Litmon v. Superior Court, No. H027346.

CourtCalifornia Court of Appeals
Writing for the CourtMcAdams
Citation21 Cal.Rptr.3d 21,123 Cal.App.4th 1156
PartiesDavid LITMON, Jr., Petitioner, v. The SUPERIOR COURT of Santa Clara County, Respondent, The People, Real Party in Interest. Joseph Johnson, Jr., Petitioner, v. The Superior Court of Santa Clara County, Respondent, The People, Real Party in Interest.
Docket NumberNo. H027346.,No. H027353.
Decision Date04 November 2004
21 Cal.Rptr.3d 21
123 Cal.App.4th 1156
David LITMON, Jr., Petitioner,
v.
The SUPERIOR COURT of Santa Clara County, Respondent,
The People, Real Party in Interest.
Joseph Johnson, Jr., Petitioner,
v.
The Superior Court of Santa Clara County, Respondent,
The People, Real Party in Interest.
No. H027346.
No. H027353.
Court of Appeal, Sixth District.
November 4, 2004.
Review Denied January 26, 2005.*

[21 Cal.Rptr.3d 23]

Francis R. Cole, for Petitioner David Litmon, Jr.

Jose R. Villarreal, Public Defender, Brian J. Matthews, Deputy Public Defender, Andrea E. Flint, Deputy Public Defender, for Petitioner Joseph Johnson, Jr.

No appearances for Respondent.

Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Gerald A. Engler, Senior Assistant Attorney General, Laurence K. Sullivan, Supervising Deputy Attorney General, Moona Nandi, Supervising Deputy Attorney General, for Real Party in Interest.

McADAMS, J.


123 Cal.App.4th 1161

Joseph Johnson, Jr. and David Litmon, Jr., each request the issuance of a writ of mandate directing the trial court to vacate its order consolidating for trial two successive recommitment petitions filed pursuant to Welfare and Institutions Code section 6600 et seq.,1 the Sexually Violent Predator Act (SVPA). The question presented is whether the trial court has the power to consolidate such petitions. Although we conclude that the trial court does have the inherent power to consolidate SVPA petitions for trial, we hold that the exercise of that power in the present cases, where trials on the earlier petitions were delayed, over petitioners' objections, solely to accommodate consolidation, constituted error. We therefore will issue peremptory writs of mandate vacating the respondent superior court's orders of consolidation and directing respondent court to calendar the first petition for recommitment in each case for trial forthwith.

123 Cal.App.4th 1162
FACTUAL AND PROCEDURAL BACKGROUND

1. The Johnson Matter

Petitioner Johnson was first committed as a sexually violent predator (SVP) on May 25, 2000.2 On April 25, 2002, the People filed a new petition to extend Johnson's commitment for another two years, until May 24, 2004.3 The probable cause hearing commenced on May 21, 2002. After numerous continuances, the hearing

21 Cal.Rptr.3d 24

concluded on June 27, 2003, with a finding of probable cause. On that day, Johnson demanded a jury trial and, in its order finding probable cause, the court set a trial date of April 5, 2004.

On February 17, 2004, while the first recommitment petition was still pending, the People filed a second recommitment petition to extend Johnson's commitment for another two years, until May of 2006, alleging that Johnson's "current commitment" was due to expire on May 24, 2004, even though no commitment trial had yet been held. On March 5, 2004, the People submitted the matter to the trial court for a finding of probable cause on the basis of one evaluation by Dr. Korpi and two by Dr. Jeko; the doctors' reports were admitted into evidence. At that point, Johnson "agreed to [a] continuance" of the probable cause hearing, apparently to cross-examine the experts. The court continued the case to April 2, 2004, for the People's motion to consolidate trial on the two petitions.

The People filed a written motion to consolidate the first and second petitions on March 8, 2004. On March 18, 2004, the court held a hearing and ruled upon previously filed motions in limine relating to trial on the first petition. It also continued proceedings on the first petition for a further readiness hearing on April 1 and for trial on April 5.

On March 24, 2004, the People filed a supplemental motion to consolidate. On March 29, Johnson's counsel filed a written opposition to the motion to consolidate. On April 2, 2004, over Johnson's objection, the court granted the People's motion to consolidate; vacated the previously set April 5 trial date; set the continuation of the probable cause hearing on the second recommitment petition for April 30 and May 21; and ordered a new trial date of May 24, 2004, the last day of the underlying commitment period. Thereafter, the court granted Johnson's request that the consolidated trial be held on September 1, 2004, instead of May 24.

123 Cal.App.4th 1163

2. The Litmon Matter

Petitioner Litmon was first committed as a sexually violent predator on May 2, 2000.4 His commitment was set to expire on May 2, 2002. On April 24, 2002, the People filed a petition to recommit Litmon for another two years, until May 2004.

The probable cause hearing began on May 2, and concluded on July 19, 2002, with a finding of probable cause. Jury trial on the recommitment petition was set for November 12, 2002. On October 25, however, Litmon filed a Faretta motion. (Faretta v. California (1975) 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562.) It was heard and granted on October 30; the November 12 trial date was vacated and the case was continued to January 10, 2003, for trial setting. Over the next two months, motions were heard. Then, on March 28, 2003, the court vacated the probable cause finding pursuant to Cooley v. Superior Court (2002) 29 Cal.4th 228, 127 Cal.Rptr.2d 177, 57 P.3d 654. New doctors' evaluations were ordered completed by May 9, 2003, and a new probable cause hearing was to be conducted on a date agreeable to the parties. In early April, the People informed the court that one of the original evaluators was no longer on the SVP panel, and a new evaluator was appointed. Then, on July 17, 2003, Litmon's previously appointed expert was killed in a traffic collision. A new expert was appointed on October 1, 2003.

The probable cause hearing was held on July 11, October 9, and October 23, 2003.

21 Cal.Rptr.3d 25

On November 11, 2003, the court found probable cause; Litmon demanded a jury trial; and the court set the trial for August 2, 2004.

On November 23, 2003, Litmon filed a written motion for a jury trial within 60 days. The People opposed the motion. The motion was denied after a hearing on December 19, 2003; however, the court placed the matter on the master trial calendar for February 23, 2004, the date on which Litmon indicated he would be ready.

On February 23, 2004, while the first recommitment petition was still pending, the People filed a second recommitment petition to extend Litmon's commitment for another two years, until May of 2006, alleging that Litmon's "current commitment" was due to expire on May 2, 2004, even though no commitment trial had yet been held. In the meantime, Litmon's case remained on the master trial calendar and was trailed from February 23, to February 25, to February 27, to March 1 and to March 8, 2004.

123 Cal.App.4th 1164

On February 27, 2004, the People filed an in limine motion. That same day, the same deputy who signed the motion wrote a note, which was included in the court file, stating: "Mr. Litmon's commitment expires on May 2, 2004. The probable cause hearing has to start within 10 days of the court's initial review of the evaluations ([] 6601.5), unless time is waived. [¶] Because Mr. Litmon is pending trial on his 2000 petition as an SVP, if the court finds probable cause, the People can make a motion to consolidate. So, the sooner the better for purposes of judicial economy."

Also on February 27, the second petition was transferred to a trial department for a probable cause hearing. Litmon was advised of section 6604 and waived the "statutory time for probable cause hearing." New evaluations submitted by the People, dated December 19, 2003 and January 14, 2004, were marked and admitted into evidence. At this point, Litmon requested a continuance so that he could cross-examine the doctors. Trial on the first petition remained as set on the master trial calendar.

On March 8, 2004, the People filed a written motion to consolidate the two recommitment petitions for trial. On March 12, the probable cause hearing was continued to April 30 and May 21, 2004, for cross-examination of the experts by petitioner. Trial on the first petition was trailed to March 15, at which time the master trial calendar court was also to rule on Litmon's renewed speedy trial motion, and the People's motion to consolidate was continued to April 2, 2004. On March 8, the People filed supplemental points and authorities in support of the motion to consolidate. On March 30, counsel appointed to represent Litmon on the motion to consolidate filed an opposition memorandum.

On April 2, 2004, over Litmon's objection, the trial court ordered consolidation of the two recommitment petitions for trial, maintained the previously set dates of April 30 and May 21, 2004, for the continuation of the probable cause hearing on the second petition, vacated Litmon's April 5 appearance in the master calendar court and set the consolidated trial for May 24, 2004-22 days beyond the expiration of the first recommitment period. At Litmon's request, trial was then continued to June 1, 2004.

On April 23, 2004, Johnson and Litmon filed petitions for writ of mandate challenging the trial court's consolidation orders. On May 19, 2004, we stayed all further proceedings in the trial court, ordered that the two original writ matters be considered together for purposes of issuance of an order to show cause, briefing,

21 Cal.Rptr.3d 26

oral argument and decision, and issued an order to show cause why a peremptory writ should not issue as requested in each case.

123 Cal.App.4th 1165
PETITIONERS' CONTENTIONS

Petitioners' primary contention is that the trial court does not have the inherent power to consolidate recommitment petitions under the SVPA, nor does it have any statutory power to consolidate, because a commitment under the SVPA is a special proceeding civil in nature to which neither Penal Code section 954 nor Code of Civil Procedure sections 1048 or 187 applies, and the SVPA itself does not provide for...

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64 practice notes
  • People v. Landau, G042008
    • United States
    • California Court of Appeals
    • May 22, 2013
    ...set the first recommitment petition for trial forthwith....” ( Id. at p. 173, 11 Cal.Rptr.3d 573.) In Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 21 Cal.Rptr.3d 21 ( Litmon I ), Litmon had been committed as an SVP on May 2, 2000, for a two-year term. ( Id. at p. 1163, 21 Cal.Rptr.......
  • People v. LaBlanc, E059589
    • United States
    • California Court of Appeals
    • July 22, 2015
    ...dangerous because he is likely to engage in sexually violent conduct in the future. (Litmon v. Superior Court (People ) (2004) 123 Cal.App.4th 1156, 1169, 21 Cal.Rptr.3d 21 ; Butler v. Superior Court (People ) (2000) 78 Cal.App.4th 1171, 1180, 93 Cal.Rptr.2d 468 ; People v. Hedge (1999) 72 ......
  • The People v. Castillo, No. S171163.
    • United States
    • United States State Supreme Court (California)
    • May 24, 2010
    ...counsel also brought to the trial court's attention language in a prior case involving her client, Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 21 Cal.Rptr.3d 21, in which the appellate court had suggested that Code of Civil Procedure section 36, subdivision (e), might support the ......
  • People v. Litmon, No. H031348.
    • United States
    • California Court of Appeals
    • April 23, 2008
    ...you call for a jury next week." She brought to the superior court's attention there was language in Litmon v. Superior Court (2004) 123 Cal. App.4th 1156, 21 Cal.Rptr.3d 21 suggesting that Code of Civil Procedure section 36, subdivision (e), be used as a means of expediting SVP trials.3 The......
  • Request a trial to view additional results
64 cases
  • People v. Landau, G042008
    • United States
    • California Court of Appeals
    • May 22, 2013
    ...set the first recommitment petition for trial forthwith....” ( Id. at p. 173, 11 Cal.Rptr.3d 573.) In Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 21 Cal.Rptr.3d 21 ( Litmon I ), Litmon had been committed as an SVP on May 2, 2000, for a two-year term. ( Id. at p. 1163, 21 Cal.Rptr.......
  • People v. LaBlanc, E059589
    • United States
    • California Court of Appeals
    • July 22, 2015
    ...dangerous because he is likely to engage in sexually violent conduct in the future. (Litmon v. Superior Court (People ) (2004) 123 Cal.App.4th 1156, 1169, 21 Cal.Rptr.3d 21 ; Butler v. Superior Court (People ) (2000) 78 Cal.App.4th 1171, 1180, 93 Cal.Rptr.2d 468 ; People v. Hedge (1999) 72 ......
  • The People v. Castillo, No. S171163.
    • United States
    • United States State Supreme Court (California)
    • May 24, 2010
    ...counsel also brought to the trial court's attention language in a prior case involving her client, Litmon v. Superior Court (2004) 123 Cal.App.4th 1156, 21 Cal.Rptr.3d 21, in which the appellate court had suggested that Code of Civil Procedure section 36, subdivision (e), might support the ......
  • People v. Litmon, No. H031348.
    • United States
    • California Court of Appeals
    • April 23, 2008
    ...you call for a jury next week." She brought to the superior court's attention there was language in Litmon v. Superior Court (2004) 123 Cal. App.4th 1156, 21 Cal.Rptr.3d 21 suggesting that Code of Civil Procedure section 36, subdivision (e), be used as a means of expediting SVP trials.3 The......
  • Request a trial to view additional results

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