Opinion
NOT TO BE PUBLISHED
ORIGINAL PROCEEDINGS; writ of mandate. Super. Ct. No. RIC303164, Jeffrey Prevost, Judge.
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
McKINSTER, Acting P. J.
In this matter we have reviewed the petition and the opposition thereto, which we conclude adequately address the issues raised by the petition. We have determined that resolution of the matter involves the application of settled principles of law, and that issuance of a peremptory writ in the first instance would cause undue delay in resolving this action. We therefore issue a peremptory writ in the first instance. (Code Civ. Proc., § 1088; Palma v. U.S. Industrial Fasteners, Inc. (1984) 36 Cal.3d 171, 178-179; Alexander v. Superior Court (1993) 5 Cal.4th 1218, 1222-1223, disapproved on another groundin Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 724, fn. 4.)
The People seek a writ of mandate directing the trial court to vacate its order dismissing a recommitment petition filed pursuant to the Sexually Violent Predator Act (SVP Act or SVPA) (Welf. & Inst. Code, § 6600 et seq.). We grant the mandate petition, finding that the real party in interest cannot now claim that the extensive delays in the proceeding violated his due process rights where his and his attorney’s actions are largely responsible for those delays.
All further statutory references are to the Welfare and Institutions Code unless otherwise indicated.
The SVPA does not specify a time by which the trial must be commenced or concluded, and the statutory scheme does not require that the recommitment order be obtained before the expiration of the underlying term. (Orozco v. Superior Court (2004) 117 Cal.App.4th 170, 179 (Orozco).) Despite this absence of time limits, an inordinate delay may violate due process rights. (Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1170, fn. 5 (Litmon I); see also Orozco, at pp. 181-182 (conc. opn. of Klein, P. J.).) Thus, despite the absence of a statutory time frame, the trial court should attempt to resolve the matter within a reasonable time and without unnecessary delay. (Litmon I, at p. 1172.)
In Orozco, there was a substantial delay in bringing the matter to trial and the issue, as here, is whether the delay deprived Orozco of due process. The court concluded that the delay was attributable to Orozco’s counsel or Orozco himself. After repeated delays, Orozco waited until after the expiration of what would have been the first recommitment term to file a dismissal motion on the ground that the delay had deprived the trial court of jurisdiction to proceed. “The motion was meritless because, as explained, the SVP Act does not specify the time within which the recommitment trial must occur. Obviously, trial on a recommitment petition should occur within a reasonable time after the probable cause hearing. (§ 6602.) Surely the Legislature did not contemplate the lengthy delay that occurred here. The trial court should not have acquiesced in the leisurely manner in which this matter was approached by the parties. Section 6602 provides that once probable cause has been determined, the trial court ‘shall order that a trial be conducted.’ It follows the trial court should ensure the matter proceeds to trial within a reasonable time following the probable cause hearing. Nonetheless, the delay herein did not deprive the trial court of jurisdiction to proceeds on either petition. The remedy for the delay is not dismissal but rather, an order directing that the matter proceed to trial forthwith.” (Orozco, supra, 117 Cal.App.4th at p. 179.)
The court also found that Orozco, by his conduct, waived the issue of delay in bringing the matter to trial. It noted that the only time that he had raised the issue of timeliness was two years before when he refused to waive the time for a probable cause hearing on the first recommitment petition. The trial court had properly overruled that objection because the statutes do not specify a time frame within which that hearing must be held. (Orozco, supra, 117 Cal.App.4th at p. 179.)
In contrast, People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon II) held that extensive delay could require dismissal as a matter of due process. The facts of that case are similar to the extent that there were delays so that a trial did not take place at all in the “first” two-year period—that is, a petition to extend a commitment from 2002 through 2004 never got heard; the People filed a petition to extend commitment from 2004 through 2006, and proceeding was delayed. (Id. at pp. 390-391.) The court’s ruling in Litmon II was based specifically on the fact that once a trial date was finally set, the People moved to continue it yet again due to what could be described as a People’s blunder. The Litmon II court concluded that the People’s proffered justification for the delay was inadequate to excuse a further delay of retrial given the magnitude of the liberty interest at stake. The court was also concerned that there had already been one mistrial, suggesting that Litmon might in fact not be a sexually violent predator (SVP). It indicated that the “norm” should be to get a SVP case to trial at least within the proposed extension term. It was clearly very concerned about what it described as the “systemic” delays in the SVP system. (Id. at p. 403.)
Litmon II analyzed the due process issue using Barker v. Wingo (1972) 407 U.S. 514, relating to criminal cases, and also Matthews v. Eldridge (1976) 424 U.S. 319, which governs civil deprivations such as civil commitment or termination of government benefits. Both involve a balancing test in determining whether due process has been violated. Relevant factors under Mathews include nature of private interest, risk of error through the procedures used, value of additional safeguards, and cost. (Litmon II, supra, 162 Cal.App.4th at pp. 396, 399-401.) The Barker analysis includes consideration of the length of delay, reason for delay, defendant’s assertion of his right and prejudice. (Litmon II, at p. 398.) Using either analysis, Litmon II reached the same conclusion that the respondent had been denied due process. (Id. at p. 405.)
Litmon is distinguishable from the facts of our case, which more closely resemble those in Orozco. Here, the trial court made an express finding that the majority of the delays in the proceeding were attributable to real party in interest or his attorney, but it nevertheless felt that the People had not brought the case within a reasonable time. We believe this conclusion is contradictory and unjustly shifts the entire onus for the delays onto the People. While the People have a duty to prosecute diligently their SVP petition, the trial court also has a duty to calendar the trial as expeditiously as possible. (Litmon I, supra, 123 Cal.App.4th at p. 1172; Orozco, supra, 117 Cal.App.4th at pp. 181-182 (conc. opn. of Klein, P.J.).) Real party in interest either requested or agreed to the many delays and therefore must be held to have waived his objection. We are not suggesting that a defendant loses the right to object after causing some minor delay in the proceedings, but a consideration of the entire record of the proceedings shows that the extensive delays in this case were largely attributable to real party in interest.
DISPOSITION
Let a peremptory writ of mandate issue directing the Superior Court of Riverside County to set aside its order dismissing the recommitment petition and to issue a new order denying real party in interest’s motion to dismiss. The superior court is directed to proceed expeditiously in bringing this action to trial.
Petitioner is directed to prepare and have the peremptory writ of mandate issued, copies served, and the original filed with the clerk of this court, together with proof of service on all parties.
We concur: RICHLI J., KING J.