Filed 3/29/22 P. v. Ballardo CA2/4

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

VICTOR BALLARDO,

Defendant and Appellant.

 B290567

 (Los Angeles County

 Super. Ct. No. ZM008237)

APPEAL from a judgment of the Superior Court of Los 

Angeles County, Marcelita V. Haynes, Judge. Affirmed.

Rudy Kraft, under appointment by the Court of Appeal,

for Defendant and Appellant.

Rob Bonta, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Senior 

Assistant Attorney General, Steven D. Matthews and Gary 
2

A. Lieberman, Deputy Attorneys General, for Plaintiff and 

Respondent.

________________________________________________

INTRODUCTION

In February 2005, the People filed a petition to commit 

appellant Victor Ballardo as a sexually violent predator 

(SVP). After a March 2018 trial, the court found appellant to 

be an SVP and ordered him committed for a two-year term.

On appeal, appellant does not dispute that substantial 

evidence supported the court’s finding that he was an SVP. 

Instead, he argues that: (a) the length of delay between the 

filing of the petition and the trial thereon violated his due 

process right to a timely trial; (b) the court erred in failing to 

inquire into a potential conflict of interest between his 

counsel and him, namely that bringing a motion to dismiss 

would have been beneficial to appellant, but damaging to his 

counsel; and (c) his counsel was ineffective in failing to bring 

a motion to dismiss.

We conclude: (a) that appellant’s due process rights 

were not violated because his counsel requested or agreed to 

virtually all the continuances in this case, and those actions 

are charged to appellant; (b) that appellant has failed to cite 

any evidence presented to the court regarding a potential 

conflict of interest, and thus failed to demonstrate that any 

lack of inquiry constituted error; and (c) that appellant has 

failed to demonstrate the failure to file a motion to dismiss 
3

constituted ineffective assistance of counsel. Accordingly, we 

affirm the judgment.

STATEMENT OF RELEVANT FACTS

A. The People File a Petition; Appellant Waives 

Probable Cause Hearing

On February 3, 2005, the People filed a petition to 

commit appellant as an SVP. The petition alleged appellant 

had been convicted in 1982 under Penal Code section 287, 

subdivision (b)(2) (sodomy by a person over 21 with a person 

under 16) and in 2000 under Penal Code section 288, 

subdivision (a) (lewd or lascivious act on child younger than 

14), had been diagnosed with a mental disorder, posed a 

danger to the health and safety of others, was predatory, and 

was likely to reoffend without appropriate treatment and 

custody. Appellant denied the petition and waived his 

probable cause hearing. The court (Judge Richard E. Rico) 

found probable cause existed to believe appellant was likely 

to engage in sexually violent predatory criminal behavior 

upon release, and ordered appellant transported to a state 

mental hospital. A pretrial hearing was set for March 24, 

2005. 
4

B. The Court Holds a Supplemental Probable 

Cause Hearing Four Years Later

From March 24, 2005, to November 12, 2008, the 

pretrial hearing was continued 19 times.1 All but one of 

those continuances were at the request of appellant’s counsel 

or pursuant to an agreement between both counsel.2 With 

the exception of June 7, 2006, when appellant’s counsel 

stated he needed a continuance “for further preparation,” the 

record discloses no reasons for the continuances. Appellant’s 

appearance was waived at all but two hearings.3 On 

November 12, 2008, pursuant to a stipulation by both 

counsel, the court set a supplemental probable cause hearing 

for January 26, 2009. 

On January 26, 2009, pursuant to a stipulation by both 

counsel and due to court congestion, the court (Judge Maria 

E. Stratton) continued the probable cause hearing to 

February 20, 2009. On February 20, 2009, the court 

1 From March 2005 to May 2005, Judge Rico presided. From 

September 2005 to December 2005, Judge Gus Gomez presided. 

In March 2006, Judge Lawrence H. Cho presided. From June 

2006 to July 2007, Judge Marcelita V. Haynes presided. From 

September 2007 to July 2008, Judge Dennis Landin presided. 

From October 2008 to November 2008, Judge Clifford L. Klein 

presided. 

2 The record is silent on why a December 2005 pretrial 

hearing was continued to March 2006. 

3 For hearings scheduled on February 6, 2008, and 

November 12, 2008, there is no notation regarding appellant’s 

waiver of appearance. 
5

determined the probable cause hearing could not take place 

because of the unavailability of the staff at the hospital 

where appellant had been remanded. Pursuant to a 

stipulation by both counsel, the court continued the hearing 

to March 27, 2009. Appellant’s presence was waived.

On March 27, 2009, the probable cause hearing began 

but was not completed. Appellant appeared via 

videoconference. With appellant’s agreement, the court set 

the next hearing date for May 27, 2009. 

On May 27, 2009, appellant’s counsel informed the 

court that an evaluation by an expert testifying for the 

People had become “stale,” and that the expert wanted to 

update it. Appellant’s appearance was waived, but his 

counsel confirmed he had spoken with appellant, who had

agreed to a continuance until a new evaluation could be 

done; the court continued the probable cause hearing to July 

13, 2009. 

On July 13, 2009, the hospital housing appellant had a 

power outage, rendering it impossible for appellant to appear 

via videoconference. Pursuant to the stipulation of counsel, 

the hearing was continued to the next day. However, the 

problem was not fixed by the next day and, by stipulation of 

both counsel, the hearing was continued to September 14, 

2009. 

On September 14, 2009, the probable cause hearing 

resumed, with appellant appearing via videoconference; the 

court found probable cause to remand appellant to the 
6

Department of Mental Health pending trial. A pretrial 

conference was set for November 17, 2009.

C. Appellant Forgoes a Trial Date to File a 

Ronje Motion

On November 17, 2009, at the request of appellant’s 

counsel who stated he wanted more time to review a 

transcript, the court (Judge Melissa Widdifield) continued 

the pretrial hearing to February 2, 2010. Appellant was 

present via videoconference and agreed to the continuance. 

Appellant’s counsel assured the court that trial would 

commence by summer of 2010. The minute order states: 

“Time is waived.” 

On February 2, 2010, pursuant to a stipulation by both 

counsel, the court continued the pretrial hearing to March 

25, 2010. Appellant was present via videoconference and did 

not object. 

On March 25, 2010, pursuant to a stipulation by both 

counsel and appellant’s desire to file a Ronje motion, the 

court continued the pretrial hearing to April 28, 2010, and 

set the Ronje motion to be heard on that date.4 Appellant 

4 In re Ronje (2009) 179 Cal.App.4th 509, disapproved in part 

by Reilly v. Superior Court (2013) 57 Cal.4th 641, 655, “held that 

a particular standardized assessment protocol used by SVP 

evaluators prior to 2008 was invalid and its use ‘constitute[d] an 

error or irregularity in the SVPA proceedings.’ [Citation.] The 

court held that ‘the proper remedy’ is for the trial court ‘to (1) 

order new evaluations of [the alleged SVP] using a valid 

assessment protocol, and (2) conduct another probable cause 

(Fn. is continued on the next page.)
7

was present via videoconference, and the court confirmed his 

desire to no longer be sent out for trial in lieu of filing a 

Ronje motion. Appellant also confirmed he was agreeable to 

his trial being held at a date later than April 28, 2010. 

On April 28, 2010, pursuant to a stipulation by both 

counsel, the court continued the pretrial and Ronje hearings 

to May 6, 2010. Appellant was present via videoconference 

and agreed to the continuance. 

On May 6 and May 17, 2010, pursuant to a stipulation 

by both counsel, the court (Judge Pro Tem Connie Drath and 

then Judge Stratton) continued the pretrial and Ronje

hearings to May 17, 2010 and then to Jun 1, 2010, to permit 

Judge Widdifield to be present.5 Appellant was present via 

videoconference and agreed to the continuances. When 

asked at the May 17 hearing if he agreed to a continuance, 

appellant responded: “I got all the time in the world.” 

On June 1, 2010, the court (Judge Widdifield) partially 

granted appellant’s Ronje motion and ordered new 

evaluations of appellant to be conducted by the original 

hearing . . . based on those new evaluations.” (People v. DeCasas

(2020) 54 Cal.App.5th 785, 792 (DeCasas).)

5 In his brief, appellant claims that it was the prosecutor who 

did not want Judge Pro Tem Drath to decide the issue; that 

contention is belied by the record. The prosecutor said nothing 

about Judge Drath, and it was appellant’s counsel who said 

(while explaining to appellant what was happening): “As you can 

see, this woman is not Judge Widdifield, so what I want to do --

what we have to do is put this over for Judge Widdifield, and 

we’re going to figure it out.” Appellant responded, “That’s fine.” 
8

evaluators. The court also set a July 13, 2010 hearing to 

select a date for a probable cause hearing. Appellant was 

present via videoconference and agreed to the hearing date. 

D. The Court Again Finds Probable Cause

On July 13, 2010, at appellant’s request, the court set a 

pretrial hearing for August 25, 2010. Appellant was present 

via videoconference, and the minute order states: “Time is 

waived.” 

On August 25, 2010, pursuant to a stipulation by both 

counsel, the court set a September 20, 2010 hearing to select 

a date for the probable cause hearing, because appellant’s 

counsel had yet to receive the reports from the new 

evaluations. Appellant was present via videoconference and 

agreed to the September 20 date, as well as having his 

probable cause hearing sometime in November. On 

September 20, 2010, pursuant to a stipulation by both 

counsel, the court (Judge Stratton) continued the probable 

cause hearing setting to November 17, 2010. Appellant was 

present via videoconference, and the minute order states: 

“Time is waived.” On November 17, 2010, the court (Judge 

Pro Tem Harold Shabo) noted the probable cause hearing 

would be held on January 4, 2011. Appellant was present 

via videoconference. 

The court held the probable cause hearing from 

January 4 to 6, 2011. The hearing did not conclude on 

January 6 and, pursuant to a stipulation by both counsel, 

the court continued the hearing to February 8, 2011. 
9

On February 8, 2011, pursuant to a stipulation by both 

counsel, the court continued the probable cause hearing to 

February 16, 2011, because appellant’s counsel had a 

personal emergency. Appellant was present via 

videoconference, and agreed to the continuance. 

On February 16, 2011, the court found probable cause 

existed to believe appellant was likely to engage in sexually 

violent predatory criminal behavior upon release, and 

therefore remanded him to the Department of Mental Health 

pending trial. The court set a pretrial hearing for March 29, 

2011. 

E. The Trial Date Is Repeatedly Continued for 

Six-and-a-Half Years

On March 29, 2011, both counsel stated they were 

ready for trial and the court set a trial setting conference for 

April 27, 2011. Appellant was present via videoconference. 

On April 29, 2011, the court (Judge Gary J. Ferrari) set a 

pretrial status conference for June 15, 2011, and set trial for 

October 17, 2011. 

On June 15, 2011, the prosecutor stated that she had a 

three-day hearing beginning October 24, 2011, and was 

concerned appellant’s case would not conclude prior to her 

hearing. However, counsel explained her hearing consisted 

only of afternoon sessions, and offered to appear in the 

mornings to complete appellant’s trial if necessary; she 

confirmed the People were prepared to proceed. The court 

expressed concern about wasting juror time with half-days of 
10

trial and asked both counsel to express their thoughts. 

Appellant’s counsel agreed with the court, stated he was 

willing to “waive time” on appellant’s behalf, and asked for a 

trial date of December 5. The People agreed. The court set a 

status conference on July 27, 2011, a discovery compliance 

and trial setting hearing on October 17, 2011, and a jury 

trial on December 5, 2011. 

Between July 27, 2011, and November 7, 2011, the 

court continued the status conference five times. Except for 

July 27, 2011, where the record fails to disclose the reason 

for the continuance, these continuances occurred at the 

request of both counsel. 

On November 7, 2011, at the request of both counsel, 

the court (Judge Bradford Andrews) continued the trial to 

March 19, 2012. On December 5, 2011, at the request of 

both counsel, the court (Judge Ferrari) set a pretrial 

conference for February 21, 2012. 

On February 21, 2012, appellant’s counsel still had not 

provided the People with the defense expert’s report. At the 

request of appellant’s counsel, the court (Judge Arthur Jean 

on behalf of Judge Ferrari) vacated the trial date and set a 

pretrial hearing for March 19, 2012. At the People’s request, 

appellant’s counsel agreed to obtain a written time waiver 

from appellant, to be filed by March 19. 

On March 19, 2012, appellant’s counsel stated he still 

had not provided “defense material” to the People. The 

People stated they were ready to proceed, regardless. At the 

request of appellant’s counsel, the court (Judge Ferrari) set a 
11

pretrial hearing for June 19, 2012. The court confirmed that 

it had received a waiver of appellant’s appearance. 

On June 19, 2012, appellant’s counsel was ill, and the 

prosecutor represented that all counsel requested a trial 

date of August 20, 2012. The court set a trial date for 

August 20, 2012. The record is silent as to why the August 

20 trial did not occur but on October 9, 2012, at the request 

of appellant’s counsel, the court set trial for November 6,

2012. 

Between November 6, 2012, and October 31, 2013, the 

court continued trial three times, at the request of either 

appellant’s counsel or both counsel. 

On October 31, 2013, at the request of both counsel, the 

court set a pretrial hearing to March 14, 2014. Appellant’s 

appearance was waived, but his counsel confirmed that 

appellant agreed both to the continuance, and for trial to 

occur sometime thereafter. 

On March 14, 2014, at the request of both counsel, the 

court continued the pretrial hearing to December 18, 2014. 

At the request of appellant’s counsel or both counsel, the 

pretrial hearing was continued twice more to July 22, 2015. 

On July 22, 2015, appellant’s counsel informed the 

court that appellant was recovering from surgery. At the 

request of appellant’s counsel, the court continued the 

pretrial hearing to December 17, 2015. Appellant’s 

appearance was waived, but his counsel confirmed that he 

had spoken with him, and appellant was amenable both to 

the continuance, and that he would not go to trial until 2016. 
12

Between December 17, 2015, and August 30, 2016, at 

the request of appellant’s counsel or both counsel, the court 

continued the pretrial hearing four times, ultimately to 

December 6, 2016. On December 6, 2016, at the request of 

both counsel, the court continued the pretrial hearing to 

March 16, 2017, and set a trial date for June 27, 2017. 

Appellant’s appearance was waived. 

On March 13, 2017, the case was transferred to Judge 

Marcelita V. Haynes. On March 16, 2017, at the request of 

both counsel, the court vacated the June 27, 2017 trial date 

and instead set a pretrial hearing for that date. Appellant 

was present via videoconference. The pretrial hearing was 

continued twice more at the request of both counsel, to

December 13, 2017.6

On December 13, 2017, at the request of both counsel, 

the court continued the pretrial conference to January 5, 

2018, and also ordered appellant’s motion to quash a 

subpoena to be heard on that date. Appellant’s counsel 

additionally informed the court that his defense expert’s 

report would not be completed until January 2018; the court 

set trial for February 21, 2018. 

On January 5, 2018, the court denied appellant’s 

motion to quash, set a pretrial hearing for February 5, 2018, 

6 At an August 2017 hearing, the court was under the 

impression that trial was set for December 13, 2017. In 

correcting that impression, the prosecutor told the court, “Expert 

won’t be ready [in December]. So we will give you some dates” for 

trial at the December 13, 2017 hearing. 
13

and confirmed trial would begin on February 21, 2018. 

Appellant was present via videoconference. 

On February 5, 2018, appellant’s counsel informed the 

court that his expert had been unable to see appellant due to 

a lockdown at the hospital in which appellant was housed. 

At the request of both counsel, the court set a further status 

conference for February 16, 2018. Appellant was present via 

videoconference. 

On February 16, 2018, appellant’s counsel stated he 

was still awaiting his expert’s report. The court set a 

pretrial hearing on March 7, 2018, and continued trial until 

March 9, 2018. Appellant was present via videoconference. 

On March 9, 2018, the court stated it had been unable 

to thoroughly review some of the filings in the case, set a 

hearing for March 13, 2018, and set trial for March 20, 23, 

and 28. Appellant was present via videoconference. 

On March 13, 2018, the court decided certain pretrial 

motions, and confirmed a court trial would begin on March 

20, 2018.7 Appellant was present via video conference. 

Trial was held on March 20, 23, and 28, and April 13 

and 27, 2018. On May 22, 2018, the court found appellant to 

be an SVP and committed him for a two-year term. 

Appellant appealed the same day. 

7 The record does not disclose when the parties waived jury.
14

DISCUSSION

A. Appellant’s Due Process Right Was Not 

Violated

1. We Decline to Find Forfeiture

It is undisputed that appellant did not file a motion to 

dismiss on the grounds that the delay in holding his trial 

violated his right to due process, and neither he nor his 

counsel ever objected to the continuances. Citing People v. 

Tran (2021) 62 Cal.App.5th 330 (Tran), the People contend 

appellant has thereby forfeited the argument that his due 

process rights were violated.

We find Tran inapposite. Tran held that by objecting 

to the delays in bringing his case to trial, the appellant 

sufficiently preserved his due process argument, even 

though he did not file a motion to dismiss. (Tran, supra, 62 

Cal.App.5th at 346 [“Provided that a defendant objects to the 

delay—as defendant did here on numerous occasions—a 

federal constitutional claim regarding the deprivation of a 

timely trial is preserved even if no motion to dismiss is 

filed”].) Tran did not hold that such an objection was 

necessary. Indeed, in People v. Seaton (2001) 26 Cal.4th 598, 

our Supreme Court found that “a defendant’s mere silence in 

the face of a continuance does not waive the constitutional 

right to speedy trial because a waiver occurs only when there 

is a conscious relinquishment of a known right.” (Id. at 633.) 

Moreover, to be valid, “‘waivers of constitutional rights must, 

of course, be “knowing, intelligent acts done with sufficient 
15

awareness of the relevant circumstances and likely 

consequences[,]” . . . [and] must be unambiguous and 

“without strings.”’” (People v. Bonin (1989) 47 Cal.3d 808, 

837 (Bonin).)

Here, appellant did not merely remain silent in the 

face of continuances requested by the prosecution or imposed 

by the court -- through his counsel, he actively sought or 

agreed to such continuances. Nevertheless, we find 

instructive the case of People v. Washington (2021) 72 

Cal.App.5th 453. There, after the appellant’s counsel had 

waived his right to a jury trial under the Sexually Violent 

Predator Act (SVPA) and the court found the appellant to be 

an SVP, the appellant appealed, claiming his right to equal 

protection under the law had been violated, because those 

tried under the SVPA were not entitled to have a court 

advise them of their right to a jury trial, whereas those tried 

under other involuntary civil commitment acts were so 

entitled. (Id. at 471-472.) Though the appellant had not 

raised this argument below, our colleagues in Division Seven 

declined to find forfeiture, reasoning that because it was the 

appellant’s attorney who had waived the right to jury, “it is 

hard to envision how counsel could have asserted this claim.” 

(Id. at 473-474.) Specifically, the court found “[t]he only way 

Washington could have asserted an equal protection 

challenge in the trial court would have been for his attorney 

to request the trial court advise Washington of his right to a 

jury trial and take a personal waiver of that right. Then, if 

the court declined to do so based on the absence of a 
16

requirement in the SVPA, Washington’s attorney could have 

argued not doing so would violate equal protection 

principles. But presumably, Washington’s attorney believed 

Washington wanted to proceed with a court trial (which may 

or may not have been the case), and thus, counsel would 

have been unlikely to demand the court advise Washington 

of his jury trial right and take a personal waiver. . . . Under 

these unusual circumstances, we decline to find forfeiture 

based on Washington’s failure to raise an equal protection 

challenge in the trial court.” (Id. at 474.)

Similarly, the only way for appellant to have raised his 

due process claim below would have been for his attorney to 

argue that the repeated continuances were violating 

appellant’s right to due process. But because appellant’s 

counsel was the one seeking or agreeing to almost all the 

continuances, it would have been unlikely that he would 

contend such continuances were violations of appellant’s 

right to due process. Under these circumstances, as well as 

the fact that nothing in the record demonstrates appellant 

ever made a knowing and intelligent waiver of his right to a 

timely trial, we decline to find forfeiture.

2. Due Process Right to Speedy Trial in 

SVPA Proceedings

“Because civil commitment involves a significant 

deprivation of liberty, a defendant in an SVP proceeding is 

entitled to due process protections.” (People v. Otto (2001) 26 

Cal.4th 200, 209.) “This includes the due process right to a 
17

timely trial.” (Tran, supra, 62 Cal.App.5th at 347; see also 

id. at 347, fn. 13 [“Although the Sixth Amendment right to a 

speedy trial and the Fourteenth Amendment due process 

right to a timely trial are distinct, for the purpose of our 

analysis they are sufficiently analogous to be treated 

interchangeably”].)

“‘Neither the California Supreme Court nor the United 

States Supreme Court has decided what test is to be applied 

in deciding a due process/timely trial claim in an SVP 

proceeding.’ [Citation.] California Courts of Appeal have 

consistently applied the tests articulated in Barker v. Wingo

(1972) 407 U.S. 514 [33 L. Ed. 2d 101, 92 S. Ct. 2182] 

(Barker) and Mathews v. Eldridge (1976) 424 U.S. 319 [47 L. 

Ed. 2d 18, 96 S. Ct. 893] (Mathews).” (Tran, supra, 62 

Cal.App.5th at 347-348.)

3. Barker Analysis

In Barker, the United States Supreme Court 

established a balancing test to analyze criminal defendants’ 

claims of speedy trial rights violations under the Sixth 

Amendment. “The Barker test involves a weighing of four 

factors: length of delay, the reason for the delay, the 

defendant’s assertion of his right, and prejudice to the 

defendant.” (U.S. v. Eight Thousand Eight Hundred & Fifty 

Dollars ($8,850) in U.S. Currency (1983) 461 U.S. 555, 564.) 

These factors are “related . . . and must be considered 

together with such other circumstances as may be relevant.” 

(Barker, supra, 407 U.S. at 533.) “The burden of 
18

demonstrating a speedy trial violation under Barker’s 

multifactor test lies with the defendant.” (People v. Williams 

(2013) 58 Cal.4th 197, 233 (Williams).) Courts have applied 

this framework to consider claims of undue delay in the 

context of SVPA proceedings. (See, e.g., People v. Superior 

Court (Vasquez) (2018) 27 Cal.App.5th 36, 60-81 (Vasquez); 

People v. Landau (2013) 214 Cal.App.4th 1, 31 (Landau); 

People v. Litmon (2008) 162 Cal.App.4th 383, 404-406 

(Litmon); Page v. Lockyer (9th Cir. 2006) 200 Fed. Appx. 727; 

Yahn v. King (N.D.Cal. Jan. 6, 2016, No. C-13-0855 EMC 

(pr)) 2016 U.S.Dist. LEXIS 1213, at *19 [lower courts 

assessing speedy trial claims in civil commitment 

proceedings “have repeatedly turned to the law of speedy 

trial rights in the criminal context -- especially [Barker] -- for 

guidance[,] as it is the most appropriate analogy”].)

(a) Length of Delay

“The first Barker factor, the length of the delay, 

encompasses a ‘double enquiry.’ ‘Simply to trigger a speedy 

trial analysis, an accused must allege that the interval 

between accusation and trial has crossed the threshold 

dividing ordinary from “presumptively prejudicial” delay 

[citation] . . . . If the accused makes this showing, the court 

must then consider . . . the extent to which the delay 

stretches beyond the bare minimum needed to trigger 

judicial examination of the claim. [Citation.]’” (Williams, 

supra, 58 Cal.4th at 234.) The People concede, and we agree, 
19

that the 13-year delay between the filing of the petition and 

trial was “substantial” and “weighs in appellant’s favor.” 

(b) Reasons for Delay

While we conclude that all parties -- appellant, the 

People, and the trial court -- bear some responsibility for the 

delay, we find the delay chargeable primarily to appellant.

(i) Appellant

“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. [Citation.] The same principle 

applies whether counsel is privately retained or publicly 

assigned.” (Vermont v. Brillon (2009) 556 U.S. 81, 90-91, fn. 

omitted (Brillon).) However, “[t]he 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 94.)

The record discloses that all but seven of the more than 

60 continuances in this case resulted from either a request 

from appellant’s counsel, or a joint request from both 

counsel.

8 Appellant argues that we should not charge these 

8 Out of the seven continuances appellant did not request or 

agree to (but to which he did not object), the record is silent as to 

the reasons for three of them -- continuances of pretrial hearings 

from December 13, 2005 to March 14, 2006, from July 27 to 

(Fn. is continued on the next page.)
20

delays to him, because they resulted from a systemic 

breakdown of the SVP Unit. Appellant cites nothing in the 

record to support his theory. Instead, he contends that the 

cases of Vasquez and DeCasas collaterally estop the People

from contesting his argument. We disagree.

“Collateral estoppel has been held to bar relitigation of 

an issue decided at a previous trial if (1) the issue 

necessarily decided at the previous trial is identical to the 

one which is sought to be relitigated; if (2) the previous trial 

resulted in a final judgment on the merits; and if (3) the 

party against whom collateral estoppel is asserted was a 

party or in privity with a party at the prior trial.” (People v. 

Taylor (1974) 12 Cal.3d 686, 691, overruled on other grounds 

by People v. Superior Court (Sparks) (2010) 48 Cal.4th 1.) In 

Vasquez, Division Seven held that the trial court did not err 

in finding “‘[t]he dysfunctional manner in which the Public 

Defender’s Office handled Mr. Vasquez’s case’” constituted a 

“systemic or institutional breakdown” that could not be 

attributed to the appellant. (Vasquez, supra, 27 Cal.App.5th 

August 30, 2011, and from August 30 to December 6, 2016. Two 

others -- continuances of a supplemental probable cause hearing 

from February 20 to March 27, 2009 and from July 13 to 

September 14, 2009 -- were due to issues at the hospital where 

appellant was housed. The remaining two were attributable to 

the court -- a continuance of the supplemental probable cause 

hearing from January 26 to February 20, 2009 for court 

congestion, and the continuance of trial from March 9 to March 

20, 2018 because the court had not had time to thoroughly review 

the parties’ filings. 
21

at 73.) Similarly, in DeCasas, our colleagues in Division One 

held that the trial court did not err in finding that the delays 

in bringing DeCasas’s case to trial were due to “a systemic 

breakdown in the public defender’s office.” (DeCasas, supra, 

54 Cal.App.5th at 810.) However, the question before us is 

not whether the SVP Unit suffered a systemic breakdown, 

but whether any such breakdown was the cause of the delays 

in bringing appellant’s case to trial. This issue obviously 

was not addressed in Vasquez or DeCasas. Because “the 

issue necessarily decided” in those two cases is not “identical 

to the one which is sought to be relitigated,” we find 

collateral estoppel inapplicable. (People v. Taylor, supra, 12 

Cal.3d at 691.)

In Williams, our Supreme Court found that “most of 

the delay in this case, apart from the periods already 

attributed to defendant, resulted from defense counsel’s 

failure to make progress in preparing defendant’s case”

(Williams, supra, 58 Cal.4th at 244), but concluded that the

delay must be charged to the defendant absent evidence in

the record demonstrating a systemic breakdown in the 

public defender system (id. at 247). It found that “the record 

on appeal contains no facts that affirmatively support this 

conclusion. Because defendant did not file a motion to 

dismiss on speedy trial grounds in the trial court, the 

underlying cause of the delay in this case was never 

litigated, the various statements by defendant and his 

attorneys were never examined in an adversarial proceeding, 

and the trial court made no findings that might inform the 
22

issue before us.” (Id. at 248.) Similarly, in Tran, decided 

after Vasquez and DeCasas, the court held that “[w]ithout a 

more developed factual record, 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.’ [Citation.] 

Accordingly, we must attribute all delays caused by defense 

counsel to defendant.” (Tran, supra, 62 Cal.App.5th at 352.) 

The same lack of evidence in this record before us compels

the same conclusion.

(ii) The People

While “[t]he People’s due process obligation in an 

SVPA proceeding cannot be defined with precision,” it must 

“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. Continuance 

requests, whether by defense counsel or the prosecution, 

should be supported by an affirmative showing of good 

cause, and where such a showing is lacking, an objection to 

the request may be warranted. Where the prosecution 

encounters repeated continuances of a setting hearing or 
23

trial date, or other dilatory tactics, diligent prosecution of an 

SVP petition may necessitate objecting to the delays, 

insisting upon trial deadlines, and making the trial court 

aware of the length of time since the filing of the SVP 

petition or other pertinent details from the record. The 

prosecution may even find it necessary to seek the removal 

of appointed counsel, the appointment of new or additional 

counsel, or other measures to ensure that an alleged SVP 

defendant is brought to trial at a meaningful time and in a 

meaningful manner.” (In re Butler (2020) 55 Cal.App.5th 

614, 655 (Butler).)

Here, while the prosecution did announce its readiness 

for trial several times, it never objected to appellant’s 

requests for continuances, even though appellant’s counsel 

frequently failed to explain why a continuance was needed. 

The prosecution did not insist on trial deadlines or voice 

concerns about the age of the case. It never sought to have 

appellant’s counsel removed. Thus, we find the People also 

bear some responsibility for the delay.9

9 We disagree with appellant’s contention that the 

prosecution is responsible for the delay of the October 2011 trial 

date. In June 2011, after having previously agreed to an October 

17, 2011 trial date, the prosecutor informed the court she had a 

three-day hearing beginning October 24, 2011, and had concerns 

that appellant’s trial would not conclude prior to that hearing. 

However, the prosecutor offered to appear during the mornings of 

her three-day hearing if necessary to complete appellant’s trial. 

Agreeing with the court that such a plan could inconvenience 

jurors, appellant’s counsel was the one who requested a 

(Fn. is continued on the next page.)
24

(iii) The Trial Court

The trial court also had an obligation to ensure 

appellant received a timely trial. “Even where the attorneys 

stipulate to continue a trial date, the trial court has an 

obligation to determine whether there is a good cause for the 

continuance. The trial court also has a responsibility absent 

a written time waiver to inquire of a defendant whether he 

or she agrees to the delay.” (Vasquez, supra, 27 Cal.App.5th 

at 75; see also Williams, supra, 58 Cal.4th at 251 [“the trial 

court has an affirmative constitutional obligation to bring 

the defendant to trial in a timely manner”].) Even a “neutral 

reason such as negligence or overcrowded courts should be 

weighted less heavily [against the government] but 

nevertheless should be considered since the ultimate 

responsibility for such circumstances must rest with the 

December trial date instead. Thus, we do not attribute this delay 

to the People.

We also disagree that the People bear any responsibility for 

a delay in August 2017, when appellant contends “both attorneys 

had informed the court that they were not going to be ready for 

the then scheduled December trial.” The record belies his claim

that the prosecution was not ready. During that hearing, the 

prosecutor corrected the court’s mistaken impression that trial 

would occur in December 2017, stating, “Expert won’t be ready

[in December]. So we will give you some dates” for trial at the 

next hearing. While the record does not identify which expert 

would not be ready, the prosecutor was likely referring to 

appellant’s expert; at the next hearing, appellant’s counsel 

informed the court that his expert’s report would not be 

completed until January 2018. Obviously the People are not 

responsible for delays caused by a defense expert.
25

government rather than with the defendant.” (Barker, 

supra, 407 U.S. at 531, fn. omitted.)

There were over 60 continuances in this case over 13 

years. While the court did express concern a few times 

regarding the age of the case, continuances were frequently 

granted without an express finding of good cause. For 

example, on December 17, 2015 -- more than ten years after 

the original petition was filed -- appellant’s counsel informed 

the court that he and the prosecutor “have agreed on a 

further pretrial date on Mr. Ballardo’s matter for February 

22nd, if that date is available.” Similarly, at the February 

22 hearing, appellant’s counsel stated he was requesting a 

May 4 pretrial hearing. The record reflects no further 

discussion regarding the continuances. Many other hearings 

proceeded in a similar matter.

(c) Appellant’s Assertion of Right to 

Speedy Trial

“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.” 

(Barker, supra, 407 U.S. at 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 
26

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 238.)

Appellant admits he never asserted a right to a speedy 

trial, but contends we should not weigh this factor against 

him. He notes that during many of the hearings where he 

could have asserted this right, he already had a trial date 

scheduled. He further asserts he had no choice but to agree 

to the delays because it would have been futile to assert his 

right to a speedy trial. Finally, he argues that because

“there was nothing in the record that suggests that appellant 

did or did not want a speedy trial,” we should find this factor 

to be neutral. We disagree.

Virtually every continuance was either requested by or 

agreed to by appellant’s counsel and, as discussed above, 

these requests must be attributed to appellant because there 

is no evidence in the record to suggest they were due to a 

systemic breakdown in the SVP Unit. In the few instances 

in which the court continued the hearing on its own motion 

or due to unforeseen circumstances, appellant’s counsel 

never objected. Every representation made by appellant’s 

counsel -- and they were numerous -- regarding appellant’s 

attitude toward the continuances was that he understood 

and agreed with them. Appellant does not contend his 

counsel misrepresented his understanding or agreement. 

Moreover, every time appellant was asked about a 

continuance, he expressly agreed to it, even indicating at one 
27

point that he had “all the time in the world.” Further, the 

burden is on appellant to demonstrate error. (People v. 

Thompson (2016) 1 Cal.5th 1043, 1097, fn. 11 [“On appeal, 

we assume a judgment is correct and the defendant bears 

the burden of demonstrating otherwise”].) The evidence in 

the record shows that appellant did not assert his right to a 

speedy trial, but rather repeatedly manifested his agreement 

with the continuances sought or stipulated to by his counsel. 

In short, because there is no evidence demonstrating he was 

concerned about this right, we weigh this factor against 

appellant.

(d) Prejudice to Appellant

“Whether [a] defendant suffered prejudice as a result of 

the delay must be assessed in light of the interests the 

speedy trial right was designed to protect: ‘(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.’” (Williams, supra, 58 

Cal.4th at 235.) “Of these forms of prejudice, ‘the most 

serious is the last, because the inability of a defendant 

adequately to prepare his case skews the fairness of the 

entire system.’” (Doggett v. U.S. (1992) 505 U.S. 647, 654.)

“[L]engthy postdeprivation pretrial delay in an SVP 

proceeding is oppressive. In this case, we cannot turn a 

blind eye to the years of pretrial confinement that have 

elapsed following expiration of the last ordered term of 

commitment.” (Litmon, supra, 162 Cal.App.4th at 406; see 
28

Barker, supra, 407 U.S. at 532-533 [“‘The time spent in jail is 

simply dead time’”]; accord, Williams, supra, 58 Cal.4th at 

235 [“We have no difficulty concluding, even in light of the 

complexity of the case and the need for adequate 

preparation, that being jailed without a trial for seven years 

is ‘oppressive’”].) An appellant “need not show ‘a loss of 

witnesses, loss of evidence, or fading memories,’” to 

demonstrate prejudice. (Vasquez, supra, 27 Cal.App.5th at 

63.) “Rather, it is the loss of time spent in pretrial custody 

that constitutes prejudice.” (Ibid.) A defendant’s “extended 

confinement without any determination that he [is] an SVP” 

results in an irretrievable loss of liberty, “regardless of the 

outcome of trial.” (Litmon, supra, 162 Cal.App.4th at 400.)

The People concede that appellant’s pre-trial detention 

was “undoubtedly oppressive.” Appellant does not contend 

the delay hampered his ability to defend himself at trial. We 

agree that while appellant undoubtedly suffered prejudice 

from the delay, it was not the most serious type of prejudice.

(e) Balancing the Barker Factors

The first factor (length of delay) weighs in appellant’s 

favor. The third factor (assertion of right to speedy trial) 

weighs against him. For the second factor (reason for delay), 

we find that while both the prosecution and the court bear 

some responsibility for the delays, most of the blame falls on 

appellant, whose counsel requested or agreed to almost all 

the continuances and did not object to the others. For the 

fourth factor (prejudice), we agree there is inherent prejudice 
29

from being confined for 13 years without a trial, but 

appellant concedes that he did not suffer the “most serious” 

prejudice of an impaired defense. Balancing these four 

factors, we conclude that appellant has not sufficiently 

demonstrated a violation of his due process rights under the 

Barker test.

4. Mathews Analysis

Under Mathews, we consider three factors: “(1) the 

private interest affected by the government action; (2) ‘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 (3) the 

government’s interest.” (Tran, supra, 62 Cal.App.5th at 

348.)

“The first and third factors are always the same in an 

SVP case. With respect to the first factor—the private 

interest at stake—it is clear that forced civil confinement for 

mental health treatment constitutes ‘“‘a massive curtailment 

of liberty,’”’ requiring due process protection. [Citations.] As 

to the third factor, the government undeniably 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.”’ [Citation.] But the state 

has no interest in detaining individuals who do not qualify 
30

as SVPs. [Citation.] Moreover, ‘[e]ven in situations 

justifying postdeprivation hearings, “[a]t some point, a delay 

in the . . . hearing would become a constitutional violation.”’ 

[Citation.] Thus, in our view, the governmental interest in 

continued detention of an alleged SVP lessens as the delay 

increases without a determination that the individual is, in 

fact, an SVP.” (Butler, supra, 55 Cal.App.5th at 663.) Here, 

on three separate occasions, the court found probable cause 

that appellant was likely to engage in sexually violent 

predatory criminal behavior upon release. We therefore 

conclude that, despite the delay between petition and trial,

the third factor weighs in favor of the government.

As for the second factor, while the length of time before 

trial did increase the risk that the deprivation of appellant’s 

liberty would be erroneous, it is undisputed that appellant’s 

counsel either requested or agreed to all but seven of the 

continuances in this case. It would be nonsensical to find 

that appellant could create his own due process violation by 

requesting continuances and then complaining that his 

hearings were continued. As to the continuances not 

requested or agreed to by appellant, those amounted to 36 

days of delay caused by the trial court, and 98 days of delay 

due to problems at the hospital where appellant was 

confined, all over the course of 13 years. We find such delays 

do not amount to a deprivation of due process. (Landau, 

supra, 214 Cal.App.4th at 37 [“A potential civil committee 

may not seek to continue his trial over and over again and 

then be heard to complain the court violated due process by 
31

granting his requests”]; id. at 41-42 [“given the fact that the 

preceding 14-month-plus delay was at appellant’s request, 

we find the delay from November 5, 2007, to the start of trial 

proceedings on December 18, 2007, did not amount to a 

denial of due process under the Mathews analysis”].)10

B. The Court Did Not Err in Failing to Inquire 

About an Alleged Potential Conflict of 

Interest

The parties agree that “[w]hen the trial court knows, or 

reasonably should know, of the possibility of a conflict of 

interest on the part of defense counsel, it is required to make 

inquiry into the matter.” (Bonin, supra, 47 Cal.3d at 836.) 

But “a court can be held to have knowledge or notice of the 

possibility of a conflict only when . . . it is provided with 

evidence of the existence of a conflict situation . . . . 

Otherwise, it would effectively be burdened with 

undertaking an inquiry in virtually all cases since it can 

almost always conclude that a conflict is ‘possible’ as a 

matter of speculation. Such a burden, however, would be 

intolerable.” (Id. at 838.) Here, we find that the court was 

not presented with evidence of the existence of a conflict 

situation, and therefore had no duty to inquire.

10 Appellant also contends that the second factor favors him 

because of the existence of a conflict of interest between his 

counsel and him. As discussed below, nothing in the record 

evidences such a conflict of interest.
32

Appellant contends his attorney had a conflict of 

interest because, after the decision in Vasquez, his attorney 

could not raise a due process claim without explaining why 

he had not previously done so, and because raising such a 

claim might have “gotten him in trouble” with his superiors. 

Appellant’s arguments rest on assumptions we are 

unprepared to make. His counsel would have had a conflict 

in deciding whether to bring a due process claim only if there 

was a valid basis to bring such a claim, and only if bringing 

the claim would have been harmful to counsel. As discussed 

above, there is simply no evidence of this. Unlike the public 

defenders in Vasquez or DeCasas, appellant’s counsel never 

informed the court that he was unable to represent appellant 

adequately because of staff shortages or increased workload. 

In Vasquez, defense counsel repeatedly told the court she 

was unable to be ready due to her increased workload, the 

need to prepare for other matters, and the loss of paralegal 

assistance. (Vasquez, supra, 27 Cal.App.5th at 48-50.) 

Similarly, in DeCasas, the public defender informed the 

court of the increase in his caseload and later testified it 

prevented him from preparing for DeCasas’s trial. (DeCasas, 

supra, 54 Cal.App.5th at 796-797.)

No such protestations were heard from appellant’s 

counsel, and appellant fails to explain why his counsel would 

have been less inclined than those in Vasquez and DeCasas

to inform the court that any increase in workload was 
33

impairing his ability to bring appellant’s case to trial.

11 Nor 

does appellant point to anything in the record demonstrating 

that any evidence of a potential conflict of interest was ever 

brought to the court’s attention. Therefore, we conclude 

appellant has failed to demonstrate the court erred in not 

inquiring about a potential conflict of interest.

C. Appellant Fails to Show Ineffective 

Assistance of Counsel

Appellant somewhat contradictorily argues that his 

counsel’s failure to file a motion to dismiss after the issuance 

of the decision in Vasquez constituted ineffective assistance 

of counsel both because his counsel “could have had no valid 

tactical reason” for failing to file such a motion, and because, 

due to the purported conflict between appellant and his 

counsel, his counsel was not entitled to make the tactical 

decision to not file the motion. We disagree.

The parties agree that to prevail on an ineffective 

assistance of counsel claim, appellant must establish both 

deficient performance under an objective standard of 

reasonableness and a reasonable probability of a better 

11 Appellant additionally argues that any malpractice claim 

he had against his public defender would “go away” if appellant 

were committed as an SVP, and thus it was in his counsel’s 

interest to go to trial rather than file a potentially successful 

motion to dismiss. Again, appellant points to nothing in the 

record to demonstrate that he had any viable malpractice claim 

against his counsel, much less that any such evidence was 

brought to the trial court’s attention.
34

outcome. (People v. Memro (1995) 11 Cal.4th 786, 818.) “In 

the usual case, where counsel’s trial tactics or strategic 

reasons for challenged decisions do not appear on the record, 

we will not find ineffective assistance of counsel on appeal 

unless there could be no conceivable reason for counsel’s acts 

or omissions.” (People v. Weaver (2001) 26 Cal.4th 876, 926.) 

However, “‘where a conflict of interest causes an attorney not 

to do something, the record may not reflect such an omission. 

We must therefore examine the record to determine (i) 

whether arguments or actions omitted would likely have 

been made by counsel who did not have a conflict of interest, 

and (ii) whether there may have been a tactical reason (other 

than the asserted conflict of interest) that might have caused 

any such omission.’” (People v. Doolin (2009) 45 Cal.4th 390, 

418.)

Here, as discussed above, we find appellant has failed 

to demonstrate either a potential or an actual conflict of 

interest existed between his counsel and him. Moreover, 

appellant recognizes that his counsel may have opted not to 

bring a motion to dismiss because, at the time Vasquez was 

decided, appellant had a trial date and filing such a motion 

would have delayed trial yet again. He further admits that 

“[i]f, after being fully advised of the consequences of his 

decision, appellant elected to go to trial . . . and waive his 

due process claim, that would have been acceptable.” 

Another reason appellant’s counsel may have elected not to 

bring such a motion is simply that there was no basis for it. 

Again, as discussed above, nothing in the record 
35

demonstrates that any systemic breakdown of the SVP Unit 

affected appellant’s representation.

On this record, given plausible and reasonable reasons 

that appellant’s counsel may have declined to file a motion to 

dismiss, we cannot conclude that the failure to bring such a 

motion was due to ineffective assistance of counsel.
36

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

 MANELLA, P. J.

We concur:

COLLINS, J.

CURREY, J.