*1 Filed 3/2/21 P. v. Tran CA2/2
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE, B297845 Plaintiff and Respondent, (Los Angeles County Super. Ct. No. ZM013245) v.
SON TRAN,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Paul M. Roadarmel, Jr., and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
In 2008, the Los Angeles County District Attorney ’s Office filed a petition to civilly commit defendant and appellant Son Tran under the Sexually Violent Predators Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) [1] More than four years later, in 2012, the trial court found probable cause that defendant was likely to engage in sexually violent predatory criminal behavior upon release. Nearly four years after that, in 2016, the petition was tried to a jury. The jury deadlocked, and a mistrial was declared. Two and one-half years later, in 2019, a bench retrial commenced. Finding that defendant qualified as a sexually violent predator (SVP), the trial court committed him to a state hospital for treatment and indeterminate confinement.
On appeal, defendant does not challenge the sufficiency of the evidence supporting his civil commitment. Rather, he contends that the 11-year span between the filing of the petition and the retrial violated his constitutional right to due process.
We affirm.
BACKGROUND [2]
I. Criminal History
In 1981, defendant was convicted of two counts of lewd or lascivious acts involving a child under the age of 14. (Pen. Code, § 288, subd. (a).)
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated. Our ability to summarize what occurred below was greatly
limited by the appellate record. Many documents, including court minute orders, are missing.
In 1985, he was convicted of kidnapping for child molestation (Pen. Code, § 207, subd. (b)) and child molestation with a prior (former Pen. Code, § 647a).
In 1986, he was convicted of forcible child molestation (Pen. Code, § 288, subd. (b)), assault with a deadly weapon (Pen. Code, § 245, subd. (a)), and false imprisonment (Pen. Code, § 236). II. SVP Petition; Waiver of Time for Probable Cause Hearing
The petition to commit defendant as an SVP was filed on May 15, 2008 (SVP petition).
On June 4, 2008, at the first hearing following the filing of the SVP petition, the trial court appointed Deputy Public Defender Karen King (King) to represent defendant. Pursuant to section 6601.5, the trial court reviewed the petition and found that it was facially sufficient. It informed defendant that he was entitled to a probable cause hearing within 10 days. King stated that she had discussed waiving that time requirement with defendant. With defendant’s agreement, the probable cause hearing was set for July 16, 2008.
III. D efendant’s First Motions to Strike Psychologist Evaluations; Continuances of Probable Cause Hearing
On July 16, 2008, King indicated that she wanted to have a motion to strike a psychologist’s report heard si multaneously with the probable cause hearing. The matter was continued to September 2008.
There were at least two hearings in the fall of 2008. Then all we know from the limited appellate record provided is that (1) in January 2009, defendant filed two motions to strike psychologist evaluations, which were denied; (2) in April 2009, the probable c ause hearing was continued, with defendant’s consent, to June 2009; (3) in January 2010, on defendant’s *4 motion, the matter was continued to February 2010; and (4) in March 2010, the matter was continued again to May 2010. IV. Defendant’s Motion for New Evaluations
In April 2010, defendant filed a motion, pursuant to
In re
Ronje
(2009)
On July 22, 2010, the trial court granted defendant’s motion for new evaluations but denied his request for new evaluators. Defendant agreed to waive time and to have the probable cause hearing setting take place in October 2010. V. Defendant’s New Counsel; Defense Requests for Continuances
Deputy Public Defender Tom Tibor (Tibor) appeared for the
first time as defendant’s attorney on October 5, 2010.
[4]
Tibor had
Ronje
,
supra
,
defendant.
interviewed defendant the previous day and was informed that neither evaluator had seen defendant yet. The matter was continued to January 2011.
Upon defense motions, the trial court granted additional continuances from January 2011 to April 2011 (for unknown reasons), from April 2011 to June 2011 (for time to obtain updated reports), and from June 2011 to July 2011 (because an evaluator had not completed her report). In July 2011, the trial court set the probable cause hearing for March 26, 27, and 28, 2012.
VI. Defense C ounsel’s Health Problems; Defendant Objects to a Continuance
On March 26, 2012, Tibor informed the trial court that he had medical problems that prevented him from proceeding with the probable cause hearing at that time. Defendant told the trial court that he did not “ want to wait ” and wanted the probable cause hearing to occur that day. After all, Tibor’s med ical issues were not his fault.
The trial court suggested that someone else in the public defender’s office might be able to represent defenda nt. The trial court stated that it was “ happy to do whatever ” defendant and his attorney thought was in defendant’s “ best interest. ” It then suggested that the hearing be continued for a short time until Tibor was medically cleared to proceed, telling defendant that this option was “probably in [his] best interest” because of Tibor’s familiarity with the case file.
Defendant reiterated that he wanted to have his probable cause hearing on that day and did not want to waive time. He complained that he had been in the county jail for three years six *6 months. Tibor stated that no one else in his office was prepared to conduct the hearing on that day.
After further discussion, the trial court set another hearing for April 25, 2012, and reserved the week of July 16, 2012, for the probable cause hearing.
VII. Probable Cause Hearing
In August 2012, at a status conference for the probable cause hearing set for September 25 and 27 and October 10, 2012, Tibor informed the trial court that he “had trouble reaching [his] expert[,]” who had not yet interviewed defendant. The People had already subpoenaed its two witnesses for the probable cause hearing.
At the next status conference, on September 18, 2012, it was confirmed that the probable cause hearing would be held on September 25 and October 4 and 12, 2012. Tibor explained that defendant “seem[ed] to be somewhat upset . . . with the fact that [September] 27[] was moved to October 4.” Tibor stated that he tried to explain to defendant that the delay was to accommodate witnesses and was “a standard practice.”
The probable cause hearing proceeded as scheduled on September 25 and October 4 and 12, 2012. At the conclusion of the hearing, the trial court found probable cause, pursuant to section 6602, that defendant was likely to engage in sexually violent predatory criminal behavior upon release. It ordered defendant to be transported to Coalinga State Hospital (Coalinga).
Defendant stated that he wanted to have his trial in 60 days. The trial court was ready to send defendant out for trial We do not know what occurred on April 25, 2012, or during the week of July 16, 2012.
and “assume[d] that the district attorney would be ready for trial. ” Tibor informed the trial court that the defense would not be ready for trial within 60 days.
The trial court requested that Tibor have a discussion with defendant. It noted that defendant “ seem[ed] pretty clear that he would like his trial to be held sooner rather than later. ” It was “ ready, willing, and able to do that as soon as [Tibor was] able to announce ready or [his] successor [was] able to announce ready for trial. ” A pretrial conference was set for December 2012. Defendant voiced his objection.
VIII. Defendant ’s New Counsel; Additional Defense Requests for Continuances ; Defendant’s Objections
December 12, 2012, hearing
On December 12, 2012, Tibor advised the trial court that he was going to retire by the end of the year and that the public defender’s office “hasn’t ev en contemplated yet who [was] going to replace [him].”
February 7, 2013, hearing
D efendant’s new attorney, Deputy Public Defender Steve McManus (McManus), appeared on February 7, 2013. McManus explained that he had “not had a chance to read all of the mat erials” regarding defendant’s case and wanted to come back for the pretrial conference in approximately 60 days. Defendant told the trial court that he wanted his trial within 10 days, but McManus indicated that he was not ready. The next hearing was set for April 2013.
On April 10, 2013, the matter was continued to May 15, 2013.
May 15, 2013, hearing
Defendant, who had recently been transported to Coalinga, was not in court on May 15, 2013. McManus suggested “ a six- month date” to allow defendant time “t o settle in and get some things done ” at Coalinga. The trial court stated that a three- month date was necessary given that it was “a relatively old case.” The trial court acknowledged that McManus was new to the case. “However,” it explained, “the cases need to be moving toward trial more quickly than they have been. So simply because somebody is a recent arrival at Coalinga is not necessarily a good reason for putting off a tr ial date.” The next hearing was set for August 2013.
August 6, 2013, hearing
*9 and planned to visit defendant later that month. McManus requested that the next pretrial date be set for early February 2014. When asked about his plans for the case, McManus referred to his difficulty communicating with defendant and stated that he was not sure when he would be ready for trial. The next hearing was scheduled for January 2014.
January 15, 2014 hearing
Defendant did not appear on January 15, 2014. McManus reported that he had visited defendant but there were communication problems. McManus questioned defendant’s “competency, his ability to understand the proceedings and understand the nature of the charges against him .” McManus also wanted additional time to research whether the SVPA applied to an undocumented alien with a current deportation order, as well as a competency issue.
The trial court acknowledged that McManus was “ relatively new on this file ” and wanted him “ to have the opportunity to explore ” the issues he had referenced. It continued the matter to March 2014 but was clear that it wanted “ something actually happen ing” in the case in the interim.
March 5, 2014, hearing
On March 5, 2014, McManus reiterated his difficulties communicating with defendant and requested more time to research legal issues to possibly raise by motion. The trial court noted that McManus had been on the case for over a year. The prosecutor expressed his concern that defendant had made multiple demands to speed up the proceedings.
Defendant stated that he wanted his trial within 30 days. McManus indicated his belief that defendant did not understand what a trial was and could not be of assistance in preparing for *10 one. McManus argued that this was not like the Litmon case where both the client and the attorney demanded a speedy trial. He stated that some of the issues that defendant had raised, inartfully, in his writ had merit but were unique questions that required substantial research. He believed that good cause existed to continue the matter over defendant’s objection and that he was not asking for a speedy trial for defendant.
Defendant asked when he would go to trial. The trial court responded, “As soon as your attorney tells me he’s ready.” Defendant told the trial court that he was “prepared to go forward with the trial” regardless of whether his attorney was ready. The trial court thought that defendant needed to have a conversation with McManus. Defendant claimed that the doctors had said he was not mentally ill and could leave the hospital. McManus argued that this demonstrated that defendant did not understand what was happening and his lack of competency.
The next hearing was scheduled for April 2014. The trial court told the prosecutor to order new evaluations so that the trial could go ahead as soon as possible.
April 23, 2014, hearing
On April 23, 2014, the prosecutor reported that the updated evaluations would be completed by the first week in June 2014. He and McManus wanted to return shortly thereafter for a hearing, and asked to schedule it for June 2014. The trial court agreed.
June 11, 2014, hearing
As a result of a calendaring error by McManus, defendant
was not present at the hearing on June 11, 2014. McManus
reported that they had just received the updated evaluations. He
People v. Litmon
(2008)
August 5, 2014, hearing
On August 5, 2014, McManus stated that he was still working on getting certain records and asked for a short continuance. The matter was continued to September 2014.
September 18, 2014, hearing
Defendant did not appear at the hearing on September 18, 2014. M cManus reported that he had “run up against some roadblocks” in getting records about recent incidents discussed in the evaluator s’ reports. He needed to read them, discuss them with defendant, and decide whether to hire an additional expert. The next hearing was set for November 5, 2014.
November 20, 2014, hearing
Defendant was not present on November 20, 2014, because of a misunderstanding between him and McManus. McManus stated that he was going to see defendant in December 2014 and that there was still an extensive amount of work to be done on the case. He asked for a continuance at least until January 2015. The prosecutor stated that there had been “about 16 months of absolutely nothing happening in court other than” continuances. McManus attributed these difficulties to defendant’s communication issues. The next hearing was scheduled for January 2015.
January 22, 2015, hearing
On January 22, 2015, the prosecutor commented that nothing other than continuances had occurred in the 21 months since McManus had been assigned to the case. McManus stated There is no record of what occurred on November 5, 2014. *12 that the case was “going to take some time to prepare” and that defendant had “some serious learning difficulties.” Because McManus had other high priority cases, he requested at least a three-month continuance. The trial court set the next hearing for April 2015.
April 13, 2015, hearing
On April 13, 2015, McManus stated that defendant wanted to proceed to trial but that he was not ready. McManus had at least two other cases that were scheduled for trial soon; his “caseload [had] doubled approximately six months” earlier and he had not had the opportunity to do some of the work he needed to in defendant’s case. He requested that the matter be continued for about three months and then to select a trial date one to three months later.
The prosecutor was “ happy to move towards trial ” and would order new “ evaluations whenever the [trial] court deem[ed] it efficient[.]”
Because defendant wanted to move forward, the trial court told McManus to make this case high priority and told the People to order updated evaluations.
Defendant stated that he wanted to have his trial start the next month. The trial court responded that while it “would certainly be willing to accommodate that[,]” the “problem” was that def endant’s attorney had upcoming trials and that the People would also need time to get ready. It suggested that the case might go to trial in late summer or early fall. Defendant said that he was ready and that it was not his fault if his attorney was not. The trial court responded , “I understand that, but I assume you want your lawyer to be prepared when he goes to trial to try to get you released, and I want to make sure he has *13 got the time to prepare as well. We have got to give him that time.”
The matter was continued to July 2015.
July 28, 2015, hearing
Defendant was not present on July 28, 2015. McManus represented that defendant said he was “okay” with a November trial date. The prosecutor reported that one of the experts on the case had retired, so they had to get another evaluation. Trial was set for November 2015.
September 10, 2015, hearing
By the September 10, 2015, hearing, the updated evaluations had been received and the People had subpoenaed experts for the upcoming trial.
McManus reported that during a recent evaluation defendant had demanded to be interviewed in English without an interpreter and had refused consent to be recorded. As a result, McManus did not know what was actually said during the interview. The parties and the trial court agreed that the evaluation should be redone.
The prosecutor commented that he and McManus had “both been trying very hard . . . to keep the trial date” and that they had “been in constant communication with each other.” The trial court agreed. The next hearing was set for October 2015.
October 15, 2015, hearing
On October 15, 2015, McManus explained that two of the experts still had to interview defendant and, therefore, the parties would not be ready for trial in November 2015. McManus thought th at, due to defendant’s “educational and language deficits[,] he was being influenced by other people . . . at the hospital” when he was maki ng demands to proceed to trial. *14 Based on his trial calendar, McManus did not think they would be able to set the trial until April or May 2016.
Defendant stated that he wanted his trial to start the next month. The People did not object to vacating the trial date. The next hearing was scheduled for November 2015.
November 24, 2015, hearing
On November 24, 2015, McManus reported that the updated report from one of the evaluators had been received but not the transcript of the interview. Based on his discussions with the prosecutor, the earliest McManus believed that they could hold the trial was June or July 2016. The trial court scheduled a status conference for February 2016, and for the trial to begin on July 25, 2016.
February 11, 2016, hearing
Defendant was initially present by video at the status conference on February 11, 2016, but left early on. McManus requested a continuance of the trial because he had two other trials scheduled for May and June. McManus stated, “It will simply be impossible for me to try and prepare three trials three months in a row because of the amount of work involved in it and especia lly in [defendant’s] case.” McManus reported that defendant had accepted this. The People were amenable to a short continuance.
The trial court did not change the trial date but scheduled another hearing for two weeks later so that defendant could participate and the availability of the experts could be ascertained.
February 25, 2016, hearing
Defendant was not present on February 25, 2016. The trial was reset to August 15, 2016.
July 19, 2016, hearing
On July 19, 2016, McManus told the trial court that, because defendant was not feeling well and was in pain, defendant wanted the trial to be postponed. Defendant confirmed that he was not feeling well. The People objected to any continuance. The trial court denied the defense motion to continue and ordered the medical director at Coalinga to file a report on defendant’s medical condition and treatment.
IX. First Trial
The trial began on August 15, 2016.
On A ugust 31, 2016, the jury was “hopelessly deadlocked,” and the trial court declared a mistrial. It set another hearing for December 2016, and ordered defendant returned to Coalinga. X. Proceedings from First Trial to Retirement of Defense Counsel
Several hearings occurred between December 2016 and March 2018; defendant was not present at any of them.
December 8, 2016, hearing
According to the prosecutor on December 8, 2016, McManus had “ indicated that [defendant], after the experience, [was] not d esirous of rushing pretrial[.]” Based on McManus’s request, the trial court set the next hearing for March 2017.
March 7, 2017, hearing
The transcripts from the first trial had not been received as of the March 7, 2017, hearing. McManus stated that, even if the transcripts had been ready, the case was not likely to be tried that year. He asked for a three or four month continuance. The trial court scheduled the next hearing for June 2017.
June 20, 2017, hearing
Another deputy public defender appeared for McManus at the June 20, 2017, hearing. The transcripts of the first trial had *16 still not been prepared. The trial court stated that McManus needed “to proactively move” the case forward and set the next hearing for July 2017.
July 18, 2017, hearing
Neither defendant nor McManus was present at the July 18, 2017, hearing. Another deputy public defender appeared on McManus’s behalf. The trial court stated: “This is really problematic. . . . [McManus] needs to be on his cases. I cannot intelligently address requests to put cases over if I don’t have counsel here. This case has been dragging out. Since December, he’s been trying to get transcripts. And I have no idea what the progress of that is.” The matter was continued.
August 17, 2017, hearing
The trial transcripts were not yet ready as of the August 17, 2017, hearing. McManus stated that defendant was “not requesting to go [to] trial.” The next hearing was set for October 2017.
October 26, 2017, hearing
The trial transcripts were still not ready by October 26, 2017. By stipulation, the matter was continued to February 2018.
February 6, 2018, hearing
At the February 6, 2018, hearing, it was reported that the trial transcripts were not ready because the court reporter was undergoing medical treatment. With the parties’ agreement, the hearing was continued.
March 19, 2018, hearing
The trial court refe renced McManus’s upcoming retirement at the March 19, 2018, hearing. McManus confirmed that he would not handle the retrial and did not know who was going to *17 replace him. The trial transcripts had not been received. The next hearing was set for the following month.
April 30, 2018, hearing
By April 30, 2018, McManus had retired. Another deputy public defender appeared for defendant, but he explained that the case would need to be reassigned to someone else in his office. The trial court expressed concern that the reassignment had not yet been made. Defendant repeatedly stated that he wanted his trial to take place “[a]s soon as possible.” The matter was continued to June 2018.
XI. Defendant’s New Counsel; Trial Continuances
June 18, 2018, hearing
On June 18, 2018, defendant’s new attorney, Deputy Public Defender Christina Behle (Behle), appeared for the first time. Behle had just been assigned the case the previous week. The trial transcripts were still not complete.
The trial court acknowledged that, during his last appearance, defendant “was very unhappy and wanted his trial as soon as possible.” It told defendant: “[Y] ou have to decide whether you want an unprepared lawyer to take your case to trial or you want your lawyer to be properly prepared . If she’s unprepared, there is no argument on appeal that your lawyer was ineffective, if you push her to trial before you think she’s ready.”
Defendant stated that he did not want to waive time and wanted his trial to take place the next month. The trial court explained that it had to give defense counsel time to prepare but that counsel was “ now on notice that she has to be prepared sooner rather than later.” When defendant repeated that he wanted his trial as soon as possible, the trial court stated, “I have *18 to give your lawyer some time to prepare. You are not her only client. If you would like to privately hire a lawyer and pay for the lawyer, I’m sure the lawyer can be ready in two weeks. The lawyer being provided to you is at public expense. You have to accept the fact she has other clients besides you.”
The next hearing was set for July 2018.
July 23, 2018, hearing
On July 23, 2018, Behle reported that she had received the trial transcripts the previous week and had contacted experts from that trial. The trial court stated, “I think we want to have this trial sooner rather than later because [defendant] wants it without [Behle] even bein g prepared.” Behle explained that she had a few other cases that she needed to prepare for trial and that s he was “working as hard as” she could “to get prepared.” She also had “to take into consideration the expert’s availability and all of the prior evaluations.”
The trial court stated that it was “not inclined to force [Behle] to trial until” she was prepar ed. It set another hearing for September 2018, and assumed that defendant objected to any further continuances and wanted a speedy trial.
September 24, 2018, hearing
On September 24, 2018, Behle reported that she met with defendant at Coalinga the month before. She was doing “everything” she could t o be ready for a January trial. According to Behle, one of the People’s evaluators had determined that defendant did not qualify as an SVP. They also needed to replace the other evaluator who was no longer doing SVP evaluations, causing some uncertainty. Because the defense expert was not available in January, Behle suggested that the trial be scheduled for February 6, 2019. Defendant stated that he wanted his trial *19 to start on that date. The trial court re sponded, “In light of Vasquez , [ ] I will probably accede to that. He wants his trial. He is getting his trial.”
November 26, 2018, hearing
On November 26, 2018, the trial court stated that defendant had “repeatedly demanded a trial and he’s going to get that trial.” The trial was still set to begin on February 6, 2019.
January 7, 2019, hearing
On January 7, 2019, the prosecutor reported that she had prepared an order for the trial court to sign so that she could subpoena documents from Coalinga. She expected the defense to file a motion based on those documents and, therefore, was anticipating trial on March 13, 2019. The prosecutor believed good cause existed for a continuance because they did not yet have the documents that would be used during trial. They could not have sought the documents earlier because they did not know what the evaluators were relying on until they had the evaluations. Trial was set for March 13, 2019.
XII. Retrial and Appeal
A bench retrial commenced on March 15, 2019. On March 29, 2019, the trial court found that defendant was an SVP and that he needed to be committed indefinitely to a state hospital.
This timely appeal ensued. People v. Superior Court ( Vasquez ) (2018) 27 Cal.App.5th 36 ( Vasquez ). In Vasquez , the Court of Appeal concluded that a 17-year delay between the filing of an SVP petition and trial violated the due process right to a timely trial. ( Id. at p. 41.)
DISCUSSION
I. No Forfeiture
The People argue that defendant forfeited his due process
challenge by failing to file a motion to dismiss in the trial court
based on pretrial delay. We disagree. Provided that a defendant
objects to the delay — as defendant did here on numerous
occasions — a federal constitutional claim regarding the
deprivation of a timely trial is preserved even if no motion to
dismiss is filed. (
People v. Bradley
(2020)
II. No Due Process Violation
A. Standard of review
We review defendant’s due process claim de novo. (
People
v. Aguilera
(2020)
B. Relevant law
1. Overview of SVP commitment proceedings An SVP is “a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) 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. (§ 6604.) Our conclusion renders moot defendant’s alternative argument that , if we were to find forfeiture, his trial counsel’s failure to file a motion to dismiss constituted ineffective assistance of counsel.
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. (§ 6601, subds. (d)-(f); Reilly , supra , 57 Cal.4th at p. 647.) 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.” (§ 6601.5.) If the court finds that the petition is facially sufficient, it must hold a probable cause hearing within 10 days. (§ 6601.5.) The probable cause hearing may be continued upon a showing of good cause. (§ 6602, subd. (b).) If probable cause is found, the subject of the petition is entitled to a trial. (§§ 6603, subd. (a), 6604.)
2.
Due process right to a timely trial
“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 b elieve the inmate is an SVP.” (
Vasquez
,
supra
,
process protections.” (
People v. Otto
(2001)
3.
Tests applied to alleged due process violations
“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. ”
(
People v. Landau
(2013)
i.
Barker
test
Barker
,
supra
,
other circumstances as may be relevant. . . . [T]hese factors have no talismanic qualities; courts must still engage in a difficult and sensitive balancing process.” ( Barker , supra , at p. 533.)
ii.
Mathews
test
Mathews
,
supra
,
C. Analysis of the Barker factors We address the Barker factors in the following order: the length of the delay, who is to blame f or the delay, defendant’s assertion of the right, and prejudice. Thereafter, we balance these factors to determine whether defendant was deprived of due process.
1.
Length of the delay
Nearly 11 years elapsed between the filing of the SVP
petition and th e commencement of defendant’s second trial.
During that period, it took more than four years to hold a
probable cause hearing and more than eight years to hold the
first trial. Though not as long as the delays in some SVP cases,
these substantial delays weigh in defendant’s favor. (See
Butler
,
supra
,
2. Blame for the delay The protracted delay between the filing of the SVP petition in May 2008 and the probable cause hearing in October 2012 was mostly attributable to multiple defense motions to strike psychologist evaluations; the need for updated evaluations; the change of defe nse counsel from King to Tibor; and Tibor’ s medical problems.
There were several reasons for the span between the finding of probable cause and the start of the first trial in August 2016. Tibor retired, and McManus was assig ned as defendant’s new counsel. McManus had difficulties communicating with defendant, as well as a heavy case load and trial schedule. The defense made requests for additional time to research the viability of various motions. Finally, updated evaluations were required, including to replace a retired evaluator and to redo an evaluation after defendant refused the assistance of an interpreter and to be recorded.
Finally, the retrial was delayed until March 2019 primarily because of the extended time it took to obtain the first trial transcripts, ostensibly due to the court reporter’s medical problems; McManus’s retirement and the assignment of new counsel; and the replacement of an evaluator.
To determine where the blame lies for these delays, we consider in turn the role of the defense, the prosecution, and the trial court.
i. The defense
As a general rule, “delays caused by defense counsel are
properly attributed to the defendant, even where counsel is
assigned.” (
Vermont v. Brillon
(2009)
Here, although the reasons for the delays varied, we can find no continuance in the record that was not the result of defense counsel’s agreement or, more often, explicit request. Defendant does not dispute this. Rather, he argues that he should not be held responsible for the delays caused by his attorneys because they were the result of a systemic breakdown in the public defender system.
Defendant identifies specific acts by his appointed trial counsel that he contends “violated his due process rights and together, if not separately, manifest a systemic breakdown .” Attributing to the state an assigned counsel’s “‘inab ility or unwillingness . . . to move the case forward[]’” ( Brillon , supra , 556 U.S. at p. 92) “could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal of the indictment on speedy-trial grounds. Trial courts might well respond by viewing continuance requests made by appointed counsel with skepticism, concerned that even an apparently genuine need for more time is in reality a delay tactic.” ( Id. at p. 93.)
These include: failing to take steps to ensure an earlier probable cause hearing; not timely reassigning the case when Tibor’s retirement was imminent; requesting continuances to research and prepare motions that were never filed; and not timely obtaining the reporter’s transcripts of the first trial.
Assuming, arguendo , the accuracy of defendant’s recitation
of his counsel’s failings, the fundamental problem with
defendant’s argument is that, based on the record before us, we
cannot say as a matter of law that these problems demonstrate “a
systemic ‘breakdown in the public defender system[.]’” (
Brillon
,
supra
,
Butler
,
DeCasas
, and
Vasquez
, upon which defendant relies
heavily, do not compel a different result. In each of those cases,
the Court of Appeal agreed with a superior court’s determination
that the due process right of a defendant in an SVP case to a
timely trial had been violated, requiring the dismissal of the
petition. (
Butler
,
supra
,
And, in both DeCasas and Vasquez , a superior court’s specific factual finding that a systemic breakdown had occurred in the public defender’s office was reviewed under the deferential Although we need not evaluate the merits of each of defendant’s contentions, we do question some of the inferences made by defendant. For instance, that defense counsel ultimately did not file the motions that it requested time to research and prepare does not necessarily mean that the requests were unreasonable or, worse, pretextual. We also find some of defendant’s examples speculative.
abuse of discretion standard. (
DeCasas
,
supra
, 54 Cal.App.5th
at pp. 801, 810;
Vasquez
,
supra
, 27 Cal.App.5th at pp. 54 – 55, 71 –
74; see also
People v. Peterson
(2020)
In all three cases, because a motion to dismiss or a petition for a writ of habeas corpus was filed and related evidentiary hearings were held, the appellate record regarding the exact causes of the delays was far more developed than we have here. ( Butler , supra , 55 Cal.App.5th at pp. 634 – 637; DeCasas , supra , 54 Cal.App.5th at pp. 800 – 801; Vasquez , supra , 27 Cal.App.5th at pp. 52 – 54, 73.)
This case is more like
Williams
,
supra
,
The Supreme Court explained that its “specific focus . . .
must be on whether a
systemic
breakdown ha[d] occurred, not on
whether any particular attorney or attorneys performed
deficiently.” (
Williams
,
supra
,
“[I]n the absence of evidence identifying
systemic
or
institutional
problems and not just problems with individual
attorneys,” the Supreme Court was “unable to conclude on direct
appeal that the delay experienced by [the] defendant resulted
from a breakdown in the public defender system.” (
Williams
,
supra
,
We, too, are bound by
Brillon
, as well as by
Williams
.
Without a more developed factual record, we cannot make a
determination whether the defense delays were justifiable, or
“ w hether the lack of progress was attributable to each attorney’s
own inability to properly manage or prioritize his or her caseload,
or whether the performance of individual attorneys was
indicative of unreasonable resource constraints, misallocated
resources, inadequate monitoring or supervision, or other
systemic problems.” (
Williams
,
supra
,
ii. The prosecution Defendant “ acknowledges that the district attorneys assigned to the case often expressed their readiness for trial and expressed displeasure with the long delays primarily caused by [defendant] ’s attorneys.” He nevertheless faults the prosecution wi th failing to make “ any formal motions to relieve the public defender or to compel the trial court to set a timely trial date. ”
Overall, the prosecution diligently prosecuted this matter and nothing in the record suggests that it engaged in deliberate delay tactics or acted in bad faith. Defendant does not specify what steps the prosecution could have taken “to compel the trial court to set a timely trial date[,]” and we need not engage in speculation.
iii. The trial court Defendant holds the trial court “fully responsible for virtually all the delays in [his] case.” He points to various examples, including “passively grant[ing] continuance after continuance”; not setting firm trial deadlines; allowing defense counsel to repeatedly waive time over an extended period without requiring defendant to appear in court; and failing to encourage the filing of a motion for another court reporter to work on the first trial transcripts.
Defendant also contends that the Department of State
Hospitals failed to produce timely evaluations. Even if such
delays could properly be charged to the prosecution, the record
before us is insufficient to assess whether the delays were
justifiable. (See
Jameson v. Desta
(2018)
We do not find reversible error in the specific examples raised by defendant — either individually or cumulatively.
“Defense counsel’s lack of progress put the trial court in a
difficult position.” (
Williams
,
supra
,
Under these circumstances, the trial court was not directly
responsible for the delays. (See
Williams
,
supra
, 58 Cal.4th at
p. 251;
Vasquez
,
supra
,
3. Defendant’s assertion of his right Defendant made numerous demands to speed up the proceedings and objections to his counsel’s requests for continuances. Notwithstanding several occasions where defendant agreed to the continuances, this factor weighs in defendant’s favor. (See Barker , supra , 407 U.S. at pp. 531 – 532 [“The defendant’s assertion of his speedy trial right . . . is entitled *31 to strong evidentiary weight in determining whether the defendant is being deprived of the right”].)
4.
Prejudice to defendant
We assess prejudice in v iew of three “ interests of
defendants which the speedy trial right was designed to
protect ”— namely, “ (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.”
(
Barker
,
supra
,
Nearly 11 years of pretrial incarceration is undoubtedly
oppressive and would do little to minimize the anxiety and
concern of the accused. (Cf.
Williams
,
supra
,
We do not find, however, that “defendant suffered the ‘most serious’ type of prejudice”— that is, “ the inability to adequately prepare his defense [citation.] ” ( Williams , supra , 58 Cal.4th at p. 236.) Defendant argues that because, at one point, a state evaluator opined that defendant was not an SVP but later “ changed his mind and testifi ed as a rebuttal witness[,]” a total of four evaluators testified against defendant “ instead of the two there would have been had [defendant] been brought to trial at an earlier time. ” While this may have affected the overall weight of the evidence against defendant at trial, he does not explain — nor can we discern — how this impeded his ability to adequately prepare his defense.
W e “recognize that excessive delay presumptively
compromises the reliability of a trial in ways that neither party
*32
can prove or, for that matter, identify.” (
Doggett v. United States
(1992)
5. Balancing of factors T he length of the delay and defendant’s assertion of his right weigh in his favor. The other factors do not. As discussed above, the various continuances were almost entirely at the request of the defense and, to the extent that they were granted to allow defense counsel time to prepare or for new evaluations to be completed, they were intended for defendant’s direct benefit. We are not reviewing a factual finding of a systemic breakdown of the public defender system, and we make no such finding independently. Defendant must therefore bear responsibility for the delays. And, because defendant has not demonstrated that his ability to prepare his defense was adversely affected by the delays, he has not shown that he suffered the most serious form of prejudice.
Balancing these factors , defendant’s due process right to a timely trial was not violated.
D. Analysis of the Mathews factors We address the Mathews factors in the following order: the private interest affected, the risk of erroneous deprivation of that private interest, and the government’s interest. And, we apply a balancing test to determine whether defendant’s due process right was violated, as we did when evaluating the Barker factors.
1.
Private interest affected
Defendant was subjected to a significant curtailment of his
liberty during his extended pretrial detention. “The right to be
*33
free from involuntary confinement is fundamental and
deprivatio n of this right requires due process.” (
Bradley
,
supra
,
2. Risk of erroneous deprivation 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. (§ 6601, subds. (d)-(f).) 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.
3.
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] . . . .” (
People v. Superior Court
(
Ghilotti
) (2002)
In his discussion of this factor, defendant does not identity
any additional or substitute procedural safeguards that could
have been employed. (See
Mathews
,
supra
,
4. Balancing of factors We reach the same conclusion weighing the Mathews factors as we did with the Barker factors: Defendant’s right to due process was not violated.
Any risk of an erroneous deprivation of defendant’s liberty was reasonably mitigated by the procedural requirements of the SVPA . The state’s compelling interest in protecting society from the risk defendant posed to it is entitled to significant weight and tips the scales in favor of our finding that defendant was provided with all the process that he was due.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS. _____________________, J. ASHMANN-GERST We concur:
________________________, P. J.
LUI
________________________, J.
CHAVEZ On August 6, 2013,
Notes
[7] the trial court asked how McManus would like to proceed. McManus responded that, because defendant had only been at Coalinga for about four months, he was “ still settling in [.]” McManus wanted to put the case over for three months. He acknowledged that defendant was “anxious to go to trial,” but stated that there were other issues involved. The trial court scheduled the next hearing for November 2013 and commented: “I would like to get this case moving as I k now [defendant] would as well.” November 5, 2013, hearing Defendant did not appear on November 5, 2013. McManus stated that there were some possible grounds for filing a motion
[7] At some point prior to August 6, 2013, defendant apparently filed, in propria persona, a petition for a writ, arguing that the trial court did not have jurisdiction over him because he was a citizen of another country. That writ was denied by a different judge in November 2013.