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Indeterminate Civil Commitment Provisions Do Not Apply Retroactively
The Court of Appeal of California, Sixth Appellate District, has reversed and remanded with instructions to dismiss a Sexually Violent Predator (SVP) certification.
Joseph Johnson, Jr., was convicted of rape and sentenced to 33 years in prison in 1980. In 2000, he was civilly committed for two years under the SVP law. The California legislature subsequently amended its SVP law, permitting indeterminate civil commitment of sex offenders. The trial court eventually recertified Johnson as an SVP and ordered indeterminate commitment.
Johnson appealed the indeterminate commitment as an SVP and the court of appeals, with a concession by the state, reversed. The court held that amendment to the SVP law permitting indeterminate commitment could not be applied retroactively. See: People v. Johnson, Cal. App., 6th Dist., No. H031765 (2009).
Joseph Johnson, Jr., was convicted of rape and sentenced to 33 years in prison in 1980. In 2000, he was civilly committed for two years under the SVP law. The California legislature subsequently amended its SVP law, permitting indeterminate civil commitment of sex offenders. The trial court eventually recertified Johnson as an SVP and ordered indeterminate commitment.
Johnson appealed the indeterminate commitment as an SVP and the court of appeals, with a concession by the state, reversed. The court held that amendment to the SVP law permitting indeterminate commitment could not be applied retroactively. See: People v. Johnson, Cal. App., 6th Dist., No. H031765 (2009).
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Related legal case
People v. Johnson
| Year | 2009 |
|---|---|
| Cite | Cal. App., 6th Dist., No. H031765 (2009) |
| Level | State Court of Appeals |
THE PEOPLE, Plaintiff and Respondent, v. JOSEPH JOHNSON, JR., Defendant and Appellant.
H031765
COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT
2009 Cal. App. Unpub. LEXIS 410
January 20, 2009, Filed
OPINION
Appellant challenges his commitment as a Sexually Violent Predator (SVP). He contends that he was denied due process by the consolidation of his recommitment petitions and the repeated continuances of the trial date and that the trial court should have dismissed the petitions. He further contends, and respondent concedes, that the trial court lacked the authority to retroactively convert his SVP commitment to an indeterminate term. We reverse the order imposing an indeterminate term and remand with directions to dismiss the petitions.
Background
In 1980, appellant was convicted of two counts of rape and sentenced to 33 years in prison. In 2000, appellant was committed to the Department of Mental Health (DMH) as an SVP for a two-year term under the provisions of the Sexually Violent Predator Act (SVPA). 1 (Welf. & Inst. Code, § 6600 et seq.) In 2002, prior to the expiration of the first commitment, the People filed a petition (2002 petition) to recommit appellant as an SVP for a two-year term to end in May 2004. By February 2004, no trial had been held on the 2002 petition and the People filed another [*2] petition (2004 petition) to recommit appellant for a two-year term that would end in May 2006. Over appellant's objection, the trial court consolidated the 2002 petition and the 2004 petition for trial. Appellant, and another SVP, David Litmon, who also had had two pending SVP recommitment petitions consolidated over his objection, sought writs of mandate challenging the trial court's consolidation of the petitions. In Litmon v. Superior Court (2004) 123 Cal.App.4th 1156 (Litmon I), this court granted appellant's petition for writ of mandate and held that it was error for the trial court to order consolidation over objection when a consolidated trial could occur only if the earlier petition was further delayed. This court directed the trial court to vacate the consolidation order and to set the 2002 petition for trial "forthwith" and to complete the probable cause hearing on the 2004 petition "as expeditiously as possible." (Id. at p. 1178.)
FOOTNOTES
1 This court affirmed this initial commitment in People v. Johnson, H021605, filed August 22, 2001. We have taken judicial notice of the opinions, dockets, and records on appeal in that case as well as those in People v. Johnson, H029316, filed October [*3] 17, 2007, and In re Johnson, H030570 (writ of prohibition denied November 20, 2006).
In the appeal from appellant's initial commitment, two evaluators designated by the DMH had failed to agree on whether appellant was an SVP. The DMH appointed two more evaluators, and they also failed to agree whether appellant was an SVP. Later, the evaluator from the first set who had concluded that appellant was not an SVP wrote the DMH saying that she had changed her mind. The People then filed the commitment petition based on the opinions of the first two evaluators. Appellant demurred to the petition, arguing that the petition failed to have attached to it a required affidavit asserting that two mental health evaluators had concurrently concluded that appellant met the criteria for an SVP. The trial court overruled the demurrer and the matter proceeded to trial. Johnson appealed. This court held that appellant could not show prejudice because he had been found to be an SVP after a trial.
The remittitur in Litmon was issued on January 28, 2005. Appellant was not in court again until March 9, 2005. By March 11, 2005, the 2002 petition had been assigned to a trial department and the 2004 petition [*4] trailed. On April 6, 2005, defense counsel argued a motion to dismiss the 2002 petition as moot. Counsel observed that "[e]veryone agrees that this petition was supposed to cover the period from 2002 to 2004. Mr. Johnson's most recent commitment ended on May 24, 2002. The case was set for trial. We were prepared to proceed to that trial on April 24, 2004, and motions in limine were heard on that case on March 31, 2004, and all parties indicated they were ready on that Friday, and that would have been April 3." Counsel pointed out that it was the People's motion to consolidate the 2002 petition with the 2004 petition, the trial court granting that motion, and appellant's seeking writ relief from that erroneous order from this court that brought about the delay. Counsel argued, "Mr. Johnson is entitled to a trial at a meaningful time and in a meaningful manner. . . . To have a trial now, if Mr. Johnson is found to meet the criteria the only option this court would have would be to sign a commitment order that covers a time between 2002 to 2004, is basically proving the point that this petition is moot . . . ." The trial court denied the motion to dismiss. 2 The court acknowledged that [*5] appellant now had two cases pending, and told appellant that the court could place the 2002 petition on the master trial calendar if appellant "want[ed] it outside the present schedule of this courtroom." Defense counsel expressed concern about the availability of her witnesses and accepted the trial court's next available trial date of August 22, 2005. From August 15 to September 2, 2005, the court conducted the jury trial on the 2002 petition. Dr. Douglas Korpi and Dr. Lisa Jeko testified for the People. Dr. Jeko testified that she had inadvertently considered Dr. Korpi's current report in preparing her evaluation. She said that although it was considered "perfectly okay" to look at a past evaluator's assessments, an evaluator is "not supposed to look at the assessment of the evaluator who is currently involved in this case." Dr. Jeko explained that "because of time lags in these cases . . . [i]t is often difficult to find out which evaluations are corresponding to the current one." The jury found the 2002 petition true. On September 6, 2005 the trial court committed appellant as an SVP until May 24, 2004.
FOOTNOTES
2 In People v. Johnson, H029316, appellant contended, among other things, that [*6] the trial court should have granted this motion to dismiss the petition. This court said, "Assuming for the sake of argument that trial on the 2002 petition was moot, this appeal is also moot for the same reasons: defendant has already served the two-year recommitment period to which the 2002 petition pertained; furthermore, he has already had the trial which he says he should not have had."
At the probable cause hearing on the 2004 petition, Dr. Korpi and Dr. Jeko testified again. Dr. Korpi testified that he was on a panel of five evaluators who serve as consultants for the other SVP evaluators. Dr. Jeko acknowledged that she had considered Dr. Korpi's current evaluation in preparing her update, but testified, "I'm still going to do my own evaluation." During this hearing, the trial court sustained a relevance objection to defense counsel's question to Dr. Jeko as to whether Dr. Korpi's opinion held "a lot of weight in [Dr. Jeko's] eyes." On September 22, 2005, the court found that there was probable cause as to the 2004 petition. The trial court set the 2004 petition for February 23, 2006, for in limine motions and pretrial conference and, by agreement of the parties, March 6, 2006, [*7] for trial. 3
FOOTNOTES
3 Defense counsel told the court, "First and foremost, these cases normally take about two months to set up because the evaluators have numerous subpoenas across the state." Counsel explained that she was scheduled for trial in October, November, and January. She said that the soonest she could be ready in appellant's case was February, and if she were to be replaced "then as soon as another attorney will be ready would be March."
On October 5, 2005, the People filed a petition (2006 petition) to extend appellant's commitment from May 2006 to May 2008. Dr. Jeko and Dr. Korpi testified at the probable cause hearing. Dr. Korpi testified that 90 percent of the time he had found the person that he had evaluated for a recommitment petition to be an SVP. Dr. Jeko testified that she had found the person that she had evaluated for recommitment to be an SVP 100 percent of the time. The court found probable cause as to the 2006 petition on January 5, 2006. Jury trial was set for June 19, 2006.
On January 12, 2006, the People filed a motion to consolidate the 2004 petition and the 2006 petition. The People acknowledged Litmon I, but argued that, because the issue at trial in both of [*8] the petitions was appellant's current condition, it "defies logic and judicial economy to have two separate trials to resolve the exact same issues." The People asserted that "[t]he consolidation of these cases would not necessitate any delay or continuance." Appellant objected to consolidation. Counsel argued that "the petition we are going to try ends in May of 2006, this year." Appellant said that the 2004 petition was ready to be tried but that the 2006 petition was defective because it was based on the same reports by Dr. Korpi and Dr. Jeko that had served as the basis for the 2004 petition. Appellant argued that "a person who is the subject of the petition may not be recommitted without new and full evaluations supporting the recommitment petition." Appellant cited in support Butler v. Superior Court (2000) 78 Cal.App.4th 1171, in which this court said that before a new petition for recommitment could be filed a "full evaluation" of the person must be conducted. (Id. at p. 1182.) Defense counsel expressed the hope that before the June trial date for the 2006 petition "those deficiencies are corrected and new and full evaluations are done with Mr. Johnson." He said that if that [*9] were to happen, "it is possible that Mr. Johnson will cooperate and talk to the doctors fully, something he has not done for the last two petitions."
The trial court remarked that "we have this tension where the defense is asking for speedy trials, but at the same time they are asking for no consolidation and continuance and they are filing writs and appeals on every decision that is made until the point where the litigant is of such an age that the doctors are then of the opinion that maybe he won't offend at that point." Defense counsel pointed out that the fact that the 2006 petition "was filed without these new and full reports, that's not Mr. Johnson's fault." The prosecutor accused defense counsel of "doctor shopping." Defense counsel said, "If it's the same two doctors that reviewed him in the future that's great. I like Dr. Jeko and Dr. Korpi. They are very good doctors and they talk to defense counsel outside so there is nothing hidden with these doctors. They are great doctors." The next day, the People asked these two doctors for updated evaluations of appellant.
On February 2, 2006, the trial court granted the People's motion to consolidate the 2004 petition with the 2006 [*10] petition. The trial court said that consolidation would not result in delay because both petitions "are ready to go to trial with all the probable cause hearings completed and the witnesses identified." The court said that appellant would not be prejudiced by consolidation because "requesting a 'full evaluation' will make no difference to the readiness" of the 2004 and 2006 petitions. The court advanced the June trial date previously set for the 2006 petition to March 6, 2006, the date previously set for trial on the 2004 petition. On February 10, 2006, counsel stipulated to a continuance of the March 6 trial date to March 13, 2006. On February 23, 2006, the court ruled on the in limine motions. The People's in limine motions stated that the People anticipated calling Dr. Jeko and Dr. Korpi as witnesses and the trial court acknowledged this in ruling on the motions.
Meanwhile, the doctors conducted their updated evaluations. Dr. Korpi had previously evaluated appellant in 2003, 2004, and 2005, and found him to be an SVP although he had not had "an opportunity to speak with [appellant] at any length" on these occasions. In a report dated February 26, 2006, Dr. Korpi stated that he had [*11] reinterviewed appellant and concluded that appellant was not an SVP. He noted that appellant was almost 60 years old, and "rapes occur at a very low rate after the age of 60."
Dr. Jeko, who had previously evaluated appellant in 2003 and 2005 and had found him to be an SVP, re-interviewed appellant and determined that appellant no longer met the criteria for an SVP. Although her report is dated February 2 and February 9, 2006, the minute order from March 8, 2006, states that the March 13 trial date was vacated because the court was "awaiting report from Dr. Jeko." The court set the matter for March 24, 2006 for trial setting.
On March 21, Deputy District Attorney James Cahan wrote to Atascadero State Hospital that "Dr. Jeko, through no fault of her own became aware that Korpi had changed his mind and now found Mr. Johnson not to meet the criteria as an SVP." Although Cahan stated that he did "not necessarily believe that Dr. Jeko's opinion was affected by Dr. Korpi's," he nevertheless asked that Dr. Jeko be replaced as an evaluator on the case. On March 24, the court continued the matter to April 7, 2006, because, although both evaluations had been completed, Dr. Jeko's evaluation might [*12] have been "corrupted."
On April 7, 2006, the court considered the matter of Dr. Jeko's report. Appellant acknowledged that, during preparation for trial, defense counsel had contacted Dr. Jeko and, during their discussions, had informed her of Dr. Korpi's updated conclusion that appellant was no longer an SVP. 4 Appellant noted that although the DMH protocol for evaluators recommended that there be no discussion among current evaluators regarding a case, nothing in the protocol prohibited this nor did it prohibit trial counsel from discussing the case with the evaluator. Appellant took the position that there was no authority for the appointment of another evaluator to replace Dr. Jeko. Appellant argued that the removal of Dr. Jeko would violate appellant's due process rights. The prosecutor argued that because Dr. Korpi was one of five doctors who served on the SVP consultant panel, who are called upon to answer questions for less experienced evaluators, "his opinion is an important one and the fact that Dr. Jeko is aware of his finding prior to preparing her report . . . can't help but have some influence, albeit subconsciously, to the other evaluator." The prosecutor also informed [*13] the court that the DMH had appointed a new evaluator whose report was due in "only a couple of weeks . . . so there is not any substantial delay as far as the trial is concerned."
FOOTNOTES
4 There was some discussion of whether the public defender who had informed Dr. Jeko of Dr. Korpi's evaluation had a conflict in the case, but it was determined that he did not.
The trial court ordered Dr. Jeko removed as the second evaluator and ordered "a true and independent evaluator" be assigned. The new evaluator was Dr. Jeremy Coles. The court said that as a "practical matter," were the court to rule at trial that Dr. Jeko's evaluation was inadmissible, the trial could not proceed "because we would only have one evaluation[,] [a]nd we would have lost several months because these SVPA cases take several months to line up." The trial court discussed the matter with counsel off the record and continued the case to May 19, 2006, noting that Dr. Coles's evaluation should be completed by then and "the People may not go to trial if there are two negative reports."
In a report dated April 30, 2006, Dr. Coles wrote that he had interviewed appellant on April 13, 2006. Dr. Coles found appellant to be "cooperative," [*14] "serious," "likeable," and "talkative." Dr. Coles took into consideration that "religious conversions are a dime a dozen in the sex offender population" and that "there is no evidence to suggest that praying eliminates preying." He noted, however, the "trend of a noticeable, growing extinction of antisocial proclivities towards a more prosocial orientation in Mr. Johnson's psychological make-up." Dr. Coles also considered that appellant was "fast approaching" the age of 60, a time at which "the limited exi[s]ting research available points to a significant reduction in recidivism rates." Dr. Coles concluded that appellant did not meet the criteria for an SVP. In the clerk's transcript, this report bears a stamp from Atascadero State Hospital certifying it as a true copy with the date May 8, 2006.
On May 19, 2006, the court said that Dr. Coles's report, "has not been received, or more accurately it was apparently sent, but it is somewhere in the District Attorney's Office." Defense counsel said that appellant objected to any continuance beyond May 24, 2006, "for the very simple reason" that appellant's current recommitment would expire on that date. Cahan appeared for the People and told [*15] the court, "Ultimately I will be making a decision what happens with this case as a unit leader and I will be gone until May 30th. Even if we get the reports today it's optimistic that we will be able to review them and make a decision if we will proceed in this case or not and how." The court addressed Cahan, saying, "Depending on what the result is it may be that you will be dismissing the case, it may be that you will go forward on the case or it may be that there is a need for another psychiatric report." Cahan told the court, "We either will be dismissing depending on what the reports say or we will be going forward or need some additional time and hopefully the third option will not be necessary."
On June 2, 2006, appellant filed a motion to dismiss the consolidated petition. Appellant argued that the petition was "legally insufficient" because under Welfare and Institutions Code section 6601, subdivision (d), two evaluators had to concur before a petition could be filed and "the factors that supported the filing of the petition no longer exist. All of the state doctors who have completed current evaluations have concluded that Mr. Johnson does not meet the SVP criteria." The [*16] court continued the matter to June 30 to hear the motion to dismiss and for trial setting.
On June 30, 2006, the trial court denied appellant's motion to dismiss. The court acknowledged that "Mr. Johnson would like his matter tried as soon as possible. That's what we all want, that's what this court wants." However, the trial court set a schedule for filing and hearing in limine motions and set the matter for trial on January 8, 2007. The court said that "[t]he dates were based upon the availability of the attorneys, because both of these attorneys do [SVP] cases and since both of these attorneys are booked on trials that are hard go cases on dates certain. . . . [Defense counsel] wanted January because he needed to line up one or two experts that would only be available in January." The court set the trial for January 8, 2007. Later that day, when the parties were no longer present, the court continued the trial to January 22, 2007, because "a conflict was discovered," presumably with the court's calendar.
In December 2006, the parties filed motions in limine. Included on the People's witness list was Dr. Dale Arnold. Appellant's motions in limine said that, despite the concurrence [*17] of the three state-appointed evaluators that appellant was not an SVP, the People "without an[y] authority under the law, went out and hired Dr. Arnold to review Mr. Johnson['s] records and present an opinion." Appellant asked the court that Arnold not be permitted to testify and that the court exclude any reference by Arnold to appellant's confidential medical records. The trial court heard the motions in limine on January 12, 2007, and ruled on them January 19, 2007. The trial court ruled that Arnold could testify, noting that the SVPA does not "specifically prevent" "any party to a civil lawsuit from calling rebuttal experts." The court was in trial on January 23 so appellant's case trailed in that department for a day.
On January 24, 2007 the People filed an amended petition "covering a term of commitment from May 24, 2004 to May 24, 2008," and asking the court to extend appellant's "involuntary commitment date from May 24, 2004, until the term prescribed by law." Also on January 24, 2007, the court said that a supervisor from the Public Defender's Office had told the court ex parte the day before that the deputy public defender who had most recently been handling appellant's case [*18] was ill and would not be available "for several weeks." The court had inquired whether another deputy public defender, who had previously worked on the case for "six months to a year," might be available to try the case. In court, another representative of the Public Defender's Office said that the previous attorney "could be ready in one week's time, but he could not start today." Cahan objected to a continuance and said that he thought that the previous defense attorney could prepare during voir dire because that attorney had "prepared the papers" and "subpoenaed the witnesses."
The court said, "That is a difficulty because none of the witnesses will be available if we start the trial next week except for perhaps the ones who are going to be going on behalf of respondent. . . . [P] The nature of the SVPA cases is that the experts are scheduled up and down the state. For instance, on Monday they are in San Diego. Tuesday they are in Los Angeles. Wednesday they are in San Francisco. And so to schedule them we need probably a three-month lead minimum." The court continued the matter for one week to February 2, 2007, for trial setting "so that the attorneys can look at our trial availability. [*19] As it's known to both parties, we have about six months worth of SVPA cases already scheduled and there are no openings except for, I believe, May and thereafter." On February 2, the matter was continued to July 20, 2007, for motions in limine and September 10, 2007, for trial.
On March 16, 2007, appellant filed a pro per "petition for unconditional discharge." He contended that it was a violation of his "liberty interest and his Due Process rights under the California and the United States Constitutions" to continue to confine him once the evaluators had determined that he was no longer an SVP. His petition was based on 2006 amendments to the SVPA that said that if the DMH determines that an SVP's condition has so changed that the person no longer meets the definition of an SVP the Director of Mental Health shall authorize the person to petition the court for unconditional discharge. Appellant attached copies of two letters. One was from the Medical Director of Atascadero State Hospital, dated May 8, 2006, to the DMH stating that the two updated evaluations found appellant "to not be one of the members of the class described" in the SVPA. The second letter was dated May 16, 2006 and [*20] was from the Director of the DMH to the District Attorney in which the Director stated that the two updated evaluations found that appellant did not meet SVP criteria. Appellant's petition for discharge was set for March 28, 2007, at which time it was apparently ordered off calendar.
On May 29, 2007, the People, based on the same 2006 amendments to the SVPA that appellant had cited in his petition for unconditional discharge, filed a motion to "retroactively apply an indeterminate term to respondent." The People argued that the retroactive commitment would not violate appellant's due process rights because, "[t]o ensure people are not kept in custody longer than necessary, the [SVPA] continues to provide for annual mental evaluations and regular opportunities for the SVP to petition for conditional or unconditional release with or without the concurrence of DMH. It also permits DMH to recommend conditional release to the court anytime it believes the person's condition has changed, whether or not he is then due for his annual review." In opposition, appellant argued, among other things, that the retroactive commitment on a "seven-year-old commitment" would be an "injustice" in that "three [*21] state evaluators and the Director of the Department of Mental Health now conclude Mr. Johnson does not meet the criteria as an SVP." In response, the People asserted that the opinions of the evaluators and the Medical Director of Atascadero had "no bearing before the court." On June 29, 2007, the trial court granted the People's motion and ordered that appellant's "term of commitment is indeterminate retroactive to his initial order of commitment dated May 24, 2000."
The opening brief in this matter was filed in April 2008, several months after appellant's sixtieth birthday.
Due Process
Appellant contends that he "was deprived of due process when the court consolidated recommitment petitions and repeatedly continued the trials for months without good cause." He argues that "he was deprived of due process when he remained confined without trial though all state experts agreed he no longer qualified for confinement, and to the extent he agreed to delays in his trials, he did so without notice that the action would result in the complete denial of a right to a trial."
As noted above, appellant and David Litmon, another SVP, were before this court challenging the trial court's consolidation [*22] of SVP petitions in Litmon v. Superior Court, supra, 123 Cal.App.4th 1156 (Limon I). In Litmon I, this court granted appellant's petition for writ of mandate and held that it was error for the trial court to order consolidation of two pending SVP petitions over objection when a consolidated trial could occur only if the earlier petition was further delayed. We observed, "Delays approaching or even exceeding the two-year mark inevitably result in the de facto commitment of persons as SVPs for the entire period, albeit without benefit of a verdict reflecting that the person's current mental condition warrants his or her commitment. No one disputes that this is an undesirable result." (Id. at p. 1170.) We said that "we believe every effort consistent with existing statutory law must be made to bring SVP petitions to trial expeditiously and certainly well before the expiration of the very two-year commitment period at issue in the trial." (Id. at p. 1172.)
This court observed, "The SVPA is designed to ensure that the continued confinement of an SVP is justified, if at all, at least every two years. The legislative scheme's emphasis on frequent justification for the confinement of each SVP [*23] demands that an SVP not be confined without an adjudication of the justification for that confinement, solely because judicial resources will thereby be conserved." (Litmon I, supra, 123 Cal.App.4th 1156, 1176.) In both appellant's and Litmon's cases, this court ordered the trial court to vacate the consolidation order, set the earlier recommitment petition for trial forthwith and complete as expeditiously as possible the probable cause hearing on the later petition.
Following our remand and further proceedings in the trial court, David Litmon returned to this court. In People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon II), this court held that subsequent delays in Litmon's case violated his right to due process and a speedy trial. We noted that the commitment resulted in a significant deprivation of Litmon's liberty, as he remained confined pending a hearing, long after the initial two-year period of commitment had expired and when the third commitment period was set to expire.
Appellant argues that "the delays in this case were similar to those in Litmon II. The government convinced the court to consolidate the recommitment petitions, which constituted an abuse of discretion. The [*24] government secured further continuances without good cause, and each continuance stretched for six to nine months to accommodate court congestion, busy prosecutors, and busy government witnesses. As in Litmon II, the interminable, systematic postdeprivation delays that only the government could control deprived appellant of due process under the Fourteenth Amendment."
The remittitur in Litmon I was issued on January 28, 2005. As in appellant's case, Litmon was recommitted as an SVP for an additional two-year term following a jury trial in September 2005. In Litmon's case, as here, subsequent petitions were filed seeking recommitment for consecutive two-year terms. In Litmon's case, as here, both petitions were set for trial and then, on the People's motion and over defense objection, consolidated.
In Litmon's case, the consolidated petitions proceeded to trial in 2006 and the jury deadlocked. A mistrial was declared. In March 2006, a new trial setting date was scheduled and, later, the court announced that due to the schedules and availability of both the deputy district attorney and the defense attorney, the first date possible for trial was in January 2007. The trial court also considered [*25] the time needed for the completion of updated evaluations, given the requirement of determining appellant's current mental status at the time of trial. Litmon objected to the trial date set and requested that trial start immediately. Four-and-a-half months later, in August 2006, Litmon filed a motion to dismiss based on an alleged denial of his right to a speedy trial. The trial court denied the motion in September 2006.
The People requested a continuance of the January 2007 trial date because, despite subpoena efforts, necessary witnesses were unavailable for trial. Litmon opposed the continuance and filed a separate motion to dismiss based again on an alleged denial of the right to a speedy trial. The court denied the motion to dismiss. As in appellant's case, the trial court converted Litmon's two-year commitment term to an indeterminate term under the new version of the SVPA.
Litmon appealed. In People v. Litmon, supra, 162 Cal.App.4th 383 (Litmon II), this court held that the post-deprivation delay on the People's consolidated petitions to involuntarily commit Litmon violated his right to due process and a speedy trial. We reviewed the principles of procedural due process and recognized, [*26] "It is not entirely clear what analytical framework, Mathews [v. Eldridge (1976) 424 U.S. 319, 96 S.Ct. 893], Barker [v. Wingo (1972) 407 U.S. 514, 92 S.Ct. 2182] or some amalgam, will ultimately be applied by the United States Supreme Court in evaluating a procedural due process claim of excessive pre-trial delay in the context of involuntary civil commitments. In the circumstances of post-deprivation delay of the right to be heard, both approaches involve careful balancing of the competing interests and inquiry into the justifications offered by the government for the delay." (Litmon II, supra, 162 Cal.App.4th at p. 399.)
In applying the tests of these procedural due process cases to Litmon's situation, we considered the loss of personal freedom by forced confinement in a mental institution to be of great significance. That factor weighs heavily here as well. We then considered the risk of an erroneous deprivation in Litmon II to be considerable. We said that the risk of error was great in that the mistrial over two years prior indicated that the jury might not find that Litmon was an SVP. Here, the risk of the erroneous deprivation of liberty is far greater. It may have been a single [*27] juror, a lay person, in Litmon II that brought about deadlock resulting in the mistrial. Here, three experts, routinely relied upon by the People to secure SVP commitments, including an evaluator on the SVP consulting panel, reviewed appellant's history, and interviewed him. They unanimously concluded that appellant did not meet the criteria for commitment as an SVP. The risk of erroneous deprivation here is enormous.
Considering the state's interest, we said that "the state 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 II, supra, 162 Cal.App.4th at p. 401.) We speculated that the government may have had an additional interest in conserving limited resources, which constrained its ability to provide expeditious SVP proceedings. We determined, however, that "this pecuniary interest runs counter to the interest of the state in avoiding unjustified confinement of individuals not qualifying as SVPs and any potential liability [citation]. In any case, such pecuniary interest must be accorded a much lesser weight than the quintessential liberty interest at stake here." (Ibid.)
Considering [*28] all of the above, we said 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. When an SVP trial does not take place until after or into the term of commitment at issue, the trier of fact never actually determines whether the person was an SVP while confined pending trial following expiration of the lastordered commitment." (Litmon II, supra, 162 Cal.App.4th at pp. 401-402.) Here, by the time the trial court ordered appellant committed for an indeterminate term, in June 2007, his previous commitment had expired over three years earlier.
Respondent argues, "Appellant's decision to demand separate trials, and to request the second trial be held after the first, in the hopes that the first jury would find appellant not to be an SVP, cannot be attributable to the government." It is true that, following this court's ruling in Litmon I that it was error for the trial court to consolidate the 2002 petition with the 2004 petition, [*29] appellant objected to the trial court's consolidation of the 2004 petition with the 2006 petition. Appellant was ready for trial on the 2004 petition, and, just as appellant had predicted in his opposition, further delay ensued due to the consolidation. But even if we were to consider the government blameless in the delay that the consolidation occasioned, other lengthier delays are most definitely attributable to the government.
Appellant argues, "The government's motion for a third evaluation should have been denied. The government was not entitled to a new evaluation and further delay of the trial merely because the evidence opposed a new commitment." Considerable delay did ensue from the trial court's removal, at the People's request, of Dr. Jeko from appellant's case, and there was no basis for doing so. Welfare and Institutions Code section 6603, subdivision (c)(1) permits the prosecuting attorney to request updated evaluations if he or she determines that these are necessary "in order to properly present the case for commitment." However, this does not authorize the replacement of an original evaluator unless he or she "is no longer available to testify for the petitioner in [*30] court proceedings." Subdivision (c)(2) specifically defines the circumstances, none of which are applicable here, under which an evaluator is to be considered "no longer available to testify for the petitioner in court proceedings." 5
FOOTNOTES
5 "No longer available to testify" means "that the evaluator is no longer authorized by the Director of Mental Health to perform evaluations regarding sexually violent predators as a result of any of the following: [P] (A) The evaluator has failed to adhere to the protocol of the State Department of Mental Health. [P] (B) The evaluator's license has been suspended or revoked. [P] (C) The evaluator is unavailable pursuant to Section 240 of the Evidence Code." None of these applied to Dr. Jeko. As appellant informed the court, "The Clinical Evaluator Handbook and Standardized Assessment Protocol for the California Department of Mental Health sets forth two separate and distinct set[s] of rules for the initial evaluation and any updated evaluations. In the section dealing with the initial referral from DMH, the handbook states that 'DMH recommends that there is no discussion among the current evaluators regarding the case.' The handbook's use of the word 'recommends' [*31] necessarily implies that evaluators are not prohibited from speaking with other evaluators in an active SVP case. [P] . . . [T]he protocol does not affirmatively prohibit [Dr. Jeko] from learning the conclusions drawn by the other evaluators in Mr. Johnson's case. . . . [A] separate section of the handbook deals with the requirements of updated evaluations as opposed to an original evaluation. . . . [T]his section of the protocol . . . contains no recommendation that evaluators avoid discussing the case with each other. Nor is there any recommendation that evaluators not discuss the case with the attorneys from either side."
Respondent does not defend the trial court's ruling to remove Dr. Jeko, but takes the position that "[a]ppellant has not demonstrated that the prosecutor or DMH deliberately attempted to delay the trial by asking for a new evaluator; indeed, had defense counsel not revealed Dr. Korpi's opinion, the prosecutor would have had no grounds to ask for a new evaluation and no delay would have occurred. Thus, even if the trial court was ultimately incorrect in its ruling, the delay was the result of defense counsel's action and the resulting litigation."
The People relied [*32] on Dr. Jeko's opinion in the jury trial on the 2002 petition despite her testimony that she had inadvertently considered Dr. Korpi's current report, which concluded that appellant was an SVP, when she conducted her evaluation. The People relied on Dr. Jeko's opinion at the probable cause hearing on the 2004 petition despite her testimony that she had considered Dr. Korpi's current evaluation concluding that appellant was an SVP in preparing her update. At that probable cause hearing, in sustaining an objection made by the People, the trial court ruled that the impact of Dr. Korpi's opinion that appellant was an SVP on Dr. Jeko was irrelevant. This was the same trial judge who, at the People's request, removed Dr. Jeko because she had heard of Dr. Korpi's updated opinion that appellant was not an SVP.
As to the request by the People to continue the trial from May 19, 2006, to June 2, 2006, we observe that appellant objected in the trial court to any continuance past the expiration of his then-current commitment. Appellant contends that there "was no need to continue the matter to accommodate" Cahan. Respondent acknowledges that Cahan was not the trial attorney assigned to the case, but [*33] argues that, because Cahan was the unit supervisor, "it was not unreasonable for the court to accommodate his schedule instead of proceeding immediately to trial, especially if it meant that appellant's case might be ultimately dismissed." However, as appellant points out, "Cahan said he needed to be involved because, depending on the outcome of the third evaluation, he might choose to dismiss the petition. The third evaluator, Dr. Coles, agreed with the other two evaluators that appellant did not qualify for commitment. It is difficult to determine what else Dr. Coles could have said that would have prompted Cahan to dismiss the petition. The government's reason for continuing the trial to June did not constitute good cause."
The removal of Dr. Jeko by the trial court at the People's request and the continuance of the trial date to June to accommodate Cahan's further consideration of the case triggered the predictable cascade of further delays due to the well-known scheduling difficulties in SVP cases. For example, when defense counsel became ill, and previous defense counsel would be available to try the case the following week, the court said, "That is a difficulty because none of [*34] the witnesses will be available if we start the trial next week except for perhaps the ones who are going to be going on behalf of respondent." The court's reference to the respondent's witnesses is, presumably, a reference to the three experts, two of whom had repeatedly testified on behalf of the People in previous hearings in this case, who had all rendered opinions that appellant was not an SVP. But because the People had retained a fourth evaluator, delay would ensue because, as the court said, "The nature of the SVPA cases is that the experts are scheduled up and down the state. For instance, in Monday they are in San Diego. Tuesday they are in Los Angeles. Wednesday they are in San Francisco. And so to schedule them we need probably a three-month lead minimum." Thus, because of these systemic problems, even a very short continuance ultimately caused the trial to be continued until September 2007 because, as the court said, "we have about six months worth of SVPA cases already scheduled and there are no openings except for, I believe, May and thereafter."
In Litmon II, we said that "any chronic, systematic post-deprivation delays in SVP cases that only the government can rectify [*35] must be factored against the People. . . . [P]ost-deprivation 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]ost-deprivation, 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 II, supra, 162 Cal.App.4th at p. 403.) Here, the proffered justifications for the delays are inadequate to excuse a further delay of trial "given the magnitude of the liberty interest at stake, the serious harm to this interest already occasioned by the protracted delay; and the possibility that the interim decisions . . . may have been mistaken." (Id. at p. 405.)
In Litmon II the SVP made a demand for a speedy trial and filed a motion to dismiss which the trial court denied. Here, as respondent notes, "defense counsel objected to continuances or delays where appropriate." The trial court recognized in January 2006, when appellant objected to consolidation [*36] of the two pending petitions, that "the defense is asking for [a] speedy trial." On May 19, 2006, defense counsel, although himself acquiescing in the delay, informed the court that appellant objected to any continuance beyond May 24, 2006, the expiration date of his commitment. On June 30, 2006, the trial court acknowledged that "Mr. Johnson would like his matter tried as soon as possible. That's what we all want, that what this court wants." In his March 16, 2007, pro per petition for unconditional discharge appellant cited Mathews v. Eldrigde (1976) 424 U.S. 319, to assert that a "fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Appellant contends, "To the extent trial counsel failed to enforce and adequately assert appellant's right to a speedy trial, trial counsel was deficient. Appellant repeatedly asserted he wished to go to trial as soon as possible." Even assuming defense counsel could have done more to perfect appellant's rights, the trial court recognized that the defense was demanding a speedy trial or dismissal of the petitions, and appellant himself frequently and forcefully did all that could be reasonably [*37] expected of him to make this clear.
Considering the palpable risk that the significant deprivation of appellant's liberty is erroneous, the delays in this case, particularly those occasioned by the improper removal of Dr. Jeko and the continuance to accommodate Cahan's consideration of Dr. Coles's report, were unjustified and a denial of appellant's due process right to a speedy trial on the SVP petitions. 6
FOOTNOTES
6 We need not resolve appellant's contention that "the extension petitions must be dismissed because the Director of Mental Health did not request the new petitions and the government failed to provide a full evaluation before filing the third extension petition; when there were full evaluations, they recommended appellant not be confined."
Retroactive Conversion
Appellant contends, "The court lacked the authority to retroactively change appellant's old commitments to life terms." Respondent concedes, "The court improperly converted appellant's initial commitment to an indeterminate term." Citing two cases from this court, respondent "agree[s] with appellant that the statutory amendments do not apply retroactively. (People v. Whaley (2008) 160 Cal.App.4th 779, 803; Litmon II, supra, 162 Cal.App.4th at pp. 407-412.)" [*38] 7 We accept this concession as appropriate.
FOOTNOTES
7 In light of this concession, we need not address appellant's remaining contentions that the amendments providing for an indeterminate term are unconstitutional or that appellant received ineffective assistance of counsel for not articulating proper grounds for objecting to the retroactive change.
Disposition
The June 29, 2007 order imposing an indeterminate term of commitment as an SVP is reversed. Upon remand, the court is directed to dismiss the consolidated recommitment petitions that sought to extend appellant's commitment as an SVP until May 24, 2008.
ELIA, J.
WE CONCUR:
RUSHING, P.J.
PREMO, J.
H031765
COURT OF APPEAL OF CALIFORNIA, SIXTH APPELLATE DISTRICT
2009 Cal. App. Unpub. LEXIS 410
January 20, 2009, Filed
OPINION
Appellant challenges his commitment as a Sexually Violent Predator (SVP). He contends that he was denied due process by the consolidation of his recommitment petitions and the repeated continuances of the trial date and that the trial court should have dismissed the petitions. He further contends, and respondent concedes, that the trial court lacked the authority to retroactively convert his SVP commitment to an indeterminate term. We reverse the order imposing an indeterminate term and remand with directions to dismiss the petitions.
Background
In 1980, appellant was convicted of two counts of rape and sentenced to 33 years in prison. In 2000, appellant was committed to the Department of Mental Health (DMH) as an SVP for a two-year term under the provisions of the Sexually Violent Predator Act (SVPA). 1 (Welf. & Inst. Code, § 6600 et seq.) In 2002, prior to the expiration of the first commitment, the People filed a petition (2002 petition) to recommit appellant as an SVP for a two-year term to end in May 2004. By February 2004, no trial had been held on the 2002 petition and the People filed another [*2] petition (2004 petition) to recommit appellant for a two-year term that would end in May 2006. Over appellant's objection, the trial court consolidated the 2002 petition and the 2004 petition for trial. Appellant, and another SVP, David Litmon, who also had had two pending SVP recommitment petitions consolidated over his objection, sought writs of mandate challenging the trial court's consolidation of the petitions. In Litmon v. Superior Court (2004) 123 Cal.App.4th 1156 (Litmon I), this court granted appellant's petition for writ of mandate and held that it was error for the trial court to order consolidation over objection when a consolidated trial could occur only if the earlier petition was further delayed. This court directed the trial court to vacate the consolidation order and to set the 2002 petition for trial "forthwith" and to complete the probable cause hearing on the 2004 petition "as expeditiously as possible." (Id. at p. 1178.)
FOOTNOTES
1 This court affirmed this initial commitment in People v. Johnson, H021605, filed August 22, 2001. We have taken judicial notice of the opinions, dockets, and records on appeal in that case as well as those in People v. Johnson, H029316, filed October [*3] 17, 2007, and In re Johnson, H030570 (writ of prohibition denied November 20, 2006).
In the appeal from appellant's initial commitment, two evaluators designated by the DMH had failed to agree on whether appellant was an SVP. The DMH appointed two more evaluators, and they also failed to agree whether appellant was an SVP. Later, the evaluator from the first set who had concluded that appellant was not an SVP wrote the DMH saying that she had changed her mind. The People then filed the commitment petition based on the opinions of the first two evaluators. Appellant demurred to the petition, arguing that the petition failed to have attached to it a required affidavit asserting that two mental health evaluators had concurrently concluded that appellant met the criteria for an SVP. The trial court overruled the demurrer and the matter proceeded to trial. Johnson appealed. This court held that appellant could not show prejudice because he had been found to be an SVP after a trial.
The remittitur in Litmon was issued on January 28, 2005. Appellant was not in court again until March 9, 2005. By March 11, 2005, the 2002 petition had been assigned to a trial department and the 2004 petition [*4] trailed. On April 6, 2005, defense counsel argued a motion to dismiss the 2002 petition as moot. Counsel observed that "[e]veryone agrees that this petition was supposed to cover the period from 2002 to 2004. Mr. Johnson's most recent commitment ended on May 24, 2002. The case was set for trial. We were prepared to proceed to that trial on April 24, 2004, and motions in limine were heard on that case on March 31, 2004, and all parties indicated they were ready on that Friday, and that would have been April 3." Counsel pointed out that it was the People's motion to consolidate the 2002 petition with the 2004 petition, the trial court granting that motion, and appellant's seeking writ relief from that erroneous order from this court that brought about the delay. Counsel argued, "Mr. Johnson is entitled to a trial at a meaningful time and in a meaningful manner. . . . To have a trial now, if Mr. Johnson is found to meet the criteria the only option this court would have would be to sign a commitment order that covers a time between 2002 to 2004, is basically proving the point that this petition is moot . . . ." The trial court denied the motion to dismiss. 2 The court acknowledged that [*5] appellant now had two cases pending, and told appellant that the court could place the 2002 petition on the master trial calendar if appellant "want[ed] it outside the present schedule of this courtroom." Defense counsel expressed concern about the availability of her witnesses and accepted the trial court's next available trial date of August 22, 2005. From August 15 to September 2, 2005, the court conducted the jury trial on the 2002 petition. Dr. Douglas Korpi and Dr. Lisa Jeko testified for the People. Dr. Jeko testified that she had inadvertently considered Dr. Korpi's current report in preparing her evaluation. She said that although it was considered "perfectly okay" to look at a past evaluator's assessments, an evaluator is "not supposed to look at the assessment of the evaluator who is currently involved in this case." Dr. Jeko explained that "because of time lags in these cases . . . [i]t is often difficult to find out which evaluations are corresponding to the current one." The jury found the 2002 petition true. On September 6, 2005 the trial court committed appellant as an SVP until May 24, 2004.
FOOTNOTES
2 In People v. Johnson, H029316, appellant contended, among other things, that [*6] the trial court should have granted this motion to dismiss the petition. This court said, "Assuming for the sake of argument that trial on the 2002 petition was moot, this appeal is also moot for the same reasons: defendant has already served the two-year recommitment period to which the 2002 petition pertained; furthermore, he has already had the trial which he says he should not have had."
At the probable cause hearing on the 2004 petition, Dr. Korpi and Dr. Jeko testified again. Dr. Korpi testified that he was on a panel of five evaluators who serve as consultants for the other SVP evaluators. Dr. Jeko acknowledged that she had considered Dr. Korpi's current evaluation in preparing her update, but testified, "I'm still going to do my own evaluation." During this hearing, the trial court sustained a relevance objection to defense counsel's question to Dr. Jeko as to whether Dr. Korpi's opinion held "a lot of weight in [Dr. Jeko's] eyes." On September 22, 2005, the court found that there was probable cause as to the 2004 petition. The trial court set the 2004 petition for February 23, 2006, for in limine motions and pretrial conference and, by agreement of the parties, March 6, 2006, [*7] for trial. 3
FOOTNOTES
3 Defense counsel told the court, "First and foremost, these cases normally take about two months to set up because the evaluators have numerous subpoenas across the state." Counsel explained that she was scheduled for trial in October, November, and January. She said that the soonest she could be ready in appellant's case was February, and if she were to be replaced "then as soon as another attorney will be ready would be March."
On October 5, 2005, the People filed a petition (2006 petition) to extend appellant's commitment from May 2006 to May 2008. Dr. Jeko and Dr. Korpi testified at the probable cause hearing. Dr. Korpi testified that 90 percent of the time he had found the person that he had evaluated for a recommitment petition to be an SVP. Dr. Jeko testified that she had found the person that she had evaluated for recommitment to be an SVP 100 percent of the time. The court found probable cause as to the 2006 petition on January 5, 2006. Jury trial was set for June 19, 2006.
On January 12, 2006, the People filed a motion to consolidate the 2004 petition and the 2006 petition. The People acknowledged Litmon I, but argued that, because the issue at trial in both of [*8] the petitions was appellant's current condition, it "defies logic and judicial economy to have two separate trials to resolve the exact same issues." The People asserted that "[t]he consolidation of these cases would not necessitate any delay or continuance." Appellant objected to consolidation. Counsel argued that "the petition we are going to try ends in May of 2006, this year." Appellant said that the 2004 petition was ready to be tried but that the 2006 petition was defective because it was based on the same reports by Dr. Korpi and Dr. Jeko that had served as the basis for the 2004 petition. Appellant argued that "a person who is the subject of the petition may not be recommitted without new and full evaluations supporting the recommitment petition." Appellant cited in support Butler v. Superior Court (2000) 78 Cal.App.4th 1171, in which this court said that before a new petition for recommitment could be filed a "full evaluation" of the person must be conducted. (Id. at p. 1182.) Defense counsel expressed the hope that before the June trial date for the 2006 petition "those deficiencies are corrected and new and full evaluations are done with Mr. Johnson." He said that if that [*9] were to happen, "it is possible that Mr. Johnson will cooperate and talk to the doctors fully, something he has not done for the last two petitions."
The trial court remarked that "we have this tension where the defense is asking for speedy trials, but at the same time they are asking for no consolidation and continuance and they are filing writs and appeals on every decision that is made until the point where the litigant is of such an age that the doctors are then of the opinion that maybe he won't offend at that point." Defense counsel pointed out that the fact that the 2006 petition "was filed without these new and full reports, that's not Mr. Johnson's fault." The prosecutor accused defense counsel of "doctor shopping." Defense counsel said, "If it's the same two doctors that reviewed him in the future that's great. I like Dr. Jeko and Dr. Korpi. They are very good doctors and they talk to defense counsel outside so there is nothing hidden with these doctors. They are great doctors." The next day, the People asked these two doctors for updated evaluations of appellant.
On February 2, 2006, the trial court granted the People's motion to consolidate the 2004 petition with the 2006 [*10] petition. The trial court said that consolidation would not result in delay because both petitions "are ready to go to trial with all the probable cause hearings completed and the witnesses identified." The court said that appellant would not be prejudiced by consolidation because "requesting a 'full evaluation' will make no difference to the readiness" of the 2004 and 2006 petitions. The court advanced the June trial date previously set for the 2006 petition to March 6, 2006, the date previously set for trial on the 2004 petition. On February 10, 2006, counsel stipulated to a continuance of the March 6 trial date to March 13, 2006. On February 23, 2006, the court ruled on the in limine motions. The People's in limine motions stated that the People anticipated calling Dr. Jeko and Dr. Korpi as witnesses and the trial court acknowledged this in ruling on the motions.
Meanwhile, the doctors conducted their updated evaluations. Dr. Korpi had previously evaluated appellant in 2003, 2004, and 2005, and found him to be an SVP although he had not had "an opportunity to speak with [appellant] at any length" on these occasions. In a report dated February 26, 2006, Dr. Korpi stated that he had [*11] reinterviewed appellant and concluded that appellant was not an SVP. He noted that appellant was almost 60 years old, and "rapes occur at a very low rate after the age of 60."
Dr. Jeko, who had previously evaluated appellant in 2003 and 2005 and had found him to be an SVP, re-interviewed appellant and determined that appellant no longer met the criteria for an SVP. Although her report is dated February 2 and February 9, 2006, the minute order from March 8, 2006, states that the March 13 trial date was vacated because the court was "awaiting report from Dr. Jeko." The court set the matter for March 24, 2006 for trial setting.
On March 21, Deputy District Attorney James Cahan wrote to Atascadero State Hospital that "Dr. Jeko, through no fault of her own became aware that Korpi had changed his mind and now found Mr. Johnson not to meet the criteria as an SVP." Although Cahan stated that he did "not necessarily believe that Dr. Jeko's opinion was affected by Dr. Korpi's," he nevertheless asked that Dr. Jeko be replaced as an evaluator on the case. On March 24, the court continued the matter to April 7, 2006, because, although both evaluations had been completed, Dr. Jeko's evaluation might [*12] have been "corrupted."
On April 7, 2006, the court considered the matter of Dr. Jeko's report. Appellant acknowledged that, during preparation for trial, defense counsel had contacted Dr. Jeko and, during their discussions, had informed her of Dr. Korpi's updated conclusion that appellant was no longer an SVP. 4 Appellant noted that although the DMH protocol for evaluators recommended that there be no discussion among current evaluators regarding a case, nothing in the protocol prohibited this nor did it prohibit trial counsel from discussing the case with the evaluator. Appellant took the position that there was no authority for the appointment of another evaluator to replace Dr. Jeko. Appellant argued that the removal of Dr. Jeko would violate appellant's due process rights. The prosecutor argued that because Dr. Korpi was one of five doctors who served on the SVP consultant panel, who are called upon to answer questions for less experienced evaluators, "his opinion is an important one and the fact that Dr. Jeko is aware of his finding prior to preparing her report . . . can't help but have some influence, albeit subconsciously, to the other evaluator." The prosecutor also informed [*13] the court that the DMH had appointed a new evaluator whose report was due in "only a couple of weeks . . . so there is not any substantial delay as far as the trial is concerned."
FOOTNOTES
4 There was some discussion of whether the public defender who had informed Dr. Jeko of Dr. Korpi's evaluation had a conflict in the case, but it was determined that he did not.
The trial court ordered Dr. Jeko removed as the second evaluator and ordered "a true and independent evaluator" be assigned. The new evaluator was Dr. Jeremy Coles. The court said that as a "practical matter," were the court to rule at trial that Dr. Jeko's evaluation was inadmissible, the trial could not proceed "because we would only have one evaluation[,] [a]nd we would have lost several months because these SVPA cases take several months to line up." The trial court discussed the matter with counsel off the record and continued the case to May 19, 2006, noting that Dr. Coles's evaluation should be completed by then and "the People may not go to trial if there are two negative reports."
In a report dated April 30, 2006, Dr. Coles wrote that he had interviewed appellant on April 13, 2006. Dr. Coles found appellant to be "cooperative," [*14] "serious," "likeable," and "talkative." Dr. Coles took into consideration that "religious conversions are a dime a dozen in the sex offender population" and that "there is no evidence to suggest that praying eliminates preying." He noted, however, the "trend of a noticeable, growing extinction of antisocial proclivities towards a more prosocial orientation in Mr. Johnson's psychological make-up." Dr. Coles also considered that appellant was "fast approaching" the age of 60, a time at which "the limited exi[s]ting research available points to a significant reduction in recidivism rates." Dr. Coles concluded that appellant did not meet the criteria for an SVP. In the clerk's transcript, this report bears a stamp from Atascadero State Hospital certifying it as a true copy with the date May 8, 2006.
On May 19, 2006, the court said that Dr. Coles's report, "has not been received, or more accurately it was apparently sent, but it is somewhere in the District Attorney's Office." Defense counsel said that appellant objected to any continuance beyond May 24, 2006, "for the very simple reason" that appellant's current recommitment would expire on that date. Cahan appeared for the People and told [*15] the court, "Ultimately I will be making a decision what happens with this case as a unit leader and I will be gone until May 30th. Even if we get the reports today it's optimistic that we will be able to review them and make a decision if we will proceed in this case or not and how." The court addressed Cahan, saying, "Depending on what the result is it may be that you will be dismissing the case, it may be that you will go forward on the case or it may be that there is a need for another psychiatric report." Cahan told the court, "We either will be dismissing depending on what the reports say or we will be going forward or need some additional time and hopefully the third option will not be necessary."
On June 2, 2006, appellant filed a motion to dismiss the consolidated petition. Appellant argued that the petition was "legally insufficient" because under Welfare and Institutions Code section 6601, subdivision (d), two evaluators had to concur before a petition could be filed and "the factors that supported the filing of the petition no longer exist. All of the state doctors who have completed current evaluations have concluded that Mr. Johnson does not meet the SVP criteria." The [*16] court continued the matter to June 30 to hear the motion to dismiss and for trial setting.
On June 30, 2006, the trial court denied appellant's motion to dismiss. The court acknowledged that "Mr. Johnson would like his matter tried as soon as possible. That's what we all want, that's what this court wants." However, the trial court set a schedule for filing and hearing in limine motions and set the matter for trial on January 8, 2007. The court said that "[t]he dates were based upon the availability of the attorneys, because both of these attorneys do [SVP] cases and since both of these attorneys are booked on trials that are hard go cases on dates certain. . . . [Defense counsel] wanted January because he needed to line up one or two experts that would only be available in January." The court set the trial for January 8, 2007. Later that day, when the parties were no longer present, the court continued the trial to January 22, 2007, because "a conflict was discovered," presumably with the court's calendar.
In December 2006, the parties filed motions in limine. Included on the People's witness list was Dr. Dale Arnold. Appellant's motions in limine said that, despite the concurrence [*17] of the three state-appointed evaluators that appellant was not an SVP, the People "without an[y] authority under the law, went out and hired Dr. Arnold to review Mr. Johnson['s] records and present an opinion." Appellant asked the court that Arnold not be permitted to testify and that the court exclude any reference by Arnold to appellant's confidential medical records. The trial court heard the motions in limine on January 12, 2007, and ruled on them January 19, 2007. The trial court ruled that Arnold could testify, noting that the SVPA does not "specifically prevent" "any party to a civil lawsuit from calling rebuttal experts." The court was in trial on January 23 so appellant's case trailed in that department for a day.
On January 24, 2007 the People filed an amended petition "covering a term of commitment from May 24, 2004 to May 24, 2008," and asking the court to extend appellant's "involuntary commitment date from May 24, 2004, until the term prescribed by law." Also on January 24, 2007, the court said that a supervisor from the Public Defender's Office had told the court ex parte the day before that the deputy public defender who had most recently been handling appellant's case [*18] was ill and would not be available "for several weeks." The court had inquired whether another deputy public defender, who had previously worked on the case for "six months to a year," might be available to try the case. In court, another representative of the Public Defender's Office said that the previous attorney "could be ready in one week's time, but he could not start today." Cahan objected to a continuance and said that he thought that the previous defense attorney could prepare during voir dire because that attorney had "prepared the papers" and "subpoenaed the witnesses."
The court said, "That is a difficulty because none of the witnesses will be available if we start the trial next week except for perhaps the ones who are going to be going on behalf of respondent. . . . [P] The nature of the SVPA cases is that the experts are scheduled up and down the state. For instance, on Monday they are in San Diego. Tuesday they are in Los Angeles. Wednesday they are in San Francisco. And so to schedule them we need probably a three-month lead minimum." The court continued the matter for one week to February 2, 2007, for trial setting "so that the attorneys can look at our trial availability. [*19] As it's known to both parties, we have about six months worth of SVPA cases already scheduled and there are no openings except for, I believe, May and thereafter." On February 2, the matter was continued to July 20, 2007, for motions in limine and September 10, 2007, for trial.
On March 16, 2007, appellant filed a pro per "petition for unconditional discharge." He contended that it was a violation of his "liberty interest and his Due Process rights under the California and the United States Constitutions" to continue to confine him once the evaluators had determined that he was no longer an SVP. His petition was based on 2006 amendments to the SVPA that said that if the DMH determines that an SVP's condition has so changed that the person no longer meets the definition of an SVP the Director of Mental Health shall authorize the person to petition the court for unconditional discharge. Appellant attached copies of two letters. One was from the Medical Director of Atascadero State Hospital, dated May 8, 2006, to the DMH stating that the two updated evaluations found appellant "to not be one of the members of the class described" in the SVPA. The second letter was dated May 16, 2006 and [*20] was from the Director of the DMH to the District Attorney in which the Director stated that the two updated evaluations found that appellant did not meet SVP criteria. Appellant's petition for discharge was set for March 28, 2007, at which time it was apparently ordered off calendar.
On May 29, 2007, the People, based on the same 2006 amendments to the SVPA that appellant had cited in his petition for unconditional discharge, filed a motion to "retroactively apply an indeterminate term to respondent." The People argued that the retroactive commitment would not violate appellant's due process rights because, "[t]o ensure people are not kept in custody longer than necessary, the [SVPA] continues to provide for annual mental evaluations and regular opportunities for the SVP to petition for conditional or unconditional release with or without the concurrence of DMH. It also permits DMH to recommend conditional release to the court anytime it believes the person's condition has changed, whether or not he is then due for his annual review." In opposition, appellant argued, among other things, that the retroactive commitment on a "seven-year-old commitment" would be an "injustice" in that "three [*21] state evaluators and the Director of the Department of Mental Health now conclude Mr. Johnson does not meet the criteria as an SVP." In response, the People asserted that the opinions of the evaluators and the Medical Director of Atascadero had "no bearing before the court." On June 29, 2007, the trial court granted the People's motion and ordered that appellant's "term of commitment is indeterminate retroactive to his initial order of commitment dated May 24, 2000."
The opening brief in this matter was filed in April 2008, several months after appellant's sixtieth birthday.
Due Process
Appellant contends that he "was deprived of due process when the court consolidated recommitment petitions and repeatedly continued the trials for months without good cause." He argues that "he was deprived of due process when he remained confined without trial though all state experts agreed he no longer qualified for confinement, and to the extent he agreed to delays in his trials, he did so without notice that the action would result in the complete denial of a right to a trial."
As noted above, appellant and David Litmon, another SVP, were before this court challenging the trial court's consolidation [*22] of SVP petitions in Litmon v. Superior Court, supra, 123 Cal.App.4th 1156 (Limon I). In Litmon I, this court granted appellant's petition for writ of mandate and held that it was error for the trial court to order consolidation of two pending SVP petitions over objection when a consolidated trial could occur only if the earlier petition was further delayed. We observed, "Delays approaching or even exceeding the two-year mark inevitably result in the de facto commitment of persons as SVPs for the entire period, albeit without benefit of a verdict reflecting that the person's current mental condition warrants his or her commitment. No one disputes that this is an undesirable result." (Id. at p. 1170.) We said that "we believe every effort consistent with existing statutory law must be made to bring SVP petitions to trial expeditiously and certainly well before the expiration of the very two-year commitment period at issue in the trial." (Id. at p. 1172.)
This court observed, "The SVPA is designed to ensure that the continued confinement of an SVP is justified, if at all, at least every two years. The legislative scheme's emphasis on frequent justification for the confinement of each SVP [*23] demands that an SVP not be confined without an adjudication of the justification for that confinement, solely because judicial resources will thereby be conserved." (Litmon I, supra, 123 Cal.App.4th 1156, 1176.) In both appellant's and Litmon's cases, this court ordered the trial court to vacate the consolidation order, set the earlier recommitment petition for trial forthwith and complete as expeditiously as possible the probable cause hearing on the later petition.
Following our remand and further proceedings in the trial court, David Litmon returned to this court. In People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon II), this court held that subsequent delays in Litmon's case violated his right to due process and a speedy trial. We noted that the commitment resulted in a significant deprivation of Litmon's liberty, as he remained confined pending a hearing, long after the initial two-year period of commitment had expired and when the third commitment period was set to expire.
Appellant argues that "the delays in this case were similar to those in Litmon II. The government convinced the court to consolidate the recommitment petitions, which constituted an abuse of discretion. The [*24] government secured further continuances without good cause, and each continuance stretched for six to nine months to accommodate court congestion, busy prosecutors, and busy government witnesses. As in Litmon II, the interminable, systematic postdeprivation delays that only the government could control deprived appellant of due process under the Fourteenth Amendment."
The remittitur in Litmon I was issued on January 28, 2005. As in appellant's case, Litmon was recommitted as an SVP for an additional two-year term following a jury trial in September 2005. In Litmon's case, as here, subsequent petitions were filed seeking recommitment for consecutive two-year terms. In Litmon's case, as here, both petitions were set for trial and then, on the People's motion and over defense objection, consolidated.
In Litmon's case, the consolidated petitions proceeded to trial in 2006 and the jury deadlocked. A mistrial was declared. In March 2006, a new trial setting date was scheduled and, later, the court announced that due to the schedules and availability of both the deputy district attorney and the defense attorney, the first date possible for trial was in January 2007. The trial court also considered [*25] the time needed for the completion of updated evaluations, given the requirement of determining appellant's current mental status at the time of trial. Litmon objected to the trial date set and requested that trial start immediately. Four-and-a-half months later, in August 2006, Litmon filed a motion to dismiss based on an alleged denial of his right to a speedy trial. The trial court denied the motion in September 2006.
The People requested a continuance of the January 2007 trial date because, despite subpoena efforts, necessary witnesses were unavailable for trial. Litmon opposed the continuance and filed a separate motion to dismiss based again on an alleged denial of the right to a speedy trial. The court denied the motion to dismiss. As in appellant's case, the trial court converted Litmon's two-year commitment term to an indeterminate term under the new version of the SVPA.
Litmon appealed. In People v. Litmon, supra, 162 Cal.App.4th 383 (Litmon II), this court held that the post-deprivation delay on the People's consolidated petitions to involuntarily commit Litmon violated his right to due process and a speedy trial. We reviewed the principles of procedural due process and recognized, [*26] "It is not entirely clear what analytical framework, Mathews [v. Eldridge (1976) 424 U.S. 319, 96 S.Ct. 893], Barker [v. Wingo (1972) 407 U.S. 514, 92 S.Ct. 2182] or some amalgam, will ultimately be applied by the United States Supreme Court in evaluating a procedural due process claim of excessive pre-trial delay in the context of involuntary civil commitments. In the circumstances of post-deprivation delay of the right to be heard, both approaches involve careful balancing of the competing interests and inquiry into the justifications offered by the government for the delay." (Litmon II, supra, 162 Cal.App.4th at p. 399.)
In applying the tests of these procedural due process cases to Litmon's situation, we considered the loss of personal freedom by forced confinement in a mental institution to be of great significance. That factor weighs heavily here as well. We then considered the risk of an erroneous deprivation in Litmon II to be considerable. We said that the risk of error was great in that the mistrial over two years prior indicated that the jury might not find that Litmon was an SVP. Here, the risk of the erroneous deprivation of liberty is far greater. It may have been a single [*27] juror, a lay person, in Litmon II that brought about deadlock resulting in the mistrial. Here, three experts, routinely relied upon by the People to secure SVP commitments, including an evaluator on the SVP consulting panel, reviewed appellant's history, and interviewed him. They unanimously concluded that appellant did not meet the criteria for commitment as an SVP. The risk of erroneous deprivation here is enormous.
Considering the state's interest, we said that "the state 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 II, supra, 162 Cal.App.4th at p. 401.) We speculated that the government may have had an additional interest in conserving limited resources, which constrained its ability to provide expeditious SVP proceedings. We determined, however, that "this pecuniary interest runs counter to the interest of the state in avoiding unjustified confinement of individuals not qualifying as SVPs and any potential liability [citation]. In any case, such pecuniary interest must be accorded a much lesser weight than the quintessential liberty interest at stake here." (Ibid.)
Considering [*28] all of the above, we said 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. When an SVP trial does not take place until after or into the term of commitment at issue, the trier of fact never actually determines whether the person was an SVP while confined pending trial following expiration of the lastordered commitment." (Litmon II, supra, 162 Cal.App.4th at pp. 401-402.) Here, by the time the trial court ordered appellant committed for an indeterminate term, in June 2007, his previous commitment had expired over three years earlier.
Respondent argues, "Appellant's decision to demand separate trials, and to request the second trial be held after the first, in the hopes that the first jury would find appellant not to be an SVP, cannot be attributable to the government." It is true that, following this court's ruling in Litmon I that it was error for the trial court to consolidate the 2002 petition with the 2004 petition, [*29] appellant objected to the trial court's consolidation of the 2004 petition with the 2006 petition. Appellant was ready for trial on the 2004 petition, and, just as appellant had predicted in his opposition, further delay ensued due to the consolidation. But even if we were to consider the government blameless in the delay that the consolidation occasioned, other lengthier delays are most definitely attributable to the government.
Appellant argues, "The government's motion for a third evaluation should have been denied. The government was not entitled to a new evaluation and further delay of the trial merely because the evidence opposed a new commitment." Considerable delay did ensue from the trial court's removal, at the People's request, of Dr. Jeko from appellant's case, and there was no basis for doing so. Welfare and Institutions Code section 6603, subdivision (c)(1) permits the prosecuting attorney to request updated evaluations if he or she determines that these are necessary "in order to properly present the case for commitment." However, this does not authorize the replacement of an original evaluator unless he or she "is no longer available to testify for the petitioner in [*30] court proceedings." Subdivision (c)(2) specifically defines the circumstances, none of which are applicable here, under which an evaluator is to be considered "no longer available to testify for the petitioner in court proceedings." 5
FOOTNOTES
5 "No longer available to testify" means "that the evaluator is no longer authorized by the Director of Mental Health to perform evaluations regarding sexually violent predators as a result of any of the following: [P] (A) The evaluator has failed to adhere to the protocol of the State Department of Mental Health. [P] (B) The evaluator's license has been suspended or revoked. [P] (C) The evaluator is unavailable pursuant to Section 240 of the Evidence Code." None of these applied to Dr. Jeko. As appellant informed the court, "The Clinical Evaluator Handbook and Standardized Assessment Protocol for the California Department of Mental Health sets forth two separate and distinct set[s] of rules for the initial evaluation and any updated evaluations. In the section dealing with the initial referral from DMH, the handbook states that 'DMH recommends that there is no discussion among the current evaluators regarding the case.' The handbook's use of the word 'recommends' [*31] necessarily implies that evaluators are not prohibited from speaking with other evaluators in an active SVP case. [P] . . . [T]he protocol does not affirmatively prohibit [Dr. Jeko] from learning the conclusions drawn by the other evaluators in Mr. Johnson's case. . . . [A] separate section of the handbook deals with the requirements of updated evaluations as opposed to an original evaluation. . . . [T]his section of the protocol . . . contains no recommendation that evaluators avoid discussing the case with each other. Nor is there any recommendation that evaluators not discuss the case with the attorneys from either side."
Respondent does not defend the trial court's ruling to remove Dr. Jeko, but takes the position that "[a]ppellant has not demonstrated that the prosecutor or DMH deliberately attempted to delay the trial by asking for a new evaluator; indeed, had defense counsel not revealed Dr. Korpi's opinion, the prosecutor would have had no grounds to ask for a new evaluation and no delay would have occurred. Thus, even if the trial court was ultimately incorrect in its ruling, the delay was the result of defense counsel's action and the resulting litigation."
The People relied [*32] on Dr. Jeko's opinion in the jury trial on the 2002 petition despite her testimony that she had inadvertently considered Dr. Korpi's current report, which concluded that appellant was an SVP, when she conducted her evaluation. The People relied on Dr. Jeko's opinion at the probable cause hearing on the 2004 petition despite her testimony that she had considered Dr. Korpi's current evaluation concluding that appellant was an SVP in preparing her update. At that probable cause hearing, in sustaining an objection made by the People, the trial court ruled that the impact of Dr. Korpi's opinion that appellant was an SVP on Dr. Jeko was irrelevant. This was the same trial judge who, at the People's request, removed Dr. Jeko because she had heard of Dr. Korpi's updated opinion that appellant was not an SVP.
As to the request by the People to continue the trial from May 19, 2006, to June 2, 2006, we observe that appellant objected in the trial court to any continuance past the expiration of his then-current commitment. Appellant contends that there "was no need to continue the matter to accommodate" Cahan. Respondent acknowledges that Cahan was not the trial attorney assigned to the case, but [*33] argues that, because Cahan was the unit supervisor, "it was not unreasonable for the court to accommodate his schedule instead of proceeding immediately to trial, especially if it meant that appellant's case might be ultimately dismissed." However, as appellant points out, "Cahan said he needed to be involved because, depending on the outcome of the third evaluation, he might choose to dismiss the petition. The third evaluator, Dr. Coles, agreed with the other two evaluators that appellant did not qualify for commitment. It is difficult to determine what else Dr. Coles could have said that would have prompted Cahan to dismiss the petition. The government's reason for continuing the trial to June did not constitute good cause."
The removal of Dr. Jeko by the trial court at the People's request and the continuance of the trial date to June to accommodate Cahan's further consideration of the case triggered the predictable cascade of further delays due to the well-known scheduling difficulties in SVP cases. For example, when defense counsel became ill, and previous defense counsel would be available to try the case the following week, the court said, "That is a difficulty because none of [*34] the witnesses will be available if we start the trial next week except for perhaps the ones who are going to be going on behalf of respondent." The court's reference to the respondent's witnesses is, presumably, a reference to the three experts, two of whom had repeatedly testified on behalf of the People in previous hearings in this case, who had all rendered opinions that appellant was not an SVP. But because the People had retained a fourth evaluator, delay would ensue because, as the court said, "The nature of the SVPA cases is that the experts are scheduled up and down the state. For instance, in Monday they are in San Diego. Tuesday they are in Los Angeles. Wednesday they are in San Francisco. And so to schedule them we need probably a three-month lead minimum." Thus, because of these systemic problems, even a very short continuance ultimately caused the trial to be continued until September 2007 because, as the court said, "we have about six months worth of SVPA cases already scheduled and there are no openings except for, I believe, May and thereafter."
In Litmon II, we said that "any chronic, systematic post-deprivation delays in SVP cases that only the government can rectify [*35] must be factored against the People. . . . [P]ost-deprivation 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]ost-deprivation, 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 II, supra, 162 Cal.App.4th at p. 403.) Here, the proffered justifications for the delays are inadequate to excuse a further delay of trial "given the magnitude of the liberty interest at stake, the serious harm to this interest already occasioned by the protracted delay; and the possibility that the interim decisions . . . may have been mistaken." (Id. at p. 405.)
In Litmon II the SVP made a demand for a speedy trial and filed a motion to dismiss which the trial court denied. Here, as respondent notes, "defense counsel objected to continuances or delays where appropriate." The trial court recognized in January 2006, when appellant objected to consolidation [*36] of the two pending petitions, that "the defense is asking for [a] speedy trial." On May 19, 2006, defense counsel, although himself acquiescing in the delay, informed the court that appellant objected to any continuance beyond May 24, 2006, the expiration date of his commitment. On June 30, 2006, the trial court acknowledged that "Mr. Johnson would like his matter tried as soon as possible. That's what we all want, that what this court wants." In his March 16, 2007, pro per petition for unconditional discharge appellant cited Mathews v. Eldrigde (1976) 424 U.S. 319, to assert that a "fundamental requirement of due process is the opportunity to be heard at a meaningful time and in a meaningful manner." Appellant contends, "To the extent trial counsel failed to enforce and adequately assert appellant's right to a speedy trial, trial counsel was deficient. Appellant repeatedly asserted he wished to go to trial as soon as possible." Even assuming defense counsel could have done more to perfect appellant's rights, the trial court recognized that the defense was demanding a speedy trial or dismissal of the petitions, and appellant himself frequently and forcefully did all that could be reasonably [*37] expected of him to make this clear.
Considering the palpable risk that the significant deprivation of appellant's liberty is erroneous, the delays in this case, particularly those occasioned by the improper removal of Dr. Jeko and the continuance to accommodate Cahan's consideration of Dr. Coles's report, were unjustified and a denial of appellant's due process right to a speedy trial on the SVP petitions. 6
FOOTNOTES
6 We need not resolve appellant's contention that "the extension petitions must be dismissed because the Director of Mental Health did not request the new petitions and the government failed to provide a full evaluation before filing the third extension petition; when there were full evaluations, they recommended appellant not be confined."
Retroactive Conversion
Appellant contends, "The court lacked the authority to retroactively change appellant's old commitments to life terms." Respondent concedes, "The court improperly converted appellant's initial commitment to an indeterminate term." Citing two cases from this court, respondent "agree[s] with appellant that the statutory amendments do not apply retroactively. (People v. Whaley (2008) 160 Cal.App.4th 779, 803; Litmon II, supra, 162 Cal.App.4th at pp. 407-412.)" [*38] 7 We accept this concession as appropriate.
FOOTNOTES
7 In light of this concession, we need not address appellant's remaining contentions that the amendments providing for an indeterminate term are unconstitutional or that appellant received ineffective assistance of counsel for not articulating proper grounds for objecting to the retroactive change.
Disposition
The June 29, 2007 order imposing an indeterminate term of commitment as an SVP is reversed. Upon remand, the court is directed to dismiss the consolidated recommitment petitions that sought to extend appellant's commitment as an SVP until May 24, 2008.
ELIA, J.
WE CONCUR:
RUSHING, P.J.
PREMO, J.