1

Filed 8/10/22 P. v. Lozano 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY DAVID LOZANO,

Defendant and Appellant.

C094245

(Super. Ct. No. 05F00498)

After over 11 years housed in a state hospital pending trial, the trial court found 

defendant Anthony David Lozano was a sexually violent predator (SVP) and civilly 

committed him. Defendant appeals this commitment contending the trial court abused its 

discretion by: (1) denying his Marsden1 motions; and (2) denying his motion for a 

continuance to file a motion for dismissal based on a violation of his due process right to 

1 People v. Marsden (1970) 2 Cal.3d 118.
2

a timely trial. We find no error in the denial of the Marsden motions. As to the motion 

for continuance, we agree that the trial court erred. We will conditionally reverse and 

remand the matter for a hearing on the motion to dismiss.

LEGAL BACKGROUND

Resolution of the issues in this case requires consideration of an SVP detainee’s 

due process right to a timely trial. Between 2008 and 2020, California courts published a 

number of cases delineating that due process right. Understanding the framework of 

those cases, and their chronology, is helpful in understanding the factual background and 

legal analysis of this case; thus, we set forth that history first.

“Because civil commitment involves a significant deprivation of liberty, a 

defendant in an SVP proceeding is entitled to due process protections. (Foucha v. 

Louisiana (1992) 504 U.S. 71, 80.)” (People v. Otto (2001) 26 Cal.4th 200, 209.) In 

SVP proceedings, after a finding of probable cause on the commitment petition, the 

alleged SVP is detained pending trial. (Welf. & Inst. Code,2 §§ 6601, 6602, subd. (a); 

People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 906.) An SVP detainee’s due 

process rights are also entitled to protection during this period of pretrial deprivation of 

liberty. (People v. Litmon (2008) 162 Cal.App.4th 383, 399, 406.)

In April 2008, Litmon held that for an alleged SVP detained prior to trial, those 

due process protections included a right to a timely trial. (People v. Litmon, supra, 162

Cal.App.4th at p. 399.) In applying the right to a timely trial to SVP detainees, Litmon 

used the analytical framework of both Mathews v. Eldridge (1976) 424 U.S. 319, 333

[court balances three factors: private interest, value of other procedural safeguards, and 

government interest] and Barker v. Wingo (1972) 407 U.S. 514, 533 [court weighs four 

factors: length of delay; reason for delay; defendant’s assertion of his right; and 

2 Undesignated statutory references are to the Welfare and Institutions Code.
3

prejudice to defendant from the delay] (Litmon, at pp. 399-405, 405-407) to assess 

whether pretrial delays violated the fundamental requirements of due process. Litmon 

concluded under both due process analyses, the SVP trial must occur prior to the 

commencement of the SVP civil commitment term. (Id. at p. 401.) Litmon held when an 

alleged SVP is civilly committed after a probable cause hearing, a lengthy pretrial delay 

is oppressive and prejudicial to defendant. (Id. at pp. 405-406.) Litmon also charged the 

state with responsibility for issues such as “chronic, systematic postdeprivation delays in 

SVP cases that only the government can rectify,” and postcommitment “delays due to the 

unwillingness or inability of the government to dedicate the resources necessary to ensure 

a prompt SVPA [Sexually Violent Predator Act] trial.” (Id. at p. 403.) The court also 

stated: “[P]ostdeprivation pretrial delays in SVPA proceedings cannot be routinely 

excused by systemic problems, such as understaffed public prosecutor or public defender 

offices facing heavy caseloads, underdeveloped expert witness pools, or insufficient 

judges or facilities to handle overcrowded trial dockets.” (Ibid., fn. omitted.) Litmon 

concluded the ultimate responsibility for bringing the person to trial in a meaningful time 

rests with the government, and the remedy for excessive pretrial delays is to dismiss the 

commitment petition. (Id. at pp. 399-406.)

Approximately five years later, the Court of Appeal in People v. Landau (2013) 

214 Cal.App.4th 1 distinguished Litmon and concluded that more than seven years of 

pretrial delay did not violate an SVP detainee’s due process rights, where the vast 

majority of delays were at the defendant’s request or with his consent and the 

unconsented to period of delay was relatively short (id. at pp. 27, 37-38). While Landau 

acknowledged the principle that the court and district attorney bear ultimate 

responsibility for providing a timely trial (id. at p. 41), it concluded that principle did not 

mean an SVP detainee could seek to continue trial repeatedly and then complain that the 

court violated due process by granting his requests (id. at p. 37).
4

Another five years later, in September 2018, People v. Superior Court (Vasquez)

(2018) 27 Cal.App.5th 36 held a 17-year pretrial delay violated an SVP detainee’s due 

process right to a timely trial. Vasquez noted the general rule that delays caused by 

defense counsel that are not caused by a systemic breakdown are properly attributed to 

the defendant, even when counsel is assigned (id. at p. 70). Accordingly, Vasquez 

attributed the first 14 years of delay to the defendant. (Ibid.) However, the remaining 

period of delay was caused largely by underfunding of, and dramatic staffing cuts at, the 

public defender’s office. Those delays were attributable to the state. (Id. at pp. 71-72.) 

In addition, the trial court shared some responsibility for the delays, as it was required to 

find good cause to support continuances and take meaningful action to control the 

proceedings and protect the defendant’s rights. (Id. at pp. 74-75.) Thus, where the trial 

court did not meet those obligations, the delays were also attributable to the state. (Id. at 

p. 74.) Vasquez also rejected the claim that the proper remedy was to order the matter to 

trial, distinguishing cases in which an SVP recommitment proceeding was not brought to 

trial before the expiration of the initial commitment and those in which the delay in

proceeding to trial was a due process violation.3 Instead, Vasquez confirmed the proper 

remedy for a violation of the defendant’s due process right to a timely trial is a dismissal

of the petition. (Vasquez, at pp. 82-83.)

Finally, in October 2020, the court in In re Butler (2020) 55 Cal.App.5th 614 

agreed with Vasquez and Litmon, that an SVP detainee has a due process right to a timely 

trial (id. at p. 666). Butler also agreed with Vasquez and Litmon that the prosecution, 

defense, and trial court shared responsibility for protecting the defendant’s due process 

3 Prior to 2006, the SVPA provided for a two-year initial commitment, and 

subsequent extensions of that commitment. In 2006, the SVPA was amended to provide 

for an indeterminate commitment term instead of a two-year commitment. (People v. 

Litmon, supra, 162 Cal.App.4th at pp. 408-409.)
5

rights and bringing the matter to trial. (Id. at pp. 641, 653-656, 682-683, 660-661.) 

However, Butler rejected the claim that where responsibility for delay overlapped

between defense counsel and the state, the delay had to necessarily be attributed to the 

defendant. Instead, Butler concluded these delays would have diminished weight against

the defendant given the fact that the public defender had ignored the defendant’s 

demands for a timely trial and waived time without the defendant’s authorization. 

Accordingly, Butler concluded where state actors and defendant were responsible for that 

same period of delay, the ultimate obligation to bring an alleged SVP to trial in a 

meaningful time falls on the state (even where the SVP might prefer delay) and justifies 

charging the state with more responsibility for the delay. (Id. at pp. 662-664.)

FACTUAL AND PROCEDURAL BACKGROUND4

In June 2009, following his conviction for assault with intent to commit rape, the 

prosecution filed a petition to civilly commit defendant as an SVP. In November 2009, 

the trial court found probable cause that defendant was an SVP and ordered him detained 

at a secure facility pending trial on the SVP commitment petition.

Over the course of the next 11 years, the trial court granted approximately 80 

continuances of the SVP proceedings. Approximately 60 of these continuances were 

granted between November 2009 and August 2018, for a variety of reasons including: 

obtaining defense psychiatric evaluations, replacement evaluators and updated 

evaluations, including after one expert passed away; verifying reports were current and 

accurate; obtaining updated records and reports from the state hospital and experts;

obtaining further defense investigative reports; conflicts in defense counsel’s schedule; 

reviewing new materials from the prosecution and permitting the defense expert time to 

review those materials; allowing defendant to continue and progress in institutional 

4 The substantive facts underlying defendant’s conviction are not relevant to any 

issue raised on appeal and are therefore, not recounted here.
6

programming and obtaining updated reports from the institution; defendant’s violent 

conduct within the institution resulting in additional criminal proceedings; and obtaining 

updated reports regarding defendant’s institutional conduct, rules violations, and the 

resolution of resulting criminal charges. Approximately 15 of these continuances were 

granted with no reason stated. Defendant’s appearance was waived at most of these 

hearings. As to two of the hearings, one in 2012 and one in 2018, it appears defendant 

requested the continuances to allow him to continue institutional programming. In July 

2018, the People reported defendant did not want to go to trial. Also in July 2018, the 

parties agreed there was no need for a time waiver as defendant had made no request for 

a speedy trial.

Between August 2018 and March 2021, the trial court granted approximately 20 

more continuances.

In August 2018, the matter was continued because defendant refused to meet with 

counsel. Defense counsel indicated he was going to prepare for trial. In October 2018, 

the matter was continued as the People had requested an updated evaluation, and defense 

counsel was determining whether to hire an expert or set the matter for trial.

Following that October 2018 hearing, defendant wrote to counsel, requesting 

counsel set the matter for trial.5 Counsel responded stating he was willing to set the 

matter for trial, noting defendant had refused to meet with him the last two times he 

attempted to visit, and recommending against setting the matter for trial without 

defendant first meeting with counsel or the defense investigator.

5 This letter from defendant is not contained in the record on appeal, but is 

referenced in an October 19, 2018 letter from counsel to defendant. The letter from 

counsel is included in materials sent to the trial court by defendant attached to his August

19, 2019 “Notice of Actual Conflict.”
7

Between October 2018 and August 2019, the matter was continued primarily for 

reasons involving expert evaluations, including: defense counsel needed time to assess 

the People’s updated expert evaluations and determine if a new defense evaluation was 

needed; the defense expert needed additional time to prepare a report, as the previous 

expert had resigned because of pay issues; and the People needed updated reports from 

their expert. Complicating defense counsel’s ability to obtain timely expert reports, was 

the fact that there were only three defense experts in the state, and they were very busy.

On August 8, 2019, defendant again wrote to defense counsel, stating he intended 

to move for a hearing to address an alleged conflict of interest between himself and 

counsel. He asserted counsel had failed to move his case forward in a timely manner and 

he wanted new counsel for purposes of bringing a motion to dismiss, in part based on 

counsel’s incompetent representation. Counsel responded that defendant’s case would go 

to trial at the next available opportunity. Counsel also distinguished defendant’s case 

from others in which a dismissal was appropriate, based on the fact defendant had “asked 

for multiple continuances given numerous behavior and legal issues” defendant had had 

in the state hospital.

Between September 2019 and January 2020, the trial court granted a number of 

additional continuances, for reasons such as defense counsel’s scheduling conflicts and 

attendant inability to review the updated defense expert’s report with defendant, the 

People’s entitlement to discovery of that updated defense report, and defense counsel’s 

continued inability to meet with defendant. One continuance was granted with no reason 

given.

At the January 23, 2020 hearing, counsel moved to set the matter for trial on 

April 30, 2020. Defendant was present via video conference and stated he wanted to 

declare a conflict with counsel and wanted independent counsel to file a motion 

concerning Vasquez issues. The People noted a number of patients at the state hospital 

had been attempting to make such motions, and suggested the matter be set for a Marsden
8

hearing. Since defendant would have to be present in court for that hearing, the Marsden

motion was set on February 20, 2020, and a trial date of April 30, 2020. Defendant was 

not produced for the February 20 Marsden hearing based on an administrative error, and 

the hearing was reset for March 13, 2020. That hearing was continued as defense counsel 

was in trial in another county. Defense counsel informed the court it was not necessary 

to bring defendant into the courtroom regarding the continuance, as this was an SVP case, 

and thus, there “isn’t a time issue.” The hearing was continued to March 27, 2020. It 

then appears the matter was continued because of the coronavirus disease (COVID-19) 

court closures.6

The matter was back on calendar on June 8, 2020. Defense counsel requested a 

continuance to August 2020, because of an ongoing trial in another county that had also 

been continued because of COVID-19 court closures. The People objected to that date, 

noting the issue in this case was related to the failure to bring the case to trial and 

defendant had been in county jail awaiting the Marsden hearing for months and therefore 

not receiving any treatment or programming. The trial court set the Marsden hearing for 

June 12, 2020. 

Defendant’s Marsden motion was heard on June 12, 2020. After considering 

defendant’s complaints that defense counsel had failed to protect his due process right to 

a timely trial and failed to make a motion to dismiss based on the violation of that right 

and defense counsel’s responses,7the court found no breakdown in the attorney-client 

6

Judicial Council of California Statewide Order 

<https://newsroom.courts.ca.gov/sites/default/files/newsroom/2020-

09/Statewide%20Order%20by%20the%20Chief%20JusticeChair%20of%20the%20Judicial%20Council%203-23-2020.pdf> (as of Aug. 10, 2022), 

archived at <https://perma.cc/ZN5Q-JNRX>.

7 Defendant’s complaints and counsel’s responses in the Marsden motions are set 

forth in greater detail in the Discussion section of this opinion.
9

relationship such that it would be impossible for counsel to represent defendant. 

Accordingly, the court denied the Marsden motion. The matter was set for trial on 

August 26, 2020, based on both defense counsel’s and the People’s earliest availability.

Defense counsel requested another continuance in August 2020, based on their 

expert witness needing additional time. The People also noted they were entitled to 

discovery of that report and additional time after receiving it. The court found good 

cause to continue the matter to September 30, 2020. Defendant again told the court he 

had a conflict with counsel, he did not trust defense counsel, and the relationship was 

irreparable. He wanted another hearing on the issue but stated he did not want a Marsden

hearing. The trial court declined to set a hearing on the alleged conflict. 

In September 2020, defense counsel requested another continuance, this time 

based on the defense expert informing defense counsel she could not assist the defense, 

necessitating a change in trial strategy. In addition, defense counsel was waiting for 

additional updated records from the state hospital. Defense counsel requested a 

continuance to October 26, 2020. Defendant objected to the continuance. Defendant 

again stated he wanted substitute counsel and that he had not been allowed to make his 

claim at the earlier Marsden hearing. The trial court denied the request for a Marsden

hearing based on the lack of any new information.

At the October 22, 2020 trial readiness conference, defense counsel requested 

another continuance. Counsel indicated they had numerous new records to review and 

needed time to prepare an alternate defense strategy based on their expert’s resignation. 

Defendant objected to the continuance and again stated he and defense counsel had a 

conflict. Defendant claimed there were new circumstances, so the court set the matter for 

another Marsden hearing.

The Marsden hearing was held on October 26, 2020. After determining 

defendant’s claims had been adjudicated at the prior Marsden hearing, the court denied 

the motion.
10

Following the second Marsden hearing, defense counsel requested a continuance 

of the trial date to allow him time to review approximately 1,000 pages of new material 

provided by the prosecution. He stated although he had interviewed witnesses and 

prepared the defense, the materials were relevant to the defense and had to be reviewed to 

provide defendant effective assistance of counsel. Defendant objected to this 

continuance. The trial court granted the continuance to December 10, 2020.

Between the October 2020 Marsden hearing and March 2021 trial date, the trial 

court continued the matter two more times. The first continuance was due to courthouse 

administrative error and COVID-19 scheduling complications. Defendant objected to 

this continuance. There was no reason stated for the second continuance.

Prior to the March 2021 trial date, defense counsel filed a motion for continuance 

asserting defendant was entitled to a Butler hearing to determine whether his due process 

timely trial rights had been violated, potentially resulting in a dismissal of the SVP 

proceedings, obviating the need for a trial. The trial court denied the motion concluding 

that to delay the trial further “to contemplate the filing of a motion decrying delays in 

getting the case to trial, seems a step in the wrong direction.”

The matter came on for hearing on March 15, 2021. Defendant made a third 

Marsden motion. After considering defendant’s assertion of a conflict based on the 

failure to file a motion to dismiss for violation of his timely trial right and counsel’s 

response, including having sought a continuance to file a motion to dismiss and tactical 

reasons to “age a case,” the trial court found defense counsel was providing 

“constitutionally adequate counsel” and denied the Marsden motion. 

Defendant waived jury trial and a court trial was set for March 18, 2021. After 

considering the evidence, the court noted that both experts found defendant’s case was 

unique and neither doctor could say defendant would not succeed if he were released. 

Based on the testimony of the doctors and the court’s own interactions with defendant, 

the court believed there was a prospect that at some later date, in the not too distant 
11

future, defendant would be able to be released under controlled supervision. 

Nonetheless, the court found the evidence undisputed that defendant suffered from 

various diagnosed mental illnesses, had committed a sexually violent offense, and had 

previously been determined to be a mentally disordered offender. The court concluded as 

a result of the diagnosed mental disorders and his criminal history, defendant was an

SVP, and it was necessary to confine him in a secure facility. The trial court ordered 

defendant committed for an indeterminate period to the State Department of State 

Hospitals for appropriate treatment and confinement.

Defendant timely appeals this commitment order.

DISCUSSION

I

No Abuse Of Discretion Denying Marsden Motions

Defendant contends the trial court abused its discretion by denying his Marsden

motions. Specifically, he contends the attorney-client relationship had irretrievably 

broken down and he had lost faith and trust in his counsel. The People counter there was

no abuse of discretion, as the breakdown in the attorney-client relationship appeared to be 

a result of defendant actively undermining the relationship in pursuit of his goal of having 

a Butler/Vasquez motion filed. 

Defendant’s first Marsden motion was heard on June 12, 2020. Defendant advised 

the trial court he had been a probable cause detainee for 11 years, during which time 

defense counsel had failed to move the matter to trial to protect his right to a timely trial 

as defined in Vasquez and Litmon, and failed to make a motion to dismiss based on the 

violation of his timely trial right. Defendant also claimed counsel had failed to object to 

the original probable cause hearing in 2009. Based on these failures, defendant alleged 

there was an actual conflict between himself and defense counsel.

In response, defense counsel delineated his experience and efforts representing 

defendant. Counsel reported defendant had repeatedly told counsel and the defense 
12

investigator that he did not want to go to trial, but rather wanted to get assistance through 

the mental health process of the SVP law and available treatment programs. Then, in 

2018, following the publication of Vasquez, defendant changed his position and started 

demanding trial. Also at that time, defense counsel and the defense investigator made 

numerous attempts to see defendant and defendant refused to meet with them to discuss 

trial tactics, issues, or witnesses. In addition, defendant had 27 disciplinary violations in 

2019 alone, including violent conduct toward staff members and narcotics possession in 

the institution. Counsel had obtained a number of independent psychiatric evaluations of 

defendant and each evaluator concluded defendant met the criteria of an SVP. Thus, 

counsel opined no reasonable juror or trier of fact would free defendant based on his 

history. Counsel also noted there had been a trial date set when the COVID-19 pandemic 

occurred, and all dates were postponed and continued. When defendant finally met with 

counsel, he told counsel he did not want to make a Marsden motion but wanted to take 

advantage of the “new” law, as stated in Vasquez. Counsel noted that there was a 

widespread belief in the state hospital that if one had not gone to trial in the last few 

years, one would be released.

Defendant denied defense counsel’s assertions and continued to claim there had 

been a breakdown in the relationship. He stated there had been over 80 continuances 

since 2009, he had no knowledge of those continuances, and he had been asking for trial 

since 2015. He also alleged counsel was ineffective, he wanted to assert his right to a 

timely trial under Vasquez and Litmon, and he wanted to file a motion to dismiss. He 

also denied that he had refused to meet with defense counsel or the defense investigator.

Defense counsel answered that his office had notified defendant of each 

continuance and the investigator spoke to defendant approximately once a month to 

update him on the status of the case. Until 2018, in every conversation with the 

investigator, defendant had told the investigator he did not want to go to trial, he wanted 

to complete additional institutional programming, and he had other legal issues. Defense 
13

counsel opined that the difficulties in the relationship with defendant started with the 

publication of the Vasquez case, at which point defendant started to try to build a conflict 

to support his claim under Vasquez. Defense counsel also indicated he was ready to 

proceed to trial. Although meetings with defendant would be helpful, he could be ready 

for trial at the next available date; whereas it would take new counsel years to get ready 

for trial given the work, defense investigators, and experts necessary to be ready.

The trial court found defense counsel truthful and disbelieved defendant’s claims. 

The court noted defendant had a propensity to misstate facts and concluded defendant 

was singularly focused on removing defense counsel irrespective of the circumstances,

even if such removal was counterproductive to obtaining a timely trial. The court found 

no deficiency or inadequacy in counsel’s representation of defendant. Although the court 

was concerned about defendant’s willingness to work with counsel, the court found no 

breakdown in the relationship such that it would be impossible for counsel to represent 

defendant. The court concluded defendant could work with defense counsel but was 

choosing not to as a cover to remove defense counsel, even though that removal would 

delay trial. The court also found defense counsel wanted to continue to represent 

defendant and believed he could properly do so. Accordingly, the court denied the 

Marsden motion.

Defendant’s second Marsden motion was heard in October 2020. Defendant 

alleged he had been in the Sacramento County jail since March 11, 2020, and defense 

counsel had abandoned him with no contact, visits, e-mails, or phone calls, and there had 

been multiple continuances. Upon the trial court’s questioning, defense counsel indicated 

these claims had been discussed at length at the prior Marsden hearing. Concluding 

defendant did not raise any new claims, the trial court denied the motion.

Defendant made a third Marsden motion in March 2021. Defendant asserted he 

had not had a preliminary hearing because defense counsel had waived his probable 

cause hearing, significant amounts of inadmissible hearsay testimony were used in his 
14

evaluations, and his attorney had a conflict of interest in terms of filing a motion to 

dismiss under Vasquez, because it would implicate counsel’s performance. Defense 

counsel explained the hearsay issues would be addressed in the motions in limine and the 

case had properly moved past the probable cause hearing. Defense counsel reiterated his 

experience and detailed the meetings he and his investigator had with defendant. He 

again noted defendant’s significant history of disciplinary issues at the state hospital, 

including over 100 reports of behavioral aggression and drug use. No psychiatric expert 

had ever written a report favorable to the defense, rather each evaluator had found 

defendant met the criteria for being an SVP. There were no expert witnesses or evidence 

favorable to defendant. The only potentially favorable witness was defendant’s wife. 

She had credibility and judgment issues that would have made her ineffective as a 

witness on defendant’s behalf. Defense counsel acknowledged the potential issue with 

the Butler motion, but noted that fellow practitioners had determined it did not create a 

conflict and that he had filed a motion for continuance to permit him time to file a Butler 

motion, which the court had denied. Defense counsel also explained there were tactical 

reasons to “age a case,” such as the effect age has in reducing recidivism, and the 

difference in status and available programs between a person awaiting their SVP trial and 

one who has a lifetime commitment as an SVP. He acknowledged defendant’s fears and 

concerns but explained they were misdirected at him. Counsel had made tactical 

decisions, which combined with defendant’s actions, had delayed the proceedings, but he 

was fighting hard to advocate for defendant. The trial court found defense counsel was 

providing constitutionally adequate assistance and denied the Marsden motion. 

“ ‘A defendant is entitled to have appointed counsel discharged upon a showing 

that counsel is not providing adequate representation or that counsel and defendant have 

become embroiled in such an irreconcilable conflict that ineffective representation is 

likely to result.’ ” (People v. Panah (2005) 35 Cal.4th 395, 431.) It is the defendant’s 

obligation to make “ ‘a sustained good faith effort to work out any disagreements with 
15

counsel.’ ” (People v. Clark (2011) 52 Cal.4th 856, 913.) “ ‘[T]he trial court need not 

conclude that an irreconcilable conflict exists if the defendant has not tried to work out 

any disagreements with counsel and has not given counsel a fair opportunity to 

demonstrate trustworthiness.’ ” (People v. Cole (2004) 33 Cal.4th 1158, 1192.)

A Marsden inquiry is adequate where, as here, the defendant is allowed to fully 

state his complaints and his attorney is asked in the defendant’s presence to summarize 

his experience in criminal law and to address defendant’s complaints. (People v. Barnett

(1998) 17 Cal.4th 1044, 1091.) “ ‘Tactical disagreements between the defendant and his 

attorney do not by themselves constitute an “irreconcilable conflict.” ’ ” (People v. 

Jackson (2009) 45 Cal.4th 662, 688.) “[T]actical disagreements between a defendant and 

his attorney or a defendant’s frustration with counsel are not sufficient cause for 

substitution of counsel.” (People v. Streeter (2012) 54 Cal.4th 205, 231.) We review the 

denial of a Marsden motion for abuse of discretion. (Id. at p. 230.) “Denial is not an 

abuse of discretion ‘unless the defendant has shown that a failure to replace counsel 

would substantially impair the defendant’s right to assistance of counsel.’ ” (People v. 

Taylor (2010) 48 Cal.4th 574, 599.)

The court gave defendant and defense counsel ample opportunity to be heard on 

the Marsden motions. Counsel confirmed he had met with defendant, regularly advised 

him of continuances and the status of the case, conducted an ongoing and thorough 

investigation, obtained numerous psychiatric evaluations of defendant, and assessed 

witnesses. The record shows for nine years there was no conflict or breakdown in the 

relationship between counsel and defendant, they were working cooperatively together 

with a shared strategy. As of April 2018, defendant had not requested a trial. Counsel 

made a tactical decision to “age” the case to improve defendant’s commitment status, 

allow continued programming, and reduce defendant’s recidivism risk factors. Defendant 

agreed with this strategy. There was evidence that as late as July 2018, defendant 

explicitly requested defense counsel not go to trial, as he was programming and hoping 
16

for a better result at trial. From 2009 to 2018, nothing in the record suggests defendant 

was dissatisfied with counsel’s representation or that there was any conflict between 

them.8 Nor is there any indication defendant was concerned about his timely trial right, 

or that he wanted to take the matter to trial.

The record here reflects defendant did not begin to complain about counsel, delays 

in going to trial, and demanding a trial until October 2018, after the publication of 

Vasquez. Defendant’s behavior in this regard was consistent with a belief held by many 

in the state hospital that creating a conflict with their attorney would result in a dismissal 

of their case. After the Vasquez decision, counsel and the defense investigator made 

numerous attempts to meet with defendant and he refused to see them. To the extent 

defendant subsequently changed his strategy and disagreed with counsel’s tactical 

choices, that disagreement does not rise to the level of a substantial impairment of his 

right to effective assistance of counsel. (People v. Roldan (2005) 35 Cal.4th 646, 682, 

overruled on other grounds by People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.) 

Moreover, after having successfully worked with counsel for nine years, defendant 

attempted to create a conflict in the relationship between himself and counsel. A 

defendant cannot engineer a conflict and refuse to cooperate with appointed counsel, 

potentially hampering his defense, and then claim he is entitled to a substitute attorney, 

because counsel has been ineffective. (Ibid.)

At no point did defense counsel indicate he could not or would not effectively 

represent defendant. To the contrary, he continued to advocate for defendant, prepare a 

8 Defendant references a 2015 letter defendant wrote to counsel as demonstrative of 

defendant’s complaints about counsel’s representation. This letter references 

unsuccessful attempts at communicating with counsel, defendant’s belief that the SVP 

petition was statutorily time-barred, and a request counsel forward materials related to 

that purportedly time-barred petition. It makes no mention of any claimed timely trial 

right violations, desire to take the matter to trial, dissatisfaction with counsel’s 

representation, or an interest in substituting counsel.
17

defense, seek helpful experts, interview witnesses, and address defendant’s ongoing 

disciplinary issues. After the publication of Butler, counsel sought a continuance to file a 

motion to dismiss under Butler. The record does not reflect an irreconcilable conflict or 

breakdown in the attorney-client relationship. Nor did defendant show that a failure to 

replace counsel would substantially impair his right to effective assistance of counsel. 

The trial court did not abuse its discretion in denying defendant’s Marsden motions.

II

Reversible Error In Denying The Motion For Continuance

Defendant contends the trial court abused its discretion in denying his motion for a 

continuance to file a Butler dismissal motion. The People argue defendant did not 

establish good cause for the continuance and any error was harmless.

On March 11, 2021, four days before defendant’s trial date, defense counsel filed a 

motion to continue under section 6603 on the ground defendant was entitled to a Butler 

hearing, which might render trial unnecessary. Defense counsel indicated he had 

determined it was in defendant’s best interests that he file a motion to dismiss based on a 

different trial court judge’s application of Butler in a different case. Defense counsel had 

reviewed that ruling, met with other defense attorneys to discuss the implications of the 

ruling, and spoken with a supervising district attorney who indicated the ruling would not 

be appealed. Accordingly, defense counsel concluded he was required to file a Butler 

motion to dismiss, as there was a high likelihood the motion would be successful, and 

defendant’s case would be dismissed. Counsel also declared because of the high 

likelihood of success on the motion, it would be a waste of taxpayer resources to go to 

trial and an unnecessary health risk given COVID-19 levels to impanel a jury.

The trial court summarily denied the motion noting the previous 13 continuances 

of the trial date and that the parties had declared themselves ready for trial on March 1, 

2021. The trial court concluded: “To yet again delay the trial of [defendant’s] matter, 
18

this time to contemplate the filing of a motion decrying delays in getting the case to trial, 

seems a step in the wrong direction.”

A continuance of an SVP trial shall be granted only upon a showing of good 

cause. (§ 6603, subd. (c)(5).) Trial courts have wide discretion to determine whether 

such cause exists. (People v. Doolin, supra, 45 Cal.4th at p. 450.) “In making that 

determination, courts consider whether the moving party has acted diligently, the 

anticipated benefits of the continuance, the burden that the continuance would impose on 

witnesses, jurors, and the court, and whether a continuance will accomplish or hinder 

substantial justice.” (People v. Reed (2018) 4 Cal.5th 989, 1004.) Where, as here, the 

trial court denies a motion for a continuance, “we review all circumstances relevant to the 

motion to determine whether the trial court’s decision was so arbitrary as to deprive the 

movant of due process.” (Ibid.) “ ‘There are no mechanical tests for deciding when a 

denial of a continuance is so arbitrary as to violate due process. The answer must be 

found in the circumstances present in every case, particularly in the reasons presented to 

the trial judge at the time the request is denied.’ ” (People v. Mungia (2008) 44 Cal.4th

1101, 1118.) A misapplication or misunderstanding of the law is an abuse of discretion. 

(People v. C.S.A. (2010) 181 Cal.App.4th 773, 778; People v. Robarge (1953) 41 Cal.2d 

628, 633-634.) “Absent a showing of an abuse of discretion and prejudice, the trial 

court’s denial does not warrant reversal.” (Doolin, at p. 450.)

A consideration of all the circumstances present here demonstrates the trial court 

abused its discretion in denying the motion to continue to allow defense counsel time to 

file a motion to dismiss. In assessing whether there was good cause to grant the 

continuance, the trial court was required to consider defense counsel’s diligence, the 

anticipated benefits and burdens of the continuance, and whether the continuance would 

accomplish or hinder substantial justice. The record does not reflect the trial court 

considered any of these factors. Rather, from the trial court’s ruling, it appears the trial 

court misunderstood the applicable law and facts. Counsel was not seeking a continuance 
19

to contemplate filing a motion. Counsel’s declaration makes clear he had concluded it 

was in defendant’s best interest to file a Butler motion and he was seeking a continuance 

to file the Butler motion. In addition, the trial court’s ruling confuses the actual remedy 

for a Butler violation. The trial court’s ruling suggests it believed that if the Butler

motion were successful, the remedy would be for the matter to proceed to trial (see 

Orozco v. Superior Court (2004) 117 Cal.App.4th 170, 179); hence the illogic of 

continuing the matter to allow for the filing of a motion to “decry delays in getting the 

case to trial.” However, Butler explicitly rejected that as the appropriate remedy for a 

due process violation of the right to a timely trial. The remedy for a Butler violation is 

dismissal of the case.

Moreover, it is not a “step in the wrong direction” to allow a defendant time to file 

a motion seeking dismissal of a case based on a due process violation. This is 

particularly true here where only one factor weighs potentially against granting the 

continuance.

Of the relevant factors, only counsel’s diligence in pursuing dismissal might weigh 

against granting the motion. Butler was decided approximately six months before 

defense counsel made the motion to continue. Counsel offered no reason why he did not 

file the motion upon Butler’s publication or in the intervening months, but instead waited 

for a trial court ruling in another case. In addition, Butler did not create new law on the 

issue of an SVP detainee’s due process right to a timely trial, but largely reiterated the 

standards as expressed in Vasquez, which was published years earlier. However, Butler 

added important authority in its conclusion that although defendant was charged with 

delays caused by defense counsel, where defense counsel ignores a defendant’srepeated 

demands for a timely trial and waives time without defendant’s authorization, those 

delays will be given diminished weight; and, where state actors were also responsible for 

that same period of delay, it was appropriate to charge the state with the greater blame for 

the delay.
20

Against that lack of diligence by counsel, however, the remaining factors weigh 

heavily in favor of granting the continuance. The anticipated benefit of a continuance 

was a dismissal of the commitment petition based on a due process violation of 

defendant’s right to a timely trial. There were few witnesses in the case, no jurors had

been impaneled, and the court had not previously noted any difficulties or burdens in 

continuing the SVP trial for any number of reasons.

Finally, a continuance would have permitted defendant the opportunity for a 

hearing to vindicate his due process right to a timely trial. This last factor weighs 

especially heavily in the balance of accomplishing substantial justice. Because the trial 

court misunderstood the applicable law and a consideration of all the circumstances

indicates the court’s decision denied defendant due process, we conclude the trial court 

abused its discretion in denying the motion for continuance.

To establish prejudice in the denial of a motion to continue, defendant must show

that there was a reasonable probability that in the absence of error, a result more 

favorable to him would have ensued. (People v. Villa (2009) 178 Cal.App.4th 443, 453,

citing People v. Watson (1956) 46 Cal.2d 818.) Defendant was detained for 11 years 

awaiting trial on the SVP petition. From 2009 to 2018, a great deal of the delay in the 

proceedings would likely be charged to defendant, as most of the continuances for the 

first nine years were at defense counsel’s request and defendant apparently agreed to this 

strategy at least for a time; in addition, defendant had a number of institutional problems 

and intervening legal issues. However, there is no evidence in our record that defendant 

waived time or appeared at those hearings. Nor is there evidence in our record that the 

People objected to any continuances or that the trial court made findings of good cause to 

support all of those continuances. From 2018 through the date of trial, defendant 

consistently asserted his right to a timely trial and objected to continuances. Many of 

those delays appear supported by good cause, but some would likely also be charged to 

the state, such as difficulties with defense experts. (See People v. Litmon, supra, 162
21

Cal.App.4th at p. 403.) The record before us demonstrates a reasonable probability that 

defendant’s motion to dismiss would have been granted.

Although we conclude there is a reasonable probability defendant would have 

obtained a better result had the motion to continue been granted and the motion to 

dismiss heard, we cannot make the ultimate determination on the merits of a motion to 

dismiss as the record before us is not fully developed. There are factual issues left 

unresolved because the trial court never considered a motion to dismiss. Our record on 

appeal is not complete as to: the reasons for many continuances; whether they were 

supported by good cause; which continuances, if any, defendant consented to and the 

length of delay attributable to continuances defendant consented to versus those he did 

not consent to; and whether the state or defendant should be charged with the delays, 

particularly as to those where there was no reason given for the continuance or the record 

suggests off the record conversations regarding the case. Relatedly, there is the factual 

issue as to whether the number of continuances necessitated by conflicts in defense 

counsel’s schedule and the problems with defense experts represented a systemic 

breakdown to be charged to the state. In addition, there are disputes in the statements of 

counsel and defendant relative to: whether delays were caused by defendant refusing to 

meet with counsel; whether defendant consented to any continuances, authorized waivers 

of time, or expressed his desire to go to trial earlier in the proceedings; and, the sincerity 

of defendant’s expressed desire to go to trial. Accordingly, we remand the matter to the 

trial court for the purpose of holding an evidentiary hearing on defendant’s motion to 

dismiss for a timely trial violation.
22

DISPOSITION

The order of commitment is conditionally reversed. The court shall allow the 

parties to file briefing and hold a hearing on a motion to dismiss the SVP commitment 

petition based on a violation of defendant’s due process right to a timely trial. If the trial 

court grants the motion, the court shall vacate the order of commitment and order the case 

dismissed. If the trial court denies the motion to dismiss, the judgment shall be 

reinstated.

/s/ 

Robie, Acting P. J.

We concur:

/s/ 

Duarte, J.

/s/ 

Krause, J.