People v. Ballardo CA2/4

Filed 3/29/22 P. v. Ballardo CA2/4
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B290567

Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. ZM008237)
v.

VICTOR BALLARDO,

Defendant and Appellant.

APPEAL from a judgment of the Superior Court of Los
Angeles County, Marcelita V. Haynes, Judge. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal,
for Defendant and Appellant.
Rob Bonta, Attorney General, Lance E. Winters, Chief
Assistant Attorney General, Susan Sullivan Pithey, Senior
Assistant Attorney General, Steven D. Matthews and Gary
A. Lieberman, Deputy Attorneys General, for Plaintiff and
Respondent.
________________________________________________

INTRODUCTION
In February 2005, the People filed a petition to commit
appellant Victor Ballardo as a sexually violent predator
(SVP). After a March 2018 trial, the court found appellant to
be an SVP and ordered him committed for a two-year term.
On appeal, appellant does not dispute that substantial
evidence supported the court’s finding that he was an SVP.
Instead, he argues that: (a) the length of delay between the
filing of the petition and the trial thereon violated his due
process right to a timely trial; (b) the court erred in failing to
inquire into a potential conflict of interest between his
counsel and him, namely that bringing a motion to dismiss
would have been beneficial to appellant, but damaging to his
counsel; and (c) his counsel was ineffective in failing to bring
a motion to dismiss.
We conclude: (a) that appellant’s due process rights
were not violated because his counsel requested or agreed to
virtually all the continuances in this case, and those actions
are charged to appellant; (b) that appellant has failed to cite
any evidence presented to the court regarding a potential
conflict of interest, and thus failed to demonstrate that any
lack of inquiry constituted error; and (c) that appellant has
failed to demonstrate the failure to file a motion to dismiss

2
constituted ineffective assistance of counsel. Accordingly, we
affirm the judgment.

STATEMENT OF RELEVANT FACTS

A. The People File a Petition; Appellant Waives
Probable Cause Hearing
On February 3, 2005, the People filed a petition to
commit appellant as an SVP. The petition alleged appellant
had been convicted in 1982 under Penal Code section 287,
subdivision (b)(2) (sodomy by a person over 21 with a person
under 16) and in 2000 under Penal Code section 288,
subdivision (a) (lewd or lascivious act on child younger than
14), had been diagnosed with a mental disorder, posed a
danger to the health and safety of others, was predatory, and
was likely to reoffend without appropriate treatment and
custody. Appellant denied the petition and waived his
probable cause hearing. The court (Judge Richard E. Rico)
found probable cause existed to believe appellant was likely
to engage in sexually violent predatory criminal behavior
upon release, and ordered appellant transported to a state
mental hospital. A pretrial hearing was set for March 24,
2005.

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 B. The Court Holds a Supplemental Probable
Cause Hearing Four Years Later
From March 24, 2005, to November 12, 2008, the
pretrial hearing was continued 19 times.1 All but one of
those continuances were at the request of appellant’s counsel
or pursuant to an agreement between both counsel.2 With
the exception of June 7, 2006, when appellant’s counsel
stated he needed a continuance “for further preparation,” the
record discloses no reasons for the continuances. Appellant’s
appearance was waived at all but two hearings. 3 On
November 12, 2008, pursuant to a stipulation by both
counsel, the court set a supplemental probable cause hearing
for January 26, 2009.
On January 26, 2009, pursuant to a stipulation by both
counsel and due to court congestion, the court (Judge Maria
E. Stratton) continued the probable cause hearing to
February 20, 2009. On February 20, 2009, the court

1 From March 2005 to May 2005, Judge Rico presided. From
September 2005 to December 2005, Judge Gus Gomez presided.
In March 2006, Judge Lawrence H. Cho presided. From June
2006 to July 2007, Judge Marcelita V. Haynes presided. From
September 2007 to July 2008, Judge Dennis Landin presided.
From October 2008 to November 2008, Judge Clifford L. Klein
presided.
2 The record is silent on why a December 2005 pretrial
hearing was continued to March 2006.
3 For hearings scheduled on February 6, 2008, and
November 12, 2008, there is no notation regarding appellant’s
waiver of appearance.

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determined the probable cause hearing could not take place
because of the unavailability of the staff at the hospital
where appellant had been remanded. Pursuant to a
stipulation by both counsel, the court continued the hearing
to March 27, 2009. Appellant’s presence was waived.
On March 27, 2009, the probable cause hearing began
but was not completed. Appellant appeared via
videoconference. With appellant’s agreement, the court set
the next hearing date for May 27, 2009.
On May 27, 2009, appellant’s counsel informed the
court that an evaluation by an expert testifying for the
People had become “stale,” and that the expert wanted to
update it. Appellant’s appearance was waived, but his
counsel confirmed he had spoken with appellant, who had
agreed to a continuance until a new evaluation could be
done; the court continued the probable cause hearing to July
13, 2009.
On July 13, 2009, the hospital housing appellant had a
power outage, rendering it impossible for appellant to appear
via videoconference. Pursuant to the stipulation of counsel,
the hearing was continued to the next day. However, the
problem was not fixed by the next day and, by stipulation of
both counsel, the hearing was continued to September 14,
2009.
On September 14, 2009, the probable cause hearing
resumed, with appellant appearing via videoconference; the
court found probable cause to remand appellant to the

5
Department of Mental Health pending trial. A pretrial
conference was set for November 17, 2009.

C. Appellant Forgoes a Trial Date to File a
Ronje Motion
On November 17, 2009, at the request of appellant’s
counsel who stated he wanted more time to review a
transcript, the court (Judge Melissa Widdifield) continued
the pretrial hearing to February 2, 2010. Appellant was
present via videoconference and agreed to the continuance.
Appellant’s counsel assured the court that trial would
commence by summer of 2010. The minute order states:
“Time is waived.”
On February 2, 2010, pursuant to a stipulation by both
counsel, the court continued the pretrial hearing to March
25, 2010. Appellant was present via videoconference and did
not object.
On March 25, 2010, pursuant to a stipulation by both
counsel and appellant’s desire to file a Ronje motion, the
court continued the pretrial hearing to April 28, 2010, and
set the Ronje motion to be heard on that date.4 Appellant

4 In re Ronje (2009) 179 Cal.App.4th 509, disapproved in part
by Reilly v. Superior Court (2013) 57 Cal.4th 641, 655, “held that
a particular standardized assessment protocol used by SVP
evaluators prior to 2008 was invalid and its use ‘constitute[d] an
error or irregularity in the SVPA proceedings.’ [Citation.] The
court held that ‘the proper remedy’ is for the trial court ‘to (1)
order new evaluations of [the alleged SVP] using a valid
assessment protocol, and (2) conduct another probable cause
(Fn. is continued on the next page.)

6
was present via videoconference, and the court confirmed his
desire to no longer be sent out for trial in lieu of filing a
Ronje motion. Appellant also confirmed he was agreeable to
his trial being held at a date later than April 28, 2010.
On April 28, 2010, pursuant to a stipulation by both
counsel, the court continued the pretrial and Ronje hearings
to May 6, 2010. Appellant was present via videoconference
and agreed to the continuance.
On May 6 and May 17, 2010, pursuant to a stipulation
by both counsel, the court (Judge Pro Tem Connie Drath and
then Judge Stratton) continued the pretrial and Ronje
hearings to May 17, 2010 and then to Jun 1, 2010, to permit
Judge Widdifield to be present.5 Appellant was present via
videoconference and agreed to the continuances. When
asked at the May 17 hearing if he agreed to a continuance,
appellant responded: “I got all the time in the world.”
On June 1, 2010, the court (Judge Widdifield) partially
granted appellant’s Ronje motion and ordered new
evaluations of appellant to be conducted by the original

hearing . . . based on those new evaluations.” (People v. DeCasas
(2020) 54 Cal.App.5th 785, 792 (DeCasas).)
5 In his brief, appellant claims that it was the prosecutor who
did not want Judge Pro Tem Drath to decide the issue; that
contention is belied by the record. The prosecutor said nothing
about Judge Drath, and it was appellant’s counsel who said
(while explaining to appellant what was happening): “As you can
see, this woman is not Judge Widdifield, so what I want to do --
what we have to do is put this over for Judge Widdifield, and
we’re going to figure it out.” Appellant responded, “That’s fine.”

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evaluators. The court also set a July 13, 2010 hearing to
select a date for a probable cause hearing. Appellant was
present via videoconference and agreed to the hearing date.

D. The Court Again Finds Probable Cause
On July 13, 2010, at appellant’s request, the court set a
pretrial hearing for August 25, 2010. Appellant was present
via videoconference, and the minute order states: “Time is
waived.”
On August 25, 2010, pursuant to a stipulation by both
counsel, the court set a September 20, 2010 hearing to select
a date for the probable cause hearing, because appellant’s
counsel had yet to receive the reports from the new
evaluations. Appellant was present via videoconference and
agreed to the September 20 date, as well as having his
probable cause hearing sometime in November. On
September 20, 2010, pursuant to a stipulation by both
counsel, the court (Judge Stratton) continued the probable
cause hearing setting to November 17, 2010. Appellant was
present via videoconference, and the minute order states:
“Time is waived.” On November 17, 2010, the court (Judge
Pro Tem Harold Shabo) noted the probable cause hearing
would be held on January 4, 2011. Appellant was present
via videoconference.
The court held the probable cause hearing from
January 4 to 6, 2011. The hearing did not conclude on
January 6 and, pursuant to a stipulation by both counsel,
the court continued the hearing to February 8, 2011.

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 On February 8, 2011, pursuant to a stipulation by both
counsel, the court continued the probable cause hearing to
February 16, 2011, because appellant’s counsel had a
personal emergency. Appellant was present via
videoconference, and agreed to the continuance.
On February 16, 2011, the court found probable cause
existed to believe appellant was likely to engage in sexually
violent predatory criminal behavior upon release, and
therefore remanded him to the Department of Mental Health
pending trial. The court set a pretrial hearing for March 29,
2011.

E. The Trial Date Is Repeatedly Continued for
Six-and-a-Half Years
On March 29, 2011, both counsel stated they were
ready for trial and the court set a trial setting conference for
April 27, 2011. Appellant was present via videoconference.
On April 29, 2011, the court (Judge Gary J. Ferrari) set a
pretrial status conference for June 15, 2011, and set trial for
October 17, 2011.
On June 15, 2011, the prosecutor stated that she had a
three-day hearing beginning October 24, 2011, and was
concerned appellant’s case would not conclude prior to her
hearing. However, counsel explained her hearing consisted
only of afternoon sessions, and offered to appear in the
mornings to complete appellant’s trial if necessary; she
confirmed the People were prepared to proceed. The court
expressed concern about wasting juror time with half-days of

9
trial and asked both counsel to express their thoughts.
Appellant’s counsel agreed with the court, stated he was
willing to “waive time” on appellant’s behalf, and asked for a
trial date of December 5. The People agreed. The court set a
status conference on July 27, 2011, a discovery compliance
and trial setting hearing on October 17, 2011, and a jury
trial on December 5, 2011.
Between July 27, 2011, and November 7, 2011, the
court continued the status conference five times. Except for
July 27, 2011, where the record fails to disclose the reason
for the continuance, these continuances occurred at the
request of both counsel.
On November 7, 2011, at the request of both counsel,
the court (Judge Bradford Andrews) continued the trial to
March 19, 2012. On December 5, 2011, at the request of
both counsel, the court (Judge Ferrari) set a pretrial
conference for February 21, 2012.
On February 21, 2012, appellant’s counsel still had not
provided the People with the defense expert’s report. At the
request of appellant’s counsel, the court (Judge Arthur Jean
on behalf of Judge Ferrari) vacated the trial date and set a
pretrial hearing for March 19, 2012. At the People’s request,
appellant’s counsel agreed to obtain a written time waiver
from appellant, to be filed by March 19.
On March 19, 2012, appellant’s counsel stated he still
had not provided “defense material” to the People. The
People stated they were ready to proceed, regardless. At the
request of appellant’s counsel, the court (Judge Ferrari) set a

10
pretrial hearing for June 19, 2012. The court confirmed that
it had received a waiver of appellant’s appearance.
On June 19, 2012, appellant’s counsel was ill, and the
prosecutor represented that all counsel requested a trial
date of August 20, 2012. The court set a trial date for
August 20, 2012. The record is silent as to why the August
20 trial did not occur but on October 9, 2012, at the request
of appellant’s counsel, the court set trial for November 6,
2012.
Between November 6, 2012, and October 31, 2013, the
court continued trial three times, at the request of either
appellant’s counsel or both counsel.
On October 31, 2013, at the request of both counsel, the
court set a pretrial hearing to March 14, 2014. Appellant’s
appearance was waived, but his counsel confirmed that
appellant agreed both to the continuance, and for trial to
occur sometime thereafter.
On March 14, 2014, at the request of both counsel, the
court continued the pretrial hearing to December 18, 2014.
At the request of appellant’s counsel or both counsel, the
pretrial hearing was continued twice more to July 22, 2015.
On July 22, 2015, appellant’s counsel informed the
court that appellant was recovering from surgery. At the
request of appellant’s counsel, the court continued the
pretrial hearing to December 17, 2015. Appellant’s
appearance was waived, but his counsel confirmed that he
had spoken with him, and appellant was amenable both to
the continuance, and that he would not go to trial until 2016.

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 Between December 17, 2015, and August 30, 2016, at
the request of appellant’s counsel or both counsel, the court
continued the pretrial hearing four times, ultimately to
December 6, 2016. On December 6, 2016, at the request of
both counsel, the court continued the pretrial hearing to
March 16, 2017, and set a trial date for June 27, 2017.
Appellant’s appearance was waived.
On March 13, 2017, the case was transferred to Judge
Marcelita V. Haynes. On March 16, 2017, at the request of
both counsel, the court vacated the June 27, 2017 trial date
and instead set a pretrial hearing for that date. Appellant
was present via videoconference. The pretrial hearing was
continued twice more at the request of both counsel, to
December 13, 2017.6
On December 13, 2017, at the request of both counsel,
the court continued the pretrial conference to January 5,
2018, and also ordered appellant’s motion to quash a
subpoena to be heard on that date. Appellant’s counsel
additionally informed the court that his defense expert’s
report would not be completed until January 2018; the court
set trial for February 21, 2018.
On January 5, 2018, the court denied appellant’s
motion to quash, set a pretrial hearing for February 5, 2018,

6 At an August 2017 hearing, the court was under the
impression that trial was set for December 13, 2017. In
correcting that impression, the prosecutor told the court, “Expert
won’t be ready [in December]. So we will give you some dates” for
trial at the December 13, 2017 hearing.

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and confirmed trial would begin on February 21, 2018.
Appellant was present via videoconference.
On February 5, 2018, appellant’s counsel informed the
court that his expert had been unable to see appellant due to
a lockdown at the hospital in which appellant was housed.
At the request of both counsel, the court set a further status
conference for February 16, 2018. Appellant was present via
videoconference.
On February 16, 2018, appellant’s counsel stated he
was still awaiting his expert’s report. The court set a
pretrial hearing on March 7, 2018, and continued trial until
March 9, 2018. Appellant was present via videoconference.
On March 9, 2018, the court stated it had been unable
to thoroughly review some of the filings in the case, set a
hearing for March 13, 2018, and set trial for March 20, 23,
and 28. Appellant was present via videoconference.
On March 13, 2018, the court decided certain pretrial
motions, and confirmed a court trial would begin on March
20, 2018.7 Appellant was present via video conference.
Trial was held on March 20, 23, and 28, and April 13
and 27, 2018. On May 22, 2018, the court found appellant to
be an SVP and committed him for a two-year term.
Appellant appealed the same day.

7 The record does not disclose when the parties waived jury.

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 DISCUSSION

A. Appellant’s Due Process Right Was Not
Violated

1. We Decline to Find Forfeiture
It is undisputed that appellant did not file a motion to
dismiss on the grounds that the delay in holding his trial
violated his right to due process, and neither he nor his
counsel ever objected to the continuances. Citing People v.
Tran (2021) 62 Cal.App.5th 330 (Tran), the People contend
appellant has thereby forfeited the argument that his due
process rights were violated.
We find Tran inapposite. Tran held that by objecting
to the delays in bringing his case to trial, the appellant
sufficiently preserved his due process argument, even
though he did not file a motion to dismiss. (Tran, supra, 62
Cal.App.5th at 346 [“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”].) Tran did not hold that such an objection was
necessary. Indeed, in People v. Seaton (2001) 26 Cal.4th 598,
our Supreme Court found that “a defendant’s mere silence in
the face of a continuance does not waive the constitutional
right to speedy trial because a waiver occurs only when there
is a conscious relinquishment of a known right.” (Id. at 633.)
Moreover, to be valid, “‘waivers of constitutional rights must,
of course, be “knowing, intelligent acts done with sufficient

14
awareness of the relevant circumstances and likely
consequences[,]” . . . [and] must be unambiguous and
“without strings.”’” (People v. Bonin (1989) 47 Cal.3d 808,
837 (Bonin).)
Here, appellant did not merely remain silent in the
face of continuances requested by the prosecution or imposed
by the court -- through his counsel, he actively sought or
agreed to such continuances. Nevertheless, we find
instructive the case of People v. Washington (2021) 72
Cal.App.5th 453. There, after the appellant’s counsel had
waived his right to a jury trial under the Sexually Violent
Predator Act (SVPA) and the court found the appellant to be
an SVP, the appellant appealed, claiming his right to equal
protection under the law had been violated, because those
tried under the SVPA were not entitled to have a court
advise them of their right to a jury trial, whereas those tried
under other involuntary civil commitment acts were so
entitled. (Id. at 471-472.) Though the appellant had not
raised this argument below, our colleagues in Division Seven
declined to find forfeiture, reasoning that because it was the
appellant’s attorney who had waived the right to jury, “it is
hard to envision how counsel could have asserted this claim.”
(Id. at 473-474.) Specifically, the court found “[t]he only way
Washington could have asserted an equal protection
challenge in the trial court would have been for his attorney
to request the trial court advise Washington of his right to a
jury trial and take a personal waiver of that right. Then, if
the court declined to do so based on the absence of a

15
requirement in the SVPA, Washington’s attorney could have
argued not doing so would violate equal protection
principles. But presumably, Washington’s attorney believed
Washington wanted to proceed with a court trial (which may
or may not have been the case), and thus, counsel would
have been unlikely to demand the court advise Washington
of his jury trial right and take a personal waiver. . . . Under
these unusual circumstances, we decline to find forfeiture
based on Washington’s failure to raise an equal protection
challenge in the trial court.” (Id. at 474.)
Similarly, the only way for appellant to have raised his
due process claim below would have been for his attorney to
argue that the repeated continuances were violating
appellant’s right to due process. But because appellant’s
counsel was the one seeking or agreeing to almost all the
continuances, it would have been unlikely that he would
contend such continuances were violations of appellant’s
right to due process. Under these circumstances, as well as
the fact that nothing in the record demonstrates appellant
ever made a knowing and intelligent waiver of his right to a
timely trial, we decline to find forfeiture.

2. Due Process Right to Speedy Trial in
SVPA Proceedings
“Because civil commitment involves a significant
deprivation of liberty, a defendant in an SVP proceeding is
entitled to due process protections.” (People v. Otto (2001) 26
Cal.4th 200, 209.) “This includes the due process right to a

16
timely trial.” (Tran, supra, 62 Cal.App.5th at 347; see also
id. at 347, fn. 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”].)
“‘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.’ [Citation.] California Courts of Appeal have
consistently applied the tests articulated in Barker v. Wingo
(1972) 407 U.S. 514 [33 L. Ed. 2d 101, 92 S. Ct. 2182]
(Barker) and Mathews v. Eldridge (1976) 424 U.S. 319 [47 L.
Ed. 2d 18, 96 S. Ct. 893] (Mathews).” (Tran, supra, 62
Cal.App.5th at 347-348.)

3. Barker Analysis
In Barker, the United States Supreme Court
established a balancing test to analyze criminal defendants’
claims of speedy trial rights violations under the Sixth
Amendment. “The Barker test involves a weighing of four
factors: length of delay, the reason for the delay, the
defendant’s assertion of his right, and prejudice to the
defendant.” (U.S. v. Eight Thousand Eight Hundred & Fifty
Dollars ($8,850) in U.S. Currency (1983) 461 U.S. 555, 564.)
These factors are “related . . . and must be considered
together with such other circumstances as may be relevant.”
(Barker, supra, 407 U.S. at 533.) “The burden of

17
demonstrating a speedy trial violation under Barker’s
multifactor test lies with the defendant.” (People v. Williams
(2013) 58 Cal.4th 197, 233 (Williams).) Courts have applied
this framework to consider claims of undue delay in the
context of SVPA proceedings. (See, e.g., People v. Superior
Court (Vasquez) (2018) 27 Cal.App.5th 36, 60-81 (Vasquez);
People v. Landau (2013) 214 Cal.App.4th 1, 31 (Landau);
People v. Litmon (2008) 162 Cal.App.4th 383, 404-406
(Litmon); Page v. Lockyer (9th Cir. 2006) 200 Fed. Appx. 727;
Yahn v. King (N.D.Cal. Jan. 6, 2016, No. C-13-0855 EMC
(pr)) 2016 U.S.Dist. LEXIS 1213, at *19 [lower courts
assessing speedy trial claims in civil commitment
proceedings “have repeatedly turned to the law of speedy
trial rights in the criminal context -- especially [Barker] -- for
guidance[,] as it is the most appropriate analogy”].)

(a) Length of Delay
“The first Barker factor, the length of the delay,
encompasses a ‘double enquiry.’ ‘Simply to trigger a speedy
trial analysis, an accused must allege that the interval
between accusation and trial has crossed the threshold
dividing ordinary from “presumptively prejudicial” delay
[citation] . . . . If the accused makes this showing, the court
must then consider . . . the extent to which the delay
stretches beyond the bare minimum needed to trigger
judicial examination of the claim. [Citation.]’” (Williams,
supra, 58 Cal.4th at 234.) The People concede, and we agree,

18
that the 13-year delay between the filing of the petition and
trial was “substantial” and “weighs in appellant’s favor.”

(b) Reasons for Delay
While we conclude that all parties -- appellant, the
People, and the trial court -- bear some responsibility for the
delay, we find the delay chargeable primarily to appellant.

(i) Appellant
“Because ‘the attorney is the [defendant’s] agent when
acting, or failing to act, in furtherance of the litigation,’
delay caused by the defendant’s counsel is also charged
against the defendant. [Citation.] The same principle
applies whether counsel is privately retained or publicly
assigned.” (Vermont v. Brillon (2009) 556 U.S. 81, 90-91, fn.
omitted (Brillon).) However, “[t]he general rule attributing
to the defendant delay caused by assigned counsel is not
absolute. Delay resulting from a systemic ‘breakdown in the
public defender system,’ [citation], could be charged to the
State.” (Id. at 94.)
The record discloses that all but seven of the more than
60 continuances in this case resulted from either a request
from appellant’s counsel, or a joint request from both
counsel.8 Appellant argues that we should not charge these

8 Out of the seven continuances appellant did not request or
agree to (but to which he did not object), the record is silent as to
the reasons for three of them -- continuances of pretrial hearings
from December 13, 2005 to March 14, 2006, from July 27 to
(Fn. is continued on the next page.)

19
delays to him, because they resulted from a systemic
breakdown of the SVP Unit. Appellant cites nothing in the
record to support his theory. Instead, he contends that the
cases of Vasquez and DeCasas collaterally estop the People
from contesting his argument. We disagree.
“Collateral estoppel has been held to bar relitigation of
an issue decided at a previous trial if (1) the issue
necessarily decided at the previous trial is identical to the
one which is sought to be relitigated; if (2) the previous trial
resulted in a final judgment on the merits; and if (3) the
party against whom collateral estoppel is asserted was a
party or in privity with a party at the prior trial.” (People v.
Taylor (1974) 12 Cal.3d 686, 691, overruled on other grounds
by People v. Superior Court (Sparks) (2010) 48 Cal.4th 1.) In
Vasquez, Division Seven held that the trial court did not err
in finding “‘[t]he dysfunctional manner in which the Public
Defender’s Office handled Mr. Vasquez’s case’” constituted a
“systemic or institutional breakdown” that could not be
attributed to the appellant. (Vasquez, supra, 27 Cal.App.5th

August 30, 2011, and from August 30 to December 6, 2016. Two
others -- continuances of a supplemental probable cause hearing
from February 20 to March 27, 2009 and from July 13 to
September 14, 2009 -- were due to issues at the hospital where
appellant was housed. The remaining two were attributable to
the court -- a continuance of the supplemental probable cause
hearing from January 26 to February 20, 2009 for court
congestion, and the continuance of trial from March 9 to March
20, 2018 because the court had not had time to thoroughly review
the parties’ filings.

20
at 73.) Similarly, in DeCasas, our colleagues in Division One
held that the trial court did not err in finding that the delays
in bringing DeCasas’s case to trial were due to “a systemic
breakdown in the public defender’s office.” (DeCasas, supra,
54 Cal.App.5th at 810.) However, the question before us is
not whether the SVP Unit suffered a systemic breakdown,
but whether any such breakdown was the cause of the delays
in bringing appellant’s case to trial. This issue obviously
was not addressed in Vasquez or DeCasas. Because “the
issue necessarily decided” in those two cases is not “identical
to the one which is sought to be relitigated,” we find
collateral estoppel inapplicable. (People v. Taylor, supra, 12
Cal.3d at 691.)
In Williams, our Supreme Court found that “most of
the delay in this case, apart from the periods already
attributed to defendant, resulted from defense counsel’s
failure to make progress in preparing defendant’s case”
(Williams, supra, 58 Cal.4th at 244), but concluded that the
delay must be charged to the defendant absent evidence in
the record demonstrating a systemic breakdown in the
public defender system (id. at 247). It found that “the record
on appeal contains no facts that affirmatively support this
conclusion. Because defendant did not file a motion to
dismiss on speedy trial grounds in the trial court, the
underlying cause of the delay in this case was never
litigated, the various statements by defendant and his
attorneys were never examined in an adversarial proceeding,
and the trial court made no findings that might inform the

21
issue before us.” (Id. at 248.) Similarly, in Tran, decided
after Vasquez and DeCasas, the court held that “[w]ithout 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.’ [Citation.]
Accordingly, we must attribute all delays caused by defense
counsel to defendant.” (Tran, supra, 62 Cal.App.5th at 352.)
The same lack of evidence in this record before us compels
the same conclusion.

(ii) The People
While “[t]he People’s due process obligation in an
SVPA proceeding cannot be defined with precision,” it must
“diligently prosecute the case. This may 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

22
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.” (In re Butler (2020) 55 Cal.App.5th
614, 655 (Butler).)
Here, while the prosecution did announce its readiness
for trial several times, it never objected to appellant’s
requests for continuances, even though appellant’s counsel
frequently failed to explain why a continuance was needed.
The prosecution did not insist on trial deadlines or voice
concerns about the age of the case. It never sought to have
appellant’s counsel removed. Thus, we find the People also
bear some responsibility for the delay.9

9 We disagree with appellant’s contention that the
prosecution is responsible for the delay of the October 2011 trial
date. In June 2011, after having previously agreed to an October
17, 2011 trial date, the prosecutor informed the court she had a
three-day hearing beginning October 24, 2011, and had concerns
that appellant’s trial would not conclude prior to that hearing.
However, the prosecutor offered to appear during the mornings of
her three-day hearing if necessary to complete appellant’s trial.
Agreeing with the court that such a plan could inconvenience
jurors, appellant’s counsel was the one who requested a
(Fn. is continued on the next page.)

23
 (iii) The Trial Court
The trial court also had an obligation to ensure
appellant received a timely trial. “Even 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. The trial court also has a responsibility absent
a written time waiver to inquire of a defendant whether he
or she agrees to the delay.” (Vasquez, supra, 27 Cal.App.5th
at 75; see also Williams, supra, 58 Cal.4th at 251 [“the trial
court has an affirmative constitutional obligation to bring
the defendant to trial in a timely manner”].) Even a “neutral
reason such as negligence or overcrowded courts should be
weighted less heavily [against the government] but
nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the

December trial date instead. Thus, we do not attribute this delay
to the People.
We also disagree that the People bear any responsibility for
a delay in August 2017, when appellant contends “both attorneys
had informed the court that they were not going to be ready for
the then scheduled December trial.” The record belies his claim
that the prosecution was not ready. During that hearing, the
prosecutor corrected the court’s mistaken impression that trial
would occur in December 2017, stating, “Expert won’t be ready
[in December]. So we will give you some dates” for trial at the
next hearing. While the record does not identify which expert
would not be ready, the prosecutor was likely referring to
appellant’s expert; at the next hearing, appellant’s counsel
informed the court that his expert’s report would not be
completed until January 2018. Obviously the People are not
responsible for delays caused by a defense expert.

24
government rather than with the defendant.” (Barker,
supra, 407 U.S. at 531, fn. omitted.)
There were over 60 continuances in this case over 13
years. While the court did express concern a few times
regarding the age of the case, continuances were frequently
granted without an express finding of good cause. For
example, on December 17, 2015 -- more than ten years after
the original petition was filed -- appellant’s counsel informed
the court that he and the prosecutor “have agreed on a
further pretrial date on Mr. Ballardo’s matter for February
22nd, if that date is available.” Similarly, at the February
22 hearing, appellant’s counsel stated he was requesting a
May 4 pretrial hearing. The record reflects no further
discussion regarding the continuances. Many other hearings
proceeded in a similar matter.

(c) Appellant’s Assertion of Right to
Speedy Trial
“The defendant’s assertion of his speedy trial right . . .
is entitled to strong evidentiary weight in determining
whether the defendant is being deprived of the right.”
(Barker, supra, 407 U.S. at 531-532.) ‘“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
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

25
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 238.)
Appellant admits he never asserted a right to a speedy
trial, but contends we should not weigh this factor against
him. He notes that during many of the hearings where he
could have asserted this right, he already had a trial date
scheduled. He further asserts he had no choice but to agree
to the delays because it would have been futile to assert his
right to a speedy trial. Finally, he argues that because
“there was nothing in the record that suggests that appellant
did or did not want a speedy trial,” we should find this factor
to be neutral. We disagree.
Virtually every continuance was either requested by or
agreed to by appellant’s counsel and, as discussed above,
these requests must be attributed to appellant because there
is no evidence in the record to suggest they were due to a
systemic breakdown in the SVP Unit. In the few instances
in which the court continued the hearing on its own motion
or due to unforeseen circumstances, appellant’s counsel
never objected. Every representation made by appellant’s
counsel -- and they were numerous -- regarding appellant’s
attitude toward the continuances was that he understood
and agreed with them. Appellant does not contend his
counsel misrepresented his understanding or agreement.
Moreover, every time appellant was asked about a
continuance, he expressly agreed to it, even indicating at one

26
point that he had “all the time in the world.” Further, the
burden is on appellant to demonstrate error. (People v.
Thompson (2016) 1 Cal.5th 1043, 1097, fn. 11 [“On appeal,
we assume a judgment is correct and the defendant bears
the burden of demonstrating otherwise”].) The evidence in
the record shows that appellant did not assert his right to a
speedy trial, but rather repeatedly manifested his agreement
with the continuances sought or stipulated to by his counsel.
In short, because there is no evidence demonstrating he was
concerned about this right, we weigh this factor against
appellant.

(d) Prejudice to Appellant
“Whether [a] defendant suffered prejudice as a result of
the delay must be assessed in light of 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.’” (Williams, supra, 58
Cal.4th at 235.) “Of these forms of prejudice, ‘the most
serious is the last, because the inability of a defendant
adequately to prepare his case skews the fairness of the
entire system.’” (Doggett v. U.S. (1992) 505 U.S. 647, 654.)
“[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.” (Litmon, supra, 162 Cal.App.4th at 406; see

27
Barker, supra, 407 U.S. at 532-533 [“‘The time spent in jail is
simply dead time’”]; accord, Williams, supra, 58 Cal.4th at
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’”].) An appellant “need not show ‘a loss of
witnesses, loss of evidence, or fading memories,’” to
demonstrate prejudice. (Vasquez, supra, 27 Cal.App.5th at
63.) “Rather, it is the loss of time spent in pretrial custody
that constitutes prejudice.” (Ibid.) A defendant’s “extended
confinement without any determination that he [is] an SVP”
results in an irretrievable loss of liberty, “regardless of the
outcome of trial.” (Litmon, supra, 162 Cal.App.4th at 400.)
The People concede that appellant’s pre-trial detention
was “undoubtedly oppressive.” Appellant does not contend
the delay hampered his ability to defend himself at trial. We
agree that while appellant undoubtedly suffered prejudice
from the delay, it was not the most serious type of prejudice.

(e) Balancing the Barker Factors
The first factor (length of delay) weighs in appellant’s
favor. The third factor (assertion of right to speedy trial)
weighs against him. For the second factor (reason for delay),
we find that while both the prosecution and the court bear
some responsibility for the delays, most of the blame falls on
appellant, whose counsel requested or agreed to almost all
the continuances and did not object to the others. For the
fourth factor (prejudice), we agree there is inherent prejudice

28
from being confined for 13 years without a trial, but
appellant concedes that he did not suffer the “most serious”
prejudice of an impaired defense. Balancing these four
factors, we conclude that appellant has not sufficiently
demonstrated a violation of his due process rights under the
Barker test.

4. Mathews Analysis
Under Mathews, we consider three factors: “(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.” (Tran, supra, 62 Cal.App.5th at
348.)
“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. [Citations.] 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.”’ [Citation.] But the state
has no interest in detaining individuals who do not qualify

29
as SVPs. [Citation.] Moreover, ‘[e]ven in situations
justifying postdeprivation hearings, “[a]t some point, a delay
in the . . . hearing would become a constitutional violation.”’
[Citation.] 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.” (Butler, supra, 55 Cal.App.5th at 663.) Here,
on three separate occasions, the court found probable cause
that appellant was likely to engage in sexually violent
predatory criminal behavior upon release. We therefore
conclude that, despite the delay between petition and trial,
the third factor weighs in favor of the government.
As for the second factor, while the length of time before
trial did increase the risk that the deprivation of appellant’s
liberty would be erroneous, it is undisputed that appellant’s
counsel either requested or agreed to all but seven of the
continuances in this case. It would be nonsensical to find
that appellant could create his own due process violation by
requesting continuances and then complaining that his
hearings were continued. As to the continuances not
requested or agreed to by appellant, those amounted to 36
days of delay caused by the trial court, and 98 days of delay
due to problems at the hospital where appellant was
confined, all over the course of 13 years. We find such delays
do not amount to a deprivation of due process. (Landau,
supra, 214 Cal.App.4th at 37 [“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

30
granting his requests”]; id. at 41-42 [“given the fact that the
preceding 14-month-plus delay was at appellant’s request,
we find the delay from November 5, 2007, to the start of trial
proceedings on December 18, 2007, did not amount to a
denial of due process under the Mathews analysis”].)10

B. The Court Did Not Err in Failing to Inquire
About an Alleged Potential Conflict of
Interest
The parties agree that “[w]hen the trial court knows, or
reasonably should know, of the possibility of a conflict of
interest on the part of defense counsel, it is required to make
inquiry into the matter.” (Bonin, supra, 47 Cal.3d at 836.)
But “a court can be held to have knowledge or notice of the
possibility of a conflict only when . . . it is provided with
evidence of the existence of a conflict situation . . . .
Otherwise, it would effectively be burdened with
undertaking an inquiry in virtually all cases since it can
almost always conclude that a conflict is ‘possible’ as a
matter of speculation. Such a burden, however, would be
intolerable.” (Id. at 838.) Here, we find that the court was
not presented with evidence of the existence of a conflict
situation, and therefore had no duty to inquire.

10 Appellant also contends that the second factor favors him
because of the existence of a conflict of interest between his
counsel and him. As discussed below, nothing in the record
evidences such a conflict of interest.

31
 Appellant contends his attorney had a conflict of
interest because, after the decision in Vasquez, his attorney
could not raise a due process claim without explaining why
he had not previously done so, and because raising such a
claim might have “gotten him in trouble” with his superiors.
Appellant’s arguments rest on assumptions we are
unprepared to make. His counsel would have had a conflict
in deciding whether to bring a due process claim only if there
was a valid basis to bring such a claim, and only if bringing
the claim would have been harmful to counsel. As discussed
above, there is simply no evidence of this. Unlike the public
defenders in Vasquez or DeCasas, appellant’s counsel never
informed the court that he was unable to represent appellant
adequately because of staff shortages or increased workload.
In Vasquez, defense counsel repeatedly told the court she
was unable to be ready due to her increased workload, the
need to prepare for other matters, and the loss of paralegal
assistance. (Vasquez, supra, 27 Cal.App.5th at 48-50.)
Similarly, in DeCasas, the public defender informed the
court of the increase in his caseload and later testified it
prevented him from preparing for DeCasas’s trial. (DeCasas,
supra, 54 Cal.App.5th at 796-797.)
No such protestations were heard from appellant’s
counsel, and appellant fails to explain why his counsel would
have been less inclined than those in Vasquez and DeCasas
to inform the court that any increase in workload was

32
impairing his ability to bring appellant’s case to trial.11 Nor
does appellant point to anything in the record demonstrating
that any evidence of a potential conflict of interest was ever
brought to the court’s attention. Therefore, we conclude
appellant has failed to demonstrate the court erred in not
inquiring about a potential conflict of interest.

C. Appellant Fails to Show Ineffective
Assistance of Counsel
Appellant somewhat contradictorily argues that his
counsel’s failure to file a motion to dismiss after the issuance
of the decision in Vasquez constituted ineffective assistance
of counsel both because his counsel “could have had no valid
tactical reason” for failing to file such a motion, and because,
due to the purported conflict between appellant and his
counsel, his counsel was not entitled to make the tactical
decision to not file the motion. We disagree.
The parties agree that to prevail on an ineffective
assistance of counsel claim, appellant must establish both
deficient performance under an objective standard of
reasonableness and a reasonable probability of a better

11 Appellant additionally argues that any malpractice claim
he had against his public defender would “go away” if appellant
were committed as an SVP, and thus it was in his counsel’s
interest to go to trial rather than file a potentially successful
motion to dismiss. Again, appellant points to nothing in the
record to demonstrate that he had any viable malpractice claim
against his counsel, much less that any such evidence was
brought to the trial court’s attention.

33
outcome. (People v. Memro (1995) 11 Cal.4th 786, 818.) “In
the usual case, where counsel’s trial tactics or strategic
reasons for challenged decisions do not appear on the record,
we will not find ineffective assistance of counsel on appeal
unless there could be no conceivable reason for counsel’s acts
or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.)
However, “‘where a conflict of interest causes an attorney not
to do something, the record may not reflect such an omission.
We must therefore examine the record to determine (i)
whether arguments or actions omitted would likely have
been made by counsel who did not have a conflict of interest,
and (ii) whether there may have been a tactical reason (other
than the asserted conflict of interest) that might have caused
any such omission.’” (People v. Doolin (2009) 45 Cal.4th 390,
418.)
Here, as discussed above, we find appellant has failed
to demonstrate either a potential or an actual conflict of
interest existed between his counsel and him. Moreover,
appellant recognizes that his counsel may have opted not to
bring a motion to dismiss because, at the time Vasquez was
decided, appellant had a trial date and filing such a motion
would have delayed trial yet again. He further admits that
“[i]f, after being fully advised of the consequences of his
decision, appellant elected to go to trial . . . and waive his
due process claim, that would have been acceptable.”
Another reason appellant’s counsel may have elected not to
bring such a motion is simply that there was no basis for it.
Again, as discussed above, nothing in the record

34
demonstrates that any systemic breakdown of the SVP Unit
affected appellant’s representation.
On this record, given plausible and reasonable reasons
that appellant’s counsel may have declined to file a motion to
dismiss, we cannot conclude that the failure to bring such a
motion was due to ineffective assistance of counsel.

35
 DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.

36