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

Opinion

MOORE, J.

Prior to appellant Sidney Nathaniel Landau’s release on parole after his latest convictions for sex offenses committed on a child under 14 years of age, the Orange County District Attorney filed a petition to have him committed as a sexually violent predator (SVP) under the Sexually Violent Predators Act (SVPA), Welfare and Institutions Code section 6600 et seq. More than seven years after the filing of the petition, the third jury to hear the matter found appellant met the criteria for commitment as an SVP. Appellant raises a multitude of issues on appeal, including inter alia, that he was denied due process when he was not brought to trial in a timely manner, he was denied due process when his initial SVP evaluators used unlawful underground regulations, he was denied effective assistance of counsel, the court should have suppressed evidence obtained in violation of his Fourth Amendment right to be free from unreasonable searches and seizures, the court prejudicially erred when it ordered appellant to submit to mental examinations by experts retained by the district attorney, and the present SVPA violates equal protection, due process, ex post facto, and double jeopardy.

While the appeal was pending, the California Supreme Court decided People v. McKee (2010) 47 Cal.4th 1172 [104 Cal.Rptr.3d 427, 223 P.3d 566] (McKee I). The court found SVP’s are similarly situated with individuals found not guilty by reason of insanity (NGI’s) and mentally disordered offenders (MDO’s) for equal protection purposes. The court then remanded the matter to the trial court to hold a hearing to determine whether the People could justify “the differences between the SVP and NGI commitment statutes.” (Id. at p. 1207.) We suspended further proceedings in this appeal pending the remand in McKee I and the finality of an appellate court decision reviewing the hearing to be held on remand.

The San Diego Superior Court found the People carried their burden and found no equal protection violation. Our brethren in Division One affirmed the finding (People v. McKee (2012) 207 Cal.App.4th 1325, 1350 [144 Cal.Rptr.3d 308] (McKee II), and the Supreme Court denied review. After McKee II became final, we asked for and obtained supplemental briefs from the parties on the equal protection issue. We now affirm.

I

PROCEDURAL AND FACTUAL BACKGROUND

A. Procedural Background

Prior to appellant’s parole release date, California’s Department of Corrections requested the State Department of Mental Health (DMH) to evaluate appellant for purposes of determining whether he qualified as an SVP. Philip Trompetter, Ph.D, and Jon French, Ph.D, each concluded appellant was an SVP and DMH referred the matter to the Orange County District Attorney to consider filing a petition to commit appellant pursuant to the SVPA.

The district attorney filed the petition on October 19, 2000. A declaration attached to the petition averred that appellant (1) was convicted on May 5, 1982, of two counts of orally copulating a child under 14 years of age (Pen. Code, § 288a, subd. (c)), David D., and sentenced to six years in prison and (2) was convicted on June 10, 1988, of 18 counts of committing a lewd act on a child under 14 years of age (Pen. Code, § 288, subd. (a)), including orally copulating Gregory S., and was sentenced to 17 years in state prison. The declaration further stated two independent mental health professionals evaluated appellant and determined he has a diagnosed mental disorder and is likely to engage in acts of sexual violence without appropriate care and custody.

Appellant appeared in court with counsel on November 9, 2000. Eight days later he waived his right to a probable cause hearing. The court set the trial for March 26, 2001. From March 26, 2001, until May 2006 a trial date was set and vacated a number of times, but mostly the matter was continued time and again without setting a trial date. At least 16 of the continuances were at the request of appellant’s counsel or stipulated to by counsel. During this same time period, appellant had a number of attorneys, appointed and retained. One of appellant’s eventual trial attorneys, Leonard Levine, substituted in as counsel of record on June 27, 2003. His other trial attorney, Michael Aye, appeared later.

The matter was eventually scheduled for trial in November 2005. On November 4, 2005, Deputy District Attorney Andrew Do informed the court an expert on the case had changed his opinion, a “recent development” in the case, and that it was therefore necessary to continue the trial. On December 12, 2005, Do asked the court to vacate the trial date and to set the matter for a January 13, 2006 pretrial. Defense counsel waived time for trial.

The first trial on appellant’s case did not begin until June 6, 2006, when the court ruled on a number of preliminary evidentiary issues. In the interim, appellant made motions for immediate assignment for trial or dismissal of the petition for lack of a timely trial. The motions were denied. Another deputy district attorney, Andrea Burke, tried the matter for the People. On June 21, 2006, the court declared a mistrial when the jury was unable to reach a verdict, having split 11 to one for finding the petition not true. A second trial was scheduled for August 14, 2006.

On July 3, 2006, Burke filed a motion to require appellant to participate in interviews for updated SVP evaluations. (§ 6603, subd. (c)(1).) The deputy district attorney also requested an order requiring appellant to submit to an interview by the district attorney’s retained expert, Dr. Arnold. The court granted the requests over appellant’s opposition.

On August 14, 2006, the date set for trial, the district attorney’s office requested a continuance to further prepare for trial, and filed an application for an order requiring appellant to show cause why the district attorney should not be permitted to access, copy, and review materials appellant mailed to himself and addressed to a location in Orange, California. The district attorney had come into possession of 18 sealed boxes of material appellant mailed to himself from the state hospital, and wanted to search the boxes before going to trial. The boxes were mailed to Donald Galbraith’s business. The district attorney alleged the boxes were obtained with Galbraith’s consent. Appellant opposed the district attorney’s requests. His attorney asserted the boxes were appellant’s property, that an order to show cause was not the proper procedure for searching the boxes, and that the district attorney should proceed by way of a search warrant or a subpoena duces tecum. On September 1, 2006, the court held the boxes were properly seized and ordered the district attorney to open the boxes, inspect, copy, and use any materials found in the boxes.

The case was sent out for retrial on December 4, 2007, but appellant filed a Code of Civil Procedure section 170.6 challenge to the assigned judge, and the case continued to trail. On December 11, 2007, appellant filed another motion to dismiss for lack of a timely trial. That motion was denied the next day. The second trial finally began on December 18, 2007, when Judge King started pretrial motions. Deputy District Attorney Amy Pope tried the case on behalf of the People. Jury selection began on January 2, 2008, and another mistrial was declared on February 6, 2008, when the second jury was unable to reach a verdict.

Yet another deputy district attorney, Dan Wagner, was assigned to appellant’s matter after the second mistrial. On March 17, 2008, both sides answered ready for the third trial. Wagner also moved for an order directing appellant to submit to mental evaluations by his retained experts, Drs. Veronica Thomas and Park Dietz. The court found good cause to reopen discovery and for one mental health evaluation. In May 2008, appellant again made a motion to dismiss and the court denied it. The case was not assigned to a trial court until June 23, 2008, when it was transferred to Judge Donahue’s courtroom. Once the case was assigned out for trial, appellant again unsuccessfully moved to dismiss the petition. Jury selection began on June 30, 2008. Appellant’s motion to exclude evidence obtained as a result of the search of defendant’s sealed boxes was denied.

B. Facts from the Third Trial

The sordid details of appellant’s underlying convictions, uncharged molestations, and conduct whereby he groomed young boys to have sex with him, as well as his actions to ingratiate himself to the boys’ parents to allow him greater access to his victims, are not important to the issues presented in this appeal. As a result, these facts are not set forth in great detail. The short version is that appellant repeatedly molested a number of boys, including Jerry T., Scott C., Sid S., David D., and Gregory S. In 1982, he pled guilty to two counts of orally copulating a child under the age of 14 (David D.) and in 1988, he pled guilty to 18 counts of lewd acts with a child under the age of 14 (Gregory S.). Appellant’s trial strategy was to admit his past, but urge the jury to accept that because of age and ill health he is not likely to reoffend.

Appellant, who was 69 years old at the time of trial, began taking Prozac for depression in 1993, after suffering a heart attack. He stopped taking it in 2000 when he was prescribed Paxil in its place. Appellant was treated for prostate cancer in 2000. In 2004, he had a pacemaker implanted. These health concerns aside, appellant stretches, does crunches and pushups and walks up to 10 to 15 miles a day while at the hospital.

Appellant testified he no longer has “the libido anymore for sex .... So it’s all dead and gone.” He said he has zero sex drive “at the moment.” According to appellant, the hospital staff encouraged him to possess hardcore pornography in the hospital. He subscribed to a hardcore pornography magazine in 2003, so he could masturbate to it because he “was changing from children.” He said he needed to stop thinking about children while masturbating.

In December 2003, appellant sent a box of his belongings to his brother and sister-in-law. She threw it away because it contained pornography. Between 2003 and 2006, appellant mailed 18 boxes of belongings he could not keep in the hospital to the Galbraith address. The boxes contained more than 45,000 articles and pictures. Included were articles on intergenerational daycare centers, setting up a babysitting business, going to Disney World, where to buy toys wholesale, and children getting lost at water parks. He said he was interested in the last article because it discussed locator bracelets and he thought he could use a locator if he got a dog. He also had an article about a boy who exposed himself over the Internet.

Appellant clipped pictures for other patients interested in children. He traded them for snacks. Photographs of children were in the 18 boxes. One included a boy lying on a bed in a pair of briefs. Another showed Russell Crowe kissing a boy on the forehead. According to appellant, those photographs were meant for other patients and were mistakenly included in the boxes.

In one of the journals he mailed with the boxes, appellant wrote about his dreams. The December 25, 2003 entry read: “Had vivid dream of what I could only surmise was about Greg when he was very young, I first met him and his mom was even in the dreams.” The January 29, 2004 entry read: “Had a weird sleepless night. . . . Had strange dreams of Adrays local parking area and two kids I met who propositioned me and took me to their home. Really weird combination.”

Appellant analogized pedophilia to alcoholism. He said he does not feel he is cured of pedophilia, but he believes he no longer meets the legal definition because he does not have an “intense desire for the children.” He said that over the last three years or more he has not had any sexual desire because of his heart attack, his inability to have an erection, his awareness of his own mortality, and because radiation treatment has made ejaculation painful.

Appellant believes that as long as he stays away from children, he will not reoffend. He hopes that having an adult with him when he goes to Disneyland will reduce any risk or danger presented by his presence at the park.

Appellant said he will move to New York if released and will live with his brother and sister-in-law, where he will be treated by Dr. Friedmutter. Appellant has never met or spoken with the doctor, but he did receive a letter from Dr. Friedmutter suggesting treatment six days a week. Appellant said he would only go to places approved by the doctor. Appellant added that he does not see any harm in going to public places where children are present because he never molested strangers.

Dr. Dietz, a forensic psychiatrist, was retained by the district attorney to evaluate appellant. His evaluation relied upon the interview he conducted with appellant, a personality assessment inventory given to appellant, mental health evaluations prepared as far back as 1982, photographs, legal reports, parole reports, letters written by appellant, and appellant’s prior testimony. He stated his role was to assess whether appellant would reoffend.

The doctor diagnosed appellant with two mental disorders: pedophilia and Asperger’s disorder. Pedophilia requires that over a period of six months, “recurrent, intense sexually arousing fantasies, sexual urges or behaviors involving sexual activity with a pre-pubescent child or children have characterized this patient.” The doctor concluded appellant is a pedophile based upon statements appellant made to other evaluators acknowledging his attraction to boys, his placing the responsibility for the behavior on the boys, going out of his way to purchase child pornography from more than one mail-order house while on parole for child molestation, and the fact that appellant photographed two of his victims. Dietz said pedophilia is not curable.

He explained that the behavior of a pedophile is similar to that of a normal individual, except that the object of desire is a child. In other words, a pedophile enjoys conduct ranging from mere touching to more intimate connections, “all of those kinds of behaviors that adults will do with their consenting adult partners,” including digital penetration and giving oral sex. As a result, a pedophile who cannot get an erection may still become aroused and interested in a child. As to appellant’s claim that he is now asexual, the doctor stated, “I think it’s clearly the case that interest diminishes, abilities diminish, these things do change with age. The idea of becoming completely asexual I find somewhat suspicious for someone who had earlier been quite sexual.” The doctor said the most telling information about appellant’s level of fitness comes from his ability to exercise as much as he does. Appellant is “quite fit and fit beyond most men his age.”

The doctor said appellant’s Asperger’s is disquieting because people with Asperger’s tend to view others as objects and to lack empathy. Lack of empathy makes it easier for a pedophile to reoffend. Appellant’s clipping pictures of children to trade with other patients tends to show he views the children in the photographs as objects.

Dietz concluded appellant poses a “substantial, serious, well-founded risk to engage in sexually violent predatory criminal behavior as a result of his mental disorder if . . . released into [the] community.” He stated a number of reasons for his conclusion.

In 2006 appellant testified, “I know I am a pedophile and I want treatment,” but he had not taken advantage of the opportunity to receive treatment prior to or after his testimony. Cognitive behavior therapy is effective, but requires a willingness on the part of the patient to look at himself or herself and his or her behavior. Dietz said a treated pedophile should realize what he has to do to avoid taking the first step down the path of reoffending and appellant lacks that thought process because he thinks it is enough to plan to stay away from children. A pedophile has to recognize that unplanned things can happen when they come in contact with children.

One method of treatment is the use of selective serotonin reuptake inhibitor antidepressants such as Prozac, which have a side effect of decreasing libido. Two weeks before trial, appellant told Dr. Dietz he stopped taking Paxil because he wanted to feel everything. This is a concern because a side effect of the medications can be a reduction of libido. In 2000, appellant told Dr. French the medication significantly reduced his libido. Dietz said, “It’s a significant concern to me that a period of time during which he says he’s had decreased sexual interest, desire, urge and function, he’s been on a group of medications that can cause that to occur. And now just as he gains confidence at being able to become free, he stops taking the medication that might be causing those effects in him and that he said previously had done so.” The doctor said that one possibility for appellant’s decision is that he wants to give “free reign to his libido because he knows he’s getting out.”

Libido and the ability to have an erection are two different things. Both, however, could be affected by the subjects of two of appellant’s clippings: an ad for Viagra (for erectile dysfunction) and an ad for testosterone (for libido). Dietz said appellant’s physical fitness and the articles he saved evidence a continuing interest in sex.

Also of concern to the doctor was the nudist catalog found in the boxes appellant sent to the Galbraiths. Appellant used similar pornography with boys in the past. Another concern involved the fact that appellant kept an article on the vulnerability of boys without father figures and their being more accessible. Additionally, the doctor found appellant’s desire to have a dog constituted a red flag given his past use of a dog as a means of acquiring victims. He analogized it to “the man who cruises for rape victims by prowling at midnight—going out and prowling at midnight. It’s a technique that’s been familiar in the past for finding a victim.”

Contrary to appellant’s statement that he is not a risk to reoffend because he has will power and does not want to reoffend, Dietz said appellant oversimplifies the issue to avoiding children and does not have the coping skills necessary when he does see children. Punishment has not deterred appellant in the past and probably will not in the future.

Dietz said appellant’s plan for release is missing graduation from an effective sex offender treatment plan that included reeducation and relapse prevention, and a support system with professional supervision and support, including periodic assessments by a specialist. For postrelease treatment to be successful, appellant would need to be motivated to change. “He needs to see that there is a problem and in need of solution for that to be useful.”

Dietz stated an additional apprehension is the fact that appellant has expressed the concern that he does not want to die alone and stated a desire to have a female partner, but was worried about satisfying her sexually. However, the dmgs that can help him satisfy a woman also put him at risk for engaging in the conduct that results in reoffending. Appellant’s desire to not be alone was also a theme in his past relationships with boys. He once stated' the problem with boys is that they grow up and move away. Considering appellant’s statement that he only expects to live another five years, that could mean a boy growing up and moving away may no longer be viewed by appellant as a problem.

Dr. John Messenger specializes in cardiology and internal medicine. He reviewed appellant’s medical records regarding his 2004 pacemaker implant, subsequent electrocardiograms, and other medical records, including 2007 and 2008 reports pertaining to prostate function. He is also aware of appellant’s daily exercise regimen of 80 modified pushups and 100 modified situps, and walking three to four hours. He concluded appellant has recovered remarkably well from the bypass surgery and prostate cancer. He said bypass surgery and a pacemaker should not interfere with sex.

Defense

Appellant had been assigned to a particular unit at Coalinga State Hospital so he could be monitored due to his heart problems (including a pacemaker), a hernia operation, and Asperger’s. He also has hearing problems. Hospital staff that testified on his behalf stated they had not observed him to act inappropriately while at the hospital.

Appellant was described by one psychiatric technician as cooperative and a “pack rat.” He said appellant hoarded everything and collected newspapers and magazines. When appellant reached the limit for materials he was permitted to keep in his room, he shipped the materials away from the hospital because he wanted to keep everything.

Dr. Richard Romanoff, a clinical and forensic psychologist and a member of the DMH’s panel of doctors appointed to evaluate individuals alleged to be SVP’s, conducted six evaluations of appellant since 2002. Romanoff said that when he first evaluated appellant in 2002, he found appellant qualified as an SVP. His opinion has since changed and he presently does not believe appellant is likely to reoffend, based in part upon appellant’s age. His opinion changed in 2005, when data showed the number of sex offenders who reoffend after age 60 is very small. Dr. Theodore Donaldson, a clinical psychologist, also testified appellant poses a very low probability of reoffending.

Appellant’s sister-in-law testified appellant could live in her house in New York. She has been married to appellant’s brother for 45 years. She will have a zero tolerance policy and would call the police if appellant does anything wrong. She feels very strongly that he will not reoffend because he has matured and has never been “a snatch and grabber.” He used his home and toys to entice children and he will not have those things in New York. Neither would he be permitted to have a dog.

II

DISCUSSION

A. Underground Regulations

“Before a petition for commitment may be filed, the SVPA requires a suspected SVP to undergo two psychological evaluations conducted pursuant to a protocol established by the [DMH], Only if these evaluations result in a finding that the person, in effect, qualifies as an SVP does the SVPA authorize the filing of a commitment petition. Recently, the protocol developed by the Department and used for many years was declared to be an unlawful ‘underground regulation’ because it was implemented without compliance with the Administrative Procedure Act . . . .” (People v. Medina (2009) 171 Cal.App.4th 805, 810-811 [89 Cal.Rptr.3d 830].) Appellant contends he was denied due process because the initial evaluators used illegal underground regulations in his initial evaluations. We assume the initial evaluators used the underground regulations in 2000, and conclude appellant is not entitled to relief because he has failed to demonstrate prejudice arising from the use.

When a criminal defendant claims a procedural irregularity occurred prior to a determination of probable cause, the defendant must demonstrate prejudice to prevail on the issue in a postconviction setting unless the claimed error denied the court jurisdiction “in the fundamental sense.” (People v. Pompa-Ortiz (1980) 27 Cal.3d 519, 529 [165 Cal.Rptr. 851, 612 P.2d 941].) The same is true in SVP proceedings when it is claimed that an underground regulation was used in the prisoner’s initial DMH evaluation. (People v. Medina, supra, 171 Cal.App.4th at pp. 818-819.)

A lack of fundamental jurisdiction “ ‘means an entire absence of power to hear or determine the case, an absence of authority over the subject matter or the parties.’ [Citation.]” (People v. American Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660 [16 Cal.Rptr.3d 76, 93 P.3d 1020].) The failure to use properly enacted regulations in the initial evaluation of a suspected SVP does not result in a lack of fundamental jurisdiction, depriving the court of jurisdiction over the subject matter or appellant. (In re Ronje (2009) 179 Cal.App.4th 509, 518 [101 Cal.Rptr.3d 689]; People v. Medina, supra, 171 Cal.App.4th at pp. 815-817.)

Appellant was provided a full and fair trial on the petition. Neither of the initial evaluators testified. Appellant presented the testimony of his own experts who testified he does not qualify as an SVP. After hearing all the evidence, the jury concluded beyond a reasonable doubt appellant qualified for commitment as an SVP. Appellant does not contend the evidence was insufficient to support that finding. Accordingly, we conclude appellant has failed to show he was prejudiced by the initial evaluators’ use of unlawful underground regulations.

In In re Ronje, supra, 179 Cal.App.4th 509, underground regulations were used by evaluators of an alleged SVP. Prior to his trial, Ronje filed a petition for a writ of habeas corpus in this court seeking dismissal of the SVP petition or “new evaluations based on a valid assessment protocol.” (Id. at p. 513.) Relying upon People v. Pompa-Ortiz, supra, 27 Cal.3d 519, 529, we concluded Ronje was not required to prove prejudice to obtain relief because he sought relief pretrial. (In re Ronje, supra, 179 Cal.App.4th at p. 513.) As to the proper remedy, we stated dismissal was inappropriate because use of the underground regulations did not deny the trial court fundamental jurisdiction. We therefore directed the superior court to order new evaluations using the valid assessment protocols. (Id. at pp. 513-514.)

We reject appellant’s claim that he is entitled to the same relief without a showing of prejudice because he raised the issue prior to the court ordering his commitment as an SVP. The question is not whether he raised the issue before entry of a final judgment. The question is whether he raised it prior to trial, when a showing of prejudice is not a prerequisite to relief. (In re Ronje, supra, 179 Cal.App.4th at p. 513.) As the issue was not raised until after his trial, appellant bears the burden of demonstrating prejudice. He has failed to carry that burden.

B. Ineffective Assistance of Counsel

Appellant blames his trial attorneys for not having brought the issue of the underground regulations to the trial court’s attention before trial. To prevail on a claim of ineffective assistance of counsel, appellant must meet the two-pronged test of Strickland v. Washington (1984) 466 U.S. 668 [80 L.Ed.2d 674, 104 S.Ct. 2052]. “To establish ineffective assistance of counsel, a petitioner must demonstrate that (1) counsel’s representation was deficient in falling below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation subjected the petitioner to prejudice, i.e., there is a reasonable probability that, but for counsel’s failings, the result would have been more favorable to the petitioner. [Citations.]” (In re Wilson (1992) 3 Cal.4th 945, 950 [13 Cal.Rptr.2d 269, 838 P.2d 1222], citing Strickland v. Washington, supra, 466 U.S. at p. 687.)

The ineffective assistance claim need not detain us long. Appellant notes in his opening brief the Office of Administrative Law determination that the evaluation regulation was invalid “was not published until after [his] trial.” As the court noted in People v. Medina, supra, 171 Cal.App.4th 805, “The apparent failure, until very recently, of any attorney to question the validity of the protocol in the 13-year history of the SVPA appears to refute the claim that [appellant’s] representation fell below the standard of reasonableness . . . .” (Id. at p. 819.) Additionally, given the fact appellant received a full and fair trial and he has not demonstrated that had proper regulations been used there is a reasonable probability a different result would have occurred, appellant has not demonstrated prejudice, the second showing necessary to obtain relief on this claim. (Id. at pp. 819-820.) Appellant has failed to make the requisite showing on either prong of the Strickland test. As we stated above, the evaluators who used the underground regulations did not testify at trial. The jury, however, accepted the testimony of another expert who, without using the underground regulations, concluded appellant qualified as an SVP.

C. Fourth Amendment Exclusionary Rule

Appellant contends the trial court erred in permitting the district attorney to open the sealed boxes he mailed addressed to himself and which remained unopened while they were held for him by his friend Galbraith. He argues the evidence acquired from within the boxes was obtained in violation of his Fourth Amendment rights. The Attorney General argues appellant did not have a legitimate expectation of privacy in the boxes, the Galbraiths consented to the search of the boxes, and the exclusionary rule does not apply in a civil proceeding such as an SVP hearing.

Prior to opening the sealed boxes, the district attorney filed an order to show cause. The purported purpose was to require appellant to show cause why the district attorney should not open and search the sealed boxes. The deputy district attorney submitted the declaration of her investigator and raised the issue of whether appellant had a reasonable expectation of privacy in the boxes. Appellant filed a counter declaration from Mrs. Galbraith describing how possession was transferred from the Galbraiths to the district attorney’s office.

Before considering the array of Fourth Amendment issues presented by the facts, we make an initial inquiry: Does the exclusionary rule apply in an SVP proceeding? If it does not, there is no need to determine whether appellant had a reasonable expectation of privacy in the boxes; whether the purported consent to take the boxes was valid; whether that consent included a search of the sealed boxes; if there was no consent to open the boxes, whether the court’s order permitting the search was supported by probable cause; and, if probable cause was not demonstrated, whether the search may be upheld under the good faith exception given law enforcement’s reliance upon the court’s order to search the boxes.

The well-known exclusionary rule was first announced in Weeks v. United States (1914) 232 U.S. 383 [58 L.Ed. 652, 34 S.Ct. 341], and held to apply in state criminal prosecutions in Mapp v. Ohio (1961) 367 U.S. 643 [6 L.Ed.2d 1081, 81 S.Ct. 1684]. The United States Supreme Court has not addressed whether the Fourth Amendment exclusionary rule would apply in a civil proceeding such as those prescribed by our SVPA. On the one hand, it has held the exclusionary rule applies in civil forfeiture proceedings because such proceedings are quasi-criminal in nature and designed “to penalize for the commission of an offense against the law.” (One 1958 Plymouth Sedan v. Pennsylvania (1965) 380 U.S. 693, 700 [14 L.Ed.2d 170, 85 S.Ct. 1246].) On the other hand, the court has held the exclusionary rule does not apply in parole revocation cases (Pennsylvania Bd. of Probation and Parole v. Scott (1998) 524 U.S. 357 [141 L.Ed.2d 344, 118 S.Ct. 2014]), in suit for refund of taxes from the Internal Revenue Service (United States v. Janis (1976) 428 U.S. 433 [49 L.Ed.2d 1046, 96 S.Ct. 3021]), or civil deportation proceedings. (INS v. Lopez-Mendoza (1984) 468 U.S. 1032 [82 L.Ed.2d 778, 104 S.Ct. 3479] (Lopez-Mendoza).) And the California Supreme Court has held the exclusionary rule does not apply in civil commitment proceedings under the Lanterman-Petris-Short Act (§ 5000 et seq.). (Conservatorship of Susan T. (1994) 8 Cal.4th 1005 [36 Cal.Rptr.2d 40, 884 P.2d 988] (Susan T.).) Review of these cases leads us to conclude the rule does not apply in SVP cases.

In Pennsylvania Bd. of Probation and Parole v. Scott, supra, 524 U.S. 357, Scott had been sentenced to prison for a third degree murder and was subsequently paroled. (Id. at pp. 359-360.) Approximately five months later, parole officers obtained a warrant for Scott’s arrest and arrested him for a number of violations of the terms of his parole. (Id. at p. 360.) After obtaining a key from Scott, officers went to the residence he shared with his mother and searched without consent from Scott or his mother. They found a bow, arrows, and a number of firearms. (Ibid.) Scott’s objection to the introduction of this evidence at his parole violation hearing was overruled. The parole board found Scott in violation and recommitted him to prison for 36 months. (Id. at pp. 360-361.)

The Supreme Court granted certiorari to determine whether the exclusionary rule applies in parole revocation hearings. (Pennsylvania Bd. of Probation and Parole v. Scott, supra, 524 U.S. at p. 362.) The court noted it had repeatedly emphasized that the Fourth Amendment is not violated by the courts’ use of evidence obtained in violation of that amendment. (524 U.S. at p. 362.) The exclusionary rule is a judicially created remedy the purpose of which is to deter future unlawful searches. As a result, it only applies “ ‘where its remedial objectives are thought most efficaciously served,’ [citations].” (Id. at p. 363.) For the rule to apply, its deterrent effect must outweigh its “ ‘substantial social costs.’ [Citation.]” (Ibid.) The high court stated it has refused to apply the exclusionary rule in grand jury proceedings which often initiate criminal proceedings. (Ibid.)

The court declined to extend the exclusionary rule to parole revocation proceedings because “[application of the exclusionary rule would both hinder the functioning of state parole systems and alter the traditionally flexible, administrative nature of parole revocation proceedings. The rule would provide only minimal deterrence benefits in this context, because application of the rule in the criminal trial context already provides significant deterrence of unconstitutional searches.” (Pennsylvania Bd. of Probation and Parole v. Scott, supra, 524 U.S. at p. 364.) The same is true in SVP proceedings. Exclusion in a criminal case is a sufficient deterrent for law enforcement authorities attempting to discover unrevealed sexual offenses to charge a person alleged to be an SVP.

Lopez-Mendoza, supra, 468 U.S. 1032, involved two individuals purportedly arrested unlawfully by Immigration and Naturalization Service (INS) agents. Evidence obtained as a result of the arrests was used in the subsequent deportation proceedings. The intermediate appellate court found Sandoval-Sanchez’s detention was unlawful, that his statements were a fruit of the unlawful detention, and the statements should have been suppressed. (Id. at p. 1038.)

The Supreme Court characterized deportation proceedings as “a purely civil action to determine eligibility to remain in this country, not to punish an unlawful entry” (Lopez-Mendoza, supra, 468 U.S. at p. 1038) and concluded the exclusionary rule did not apply in such proceedings (id. at p. 1050). The court reached its conclusion by weighing the costs of the exclusionary rule in deportation matters against the sole purpose of the exclusionary rule: deterrence of unlawful police conduct. (Id. at pp. 1045-1050.)

The court stated it had observed in United States v. Janis, supra, 428 U.S. 433, a federal civil tax assessment proceeding, that evidence obtained by state officials in violation of the Fourth Amendment would not be admissible in any state or federal criminal prosecution. (Lopez-Mendoza, supra, 468 U.S. at p. 1042.) So too, any evidence obtained by the INS agents would be excluded from any state or federal prosecution. (Ibid.) Thus, there was a penalty in place to act as a deterrent to unlawful police conduct. The same is true here.

If the district attorney’s office had found evidence of a previously undiscovered sex crime, as appellant had argued was the goal of the search, that evidence would be excluded in any resulting criminal prosecution if the discovery was the result of a Fourth Amendment violation. That penalty (see United States v. Ceccolini (1978) 435 U.S. 268, 279 [55 L.Ed.2d 268, 98 S.Ct. 1054]) is a sufficient deterrent. That there is a pressing need for an additional deterrence in SVP cases has not been demonstrated. Given the fact a person alleged to be an SVP will be in a custodial setting (prison before the petition is filed and a state hospital after) with a concomitant diminished expectation of privacy, we do not foresee such a need arising.

In Susan T, supra, 8 Cal.4th 1005, the California Supreme Court used the same cost-benefit (deterrent effect versus social cost) analysis in concluding the exclusionary rule does not apply in civil involuntary commitment proceedings under the Lanterman-Petris-Short Act. There, Susan T.’s physician wrote to DMH expressing grave concern about her physical and mental well-being. (Id. at p. 1009.) A crisis worker contacted Susan T. at her home and, confirming the doctor’s concerns, placed Susan T. in a psychiatric facility. (Id. at p. 1010.) The Fourth Amendment violation in Susan T. occurred when a crisis worker returned to Susan T.’s home and entered without a warrant or exigent circumstances to take photographs of the interior of the residence as evidence. (8 Cal.4th at pp. 1010, 1014.)

The court acknowledged it has applied the exclusionary rule in narcotics addict commitment proceedings, which it stated are roughly analogous to civil commitment proceedings, but the reason for doing so was that the aims and objectives of the two proceedings are quite different. (Susan T, supra, 8 Cal.4th at p. 1017.) Narcotics addict commitments possess a “ ‘close identity to the aims and objectives of criminal law enforcement.’ [Citation.]” (Id. at p. 1016.) Indeed, “narcotics addict commitment is essentially in lieu of criminal prosecution for narcotics possession . . . .” (Id. at p. 1017.) A conservatorship proceeding, however, “ ‘is not initiated in response, or necessarily related, to any criminal acts .... The sole state interest, legislatively expressed, is the custodial care, diagnosis, treatment, and protection of persons who are unable to take care of themselves and who for their own well being and the safety of others cannot be left adrift in the community. The commitment may not reasonably be deemed punishment either in its design or purpose. It is not analogous to criminal proceedings.’ [Citations.]” (Id. at p. 1015.)

SVPA proceedings are more analogous to conservatorship proceedings than criminal proceedings. In initial SVPA proceedings, the petitioner’s burden is to prove the alleged SVP has the requisite prior conviction(s) for a designated sexually violent offense, and has been diagnosed with a mental disorder that makes it likely he or she will engage in sexually violent behavior. (§ 6600, subd. (a)(1).)

SVPA proceedings are generally instituted years after the alleged SVP has been convicted. Unlike narcotics commitments, they are not instituted in lieu of criminal proceedings. Indeed, if given a choice between prosecution of an individual who has at least one serious felony prior conviction (Pen. Code, § 667, subd. (a)(1)) and at least one “strike” prior conviction (Pen. Code, § 667, subds. (b)-(i)), a prosecutor would presumably opt for prosecution over an SVP civil commitment. If convicted, the defendant would face years and years in prison and, if he or she thereafter lives to complete the term imposed, there would still be the prospect of an SVP commitment at the end of the imprisonment.

Like conservatorship proceedings, the SVPA does not seek to punish and does not impose punishment. (Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1171 [81 Cal.Rptr.2d 492, 969 P.2d 584].) Institution of proceedings under the SVPA is not connected to and does not require a pending criminal action.

Proof of a prior conviction for a sexually violent offense may be shown by documentary evidence, i.e., court and prison records. (§ 6600, subd. (a)(3).) Proof of the predatory nature of the offense is often established by live testimony from those who were victims of or witnesses to the prior incidents) from years before. For example, in the present case, the appellant’s victims testified to incidents from as far back as 1969. We perceive no incentive here for the district attorney or any other law enforcement agency to engage in acts violating the Fourth Amendment as a means of acquiring such evidence years or even decades after the facts are already known to law enforcement. Additionally, the parties have not cited, and we have not found, any SVP case where an alleged SVP claims his Fourth Amendment rights were violated during the pendency of the SVPA proceedings. The lack of any other case lends weight to the proposition that, like conservatorship proceedings, SVP cases do not present a compelling need for an additional deterrent to unlawful searches or seizures over and above exclusion in a criminal prosecution.

As already noted, law enforcement officers looking to uncover undetected crimes of an alleged SVP know that should the evidence be obtained in violation of the Fourth Amendment, the evidence and its fruits will be excluded in a criminal trial. That deterrent being present, we conclude the social cost of excluding the same evidence in an SVPA proceeding— exclusion of reliable evidence and exposure of the public to the acts of individuals who suffer from a mental disability, the existence of which adversely affects the person’s volitional ability and predisposes the person to committing sexual acts against others, making him or her a danger to the health and safety of others—is not outweighed by the minimal beneficial effect that would result from excluding evidence in an SVPA proceeding. (See Susan I, supra, 8 Cal.4th at p. 1017, fn. 9 [listing civil settings where benefit of exclusion outweighed by cost of exclusion].) Accordingly, the superior court did not err in failing to exclude evidence claimed to have been obtained in violation of appellant’s Fourth Amendment rights.

In Susan T, the court stated that “[w]hether the exclusionary rule bars the admission of evidence in a civil proceeding depends, first, on the existence of a search or seizure that violates the protections of the Fourth Amendment of the federal Constitution.” (Susan T, supra, 8 Cal.4th at p. 1012.) We do not take this statement to mean a court must first decide whether there has been a violation of the Fourth Amendment and only then decide whether the exclusionary rule applies in a civil proceeding. Such an interpretation would require a court conducting a conservatorship hearing to first determine whether there had been a Fourth Amendment violation before deciding, in conformance with Susan I, that the exclusionary rule does not apply in conservatorship proceedings. Having concluded the exclusionary rule is not required in SVPA proceedings, we do not engage in what could only be a useless exercise in determining whether the evidence that cannot be excluded, assuming a Fourth Amendment violation, was in fact obtained in violation of the Fourth Amendment.

D. Discovery Issues

Appellant claims the court violated his right to due process and abused its discretion “by repeatedly granting the prosecution’s request to reopen discovery without a showing of good cause and by granting prosecution experts access to appellant’s private medical and mental health records and ordering appellant to submit to unnecessary and unauthorized mental examinations.” He argues the trial court, erred in reopening discovery after the first and second mistrials in this matter and in compelling appellant to submit to mental examinations by Drs. Arnold, Maram, Romanoff, and Dietz.

We review discovery claims for an abuse of discretion, “ ‘because management of discovery lies within the sound discretion of the trial court. [Citation.] Thus, where there is a basis for the trial court’s ruling and it is supported by the evidence, a reviewing court will not substitute its opinion for that of the trial court.’ [Citations.]” (Lee v. Superior Court (2009) 177 Cal.App.4th 1108, 1124—1125 [99 Cal.Rptr.3d 712].) If an abuse of discretion is found, reversal after trial is ordinarily permitted only if the error resulted in a miscarriage of justice. (Cal. Const., art. VI, § 13; County of Nevada v. Kinicki (1980) 106 Cal.App.3d 357, 363 [165 Cal.Rptr. 57].)

Appellant argues the court erred in granting the district attorney’s motion to compel appellant to submit to updated mental evaluations. That motion alleged appellant had previously refused to be interviewed by two of the district attorney’s experts, but had agreed to interviews with his own experts. Appellant argued there was no need for an interview by Dr. Maram because the doctor sat through appellant’s testimony at trial and was permitted to assist the deputy district attorney in questioning him. He also asserted section 6603, subdivision (c) is the sole authority for updated evaluations, that section did not authorize the evaluations because the doctors were not the original evaluators, and the statute does not authorize evaluation by an expert retained by the prosecution. At oral argument, appellate counsel conceded an expert retained by the district attorney may review otherwise confidential records and interview an alleged SVP if good cause for the evaluation exists.

Drs. French and Trompetter were the original evaluators in 2000. According to appellant, these doctors were replaced in 2002, by Drs. Maram and Romanoff. As early as 2003, Drs. Maram and Romanoff conducted “updated evaluations” without objection. They both performed updated evaluations again in 2005, without objection. In 2006, appellant’s counsel conceded the court had properly found appellant had waived the objection that Maram and Romanoff were not original evaluators. Appellant’s objection to the replacement of the original evaluators with Drs. Maram and Romanoff was untimely when ultimately made years later. (People v. Demetrulias (2006) 39 Cal.4th 1, 22 [45 Cal.Rptr.3d 407, 137 P.3d 229].) Once Maram and Romanoff replaced the original evaluators, the district attorney was entitled to have section 6603, subdivision (c)(1) updated evaluations by those doctors when their prior evaluations became stale. (Albertson v. Superior Court (2001) 25 Cal.4th 796, 803 [107 Cal.Rptr.2d 381, 23 P.3d 611].) However, even if updated evaluations by Maram and Romanoff should not have been ordered, appellant has failed to demonstrate any prejudice. Maram did not testify at the third trial and Romanoff testified as a defense witness. Along the same line, any alleged error in the court granting Dr. Arnold access to appellant’s records and an interview with appellant was harmless because Dr. Arnold did not testify at appellant’s third trial. That leaves Dr. Dietz.

“[T]he Civil Discovery Act applies to SVPA proceedings . . . .” (People v. Angulo (2005) 129 Cal.App.4th 1349, 1368 [30 Cal.Rptr.3d 189].) The act is “applied in each SVPA proceeding on a case-by-case basis.” (People v. Superior Court (Cheek) (2001) 94 Cal.App.4th 980, 994 [114 Cal.Rptr.2d 760].) The discovery rules are “liberally construed in favor of disclosure and the trial court is vested with wide discretion to grant or deny discovery. [Citation.]” (Pratt v. Union Pacific Railroad Co. (2008) 168 Cal.App.4th 165, 180 [85 Cal.Rptr.3d 321].)

Subject to restrictions “set forth in Chapter 5 (commencing with Section 2019.010),” any party may obtain a mental or physical examination of another party to the action. (Code Civ. Proc., § 2032.020, subd. (a).) This ' section does not require a party to put his or her mental state into controversy. It merely requires the mental condition “of that party or other person is in controversy in the action.” (Ibid.) Code of Civil Procedure section 2019.010, subdivision (d) also authorizes discovery via mental examinations. There is no restriction in chapter 5 of the Code of Civil Procedure that would appear to prohibit the requested discovery in this matter.

Neither is there anything in section 6603, subdivision (c)(1) to support appellant’s argument that the court cannot order an alleged SVP to submit to a mental examination by an expert retained by the district attorney. That section speaks to the issue of examinations by initial evaluators and their replacements. While it provides the exclusive procedure for updated or replacement evaluations of initial evaluators and requires the DMH to perform the updates requested by the district attorney, the section does not address examination by other experts.

Subdivision (c)(1) of section 6603 was enacted as a response to the Court of Appeal’s decision in Sporich v. Superior Court (2000) 77 Cal.App.4th 422 [91 Cal.Rptr.2d 752], wherein the court concluded there was no statutory authority for the district attorney to obtain updated mental evaluations. (Albertson v. Superior Court, supra, 25 Cal.4th at pp. 805-806.) The Legislature created that statutory authority, obviating the need for the Supreme Court to determine whether the Court of Appeal had reached the proper conclusion. (Id. at p. 804.)

The trial court found good cause for Dr. Dietz’s examination and we cannot say the court abused its discretion as a matter of law. Although repetitive examinations may become unduly burdensome in any case, they “are permissible if there is a showing of good cause.” (Kees v. Medical Board (1992) 7 Cal.App.4th 1801, 1814 [10 Cal.Rptr.2d 112].) An SVPA case requires a current mental condition, and when resolution of the case spans several years, multiple examinations are likely to be the rule rather than the exception.

Appellant argues discovery had closed and the request for an examination by Dr. Dietz was untimely, because the district attorney’s motion was filed on the trial date. Code of Civil Procedure section 2024.020, provides a date by which discovery closes. “Except as otherwise provided in this chapter, any party shall be entitled as a matter of right to complete discovery proceedings on or before the 30th day, and to have motions concerning discovery heard on or before the 15th day, before the date initially set for the trial of the action.” (Code Civ. Proc., § 2024.020, subd. (a).) Section 2024.050 of the Code of Civil Procedure authorizes the court to permit a party to reopen discovery. (Code Civ. Proc., § 2024.050, subd. (a).) In exercising its discretion whether to permit further discovery, the court is to take into consideration a number of factors, including “[t]he necessity and the reasons for the discovery” (Code Civ. Proc., § 2024.050, subd. (b)(1)), the “diligence or lack of diligence” on the party requesting the discovery and the reasons the discovery was not requested earlier (Code Civ. Proc., § 2024.050, subd. (b)(2)), the likelihood granting the request would result in a delay of the trial (Code Civ. Proc., § 2024.050, subd. (b)(3)), and the length of delay between the prior and present trial settings (Code Civ. Proc., § 2024.050, subd. (b)(4)).

Here, the second mistrial was declared on February 6, 2008. Just over two weeks later, on February 22, 2008, the court set March 17, 2008, for retrial at appellant’s request, denying the district attorney’s request for a date in June 2008. Thus, the trial was set within 30 days. Although the request for the evaluation was not made until the trial date, there was little chance granting the request would cause a delay in the trial. The earliest appellant’s matter was sent out for trial in either of his two prior trials was 20 days after the parties answered ready. The delay before the parties were sent out on the second trial was even longer. The evaluation could easily be completed without delaying the trial. Lastly, although the district attorney answered ready for trial on March 17, 2008, the last evaluation performed by an expert retained by the district attorney was nine months old and would be a year old, and presumably stale (Albertson v. Superior Court, supra, 25 Cal.4th at p. 802), if the trial trailed for a significant period of time, as it eventually did. These facts support the trial court’s decision to order the evaluation, the close of discovery notwithstanding.

E. Due Process

Appellant contends the petition should be dismissed because he was denied due process by the court’s failure to provide him with timely trials on the SVP petition. While the superior court consistently and repeatedly failed to appreciate the fact that appellant’s matter was not just another civil case on its calendar and that appellant was entitled to a trial in a timely fashion, the lack of a statutory time limit notwithstanding, we conclude the various continuances did not deny appellant due process. Although appellant remained in custody for more than seven years from the filing of the SVP petition (Oct. 19, 2000), through two mistrials, and finally a third trial where the jury found beyond a reasonable doubt that he was an SVP (July 31, 2008), the vast majority of the delays were at appellant’s request or with his consent. The delays attributable to the court or the district attorney did not amount to a denial of due process.

1. Due Process and the Litmon Cases

SVP proceedings are creatures of statute (§ 6600 et seq.) first enacted in 1995. (Stats. 1995, ch. 763, § 3, p. 5922.) The development of an alleged SVP’s due process right to a timely trial is necessarily a more recent development that arose because the SVPA does not delineate a timeframe in which an alleged SVP’s trial must be conducted once the court has determined the petition is supported by probable cause.

“[Cjivil commitment for any purpose constitutes a significant deprivation of liberty that requires due process protection. [Citations.]” (Addington v. Texas (1979) 441 U.S. 418, 425 [60 L.Ed.2d 323, 99 S.Ct. 1804].) The “most elemental of liberty interests” protected by the due process clause is “the interest in being free from physical detention by one’s own government. [Citations.]” (Hamdi v. Rumsfeld (2004) 542 U.S. 507, 529 [159 L.Ed.2d 578, 124 S.Ct. 2633] (plur. opn of O’Connor, J.).) “Freedom from bodily restraint has always been at the core of the liberty protected by the Due Process Clause from arbitrary governmental action. [Citation.]” (Foucha v. Louisiana (1992) 504 U.S. 71, 80 [118 L.Ed.2d 437, 112 S.Ct. 1780].)

In Orozco v. Superior Court (2004) 117 Cal.App.4th 170 [11 Cal.Rptr.3d 573], Orozco had been committed as an SVP for a two-year term and, prior to the expiration of the term, the People filed a petition to recommit Orozco for an additional two years. The initial term of commitment was set to expire on May 13, 2001. (Orozco v. Superior Court, supra, 117 Cal.App.4th at pp. 173-174.) The recommitment petition had still not been tried by March 18, 2003. On that day, approximately two months before the term sought by the recommitment petition would have expired had Orozco been tried and found to again qualify as an SVP, the People filed a second recommitment petition. This petition was for the two-year period from May 13, 2003, through May 13, 2005. (Id. at p. 175.) The matter eventually was continued into June 2003, after the two-year term on the first recommitment petition would have expired. Orozco filed a motion to dismiss both recommitment petitions, arguing that as the trial court had failed to hold a trial on the first recommitment petition during the period it sought to confine him the court lost jurisdiction over both petitions. (Ibid.) The primary issue in the subsequent writ proceedings was “whether there is a jurisdictional requirement under the [SVPA] that a recommitment order be obtained before the expiration of the previous term.” (Id. at p. 173.)

The appellate court concluded the trial court did not lose jurisdiction by failing to conduct the trial on a recommitment petition during that period of time for which recommitment is sought. (Orozco v. Superior Court, supra, 117 Cal.App.4th at p. 180.) Although the appellate court denied Orozco the dismissal he requested, the court directed “the issuance of a peremptory writ of mandate directing [the trial] court to set the first recommitment petition for trial forthwith . . . .” (Id. at p. 173.)

In Litmon v. Superior Court (2004) 123 Cal.App.4th 1156 [21 Cal.Rptr.3d 21] (Litmon I), Litmon had been committed as an SVP on May 2, 2000, for a two-year term. (Id. at p. 1163.) Before his two-year commitment expired, the People filed a petition to recommit him for an additional two-year term from May 2, 2002, to May 2, 2004. (Ibid.) As the two-year term sought by the recommitment petition was about to expire, and Litmon having not yet had a trial on that petition, the People filed a second recommitment petition seeking to extend Litmon’s commitment for a second two-year period from May 2, 2004, to May 2, 2006. (Ibid.) After filing the second recommitment petition, the People successfully moved to consolidate the two petitions over Litmon’s objection, resulting in a further delay of the trial on the issues raised in the first recommitment petition. As a result of consolidation, trial on the issue of whether Litmon qualified as an SVP and should be committed for the two-year term from May 2, 2002, to May 2, 2004, was not scheduled until after May 2, 2004. (Id. at p. 1164.)

Although the appellate court found the trial court had the power to order the petitions consolidated, it found that continuing petitioner’s trial date on the first petition over his objection—to accommodate consolidation—was error. (Litmon I, supra, 123 Cal.App.4th at p. 1161.) The court noted that because the SVPA did not set a limit upon the time within which a trial must be held, “some SVP trials languish at the end of the long queue of civil cases awaiting trial in our already overworked trial courts.” (123 Cal.App.4th at p. 1171.) The court concluded that notwithstanding the lack of a statutory time limit for trial in the SVPA, “there must be some limit to the length of time trial on an SVP petition can be delayed.” (123 Cal.App.4th at p. 1171.) “We agree with the Orozco court that ‘[sjurely the Legislature did not contemplate the lengthy delay which occurred here. The trial court should . . . ensure the matter proceeds to trial within a reasonable time following the probable cause hearing.’ [Citation.]” (Id. at pp. 1171-1172.)

The Litmon I court urged trial courts “to utilize the delay-minimizing guidelines and tools that already exist,” such as granting an SVP case preference pursuant to Code of Civil Procedure section 36, subdivision (e), and using the court’s inherent power to control proceedings. (Litmon I, supra, 123 Cal.App.4th at p. 1172.) “[W]e believe every effort consistent with existing statutory law must be made to bring SVP petitions to trial expeditiously and certainly well before the expiration of the very two-year commitment period at issue in the trial.” (Ibid.) The Litmon I court remanded the matter to the trial court with directions to immediately schedule trial on the first petition for recommitment, noting it was the only remedy available to Litmon. (Id. at p. 1177.)

After remand, trial on Litmon’s first recommitment petition (covering the two-year term from May 2, 2002, to May 4, 2004) concluded on September 7, 2005, when the jury found him to be an SVP. The court recommitted Litmon for the two-year period of May 2, 2002, to May 2, 2004. (People v. Litmon (2008) 162 Cal.App.4th 383, 390 [76 Cal.Rptr.3d 122] (Litmon II).) Litmon, who had represented himself at trial, requested appointment of counsel. (Id. at p. 390.) The district attorney informed the court the People were ready to proceed on the second recommitment petition covering the two-year period of May 2, 2004, to May 2, 2006. (