People v. Litmon, No. H031348.

CourtCalifornia Court of Appeals
Writing for the CourtElla
Decision Date23 April 2008
PartiesThe PEOPLE, Plaintiff and Respondent, v. David LITMON, Jr., Defendant and Appellant.
Docket NumberNo. H031348.
76 Cal.Rptr.3d 122
162 Cal.App.4th 383
The PEOPLE, Plaintiff and Respondent,
v.
David LITMON, Jr., Defendant and Appellant.
No. H031348.
Court of Appeal, Sixth District.
April 23, 2008.

[76 Cal.Rptr.3d 127]

Alfons G. Wagner, in Association with The Sixth District Appellate Program, Under Appointment by the Court of Appeal, for Appellant.

Dolores A. Carr, District Attorney, and James S. Cahan, Deputy District Attorney, for Respondent.

ELLA, J.


On March 15, 2007, without trial, the superior court issued a retroactive order of commitment against David Litmon, Jr. under the new provisions of the Sexually Violent Predator Act (SVPA) (Welf. & Inst.Code, § 6600 et seq.).1 The order committed him to an indeterminate term of commitment as a Sexually Violent Predator (SVP) commencing on May 2, 2000, the date of his original commitment. The previous order of recommitment, which was issued on September 7, 2005, extended his commitment until May 2, 2004 (a date preceding the order of recommitment).2 As a result of the retroactive commitment order, the trial on the pending consolidated petitions to extend appellant's SVP commitment for two successive two-year terms (May 2, 2004 to May 2, 2006 and May 2, 2006 to May 2, 2008), which was scheduled for March 19, 2007, did not go forward.

Appellant now argues that the superior court violated his right to due process under the 14th Amendment to the United States Constitution by denying both his motions to dismiss the consolidated petitions on grounds of excessive delay. He also challenges the retroactive commitment order on a variety of grounds, including constitutional and statutory.

We reverse.

A Procedural History

A petition filed April 24, 2002, sought to extend appellant's involuntary commitment as an SVP for a two year term, running from May 2, 2002 until May 2, 2004. It alleged that appellant had been committed as an SVP on May 2, 2000 and that commitment would expire on May 2, 2002. On November 7, 2003, after a probable cause hearing, the court determined under the first recommitment petition that there was probable cause to believe that appellant was likely to engage in sexually violent predatory criminal behavior upon his release. (§ 6602.)

On February 23, 2004, a second petition to extend appellant's commitment as an

76 Cal.Rptr.3d 128

SVP for a two-year term was filed. It stated that appellant's current commitment would expire on May 2, 2004 and sought an order extending appellant's involuntary commitment from May 2, 2002 to May 2, 2004[sic]. On May 5, 2005, after a probable cause hearing, the court determined under this second recommitment petition that there was probable cause to believe that appellant was likely to engage in sexually violent predatory criminal behavior upon his release. (§ 6602.)

On September 7, 2005, following trial on the first recommitment petition, a jury found appellant to be an SVP. The court ordered appellant recommitted as an SVP for a two year term, running from May 2, 2002 to May 2, 2004. Appellant, who had been representing himself, asked for counsel to be appointed to represent him. The People objected and informed the court that they were ready to immediately proceed to trial on the second recommitment petition. Appellant indicated that he did not have a problem with waiting for trial until February or March. The court stated: "Okay. As long as you understand that, because I don't want there to be an issue.... I don't want you taking a writ to the Sixth District saying you didn't get your trial in a timely fashion...." On September 23, 2005, trial on the second recommitment petition was set for February 21, 2006.

On September 29, 2005, a third petition was filed to extend appellant's involuntary SVP commitment for another two-year term, running from May 2, 2006 until May 2, 2008. On January 9, 2006, after a probable cause hearing and finding of probable cause, the court scheduled a jury trial on the third petition for September 18, 2006.

An amended petition filed on January 27, 2006 corrected the term of recommitment sought by the second recommitment petition. It specified that appellant's "current commitment" "expires on May 2, 2004" and sought an order of recommitment extending appellant's commitment from May 2, 2004 until May 2, 2006.

The People successfully moved to consolidate the 2004-2006 and the 2006-2008 recommitment petitions despite appellant's opposition. On February 21, 2006, the People filed a "consolidated petition" to extend appellant's involuntary commitment as an SVP for two successive two-year periods, from May 2, 2004 to May 2, 2006 and from May 2, 2006 to May 2, 2008.

On February 21, 2006, the court heard the People's motions in limine. The jury selection process began on February 22, 2006. On February 27, 2006, the parties gave their opening statements to the jury. The parties rested on March 7, 2006 and made their closing arguments on March 8, 2006. The jury deadlocked and, on March 10, 2006, the court declared a mistrial.

At a hearing on March 22, 2006, the matter was assigned to Judge Bernal for all purposes.

On April 7, 2006, the court scheduled a hearing on motions in limine for January 4, 2007 and set the trial for January 8, 2007. The court stated on the record that it had examined attorneys' trial calendars and "[t]he first time that both attorneys are available to try this case is January 4[, 2007]." The court commented: "The witnesses are engaged throughout the State of California on these cases as well as other SVPA cases. In order to lock down the witnesses and have date certain the peculiar scheduling of these cases requires that not only this case be taken into consideration but all the other SVPA cases in this county." The court noted that the deputy district attorney then assigned to the case had to try another SVPA case in April because "if it is delayed for any reason then he is put off as much as a year

76 Cal.Rptr.3d 129

in trying to get back on the witness calendaring."

Appellant's counsel told the court that she was ready to try the case "right now" and informed the court that her expert witness was available to testify on April 26, 27, and 28. Appellant's counsel told the court: "[Appellant] does not want a delay in this case at all. He is insistent he wants to go forward at the first possible moment and this is the first possible moment, so I am asking that 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 court responded, "Even a civil case is not something you can always accommodate and there is no prejudice to the defendant in that his recommitment termination is in May 2008." Appellant's counsel reminded the court that two petitions were at stake and one petition expired in 2006. She stated that appellant's position "has always been that he needs to be tried within the time frame of the petition."

The deputy district attorney reiterated the scheduling conflicts and the need for time to update the evaluations. Stating that it was taking "all of that into consideration," the court continued the matter until January 4, 2007.

On August 24, 2006, appellant filed a written motion to dismiss, claiming his rights to due process under the federal and state Constitutions had been violated. In support of his motion, appellant argued that the postponement of the retrial from April 2006 until January 2007 constituted excessive pretrial delay and violated due process because it did not afford him a hearing at a meaningful time. Citing 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, 76 L.Ed.2d 143 and Barker v. Wingo (1972) 407 U.S. 514, 92 S.Ct. 2182, 33 L.Ed.2d 101, appellant claimed a "procedural due process right to a trial within a reasonable time period."

The People filed written opposition. In opposition to the motion, the People argued that there were no speedy trial guarantees under the SVPA and asserted that the trial date was set for the convenience of the parties and mutually agreed upon by them. They quoted from Litmon v. Superior Court, supra, 123 Cal.App.4th 1156, 21 Cal.Rptr.3d 21, which did not involve any procedural due process claim: "Given the absence of statutory time limits, the Courts of Appeal have implied that the only act that could divest the court of subject matter jurisdiction and trigger a dismissal is the People's failure to file a petition for recommitment before the prior commitment expires." (Id. at p. 1171, 21 Cal.Rptr.3d 21.) The People also cited Orozco v. Superior Court (2004) 117 Cal. App.4th 170, 11 Cal.Rptr.3d 573. In Orozco, the court determined that the remedy

76 Cal.Rptr.3d 130

for the pretrial delay in that case, which was attributable to Orozco or his counsel, was "not dismissal but rather, an order directing that the matter proceed to trial forthwith." (Id. at p. 179, 11 Cal. Rptr.3d 573.) The People maintained that the delay in the present case was reasonable, appellant had suffered no resulting prejudice, and the trial should proceed as scheduled.

At the hearingon the motion to dismiss on September 15, 2006, appellant's counsel reminded the court that appellant had adamantly opposed, any postponement of trial and the court; stated that was also its recollection. Nevertheless, the court refused to dismiss, stating that there was no right to a speedy trial in SVPA cases and "the Court does not have the authority to dismiss the case: based upon the premise that you put forth in your motion to dismiss." The court also explained that the attorneys were `'involved and engaged in other trials that are SVPA cases and we can only do so many at a time and therefore this is the next available date...."

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107 practice notes
  • People v. Landau, G042008
    • United States
    • California Court of Appeals
    • 22 Mayo 2013
    ...The court recommitted Litmon for the two-year period of May 2, 2002, to May 2, 2004. ( [ 214 Cal.App.4th 30 ] People v. Litmon (2008) 162 Cal.App.4th 383, 390, 76 Cal.Rptr.3d 122 ( Litmon II ).) Litmon, who had represented himself at trial, requested appointment of counsel. ( Id. at p. 39......
  • Strauss v. Horton, No. S168047.
    • United States
    • United States State Supreme Court (California)
    • 26 Mayo 2009
    ...source is usually the material contained in the ballot pamphlet that is mailed to each voter. (See, e.g., People v. Litmon (2008) 162 Cal.App.4th 383, 407-408, 76 Cal.Rptr.3d 122.) In the case of Proposition 8, neither the official title and summary prepared by the Attorney General, nor the......
  • The People v. Castillo, No. S171163.
    • United States
    • United States State Supreme Court (California)
    • 24 Mayo 2010
    ...In this latter respect-the prospect of outright dismissal of long-pending SVP petitions-the decision in People v. Litmon (2008) 162 Cal.App.4th 383, 76 Cal.Rptr.3d 122 ( Litmon ) is instructive in assessing the situation faced by the parties 230 P.3d 1145 and the court at the time the stipu......
  • People v. Orey, G058040
    • United States
    • California Court of Appeals
    • 30 Marzo 2021
    ...v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, 238 Cal.Rptr.3d 14 ( Vasquez )5 and 277 Cal.Rptr.3d 862 People v. Litmon (2008) 162 Cal.App.4th 383, 76 Cal.Rptr.3d 122 ( Litmon ).6 Orey argued 63 Cal.App.5th 565 that he had "sat at the hospital there at Coalinga State Hospital for eig......
  • Request a trial to view additional results
107 cases
  • People v. Landau, G042008
    • United States
    • California Court of Appeals
    • 22 Mayo 2013
    ...The court recommitted Litmon for the two-year period of May 2, 2002, to May 2, 2004. ( [ 214 Cal.App.4th 30 ] People v. Litmon (2008) 162 Cal.App.4th 383, 390, 76 Cal.Rptr.3d 122 ( Litmon II ).) Litmon, who had represented himself at trial, requested appointment of counsel. ( Id. at p. 39......
  • Strauss v. Horton, No. S168047.
    • United States
    • United States State Supreme Court (California)
    • 26 Mayo 2009
    ...source is usually the material contained in the ballot pamphlet that is mailed to each voter. (See, e.g., People v. Litmon (2008) 162 Cal.App.4th 383, 407-408, 76 Cal.Rptr.3d 122.) In the case of Proposition 8, neither the official title and summary prepared by the Attorney General, nor the......
  • The People v. Castillo, No. S171163.
    • United States
    • United States State Supreme Court (California)
    • 24 Mayo 2010
    ...In this latter respect-the prospect of outright dismissal of long-pending SVP petitions-the decision in People v. Litmon (2008) 162 Cal.App.4th 383, 76 Cal.Rptr.3d 122 ( Litmon ) is instructive in assessing the situation faced by the parties 230 P.3d 1145 and the court at the time the stipu......
  • People v. Orey, G058040
    • United States
    • California Court of Appeals
    • 30 Marzo 2021
    ...v. Superior Court (Vasquez) (2018) 27 Cal.App.5th 36, 238 Cal.Rptr.3d 14 ( Vasquez )5 and 277 Cal.Rptr.3d 862 People v. Litmon (2008) 162 Cal.App.4th 383, 76 Cal.Rptr.3d 122 ( Litmon ).6 Orey argued 63 Cal.App.5th 565 that he had "sat at the hospital there at Coalinga State Hospital for eig......
  • Request a trial to view additional results

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