In re Kerins ( 2023 )

Filed 3/30/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION FOUR
In re BRIAN KERINS A165304
on Habeas Corpus. (San Francisco City & County
Super. Ct. Nos. 1704798, 167206)
In July 2006, the People filed a petition to commit Brian Kerins as a
Sexually Violent Predator (SVP). More than 14 years later, Kerins
unsuccessfully petitioned for a writ of habeas corpus in the trial court
claiming the People had failed to bring him to trial in a timely manner.
Kerins now seeks habeas relief in this court based on unconstitutional
pretrial delay. Despite the extraordinary length of the delay, we conclude the
trial court acted within its discretion in determining Kerins’s speedy trial
rights were not violated. We also reject Kerins’s other arguments relating to
the lawfulness of a custody hold before the People filed the SVP petition and
the effectiveness of his trial counsel. We will deny Kerins’s writ petition.
I. BACKGROUND
July 2006: Petition To Commit Kerins as an SVP
In 1988, Kerins was convicted of sodomy with a person under 18, an
SVP qualifying offense. In 1998, Kerins pleaded guilty to two counts of
annoying or molesting a child under 18. The trial court sentenced him to
13 years in prison.
1
Kerins’s scheduled release date was July 25, 2006. Prior to the
scheduled release date, two psychologists concluded Kerins met the criteria
for an SVP under Welfare and Institutions Code1 section 6600,
subdivision (a). The Department of Mental Health requested that the
San Francisco District Attorney file a petition to commit Kerins as an SVP.
At some point between July 19, 2006 and July 27, 2006, the district
attorney filed a petition to commit Kerins as an SVP. The trial court
appointed Mark Nicco as Kerins’s counsel. Nicco was relieved on August 14,
2006, and replaced by Harold Rosenthal, whom Kerins retained as counsel.
August 2006 – April 2011: Representation by Harold Rosenthal
The trial court scheduled the probable cause hearing for October 27,
2006, then rescheduled it for October 20, 2006. Rosenthal informed the court
that he intended to file a motion to dismiss at the probable cause hearing.
The trial court continued the probable cause hearing at least nine times
over the next six months. Rosenthal requested one of the continuances due to
holiday travel and a family emergency. The court granted one of the
continuances because a doctor scheduled to testify did not receive a subpoena,
while other doctors were unable to appear. The reasons for the remaining
continuances are not indicated in the record.
The probable cause hearing commenced on May 10, 2007 and concluded
on May 25, 2007, with the trial court finding probable cause to commit Kerins
as an SVP. The People filed an amended petition to commit Kerins as an
SVP on May 25, 2007. At a hearing on June 13, 2007, the trial court set the
SVP trial for October 1, 2007.
All further statutory references are to the Welfare and Institutions
1
Code unless otherwise indicated.
2
The trial court did not hold a trial on October 1, 2007. The record does
not indicate the reason. On November 30, 2007, the trial court issued an
order transferring Kerins to a state hospital for treatment.
Between March 7, 2008 and May 26, 2010, the trial court continued the
trial date approximately 20 times. The record does not indicate the trial
court’s reasons for granting about half of these continuances. The People
requested one of the continuances because the deputy district attorney
assigned to the case left the district attorney’s office. Rosenthal did not object
the People’s request. The trial court granted the remaining continuances at
Rosenthal’s request. Rosenthal requested some of the continuances for
reasons intended to benefit Kerins, such as providing additional time for
Kerins to receive treatment at the state hospital, and providing additional
time for doctors to perform a follow-up examination of Kerins. Rosenthal
requested other continuances due to scheduling conflicts he had with other
cases.
On June 9, 2010, Rosenthal informed the trial court he wanted to
consider whether to file a motion for a new probable cause hearing in light of
In re Ronje (2009) 179 Cal.App.4th 509, which held that assessment protocols
used to evaluate SVP’s were based on an invalid regulation, and that an SVP
defendant is not required to show prejudice from the use of the invalid
assessment protocols. (Id. at p. 513.) The court continued the matter to
June 30, 2010. The court continued the matter again to July 12, 2010, and
then to July 19, 2010, because Rosenthal did not appear at the scheduled
hearings. On July 19, 2010, the trial court scheduled a new probable cause
hearing for October 4, 2010.
On October 4, 2010, Rosenthal did not appear in court. Through the
deputy district attorney, Rosenthal communicated to the trial court that he
3
would not be filing a motion based on Ronje “at this time.” The court
continued the matter to October 6, 2010, to schedule a new trial date.
The trial court continued the case eight times between October 6, 2010
and November 24, 2010, either because Rosenthal requested a continuance or
did not appear at the scheduled hearing. At the November 24, 2010 hearing,
the court told the deputy district attorney with regard to Rosenthal: “Call
him back and tell him . . . that the court is thinking about an order to show
cause. We have put this over several times, more than I can count on my
hand.”
Rosenthal was present at the November 29, 2010 hearing, where the
court scheduled a probable cause hearing for January 31, 2011, presumably
in light of Ronje. At the end of the hearing, the court asked Rosenthal,
“[W]here’s the defendant?” and “[D]o you plan to have him testify at some
point?” Rosenthal responded, “No, I prefer that he not be brought here.”
On January 31, 2011, the trial court granted Rosenthal’s request to
continue the probable cause hearing because “the doctors who will be key to
this matter are not available.” The hearing was continued to March 28, 2011.
On March 28, 2011, the People requested a continuance to procure updated
evaluations because their prior evaluations were over a year old. Rosenthal
did not object to a continuance but did object to having the same doctors as
before conduct the evaluations. The court granted the continuance and set
the probable cause hearing for May 25, 2011.
May 2011 – November 2016: Representation by David Simerly
On April 25, 2011, the trial court held a hearing on a motion to appoint
counsel for Kerins. Rosenthal was not present, but he apparently made a
request to withdraw from representation. The court continued the matter to
April 27, 2011, and then to May 4, 2011.
4
On May 4, 2011, the trial court appointed David Simerly to represent
Kerins. The court scheduled a hearing on June 20, 2011, to set the probable
cause hearing.
Simerly requested and was granted a continuance on June 20, 2011, to
review three boxes of discovery provided by Rosenthal. Simerly requested
and was granted another continuance on September 14, 2011, because “we
just got funding for the defense expert.” The trial court then granted
Simerly’s continuance requests on October 19, 2011, December 14, 2011,
February 1, 2012, March 28, 2012, and May 30, 2012, in order accommodate
the defense expert’s schedule for meeting with Kerins and preparing a report.
On July 18, 2012, Simerly informed the trial court that the deputy
district attorney was requesting a continuance due to a family emergency.
The court continued the matter to September 12, 2012.
On September 12, 2012, Simerly informed the trial court that the
defense evaluation was complete but that there were additional evaluations
being conducted by the People. The court continued the matter to October 31,
2012, and then to January 9, 2013.
On January 9, 2013, Simerly told the trial court, “I have been advised
that we do have no evaluation available [sic].” The court granted Simerly’s
request for a continuance to February 13, 2013. On February 13, 2013,
Simerly requested another continuance based on his understanding that he
would be receiving additional discovery. The court continued the matter to
April 3, 2013.
On April 3, 2013, Simerly informed the trial court that he visited
Kerins at the state hospital. Kerins requested that Simerly “explore a couple
of motion options.” The court set a hearing for May 29, 2013, for setting of
the potential motions. At the May 29, 2013, hearing, Simerly requested a
5
continuance because he was waiting for transcripts, which the deputy district
attorney said she could have within a week. Simerly also said he would be in
trial in another case all of June. The court continued the matter to July 31,
2013. For reasons not indicated in the record, the court continued the matter
again to October 2, 2013, then to November 20, 2013, and then to January 22,
2014.
On January 22, 2014, on Simerly’s request, the trial court continued
the matter to April 14, 2014, for setting of Simerly’s motions and the SVP
trial. There was no longer a need for a new probable cause hearing in light of
the California Supreme Court’s decision in Reilly v. Superior Court (2013)
57 Cal.4th 641, where the Court overruled In re Ronje, supra,
179 Cal.App.4th 509, and held that any issues from the faulty assessment
protocols must result in a material error before a new probable cause hearing
is required. (Reilly, at p. 646.)
On April 14, 2014, Simerly requested a continuance because “I think
there are new evaluations on the way.” The trial court continued the matter
to June 18, 2014.
On June 18, 2014, August 27, 2014, November 3, 2014, and January 21,
2015, the trial court granted Simerly’s continuance requests as Simerly was
waiting for records to be provided by the Board of Parole Hearings (parole
board). The records were received by the trial court on March 30, 2015, and
the court continued the matter to June 15, 2015.
On June 15, 2015, Simerly told the trial court he was in the process of
preparing a motion to dismiss and that a rough draft was sent to Kerins for
his review. The court set a hearing on the motion for August 17, 2015. On
August 17, 2015, Simerly informed the court that he filed the motion but that
he “knew [the deputy district attorney] was going to need additional time to
6
respond” in order to obtain additional prison records. The grounds for
dismissal argued in the motion are not apparent in the record. The court
continued the matter to October 5, 2015.
On October 5, 2015, Simerly informed the trial court that he and the
deputy district attorney “have been talking about other resolution options,
and we are probably going to want to calendar a petition for conditional
release and with the motion going over to that same date.” The deputy
district attorney said he also wanted to file a supplemental response to
Kerins’s motion. The matter was continued to December 14, 2015, to hear
the motion to dismiss and set a trial date. On December 14, 2015, Simerly
made an oral request for a continuance for unknown reasons. The matter
was continued to January 4, 2016.
On January 4, 2016, the deputy district attorney informed the trial
court that Simerly “had a serious accident and has undergone surgery and so
he’s very debilitated.” The court continued the matter to February 8, 2016.
On February 8, 2016, Simerly appeared and told the court, “I thought I was
going to be in much better shape today, and I’m not.” He and the deputy
district attorney discussed continuing the case and also case resolution
options. The court continued the matter to March 14, 2016.
On March 14, 2016, the trial court said that Simerly planned to file a
petition under section 6608 for Kerins’s conditional release. The court said it
would order the state hospital to prepare an evaluation. The court continued
the case to May 9, 2016, to address this matter, as well as the outstanding
motion to dismiss and setting of a trial date. The next day, March 15, 2016,
Simerly filed a petition for Kerins’s conditional release under section 6608.
On May 9, 2016, Simerly informed the trial court that “the consensus”
was that the parties wanted a request for updated evaluations of Kerins
7
under section 6601, which governs evaluations to determine if someone
qualifies as an SVP, but that this was a “special request” so that the
evaluators could take into account Kerins’s amenability to outpatient
treatment. The matter was continued to June 27, 2016. From June 27, 2016
until September 12, 2016, the court continued the matter five times as the
parties waited for the evaluations to be prepared and delivered to the court.
On September 26, 2016, the deputy district attorney informed the trial
court that “the wrong report had been requested. It needs to be a [section
6608] report,” which relates to conditional release, and “hopefully the report
will now come.” Simerly said he presumed all the reports were done and “we
just don’t have them, and we don’t know why we don’t have them.” The court
said it would send a new request to the state hospital for a section 6608
report. Simerly told the court that an attorney from the California
Department of State Hospitals (DSH) previously explained how section 6608
“didn’t precisely apply” but that the particular attorney was no longer with
the department, so “I’m running into this morass.” The court continued the
matter to October 17, 2016 “for whatever appropriate report should be filed.”
On October 17, 2016, Simerly informed the trial court that he received
only one of the four expected evaluations and he was “getting a little
frustrated not knowing where the other reports are.” Simerly wanted the
court to order production of the evaluations. The court responded, “I don’t
understand. I’ve never done an order with the hospital. They’ve always
cooperated.” The parties agreed that Simerly could serve a subpoena duces
tecum for the reports. The court then addressed an attorney with the DSH
who was in the courtroom on a different matter. The attorney agreed to
cooperate with helping provide the reports for Kerins’s case. The matter was
continued to November 7, 2016.
8
On November 7, 2016, Simerly informed the trial court that the DSH
told him that all of the evaluations had been sent to the court. The court said
it only had one of the reports. The court said it would check “downstairs”
because “sometimes they get mixed up with the subpoenas.” Simerly
reminded the court the evaluations were sent to the court as a result of a
subpoena. The court continued the matter to November 21, 2016.
November 2016 – October 2019: Representation by Richard Shikman
On November 21, 2016, Simerly asked to withdraw from representing
Kerins, telling the trial court, “I am on the cusp of retiring and the Bar
Association is requesting that I transition out of cases earlier rather than
later.” The court granted Simerly’s request and appointed Richard Shikman
to represent Kerins. The court continued the matter to December 19, 2016.
On December 19, 2016, Shikman was granted a continuance to January 23,
2017, because he “just got involved” and was still going through the case file.
On January 23, 2017, Shikman informed the trial court he was
continuing Simerly’s efforts to negotiate a resolution with the People.
Shikman acknowledged, “We may not be successful in working this out, but
we’re attempting to try it and deal with the case.” The court continued the
matter to February 27, 2017. On February 27, 2017, the parties explained
they were still working on a resolution. The court questioned whether a
resolution was even possible in an SVP case. The deputy district attorney
explained they were working on an “out-of-the-box” proposal. The court
continued the matter to March 27, 2017.
On March 16, 2017, Shikman submitted a letter to the trial court
explaining the proposed settlement, which contemplated a “dismissal which
would be stayed.” The letter states the proposal is supported by two
evaluators who expressed opinions favorable to Kerins, although the reports
9
themselves are not in the record. Then, at the March 27, 2017 hearing, the
court mentioned there was an off-record, in-chambers meeting earlier in the
day where the parties and court discussed the resolution and agreed to
continue the matter to May 15, 2017.
For reasons not indicated in the record, the parties ceased their efforts
at finding a resolution at some point following the March 27, 2017 hearing.
At the May 15, 2017 hearing, the court asked if the parties were ready to set
a trial. Shikman responded that he had been in contact with Kerins, who
requested a two-month continuance for trial setting. The court continued the
matter to July 17, 2017.
On July 17, 2017, Shikman requested a continuance because he was in
another lengthy trial. The trial court continued the matter to September 18,
2017. On September 18, 2017, Shikman said he was preparing a motion to
dismiss and requested a continuance. The matter was continued to
November 6, 2017. On November 6, 2017, the court continued the matter to
November 20, 2017, for trial setting because Shikman was still in trial on
another case.
On November 20, 2017, Shikman said he was not ready to set trial
because he was working on the motion to dismiss and had been collaborating
with Kerins about the motion. The trial court continued the matter to
January 8, 2018. On January 8, 2018, Shikman informed the court his
motion was “fundamentally written” but that “I need to engage my client a
little bit more. I have engaged him. I’ve met him. I am in contact with him.”
The deputy district attorney had no objection to a continuance. The matter
was continued to February 26, 2018. On February 26, 2018, the court
scheduled a hearing on the motion to dismiss for April 9, 2018. Shikman had
10
not yet filed the motion but was “about to file it,” so the court was comfortable
scheduling a hearing.
On April 9, 2018, the trial court held a hearing on Kerins’s motion to
dismiss. Kerins argued in the motion that the original SVP petition was filed
on July 27, 2006, two days after his scheduled release date, and that the
Department of Corrections and Rehabilitation (CDCR) did not have good
cause to place a hold on Kerins under section 6601.3 beyond the release date.
The trial court denied the motion after concluding the CDCR’s hold was
proper and that, in any event, the motion to dismiss was untimely because it
was brought 12 years after the People filed the SVP petition. On April 30,
2018, Kerins filed a petition for writ of mandate in our court challenging the
denial of his motion to dismiss. We summarily denied the petition on
May 25, 2018.
While the writ petition was pending in our court, the trial court
continued the matter until August 6, 2018. Upon Shikman’s request, the
court continued the matter for trial setting to September 17, 2018, and then
November 5, 2018. There is no record of a hearing on November 5, 2018. On
January 7, 2019, the court granted Shikman’s request to continue the matter
to February 25, 2019. There is no record of a hearing on February 25, 2019.
The next reported hearing occurred on July 22, 2019. Shikman
informed the trial court that Kerins wanted the court to make an inquiry
about whether a conflict existed between Shikman and Kerins. The court
scheduled a hearing for August 14, 2019, to consider the matter. On
August 14, 2019, the court held a hearing to address the conflict raised by
Kerins. Kerins appeared by video. The court closed the courtroom. The
record does not indicate what took place during the closed proceedings.
On September 30, 2019, with Kerins present through video, the court found
11
good cause to relieve Shikman as counsel. The court set a further hearing on
October 30, 2019, to appoint new counsel.
October 2019 – Present: Representation by Jay Dyer
On October 30, 2019, the trial court appointed Jay Dyer to represent
Kerins. Kerins was ill and could not attend the hearing via videoconference.
The court scheduled a hearing for December 16, 2019, so that Kerins could be
present.
On December 16, 2019, Dyer requested a further status conference for
March 23, 2020. Dyer stated, “[T]his case looks like it will be requiring me to
do a writ [of habeas corpus] or motion for dismissal.” Dyer also told the trial
court, “If I am not going to be asking for a trial on March 23rd, I will either
have a waiver [of Kerins’s speedy trial right] or I will tell you why I have good
cause not to request a trial.” The court continued the matter to March 23,
2020. On March 23, 2020, the court said the case “was on for video
conference today, but it’s not going to happen.” The court continued the
matter to April 27, 2020.
On May 11, 2020, Dyer filed a “waiver of presence and of trial.” The
document included a declaration from Kerins stating Kerins asked Dyer to
“explore my legal remedies related to possible infringements of my Due
Process and Equal Protection rights which I believe I have sustained during
the life of my case. I have asked Dyer to delay my trial while he reviews and
litigates these constitutional infringement issues.”
On June 19, 2020, Dyer filed a motion to dismiss raising the issue
about the custody hold from 2006, but with more details than the prior
motion. The trial court held a hearing on September 14, 2020, on the motion.
The court denied the motion for the same reasons it denied the prior motion.
12
On September 21, 2020, the People announced ready for trial. Dyer
requested a continuance to file a petition for writ of habeas corpus “based on
pretrial and constitutional delay.” The trial court continued the matter to
December 7, 2020. Then, on November 13, 2020, Kerins filed a petition for
writ of habeas corpus in the trial court arguing that the People did not bring
him to trial in a timely manner. Kerins also argued he was denied effective
assistance of counsel. Kerins also filed a time waiver while the habeas
petition was being considered.
The trial court denied the habeas petition on November 9, 2021. The
court described the delay in commencing trial a “considerable one,” but that
the “overwhelming reason” for the delay was that Kerins’s counsel sought
“continuance after continuance.” The court further observed that Kerins did
not assert his right to a speedy trial until 2019, and that while Kerins
“presumably experienced anxiety and concern” as a result of his continued
incarceration, nothing in the record indicated Kerins’s defense had been
impaired. On balance, the court concluded Kerins had not suffered a
violation of his speedy trial right.
Court of Appeal Proceedings
On June 2, 2022, Kerins, still represented by Dyer, filed the instant
petition for writ of habeas corpus. Kerins makes three arguments in his
petition. First, he argues the SVP petition must be dismissed for lack of
jurisdiction because the parole board’s hold on Kerins from 2006 before the
SVP petition was filed was unlawful. Second, he argues the SVP petition
must be dismissed because he has suffered an unconstitutional pretrial delay.
Third, he argues he was denied the effective assistance of counsel because his
attorneys “did not move his case forward or prepare it for trial.” We solicited
preliminary briefing, and then issued an order to show cause.
13
II. DISCUSSION
A. Filing of the SVP Petition After Kerins’s Release Date
Kerins argues that the SVP petition must be dismissed for lack of
jurisdiction because the People filed the petition on July 27, 2006, which was
two days past Kerins’s scheduled release date. Kerins acknowledges that on
July 24, 2006, the parole board placed a 45-day hold on Kerins pursuant to
section 6601.3, which states that the parole board, upon “a showing of good
cause,” may hold an inmate 45 days past his release date in order to complete
a “full evaluation” to determine if the inmate may qualify as an SVP.
(§ 6601.3, subd. (a).) Kerins, however, contends he was held past his release
date without good cause, which deprived the court of jurisdiction to entertain
the SVP petition that the People subsequently filed.
We note initially that the record is conflicting as to whether the People
filed an SVP petition before or after Kerins’s July 25, 2006 scheduled release
date. The copy of the SVP petition in the record before us contains an
endorsed-stamp date of July 27, 2006. But a transcript of a hearing on
July 24, 2006, indicates that the People filed a petition at the conclusion of
that hearing. The transcript also includes a comment by the deputy district
attorney suggesting the People submitted a petition on July 20, 2006, to the
court for filing. Finally, a court detention order dated July 24, 2006, states
that a petition to commit Kerins as an SVP had been filed previously.2
We need not resolve these discrepancies in the record because even if
the People filed the petition on July 27, 2006, after Kerins’s release date, the
trial court did not lack jurisdiction to consider the SVP petition. First, we
2 The Attorney General’s unopposed motion to augment the record to
include the July 24, 2006 detention order is granted. (Cal. Rules of Court,
rule 8.155(a)(1)(A).)
14
agree with the trial court that Kerins’s motions to dismiss based on the
People filing the petition after Kerins’s release date were untimely because
the motions were brought 12 years and 14 years respectively after July 2006.
(Accord, People v. McGhee (1987) 193 Cal.App.3d 1333, 1344 [criminal
defendant waived right to dismiss criminal action on ground that information
was belatedly filed when defendant moved to dismiss over 14 months after
information was filed on the first day of trial].)
In addition, the 45-day hold the parole board placed on Kerins on
July 24, 2006, was justified under then-current law. The parole board found
good cause to detain Kerins based on the likelihood he would engage in
sexually violent behavior without treatment. This finding was in line with
title 15 of the California Code of Regulations, section 2600.1, subdivision (d),
which defined “good cause” as “[s]ome evidence” that a person has a
qualifying conviction and is “likely to engage in sexually violent predatory
criminal behavior.” (Cal. Code Regs., tit. 15, § 2600.1, subd. (d)(2).) In 2012,
the California Supreme Court held in In re Lucas (2012) 53 Cal.4th 839 that
this definition of “good cause” was invalid because it linked good cause to
showing that the person is likely to be an SVP, rather than showing
justification for the delay in filing the petition. (Id. at pp. 849–851.)
Nevertheless, the court found the parole board’s prior reliance on the
regulation was excusable as a “good faith mistake of law.” (Id. at p. 852.)
Similarly here, the parole board could rely on the same regulation in July
2006 to support its good-cause finding and place a hold on Kerins. We
therefore decline to direct dismissal of the SVP petition for lack of
jurisdiction.
15
B. Kerins’s Right to a Speedy Trial
Kerins argues the SVP petition must be dismissed because the People’s
failure to bring him to trial 14 years after filing the SVP petition amounts to
an unconstitutional pretrial delay.
“The [Sexually Violent Predator Act (SVPA)] does not establish a
deadline by which a trial on an SVP petition must be held after the trial court
finds probable cause to believe the inmate is an SVP.” (People v. Superior
Court (Vasquez) (2018) 27 Cal.App.5th 36, 57 (Vasquez).) “Nevertheless,
‘[b]ecause civil commitment involves a significant deprivation of liberty, a
defendant in an SVP proceeding is entitled to due process protections.’
[Citation.] This includes the due process right to a timely trial.” (People v.
Tran (2021) 62 Cal.App.5th 330, 347 (Tran).)
In assessing an SVP defendant’s speedy trial claim, courts of appeal
have applied the balancing test used in criminal speedy trial cases
articulated in Barker v. Wingo (1972) 407 U.S. 514, as well as the more
general balancing test from Mathews v. Eldridge (1976) 424 U.S. 319. (See
Vasquez, supra, 27 Cal.App.5th at pp. 60, 81; People v. Bradley (2020)
51 Cal.App.5th 32, 40, 43; People v. DeCasas (2020) 54 Cal.App.5th 785, 806,
812 (DeCasas); In re Butler (2020) 55 Cal.App.5th 614, 648, 663 (Butler);
Tran, supra, 62 Cal.App.5th at pp. 348, 354.) The trial court here applied
both tests. “We review for abuse of discretion a trial court’s ruling on a
motion to dismiss for prejudicial pretrial delay.” (Vasquez, supra,
27 Cal.App.5th at p. 55.) “Under this standard, we review the trial court’s
findings of fact for substantial evidence and its conclusions of law de novo.”
(DeCasas, supra, 54 Cal.App.5th at pp. 801–802.)
16
1. Barker Test
We begin with the balancing test from Barker. “[T]o determine
whether a speedy trial violation has occurred, Barker established a balancing
test consisting of ‘four separate enquiries: whether delay before trial was
uncommonly long, whether the government or the criminal defendant is more
to blame for that delay, whether, in due course, the defendant asserted his
right to a speedy trial, and whether he suffered prejudice as the delay’s
result.’ ” (People v. Williams (2013) 58 Cal.4th 197, 233 (Williams).) “None of
these four factors is ‘either a necessary or sufficient condition to the finding of
a deprivation of the right of speedy trial. Rather, they are related factors and
must be considered together with such other circumstances as may be
relevant. In sum, these factors have no talismanic qualities; courts must still
engage in a difficult and sensitive balancing process.’ [Citation.] The burden
of demonstrating a speedy trial violation under Barker’s multifactor test lies
with the defendant.” (Ibid.)
a. Length of the Delay
We measure the length of the delay in this case at approximately
14 years, from July 2006 when the People filed the SVP petition, to May 2020
when attorney Jay Dyer filed on behalf of Kerins a “waiver of presence and of
trial,” which included a declaration from Kerins stating he asked Dyer to
“explore my legal remedies” and “delay my trial.” The 14-year delay is
extraordinary and weighs heavily in favor of Kerins’s argument that his
speedy trial rights have been violated. (See Tran, supra, 62 Cal.App.5th at
pp. 348–349 [11-year delay weighed in defendant’s favor]; Butler, supra,
55 Cal.App.5th at p. 648 [13-year delay was extraordinary]; DeCasas, supra,
54 Cal.App.5th at p. 806 [13-year delay was extraordinary]; Vasquez, supra,
27 Cal.App.5th at p. 61 [17-year delay was extraordinary].)
17
b. Reasons for the Delay
“[T]he cause of the delay is the pivotal question for our due process
inquiry.” (Vasquez, supra, 27 Cal.App.5th at p. 64.) In considering the
reasons for a delay, “different weights should be assigned to different
reasons.” (Barker, supra, 407 U.S. at p. 531.) “Deliberate delay ‘to hamper
the defense’ weighs heavily against the prosecution. [Citation.] ‘[M]ore
neutral reason[s] such as negligence or overcrowded courts’ weigh less
heavily ‘but nevertheless should be considered since the ultimate
responsibility for such circumstances must rest with the government rather
than with the defendant.’ ” (Vermont v. Brillon (2009) 556 U.S. 81, 90.)
“In contrast, delay caused by the defense weighs against the defendant.”
(Ibid.) “Because ‘the attorney is the [defendant’s] agent when acting, or
failing to act, in furtherance of the litigation,’ delay caused by the defendant’s
counsel is also charged against the defendant.” (Id. at pp. 90–91.) “The
general rule attributing to the defendant delay caused by assigned counsel is
not absolute. Delay resulting from a systemic ‘breakdown in the public
defender system,’ [citation] could be charged to the State.” (Id. at p. 94.)
In this case, the trial court found that the “overwhelming reason” for
the delay was that Kerins’s counsel sought “continuance after continuance.”
Thus, the “great majority” of the delay could not be attributed to the state.
We review the trial court’s findings for substantial evidence. (DeCasas,
supra, 54 Cal.App.5th at pp. 801–802.)
i. The Defense
Kerins argues the record here reveals a systemic breakdown in the
defense of his case. He asserts that “court-appointed attorneys, selected and
installed by the court, failed to prepare his case while they sought
continuances year after year. And the futile attempts to secure pre-
18
commitment conditional release lacked any grounding in law; all the
resulting delay was time thoroughly wasted.”
There is no dispute that Kerins and his attorneys are responsible for
the vast majority of the continuances in this case. During Harold Rosenthal’s
representation from August 2006 to April 2011, the trial court continued the
matter dozens of times, and there is no indication in the record that Kerins
objected to any of the continuances. For continuances whose reasons are
reflected in the record, Kerins was responsible for all but one of them. Many
of the continuances were requested for Kerins’s benefit, such as allowing
Rosenthal to consider whether to move for a new probable cause hearing, and
providing more time for Kerins to receive treatment at the state hospital and
for doctors to perform follow-up examinations. The trial court also granted a
number of other continuances to accommodate Rosenthal’s schedule, or
because Rosenthal did not appear at a scheduled hearing.
Kerins and his attorneys were also responsible for the vast majority of
continuances between May 2011 and October 2019 when he was represented
by David Simerly and Richard Shikman, two attorneys appointed from the
state conflicts bar. The court granted continuances between May 2011 and
July 2012 so that Simerly could review information he received from
Rosenthal, and also for a defense expert to evaluate Kerins. Between April
2013 and August 2015, the court granted a series of continuances after
Kerins requested that Simerly pursue options for filing motions. Then,
between October 2015 and November 2016, the court continued the matter
several times after Simerly informed the court that Kerins and the People
were exploring a resolution to the case that would involve Kerins’s release.
The situation was similar after Shikman replaced Simerly as Kerins’s
attorney in November 2016. Shikman requested multiple continuances
19
between his appointment and May 2018 so he could get up to speed on the
case, then continue efforts at a resolution, and then prepare a motion to
dismiss. Shikman requested additional continuances until July 2019, when
he informed the court that Kerins wanted the court to determine whether a
conflict existed between Kerins and Shikman.
Finally, Kerins was responsible for the continuances from October 2019
when Jay Dyer was appointed until May 2020 when Kerins formally entered
a time waiver for trial, with Dyer expressing an intent to prepare a motion to
dismiss and petition for writ of habeas corpus.
We disagree with Kerins that the multiple continuances requested and
agreed to by his attorneys reveal a systemic breakdown in his defense. The
circumstances described above are a far cry from Vasquez and DeCasas,
where the existence of systemic breakdowns within the Los Angeles County
Public Defender’s office was a significant factor in the appellate courts’
decisions to uphold the dismissal of the SVP petitions. In Vasquez, the court
upheld the trial court’s finding that the final three years of a 17-year delay
resulted from a systemic breakdown in the public defender system. (Vasquez,
supra, 27 Cal.App.5th at p. 73.) Beginning in October 2014, the defendant’s
attorney “repeatedly raised with the trial court her inability to prepare for
trial given the 50 percent cut in her office’s staff and her increased workload.”
(Id. at p. 71.) The attorney was ready to proceed to trial in January of 2017,
but prior to the trial date, the public defender’s office transferred her out of
the SVP unit. (Ibid.) Two different attorneys from the public defender’s
office subsequently informed the court they would not be prepared for trial on
the scheduled date. (Id. at pp. 51, 71.) The trial court then granted the
defendant’s motion to relieve the public defender’s office as his counsel, and
his new appointed attorney eventually filed a motion to dismiss on
20
August 25, 2017. (Id. at p. 71.) Based on these circumstances, the court
concluded that “the trial court did not err in finding ‘[t]he dysfunctional
manner in which the Public Defender’s Office handled [the defendant’s] case
was precisely the type of systemic or institutional breakdown’ ” that placed
the fault for the delay in the hands of the state, rather than the defendant.
(Id. at p. 73.)
Similarly, in DeCasas, the court upheld the trial court’s finding that the
final years of a 13-year delay were caused by the same staff reduction at the
Los Angeles County Public Defender’s Office that existed in Vasquez.
(DeCasas, supra, 54 Cal.App.5th at p. 810.) The defendant’s attorney
“testified that the fact that public defenders were delaying their cases as a
result of the staffing cuts was not a ‘secret. It was very, very open and it was
said in open court repeatedly by many, many public defenders.’ ” (Id. at
pp. 796–797.) The attorney became “ ‘overwhelmed’ ” and his schedule did
not allow for him to prepare for trial. (Id. at p. 797.) Thus, the court
concluded that substantial evidence supported the trial court’s finding “that a
systemic breakdown in the public defender’s office caused delays in SVPA
cases,” including the defendant’s case. (DeCasas, supra, 54 Cal.App.5th at
p. 810.)
Nothing in the record here reflects a similar failure of the public
defense system. Nor has Kerins pointed to any funding shortage or
institutional problems in the bar panel assignment process that compares to
the 50 percent funding cuts and attendant staffing shortages at issue in
Vasquez and DeCasas. Instead, in the first five years of this case, Kerins was
represented by retained counsel, Harold Rosenthal. While Rosenthal
requested multiple continuances due to scheduling conflicts (and in some
cases failed to appear in court), nothing in the record suggests that those
21
continuances arose from systemic or institutional issues, rather than
circumstances specific to Rosenthal. Kerins’s next two attorneys, David
Simerly and Richard Shikman, were appointed from the county’s conflicts
bar, and while each attorney requested multiple continuances, neither
blamed systemic issues with defending SVP cases as the reason. Simerly and
Shikman ceased representation of Kerins for individual reasons as well, with
Simerly retiring and Shikman withdrawing due to a conflict in the attorney-
client relationship. Kerins’s current attorney, Jay Dyer, was also appointed
from the conflicts bar and quickly began preparation of a motion to dismiss
and petition for writ of habeas corpus after his appointment.
Kerins’s case is also distinguishable from Butler, where the court, in
affirming the dismissal of an SVP petition, found that substantial evidence
supported the trial court’s conclusion that the “bulk of the delay” was the
state’s responsibility. (Butler, supra, 55 Cal.App.5th at p. 658.) While the
defendant’s attorneys requested or agreed to over 50 continuances, there was
“abundant evidence to support the habeas corpus court’s finding that [the
defendant’s] public defenders essentially ignored and disregarded his
demands for a timely trial and his express direction that counsel was not
authorized to waive time on his behalf.” (Ibid.) This led the trial court to
conclude that “it would be fundamentally unfair to hold [the defendant]
personally and solely accountable for delays caused by his counsel under such
circumstances.” (Ibid.) The record here does not show that Kerins’s
attorneys ignored his demands for trial or ever made continuance requests
that were contrary to his wishes.
The absence of evidence showing a systemic breakdown makes this case
similar to Tran, which affirmed a trial court’s denial of a defendant’s motion
to dismiss on speedy trial grounds. The defendant in Tran placed the blame
22
for an 11-year delay on specific acts by his various attorneys over the course
of the case, such as “failing to take steps to ensure an earlier probable cause
hearing; not timely reassigning the case when [an attorney’s] retirement was
imminent; requesting continuances to research and prepare motions that
were never filed; and not timely obtaining the reporter’s transcripts of the
first trial.” (Tran, supra, 62 Cal.App.5th at p. 350.) The court explained that
the “fundamental problem” with the defendant’s argument was the lack of
evidence showing “ ‘a systemic “breakdown in the public defender system.” ’ ”
(Ibid.) “Without a more developed factual record,” the court explained, “we
cannot make a determination whether the defense delays were justifiable, or
‘whether the lack of progress was attributable to each attorney’s own
inability to properly manage or prioritize his or her caseload, or whether the
performance of individual attorneys was indicative of unreasonable resource
constraints, misallocated resources, inadequate monitoring or supervision, or
other systemic problems.’ ” (Id. at p. 352, quoting Williams, supra, 58 Cal.4th
at p. 249.) “Accordingly, we must attribute all delays caused by defense
counsel to defendant.” (Tran, at p. 350)
Likewise here, the absence of evidence in the record showing systemic
issues with Kerins’s defense compels us to attribute the delays caused by
Kerins’s attorneys to Kerins himself. “[I]n the absence of evidence identifying
systemic or institutional problems and not just problems with individual
attorneys, we are unable to conclude . . . that the delay experienced by
defendant resulted from a breakdown in the public defender system. In other
words, the record before us contains no facts about the public defender system
that would support a finding of a systemic breakdown.” (Williams, supra,
58 Cal.4th at p. 249.)
23
ii. The People
Kerins acknowledges that the record shows no deliberate attempt by
the People to interfere with his defense, but he does assert the People bear
some level of blame for the delay because they joined in several continuance
requests “without asking the court to inquire, set deadlines, or find good
cause for delays.”
“[T]he People’s due process obligation in an SVPA proceeding requires
that it diligently prosecute the case. This may entail stating on the record
that it is prepared to go to trial, taking affirmative steps to set a trial date,
promptly requesting clinical evaluations and records, and securing the
attendance of witnesses in a timely manner.” (Butler, supra, 55 Cal.App.5th
at p. 655.) The record here does not show that the People worked proactively
to move the case to trial, such as by objecting to continuance requests,
declaring ready for trial during the 14-year delay, or insisting that the trial
court find good cause before granting Kerins’s repeated continuance requests.
(E.g., Vasquez, supra, 27 Cal.App.5th at p. 64 [prosecution not responsible for
delay when, after several years of delays, it “repeatedly objected to
continuance of the trial date” and “urged the trial court to remove the public
defender’s office and appoint new counsel”]; Tran, supra, 62 Cal.App.5th at
p. 352 [“ ‘the district attorneys assigned to the case often expressed their
readiness for trial and expressed displeasure with the long delays primarily
caused by [defendant]’s attorneys.’ ”].) On the other hand, the record does not
show that the People requested any unwarranted continuances or engaged in
any tactics designed to delay trial. (E.g., Butler, supra, 55 Cal.App.5th at
p. 656 [prosecution requested five-month continuance of probable cause
hearing without explanation and delayed 10 months in requesting updated
evaluations].) Instead, the People requested only three continuances in this
24
case totaling approximately five months: from August 1, 2008 to
September 10, 2008, when the assigned deputy district attorney left the
district attorney’s office; from March 28, 2011 to May 25, 2011, when the
People requested updated evaluations; and from July 18, 2012 to
September 12, 2012, when the deputy district attorney had a family
emergency. Kerins did not object to these continuances and does not contend
the continuances were unsupported by good cause.
iii. The Trial Court
Kerins also faults the trial court for delays because it granted dozens of
continuances without requiring counsel to provide good cause.
The “trial courts must be vigilant in protecting the interests of the
defendant, the prosecution, and the public in having a speedy trial.”
(Williams, supra, 58 Cal.4th at p. 251.) For example, “ ‘it is entirely
appropriate for the court to set deadlines and to hold the parties strictly to
those deadlines unless a continuance is justified by a concrete showing of
good cause for the delay.’ ” (Ibid.)
The trial court bears some responsibility for the delay in this case.
Over the course of 14 years, the trial court granted every continuance
request, oftentimes without a finding of good cause (at least as reflected in
the record). Other than one occasion in 2010 when it commented, “We have
put this over several times, more than I can count on my hand,” the court
never expressed concern about delay in bringing Kerins to trial. Nor did the
court inquire with Kerins directly whether he agreed to the delay. Kerins
may not have been seeking a speedy trial if, for example, the evaluations
supported his commitment as an SVP. But because the court never inquired,
we do not know with certainty.
25
In this regard this case is similar to Vasquez, where, during the first 14
years of the defendant’s confinement, his case was continued over 50 times
without the record reflecting whether the trial court made a finding of good
cause for the continuances. (Vasquez, supra, 27 Cal.App.5th at pp. 74–75.)
There was also no “record of any inquiry by the trial court as to why the case
was dragging on for so many years.” (Id. at p. 75.) This case is also similar to
DeCasas, where there was “ ‘no record of the court engaging in a
consideration of whether good cause existed for each of the requests to
continue between 2006 and 2018, only of it ever ordering the parties to
appear on the next agreed-upon date.’ ” (DeCasas, supra, 54 Cal.App.5th at
p. 810; see Butler, supra, 55 Cal.App.5th at p. 660 [delay attributable to trial
court when matter was continued over 50 times without evidence that the
trial court required counsel to show good cause, or that trial court made an
on-the-record finding of good cause].)
In other respects, however, the trial court does not share the same level
of responsibility for delays as the trial courts in Vasquez and DeCasas. In
Vasquez, the appellate court was “particularly troubled” by the delay starting
in October 2014, when the defendant’s attorney first reported to the trial
court she needed more time to prepare for trial in light of the staffing cuts at
the public defender’s office. (Vasquez, supra, 27 Cal.App.5th at p. 75.) The
trial court “made its intention known” to set trial in 90 days, but did not do
so. Instead, the court repeatedly continued the case at the public defender’s
request and did not relieve the public defender’s office until two years later in
November 2016. (Id. at pp. 75–76.) The trial court “could have acted sooner”
and “should have considered whether to remove the public defender’s office so
that an attorney with adequate time to prepare the case could assume [the
defendant’s] representation. Indeed, the trial court ultimately took this
26
action, but not until almost two years had passed.” (Id. at pp. 76–77.)
Similarly, in DeCasas, the trial court “enabled and compounded the delays”
caused by staffing cuts by failing to hold parties strictly to deadlines.
(DeCasas, supra, 54 Cal.App.5th at p. 810.) The trial court in DeCasas,
“despite ‘the knowledge that the entire [SVP unit] was struggling with
enormous caseloads, . . . did not inquire whether [DeCasas’s] counsel had the
ability to adequately prepare for trial or whether [DeCasas] would rather
continue with [his assigned counsel] and move at a slower pace or appoint
new counsel and move quickly to trial, nor did it consider removing the
[p]ublic [d]efender’s [o]ffice until 2018, nearly four years after first learning of
the dramatic staffing cuts and the unit’s ensuing struggle.’ ” (Ibid.)
The trial court here, unlike the courts in Vasquez and DeCasas, was not
presented with information from Kerins’s counsel indicating that counsel
lacked the resources to prepare Kerins’s case for trial. Moreover, the bulk of
continuances requested by Kerins’s counsel appeared designed to avoid trial.
Early in Kerins’s case in 2008 and 2009, Rosenthal requested continuances so
Kerins could receive additional treatment in the state hospital and doctors
could perform follow up evaluations. Beginning in April 2013, Simerly
requested and was granted continuances to “explore” and then prepare
motions, per Kerins’s request. Then, in October 2015, Simerly sought
continuances as Kerins and the People worked toward reaching a resolution
of the case. Shikman continued those efforts in 2016 and 2017 after he
replaced Simerly as counsel. After those efforts failed, Shikman, with
Kerins’s consent, began preparing a motion to dismiss in November 2017,
filed the motion in March 2018, then filed a writ petition in our court
challenging the trial court’s ruling, which we denied in May 2018. After
replacing Shikman as attorney in October 2019, attorney Dyer worked up
27
and filed a motion to dismiss and petition for writ of habeas corpus. While it
is possible the trial court could have been more vigilant in moving
proceedings along, we can only hold the trial court responsible to a limited
extent for the delays given the multitude of continuance requests that were
designed to resolve Kerins’s case without a trial.
In sum, Kerins, the People, and the trial court all bear some
responsibility for the delays in this case. But given that Kerins’s attorneys
requested the vast majority of continuances in this case with the apparent
purpose of avoiding a trial, together with the lack of evidence showing a
systemic breakdown of his defense, substantial evidence supports the trial
court’s conclusion that the “great majority” of the delay in this case cannot be
attributed to the state and instead lies with Kerins.
c. Kerins’s Assertion of His Speedy Trial Right
“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,” and a “failure to assert the right will make it difficult
for a defendant to prove that he was denied a speedy trial.” (Barker, supra,
407 U.S. at pp. 531–532.) “ ‘The issue is not simply the number of times the
accused acquiesced or objected; rather, the focus is on the surrounding
circumstances, such as the timeliness, persistence, and sincerity of the
objections, the reasons for the acquiescence, whether the accused was
represented by counsel, the accused’s pretrial conduct (as that conduct bears
on the speedy trial right), and so forth. [Citation.] The totality of the
accused’s responses to the delay is indicative of whether he or she actually
wanted a speedy trial.’ ” (Williams, supra, 58 Cal.4th at p. 238.)
Kerins does not claim that he ever asserted his right to a speedy trial
during the 14-year delay. Instead, he argues he could not have realistically
28
asserted his right to a speedy trial because he was not brought to court after
the May 2007 probable cause hearing. Even if we take Kerins at his word
that he was not present in court after May 2007,3 the record still shows that
Kerins was in contact with his attorneys throughout his case and never
communicated to them that he wished to proceed to trial. Instead, the record
indicates that Kerins authorized his attorneys to seek continuances
throughout the case for a variety of reasons, such as allowing him to receive
further treatment and evaluation at the state hospital, and allowing his
attorneys time to pursue motions to dismiss and reach a resolution with the
People. These circumstances are distinguishable from Butler, where the
defendant made “sincere and repeated demands for a speedy trial . . .
throughout his 12-year period of detention awaiting trial” via letters to the
judge and to his attorneys. (Butler, supra, 55 Cal.App.5th at p. 635.) And,
when the defendant in Butler did appear in court for a Marsden4 hearing, he
claimed that that the public defender’s office had “failed to represent him
competently by declining to bring his case to trial and that he had never
agreed to any continuances.” (Butler, at p. 633.) For the same reason, this
case is also distinguishable from Tran, where the court, despite ultimately
affirming the denial of a motion to dismiss, concluded that the defendant’s
assertion of his speedy trial right weighed in his favor when he “made
numerous demands to speed up the proceedings and objections to his
counsel’s requests for continuances.” (Tran, supra, 62 Cal.App.5th at p. 353.)
3The court minutes indicate that Kerins was in court several times
between 2006 and 2011, but there is reason to doubt the accuracy of the
minutes. Most notably, the minutes for the November 8, 2010 hearing
contain a checked box stating Rosenthal was present, but the text of the
minutes states “DEFENSE ATTORNEY IS NOT PRESENT.”
4 People v. Marsden (1970) 2 Cal.3d 118.
29
Kerins also argues that even had he been brought to court or given the
opportunity to appear remotely, he would have faced the same “Hobson’s
choice” faced by the defendants in Vasquez and DeCasas of waiving his right
to a speedy trial or demanding a speedy trial when his attorneys were not
prepared to proceed. The choice faced by the defendants in Vasquez and
DeCasas stemmed from the public defender’s inability to prepare for trial due
to staffing and budget cuts. (Vasquez, supra, 27 Cal.App.5th at p. 62;
DeCasas, supra, 54 Cal.App.5th at p. 807.) But here, there is no evidence
Kerins faced the similar undesirable choice of going to trial with unprepared
attorneys or not going to trial at all, as nothing in the record suggests that
Kerins’s attorneys would have been unable to prepare for trial if Kerins had
demanded one.
d. Prejudice
We assess prejudice based on the “interests of defendants which the
speedy trial right was designed to protect”—to wit, “(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.” (Barker,
supra, 407 U.S. at p. 532.)
Here, 14 years of pretrial incarceration is “undoubtedly oppressive and
would do little to minimize the anxiety and concern of the accused.” (Tran,
supra, 62 Cal.App.5th at p. 353.) We also have no reason to doubt Kerins’s
assertion that due to the delay in this case, he “has lost a decade and a half of
his life as his health has worsened, and he has lost friends, family,
opportunities to work, and any chance of living outside his hospital prison.”
However, there is no evidence that Kerins has suffered the “ ‘most serious’ ”
type of prejudice—“the inability to adequately prepare his defense.”
(Williams, supra, 58 Cal.4th at p. 236.) Kerins, for example, does not contend
30
that the passage of time has resulted in the loss of evidence critical to the
defense. Nor has he asserted that a disposition at trial now would be less
favorable to him than it would have in the past. We therefore agree with the
trial court that the prejudice factor “does not weigh strongly for or against”
Kerins.
e. Summary of the Barker Factors
Without doubt, the length of the delay in this case cuts sharply in
Kerins’s favor. But that factor does not overwhelm everything else in the
calculus and on balance is not dispositive. Substantial evidence supports the
trial court’s conclusion that Kerins did not assert his right to a speedy trial
and is responsible for almost all of the delay in this case. The final factor of
prejudice at most weighs slightly in Kerins’s favor. Weighing all factors in
their totality, we conclude the trial court was well within its discretion to
reject his speedy trial claim under Barker.
2. Mathews Test
We reach the same conclusion under the more general balancing test
from Mathews v. Eldridge, supra, 424 U.S. 319. Under Mathews, an analysis
of “due process generally requires consideration of three distinct factors:
First, the private interest that will be affected by the official action; second,
the risk of an erroneous deprivation of such interest through the procedures
used, and the probable value, if any, of additional or substitute procedural
safeguards; and finally, the [g]overnment’s interest, including the function
involved and the fiscal and administrative burdens that the additional or
substitute procedural requirement would entail.” (Id. at p. 335.)
Here, the private interest was a significant one, as Kerins has been
subjected to a significant deprivation of liberty during his extended pretrial
detention. (See Vasquez, supra, 27 Cal.App.5th at p. 81 [“confinement for
31
17 years awaiting trial caused a significant deprivation of liberty”].)
However, the record does not indicate that the risk of erroneous deprivation
of Kerins’s liberty interest is anything more than slight. The trial court
found probable cause to commit Kerins as an SVP in 2007 and, despite being
evaluated multiple times since then, Kerins has not cited or provided any
specific evaluation stating he no longer meets the requirements of being
considered an SVP. (See Tran, supra, 62 Cal.App.5th at p. 355 [risk of
erroneous deprivation mitigated when defendant received a probable cause
hearing and was reevaluated numerous times to assess whether he still met
SVP criteria]; accord, Vasquez, supra, 27 Cal.App.5th at pp. 81–82 [risk of
erroneous deprivation from negative evaluation and the defendant entering a
treatment program]; DeCasas, supra, 54 Cal.App.5th at p. 813 [risk of
erroneous deprivation when two psychologists opined the defendant did not
fulfill a requirement of being an SVP].)
As to the government’s interest, “[t]here is no question that ‘the state
has a compelling protective interest in the confinement and treatment of
persons who have already been convicted of violent sex offenses, and who, as
the result of current mental disorders that make it difficult or impossible to
control their violent sexual impulses, represent a substantial danger of
committing similar new crimes . . . .’ ” (Tran, supra, 62 Cal. App. 5th at
p. 355.)
Given this balance of the Mathews factors, the trial court did not abuse
its discretion in concluding that the “government’s interest outweighs the
risk of an erroneous deprivation of petitioner’s liberty.”
C. Ineffective Assistance of Counsel
Separately, Kerins argues that his trial court attorneys provided
ineffective assistance of counsel. Kerins asserts that his “attorneys did not
32
move his case forward or prepare it for trial. Their reasons for continuing his
case were often left unstated; the reasons which do appear in the record for
the most part served no legitimate tactical purpose, and the delay wasted
fifteen years of . . . Kerins’s life.”
An SVP defendant has the right to effective assistance of counsel
protected by both statute (see § 6603, subd. (a)) and the due process clause of
the federal Constitution (see People v. Hill (2013) 219 Cal.App.4th 646,
652–653 [“although the right to effective assistance of counsel in SVPA
proceedings is statutory, that right is protected by the due process clause of
the federal Constitution”]). The parties agree that we should apply the
two-part test from Strickland v. Washington (1984) 466 U.S. 668: “To
establish ineffective assistance of counsel, a petitioner must demonstrate that
(1) counsel’s representation was deficient in falling below an objective
standard of reasonableness under prevailing professional norms, and
(2) counsel’s deficient representation subjected the petitioner to prejudice,
i.e., there is a reasonable probability that, but for counsel’s failings, the result
would have been more favorable to the petitioner.” (In re Wilson (1992)
3 Cal.4th 945, 950, citing Strickland v. Washington, supra, 466 U.S. at p. 687;
see People v. Smith (2020) 49 Cal.App.5th 445, 456 [applying Strickland test
for ineffective assistance of counsel to SVP proceeding].) “When examining
an ineffective assistance claim, a reviewing court defers to counsel’s
reasonable tactical decisions, and there is a presumption counsel acted within
the wide range of reasonable professional assistance.” (People v. Mai (2013)
57 Cal.4th 986, 1009.)
Here, Kerins has offered no evidence to rebut the presumption that his
attorneys provided reasonable assistance. Although Kerins claims that his
various attorneys should have done more to “move the case forward,” he has
33
not identified any specific decisions by his attorneys that should have been
handled differently. Moreover, his attorneys had legitimate reasons for
requesting continuances in many cases, such as providing more time for
Kerins to receive further treatment at the state hospital and receive updated
evaluations, accommodating the attorneys’ medical needs and retirements,
and providing the attorneys the opportunity to file motions to dismiss and
engage in settlement discussions. In addition, pretrial delay will often work
to a defendant’s advantage in an SVP case; because the key issue in an SVP
trial is whether the defendant currently suffers from a mental disorder that
makes him a danger to society (see § 6600, subd. (a)(3)), an SVP defendant
facing adverse evaluations may prefer to receive further treatment and be
reevaluated rather than proceed to trial.
Accordingly, we conclude Kerins has not established a claim for
ineffective assistance of counsel.
Although we have rejected Kerins’s legal claims, we cannot condone the
course of proceedings in his case. Kerins’s attorneys, when requesting
continuance after continuance, should have stated the reasons for the request
on the record and kept the trial court and district attorney informed whether
Kerins consented to the continuances. The district attorney should have
objected to any continuance that was not supported by good cause, and also
taken proactive measures to push the case toward trial. (See Butler, supra,
55 Cal.App.5th at p. 655.) And the trial court should have strictly held the
parties to deadlines absent a showing of good cause, and inquired whether
Kerins consented to the repeated continuances. “[T]rial courts must be
vigilant in protecting the interests of the defendant, the prosecution, and the
public in having a speedy trial.” (Williams, supra, 58 Cal.4th at p. 251.)
“As the ‘captain of the ship,’ the trial court cannot passively preside over a
34
case as it moves forward at a snail’s pace without a trial date in sight.”
(Vasquez, supra, 27 Cal.App.5th at p. 81.) We encourage the parties and trial
court in this case—and in every SVP case—to take these simple measures to
safeguard an SVP defendant’s right to a speedy trial.
III. DISPOSITION
The petition for writ of habeas corpus is denied.
STREETER, Acting P. J.
WE CONCUR:
GOLDMAN, J.
WHITMAN, J.*

Judge of the Superior Court of California, County of Alameda,
assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
35
Trial Court: Superior Court of California, City and County of San Francisco
Trial Judge: Hon. Loretta Giorgi
Counsel: Jay Dyer for Petitioner.
Rob Bonta, Attorney General, Lance E. Winters, Chief Assistant
Attorney General, Jeffery M. Laurence, Senior Assistant
Attorney General, Catherine A. Rivlin, Supervising Deputy
Attorney General, and Gregg E. Zywicke, Deputy Attorney
General, for Respondent.
In re Kerins – A165304