People v. Tran

• Citation: 276 Cal.Rptr.3d 603,62 Cal.App.5th 330
• Decision Date: 02 March 2021
• Docket Number: B297845
• Court: California Court of Appeals
• Parties: The PEOPLE, Plaintiff and Respondent, v. Son TRAN, Defendant and Appellant.

62 Cal.App.5th 330

276 Cal.Rptr.3d 603

The PEOPLE, Plaintiff and Respondent,

v.Son TRAN, Defendant and Appellant.

B297845

Court of Appeal, Second District, Division 2, California.

Filed March 2, 2021

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, Paul M. Roadarmel, Jr., and John Yang, Deputy Attorneys General, for Plaintiff and Respondent.

ASHMANN-GERST, J.

In 2008, the Los Angeles County District Attorney's Office filed a petition to civilly commit defendant and appellant Son Tran under the Sexually Violent Predators Act (SVPA). ( Welf. & Inst. Code, § 6600 et seq. )¹ More than four years later, in 2012, the trial court found probable cause that defendant was likely to engage in sexually violent predatory criminal behavior upon release. Nearly four years after that, in 2016, the petition was tried to a jury. The jury deadlocked, and a mistrial was declared. Two and one-half years later, in 2019, a bench retrial commenced. Finding that defendant qualified as a sexually violent predator (SVP), the trial court committed him to a state hospital for treatment and indeterminate confinement.

On appeal, defendant does not challenge the sufficiency of the evidence supporting his civil commitment. Rather, he contends that the 11-year span between the filing of the petition and the retrial violated his constitutional right to due process.

We affirm.

BACKGROUND²

I. Criminal History

In 1981, defendant was convicted of two counts of lewd or lascivious acts involving a child under the age of 14. ( Pen. Code, § 288, subd. (a).)

In 1985, he was convicted of kidnapping for child molestation ( Pen. Code, § 207, subd. (b) ) and child molestation with a prior (former Pen. Code, § 647a ).

In 1986, he was convicted of forcible child molestation ( Pen. Code, § 288, subd. (b) ), assault with a deadly weapon ( Pen. Code, § 245, subd. (a) ), and false imprisonment ( Pen. Code, § 236 ).

II. SVP Petition; Waiver of Time for Probable Cause Hearing

The petition to commit defendant as an SVP was filed on May 15, 2008 (SVP petition).

On June 4, 2008, at the first hearing following the filing of the SVP petition, the trial court appointed Deputy Public Defender Karen King (King) to represent defendant. Pursuant to section 6601.5, the trial court reviewed the petition and found that it was facially sufficient. It informed defendant that he was entitled to a probable cause hearing within 10 days. King stated that she had discussed waiving that time requirement with defendant. With defendant's agreement, the probable cause hearing was set for July 16, 2008.

III. Defendant's First Motions to Strike Psychologist Evaluations; Continuances of Probable Cause Hearing

On July 16, 2008, King indicated that she wanted to have a motion to strike a psychologist's report heard simultaneously with the probable cause hearing. The matter was continued to September 2008.

There were at least two hearings in the fall of 2008. Then all we know from the limited appellate record provided is that (1) in January 2009, defendant filed two motions to strike psychologist evaluations, which were denied; (2) in April 2009, the probable cause hearing was continued, with defendant's consent, to June 2009; (3) in January 2010, on defendant's motion, the matter was continued to February 2010; and (4) in March 2010, the matter was continued again to May 2010.

IV. Defendant's Motion for New Evaluations

In April 2010, defendant filed a motion, pursuant to In re Ronje (2009) 179 Cal.App.4th 509, 101 Cal.Rptr.3d 689 ( Ronje ), disapproved of in part by Reilly v. Superior Court (2013) 57 Cal.4th 641, 160 Cal.Rptr.3d 410, 304 P.3d 1071 ( Reilly ),³ that he was entitled to new evaluations conducted under a valid protocol, to be followed by a probable cause hearing based on those new evaluations. With the parties’ agreement, the hearing on the motion was continued, first, from May 2010 to June 2010, and then to July 2010.

On July 22, 2010, the trial court granted defendant's motion for new evaluations but denied his request for new evaluators. Defendant agreed to waive time and to have the probable cause hearing setting take place in October 2010.

V. Defendant's New Counsel; Defense Requests for Continuances

Deputy Public Defender Tom Tibor (Tibor) appeared for the first time as defendant's attorney on October 5, 2010.⁴ Tibor had interviewed defendant the previous day and was informed that neither evaluator had seen defendant yet. The matter was continued to January 2011.

Upon defense motions, the trial court granted additional continuances from January 2011 to April 2011 (for unknown reasons), from April 2011 to June 2011 (for time to obtain updated reports), and from June 2011 to July 2011 (because an evaluator had not completed her report). In July 2011, the trial court set the probable cause hearing for March 26, 27, and 28, 2012.

VI. Defense Counsel's Health Problems; Defendant Objects to a Continuance

On March 26, 2012, Tibor informed the trial court that he had medical problems that prevented him from proceeding with the probable cause hearing at that time. Defendant told the trial court that he did not "want to wait" and wanted the probable cause hearing to occur that day. After all, Tibor's medical issues were not his fault.

The trial court suggested that someone else in the public defender's office might be able to represent defendant. The trial court stated that it was "happy to do whatever" defendant and his attorney thought was in defendant's "best interest." It then suggested that the hearing be continued for a short time until Tibor was medically cleared to proceed, telling defendant that this option was "probably in [his] best interest" because of Tibor's familiarity with the case file.

Defendant reiterated that he wanted to have his probable cause hearing on that day and did not want to waive time. He complained that he had been in the county jail for three years six months. Tibor stated that no one else in his office was prepared to conduct the hearing on that day.

After further discussion, the trial court set another hearing for April 25, 2012, and reserved the week of July 16, 2012, for the probable cause hearing.⁵

VII. Probable Cause Hearing

In August 2012, at a status conference for the probable cause hearing set for September 25 and 27 and October 10, 2012, Tibor informed the trial court that he "had trouble reaching [his] expert[,]" who had not yet interviewed defendant. The People had already subpoenaed its two witnesses for the probable cause hearing.

At the next status conference, on September 18, 2012, it was confirmed that the probable cause hearing would be held on September 25 and October 4 and 12, 2012. Tibor explained that defendant "seem[ed] to be somewhat upset ... with the fact that [September] 27[ ] was moved to October 4." Tibor stated that he tried to explain to defendant that the delay was to accommodate witnesses and was "a standard practice."

The probable cause hearing proceeded as scheduled on September 25 and October 4 and 12, 2012. At the conclusion of the hearing, the trial court found probable cause, pursuant to section 6602, that defendant was likely to engage in sexually violent predatory criminal behavior upon release. It ordered defendant to be transported to Coalinga State Hospital (Coalinga).

Defendant stated that he wanted to have his trial in 60 days. The trial court was ready to send defendant out for trial and "assume[d] that the district attorney would be ready for trial." Tibor informed the trial court that the defense would not be ready for trial within 60 days.

The trial court requested that Tibor have a discussion with defendant. It noted that defendant "seem[ed] pretty clear that he would like his trial to be held sooner rather than later." It was "ready, willing, and able to do that as soon as [Tibor was] able to announce ready or [his] successor [was] able to announce ready for trial." A pretrial conference was set for December 2012. Defendant voiced his objection.

VIII. Defendant's New Counsel; Additional Defense Requests for Continuances; Defendant's Objections

December 12, 2012, hearing

On December 12, 2012, Tibor advised the trial court that he was going to retire by the end of the year and that the public defender's office "hasn't even contemplated yet who [was] going to replace [him]."

February 7, 2013, hearing

Defendant's new attorney, Deputy Public Defender Steve McManus (McManus), appeared on February 7, 2013. McManus explained that he had "not had a chance to read all of the materials" regarding defendant's case and wanted to come back for the pretrial conference in approximately 60 days. Defendant told the trial court that he wanted his trial within 10 days, but McManus indicated that he was not ready. The next hearing was set for April 2013.⁶

May 15, 2013, hearing

Defendant, who had recently been transported to Coalinga, was not in court on May 15, 2013. McManus suggested "a six-month date" to allow defendant time "to settle in and get some things done" at Coalinga. The trial court stated that a three-month date was necessary given that it was "a relatively old case." The trial court acknowledged that McManus was new to the case. "However," it explained, "the cases need to be moving toward trial more quickly than they have been. So simply because somebody is a recent arrival at Coalinga is not necessarily a good reason for putting off a trial date." The next hearing was set for August 2013.

August 6, 2013, hearing

On August 6, 2013,⁷ the trial court asked how McManus would like to proceed. McManus responded that, because defendant had only been at Coalinga for about four months, he was "still settling in[.]" McManus wanted to put the case over for three months. He acknowledged that defendant was "anxious to go to trial," but stated that there were other issues...