Filed 10/7/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION ONE
In re TERRANCE BUTLER A159122, A159247
on Habeas Corpus. (Alameda County
Super. Ct. No. 154207)
Terrance Butler was convicted in 1993 of raping two women and
assault with intent to commit rape of a juvenile and sentenced to 18 years in
state prison. Prior to his release, the Alameda County District Attorney filed
a petition in November 2006 to commit Butler as a sexually violent predator
(SVP) under the Sexually Violent Predators Act (SVPA). (See Welf. & Inst.
Code,1 § 6600 et seq.) Despite numerous demands from Butler that he
receive a trial as soon as possible and explicit direction to the Alameda
County Public Defender’s office that it was not authorized to waive time on
his behalf, no trial was ever held.
Butler was confined to a state hospital for 13 years awaiting trial on his
SVP petition, during which time eight public defenders and six prosecutors
cycled through his case, three trial dates were set and vacated, and more
than 50 continuances were granted without a single objection raised by
opposing counsel or a finding of good cause made by the trial court. There is
All statutory references are to the Welfare and Institutions Code
1
unless otherwise specified.
1
no evidence that any of Butler’s public defenders ever consulted or retained a
defense expert in this matter, and the prosecution never declared it was
prepared to go to trial or insisted that a trial date be set. Indeed, after the
trial court ordered a new probable cause hearing in May 2012, no such
hearing was held, and Butler was detained for the next six years without a
finding of probable cause.
After the public defender declared a conflict in January 2019, Butler’s
appointed private counsel filed a petition for writ of habeas corpus. The
habeas court found, following an evidentiary hearing and close examination
of the procedural record, that Butler’s due process right to a timely trial had
been violated and that the public defender, district attorney, and trial court
all bore some responsibility for this “extraordinary” delay. In December
2019, the court granted Butler’s habeas petition, dismissed the SVP petition,
and ordered Butler’s release. We stayed the habeas court’s order pending our
review of the district attorney’s appeal.
The district attorney contends that she has no affirmative obligation to
bring a person to trial on an SVP petition and that the trial court erred by
failing to attribute to Butler the entirety of the delay in this matter. We
disagree. Because involuntary civil confinement involves a substantial
deprivation of liberty, an alleged SVP defendant is entitled under the due
process clause to a trial at a meaningful time and in a meaningful manner.
We reaffirm the principle that the ultimate responsibility for bringing an
accused SVP detainee to trial rests with the state. The record here amply
supports the habeas court’s finding that blame for the delay must be shared
between a district attorney’s office that abdicated its responsibility for
prosecuting this case, a public defender’s office that disregarded Butler’s
repeated demands for trial, and a trial court that took no meaningful action
2
to set deadlines or otherwise ensure that Butler’s right to a timely trial was
protected. We affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
A. The SVPA
“Under the SVPA, the state can civilly commit individuals found to be
SVPs after they conclude their prison terms.” (Reilly v. Superior Court (2013)
57 Cal.4th 641, 646 (Reilly).) Section 6600, subdivision (a)(1), defines an SVP
as “a person who has been convicted of a sexually violent offense against one
or more victims and who has a diagnosed mental disorder that makes the
person a danger to the health and safety of others in that it is likely that he
or she will engage in sexually violent criminal behavior.” The SVPA is
intended “ ‘to protect the public from dangerous felony offenders with mental
disorders and to provide mental health treatment for their disorders.’ ”
(People v. McKee (2010) 47 Cal.4th 1172, 1203 (McKee).)
“Before a petition may be filed under the [SVPA], the inmate must first
be screened by the Department of Corrections and Rehabilitation, generally
at least six months before his or her scheduled release date. (§ 6601,
subd. (a).) This screening is conducted in accordance with a structured
screening instrument and is ‘based on whether the person has committed a
sexually violent predatory offense and on a review of the person’s social,
criminal, and institutional history.’ (Id., subd. (b).) If the Department of
Corrections and Rehabilitation determines that the inmate is likely to be an
SVP, it refers the matter to the Department of State Hospitals for a ‘full
evaluation’ regarding whether the inmate meets the criteria in section 6600.
(§ 6601, subd. (b).)” (People v. Superior Court (Couthren) (2019)
41 Cal.App.5th 1001,1008 (Couthren).)
3
The Department of State Hospitals then assigns two psychiatrists or
psychologists (§ 6601, subd. (d)) to examine the person “in accordance with a
standardized assessment protocol which requires an ‘assessment of
diagnosable mental disorders, as well as various factors known to be
associated with the risk of reoffense among sex offenders.’ (§ 6601,
subd. (c).).” (Couthren, supra, 41 Cal.App.5th at p. 1009.) If two independent
professionals concur that the inmate meets the criteria for commitment as an
SVP, the director of the Department of State Hospitals forwards a request
that a commitment petition be filed to the county in which the inmate was
convicted of the offense for which he or she is currently incarcerated. (§ 6601,
subds. (f), (h)(1) & (i).) If designated counsel in that county concurs with the
recommendation, he or she then files a commitment petition in superior
court. (Id., subd. (i)).
“Once an SVP petition has been filed, ‘[a] judge of the superior court
shall review the petition and shall determine whether there is probable cause
to believe that the individual named in the petition is likely to engage in
sexually violent predatory criminal behavior upon his or her release.’
(§ 6602, subd. (a).) The probable cause hearing is not a determination of the
merits of the petition. Rather—as in preliminary proceedings under the
criminal law—the sole purpose of the probable cause hearing is to test the
sufficiency of the evidence supporting the petition. [Citation.] Thus, the trial
court at a probable cause hearing under the [SVPA] must determine ‘whether
a reasonable person could entertain a strong suspicion that the petitioner has
satisfied all the elements required for a civil commitment as an SVP.’
[Citations.] A failure to find probable cause leads to dismissal of the petition.
(§ 6602, subd. (a).)” (Couthren, supra, 41 Cal.App.5th at p. 1009.)
4
If, on the other hand, there is a finding of probable cause, the court
orders “that the person remain in custody in a secure facility until a trial is
completed and shall order that a trial be conducted to determine whether the
person is, by reason of a diagnosed mental disorder, a danger to the health
and safety of others in that the person is likely to engage in acts of sexual
violence upon his or her release.” (§ 6602, subd. (a).) Either party may
demand a jury trial in an SVP commitment proceeding. (§ 6603, subds. (a),
(b).) The alleged SVP has the right to the assistance of counsel, to retain
experts, and to access relevant psychological and medical reports. (Id., subds.
(a) & (j).) The SVPA also contains “provisions for the evaluations to be
updated or replaced after the commitment petition is filed in order ‘to obtain
up-to-date evaluations, in light of the fact that commitment under the SVPA
is based on a “current” mental disorder.’ ” (People v. Superior Court (Vasquez)
(2018) 27 Cal.App.5th 36, 43 (Vasquez).)
The People must prove beyond a reasonable doubt that each of the
statutory elements under the SVPA has been established (§ 6604), and a jury
verdict must be unanimous (§ 6603, subd. (g). If the court or jury determines
that the person is a sexually violent predator, the person is “committed for an
indeterminate term to the custody of the State Department of State Hospitals
for appropriate treatment and confinement in a secure facility designated by
the Director of State Hospitals.”2 (§ 6004.)
2 Proposition 83, passed by the voters in November of 2006, modified
the length of confinement under the SVPA from “a two-year term, renewable
only if the People prove to a jury beyond a reasonable doubt that the
individual still meets the definition of an SVP, to an indefinite commitment
from which the individual can be released if [he or she] proves by a
preponderance of the evidence that [he or she] no longer is an SVP.” (McKee,
supra, 47 Cal.4th at pp. 1183–1184.) The petition in this case was filed
5
After commitment, an SVP is evaluated every year to consider
“whether the committed person currently meets the definition of a sexually
violent predator and whether conditional release to a less restrictive
alternative, pursuant to Section 6608, or an unconditional discharge,
pursuant to Section 6605, is in the best interest of the person and conditions
can be imposed that would adequately protect the community.” (§ 6604.9)
Under certain circumstances, an SVP may petition the court for either
conditional release (§ 6608) or unconditional discharge (§ 6605).
B. The SVP Petition
In November 2006, the district attorney filed a petition to commit
Butler as an SVP prior to his upcoming release from prison. The petition
alleged that Butler had been convicted of five sexually violent offenses within
the meaning of section 6600, including a 1991 rape and three 1992 rapes
(Pen. Code, § 261) and a 1992 assault to commit rape (id., § 220). It further
alleged that Butler suffered from a diagnosed mental disorder and posed a
danger to the health and safety of others within the meaning of section 6600,
subdivisions (c) and (d).
i. From 2006 through 2011
For the first year after the petition was filed, Butler was represented by
Assistant Public Defender Clif Taylor. Butler appeared at the first four court
appearances, including the probable cause hearing held in January 2007.
Taylor appeared on Butler’s behalf four additional times, waiving Butler’s
appearance each time. Taylor initially requested time to file a motion to
dismiss based on recent amendments to the SVPA, which was filed in
December 2006 and denied after opposition in January 2007.
shortly after this change went into effect, subjecting Butler to the possibility
of indefinite confinement if he was determined to be an SVP.
6
In December 2006, Butler sent two letters to the assigned judge, the
Honorable Joan S. Cartwright, which described his concerns with the SVP
process and were considered in connection with his eventual petition for writ
of habeas corpus. Butler wrote that he acted upon the advice of his attorney
to waive time and go into treatment. He went on to state: “Your Honor, you
asked me if that was what I really wanted, but truthfully it’s not. I want to
go home to my kids. Judge Cartwright, what I truly want is for the D.A.’s
office, the Court & the State of California to keep their end of the plea
bargain deal we made in 1993.” Butler described his rehabilitation at length,
stating he was not an SVP, and emphasized that he wanted to return to his
children and sisters.
At the probable cause hearing on January 19, 2007, probable cause was
found and Butler was ordered detained at Coalinga State Hospital pending
trial. After a number of continuances, an initial trial date was set in
December 2007 for June 2008. Taylor retired shortly thereafter. The habeas
court later found no evidence in the record that Taylor had advised Butler
about his right to a timely trial or that Butler had personally waived time for
trial.
Assistant Public Defender Michael McCormick took over Butler’s case
around February 2008 and continued to represent him until July 2011.
McCormick appeared on Butler’s behalf 17 times, waiving Butler’s
appearance each time. In March 2008, the court granted the prosecution’s
motion to vacate the trial date due to a conflict with the deputy district
attorney’s vacation schedule. McCormick did not object to the continuance
because he had not yet retained experts and was not ready for trial.
The matter was continued to June 2008 for setting. On that date,
McCormick received a continuance to September 2008 because he was
7
planning to set three other matters for trial. A further continuance was
granted to October 2008 for a motion to dismiss. McCormick filed the motion
in October 2008, and, after opposition, it was denied in November 2008.
McCormick then asked to have the matter continued to December 2008 and
then again to March 2009. The prosecution did not oppose any of these
continuances.
On March 12, 2009, Butler sent McCormick a letter stating: “I am
requesting to be taken to trial as soon as possible, and I reiterate that I have
never given the Public Defender[’]s Office permission to waive time on my
behalf in this legal matter. [¶] I’ve been sitting in Coalinga State Hospital
for exactly 2 years now and my due process has been violated. I will be
looking forward to hearing from you real soon in regards to this matter.
Thank you Mr. McCormick for all you have done thus far for me.” As
discussed below, McCormick was called to testify at the August 2019
evidentiary hearing on the habeas petition concerning his response to this
letter and his trial strategy in general. The habeas court would later find no
evidence in the record that McCormick had informed the trial court about
Butler’s March 12th letter or that McCormick had ever asserted Butler’s
right to a timely trial. The case was continued again to April 2009, and then
to May 2009 to set a trial date. In May 2009, a second trial date was set for
January 19, 2010.
In September 2009, McCormick added the matter to calendar to
request that the January 2010 trial date be vacated because he had another
trial set at the same time. McCormick did not explain when the other trial
had been set, and the trial court did not inquire. The prosecution did not
object, and McCormick did not disclose Butler’s demand for a timely trial.
The January trial date was vacated and reset to May 24, 2010. In March
8
2010, the third trial date was also vacated and the matter was continued to
June 2010 to set a motion to dismiss under In re Ronje (2009)
179 Cal.App.4th 509 (Ronje), disapproved in part by Reilly, supra, 57 Cal.4th
at p.655.3 McCormick later testified that he had explained this strategy of
pursuing a motion to dismiss under Ronje rather than seeking a trial and had
obtained Butler’s approval. However, the Ronje motion would take the public
defender’s office three years to prepare, and as the habeas court would find,
there was no evidence that Butler was informed he would have to wait three
years before such motion would even be filed.
In June 2010, September 2010, January 2011, and April 2011,
McCormick, or another public defender appearing on his behalf, asked that
the case be continued pending the Ronje motion. The prosecution did not
object. The case was continued to July 29, 2011. In July 2011, McCormick
was transferred to a different assignment.
Over this first five-year period, the case was continued approximately
17 times without objection, three trial dates were set and vacated, and
Butler’s personal appearance was waived 21 times. Butler’s demand for a
timely trial and his explicit nonconsent to waiver of time were never
3 In August 2008, the Office of Administrative Law determined that
various portions of the 2007 version of the SVP assessment protocol
constituted invalid underground regulations because the provisions had not
been adopted pursuant to the Administrative Procedure Act (Gov. Code,
§ 11340.5 et seq.). (See Ronje, supra, 179 Cal.App.4th at p. 515.) In Ronje,
the appellate court held that where evaluations had been prepared under the
invalid protocol, the appropriate remedy was to order new evaluations using
a valid protocol and to conduct a new probable cause hearing based on those
new evaluations. (Id. at p. 519.) In 2013, the California Supreme Court in
Reilly, supra, 57 Cal.4th 641, disapproved of the remedy ordered under Ronje
absent a showing that material error had occurred in the assessment process.
(Id. at p. 655.)
9
conveyed to the trial court. No new trial date was set after the March 24,
2010 trial date was vacated.
ii. From 2011 through 2016
Assistant Public Defender George Higgins represented Butler from
July 2011 through 2014. Higgins made 15 appearances for Butler, waiving
his appearance each time. In July 2011, the matter was continued to
December 2011 and again to March 2012, followed by defense counsel’s
request for a continuance to May 2012—all to set the hearing date for the
Ronje motion. The record does not indicate which party sought the first two
continuances, but no objection was stated on the record to any request.
The Ronje motion was finally filed in April 2012 and argued in May.
The motion sought new evaluations performed by different evaluators and a
new probable cause hearing. On May 18, 2012, Judge Cartwright granted
the motion in part and ordered new evaluations and a new probable cause
hearing for Butler but declined to require new evaluators. The prosecution
explained that new evaluations usually took about 45 days and asked to
continue the matter to July 2012 for receipt of the evaluations and setting.
Higgins did not object. In July 2012, the evaluations had not been received
and the case was continued to November 2012. In November 2012, the
prosecution asked that the probable cause hearing be set for April 5, 2013,
again without objection from Higgins. In March 2013, defense counsel
entered a special appearance and requested that the probable cause hearing
date be vacated and continued to another setting date in July 2013, and the
prosecution agreed. No probable cause hearing was ever held.4
4 The habeas court concluded that this fact meant that Butler has been
held for over 13 years without a valid finding of probable cause. As noted
above, however, Reilly held that a new probable cause hearing was not
required absent a showing that material error had occurred in the
10
In July 2013, the matter was continued again by Butler’s counsel with
no objection to October 2013 for the filing of a motion to dismiss involving the
propriety of Butler’s diagnoses under Kansas v. Crane (2002) 534 U.S. 407
(Crane). Higgins received another uncontested continuance to January 2014,
filing the Crane motion in November 2013. In the meantime, the matter was
reassigned to the Honorable Alan D. Hymer in January 2014. The hearing
on the Crane motion was then continued repeatedly, as least twice at
Higgins’s request, until the motion was finally argued and denied in July
2014.5 The court suggested continuing the case to November 2014 to set and
neither party objected. In November 2014, Higgins asked that the matter be
continued to February 20, 2015 for another motion to dismiss, which he filed
in December. The prosecution did not oppose the continuance and the matter
was continued to February 2015.
Deputy Public Defender Adrienne Elenteny represented Butler from
February 2015 to August 2016, appearing at least 10 times for Butler and
assessment process. (See fn. 3, ante; Reilly, supra, 57 Cal.4th at p. 655.) It
does not appear that the Ronje motion asserted material errors in Butler’s
evaluation. Even so, Reilly did not issue until August 2013—more than a
year after the trial court’s May 2012 order—and it is troubling that no
probable cause hearing was held in the interim or at any point thereafter. At
a minimum, the prosecution should have requested reconsideration of the
court’s May 2012 order if it believed a new probable cause hearing was
unnecessary in light of Reilly, and the defense should have insisted on this
basic procedural protection. The trial court failed to resolve this significant
outstanding issue on the record.
5 The Crane motion argued that Butler’s federal due process rights had
been violated because the two mental health diagnoses alleged in the SVP
petition were not “mental disorders” as defined by the SVPA. The habeas
court questioned why counsel waited until 2013 to file the Crane motion
rather than challenge the diagnoses in 2008, but more importantly, why the
motion was even necessary given Butler’s successful Ronje motion and the
trial court’s May 2012 order for new evaluations.
11
waiving his appearance each time. The case was continued from February
2015 to May by stipulation of the parties, then to June, then again by
agreement to August 2015, and finally to October 2015 at Elenteny’s request.
In October 2015, the motion to dismiss was heard and denied, and, after the
prosecution remarked that it appeared there had been a probable cause
hearing in January 2007, the matter was continued to January 8, 2016 to set
for trial. Neither the prosecution nor the defense brought to Judge Hymer’s
attention the intervening order of May 2012 for a new probable cause
hearing.
On January 8, 2016, defense counsel asked to put the case over to
January 22. At Elenteny’s request, the setting date was again continued to
May and then September 2016. In September, a further continuance
advanced the case January 2017. No reason was offered on the record for
these continuances, and no objection was asserted by the prosecution.
Over this second five-year period, the case was continued
approximately 25 times either by mutual request or without objection. No
probable cause hearing was held pursuant to the court’s May 2012 order, nor
was a trial date set. Butler’s personal appearance was waived 25 times.
There is no evidence in the record that Butler’s defense counsel ever conveyed
Butler’s desire for a timely trial or his nonconsent to waiver of time.
iii. From 2017 through 2018
Assistant Public Defender Klaus represented Butler from September
2016 to January 2019, waiving his appearance 11 out of 13 times. Klaus first
appeared for Butler in January 2017, continuing the matter to May. The
case was then continued nine more times—twice by agreement and once for
the prosecutor’s “planned absence”—until it was finally advanced to
12
December 7, 2018, to set a jury trial date. The prosecutor reportedly
requested updated evaluations in September or October 2018.
Butler was transported to court for a Marsden6 hearing on December 3,
2018. At that hearing, Butler addressed the court, asserting that the public
defender’s office had failed to represent him competently by declining to bring
his case to trial and that he had never agreed to any continuances. Klaus
stated that Butler’s file “indicate[s] that from when he first came to our office
in 2006, Mr. Butler was requesting a trial.” He acknowledged Butler’s March
2009 letter to McCormick requesting a trial. Klaus further reported that,
when he first met Butler in September 2016, Butler expressed his desire to
proceed to trial. By August 2017, Butler conveyed “real concern” to Klaus
regarding how he kept getting transferred from lawyer to lawyer. Butler
reiterated his desire to go to trial in November 2017. After that, Klaus began
talking with the prosecution about going to trial, Butler reentered treatment,
and new evaluations were ordered. Klaus acknowledged that he needed to
hire experts to assess the new evaluations, and he anticipated selecting a
trial date for some time in the winter or early spring of 2019. As the habeas
court would find, however, there is no evidence that the public defender’s
office ever retained or consulted with an expert during its 12-year
representation of Butler.
Butler argued that the public defender’s disregard for his speedy trial
rights constituted incompetent representation. He told the court: “[I]t’s been
12 years and 12 years I can’t get back out of my life.” He went to the state
hospital and did “everything that they asked me to do, and the Public
Defender’s office failed to notify me that my due process rights have been
violated.” He added: “It’s like they are breeding attorneys to basically pretty
6 People v. Marsden (1970) 2 Cal.3d 118.
13
much treat cases like a relay race, just pass the baton every couple years, and
they all requested to start over; they need an opportunity to review my case.”
Noting the years he had lost away from his family, Butler declared:
“Whether they want to go to trial is not my interest.”
The trial court denied the Marsden motion, opining “that much of the
delay has been caused by the various motions . . . that were not frivolous
motions. They were motions that might be brought within the particular
circumstances of an SVP case by a competent attorney. So in that respect, I
think that Mr. Butler has been represented competently.” The court
nevertheless found that Butler’s right to a timely trial had been “severely
compromised,” and stated its intent to set a trial date a few days later on
December 7 so that the case “may be tried just as soon as possible.” Butler
personally objected to this plan, stating he intended to file a writ petition in
the Court of Appeal challenging the trial court’s decision. The case was
subsequently continued on December 7 and December 21, 2018 without
setting a date for trial.
In the final two-year period in which Butler was represented by the
public defender, the case was continued approximately 12 times, Butler’s
appearance was waived 11 out of 13 times, and no trial was set, possibly
because Butler had indicated he would seek writ relief or a dismissal of the
SVP petition.
C. The Petition for Writ of Habeas Corpus
In January 2019, the public defender declared a conflict of interest.
New counsel was appointed and filed the instant petition for writ of habeas
corpus in April 2019, alleging that Butler had been denied his due process
right to a timely trial on the SVP petition. At the August 2019 evidentiary
hearing on the habeas petition, McCormick was called to testify by the
14
district attorney. He was the sole witness at the hearing. Butler did not
testify but filed a declaration stating, among other things, that he had never
waived his right to a speedy trial and had never authorized an attorney to
waive that right for him.
McCormick testified that he received Butler’s March 2009 letter soon
after it was dated. Although the letter made clear that Butler had not
authorized the public defender’s office to waive time on his behalf and
demanded a trial as soon as possible, McCormick did not discuss the concept
of a speedy trial right with Butler. He also testified that he did not seek or
obtain a time waiver (written or oral) from Butler. McCormick did not recall
if he had explained that Butler was entitled to be present in court, but he
would have made arrangements to bring Butler to court had Butler requested
it. The habeas court found there was no evidence that McCormick sought or
obtained authorization from Butler to waive his appearance.
McCormick advised Butler to pursue a strategy of challenging the SVP
petition by legal motion rather than trial. He explained why he viewed a
strategy of collateral attack as less risky than going to trial. Delaying trial
could be advantageous for an alleged SVP because it allowed the individual to
participate in treatment, which might lead a subsequent evaluator to
conclude that the individual no longer met the criteria for commitment. He
testified that Butler had agreed to this strategy of collateral attack.
McCormick was asked about the trial dates set in Butler’s case. He did
not oppose the People’s request to vacate the first trial date in June 2008
because the defense had yet to retain an expert. After receiving Butler’s
March 2009 letter, McCormick set a January 2010 trial date because he had
other trials set in the interim. McCormick later consulted with Butler before
15
vacating the May 2010 trial date to pursue a Ronje motion, and Butler agreed
with that strategy.
In a detailed 70-page decision, the court granted Butler’s habeas
petition on December 3, 2019. While the matters on record were largely
undisputed, the court made several pertinent findings of fact which are
summarized here and discussed in the context of the due process challenge
below.
The habeas court found that Butler made sincere and repeated
demands for a speedy trial as early as December 2006 and throughout his
12-year period of detention awaiting trial. The court cited his December 2006
letters to Judge Cartwright, March 2009 letter to McCormick, and his
September 2016, August 2017, and November 2017 communications with
Klaus.
The court found that this matter had been calendared 66 times from
December 15, 2006, the date the SVP petition was filed, to April 3, 2019, the
date the habeas petition was filed. Butler appeared in court only six times.
Four of those appearances were in the first two months of the case. Butler
would not appear again in court for more than 12 years. Butler’s appearance
was waived by his public defenders 60 times.
At least eight public defenders appeared in Butler’s matter, including
the five assigned public defenders discussed above. The habeas court found
no evidence that any of Butler’s public defenders ever retained or consulted a
defense expert on his behalf. The court found no evidence that any of Butler’s
public defenders ever stated on the record that Butler wanted a timely trial.
It found no evidence that any public defender ever discussed, sought, or
obtained from Butler a waiver of his right to a timely trial. It found no
evidence that his public defenders ever asked the court to conduct a second
16
probable cause hearing following the court’s May 2012 order. In 12 years of
representing Butler, five attorneys filed four motions on his behalf. The
habeas court determined that Butler’s public defenders essentially ignored
and disregarded his demands for a timely trial.
The court found that at least six prosecutors had appeared on Butler’s
matter. The habeas court found that the People never objected on the record
to a single continuance. It found that the People never requested that the
court find good cause for any continuance. The court found that the People
never declared on the record that they were ready for trial and never
requested that the public defender’s office be relieved. The habeas court
determined that the People had no intention of moving the case past the
initial probable cause hearing in January 2007 and were content to allow
Butler to be detained indefinitely. In the court’s view, the People had
abandoned their role as the plaintiff in this case.
Butler’s matter was assigned to Judge Cartwright from December 2006
to December 2013, and to Judge Hymer from January 2014 to May 2019. The
habeas court found that Judge Cartwright postponed and vacated all three
trial dates without requiring and finding good cause on the record. It found
that the matter was called at least 25 times under Judge Cartwright, and at
least 33 times under Judge Hymer. The habeas court found that in both
periods, the trial court allowed the matter to be continued without ever
requiring an on-the-record showing of good cause and without ever finding
good cause on the record. Although new evaluations were received in
November 2012 in compliance with the May 2012 order, no second probable
cause hearing was ever held, and no trial date was set after May 2010.
Finally, it found no evidence that the trial court ever asked counsel whether
Butler objected to the continuances or wanted a trial.
17
After analyzing the factors set forth in the United States Supreme
Court’s decisions in Barker v. Wingo (1972) 407 U.S. 514 (Barker) and
Mathews v. Eldridge (1976) 424 U.S. 319 (Mathews), the habeas court
concluded that Butler had been denied due process and that the blame for the
delay was shared by the prosecution, the defense, and the trial court, “each to
varying degrees,” but that ultimate responsibility for the delay fell on the
trial court. In reaching this conclusion, the court declined to consider
whether there had been a systemic breakdown in the public defender system,
concluding instead that there had been a systemic breakdown in the
management of Butler’s case. It granted the relief sought by Butler: release
from custody and dismissal of the SVP petition.
The trial court stayed Butler’s release for 21 days to allow the district
attorney to file an appeal. The district attorney did so on December 18, 2019.
We granted the district attorney’s petition for writ of supersedeas, staying
the trial court’s order pending resolution of the appeal. On our own motion,
we consolidated the district attorney’s appeal (case No. A159247) with the
writ petition (case No. A159122) and the consolidated matter is now before us
for decision.
II. DUE PROCESS RIGHT TO A TIMELY TRIAL UNDER THE SVPA
The SVPA sets out detailed procedures for the involuntary civil
commitment of individuals determined to be SVPs—from initial evaluations
to the filing of a petition, a probable cause determination, a trial on the
statutory elements, and finally, treatment and options for release. (§§ 6600-
6608.) What the SVPA does not do, however, is delineate a timeframe within
which a trial must be held once a court has found probable cause to sustain
the SVP petition. (People v. Landau (2013) 214 Cal.App.4th 1, 27 (Landau);
18
see Vasquez, supra, 27 Cal.App.5th at p. 57.)7 Moreover, a trial under the
SVPA is a civil proceeding, not a criminal proceeding to which the Sixth
Amendment right to a speedy trial attaches. (Vasquez, at p. 57.)
Nevertheless, civil commitment for any purpose constitutes a
significant deprivation of liberty that requires due process protections.
(Foucha v. Louisiana (1992) 504 U.S. 71, 80 (Foucha); Addington v. Texas
(1979) 441 U.S. 418, 425 (Addington).) “Freedom from bodily restraint has
always been at the core of the liberty protected by the Due Process Clause
from arbitrary governmental action.” (Foucha, at p. 80; see Zadvydas v.
Davis (2001) 533 U.S. 678, 690 [“Freedom from imprisonment—from
government custody, detention, or other forms of physical restraint—lies at
the heart of the liberty that [the Due Process] Clause protects.”].) The
potential for indefinite civil confinement under the SVPA only heightens the
need for due process protections. (Mathews, supra, 424 U.S. at p. 335
[requiring consideration of “the private interest that will be affected by the
official action” in determining the process that is due].)
“ ‘The fundamental requirement of due process is the opportunity to be
heard “at a meaningful time and in a meaningful manner.” ’ ” (People v.
Litmon (1983) 162 Cal.App.4th 383, 395 (Litmon), quoting Armstrong v.
Manzo (1965) 380 U.S. 545, 552.) “An essential principle of due process is
that a deprivation of life, liberty, or property ‘be preceded by notice and
opportunity for hearing appropriate to the nature of the case.’ ” (Cleveland
Board of Education v. Loudermill (1985) 470 U.S. 532, 542.) “ ‘If the right to
notice and a hearing is to serve its full purpose, . . . it must be granted at a
7 As Landau observed, “[a] person alleged to be an SVP is entitled to a
probable cause hearing within 10 days of a judge’s facial review of the SVP
petition (§ 6601.5), but no time guideline is set for trials.” (Landau, supra,
214 Cal.App.4th at p. 27, fn. 8.)
19
time when the deprivation can still be prevented.’ ” (People v. Castillo (2010)
49 Cal.4th 145, 165 (Castillo).) “We tolerate some exceptions to the general
rule requiring predeprivation notice and hearing, but only in ‘ “extraordinary
situations where some valid governmental interest is at stake that justifies
postponing the hearing until after the event.” ’ ” (Castillo, at p. 165, quoting
United States v. James Daniel Good Real Property (1993) 510 U.S. 43, 53.)
In light of the substantial deprivation of liberty caused by the pretrial
confinement of an alleged SVP, we agree with our sister Courts of Appeal in
concluding that an alleged SVP detainee is entitled under the due process
clause to a timely trial despite the absence of a specific statutory
requirement. (People v. DeCasas (Aug. 31, 2020, B301297) ___ Cal.App.5th
___ [2020 Cal.App.LEXIS 879 at pp. *26–*28] (DeCasas); Vasquez, supra,
27 Cal.App.5th at p. 56; Landau, supra, 214 Cal.App.4th at p. 31; Litmon,
supra, 162 Cal.App.4th at pp. 399–402; see Castillo, supra, 49 Cal.4th at
pp. 163–168 [discussing Litmon at length and noting it “reviewed long-
established procedural due process decisions of the United States Supreme
Court” as well as other high court cases in establishing a due process right to
be heard at a meaningful time in an SVP proceeding]; People v. Otto (2001)
26 Cal.4th 200, 209 [“Because civil commitment involves a significant
deprivation of liberty, a defendant in an SVP proceeding is entitled to due
process protections”].)
Neither the California Supreme Court nor the United States Supreme
Court has determined how a due process claim of excessive pretrial delay
in the context of involuntary civil commitment proceedings should be
evaluated. Several of our Courts of Appeal, however, have reviewed claims
arising from SVPA commitment proceedings under the balancing tests
articulated in Barker, supra, 407 U.S. 514 and Mathews, supra, 424 U.S. 319.
20
(See, e.g., Vasquez, supra, 27 Cal.App.5th at pp. 60–82; Landau, supra,
214 Cal.App.4th at pp. 33–44; Litmon, supra, 162 Cal.App.4th at pp. 399–
406.) Moreover, as stated above, the trial court here conducted an analysis
under both Barker and Mathews, leading to its conclusion that Butler’s due
process right to a timely trial had been violated. We will address the district
attorney’s claims of error against this precedent.
A. Mathews Due Process Test
In Mathews, supra, 424 U.S. 319, the United States Supreme Court
considered whether due process required an evidentiary hearing prior to the
termination of Social Security disability benefit payments. (Id. at p. 323.) In
concluding that a predeprivation hearing was not required, the court
emphasized that “ ‘[d]ue process is flexible and calls for such procedural
protections as the particular situation demands.’ ” (Id. at p. 334; see id. at
p. 349.) It articulated a general balancing test for resolving what process is
constitutionally due, stating that the “identification of the specific dictates of
due process generally requires consideration of three distinct factors: First,
the private interest that will be affected by the official action; second, the risk
of an erroneous deprivation of such interest through the procedures used, and
the probable value, if any, of additional or substitute procedural safeguards;
and finally, the Government’s interest, including the function involved and
the fiscal and administrative burdens that the additional or substitute
procedural requirement would entail.” (Id. at p. 335.)
The Mathews balancing test has been applied in various involuntary
civil commitment and treatment proceedings. (See, e.g., Heller v. Doe (1993)
509 U.S. 312, 330–332 [concerning state procedures for involuntary
commitment of mentally retarded persons]; Washington v. Harper (1990) 494
U.S. 210, 213, 229–231 [addressing whether a judicial hearing must precede
21
forcible administration of antipsychotic medication to state prison inmates];
Addington, supra, 441 U.S. 418, 425 [concluding the indefinite civil
commitment of mentally ill patients requires a clear and convincing evidence
standard of proof].)
B. Barker and the Speedy Trial Cases
Barker, supra, 407 U.S. 514, is the seminal case describing a criminal
defendant’s Sixth Amendment right to a speedy trial. In Barker, the United
States Supreme Court “refused to ‘quantif[y]’ the right ‘into a specified
number of days or months’ or to hinge the right on a defendant’s explicit
request for a speedy trial. [Citation.] Rejecting such ‘inflexible approaches,’
Barker established a ‘balancing test, in which the conduct of both the
prosecution and the defendant are weighed.’ [Citation.] ‘[S]ome of the
factors’ that courts should weigh include ‘[l]ength of delay, the reason for the
delay, the defendant’s assertion of [the] right, and prejudice to the defendant.’
” (Vermont v. Brillon (2009) 556 U.S. 81, 89–90 (Brillon), quoting Barker.)
None of these four factors is “either a necessary or sufficient condition to the
finding of a deprivation of the right of speedy trial. Rather, they are related
factors and must be considered together with such other circumstances as
may be relevant. In sum, these factors have no talismanic qualities; courts
must still engage in a difficult and sensitive balancing process.” (Barker, at
p. 533.)
The first factor, length of the delay, is a threshold inquiry. “Until there
is some delay which is presumptively prejudicial,” a speedy trial analysis
need not be undertaken. (Barker, supra, 407 U.S. at p. 530.) The second
factor examines the reasons offered by the government to justify the delay.
“A deliberate attempt to delay the trial in order to hamper the defense should
be weighed heavily against the government. A more neutral reason such as
22
negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the
defendant.” (Id. at p. 531.) The third factor analyzes whether and when the
defendant has pressed the speedy trial claim, with greater weight given to an
early assertion of the right. (Ibid.) Finally, prejudice is evaluated in light of
three interests intrinsic to a defendant’s right to a speedy trial: “(i) to
prevent oppressive pretrial incarceration; (ii) to minimize anxiety and
concern of the accused; and (iii) to limit the possibility that the defense will
be impaired.” (Id. at p. 532.)
In Brillon, supra, 556 U.S. 81, the United States Supreme Court
revisited the balancing test established by Barker, finding no speedy trial
violation in a nearly three-year delay bringing Brillon to trial on domestic
assault and habitual offender charges. (Id. at pp. 84, 89.) In reversing the
Vermont Supreme Court, it established a “general rule” that “delays sought
by [assigned defense] counsel are ordinarily attributable to the defendants
they represent,” not to the State. (Id. at pp. 85, 94.) The Brillon court also
concluded that “a defendant’s deliberate attempt to disrupt proceedings
[should] be weighted heavily against the defendant.” (Id. at p. 94; see id. at
pp. 84, 93 [noting Brillon sought the dismissal of his first attorney “on the eve
of trial” and threatened the life of another attorney].) The court cautioned,
however, that “[t]he general rule attributing to the defendant delay caused by
assigned counsel is not absolute.” (Id. at p. 94.) Delay caused by a “systemic
‘breakdown in the public defender system’ ” or “institutional problems” could
be chargeable to the state. (Ibid.)
The California Supreme Court addressed a speedy trial claim involving
a seven-year delay in People v. Williams (2013) 58 Cal.4th 197 (Williams).
23
Employing a Barker analysis, the court found the length of the delay
presumptively prejudicial. (Id. at p. 234.) The court had no difficulty in
concluding that the defendant suffered prejudice as a result of the delay,
finding the length of his detention “oppressive” and a “serious” restraint on
his liberty. (Id. at p. 235.) However, the court’s principal focus was on the
reason for the delay, which it acknowledged was “the ‘flag all litigants seek to
capture.’ ” (Id. at p. 239.) In analyzing this factor, the Supreme Court
considered the conduct of the prosecution, the defense, and the trial court,
and found no constitutional violation based on its analysis. (Id. at pp. 215,
251–252, 239.)
The Williams court found the prosecution directly responsible for only
about five and a half months of the delay, and three months of this total was
due to the illness of the prosecutor, a “ ‘strong excuse.’ ” (Williams, supra,
58 Cal.4th at p. 239.) Moreover, the record showed “that the prosecution, far
from trying to delay the trial, sought to try this case in a timely manner. At
numerous points from the early to the late stages of the pretrial period, the
prosecution objected to continuances of the trial date. When the defendant
appeared to be ‘in over his head’ during the period of his self-representation,
the prosecution forcefully objected to the delay and urged the trial court to
revoke defendant’s Faretta status.8 Similarly, after the sixth year of delay,
the prosecutor arranged for [a victim] to address the court and implored the
trial judge to deny any further requests for delay.” (Id. at pp. 239–240.) The
Supreme Court concluded that the state prosecuted the case “diligently and
was prepared to afford defendant a speedy trial.” (Id. at p. 240.)
As for the defense, our high court found the defendant responsible for
periods in which he had acquiesced in continuances, waived time, and
8 Faretta v. California (1974) 422 U.S. 806.
24
engaged in self-representation in a dilatory fashion. (Williams, supra,
58 Cal.4th at p. 240.) The court also identified a roughly four-year period
during which “the lion’s share of delay resulted from defense counsel’s lack of
progress in preparing this case for trial.” (Id. at p. 241.) Since the record did
not contain evidence of a “ ‘systemic “breakdown in the public defender
system,” ’ ” the court concluded under Brillon that it must, “as a matter of
law, charge the delay resulting from defense counsel’s lack of progress to
defendant.” (Ibid.) Noting that Brillon spoke of “institutional problems”
rather than the shortcomings of individual attorneys, the Williams court
focused its inquiry “on whether a systemic breakdown has occurred, not on
whether any particular attorney or attorneys performed deficiently.” (Id. at
p. 248.) While it observed that “the ‘revolving door’ of appointed counsel” in
the case may be indicative of “ ‘institutional problems’ ” in the public defender
system, the record had not been sufficiently developed in the trial court to
support this conclusion. (Ibid.)
The Supreme Court turned finally to the conduct of the trial court in
the matter, noting that “[d]efense counsel’s lack of progress put the trial court
in a difficult position. When a defense attorney requests more time to
prepare for trial, the trial court must balance a defendant’s right to a speedy
trial with his right to competent counsel.” (Williams, supra, 58 Cal.4th at
p. 250.) At the same time, the Supreme Court recognized that “ ‘the trial
court has an affirmative constitutional obligation to bring the defendant to
trial in a timely manner,’ ” and that it is “ ‘entirely appropriate for the court
to set deadlines and to hold the parties strictly to those deadlines unless a
continuance is justified by a concrete showing of good cause for the delay.’ ”
(Id. at p. 251.) “ ‘[I]t must be remembered that “ ‘the primary burden’ to
assure that cases are brought to trial is ‘on the courts and the prosecutors.’ ”
25
[Citation, quoting Barker, [supra,] 407 U.S. at p. 527.)] . . . The trial judge is
the captain of the ship; and it goes without saying that the ship will go in
circles if the crew is running around the deck with no firm marching orders.’ ”
(Id. at p. 251.) While it did not find the trial court “directly responsible” for
the delay in the case, our high court cautioned “that trial courts must be
vigilant in protecting the interests of the defendant, the prosecution, and the
public in having a speedy trial.” (Ibid.) Based on the totality of the Barker
factors, the court found no due process violation. (Id. at pp. 251–252.)
C. Timely Trial Claims in SVP Cases
i. Litmon
In Litmon, supra, 162 Cal.App.4th 383, the Sixth District Court of
Appeal recognized that a person alleged by petition to be an SVP has a
federal due process right to a timely SVP trial. (Id. at pp. 395–399.) At issue
in Litmon was a year-long delay in holding a new trial on an SVP petition to
extend Litmon’s SVP commitment after the first attempt ended in mistrial in
March 2006. (Id. at pp. 391–394.) The trial court initially set the retrial for
January 2007 over Litmon’s objection to allow for counsel and witness
availability and updated evaluations. (Id. at pp. 391–392.) An August 2006
motion to dismiss filed by Litmon on due process grounds was denied by the
court. In January 2007, the prosecutor obtained a continuance of the trial
until March 2007 because he had failed to subpoena the expert witnesses in a
timely manner, and several were unavailable. Litmon’s second motion to
dismiss on due process grounds was denied by the court. (Id. at pp. 393–394.)
Applying the three-part balancing test set out in Mathews, supra,
424 U.S. 319, the court in Litmon determined that forced civil confinement
for mental health treatment constitutes “ ‘ “a massive curtailment of
liberty,” ’ ” requiring due process protection. (Litmon, supra, 162 Cal.App.4th
26
at p. 400.) Second, the court found “ ‘the risk of an erroneous deprivation of
such interest through the procedures used’ ” to be “considerable.” (Ibid.)
Litmon had already been confined since May 2004 without any determination
that he was an SVP and this “loss of liberty” was “irretrievable regardless of
the outcome of the trial.” (Ibid.) It also pointed to the previous hung jury,
which suggested the possibility that Litmon might not be determined to be an
SVP at trial. (Id. at p. 402.) Third, the court acknowledged “the state’s
‘compelling protective interest in the confinement and treatment of persons
who have already been convicted of violent sex offenses, and who, as the
result of current mental disorders that make it difficult or impossible to
control their violent sexual impulses, represent a substantial danger of
committing similar new crimes.’ ” (Id. at pp. 400–401.) However, the court
emphasized 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.” (Id. at p. 401.)
After balancing these competing interests, the Litmon court concluded
“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.” (Litmon, supra,
162 Cal.App.4th at pp. 401–402.)
The court rejected the People’s assertion that “ ‘eleven months is not an
undue amount of time’ ” given the need for updated evaluations and to ensure
the presence of experts at trial. (Id. at p. 403.) It noted that “[t]his proffered
27
justification reflects a ‘business as usual’ approach to trial scheduling despite
the ongoing deprivation of personal liberty that was occurring,” and
concluded: “In our view, any chronic, systematic postdeprivation delays in
SVP cases that only the government can rectify must be factored against the
People.” (Ibid.) The court faulted the People for its nine-month delay in
securing the attendance of experts, and reminded the parties that “[t]he
ultimate responsibility for bringing a person to trial on an SVP petition at a
‘meaningful time’ rests with the government.” (Id. at pp. 405–406.)
The Litmon court reached the same conclusion under a Barker analysis.
The court found that Litmon’s detention since May 2004 without a
determination that he was an SVP “certainly creates a presumption of
prejudice” sufficient to trigger an analysis. (Litmon, supra, 162 Cal.App.4th
at p. 405.) It found that Litmon strongly opposed postponement and asserted
his due process rights several times. (Ibid.) As for the reasons for the delay,
the court weighed the government’s justification against it. (Ibid.) While the
trial court’s initial delay in setting the retrial appeared to be attributable to
commonplace trial scheduling challenges rather than systemic issues, the
court concluded that the subsequent continuance of the trial caused by the
prosecution’s failure to subpoena the expert witnesses could not be reconciled
with due process given Litmon’s “complete loss of liberty awaiting trial.” (Id.
at p. 404.) Finally, under a prejudice analysis, the court concluded: “In our
view, lengthy postdeprivation pretrial delay in an SVP proceeding is
oppressive. In this case, we cannot turn a blind eye to the years of pretrial
confinement that have elapsed following expiration of the last ordered term of
commitment.” (Id. at pp. 405–406.) Balancing the relevant factors, the court
concluded that the trial court should have granted Litmon’s motion to dismiss
the consolidated petitions in the case. (Id. at p. 406.)
28
ii. Landau
In Landau, supra, 214 Cal.App.4th 1, the Fourth District Court of
Appeal applied the Mathews and Barker balancing tests and concluded that a
seven-year delay from the filing of the SVPA petition against Landau to a
third trial in which the jury found that Landau was an SVP (after two
mistrials) did not violate his due process rights because the “vast majority” of
the delays were at Landau’s request or with his consent. (Id. at p. 27.) The
court found that all but 20 days of the delay from the October 2000 filing of
the SVP petition to the first trial in June 2006 resulted from defense
strategy, including change of attorneys, as well as continuances which
defense counsel stipulated to or requested. (Id. at pp. 33, 35–36.) While the
length of the delay was “extreme” if considered as a whole, “when that delay
was at appellant’s request or with his consent, the weight accorded the delay
is reduced. [Citation.] A potential civil committee may not seek to continue
his trial over and over again and then be heard to complain the court violated
due process by granting his requests.” (Id. at p. 37.) The final 20-day delay
in the trial due to court congestion did not appear to be a systemic or chronic
problem, did not raise a presumption of prejudice, and did not violate
Landau’s due process rights under Mathews or Barker. (Id. at pp. 36–38.)
Fourteen months of the 18-month delay before the second trial “was at
the request of Landau’s counsel and one month of the delay resulted from
litigation over the People’s discovery motion. [Citation.] As to the 43-day
period in which the case trailed in ready status, the court concluded this
delay due to court congestion and failure to prioritize SVP trials was
‘unsatisfactory,’ but did not deny Landau due process in light of the prior
14-month delay to which he consented.” (Vasquez, supra, 27 Cal.App.5th at
p. 60.)
29
Finally, after Landau’s second trial also ended in a mistrial in February
2008, retrial occurred within four and a half months, even with a new deputy
district attorney assigned to the case in the interim. (Landau, supra,
214 Cal.App.4th at p. 43.) The court found that “the delay was not
unreasonable given a new lawyer was assigned to the case after the mistrial,
the complexity of the case, the number of experts involved, the reports to be
read and digested, and the consideration to be given to the prior testimony of
a number of witnesses in the two prior trials.” (Ibid.) The final 98-day delay
after both parties announced ready for trial was due to court congestion
which, while not excusable, was not presumptively prejudicial for purposes of
triggering a Barker inquiry. (Id. at pp. 42–44.) It thus did not violate due
process. (Id. at p. 44.)
iii. Vasquez
More recently, the Second District Court of Appeal analyzed a due
process challenge brought by an alleged SVP defendant who was denied a
trial for over 17 years in Vasquez, supra, 27 Cal.App.5th 36. Applying
Mathews and Barker, the court affirmed the trial court’s conclusion that the
substantial pretrial delay was a due process violation necessitating dismissal
of his SVP petition. (Id. at pp. 53–54.)
With respect to the Barker factors, the court concluded that “a 17-year
delay before trial is by any measure an ‘extraordinary’ delay that triggers the
Barker inquiry and weighs against the state.” (Vasquez, supra,
27 Cal.App.5th at p. 61.) Moreover, although Vasquez did not strongly assert
his right to a timely trial prior to 2016—when he exclaimed to the court
“ ‘ “enough is enough” ’ ”—the court found Vasquez’s ability to assert his due
process right before that date had been hindered. He only appeared in court
one time from 2002 to 2012, and he only consented to continuances from 2014
30
to 2016 because he did not want to proceed to trial with an unprepared
attorney. (Id. at pp. 61–62 & fn. 17.) Under these circumstances, the court
did not give “significant weight” to this factor. (Id. at p. 63.) With respect to
prejudice, the court opined that “[t]here can be no question that a 17-year
delay from the filing of the petition caused an ‘ “oppressive” ’ period of
pretrial confinement” and concluded that this “ ‘presumption of prejudice’ ”
would weigh heavily against the state if the cause of the delay was official
negligence. (Id. at p. 64.)
The Court of Appeal then turned to the cause for the delay, which it
deemed “the pivotal question” for its due process inquiry. Guided by
Williams, the court considered the conduct of the prosecution, the defense,
and the trial court. (Vasquez, supra, 27 Cal.App.5th at p. 64.) The defendant
conceded that the prosecution was not responsible for the delay. The
prosecution had repeatedly objected to further continuances of the trial date
beginning in January 2015 and urged the trial court to remove the public
defender’s office and appoint new counsel so that the case could proceed to
trial. (Ibid.)
As to the defense, Vasquez was charged with the first 14 years of the
delay under Brillon because his defense counsel failed to move the case
forward in a diligent manner. (Id. at p. 70.) However, beginning in October
2014, the trial court found that systemic dysfunction in the public defender’s
office was the cause behind a two-year delay in the proceedings. The court
cited large budget cuts, defense counsel’s inability to advance the case due to
her workload, and her subsequent transfer out of the SVP unit on the eve of a
trial date. (Id. at pp. 71–72.) This two-year delay—which the appellate court
“viewed in light of both the 14-year delay that preceded it and the eight-
month delay that followed, leading up to the motion to dismiss”—represented
31
the type of “breakdown in the public defender system” that must be charged
to the state. (Id. at pp. 71, 73.) Given “the presumptively prejudicial 17-year
delay, Vasquez’s assertion of his right to a speedy trial . . . [in] 2016, and his
limited ability to assert his right prior to that date, the oppressive nature of
Vasquez’s confinement for 17 years, and the systemic breakdown in the
public defender system that caused the final two- to three-year delay in
bringing Vasquez’s matter to trial,” the Vasquez court found no error in the
trial court’s conclusion that all four Barker factors militated in favor of
Vasquez and against the state. (Id. at p. 74.)
The appellate court also concluded that the trial court “must share
responsibility for some of the delay.” (Vasquez, supra, 27 Cal.App.5th at
p. 74.) Citing Williams, Landau, and Litmon, the court emphasized that
“ ‘ “the trial court has an affirmative constitutional obligation to bring the
defendant to trial in a timely manner.” ’ ” (Ibid.) “To the extent the trial
court is responsible for a portion of the delay, it is attributable to the state.”
(Ibid.) During the first 14 years of Vasquez’s pretrial confinement, the
matter was continued over 50 times, either by stipulation of counsel or at
defense counsel’s request, and it did not appear from the record that “the trial
court took meaningful action to set deadlines or otherwise control the
proceedings and protect Vasquez’s right to a timely trial.” (Id. at pp. 74–75.)
The court observed that “[e]ven where the attorneys stipulate to continue a
trial date, the trial court has an obligation to determine whether there is a
good cause for the continuance.” (Id. at p. 75.) The court also expressed
concern that, while Vasquez might not have been “seeking a speedy trial
because he was facing evaluations supporting his commitment,” it could not
tell “because Vasquez was not present in court during most of this period.”
32
(Ibid. [noting “[t]he trial court also has a responsibility absent a written time
waiver to inquire of a defendant whether he or she agrees to the delay”].)
The Vasquez court concluded that the trial court “could have acted
sooner” to address the later delay caused by the systemic issues in the public
defender’s office. It discussed at length the options the court should have
considered, including the possible removal of the public defender’s office so
that an attorney with adequate time could have been appointed to prepare
defendant’s trial. (Id. at pp. 75–81.) In the end, as in Williams, the Vasquez
court did not find the trial court directly responsible for the delay. However,
the appellate court cautioned: “As the ‘captain of the ship,’ the trial court
cannot passively preside over a case as it moves forward at a snail’s pace
without a trial date in sight.” (Id. at p. 81.)
The Court of Appeal next addressed the Mathews balancing test,
finding no error in the trial court’s conclusion that Mathews also pointed to a
due process violation in the case. (Vasquez, supra, 27 Cal.App.5th at pp. 81–
82.) The court noted the “significant deprivation of liberty” with a 17-year
pretrial confinement, and it agreed with the Litmon court that, under the
third factor, the state has no interest in the involuntary civil commitment of
individuals who do not meet the SVP criteria. (Ibid.) Finally, it concluded
that there was a “ ‘risk of an erroneous deprivation of [Vasquez’s liberty]
interest,’ ” given his lengthy commitment. (Id. at p. 81.) Even though
“Vasquez had 23 positive evaluations, the outcome of a jury trial was not
certain,” especially given his participation in the sex offender treatment
program starting in September 2015 and a later negative evaluation. (Id. at
pp. 81–82.) Moreover, given the change in SVP law discussed above, “even if
Vasquez had been committed after a trial, he was facing only a two-year
commitment, and the People would have needed to file successive petitions to
33
continue his commitment, at least until the law provided for an
indeterminate term of commitment, effective in 2007. [Citations.] Instead,
Vasquez was detained on the original petition for 17 years.” (Id. at p. 82.)
Under both Barker and Matthews, the Court of Appeal concluded that the
trial court did not err in dismissing Vasquez’s SVP petition as a remedy for
the deprivation of his due process rights. (Id. at pp. 82–83; see DeCasas,
supra, 2020 Cal.App.LEXIS 879 [following Vasquez].)
III. DUE PROCESS CHALLENGE IN THIS CASE
Although the district attorney faults the trial court’s due process
analysis on numerous grounds, the primary argument raised in this appeal is
that the trial court erred as a matter of law by failing to attribute to Butler
the entirety of the postdeprivation delay caused by his counsel in this matter
as mandated by Brillon, supra, 556 U.S. 81. “ ‘In an appeal from an order
granting a petition for habeas corpus after an evidentiary hearing, basic
principles of appellate review apply, and thus, questions of fact and questions
of law are reviewed under different standards. [Citation.] . . . [F]indings of
fact will be accorded due deference under the substantial evidence standard.
[Citation.] However, “[t]his court . . . independently reviews questions of law,
such as the selection of the controlling rule.” [Citation.] Mixed questions of
law and fact are reviewed under the clearly erroneous standard if the inquiry
is predominantly factual, but are reviewed de novo if the application of law to
fact is predominantly legal.’ ” (In re Andres (2016) 244 Cal.App.4th 1383,
1393; accord In re Collins (2001) 86 Cal.App.4th 1176, 1181.) We see no
reversible error in the trial court’s conclusion that a due process violation
occurred here.
34
A. Application of the Barker Factors
i. Length of the Delay
We have no difficulty in concluding that the nearly 13-year delay from
the filing of the SVP petition in November 2006 to the filing of the instant
habeas corpus petition in April 2019 without a trial constituted a significant
deprivation of liberty and was sufficient to trigger a Barker analysis. The
district attorney does not argue otherwise. Indeed, it would be difficult to
argue that the delay in this matter was anything other than extraordinary.
(See Doggett v. United States (1992) 505 U.S. 647, 652 (Doggett) [noting “the
extraordinary 8 1/2-year lag between [defendant’s] indictment and arrest”];
Barker, supra, 407 U.S. at p. 533 [delay of over five years “extraordinary”];
Williams, supra, 58 Cal.4th at p. 235 [delay of seven years “ ‘extraordinary’ ”];
Vasquez, supra, 27 Cal.App.5th at p. 61 [“a 17-year delay before trial is by
any measure an ‘extraordinary’ delay”].) We agree with the district attorney,
however, that even a lengthy period of delay is not necessarily dispositive. It
is one factor among several to balance in a due process analysis. (Doggett, at
p. 652; Vasquez, at p. 69.)
ii. Assertion of the Right
Under Barker, a defendant’s failure to assert a speedy trial violation is
not dispositive. “A defendant has no duty to bring himself to trial; the State
has that duty as well as the duty of insuring that the trial is consistent with
due process.” (Barker, supra, 407 U.S. at p. 527.) On the other hand, a
defendant bears some responsibility for asserting the right, and the court
should consider the “frequency and force of the objections” under the
circumstances of the case. (Id. at pp. 528–529.) “ ‘The issue is not simply the
number of times the accused acquiesced or objected; rather, the focus is on
the surrounding circumstances, such as the timeliness, persistence, and
35
sincerity of the objections, the reasons for the acquiescence, whether the
accused was represented by counsel, the accused’s pretrial conduct (as that
conduct bears on the speedy trial right), and so forth. [Citation.] The totality
of the accused’s responses to the delay is indicative of whether he or she
actually wanted a speedy trial.’ ” (Williams, supra, 58 Cal.4th at p. 238.)
As we described above, the habeas court made several factual findings
relevant to Butler’s assertion of his right to a timely trial. It found that
Butler made “sincere and repeated demands” for a timely trial as early as
December 2006. The court based its finding on Butler’s December 2006
letters to Judge Cartwright; Butler’s March 2009 letter to counsel;
McCormick’s testimony during the August 2019 evidentiary hearing; Butler’s
statements during the December 2018 Marsden hearing; Klaus’s statements
to the court during that same hearing; and Butler’s declaration submitted
with the habeas petition. In the court’s view, “Butler’s letters to Judge
Cartwright expressed a genuine desire to return to his family and society in
general, coupled with concerns about whether he harmed himself by following
counsel’s advice,” and were “sufficient to put the court on notice that Butler
was not seeking to prolong the proceedings.” Butler’s March 2009 letter to
counsel “unequivocally” stated that counsel was not authorized to waive time
and demanded a timely trial. And Klaus acknowledged during the 2018
Marsden hearing that “the client file showed Butler made numerous
demands for a speedy trial over the course of 12 years.” In particular, Klaus
noted two instances (September 2016 and November 2017) in which Butler
told him he wanted a timely trial.
We reject the district attorney’s contention that Butler did not assert
his trial rights in a manner meaningful to a speedy trial analysis because he
communicated those desires only to his appointed counsel, which failed to
36
convey his trial demands in open court and on the record. While it does not
appear that the People were aware of Butler’s desire for trial prior to the
December 2018 Marsden hearing, the same cannot be said for the trial court,
which received Butler’s letters in 2006. Substantial evidence supports the
habeas court’s finding that these letters were sufficient to alert the court at
an early stage of the proceedings of Butler’s sincere desire to have a trial.
We also conclude that the assertion of the right is not negated by
appointed counsel’s failure to communicate their client’s timely trial demand
on the record. “The Constitution guarantees a criminal defendant both a
speedy trial right and effective representation, and it puts the burden of
securing both guarantees on the state.” (Williams, supra, 58 Cal.4th at
p. 238.) There is ample evidence that Butler asserted his right repeatedly
throughout this period and was unequivocal that his public defenders were
not authorized to waive time on his behalf, and yet his appointed counsel
requested or acceded to over 50 continuances. McCormick, for example, did
not put the matter on calendar after receiving Butler’s March 2009 letter, but
instead waited six weeks until the next scheduled court appearance to
request a trial date, a date he then vacated at the next calling of the case.
And although Butler demanded a trial upon first meeting Klaus in
September 2016, Klaus did not add the case to calendar to request a trial
date. Instead, he “ ‘began to talk’ ” to the prosecutor about “ ‘getting [a trial]
going’ ” in November 2017 and the prosecutor did not request updated
evaluations until September 2018. By his own admission, Klaus failed to set
a trial date or move the case forward in a meaningful manner for over two
years after being informed that Butler wished to exercise his timely trial
right. The habeas court accordingly found that Butler had not waived his
right to a speedy trial.
37
Under the circumstances, we cannot conclude that Butler acquiesced to
his counsel’s unauthorized waivers of time or that he waived his right to a
timely trial. Waiver requires “ ‘an intentional relinquishment or
abandonment of a known right or privilege’ ” (Barker, supra, 407 U.S. at
p. 525), and the circumstances here show a person who sought in various
ways to press his timely trial right and was finally compelled to seek the
removal of his appointed counsel in December 2018 when his demands fell on
deaf ears. Butler’s early and repeated assertion of his timely trial demand
deserves serious weight.
Even if the district attorney were correct that Butler had not asserted
his due process right until the December 2018 Marsden hearing, we would
conclude that this factor should not be held against him. In Vasquez, the
trial court found “that Vasquez’s ability to assert his speedy trial right was
hindered by the fact that from February 2002 to February 2012 he never
appeared in court.” (Vasquez, supra, 27 Cal.App.5th at p. 62.) The appellate
court agreed that “Vasquez could not realistically have asserted his due
process rights during the 10-year period in which he largely did not appear in
court.” (Ibid.; see DeCasas, supra, ___ Cal.App.5th ___ [2020 Cal.App.LEXIS
879 at pp. 35–37] [declining to give DeCasas’s failure to assert his due
process rights significant weight where he appeared in court only
sporadically and was never asked whether he wanted a speedy trial].)
Similarly, Butler was not present in court from January 2007 to December
2018 and was therefore hindered in his ability to assert his right to a timely
trial during this period. The habeas court also found no evidence that
Butler’s public defenders sought or obtained authorization from Butler to
waive his appearance in court and no evidence that they explained to him his
right to appear. Moreover, and in contrast to Vasquez, the habeas court
38
ultimately became aware of evidence indicating that Butler had repeatedly
sought to assert his trial right throughout the period of his pretrial detention.
Under the circumstances, the habeas court did not err in refusing to find that
Butler had waived his timely-trial right.
iii. Prejudice
Prejudice under Barker is judged by the impact of the delay on the
interests the speedy trial right was designed to protect—“(i) to prevent
oppressive pretrial incarceration; (ii) to minimize anxiety and concern of the
accused; and (iii) to limit the possibility that the defense will be impaired.”
(Barker, supra, 407 U.S. at p. 532.) Of these concerns, “the most serious is
the last, because the inability of a defendant adequately to prepare his case
skews the fairness of the entire system.” (Ibid.) As the district attorney
correctly points out, SVP trials differ from criminal prosecutions in that the
issue at trial—no matter when it is held—is whether an alleged SVP
currently suffers from a mental disorder that creates a danger to society.
(See § 6600, subd. (a)(3); Hubbart v. Superior Court (1999) 19 Cal.4th 1138,
1162 [The SVPA “clearly requires the trier of fact to find that an SVP is
dangerous at the time of commitment. The statutory criteria are expressed
in the present tense, indicating that each must exist at the time the verdict is
rendered.”].) Thus, many of the typical concerns triggered by delayed
criminal prosecutions—faded memories, lost evidence, and missing or
deceased witnesses (Barker, at p. 532; Vasquez, supra, 27 Cal.App.5th at
p. 63)—may not be as pressing in SVP trials.
The district attorney overlooks, however, the prejudice that can arise
from “oppressive pretrial incarceration.” (Barker, supra, 407 U.S. at p. 532.)
Several appellate courts have recognized this type of prejudice in SVP
proceedings. (See Vasquez, supra, 27 Cal.App.5th at p. 64 [“There can be no
39
question that a 17-year delay from the filing of the petition caused an
‘ “oppressive” ’ period of pretrial confinement.”]; Litmon, supra,
162 Cal.App.4th at p. 406 [“[L]engthy postdeprivation pretrial delay in an
SVP proceeding is oppressive. In this case, we cannot turn a blind eye to the
years of pretrial confinement that have elapsed following expiration of the
last ordered term of commitment.”]; cf. Williams, supra, 58 Cal.4th at p. 235
[“We have no difficulty concluding, even in light of the complexity of the case
and the need for adequate preparation, that being jailed without a trial for
seven years is ‘oppressive.’ ”].) The habeas court in these proceedings, citing
Williams, Vasquez, and Litmon, concluded that “Butler was prejudiced by the
nearly 13[-]year delay.” We agree. Butler’s forced confinement in a state
hospital for 13 years while he awaited a trial on his SVP petition—a trial he
pleaded with his counsel and the court to set as soon as possible—is
unquestionably an oppressive experience.
We reject the district attorney’s suggestion that, far from being
prejudicial, the lengthy delay in this case likely worked to Butler’s
advantage. Noting that Butler had reentered sex offender treatment
sometime after November 2017 in preparation for the anticipated trial, the
district attorney argues that the delay gave Butler the opportunity to engage
in sex offender treatment, which could have resulted in findings that he did
not meet the SVP commitment criteria. The district attorney also points to
age and the potential for declining health as factors which decrease the
likelihood of reoffense over time and are thus positively impacted by delay.
The problem with this argument, of course, is that it starts from the flawed
premise that the extended pretrial confinement of alleged SVPs is otherwise
justifiable. Had an early trial been held in this matter, it is equally plausible
that Butler might not have been found to be an SVP or that he might have
40
engaged in sustained sex offender treatment years ago, which could have led
to his release or supported a petition for conditional or unconditional release.
(§§ 6604.9, 6605, 6608.) We will never know, however, because, as the trial
court recognized: “ ‘[T]ime once past can never be recovered.’ ” (Vasquez,
supra, 27 Cal.App.5th at p. 64.)
Moreover, as the United States Supreme Court has recognized,
“consideration of prejudice is not limited to the specifically demonstrable, and
. . . [thus] affirmative proof of particularized prejudice is not essential to
every speedy trial claim.” (Doggett, supra, 505 U.S. at p. 655.) Rather, “we
generally have to recognize that excessive delay presumptively compromises
the reliability of a trial in ways that neither party can prove or, for that
matter, identify. While such presumptive prejudice cannot alone carry a
Sixth Amendment claim without regard to the other Barker criteria,
[citation], it is part of the mix of relevant facts, and its importance increases
with the length of delay.” (Id. at pp. 655–656, italics added.)
The high court in Doggett went on to discuss how the importance of
presumptive prejudice varies with the reason for the delay, explaining:
“ ‘Between diligent prosecution and bad-faith delay, official negligence in
bringing an accused to trial occupies the middle ground. While not
compelling relief in every case where bad-faith delay would make relief
virtually automatic, neither is negligence automatically tolerable simply
because the accused cannot demonstrate exactly how it has prejudiced
him. . . . [¶] . . . Although negligence is obviously to be weighed more lightly
than a deliberate intent to harm the accused’s defense, it still falls on the
wrong side of the divide between acceptable and unacceptable reasons for
delaying a criminal prosecution once it has begun. And such is the nature of
the prejudice presumed that the weight we assign to official negligence
41
compounds over time as the presumption of evidentiary prejudice grows.
Thus, our toleration of such negligence varies inversely with its
protractedness, [citation], and its consequent threat to the fairness of the
accused’s trial.’ ” (Williams, supra, 58 Cal.4th at p. 237, quoting Doggett.)
In the present case, the trial court concluded that the “root cause” of
the postdeprivation delay was “official negligence” and presumed prejudice on
that basis. We agree that the delay here, as in Doggett, was sufficiently
protracted that the presumption of prejudice would weigh heavily in Butler’s
favor if the cause of the delay was official negligence. We thus turn to an
examination of this crucial question.
iv. Reasons for the Delay
When considering the governmental justification for the delay under
Barker, “different weights should be assigned to different reasons. A
deliberate attempt to delay the trial in order to hamper the defense should be
weighted heavily against the government. A more neutral reason such as
negligence or overcrowded courts should be weighted less heavily but
nevertheless should be considered since the ultimate responsibility for such
circumstances must rest with the government rather than with the
defendant. . . . [A] valid reason, such as a missing witness, should serve to
justify appropriate delay.” (Barker, supra, 407 U.S. at p. 531.) As the
California Supreme Court did in Williams and the Second District did in
Vasquez, we discuss the conduct of the prosecution, the defense, and the trial
court when analyzing the reasons for the delay. (See Williams, supra,
58 Cal.4th at p. 239; Vasquez, supra, 27 Cal.App.5th at p. 64.) Our goal is to
determine “ ‘whether the government or the [alleged SVP] [was] more to
blame for th[e] delay’ ” in the case. (Brillon, supra, 556 U.S. at p. 90.)
42
The Prosecution
The habeas court found that at least six different prosecutors appeared
on Butler’s matter. During the 13 years this case was pending, the court
found that “[t]he People never objected, on the record, to a single continuance.
The People never asked, on the record, that the court find good cause for any
continuance. The People never declared, on the record, that they were ready
for trial.” On this record, the court concluded Butler had proven “that the
People abandoned their role as the plaintiff in this case.” Indeed, the court
found that “the People had no intention of moving the case past the initial
probable cause hearing in January 2007 and were content with
indeterminate delays . . . because Butler had been and remains detained.”
While the court found no evidence of intentional bad faith delay by the
prosecution, it rejected the prosecution’s position that the People “had no
obligation to do anything.” Rather, the court concluded that “since the People
are responsible for prosecuting the case, the People cannot avoid their duties
to move the case forward by passively deferring to the defense and the court.”
It therefore found that the prosecution bore some responsibility for the delay.
On appeal, the district attorney does not challenge the trial court’s
factual findings, relying instead on the notion that it was under no obligation
to bring the matter to trial. She asserts that there is “no evidence in the
record that the district attorney’s office was unavailable or otherwise
unprepared to afford [Butler] a timely trial had he been willing to set a trial
date.” (Italics added.) She points out that the prosecution has no state
constitutional right to a speedy trial in SVP cases as it does in criminal cases.
(See Cal. Const., art. I, § 29.) And she posits that there was no basis for the
prosecution to object to the bulk of the continuances in this matter because it
already had everything it wanted: “[T]he People’s interests are satisfied if a
43
person whom it is reasonably believed currently meets criteria as an SVP
remains detained in a secure treatment facility.”9 These arguments
fundamentally misapprehend the prosecution’s due process obligations in
civil commitment proceedings under the SVPA.
This is not a case about the prosecution’s rights or interests. It is a
case about its constitutional obligations. As the United States Supreme
Court declared in Barker, the state has the duty to bring an accused
individual to trial “as well as the duty of insuring that the trial is consistent
with due process.” (Barker, supra, 407 U.S. at p. 527; see Dickey v. Florida
(1970) 398 U.S. 30, 37–38 [“[a]lthough a great many accused persons seek to
put off the confrontation as long as possible, the right to a prompt inquiry
into criminal charges is fundamental and the duty of the charging authority
is to provide a prompt trial,” italics added].) This duty has been recognized in
the forced confinement of alleged SVP defendants as well. (Litmon, supra,
162 Cal.App.4th at p. 406 [“The ultimate responsibility for bringing a person
to trial on an SVP petition at a ‘meaningful time’ rests with the
government.”].) Thus, even if the People had no right to a speedy trial and no
particular interest in disturbing the status quo so long as Butler remained
9 We reject the suggestion that the state’s interest in an SVP
proceeding is satisfied by indefinite pretrial detention of an alleged SVP
defendant. The district attorney relies on Moore v. Superior Court (2010)
50 Cal.4th 802, 815, in asserting that “[t]he societal interest served by the
SVPA is solely to confine alleged SVPs in a secure treatment facility ‘until
their dangerous disorders recede and they no longer pose a societal threat.’ ”
In fact, Moore says nothing about “alleged SVPs.” Rather, it stresses that,
under the SVPA, “[c]ommitment depends upon whether the person is found to
be an SVP—a finding that ensures the Act applies to only ‘the most
dangerous offenders.’ ” (Moore, at p. 815, italics added.) Moreover, as other
courts have recognized, the state has no interest in the involuntary civil
confinement of persons who do not qualify as SVPs. (See Litmon, supra,
162 Cal.App.4th at p. 401.)
44
detained, the People have a constitutional obligation to ensure that Butler’s
due process right to a timely SVP trial is met.
The People’s due process obligation in an SVPA proceeding cannot be
defined with precision, as Barker recognized that a speedy trial analysis
entails a careful weighing of the different factors and the circumstances of
each case. (Barker, supra, 407 U.S. at p. 533.) However, certain examples
illuminate when the government’s conduct may fall on the wrong side of the
divide between “diligent prosecution” and “official negligence” in bringing the
accused to trial. (Doggett, supra, 505 U.S. at p. 656–657.) For example, the
prosecutors in both Williams and Vasquez were excused from any culpability
for the extraordinary delays in those cases only because they took proactive
measures to push the matters towards trial. (Williams, supra, 58 Cal.4th at
pp. 218, 239–240; Vasquez, supra, 27 Cal.App.5th at p. 64.) In Williams, the
prosecution objected throughout the proceedings to continuances of the trial
date, stated on the record it was ready for trial, and urged the trial court to
revoke the defendant’s Faretta status when his self-representation led to
unnecessary delays. (Williams, at pp. 218, 228–230, 239–240.) In Vasquez,
the prosecution repeatedly objected to further continuances of the trial date
and urged the trial court to remove the public defender’s office and appoint
new counsel so that the case could proceed to trial. (Vasquez, at p. 64.)
Conversely, the prosecution’s failure to secure the attendance of experts for
trial in Litmon, causing unnecessary delay at the end of an already extensive
pretrial delay, was a factor that weighed against the government’s obligation
to ensure a prompt SVP trial. (Litmon, supra, 162 Cal.App.4th at p. 404–
405.)
These authorities make clear that the People’s due process obligation in
an SVPA proceeding requires that it diligently prosecute the case. This may
45
entail stating on the record that it is prepared to go to trial, taking
affirmative steps to set a trial date, promptly requesting clinical evaluations
and records, and securing the attendance of witnesses in a timely manner.
Continuance requests, whether by defense counsel or the prosecution, should
be supported by an affirmative showing of good cause, and where such a
showing is lacking, an objection to the request may be warranted. Where the
prosecution encounters repeated continuances of a setting hearing or trial
date, or other dilatory tactics, diligent prosecution of an SVP petition may
necessitate objecting to the delays, insisting upon trial deadlines, and making
the trial court aware of the length of time since the filing of the SVP petition
or other pertinent details from the record. The prosecution may even find it
necessary to seek the removal of appointed counsel, the appointment of new
or additional counsel, or other measures to ensure that an alleged SVP
defendant is brought to trial at a meaningful time and in a meaningful
manner.
It was incumbent on the district attorney’s office here to take
affirmative steps to prosecute its case against Butler and bring him to trial
on the SVP petition, and it abandoned this responsibility. It bears
mentioning, however, that the district attorney did not simply fail to act.
Several of the prosecution’s own actions contributed to unwarranted delays in
the trial. The first trial date of June 2008 was vacated at the prosecution’s
request due to a “scheduled vacation,” which appears to have been scheduled
at some time after the June 2008 trial date had already been set. The habeas
court found several other continuances that were sought by the prosecution
or by agreement of the parties, including in December 2008, May, July, and
November 2012, and February and June 2015. For example, on November 1,
2012, the prosecution appeared and asked to have the pending probable
46
cause hearing continued to April 5, 2013. The probable cause hearing had
already been continued several times, and no explanation was given by the
prosecution for the requested five-month delay. As noted above (see fn. 4,
ante), Butler had been detained without a finding of probable cause since the
May 2012 order, and there is no evidence that the prosecutor brought this
order to Judge Hymer’s attention or insisted that this statutory requirement
be enforced or the order revisited on the basis of Reilly. (§ 6602, subd. (a).)
We question whether such inaction on the part of the government as to a
fundamental protection for the accused comports with the requirements of
due process.10
Finally, as the habeas court also noted, Butler’s public defender Klaus
testified that he began speaking with the prosecution in November 2017
about setting a trial date, but it was not until September 2018—about 10
months later—that the prosecution ordered new evaluations. No explanation
for this delay has been pointed out in the record. Even if we focused solely
upon the prosecution’s own actions, rather than its mere acquiescence to
defense counsel’s delays, we would find substantial evidence in support of the
habeas court’s finding that the prosecution was directly responsible for at
least some of the delay in this matter.
But we do not view the government’s responsibility so narrowly. Given
the extensive delay in this case and the district attorney’s abdication of its
10 The ethical obligations that guide prosecutors in criminal proceedings
apply with equal force is SVP proceedings. These obligations require them to
facilitate justice, not to achieve a particular adversarial goal. (People v.
Kelley (1977) 75 Cal.App.3d 672, 689.) As surrogates for the People of the
State of California (Gov. Code, § 100, subd. (b)), they have a special duty to
ensure the fairness and reliability of both the justice process and the
outcomes of that process. (Berger v. United States (1935) 295 U.S. 78, 88;
United States v. La Page (9th Cir. 2000) 231 F.3d 488, 492.)
47
duty to ensure that Butler received a timely trial, we conclude that the
prosecution bore significant responsibility for the delay. At the very least, its
actions (or lack thereof) supply the official negligence necessary to presume
prejudice.
The Defense
At least eight public defenders appeared in Butler’s matter, including
the five assigned public defenders discussed above. In the 12 years in which
the Alameda County Public Defender represented Butler, the office waived
Butler’s personal appearance 60 times without obtaining his authorization to
do so, never once conveyed in open court Butler’s demands for a trial,
requested or acquiesced to over 50 continuances of time without objection,
and filed a total of four motions on Butler’s behalf.
The habeas court found that a full year passed before the first trial date
was set, yet there was little to no evidence in the record as to why. Although
the first trial date was vacated at the People’s request, McCormick agreed to
the request because he “did not have doctors for that case yet” and was not
ready for trial. McCormick later testified that he requested a January 2010
trial after receiving Butler’s letter demanding a trial, only to vacate the
second trial date because it apparently conflicted with another preexisting
trial date. Why he would choose that trial date in the first place is unclear
because the trial court did not ask him.
In the five-year period between 2011 and 2016, Butler was primarily
represented by two public defenders, Higgins and Elenteny. Higgins
undertook the task of completing the Ronje motion to dismiss begun by
McCormick, a motion that required three years to prepare. The Ronje motion
succeeded in part, and in May 2012 the trial court granted Butler’s request
for new evaluations and a new probable cause hearing. Despite this hard-
48
earned victory, Higgins agreed to the prosecution’s requests to continue the
probable cause hearing to July 2012, then November 2012, then again to
April 2013, the last request unaccompanied by any good cause basis for a
five-month delay. Neither Higgins nor Elenteny, who was assigned to the
Butler matter in February 2015, ever demanded that Butler receive a
probable cause hearing. That the public defender’s office would allow their
client to be held on the SVP petition for the next six years without a finding
of probable cause is deeply concerning, if not deficient.
At the 2018 Marsden hearing, Klaus acknowledged that the office was
aware of Butler’s March 2009 letter demanding a trial. Klaus also confirmed
that when he met with Butler in September 2016, Butler asked for a trial
date to be set. Butler reiterated his trial demands to Klaus in November
2017 and expressed “real concern” how he kept getting transferred from
lawyer to lawyer in August 2017. Despite the client insisting that he be
given a trial, Klaus did not add the case to calendar to request a trial date.
Instead, he “ ‘began to talk’ ” to the prosecutor about “ ‘getting [a trial]
going’ ” in November 2017, and the prosecutor did not request updated
evaluations until September 2018. By his own admission, Klaus failed to set
a trial date or move the case forward in a meaningful manner for over two
years after Butler conveyed his demand for trial. At the Marsden hearing,
Klaus denied that his office had represented Butler incompetently and
indicated he needed to hire experts to assess the new evaluations and
anticipated selecting a trial date for some time in the winter or early spring
of 2019. This refrain from the public defender’s office—that it needed to “hire
experts” and a trial date was just around the corner—rings hollow as the
habeas court found no evidence that any of Butler’s public defenders ever
retained or consulted a defense expert on his behalf. In short, there is
49
abundant evidence to support the habeas court’s finding that Butler’s public
defenders essentially ignored and disregarded his demands for a timely trial
and his express direction that counsel was not authorized to waive time on
his behalf.
It is true that under Brillon, delay caused by defense counsel, including
“[a]n assigned counsel’s failure ‘to move the case forward,’ ” is generally
charged to the defendant. (Brillon, supra, 556 U.S. at pp. 90–92.) This
general rule, however, “is not absolute,” and delays caused by a “systemic
‘breakdown in the public defender system’ ” or “institutional problems” can be
chargeable to the state. (Id. at p. 94.) In Williams, the California Supreme
Court observed that “[i]t is possible that the ‘revolving door’ of appointed
counsel in this case is indicative of ‘institutional problems’ [citing Brillon]”
but it found the record on appeal inconclusive on this point. (Williams,
supra, 58 Cal.4th at p. 248.) There are several factors here suggesting that
the public defender’s mismanagement of this case went beyond any particular
attorney’s performance. The office’s collective failure to convey Butler’s trial
demands, its disregard of the express wishes of the client, its failure to
demand a probable cause hearing or to engage or consult with a defense
expert or come close to being ready for trial, its relay race of substituting
counsel, its unexplained delays and piecemeal litigation seemingly without
purpose other than to forestall trial—are all circumstances that arose across
all or multiple public defenders and suggests a systemic deficiency in the
management and supervision of this SVP case.
Like the habeas court, however, we need not resolve whether there was
a systemic breakdown in the public defender’s office. The habeas court
concluded that it would be fundamentally unfair to hold Butler personally
and solely accountable for delays caused by his counsel under such
50
circumstances, and it therefore determined “reluctantly” that Butler should
be assigned some—“but not all or even most”—of the responsibility for the
delay in this case. We agree with the court’s reasoning, and conclude that
even if some of the delay must be charged to Butler as a matter of law,
substantial evidence supports the habeas court’s determination that the bulk
of the delay may be attributed to the actions (and inactions) by the state.
The Trial Court
Judge Cartwright was assigned to Butler’s case from December 2006 to
December 2013. The habeas court found that Judge Cartwright allowed all
three trial dates in this matter to be vacated without any showing of good
cause and permitted the matter to be continued on 25 other occasions without
ever finding good cause on the record. Moreover, after ordering a new
probable cause hearing in May 2012, the court allowed the probable cause
hearing date to be continued multiple times and then dropped without
explanation. Similarly, during the time the case was assigned to Judge
Hymer between January 2014 and May 2019, “[t]here is no evidence the
court ever set a second probable cause hearing. There is no evidence the
court ever set a trial date. There is no evidence the court ever required an
on-the-record showing or finding of good cause before granting a
continuance.” The habeas court found that Butler’s matter was on calendar
66 times during the pendency of the case, but Butler only appeared in court
six times—four times in December 2006 and January 2007 and twice in
December 2018. The habeas court found that “[t]here [was] no evidence the
[trial] court ever asked counsel whether Butler objected to the continuances
or wanted a trial,” and “[e]xcept for the Marsden hearing, there is no evidence
the court ever ordered Butler to be transported to court to ascertain his
wishes.”
51
The habeas court determined that Butler had proven that the courts
failed to honor Butler’s due process right to a timely SVP trial: “By granting
12 years of continuances in Butler’s absence, without maintaining trial dates,
without requiring counsel to demonstrate good cause on the record, without
determining Butler’s wishes from Butler, the courts allowed the People to
abandon their role[] as the plaintiff and allowed defense counsel to ignore
Butler’s repeated and sincere demands for a speedy trial.” Thus, the trial
court and therefore the state was responsible for the delays.
The district attorney attempts to justify the trial court’s
mismanagement of the case by arguing that “to the extent that it appears
that the defense is pursuing a reasonable strategy, courts should be reluctant
to intrude into the attorney-client relationship.” She suggests that it should
be left to the defense to drive the case, and the court should feel no
“affirmative obligation to bring an SVP respondent to trial when he sincerely
does not wish one or otherwise over his objection.” This argument flies in the
face of the precedent previously discussed which creates just such an
affirmative obligation. (See Barker, supra, 407 U.S. at p. 529 [“the primary
burden [is] on the courts and the prosecutors to assure that cases are brought
to trial”]; Williams, supra, 58 Cal.4th at p. 251 [“ ‘the trial court has an
affirmative constitutional obligation to bring the defendant to trial in a
timely manner’ ”]; Vasquez, supra, 27 Cal.App.5th at p. 77 [“ ‘It is the
obligation of the prosecutor and the court to try the accused in a timely
manner, and this duty requires a good-faith, diligent effort to bring him to
trial quickly. [Citation.] . . . And, most importantly, it is the obligation of the
trial court to ensure that the prosecution and the defense fulfill their
respective obligations.’ ”]; see DeCasas, supra, ___ Cal.App.5th ___ [2020
Cal.App.LEXIS 879 at pp. *44–*45 [“For purposes of the Barker analysis, to
52
the extent the court’s failure to fulfill its obligation as a protector of the right
to a speedy trial caused the delay, that delay is attributable to the state.”]; id.
at p. *47 [finding no error in the trial court’s conclusion that “ ‘the [s]tate had
failed [DeCasas]’ ”].)
Moreover, as the Williams court recognized, courts manage cases
routinely and appropriately without intruding on the attorney-client
relationship. (Williams, supra, 58 Cal.4th at p. 251 [finding it “ ‘entirely
appropriate for the court to set deadlines and to hold the parties strictly to
those deadlines unless a continuance is justified by a concrete showing of
good cause for the delay’ ”].) And apparently the Legislature agrees, as
effective January 1, 2020, it amended the SVPA to require that any request
to continue a trial date in an SVP proceeding must be in writing and may be
granted only upon a showing of good cause and only for the period of time
shown to be necessary by the evidence considered at the hearing on the
motion. (§ 6603 subd. (c), as added by Stats 2019, ch. 606, § 1.)11
Substantial evidence supports the habeas court’s determination that
the trial court was responsible for a portion of the delay, and therefore this
delay is attributable to the state. (DeCasas, supra, ___ Cal.App.5th ___ [2020
Cal.App.LEXIS at pp. *43–*45];Vasquez, supra, 27 Cal.App.5th at p. 51;
Litmon, supra, 162 Cal.App.4th at p. 406.) The record discloses that the
matter was continued over 50 times, either at the request of the defense or
the prosecution or by stipulation, and there is no evidence that the trial court
11 We recognize that this new legislation applies only once a trial date
has been set. But we reject the district attorney’s suggestion that a court’s
constitutional obligation is similarly limited and arises only once the alleged
SVP asks to go to trial. If an alleged SVP could put off trial indefinitely, the
state’s duty to ensure that the case is diligently prosecuted and that the
alleged SVP’s due process right to a timely trial is protected becomes
meaningless.
53
required counsel to provide a good cause basis for any continuance, and no
evidence that the trial court ever made an on-the-record finding of good cause
to justify the delay.
The Vasquez court’s criticism of the trial court’s handling of that SVP
matter applies with equal force here: “It does not appear from the record that
during the [12]-year period the trial court took meaningful action to set
deadlines or otherwise control the proceedings and protect [Butler’s] right to
a timely trial.” (Vasquez, supra, 27 Cal.App.5th at p. 51.) Nor is there any
indication in the record that the trial court ever inquired as to why the case
had dragged on after so many years and no attempt was made to determine
whether the public defender’s office or prosecution had done anything to
prepare adequately for trial.
That the trial court overlooked the May 2012 order requiring a second
probable cause hearing is telling. We are cognizant that an SVP proceeding
is typically complex, and one with a long procedural history as this case all
the more so. That is why trial courts must rely in part on counsel, as officers
of the court, to stay abreast of pertinent procedural matters. Nevertheless, to
fulfill its constitutional obligation to bring a defendant to trial in a timely
manner, the trial court must closely monitor the progress in the case and
conduct the necessary inquiries into the status of the proceedings. That is
difficult to do if the alleged SVP defendant is never present in court and if his
counsel is never asked what his client actually wants. Given these facts, we
cannot fault the habeas court’s conclusion that the trial court was responsible
for a portion of the delay.
***
In sum, the habeas court found under Barker that the prosecution,
Butler (through his counsel), and the trial court were all responsible to some
54
degree for the extraordinary delay in this case, and substantial evidence
supports these findings. The purely legal question which remains is whether,
when multiple parties each bear some responsibility for the same period of
delay, Brillon requires that the delay be charged solely to the defense. We
believe such as reading of Brillon is unnecessarily narrow, especially where,
as here, there is evidence that defense counsel disregarded Butler’s demand
for a timely trial.
As Barker established, no factor in a speedy trial analysis is “either a
necessary or sufficient condition to the finding of a deprivation of the right of
speedy trial. Rather, they are related factors and must be considered
together with such other circumstances as may be relevant.” (Barker, supra,
407 U.S. at p. 533.) Further, Barker itself made clear that the actions of
defense counsel are not always attributable to the defendant. Rather, the
Court explained that a balancing approach allows “a court to attach a
different weight to a situation in which the defendant knowingly fails to
object from a situation in which [defense counsel] acquiesces in long delay
without adequately informing [the defendant].” (Id. at p. 529.) Moreover,
while Brillon holds generally that “delay caused by the defendant’s counsel is
also charged against the defendant” (Brillon, supra, 556 U.S. at pp. 90–91), it
does not specify how much weight such delay must be given in the overall
Barker analysis. Indeed, Brillon itself counsels that the goal of the Barker
analysis is to determine “ ‘whether the government or the criminal defendant
[was] more to blame for th[e] delay.’ ” (Id. at p. 90.)
Here, under Brillon, a portion of the delay in the case was chargeable
to defense counsel and thus, under agency principles, to Butler. But given
the habeas court’s express findings that Butler’s public defenders ignored his
demands for a timely trial and waived time without his authorization, we do
55
not believe it was improper under Brillon and Barker to give this fact
diminished weight. Moreover, the habeas court found that both the
prosecution and the trial court were also responsible for the same delay,
meticulously detailing a record of unjustifiable delay and inaction by both
state actors. Since the ultimate obligation to bring an alleged SVP to trial
falls on the state, we do not think that the habeas court erred under Barker
and Brillon in concluding on these facts that the state was more to blame for
the delay than Butler.
Even if Brillon makes it necessary to find that there was a “systemic
breakdown” or “institutional problems” in the case to avoid charging Butler
with the bulk of the delay in this matter, we conclude that the habeas court
made, or at least implied, such a finding. While the habeas court found it
unnecessary to consider whether there was a fundamental breakdown in the
public defender system, it concluded that “the evidence here shows a systemic
breakdown with the management of this case.” We could not agree more. As
the habeas court’s detailed recitation of the facts makes clear, what occurred
in these SVP proceedings was a perfect storm of institutional dysfunction. A
series of prosecutors completely ignored their duty to bring Butler to trial in a
manner consistent with due process. A series of public defenders failed to
take seriously their client’s desire for, and right to, a timely trial. And the
judges who managed the case for over 12 years did little to ensure that the
prosecution and the defense fulfilled their respective obligations. In the
criminal context, such official negligence and systemic breakdown has been
described as “ ‘what happens when each participant in the criminal justice
system fails to meet his or her respective obligations. Cases drag on
endlessly from continuance to continuance; evidence and documents are lost;
witnesses cannot be located; the accused sits in jail “deteriorating” and
56
becoming increasingly frustrated with counsel; and the prosecution and the
defense adopt a “stream of consciousness” approach, raising one issue and
resolving that, then raising another and resolving that, followed by another,
and then another. Meanwhile, the right to a speedy trial swings aimlessly in
the breeze.’ ” (Vasquez, supra, 27 Cal.App.5th at p. 77, quoting State v.
Couture (2010) 240 P.3d 987, 1015.) Here, it justifies the habeas court’s
conclusion that the state was more to blame for the delay. And this fact,
along with the length and presumptively prejudicial nature of the delay,
Butler’s early and repeated assertion of his timely trial right, and his lack of
opportunities to convey his wishes to the trial court for the bulk of these
proceedings, amply supports the court’s ultimate conclusion that Butler’s due
process rights were violated.
B. Application of the Mathews Test
Consideration of the Mathews factors does not convince us otherwise.
The first and third factors are always the same in an SVP case. With respect
to the first factor—the private interest at stake—it is clear that forced civil
confinement for mental health treatment constitutes “ ‘ “a massive
curtailment of liberty,” ’ ” requiring due process protection. (Litmon, supra,
162 Cal.App.4th at p. 400; accord Vasquez, supra, 27 Cal.App.5th at p. 81.)
As to the third factor, the government undeniably has a “ ‘compelling
protective interest in the confinement and treatment of persons who have
already been convicted of violent sex offenses, and who, as the result of
current mental disorders that make it difficult or impossible to control their
violent sexual impulses, represent a substantial danger of committing similar
new crimes.’ ” (Litmon, at pp. 400–401.) But the state has no interest in
detaining individuals who do not qualify as SVPs. (Id. at p. 401.) Moreover,
“[e]ven in situations justifying postdeprivation hearings, ‘[a]t some point, a
57
delay in the . . . hearing would become a constitutional violation.’ ” (Id. at
p. 396.) Thus, in our view, the governmental interest in continued detention
of an alleged SVP lessens as the delay increases without a determination that
the individual is, in fact, an SVP.
The risk of erroneous deprivation under the second Mathews factor also
increases with the length of the delay. In some cases, a previous hung jury,
or a subsequent negative evaluation, or renewed participation in sex offender
treatment as the case ages may suggest the possibility that the alleged SVP
might not be determined to be an SVP at trial, increasing this risk. (See, e.g.,
Vasquez, supra, 27 Cal.App.5th at pp. 81–82 [negative evaluation and
entering treatment]; Landau, supra, 214 Cal.App.4th at p. 41 [hung jury];
Litmon, supra, 162 Cal.App.4th at p. 402 [hung jury].) But even absent such
circumstances, extraordinary pretrial delay increases the risk that an
erroneous deprivation of an alleged SVP’s liberty interest has occurred.
(Vasquez, at p. 81.) The right to a trial is not a mere formality. “It may well
be there was strong evidence in the People’s favor, but it was the
government’s burden to prove [Butler] was an SVP and [Butler] had a right
to present evidence showing he did not pose a risk to the public.” (Vasquez,
at pp. 63–64.) As we recently confirmed in Couthren, supra, 41 Cal.App.5th
1001, a probable cause finding is not a determination of the merits of the
petition and thus is no substitute for an SVP trial. (Id. at p. 1009.) Indeed,
in finding probable cause, the trial court need only determine “ ‘whether a
reasonable person could entertain a strong suspicion that the petitioner has
satisfied all the elements required for a civil commitment as an SVP.’ ”
(Ibid.) Thus, while a probable cause determination may justify some level of
postdeprivation detention, the procedures undergirding this requirement
cannot substitute for a finding, beyond a reasonable doubt, that the statutory
58
elements under the SVPA have been met. Under the circumstances of this
case, the trial court did not err in concluding under Mathews that Butler’s
due process rights had been violated.
In the end, the responsibility falls on the petitioner to bring an SVP
case to resolution at a meaningful time and in a meaningful manner, and on
the court to ensure that the matter proceeds efficiently and effectively, even
where the alleged SVP might prefer delay. In the absence of any showing of
diligent prosecution or effective case management in these proceedings, it
was simply not a valid exercise of governmental power to detain Butler for
more than 12 years without a merits trial establishing the legitimacy of that
detention. On this record, we see no basis under either Mathews or Barker
for disturbing the trial court’s finding of a due process violation.
IV. DISPOSITION
The judgment is affirmed. Our previously granted stay shall dissolve
upon issuance of the remittitur in this matter.
59
_________________________
Sanchez, J.
WE CONCUR:
_________________________
Humes, P. J.
_________________________
Banke, J.
A159247 In re Butler/A159122 O’Malley v. Superior Court (Butler)
60
Trial Court: Alameda County Superior Court
Trial Judge: Hon. Morris Jacobson
Counsel:
Nancy E. O’Malley, District Attorney, Armando Pastron, Jr., Deputy
District Attorney, for Petitioner the People.
Rudy Kraft, under appointment by the Court of Appeal, for Respondent
Terrance Butler
A159247 In re Butler/A159122 O’Malley v. Superior Court (Butler)
61