Filed 4/9/13 P. v. Gomberg CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

 v.

DAVID GOMBERG,

Defendant and Appellant.

 H033519

 (Santa Clara County

 Super. Ct. No. 210942)

A jury found David Gomberg to be a sexually violent predator (SVP). On appeal 

from the resulting order of commitment, he raised numerous objections including that the 

trial court lacked fundamental jurisdiction and violated his due process rights because 

after the petition was filed, the matter was held in abeyance for nearly three years while 

he served a prison term in Oregon. We initially rejected all of these contentions except 

for a challenge to the SVP statute on the ground that it violated various constitutional 

provisions. As to that issue we directed a remand for further proceedings; however the 

California Supreme Court granted review and retransferred the matter to us with 

directions to abate the matter pending further proceedings on remand from People v. 

McKee (2010) 47 Cal.4th 1172 (McKee). That stay has now been lifted and we now 

reiterate our previous opinion on all issues save the last, as to which we follow the 

holding on remand in McKee that the SVP statute does not offend the equal protection 
2

clause in any of the respects urged by defendant. Accordingly, we will affirm the order 

of commitment.

BACKGROUND

On January 6, 2005, the District Attorney of Santa Clara County (plaintiff) filed a 

petition to commit David Gomberg (defendant) under the SVP act, Welfare and 

Institutions Code sections 6600 et sequitur.1 The petition recited that defendant was an 

inmate of the Department of Corrections in Vacaville with a parole date of February 3, 

2005. The court ordered the warden in Vacaville to produce defendant for a hearing on 

January 19, 2005. Five days before that date, the court ordered the warden to produce 

him on February 1. On February 2, the matter was apparently continued to the next day. 

On that day the clerk‟s minutes reflect “discussions . . . in chambers” and note that 

defendant was “in Solano Co[unty].” 

Similar notations appear in the minutes until May 6, 2005, when defendant‟s 

attorney filed a motion to “strike the petition in its entirety on the grounds that the court 

lacks subject matter jurisdiction and personal jurisdiction.” The supporting memorandum 

stated that the January 19 hearing date had been “vacated by the court” and “reset” to 

February 2, on which date defendant was not transported to the hearing, “having instead 

been transported to the Superior Court in Solano County for extradition in Oregon” to 

serve a sentence previously imposed there. Defendant arrived in Oregon, according to 

the memorandum, on February 3, which was his California release date. He was 

scheduled to be released from his Oregon imprisonment between February 15 and 

November 2, 2008, and had a “felony detainer lodged against him (probably from 

California).” 

 

1

 Except as otherwise noted, all further statutory citations are to the Welfare and 

Institutions Code.
3

The memorandum argued that the court lacked subject matter jurisdiction because 

defendant‟s Oregon incarceration put the relief sought—defendant‟s confinement in 

Atascadero State Hospital—beyond the court‟s power. It conceded that “the petition was 

properly filed, while Mr. Gomberg was still in California,” that he “had the necessary 

minimum contacts with [California],” and was “provided with notice of the action, in that 

he has an attorney who has entered a general appearance and who has forwarded to him 

all the documents so far related to the case.” It observed, however, that “he has had no 

opportunity to appear at a hearing,” and that it “does not appear that the prosecution is 

going to bring him here.” Moreover, it asserted, even if he were present, “the court 

would still lack the ability to order [him] into a hospital setting in California, because of 

the looming consecutive sentence previously imposed by Oregon.” “He would have to be 

transported to Oregon to satisfy that sentence, as a criminal case takes precedence over a 

civil one.” 

Simultaneously with the motion to strike, defendant filed a “motion for probable 

cause hearing.” He asserted that under the sexually violent predator statutes, he had “just 

as much right to demand that his petition be reviewed, and that the probable cause 

hearing be set right away, as do the People.” He noted that this would require his 

transportation from Oregon, failing which “the petition should be dismissed.” 

In a reply memorandum, defendant‟s then-attorney stated that she was 

withdrawing the companion motion to strike the petition for want of jurisdiction, which 

she believed had been rendered “pointless” by a decision holding that “civil remedies like 

summary judgment don‟t apply to a special proceeding like a SVP case.” (See People v. 

Angulo (2005) 129 Cal.App.4th 1349, 1365-1366.) She noted, however, that the decision 

had relied on an earlier decision in which the refusal to permit the prisoner to raise a 

jurisdictional challenge by motion for summary judgment was justified in part on the 

premise that he could “raise the jurisdictional issue at his probable cause hearing.” 

(Bagration v. Superior Court (2003) 110 Cal.App.4th 1677, 1688-1689.) To deny 
4

defendant a probable cause hearing, counsel argued, was “to deny him the only forum at 

which he can argue with the court‟s jurisdiction.” 

On May 25, 2005, the court denied the motion to set a probable cause hearing. 

At some point—apparently around early November, 2007—defendant was 

returned to the custody of California authorities. On November 2, the court granted 

plaintiff‟s motion to require defendant to submit to an interview for an updated 

evaluation as a sexually violent predator. About six weeks later the court commenced a 

probable cause hearing. Defendant filed a motion to dismiss on the grounds that the

proceedings violated his rights to due process and a speedy trial. The court denied the 

motion. After taking evidence, the court found probable cause to order a trial to 

determine whether defendant should be confined under the SVP act. 

On September 3—about a month before the date set for trial—defendant moved to 

dismiss the petition on the ground that it was “void for want of due process” because the 

screening evaluation required by statute to be conducted “in accordance with a 

standardized assessment protocol” (§ 6601, subd. (c)) had been conducted pursuant to “an 

invalid „underground‟ regulation.” The argument stemmed from the fact that the 

Department‟s handbook and standardized assessment protocol applicable to such 

evaluations had been found by the Office of Administrative Law (OLA) to constitute a 

“regulation” not adopted in conformity with the Administrative Procedures Act, and thus 

invalid. The court denied the motion. 

After a trial the jury returned a verdict finding true the allegation that defendant 

was a sexually violent predator. The court ordered his commitment “until further order 

of this court.” Defendant immediately appealed.

DISCUSSION

I. Motion to Strike

Defendant contends that he was denied the effective assistance of counsel when, in 

May 2005, his then-attorney withdrew a pending motion to strike (dismiss) the petition 
5

on grounds of lack of jurisdiction. Respondent contends that (1) counsel‟s withdrawal of 

the motion did not constitute ineffective assistance because the motion “was not the 

appropriate vehicle to challenge the jurisdiction of the court”; and (2) the withdrawal was 

harmless because the court possessed jurisdiction and therefore could not have granted 

the motion in any event. 

We are not persuaded that a motion to strike or dismiss a petition is an 

inappropriate “vehicle” for challenging the trial court‟s fundamental power to adjudicate 

a petition under the SVP act. The case counsel cited below for this proposition held that 

a motion for summary judgment would not lie in SVP proceedings. (Bagration v. 

Superior Court, supra, 110 Cal. App. 4th 1677, 1689.) The basis for that holding appears 

to be that the statute governing summary judgment contemplates a motion that can be 

made by “any party,” but the state cannot properly seek summary judgment in an SVP 

proceeding because an order granting such a motion would offend provisions of the SVP 

requiring, for example, trial by jury. In that respect, and perhaps others, the summary 

judgment procedure as prescribed by statute was inconsistent with the SVP act and 

therefore unavailable in proceedings under it. This reasoning will not bear extension 

beyond its specific context to declare the entire Code of Civil Procedure inapplicable to 

SVP proceedings. Nor are we impressed by the fact that a defendant may raise 

jurisdictional objections at a probable cause hearing. (See id. at p. 1689.) If facts 

apparent on the face of the record or from judicially noticeable materials show a 

fundamental lack of power to adjudicate the matter, there is no apparent reason to require 

the defendant to await a probable cause hearing, particularly since he is presumably in 

state custody during that time, quite possibly—indeed probably—on the sole basis of the 

SVP petition. 

We need not finally decide the question, however, for as will appear, defendant 

appears unable to establish the requisite prejudice resulting from counsel‟s assertedly 

deficient performance. Assuming the motion was a proper vehicle for the jurisdictional 
6

challenge, and that counsel was mistaken in withdrawing it under a contrary belief, the 

mistake could only support relief on grounds of ineffective assistance if it was 

prejudicial. (See Strickland v. Washington (1984) 466 U.S. 668, 687; People v. Ledesma

(1987) 43 Cal.3d 171, 216-217.) The withdrawal of a defense motion could not 

ordinarily be found to have prejudiced the defendant unless the trial court would have 

granted, or would have been obliged to grant, the motion. As will appear, defendant has 

failed to demonstrate that the court was under any such obligation here. For that reason, 

the claim of ineffective assistance fails.

II. Jurisdiction

Defendant argues that his transfer to Oregon penal custody deprived the court of 

jurisdiction over this matter and required its dismissal. He cites Abelleira v. District 

Court of Appeal (1941) 17 Cal.2d 280, 288, for the proposition that a “[f]undamental lack 

of jurisdiction” appears when the forum court “is not able to render a judgment against 

the person.” Likewise he cites Corona Unified Hospital Dist. v. Superior Court (1964) 

61 Cal.2d 846, 852, for the proposition that a court lacks jurisdiction in the fundamental 

sense when it “lacks the power to protect the fundamental rights of a litigant,” because 

“all jurisdiction must include the ability to effectively adjudicate the rights at issue.” He 

asserts that because of his absence, the trial court could not honor his “right to be present 

and to assist counsel.” Moreover, the court “lacked the physical ability to commit 

appellant” and could not cause him to be “treated by the Department of Mental Health” 

as contemplated by the SVP act. This inability to adjudicate the matter or grant relief, he 

contends, ousted the court of fundamental jurisdiction and left it no option but to dismiss 

the petition.

We accept the premise that the court could not adjudicate the petition while 

defendant was in Oregon. For one thing, he was surely entitled to personally attend and 

assist in his trial. (See §§ 6602, 6603 [SVP defendant‟s trial rights]; People v. 

Concepcion (2008) 45 Cal.4th 77, 81 [criminal defendant‟s right to personal presence at 
7

trial]; In re Watson (1979) 91 Cal.App.3d 455, 460-461 [habeas issued based on denial of 

subject‟s due process right to be personally present at trial of petition for commitment as 

developmentally disabled person].) There is no indication that Oregon authorities could 

be prevailed upon to produce him for such a purpose, and even if it be assumed that they 

could, the SVP act contemplates an immediate commitment to the custody of the 

Department of Mental Health (§ 6604), and it is difficult to see how such an order could 

fail to conflict with Oregon‟s interest in the matter—or with the conditions on which 

Oregon authorities might have been willing to return him to California to participate in 

such a trial.

In the context of his due process argument, which we address in the next part, 

defendant suggests that California authorities were at fault for surrendering him to 

Oregon in the first place. But as noted below, we are reluctant to suppose that California 

officials were under a duty to defy the penal interests of a sister sovereign in order to 

preserve this state‟s jurisdiction over defendant. We are not called upon to consider, and 

make no attempt to decide, the lawfulness of the various “holds” to which defendant was 

apparently subjected or the principles that ought to govern their priority as between the 

two sovereigns. None of the facts surrounding those matters appear in the record, or are 

made the basis of any argument by defendant. For present purposes, then, we assume 

that defendant was lawfully and properly surrendered to Oregon authorities and that so 

long as he remained in their custody the court below could not adjudicate the matter on 

the merits.

But here we arrive at the critical point: the court below made no attempt to 

adjudicate the matter on the merits. Assuming its inability to do so can be properly 

characterized as a lack of jurisdiction, it did not seek to exercise that jurisdiction while 

the cause of the inability—defendant‟s absence from the state—existed. Defendant 

would apparently have us conclude that once the court found itself unable to adjudicate 

the petition forthwith, it was permanently and irremediably deprived of fundamental 
8

jurisdiction. But he offers no authority for this view, and we see no basis for it in 

procedural theory. The situation appears analogous to those in which adjudication is 

impeded, but not absolutely barred, by some external cause. The most familiar such 

situation is where another action is already pending on the same cause of action asserted 

in the present matter or another court has assumed jurisdiction over the subject matter of 

the dispute. (5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1138, p. 562; see Code 

Civ. Proc., § 430.10, subd. (c); Levine v. Smith (2006) 145 Cal.App.4th 1131, 1135.) 

Others include the plaintiff‟s lack of capacity to sue (5 Witkin, supra, Pleadings, § 1133, 

p. 559), a defect or misjoinder of parties (5 Witkin, §§ 1136, 1137, pp. 561-562), and 

various kinds of factual prematurity (5 Witkin, § 1153, p. 578). An analogy might also 

be drawn to the suspension of proceedings brought about by the automatic stay attendant 

on the filing of a bankruptcy petition (see 366-386 Geary St., L.P. v. Superior Court

(1990) 219 Cal.App.3d 1186, 1195, 1197) and to the contingent loss of jurisdiction when 

a state court action is removed to federal court (see 2 Witkin, Cal. Procedure (5th ed. 

2008) Jurisdiction, § 652, p. 653).

In none of these situations is the affected action dismissed unless the defect 

appears irremediable. Rather the usual remedy is to “abate” the affected action until the 

impediment either lifts or ripens into an absolute bar. (See 5 Witkin, supra, Pleadings 

§ 1149, p. 573; Lord v. Garland (1946) 27 Cal.2d 840, 851; Childs v. Eltinge (1973) 29 

Cal.App.3d 843, 848, 855; cf. Levine v. Smith, supra, 145 Cal.App.4th at p. 1135 [rule of 

exclusive concurrent jurisdiction ceases to operate when jurisdiction in earlier matter 

exhausted].) It would seem, by analogy, that defendant‟s absence from the state should 

have generated a similar suspension of the proceeding—an abatement—pending his 

return to California custody. Since this is exactly what occurred—though not by this 

description—no basis for dismissal readily appears.

Moreover we question the premise that the facts shown here gave rise to any 

defect in jurisdiction, in the fundamental sense. Ordinarily, jurisdiction over a matter, 
9

once attached, persists through final disposition. (2 Witkin, supra, Jurisdiction, § 415, 

p. 1065 [“once jurisdiction of the subject matter and of the person is obtained in a 

particular action, that jurisdiction continues throughout the action and in proceedings 

incident to it”]; see Code Civ. Proc., § 410.50, subd. (b) [“Jurisdiction of the court over 

the parties and the subject matter of an action continues throughout subsequent 

proceedings in the action.”]; Maloney v. Maloney (1944) 67 Cal.App.2d 278, 280 

[“Jurisdiction once acquired is not defeated by subsequent events which might have 

prevented jurisdiction had they occurred before personal service”]; Goldman v. Simpson

(2008) 160 Cal.App.4th 255, 263-264 [applying rule to statutory renewal of judgment 

challenged on grounds of lack of personal jurisdiction].) 

Defendant offers no cogent basis to suppose that his temporary absence from the 

state ousted the court of jurisdiction in the fundamental sense. The interpretation 

seemingly more in harmony with general procedural principles is that the court‟ powers 

were suspended and that, so long as it did not threaten to exercise them in an unlawful 

manner, and no unconstitutional delay resulted (see next part), no relief was warranted. 

Defendant‟s authorities do not suggest otherwise. He cites cases holding that a 

state lacks jurisdiction to exercise its guardianship and conservatorship powers over 

persons outside its territory. (Grinbaum v. Superior Court (1923) 192 Cal. 566, 568 

(Grinbaum); McCormick v. Blaine (1931) 345 Ill. 461, 464, 475 [178 N.E. 195, 196, 201] 

(McCormick); Estate of Oelerich (1961) 31 Ill.App.2d 457, 460 [176 N.E.2d 549, 550] 

(Oelerich); Mack v. Mack (Ct.App. 1993) 329 Md. 188, 198 [618 A.2d 744, 749] (Mack); 

Guardianship of Enos (App.Ct. 1996) 41 Mass.App.Ct. 360, 362-363 [670 N.E.2d 967, 

968-969] (Enos).) A review of these cases reveals that none of them are more than 

loosely analogous to the present matter. In most of them, jurisdiction never attached, 

either over the subject matter or the person of the defendant. They typically concern an 

attempt to secure the appointment of a guardian or conservator for a person who has not 

been served with process in the forum state and who is not present either at the 
10

commencement of the proceeding or at the time of any proposed order. (See Grinbaum, 

supra, 192 Cal. 566 [California forum; subject in Swiss sanitarium]; Oelerich, supra, 31 

Ill.App.2d 457 [176 N.E.2d 549] [Illinois forum; subject in Indiana]; McCormick, supra, 

345 Ill. 461 [178 N.E. 195] [Illinois forum; subject in California]; Mack, supra, 329 Md. 

188 [618 A.2d 744] [Florida forum; subject in Maryland]; cf. Enos, supra, 41 

Mass.App.Ct. 360, 362-363 [670 N.E.2d 967] [Massachusetts forum; ward under Florida 

guardianship removed without authorization to Massachusetts; jurisdiction declined on 

grounds of interstate comity, full faith and credit, and relative convenience of forums].) 

Here the proceeding was commenced, and jurisdiction was acquired, while 

defendant was in the forum state.2 Any apparent impairment of the court‟s power to 

adjudicate the matter only arose after that event. There was no attempt to make any order 

concerning his status, or adjudicate any issue going to the merits of the case, while that 

impairment existed. The cited cases are therefore inapposite.

Defendant does cite two cases that more nearly concern a loss of jurisdiction that 

had initially properly attached. This at any rate describes Guardianship of Melissa W.

(2002) 96 Cal.App.4th 1293, 1299-1300, where a minor‟s emancipation by marriage was 

held to render moot an appeal from an order denying a petition by the minor‟s 

grandparents to be appointed as guardians. (See Fam. Code, §§ 7002, subd. (a) 

 

2

 In his reply brief defendant asserts that the court “never properly assumed 

jurisdiction” because (1) defendant made no personal appearance before “the state 

relinquished [him] to Oregon authorities,” and (2) the state “never showed he was 

properly served notice of the petition.” It is far too late to assert this kind of objection. 

In his original motion to dismiss (“strike”) the petition, he conceded that “the petition 

was properly filed” while he “was still in . . . California,” that he “had the necessary 

minimum contacts with [California],” and that “he was provided with notice of the 

action, in that he has an attorney who has entered a general appearance and who has 

forwarded to him all the documents so far related to the case.” These concessions 

effected a waiver several times over of any technical objections to service. (See Code 

Civ. Proc., § 410.50, subd. (a); Fireman’s Fund Ins. Co. v. Sparks Construction, Inc.

(2004) 114 Cal.App.4th 1135, 1145.) 
11

[emancipation of minor by valid marriage]; Prob. Code, § 1600, subd. (b) [termination of 

guardianship upon emancipation]; id., § 1515 [prohibiting appointment of guardian for 

child who has validly married]; In re Katherine R. (1970) 6 Cal.App.3d 354.) Defendant 

also cites In re Marriage of Jensen (2003) 114 Cal.App.4th 587, 594-595, which held that 

a family law court lacked jurisdiction to enforce provisions of a marital settlement 

agreement requiring one parent to facilitate visitation between the other parent and an 

autistic adult child. Defendant describes the case as holding that the court “lost 

jurisdiction when the child became an adult.” So viewed it is substantially identical to 

Melissa W. However it may be more accurate to view it as a case in which the court 

never had jurisdiction to make a visitation order concerning an adult child in the first 

place. In any event, both cases are concerned with judicial powers that are conditioned 

by statute on the existence of a specified condition—that of being a minor in one case, or 

an unmarried minor in the other. In each case the termination or absence of that 

condition deprived the court permanently of the power to grant the requested relief. Here 

defendant‟s Oregon incarceration was temporary; he would be subject to return upon 

completion of his sentence. This, among other things, destroys any useful parallel 

between those cases and this one. 

In sum, while we assume for present purposes that the court lacked the power to 

adjudicate the petition during defendant‟s incarceration in Oregon, we find no resulting 

defect in the proceedings below, where the court was not asked, and made no attempt, to 

exercise the powers thus suspended. Instead its temporary inability was suitably 

accommodated by awaiting the completion of defendant‟s Oregon term. Defendant has 

offered no persuasive basis for a different conclusion. Accordingly, he has failed to 

establish any jurisdictional deficiency arising from the petition‟s pendency while he was 

incarcerated in Oregon. 
12

III. Delay

A. Barker Test

Defendant contends that the lapse of over three years between the filing of the 

petition and its being brought to trial was an excessive and unreasonable delay that 

violated his due process rights under the principles set forth in Barker v. Wingo (1972) 

407 U.S. 514, 530 (Barker), as held applicable to SVP proceedings by this court in 

People v. Litmon (2008) 162 Cal.App.4th 383, 403-406. 

Under Barker a speedy trial objection calls forth “a balancing test, in which the 

conduct of both the prosecution and the defendant are weighed.” (Barker, supra, 407 

U.S. at p. 530, fn. omitted.) The first factor to be considered is the length of the delay; 

“[u]ntil there is some delay which is presumptively prejudicial, there is no necessity for 

inquiry into the other factors . . . .” (Ibid.) No categorical measure can be applied; “the 

length of delay that will provoke such an inquiry is necessarily dependent upon the 

peculiar circumstances of the case.” (Id. at pp. 530-531.) Here it might be questioned 

whether the delay should be considered “presumptively prejudicial” since, as discussed in 

more detail below, it appeared to have little if any concrete effect on defendant. 

Assuming it was a substantial delay, however, it must be considered against the reason 

offered by the state to justify it. (Id. at p. 531, fn. omitted.) An improper reason—such 

as hampering the defense—should weigh against the state; a neutral one, like 

overcrowded courts, should weigh less heavily against the state; and a good one, like a 

missing witness, “should serve to justify appropriate delay.” (Ibid.)

Here the state‟s justification, which is foreshadowed by our discussion of 

defendant‟s jurisdictional challenge, seems compelling: the matter could not proceed so 

long as defendant remained in Oregon custody. Assuming Oregon authorities might have 

been persuaded to return defendant to California temporarily for a trial on the present 

petition, such a trial would seemingly have been futile or worse. Assuming defendant 

were found to be a sexually violent predator at the time of trial, the court could not—so 
13

long as he was to be returned to Oregon—make the order contemplated by the act, i.e., 

that he be “committed . . . to the custody of the State Department of Mental Health” 

(§ 6604) for an “indeterminate term” (ibid.) to “commence on the date upon which the 

court issues the initial order of commitment” (id., § 6604.1, subd. (a)). Assuming the 

court could properly make an order but hold it in abeyance pending defendant‟s return 

from Oregon, the finding on which the order rested could well become stale by that time. 

If made before November 8, 2006, the order would have expired two years after it was 

made, and quite possibly before defendant finished his Oregon term, presumably 

necessitating a renewal petition while he was still absent from this state. (See former 

§§ 6604, 6604.1, subd. (a).) Moreover, commitment as a sexually violent predator 

requires a finding of a “currently diagnosed mental disorder that makes the person a 

danger to the health and safety of others in that it is likely that he or she will engage in 

sexually violent criminal behavior.” (§ 6600, subd. (a)(3).) A significant lapse in time 

between the finding and the actual order of commitment is at best in tension with the 

intent of the act, if it does not offend it. Postponing the trial until nearer the time of 

actual anticipated commitment would conform much more nearly to that intent. 

Defendant suggests that these difficulties should weigh against any finding of 

justification because California authorities “relinquish[ed]” custody to Oregon. The 

underlying assumption is that they had the option of refusing to do so. As a matter of 

naked power this may be true. Presumably Oregon would not launch a military strike to 

wrest defendant from California custody. But beyond this naked fact—or what we may 

safely assume to be a fact—the present record permits no determination as to the 

potential consequences of a refusal to surrender defendant to Oregon authorities. We will 

not lightly impugn official actions that appear intended, at worst, to serve the goal of 

interstate comity. Indeed, although the record is silent on this point, it is our general 

understanding that law enforcement and penal authorities of the several states routinely 

cooperate with one another under arrangements having varying degrees of formality. 
14

Presumably all of these arrangements are ultimately found on undertakings, or at least 

expectations, of mutuality and reciprocity. Even if the authorities of one state might 

suffer no consequences in a single case from spurning the legitimate requests of their 

colleagues in another state, their doing so could easily jeopardize their own state‟s ability 

to perform its duties toward its citizens in other situations. We therefore decline to 

suppose, without a considerably more painstaking showing, that state officials acted 

unjustifiably in honoring another state‟s interests in circumstances like these, particularly 

where—as will appear—their doing so inflicted no appreciable harm on defendant

We conclude that, so far as this record indicates, defendant‟s absence from the 

state was a compelling justification for the delay in bringing his case to trial. Indeed, 

beyond the point just mentioned, defendant makes little effort to cast doubt on that 

conclusion. He scarcely acknowledges the state’s reasons for failing to bring the case to 

trial, arguing instead what should be a point quite distinct from the speedy trial issue: 

that the trial court lacked a sound justification for refusing his demand for a probable 

cause hearing. He assumes that in doing so, the court adopted the petitioner‟s argument 

that only the state, not the defendant, is entitled to request such a hearing. Defendant 

then assails that argument as an insupportable reading of the SVP act. This argument 

does not appear to bear logically on the constitutional question of unreasonable delay, but 

raises instead a distinct statutory question: whether defendant had a right under the SVP 

act to demand a hearing, and whether the court erred by denying his demand on the 

ground, apparently, that he had no standing to make it. (See §§ 6601.5, 6602.) Perhaps 

because of defendant‟s failure to raise this point as a distinct claim of error, respondent 

has failed entirely to address it. Nor do we find it necessary to decide it, for even if the 

court erred by denying his request for a probable cause hearing, it would appear from the 

considerations we have already identified that the error was harmless.3 The act explicitly 

 

3

 We will comment on the issue to this extent: Contrary to the theme of 

defendant‟s argument, the Legislature may well have intended that only the state could 
15

contemplates that a probable cause hearing can be “continued . . . upon a showing of 

good cause by the party requesting the continuance.” (§ 6602, subd. (b).) The 

justifications we have already cited for the delay furnished good cause for continuing the 

probable cause hearing. Granting a request by defendant for a probable cause hearing 

would have been an empty gesture if, as seems nearly certain, the court would have 

simultaneously continued the hearing to a time when defendant was back in the custody 

of California authorities. 

This brings us to the fourth factor under Barker, which is prejudice to the 

defendant.4 The greater the prejudice, the more weighty the required justification. The 

Barker court recognized three common forms of arguable prejudice: “oppressive pretrial 

incarceration,” unnecessary prolongation of “anxiety and concern of the accused,” and 

“the possibility that the defense will be impaired.” (Barker, supra, 407 U.S. at p. 532, fn. 

omitted.) Obviously, the “most serious” of these is “the last, because the inability of a 

defendant adequately to prepare his case skews the fairness of the entire system. If 

 

request that a probable cause hearing be scheduled. In the overall scheme of the act, the 

probable cause hearing may have been understood in part as a mechanism for 

ascertaining whether the defendant‟s continued confinement is justified after the 

expiration of whatever other power the state might have to detain him. In that view, once 

the defendant‟s release becomes imminent, the state will have to choose between 

requesting a probable cause hearing and permitting the release. To permit the defendant 

to request such a hearing whenever he chooses might jeopardize the orderly progress of 

the matter without affecting any substantial right or interest of the defendant‟s. Such 

considerations, however, would only become relevant, if at all, within the framework of a 

more rigorous inquiry into legislative intent—one starting, and perhaps ending, with the 

question whether the statute possesses any plain meaning on the question of who is 

entitled to request such a hearing.

4

 A third factor is whether the defendant asserted the right in the trial court; failure 

to do so will weigh against the objection, though it is not necessarily fatal. (Barker, 

supra, 407 U.S. at pp. 531-532, 528-529.) Here defendant raised the point by moving to 

dismiss for violation of his due process and speedy trial rights. Respondent does not 

challenge the sufficiency of this motion to avert any adverse inference on this point.
16

witnesses die or disappear during a delay, the prejudice is obvious. There is also 

prejudice if defense witnesses are unable to recall accurately events of the distant past. 

Loss of memory, however, is not always reflected in the record because what has been 

forgotten can rarely be shown.” (Ibid.)

Defendant makes no real attempt to establish either that the delay caused him any 

markedly increased “anxiety and concern” or that it impaired his defense. As a general 

matter one would expect both of these forms of prejudice to be somewhat less in SVP 

cases than in criminal cases. The defendant is not exposed to the risk of punishment as 

such, but to confinement in an environment where the state undertakes to provide 

treatment. And the “dimming memories and loss of exculpatory evidence” which might 

impair a defense seem a generally more remote possibility in SVP cases than in criminal 

prosecutions. The central inquiry in the latter is historical, i.e., what actually happened 

on some past occasion. Evidence bearing on such a question is obviously prone to fade 

or disappear as the event recedes into the ever-more-distant past. But the chief inquiry in 

a typical SVP case is the defendant‟s current mental condition. (See § 6600, 

subd. (a)(3).) To be sure, there may be cause to inquire into past events, but much of that 

evidence will be matters of public record, such as the defendant‟s criminal record. For 

these reasons, the passage of time is likely to inflict less of the kind of evidentiary harm 

that can occur in a criminal case. Defendant offers no reason to suppose that this case 

marks a departure from the expected norm in this regard.

This leaves us with the question whether defendant suffered such “ „ “oppressive 

pretrial incarceration” ‟ ” as to render the delay unconstitutional. (Litmon, supra, 162 

Cal.App.4th at p. 406, quoting Barker, supra, 407 U.S. at p. 532.) We find that he did 

not. For most of the time in question he was incarcerated for reasons wholly unrelated to 

the present petition. In Litmon, supra, 162 Cal.App.4th 383, our finding of a violation of 

due process rested heavily on the fact that the defendant‟s prolonged confinement there 

constituted a denial of “ „the most elemental of liberty interest,‟ ” solely on the basis of an 
17

unadjudicated SVP petition. (Id. at p. 399, quoting Hamdi v. Rumsfeld (2004) 542 U.S. 

507, 529; see id. at p. 404 [even if initial delay was justifiable, further postponement 

could not be reconciled with due process principles “given appellant‟s complete loss of 

liberty awaiting trial”].) Here, in contrast, defendant was in the custody of another 

sovereign, and under its control, through most of the challenged period. He suffered no 

confinement as a result of the SVP petition until he was returned to the custody of 

California authorities. We do not understand him to contend that the lapse of time 

between that event and trial constituted an unreasonable delay. His pretrial incarceration 

was not a prejudicial incident of the delay, but rather a cause of it. That incarceration 

cannot be attributed to the present proceeding so as to support a claim of unconstitutional 

delay. This fact distinguishes the cases cited by defendant concerning the inherently 

prejudicial quality of prolonged detention; the defendants in those cases were prevented 

by the challenged proceedings from being free citizens, walking the streets. Here 

defendant would not have been walking the streets even if the present petition had been 

dismissed.

Defendant claims prejudice in two other respects: One is that because of the 

delay, he became subject to an indefinite commitment rather than a two-year renewable 

commitment. We have previously rejected a similar claim of prejudice. (Litmon, supra, 

162 Cal.App.4th at p. 405.) The other is that the delay constituted a denial of treatment 

and interruption of rehabilitative services to which he would have been entitled, under the 

act, upon entry of an order of commitment. It is true that the sooner he was committed, 

the sooner he would have been entitled to receive “programming” that would “afford . . . 

treatment for his . . . diagnosed mental disorder.” (§ 6606, subd. (a).) There is no 

showing, however, that he was not offered comparable treatment in Oregon or that he 

would have availed himself of treatment if it were offered. Moreover the case he cites on 

this point concerned a defendant who had been confined for 17 months on the ground that 

he was not competent to stand trial. (Craft v. Superior Court (2006) 140 Cal.App.4th 
18

1533.) The failure to provide treatment in that context inflicted a unique form of 

prejudice in that it would prevent the defendant from ever going to trial, and thus ever 

regaining his freedom, unless his disabling mental condition somehow spontaneously 

remitted. The court reasoned that in the absence of treatment, the justification for the 

pretrial confinement failed. (See id. at p. 1545 [“where there is no commitment and no 

treatment, the time an incompetent defendant spends in jail is unnecessary and implicates 

not only due process, but also counts towards a finding of prolonged incarceration under 

the state constitutional speedy trial guarantee”].) This reasoning is unimpeachable in its 

context, but has little if any force here.

We detect no violation of defendant‟s due process rights as articulated in Barker.

B. Mathews Test

Defendant also asserts that his due process rights were violated under the 

principles of Mathews v. Eldridge (1976) 424 U.S. 319, on which this court relied in 

Litmon, supra, 162 Cal.App.4th at page 396. Those cases, however, address the due 

process concerns peculiarly attendant upon a preliminary invasion of a citizen‟s 

substantive constitutional interest in liberty or property. In Mathews, the question was 

“what process is due prior to [an] initial termination of [social security] benefits, pending 

review.” (Mathews v. Eldridge, supra, 424 U.S. at p. 333.) In Litmon we were 

concerned with the parallel question in the present context—what process is due an 

alleged SVP when he is confined pending trial. As pertinent here, the teaching of those 

cases is that delay in adjudicating the subject‟s rights may require a heightened level of 

procedural protection in connection with a preliminary infringement of the claimed 

rights. 

As discussed above, for most of the period in question the pending SVP petition 

was not the source of any infringement of defendant‟s liberty interests. Rather his liberty 

was being lawfully curtailed by the state of Oregon. This distinguishes, and seems to 

render largely irrelevant, the rule of Mathews as applied to the SVP setting in Litmon. 
19

No denial of due process appears.

IV. Underground Regulation

Defendant contends that the court below lacked jurisdiction to make a 

commitment order because the guidelines under which he was evaluated pursuant to 

statute were an invalid “underground regulation.” We hold that the invalidity of the 

regulation did not deprive the court of jurisdiction.

The SVP act provides that before any petition for commitment can be filed, the 

Department of Mental Health (DMH) must secure an evaluation of the subject by “two 

practicing psychiatrists or psychologists” (§ 6601, subd. (d)), such evaluation to be made 

“in accordance with a standardized assessment protocol, developed and updated by the 

State Department of Mental Health, to determine whether the person is a sexually violent 

predator” (id., subd. (c)). In late 2004, apparently, defendant was evaluated pursuant to 

this statute. The evaluations were presumably conducted pursuant to the then-prevailing 

departmental protocol as embodied in a published handbook. In 2008, the Office of 

Administrative Law (OAL) ruled that portions of the handbook and protocol were 

“regulations” as defined in Government Code Section 11342.600 and, as such, should 

have been adopted in accordance with the chapter of the Government Code commonly 

known as the Administrative Procedures Act (Gov. Code, §§ 1149 et seq, (APA)). (2008 

OAL Determination No. 19 (Aug. 15, 2008) <http://www.oal.ca.gov/res/docs/pdf/ 

determinations/2008/2008_OAL_Determination_19.pdf> (as of Apr. 3, 2013) (OAL 

Determination).) Government Code section 11340.5, subdivision (a), declares that “[n]o 

state agency shall issue, utilize, enforce, or attempt to enforce any guideline, criterion, 

bulletin, manual, instruction, order, standard of general application, or other rule, which 

is a regulation as defined in Section 11342.600, unless the guideline, criterion, bulletin, 

manual, instruction, order, standard of general application, or other rule has been adopted 

as a regulation and filed with the Secretary of State pursuant to this chapter.” As the 

OAL wrote, “When an agency issues, utilizes, enforces, or attempts to enforce a rule in 
20

violation of section 11340.5 it creates an underground regulation as defined in title 1, 

California Code of Regulations, section 250.” (OAL Determination, p. 5.)

Similar objections have been rejected in a number of cases, mostly unpublished, 

on procedural grounds—most notably, that the defendant forfeited the objection by 

failing to assert it in the trial court. (See People v. Medina (2009) 171 Cal.App.4th 805, 

818 & People v. Taylor (2009) 174 Cal.App.4th 920, 937-938.) Those holdings are 

arguably distinguishable in that they rested on multiple grounds, including some arising 

from the fact that in each of them, the allegedly defective evaluation was conducted not 

in anticipation of the petition giving rise to the judgment under review but rather in 

connection with an earlier petition. Moreover if the question really went to the trial 

court‟s subject matter jurisdiction it could be raised at any time. 

Nonetheless we reject defendant‟s argument on the merits because we find it 

incompatible with principles of administrative law. Assuming the protocol was indeed a 

procedurally invalid regulation, as the OAL concluded, that fact alone does not invalidate 

an evaluation conducted in accordance with it, let alone a trial court order that is derived 

from that evaluation only in the sense that the evaluation furnished a procedural 

precondition for the petition the court ultimately adjudicated. Had defendant challenged 

the evaluation prior to trial, his challenge would have been well taken. But in the absence 

of a demonstration of prejudice, the claimed defect cannot invalidate the judgment after 

trial.

We accept for present purposes that the assessment protocol under which 

defendant was evaluated did constitute an underground regulation and thus offended the 

APA. (See In re Ronje (2009) 179 Cal.App.4th 509, 516.) This did not deprive the court 

of jurisdiction, however, and does not render the judgment void. (Id. at p. 518; see 

Davenport v. Superior Court (2012) 202 Cal.App.4th 665, 670 [“The use of an 

administratively invalid assessment protocol . . . does not affect the superior court‟s 

fundamental jurisdiction over an SVP proceeding.”].) An underground regulation “is 
21

invalid” (Naturist Action Committee v. California State Dept. of Parks & Recreation

(2009) 175 Cal.App.4th 1244, 1250), but it does not follow that any agency action 

predicated on such a regulation—let alone court action predicated on the agency‟s 

application of it—is void ab initio. In Morning Star Co. v. State Bd. of Equalization

(2006) 38 Cal.4th 324 (Morning Star), the court held that an agency‟s construction of a 

statute in a manner that imposed a hazardous materials fee on virtually all enterprises of a 

certain size was an underground regulation and, as such, invalid. But the court did not 

hold that all actions taken under the regulation were void. Instead the court remanded the 

matter for further administrative proceedings “without reliance upon the Department‟s 

invalid regulation.” (Id. at p. 341.) The superior court was directed to stay the associated 

judicial proceedings and make such other orders as might be necessary to preserve the 

status quo “until such time as the Department has had a reasonable opportunity to 

promulgate valid regulations under the APA.” (Ibid.) Once it had done so, the court 

ruled, “these proceedings” and the agency‟s collections generally would be “governed by 

any properly adopted regulations.” (Id. at p. 342.) The court found precedent for such an 

approach in an earlier decision where it held a wage order defective but exercised its 

“ „inherent power to make an order appropriate to preserve the status quo pending 

correction of deficiencies.‟ ” (Ibid., quoting California Hotel & Motel Assn. v. Industrial 

Welfare Com. (1979) 25 Cal.3d 200, 216.)

In both of these cases the court cited the importance of the public interest served 

by the challenged regulation, as reflected in the underlying statute and the potential effect 

of disrupting its execution. (Morning Star, supra, 38 Cal.4th at p. 342; California Hotel 

& Motel Assn. v. Industrial Welfare Com., supra, 25 Cal.3d at p. 216.) It can hardly be 

suggested that this consideration is lacking in the matter at hand. Indeed, the case for 

invalidating the present judgment on this basis is even weaker than the parallel arguments 

were in those cases. Here the regulation did not furnish the governing rule of decision for 

the adjudication of defendant‟s interests but only the methodology for reaching a 
22

preliminary determination of his suitability for treatment as a sexually violent predator. 

That preliminary determination, while necessary to the judgment as a matter of 

procedural history, had no substantive bearing on the final adjudication of the matter. 

Instead the question was tried de novo before a jury. 

In In re Ronje, supra, 179 Cal.App.4th 509, 518, the court rejected the defendant‟s 

claim that reliance on the invalid protocol gave rise to a defect in fundamental 

jurisdiction, requiring dismissal. It cited precedent holding that even a failure to secure 

the required evaluation before filing the petition did not oust the court of jurisdiction 

because the requirement was a “collateral procedural condition” such that noncompliance 

would be “ „ignored‟ ” if cured by the time the objection was raised. (Id. at p. 519, 

quoting People v. Superior Court (Preciado) (2001) 87 Cal.App.4th 1122, 1127-1128; 

see People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 894, 905.) Thus if the 

objection is raised before trial—as it was in that case—the trial court may “cure the 

underlying error” (id. at p. 518) by ordering new evaluations under a properly adopted 

protocol and conducting a new probable cause hearing (id. at pp. 519, 521). Here, where 

the objection was raised too late for any pretrial cure, we conclude that the defect was 

“cured” when the procedurally defective evaluation was superseded by the jury‟s verdict. 

In the absence of some particularized showing of prejudice—which defendant does not 

attempt to make—the defect furnishes no basis for reversal. While this analysis 

resembles a finding of forfeiture in some respects, it is not. It rests on the premise that 

given the nature of the defect, and its supersession by the later verdict, it does not 

constitute cognizable error.

V. Indeterminate Commitment

Defendant contends that his commitment for an indeterminate period under the 

2006 amendments to the SVP act effected by Proposition 83 violates due process and 

equal protection as well as the ex post facto and double jeopardy clauses of the state and 

federal constitutions. With one exception, all of these objections were addressed and 
23

rejected by the California Supreme Court in McKee, supra, 47 Cal.4th 1172. The court 

found itself unable to rule, however, on an equal protection challenge premised on the 

contention that no adequate justification existed for treating SVP‟s differently from 

others who were involuntarily confined on account of a dangerous mental condition—in 

particular, those confined after prevailing on a plea of not guilty by reason of insanity 

(NGI‟s), and those confined under the Mentally Disordered Offender Act (MDO‟s). 

(Pen. Code, § 2960 et al.) The Supreme Court concluded that SVP‟s and MDO‟s are 

similarly situated for purposes of equal protection analysis, such that committing the 

former to an indeterminate confinement while requiring the latter‟s confinement to be 

periodically justified beyond a reasonable doubt “raises a substantial equal protection 

question that calls for some justification by the People.” (Id. at p. 1203.) The record 

there was insufficient to determine whether such a justification existed. But because 

neither the state nor the courts had “properly understood [the] burden” the state was 

required to meet (id. at pp. 1207-1208), the court found it appropriate to provide the state 

an opportunity “to make the appropriate showing” (id. at p. 1208). It therefore reversed 

the order of commitment in part and remanded with directions for further trial court 

proceedings addressed to “whether the People . . . can demonstrate the constitutional 

justification for imposing on SVP‟s a greater burden than is imposed on MDO‟s and 

NGI‟s in order to obtain release from commitment.” (Id. at pp. 1208-1209, fn omitted.) 

Our original decision here emulated the Supreme Court‟s order and remanded the 

matter “for the limited purpose, as stated in McKee, supra, 47 Cal.4th 1172, of allowing 

the People to demonstrate „the constitutional jurstification for imposing on SVP‟s a 

greater burden than is imposed on MDO‟s and NGI‟s in order to obtain release from 

commitment.‟ (Id. 1208.)” (People v. Gomberg (Jun. 30, 2010, H033519) [nonpub. 

opn.] review granted Oct. 20, 2010, S185107.)The Supreme Court, however, granted 

review and retransferred the matter to us with directions to vacate our decision “and, in 

order to avoid an unnecessary multiplicity of proceedings, to suspend further proceedings 
24

pending finality of the proceedings on remand in McKee, supra, 47 Cal.4th 1172 (see id. 

at pp. 1208-1210), including any proceedings in San Diego County Superior Court in 

which McKee may be consolidated with any related matters.” (Supreme Ct. Mins., Oct. 

20, 2010, S185107, see <http://www.courts.ca.gov/documents/minutes/

SOCT2010.PDF> (as of Mar. 20, 2013).) The court further explained that by “ „[f]inality 

of the proceedings,‟ ” it intended to “include the finality of any subsequent appeal and 

any proceedings in this court.” (Ibid.)

The trial court in McKee thereafter conducted an evidentiary hearing, at the 

conclusion of which it ruled that that the state had demonstrated a constitutionally 

sufficient justification for treating SVP‟s differently from MDO‟s and NGI‟s. The 

resulting order was affirmed by the Fourth District, and the Supreme Court denied 

review. (People v. McKee (2012) 207 Cal.App.4th 1325, review den. Oct. 10, 2012 , 

No. S204503.)

Following these events we invited the parties here to submit supplemental briefs 

on the constitutional issues in light of the subsequent proceedings in McKee. Defendant 

argues that we should not follow the Fourth District‟s analysis in that matter because the 

court failed to properly apply the law governing equal protection challenges subject, as 

this one is, to a standard of strict scrutiny. Respondent contends that we are bound by the 

Fourth District‟s holding “unless and until a higher court directs otherwise.” While the 

case presents some novel issues of appellate procedure, and particularly stare decisis, we 

have concluded that we are not at liberty to depart from the Fourth District‟s holding.

Ordinarily the opinion of one Court of Appeal is not binding on another Court of 

Appeal. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 498, p. 558.) “However, 

there is a tendency for a Court of Appeal to follow decisions from the same or other 

districts or divisions.” (9 Witkin, supra, Appeal, § 498, p. 560; see § 499, p. 560.) Here 

the Supreme Court itself strongly implied that the determination on remand in McKee

should, once final, be given considerable, if not conclusive, weight. The court directed us 
25

to abate this matter, “in order to avoid an unnecessary multiplicity of proceedings . . . 

pending finality of the proceedings on remand” in McKee. And the court made clear that 

it intended such suspension of proceedings to continue until the trial court‟s decision had 

been reviewed by the Fourth District, and that court‟s opinion in turn had become final 

after “any proceedings in this [i.e., the Supreme] court.” This directive seemed to 

contemplate that the lower courts in the McKee matter would render a decision which, if 

not taken up by the Supreme Court for review, would itself decide on a statewide basis 

the issues addressed by them. We are aware of no precedent for such a procedure; but 

then, we are aware of no precedent for the high court‟s order staying proceedings in this 

matter (and several others like it) pending the outcome of an independent proceeding in 

another district. If we have misconstrued the Supreme Court‟s intent, the remedy would 

seem to lie in that court‟s again granting review in this matter and providing further 

direction on how we are to proceed.

This view seems logically consistent with the approach taken by both parties in 

their supplemental briefs here. Both seem to assume that the evidence presented to the 

trial court in McKee is determinative of the equal protection issue; they differ only over 

the evaluation of that evidence. But if we declined to adhere to the Fourth District‟s 

analysis, the evidence in that case would furnish no basis, under ordinary procedural 

principles, for a disposition here. This court does not review proceedings of the San 

Diego Superior Court and has no power to reverse or modify its judgments and findings, 

or even to order the transmission of its records for our examination. If we elected not to 

follow the Fourth District‟s opinion, the correct disposition would seem to be a remand 

for further proceedings in the trial court here, parallel to those conducted by the trial court 

in McKee. Neither party has proposed such a disposition. Defendant essentially asks us 

to review the Fourth District‟s opinion and reached the opposite result based solely upon 

the facts as stated there. But again, such an approach is without precedent. We have no 

power to review opinions of a coequal Court of Appeal, and no known procedural 
26

principle permits us to base a judgment of this court on the facts, as distinguished from 

the holding, in an opinion by another co-equal court.

Finally, we observe that under the peculiar circumstances of this case, the 

Supreme Court‟s denial of review in McKee must be construed, in the absence of any 

indication to the contrary, as an endorsement of that decision. The court itself has said 

that when it denies a petition for review, that ruling is not “without significance.” 

(DiGenova v. State Board of Education (1962) 57 Cal.2d 167, 178.) Here the 

significance is magnified by the court‟s directive to this court, and other courts 

entertaining similar challenges, to suspend proceedings until after “any proceedings in 

this court” in McKee. When the court itself has acknowledged the statewide significance 

of a case by explicitly making its disposition a predicate for further proceedings in other 

matters around the state, we can hardly suppose that the court would deny review in that 

case if it doubted the correctness of its determination of the issues it had in common with 

those other cases.

We conclude that the California Supreme Court has in effect directed us to abide 

by the Fourth District‟s decision in McKee. In accordance with that implied directive, we 

are constrained to reject defendant‟s constitutional challenges to the SVP act.

DISPOSITION

The order appealed from is affirmed.
27

______________________________________

RUSHING, P.J.

WE CONCUR:

____________________________________

PREMO, J.

____________________________________

ELIA, J.