Opinion
B295295
02-05-2020
THE PEOPLE, Plaintiff and Respondent, v. LLOYD STRAHAN, Defendant and Appellant.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, 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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. ZM002037) APPEAL from a judgment of the Superior Court of Los Angeles County, Raul Anthony Sahagun, Judge. Affirmed. Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant. Xavier Becerra, Attorney General, Lance E. Winters, Senior Assistant Attorney General, Idan Ivri and Thomas C. Hsieh, Deputy Attorneys General, for Plaintiff and Respondent.
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INTRODUCTION
In 1979, appellant violently raped two young girls. In 1996, the People filed a petition to involuntarily commit appellant as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA), Welfare and Institutions Code sections 6600 et seq. A bench trial on the People's petition was held 22 years later; throughout this period, appellant was committed to a state hospital. While the petition was pending, appellant moved to dismiss it, claiming the lengthy delay violated his due process right to a speedy trial. The trial court denied appellant's motion, and following trial, found appellant to be an SVP and ordered him committed to a state hospital for a two-year term.
Undesignated statutory references are to the Welfare and Institutions Code.
On appeal, appellant argues the trial court abused its discretion in denying his motion to dismiss, and challenges the sufficiency of the evidence to support the finding that he was an SVP. Despite the extraordinary delay in this case, we conclude appellant has failed to establish a violation of his due process right to a speedy trial. We also find that the court's SVP finding was supported by substantial evidence. Accordingly, we affirm.
BACKGROUND
A. Appellant's Underlying Offenses and the SVPA Proceedings
Appellant was convicted of the 1979 rapes of two young girls and sentenced to a total of 25 years in prison. He was released on parole in 1987, but arrested and jailed in November 1995 for a parole violation. In August 1996, the Los Angeles County District Attorney filed a petition under section 6601 to commit appellant as an SVP.
The SVPA defines an SVP as "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).) Though not expressly included in the statutory definition of an SVP, the sexually violent criminal behavior in which the person is likely to engage must be "predatory." (People v. Hurtado (2002) 28 Cal.4th 1179, 1186 (Hurtado).) When the petition in this matter was filed, the SVPA allowed the People to seek to confine and treat an SVP for a two-year period, which could be extended by additional two-year periods upon new petitions and determinations that the person remains an SVP. (Vasquez, supra, 27 Cal.App.5th at p. 58, fn. 15.) "The special proceedings that ensue after the People file [an SVPA] petition are civil in nature, but an SVP defendant is afforded many of the same procedural protections afforded criminal defendants, such as the right to court-appointed counsel and experts, the right to a unanimous jury verdict, the right to testify in one's defense, and the right to have the People prove his or her SVP status beyond a reasonable doubt." (People v. Burroughs (2016) 6 Cal.App.5th 378, 383-384.)
The SVPA defines "predatory" as an act "directed toward a stranger, a person of casual acquaintance with whom no substantial relationship exists, or an individual with whom a relationship has been established or promoted for the primary purpose of victimization." (§ 6600, subd. (e).)
In 2006, the Legislature amended the statute to provide for indeterminate terms of commitment. (People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, 58, fn. 15.) However, the trial court applied a stipulation between the District Attorney, the Los Angeles County Public Defender, and the Los Angeles County Superior Court that all pending initial SVPA petitions filed before the 2006 amendment would be subject to the former statute's two-year commitment term.
As we discuss more fully below, for various known and unknown reasons, the proceedings were repeatedly delayed. In February 2000 and again in November 2010, the trial court found the People's petition was supported by probable cause and ordered that appellant remain in custody at a state hospital. In November 2018, appellant moved to dismiss the petition for violation of his due process right to a speedy trial (Litmon motion). The trial court denied the motion, and the matter proceeded to a bench trial in January 2019.
People v. Litmon (2008) 162 Cal.App.4th 383, 399, 401, 406 (SVPA defendants have due process right to speedy trial, and violation of that right requires petition's dismissal).
B. Evidence at Trial
1. The People's Evidence
a. Appellant's Offenses and Possession of Child Pornography
On four separate occasions over roughly six weeks in 1979, appellant approached young girls and attempted to lure them to follow him under false pretenses. On two occasions, the girls refused to go with him. On the two other occasions, however, the victims (ages seven and nine), followed appellant to secluded locations, where he proceeded to violently rape them, causing each of them severe injuries. Appellant was later arrested and convicted of the two rapes. After his release from prison, appellant absconded from parole three times.
In 2003, a search of appellant's room at Atascadero State Hospital revealed a makeshift "folder" -- two pieces of cardboard sealed together with tape. The folder contained eight pages of drawings, apparently made by another patient, depicting an adult male having "pretty brutal sex" with a very young girl, about four or five years old. Appellant told police he had obtained the folder more than six months earlier and was using it as a writing pad; he denied knowing it contained the drawings. Barbara Nelson, a unit supervisor at the state hospital at the time, testified she recalled seeing appellant with the folder every day, and stated "he was never without it."
In 2013, Dr. William Damon, a state SVP evaluator, interviewed appellant at the state hospital. The interview was recorded and admitted into evidence. During the interview, appellant told Dr. Damon that in the period before his offenses in 1979, he was overwhelmed by stress due to financial and marital problems. He began driving to the park to masturbate in his car while looking at adult pornography. At the park, appellant saw young girls wrestling around with young boys, and because of his "twisted way of thinking" at the time, as he described it, he interpreted the girls' behavior as sexual. Appellant said that he felt more comfortable around children, that he wanted to be close to somebody, and that his anger at his wife "played into it." He claimed he could not really recall his offenses, and only vaguely remembered raping a young girl and having blood on his clothes.
b. Testimony of State SVP Evaluators
Two state SVP evaluators testified about their evaluations of appellant. Dr. Bruce Yanofsky, a clinical and forensic psychologist, evaluated appellant in 2016 and 2018. Because appellant refused to speak with him, Dr. Yanofsky conducted his evaluation based on appellant's records, including the interview with Dr. Damon. Based on his evaluation, Dr. Yanofsky diagnosed appellant with pedophilic disorder under the diagnostic criteria of the Diagnostic and Statistical Manual of Mental Disorders (5th ed. 2013) published by the American Psychiatric Association (DSM-5). According to the DSM-5, a diagnosis of pedophilic disorder generally requires a person to have: "recurrent, intense sexually arousing fantasies, sexual urges or behaviors involving sexual activity with a prepubescent child" for a period of at least six months. (DSM-5, at p. 697.) Dr. Yanofsky based his diagnosis on appellant's 1979 offenses and 2003 possession of child pornography. He opined this conduct showed that over the course of many years, appellant presented with a recurring urge to be sexually involved with prepubescent girls. According to Dr. Yanofsky, attraction to children is "pretty much [a] fixed attraction that is very difficult, if not impossible, to change."
Based on appellant's records, Dr. Yanofsky opined appellant was likely to engage in sexually violent predatory criminal behavior because of his pedophilic disorder. Dr. Yanofsky applied the "Static-99R," an actuarial instrument used to measure the likelihood of recidivism for sexual offenders. While appellant's score represented an "average" risk of reoffense, Dr. Yanofsky believed he was in the "high risk" category based on certain factors the Static-99R did not reflect, such as the type of offense committed, the degree of violence employed, and other individual characteristics.
Dr. Robert Owen, a clinical psychologist, also evaluated appellant in 2016 and 2018. He, too, relied on appellant's records and interview with Dr. Damon, as appellant refused to speak with him. Applying the diagnostic criteria of the DSM-5, Dr. Owen diagnosed appellant with pedophilic disorder during both evaluations. He based this diagnosis on appellant's 1979 offenses and 2003 possession of child pornography. He explained that appellant's pattern of luring the victims before committing his offenses showed his crimes were planned and not impulsive. Because the child pornography appellant possessed depicted acts similar to appellant's offenses, Dr. Owen stated that "this is the thing he seems to enjoy . . . this is the kind of thing that arouses him . . . ." He then explained that pedophilia is "really [a sexual] orientation, it's not just kind of a here and now sexual interest."
Dr. Owen opined appellant would pose a substantial risk of engaging in sexually violent predatory behavior if released. While his application of the Static-99R suggested a below average level of risk, Dr. Owen "overr[ode]" this result based on appellant's individual characteristics, including his parole violations and refusal to participate in treatment while in state hospitals, as his records reflected.
2. Defense Evidence
Dr. Brian Abbott, a forensic psychologist, testified about his evaluation of appellant. Dr. Abbott reviewed appellant's relevant records and interviewed him in 2018. He opined there was a lack of credible evidence that appellant currently suffered from pedophilic disorder. He further believed "the weight of the information . . . would contradict that [appellant] even suffered from it in 1979, when he committed the child molestations." Dr. Abbott noted there was no evidence appellant had a sexual interest in prepubescent children before 1979, when he was 32 years old, and stated pedophiles develop that interest by early adulthood. He stated that appellant's sexual history reflected a preference for adult sexual partners, which was "contradictory" to a diagnosis of pedophilic disorder. Dr. Abbott assumed appellant was unaware of the content of the folder containing the child pornography in 2003. But he suggested his opinion would not change even if appellant had been aware of the material, because there was no indication of appellant's sexual interest in prepubescent children before the 1979 offenses, between 1979 and 2003, or after 2003.
Dr. Abbott opined appellant's 1979 offenses were not motivated by pedophilic disorder, but by "non-pedophilic reasons related to the sexualized [expression] of anger and other troubling emotions he was experiencing at the time." Dr. Abbott conducted a Static-99R risk assessment of appellant, assuming for purposes of the assessment that appellant had a diagnosed mental disorder. According to Dr. Abbott, appellant's score meant that when considering his current age of 72, he had only a 1 percent chance of reoffending within five years.
Dr. Vianne Castellano, a clinical forensic psychologist, testified about her evaluation of appellant from November 2016 to November 2018, during which she interviewed him about eight times. Based on her evaluation, Dr. Castellano believed appellant did not have a predisposing sexual disorder such as pedophilia. She explained that the roughly six-week period during which appellant committed his 1979 offenses was insufficient to satisfy the DSM-5's requirement of a six-month period of recurrent fantasies, urges, or behaviors involving sexual conduct with prepubescent children. Dr. Castellano stated it was clinically incorrect to combine a person's sporadic conduct over a period of years to satisfy the six-month requirement. She opined that a diagnosis of pedophilic disorder was unsupported because it generally develops in late adolescence, whereas there is no evidence of appellant's attraction to prepubescent children before his 1979 offenses, when he was 32.
In Dr. Castellano's view, appellant was a "situational offender." She explained such offenders "commit a very abhorrent act that is out of character and hasn't existed before and hasn't existed since the discrete crime" due to a confluence of certain factors. While Dr. Castellano concluded appellant did not suffer from pedophilic disorder, she diagnosed him with disruptive mood dysregulation disorder, a depressive disorder that manifests in irritability and disproportionate temper outbursts.
C. The Trial Court's SVP Finding and Judgment
Following trial, the court found appellant was an SVP and ordered him committed to the Department of State Hospitals for a two-year term. The court accepted the state evaluators' opinions that appellant suffered from pedophilic disorder, relying in part on appellant's 2003 possession of child pornography.
As relevant here, the trial court rejected the defense's claim that appellant was unaware of the material in the makeshift folder. The court found the evidence to the contrary was "overwhelming," recalling that appellant had the folder for more than six months and was "never without it," and noting that the drawings depicted "the very same conduct that he had been convicted of." The court considered appellant's possession of this material strong evidence of his continuing sexual interest in prepubescent children: "Why would he keep [the drawings] for six months? Anyone who doesn't have that predilection would be disgusted with that and would toss them away. There would be no way you would have those in your possession. Especially having been convicted of that, there is no way that you run the risk of being caught with these . . . . the only reason you would have it is because you are prepared to run that risk, [because] you get such gratification from that . . . ."
Appellant timely appealed.
DISCUSSION
Appellant claims that the trial court abused its discretion in denying his Litmon motion, and that the evidence was insufficient to support the finding that he was an SVP. We address his contentions in turn.
A. Due Process Right to a Speedy Trial
1. Background
Appellant contends the trial court's failure to provide him a speedy trial on the SVPA petition denied him due process. The People filed the petition in August 1996, and the trial court appointed the public defender's office to represent appellant. The record contains no reporter's transcripts for the period between the filing of the petition and 2007, and omits transcripts for many of the remaining hearings. The trial court's minute orders reflect numerous continuances from August 1996 to January 2000. Most of those minute orders indicate "time is waived," and the rest reflect no objection by appellant to the continuances. Numerous minute orders show the proceeding was repeatedly continued from February 2000 to May 2007. The defense requested many of those continuances, purported to waive time for others, and objected to none.
In May 2007, the public defender's office declared a conflict, and the court appointed a bar panel attorney to represent appellant. The parties stipulated to several continuances until August 2008, when the court granted the People's request for a continuance because one of the state's evaluators became ill and needed to be replaced. The court continued the proceeding several more times by stipulation, until January 2010, to allow the parties to obtain expert reports.
Under section 6601, subdivision (d), an SVPA commitment petition must be supported by the assessment of two practicing psychiatrists or psychologists designated by the Director of the State Department of State Hospitals.
In December 2009, appellant filed a propria persona habeas petition in the California Supreme Court, claiming the delay in his proceedings violated his due process rights. The Court denied this petition in August 2010. In the interim, the trial court set the matter for trial in February 2010. In February 2010, after the trial court empaneled a jury, appellant asked the court to relieve his counsel, complaining that counsel had not been communicating with him. The court held a closed hearing, at which counsel denied failing to communicate with appellant. Counsel further revealed that appellant had refused to speak with the state's evaluators, and that as a result, it had been difficult for counsel to find willing experts to testify in his defense. Appellant expressed a willingness to represent himself if the court would not appoint new counsel, but was unprepared to proceed to trial at that time. The People then offered to agree to a continuance in exchange for appellant's waiver of his right to a jury, agreement to speak to the state evaluators, and waiver of time. Appellant agreed, and the court granted his motion to relieve his counsel and, at appellant's request, appointed new counsel to represent him.
At the next hearing, in May 2010, appellant's new counsel requested additional time to prepare, and the matter was continued to August. In August, the trial court granted defense counsel's request for new state evaluations and a new probable cause hearing because the existing evaluations were invalid under the recent Court of Appeal decision in In re Ronje. In November 2010, the trial court held a new probable cause hearing, and again found the People's petition was supported by probable cause.
In re Ronje (2009) 179 Cal.App.4th 509, 513 [Department of State Hospital's current assessment protocol was invalid, requiring new assessments and probable cause hearing], disapproved in part in Reilly v. Superior Court (2013) 57 Cal.4th 641.
The record is scant on the reasons for delay over the next four years, but it shows several continuances granted at the defense's request or by stipulation. In October 2014, appellant filed a motion to dismiss the petition or exclude certain witnesses for alleged discovery violations relating to documents on which the state evaluators relied in preparing their reports. The court denied the motion, but suggested defense counsel could obtain requested documents by deposing the evaluators.
The matter was again continued several times, either at the defense's request or by stipulation, until March 2018. At that time, defense counsel reported that one of the defense experts had not yet interviewed appellant but was expected to do so later that month. In April 2018, the parties still did not have all of the expert reports they were awaiting, and stipulated to an additional continuance. Noting the age of appellant's case, the People asked to verify that appellant, who was not present at the hearing, agreed to the continued delay, and requested that the court find good cause for the continuance. The court replied that it had "no reason to believe [appellant] has any objection to this" and proceeded to find good cause for the delay. Defense counsel offered no response.
Several more months passed with stipulated continuances. During this time, the parties and the trial court continued to discuss discovery-related issues that had not been resolved. In September 2018, the court again suggested that defense counsel obtain the documents he sought by deposing the state evaluators, and set trial for November.
On the day set for trial, appellant filed his Litmon motion, asserting a violation of his right to a speedy trial. The court continued the trial date to January 2019 by stipulation, and held a hearing on appellant's motion. At the hearing, defense counsel claimed that the public defender's office had intentionally delayed the proceedings while it represented appellant, and that the People's discovery violations also caused substantial delay. Counsel asserted he had attempted to schedule depositions for the state evaluators, but the assistant district attorney who represented the People at the time failed to return his phone calls, and even failed to appear with the evaluators for a scheduled deposition. The trial court denied the Litmon motion, noting that "virtually all of the continuances were made either at the request of [appellant] or by way of stipulation," and finding that there was no "systemic breakdown" that warranted attributing the delay to the state. As to defense counsel's contention that the People's discovery violations caused delay, the court noted the availability of enforcement mechanisms, such as motions to compel, which counsel had failed to use.
As noted, in January 2019, the trial court held a bench trial on the SVPA petition and ultimately found appellant to be an SVP.
2. Analysis
We review a trial court's ruling on a motion to dismiss for prejudicial pretrial delay for abuse of discretion. (Vasquez, supra, 27 Cal.App.5th at p. 55.) "Under an abuse of discretion standard, '"[t]he trial court's findings of fact are reviewed for substantial evidence, its conclusions of law are reviewed de novo, and its application of the law to the facts is reversible only if arbitrary and capricious."'" (Ibid.)
"The SVPA does not specify a time by which a trial on a commitment proceeding under the SVPA must be commenced or concluded. [Citation.] Though the [Sixth Amendment] right to a speedy trial applies only in criminal prosecutions, the federal due process clause extends to involuntary civil commitments under the SVPA and requires a hearing '"'at a meaningful time and in a meaningful manner.'"' [Citation.]" (People v. Sanders (2012) 203 Cal.App.4th 839, 846-847 (Sanders).) Thus, although SVPA commitment proceedings are distinct from criminal proceedings, we look to the standards established in the analogous criminal context for guidance. (Sanders, supra, at p. 847.)
In Barker v. Wingo (1972) 407 U.S. 514 (Barker), the United States Supreme Court established a balancing test to analyze criminal defendants' claims of speedy trial rights violations under the Sixth Amendment. "The Barker test involves a weighing of four factors: length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant." (U.S. v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency (1983) 461 U.S. 555, 564.) These factors are "related . . . and must be considered together with such other circumstances as may be relevant." (Barker, supra, at p. 533.) "The burden of demonstrating a speedy trial violation under Barker's multifactor test lies with the defendant." (People v. Williams (2013) 58 Cal.4th 197, 233 (Williams).) Courts have applied this framework to consider claims of undue delay in the context of SVPA proceedings. (See, e.g., Vasquez, supra, 27 Cal.App.5th at pp. 60-81; People v. Landau (2013) 214 Cal.App.4th 1, 31 (Landau); Litmon, supra, 162 Cal.App.4th at pp. 404-406; Page v. Lockyer (9th Cir. 2006) 200 Fed. Appx. 727; Yahn v. King (N.D.Cal. Jan. 6, 2016, No. C-13- 0855 EMC (pr)) 2016 U.S.Dist. LEXIS 1213, at *19 [lower courts assessing speedy trial claims in civil commitment proceedings "have repeatedly turned to the law of speedy trial rights in the criminal context -- especially [Barker] -- for guidance[,] as it is the most appropriate analogy"].) Accordingly, we turn to consider the application of the Barker factors to appellant's claim.
Vasquez, supra, 27 Cal.App.5th at pp. 81-82, Landau, supra, 214 Cal.App.4th at p. 33, and Litmon, supra, 162 Cal.App.4th at p. 399, included parallel analyses under the due process framework of Mathews v. Eldridge (1976) 424 U.S. 319 (Mathews). While we do not discuss the Mathews test in detail, as explained below, we reach a similar conclusion under both Mathews and Barker.
a. Length of the Delay
"The first Barker factor, the length of the delay, encompasses a 'double enquiry.' '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] . . . . If the accused makes this showing, the court must then consider . . . the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. [Citation.]'" (Williams, supra, 58 Cal.4th at p. 234.) Respondent concedes the 22-year delay from the filing of the SVPA petition to trial triggers an analysis under Barker. We agree, and further conclude this extraordinary delay weighs against the People. (See Vasquez, supra, 27 Cal.App.5th at p. 61 [17-year delay triggers Barker inquiry and weighs against the state].)
b. Appellant's Assertion of His Right to a Speedy Trial
"The defendant's assertion of his speedy trial right . . . is entitled to strong evidentiary weight in determining whether the defendant is being deprived of the right." (Barker, supra, 407 U.S. at pp. 531-532.) '"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.'" (Williams, supra, 58 Cal.4th at p. 238.)
Appellant's briefs on appeal contain no discussion of this factor; nor did his motion to dismiss the petition in the trial court contain analysis of this issue. These failures alone suffice to weigh this factor against him. (See Sviridov v. City of San Diego (2017) 14 Cal.App.5th 514, 521 (Sviridov) [failure to present reasoned argument constitutes forfeiture]; Perez v. Grajales (2008) 169 Cal.App.4th 580, 591-592 (Perez) [contentions not raised below are forfeited]; cf. Williams, supra, 58 Cal.4th at p. 233 [defendant has the burden to establish speedy trial violation].)
Regardless, our examination of the record leads us to the same conclusion. Appellant never objected to any continuance as unjustified or as a violation of his rights. In over 22 years from the filing of the petition to his trial, appellant made only two, belated assertions of his right to a speedy trial. The first was his propria persona habeas petition in December 2009 -- approximately 13 years after the proceeding began. Our Supreme Court denied this petition in August 2010. Appellant's second assertion of his rights came more than eight years later, in November 2018, on the day set for trial, when his counsel filed the motion to dismiss the SVPA petition. Several months earlier, however, in April 2018, defense counsel offered no protest when the court stated it had no reason to believe appellant objected to the continued delay. These responses to the extraordinary delay in the proceedings are not indicative of a sincere desire for a speedy trial, and appellant's assertion of his right is therefore entitled to little weight. (See Williams, supra, 58 Cal.4th at p. 238; Landau, supra, 214 Cal.App.4th at p. 37 [affirming denial of motion to dismiss where defendant asserted his rights only shortly before trial, five and a half years after SVPA proceeding began]; cf. Litmon, supra, 162 Cal.App.4th at p. 405 [reversing denial of motion to dismiss where defendant "strongly opposed" nine-month continuance, filed motion to dismiss before new trial date, and filed another motion to dismiss when the People sought another continuance].)
c. Prejudice to Appellant
Courts must assess the prejudicial effect of pretrial delay in light of the interests the speedy trial right was designed to protect. (Williams, supra, 58 Cal.4th at p. 235.) "Barker recognizes several kinds of harm that may result from pretrial delay, "including 'oppressive pretrial incarceration,' 'anxiety and concern of the accused,' and 'the possibility that the [accused's] defense will be impaired' by dimming memories and loss of exculpatory evidence." (Doggett v. U.S. (1992) 505 U.S. 647, 654 (Doggett), quoting Barker, supra, 407 U.S. at p. 532.) "Of these forms of prejudice, 'the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system.'" (Doggett, supra, quoting Barker, at p. 532.)
The delay in appellant's SVPA proceeding caused him obvious prejudice: he spent about 22 years in oppressive pretrial confinement at state hospitals. (See Vasquez, supra, 27 Cal.App.5th at p. 64 [17-year delay from filing of petition caused oppressive period of pretrial confinement]; Litmon, supra, 162 Cal.App.4th at p. 400 [defendant's "extended confinement without any determination that he [is] an SVP" results in an irretrievable loss of liberty, "regardless of the outcome of trial"]; cf. Williams, supra, 58 Cal.4th at p. 235 ["We have no difficulty concluding, even in light of the complexity of the case and the need for adequate preparation, that being jailed without a trial for seven years is 'oppressive'"].)
While we recognize this prejudice to appellant's interests, we note that appellant does not argue that the delay impaired his ability to prepare his case -- "the most serious" form of prejudice. (Doggett, supra, 505 U.S. at p. 654.) He does assert, however, that the long delay allowed the People to present evidence of his conduct at the state hospital long after the SVPA petition was filed. But speedy trial rights are aimed at preventing impairment of the defense by the natural consequences of the passage of time, i.e. "dimming memories and loss of exculpatory evidence." (Doggett, supra, 505 U.S. at p. 654.) The happenstance discovery of additional adverse evidence, detrimental to the defense as it may be, is not the type of harm these rights are meant to prevent. (Cf. Litmon, supra, 162 Cal.App.4th at p. 405 [enactment of new law during defendant's pretrial delay changing SVP commitment periods from two-year terms to indeterminate term was "not the type of fundamental unfairness that procedural due process is aimed at preventing"].)
d. The Reasons for the Delay
"In the Barker analysis, the reason for the delay is the 'flag all litigants seek to capture.'" (Williams, supra, 58 Cal.4th at p. 239, quoting U.S. v. Loud Hawk (1986) 474 U.S. 302, 315.) Under Barker, "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.) Importantly, "delays sought by [assigned] counsel are ordinarily attributable to the defendants they represent." (Williams, supra, 58 Cal.4th at p. 245.) However, "any chronic, systematic post-deprivation delays in SVP cases that only the government can rectify must be factored against the People." (Litmon, supra, 162 Cal.App.4th at p. 403.)
Appellant fails to show that any substantial delay resulted from reasons chargeable to the People. The first 13 years after the filing of the SVPA petition are largely a black box. The record reflects a multitude of continuances for unknown reasons, either on the motion of appellant's counsel, by stipulation, or without attribution. Appellant did not object to a single continuance. According to defense counsel's statements at the closed hearing on appellant's motion to relieve him, appellant hindered counsel's efforts to prepare his defense by refusing to speak with the state's evaluators, making it difficult for counsel to enlist experts in his defense. Appellant contends this period reflects "'chronic, systematic' delays or 'breakdowns'" that we must weigh against the People, yet he fails to explain this assertion or support it with record citations. He has therefore forfeited any contention in this regard (see Sviridov, supra, 14 Cal.App.5th at p. 521 [arguments not developed are forfeited]), and cannot show that any delay was chargeable to the People.
In February 2010, trial was set to begin, and a jury was empaneled, but appellant asked the court to relieve his counsel. He was unprepared, however, to proceed to trial without counsel at that time, and therefore agreed to waive his right to a jury, speak to the state's evaluators, and waive time in exchange for the People's agreement to continue the trial. This agreement resulted in a six-month delay to allow appellant's new counsel to prepare a defense. This delay is attributable to appellant. (See Williams, supra, 58 Cal.4th at p. 240 [defendant was responsible for delay where he waived time to allow counsel to prepare for trial].) Defense counsel's August 2010 request for new state evaluations and a new probable cause hearing under In re Ronje resulted in an additional three-month delay. This relatively brief delay to allow the state to comply with intervening caselaw was reasonable and justified, and is thus not properly held against the People. (See Barker, supra, 407 U.S. at p. 531.)
The record is again largely silent on the reasons for the delay in the next several years, but shows multiple continuances either at defense counsel's request or by stipulation. Appellant makes no argument as to the period from the second probable cause hearing in November 2010 to the start of the discovery dispute in 2014. He does claim, however, that the remaining delay resulted almost entirely from the People's discovery violations and other dilatory practices. Again, however, appellant fails to provide additional explanation or record citations in support of this assertion, and has therefore forfeited his argument. (See Sviridov, supra, 14 Cal.App.5th at p. 521 [arguments not developed are forfeited]). In fact, the record shows that as late as March 2018, one of appellant's experts had not yet interviewed him, meaning he was unready for trial regardless of any discovery issues. We cannot discern from the record what delay, if any, resulted from the parties' discovery dispute. To the extent discovery issues caused any significant delay, we agree with the trial court that appellant may not complain of this delay, given his failure to use available enforcement procedures to compel discovery and advance the proceeding. (See Gallenkamp v. Superior Court (1990) 221 Cal.App.3d 1, 18 ["We find a certain incongruity in parties who complain of delay they are aware of, but do nothing to alleviate its effects"].) Thus, appellant fails to identify a period of unjustified delay chargeable to the People.
Considering all the relevant factors, the trial court did not abuse its discretion in finding no violation of appellant's speedy trial rights. We acknowledge that the delay in this case was extraordinary and that appellant suffered prejudice attendant to his prolonged pretrial confinement. However, appellant failed to object to even a single continuance, and his lack of diligence in asserting his rights did not suggest a sincere desire for a speedy trial. Even more important, appellant fails to establish any period of unjustified delay attributable to the People or the justice system. We find no error in the trial court's conclusion under these circumstances. (See Landau, supra, 214 Cal.App.4th at p. 27 [affirming denial of Litmon motion despite seven-year delay; vast majority of delays were at defendant's request or with his consent, and remainder were either justified or relatively short]; cf. Litmon, supra, 162 Cal.App.4th at pp. 404-406 [eleven-month delay in brining SVPA petition to retrial violated due process where defendant strongly opposed continuances and filed two motions to dismiss in close proximity, and delay was due in part to district attorney's negligence]; Vasquez, supra, 27 Cal.App.5th at p. 74 [17-year delay following SVPA petition violated due process where final two- to three-year delay was caused by "systemic breakdown in the public defender system," and defendant ultimately objected to his own counsel's request for continuance].)
We would reach the same result under the Mathews framework, used to determine what procedures due process requires in various contexts. In assessing the timeliness of post-deprivation review, this framework requires consideration of three factors: "the importance of the private interest and the harm . . . occasioned by delay; the justification offered by the Government for delay and its relation to the underlying governmental interest; and the likelihood that the interim decision may have been mistaken." (Federal Deposit Ins. Corp. v. Mallen (1988) 486 U.S. 230, 242, citing Mathews, supra, 424 U.S. at pp. 334-335.)
We have discussed the prejudice to appellant from his lengthy pretrial confinement. In December 2018, the likelihood the probable cause findings as to appellant might have been mistaken was minimal: the trial court had twice found the petition to be supported by probable cause after contested hearings, and all the state evaluators concluded appellant qualified as an SVP. (Cf. Landau, supra, 214 Cal.App.4th at p. 36 [risk of erroneous deprivation not substantial where trial court had found probable cause, despite lack of contested hearing and one state evaluator's opinion that defendant was not SVP].) Finally, as discussed, appellant either requested or consented to much of the delay, and the record reveals no unjustified delay attributable to the People, who had a strong interest in continuing to seek the commitment of an alleged SVP. As in the Barker analysis, the reasons for the delay are particularly important in the Mathews analysis. (See Landau, at pp. 36, 41 [considering only unconsented delay under Mathews]; Litmon, supra, 162 Cal.App.4th at p. 404 [suggesting initial nine-month delay did not violate due process absent showing it was due to systemic problems rather than commonplace trial-scheduling challenges].) Given these circumstances, under Mathews, too, the trial court did not abuse its discretion in denying appellant's Litmon motion. (See Landau, at p. 36; Litmon, at p. 404.)
B. Sufficiency of the Evidence
Appellant contends the evidence was insufficient to support the trial court's finding that he was an SVP. In reviewing the sufficiency of the evidence to support a commitment under the SVPA, "courts apply the same test as for reviewing the sufficiency of the evidence to support a criminal conviction.'" (People v. Mercer (1999) 70 Cal.App.4th 463, 466.) "Thus, [we] must review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] To be substantial, the evidence must be '"of ponderable legal significance . . . reasonable in nature, credible and of solid value."'" (Ibid.)
To establish that a person is an SVP, the People must prove beyond a reasonable doubt that: (1) he has been convicted of a sexually violent offense against one or more victims; (2) he has a diagnosed mental disorder; and (3) his disorder makes it likely he would engage in sexually violent predatory conduct if released. (See § 6600, subd. (a)(1); Hurtado, supra, 28 Cal.4th at p. 1182.) To prove the second element, the existence of a diagnosed mental disorder, the People relied on the expert testimony of Drs. Yanofsky and Owen, who opined that appellant suffered from pedophilic disorder, as defined in the DSM-5. Appellant argues this conclusion was unsupported by the record and therefore could not support the trial court's finding. (See People v. Wright (2016) 4 Cal.App.5th 537, 545 [an expert's conclusion based on speculative, remote, or conjectural factors or on unsupported assumptions "'cannot rise to the dignity of substantial evidence'"].)
Appellant maintains the evidence was insufficient to permit the conclusion he had "recurrent" sexual fantasies, urges, or behaviors involving prepubescent children for at least six months, as required under the DSM-5. He points to dictionary definitions of the word "recurrent" as "occurring or appearing again, especially repeatedly or periodically" (Dictionary.com, <https://www.dictionary.com/browse/recurrent> [as of November 2019]) or "returning or happening time after time," (Merriam-Webster.com, <https://www.merriam-webster.com/dictionary/recurrent> [as of November 2019]), and claims the evidence suggested he had only "transient" sexual urges involving young children.
Initially, appellant claims the experts could rely only on his conduct during the six-week period in 1979, when he raped two children and approached two others with similar intentions but was unsuccessful. He contends the experts could not rely on evidence of his 2003 possession of child pornography for two reasons. First, he asserts there was no evidence he had viewed or was aware of the relevant drawings. We disagree. Appellant possessed concealed child pornography depicting acts similar to his 1979 offenses. He told police he had obtained the makeshift folder containing the drawings more than six months earlier. According to Nelson, a unit supervisor at the state hospital, she saw appellant with the folder every day -- "he was never without it." The factfinder was entitled to infer that appellant knowingly possessed this material. (Cf. People v. Llamas (1997) 51 Cal.App.4th 1729, 1743 [evidence supported that defendant knowingly possessed firearm; defendant was observed opening hood of wife's car where gun was found, and jury could reject wife's testimony that she had hidden it there without his knowledge].)
Second, appellant notes the discovery of the material came years after the filing of the SVPA petition, and implies that experts may only rely on pre-petition data. Appellant never raised this contention below, and he fails to explain it or support it with authority in his briefs on appeal. He has therefore forfeited the argument. (See Sviridov, supra, 14 Cal.App.5th at p. 521; Perez, supra, 169 Cal.App.4th at pp. 591-592.) Moreover, forfeiture aside, the contention that experts may consider only prepetition data makes little sense, as "commitments under the SVPA must be based on the defendant's 'current mental condition.'" (People v. Hubbart, (2001) 88 Cal.App.4th 1202, 1219; accord, § 6600, subd. (a) [defining SVP as person who "has a diagnosed mental disorder" (emphasis added)].)
Appellant additionally argues that even considering his 2003 possession of child pornography, the evidence revealed only a series of isolated incidents suggesting sexual fantasies, urges, or behaviors involving prepubescent children: One cluster of incidents during a six-week period in 1979, and another isolated incident in 2003. However, appellant's possession of child pornography in 2003 was not an isolated incident. As noted, the evidence showed appellant possessed the concealed material for more than six months and "was never without it," all while his SVPA proceeding was pending. This evidence alone suggests appellant had recurrent and intense sexual urges involving prepubescent children for more than six months. As the trial court explained: "Why would he keep [the drawings] for six months? Anyone who doesn't have that predilection would be disgusted with that and would toss them away. . . . Especially having been convicted of that, there is no way that you run the risk of being caught with these [drawings]. . . . the only reason you would have it is because . . . you get such gratification from that . . . ."
Moreover, that the drawings depicted acts involving very young girls, consistent with appellant's 1979 offenses, suggested his sexual interest in prepubescent girls was persistent. As Dr. Owen stated, "this is the kind of thing that arouses him." Dr. Owen further explained that pedophilia is "really [a sexual] orientation, it's not just kind of a here and now sexual interest." Similarly, Dr. Yanofsky explained it is "pretty much [a] fixed attraction that is very difficult, if not impossible, to change."
This testimony, together with evidence of appellant's 1979 offenses and conduct and his 2003 possession of the child pornography, permitted the factfinder to conclude appellant had the requisite "recurrent" sexual fantasies, urges, or behaviors involving prepubescent children. The evidence therefore supported the conclusion of Drs. Yanofsky and Owen that he suffered from pedophilic disorder. Accordingly, substantial evidence supported the trial court's finding that appellant was an SVP.
DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.
MANELLA, P. J.
We concur:
COLLINS, J.
CURREY, J.