it."
At trial, two expert witnesses who evaluated defendant opined that defendant met the criteria for commitment as an SVP. The first expert, Dr. Mark Miculian, testified that he performed about eight or nine evaluations of defendant dating back to 2006. Dr. Miculian testified that defendant met the first SVP criterion based on his convictions of sexually violent offenses. As to the second SVP criterion, whether defendant currently has a diagnosed mental disorder, Dr. Miculian diagnosed defendant with pedophilic disorder. Dr. Miculian testified that he had this opinion of defendant when he first evaluated defendant in 2006, but in 2010, he changed this opinion for a time before reviewing additional materials regarding defendant's actions that caused Dr. Miculian to again diagnose defendant with pedophilic disorder. Dr. Miculian also testified that he believed defendant met the third SVP criterion, whether defendant represents a danger to the health and safety of others in that it is likely that he will engage in sexually violent criminal behavior. Based on defendant's behavior while committed to the hospital, Dr. Miculian concluded that defendant represents "a serious and well-founded risk" of engaging in sexually violent criminal behavior. Dr. Miculian testified that incidents involving defendant's possession of contraband in the hospital present a "concern," because "if you're unable to follow the rules in the hospital, how can you be expected to follow the rules out in the community where you're not being monitored as much and you have less control." Dr. Miculian also relayed statements defendant made about these incidents of possessing contraband materials, opining that defendant's statements were not consistent with information in police reports.
The second expert, Dr. Christopher Matosich, testified that he diagnosed defendant with pedophilic disorder, "other specified paraphilic disorder coercive non-consent," and antisocial personality disorder. With regard to defendant's progress in sex offender treatment, Dr. Matosich testified that "I do not see that there has been an overall full commitment to treatment," because defendant waited until just a few years earlier to begin treatment and because Dr. Matosich was "kind of amazed that [defendant has] been waiting so long to get to the next phase of treatment." Based on everything Dr. Matosich reviewed, he believed defendant is "still in the high-risk range" for sexual recidivism. Both experts testified that defendant did not begin a sex offender treatment program until 2014.
Defendant called three witnesses in the trial. Thomas Kipnis, a treatment group facilitator at the hospital, testified that defendant's treatment work had been "done for quite some time," and that defendant was focused on helping others with their treatment. However, Kipnis also testified that defendant was in module two out of four modules in the hospital's sex offender treatment program. Kipnis testified that he was not aware of several of the rules violations and related actions by defendant during his hospitalization, but that none of these incidents changed Kipnis's opinion that defendant was "open and honest" in treatment about issues he experienced. Another hospital treatment facilitator, Chariti Messer, testified that defendant's participation was "very satisfactory," and that defendant's behavior in class was "[a]bove average." Messer also testified that defendant attended about 15 hours of training, and that he missed two group sessions with no explanation for his absences. Messer also testified that since 2015, she had just seen defendant in the hallways, and she was not aware that defendant had been caught with any contraband in the hospital.
Defendant's final witness was Dr. Alan Abrams, an expert in adolescent brain development, SVP evaluations, and forensic psychiatry. Dr. Abrams did not diagnose defendant with pedophilia, stating that while defendant may have had this condition at the time of his 1991 convictions, this condition can change over time. Dr. Abrams testified that defendant did have several other conditions, including attention deficit hyperactivity disorder, complex post-traumatic stress disorder, and an unspecified personality disorder. Dr. Abrams did acknowledge that defendant met the first SVP criterion because defendant was convicted of at least one qualifying sexually violent offense.
The jury found that defendant met the definition of a sexually violent predator within the meaning of section 6600. The trial court ordered defendant to be committed for an indeterminate term for appropriate treatment and confinement. This appeal timely followed.
III. DISCUSSION
Defendant asserts that the commitment order should be reversed and the SVP petition should be dismissed because the lapse of more than 13 years between the filing of the petition and trial represented an excessive and unreasonable delay. He argues that the trial court erred in denying his motion to dismiss because this delay violated his due process right to a speedy trial under the principles of Mathews v. Eldridge (1976) 424 U.S. 319 (Mathews) and Barker, supra, 407 U.S. at p. 530, as held applicable to SVPA proceedings in Litmon, supra, 162 Cal.App.4th at pp. 403-406.
Defendant's opening brief asserted that the trial took place in 2018, and thus approximately 12 years elapsed between the filing of the SVP commitment petition and trial. The trial actually took place in late 2019, meaning that approximately 13 years elapsed between the petition and trial.
A. Legal Principles and Standard of Review
"Under the SVPA, the state can civilly commit an individual found to be an SVP indefinitely for confinement and appropriate treatment in a state hospital. [Citation.]" (People v. Tran (2021) 62 Cal.App.5th 330, 347 (Tran).) "An SVP petition must be supported by at least two evaluations by mental health experts appointed by the Director of State Hospitals opining that the person meets the commitment criteria. [Citations.] After the petition is filed, the trial court must 'review the petition and determine whether the petition states or contains sufficient facts that, if true, would constitute probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.' [Citation.] . . . If probable cause is found, the subject of the petition is entitled to a trial. [Citations.]" (Ibid.)
"In an SVPA trial, the People must prove three elements beyond a reasonable doubt: (1) the person being tried has been convicted of at least one sexually violent offense as defined in section 6600, subdivision (b); (2) the person has 'a diagnosed mental disorder that makes the person a danger to the health and safety of others' [citation]; and (3) the diagnosed mental disorder means in the future 'it is likely [the person] will engage in sexually violent criminal behavior' [citation]. [Citation.]" (People v. Orey (2021) 63 Cal.App.5th 529, 539.) "If the court or jury determines that the person is a sexually violent predator, the person shall be committed for an indeterminate term to the custody of the State Department of State Hospitals for appropriate treatment and confinement in a secure facility designated by the Director of State Hospitals." (§ 6604.)
" 'The SVPA does not establish a deadline by which a trial on an SVP petition must be held after the trial court finds probable cause to believe the inmate is an SVP.' [Citation.] Further, because it is a civil proceeding-not a criminal prosecution-the Sixth Amendment right to a speedy trial does not apply. [Citation.] Nevertheless, '[b]ecause civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections.' [Citation.] This includes the due process right to a timely trial. [Citation.]" (Tran, supra, 62 Cal.App.5th at p. 347, fn. omitted.)" 'Neither the California Supreme Court nor the United States Supreme Court has decided what test is to be applied in deciding a due process/timely trial claim in an SVP proceeding.' [Citation.] California Courts of Appeal have consistently applied the tests articulated in Barker . . . and Mathews . . . . [Citations.]" (Id. at pp. 347-348.)
The California Supreme Court has granted review of the following issue: "Does a 15-year delay in bringing a defendant to trial under the Sexually Violent Predator Act (Welf & Inst. Code, § 6600 et[] seq[.]) constitute a due process violation?" (Camacho v. Superior Court (Jan. 21, 2022, F082798) [nonpub. opn.], review granted May 11, 2022, S273391.)
Defendant's motion to dismiss, the prosecution's opposition, and the trial court's ruling all applied the Second District Court of Appeal's decision in Vasquez. In Vasquez, the prosecution filed a petition in September 2000 to commit Vasquez as an SVP and a public defender represented him. (Vasquez, supra, 27 Cal.App.5th at pp. 44-45.) The first probable cause hearing took place in February 2002, and from then until May 2007," 'it appears that little progress, if any, was made towards moving the case to trial.'" (Id. at p. 45.) After a second public defender began representing Vasquez in 2007, the court set a trial date for March 2010, but before trial took place, the Fourth District Court of Appeal issued its decision in Ronje, resulting in the trial court in Vasquez setting a new probable cause hearing. (Id. at pp. 45-47.) A third public defender began representing Vasquez in 2012. (Id. at p. 47.)
Starting in October 2014, the third public defender in Vasquez "repeatedly raised with the trial court her inability to prepare for trial given the 50 percent cut in her office's staff and her increased workload." (Vasquez, supra, 27 Cal.App.5th at p. 71.) This public defender also was transferred to another branch four months before a scheduled January 2017 trial date at which she later testified she would have been ready for trial. (Id. at p. 53.) Vasquez was appointed a fourth public defender in November 2016, a fifth public defender the following month, and a sixth public defender after that when Vasquez stated he did not want the fifth public defender representing him. (Id. at pp. 50-51.) When the fourth public defender was appointed in November 2016, Vasquez told the court:" 'Your Honor, I am not willing to waive my right to have a trial in a timely manner, nor am I willing to waive my right to have prepared counsel. These constant changes of counsels have denied me both. Enough is enough.'" (Id. at p. 50.) In August 2017, 17 years after the SVP petition was filed, the sixth public defender moved to dismiss the petition for denial of Vasquez's due process right to a speedy trial. (Id. at p. 52.) At that point, a trial date had not been set. (Id. at p. 62.)
After the trial court in Vasquez granted the motion to dismiss and the prosecution petitioned the Court of Appeal for a writ of mandate, the reviewing court found that starting in January 2015, "the deputy district attorney repeatedly objected to continuance of the trial date." (Vasquez, supra, 27 Cal.App.5th at p. 64.) The court recognized that the delay caused by defense counsel is normally attributed to the defendant; however, the court, citing Vermont v. Brillon (2009) 556 U.S. 81, 90-91 (Brillon), stated that "the trial court did not err in finding '[t]he dysfunctional manner in which the Public Defender's Office handled Mr. Vasquez's case was precisely the type of systemic or institutional breakdown'" that Brillon contemplated could be charged to the prosecution. (Vasquez, supra, 27 Cal.App.5th at p. 73.) The Vasquez court concluded: "In light of the presumptively prejudicial 17-year delay, Vasquez's assertion of his right to a speedy trial on November 17, 2016 and his limited ability to assert his right prior to that date, the oppressive nature of Vasquez's confinement for 17 years, and the systemic breakdown in the public defender system that caused the final two- to three-year delay in bringing Vasquez's matter to trial, the trial court did not err in finding 'that all four factors under Barker v. Wingo [militate] in favor of Mr. Vasquez, and against the state. Dismissal is mandatory.' [Citations.]" (Id. at p. 74.) The court also concluded "the trial court must share responsibility for some of the delay," because during the first 14 years of Vasquez's commitment, more than 50 continuances were granted either by stipulation or at the defense's request, and the "record does not reflect whether the trial court made a finding of good cause for these continuances." (Id. at pp. 74-75.)
Similarly, in People v. DeCasas (2020) 54 Cal.App.5th 785 (DeCasas), the Second District Court of Appeal upheld the trial court's finding that the final years of a 13-year delay were caused by issues at the same public defender's office that was at issue in Vasquez. (Id. at p. 810.) In DeCasas, defense counsel "testified that the fact that public defenders were delaying their cases as a result of the staffing cuts was not a 'secret. It was very, very open and it was said in open court repeatedly by many, many public defenders.'" (Id. at pp. 796-797.) Defense counsel in DeCasas became" 'overwhelmed'" and his" 'work schedule did not allow for [him] to get [DeCasas's] trial in motion.'" (Id. at p. 797.) As a result, the court concluded that substantial evidence supported the trial court's finding "that a systemic breakdown in the public defender's office caused delays in SVPA cases," including DeCasas's case. (Id. at p. 810.)
"We review for abuse of discretion a trial court's ruling on a motion to dismiss for prejudicial pretrial delay." (Vasquez, supra, 27 Cal.App.5th at p. 55.) "Under this standard, we review the trial court's findings of fact for substantial evidence and its conclusions of law de novo. [Citations.]" (DeCasas, supra, 54 Cal.App.5th at pp. 801-802.)
B. Analysis
1. Barker Test
Under Barker, courts examine four factors to determine whether a defendant's due process right to a speedy trial has been violated: the length of the delay, the reasons for the delay, whether the defendant asserted his or her right to a speedy trial, and whether prejudice resulted to the defendant from the delay. (Barker, supra, 407 U.S. at p. 530.) "We regard none of the four factors identified above as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial. Rather, they are related factors and must be considered together with such other circumstances as may be relevant. In sum, these factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process." (Id. at p. 533, fn. omitted.)
a. Length of the delay
"The first Barker factor, the length of the delay, encompasses a 'double enquiry.' [Citation.] 'Simply to trigger a speedy trial analysis, an accused must allege that the interval between accusation and trial has crossed the threshold dividing ordinary from "presumptively prejudicial" delay, [citation], since, by definition, he [or she] cannot complain that the government has denied him [or her] a "speedy" trial if it has, in fact, prosecuted his [or her] case with customary promptness. If the accused makes this showing, the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. [Citation.] This latter enquiry is significant to the speedy trial analysis because . . . the presumption that pretrial delay has prejudiced the accused intensifies over time.' [Citations.]" (People v. Williams (2013) 58 Cal.4th 197, 234 (Williams).)
Here, the prosecution filed the SVP petition in June 2006, and defendant was brought to trial on the petition in November 2019. Defendant asserts that the delay in bringing him to trial on the SVP petition was excessive, creating a presumption of prejudice. The Attorney General does not dispute that the length of the delay was sufficient to trigger the full Barker analysis, but the Attorney General does not specifically argue whether the length of the delay was sufficient to create a presumption of prejudice. We find that the delay of more than 13 years is extraordinary and weighs in favor of defendant's argument that his speedy trial right has been violated. (See Tran, supra, 62 Cal.App.5th at pp. 348-349 [11-year delay weighed in the defendant's favor]; In re Butler (2020) 55 Cal.App.5th 614, 648 (Butler) [13-year delay constituted a significant deprivation of liberty sufficient to trigger the Barker analysis, but was not necessarily dispositive]; DeCasas, supra, 54 Cal.App.5th at p. 806 [13-year delay was sufficient to trigger the Barker analysis and weighed in the defendant's favor]; Vasquez, supra, 27 Cal.App.5th at p. 61 [17-year delay was extraordinary, triggering the Barker inquiry and weighing in the defendant's favor].)
b. Reasons for the delay
"[T]he cause of the delay is the pivotal question for our due process inquiry." (Vasquez, supra, 27 Cal.App.5th at p. 64.) Stated another way: "In the Barker analysis, the reason for the delay is the 'flag all litigants seek to capture.' [Citation.]" (Williams, supra, 58 Cal.4th at p. 239.)
In considering the reasons for a delay, "different weights should be assigned to different reasons." (Barker, supra, 407 U.S. at p. 531.) "A deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government. A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant. Finally, a valid reason, such as a missing witness, should serve to justify appropriate delay." (Ibid., fn. omitted.) "In contrast, delay caused by the defense weighs against the defendant . . . ." (Brillon, supra, 556 U.S. at p. 90.) "Because 'the attorney is the [defendant's] agent when acting, or failing to act, in furtherance of the litigation,' delay caused by the defendant's counsel is also charged against the defendant. [Citation.]" (Id. at pp. 90-91.) "The general rule attributing to the defendant delay caused by assigned counsel is not absolute. Delay resulting from a systemic 'breakdown in the public defender system,' [citation], could be charged to the State." (Id. at p. 94.) In addition, because" 'the primary burden [falls] on the courts and the prosecutors to assure that cases are brought to trial,'" a trial court" 'has an affirmative constitutional obligation to bring the defendant to trial in a timely manner. [Citation.]'" (Williams, supra, 58 Cal.4th at pp. 250-251.)
Here, in argument to the trial court on the motion to dismiss, defense counsel acknowledged that in the period leading up to the probable cause hearing in November and December 2011, "quite a lot of litigation" occurred, and thus "that's not the time frame in which I'm asking the Court to consider the delay." Similarly on appeal, defendant states: "The time frame during which little if anything happened in the case was from 2012, through the trial in [2019]." Based on appellate defense counsel's acknowledgement that the defense is not contesting the period between June 2006 and December 2011, and based on our review of the record, we agree that valid reasons exist for the delay during this time. During this time, defense counsel successfully challenged the trial court's indeterminate term of commitment order by appealing to this court, the defense brought a motion to dismiss for improper procedures employed by evaluators, the parties filed and argued motions in limine, the defense explored options to challenge one of defendant's 1991 convictions, the prosecution amended the SVP petition, several SVP evaluations were accomplished including after the defense successfully moved for new evaluations following the Ronje decision, the defense moved to appoint a second independent evaluator and then filed a successful writ petition with this court when the trial court denied the defense motion, and the defense moved to dismiss the SVP petition because the evaluations did not concur that defendant met the SVP commitment criteria. After an initial probable cause hearing occurred in October 2006, a second probable cause hearing took place in November and December 2011. Two trial dates were set and then vacated between 2006 and 2011, both for valid reasons. The October 2009 trial date was vacated based on a defense motion for a continuance so the defense could explore challenging one of defendant's 1991 convictions, and the February 2011 trial was vacated while the trial court awaited this court's decision on the defense writ petition concerning appointment of a second independent evaluator. Therefore, any delays during this time occurred due to valid reasons.
For the remaining period of 2012 through the 2019 trial, the record provides less information about efforts to bring defendant's case to trial. Including the last delay of eight days from November 4 to November 12, 2019, ten trial dates were vacated during this period, many without the trial court explaining the reasons for delaying the trial. Despite the lack of explanation, the record reveals three primary reasons for the delays during this period that support the conclusion that this Barker factor weighs against defendant.
The first reason for the delay during this period is the one the trial court focused on in denying the defense's motion to dismiss: the fact that defendant was represented by a series of appointed defense counsel. The trial court noted its frustration with the situation where a new defense attorney appears in court and states he or she is not prepared to proceed, and it stated that the issue of attorneys on both sides not adhering to trial dates in the judge's cases represented "a systemic problem." However, the trial court's comments concerning "a systemic problem" expressed a broader concern that was not specific to defendant's case. The trial court did not cite any specific instance in which a change in defense counsel caused a delay in defendant's case or that the parties did not treat a scheduled trial date in defendant's case with appropriate concern.
In addition, much of the trial court's analysis concerning changes in defense counsel covered the period from 1997 to 2011.
For the eight-year period between the probable cause hearing in 2011 and trial in 2019, defendant was represented by five defense counsel - Dunn from 2011 to 2014, Hoopes for part of 2014, Yuen from late 2014 to early 2016, Harris from 2016 to 2018, and Gillis from May 2018 through trial. While having this many different defense attorneys during an eight-year period may not be ideal, defendant points to nothing to indicate that it is so unusual that it constitutes a systemic breakdown in the system. More importantly, the record does not establish that changes in defense counsel played a significant role in the delay in bringing defendant's case to trial. Of the ten vacated trial dates during this period, three (the vacation of the June 4, 2012, May 5, 2014, and January 5, 2015 trial dates) occurred at or near the same time new defense counsel appeared on behalf of defendant, and for at least two of these delays, the record suggests that other reasons besides changes in defense counsel contributed to the delays. For the vacation of the June 4, 2012 trial date, no reason was noted, and defendant executed a written speedy trial waiver at the time the trial date was vacated. The May 5, 2014 trial date was vacated on March 7, 2014, when Hoopes took over defendant's case, but the trial court had only recently ordered new updated evaluations of defendant, and the record does not indicate that these evaluations were completed by the time the trial date was vacated. In addition, Hoopes had already represented defendant for almost three years during a time when the trial court acknowledged "[t]here was a lot of litigation." The January 5, 2015 trial date was vacated on October 3, 2014, just days after the trial court again ordered updated evaluations of defendant plus the appointment of a new evaluator. The remaining orders vacating trial dates did not coincide with changes in defense counsel. Thus, the record suggests that rotations in defendant's assigned counsel did not play a significant role in causing the delays in bringing his case to trial, certainly not to the extent of representing a systemic breakdown in the public defender's system.
While the trial court attributed some portion of the delay to "a series of public defenders who don't seem motivated to work on the case between 2012 and 2018," the trial court also noted that defendant's situation contained significant differences compared to the facts of Vasquez, where a systemic breakdown in the public defender system was found to have occurred. The trial court recognized that defendant's attorneys were not idle, noting that defendant's case had been "litigated extensively" and was days from proceeding to trial, unlike in Vasquez, where no trial date had been set at the time of the motion to dismiss. In Vasquez, the defense counsel "repeatedly raised with the trial court her inability to prepare for trial given the 50 percent cut in her office's staff and her increased workload." (Id. at p. 71.) Here, there is no evidence that staffing cuts or workload played a role in the delays, or that defense counsel was unable to prepare for trial. Thus, no evidence of a systemic breakdown in the public defender's office is present in defendant's case, and any delays that were caused by defense counsel (such as the vacation of the December 5, 2016 trial date that occurred at the defense's request) are attributable to defendant.
The trial court discussed a second factor that appears to have played a more significant role in the delay than changes in defendant's counsel: the need to obtain new or updated evaluations of defendant to determine whether he currently met the SVP criteria. As stated above, both the May 5, 2014, and the January 5, 2015 trial dates were vacated soon after the trial court ordered new or updated evaluations and the appointment of a new evaluator. In both situations, the trial date was vacated about two to three months before the scheduled trial date and soon after the trial court issued orders regarding new or updated evaluations. In addition, the October 16, 2017 trial date was vacated at the same hearing when the trial court noted that evaluations had not been received from the State Department of State Hospitals, indicating that the need to obtain updated evaluations played a role in the decision to vacate this trial date. As the trial court observed in denying the motion to dismiss, "evaluations have a shelf life of about no more than a year," and an "evaluation that's a year or more old doesn't tell me much about the current state of mind of the defendant." (See People v. Landau (2013) 214 Cal.App.4th 1, 25 [the prosecutor was entitled to have updated evaluations by doctors "when their prior evaluations became stale."].) Thus, as delays in bringing defendant to trial occurred, the trial court needed updated reports to provide current information about whether defendant met the SVP criteria.
In some situations, the record suggests that the need for updated evaluation reports could possibly have been identified earlier, which may have impacted the need to delay the trial date. For example, on March 7, 2014, the trial court vacated the May 5, 2014 trial date, resetting the trial for January 5, 2015. The next development noted in the record did not take place until September 23, 2014, a little more than three months before the rescheduled trial date, when the trial court ordered updated evaluations and the appointment of a new evaluator. Similarly, on February 3, 2017, the trial court set the October 16, 2017 trial date, noting that the prosecutor would obtain updated evaluation reports and "calendar if court order required." The next hearing indicated in the record did not take place until one month before trial, September 15, 2017, when the trial court noted that the State Department of State Hospitals still had not provided updated evaluation reports. Two weeks later, the trial court vacated the October 16, 2017 trial date. While earlier intervention in these instances may have prevented or minimized delay, the trial court did hold hearings and issue orders throughout the period of delay in an effort to obtain evaluation reports and other records, and no evidence indicates that the prosecution took any action to delay mental health professionals from supplying these reports. The trial court noted in denying the defense's motion to dismiss that it could not compel evaluators to produce their reports by a certain date; it could only issue subpoenas and orders to facilitate the production of records. The record indicates that the trial court ordered updated evaluations and the appointment of new evaluators when requested. In addition, the record provides no indication that defense counsel requested additional hearings, orders, or other efforts to prevent delays in receiving evaluation reports. Thus, we find that the need to obtain new and updated evaluation reports and the apparent delay in receiving such reports does not weigh significantly in either defendant's or the prosecution's favor.
Finally, defendant's actions in the hospital, including his repeated instances of possessing contraband and his business facilitating the import of prohibited items into the hospital, appear to have played at least some role in the delay. The prosecutor stated that the delay in defendant's trial from December 2018 to November 2019 directly resulted from the investigation into defendant's alleged illicit business. Additional comments during the trial indicate that this one-year delay also may have been caused in part due to the need to review records of defendant's misconduct while committed and to determine if defendant would be charged for his actions in the hospital. Acts of misconduct by defendant were uncovered at points throughout the period of the delay, including evidence of defendant accessing child pornography materials and chatting with the father of a girl in an effort to view her on camera. Defendant's actions required investigation and consideration by evaluators, which would necessarily delay the production of evaluation reports. In fact, Dr. Miculian, one of the evaluators who testified for the prosecution, stated that his opinion concerning defendant changed as he obtained additional information about the depiction of children in the nudism brochure defendant was found to possess in the hospital. At several points throughout their testimony, the evaluators referred to defendant's possession of contraband and his associated activities regarding children while committed, indicating that defendant's actions while committed were relevant to the experts' opinions that defendant met the SVP criteria. To the extent that defendant's possession of contraband material, accessing of child pornography and related materials, and running of a prohibited business contributed to the delay in bringing him to trial, this reason for the delay weighs against defendant.
We therefore find that on balance, the reasons for the delay weigh against defendant. For five years of the 13-year period between the petition and trial (2006 to 2011), valid reasons existed for the delay. For the remaining eight years, the record does not indicate that any systemic breakdown occurred in the public defender's system. Unlike in Vasquez or DeCasas, the record here presents no evidence of personnel cuts in the public defender's office or delays due to overworked counsel, and the record does not indicate that changes in defendant's attorneys played a significant role in delaying defendant's trial. The need to obtain new or updated evaluation reports appears to account for some portion of the delay, and efforts to obtain these reports were necessarily complicated by defendant's repeated acts of misconduct in the hospital that needed to be investigated and considered by evaluators. We therefore find that this Barker factor supports the trial court's ruling that defendant's speedy trial right was not violated.
c. Defendant's assertion of his speedy trial right
"The defendant's assertion of his [or her] speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right," and a "failure to assert the right will make it difficult for a defendant to prove that he [or she] was denied a speedy trial." (Barker, supra, 407 U.S. at pp. 531-532.) "Barker rejected 'the rule that a defendant who fails to demand a speedy trial forever waives his [or her] right.' [Citation.] But the high court cautioned that its rejection of the demand-or waiver-rule did not mean that a defendant has no responsibility to assert his [or her] right. [Citation.] Rather, 'the defendant's assertion of or failure to assert his [or her] right to a speedy trial is one of the factors to be considered in an inquiry into the deprivation of the right.' [Citation.]" (Williams, supra, 58 Cal.4th at p. 237.)" 'The issue is not simply the number of times the accused acquiesced or objected; rather, the focus is on the surrounding circumstances, such as the timeliness, persistence, and sincerity of the objections, the reasons for the acquiescence, whether the accused was represented by counsel, the accused's pretrial conduct (as that conduct bears on the speedy trial right), and so forth. [Citation.] The totality of the accused's responses to the delay is indicative of whether he or she actually wanted a speedy trial.' [Citation.]" (Id. at p. 238.)
Here, the record contains three written speedy trial waivers defendant executed in 2009, 2011, and 2014. By the time of the last waiver, the trial court had already reset the trial date for September 8, 2015, meaning that defendant affirmatively consented to a delay at least until this point. The fact that defendant affirmatively and repeatedly waived his speedy trial right in writing upon the advice of his counsel significantly weighs against him, at least concerning delays through September 8, 2015. (Williams, supra, 58 Cal.4th at p. 237.)
In addition, minute orders indicate that in October 2012, defendant orally waived his speedy trial right. However, the record does not reflect that defendant was present for the hearing where this oral waiver was entered; therefore, we give any such waiver no weight in our analysis. Other minute orders from hearings indicate that defense counsel would obtain a speedy trial waiver from defendant, but nothing in the record indicates such a waiver was obtained.
In addition, the record provides no evidence that defendant asserted his speedy trial right until after most of the delay occurred. The defense's motion to dismiss acknowledged that defendant "did not personally make known to this court his desire for a speedy trial until Ms. Harris was relieved and his current counsel was assigned," which took place in or around May 2018. We find that defendant's failure to notify the trial court that he wished to assert his speedy trial right weighs against him, though to a lesser extent than his affirmative waivers do. We acknowledge, as defendant points out, that he was not personally present during most of the hearings that took place between the 2011 probable cause hearing and the 2019 trial. However, the record also does not indicate that defendant sought to be present during these hearings until after he asserted his speedy trial right in 2018. While we recognize that defendant's declaration in support of his motion to dismiss stated that he wrote his attorney on September 6, 2016, "question[ing]" the need for another postponement" of his trial, defendant did not state in his declaration that he attempted to attend his proceedings to assert his speedy trial right, or that he specifically instructed his defense counsel in the purported letter to withdraw his earlier speedy trial waivers so he could proceed to trial expeditiously. Defendant's declaration as to what his letter to his counsel stated contrasts with Butler, in which the defendant's "letter to counsel
'unequivocally' stated that counsel was not authorized to waive time and demanded a timely trial." (Butler, supra, 55 Cal.App.5th at p. 649.) Defendant's counsel requested on September 23, 2016 (17 days after defendant's purported letter) that the trial be continued from its December 5, 2016 scheduled start, indicating that she did not believe defendant wished to assert his speedy trial right. The next trial date of October 16, 2017 was then vacated with no recorded objection from defense counsel. In fact, minute orders in February and March 2018 state that defense counsel needed to obtain a speedy trial waiver from defendant, indicating that the parties believed defendant did or would consent to the delay. After the defense notified the trial court of defendant's speedy trial concern in June 2018, the trial court only vacated the trial date in an apparent response to reports of defendant's contraband business venture, along with granting a second continuance of eight days. The remaining delays all occurred before defendant asserted any desire to proceed to trial in a timely manner. We therefore find that defendant's failure to assert his speedy trial right until 2018 (12 years after the SVP petition was filed), combined with his affirmative speedy trial waivers, supports the position that the delay did not constitute a due process violation.
d. Prejudice
"Whether defendant suffered prejudice as a result of the delay must be assessed in light of the interests the speedy trial right was designed to protect: '(i) to prevent oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the accused; and (iii) to limit the possibility that the defense will be impaired.' [Citation.]" (Williams, supra, 58 Cal.4th at p. 235.) "Of these, the most serious is the last, because the inability of a defendant adequately to prepare his [or her] case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past." (Barker, supra, 407 U.S. at p. 532.)
Here, defendant asserts that he was presumptively prejudiced by the delay, but he does not identify any specific way in which he was prejudiced. At argument to the trial court concerning defendant's motion to dismiss, the primary form of prejudice defense counsel articulated was that because some evaluations during the period of delay found that defendant did not meet the SVP criteria, "there were moments in time when it should have been seized and trial should have happened."
We acknowledge that the 13 years defendant spent committed to a hospital following the filing of the SVP petition is "undoubtedly oppressive and would do little to minimize the anxiety and concern of the accused." (Tran, supra, 62 Cal.App.5th at p. 353.) As the court in Tran noted, "[s]uch a lengthy pretrial confinement itself constitutes some degree of prejudice. [Citations.]" (Ibid.) We find that these aspects of prejudice weigh in defendant's favor.
However, there is no evidence that defendant suffered the "most serious" type of prejudice, "the inability . . . adequately to prepare his case." (Barker, supra, 407 U.S. at p. 532.) At trial and on appeal, defendant has not articulated any witnesses he wished to call or other evidence that he wished to present that was unavailable due to the passage of time. To the contrary, the defense's case at trial was based on evidence that was only available because of the delay. Defendant stated in September 2014 that he had "resisted formal treatment forever," but that he had recently begun participating in sex offender management therapy after his attorney "convinced [him] to join." Defendant executed the last of his three written speedy trial waivers at the same time that he told an evaluator that he decided to begin treatment, indicating that he recognized that agreeing to a delay to pursue treatment was in his best interest in order to present helpful evidence at trial. All three of the defense witnesses at trial testified about defendant's progress in treatment since that point. Defendant's progress in sex offender treatment was relevant to the determination of whether his diagnosed mental disorder made it likely he would engage in sexually violent criminal behavior in the future, and a substantial portion of the delay benefitted defendant by enabling him to begin and progress in treatment before trial.
The defense's opposition to the prosecution's December 2018 motion to continue asserted that a continuance would prejudice defendant because a defense witness who evaluated defendant had opined in March 2017 that defendant did not meet the SVP criteria, and the further passage of time would erode the potential probative value of this testimony. However, defendant did not assert in the motion to dismiss that he wished to call this witness or that the passage of time constituted prejudice in this way. Likewise on appeal, defendant does not assert he desired to call this witness. At trial, Dr. Abrams, the defense expert, testified that he evaluated defendant in November 2018, more recently than the opinion of the defense witness the defense discussed in the opposition to the motion to continue. We therefore find no prejudice in this regard.
The prosecution presented a strong case to commit defendant as a sexually violent predator, including evidence about defendant's extensive misconduct while committed. While defendant asserted at trial that the delay prejudiced him because he might have been tried at some point when an evaluator found he did not meet the SVP criteria, defendant did not identify any specific window when this was feasible, and mental health professionals who provided evaluations favorable to defendant changed their opinions when they were provided with additional information. Thus, we find that the delay did not result in defendant's inability to adequately prepare his case, and based on this "most serious" aspect of prejudice, this factor weighs against defendant.
e. Summary of the Barker factors
While the length of the delay was extraordinary and weighs heavily in favor of defendant's argument that his speedy trial right was violated, the remaining three Barker factors (the reasons for the delay, whether defendant asserted his speedy trial right, and prejudice) weigh significantly against defendant. Defendant's case is unlike Vasquez, the primary case the parties relied upon at trial, in that changes in defense counsel did not represent a systemic breakdown in the system and did not appear to significantly contribute to the delay in bringing defendant to trial. The record indicates that other reasons not primarily attributable to the prosecution or the trial court, including the need to obtain new or updated evaluations and defendant's misconduct in the hospital, contributed more significantly to the delay. Defendant's affirmative waivers of his speedy trial right and his failure to assert his speedy trial right until 2018 support the conclusion that defendant's due process right was not violated. Defendant has articulated no specific prejudice caused by the delay, and we find that defendant's ability to present a defense was not negatively affected by the delay. Considering these related factors together, and weighing all factors in their totality, we conclude the trial court did not abuse its discretion in denying defendant's motion to dismiss under Barker. (Vasquez, supra, 27 Cal.App.5th at p. 55.)
2. Mathews Test
Our analysis of the more general balancing test under Mathews also results in the conclusion that defendant's due process right was not violated. Under Mathews, an analysis of "due process generally requires considerations of three distinct factors: First, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail." (Mathews, supra, 424 U.S. at p. 335.) a. Private interest affected
Here, the parties agree that the private interest affected was a significant one, and we likewise find that defendant has been subjected to a significant curtailment of his liberty during his extended pretrial detention. (See Vasquez, supra, 27 Cal.App.5th at p. 81 ["confinement for 17 years awaiting trial caused a significant deprivation of liberty"].)
b. Risk of erroneous deprivation
Defendant received jury trials in 2002 and 2006 on previous SVP petitions, and both times he was committed to state custody as a sexually violent predator. This contrasts with other cases in which courts found a due process violation by a delay in bringing a defendant to trial on an initial SVP petition. (See Butler, supra, 55 Cal.App.5th at pp. 625-626 [detainment of defendant for 13 years awaiting trial on original SVP petition]; DeCasas, supra, 54 Cal.App.5th at p. 813 [no trial was conducted during the 13-year period following the filing of the original SVP petition]; Vasquez, supra, 27 Cal.App.5th at p. 40 [defendant detained for more than 17 years awaiting trial on the original SVP petition].) In addition, a hearing in 2011 found that probable cause existed to believe that defendant continued to meet the SVP criteria. Numerous evaluations over the ensuing years then confirmed that defendant continued to meet the SVP criteria, and evaluations that found otherwise were later reversed upon evaluators receiving additional documentation. In such a situation, any risk of erroneous deprivation of defendant's liberty interest during the period awaiting trial was lessened. (See Tran, supra, 62 Cal.App.5th at p. 355 ["Any risk of an erroneous deprivation was mitigated by the procedural safeguards required by the SVPA. Specifically, the initial SVP petition had to be supported by evaluations by mental health experts concluding that defendant met the SVP commitment criteria. [Citation.] Defendant received a probable cause hearing and, throughout the life of the case, he was reevaluated numerous times to assess whether he still met the SVP criteria."].)
c. Government's interest
"There is no question that 'the state has a compelling protective interest in the confinement and treatment of persons who have already been convicted of violent sex offenses, and who, as the result of current mental disorders that make it difficult or impossible to control their violent sexual impulses, represent a substantial danger of committing similar new crimes [citations] . . . .' [Citations.]" (Tran, supra, 62 Cal.App.5th at p. 355.) "The express purpose of the SVPA articulates the strong government interest in protecting the public from those who are dangerous and mentally ill." (People v. Otto (2001) 26 Cal.4th 200, 214.) Therefore, this factor weighs against defendant.
d. Summary of the Mathews factors
Weighing the Mathews factors results in the same conclusion as our analysis of the Barker factors. While defendant's private liberty interest was significantly affected during the delay, the state maintained a compelling interest in protecting society from the risk defendant posed, and any risk of an erroneous deprivation of defendant's liberty was reasonably mitigated by the SVPA's procedural requirements, including the two previous jury trial findings that defendant met the SVP criteria at the time of those trials. On balance, defendant's due process right was not violated by the delay. (Mathews, supra, 424 U.S. at p. 335.)
C. Conclusion
Application of the Barker and Mathews tests demonstrates that defendant's due process right to a speedy trial was not violated by the delay in bringing him to trial on the commitment petition. With regard to the Barker factors (the length of the delay, the reasons for the delay, whether defendant asserted his right to a speedy trial, and prejudice), the delay of more than 13 years is extraordinary and weighs in favor of defendant's argument that his speedy trial right has been violated. However, the reasons for the delay weigh against defendant. Between 2006 and 2011, defendant acknowledges that valid reasons existed for the delay. For the remaining eight years, no systemic breakdown occurred in the public defender's system, the need to obtain new or updated evaluation reports appears to account for some portion of the delay, and defendant's repeated acts of misconduct impacted efforts to obtain these reports and contributed to the delay. Defendant's affirmative waivers of his speedy trial right and his failure to assert his speedy trial right until 2018 also weigh against him. As to the last Barker factor, defendant articulates no specific prejudice caused by the delay, and the delay did not result in defendant's inability to adequately prepare his case. Under the Mathews test, defendant's private liberty interest was significantly affected during the delay, but the state maintained a compelling interest in protecting society from the risk defendant posed, and any risk of an erroneous deprivation of defendant's liberty was reasonably mitigated by the SVPA's procedural requirements. We therefore find no abuse of discretion in the trial court's denial of defendant's motion to dismiss. (Vasquez, supra, 27 Cal.App.5th at p. 55.)
IV. DISPOSITION
The judgment is affirmed.
WE CONCUR: DANNER, J., WILSON, J.