P. v. Litmon

Filed 4/26/07 P. v. Litmon CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

David Litmon, Jr., appeals from a September 7, 2005 order recommitting him as a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA) (Welf. & Inst. Code,  6600 et seq.)[1] for a two-year period from May 2, 2002 to May 2, 2004 following a jury trial. Appellant asserts that the trial court violated his federal constitutional right to due process under the Fourteenth Amendment when, in July 2005, it denied his pretrial motion to dismiss the first recommitment petition for unreasonable pretrial delay.[2]

Appellant now claims the motion to dismiss should have been granted because the prejudicial effect of the delay in bringing him to trial outweighed the reasons for the delay and he argues that the extended pretrial delay created a presumption of prejudice and, furthermore, his unauthorized confinement constituted actual prejudice. His due process argument to the trial court was that he was "entitled to a trial at a 'meaningful time and in a meaningful manner' " and "[t]hat time was February 23, 2004, when he announced ready prior to the termination of the proposed commitment," which was due to expire in early May 2004.[3] We uphold the trial court's denial of the motion to dismiss based upon the arguments before it and affirm its recommitment order.

Appellant has also filed a petition for writ of habeas corpus, which we ordered considered with this appeal (H030543). We resolve the petition by a separate order.

A. Applicable Law

Under the law existing at the time of the SVP proceedings in this case, a person initially determined to be an SVP could be confined for an initial two-year commitment and then for additional two-year commitment periods pursuant to recommitment petitions. (Former  6604, 6604.1, subd. (a) [Stats. 2000, ch. 420,  3-4, pp. 2542-2543, eff. Sept. 13, 2000].) The extended commitment term "commenc[ed] from the date of the termination of the previous commitment." (Former 6604.1, subd. (a) [Stats. 2000, ch. 420,  4, pp. 2542-2543, eff. Sept. 13, 2000].) (Ibid.) Evaluations for extended commitments were required from two mental health care professionals, who were practicing psychologists or psychiatrists, designated by the State Department of Mental Health. (Former  6604.1, subd. (b) [Stats. 2000, ch. 420,  4, p. 2543, eff. Sept. 13, 2000].) Those evaluations were governed by the same provisions governing the evaluations for the initial commitment, section 6601, subdivisions (c) to (i). (Ibid.) Section 6603, which entitles the subject of an SVP petition to a jury trial, was made applicable to recommitment proceedings. (Ibid.)

Section 6604, as it read at the time of the proceedings at issue in this case, provided in pertinent part: "The court or jury shall determine whether, beyond a reasonable doubt, the person is a sexually violent predator. If the court or jury is not satisfied beyond a reasonable doubt that the person is a sexually violent predator, the court shall direct that the person be released at the conclusion of the term for which he or she was initially sentenced, or that the person be unconditionally released at the end of parole, whichever is applicable. If the court or jury determines that the person is a sexually violent predator, the person shall be committed for two years to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health, and the person shall not be kept in actual custody longer than two years unless a subsequent extended commitment is obtained from the court incident to the filing of a petition for extended commitment under this article or unless the term of commitment changes pursuant to subdivision (e) of Section 6605. . . ." (Former  6604 [Stats. 2000, ch. 420,  3, p. 2542, eff. Sept. 13, 2000], italics added.)

The California Supreme Court has observed: "The SVPA scheme . . . allows for greater procedural safeguards [than the LPS Act], including both a probable cause hearing and trial, before the actual civil commitment. Although an individual may 'remain in [pretrial] custody in a secure facility' after a finding of probable cause ( 6602, subd. (a)), the actual civil commitment will only commence after an SVPA determination at the subsequent mandated trial. ( 6604.)" (Cooley v. Superior Court (2002) 29 Cal.4th 228, 254.) At trial, jurors must be admonished that "they may not find a person a sexually violent predator based on prior offenses absent relevant evidence of a currently 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)(3).)

Nevertheless, as a matter of practice, persons committed as SVPs have been in some instances retained in custody pending trials on recommitment petitions following expiration of their initial two-year commitments. This court previously observed: "The requirement of a trial every two years presents the trial court with a dilemma when, for whatever reason, so much time passes between the filing of a petition to recommit and the actual trial that a second petition to recommit must be filed before the first petition is tried. Delays approaching or even exceeding the two-year mark inevitably result in the de facto commitment of persons as SVPs for the entire period, albeit without benefit of a verdict reflecting that the person's current mental condition warrants his or her commitment." (Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 1170.)

This past year, the law changed. Under the new provisions, where it is determined that a person is an SVP pursuant to an initial petition for commitment, the person will be committed "for an indeterminate term to the custody of the State Department of Mental Health for appropriate treatment and confinement in a secure facility designated by the Director of Mental Health." ( 6604 [Prop. 83,  27, operative November 7, 2006], see  6604.1 [Prop. 83,  28, operative November 7, 2006].) This restructuring may help alleviate problems of delay and avoid the procedural pitfalls involved in pursuing successive two-year commitments.

B. Procedural History

Appellant was initially ordered committed as an SVP for a two-year period effective May 2, 2000. On April 24, 2002, a petition was filed to extend appellant's initial commitment as an SVP for an additional two-year period commencing from May 2, 2002. A probable cause hearing commenced and subsequently concluded with a finding of probable cause on July 19, 2002. Jury trial was set for November 12, 2002.

On October 25, 2002, appellant filed a Faretta motion (Faretta v. California (1975) 422 U.S. 806 [95 S.Ct. 2525]) to represent himself. The motion was granted on October 30, 2002. On that same date, the trial date was vacated and the case was continued until January 10, 2003 for trial setting.

On January 10, 2003, appellant filed a motion for reconsideration of the probable cause finding and a hearing on the motion was set for February 7, 2003. The matter was scheduled for trial setting on March 14, 2003. In the interim, other motions were heard. On March 14, 2003, the date scheduled for trial setting, appellant brought a motion to disqualify the judge (Code Civ. Proc.,  170.1), which was denied, and the case was continued to March 28, 2003 for motion hearings and trial setting.

On March 28, 2003, the court vacated the probable cause finding pursuant to Cooley v. Superior Court, supra, 29 Cal.4th 228.[4] The court ordered updated reports by the evaluators to be delivered to the court by May 9, 2003. Dr. Rozynko was appointed as an expert for the defendant in April 2003. Various matters were heard between March 28, 2003 and June 27, 2003, when appellant appeared for the probable cause hearing. The probable cause hearing was continued to July 11, 2003. On October 1, 2003, a new doctor was appointed for defendant because the previously appointed expert had died.

The probable cause hearing was held on October 9, 2003 and October 23, 2003. On November 7, 2003, the court found probable cause. The matter was set for jury trial on August 2, 2004.

On December 19, 2003, appellant filed a motion for jury trial within 60 days of the probable cause finding. On that date, the trial court denied the motion for jury trial and appellant's disqualification challenge (Code Civ. Proc.,  170.1, subd. (a)(6)). But the judge nevertheless informed appellant that he had the option of being placed on the master trial calendar for assignment instead of waiting for a trial date in the judge's department. The court informed appellant that the transcript of the probable cause hearing would not be completed and available until the week of January 12, 2004. Appellant agreed that he did not want the trial set until after he had received the transcript and asked the trial to be set the week of February 23, 2004. The matter was scheduled for the master trial calendar on February 23, 2004.

On February 23, 2004, the matter was placed on standby on the master trial calendar. On March 9, 2004, defendant filed a written demand for an immediate jury trial. The matter continued on standby for trial.

On April 2, 2004, the court heard and granted the People's motion to consolidate for trial the first recommitment petition and a second recommitment petition that had been filed. The prosecutor suggested scheduling the trial for May 24, 2004 to allow appellant an opportunity to cross-examine the evaluators in the probable cause hearing on the second recommitment petition. Appellant asked for a continuance of his trial date to June 1 or thereafter. The court set trial for June 1, 2004.

Appellant challenged the trial court's consolidation order by petition for writ of mandate filed on April 23, 2004 in this court.[5] (Litmon v. Superior Court, supra, 123 Cal.App.4th at p. 1164.) On May 17, 2004, appellant filed a motion to dismiss the SVPA proceedings on the ground, among others, that his procedural due process rights were violated by his current pretrial detention without a trial.

On May 19, 2004, this court stayed all further proceedings in the trial court. (Litmon v. Superior Court, supra, 123 Cal.App.4th at p. 1164.) On November 4, 2004, we vacated the temporary stay order and ordered issuance of a peremptory writ of mandate directing the superior court to vacate its consolidation order and to set the first recommitment petition "for trial forthwith." (Id. at p. 1178.) On March 9, 2005, following issuance of the peremptory writ of mandate and remittitur on January 28, 2005 (H027346), the superior court continued proceedings in the case.

On March 21, 2005, the first recommitment petition was scheduled for trial on March 28, 2005. The minute order for March 28, 2005 shows only that the matter was taken off calendar. On April 6, 2005, appellant appeared before Judge Bernal and challenged Judge Bernal pursuant to Code of Civil Procedure section 170.6. The matter was taken under submission by Judge Bernal.

By order filed on April 14, 2005, Judge Bernal rejected appellant's challenge under Code of Civil Procedure section 170.6 and denied his May 2004 motion to dismiss. On April 25, 2005, appellant filed a writ petition challenging the trial courts denial of the section 170.6 disqualification motion in this court (Litmon v. Superior Court, H028725).

On May 5, 2005, Judge Bernal considered and denied appellant's request for a continuance of the trial. The court set trial on the first recommitment petition for May 16, 2005. On May 6, 2005, appellant filed a motion to dismiss the first recommitment petition on grounds that he had been "prejudiced by the long delay in proceeding to trial . . . ." In his motion, he claimed he had been ready to go to trial since February 23, 2004.

Also, on May 6, 2005, this court issued a limited temporary stay of the proceedings before Judge Bernal in response to appellant's writ petition (Litmon v. Superior Court, H028725). The stay order did not "prohibit respondent court from returning the case to the master trial calendar or otherwise reassigning the case to a different trial judge" while the matter was being considered by this court. (Litmon v. Superior Court, H028725.)

On June 17, 2005, Judge Allegro scheduled the trials on the first and second recommitment petitions for August 29, 2005. At a hearing on June 22, 2005, it was determined that Judge Allegro would handle all of appellant's motions. At a hearing on June 27, 2005, an attorney made a special appearance on appellant's behalf for purposes of the motion to dismiss. Judge Allegro established a schedule for further filings on appellant's motion to dismiss, which was scheduled to be heard on July 29, 2005 prior to the trial date of August 29, 2005, which remained as set.

On July 8, 2005, appellant filed a written motion, prepared by counsel, to dismiss the first recommitment petition on a variety of grounds, including the due process argument that the meaningful time for trial had been February 23, 2004. On July 26, 2005, the People filed their opposition, arguing that dismissal was not the appropriate remedy for the delay and appellant would not be prejudiced by going forward with trial. On July 29, 2005, the superior court denied appellant's motion to dismiss.

During early August 2005, the trial court heard various motions. This court ordered issuance of a peremptory writ of mandate directing respondent court to vacate its order denying appellant's peremptory challenge to Judge Bernal on the first recommitment petition and to enter a new order granting the challenge. (Litmon v. Superior Court, H028725.)

On August 17, 2005, appellant filed a petition for a writ of mandate directing the superior court to vacate its order denying his motion to dismiss and requested a stay (Litmon v. Superior Court, H029195). This court summarily denied the petition on August 23, 2005 (Litmon v. Superior Court, H029195).

On August 26, 2005, the superior court heard motions in limine. Jury selection began on August 29, 2005 and was completed on August 30, 2005. Witnesses were called on August 31, 2005 and on September 6, 2005. The jury reached its verdict on September 7, 2005. The court issued its order of recommitment the same day.

C. Due Process Principles

Although the problem of delay has plagued SVP recommitment proceedings in general (see Litmon v. Superior Court, supra, 123 Cal.App.4th at pp. 1170-1172 [discussion of problem]), no court has articulated a clear analytical model to be used to evaluate claims of pretrial delay allegedly violating due process as distinguished from issues of jurisdiction and statutory construction. Orozco v. Superior Court (2004) 117 Cal.App.4th 170 concerned the belated recommitment trial of Orozco who had been committed as an SVP. In that case, the first and second recommitment petitions were filed before the expiration of the corresponding two-year recommitment terms but a trial on the first recommitment petition was not held before expiration of the first potential term of recommitment. (Id. at pp. 173-175, 179.) Orozco argued that a person adjudicated an SVP cannot be kept in custody beyond a two-year commitment period without a recommitment order, the trial court loses jurisdiction upon expiration of a commitment period without a recommitment order, and due process requires dismissal under those circumstances. (Id. at p. 176.)

After finding the statute did not require a recommitment order before the underlying term expired, the Second District in Orozco stated: "The issue thereafter is simply whether the delay in trial violated Orozco's right to due process. The record reflects the delay in bringing the matter to trial was attributable to Orozco's counsel and/or to Orozco himself. Orozco has never announced that he is ready for trial. After repeated delays with respect to the first recommitment petition stemming from Orozco's lack of preparedness for trial, Orozco waited until June 16, 2003, shortly after the expiration of what would have been the first recommitment term, to file a dismissal motion on the ground the delay had deprived the trial court of jurisdiction to proceed. The motion was meritless because, as explained, the SVP Act does not specify the time within which the recommitment trial must occur. Obviously, trial on a recommitment petition should occur within a reasonable time after the probable cause hearing. ( 6602.) Surely the Legislature did not contemplate the lengthy delay that occurred here. The trial court should not have acquiesced in the leisurely manner in which this matter was approached by the parties. Section 6602 provides that once probable cause has been determined, the trial court 'shall order that a trial be conducted.' It follows the trial court should ensure the matter proceeds to trial within a reasonable time following the probable cause hearing. Nonetheless, the delay herein did not deprive the trial court of jurisdiction to proceed on either petition. The remedy for the delay is not dismissal but rather, an order directing that the matter proceed to trial forthwith." (Id. at p. 179.)

The court continued: "Moreover, Orozco, by his conduct, waived the issue of delay in bringing the matter to trial. The record reflects that in May 2003, at the expiration of the two-year period that would have constituted the first recommitment term, Orozco was still preparing his defense to the first recommitment petition. It was only in the final week of July 2003 that Orozco was evaluated by his own expert, Dr. Anderson. Prior to moving for dismissal on June 16, 2003, the only time Orozco raised the issue of timeliness was back on June 4, 2001, when Orozco stated he refused to waive the time for a hearing to set the probable cause hearing on the first recommitment petition. The trial court properly overruled that objection on the ground the statutory scheme does not specify the time frame within which the probable cause hearing must be held. [] In sum, the People's failure to obtain a recommitment order within the two-year period ending May 13, 2003, did not deprive the trial court of jurisdiction to entertain the two recommitment petitions. The trial court correctly denied Orozco's dismissal motion." (Id. at pp. 179-180, fn. omitted.)

The Orozco court blurred the distinctions between issues of judicial acts in excess of jurisdiction, procedural due process, and intentional waivers of constitutional rights (see Johnson v. Zerbst (1938) 304 U.S. 458, 464 [58 S.Ct. 1019] ["A waiver is ordinarily an intentional relinquishment or abandonment of a known right or privilege"). Ultimately, its decision was grounded in the particular facts of that case and sheds little light on the present case.

The determination of whether a court has exceeded its jurisdiction is essentially a question of statutory interpretation and legislative intent. (See Morris v. County of Marin (1977) 18 Cal.3d 901, 909-910; see In re Richard S. (1991) 54 Cal.3d 857, 865 [discussing meaning of "mandatory" versus "directory" statutory provisions]; cf. Malengo v. Municipal Court of East Los Angeles Judicial Dist. In and For Los Angeles County (1961) 56 Cal.2d 813, 816 [Penal Code section 1050,"providing for the time for trial of criminal cases, is directory only and contains no provision for the dismissal of a case when its terms are not complied with"].) In contrast, the process constitutionally due is ordinarily "determined by weighing 'the private interest that will be affected by the official action' against the Government's asserted interest, 'including the function involved' and the burdens the Government would face in providing greater process. [Mathews v. Eldridge (1976)] 424 U.S.[ 319,] at 335, 96 S.Ct. 893." (Hamdi v. Rumsfeld (2004) 542 U.S. 507, 529 [124 S.Ct. 2633].) The process to which an individual is constitutionally entitled is not limited or dictated by statute.

"The constitutional sufficiency of procedures provided in any situation, of course, varies with the circumstances. [Citations.]" (Landon v. Plasencia (1982) 459 U.S. 21, 34 [103 S.Ct. 321].) "Though the required procedures may vary according to the interests at stake in a particular context, Boddie v. Connecticut, 401 U.S. 371, 378, 91 S.Ct. 780, 786, 28 L.Ed.2d 113 (1971), '[t]he fundamental requirement of due process is the opportunity to be heard "at a meaningful time and in a meaningful manner." ' Mathews v. Eldridge, 424 U.S. 319, 333, 96 S.Ct. 893, 902, 47 L.Ed.2d 18 (1976), quoting Armstrong v. Manzo, 380 U.S. 545, 552, 85 S.Ct. 1187, 1191, 14 L.Ed.2d 62 (1965); see also Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313, 70 S.Ct. 652, 656, 94 L.Ed. 865 (1950)." (Brock v. Roadway Exp., Inc. (1987) 481 U.S. 252, 261 [107 S.Ct. 1740].) "[T]he fundamental fairness of a particular procedure does not turn on the result obtained in any individual case." (Walters v. National Ass'n of Radiation Survivors (1985) 473 U.S. 305, 321 [105 S.Ct. 3180].)

It is appellant's contention that unreasonable delay in bringing an SVP recommitment petition to trial violates an individual's constitutional right to due process. In our view, the best available model for evaluating the constitutionality of pretrial delay where the delay continued past the expiration of a prior SVP commitment but there was an implied concession in the trial court that considerable delay following expiration of the prior commitment was constitutional, is the Barker test (Barker v. Wingo (1972) 407 U.S. 514 [92 S.Ct. 2182]), which the United States Supreme Court developed to consider claimed constitutional violations of the right to a speedy trial.

In Barker v. Wingo, supra, 407 U.S. 514, the United States Supreme Court had specified four factors to be considered in determining whether a defendant's right to a speedy trial under the Sixth Amendment had been violated: (1) length of the delay; (2) reason for the delay; (3) the defendant's assertion of the right; and (4) prejudice to the defendant. (Id. at p. 530.) The court observed in Barker that this test would necessarily be applied on an ad hoc basis (ibid.) and none of the four factors should be regarded "as either a necessary or sufficient condition to the finding of a deprivation of the right of speedy trial." (Id. at p. 533.)

Although the constitutional right to a speedy trial applies only to criminal prosecutions,[6] the United States Supreme Court in U.S. v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency (1983) 461 U.S. 555 [103 S.Ct. 2005] considered whether the four-factor balancing test developed in Barker was the appropriate analysis to use in evaluating claims that delay in filing civil forfeiture proceedings violated the constitutional guarantee of due process. (Id. at p. 556.) In that case, the government had delayed 18 months in filing a civil proceeding for forfeiture of the currency seized by United States Customs officials as the claimant had passed through airport customs. (Ibid.) The Supreme Court rejected the assertion that the due process standard applied in U.S. v. Lovasco (1977) 431 U.S. 783 [97 S.Ct. 2044], a criminal case involving pre-indictment delay, was the appropriate standard.

The court reasoned: "[T]he Government urges that the standard for assessing the timeliness of the suit be the same as that employed for due process challenges to delay in instituting criminal prosecutions. As articulated in United States v. Lovasco, 431 U.S. 783, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977), such claims can prevail only upon a showing that the Government delayed seeking an indictment in a deliberate attempt to gain an unfair tactical advantage over the defendant or in reckless disregard of its probable prejudicial impact upon the defendant's ability to defend against the charges. The Government argues that in the absence of unfair conduct of this sort, the timeliness of the suit is controlled only by the applicable statute of limitations. Here, Congress has required the Government to institute forfeiture proceedings within five years. 19 U.S.C. 1621. [] We reject the Government's suggestion that Lovasco provides the appropriate test for determining whether the delay violates the due process command. Lovasco recognized that the interests of the suspect and society are better served if, absent bad faith or extreme prejudice to the defendant, the prosecutor is allowed sufficient time to weigh and sift evidence to ensure an indictment is well-founded. While the value of allowing the Government time to pursue its investigation applies to the civil forfeiture situation as well as the criminal proceeding, a major distinction exists. A suspect who has not been indicted retains his liberty; a claimant whose property has been seized, however, has been entirely deprived of the use of the property." (U.S. v. Eight Thousand Eight Hundred and Fifty Dollars ($8,850) in U.S. Currency, supra, 461 U.S. at pp. 563-564.)

The court went on: "A more apt analogy is to a defendant's right to a speedy trial once an indictment or other formal process has issued. In that situation, the defendant no longer retains his complete liberty. Even if he is allowed to post bail, his liberty is subject to the conditions required by his bail agreement." (Id. at p. 564.) The court believed that the due process claim challenging "the length of time between the seizure and the initiation of the forfeiture trial" "mirror[ed] the concern of undue delay encompassed in the right to a speedy trial." (Ibid.) It concluded that "[t]he Barker balancing inquiry provides an appropriate framework for determining whether the delay here violated the due process right to be heard at a meaningful time." (Ibid.)

The court observed: "The deprivation in Barker-loss of liberty-may well be more grievous than the deprivation of one's use of property at issue here. Thus, the balance of the interests, which depends so heavily on the context of the particular situation, may differ from a situation involving the right to a speedy trial." (Id. at p. 565, fn. 14.) It stated: "The flexible approach of Barker, which 'necessarily compels courts to approach speedy trial cases on an ad hoc basis,' 407 U.S., at 530, 92 S.Ct., at 2192, is thus an appropriate inquiry for determining whether the flexible requirements of due process have been met. As we stressed in Barker, none of these factors is a necessary or sufficient condition for finding unreasonable delay. Rather, these elements are guides in balancing the interests of the claimant and the Government to assess whether the basic due process requirement of fairness has been satisfied in a particular case." (Id. at pp. 564-565.) After applying the factors to the circumstances of that case, the court concluded that that the post-seizure delay of 18 months, although "a substantial period of time," did not violate due process (id. at pp. 569-570) and implicitly had not "become so prolonged that the dispossessed property owner ha[d] been deprived of a meaningful hearing at a meaningful time" (id. at p. 563).

Likewise in this SVPA case, the Barker balancing test provides the "appropriate framework" for determining whether the delays in trying the recommitment petition brought against appellant violated his rights of due process. Its analysis is in keeping with the understanding that "due process is flexible and calls for such procedural protections as the particular situation demands." (Morrissey v. Brewer (1972) 408 U.S. 471, 481 [92 S.Ct. 2593].)

We now take a closer look at Barker. In that case, the Supreme Court explained that the length of the delay was in effect a trigger mechanism and "[u]ntil there is some delay which is presumptively prejudicial there is no necessity for inquiry into the other factors that go into the balance." (Barker v. Wingo, supra, 407 U.S. at p. 530.) Once the delay is determined to be "presumptively prejudicial," a determination that depends upon "upon the peculiar circumstances of the case" (id. at pp. 530-531), the length of the delay becomes one of the relevant factors to be assessed. (Id. at pp. 530, 533.)

As to the reasons for the delay, the court in Barker stated that "different weights should be assigned to different reasons." (Id. at p. 531.) "[A] valid reason, such as a missing witness, should serve to justify appropriate delay." (Ibid.) On the other hand, [a] deliberate attempt to delay the trial in order to hamper the defense should be weighted heavily against the government." (Ibid., fn. omitted.) "A more neutral reason such as negligence or overcrowded courts should be weighted less heavily but nevertheless should be considered since the ultimate responsibility for such circumstances must rest with the government rather than with the defendant." (Ibid.)

The third factor, defendant's assertion or failure to assert his right to a speedy trial, allows "a court to weigh the frequency and force of the objections as opposed to attaching significant weight to a purely pro forma objection." (Id. at p. 529.) "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." (Id. at p. 531-532.) The court emphasized that "failure to assert the right will make it difficult for a defendant to prove that he was denied a speedy trial." (Id. at p. 532.) The court nevertheless rejected a demand-waiver rule. (Id. at pp. 527-529.) It stated: "A defendant has no duty to bring himself to trial; the State has that duty as well as the duty of insuring that the trial is consistent with due process. Moreover, . . . society has a particular interest in bringing swift prosecutions, and society's representatives are the ones who should protect that interest." (Id. at p. 527, fns. omitted.) The Barker test "places the primary burden on the courts and the prosecutors to assure that cases are brought to trial." (Id. at p. 529.)

As to the last factor, prejudice to the defendant, the court stated: "Prejudice, of course, should be assessed in the light of the interests of defendants which the speedy trial right was designed to protect. This Court has identified three such interests: (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. Of these, the most serious is the last, because the inability of a defendant adequately to prepare his case skews the fairness of the entire system. If witnesses die or disappear during a delay, the prejudice is obvious. There is also prejudice if defense witnesses are unable to recall accurately events of the distant past. Loss of memory, however, is not always reflected in the record because what has been forgotten can rarely be shown." (Id. at p. 532, fn. omitted.)

The court discussed the serious consequences of lengthy pretrial incarceration for an accused: "The time spent in jail awaiting trial has a detrimental impact on the individual. It often means loss of a job; it disrupts family life; and it enforces idleness. Most jails offer little or no recreational or rehabilitative programs. The time spent in jail is simply dead time. Moreover, if a defendant is locked up, he is hindered in his ability to gather evidence, contact witnesses, or otherwise prepare his defense. Imposing those consequences on anyone who has not yet been convicted is serious. It is especially unfortunate to impose them on those persons who are ultimately found to be innocent. Finally, even if an accused is not incarcerated prior to trial, he is still disadvantaged by restraints on his liberty and by living under a cloud of anxiety, suspicion, and often hostility." (Id. at pp. 532-533, fns. omitted.)

In Barker, the Supreme Court cautioned that the four factors are related and "must be considered together with such other circumstances as may be relevant." (Id. at p. 533.) The test requires court to "engage in a difficult and sensitive balancing process." (Ibid., fn. omitted.) In that case, although the court recognized the well over five-year delay between arrest and trial was extraordinary and largely unexcused, it held that Barker was not deprived of his right to a speedy trial because the other two factors outweighed the delay factors. (Id. at pp. 534-536.) The prejudice was minimal in that there was "no claim that any of Barker's witnesses died or otherwise became unavailable owing to the delay" and the "very minor lapses of memory" "were in no way significant to the outcome." (Id. at p. 534.) In addition, Barker took no serious action to assert his speedy trial right for years, at which point, the delays were justified by the illness of the ex-sheriff who was in charge of the investigation. (Id. at pp. 534-536.)

In Doggett v. U.S. (1992) 505 U.S. 647 [112 S.Ct. 2686], the United States Supreme Court considered whether an eight-and-a-half-year delay between a criminal defendant's indictment and arrest violated his Sixth Amendment right to a speedy trial. (Id. at p. 648.) Applying the Barker criteria, the court held that the delay did violate the defendant's constitutional right to a speedy trial. (Id. at pp. 648, 651-658.)

The Supreme Court in Doggett reiterated that " 'presumptive prejudice' does not necessarily indicate a statistical probability of prejudice; it simply marks the point at which courts deem the delay unreasonable enough to trigger the Barker enquiry. [Citation.]" (Id. at p. 652, fn. 1.) It also observed that "[d]epending on the nature of the charges, the lower courts have generally found postaccusation delay 'presumptively prejudicial' at least as it approaches one year. [Citations.]" (Ibid.) Once a defendant has made a showing of "presumptive prejudice," "the court must then consider, as one factor among several, the extent to which the delay stretches beyond the bare minimum needed to trigger judicial examination of the claim. See id., at 533-534, 92 S.Ct., at 2193-2194." (Id. at p. 652.) "This latter enquiry is significant to the speedy trial analysis because, as we discuss below, the presumption that pretrial delay has prejudiced the accused intensifies over time." (Ibid.)

The Supreme Court found no basis for rejecting the trial court determinations, which it viewed with "considerable deference," that the government had acted negligently in causing delay. (Id. at p. 652.) It observed: "For six years, the Government's investigators made no serious effort to test their progressively more questionable assumption that Doggett was living abroad, and, had they done so, they could have found him within minutes." (Id. at pp. 652-653.) It recognized that the government "can hardly complain too loudly, for persistent neglect in concluding a criminal prosecution indicates an uncommonly feeble interest in bringing an accused to justice; the more weight the Government attaches to securing a conviction, the harder it will try to get it." (Id. at p. 657.)

The court refused to weigh against defendant his failure to invoke his speedy trial right before his arrest. (Id. at p. 654.) The government had conceded that it had no information that the defendant was aware of the indictment prior to his arrest that occurred eight and a half years after his indictment and the evidence adduced at the hearing on his speedy trial claim did not show otherwise. (Id. at pp. 650, 653-654.)

As to the defendant "com[ing] up short" in his effort to affirmatively show that "the delay weakened his ability to raise specific defenses, elicit specific testimony, or produce specific items of evidence" (id. at p. 655), the Supreme Court stated: "Barker explicitly recognized that impairment of one's defense is the most difficult form of speedy trial prejudice to prove because time's erosion of exculpatory evidence and testimony 'can rarely be shown.' 407 U.S., at 532, 92 S.Ct., at 2193. And though time can tilt the case against either side, see id., at 521, 92 S.Ct., at 2187; Loud Hawk, supra, 474 U.S., at 315, 106 S.Ct., at 656, one cannot generally be sure which of them it has prejudiced more severely. Thus, we generally have to recognize that excessive delay presumptively compromises the reliability of a trial in ways that neither party can prove or, for that matter, identify. While such presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria, see Loud Hawk, supra, at 315, 106 S.Ct., at 656, it is part of the mix of relevant facts, and its importance increases with the length of delay." (Id. at pp. 655-656.)

The court took the view that "[w]hile not compelling relief in every case where bad-faith delay would make relief virtually automatic, neither is negligence automatically tolerable simply because the accused cannot demonstrate exactly how it has prejudiced him." (Id. at p. 657.) It stated: "Although negligence is obviously to be weighed more lightly than a deliberate intent to harm the accused's defense, it still falls on the wrong side of the divide between acceptable and unacceptable reasons for delaying a criminal prosecution once it has begun. And such is the nature of the prejudice presumed that the weight we assign to official negligence compounds over time as the presumption of evidentiary prejudice grows. Thus, our toleration of such negligence varies inversely with its protractedness, cf. Arizona v. Youngblood, 488 U.S. 51, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988), and its consequent threat to the fairness of the accused's trial. Condoning prolonged and unjustifiable delays in prosecution would both penalize many defendants for the state's fault and simply encourage the government to gamble with the interests of criminal suspects assigned a low prosecutorial priority." (Ibid.)

The court in Doggett agreed that "[t]o be sure, to warrant granting relief, negligence unaccompanied by particularized trial prejudice must have lasted longer than negligence demonstrably causing such prejudice." (Id. at p. 657.) As to that particular case, it concluded: "When the Government's negligence thus causes delay six times as long as that generally sufficient to trigger judicial review, . . . and when the presumption of prejudice, albeit unspecified, is neither extenuated, as by the defendant's acquiescence, e.g., 407 U.S., at 534-536, 92 S.Ct., at 2194-2195, nor persuasively rebutted, the defendant is entitled to relief." (Id. at p. 658, fns. omitted.)

We now turn to this case. By omitting various periods of time, the People reckon the delay to be much shorter than the chronological interval between the filing of the petition and appellant's motion to dismiss or the subsequent trial. For example, they argue, apparently invoking our decision in Litmon v. Superior Court, supra, 123 Cal.App.4th 156, that the remedy for delay is an order directing the matter proceed to trial immediately and "[a]ppellant obtained such an order in this case, thereby curing any preceding unreasonable delay." They also suggest that any delay prior to February 2004, when the matter was placed on the master trial calendar indirectly in response to appellant's motion for a jury trial, was irrelevant because appellant had not demanded a trial previously.

We do not parse the time in calculating the length of delay, factor one. The reasons for the delay and the force and frequency of a defendant's demands for a speedy trial are circumstances taken into consideration in evaluating the second and third factors, not the first factor. In our view, the lengthy delay between the filing of the first recommitment petition on April 24, 2002 and appellant's motion to dismiss the petition in July 2005, a delay exceeding the length of the two-year commitment sought and a delay that continued after the period of potential commitment had expired in May 2004, certainly creates a presumption of prejudice triggering a Barker type of inquiry. This conclusion does not itself demonstrate a due process violation in this case.

The reasons for the extended delay in this case are complicated as indicated by the procedural history. However, there is nothing in the record before us demonstrating that the prosecution intentionally caused any part of the delay for the purpose of prejudicing the defense or otherwise harming appellant. Some of the delays were caused by appellant's own motions and his pursuit of judicial review of various trial court rulings and cannot be attributed to the prosecution.

In fact, in discussing the prosecutorial causes of delay, appellant points to only three actions by the People. He first claims that the People objected to his December 19, 2003 motion for jury trial. The record before us shows that, at the hearing on the motion, the People presented no argument and submitted the matter. The court denied the motion but promptly placed it on the master trial to be assigned out. Appellant confirmed that he did not want the trial set until the reporter had prepared the transcript of the probable cause hearing and he had received it and requested trial to be set for the week of February 23, 2004. The court then set the matter for trial on the master trial calendar on February 23, 2004. No unjustified governmental delay occurred at this point.

Appellant next points to the prosecution's successful motion to consolidate the first and second recommitment petitions, which ultimately resulted in a long stay of trial court proceedings while appellant sought writ relief from this court. There is no evidence that, in seeking or ordering consolidation, the prosecution or the trial court, or this court for that matter, acted for the purpose of delay or to prejudice appellant's defense. As we recognized in our opinion granting writ relief, "[t]he question whether serial SVP petitions for re-commitment may be consolidated for trial [was] one of first impression . . . ." (Litmon v. Superior Court, supra, 123 Cal.App.4th at p. 1166.) Our holding in that case delineated the scope of trial courts' authority to consolidate recommitment petitions under the SVPA. (Id. at pp. 1176-1177.) Although the trial court proceedings were suspended for months as a result of judicial review and the trial court was ultimately required to vacate its consolidation order, appellant has not shown that the reasons for this delay were not legitimate. As such, it cannot be weighed against the government as would be "[a] deliberate attempt to delay trial in order to hamper the defense . . ." (Barker v. Wingo, supra, 407 U.S. at p. 531) or governmental neglect (cf. Doggett v. U.S., supra, 505 U.S. at pp. 562-563).

The third governmental action attacked by appellant is the People's "belated" concession involving appellant's challenge under Code of Civil Procedure section 170.6, which he claims "caused additional delay." Our review of the proceedings on April 6, 2005 does not reveal that the attorney representing the People expressed any opposition to appellant's challenge. In fact, the attorney representing the People informed the court that "no 170.6 ha[d] ever been exercised on that [2002] petition" and the court took the matter under submission. Appellant filed his petition for writ of mandate on April 25, 2005 and the People then timely filed their letter brief conceding the correctness of the petition (Litmon v. Superior Court, H028725). After the time had elapsed for filing a reply brief, this court issued a peremptory writ of mandate (Litmon v. Superior Court, H028725). The record does not show that the People's concession was tardy or that any material delay resulted from the timing of that concession. Furthermore, as noted above, our temporary stay did not block further proceedings.

We agree that the delay directly attributable to appellant's efforts to obtain relief from a reviewing court should not be weighed against the government. The United States Supreme Court has concluded that the delays from a defendant's "interlocutory appeals" "ordinarily will not weigh in favor of a defendant's speedy trial claims." (U.S. v. Loud Hawk (1986) 474 U.S. 302, 316 [106 S.Ct. 648].) The court explained: "A defendant with a meritorious appeal would bear the heavy burden of showing an unreasonable delay caused by the prosecution in that appeal, or a wholly unjustifiable delay by the appellate court. A defendant who resorts to an interlocutory appeal normally should not be able upon return to the district court to reap the reward of dismissal for failure to receive a speedy trial." (Ibid.) " 'Having sought the aid of the judicial process and realizing the deliberateness that a court employs in reaching a decision, the defendants are not now able to criticize the very process which they so frequently called upon.' [Citation.]" (Id. at pp. 316-317.) The same reasoning applies to any delay resulting from appellant's pre-trial motions and his efforts to obtain relief in this court.

As to the third factor of asserting a due process right to a speedy SVP trial, appellant's December 2003 motion seeking to commence trial within 60 days of the probable cause hearing, his demand for an immediate jury trial in March 2004, and his various motions to dismiss certainly weigh in favor of his due process claim. On the other hand, he actively brought numerous motions and sought relief in his own behalf, which caused some delay. As recognized by the United States Supreme Court, "[d]elay is not an uncommon defense tactic." (Barker v. Wingo, supra, 407 U.S. at p. 521, fn. omitted.) Only the day before seeking a dismissal on May 6, 2005, he had unsuccessfully sought a continuance of the trial, which was then set for May 16, 2005. Defendants' assertions of the right to a speedy trial "must be viewed in the light of [their] other conduct." (U.S. v. Loud Hawk, supra, 474 U.S. at p. 314.) The same is true for a procedural due process claim predicated upon pretrial delay in SVP proceedings.

In regard to actual prejudice, appellant does not assert that "the delay weakened his ability to raise specific defenses, elicit specific testimony, or produce specific items of evidence" at trial. (Doggett v. U.S., supra, 505 U.S. at p. 655.) Rather than claiming impairment of his ability to defend against the first recommitment petition, appellant asserts that the actual prejudice consists of being held in custody for almost 40 months (May 2, 2002 to August 29, 2005) before commencement of trial on that petition. He also maintains that the extent of the delay justifies a presumption of prejudice. Appellant overlooks the rule that "presumptive prejudice" alone does not establish a constitutional violation (cf. Barker v. Wingo, supra, 407 U.S. at p. 533 [four factors "must be considered together"]; Doggett v. U.S., supra, 505 U.S. at p. 652 [unreasonable delay "one factor among several"]) but instead merely triggers a balancing test. (Cf. Doggett v. U.S., supra, 505 U.S. at p. 652, fn. 1.) In addition, over 21 months elapsed after his previous commitment expired but before February 23, 2004, the date when the trial should have taken place according to appellant's motion to dismiss.

We are well aware that, in addition to prejudice to a defense, the interests at stake include avoiding oppressive pretrial incarceration and minimizing a defendant's anxiety and concern. (See Barker v. Wingo, supra, 407 U.S. at p. 532.) Litmon's involuntary confinement continued and the entire two-year period of potential recommitment came and went while he awaited his SVP trial on the first recommitment petition. We find this profoundly troubling.

It is undisputed that at stake for appellant was "the most elemental of liberty interests-the interest in being free from physical detention by one's own government. Foucha v. Louisiana, 504 U.S. 71, 80, 112 S.Ct. 1780, 118 L.Ed.2d 437 (1992) ('Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action') . . . ." (Hamdi v. Rumsfeld, supra, 542 U.S. at pp. 529-530; see Zadvydas v. Davis (2001) 533 U.S. 678, 690 [121 S.Ct. 2491] ["Freedom from imprisonment-from government custody, detention, or other forms of physical restraint-lies at the heart of the liberty that Clause protects"].) "[F]or the ordinary citizen, commitment to a mental hospital produces 'a massive curtailment of liberty,' Humphrey v. Cady, 405 U.S. 504, 509, 92 S.Ct. 1048, 1052, 31 L.Ed.2d 394 (1972), and in consequence 'requires due process protection.' Addington v. Texas, 441 U.S. 418, 425, 99 S.Ct. 1804, 1809, 60 L.Ed.2d 323 (1979); O'Connor v. Donaldson, 422 U.S. 563, 580, 95 S.Ct. 2486, 2496, 45 L.Ed.2d 396 (1975) (BURGER, C. J., concurring). The loss of liberty produced by an involuntary commitment is more than a loss of freedom from confinement. It is indisputable that commitment to a mental hospital 'can engender adverse social consequences to the individual' and that '[w]hether we label this phenomena "stigma" or choose to call it something else . . . we recognize that it can occur and that it can have a very significant impact on the individual.' Addington v. Texas, supra, at 425-426, 99 S.Ct., at 1809. See also Parham v. J. R., 442 U.S. 584, 600, 99 S.Ct. 2493, 2503, 61 L.Ed.2d 101 (1979)." (Vitek v. Jones (1980) 445 U.S. 480, 491-492 [100 S.Ct. 1254].)

Uppermost in our minds is that "[t]he fundamental requirement of due process is the opportunity to be heard 'at a meaningful time and in a meaningful manner.' [Citations.]" (Mathews v. Eldridge (1976) 424 U.S. 319, 333 [96 S.Ct. 893].) The opportunity to be heard is ordinarily required before deprivation of a protected interest. (See Zinermon v. Burch (1990) 494 U.S. 113, 127 [110 S.Ct. 975] [the United States Supreme Court "usually has held that the Constitution requires some kind of a hearing before the State deprives a person of liberty or property"]; Hughes v. Rowe (1980) 449 U.S. 5, 9, 11 [101 S.Ct. 173] (per curiam) ["[s]egregation of a prisoner without a prior hearing may violate due process if the postponement of procedural protections is not justified by apprehended emergency conditions"]; Board of Regents of State Colleges v. Roth (1972) 408 U.S. 564, 570, fn. 7 [92 S.Ct. 2701] ["Before a person is deprived of a protected interest, he must be afforded opportunity for some kind of a hearing, 'except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event' "]; see also U.S. v. James Daniel Good Real Property (1993) 510 U.S. 43, 62 [114 S.Ct. 492] ["Unless exigent circumstances are present, the Due Process Clause requires the Government to afford notice and a meaningful opportunity to be heard before seizing real property subject to civil forfeiture"]; Barry v. Barchi (1979) 443 U.S. 55, 74 [99 S.Ct. 2642] conc. opn. of Brennan, J. ["To be meaningful, an opportunity for a full hearing and determination must be afforded at least at a time when the potentially irreparable and substantial harm caused by a [license] suspension can still be avoided- i.e., either before or immediately after suspension"]; Fuentes v. Shevin (1972) 407 U.S. 67, 81-82 [92 S.Ct. 1983] ["If the right to notice and a hearing is to serve its full purpose, then, it is clear that it must be granted at a time when the deprivation can still be prevented" and "the Court has traditionally insisted that, whatever its form, opportunity for that hearing must be provided before the deprivation at issue takes effect"]; Boddie v. Connecticut (1971) 401 U.S. 371, 379, fns. omitted [91 S.Ct. 780] [a "root requirement" of due process is that "an individual be given an opportunity for a hearing before he is deprived of any significant property interest, except for extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event"].) Even where a post-deprivation hearing may satisfy due process requirements, the court has recognized that, at some point, delay of that hearing becomes a constitutional violation. (See Cleveland Bd. of Educ. v. Loudermill (1985) 470 U.S. 532, 547 [105 S.Ct. 1487] [a tenured public employee's pre-termination "opportunity to respond" must be followed by a full post-termination hearing to satisfy due process]; Barry v. Barchi, supra, 443 U.S. at pp. 64, 66 [summary suspension of harness racing trainer's license was "constitutionally infirm under the Due Process Clause of the Fourteenth Amendment" because statute as applied did not assure "a prompt postsuspension hearing, one that would proceed and be concluded without appreciable delay"].)

Unlike criminal prosecutions where a defendant may have an opportunity for pretrial release,[7] a person alleged to be an SPV in a recommitment petition is never released pending trial. Although a finding of probable cause offers some protection against an erroneous deprivation of liberty, it is not equivalent to adjudication that a person is an SVP beyond a reasonable doubt. (See former  6604 [Stats. 2000, ch. 420,  3, p. 2542]; Cooley v. Superior Court, supra, 29 Cal.4th at p. 252 [probable cause determination "entails a decision whether a reasonable person could entertain a strong suspicion that the offender is an SVP"].) Serious questions of due process arise whenever a trial on an SVP recommitment petition is not completed prior to expiration of the previously adjudicated term of commitment and a deprivation of personal liberty occurs without a determination that that person confined currently meets the definition of an SVP.[8] (Cf. Foucha v. Louisiana (1992) 504 U.S. 71, 72 [112 S.Ct. 1780] [involuntarily keeping insanity acquittee entitled to release "in a mental institution is improper absent a determination in civil commitment proceedings of current mental illness and dangerousness"].) In view of the fundamental liberty interest involved, the norm to comport with the demands of procedural due process must be a trial in advance of the commitment term at issue.

In rejecting appellant's motion to dismiss, both the People and the trial court relied upon this court's opinion in Litmon v. Superior Court, supra, 123 Cal.App.4th 1156, in which we discussed extensively the problem of delay in SVP proceedings. We said in that case: "We cannot undo the delay that has already occurred. On remand, the sole remedy that we can afford these petitioners is to direct the trial court to immediately schedule trials on the earlier petitions and to deny any motions to consolidate the earlier and later petitions unless the SVPs agree to consolidation." (Id. at p. 1177.) Our comments were, of course in respon