Opinion
B289917
08-03-2020
THE PEOPLE, Plaintiff and Respondent, v. JOSE BARRCENA, Defendant and Appellant.
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, David E. Madeo, Kathy S. Pomerantz and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Los Angeles County Super. Ct. No. ZM011828) APPEAL from an order of the Superior Court of Los Angeles County. Douglas W. Sortino, 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, David E. Madeo, Kathy S. Pomerantz and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.
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Following a jury trial in April 2018, defendant and appellant Jose Barrcena was committed to the custody of the California Department of State Hospitals (DSH) pursuant to the Sexually Violent Predator Act (the SVP Act; Welf. & Inst. Code, § 6600 et seq.). Defendant does not challenge the sufficiency of evidence in support of the verdict or otherwise argue any errors occurred during trial. His sole contention on appeal is that the 11-year delay in bringing his case to trial violated his constitutional right to due process. A defendant in an SVP proceeding has no speedy trial right, but is entitled to due process protections. Defendant argues in the alternative that his appointed trial counsel was ineffective for failing to file a pretrial motion to dismiss on those grounds.
While defendant's case was pending in the lower courts, DSH was established and took over operation of the five state mental health facilities formerly under the authority of the Department of Mental Health.
We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was convicted, pursuant to a plea agreement, of committing a lewd act upon a child in violation of Penal Code section 288, subdivision (a) and sentenced to three years in prison. The charges arose from a series of assaults defendant committed against his nine-year-old victim over several months in 2003.
On June 15, 2007, before defendant completed his sentence, the district attorney's office filed a petition pursuant to the SVP Act to have defendant declared a sexually violent predator and committed to a state mental health facility for treatment.
Since this appeal rests solely on the claim that defendant's trial was delayed in violation of his constitutional rights, we review in detail the pretrial proceedings and the circumstances of the continuances of the dates set for trial.
At the arraignment, deputy public defender Michael Towne was appointed defendant's counsel. The court found the SVP petition and supporting medical evaluations contained sufficient facts to warrant the setting of a probable cause hearing. Defendant waived his statutory right to have the hearing held within 10 days.
The contested probable cause hearing was held October 31, 2007. Doctors Michael Musacco and Nancy Rueschenberg, the two psychologists designated by DSH to evaluate defendant, testified that defendant suffered from pedophilia and met the criteria for classification as a sexually violent predator. The court found probable cause to proceed to trial. The court ordered defendant to remain in DSH custody pending trial in accordance with the statutory scheme. The parties stipulated to a pretrial hearing in February 2008.
At the February 2008 hearing, a deputy public defender made a special appearance to advise the court that Mr. Towne had left the office and Omar Hazel would be replacing him as defendant's assigned counsel. Because Mr. Hazel was unavailable that date, counsel requested a continuance to July. Thereafter, the pretrial hearing was continued from July to December 2008 with an order for the evaluators to provide updated reports.
On December 9, 2008, the prosecutor advised the court that Dr. Rueschenberg, in the course of updating her report, changed her opinion and no longer believed defendant met the criteria for commitment as a sexually violent predator. In Dr. Musacco's opinion, defendant still met the criteria. The court granted the prosecutor's request for a continuance to January 2009.
In accordance with the statutory requirements (Welf. & Inst. Code, § 6601, subd. (e)), two additional doctors were designated to evaluate defendant in light of the split of opinion between Drs. Musacco and Rueschenberg. The new doctors, commonly referred to as "difference of opinion" evaluators, were Drs. Selby and Webber. After interviewing defendant, Dr. Selby found defendant met the SVP criteria, and Dr. Webber did not.
At a status hearing in March 2009, the prosecutor advised the court there was the possibility of "a disposition short of a trial." The parties stipulated to a continuance of the pretrial hearing to May.
On May 6, 2009, the court was advised there would be no pretrial disposition. Mr. Hazel requested several months to complete his preparation for trial. The court granted a continuance to August 2009.
The parties stipulated to three more continuances through February 2010, during which time Mr. Hazel sought the appointment of experts to independently evaluate defendant. At one of the hearings, the matter was continued because Mr. Hazel had been in a car accident.
Between February and May 2010, the parties stipulated to two continuances, advising the court they were discussing the need for updated reports, and Mr. Hazel intended to file a motion in light of the November 2009 decision in In re Ronje (2009) 179 Cal.App.4th 509 (Ronje). Ronje held the protocol being used by SVP evaluators was invalid and defendants were entitled to request new evaluations under the new 2009 protocol, as well as a new probable cause hearing. (Id. at pp. 513-514.)
In May 2010, Mr. Hazel filed a written waiver of appearance signed by defendant that stated he had "discussed [his] right to be present at all stages of these proceedings, including [his] right to a speedy trial with [his] attorney, Omar Hazel." Defendant began appearing in court, for most hearings, by video conference in 2012.
Mr. Hazel also filed a motion pursuant to Ronje. The motion was granted on August 4, 2010. The court ordered that new evaluations of defendant were to be conducted in accordance with the updated protocol and set a status hearing for October to schedule a new probable cause hearing.
From October 2010 through July 2011, the matter was continued multiple times by stipulation of the parties, apparently because the new evaluations had not yet been completed. In July 2011, the new evaluations were still not done but the probable cause hearing was scheduled for January 2012 in anticipation of their completion.
The probable cause hearing was continued to July 2012 after the new evaluations by Drs. Musacco and Rueschenberg again came back split, with Dr. Musacco standing by his original assessment that defendant met the criteria of a sexually violent predator and Dr. Rueschenberg concluding he did not. Due to various scheduling issues, the probable cause hearing was continued an additional two weeks to August 2 and 3, 2012.
At a status hearing on July 11, 2012, deputy public defender Terry Shenkman made her first appearance on behalf of defendant. The record does not contain any discussion of why Mr. Hazel was no longer handling the case. Ms. Shenkman told the court she had a discussion with defendant and she was permitted to express his understanding that the probable cause hearing would need to be continued again to afford her time to become familiar with his case. Ms. Shenkman expressed concern when the court explained there were no open dates on the court's calendar for almost a year. After further discussion with the parties regarding scheduling conflicts, the court continued the probable cause hearing to July 8, 2013, with July 19 and August 30 set aside for additional testimony if necessary.
In November 2012, Ms. Shenkman told the court she discovered that difference of opinion evaluations had not been ordered following the split decisions issued by Drs. Musacco and Rueschenberg in their post-Ronje evaluations. The court ordered the difference of opinion evaluations to be arranged.
In April 2013, Ms. Shenkman expressed her concern that no doctors had yet evaluated defendant. The court ordered the prosecutor to contact DSH "immediately" to ensure the evaluators interviewed defendant. By May 30, the prosecutor reported that the DSH case coordinator had the difference of opinion evaluations "in process." The court converted the July 8 start date for the probable cause hearing into a status conference and let stand the August dates in case the reports became available and the probable cause hearing could proceed as scheduled.
On July 9, 2013, the parties notified the court that the reports had not been received but were forthcoming. Ms. Shenkman reported she was told by DSH staff that the difference of opinion evaluators (Drs. Grosso and Goldberg) had both found that defendant met the SVP criteria and that the reports would be forwarded shortly. The court denied Ms. Shenkman's motion to continue the probable cause hearing.
On August 1, 2013, Ms. Shenkman advised the court that the interviews of defendant by Drs. Grosso and Goldberg had not been audiotaped as ordered by the court. The court granted a brief continuance of the probable cause hearing and ordered the interviews to be redone and recorded.
Before the next scheduled appearance, the Supreme Court issued its decision in Reilly v. Superior Court (2013) 57 Cal.4th 641 (Reilly) which overruled Ronje to the extent it failed to require a showing that any error in an evaluation conducted pursuant to the erroneous protocol was material. (Reilly, at p. 655 ["By requiring that assessment protocol errors must rise to the level of materiality, we ensure that meritorious petitions can proceed, while mandating reevaluation, and possible dismissal, where their merit is in doubt."].)
Between August 28, 2013 and March 2014, several continuances were granted to allow defendant time to file a motion demonstrating material error in accordance with Reilly. Some of the continuances were due to Ms. Shenkman being on medical leave, and others were due to scheduling difficulties with Dr. Abbott, the appointed expert for defendant.
The prosecutor filed a motion requesting an order setting the case for trial in light of Reilly. In June 2014, the court, agreeing with the prosecutor, denied defendant's request to proceed with another probable cause hearing, concluding that under Reilly, defendant had failed to show any material error and therefore the original probable cause finding remained valid. The parties were ordered back in July for trial setting.
On July 25, 2014, Ms. Shenkman requested a continuance because she and her superiors were discussing whether to file a writ petition challenging the court's ruling denying the second probable cause hearing. Additional continuances were granted to accommodate Ms. Shenkman's request to take the depositions of Drs. Grosso and Goldberg.
In December 2014, Ms. Shenkman reported the public defender's office had lost staff and was suffering from a general "lack of resources" which, combined with a heavy caseload, was impacting her ability to get the depositions taken.
In February 2015, the parties reported that the evaluation by Dr. Goldberg was stale and needed to be updated and that Dr. Grosso was no longer on the DSH panel and needed to be replaced. The prosecutor said he would request the update and the replacement evaluator.
By August 2015, the new evaluations were still not completed. After a lengthy discussion between the court and counsel, the prosecutor said "I apologize for what is obviously a lack of diligence on my part." He promised to speak with DSH and get the requests processed. At the next hearing several weeks later, the prosecutor reported that Dr. Goldberg was updating his report and that Dr. Yanofsky had been designated to replace Dr. Grosso. Both reports were expected to be completed by the end of October.
The parties appeared in November 2015, with defendant appearing by video. The reports from Drs. Goldberg and Yanofsky had been received, but not the recorded interviews of defendant on which they were based. Ms. Shenkman noted again that her office had suffered staff reductions and she was not sure when her schedule would permit her to try the case but thought the latter half of 2016 was possible. When asked by the court if defendant agreed to delay trial into 2016, defendant said yes.
In March 2016, a new prosecutor assumed responsibility for the case and advised the court she needed time to get up to speed. Both counsel expressed concern about their heavy caseloads. The court scheduled a status hearing for May.
At the May 5, 2016 hearing, Ms. Shenkman expressed concern that all the evaluators' reports would be stale by the time the case could be set for trial since neither she nor the prosecutor had any openings in their schedules for months. Ms. Shenkman said defendant was "not pressuring [her] to rush to trial" and therefore requested some additional time to prepare a motion setting forth the bases for why the pre-Ronje evaluations were the correct ones on which to proceed to trial.
Ms. Shenkman filed her motion in June. After a lengthy argument, the court denied the motion to reinstate the pre-Ronje evaluators. Ms. Shenkman filed a writ of mandate in this court challenging the denial. The writ was denied (case No. B277787).
In December 2016, defendant was assigned another deputy public defender, Sally Soher, after Ms. Shenkman was reassigned to a different unit. Ms. Soher requested several continuances through May 2017 in order to become familiar with the file. Defendant, appearing by video at each hearing, agreed to Ms. Soher's requested continuances.
At the pretrial hearing on May 11, 2017, Ms. Soher advised the court that defendant expressed his desire "to have his trial in a timely fashion." The court asked defendant, appearing by video, if a trial date of November 7, 2017 was acceptable, and he said yes. A pretrial status hearing was set for July.
On July 25, 2017, deputy public defender Christina Behle assumed representation of defendant. There is nothing in the record explaining why Ms. Behle substituted in for Ms. Soher. The court acknowledged the November trial date and ordered a further status hearing for August.
In August 2017, Ms. Behle told the court her expert was not available until December. The prosecutor and DSH doctors had conflicts in December but were available in early 2018. The court inquired of defendant, appearing by video, if he agreed to have the November trial date postponed to a date in early 2018. Defendant said yes. Thereafter, the parties informed the court they had resolved all of the scheduling conflicts and could proceed to trial on April 9, 2018. Defendant confirmed that continuing his trial to April 9, 2018, was acceptable to him.
Trial by jury proceeded on April 9, 2018. The jury found the petition true and the court issued an order of commitment for defendant. In accordance with the statutory scheme, defendant was remanded to DSH custody for treatment and confinement for an indeterminate term.
This appeal followed.
DISCUSSION
Under the SVP Act, "the state can civilly commit individuals found to be SVPs after they conclude their prison terms." (Reilly, supra, 57 Cal.4th at p. 646; see also Welf. & Inst. Code, § 6600 et seq.) An inmate suspected of being a sexually violent predator must be evaluated prior to the inmate's scheduled release date. (§ 6601, subd. (a)(1).) The evaluation must be performed by two independent evaluators designated by DSH and "[i]f both evaluators concur that the person has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody" (§ 6601, subd. (d)), the director of DSH shall refer the matter to the appropriate district attorney's office or county counsel to decide whether to file a petition (ibid.).
After an SVP proceeding has been commenced by the filing of a petition, the statutory scheme does not specify a time by which trial on the petition must occur. (People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, 57 (Vasquez); People v. Sanders (2012) 203 Cal.App.4th 839, 846 (Sanders).) An SVP proceeding is civil in nature, and the constitutional right to a speedy trial applies only in criminal prosecutions. (Vasquez, at p. 57; Sanders, at p. 846.)
Nevertheless, "[b]ecause civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections." (People v. Otto (2001) 26 Cal.4th 200, 209.) An SVP defendant has a due process right to a timely trial. (People v. Litmon (2008) 162 Cal.App.4th 383, 399 (Litmon).)
In order to define the contours of this right to a timely trial in an SVP proceeding, California courts have looked to "the standards and precedents established in the analogous criminal context for guidance." (Sanders, supra, 203 Cal.App.4th at p. 847.) Courts have applied the tests articulated in Barker v. Wingo (1972) 407 U.S. 514 (Barker) and Mathews v. Eldridge (1976) 424 U.S. 319 (Mathews). (See, e.g., Litmon, supra, 162 Cal.App.4th at pp. 396-399.)
The Barker test requires a balancing of four factors, including the "[l]ength of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." (Barker, supra, 407 U.S. at p. 530.) Mathews, supra, 424 U.S. at page 333, described the fundamental right of due process as the opportunity to be heard at a meaningful time, in a meaningful manner.
The parties do not dispute that 11 years was a long time to await trial. We agree, but we reject defendant's due process claim after a careful balancing of the length of the delay with the other Barker factors.
Defendant did not raise his right to a timely trial until the case had pending for almost 10 years. Barker rejected a rigid rule that would result in a complete forfeiture of the right to a timely trial by failing to demand it. But Barker was nonetheless clear that does not mean "the defendant has no responsibility to assert his right." (Barker, supra, 407 U.S. at p. 528.) Barker's more flexible approach allows for the consideration of the manner, timing and context of the assertion of the right to a timely trial.
In May 2010, defendant signed a waiver of appearance form in which he acknowledged he had been advised of and discussed his right to a timely trial with counsel. Beginning in 2012, defendant appeared by video conference at almost all the hearings. Defendant never raised any concerns about his trial setting until May 11, 2017. At that hearing, for the first time, his attorney told the court that defendant had expressed his desire to "have his trial in a timely fashion."
During that same hearing, when the court asked defendant if he was willing to have his trial scheduled for November 7, 2017, defendant said that was acceptable. When his counsel thereafter sought a continuance to April 2018 due to conflicts with the schedule of the appointed expert, defendant once again agreed to the continuance without hesitation.
Defendant's delay in asserting his timely trial right does not weigh in defendant's favor.
On the issue of prejudice, the 11-year delay here presumptively shows prejudice. Such prejudice weighs heavily in a defendant's favor, but the crucial factor under Barker is the reason for the delay, in other words, who is to blame for the delay. (Barker, supra, 407 U.S. at pp. 534-536.) "Barker instructs that 'different weights should be assigned to different reasons.' " (Vermont v. Brillon (2009) 556 U.S. 81, 90 (Brillon).) Acts of deliberate delay by the prosecution, for obvious reasons, weigh "heavily" against the state. (Ibid.) " '[M]ore neutral reason[s] such as negligence or overcrowded courts' weigh less heavily 'but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant.' " (Ibid.)
The acts of defense counsel, whether privately retained or publicly assigned, are charged to the defendant. (Brillon, supra, 556 U.S. at pp. 90-91.) Assigned counsel, despite being employed by the government, is not considered a state actor. (Ibid.) Therefore, an assigned counsel's "failure 'to move the case forward' does not warrant attribution of delay to the State." (Id. at p. 92.) "A contrary conclusion could encourage appointed counsel to delay proceedings by seeking unreasonable continuances, hoping thereby to obtain a dismissal . . . on speedy-trial grounds." (Id. at p. 93.)
The Supreme Court explained however that "[d]elay resulting from a systemic 'breakdown in the public defender system,' [citation] could be charged to the State." (Brillon, supra, 556 U.S. at p. 94.) Defendant argues that is what happened here. He also contends the prosecutor deliberately delayed requesting updated evaluations in 2015. We disagree.
There is no evidence in this record to support defendant's contention that the prosecution deliberately delayed taking the case to trial. The prosecutor acknowledged a six-month delay in 2015 due to his heavy caseload. The prosecutor had previously requested a brief continuance in late 2008 after Dr. Reuschenberg's updated report indicated her change of opinion of defendant's status, and the prosecutor considered whether a disposition short of trial might be reached. We have no reason to conclude the prosecutor deliberately caused these delays.
In March 2016, there was another three-month delay due to the assignment of a new prosecutor. However, during those three months, Ms. Shenkman had reported her own scheduling conflicts and was working on her motion to clarify who were the appropriate evaluators for trial—issues that prevented the case being set for trial irrespective of the change in prosecutors.
Neither is there evidence in this case of a systemic breakdown at the Los Angeles County Public Defender's Office. Defendant relies on Vasquez in urging us to find otherwise, noting that Ms. Shenkman, the public defender who was assigned to defendant's case from mid-2012 through November 2016, was also assigned to represent Mr. Vasquez during the same time period. (Vasquez, supra, 27 Cal.App.5th at pp. 47-51.)
In Vasquez, the defendant awaited his SVP trial for 17 years. The court held a lengthy evidentiary hearing on the defendant's pretrial motion to dismiss, including testimony from Ms. Shenkman and another deputy public defender. (Vasquez, supra, 27 Cal.App.5th at pp. 53-54.) Based on that extensive record, the trial court made specific findings regarding the "dysfunctional manner in which the Public Defender's Office handled Mr. Vasquez's case" and granted his motion to dismiss. (Id. at p. 54.) Defendant did not move to dismiss the SVP petition in this case, and there is no evidence in this case of a systemic breakdown in the public defender system.
Preparing this case for trial was complicated by numerous factors, including (1) split evaluations that required the designation of additional doctors to provide difference of opinion evaluations, and all of the scheduling difficulties that entailed; (2) the need to replace two evaluators who were removed from the DSH panel and afford the new evaluators time to evaluate defendant and provide replacement reports; and (3) the change in law between Ronje and Reilly and the time required to resolve whether defendant was entitled to a new probable cause hearing.
Although the 11-year delay in getting to trial weighs heavily in defendant's favor in this case, we find defendant consented to every continuance, even after asserting his timely trial right, and there is no evidence of delays deliberately caused by any State actor, including the public defender's office, that would justify dismissal.
We do not consider defendant's alternative argument his appointed counsel was ineffective for failing to file a motion to dismiss. Defendant's claim of ineffective assistance is more appropriately decided in a habeas corpus proceeding. (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266-267.)
DISPOSITION
The judgment is affirmed.
GRIMES, Acting P. J.
WE CONCUR:
WILEY, J.
Justice of the Court of Appeal, Second Appellate District, Division Three, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.