People v. Superior Court of L. A. Cnty.

27 Cal.App.5th 36

238 Cal.Rptr.3d 14

The PEOPLE, Petitioner,

v.The SUPERIOR COURT OF LOS ANGELES COUNTY, Respondent;

George Vasquez, Real Party in Interest.

B287946

Court of Appeal, Second District, Division 7, California.

Filed September 12, 2018

Jackie Lacey, District Attorney, Margo Baxter, Head Deputy District Attorney, Roberta Schwartz, Los Angeles and June Chung, Deputy District Attorneys, for Petitioner.

No Appearance for Respondent.

Law Office of Robert S. Gerstein, Robert S. Gerstein ; Law Offices of Mark Brandt and Mark P. Brandt, Santa Monica, for Real Party in Interest.

FEUER, J.

In 1995 George Vasquez was convicted of four counts of committing lewd or lascivious acts on a child under 14 years of age ( Pen. Code, § 288, subd. (a) ), and was sentenced to 12 years in state prison. Prior to Vasquez's release, on September 7, 2000 the People filed a petition to commit Vasquez as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA; Welf. & Inst. Code, § 6600 et seq. ).¹ Vasquez was detained in state hospitals for over 17 years awaiting trial on the petition, as a series of six appointed attorneys slowly moved his case toward trial.

Fourteen years into Vasquez's confinement, the public defender's office suffered a 50 percent cut to its attorney staffing and the loss of paralegals, which further slowed down Vasquez's third deputy public defender in her preparation for trial. After two more years of sluggish progress, this attorney was transferred out of the SVP unit just months before Vasquez's January 2017 trial date. After Vasquez's fifth attorney requested yet another continuance to prepare for trial, Vasquez objected, declaring,"Enough is enough." At this point—16 years after the petition was filed—the trial court granted Vasquez's motion to relieve the public defender's office as his counsel and appointed a bar panel attorney to represent Vasquez.

Eight months later Vasquez's new attorney filed a motion to dismiss the petition for violation of Vasquez's due process right to a speedy trial. By then no new trial date had been set. After the trial court granted Vasquez's motion to dismiss and ordered that Vasquez be released, the People filed this petition requesting that we vacate the order and direct the trial court to set the petition for trial. We stayed the trial court's order releasing Vasquez pending our review of the petition.

We consider under what circumstances a 17-year delay in bringing to trial an SVPA petition violates an individual's Fourteenth Amendment due process right to a timely trial. We conclude that while a substantial portion of the delay here resulted from the failure of individual appointed attorneys to move Vasquez's case forward, the extraordinary length of the delay resulted from "a systemic ‘breakdown in the public defender system,’ " and must be attributed to the state. ( Vermont v. Brillon (2009) 556 U.S. 81, 85, 94, 129 S.Ct. 1283, 173 L.Ed.2d 231 ( Brillon ).) This breakdown forced Vasquez to choose between having prepared counsel and a timely trial. Yet under our Constitution he had a right to both. We conclude the trial court did not err in finding that Vasquez's due process right to a timely trial was violated. We deny the petition.

FACTUAL AND PROCEDURAL BACKGROUND

A. The SVPA

"The SVPA authorizes the involuntary civil commitment of a person who has completed a prison term but is found to be [an SVP]." ( State Dept. of State Hospitals v. Superior Court (2015) 61 Cal.4th 339, 344, 188 Cal.Rptr.3d 309, 349 P.3d 1013 ( State Dept. of State Hospitals ) [discussing the SVPA provisions in effect as of 2007]; accord, Reilly v. SuperiorCourt (2013) 57 Cal.4th 641, 646, 160 Cal.Rptr.3d 410, 304 P.3d 1071 ( Reilly ) [same].)² At the time the SVPA petition was filed in this case, former section 6600, subdivision (a), defined an SVP as "a person who has been convicted of a sexually violent offense against two or more victims for which he or she received a determinate sentence 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."³ The SVPA is intended " ‘ "to protect the public from dangerous felony offenders with mental disorders and to provide mental health treatment for their disorders." ’ " ( State Dept. of State Hospitals , supra , at p. 344, 188 Cal.Rptr.3d 309, 349 P.3d 1013.)

"Whenever the Director of Corrections determines that an individual who is in custody ... may be [an SVP], the director shall ... refer the person for evaluation...." (Former § 6601, subd. (a)(1).) Once the Director of Corrections refers an inmate for screening, the Department of Corrections and Board of Prison Terms performs the screening "based on whether the person has committed a sexually violent predatory offense and on a review of the person's social, criminal, and institutional history. ... If as a result of this screening it is determined that the person is likely to be [an SVP], the Department of Corrections shall refer the person to [DMH] for a full evaluation of whether the person [is an SVP]." (Former § 6601, subd. (b); see State Dept. of State Hospitals , supra , 61 Cal.4th at pp. 344-345, 188 Cal.Rptr.3d 309, 349 P.3d 1013.)

The evaluation of whether the inmate is an SVP is conducted by two mental health experts—psychologists or psychiatrists—appointed by the Director of the DMH, pursuant to a standardized assessment protocol developed and updated by the mental health agency. (Former § 6601, subds. (c) & (d).) "The standardized assessment protocol shall require assessment of diagnosable mental disorders, as well as various factors known to be associated with the risk of reoffense among sex offenders. Risk factors to be considered shall include criminal and psychosexual history, type, degree, and duration of sexual deviance, and severity of mental disorder." (Former § 6601, subd. (c); see State Dept. of State Hospitals , supra , 61 Cal.4th at p. 345, 188 Cal.Rptr.3d 309, 349 P.3d 1013.)

The SVPA contains provisions for the evaluations to be updated or replaced after the commitment petition is filed in order "to obtain up-to-date evaluations, in light of the fact that commitment under the SVPA is based on a ‘current’ mental disorder. [Citations.] If an updated or replacement evaluation results in a split of opinion as to whether the individual meets the criteria for commitment, the [DMH] must obtain two additional evaluations in accordance with subdivision (f) of section 6601. [Citation.] However, although initial evaluations conducted under section 6601 must agree, a lack of concurrence between updated or replacement evaluations does not require dismissal of the petition. [Citation.] Rather, the updated evaluations' primary purpose is evidentiary or informational. [Citation.] Mandatory dismissal is not required where one or both of the later evaluators conclude the individual does not meet the criteria for commitment." ( Reilly , supra , 57 Cal.4th at pp. 647-648, 160 Cal.Rptr.3d 410, 304 P.3d 1071.)

" ‘[A] petition to request commitment ... shall only be filed if both independent professionals ... concur that the person meets the criteria for commitment....’ [Citation.] When that requirement is met, ‘the Director of Mental Health shall forward a request for a petition to be filed for commitment ...’ to the designated counsel of the county. [Citation.] If counsel concurs with the recommendation, ‘a petition for commitment shall be filed in ... superior court ....’ [Citation.] The court thereafter ‘shall review the petition and shall determine whether there is probable cause to believe that the individual ... is likely to engage in sexually violent predatory criminal behavior upon his or her release.’ [Citation.] The court must order a trial if there is probable cause, and it must dismiss the petition if there is not." ( State Dept. of State Hospitals , supra , 61 Cal.4th at pp. 345-346, 188 Cal.Rptr.3d 309, 349 P.3d 1013.)

If the trial court makes a finding of probable cause, the alleged SVP is "entitled to a trial by jury, the assistance of counsel, the right to retain experts or professional persons to perform an examination on his or her behalf, and have access to all relevant medical and psychological records and reports. In the case of a person who is indigent, the court shall appoint counsel to assist him or her, and, upon the person's request, assist the person in obtaining an expert or professional person to perform an examination or participate in the trial on the person's behalf." (Former § 6603, subd. (a).) "A unanimous verdict shall be required in any jury trial." (Former § 6603, subd. (d).) Proof at trial that a person is an SVP must be beyond a reasonable doubt. (§ 6604.)

Once there is a finding of probable cause, the court "shall order that the person remain in custody in a secure facility until a trial is completed and shall order that a trial be conducted to determine whether the person is, by reason of a diagnosed mental disorder, a danger to the health and safety of others in that the person is likely to engage in acts of sexual violence upon his or her release from the jurisdiction of the Department of Corrections or other secure facility." (Former § 6602, subd. (a).)

B. The Petition and Expert Evaluations

On September 7, 2000 the People filed a petition to commit Vasquez as an SVP upon his release from prison. The petition was supported by evaluations from two psychologists, Dr. Craig A. Updegrove and Dr. Douglas R. Korpi.

The petition alleged that Vasquez was convicted of four counts of lewd or lascivious acts on a child under 14 years of age ( Pen. Code, § 288, subd. (a) ), which are sexually violent offenses within the meaning of section 6600, subdivisions (b) and (e), and that he was sentenced to a determinate term on June 28, 1995.⁴ The petition alleged that Vasquez had a diagnosed mental disorder and posed a...