People v. Superior Court of Riverside County, E047649 (Cal. App. 12/10/2009)

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THE PEOPLE, Petitioner, v. THE SUPERIOR COURT OF RIVERSIDE COUNTY, Respondent DEWAYNE JONES, Real Party in Interest.

E047649

Court of Appeals of California, Fourth Appellate District, Division Two

December 10, 2009

Appeal from the Super. Ct. No. RIC342743

Original Proceedings; petition for writ of mandate. Richard Todd Fields, Judge. Petition granted in part; denied in part.

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.

Not to be Published in Official Reports

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.)¹ 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.²

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,³ real party in interest agreed to an involuntary two-year commitment to Atascadero State Hospital. This occurred on July 21, 2000.

The People filed a petition to recommit real party in interest on June 27, 2002. (§ 6004, as then effective.)⁴ Trial was held in March 2004, and the jury found real party in interest to be an SVP. A new commitment ensued.

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).⁵ 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.

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."⁶ (Italics added.) It granted the motion, staying the order of dismissal to permit the People to file this writ.⁷

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.⁸ In any event, this probable cause hearing was not completed until December 14.

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.)⁹

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...