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Filed 7/15/14 P. v. Rainwater CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

COPY

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JOHN ALLEN RAINWATER,

Defendant and Appellant.

C066609

(Super. Ct. No. CR62727)

Defendant John Allen Rainwater appeals from an order committing him to the 

State Department of Mental Health for an indeterminate term after a jury found him to be 

a sexually violent predator (SVP) within the meaning of the Sexually Violent Predators 

Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.; unless otherwise stated, statutory 

references that follow are to the Welfare and Institutions Code). Defendant contends 

insufficient evidence supports the verdict, the trial court twice erred when instructing the 

jury, the court erroneously denied his motion for new counsel and his motion to dismiss 
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for violating his due process right to a speedy trial, and that his special counsel, appointed 

to represent him on his motion to dismiss, was ineffective. Defendant also argues his 

indeterminate commitment violates the equal protection, ex post facto, and double 

jeopardy clauses of the federal constitution. We conclude none of defendant’s 

contentions have merit and affirm the commitment order.

FACTS AND PROCEEDINGS

A. Juvenile and Criminal History

Defendant began assaulting small boys, all of whom were strangers to him, when 

he was very young. In 1974, when defendant was 10, he lured a four-year-old boy to a 

secluded area and severely beat him in the head with a two-by-four. He pulled chucks of 

the boy’s hair out, pulled his pants down and looked at the boy’s buttocks. Defendant 

was arrested, made a ward of the state, and placed in a mental facility. Several group 

home placements followed. 

At 13, shortly after being released from a group home, defendant accosted a 

seven-year-old boy he saw playing near a ditch. He forced the boy’s pants down and

masturbated the boy and himself. That same year, defendant told another seven year old 

boy he encountered about magic rocks in some nearby bushes. After luring the child into 

the bushes, defendant forced the child to masturbate him and defendant masturbated the 

child. Defendant admitted to orally copulating both boys. Based on these assaults, 

defendant was arrested for child molestation and later pleaded guilty to annoying a child. 

He was placed in several more group homes. 

Defendant was eventually released to his parents when he was 15. Like before, he 

sought out and molested more victims a short time later. He saw a seven-year-old boy 

walking home from swimming lessons. Defendant was riding a bike and enticed the boy 

to get on the bike by telling him he would buy him a soda. Defendant rode to a secluded 

area, slapped the child in the face and threatened him, pulled his pants down, put his 
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mouth on the child’s buttocks, and also forced the child to masturbate him. He also tried 

to sodomize the boy. Later that year, defendant was out trolling for another victim. He 

approached an 11-year-old boy walking home from school and forced the boy onto his 

moped. He drove the boy to a closed drive-in movie theater. After slapping the boy and 

forcing him to undress, he orally copulated and sodomized the child. Defendant 

threatened to kill the boy if he told. For these offenses, defendant was charged with 

sodomy, child molestation, oral copulation, kidnapping, and assault and battery. He 

pleaded to child molestation and was sentenced to six years in the California Youth 

Authority. 

When he arrived at the Youth Authority, defendant volunteered for the WINTU 

program, which provides treatment in a therapeutic setting. While at WINTU, defendant 

wrote that he thought about killing himself, his parents, and a staff member and his little 

boy, had killed animals for no reason, and fantasized about watching little boys cry in 

pain as he molested them. Defendant also wrote about plans to escape. 

On November 23, 1981, when he was 17, defendant did escape with the intent to 

molest more victims. Within 24 hours, he accosted two young boys, aged 10 and 11. 

Defendant encountered the friends coming home from school. He lured them to the 

railroad tracks under the guise of seeing a train wreck. Defendant grabbed the boys and 

forced them to the ground. He removed their clothes and tied them together using their 

shoe laces. Defendant forced the boys to orally copulate each other. He also forced one 

boy to orally copulate him and then he sodomized the boy. Defendant fled on one of the 

boys’ bikes and was later arrested. 

Defendant was prosecuted as an adult. In March 1982, defendant pleaded guilty to 

commission of forcible lewd and lascivious acts on a child under 14 years of age (Pen. 

Code, § 288, subd. (b)), forcible oral copulation of a child under 14 years of age (Pen. 

Code, § 288a, former subd. (c)), forcible sodomy (Pen. Code, § 286, former subd. (c)), 

and robbery (Pen. Code, § 211). He was sentenced to 25 years in prison. 
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B. Prison and Parole

Defendant served nearly 13 years of his sentence and sustained numerous 

disciplinary violations while incarcerated. He was paroled in December 1994. 

Defendant violated parole several times and was returned to custody for months at a time. 

While out on parole in 1997, defendant saw a young boy on the street and fantasized 

about molesting him. The fantasies were so intense that defendant called his parole agent 

and asked to be incarcerated in the county jail until the fantasies dissipated. He was 

released after four days. A few days later, defendant violated curfew and a warrant was 

issued for his arrest. Defendant was ultimately apprehended near the location where he 

orally copulated and sodomized his last victims. SVP proceedings were initiated against 

defendant while serving time for that parole violation. 

C. SVPA Petitions

The Sacramento County District Attorney filed the initial petition alleging 

defendant was an SVP in 1997. Trial on the petition resulted in a hung jury. Defendant

waived his right to a subsequent jury trial and submitted the matter to the court for 

decision. In June 1998, the court found the petition true beyond a reasonable doubt and 

ordered defendant committed to Atascadero State Hospital for a two-year term. This 

court affirmed the judgment on appeal. 

In May 2000, defendant stipulated that he remained an SVP. He agreed to extend 

his commitment until June 2, 2002. 

In March 2002, the prosecutor filed a petition to extend defendant’s commitment 

until June 2, 2004 (first extension petition). In July the court found probable cause to 

hold defendant over for trial. Trial on the first extension petition was set for October 

2002. This trial date was subsequently continued several times, both at the request of 

defendant’s counsel and the prosecutor. Trial was ultimately reset for April 5, 2004. 
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In February 2004, the prosecutor filed another petition to extend defendant’s 

commitment until June 2, 2006 (second extension petition). With both parties’ consent, 

the April trial date on the first extension petition was vacated so the court could conduct a 

probable cause hearing on the second extension petition prior to trial. Initially set for 

April 2004, the probable cause hearing commenced in May and was continued to July 

2004. The court found probable cause to believe defendant continued to meet the SVP 

criteria and trial was set in November 2004. The parties requested several continuances 

and trial was reset for March 28, 2006. 

Four days before trial, on March 24, the prosecutor filed another petition to extend 

defendant’s commitment until June 2, 2008 (third extension petition). Trial on the 

previous extension petitions was vacated to conduct a probable cause hearing on the third 

extension petition. The probable cause hearing commenced in April, was continued to 

May, and later concluded in June 2006. The court found probable cause that defendant

met the criteria for recommitment as an SVP and continued the matter to August 2006 for 

further proceedings. The matter was continued over the next two months, either at 

defendant’s request or with his counsel’s agreement, and trial was eventually set for 

March 6, 2007. 

We note that the Legislature amended the SVPA in September 2006 to lengthen 

the term of an SVP commitment from two years to an indeterminate term; a voter 

initiative that passed in November 2006 made similar changes. (Senate Bill 1128, Stats. 

2006, ch. 337, § 55 (eff. Sept. 20, 2006) [amending Welf. & Inst. Code, § 6004]; Prop. 

83, §§ 27, 28 (eff. Nov. 8, 2006).] 

Because defendant’s counsel was in trial on another matter, defendant’s trial was 

continued to the end of the month. The matter was again continued to April 11, 2007,

apparently because defendant’s counsel was preparing a writ petition to this court 

challenging whether recent amendments to the SVPA deprived the court of jurisdiction 

over pending recommitment petitions like defendant’s. The writ petition challenging the 
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jurisdictional issue was later filed in Bourquez v. Superior Court (2007) 156 Cal.App.4th 

1275, review denied February 27, 2008, (Bourquez) defendant was not a named party in 

the writ petition. 

In light of the writ filing, the trial court stayed numerous SVP recommitment 

cases, including defendant’s matter. The prosecutor subsequently filed an amended 

petition to extend defendant’s commitment indefinitely under the amended law. 

The trial court continued to stay defendant’s case pending the Third District’s 

ruling on the writ petition in Bourquez. This court denied the writ in November 2007. 

(Bourquez v. Superior Court, supra, 156 Cal.App.4th 1275.) 

Following denial of the writ in Bourquez, defendant’s matter was continued 

several more times until January 2009. Defendant was present during these hearings and 

did not object to his counsel’s requested continuances. The case was continued twice 

more to April 10, 2009, after which the court continued the matter on several occasions 

until August 2009 to address a motion to dismiss filed by defendant. 

On August 31, 2009, two days after the court denied the motion to dismiss, 

defendant’s counsel requested a December trial date. To allow a defense expert to review 

his files and evaluate him, defendant agreed to a trial date on January 6, 2010. The trial 

was trailed twice at defendant’s counsel’s request and then reset with defendant’s consent 

to February 22, 2010, due to an unavailability of defense experts and further required 

preparation. 

On February 10, 2010, defense counsel requested a further continuance to May 11, 

2010, because he was in trial on another matter. The court granted the continuance over 

defendant’s objection. 

The matter was continued five more times until October 19, 2010, sometimes at 

defense counsel’s request and apparently with defendant’s consent, and other times due 

to the lack of an available courtroom. 
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D. Motion and Writ Filings

Before the case was tried, defendant petitioned several times in the trial court for 

writs of habeas corpus to dismiss the proceedings and filed several motions to substitute 

counsel. Between 2007 and 2008, defendant filed two petitions for writs of habeas 

corpus in the court below challenging the court’s jurisdiction over the recommitment 

petitions in light of the changes to the SVPA as well as the use of certain protocols at his 

original SVP trial in 1998 and again in the recommitment proceedings. The court denied 

both petitions. 

Defendant filed a third pro. per. petition for writ of habeas corpus in January 2009,

claiming he had been denied a speedy trial on the petitions to extend his commitment as 

an SVP. The writ petition cited People v. Litmon (2008) 162 Cal.App.4th 383 (Litmon)

as support for dismissal. The court summarily denied the petition on February 24, 2009, 

without prejudice to raising the issue in a motion before the trial court. 

Approximately three weeks later, defendant filed a pro. per. motion to dismiss 

based on Litmon raising the speedy trial issue. At the end of May 2009, the court 

appointed special counsel to represent defendant on the motion to dismiss. After further 

briefing and argument, the court denied the motion on August 28, 2009, concluding the 

length of delay was reasonable in light of the factors discussed in Litmon. 

On February 9, 2010, defendant filed a fourth pro. per. petition for writ of habeas 

corpus in the trial court asserting his speedy trial rights had been denied but also claiming 

he was now being forced to go to trial against his will. The court later denied the writ 

without prejudice to raising the issue in a motion before the trial court. It does not 

appear, based on the record, that defendant ever filed a motion to dismiss in the trial court 

following the February 2010 denial of his writ petition. And, although defendant twice 

raised his claim of denial of a speedy trial by a writ of habeas corpus in the trial court, he 

did not seek pretrial appellate resolution of that issue.
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In addition to the numerous writ petitions, defendant also filed multiple motions

under People v. Marsden (1970) 2 Cal.3d 118 (Marsden), to relieve his appointed 

counsel, Mr. Saria. On May 26, 2009, defendant filed a Marsden motion, or 

alternatively, a motion to represent himself pursuant to Faretta v. California (1975) 422 

U.S. 806 [45 L.Ed.2d 562]. On June 15, 2009, defendant withdrew the motion and 

agreed Mr. Saria could continue representing him as trial counsel because Mr. Saria knew 

his case better than any other attorney. Approximately 10 days later, on June 24, 2009, 

defendant filed a second Marsden motion to relieve Mr. Saria. Defendant appears to 

have renewed the motion on August 28, 2009, but three days later withdrew the motion 

and agreed that Mr. Saria could continue to represent him. 

Defendant filed another Marsden motion on February 10, 2010. The court held a 

closed hearing and denied the motion that same day. The court found compelling Mr. 

Saria’s testimony, confirmed by the defense’s investigator, that defendant agreed to 

continue trial while he progressed through treatment at the hospital, and that he had no 

interest in going to trial because he anticipated losing. The court expressly disbelieved 

defendant’s testimony to the contrary.

E. Trial Proceedings

The jury trial to determine whether defendant qualified as an SVP during the

period beginning in June 2002 finally commenced in October 2010. Two expert 

psychologists, Drs. Longwell and Starr, testified for the People. Each psychologist met 

and evaluated defendant approximately 10 times. 

The psychologists reviewed reports from defendant’s first commitment, probation 

reports, his legal history, hospital records, and notes by his treatment team. They 

diagnosed defendant as currently suffering from several mental disorders, including 

pedophilia (sexually attracted to prepubescent boys, nonexclusive), bipolar two disorder 
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in partial remission, antisocial personality disorder, sexual sadism, and personality 

disorder not otherwise specified with antisocial and borderline features. 

In addition to interviewing defendant and reviewing his records, Drs. Longwell 

and Starr used a variety of actuarial tools to assess defendant’s risk if released. Each of 

these risk assessment tools put defendant in the high risk category for reoffending. Based 

on defendant’s criminal and medical history, defendant’s failure to complete all phases of 

treatment while committed at the hospital and while out on parole, and defendant’s high 

risk scores on the actuarial instruments, Drs. Longwell and Starr testified that defendant 

had a substantial, well-founded risk of reoffending and they did not believe defendant 

could control his behavior if released into the community. 

Two experts testified for the defense. Dr. Heard challenged the adequacy of the 

actuarial tools used to predict whether defendant could control his behavior or whether he 

was likely to reoffend, but he conceded that he had never evaluated defendant or 

reviewed his records. Dr. Podboy testified that he evaluated defendant twice and 

diagnosed him with pedophilia by history, meaning defendant previously suffered from 

pedophilia but that currently he did not suffer from the disorder. In Dr. Podboy’s 

opinion, defendant could control his behavior and was unlikely to commit violent sexual 

acts if released. Unlike the prosecution experts, he did not use any actuarial instruments 

when evaluating defendant but instead relied on his observations and clinical judgment 

alone. 

The jury found the allegations in the petition to be true, and the trial court ordered 

defendant committed for an indeterminate term as an SVP. This appeal followed. 
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DISCUSSION

I

Sufficient Evidence Supports the Verdict

Defendant contends insufficient evidence supports the jury’s finding that he is an 

SVP because evidence regarding the etiology, or cause, of his diagnosed mental disorder

--pedophilia--is lacking. We disagree.

The requirements for classifying someone as an SVP are set forth in section 6600. 

The statute defines a “[s]exually violent predator” as “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.” (§ 6600, subd. 

(a)(1).) The phrase “[d]iagnosed mental disorder” includes “a congenital or acquired 

condition affecting the emotional or volitional capacity that predisposes the person to the 

commission of criminal sexual acts in a degree constituting the person a menace to the 

health and safety of others.” (§ 6600, subd. (c).) Thus, to commit defendant as an SVP, 

the jury had to find that defendant was previously convicted of a violent sexual offense 

and that he suffered from a mental disorder affecting his volitional or emotional capacity

thereby making him a danger to others because he was likely to engage in sexually 

violent criminal behavior. (People v. Poulsom (2013) 213 Cal.App.4th 501, 517.) 

Defendant does not dispute that his prior convictions qualify as sexually violent 

offenses within the meaning of the statute. (§ 6600, subd. (b) [defining “[s]exually 

violent offense” to include violations of Penal Code sections 286, 288, and 288a].) He 

challenges only the sufficiency of the evidence bearing on the latter requirement. 

According to defendant, one cannot decide whether a mental disorder makes the person a 

danger unless one understands the underlying cause or root of the condition itself. 
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But the root cause of defendant’s mental disorder is not relevant under the statute. 

Instead, section 6600 requires only that defendant’s mental disorder causes him to be a 

danger to others in that he is likely to engage in sexually violent predatory behavior. 

(§ 6600, subd. (a)(1).) The underlying etiology of the mental disorder--or what made him 

a pedophile in the first instance--is simply not in question. When viewed in the proper 

context, then, the issue is whether the record contains sufficient evidence that defendant

is a danger to society because his diagnosed pedophilia makes it likely he will commit 

predatory acts of sexual violence if released. 

We review the entire record in the light most favorable to the judgment to 

determine whether substantial evidence supports the jury’s determination that defendant 

currently suffers from a diagnosed mental disorder as described by the statute. (People v. 

Mercer (1999) 70 Cal.App.4th 463, 466.) To be substantial, the evidence must be “ ‘ “of 

ponderable legal significance . . . reasonable in nature, credible and of solid value.” ’ ” 

(Ibid.) “ ‘[I]t is the exclusive province of the trial judge or jury to determine the 

credibility of a witness and the truth or falsity of the facts on which that determination 

depends.’ ” (People v. Poulsom, supra, 213 Cal.App.4th at p. 518.) If substantial 

evidence supports the verdict, “ ‘we must accord due deference to the trier of fact and not 

substitute our evaluation of a witness’s credibility for that of the fact finder.’ [Citation.] 

This is true even in the context of expert witness testimony.” (Ibid.) The credibility of 

an expert and his conclusions are to be resolved by a jury; “ ‘[w]e are not free to reweigh 

or reinterpret [that] evidence.’ ” (Ibid.) Cognizant of these principles, we turn to 

examine the record in the present case.

We are satisfied the testimony of the People’s experts constitutes substantial 

evidence supporting the jury’s true finding that defendant qualifies as an SVP. At the 

time of trial, Dr. Longwell had conducted more than 800 SVP evaluations and risk 

assessments and Dr. Starr had conducted approximately 1,400. In approximately 85 to 90

percent of those SVP evaluations, they concluded the potential committees did not meet 
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the SVP criteria. Thus, Drs. Longwell and Starr were well qualified to offer an opinion 

about whether defendant satisfied the SVP criteria. 

After evaluating defendant over 10 times, Dr. Longwell opined that defendant 

currently suffers from a mental disorder that causes him to lack the ability to control his 

sexually violent behavior thus making it likely he would reoffend if released. Her 

opinion was based on several factors. She described the five phased sex offender 

treatment program at Atascadero State Hospital as well as a parole outpatient sex 

offender treatment program, both of which defendant failed to complete. Dr. Longwell 

linked the significance of defendant’s failure to complete either treatment program with 

his potential to reoffend by citing studies showing those who begin sex offender 

treatment but do not complete it are at a higher risk for sexual recidivism than those who 

never begin treatment at all. She testified defendant was highly unlikely to enroll in or 

complete a sex offender treatment program if released from confinement. 

Dr. Longwell also assessed defendant’s sexual recidivism risk by considering both 

static and dynamic actuarial based risk factors associated with sexual recidivism in 

known sex offenders. Defendant scored in the high risk category on each of the four 

actuarial instruments commonly used by psychologists to assess such risk. Among other 

things, defendant’s early onset of offending, his institutionalization and separation from 

his family when he was very young, and his antisocial personality disorder increased 

defendant’s risk of reoffending if released. 

Dr. Longwell also expressed her concern that at the age of 30, after having served 

over 10 years in prison, defendant was almost immediately tempted to molest another 

young victim he happened to encounter while on parole. His sexually deviant urges were 

so strong that he was unable to control them himself and he had to request external 

controls--being placed in jail--to avoid reoffending. 

Like Dr. Longwell, Dr. Starr testified to defendant’s extremely high scores on the 

actuarial instruments she administered, which placed him in the highest risk category to 
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recidivate upon release. The fact that all of his victims were strangers also increased his 

risk of reoffending. Dr. Starr also stated defendant’s attendance in the treatment program 

had been sporadic, that at times he had been removed from the program because he was 

engaging in sadistic behavior with another patient at the hospital who was also a 

pedophile with underage male victims, and that he had manipulated and faked treatment 

results. She also testified that defendant had continued to act out sexually while 

committed even though defendant was taking Lupron, a drug intended to lower 

testosterone and decrease deviant sexual thoughts. Although defendant had been 

committed for a long time, Dr. Starr testified that he still lacked the coping skills and 

behaviors as well as a relapse prevention plan necessary to keep the community safe if 

released. All of these factors, in Dr. Starr’s opinion, increased defendant’s recidivism 

risk. 

While defendant’s expert, Dr. Heard, challenged the adequacy of the actuarial 

tools Drs. Longwell and Starr used to assess whether defendant could control his 

behavior or whether he was likely to reoffend, he conceded that he in fact had used such 

tools to conduct risk assessments in other court cases when evaluating child molesters. 

Dr. Heard admitted he never evaluated defendant or reviewed his extensive hospital 

records. He conceded his opinion was not based on anything factually related to 

defendant, and further admitted that research showed a person like defendant who 

offended against male victims was likely to reoffend at a higher rate than someone who 

had female victims. 

Defendant’s other expert, Dr. Podboy, never evaluated defendant using any 

actuarial tools commonly used in psychology, instead relying solely on his own 

observations in forming his opinion as to whether defendant was likely to reoffend if 

released. But as both prosecution expert’s testified, relying on a psychologist’s clinical 

judgment alone is not a good indicator of risk; indeed, it is little better than chance. 

While Dr. Podboy testified defendant was a model patient in the hospital and therefore 
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was unlikely to be dangerous if released, upon cross examination he conceded the 

contrary. Following his testimony and outside the presence of the jury, the court 

commented that “it seemed to [the court] the vast bulk of factors upon which his opinion 

relied upon ha[d] been disproved by evidence presented in court.” 

The credibility of the experts and their conclusions were matters resolved against 

defendant by the jury. We are not free to reweigh or reinterpret the evidence. (Mercer, 

supra, 70 Cal.App.4th at pp. 466-467.) Moreover, we must draw all reasonable 

inferences in favor of the judgment. (Id. at p. 467.) The jury could reasonably believe 

the evidence of the prosecution witnesses and reject that of the defense witnesses. We 

therefore conclude that sufficient evidence existed from which a rational trier of fact 

could determine defendant lacked the ability to control his sexually violent behavior and 

would likely reoffend if released.

To the extent defendant argues the opinions of Drs. Longwell and Starr are too 

conclusory to support such a finding, we disagree. Defendant’s reliance on Jennings v. 

Palomar Pomerado Health Systems (2004) 114 Cal.App.4th 1108 (Jennings), a medical 

malpractice case, is misplaced. At issue in Jennings was whether the plaintiff had 

sufficiently proven a surgeon’s negligent act of leaving a retractor in a patient during 

surgery caused a post-operative infection in a different location than where the instrument 

was left. (Jennings, supra, 114 Cal.App.4th at pp. 1115-1116.) The court had no 

occasion to consider expert testimony under the SVPA. A case is not authority for a 

proposition not considered. (Santisas v. Goodin (1998) 17 Cal.4th 599, 620.)

Even if Jennings were somehow relevant, however, Drs. Longwell and Starr 

provided reasoned explanations connecting the factual predicates underlying their 

opinions to their ultimate conclusion that defendant posed a substantial and serious risk to 

the public if released because he could not control his sexually violent conduct. 

(Jennings, supra, 114 Cal.App.4th at p. 1117 [expert opinion based on assumptions of 

fact without evidentiary support have no value].) Drs. Longwell and Starr did not, as 
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defendant contends, simply conclude defendant was an SVP because he was a pedophile. 

Instead, the prosecution’s experts linked their ultimate opinion to such underlying facts as 

the nature of defendant’s crimes, the early onset of his offending, the presence of male 

victims who were strangers to him, his extremely high risk assessment scores, his failure 

to complete treatment, his antisocial personality disorder, and the lack of a valid relapse 

prevention plan. This distinguishes their opinions from the one struck down by the court 

in Jennings, which merely relied on conjecture and speculation. (Id. at pp. 1115-1116) 

II

Instructional Error

Defendant contends the trial court twice erred when instructing the jury on the 

requirements for recommitting him as an SVP. First, defendant argues the court failed to 

separately instruct the jury that he had to have a serious difficulty controlling his sexually 

violent behavior. We disagree and find the jury was adequately instructed. Second, 

defendant argues the court should have instructed the jury that his alleged amenability to 

voluntary treatment lessened his chance of reoffending. Even if the court erred in 

instructing the jury regarding the amenability to treatment, defendant’s second claim fails 

for lack of prejudice given the evidence and arguments presented during trial. 

A. Control Instruction

Defendant argues the trial court had a sua sponte duty to instruct the jury that it 

had to find defendant had a serious difficulty controlling his sexual behavior before it 

could commit him as an SVP. We determine independently whether a jury instruction 

correctly states the law. (People v. Ramos (2008) 163 Cal.App.4th 1082, 1088 [court 

“determine[s] whether a jury instruction correctly states the law under the independent or 

de novo standard of review”].) Our task is to determine whether the trial court “ ‘fully 

and fairly instructed on the applicable law.’ ” (Ibid.) We consider the instructions as a 

whole as well as the entire record of trial, including the arguments of counsel. (People v. 
16

Franco (2009) 180 Cal.App.4th 713, 720.) If reasonably possible, instructions are 

interpreted to support the judgment rather than defeat it. (Ibid.) We conclude the court 

had no duty to give a separate “control” instruction.

The court instructed the jury with CALCRIM No. 3454, which generally recites 

the language of section 6600 and case law interpreting the statute. The instruction

contains three elements the People must prove beyond a reasonable doubt: “1. (He/She) 

has been convicted of committing sexually violent offenses against one or more victims; 

[¶] 2. (He/She) has a diagnosed mental disorder; [¶] [AND] 3. As a result of that 

diagnosed mental disorder, (he/she) is a danger to the health and safety of others because 

it is likely that (he/she) will engage in sexually violent predatory criminal behavior (;/.)” 

(CALCRIM No. 3454 (2009-2010 ed.) at p. 1051.) A fourth element is required if 

evidence has been introduced at trial on the issue of amenability to voluntary treatment in 

the community. Under those circumstances, the court is directed to instruct the jury that 

the People must also prove: “4. It is necessary to keep (him/her) in custody in a secure 

facility to ensure the health and safety of others.” (Ibid.) The trial court instructed the 

jury on the first three elements under CALCRIM No. 3454, but not on the fourth. 

Defendant concedes the Supreme Court has determined an instruction that tracks 

the statutory language, like the one given here, necessarily includes the concept of serious

difficulty in controlling one’s behavior and negates any need for a separate “control” 

instruction. (People v. Williams (2003) 31 Cal.4th 757, 759 [the statutory language 

“inherently encompasses and conveys to a fact finder the requirement of a mental 

disorder that causes serious difficulty in controlling one’s criminal sexual behavior”].) 

Nonetheless, defendant argues a specific control instruction was required based on the 

prosecution’s opening statement and closing argument, which, according to defendant, 

suggested that a mere diagnosis of pedophilia could satisfy the SVPA requirements

without regard to whether it affected defendant’s ability to control his sexual behavior. 

The record belies his argument. 
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A review of the prosecutor’s arguments during trial reveals nothing misleading. In 

her opening statement, the prosecutor plainly set forth that the jury was tasked with 

determining whether defendant had been convicted of a qualifying offense, whether he 

suffered from a diagnosable mental disorder, and whether that mental disorder made him 

a danger to the health and safety of others such that it was likely he would engage in 

sexually violent predatory behavior if released. The prosecutor’s argument did not 

suggest that the jury had to decide only that defendant suffered from a diagnosed mental 

disorder before committing him as a SVP. 

The prosecutor’s closing argument similarly framed the three issues facing the 

jury. “[T]o keep you focused you may want to get a pad and paper and have someone 

write down your three requirements, the three things that you’re being asked to find to 

guide your discussions.” And, throughout her closing, the prosecutor also emphasized 

defendant’s inability to control his behavior. “He knows his sexual attacks on these 

children are wrong and he cannot control himself.” “He cannot control himself. He 

cannot control himself. And that is as of 2009.” “And experts have told us without 

question that this is someone who is not yet in a position where he can demonstrate that 

he can control his behavior.” Had the prosecutor argued the mere diagnosis of a mental 

disorder was sufficient, there would have been no need to focus on defendant’s lack of 

control.

Even assuming the smallest possibility that the jury’s task was unclear, defense

counsel readily cleared up any possible misconception by repeatedly focusing on the 

control issue during his closing. For example, counsel stated, “What I’m asking you is 

this, this question: Does this conduct prove to me beyond a reasonable doubt that he 

cannot control himself? Because that is the legal requirement. Serious difficulty 

controlling himself.” Defense counsel further cautioned the jury: “And as Dr. Longwell 

said, the fact that you have that diagnosis does not automatically mean that meets Criteria 

B. There still has to be the parts of affecting ability to control and predisposition issues.” 
18

Based on defendant’s closing argument, the jury was well aware of the need to consider 

whether defendant suffered from a control-impairing disorder that made him dangerous 

to the public because he was likely to commit sexually violent predatory acts. 

The instruction given by the court adequately informed the jury that “one is not 

eligible for commitment under the SVPA unless his or her capacity or ability to control 

violent criminal sexual behavior is seriously and dangerously impaired.” (Williams, 

supra, 31 Cal.4th at pp. 776-777.) The prosecutor’s opening and closing statements, 

moreover, did not suggest that a pedophilia diagnosis alone was sufficient to recommit 

defendant as an SVP. And the defense closing argument repeatedly stressed the need to 

find defendant’s diagnosed mental disorder rendered him unable to control his sexually 

violent conduct. No further clarifying instruction was required. 

B. Amenability to Treatment Instruction

Defendant’s challenge regarding the necessity of an amenability to treatment 

instruction is two-fold. First, citing People v. Grassini (2003) 113 Cal.App.4th 765 

(Grassini), defendant argues the court had a sua sponte duty to instruct the jury that 

evidence of amenability to voluntary treatment in the community was relevant to whether 

he was likely to reoffend under section 6600. Because the court failed to so instruct the 

jury, defendant contends reversal is required. 

Second, defendant challenges CALCRIM No. 3454 to the extent it directs a trial 

court to instruct the jury that the People must also prove “[i]t is necessary to keep 

(him/her) in custody in a secure facility to ensure the health and safety of others”

whenever evidence is introduced at trial on the issue of amenability to voluntary 

treatment in the community. (CALCRIM No. 3454, supra, at p. 1051 [quoting element 4 

of the instruction].) Defendant argues the above-quoted language regarding the necessity 

of keeping a person in a secure facility does not adequately convey the concept of 

amenability to voluntary treatment and its relevance in determining a person’s ultimate 
19

dangerousness for reoffending as set forth in Grassini. We address each challenge in 

turn. 

Grassini held that where evidence is presented that a person is amenable to 

voluntary treatment in the community, the court has a sua sponte duty to instruct on the 

necessity of custodial treatment to keep society safe. (Grassini, supra, 113 Cal.App.4th 

at p. 777.) Even if we assume the evidence defendant cites was sufficient to trigger the 

sua sponte duty to instruct the jury as described in Grassini, we are satisfied the court’s 

failure to so instruct was harmless beyond a reasonable doubt given the evidence 

presented and the arguments of counsel. (Grassini, supra, 113 Cal.App.4th at p. 778 

[failure to instruct on the concept of amenability to treatment was harmless beyond 

reasonable doubt]; Chapman v. California (1967) 386 U.S. 18, 24 [17 L.Ed.2d 705, 710-

711].) The jury was adequately informed of the amenability to voluntary treatment 

concept and would not have come to a different result had it been so instructed. 

(Grassini, supra, 113 Cal.App.4th at p. 778.)

The evidence at trial showed the following. Defendant often failed to engage in 

meaningful treatment, dropped out or stopped going when he did not feel like attending, 

and faked treatment responses. Defendant testified that he gave the appearance of 

progressing through the program, but in reality, he acknowledged he was not. Defendant

also consistently lied and manipulated people. Defendant even admitted to lying while 

testifying about his post release plans to move to Chicago to live with an apparently 

fictional person named John. 

Given defendant’s failure to complete treatment while on parole and during his 

confinement, Dr. Longwell opined that he was unlikely to obtain, much less complete, 

voluntary sex offender treatment if released from custody. (People v. Ghilotti (2002) 

27 Cal.4th 888, 926 [evaluators can consider whether a person “can be trusted to pursue 

the necessary treatment voluntarily upon release”].) Dr. Starr testified that in her opinion 

defendant needed to remain in a locked facility to continue treatment. 
20

Based on such evidence, the prosecutor argued defendant had not been sufficiently 

rehabilitated and that defendant was at high risk for reoffending because he could not 

control his violent sexual impulses. The prosecutor told the jury it had to decide whether 

defendant “need[ed] to stay in the hospital and finish the treatment program,” and that 

defendant was trying to “manipulate his way through the system.” She characterized 

defendant’s attitude towards participating in treatment as “I should be able to go when I 

feel like it, and if I don’t feel like it, I ain’t going.” She summed up her argument as 

follows: “[Defendant] is willing to tell us what he thinks we want to hear, what he thinks 

you want to hear; that he will seek and maintain programs voluntarily out in the 

community. He doesn’t have to pay for treatment that is being offered for him in the 

hospital and he cannot even demonstrate a commitment to that treatment there . . . 

[Defendant] would drop out and not complete any program voluntarily if he ever signed 

up at all.” 

Defense counsel argued defendant was unlikely to reoffend because he could 

effectively control his behavior. Counsel argued defendant agreed to engage in treatment 

if released and discussed defendant’s relapse prevention plan. In response to the 

prosecutor’s argument that defendant’s historic failures in attending treatment made it 

unlikely he would voluntarily attend treatment if released, defense counsel noted 

defendant had engaged in treatment for 14 years, and that he only missed treatment 

sessions as a means of protest through civil disobedience. Rather than showing defendant 

was unlikely to voluntarily attend treatment in the community, defense counsel argued 

missing treatment sessions actually demonstrated that defendant had volitional control 

and would be unlikely to reoffend. 

The issue of whether defendant was amenable to undergoing voluntary treatment 

in the community if released from custody thereby reducing his dangerousness was thus 

placed squarely before the jury. On this record, we conclude that there is no reasonable 
21

possibility the jury would have arrived at a result more favorable to defendant had the 

language at issue been included in the instruction.

As to defendant’s latter claim that CALCRIM No. 3454’s language regarding the 

necessity of keeping a person in a secure facility does not adequately convey the concept 

of amenability to treatment, we need not resolve the issue here. It is undisputed the trial 

court did not include this language when instructing the jury with CALCRIM No. 3454. 

The meaning and import of that precise language, then, is not before the court for 

consideration. Accordingly, we do not decide whether CALCRIM No. 3454 as presently 

written adequately conveys the concept of amenability to treatment. (People v. Alvarez 

(2002) 27 Cal.4th 1161, 1182, fn. 18 [court need not address broader issues not presented 

by particular case on appeal].) 

III

Marsden Motion

Defendant contends the court erred in denying the Marsden motion he filed on 

February 10, 2010, to dismiss his counsel, Mr. Saria. Assuming that Marsden applies in 

the civil commitment context (People v. Leonard (2000) 78 Cal.App.4th 776, 784

[assumed for sake of argument that Marsden principles applied in civil commitment 

proceedings]), we conclude the court was well within its discretion to deny the motion.

The legal principles governing a Marsden hearing are well settled. “ ‘ “ ‘When a 

defendant seeks to discharge his appointed counsel and substitute another attorney, and 

asserts inadequate representation, the trial court must permit the defendant to explain the 

basis of his contention and to relate specific instances of the attorney’s inadequate 

performance. [Citation.] A defendant is entitled to relief if the record clearly shows that 

the first appointed attorney is not providing adequate representation [citation] or that 

defendant and counsel have become embroiled in such an irreconcilable conflict that 

ineffective representation is likely to result [citations].’ ” ’ ” (People v. Barnett (1998) 
22

17 Cal.4th 1044, 1085.) We review the denial of a Marsden motion for an abuse of 

discretion. (Ibid.) “Denial ‘is not an abuse of discretion unless the defendant has shown 

that a failure to replace the appointed attorney would “substantially impair” the 

defendant’s right to assistance of counsel. [Citations.]’ ” (Ibid.)

The crux of defendant’s argument rests on several alleged conflicts of interest, 

which he claims required the court to relieve Mr. Saria as appointed counsel. None of the 

perceived conflicts, however, mandated such action. 

Relying on People v. Johnson (1980) 26 Cal.3d 557 (Johnson), defendant first 

claims the court should have appointed new counsel when, over defendant’s objection, 

Mr. Saria requested to continue trial from February to May 2010 due to competing client 

responsibilities, or, at a minimum, inquired as to whether substitute counsel could have 

brought defendant’s case to trial more promptly. We disagree. 

Johnson involved Penal Code section 1382 and whether a public defender’s 

conflicting obligations to other clients constituted good cause to continue a criminal 

defendant’s trial beyond the 60 day statutory deadline where the defendant objected to 

the delay. (Johnson, supra, 26 Cal.3d at p. 561.) Penal Code section 1382’s statutory 

provisions are not at issue here and there is no equivalent statutory deadline for trying 

SVP cases. (People v. Sanders (2012) 203 Cal.App.4th 839, 846 [SVPA does not specify 

a time by which a commitment proceeding trial must commence].) 

Moreover, this case is distinguishable because nothing in the Johnson opinion 

indicates the defendant did not want to go to trial. Indeed, he refused to consent to the 

delay so that he could be tried in a timely manner. (Johnson, supra, 26 Cal.3d at p. 564.) 

Defendant, by contrast, repeatedly made clear he did not want to go to trial at all. Based 

on such representations, the trial court reasonably could have assumed defendant would 

not have cooperated with new counsel in getting the case to trial even if the court had 

inquired whether substitute counsel could try the case more promptly. 
23

The record also demonstrates that defendant believed Mr. Saria knew his case 

better than any other attorney, that very few counsel handled cases like defendant’s, that 

defendant had already been represented by one such attorney who later declined to 

continue representing him due to the nature of defendant’s crimes, and that he objected to 

being represented by one of the only other attorneys that defended SVP cases. The 

chance of securing substitute counsel in a timely manner was therefore remote.

Defendant’s second argument that the court erred in denying his Marsden motion 

because Mr. Saria was a former prosecutor is unavailing. The fact that Mr. Saria filed the 

May 2000 petition seeking to recommit defendant as an SVP is not problematic. It 

demonstrates nothing more than that, as of May 2000, Mr. Saria believed defendant 

qualified as an SVP. Defendant apparently agreed because he stipulated to the 

allegations of the petition. But each commitment proceeding under the SVPA “is a new 

and independent proceeding at which, with limited exceptions, the petitioner must prove 

the defendant meets the criteria, including that he or she has a currently diagnosed mental 

disorder that renders the person dangerous.” (People v. Munoz (2005) 129 Cal.App.4th 

421, 429.) There is nothing in the record suggesting that after the commitment expired 

on the May 2000 petition, Mr. Saria still believed defendant then suffered from a 

diagnosable mental disorder as defined by the statute in the new cases that had since been 

filed against defendant and in which Mr. Saria had never participated. 

Defendant’s reliance on Younger v. Superior Court (1978) 77 Cal.App.3d 892, is 

misplaced. Younger considered whether a former criminal defense attorney who later 

became third in command at the district attorney’s office necessarily disqualifies the 

entire district attorney’s office from prosecuting felony cases handled by his previous law 

firm or its successor. (Younger, supra, 77 Cal.App.3d at p. 894.) Nothing in the opinion 

addressed the propriety of a former prosecutor representing a potential civil committee in 

a subsequent and distinct civil commitment proceeding. (Santisas v. Goodin, supra, 

17 Cal.4th at p. 620 [a case is not authority for propositions not considered].) 
24

Defendant’s third argument--that counsel waived time without defendant’s 

permission--is easily disposed of given the trial court’s express finding below crediting 

counsel’s testimony that defendant agreed to postpone trial to allow him an opportunity 

to seek treatment as a means of increasing his chance of success before a jury. Although 

defendant testified he never agreed to waive time or continue the trial, the court resolved 

the factual conflict against defendant and in favor of Mr. Saria by expressly crediting 

Mr. Saria’s testimony over defendant’s. “ ‘To the extent there was a credibility question 

between defendant and counsel at the hearing, the court was “entitled to accept counsel’s 

explanation.” [Citation.]’ ” (People v. Jones (2003) 29 Cal.4th 1229, 1245.) 

In addition to counsel’s representations during the Marsden hearing as well as 

counsel’s responsive declaration on the motion to dismiss, other evidence in the record 

also supports defense counsel’s claim that defendant strategically agreed to delay trial. 

For example, defendant’s amendment to his motion to dismiss confirms such a strategy. 

And, at a show cause hearing in 2001, the judge told defendant the following: “And I 

would suggest [the testifying psychologist] has hope on the horizon if you can get your 

act together, stay on your medications, and no more of this acting out in the institution. 

You need to have--if you have any hopes of having a jury rule for you, you need to have 

the next year to be pretty clean. [¶] Do you understand what I am saying?” Defendant 

responded that he did. This evidence suggests that at an early date defendant recognized 

he would be better off strategically if he continued positively progressing in treatment at 

the hospital. 

Defendant’s final contention is that the court should have granted the Marsden 

motion because Mr. Saria unjustifiably refused to file a motion to dismiss under Litmon

for violating his speedy trial rights. Defendant argues Mr. Saria was ineffective and thus 

should have been relieved as counsel because he did not file a second Litmon motion to 

address the delay since August 2009 when the court denied defendant’s first Litmon 

motion. For the reasons set forth below, we conclude no speedy trial violation occurred. 
25

Accordingly, Mr. Saria could not have been ineffective for failing to bring a second 

Litmon motion and the court was justified in rejecting defendant’s argument that his 

refusal to do so required relief under Marsden. 

The record amply supports the trial court’s ruling denying defendant’s Marsden 

motion. The record clearly shows the trial court provided defendant with the opportunity 

to voice his concerns, heard from Mr. Saria and the defense investigator, and upon 

considering those concerns reasonably found them to be insufficient to warrant relieving 

trial counsel. We therefore find no basis to conclude the trial court either failed to 

conduct a proper Marsden inquiry or abused its discretion in declining to substitute 

counsel. (People v. Hart (1999) 20 Cal.4th 546, 603.) 

IV

Speedy Trial

Defendant contends the trial court erred in refusing to consider the merits of his 

February 9, 2010 habeas corpus petition, which sought dismissal under Litmon based on 

the alleged excessive delay in resolving his matter. (Litmon, supra, 162 Cal.App.4th 

383.) Even assuming the court erred by not considering the writ petition on the merits

(Johnson, supra, 26 Cal.3d at pp. 573-574 [trial court should have considered criminal 

defendant’s petition for writ of habeas corpus raising alleged violation of Penal Code 

section 1382, which addresses a criminal defendant’s statutory right to a speedy trial]),

we conclude defendant’s argument fails for want of prejudice as defendant’s right to a 

speedy trial was not violated.

Defendant first raised the speedy trial issue under Litmon in or about January 2009 

when he filed a habeas corpus petition in the court below. The court denied the petition 

without prejudice to raising the issue in a motion before the trial court. Defendant filed 

such a motion in March 2009, and the court appointed special counsel to represent 

defendant on the motion. In August 2009, after full briefing and a hearing on the merits, 
26

the court balanced the Litmon factors against defendant, determining he had suffered no 

speedy trial violation. Defendant did not seek pretrial appellate resolution of the issue. 

Nor does he directly challenge the court’s ruling on the motion to dismiss on appeal. 

Defendant filed a second habeas corpus petition in February 2010 asserting 

another speedy trial challenge under Litmon. Like before, the court denied the petition 

without prejudice to raising the issue via motion before the trial court. It does not appear 

defendant ever filed a second motion to dismiss. Nor did defendant seek pretrial 

appellate review of the 2010 writ petition denial. Instead, he challenges the denial here. 

“The SVPA does not specify a time by which a trial on a commitment proceeding 

must be commenced or concluded.” (People v. Sanders, supra, 203 Cal.App.4th at 

p. 846.) “Though the constitutional right to a speedy trial applies only in criminal 

prosecutions, the federal due process clause extends to involuntary civil commitments 

under the SVPA and requires a hearing ‘ “ ‘at a meaningful time and in a meaningful 

manner.’ ” ’ ” (Ibid. [quoting Litmon].) In determining whether a hearing has been 

unconstitutionally delayed, “we look to the standards and precedents established in the 

analogous criminal context for guidance.” (Id. at p. 847.) In criminal proceedings, the 

essence of a speedy trial violation is that the passage of time has frustrated a defendant’s 

ability to defend the allegations against him. (Ibid.) 

Because defendant does not expressly challenge the court’s August 2009 denial of 

his motion to dismiss, any delay occurring between 2002 and August 28, 2009, is not at 

issue. (Heavenly Valley v. El Dorado County. Bd. of Equalization (2000) 84 Cal.App.4th

1323, 1345, fn. 17 [points not raised under an appropriate heading need not be 

addressed]; Cal. Rules of Court, rule 8.204(a)(1)(B) [each brief must state each point 

under a separate heading or subheading summarizing the point].) In any event, we find 

the trial court was amply justified in denying the motion to dismiss. 

The court engaged in a careful balancing process within the context of this 

particular case as required by Litmon. (Litmon, supra, 162 Cal.App.4th at p. 398 [“The 
27

inquiry ‘necessitates a functional analysis of the right in the particular context of the case’ 

since the right to a speedy trial is relative”].) The court considered such factors as the 

length of the delay, the reason for the delay, when defendant asserted his right to a trial, 

whether defendant suffered any prejudice as a result of the delay, and whether he had 

suffered oppressive pretrial incarceration. 

Based on the evidence presented by the parties, including a declaration submitted 

by Mr. Saria, the court found defendant made a conscious decision to delay trial in order 

to continue treatment as a means of improving his chances before a jury. The viability of 

this strategy was confirmed by the special counsel appointed to represent defendant on 

his motion to dismiss: “As mentioned in Mr. Rainwater’s declaration he has also 

completed a considerable amount of rehabilitation, a program which is actually chosen by 

few individuals facing SVP petitions, and based on recent litigation, a crucial factor in the 

outcome on the SVP trials.” 

After finding defendant consented to the delay in order to better his chances before 

a jury, the court also found that rather than impair his defense, the delay strategy likely 

improved his chances of success. This finding is confirmed by the statements of 

defendant’s special counsel quoted above. The court also concluded that confinement in 

the hospital was not oppressive as defendant had requested several times to be transferred 

back to the hospital after being held in the county jail prior to court appearances. 

It is plain the court properly grasped the gravity of the balancing test under 

Litmon. On this record, we cannot say the court erred in balancing the factors against 

finding a speedy trial violation since unlike in Litmon much of the delay was attributable 

to defendant and his trial strategy, which was for his benefit. (See e.g., Orozco v. 

Superior Court (2004) 117 Cal.App.4th 170, 179 [defendant waives the delay issue 

where delay attributable to defendant or his counsel]; People v. Sutton (2010) 48 Cal.4th 

533, 549 [delay caused by the conduct of the defendant or for defendant’s benefit 

constitutes good cause to deny a motion to dismiss].) We also note that defendant 
28

engaged in extensive writ and motion practice that also contributed to the delay in 

bringing the case to trial. 

We turn, then, to whether the delay from August 28, 2009, when the court denied 

defendant’s motion to dismiss, until February 9, 2010, when defendant once again raised 

the speedy trial issue, constituted unreasonable delay. We conclude it did not.

On August 31, 2009, defendant consented to setting the trial on January 6, 2010. 

On January 6, defense counsel asked to trail the trial until January 13. On January 13, 

defense counsel requested a further continuance until February 22 due to the 

unavailability of expert witnesses and also because he needed more time to prepare. 

Defendant consented to the continuance because it was for his benefit. The record shows 

that, with the exception of a few days, defendant consented to delaying the trial until 

February 22, 2010. Where a defendant consents good cause exists to continue the trial 

date, thereby negating any potential speedy trial violation. (Johnson, supra, 26 Cal.3d at 

p. 563.) 

Given the circumstances surrounding defendant’s case, and in particular his trial 

strategy to delay going to trial while he was in treatment, defendant’s trial took place in a 

meaningful time and in a meaningful manner. Thus, no speedy trial violation occurred. 

Even had the trial court considered defendant’s February 9, 2010 writ petition on the 

merits, we are satisfied beyond a reasonable doubt that the court would have denied the 

writ. Defendant’s challenge therefore fails for want of prejudice. 

V

Ineffective Assistance of Counsel

The trial court appointed special counsel to represent defendant on his motion to 

dismiss under Litmon. Defendant offers several reasons why his special counsel’s 

performance at the hearing on the motion to dismiss was ineffective. Defendant, 
29

however, has failed to carry his burden of establishing prejudice and on that basis we 

reject his claim. 

To establish ineffective assistance of counsel, defendant must show, by a 

preponderance of the evidence, that his counsel’s representation fell below the standard 

of a competent advocate and a reasonable probability exists that, but for counsel’s errors, 

the result would have been different. (People v. Ledesma (1987) 43 Cal.3d 171, 216-

218.) A “reasonable probability” is a probability sufficient to undermine confidence in 

the outcome. (People v. Bolin (1998) 18 Cal.4th 297, 333.) 

If, however, “it is easier to dispose of an ineffectiveness claim on the ground of 

lack of sufficient prejudice . . . that course should be followed.” (Strickland v. 

Washington (1984) 466 U.S. 668, 697 [80 L.Ed.2d 674, 699].) After considering each of 

defendant’s four contentions, we follow that course here, finding that because defendant 

has failed to establish the requisite prejudice necessary for reversal, we need not consider 

whether the performance of special counsel fell below that of a reasonably competent 

attorney.

At the hearing on the motion to dismiss, special counsel did not argue that a 

potential civil committee could properly challenge the denial of the right to a speedy trial 

via a petition for writ of habeas corpus. According to defendant, had she done so, the 

court would not have counted the period from January 2009 to March 2009 against 

defendant in determining whether any delay was reasonable under Litmon. That period 

represented the time between when defendant filed his first habeas corpus petition raising 

the speedy trial issue and when he filed his motion to dismiss on those same grounds. 

But, as the People point out, although the court attributed that period of delay to 

defendant, the trial court then stated, “in any event,” it was denying the motion based on 

the absence of prejudice in light of defendant’s trial strategy of delaying trial in order to 

seek treatment to increase his chances before a jury. The record thus shows the court 
30

would have denied the motion regardless of whether defendant first invoked his right to a 

speedy trial in January 2009. 

Defendant next argues special counsel was ineffective for failing to obtain the 

transcripts of several hearings because such transcripts would have revealed trial counsel 

never sought or obtained continuances at those hearings based on the purported trial 

strategy of allowing defendant to progress further in treatment so as to better his chances 

before a jury. Even if special counsel had obtained the transcripts, it is not reasonably 

probable that the court would have ruled differently on defendant’s motion to dismiss, 

however. 

This is because it is not uncommon for counsel to avoid disclosing defense 

strategies and tactics prior to trial. (People v. Glover (1985) 169 Cal.App.3d 689, 701 

[defendant entitled to prepare any defense he chooses in complete privacy and 

confidentiality with his attorney].) Revealing the defense strategy to delay trial so 

defendant could undergo treatment could have put defendant at a distinct disadvantage as 

it likely would have prompted the prosecution to press for trial sooner thereby cutting off 

his ability to complete treatment. The fact that the transcripts do not expressly reveal 

such a strategy is not surprising and does not mean that such a strategy did not in fact 

exist. Indeed, the evidence suggests that as early as 2001, when the court ruled against 

defendant at a show cause hearing, that defendant acknowledged he had to have a clean 

year in the hospital, impliedly including progressing through treatment, if he ever wanted 

to have a chance of prevailing at a jury trial. 

Defendant’s third contention--that special counsel was ineffective for failing to 

know and advise the court that defendant had not been a party to the writ proceedings in

this court in Bourquez, supra, 156 Cal.App.4th 1275-- is likewise without merit. The 

cases involved in the Bourquez matter were stayed until February 2008 pending the 

finality of our ruling on the writ. (Bourquez, supra, 156 Cal.App.4th at p. 1290.) 
31

According to defendant, the court should have been informed that this court’s stay in 

Bourquez did not affect his case. 

Although it is true that defendant’s matter was not included in the Bourquez 

proceedings and thus not subject to the stay imposed by this court, the trial court had 

itself stayed all SVP cases, including defendant’s, pending the outcome of Bourquez. 

Thus, it is not reasonably probable the trial court would have granted the motion had 

special counsel corrected the trial court’s harmless misunderstanding given that a stay 

was in fact in place for the same period. The particular identity of the court imposing the 

stay is irrelevant under the circumstances presented here.

Defendant finally contends that special counsel should have impeached 

representations made by the prosecution that the People had not requested any of the 

continuances. The record shows the People requested to continue the trial on certain 

occasions to obtain updated evaluations of defendant, to conduct probable cause hearings, 

and due to the unavailability of expert witnesses. 

While the cause of the delay is undoubtedly relevant, the Supreme Court has made 

clear that continuances based on the unavailability of witnesses can constitute good cause 

for delaying trial. (See e.g., People v. Sutton, supra, 48 Cal.4th at p. 549 [“delay arising 

from unforeseen circumstances, such as the unexpected illness or unavailability of 

counsel or witnesses constitutes good cause to avoid dismissal” under Penal Code section 

1382].) Moreover, in Orozco v. Superior Court, supra, 117 Cal.App.4th at p. 175, SVPA 

commitment proceedings were continued at least once so the People could obtain an 

updated evaluation interview. The trial court, however, ultimately determined 

defendant’s due process right to a speedy trial had not been violated because a majority 

of the delay was attributable to defendant’s own conduct. (Id. at p. 179.) 

Similarly, the trial court here determined the overarching cause for the delay was 

defendant’s strategic decision to continue trial to allow him the opportunity to progress 

through treatment so as to increase his chance of success at any subsequent jury trial. 
32

Given the trial court’s factual finding, which is supported by substantial evidence in the 

record, it is not reasonably probable the court would have granted the motion even if 

special counsel had reminded it that some continuances were at the People’s request.

VI

Equal Protection

Defendant challenges the constitutionality of the indeterminate recommitment 

proceedings under the SVPA, arguing his equal protection rights were violated because 

SVP’s are treated less favorably than those committed under other statutes, such as 

mentally disordered offenders (MDO’s) (Pen. Code, § 2960) and those found not guilty 

by reason of insanity (NGI’s) (Pen. Code, § 1026 et seq.). According to defendant, the 

Supreme Court’s decision in People v. McKee (2010) 47 Cal.4th 1172 (McKee I),

compels us to remand the matter for further proceedings to determine whether the state 

can meet its burden of showing a compelling state interest in treating SVPs differently 

than MDO’s and NGI’s. We disagree. (People v. Kisling (2014) 223 Cal.App.4th 544, 

548 [“the Supreme Court intended [remand proceedings] in McKee I to be, as a matter of 

law, dispositive in all cases on the issue of whether the disparate treatment between 

SVP’s and MDO’s/NGI’s was justifiable”].)

In McKee I, the Supreme Court found that SVPs, MDO’s, and NGI’s are similarly 

situated for equal protection purposes because each are involuntarily committed to 

protect the public from individuals who are dangerously mentally ill. (McKee I, supra, 

47 Cal.4th at pp. 1202-1203, 1207.) The court found no question that after the initial 

commitment SVP’s were treated less favorably because they were given indeterminate 

commitments with the burden of proving they should be released whereas MDO’s and 

NGI’s were committed for a determinate term and had the right to be released unless the 

People proved beyond a reasonable doubt that he or she should be recommitted. (Ibid.) 
33

To justify the disparate treatment of SVP’s, the Supreme Court in McKee I 

emphasized the People had to show on remand “that, notwithstanding the similarities 

between SVP’s and MDO’s, the former as a class bear a substantially greater risk to 

society, and that therefore imposing on them a greater burden before they can be released 

from commitment is needed to protect society.” (McKee I, supra, 47 Cal.4th at p. 1208.) 

Whether the People carried their burden under the equal protection clause for such 

differential treatment was resolved in remand proceedings in People v. McKee (2012) 

207 Cal.App.4th 1325, review den. Oct. 12, 2012 (McKee II).

In McKee II, the Fourth District affirmed the trial court’s determination that “the 

People on remand met their burden to present substantial evidence, including medical and 

scientific evidence, justifying the amended Act’s disparate treatment of SVP’s (e.g., by 

imposing indeterminate terms of civil commitment and placing on them the burden to 

prove they should be released).” (McKee II, supra, 207 Cal.App.4th at p. 1347.) The 

People presented evidence showing “ ‘that the inherent nature of the SVP’s mental 

disorder makes recidivism as a class significantly more likely[;] . . . that SVP’s pose a 

greater risk [and unique dangers] to a particularly vulnerable class of victims, such as 

children’; and that SVP’s have diagnostic and treatment differences from MDO’s and 

NGI’s, thereby supporting a reasonable perception by the electorate that passed 

Proposition 83 that the disparate treatment of SVP’s under the amended Act is necessary 

to further the state’s compelling interests in public safety and humanely treating the 

mentally disordered.” (Ibid.) Based on the above, the court concluded “the disparate 

treatment of SVP’s under the Act is reasonable and factually based and was adequately 

justified by the People at the evidentiary hearing on remand.” (Id. at p. 1348.) The 

SVPA, therefore, did not violate equal protection. (Ibid.) 

Based on McKee I and McKee II, we agree defendant’s equal protection rights 

were not violated by treating him differently than MDO’s and NGI’s for commitment 

purposes because the indeterminate commitment procedures legitimately advance a 
34

compelling state interest in protecting the public from an SVP like defendant who has a 

substantial, well-founded risk of reoffending and cannot control his behavior and who has 

violated some of society’s most vulnerable members like the very young children 

defendant has a history of sexually accosting. We therefore reject defendant’s equal 

protection challenge and request for remand.

VII

Ex Post Facto

Defendant contends the SVPA is punitive in nature and thus violates the federal 

prohibition against ex post facto laws. Our Supreme Court considered and rejected a 

similar argument in McKee I. (McKee I, supra, 47 Cal.4th at pp. 1193-1195.) As 

defendant concedes in his reply brief, we are bound by McKee I. (Auto Equity Sales, Inc. 

v. Superior Court (1962) 57 Cal.2d 450, 455.)

VIII

Double Jeopardy

Defendant contends the SVPA’s purported punitive nature also violates the federal 

prohibition against double jeopardy. The conclusion that the SVPA is not a penal statute, 

however, is fatal to defendant’s contention. (McKee I, supra, 47 Cal.4th at pp. 1193-

1195 [SVPA is not punitive and therefore not within the scope of the ex post facto 

clause]; Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171 [SVPA intended to 

provide treatment to, rather than punish, mentally disordered individuals who cannot 

control sexually violent criminal behavior]; People v. Superior Court (Williams) (1991) 

233 Cal.App.3d 477, 486-487 [double jeopardy principles apply to criminal prosecutions 

but they do not apply to civil commitment proceedings].) 
35

DISPOSITION

The judgment and order committing defendant to the State Department of Mental 

Health for an indeterminate term is affirmed.

 HULL , J.

We concur:

 NICHOLSON , Acting P. J.

 ROBIE , J.