Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; petition for writ of mandate. Richard Todd Fields, Judge. Super. Ct. No. RIC342743
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Petitioner.
No appearance for Respondent.
Gary Windom, Public Defender, and Joseph J. Martinez, Deputy Public Defender, for Real Party in Interest.
OPINION
HOLLENHORST Acting P. J.
INTRODUCTION
The People seek extraordinary relief from an order of the superior court dismissing proceedings under the Sexually Violent Predators Act (the Act or the SVPA) (Welf. & Inst. Code, § 6600 et seq.) against real party in interest Dewayne Jones. We stayed the order of dismissal pending our consideration of the matter. We now conclude that, although we accept the trial court’s findings concerning the essential causes for delay in the specific circumstances of this case, the People should be given one more sharply limited chance to bring the matter to trial. Accordingly, the petition for writ of mandate is granted in part with directions.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
We elect to proceed to the merits and reject real party in interest’s lengthy argument that writ review is inappropriate. First, it is well established that in a case under the SVPA, the People may challenge a pending dismissal by the speedy remedy of a writ petition. (See, e.g., People v. Superior Court (George)(2008) 164 Cal.App.4th 183.) This is in part because, as the dismissal has been temporarily stayed, there is no appealable judgment and, in part, because the public interest in preventing the erroneous release of a dangerous sexual predator is great.
INTRODUCTORY STATEMENT
The issue in this case involves what, in the unscientific experience of this court, appears to be routinely inordinate delays in bringing sexually violent predator (SVP) cases to trial and the reasons for the delays insofar as we can discern them. There is no dispute that real party in interest meets the objective criteria for consideration as an SVP—that is, he has suffered the requisite sex-related convictions, which in his case happen to relate to children. (See § 6600, subd. (a)(1).) At the expiration of his latest incarceration related to these convictions, real party in interest agreed to an involuntary two-year commitment to Atascadero State Hospital. This occurred on July 21, 2000.
At the end of his term, real party in interest was paroled, but was revoked twice for child-related incidents.
The People filed a petition to recommit real party in interest on June 27, 2002. (§ 6004, as then effective.) Trial was held in March 2004, and the jury found real party in interest to be an SVP. A new commitment ensued.
The Act has been substantially amended so that now commitments, rather than running for a renewable period of two years, are indeterminate. (§ 6604, as currently effective.) These amendments were made by Proposition 83, approved by the electorate in November 2006. Similar provisions were contained in Senate Bill No. 1128.
Within a few months, a second recommitment petition (third overall) was filed on July 1, 2004. In July 2006, a third (fourth overall) recommitment petition was filed, although there had been no trial on the second. Neither of the latter two has been tried, with the result that real party in interest, whose second commitment expired in 2004, has now spent over five years in custody since the last jury finding that he was an SVP and, in fact, five years since the expiration of the recommitment term that began in 2002 (although trial was not held until 2004). At the time real party in interest’s motion to dismiss was filed, it had been four and one-half years since the 2004 petition was filed.
In fact, a fifth petition was filed in July 2008.
Real party in interest’s motion to dismiss was based upon the proposition that the delay had reached constitutional proportions. (We will detail the history later.) At the hearing, the trial court summarized the chronology of the case in considerable detail and discussed the legal authorities cited by the parties. It noted that in People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon), the court held that, in the trial court’s words, “pretrial delays... in SVP proceedings cannot be routinely excused by systemic problems, such as understaffed public prosecutor or public defender offices facing heavy caseloads, underdeveloped expert witness pools or insufficient judges or facilities to handle overcrowded trial dockets.” The trial court here then continued, “Boy, I must say when I read that[,] that resonates here. We have [an] overcrowded docket. We have understaffed offices facing heavy caseloads. In particular, we have underdeveloped expert witness pools. This is reflected in the cases I see.... These doctors are very hard to get.... [¶]... I’m truly not blaming anybody... [b]ut the reality is the petition was filed 7/1/04 and it’s now July 28th, ’09... which is an extraordinary period of time and significant.... [¶]... I see it more systemic. Once the case gets continued, it’s hard to get the doctors, even the scheduling, the dates are lengthy because it’s difficult to get these doctors here. And all things considered, I just think it’s not acceptable that the time for the petitions could have expired and yet the person did not have a trial.” (Italics added.) It granted the motion, staying the order of dismissal to permit the People to file this writ.
The court had stressed that the two-year commitment periods allocable to both the third and fourth petitions had elapsed.
This court continued the stay.
HISTORY OF THE CASE
As noted above, the third petition was filed in July 2004. On November 12, 2004, a defense expert was appointed. There followed a series of 21 continuances listed on the docket sheet as “Hearing Re Return of Dr’s Reports,” which lasted until March 29, 2006. After this point, there were a further 27 calendared hearings until the motion to dismiss was filed. Several trial setting hearings ensued, at some of which real party in interest asserted his speedy trial rights; however, as the People pointed out, real party in interest’s attorney admitted that she had not been ready for trial because, as of September 29, 2006, a needed report by a second defense doctor had not been received. Interestingly, on August 25, real party in interest had objected to further delay for the record, but admitted that she was currently in trial on one case with another set to begin on August 30, and that “I anticipate possibly being unavailable due to this other lineup of SVP cases that the Court gave us the other day.” “[W]e’re not likely to get to it until October.” However, according to the docket sheet for October 27, 2006, the matter was continued for “Further Proceedings (Doctor Report)” and no new hearing was held until May 4, 2007. The record provided does not reflect which report—for which side—was then missing.
By the end of May 2007, a probable cause hearing, apparently on the 2006 filing, was on the horizon, but was continued until July 2 at the court’s request because it had a “five defendant attempt murder with five lawyers” preliminary hearing scheduled. On July 2, although the People’s doctors were prepared to testify, the matter had to be continued because one of the doctors had recently prepared an updated report that had not been served on the parties. The second doctor was in the process of doing an updated report, but needed “a few weeks” to finish it. This led to a new date of September 6 for one doctor and September 26 for the other. In any event, this probable cause hearing was not completed until December 14.
No fault can be placed on real party in interest’s counsel for insisting that the hearing not proceed until the current, updated reports were prepared and could be evaluated. Obviously, a vicious circle results when delays in bringing a petition to trial are seen to require, or justify, an updated and current report—which cannot be prepared for many months.
In January 2008, real party in interest apparently made a motion to dismiss and also demurred, targeting the attempt to apply the new indeterminate term to him. (See Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1289 [holding that the new provisions may be applied to SVPs held under a preexisting two-year commitment].) These motions were not heard (and denied) until April 15, 2008. After several more hearings, the court set a trial date for September 8. However, one of the prosecution doctors was not available, so the parties agreed on January 5, 2009. Real party in interest did not object to the continuance at that time; his attorney purported to waive “whatever speedy hearing rights the defendant has.” We note that this attorney, however, was appearing specially for real party in interest’s regular counsel, who was engaged in another trial. The motion to dismiss followed.
DISCUSSION
The most significant cases in this specific area are Orozco, supra, 117 Cal.App.4th 170 and Litmon, supra, 162 Cal.App.4th 383. As in broad terms we agree with the approach and analysis in the latter case, we need not reinvent the wheel with a lengthy discussion of our own. In Litmon, the court applied the meaningful time element of the right to be heard at a meaningful time and in a meaningful manner definition of due process to conclude that the respondent in that case had been deprived of a constitutional right by extended delay. (Litmon, at p. 396.) Although it is not necessary to set out the history of that case in great detail, it is of note that one delay of eight months in setting a trial date was due to the involvement of both attorneys in other cases, and when that point was reached, the prosecutor realized that three out of his four experts would be unavailable because they were subject to previous subpoenae with higher priority. (Litmon, at pp. 393-394.)
It is true that in this case the record does not permit the attribution of a late, egregious, inexcusable delay to the prosecution. However, given the inordinate length of the delay in these matters, we consider it to be appropriate to apply the general analysis of Litmon to this case.
The Litmon court analyzed the “delay” issue under both Mathews v. Eldridge (1976) 424 U.S. 319 (Mathews) (a civil/administrative case involving Social Security benefits) and Barker v. Wingo (1972) 407 U.S. 514 (Wingo) (a criminal case). The former requires the court to perform a “balancing test” including the importance of the private interest affected, the risk of an erroneous deprivation under the subject procedures, and the state’s public interest. (Mathews, at p. 335.) Wingo requires an analysis of prejudice (to be presumed when delay is extensive), the government’s explanation, and the extent to which a defendant has asserted his right to a speedy trial. (Wingo, at p. 528 et seq.) The court’s essential conclusion was that “we firmly believe that the norm to comport with the demands of procedural due process in the context of involuntary SVP commitments must be a trial in advance of the potential commitment term since, under California law, the individual alleged to be an SVP is confined pending final determination of an SVP petition.” (Litmon, supra, 162 Cal.App.4th at p. 401.) It also concluded that “any chronic, systematic postdeprivation delays in SVP cases that only the government can rectify must be factored against the People.... [P]ostdeprivation delays due to the unwillingness or inability of the government to dedicate the resources necessary to ensure a prompt SVPA trial may be unjustifiable.” (Id. at p. 403.)
In our case, we must note that Litmon is distinguishable in that the court was able to point out that the first trial resulted in a deadlocked jury, which allowed the court to stress concerns of “erroneous deprivation.” That is not the case here and, arguably, such concerns are partially allayed by the findings of probable cause. Nevertheless, the egregious delay in this case has clearly exceeded any reasonable time in which to prosecute an SVP petition to completion. This conclusion we consider beyond dispute.
Such findings had, of course, also been made pretrial in Litmon.
The People argue that real party in interest substantially contributed to the delay, and we certainly agree that it is proper to consider the action or inaction of the subject of the petition. We do not in any way suggest that the subject of an SVP petition may drag his feet and attempt to avoid trial, while still claiming that his due process rights have been violated. For example, in Orozco, the Court of Appeal pointed out that “the delay in bringing the matter to trial was attributable to Orozco’s counsel and/or to Orozco himself. Orozco ha[d] never announced that he [was] ready for trial” and noted the “leisurely manner in which this matter was approached by the parties.” (Orozco, supra, 117 Cal.App.4th at p. 179.)
Orozco involved a petition filed in April 2001, and a second petition filed in March 2003; his motion to dismiss on jurisdictionalgrounds was made in June 2003. Thus, the overall delay was substantially less than that involved in our case. (Orozco, supra, 117 Cal.App.4th 174-175.)
As the People point out, there were numerous instances over the years where real party in interest at least acquiesced in continuances—and although real party in interest objected to delays in the middle of 2006, counsel later admitted that she had in fact not been ready for trial. We also note, but discount, the purported “waiver” of any speedy trial rights on September 8, 2008. There is in fact no statutory speedy trial right (see Orozco, supra, 117 Cal.App.4th at p. 178; People v. Superior Court (Ramirez) (1999) 70 Cal.App.4th 1384, 1391) and counsel cannot waive a client’s constitutional speedy trial or due process rights (Townsend v. Superior Court (1975) 15 Cal.3d 774, 781-782).
The rule is generally stated that counsel cannot waive a constitutional right over the client’s objection. In this case, real party in interest was not present to object because counsel had also waived his right to be present. We very much doubt whether counsel’s “waiver” could validly affect the constitutional rights involved.
However, we find that any pattern of acquiescence does not affect our conclusion that real party in interest’s rights are in the process of being violated. We have noted above that it took approximately a year and one-half for a defense expert to render a report. Several months later elapsed with no action after defense counsel noted that a second report had not yet been received. Hearings were continued when witnesses appeared without having provided their reports or when their appearances could not be scheduled. Dates were lost because the trial court was hearing criminal matters and because defense counsel had a stack of similar cases to try. Even if defense counsel did agree to many of the delays, we are bound to, and do, give great weight to the trial court’s express conclusion that, viewing the case as a whole, the matter(s) did not get to trial because the state had not allocated sufficient resources. Experts were not available, courtrooms were not available, counsel was not available due to the press of cases.
As quoted in Litmon, the United States Supreme Court has stressed that “‘the primary burden [is] on the courts and the prosecutors to assure that cases are brought to trial.’” (Litmon, supra, 162 Cal.App.4th at p. 406, quoting Wingo, supra, 407 U.S. at p. 529.) Absent either a showing of clear complicity or an express waiver by real party in interest of constitutional rights, we can only find that a delay of over four years in prosecuting the 2004 petition to trial is unreasonable, and the delay in prosecuting the 2006 petition also exceeds the presumptive limits set by Litmon. There simply can be no adequate excuse for such delays.
The question of remedy remains. In Litmon, the court ordered dismissal of the pending petitions, but relied in large part on the fact that the most recent delay in the case, of three months, had been indisputably caused by prosecutorial sloppiness in failing to secure the attendance of witnesses—a dereliction that could have been seen as the “last straw.” (Litmon, supra, 162 Cal.App.4th at p. 406.) By contrast, in Orozco, the court found that petitioner—not the Government or any shown lack of resources—had caused much of the delay and found that the proper remedy for any error was simply to order that the SVP petition be tried “forthwith.” (Orozco, supra, 117 Cal.App.4th at pp. 179-180.)
As we have explained, we cannot find that real party in interest “caused” delay for any reason other than the heavy caseloads of his witnesses and counsel, but neither did the prosecutor add to the problem by careless handling of the matter. It is also true that real party in interest was by no means consistent or diligent in asserting his speedy trial/due process rights, as shown by the delayed timing of his eventual motion to dismiss. For these reasons, we have determined that the appropriate remedy should be drawn from Orozco rather than Litmon, and the People should be given a last chance to get the matter to trial.
DISPOSITION
The petition for writ of mandate is granted in part. Let a peremptory writ of mandate issue, directing the Superior Court of Riverside County to commence trial on the 2004 petition within 30 days of the finality of this order, and, if real party in interest is found to be an SVP, to commence trial on the 2006 petition within six months of this order unless the matters have been consolidated.
If these time limits cannot be met, the trial court shall dismiss the petition(s) unless the People establish that further delay is not due to “systemic” causes such as the unavailability of witnesses or counsel.
In all other respects, the petition is denied.
I concur: GAUT J.,
KING, J., Concurring and dissenting.
I concur with the majority’s discussion relative to the unreasonable delay in prosecuting the underlying sexually violent predator (SVP) petitions. I disagree, however, with the conclusion that the petitions must be reinstated.
The majority does not take issue with any of the trial court’s findings. As stated, “we accept the trial court’s findings concerning the essential causes for delay in the specific circumstances of this case....” (Maj. opn., ante, at p. 2.)
And in its discussion of the facts, the majority indicates that “the egregious delay in this case has clearly exceeded any reasonable time in which to prosecute an SVP petition to completion. This conclusion we consider beyond dispute.” (Maj. opn., ante, at p. 8.) And lastly, “[a]bsent either a showing of clear complicity or an express waiver by real party in interest of constitutional rights, we can only find that a delay of over four years in prosecuting the 2004 petition to trial is unreasonable, and the delay in prosecuting the 2006 petition also exceeds the presumptive limits set by [People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon)]. There simply can be no adequate excuse for such delays.” (Maj. opn., ante, at pp. 10-11.) With each of these conclusions, I concur.
The majority however, with no discussion of our standard of review, concludes “that the appropriate remedy should be drawn from Orozco [v. Superior Court (2004) 117 Cal.App.4th 170 (Orozco)] rather than Litmon, and the People should be given a last chance to get the matter to trial.” (Maj. opn., ante, at p. 11.)
SVP proceedings are special proceedings of a civil nature. (People v. Yartz (2005) 37 Cal.4th 529, 535.) As such, the trial court has inherent authority under Code of Civil Procedure section 187 to dismiss an SVP petition for unreasonable prosecutorial delay. (People v. Evans (2005) 132 Cal.App.4th 950, 956-957; see Litmon, supra, 162 Cal.App.4th at p. 406.) We review such a dismissal order under the abuse of discretion standard. (People v. Evans, supra, at pp. 956-957; People v. Tatum (2008) 161 Cal.App.4th 41, 56.) “Where a trial court has discretionary power to decide an issue, we are not authorized to substitute our judgment for that of the trial court. [Citation.] Reversible abuse exists only if there is no reasonable basis for the trial court’s action, so that the trial court’s decision exceeds the bounds of reason. [Citations.]” (Sanchez v. City of Los Angeles (2003) 109 Cal.App.4th 1262, 1271.) “‘“‘“[U]nless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.”’”’” (Roman v. Usary Tire & Service Center (1994) 29 Cal.App.4th 1422, 1430.)
Under existing case law, the trial court had two remedial options relative to the unreasonable delays in prosecuting the petitions. On the one hand, it could follow Orozco and provide a short time frame in which to bring the petitions to trial. On the other hand, it could dismiss the petitions as was done by the appellate court in Litmon, on facts very similar to ours. While the exercise of discretion may vary from judge to judge, I cannot say that the trial court abused its discretion in dismissing the present action. I believe we are simply supplanting our discretion for that of the trial court’s. Because of this, I would affirm the judgment of dismissal.
We also reject real party in interest’s argument that the writ should be denied because the People did not cite Orozco v. Superior Court (2004) 117 Cal.App.4th 170 (Orozco) to the trial court. (See infra for discussion of this case.) Contrary to real party in interest’s assertion, this is not the situation in which a party attempts to raise a completely new issue or factual theory for appellate review and may appropriately be held to have waived the point. (Cf. Mattco Forge, Inc. v. Arthur Young & Co. (1997) 52 Cal.App.4th 820, 847.) The People vigorously opposed the motion to dismiss, both orally and in writing, arguing that the delays did not violate due process and were largely attributable to real party in interest. The fact that the People failed to cite all available legal authority does not bar the presentation of such authority to this court.