Opinion
NOT TO BE PUBLISHED
Appeal from orders of the Superior Court of Riverside County No. RIC334384, Carl E. Davis and James Edwards, Judges. (Retired judges of the San Bernardino Super. Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
Tonja R. Torres, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Assistant Attorney General, Bradley Weinreb and Angela M. Borzachillo, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
FYBEL, J.
Introduction
In February 2000, John McDonald was adjudged a sexually violent predator (SVP) under the Sexually Violent Predator Act, Welfare and Institutions Code section 6600 et seq. (SVPA), and was placed in involuntary commitment for a two year term. A recommitment petition extended his involuntary commitment for another two year term, to February 2004. Two subsequent recommitment petitions for two year terms were filed, respectively, in January 2004 and January 2006. These two recommitment petitions were consolidated and tried in August and September 2006. On September 12, 2006, following trial, a jury found McDonald to be an SVP, and the trial court ordered him committed to two successive two year terms, ending in February 2008.
McDonald challenges the September 2006 order of recommitment and amended order of recommitment filed in September 2007, on two grounds. First, he contends the trial court violated his rights under the due process clause of the United States Constitution, the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.) (ADA), and California Rules of Court, rule 1.100, by denying his request to conduct the recommitment trial by video conferencing. Second, he contends the trial court violated his rights under the due process clause of the United States Constitution by denying his motion to dismiss the consolidated recommitment petitions on the ground of unconstitutionally excessive delay in bringing those petitions to trial.
We conclude any error in denying McDonald’s motion to conduct the recommitment trial by video conferencing was harmless beyond a reasonable doubt in light of the overwhelming evidence that McDonald was an SVP. As for McDonald’s claim of a due process violation, the issue of delay in bringing the January 2004 recommitment petition to trial is moot because the term of commitment covered by that petition has expired, and there was no unconstitutional delay in bringing the January 2006 recommitment petition to trial. We therefore affirm.
In response to our invitation, the parties submitted supplemental letter briefs on these issues: (1) What would be the remedy and the appropriate disposition of our opinion in this matter if the trial court violated McDonald’s due process rights by denying his motions to dismiss the consolidated petitions?; (2) Has McDonald forfeited his due process claim by not challenging the denial of his motions to dismiss the consolidated petitions by direct appeal or by petition for extraordinary writ?; (3) Would reversal of the judgment based on violation of due process result in McDonald’s release from involuntary commitment?; and (4) Is McDonald subject to a pending petition for recommitment? If so, what is the status of that petition?
Overview of the SVPA
“The SVPA provides for the involuntary civil commitment of certain offenders, following the completion of their prison terms, who are found to be sexually violent predators because they have previously been convicted of sexually violent crimes and currently suffer diagnosed mental disorders that make them dangerous because they are likely to engage in sexually violent predatory criminal behavior.” (Turner v. Superior Court (2003) 105 Cal.Ap.4th 1046, 1054.)
Under the SVPA in effect at the time of trial in this case, a person determined to be an SVP was committed to the State Department of Mental Health for a period of two years for treatment and confinement in a secure facility, subject to subsequent petition for an extended commitment. (Welf. & Inst. Code, former § 6604.) The Legislature amended the SVPA, effective September 20, 2006, to provide for indeterminate commitment terms for persons determined to be SVP’s. (Stats. 2006, ch. 337, §§ 55, 56, 62.) In the November 2006 general election, California voters approved Proposition 83, which also provided for indeterminate terms of commitment for SVP’s and which went into effect on November 8, 2006. (Prop. 83, §§ 27, 28; see Cal. Const., art. II, § 10, subd. (a).)
“Sexually violent predator” is defined as “a person who has been convicted of a sexually violent offense against one 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.” (Welf. & Inst. Code, § 6600, subd. (a)(1).) A “diagnosed mental disorder” is defined to include “a congenital or acquired condition affecting the emotional or volitional capacity that predisposes the person to the commission of criminal sexual acts in a degree constituting the person a menace to the health and safety of others.” (Id., § 6600, subd. (c).)
The procedure for determining whether a convicted sex offender is an SVP typically begins when an inmate is scheduled to be released from custody after completion of a determinate sentence or after a parole revocation. (Turner v. Superior Court, supra, 105 Cal.App.4th at p. 1054.) “‘Under [Welfare and Institutions Code] section 6601, whenever the Director of Corrections determines that a defendant serving a prison term may be a sexually violent predator, the Department of Corrections and the Board of Prison Terms undertake an initial 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.” ([Id.,] § 6601, subd. (b).) The screening is conducted in accord with a protocol developed by the state Department of Mental Health. (Ibid.) If that screening leads to a determination that the defendant is likely to be a sexually violent predator, the defendant is referred to the Department of Mental Health for an evaluation by two psychiatrists or psychologists. ([Id.,] § 6601, subds. (b) & (c).) If both find that the defendant “has a diagnosed mental disorder so that he or she is likely to engage in acts of sexual violence without appropriate treatment and custody” ([id.,] § 6601, subd. (d)), the department forwards a petition for commitment to the county of the defendant’s last conviction (ibid.). If the county’s designated counsel concurs with the recommendation, he or she files a petition for commitment in the superior court. ([Id.,] § 6601, subd. (i).)’” (People v. Hurtado (2002) 28 Cal.4th 1179, 1182 1183.)
The trial court holds a hearing on the petition to determine whether “there is probable cause to believe that the individual named in the petition is likely to engage in sexually violent predatory criminal behavior upon his or her release.” (Welf. & Inst. Code, § 6602, subd. (a).) If the court finds probable cause, it orders a trial to determine whether the person is an SVP under Welfare and Institutions Code section 6600. (Id., § 6602, subd. (a).) The alleged predator must remain in a secure facility between the time probable cause is found and the time trial is completed. (Ibid.)
The alleged predator is entitled to a jury trial, and the jury’s verdict must be unanimous. (Welf. & Inst. Code, § 6603, subds. (a) & (f).) The alleged predator also is entitled to retain experts or professional persons to perform an examination on his or her behalf. (Id., § 6603, subd. (a).) The SVPA grants the committed person the right to be present at the commitment proceeding. (Id., § 6605, subd. (d).) In any subsequent recommitment proceeding, the alleged predator is entitled to “the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding.” (Ibid.)
At trial, the trier of fact determines whether, beyond a reasonable doubt, the person named in the petition is an SVP. (Welf. & Inst. Code, § 6604.) If the trier of fact determines the person named in the petition is an SVP, the person is committed to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility. (Ibid.)
Facts and Procedural History
I. Predicate Offenses and Initial Commitment
On October 20, 1999, the Office of the District Attorney of Riverside County (the DA) filed a petition for McDonald’s commitment pursuant to Welfare and Institutions Code section 6600. On February 28, 2000, McDonald waived his right to a jury trial, admitted he had two prior convictions for sexually violent offenses against two separate victims, and admitted he suffered from a currently diagnosed mental illness.
Specifically, McDonald admitted that, on August 21, 1982, he met a 10 year old boy and offered to pay him $15 if he would help repair a boat dock. As they walked toward the dock, the boy became suspicious and tried to run away. McDonald grabbed his arm, took him to a private area in an empty shed, and pulled down the boy’s pants. McDonald orally copulated the boy, then forced the boy to orally copulate him. McDonald denied threatening to kill the boy. McDonald admitted that, on January 6, 1983, he hired two brothers, aged 10 and eight, to work in his home. When one of the brothers began working at McDonald’s home, McDonald orally copulated the boy. McDonald denied making the boy orally copulate him.
McDonald admitted he pleaded guilty as a result of those acts to the charges filed against him and received a 23 year prison sentence. He admitted he suffered from pedophilia and from an antisocial personality disorder.
The trial court found the jury trial waiver and admissions of the prior convictions were made knowingly and voluntarily, and ordered McDonald committed to the custody of the State Department of Mental Health for a period of two years, ending February 28, 2002.
The DA filed a second petition, for subsequent commitment, on January 23, 2002. On February 28, 2002, McDonald’s initial two year commitment expired. On April 12, 2002, McDonald waived his right to a jury trial and his right to personally appear, and agreed the trial court could make a determination based on the reports filed by State Department of Mental Health evaluators. Based on those reports, the trial court found that McDonald was an SVP and committed him to the State Department of Mental Health for placement in a secured facility for another two year period.
II. Third and Fourth Petitions for Recommitment
On January 28, 2004, the DA filed a third petition, for subsequent commitment for a two year period starting February 28, 2004 (Third Petition). The trial court made a preliminary finding of probable cause on April 1, pending a full probable cause hearing.
On April 9, 2004, the trial court appointed a defense expert evaluator and ordered him to submit a report to the court by May 7, 2004.
On February 28, 2004, McDonald’s second commitment period expired.
On September 16, 2004, the medical director of Atascadero State Hospital prepared a letter in support of a continuance of or nonappearance of McDonald, who had suffered a severe seizure several days before. The letter stated Atascadero State Hospital would support video conferencing if it was available, and, “[i]f not, it is further recommended that a time period of 90 to 120 days be allowed for stabilization of Mr. McDonald’s severe seizure disorder in order to prevent further injury and disability.”
On October 15, 2004, the trial court set a hearing for November 12, 2004 on the defense expert evaluator’s report. The hearing was continued several times, with no reason given; the record is not clear whether it was ever held.
On January 25, 2005, the DA filed an application to conduct a conditional examination of McDonald pursuant to Penal Code section 1335. McDonald’s counsel filed opposition. The trial court granted the request for a conditional examination, and set a hearing for March 4, 2005 on the status of the examination. The examination was continued several times and ultimately was conducted in San Luis Obispo on August 22, 2005.
On July 1, 2005, at the request of McDonald’s counsel, the court set a trial date of August 15, 2005. Trial was not held on that date. On September 2, 2005, the court set a trial date for September 30. That date was periodically continued thereafter.
On October 28, 2005, the trial court granted a motion to release a videotape of McDonald’s conditional examination to State Department of Mental Health evaluators. At the hearing on the motion, McDonald’s counsel stated the defense evaluator had put McDonald’s evaluation on a “back burner” despite her request to give McDonald’s evaluation priority. When asked about a trial date, the court stated, “the criminal backlog has preempted these matters until December 1st, according to the supervising judge.” The trial court continued the trial date of December 2, 2005.
On January 18, 2006, the DA filed a fourth petition, for subsequent commitment (Fourth Petition).
On January 27, 2006, the trial court set a hearing for February 27, 2006 on McDonald’s motion to dismiss the Fourth Petition. On February 3, 2006, the trial court appointed Dr. William Jones to evaluate McDonald and set a “Hearing re JURY TRIAL” for March 27, 2006.
III. Motion to Consolidate Petitions, Probable Cause Hearing, and Motions to Dismiss Petitions
On February 28, 2006, McDonald’s third commitment period expired. No probable cause hearing yet had been held on the Third Petition.
On February 10, 2006, the DA filed a motion to consolidate the Third Petition and the Fourth Petition. The court set a hearing for March 17, 2006 on McDonalds’ request for dismissal.
McDonald’s counsel filed opposition to the motion to consolidate the Third Petition and the Fourth Petition, arguing consolidation would further delay trial and thus violate McDonald’s constitutional right to a speedy trial on the Third Petition and unduly prejudice a fair trial on the Fourth Petition. On March 24, 2006, at the hearing on the motion to consolidate, McDonald’s counsel advised the court a probable cause hearing had never been held on the Third Petition. The court stated, “[w]e definitely need to do [a probable cause hearing].” In response to the argument by McDonald’s counsel that delays should result in denial of the motion to consolidate, the court stated: “We’ve got basically two things that keep these trials from getting out the way they should. One of them is the doctor problem, and the other is the availability of courtroom problem, which oftentimes trumps these cases. We’ve had that discussion as well. This case has dragged on and on and on for a variety of reasons.” The court granted the DA’s motion to consolidate and set a probable cause hearing for April 7, 2006.
After several more continuances, the first day of the probable cause hearing was April 24, 2006. At the outset of the hearing, the DA announced that one of two experts was not available to testify until May 26, 2006. McDonald’s counsel objected to continuing the second half of probable cause hearing to that date, stating: “I object to the fact that the district attorney wants to yet again continue part of the probable cause hearing on what is a probable cause hearing on a petition that is over two years old and that has been consolidated with the more recent petition.”
The objection apparently was overruled because the second day of the probable cause hearing was May 26, 2006. After the trial court found probable cause, McDonald’s counsel stated: “For the record, I would request that we proceed to trial forthwith.” The court denied the request, and set a trial setting conference for June 2, 2006 to permit the DA to determine the availability of his witnesses. McDonald’s counsel stated, “for the record, I object to any continuances of this matter.”
At the trial setting conference on June 5, 2006, the court set a trial date of July 10, 2006. On July 10, the trial court continued the trial date to July 14.
On July 14, 2006, McDonald’s counsel appeared ready for trial and requested the trial proceed “forthwith.” However, the DA was not ready for trial because the DA had miscalendared the trial date for August 14, 2006. McDonald’s counsel moved to dismiss for failure to bring the matter to trial. Rather than grant the motion, the court continued the trial to August 14, 2006. McDonald’s counsel made a standing objection to further continuances and asked the court to accept only written requests for continuances.
The trial date was continued four more times, and trial finally commenced on August 30, 2006. McDonald’s counsel moved to dismiss, stating, “I would simply remind the Court that basically Mr. McDonald’s circumstances are such that he has two pending petitions which were consolidated over my objection, and it’s been approximately 2 1/2 years since the expiration of his last sustained petition.” The court denied the motion, stating, “[w]ith respect to the delay in trial, it has each time been based on good cause, and the situation in the Riverside courts is such that the criminal priority has completely consumed all the courts, criminal and civil.”
IV. Trial on the Consolidated Petitions
Trial began on August 30, 2006, and concluded on September 12, when the jury returned a verdict finding McDonald to be an SVP, and the trial court ordered his recommitment. On September 13, a formal order was signed and entered recommitting McDonald to the custody of the State Department of Mental Health for treatment in a secured facility for a two year period ending February 28, 2008. McDonald filed a notice of appeal from the recommitment order on November 2, 2006.
On September 6, 2007, the trial court signed an amended order for commitment providing that McDonald “be recommitted from February 28, 2004 to February 28, 2008 to the State Department of Mental Health for appropriate treatment in a secured facility.” McDonald filed a notice of appeal from this amended order for recommitment on September 7, 2007.
In supplemental briefing, McDonald’s counsel informed us McDonald is subject to a pending petition for indeterminate recommitment. The parties apparently have conducted the first phase of the probable cause hearing, and the matter is stayed pending the outcome of this appeal.
Evidence from the Recommitment Trial
The background facts are taken from the trial testimony Dr. Dale Arnold, who evaluated McDonald in 2003 and 2005.
McDonald suffered from meningitis when he was six months old. As a result, he lost all of his hearing in his right ear and 50 percent of his hearing in his left ear.
McDonald was arrested at age 12 for burglary. The charges were dismissed. In 1975, at age 13, McDonald was arrested for burglary, petty theft, and grand theft. He was found to be beyond control and was made a ward of the court. He was arrested again, at age 13, for burglary, vehicle theft, driving without a license, resisting arrest, and malicious mischief. The malicious mischief and vehicle theft charges were sustained, and the other charges were dismissed.
In 1978, when 16 years old, McDonald was arrested for the attempted molestation of a six year old girl. McDonald had lured the girl to a construction site to see a worker who had “cracked his head.” McDonald took the girl into some bushes, pulled down her pants, and wanted to touch her vagina. The girl cried and wanted to leave, but McDonald would not let her go. McDonald gave her a dollar and told her not to tell anyone about it.
After several unsuccessful placements in facilities, McDonald was committed to the California Youth Authority, where he remained until 1982, when he was 19 years old. On August 21, 1982, within six months of his release, McDonald lured a 10 year old boy to the Rubidoux Bridge by telling the boy he would pay him $15 an hour to work on a boat dock (this was the first of the admitted predicate offenses). Once there, the boy became suspicious and tried to escape, but McDonald held him and took him to a shed. In the shed, McDonald pulled down the boy’s pants and orally copulated him. McDonald then dropped his pants and “had” the boy orally copulate him. At some point, McDonald said he did not want to go to jail and might have to kill the boy. McDonald told the boy he would not be harmed if he promised not to tell anyone.
McDonald took out a syringe and injected a liquid into the boy’s arm, telling the boy the liquid would help his penis grow larger. McDonald then allowed the boy to leave. The injection caused an infection that placed the boy in the hospital for two days with required antibiotic treatments.
In January 1983, McDonald asked two brothers, aged 10 and eight, to work around his house. McDonald took the 10 year old brother into the bathroom and orally copulated him (this was the second admitted predicate offense). The victim stated this occurred three times and claimed McDonald tried to penetrate his anus.
While in prison for the admitted predicate offenses, McDonald committed numerous rules violations. Those included filing a fraudulent tax return, unlawfully possessing medications, committing disruptive behavior, and attempting to intimidate others.
II. Medical History and Psychological Expert Testimony
A. Dr. Dale Arnold
Dr. Dale Arnold has a Ph.D. in clinical psychology and is a clinical and forensic psychologist. In 1997, he became a ward psychologist at Atascadero State Hospital, and, in 1999, entered private practice as a consulting psychologist and became a member of the State Department of Mental Health’s panel of SVP evaluators.
Dr. Arnold evaluated McDonald in December 2003 and in December 2005. For the December 2003 evaluation, Dr. Arnold reviewed 25 years of records of McDonald’s criminal, sexual, social, legal, medical, and substance abuse history, as well as records from Atascadero State Hospital, including psychiatric and psychological evaluations, progress notes, and forensic evaluations. McDonald declined to be interviewed for the December 2003 evaluation.
For the December 2005 evaluation, Dr. Arnold reviewed the notes made by members of McDonald’s multidisciplinary team, which included psychiatrists, social workers, psychologists, nurses, recreational therapists, and dieticians. McDonald agreed to let Dr. Arnold interview him as part of the December 2005 evaluation.
Dr. Arnold concluded McDonald suffered from three separate mental diseases or disorders: (1) schizoaffective disorder secondary to a seizure disorder, (2) pedophilia, and (3) personality disorder (not otherwise specified) with antisocial and borderline personality traits. According to Dr. Arnold, the schizoaffective disorder was probably due to a brain injury that caused the seizure disorder. The schizoaffective disorder included both a psychotic disorder and an affective disorder, meaning McDonald suffered from depression or mania.
Dr. Arnold also concluded McDonald posed a serious risk of sexual reoffense. Pedophilia was the “primary driving force” behind the risk of reoffense, but the other two conditions aggravated the level of risk, and McDonald’s “antisocial personality disorder interferes with his ability to cooperate with supervision or... comply with whatever community rules there may be.” Dr. Arnold placed McDonald on the “high end” level of risk and opined that McDonald was more likely to reoffend against children who were strangers or casual relationships, and reoffense would involve substantial sexual contact.
Dr. Arnold used two actuarial risk instruments in assessing McDonald’s risk of reoffense: the “Static 99” and the Minnesota Sexual Offender Screening Tool Revised. McDonald had scores on both that placed him in the high risk category. In addition, Dr. Arnold considered intimacy deficit, which is the degree to which a person can establish and maintain an intimate relationship. In Dr. Arnold’s opinion, McDonald had a poor history of maintaining intimate relationships.
Dr. Arnold believed McDonald was manipulative because he could remember details when doing so suited his purpose, but claimed to forget unfavorable events, such as his criminal history of sexual offenses. Dr. Arnold testified Atascadero State Hospital has a “state of the art” treatment program to reduce the risk of reoffense by sexual predators, but McDonald has refused to participate in the program.
B. Dr. Shoba Sreenivasan
Dr. Shoba Sreenivasan has a Ph.D in clinical psychology and is a licensed clinical psychologist. She performs SVP examinations for the State Department of Mental Health.
Dr. Sreenivasan evaluated McDonald in 2003 and 2005. In performing the evaluations, Dr. Sreenivasan reviewed records supplied by the State Department of Mental Health. Those records included McDonald’s criminal records, physician progress notes, forensic and psychological reports, social work reports, and medical records. She also considered McDonald’s juvenile offenses and the 1982 and 1983 molestation incidents leading to the predicate offenses. Dr. Sreenivasan interviewed McDonald for the 2005 evaluation, but he declined to be interviewed for the 2003 evaluation.
Dr. Sreenivasan testified that, in both 2003 and 2005, she concluded McDonald suffered from pedophilia, severe antisocial personality disorder, and a mental disorder related to his seizure condition that had schizoaffective processes. She testified McDonald also has “cognitive problems” secondary to his seizure disorder, and, as a child, possibly had attention deficit disorder.
Dr. Sreenivasan described the traits characterizing McDonald’s antisocial personality disorder: “[I]n Mr. McDonald’s case, it’s the early onset—about age 12—of engaging in different kinds of criminal behavior[], being incorrigible as a child that led to different placements in homes. All of that would be representative of a conduct disorder. And into adulthood, he still had problems with the law. The sexual disorder or deviancy and crimes related to that. While in prison custody, he’s had... numerous rules violations and was involved in a tax fraud kind of a scheme. [¶] So those are—the general characteristics [of] someone who has real problems conforming themselves to rules and regulations, particularly laws, which has been true with Mr. McDonald, having a lack of remorse for hurting other people, which has also been true of Mr. McDonald.”
Dr. Sreenivasan testified McDonald was at high risk of reoffending by using force in sexual crimes, and likely would commit sexual acts against children using violence and involving genital contact. According to Dr. Sreenivasan, McDonald posed a high risk of reoffending even if his seizure condition and cognitive disorder were under control. He likely would commit offenses in the future against strangers or children he had “groom[ed].”
Dr. Sreenivasan administered and relied on two risk assessment instruments in forming her opinion McDonald posed a high risk of reoffending. McDonald’s score on the Sex Offender Risk Appraisal Guide placed him within the highest level of risk of reoffending, and McDonald’s score on the Static 99 test placed him at a high risk of reoffending. Dr. Sreenivasan also considered “dynamic factors” in concluding McDonald posed a high risk of reoffending.
III. McDonald’s Conditional Examination
At the prosecutor’s request, and pursuant to court order, McDonald testified at a conditional examination conducted on August 22, 2005 in a courtroom in San Luis Obispo. At trial, the jury watched a videotape of the examination and received a transcript of it.
At the time of the examination, McDonald had been at Atascadero State Hospital for six years. He testified he did not know why he was there and did not believe anything was wrong with him. Although McDonald believed nothing was wrong with him, he acknowledged taking “pysch. meds,” such as Seroquel, Navane, and Trazodone, to “stabilize” himself. He also took Lamictal and Geodon for seizures and Imitrex for migraines. McDonald testified that if he were released from the hospital, his sister would give him his medications, or, if not her, “the guy I’m with, if I find him.”
McDonald knew he had been at Patton State Hospital for a period of time, but could not remember when or how long he had been there. He acknowledged he had been arrested in 1982 for child molestation and he “was wrong for doing it.” Later in the examination, he could not remember being arrested in 1982, pleading guilty to either predicate offense, or going to court. He testified he did not know the meaning of the word “pedophile,” could not recall having sexual thoughts about children, and preferred to have sex with adults. But, in a classic negative pregnant, he also testified, “I don’t have any sexual problem with any kids anymore.”
McDonald had declined to be examined by Dr. Arnold because an interpreter for the hearing impaired was not offered, and McDonald did not have a hearing aid. McDonald did remember being evaluated by a Dr. Allenbaugh and a Dr. Phenix at some point, and recalled they told him he could be paroled.
McDonald could not recall ever attending school and no longer could read. Although he claimed he was working to regain his reading ability, he declined schooling offered at the hospital, claiming an interpreter was not provided. He collected stamps, and liked to look at the pictures in stamp magazines and books.
McDonald wanted to be released from Atascadero State Hospital and move with a sister to Georgia to run a restaurant, ride horses, and grow crops. He testified that if he were released from Atascadero State Hospital, he would enter a sex offender treatment program because “I’ve got to get healed”—although he had declined sex offender treatment at Atascadero State Hospital, claiming it did not have an interpreter for the hearing impaired. He also testified he would get a Lupron implant to reduce his sex drive. He understood he had to complete a sex offender treatment program to be released from the hospital, but stated, “I could die before I get out of here if I went to the sex-offender program for like five to six years and got out.”
Discussion
I. Denial of Motion to Conduct the Recommitment Trial by Video Conferencing
A. Background
McDonald suffers from a potentially life-threatening seizure disorder that is difficult to control, even when he is hospitalized. For that reason, he filed a motion on August 30, 2006, requesting the recommitment trial on the consolidated third and fourth petitions be conducted by video conferencing so he could watch the proceedings without having to be transported to Riverside County. In support of the motion, McDonald offered the September 2004 letter from the medical director of Atascadero State Hospital, stating it would support video conferencing if it was available, and, “[i]f not, it is further recommended that a time period of 90 to 120 days be allowed for stabilization of Mr. McDonald’s severe seizure disorder in order to prevent further injury and disability.”
In arguing the motion, McDonald’s trial counsel stated: “I had discussed this with the Court in the past. As I indicated, I know that the Court has video conferencing available in the judges’ library. The People from Atascadero State Hospital... indicate[] that they do video conferences on a regular basis as far as hearings with L.A. County. The hospital is willing to pick up the tab on the... teleconference calls and pay for them. [¶] I have asked the Court repeatedly in the past to either look into the feasibility of running a line for video conferencing into the court, or in the alternative,... I asked that once we got the jury selected, if we could possibly simply have the trial in the judges’ library where we could do the trial by video conferencing.”
In response, the prosecutor stated: “[A]ny video conferencing that has been done has not been for trial purposes but for other hearings. If Mr. McDonald wants to participate in the trial to the extent of being present by video conference, I would ask that he be physically present. We have the conditional examination on videotape that I intend to introduce and call him as a witness at that point in that way. And the reason that I have not asked and have not sought a transportation order to bring him down here for trial is because I have been told repeatedly that he doesn’t want to be here for the trial, and I think the video conferencing is unnecessary.”
The court denied McDonald’s motion, stating: “[T]he only practical solution to this is presence means... physical presence legally. I’m really willing to move earth but not heaven. It’s very impractical to conduct a nine day trial by video conferencing.... I am somewhat familiar with video conferencing, and it’s customarily... pared down to small agendas that take place over a short period of time.” McDonald was not present at the hearing on the consolidated petitions.
B. Any Error in Denying McDonald’s Motion to Conduct the Recommitment Trial by Video Conferencing Was Harmless.
McDonald argues the trial court violated his due process rights, his rights under the SVPA, and his rights under the ADA by denying his motion to conduct the recommitment trial by video conferencing. With regard to each, we conclude any error was harmless.
1. Due Process
“Because civil commitment involves a significant deprivation of liberty, a defendant in an SVP proceeding is entitled to due process protections.” (People v. Otto (2001) 26 Cal.4th 200, 209, citing Foucha v. Louisiana (1992) 504 U.S. 71, 80.) “Once it is determined that due process applies, the question remains what process is due.” (Morrissey v. Brewer (1972) 408 U.S. 471, 481.) Four factors are analyzed to answer that question: “(1) the private interest that will be affected by the official action; (2) 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; (3) the government’s interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.” (People v. Otto, supra, 26 Cal.4th at p. 210.)
A criminal defendant has a due process right to be present at trial. (U.S. Const., 6th & 14th Amends.; Cal. Const., art. I, § 15; Kentucky v. Stincer (1987) 482 U.S. 730, 745; United States v. Gagnon (1985) 470 U.S. 522, 526.) However, the due process rights of an SVP defendant are not necessarily the same as those of a criminal defendant. (E.g., People v. Allen (2008) 44 Cal.4th 843, 869 [defendant in SVPA proceeding has due process right to testify at trial over counsel’s objection]; People v. Otto, supra, 26 Cal.4th at pp. 209 210 [reliance on multiple hearsay not coming within a hearsay exception does not violate due process rights of SVP defendant]; People v. Fraser (2006) 138 Cal.App.4th 1430 [defendant in SVPA proceeding has no due process right to self-representation].)
We need not decide whether a defendant in an SVPA proceeding has a due process right to be present during or to observe a commitment or recommitment trial. Even assuming there is such a right, any violation of the right in this case did not cause McDonald to suffer prejudice.
The harmless error standard applies to constitutional errors which occurred during trial and can be quantitatively assessed under the evidence presented to determine whether they were harmless beyond a reasonable doubt. (Arizona v. Fulminante (1991) 499 U.S. 279, 306, 307 308; People v. Allen, supra, 44 Cal.4th 843, 871; In re James F. (2008) 42 Cal.4th 901, 914.) In contrast, structural errors are defects “affecting the framework within which the trial proceeds” so that they “defy analysis by ‘harmless error’ standards.” (Arizona v. Fulminante, supra, 499 U.S. at pp. 309 310.) Structural errors require automatic reversal because they involve basic protections without which “‘a criminal trial cannot reliably serve its function as a vehicle for determination of guilt or innocence, and no criminal punishment may be regarded as fundamentally fair.’” (Id. at p. 310.) Examples of structural error in criminal proceedings include total deprivation of the right to counsel, denial of the right of self representation, trial before a judge who is not impartial, unlawful exclusion of the members of the defendant’s race from a grand jury, and denial of the right to a public trial. (In re James F., supra, 42 Cal.4th at p. 914.)
In criminal cases, deprivation of a defendant’s due process right to be present during court proceedings has been considered to be trial error subject to a harmless error standard. (People v. Hines (1997) 15 Cal.4th 997, 1039.) “The defendant must show that any violation of this right [to be present in court] resulted in prejudice or violated the defendant’s right to a fair and impartial trial.” (Ibid.) In People v. Allen, supra, 44 Cal.4th at page 871, the California Supreme Court concluded that denial of the defendant’s right to testify in an SVPA hearing over counsel’s objection was trial error subject to the harmless error analysis of Chapman v. California (1967) 386 U.S. 18 (Chapman).
Any error in denying McDonald’s motion to conduct the recommitment trial by video conferencing did not affect any aspect of the hearing, other than his ability to comment on witness testimony, and may be quantitatively assessed in the context of the other evidence presented. In a similar situation, the court in People v. Fisher (2009) 172 Cal.App.4th 1006 applied a Chapman harmless error analysis to the claim of a mentally disordered offender that he was deprived of his due process right to be present at the hearing on a petition to authorize the forcible administration of psychotropic drugs.
We therefore evaluate whether denial of McDonald’s motion to appear by video conferencing, if erroneous, was harmless beyond a reasonable doubt under the Chapman standard. (People v. Allen, supra, 44 Cal.4th at pp. 871 872.) We conclude denial of McDonald’s motion to conduct the recommitment trial by video conferencing did not, beyond a reasonable doubt, contribute to the jury’s decision. (Chapman, supra, 386 U.S. at p. 24.) The evidence against McDonald was overwhelming. He already had been adjudged an SVP. He admitted the predicate offenses at the initial commitment trial. At Atascadero State Hospital, McDonald has not participated in sex offender treatment. Both Dr. Arnold and Dr. Sreenivasan evaluated McDonald in 2003 and 2005, concluded he suffered from pedophilia, and concluded he posed a high risk of reoffense. Dr. Arnold placed McDonald in the high risk category on the Static 99 and Minnesota Sexual Offender Screening Tool Revised actuarial risk assessments. Dr. Sreenivasan also placed McDonald in the high risk category on the Static 99 and placed him in the highest risk category on the Sex Offender Risk Appraisal Guide. McDonald presented no contrary evidence.
McDonald was represented by competent counsel who had the opportunity to cross examine the prosecution’s witnesses and to present witnesses. Other than the videotape of his conditional examination, McDonald’s counsel did not present any witnesses or evidence of his own.
McDonald argues the denial of his motion to be present by video conferencing and his inability to observe the experts testify “impacted his ability to assist in his defense” and to understand the nature of the proceedings against him. McDonald does not explain how he could have assisted counsel in defending him. His conditional examination showed his recollection was poor and inconsistent. At first, he acknowledged being arrested in 1982, then could not remember the arrest and subsequent criminal proceedings. He could not recall speaking with some doctors who worked for the State of California, and could not remember being evaluated by others. He denied having a problem but testified he would attend sex offender classes after release from Atascadero State Hospital to “get healed.” He testified he did not know the meaning of the word “pedophile” and could not recall having sexual thoughts about children, but also testified, “I don’t have any sexual problem with any kids anymore.”
McDonald also asserts that due to his profound hearing impairment, “having to communicate by telephone likely made efficient communication about the case difficult.” Because McDonald was several hundred miles away in Atascadero, communication with counsel by telephone would have been necessary even if McDonald were able to watch the recommitment trial by video conferencing.
2. SVPA
The SVPA grants the committed person “the right to be present” at the commitment proceeding and “the benefit of all constitutional protections that were afforded to him or her at the initial commitment proceeding.” (Welf. & Inst. Code, § 6605, subd. (d).) Error in the denial of a statutory right is subject to the harmless error analysis of People v. Watson (1956) 46 Cal.2d 818, 836 (Watson). (People v. Epps (2001) 25 Cal.4th 19, 29; D. E. v. Superior Court (2003) 111 Cal.App.4th 502, 513 514.)
For the reasons explained, any error in denying McDonald his statutory right to appear at the recommitment trial was harmless. It was not reasonably probable a decision more favorable to McDonald would have been reached if the recommitment trial had been conducted by video conferencing.
3. ADA/California Rules of Court, Rule 1.100
McDonald argues the trial court violated his right as a disabled person to reasonable accommodation under the ADA and failed to comply with California Rules of Court, rule 1.100 by denying his motion to conduct the recommitment trial by video conferencing.
California Rules of Court, rule 1.100 governs requests for accommodations by persons with disabilities. Rule 1.100(a) defines “persons with disabilities” to mean persons covered by Civil Code section 51 et seq. (the Unruh Civil Rights Act), the ADA, or other applicable state or federal law.
California Rules of Court, rule 1.100 advances the court policy “to ensure that persons with disabilities have equal and full access to the judicial system.” (Cal. Rules of Court, rule 1.100(b).) To fulfill that purpose, rule 1.100(b) requires each superior court and appellate court to designate at least one person to be the ADA coordinator to address requests for accommodations. Rule 1.100(c) permits requests for accommodations to be made ex parte to the ADA coordinator, but requires they be made “as far in advance as possible, and in any event must be made no fewer than 5 court days before the requested implementation date.” The court has discretion to waive this deadline. (Id., rule 1.100(c)(1), (3).)
The grounds for denying a request for accommodation are limited: “A request for accommodation may be denied only when the court determines that: [¶] (1) The applicant has failed to satisfy the requirements of this rule; [¶] (2) The requested accommodation would create an undue financial or administrative burden on the court; or [¶] (3) The requested accommodation would fundamentally alter the nature of the service, program, or activity.” (Cal. Rules of Court, rule 1.100(f).) The court or the ADA coordinator must grant a request for accommodation under California Rules of Court, rule 1.100 unless it makes at least one of these findings. (In re Marriage of James & Christine C. (2008) 158 Cal.App.4th 1261, 1272 1274.)
The Attorney General argues McDonald’s motion for video conferencing did not comply with California Rules of Court, rule 1.100(c) because McDonald did not make his request pursuant to that rule and because the request was untimely under rule 1.100(c)(3). For these reasons, the Attorney General argues, the trial court was not alerted to the fact McDonald was making a request for accommodation under rule 1.100, did not forward the request to the court ADA coordinator, and could not investigate whether the requested accommodation was feasible or would create an undue administrative or financial burden on the court. In addition, the Attorney General argues, “it is questionable whether McDonald satisfied the requirements of Rule 1.100” because he did not provide any information about his medical condition at the time of trial.
We do not reach those arguments because any error in denying McDonald’s motion to conduct the recommitment trial by video conferencing was not prejudicial under either a Watson standard or a Chapman standard. As we have explained, under the Chapman standard, denial of McDonald’s motion did not, beyond a reasonable doubt, contribute to the jury’s decision.
In In re Marriage of James & Christine C., supra, 158 Cal.App.4th 1261, we concluded the trial court erred by denying a request for accommodation under California Rules of Court, rule 1.100 without addressing the issue of prejudice. In that case, Christine C., who suffered from bipolar disorder, made an ex parte request for accommodation pursuant to rule 1.100 a few days before trial was to resume. (In re Marriage of James & Christine C., supra, at p. 1269.) She requested a trial continuance as an accommodation because she had checked herself into a hospital on her psychiatrist’s recommendation. (Id. at pp. 1269 1270.) The request was denied. (Id. at p. 1270.) As Christine C. was representing herself in propria persona, she was not present and unrepresented when trial resumed. (Id. at p. 1274.) We concluded none of the grounds listed in rule 1.100(f) for denying an ADA accommodation request was present when Christine C. made her request for accommodation, and, therefore, denying the request was reversible error. (In re Marriage of James & Christine C., supra, at p. 1277.) The issue of prejudice from denial of Christine C.’s request was not argued. As Christine C. was representing herself in propria persona, denial of her request to continue the trial plainly caused her to suffer prejudice.
II. Denial of Motion to Dismiss the Consolidated Petitions
On July 14, 2006, McDonald’s counsel requested the recommitment trial commence “forthwith” and moved to dismiss the consolidated petitions on the ground of excessive delay in bringing the matter to trial. The trial court denied the motion, and, after several more continuances, the recommitment trial commenced on August 30, 2006. Relying on People v. Litmon (2008) 162 Cal.App.4th 383, McDonald argues the trial court violated his rights under the due process clause of the Fourteenth Amendment by denying his motion to dismiss the consolidated Third Petition and Fourth Petition.
A. SVPA Proceedings Are Subject to Due Process Protections.
“The Fourteenth Amendment’s Due Process Clause protects persons against deprivations of life, liberty, or property; and those who seek to invoke its procedural protection must establish that one of these interests is at stake.” (Wilkinson v. Austin (2005) 545 U.S. 209, 221; see U.S. Const., 14th Amend., § 1 [“nor shall any State deprive any person of life, liberty, or property, without due process of law”].) “The point is straightforward: the Due Process Clause provides that certain substantive rights—life, liberty, and property—cannot be deprived except pursuant to constitutionally adequate procedures.” (Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 541.)
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 [convicted felon is entitled to due process protection before being found to have a mental disease and transferred to a mental hospital].) The California Supreme Court recognizes, “[a]n SVPA commitment unquestionably involves a deprivation of liberty, and a lasting stigma.” (People v. Hurtado, supra, 28 Cal.4th 1179, 1194.)
Under these authorities, McDonald’s commitment and subsequent recommitment as an SVP was subject to due process protections.
B. Due Process Requirements in SVPA Proceedings: Predeprivation or Postdeprivation Hearing
1. Predeprivation Notice and Hearing
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; see Mathews v. Eldridge (1976) 424 U.S. 319, 333 (Mathews) [“The fundamental requirement of due process is the opportunity to be heard ‘at a meaningful time and in a meaningful manner’”].) “An essential principle of due process is that a deprivation of life, liberty, or property ‘be preceded by notice and opportunity for hearing appropriate to the nature of the case.’ Mullane v[.] Central Hanover Bank & Trust Co. 339 U.S. 306, 313... (1950).” (Cleveland Board of Education v. Loudermill, supra, 470 U.S. at p. 542, italics added.)
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, supra, 504 U.S. 71, 78 [continuing to hold dangerous person who is no longer mentally ill violates due process]; Jones v. United States (1983) 463 U.S. 354, 368 [“acquittee is entitled to release when he has recovered his sanity or is no longer dangerous”]; id. at p. 379 (dis. opn. of Brennan, J.).)
McDonald was accorded notice and a hearing on the consolidated Third Petition and Fourth Petition, but months after the end of the two year commitment period covered by the Third Petition, and seven months into the term covered by the Fourth Petition. 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, supra, 470 U.S. at p. 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 [“We tolerate some exceptions to the general rule requiring predeprivation notice and hearing, but only in ‘“extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.”’”].)
In this case, as in most or all SVP recommitment cases, the postponement of the recommitment trial until after the previous term of commitment has expired is supported by such an important governmental interest. The determination under the initial commitment petition provides the substantial assurance the deprivation is not baseless or unwarranted.
2. Postdeprivation Hearing: Mathews and Barker v. Wingo
Even in situations justifying a postdeprivation hearing, “[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. $8,850 (1983) 461 U.S. 555, 562.) In Mathews, supra, 424 U.S. at page 335, the Supreme Court identified three factors that usually determine 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.”
In Barker v. Wingo (1972) 407 U.S. 514 (Barker), 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.” (Barker, supra, 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.)
C. Litmon
In Litmon, supra, 162 Cal.App.4th 383, the Court of Appeal reversed an order committing David Litmon, Jr., to an indeterminate term of recommitment as an SVP. The Litmon court concluded the delay in bringing the recommitment petition to trial violated Litmon’s due process rights under both the Mathews due process analysis and the Barker speedy trial analysis.
Litmon was committed as an SVP in May 2000. (Litmon, supra, 162 Cal.App.4th at pp. 389 390.) A recommitment petition, filed in April 2002, sought to extend Litmon’s involuntary commitment for an additional two year term starting in May 2002. (Id. at p. 390.) In September 2005, following trial on the first recommitment petition, the jury found Litmon was an SVP. (Ibid.)
In February 2004, a second recommitment petition was filed to extend Litmon’s commitment for another two year term starting in May 2004. (Litmon, supra, 162 Cal.App.4th at p. 390.) In September 2005, a third recommitment petition was filed to extend Litmon’s involuntary SVP commitment for another two year term starting in May 2006. (Id. at p. 391.) Over Litmon’s opposition, the second and third recommitment petitions were consolidated. (Ibid.) In March 2006, the trial court declared a mistrial on the consolidated recommitment petitions because the jury could not reach a decision. (Ibid.) In April 2006, Litmon’s counsel told the court she was ready to try the case immediately. (Id. at p. 392.) Nonetheless, the trial court continued the trial to January 2007, after considering the deputy district attorney’s scheduling conflicts and time to update evaluations. (Ibid.)
In August 2006, Litmon filed a motion to dismiss the consolidated petitions, claiming the postponement of the retrial from April 2006 to January 2007 constituted excessive pretrial delay violating his due process rights. (Litmon, supra, 162 Cal.App.4th at p. 392.) The trial court denied the motion. (Id. at p. 393.)
Six days before the retrial was set to commence in January 2007, the People moved for a trial continuance on the ground expert witnesses were unavailable. (Litmon, supra, 162 Cal.App.4th at p. 393.) Litmon again moved to dismiss, claiming a violation of his due process rights. (Id. at p. 394.) Finding good cause for a continuance, the trial court denied the motion to dismiss and scheduled trial for March 2007, with motions in limine to begin on March 15. (Ibid.)
On March 8, 2007, the People moved to retroactively impose an indeterminate term under the new SVPA provisions. (Litmon, supra, 162 Cal.App.4th at p. 394.) The trial court granted the motion and ordered Litmon’s term of commitment to be indeterminate retroactive to the initial date of commitment. (Ibid.)
On appeal, Litmon argued the trial court violated his right to due process by denying his motions to dismiss the consolidated petitions on the ground of excessive delay in bringing the matter to trial after the declaration of mistrial in March 2006. (Litmon, supra, 162 Cal.App.4th at pp. 394 395.) The Court of Appeal examined principles of due process set forth in United States Supreme Court opinions and acknowledged a postdeprivation hearing may be justified in limited cases. (Id. at pp. 395 396.) To resolve the issue whether a delay in holding Litmon’s deprivation hearing amounted to a due process violation, the Litmon court evaluated Litmon’s claim under the analytical frameworks of both Mathews, supra, 424 U.S. 319 and Barker, supra, 407 U.S. 514 because, the court stated, it was not clear which analytical framework, or some amalgam, would govern a claim of excessive pretrial delay for involuntary civil commitments. (Litmon, supra, 162 Cal.App.4th at p. 399.)
As for the first Mathews factor—the private interest that will be affected by the official action—the Litmon court concluded, “[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.)
The Litmon court concluded the second Mathews factor—the risk of an erroneous deprivation through the procedures used—“is considerable” because the loss of Litmon’s liberty following May 2, 2004, 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.) The court stated the risk of erroneous deprivation was “highlighted” by the mistrial declared after the first trial when the jurors could not reach a decision. (Ibid.)
As to the third Mathews factor, 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.) The court concluded a predeprivation hearing is required in SVP cases and is feasible because persons potentially subject to an SVP commitment are identified while incarcerated or confined under a prior SVP commitment. (Id. at pp. 401 402.) However, the court stated: “We realize that, in this case, [Litmon] is not claiming that he was constitutionally entitled to a trial prior to expiration of his last ordered term of commitment on May 2, 2004, and he is not complaining about the delay prior to the trial setting hearing in April 2006.” (Id. at p. 402.)
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.) There was no showing the initial delay in setting retrial (March 2006 to January 2007) was mainly attributable to systemic problems for which the government was responsible, and it was not clear from the record the extent to which the delay in setting retrial was caused by Litmon’s counsel. (Id. at p. 404.) However, the court found the postponement of retrial from January to March 2007 “cannot be reconciled with those principles given the complete loss of liberty awaiting trial.” (Ibid.)
The Litmon court also applied a Barker speedy trial analysis and reached the same conclusion. (Litmon, supra, 162 Cal.App.4th at p. 405.) The court found the delay following the filing of the 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.) However, the 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 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.” (Id. at pp. 405 406.)
On the issue of overcrowded courts, the Limon 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.)
The Litmon court concluded the trial court should have granted Litmon’s January 2007 motion to dismiss the consolidated petitions (Litmon, supra, 162 Cal.App.4th at p. 406), reversed the recommitment order, and remanded with directions to dismiss the consolidated recommitment petitions (id. at pp. 412 413).
D. No Appellate Remedy for Any Delay in Trying Third Petition
McDonald urges us to follow Litmon and conclude the delay in trying the consolidated Third Petition and Fourth Petition violated his due process rights. We need not decide whether to follow Litmon because it is different from this case in a significant way. Litmon concerned an order of commitment for an indeterminate term, and, for that reason, reversal of the commitment order with directions to dismiss the consolidated petitions was a meaningful remedy for the due process violation. Here, in contrast, McDonald had completed the full two year period of commitment (February 2004 to February 2006) covered by the Third Petition when the trial on the consolidated petitions was held in September 2006.
In People v. Hayes (2006) 137 Cal.App.4th 34, the trial court conducted a probable cause hearing simultaneously with the trial of consolidated SVPA recommitment petitions. As the original commitment period was about to expire, the district attorney filed a first petition to recommit the defendant for another two years. (Id. at p. 44.) Due to numerous delays, that first recommitment petition had not been tried by the end of the two year recommitment period. (Ibid.) The district attorney filed a second recommitment petition for an additional two year period. (Ibid.) The trial court consolidated the two recommitment petitions and conducted a trial on them. (Ibid.) The court did not conduct a probable cause hearing on the second recommitment petition until the conclusion of trial on the consolidated petitions. (Ibid.) The Court of Appeal concluded the trial court erred by doing so, but the error was harmless. (Id. at p. 51.) In the disposition, the court stated, “[a]ny issue regarding Petition 1 is moot, because the two year term that could have been imposed on that petition has now expired.” (Id. at p. 52.)
It is the same here with any delay in bringing the Third Petition to trial. If McDonald suffered a due process violation from any such delay, reversal of the order denying McDonald’s motion to dismiss could not restore the two years already spent in involuntary commitment.
E. The Fourth Petition Was Lawfully Filed and Timely Tried.
Notwithstanding any delay in trying the Third Petition, the Fourth Petition was lawfully filed and timely tried. The DA filed the Fourth Petition on January 18, 2006, before the expiration of the two year period covered by the Third Petition, and seven months before McDonald moved to dismiss the consolidated petitions. The SVPA does not require a subsequent commitment order be obtained before expiration of the commitment period, if the petition for subsequent commitment is filed before the end of the commitment period. (Orozco v. Superior Court (2004) 117 Cal.App.4th 170, 178 179; People v. Superior Court (Ramirez) (1999) 70 Cal.App.4th 1384, 1390.)
In In re Smith (2008) 42 Cal.4th 1251, 1254 1255, the California Supreme Court interpreted Welfare and Institutions Code section 6601, subdivision (a)(2) to conclude an SVP commitment is not authorized when the felony conviction that was the basis for custody at the time the SVP proceedings were commenced has been reversed on appeal and the SVPA defendant is not retried. Section 6601, subdivision (a)(2) provides that an SVPA petition “shall not be dismissed on the basis of a later judicial or administrative determination that the individual’s custody was unlawful, if the unlawful custody was the result of a good faith mistake of fact or law.” The Supreme Court construed this section “not to apply to someone..., whose conviction that was the basis of his prison custody at the time SVP proceedings were initiated has been reversed, and who has not been retried and reconvicted.” (In re Smith, supra, 42 Cal.4th at p. 1269.) The court held the SVP defendant’s petition for writ of habeas corpus should have been granted because the SVPA petition was filed while he was in custody on a felony conviction that was reversed on appeal, and not retried and reconvicted. (Id. at pp. 1270 1271.)
In re Smith did not address the situation in which an SVPA recommitment petition is filed during a period of involuntary SVPA commitment later found to be unlawful. In re Smith concerned only the interpretation of Welfare and Institutions Code section 6601, subdivision (a)(1), which addresses the situation in which the felony conviction that was the basis for the SVPA proceeding is reversed and the defendant is not retried. In general, when a recommitment petition is lawfully filed, the petition should not be dismissed on the ground the petition that was the basis for the SVPA involuntary commitment during which the recommitment petition was filed is later held to have been untimely tried. An exception would arise when a recommitment petition is filed in bad faith to prolong the delay in bringing a petition to trial or to avoid the consequences of delay. We find no bad faith here. Thus, the Fourth Petition was lawfully and timely filed and tried.
The trial on the consolidated petitions was held seven months into the two year commitment period covered by the Fourth Petition. McDonald does not argue, and we do not conclude, seven months is a sufficiently long period of time under the circumstances of this case to amount to excessive delay constituting a due process violation.
In an SVPA case such as this, in which successive two-year recommitment petitions are filed, a petition for writ of mandate to compel the trial court to hold a trial within a specific time frame, to dismiss the SVPA petition, or to vacate a consolidation order may be necessary to preserve a meaningful remedy for claimed excessive delay in bringing a petition to trial. (See Litmon v. Superior Court (2004) 123 Cal.App.4th 1156.) McDonald’s failure to bring a petition for writ of mandate does not bar the appeal, but it does affect the remedy available for any due process violation. Even were we to conclude the delay in bringing the Third Petition to trial was a due process violation, we cannot restore the two years of commitment covered by that petition, and the trial on the Fourth Petition, which was filed lawfully and in good faith, was timely tried.
We emphasize that, in light of the state of the law at the time, McDonald’s trial counsel was not ineffective for not petitioning for writ of mandate either to seek reversal of the order denying the motion to dismiss the consolidated petitions or to compel an immediate trial. (See People v. Hayes, supra, 137 Cal.App.4th 34.)
We do not, however, condone the delays that occurred in this case. While we realize there is a severe backlog of cases in Riverside County Superior Court, as the Litmon court stated, “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.” (Litmon, supra, 162 Cal.App.4th at p. 403.) Problems such as heavy caseloads, lack of judges, and underdeveloped expert witness pools cannot be used to “routinely excuse[]” lengthy postdeprivation, pretrial delays in SVPA proceedings. (Ibid.)
Disposition
The September 13, 2006 order of recommitment and September 6, 2007 amended order for commitment are affirmed.
WE CONCUR: SILLS, P. J., BEDSWORTH, J.