People v. Tran

Filed 3/2/21; Certified for publication 3/23/21 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B297845

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM013245)
v.

SON TRAN,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of
Los Angeles County, Cynthia L. Ulfig, Judge. Affirmed.

Rudy Kraft, under appointment by the Court of Appeal, for
Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Assistant
Attorney General, Paul M. Roadarmel, Jr., and John Yang,
Deputy Attorneys General, for Plaintiff and Respondent.
______________________________
 In 2008, the Los Angeles County District Attorney’s Office
filed a petition to civilly commit defendant and appellant Son
Tran under the Sexually Violent Predators Act (SVPA). (Welf. &
Inst. Code, § 6600 et seq.)1 More than four years later, in 2012,
the trial court found probable cause that defendant was likely to
engage in sexually violent predatory criminal behavior upon
release. Nearly four years after that, in 2016, the petition was
tried to a jury. The jury deadlocked, and a mistrial was declared.
Two and one-half years later, in 2019, a bench retrial
commenced. Finding that defendant qualified as a sexually
violent predator (SVP), the trial court committed him to a state
hospital for treatment and indeterminate confinement.
On appeal, defendant does not challenge the sufficiency of
the evidence supporting his civil commitment. Rather, he
contends that the 11-year span between the filing of the petition
and the retrial violated his constitutional right to due process.
We affirm.
BACKGROUND2
I. Criminal History
In 1981, defendant was convicted of two counts of lewd or
lascivious acts involving a child under the age of 14. (Pen. Code,
§ 288, subd. (a).)

1 All further statutory references are to the Welfare and
Institutions Code unless otherwise indicated.
2 Our ability to summarize what occurred below was greatly
limited by the appellate record. Many documents, including
court minute orders, are missing.

2
 In 1985, he was convicted of kidnapping for child
molestation (Pen. Code, § 207, subd. (b)) and child molestation
with a prior (former Pen. Code, § 647a).
In 1986, he was convicted of forcible child molestation (Pen.
Code, § 288, subd. (b)), assault with a deadly weapon (Pen. Code,
§ 245, subd. (a)), and false imprisonment (Pen. Code, § 236).
II. SVP Petition; Waiver of Time for Probable Cause Hearing
The petition to commit defendant as an SVP was filed on
May 15, 2008 (SVP petition).
On June 4, 2008, at the first hearing following the filing of
the SVP petition, the trial court appointed Deputy Public
Defender Karen King (King) to represent defendant. Pursuant to
section 6601.5, the trial court reviewed the petition and found
that it was facially sufficient. It informed defendant that he was
entitled to a probable cause hearing within 10 days. King stated
that she had discussed waiving that time requirement with
defendant. With defendant’s agreement, the probable cause
hearing was set for July 16, 2008.
III. Defendant’s First Motions to Strike Psychologist Evaluations;
Continuances of Probable Cause Hearing
On July 16, 2008, King indicated that she wanted to have a
motion to strike a psychologist’s report heard simultaneously
with the probable cause hearing. The matter was continued to
September 2008.
There were at least two hearings in the fall of 2008. Then
all we know from the limited appellate record provided is that
(1) in January 2009, defendant filed two motions to strike
psychologist evaluations, which were denied; (2) in April 2009,
the probable cause hearing was continued, with defendant’s
consent, to June 2009; (3) in January 2010, on defendant’s

3
motion, the matter was continued to February 2010; and (4) in
March 2010, the matter was continued again to May 2010.
IV. Defendant’s Motion for New Evaluations
In April 2010, defendant filed a motion, pursuant to In re
Ronje (2009) 179 Cal.App.4th 509 (Ronje), disapproved of in part
by Reilly v. Superior Court (2013) 57 Cal.4th 641 (Reilly),3 that he
was entitled to new evaluations conducted under a valid protocol,
to be followed by a probable cause hearing based on those new
evaluations. With the parties’ agreement, the hearing on the
motion was continued, first, from May 2010 to June 2010, and
then to July 2010.
On July 22, 2010, the trial court granted defendant’s
motion for new evaluations but denied his request for new
evaluators. Defendant agreed to waive time and to have the
probable cause hearing setting take place in October 2010.
V. Defendant’s New Counsel; Defense Requests for Continuances
Deputy Public Defender Tom Tibor (Tibor) appeared for the
first time as defendant’s attorney on October 5, 2010.4 Tibor had

3 Ronje, supra, 179 Cal.App.4th at p. 513, concluded that the
assessment protocol used to evaluate the subjects of SVP
commitment petitions was an invalid underground regulation.
The appropriate remedy was to order new evaluations using a
valid protocol and to conduct a new probable cause hearing based
on the new evaluations. (Id. at p. 514.) The California Supreme
Court later held “that relief arising from use of an invalid
protocol in an SVP evaluation should depend on a showing that
the error was material” and disapproved of Ronje to the extent it
“omitted the materiality requirement[.]” (Reilly, supra, 57
Cal.4th at p. 655.)
4 We do not know why King was no longer representing
defendant.

4
interviewed defendant the previous day and was informed that
neither evaluator had seen defendant yet. The matter was
continued to January 2011.
Upon defense motions, the trial court granted additional
continuances from January 2011 to April 2011 (for unknown
reasons), from April 2011 to June 2011 (for time to obtain
updated reports), and from June 2011 to July 2011 (because an
evaluator had not completed her report). In July 2011, the trial
court set the probable cause hearing for March 26, 27, and 28,
2012.
VI. Defense Counsel’s Health Problems; Defendant Objects to a
Continuance
On March 26, 2012, Tibor informed the trial court that he
had medical problems that prevented him from proceeding with
the probable cause hearing at that time. Defendant told the trial
court that he did not “want to wait” and wanted the probable
cause hearing to occur that day. After all, Tibor’s medical issues
were not his fault.
The trial court suggested that someone else in the public
defender’s office might be able to represent defendant. The trial
court stated that it was “happy to do whatever” defendant and his
attorney thought was in defendant’s “best interest.” It then
suggested that the hearing be continued for a short time until
Tibor was medically cleared to proceed, telling defendant that
this option was “probably in [his] best interest” because of Tibor’s
familiarity with the case file.
Defendant reiterated that he wanted to have his probable
cause hearing on that day and did not want to waive time. He
complained that he had been in the county jail for three years six

5
months. Tibor stated that no one else in his office was prepared
to conduct the hearing on that day.
After further discussion, the trial court set another hearing
for April 25, 2012, and reserved the week of July 16, 2012, for the
probable cause hearing.5
VII. Probable Cause Hearing
In August 2012, at a status conference for the probable
cause hearing set for September 25 and 27 and October 10, 2012,
Tibor informed the trial court that he “had trouble reaching [his]
expert[,]” who had not yet interviewed defendant. The People
had already subpoenaed its two witnesses for the probable cause
hearing.
At the next status conference, on September 18, 2012, it
was confirmed that the probable cause hearing would be held on
September 25 and October 4 and 12, 2012. Tibor explained that
defendant “seem[ed] to be somewhat upset . . . with the fact that
[September] 27[] was moved to October 4.” Tibor stated that he
tried to explain to defendant that the delay was to accommodate
witnesses and was “a standard practice.”
The probable cause hearing proceeded as scheduled on
September 25 and October 4 and 12, 2012. At the conclusion of
the hearing, the trial court found probable cause, pursuant to
section 6602, that defendant was likely to engage in sexually
violent predatory criminal behavior upon release. It ordered
defendant to be transported to Coalinga State Hospital
(Coalinga).
Defendant stated that he wanted to have his trial in 60
days. The trial court was ready to send defendant out for trial

5 We do not know what occurred on April 25, 2012, or during
the week of July 16, 2012.

6
and “assume[d] that the district attorney would be ready for
trial.” Tibor informed the trial court that the defense would not
be ready for trial within 60 days.
The trial court requested that Tibor have a discussion with
defendant. It noted that defendant “seem[ed] pretty clear that he
would like his trial to be held sooner rather than later.” It was
“ready, willing, and able to do that as soon as [Tibor was] able to
announce ready or [his] successor [was] able to announce ready
for trial.” A pretrial conference was set for December 2012.
Defendant voiced his objection.
VIII. Defendant’s New Counsel; Additional Defense Requests for
Continuances; Defendant’s Objections
December 12, 2012, hearing
On December 12, 2012, Tibor advised the trial court that he
was going to retire by the end of the year and that the public
defender’s office “hasn’t even contemplated yet who [was] going to
replace [him].”
February 7, 2013, hearing
Defendant’s new attorney, Deputy Public Defender Steve
McManus (McManus), appeared on February 7, 2013. McManus
explained that he had “not had a chance to read all of the
materials” regarding defendant’s case and wanted to come back
for the pretrial conference in approximately 60 days. Defendant
told the trial court that he wanted his trial within 10 days, but
McManus indicated that he was not ready. The next hearing was
set for April 2013.6

6 On April 10, 2013, the matter was continued to May 15,
2013.

7
 May 15, 2013, hearing
Defendant, who had recently been transported to Coalinga,
was not in court on May 15, 2013. McManus suggested “a six-
month date” to allow defendant time “to settle in and get some
things done” at Coalinga. The trial court stated that a three-
month date was necessary given that it was “a relatively old
case.” The trial court acknowledged that McManus was new to
the case. “However,” it explained, “the cases need to be moving
toward trial more quickly than they have been. So simply
because somebody is a recent arrival at Coalinga is not
necessarily a good reason for putting off a trial date.” The next
hearing was set for August 2013.
August 6, 2013, hearing
On August 6, 2013,7 the trial court asked how McManus
would like to proceed. McManus responded that, because
defendant had only been at Coalinga for about four months, he
was “still settling in[.]” McManus wanted to put the case over for
three months. He acknowledged that defendant was “anxious to
go to trial,” but stated that there were other issues involved. The
trial court scheduled the next hearing for November 2013 and
commented: “I would like to get this case moving as I know
[defendant] would as well.”
November 5, 2013, hearing
Defendant did not appear on November 5, 2013. McManus
stated that there were some possible grounds for filing a motion

7 At some point prior to August 6, 2013, defendant
apparently filed, in propria persona, a petition for a writ, arguing
that the trial court did not have jurisdiction over him because he
was a citizen of another country. That writ was denied by a
different judge in November 2013.

8
and planned to visit defendant later that month. McManus
requested that the next pretrial date be set for early February
2014. When asked about his plans for the case, McManus
referred to his difficulty communicating with defendant and
stated that he was not sure when he would be ready for trial.
The next hearing was scheduled for January 2014.
January 15, 2014 hearing
Defendant did not appear on January 15, 2014. McManus
reported that he had visited defendant but there were
communication problems. McManus questioned defendant’s
“competency, his ability to understand the proceedings and
understand the nature of the charges against him.” McManus
also wanted additional time to research whether the SVPA
applied to an undocumented alien with a current deportation
order, as well as a competency issue.
The trial court acknowledged that McManus was
“relatively new on this file” and wanted him “to have the
opportunity to explore” the issues he had referenced. It
continued the matter to March 2014 but was clear that it wanted
“something actually happening” in the case in the interim.
March 5, 2014, hearing
On March 5, 2014, McManus reiterated his difficulties
communicating with defendant and requested more time to
research legal issues to possibly raise by motion. The trial court
noted that McManus had been on the case for over a year. The
prosecutor expressed his concern that defendant had made
multiple demands to speed up the proceedings.
Defendant stated that he wanted his trial within 30 days.
McManus indicated his belief that defendant did not understand
what a trial was and could not be of assistance in preparing for

9
one. McManus argued that this was not like the Litmon8 case
where both the client and the attorney demanded a speedy trial.
He stated that some of the issues that defendant had raised,
inartfully, in his writ had merit but were unique questions that
required substantial research. He believed that good cause
existed to continue the matter over defendant’s objection and that
he was not asking for a speedy trial for defendant.
Defendant asked when he would go to trial. The trial court
responded, “As soon as your attorney tells me he’s ready.”
Defendant told the trial court that he was “prepared to go
forward with the trial” regardless of whether his attorney was
ready. The trial court thought that defendant needed to have a
conversation with McManus. Defendant claimed that the doctors
had said he was not mentally ill and could leave the hospital.
McManus argued that this demonstrated that defendant did not
understand what was happening and his lack of competency.
The next hearing was scheduled for April 2014. The trial
court told the prosecutor to order new evaluations so that the
trial could go ahead as soon as possible.
April 23, 2014, hearing
On April 23, 2014, the prosecutor reported that the updated
evaluations would be completed by the first week in June 2014.
He and McManus wanted to return shortly thereafter for a
hearing, and asked to schedule it for June 2014. The trial court
agreed.
June 11, 2014, hearing
As a result of a calendaring error by McManus, defendant
was not present at the hearing on June 11, 2014. McManus
reported that they had just received the updated evaluations. He

8 People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon).

10
needed more time to look at the records and talk to defendant.
He also referred to “some additional defense work going on in this
case.” The matter was continued to August 2014.
August 5, 2014, hearing
On August 5, 2014, McManus stated that he was still
working on getting certain records and asked for a short
continuance. The matter was continued to September 2014.
September 18, 2014, hearing
Defendant did not appear at the hearing on September 18,
2014. McManus reported that he had “run up against some
roadblocks” in getting records about recent incidents discussed in
the evaluators’ reports. He needed to read them, discuss them
with defendant, and decide whether to hire an additional expert.
The next hearing was set for November 5, 2014.9
November 20, 2014, hearing
Defendant was not present on November 20, 2014, because
of a misunderstanding between him and McManus. McManus
stated that he was going to see defendant in December 2014 and
that there was still an extensive amount of work to be done on
the case. He asked for a continuance at least until January 2015.
The prosecutor stated that there had been “about 16 months of
absolutely nothing happening in court other than” continuances.
McManus attributed these difficulties to defendant’s
communication issues. The next hearing was scheduled for
January 2015.
January 22, 2015, hearing
On January 22, 2015, the prosecutor commented that
nothing other than continuances had occurred in the 21 months
since McManus had been assigned to the case. McManus stated

9 There is no record of what occurred on November 5, 2014.

11
that the case was “going to take some time to prepare” and that
defendant had “some serious learning difficulties.” Because
McManus had other high priority cases, he requested at least a
three-month continuance. The trial court set the next hearing for
April 2015.
April 13, 2015, hearing
On April 13, 2015, McManus stated that defendant wanted
to proceed to trial but that he was not ready. McManus had at
least two other cases that were scheduled for trial soon; his
“caseload [had] doubled approximately six months” earlier and he
had not had the opportunity to do some of the work he needed to
in defendant’s case. He requested that the matter be continued
for about three months and then to select a trial date one to three
months later.
The prosecutor was “happy to move towards trial” and
would order new “evaluations whenever the [trial] court deem[ed]
it efficient[.]”
Because defendant wanted to move forward, the trial court
told McManus to make this case high priority and told the People
to order updated evaluations.
Defendant stated that he wanted to have his trial start the
next month. The trial court responded that while it “would
certainly be willing to accommodate that[,]” the “problem” was
that defendant’s attorney had upcoming trials and that the
People would also need time to get ready. It suggested that the
case might go to trial in late summer or early fall. Defendant
said that he was ready and that it was not his fault if his
attorney was not. The trial court responded, “I understand that,
but I assume you want your lawyer to be prepared when he goes
to trial to try to get you released, and I want to make sure he has

12
got the time to prepare as well. We have got to give him that
time.”
The matter was continued to July 2015.
July 28, 2015, hearing
Defendant was not present on July 28, 2015. McManus
represented that defendant said he was “okay” with a November
trial date. The prosecutor reported that one of the experts on the
case had retired, so they had to get another evaluation. Trial was
set for November 2015.
September 10, 2015, hearing
By the September 10, 2015, hearing, the updated
evaluations had been received and the People had subpoenaed
experts for the upcoming trial.
McManus reported that during a recent evaluation
defendant had demanded to be interviewed in English without an
interpreter and had refused consent to be recorded. As a result,
McManus did not know what was actually said during the
interview. The parties and the trial court agreed that the
evaluation should be redone.
The prosecutor commented that he and McManus had
“both been trying very hard . . . to keep the trial date” and that
they had “been in constant communication with each other.” The
trial court agreed. The next hearing was set for October 2015.
October 15, 2015, hearing
On October 15, 2015, McManus explained that two of the
experts still had to interview defendant and, therefore, the
parties would not be ready for trial in November 2015. McManus
thought that, due to defendant’s “educational and language
deficits[,] he was being influenced by other people . . . at the
hospital” when he was making demands to proceed to trial.

13
Based on his trial calendar, McManus did not think they would
be able to set the trial until April or May 2016.
Defendant stated that he wanted his trial to start the next
month. The People did not object to vacating the trial date. The
next hearing was scheduled for November 2015.
November 24, 2015, hearing
On November 24, 2015, McManus reported that the
updated report from one of the evaluators had been received but
not the transcript of the interview. Based on his discussions with
the prosecutor, the earliest McManus believed that they could
hold the trial was June or July 2016. The trial court scheduled a
status conference for February 2016, and for the trial to begin on
July 25, 2016.
February 11, 2016, hearing
Defendant was initially present by video at the status
conference on February 11, 2016, but left early on. McManus
requested a continuance of the trial because he had two other
trials scheduled for May and June. McManus stated, “It will
simply be impossible for me to try and prepare three trials three
months in a row because of the amount of work involved in it and
especially in [defendant’s] case.” McManus reported that
defendant had accepted this. The People were amenable to a
short continuance.
The trial court did not change the trial date but scheduled
another hearing for two weeks later so that defendant could
participate and the availability of the experts could be
ascertained.
February 25, 2016, hearing
Defendant was not present on February 25, 2016. The trial
was reset to August 15, 2016.

14
 July 19, 2016, hearing
On July 19, 2016, McManus told the trial court that,
because defendant was not feeling well and was in pain,
defendant wanted the trial to be postponed. Defendant confirmed
that he was not feeling well. The People objected to any
continuance. The trial court denied the defense motion to
continue and ordered the medical director at Coalinga to file a
report on defendant’s medical condition and treatment.
IX. First Trial
The trial began on August 15, 2016.
On August 31, 2016, the jury was “hopelessly deadlocked,”
and the trial court declared a mistrial. It set another hearing for
December 2016, and ordered defendant returned to Coalinga.
X. Proceedings from First Trial to Retirement of Defense Counsel
Several hearings occurred between December 2016 and
March 2018; defendant was not present at any of them.
December 8, 2016, hearing
According to the prosecutor on December 8, 2016,
McManus had “indicated that [defendant], after the experience,
[was] not desirous of rushing pretrial[.]” Based on McManus’s
request, the trial court set the next hearing for March 2017.
March 7, 2017, hearing
The transcripts from the first trial had not been received as
of the March 7, 2017, hearing. McManus stated that, even if the
transcripts had been ready, the case was not likely to be tried
that year. He asked for a three or four month continuance. The
trial court scheduled the next hearing for June 2017.
June 20, 2017, hearing
Another deputy public defender appeared for McManus at
the June 20, 2017, hearing. The transcripts of the first trial had

15
still not been prepared. The trial court stated that McManus
needed “to proactively move” the case forward and set the next
hearing for July 2017.
July 18, 2017, hearing
Neither defendant nor McManus was present at the
July 18, 2017, hearing. Another deputy public defender appeared
on McManus’s behalf. The trial court stated: “This is really
problematic. . . . [McManus] needs to be on his cases. I cannot
intelligently address requests to put cases over if I don’t have
counsel here. This case has been dragging out. Since December,
he’s been trying to get transcripts. And I have no idea what the
progress of that is.” The matter was continued.
August 17, 2017, hearing
The trial transcripts were not yet ready as of the
August 17, 2017, hearing. McManus stated that defendant was
“not requesting to go [to] trial.” The next hearing was set for
October 2017.
October 26, 2017, hearing
The trial transcripts were still not ready by October 26,
2017. By stipulation, the matter was continued to February
2018.
February 6, 2018, hearing
At the February 6, 2018, hearing, it was reported that the
trial transcripts were not ready because the court reporter was
undergoing medical treatment. With the parties’ agreement, the
hearing was continued.
March 19, 2018, hearing
The trial court referenced McManus’s upcoming retirement
at the March 19, 2018, hearing. McManus confirmed that he
would not handle the retrial and did not know who was going to

16
replace him. The trial transcripts had not been received. The
next hearing was set for the following month.
April 30, 2018, hearing
By April 30, 2018, McManus had retired. Another deputy
public defender appeared for defendant, but he explained that the
case would need to be reassigned to someone else in his office.
The trial court expressed concern that the reassignment had not
yet been made. Defendant repeatedly stated that he wanted his
trial to take place “[a]s soon as possible.” The matter was
continued to June 2018.
XI. Defendant’s New Counsel; Trial Continuances
June 18, 2018, hearing
On June 18, 2018, defendant’s new attorney, Deputy Public
Defender Christina Behle (Behle), appeared for the first time.
Behle had just been assigned the case the previous week. The
trial transcripts were still not complete.
The trial court acknowledged that, during his last
appearance, defendant “was very unhappy and wanted his trial
as soon as possible.” It told defendant: “[Y]ou have to decide
whether you want an unprepared lawyer to take your case to trial
or you want your lawyer to be properly prepared. If she’s
unprepared, there is no argument on appeal that your lawyer
was ineffective, if you push her to trial before you think she’s
ready.”
Defendant stated that he did not want to waive time and
wanted his trial to take place the next month. The trial court
explained that it had to give defense counsel time to prepare but
that counsel was “now on notice that she has to be prepared
sooner rather than later.” When defendant repeated that he
wanted his trial as soon as possible, the trial court stated, “I have

17
to give your lawyer some time to prepare. You are not her only
client. If you would like to privately hire a lawyer and pay for the
lawyer, I’m sure the lawyer can be ready in two weeks. The
lawyer being provided to you is at public expense. You have to
accept the fact she has other clients besides you.”
The next hearing was set for July 2018.
July 23, 2018, hearing
On July 23, 2018, Behle reported that she had received the
trial transcripts the previous week and had contacted experts
from that trial. The trial court stated, “I think we want to have
this trial sooner rather than later because [defendant] wants it
without [Behle] even being prepared.” Behle explained that she
had a few other cases that she needed to prepare for trial and
that she was “working as hard as” she could “to get prepared.”
She also had “to take into consideration the expert’s availability
and all of the prior evaluations.”
The trial court stated that it was “not inclined to force
[Behle] to trial until” she was prepared. It set another hearing
for September 2018, and assumed that defendant objected to any
further continuances and wanted a speedy trial.
September 24, 2018, hearing
On September 24, 2018, Behle reported that she met with
defendant at Coalinga the month before. She was doing
“everything” she could to be ready for a January trial. According
to Behle, one of the People’s evaluators had determined that
defendant did not qualify as an SVP. They also needed to replace
the other evaluator who was no longer doing SVP evaluations,
causing some uncertainty. Because the defense expert was not
available in January, Behle suggested that the trial be scheduled
for February 6, 2019. Defendant stated that he wanted his trial

18
to start on that date. The trial court responded, “In light of
Vasquez,[10] I will probably accede to that. He wants his trial. He
is getting his trial.”
November 26, 2018, hearing
On November 26, 2018, the trial court stated that
defendant had “repeatedly demanded a trial and he’s going to get
that trial.” The trial was still set to begin on February 6, 2019.
January 7, 2019, hearing
On January 7, 2019, the prosecutor reported that she had
prepared an order for the trial court to sign so that she could
subpoena documents from Coalinga. She expected the defense to
file a motion based on those documents and, therefore, was
anticipating trial on March 13, 2019. The prosecutor believed
good cause existed for a continuance because they did not yet
have the documents that would be used during trial. They could
not have sought the documents earlier because they did not know
what the evaluators were relying on until they had the
evaluations. Trial was set for March 13, 2019.
XII. Retrial and Appeal
A bench retrial commenced on March 15, 2019. On March
29, 2019, the trial court found that defendant was an SVP and
that he needed to be committed indefinitely to a state hospital.
This timely appeal ensued.

10 People v. Superior Court (Vasquez) (2018) 27 Cal.App.5th
36 (Vasquez). In Vasquez, the Court of Appeal concluded that a
17-year delay between the filing of an SVP petition and trial
violated the due process right to a timely trial. (Id. at p. 41.)

19
 DISCUSSION
I. No Forfeiture
The People argue that defendant forfeited his due process
challenge by failing to file a motion to dismiss in the trial court
based on pretrial delay. We disagree. Provided that a defendant
objects to the delay—as defendant did here on numerous
occasions—a federal constitutional claim regarding the
deprivation of a timely trial is preserved even if no motion to
dismiss is filed. (People v. Bradley (2020) 51 Cal.App.5th 32, 38–
39 (Bradley).)11
II. No Due Process Violation
A. Standard of review
We review defendant’s due process claim de novo. (People
v. Aguilera (2020) 50 Cal.App.5th 894, 908 [applying the de novo
standard of review to “a mixed question of law and fact that is
predominantly legal”].)
B. Relevant law
1. Overview of SVP commitment proceedings
An SVP is “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.” (§ 6600,
subd. (a)(1).) Under the SVPA, the state can civilly commit an
individual found to be an SVP indefinitely for confinement and
appropriate treatment in a state hospital. (§ 6604.)

11 Our conclusion renders moot defendant’s alternative
argument that, if we were to find forfeiture, his trial counsel’s
failure to file a motion to dismiss constituted ineffective
assistance of counsel.

20
 An SVP petition must be supported by at least two
evaluations by mental health experts appointed by the Director of
State Hospitals opining that the person meets the commitment
criteria. (§ 6601, subds. (d)-(f); Reilly, supra, 57 Cal.4th at
p. 647.) After the petition is filed, the trial court must “review
the petition and determine whether the petition states or
contains sufficient facts that, if true, would constitute 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.” (§ 6601.5.) If the court finds that the petition
is facially sufficient, it must hold a probable cause hearing within
10 days.12 (§ 6601.5.) The probable cause hearing may be
continued upon a showing of good cause. (§ 6602, subd. (b).) If
probable cause is found, the subject of the petition is entitled to a
trial. (§§ 6603, subd. (a), 6604.)
2. Due process right to a timely trial
“The SVPA does not establish a deadline by which a trial
on an SVP petition must be held after the trial court finds
probable cause to believe the inmate is an SVP.” (Vasquez,
supra, 27 Cal.App.5th at p. 57.) Further, because it is a civil
proceeding—not a criminal prosecution—the Sixth Amendment
right to a speedy trial does not apply. (Ibid.) Nevertheless,
“[b]ecause civil commitment involves a significant deprivation of
liberty, a defendant in an SVP proceeding is entitled to due

12 Here, at the first hearing following the filing of the SVP
petition, defendant waived his right to have the probable cause
hearing take place within 10 days. Therefore, a violation of the
particular time requirement set forth in section 6601.5 is not
specifically at issue in this appeal.

21
process protections.” (People v. Otto (2001) 26 Cal.4th 200, 209
(Otto).) This includes the due process right to a timely trial.13 (In
re Butler (2020) 55 Cal.App.5th 614, 638 (Butler).)
3. Tests applied to alleged due process violations
“Neither the California Supreme Court nor the United
States Supreme Court has decided what test is to be applied in
deciding a due process/timely trial claim in an SVP proceeding.”
(People v. Landau (2013) 214 Cal.App.4th 1, 33 (Landau).)
California Courts of Appeal have consistently applied the tests
articulated in Barker v. Wingo (1972) 407 U.S. 514 (Barker) and
Mathews v. Eldridge (1976) 424 U.S. 319 (Mathews). (E.g.
Bradley, supra, 51 Cal.App.5th at pp. 40–46; Butler, supra,
55 Cal.App.5th at pp. 648–664; People v. DeCasas (2020)
54 Cal.App.5th 785, 806–813 (DeCasas); Vasquez, supra,
27 Cal.App.5th at pp. 60–82.) We do the same.
i. Barker test
Barker, supra, 407 U.S. at 514, set forth a nonexhaustive
list of four factors for courts to consider when determining
whether the right to a speedy trial has been violated: (1) the
length of the delay; (2) who is to blame for the delay; (3) the
defendant’s assertion of the right; and (4) prejudice. (Id. at
p. 530; People v. Williams (2013) 58 Cal.4th 197, 233 (Williams).)
None of these factors is “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

13 Although the Sixth Amendment right to a speedy trial and
the Fourteenth Amendment due process right to a timely trial
are distinct, for the purpose of our analysis they are sufficiently
analogous to be treated interchangeably. (See Vasquez, supra,
27 Cal.App.5th at p. 60, fn. 16.)

22
other circumstances as may be relevant. . . . [T]hese factors have
no talismanic qualities; courts must still engage in a difficult and
sensitive balancing process.” (Barker, supra, at p. 533.)
ii. Mathews test
Mathews, supra, 424 U.S. 319, articulated a more general
balancing test of three factors “for resolving what process is
constitutionally due” (Butler, supra, 55 Cal.App.5th at p. 639):
(1) the private interest affected by the government action; (2) “the
risk of an erroneous deprivation of such interest through the
procedures used, and the probable value, if any, of additional or
substitute procedural safeguards”; and (3) the government’s
interest. (Mathews, supra, at p. 335.) Like the Barker test, the
Mathews test “involve[s] careful balancing of the competing
interests . . . .” (Litmon, supra, 162 Cal.App.4th at p. 399.)
C. Analysis of the Barker factors
We address the Barker factors in the following order: the
length of the delay, who is to blame for the delay, defendant’s
assertion of the right, and prejudice. Thereafter, we balance
these factors to determine whether defendant was deprived of
due process.
1. Length of the delay
Nearly 11 years elapsed between the filing of the SVP
petition and the commencement of defendant’s second trial.
During that period, it took more than four years to hold a
probable cause hearing and more than eight years to hold the
first trial. Though not as long as the delays in some SVP cases,
these substantial delays weigh in defendant’s favor. (See Butler,
supra, 55 Cal.App.5th at p. 648 [“it would be difficult to argue
that the [13-year] delay . . . was anything other than
extraordinary”]; DeCasas, supra, 54 Cal.App.5th at p. 806 [13-

23
year delay was “extraordinary”]; Vasquez, supra, 27 Cal.App.5th
at p. 61 [17-year delay was “‘extraordinary’”]; Landau, supra, 214
Cal.App.4th at p. 37 [considered in its entirety, over five-year
delay was “extreme”].)
2. Blame for the delay
The protracted delay between the filing of the SVP petition
in May 2008 and the probable cause hearing in October 2012 was
mostly attributable to multiple defense motions to strike
psychologist evaluations; the need for updated evaluations; the
change of defense counsel from King to Tibor; and Tibor’s medical
problems.
There were several reasons for the span between the
finding of probable cause and the start of the first trial in August
2016. Tibor retired, and McManus was assigned as defendant’s
new counsel. McManus had difficulties communicating with
defendant, as well as a heavy case load and trial schedule. The
defense made requests for additional time to research the
viability of various motions. Finally, updated evaluations were
required, including to replace a retired evaluator and to redo an
evaluation after defendant refused the assistance of an
interpreter and to be recorded.
Finally, the retrial was delayed until March 2019 primarily
because of the extended time it took to obtain the first trial
transcripts, ostensibly due to the court reporter’s medical
problems; McManus’s retirement and the assignment of new
counsel; and the replacement of an evaluator.
To determine where the blame lies for these delays, we
consider in turn the role of the defense, the prosecution, and the
trial court.

24
 i. The defense
As a general rule, “delays caused by defense counsel are
properly attributed to the defendant, even where counsel is
assigned.” (Vermont v. Brillon (2009) 556 U.S. 81, 94 (Brillon).)
This rule, however, “is not absolute. Delay resulting from a
systemic ‘breakdown in the public defender system,’ [citation],
could be charged to the State.” (Ibid.) The United States
Supreme Court “has not had occasion to explain what constitutes
a breakdown in the public defender system” (Williams, supra,
58 Cal.4th at p. 245), but it has explained that “[a]n assigned
counsel’s failure ‘to move the case forward’ does not warrant
attribution of delay to the State.”14 (Brillon, supra, at p. 92.)
Here, although the reasons for the delays varied, we can
find no continuance in the record that was not the result of
defense counsel’s agreement or, more often, explicit request.
Defendant does not dispute this. Rather, he argues that he
should not be held responsible for the delays caused by his
attorneys because they were the result of a systemic breakdown
in the public defender system.
Defendant identifies specific acts by his appointed trial
counsel that he contends “violated his due process rights and
together, if not separately, manifest a systemic breakdown.”

14 Attributing to the state an assigned counsel’s “‘inability or
unwillingness . . . to move the case forward[]’” (Brillon, supra,
556 U.S. at p. 92) “could encourage appointed counsel to delay
proceedings by seeking unreasonable continuances, hoping
thereby to obtain a dismissal of the indictment on speedy-trial
grounds. Trial courts might well respond by viewing continuance
requests made by appointed counsel with skepticism, concerned
that even an apparently genuine need for more time is in reality
a delay tactic.” (Id. at p. 93.)

25
These include: failing to take steps to ensure an earlier probable
cause hearing; not timely reassigning the case when Tibor’s
retirement was imminent; requesting continuances to research
and prepare motions that were never filed; and not timely
obtaining the reporter’s transcripts of the first trial.
Assuming, arguendo, the accuracy of defendant’s recitation
of his counsel’s failings,15 the fundamental problem with
defendant’s argument is that, based on the record before us, we
cannot say as a matter of law that these problems demonstrate “a
systemic ‘breakdown in the public defender system[.]’” (Brillon,
supra, 556 U.S. at p. 94.)
Butler, DeCasas, and Vasquez, upon which defendant relies
heavily, do not compel a different result. In each of those cases,
the Court of Appeal agreed with a superior court’s determination
that the due process right of a defendant in an SVP case to a
timely trial had been violated, requiring the dismissal of the
petition. (Butler, supra, 55 Cal.App.5th at p. 626; DeCasas,
supra, 54 Cal.App.5th at p. 789; Vasquez, supra, 27 Cal.App.5th
at p. 41.)
And, in both DeCasas and Vasquez, a superior court’s
specific factual finding that a systemic breakdown had occurred
in the public defender’s office was reviewed under the deferential

15 Although we need not evaluate the merits of each of
defendant’s contentions, we do question some of the inferences
made by defendant. For instance, that defense counsel
ultimately did not file the motions that it requested time to
research and prepare does not necessarily mean that the requests
were unreasonable or, worse, pretextual. We also find some of
defendant’s examples speculative.

26
abuse of discretion standard.16 (DeCasas, supra, 54 Cal.App.5th
at pp. 801, 810; Vasquez, supra, 27 Cal.App.5th at pp. 54–55, 71–
74; see also People v. Peterson (2020) 10 Cal.5th 409, 434
[contrasting de novo review with “the deferential substantial
evidence standard”].)
In all three cases, because a motion to dismiss or a petition
for a writ of habeas corpus was filed and related evidentiary
hearings were held, the appellate record regarding the exact
causes of the delays was far more developed than we have here.
(Butler, supra, 55 Cal.App.5th at pp. 634–637; DeCasas, supra,
54 Cal.App.5th at pp. 800–801; Vasquez, supra, 27 Cal.App.5th at
pp. 52–54, 73.)
This case is more like Williams, supra, 58 Cal.4th 197,
where the California Supreme Court considered whether a seven-
year delay between a criminal defendant’s arrest and the start of
his trial violated his right to a speedy trial. (Id. at pp. 215–252.)
“[T]he record indicate[d] that several of [the] defendant’s
attorneys appeared to make little or no progress in preparing his
case for trial.” (Id. at p. 248.)
The Supreme Court explained that its “specific focus . . .
must be on whether a systemic breakdown ha[d] occurred, not on
whether any particular attorney or attorneys performed
deficiently.” (Williams, supra, 58 Cal.4th at p. 248.) While it was
“possible that the ‘revolving door’ of appointed counsel” was

16 In Butler, neither the superior court nor the Court of
Appeal resolved whether a systemic breakdown had occurred in
the public defender’s office. (Butler, supra, 55 Cal.App.5th at
p. 658.) Nevertheless, the Court of Appeal concluded that
“substantial evidence support[ed] the [superior] court’s
determination that the bulk of the delay may be attributed to the
actions (and inactions) by the state.” (Ibid.)

27
“indicative of ‘institutional problems’” at the public defender’s
office, “the record on appeal contain[ed] no facts that
affirmatively support[ed] this conclusion. Because [the]
defendant did not file a motion to dismiss on speedy trial grounds
in the trial court, the underlying cause of the delay . . . was never
litigated, the various statements by [the] defendant and his
attorneys were never examined in an adversarial proceeding, and
the trial court made no findings that might inform the issue” on
appeal. (Ibid.)
“[I]n the absence of evidence identifying systemic or
institutional problems and not just problems with individual
attorneys,” the Supreme Court was “unable to conclude on direct
appeal that the delay experienced by [the] defendant resulted
from a breakdown in the public defender system.” (Williams,
supra, 58 Cal.4th at p. 249.) It was “required by Brillon[, supra,
556 U.S. 81] to charge to [the] defendant the delay . . . resulting
from defense counsel’s lack of progress.” (Williams, supra, at
p. 249.)
We, too, are bound by Brillon, as well as by Williams.
Without a more developed factual record, we cannot make a
determination whether the defense delays were justifiable, or
“whether the lack of progress was attributable to each attorney’s
own inability to properly manage or prioritize his or her caseload,
or whether the performance of individual attorneys was
indicative of unreasonable resource constraints, misallocated
resources, inadequate monitoring or supervision, or other
systemic problems.” (Williams, supra, 58 Cal.4th at p. 249.)
Accordingly, we must attribute all delays caused by defense
counsel to defendant.

28
 ii. The prosecution
Defendant “acknowledges that the district attorneys
assigned to the case often expressed their readiness for trial and
expressed displeasure with the long delays primarily caused by
[defendant]’s attorneys.” He nevertheless faults the prosecution
with failing to make “any formal motions to relieve the public
defender or to compel the trial court to set a timely trial date.”17
Overall, the prosecution diligently prosecuted this matter
and nothing in the record suggests that it engaged in deliberate
delay tactics or acted in bad faith. Defendant does not specify
what steps the prosecution could have taken “to compel the trial
court to set a timely trial date[,]” and we need not engage in
speculation.
iii. The trial court
Defendant holds the trial court “fully responsible for
virtually all the delays in [his] case.” He points to various
examples, including “passively grant[ing] continuance after
continuance”; not setting firm trial deadlines; allowing defense
counsel to repeatedly waive time over an extended period without
requiring defendant to appear in court; and failing to encourage
the filing of a motion for another court reporter to work on the
first trial transcripts.

17 Defendant also contends that the Department of State
Hospitals failed to produce timely evaluations. Even if such
delays could properly be charged to the prosecution, the record
before us is insufficient to assess whether the delays were
justifiable. (See Jameson v. Desta (2018) 5 Cal.5th 594, 609 [“the
burden is on an appellant to demonstrate, on the basis of the
record presented to the appellate court, that the trial court
committed an error that justifies reversal of the judgment”].)

29
 We do not find reversible error in the specific examples
raised by defendant—either individually or cumulatively.
“Defense counsel’s lack of progress put the trial court in a
difficult position.” (Williams, supra, 58 Cal.4th at p. 250.) The
trial court was forced to balance defendant’s due process right to
a timely trial with his right to competent counsel. (Ibid.; see also
Townsend v. Superior Court of Los Angeles (1975) 15 Cal.3d 774,
782 [“the trial court must carefully navigate procedurally
between ‘the Scylla of delay and the Charybdis of ineffective and
inadequate representation[]’”].) This task was further
complicated by defendant’s apparent failure to appreciate the
potential negative effects of forcing his counsel to proceed
unprepared to trial. “In granting continuances at the request of
defense counsel, the trial court understandably sought to ensure
adequate preparation and a fair trial” (Williams, supra, at p. 251)
for defendant’s direct benefit. (See People v. Lomax (2010)
49 Cal.4th 530, 556 [continuances to allow defense counsel to
prepare benefit the defendant and are justified over a defendant’s
objection].)
Under these circumstances, the trial court was not directly
responsible for the delays. (See Williams, supra, 58 Cal.4th at
p. 251; Vasquez, supra, 27 Cal.App.5th at p. 81.)
3. Defendant’s assertion of his right
Defendant made numerous demands to speed up the
proceedings and objections to his counsel’s requests for
continuances. Notwithstanding several occasions where
defendant agreed to the continuances, this factor weighs in
defendant’s favor. (See Barker, supra, 407 U.S. at pp. 531–532
[“The defendant’s assertion of his speedy trial right . . . is entitled

30
to strong evidentiary weight in determining whether the
defendant is being deprived of the right”].)
4. Prejudice to defendant
We assess prejudice in view of three “interests of
defendants which the speedy trial right was designed to
protect”—namely, “(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.)
Nearly 11 years of pretrial incarceration is undoubtedly
oppressive and would do little to minimize the anxiety and
concern of the accused. (Cf. Williams, supra, 58 Cal.4th at p. 235
[“being jailed without a trial for seven years is ‘oppressive[]’”].)
Such a lengthy pretrial confinement itself constitutes some
degree of prejudice. (Vasquez, supra, 27 Cal.App.5th at p. 63;
Landau, supra, 214 Cal.App.4th at p. 37.)
We do not find, however, that “defendant suffered the ‘most
serious’ type of prejudice”—that is, “the inability to adequately
prepare his defense [citation.]” (Williams, supra, 58 Cal.4th at
p. 236.) Defendant argues that because, at one point, a state
evaluator opined that defendant was not an SVP but later
“changed his mind and testified as a rebuttal witness[,]” a total of
four evaluators testified against defendant “instead of the two
there would have been had [defendant] been brought to trial at
an earlier time.” While this may have affected the overall weight
of the evidence against defendant at trial, he does not explain—
nor can we discern—how this impeded his ability to adequately
prepare his defense.
We “recognize that excessive delay presumptively
compromises the reliability of a trial in ways that neither party

31
can prove or, for that matter, identify.” (Doggett v. United States
(1992) 505 U.S. 647, 655.) Here, however, defendant “cannot
benefit from a presumption of prejudice because the record does
not show that the state was responsible for the delay.” (Williams,
supra, 58 Cal.4th at p. 252.)
5. Balancing of factors
The length of the delay and defendant’s assertion of his
right weigh in his favor. The other factors do not. As discussed
above, the various continuances were almost entirely at the
request of the defense and, to the extent that they were granted
to allow defense counsel time to prepare or for new evaluations to
be completed, they were intended for defendant’s direct benefit.
We are not reviewing a factual finding of a systemic breakdown
of the public defender system, and we make no such finding
independently. Defendant must therefore bear responsibility for
the delays. And, because defendant has not demonstrated that
his ability to prepare his defense was adversely affected by the
delays, he has not shown that he suffered the most serious form
of prejudice.
Balancing these factors, defendant’s due process right to a
timely trial was not violated.
D. Analysis of the Mathews factors
We address the Mathews factors in the following order: the
private interest affected, the risk of erroneous deprivation of that
private interest, and the government’s interest. And, we apply a
balancing test to determine whether defendant’s due process
right was violated, as we did when evaluating the Barker factors.
1. Private interest affected
Defendant was subjected to a significant curtailment of his
liberty during his extended pretrial detention. “The right to be

32
free from involuntary confinement is fundamental and
deprivation of this right requires due process.” (Bradley, supra,
51 Cal.App.5th at p. 44.)
2. Risk of erroneous deprivation
Any risk of an erroneous deprivation was mitigated by the
procedural safeguards required by the SVPA. Specifically, the
initial SVP petition had to be supported by evaluations by mental
health experts concluding that defendant met the SVP
commitment criteria. (§ 6601, subds. (d)-(f).) Defendant received
a probable cause hearing and, throughout the life of the case, he
was reevaluated numerous times to assess whether he still met
the SVP criteria.18
3. Government’s interest
There is no question that “the state 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
[citations] . . . .” (People v. Superior Court (Ghilotti) (2002)
27 Cal.4th 888, 924; see also Otto, supra, 26 Cal.4th at p. 214
[“The express purpose of the SVPA articulates the strong
government interest in protecting the public from those who are
dangerous and mentally ill”].)

18 In his discussion of this factor, defendant does not identity
any additional or substitute procedural safeguards that could
have been employed. (See Mathews, supra, 424 U.S. at p. 335.)

33
 4. Balancing of factors
We reach the same conclusion weighing the Mathews
factors as we did with the Barker factors: Defendant’s right to
due process was not violated.
Any risk of an erroneous deprivation of defendant’s liberty
was reasonably mitigated by the procedural requirements of the
SVPA. The state’s compelling interest in protecting society from
the risk defendant posed to it is entitled to significant weight and
tips the scales in favor of our finding that defendant was provided
with all the process that he was due.
DISPOSITION
The judgment is affirmed.

_____________________, J.
ASHMANN-GERST

We concur:

________________________, P. J.
LUI

________________________, J.
CHAVEZ

34
Filed 3/23/21
CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE, B297845

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM013245)
v.
ORDER CERTIFYING
SON TRAN, OPINION FOR PUBLICATION

Defendant and Appellant.

THE COURT:

The opinion in the above-entitled matter filed on March 2,
2021, was not certified for publication in the Official Reports.

For good cause it now appears that the opinion should be
published in the Official Reports and it is so ordered.

____________________________________________________________
LUI, P. J. ASHMANN-GERST, J. CHAVEZ, J.