People v. Allen, B288740

CourtCalifornia Court of Appeals
Writing for the CourtEDMON, P.J.
Docket NumberB288740
PartiesTHE PEOPLE, Plaintiff and Respondent, v. GEORGE ALLEN, Defendant and Appellant.
Decision Date27 January 2021

THE PEOPLE, Plaintiff and Respondent,
GEORGE ALLEN, Defendant and Appellant.



January 27, 2021


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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

(Los Angeles County Super. Ct. No. ZM006764)

APPEAL from an order of the Superior Court of Los Angeles County, Thomas Rubinson, Judge. Affirmed.

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

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney General, Susan Sullivan Pithey, Assistant Attorney General, Jason Tran and Shezad H. Thakor, Deputy Attorneys General, for Plaintiff and Respondent.


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Defendant and appellant George Allen appeals from a commitment order classifying him as a sexually violent predator and committing him to the State Department of Hospitals, pursuant to Welfare and Institutions Code section 6600 et seq., for a period of two years. Allen contends that delays in bringing his case to trial violated his speedy trial and due process rights, and that the trial court erroneously excluded relevant expert testimony. We discern no violation of Allen's constitutional rights and no reversible error, and therefore affirm the court's order.


1. The SVPA

The Sexually Violent Predator Act (SVPA) "allows for the involuntary commitment of certain convicted sex offenders, whose diagnosed mental disorders make them likely to reoffend if released at the end of their prison terms." (Cooley v. Superior Court (2002) 29 Cal.4th 228, 235.) A sexually violent predator (SVP) is "a person who has been convicted of a sexually violent offense against one or more victims and who has a diagnosed mental disorder that makes the person a danger to the health and safety of others in that it is likely that he or she will engage in sexually violent criminal behavior." (Welf. & Inst. Code,1 § 6600, subd. (a)(1).) A person who is declared an SVP is committed to the State Department of State Hospitals (SDSH) for treatment. (§ 6604.) The SVPA is "not punitive in purpose or effect," and a commitment proceeding under the SVPA is a " 'special proceeding of a civil nature.' " (People v. Yartz (2005) 37 Cal.4th 529, 535, 536; Stats. 1995, ch. 763, § 1.)

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2. Allen's underlying criminal and sexual offenses

In 1983, Allen pled guilty to two counts of forcible rape (Pen. Code, § 261, former subd. (2)), one count of kidnapping (Pen. Code, § 207), and one count of unlawful sexual intercourse (Pen. Code, § 261.5). The charges involved female victims ranging from 11 to 15 years old. Allen was sentenced to a term of 11 years six months in state prison.

In 1995, Allen pled guilty to two counts of forcible rape (Pen. Code, § 261, subd. (a)(2)). The victim in both counts was his stepdaughter. Allen had sex with the victim over 100 times, beginning when she was 12 years old. The trial court sentenced Allen to a term of 17 years in prison.

3. August 2003 SVPA commitment petition

On August 27, 2003, prior to Allen's prison release date, the Los Angeles County District Attorney filed a petition to commit him as an SVP. It alleged that Allen had been previously convicted of four counts of forcible rape, a sexually violent offense within the meaning of section 6600, subdivisions (b) and (e). The petition, supported by evaluations from two psychologists, further alleged that Allen had a diagnosed mental disorder that made him likely to engage in acts of predatory sexual violence within the meaning of section 6600, subdivisions (c) through (e).

On September 4, 2003, the trial court found probable cause to believe that Allen was an SVP. It ordered him transported to Atascadero State Hospital pending further trial proceedings.

4. Pre-trial continuances between September 2003 and October 2006

Thereafter, numerous continuances ensued. Between September 2003 and October 2006, Allen's attorney, Deputy Public Defender Jeffrey Wong, requested eight continuances; counsel

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stipulated to three others.2 At the October 24, 2006 hearing, defense counsel requested a pretrial hearing date of January 23, 2007.

5. 2006 legislation and stipulation

On September 20, 2006, the Governor signed into law Senate Bill No. 1128 (2005-2006 Reg. Sess.), a piece of urgency legislation that, among other things, amended section 6604 to lengthen the term of an SVP commitment from two years to an indeterminate period. (See People v. Castillo (2010) 49 Cal.4th 145, 150.) At the November 2006 general election, the voters of California adopted Proposition 83 (known as Jessica's Law), which enacted the same changes. (People v. Castillo, at pp. 150, 152.)3

On October 11, 2006, the Los Angeles County District Attorney, the Los Angeles County Public Defender, and the Presiding Judge of the Los Angeles County Superior Court entered into a stipulation agreeing that, due to uncertainty regarding

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retroactive application of the new law, the district attorney would continue to seek two-year commitments for those persons whose commitment petitions had been filed before the amended law went into effect. The stipulation stated that a copy of the agreement would be filed in every SVP case in which a petition was pending prior to the effective date of the legislation or the initiative, and it was filed in Allen's case on October 31, 2006.

6. Continuances between January 2007 and April 2010

On January 23, 2007, Allen's attorney was replaced with Deputy Public Defender Alvin Thomas.4 Thomas requested time to review the case file and, pursuant to the stipulation of counsel, the matter was continued. At the next appearance, on May 9, 2007, the district attorney informed the court that the most recent evaluations of Allen had resulted in a split of opinion; thus, two more evaluators had to be appointed.5 The matter was continued by stipulation of the parties.

Over the next year, the parties stipulated to further continuances as available evaluators were located and appointed, and examinations of Allen were conducted. On April 22, 2008, the district attorney reported that the new reports were ready and complete. After the district attorney's announcement, another round of continuances ensued as defense counsel requested time to review the new evaluations and sought out new defense experts and further re-evaluations of Allen.

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On April 8, 2010, defense counsel informed the court that he had received updated evaluations from his experts, but Allen was requesting another probable cause hearing pursuant to In re Ronje (2009) 179 Cal.App.4th 509 (Ronje).6 Defense counsel intended to visit Allen the following week to discuss the matter with him.

7. April 2010-May 2011: Allen executes a speedy trial waiver and asserts his right to fresh evaluations and a new probable cause hearing

On April 12, 2010, Allen executed a written waiver of his speedy trial rights. The waiver stated that he understood he had a due process right to a speedy trial under the state and federal constitutions and People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon), but that he did not wish to exercise this right and wanted his trial delayed. Allen stated he would notify the court and/or his attorney when he desired a trial. In his waiver, Allen further acknowledged that several areas of SVPA law were unsettled, and any delay in proceeding to trial could either benefit or disadvantage him, depending on the outcome of developing case law.

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After Allen executed the waiver, his public defender asserted Allen's right to fresh evaluations and a new probable cause hearing under Ronje. The trial court granted Allen's motion. After new evaluations and further continuances, the court held another probable cause hearing in May 2011. Following the testimony of two expert witnesses, the trial court again found probable cause to believe that Allen met the SVP criteria.

8. Pretrial continuances between May 2011 and January 2018 with no assertion of speedy trial rights

Over the next six and one half-years, Allen did not assert his speedy trial rights as additional continuances ensued for a variety of reasons, including changes in representation and new counsel's need for case familiarization, updated expert evaluations7 and opposing party reviews, and exploration of the possibility of a court trial with accommodation of Allen's request to appear by video. The vast majority of continuances were requested by defense counsel, while the remaining proceeded by stipulation of the parties.

In April 2016, Allen's fourth public defender declared a conflict and the trial court appointed bar panel attorney Arlene Binder to represent him. After further continuances necessitated by updated evaluations, witness availability, and scheduling conflicts, a trial date was set for February 5, 2018.

9. Allen's motion to dismiss

On January 29, 2018, just a week before trial was set to begin, Allen's attorney filed a motion to dismiss the petition on the ground the delays in prosecution had violated his due process right

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to a timely trial.8 Fearing further delays, the trial court elected to hear the motion after the trial concluded. The court noted that testimony would be required in order for it to address the motion to dismiss. It pointed out that one of Allen's former attorneys had become a judge, located in the same building, and the court was not comfortable judging his credibility. The court therefore intended to treat the issue as preserved and assign it to another judge after trial.9

10. Jury trial, commitment order, and notice of appeal

Jury trial commenced on February 5, 2018. Two forensic...

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