Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC425180. Ronald L. Taylor, Judge (Retired judge of the Riverside Superior Court, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.)
Rod Pacheco, District Attorney, and Alan D. Tate, Deputy District Attorney, for Plaintiff and Appellant.
R. Charles Johnson, under appointment by the Court of Appeal, for Defendant and Respondent.
Plaintiff and appellant, the People, appeal from judgment entered following the trial court granting defendant Warren D. Whaley’s motion to dismiss the People’s petition for commitment of Whaley (defendant) as a sexual violent predator (SVP) under Welfare and Institutions Code section 6600.
OPINION
Gaut J.
The People contend the trial court abused its discretion in dismissing the case on due process grounds for the delay of over three years in trying the case. The People argue that most of the continuances in trying the case were caused by or acquiesced in by defense counsel and defendant was not prejudiced by the delays. The People assert that the proper remedy for inappropriate delay was not dismissal but rather initiating immediate trial of the petition.
We conclude there was no abuse of discretion in granting the motion to dismiss, and affirm the judgment.
1. Factual and Procedural Background
Without summarizing each and every trial court proceeding (approximately 53) and the reasons for each continuance, we note that this court has considered the nature and reasons for continuing each court hearing to the extent the record permits such review. There is no reporter’s transcript of some of the hearings, which prevented this court from determining precisely why such matters were continued. The following is a summary of the proceedings leading to dismissal of the commitment petition.
In 1999, defendant, who was 68 years old at the time, pled guilty and was convicted of three counts of molesting two children in 1998. Defendant kissed a six-year-old boy on the lips and fondled the boy’s seven-year-old sister’s genital area.
On February 2, 2005, before defendant’s prison release date of February 28, 2005, the People filed a petition for commitment of defendant as a SVP under section 6600, et seq.
On February 25, 2005, the court found that defendant was likely to engage in sexually violent predatory criminal behavior upon his release. As a consequence, the court ordered defendant maintained in the custody of a secured facility. The court appointed Dr. Charles Jackson as a medical expert for defendant. Dr. Jackson evaluated defendant and submitted a report dated March 18, 2005, stating that defendant could be safely and effectively treated on an outpatient basis and did not meet the criteria as an SVP. Dr. Harry Goldberg also evaluated defendant under section 6600 and concluded in a report dated September 26, 2004, that defendant did meet the criteria as an SVP. A third evaluator, Dr. Dana Putnam, also concluded in a report dated January 19, 2005, that defendant met the criteria as an SVP.
On March 24, 2005, defendant filed a motion to dismiss the commitment petition on the ground he did not qualify as an SVP. The motion was denied the following day.
At the probable cause hearing on March 25, 2005, the court determined there was probable cause to believe defendant was likely to engage in sexually violent predatory criminal behavior upon his release. The court set the trial on the involuntary commitment petition on June 6, 2005. The court ordered that, pending the trial on the petition, defendant was to be maintained in the custody of Atascadero State Hospital (ASH).
Due to defense counsel and the prosecutor being in trial on another matter, defendant’s trial was continued several times. There were also several continuances in which it is unclear from the record as to why the matter was continued. On July 15, 2005, when the trial was continued to July 22, 2005, defense counsel objected to the continuance.
At the hearing on July 22, 2005, defense counsel informed the court that defendant’s medical expert, Dr. Jackson, had moved to the east coast. Defense counsel stated she was ready and available to try the case. The court continued the trial and there were additional delays caused by the need to appoint a new defense medical expert. The court made several attempts to appoint another defense medical expert, with delays arising from appointed doctors declining because the amount paid by the court was too little or the appointed doctor no longer provided such services.
At the trial readiness conference (TRC) on August 12, 2005, defense counsel announced she was ready and available to try the case, but the prosecutor was not. Defense counsel objected to continuing the trial and moved to dismiss the petition, which the court denied. The court stated it was unavailable because it was trying another case. The trial was continued again. On August 16, 2005, the prosecution stated that her expert witness, Dr. Putnam, was on vacation from August 12 to the 26th. Therefore the prosecution was not ready for trial. Defense counsel vehemently objected to continuing the trial and noted the trial had already been continued numerous times.
At the TRC on August 26, the parties announced ready for trial. The trial court announced the presiding judge had ordered that the trial courts were not to begin any SVP trials because of criminal court congestion. The trial was continued numerous times thereafter due to court congestion and because counsel for the prosecution and defendant, as well as the court, were in trial on other priority cases which the court deemed a higher priority than defendant’s case. Defense counsel repeatedly objected to the continuances and delay in trying defendant’s case.
On September 2, the court stated there were no courtrooms available and SVP proceedings were suspended due to criminal court congestion. Defense counsel objected to continuing the trial and moved to dismiss the case. The court denied the motion and once again continued the trial. Defense counsel requested defendant sent back to ASH because he was elderly, with high blood pressure and diabetes, and was not getting the medical treatment and medication he needed for his diabetes in the jail.
After several more continuances, on September 23, 2005, the court noted that the court currently was trying a case and there was a back log of last-day criminal trials, which meant it was unlikely the courtroom would be available until December 1, 2005. The court continued the proceedings many more times and continued to attempt to appoint a defense medical expert, resulting in additional delays.
Finally, on April 14, 2006, the court succeeded in appointing a defense medical expert, Dr. Abdulmumin. Thereafter the proceedings were continued several times to allow Dr. Abdulmumin to evaluate defendant, obtain defendant’s medical records, and submit a report.
At the TRC on August 18, 2006, defense counsel announced ready and available for trial, but stated she was scheduled to start another trial the following Monday, the same day the instant case was set for trial. The court ordered that the case would trail the other cases defense counsel would be trying in the courtroom. The prosecutor noted that there were five other cases also trailing. Defense counsel noted the case was “way overdue for trial,” as were the other cases. The case was continued numerous times due to the court giving priority to other criminal and SVP cases.
On September 29, 2006, defense counsel objected to the court setting two other cases for trial before the instant case. Defense counsel argued defendant should go to trial since he was “geriatric” and medically fragile. Defendant noted he had prostate cancer. The court stated that defendant’s case was on the priority list but there were other priority cases that had to be tried first.
Defense counsel objected to continuing defendant’s trial beyond the following Tuesday and moved to dismiss the case for failure the delay in trying the case. Defense counsel noted the delay was attributable to a round of back-to-back criminal cases, which lasted several months, and there was only one department trying “SVP, MDO, and NGI extension matters.” The court agreed it had been “overwhelmed with criminal cases that have necessitated this Court’s calendar being preempted by criminal matters, custody and in-custody, that have statutory constitutional priority over these cases. And that’s the reason it’s been continued so many times.... That’s why it is now on the priority list,...” The court denied defendant’s motion to dismiss.
Up until November 2006, the trial court was continued the trial several more times because of the need to try other cases first. Defense counsel continued to object.
On November 17, 2006, the court took the case off the trial calendar at the request of defense counsel due to significant changes in the SVP laws that defense counsel believed could potentially affect defendant’s case. As a consequence, defense counsel announced she was no longer ready to try the case. Defense counsel argued defendant was prejudiced by the delay in trying his case because it had resulted in the failure to try the case before the changes in the law, which were adverse to defendant. Defense counsel claimed defendant would not have qualified as an SVP under the previous law. Defense counsel stated she intended to file some motions. She also requested the court not to order defendant transported to court because he had had heart and cancer surgery, was beaten up by sheriff deputies while in the jail, and was in a wheelchair. The court set a TRC for December 15, 2006.
The proceedings thereafter were continued numerous times over an eight- to nine-month period due to defense counsel and the prosecutor requesting continuances in order to research and file motions addressing the new legislation.
On April 6, 2007, defendant filed a motion to dismiss and demurrer to the commitment petition based on the new SVP legislation and unwarranted delay in trying the case. Defendant argued Proposition 83, passed in November 2006, violated his due process and ex post facto rights by changing the SVP statutory framework, including changing the period of commitment of an SVP from two years to an indeterminate term.
On May 10, 2007, the prosecution filed a motion to convert the commitment petition to a petition for an indeterminate term in response to Proposition 83. Proposition 83 created imposition of an indeterminate term for SVP’s, in place of the two-year commitment term. The prosecution asserted that the indeterminate term provision applied retroactively under section 6604.1 and applied to defendant. Defense counsel disagreed.
The hearings on the dismissal and petition conversion motions were continued numerous times, in part, to allow the parties to research and address fully the issues raised in the motions. The record does not indicate the reason for all of the continuances, however.
Finally, on January 11, 2008, nine months after defendant filed his motion to dismiss on April 6, 2007, the court denied the motion. Also, on January 11, eight months after the prosecution filed its motion for petition conversion on May 10, 2007, the court heard and granted the prosecution’s motion for petition conversion. At that time, defendant was 71 years old. The court set a TRC for January 22, 2008. Defense counsel noted the court once again needed to appoint a new defense medical doctor for defendant.
The court continued the TRC several more times. The record does not indicate the reasons for these continuances.
On March 28, 2008, the court appointed another defense medical expert, resulting in additional delay to allow the doctor to evaluate defendant and provide a report. The court also ordered the trial trailed to August 20, 2008.
On June 13, 2008, defendant filed another motion to dismiss due to the delay in trying the petition. The prosecution requested a continuance of the motion on the ground the prosecution was requesting transcripts of all the hearings (53) during which the proceedings were continued. Counsel for the defense and prosecution stipulated to the continuance and the court accordingly ordered the motion hearing continued to July 25, 2008. On July 22, 2008, the prosecution filed opposition, arguing SVP’s do not have criminal speedy trial rights and the delay in trying the petition did not violate defendant’s due process rights.
On July 25, 2008, the court heard and granted defendant’s motion to dismiss but stayed the order until after this court decided the prosecution’s writ petition challenging the trial court’s dismissal order.
In August, after this court denied the prosecution’s writ petition, the trial court lifted the stay and ordered the petition dismissed on the grounds three out of the four evaluating doctors, including the prosecution’s own doctors, opined that defendant was not a danger to society. Defendant was 72 years old, was not ambulatory, and had hypertension, diabetes, congestive heart failure, and prostate cancer. Defendant was thereafter discharged from Coalinga State Hospital.
2. Discussion
The People complain that the trial court did not consider the reasons for each of the continuances but, rather, made a generalized determination that dismissal of the petition was warranted based on the lengthy, three and a half year period of time that had elapsed between the filing of the petition and the hearing on the dismissal motion. The People argue that, had the trial court considered the reasons for each of the continuances, it should have found that defendant was responsible for or acquiesced in most all of the delays. Therefore the delay in trying the petition did not violate defendant’s right to due process. We disagree.
A. The SVP Act
The SVP Act (SVPA) was adopted to prevent the release from prison of dangerous sex offenders at the end of their terms. Under the previous law, there was “no legal authority to detain and treat sexually violent offenders who, because of a mental abnormality or personality disorder, are likely to re-offend once released from prison. Likewise, there is no current way to prevent their release into society.” (The Assembly Committee on Public Safety’s “Bill Analysis Worksheet” of Assembly Bill No. 888 (1995-1996 Reg. Sess.).)
Before revision of the SVPA in 2006, the SVPA provided two-year terms of involuntary civil commitment and treatment of persons who, by a unanimous jury verdict after trial, were found beyond a reasonable doubt to be an SVP. (Former §§ 6603, subds. (a) & (f), 6604; People v. Williams (2003) 31 Cal.4th 757, 764.) An SVP was defined as “a person who has been convicted of a sexually violent offense against two 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.” (Former § 6600, subd. (a).) The qualifying sexually violent offenses were specified in the statute. (Former § 6600, subd. (b).)
In order to extend an SVP’s commitment beyond the initial two-year term, the People had to file a new petition requesting a successive two-year commitment. (Former §§ 6604, 6604.1; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243, fn. 5.) On filing of a recommitment petition, a new jury trial would be conducted. As with the initial commitment trial, the People had the burden to prove beyond a reasonable doubt that the person was currently an SVP. (Former §§ 6604, 6605, subds. (d), (e); Cooley, supra, at p. 243, fn. 5; People v. Ward (2002) 97 Cal.App.4th 631, 634.)
B. Revision of the SVPA
On September 20, 2006, the Governor signed the Sex Offender Punishment, Control and Containment Act of 2006 (“Jessica’s Law”), Senate Bill No. 1128 (2005-2006 Reg. Sess.) (S.B.1128) as urgency legislation that immediately went into effect. (Stats. 2006, ch. 337, § 62.) It amended the SVPA to provide that the initial commitment set forth in section 6604 was for an indeterminate term. (Stats. 2006, ch. 337, § 55.) (Bourquez v. Superior Court (2007) 156 Cal.App.4th 1275, 1280-1281.) The government no longer must prove every two years, beyond a reasonable doubt, that the defendant was still an SVP. Instead, the Department of Mental Health (DMH) must examine the defendant’s mental condition at least once a year and report on whether the defendant remains an SVP. (§ 6605, subd. (a).) As with the initial commitment petition, the defendant may retain, or the court may appoint, a qualified expert or professional person to examine him or her. (Ibid.) If the DMH determines that the person is no longer an SVP, the director must authorize the person to petition the court for unconditional discharge. (§ 6605, subd. (b).)
If the trial court considers the petition and concludes that the person is no longer an SVP, it must conduct a hearing at which the government must prove beyond a reasonable doubt that the person remains an SVP. (§ 6605, subds. (c) & (d).) If the government meets its burden, the person is again committed for an indefinite period. (Id. at subd. (e).) If it does not, the person is discharged. (Ibid.) Alternatively, under the revised SVPA, the defendant may be released upon filing a petition under section 6608 for either conditional release or unconditional discharge.
At the November 7, 2006, general election, Proposition 83 passed. It was an initiative measure, (Deering’s Ann. Welf. & Inst.Code (2007 supp.) appen. foll. § 6604, p. 43) making essentially the same changes to the SVPA as Senate Bill No. 1128, as applicable here.
C. Due Process Analysis
Involuntary commitment to a mental institution is subject to the due process protections of the Fourteenth Amendment. “[C]ivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]” (Addington v. Texas (1979) 441 U.S. 418, 425; see also Vitek v. Jones (1980) 445 U.S. 480, 493-494.) An SVPA commitment “involves a deprivation of liberty, and a lasting stigma.” (People v. Hurtado (2002) 28 Cal.4th 1179, 1194.) Commitment and subsequent recommitment as an SVP is thus subject to due process protections.
The right to notice and a hearing before the deprivation of life, liberty, or property “is central to the Constitution’s command of due process.” (United States v. James Daniel Good Real Property (1993) 510 U.S. 43, 53. “The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner.’” (Mathews v. Eldridge (1976) 424 U.S. 319, 333 (Mathews).)
For an initial civil commitment, due process requires the state prove by clear and convincing evidence both that the person is mentally ill and that the commitment is required for his or her own welfare or for the protection of others. (Kansas v. Hendricks (1997) 521 U.S. 346, 358.) Once the person has been committed, due process permits the state to hold the person only as long as he or she is both mentally ill and dangerous. (Foucha v. Louisiana (1992) 504 U.S. 71, 78; Jones v. United States (1983) 463 U.S. 354, 368.)
Defendant was held in custody for over three years without receiving a trial on the initial commitment petition. While there was a probable cause hearing, there was never a trial on whether defendant qualified as an SVP. A postdeprivation hearing may be justified in situations in which the state must act quickly, or in which the predeprivation process would be impractical. (Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 547.) “An important government interest, accompanied by a substantial assurance that the deprivation is not baseless or unwarranted, may in limited cases demanding prompt action justify postponing the opportunity to be heard until after the initial deprivation. [Citations.]” (FDIC v. Mallen (1988) 486 U.S. 230, 240; see United States v. James Daniel Good Real Property, supra, 510 U.S. at p. 53.)
Even when a postdeprivation hearing is initially justified, “[a]t some point, a delay in the post-termination hearing would become a constitutional violation.” (Cleveland Board of Education v. Loudermill, supra, 470 U.S. at p. 547.) “Unlike the situation where due process requires a prior hearing, there is no obvious bright line dictating when a postseizure hearing must occur.” (United States v. Eight Thousand Eight Hundred & Fifty Dollars (1983) 461 U.S. 555, 562.) In Mathews, supra, 424 U.S. at page 335, the Supreme Court identified three factors that should be considered when determining whether a person has received due process under the United States Constitution: “[F]irst, the private interest that will be affected by the official action; second, the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; and finally, the Government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail.”
Also applicable is the analysis provided in Barker v. Wingo (1972) 407 U.S. 514 (Barker), in which the United States Supreme Court analyzed the right to a speedy trial guaranteed to the accused by the Sixth Amendment to the United States Constitution and explained the criteria by which the speedy trial right is to be judged. The Supreme Court rejected bright-line tests, stating it found “no constitutional basis for holding that the speedy trial right can be quantified into a specified number of days or months.” (Id. at p. 523.) The Supreme Court announced a “balancing test, in which the conduct of both the prosecution and the defendant are weighed.” (Id. at p. 530.) This test “compels courts to approach speedy trial cases on an ad hoc basis” balancing four factors: (1) length of delay, (2) the reason for the delay, (3) the defendant’s assertion of his right, and (4) prejudice to the defendant. (Ibid.) No one of those factors is a necessary or sufficient condition to finding a due process violation. (Id. at p. 533.) “Rather, they are related factors and must be considered together with such other circumstances as may be relevant.” (Ibid.)
Applying Mathew and Barker, the court in People v. Litmon (2008) 162 Cal.App.4th 383, 405-406 (Litmon), reversed an order recommitting the defendant to an indeterminate term as an SVP. The Litmon court concluded the delay in bringing the recommitment petition to trial violated the defendant’s due process rights under both the Mathews due process analysis and the Barker speedy trial analysis.
In Litmon, the defendant, David Litmon, twice filed a motion to dismiss consolidated recommitment petitions, which had already been tried but resulted in a mistrial due to the jury’s inability to reach a decision. Litmon argued in his dismissal motion that the postponement of the retrial of the petitions constituted excessive pretrial delay violating his due process rights. (Litmon, supra, 162 Cal.App.4th at p. 392.) The trial court denied both motions. (Id. at pp. 393-394.)
On appeal, Litmon argued the trial court violated his right to due process and a speedy trial under Mathew and Barker by denying his motions to dismiss the consolidated recommitment petitions. (Litmon, supra, 162 Cal.App.4th at pp. 394-395.) In applying the Mathew analysis, the Litmon court concluded as to the first factor – the private interest that will be affected by the official action – that “[t]he loss of personal freedom, which is the heart of the liberty protected by due process [citation], by forced confinement in a mental institution is many orders of magnitude greater than the suspension of a license or termination of employment.” (Litmon, supra, 162 Cal.App.4th at pp. 399, 400.) This factor thus weighed in favor of the defendant.
As to the second Mathews factor, the risk of an erroneous deprivation through the procedures used, the Litmon court concluded the risk was considerable because the loss of Litmon’s liberty following the date his last order of commitment expired, was “irretrievable regardless of the outcome of trial.” (Litmon, supra, 162 Cal.App.4th at p. 400.)
Here, the risk of erroneous deprivation was even greater since, unlike in Litmon, defendant was held in custody without ever having had a commitment trial and determination that he qualified as an SVP. Although there was an initial probable cause hearing and finding of probable cause in March 2005, the trial was continued for over three years thereafter. As defendant aged during the three and a half year delay in trying the initial petition, his medical condition declined and one of the prosecution’s doctors changed her opinion, concluding defendant no longer posed a danger to the public due to his age and poor medical condition. Over time, there no longer existed any substantial assurance the deprivation was not baseless or unwarranted.
As to the third Mathews factor, the government’s interest, the Litmon court acknowledged that, while the government has a “‘compelling protective interest’” in confining and treating violent sex offenders who cannot control their sexual impulses due to mental disorders, the government has “no interest in the involuntary civil confinement of persons who have no mental disorder or who are not dangerous to themselves or others.” (Litmon, supra, 162 Cal.App.4th at pp. 400-401.) Here, there was evidence that due to defendant’s age and poor medical condition he was not dangerous to others.
After considering the justifications for the delays, the Litmon court stated: “In our view, any chronic, systematic postdeprivation delays in SVP cases that only the government can rectify must be factored against the People. While delays based upon the uncontrollable unavailability of a critical witness may be justifiable [citation], postdeprivation delays due to the unwillingness or inability of the government to dedicate the resources necessary to ensure a prompt SVPA trial may be unjustifiable.... [P]ostdeprivation, pretrial delays in SVPA 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.” (Litmon, supra, 162 Cal.App.4th at p. 403.)
Here, the record is clear that much of the delay in trying the commitment petition, particularly the initial delay before the legislative changes in the SVP laws in the Fall of 2006, were mainly attributable to systemic problems for which the government was responsible. (Litmon, supra, 162 Cal.App.4th at p. 404.)
The delay in trying the commitment petition was also due to the parties’ attempts to construe and implement the new legislative changes in the SVP law. The prosecution filed a motion for conversion of the petition based on the new legislation and defendant filed a motion to dismiss founded on the failure to try the petition before the change in SVP laws. The court permitted lengthy continuances of the hearings (eight to nine months) on both parties’ motions addressing the legislative changes.
We conclude, as the court did in Litmon, that, even if some of the delays were justified, the postponement of the commitment trial for three and a half years cannot be reconciled with the due process principles given defendant’s complete loss of liberty awaiting trial. (Litmon, supra, 162 Cal.App.4that p. 404.)
The Litmon court also applied the Barker speedy trial analysis and reached the same conclusion. (Litmon, supra, 162 Cal.App.4th at p. 405.) The Litmon court found the delay in trying the recommitment petitions was “extensive” and unjustified. (Ibid.) As to an assertion of the right to due process, the Litmon court noted Litmon had filed a motion to dismiss about four and a half months after the April 2006 trial setting, and “strongly opposed” postponement of retrial to January 2007. (Ibid.) The record did not explain the failure to object during that time, and “a belated assertion of a procedural due process right to a speedy SVP trial is entitled to less weight than a prompt assertion of such right.” (Ibid.) Nevertheless, the Litmon court concluded Litmon’s reassertion of his due process rights in his January 2007 motion to dismiss “deserves serious weight.” (Ibid.)
As to prejudice, the Litmon court concluded: “In our view, lengthy postdeprivation pretrial delay in an SVP proceeding is oppressive. In this case, we cannot turn a blind eye to the years of pretrial confinement that have elapsed following expiration of the last ordered term of commitment.” (Litmon, supra, 162 Cal.App.4th at pp. 405-406.)
Here, we conclude the three and a half year delay in trying the commitment petition was extensive and unjustified. Defense counsel repeatedly and consistently objected to the delays, even after the change in legislation. Although defense counsel requested the matter be taken off the trial calendar after the change in legislation, this was for the purpose of bringing a dismissal motion asserting that defendant had been prejudiced by delays in not trying the case before the change in legislation.
The lengthy postdeprivation, pretrial delay in an SVP proceeding was oppressive, even more so than in Litmon, because in the instant case there never was a trial on the initial commitment petition. In this case, “we cannot turn a blind eye to the years of pretrial confinement that have elapsed,” when there never was even a trial on whether defendant actually qualified as an SVP. (Litmon, supra, 162 Cal.App.4th at pp. 405-406.)
On the issue of overcrowded courts, the Litmon court stated: “As the United States Supreme Court has recognized in the context of the constitutional right to speedy trial, ‘the primary burden [is] on the courts and the prosecutors to assure that cases are brought to trial.’ (Barker v. Wingo, supra, 407 U.S. at p. 529.) ‘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.’ (Id. at p. 531.) ‘Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused’s defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun.... Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state’s fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority....’ [Citation.] [¶] The ultimate responsibility for bringing a person to trial on an SVP petition at a ‘meaningful time’ rests with the government. [Litmon]’s fundamental liberty interest outweighed the state’s countervailing interests in postponement of the trial set for January 2007.” (Litmon, supra, 162 Cal.App.4th at p. 406.)
Likewise, defendant’s fundamental liberty interest outweighed the State’s counter veiling interests in delaying trial of the commitment petition, in great part due to overcrowded courts and a shortage of qualified defense medical experts willing to be appointed by the court. Based on Litmon, Mathews, and Barker, we conclude dismissal of the commitment petition was proper and did not constitute an abuse of discretion.
The People’s reliance on Orozco v. Superior Court (2004) 117 Cal.App.4th 170is misplaced. Orozco involves the failure to try a recommitment petition before expiration of the defendant’s initial two-year commitment period. Unlike the instant case, there had already been a trial and finding that the defendant qualified as an SVP and should be committed because he posed a risk to society. While in the instant case there was a probable cause hearing in 2005, the probable cause finding was only a preliminary determination that defendant might qualify as an SVP. In Orozco, the court noted that after a finding of probable cause, “the trial court should ensure the matter proceeds to trial within a reasonable time following the probable cause hearing.” (Id. at p. 179.) Here, the trial was delayed over three years.
Orozco is also distinguishable because the delay in bringing the matter to trial on a first and second recommitment petitions was attributable to defense counsel and/or to defendant. Unlike in the instant case, the defendant in Orozco never announced ready for trial and there were numerous delays stemming from the defendant’s lack of preparedness for trial. (Orozco, supra, 117 Cal.App.4that p. 179.)
The Orozco court stated that the defendant, “by his conduct, waived the issue of delay in bringing the matter to trial. The record reflects that... at the expiration of the two-year period that would have constituted the first recommitment term, Orozco was still preparing his defense to the first recommitment petition.... [T]he only time Orozco raised the issue of timeliness was... when Orozco stated he refused to waive the time for a hearing to set the probable cause hearing on the first recommitment petition.” (Orozco, supra, 117 Cal.App.4th at pp. 179-180.) In the instant case, defense counsel announced ready to try the case by July 2005 and repeatedly objected to the trial court continuing the proceedings.
The Orozco court further found that the trial court had “acquiesced in the leisurely manner” in which the recommitment petition was approached by the parties, and thus concluded that “[t]he 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.) Citing People v. Evans (2005) 132 Cal.App.4th 950 (Evans), the People in the instant case argue that, likewise, the remedy should have been an order directing the trial court to immediately try the commitment petition. But, here, dismissal was proper because defendant’s due process rights were violated by the excessive delay in trying the commitment petition.
As the Litmon court concluded: “The ultimate responsibility for bringing a person to trial on an SVP petition at a ‘meaningful time’ rests with the government.” (Litmon, supra, 162 Cal.App.4that p. 406.) Defendant’s fundamental liberty interest outweighed the state’s countervailing interests in postponement of the commitment petition trial. (Ibid.) The delay meant the cumulative loss of over three years in custody after completion of defendant’s sentence without any finding that he qualified as an SVP. “Time is an irretrievable commodity.... [T]ime once past can never be recovered.” (People v. Simpson (1973) 30 Cal.App.3d 177, 183; see also Litmon, supra, at p. 406.) “Under our country’s long-standing jurisprudence, a person has a right to liberty that a government may not abridge without due process. If the constitutional right to procedural due process is not to be an empty concept in the context of involuntary SVP commitment proceedings, it cannot be dispensed with so easily.” (Litmon, supra, at p. 406.)
Here, the trial court appropriately granted defendant’s motion to dismiss the commitment petition.
3. Disposition
The judgment is affirmed.
We concur: Ramirez, P. J., Hollenhorst J.