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Name: In re Kerins (2023) 89 Cal.App.5th 1084
Case #: A165304
Court: CA Court of Appeal
District 1 DCA
Division: 4
Opinion Date: 03/30/2023

Failure to bring SVP defendant to trial more than 14 years after the filing of the SVP petition did not amount to unconstitutional pretrial delay. Kerins was convicted of an SVP-qualifying offense in 1988. He was convicted of additional offenses in 1998 and sentenced to state prison for 13 years. Prior to his release, psychologists determined Kerins met the criteria for an SVP, and the the People filed an SVP petition. More than 14 years after the SVP petition was filed, Kerins filed a habeas petition alleging that the People had failed to bring him to trial in a timely manner. The trial court denied the petition because the “‘overwhelming reason’ for the delay was that Kerins’s counsel sought ‘continuance after continuance.’” Kerins then filed a habeas petition in the Court of Appeal. Held: Petition denied. The Court of Appeal concluded that, under Barker v. Wingo (1972) 407 U.S. 514, although the delay was uncommonly long, Kerins was most responsible for the delay, he failed to affirmatively assert his speedy trial right, and the delay did not result in prejudice because there was no evidence that he was unable to adequately prepare his defense. Under Mathews v. Eldridge (1976) 424 U.S. 319, the Court of Appeal further concluded that, although Kerins’s private interest involving the significant deprivation of liberty was significant, the risk of an erroneous deprivation of liberty was not “anything more than slight.” Moreover, the government had a compelling protective interest in the confinement and treatment of SVPs.

Although SVP defendant’s attorneys delayed his case many years by repeatedly requesting continuances, he did not prove ineffective assistance of trial counsel. Kerins argued that his attorneys provided ineffective assistance by failing to “move his case forward or prepare it for trial.” The Court of Appeal disagreed. Kerins offered no evidence to rebut the presumption that his attorneys provided reasonable assistance pursuant to the first Strickland prong. Rather, the record established that his attorneys had legitimate reasons for requesting the continuances. Pretrial delay often works to an SVP defendant’s advantage because it allows time for additional treatment and to establish that he no longer “currently” suffers from a mental disorder that makes him dangerous.

Even though the SVP petition may have been filed after the SVP defendant’s scheduled release date, it was timely filed because the parole board had good cause to place him on a 45-day hold. Kerins’s release date was July 25, 2006. After psychologists determined Kerins met the criteria for an SVP, the parole board placed a 45-day hold on July 24, 2006. The People filed the SVP petition on or around July 27, 2006. Kerins argued that the SVP petition must be dismissed for lack of jurisdiction because the People filed the petition two days past Kerins’s scheduled release date and the parole board did not have good cause to place the 45-day hold. The court disagreed. Section 6601.3 provides that a parole board may hold an inmate, upon a showing of good cause, for 45 days past his release date in order to determine if the inmate qualifies as an SVP. Although the definition of “good cause” in 2006 was later invalided by the California Supreme Court, the parole board’s reliance was excusable as a good faith mistake of law. Additionally, Kerins’ motions to dismiss on this basis were untimely. [Editor’s Notes: (1) The Court of Appeal did not condone the course of the proceedings in this case and cautioned both trial courts and counsel to safeguard an SVP defendant’s right to a speedy trial. (2) A related issue is currently pending in the California Supreme Court: Does a 15-year delay in bringing a defendant to trial under the Sexually Violent Predator Act (Welf. & Inst. Code, § 6600 et. seq) constitute a due process violation? (Camacho v. Superior Court (Jan. 22, 2022, F082798) [nonpub. opn.], review granted 5/11/2022.)]

The full opinion is available on the court’s website here: