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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                      SIXTH APPELLATE DISTRICT


THE PEOPLE,                                                          H033519
                                                                    (Santa Clara County
         Plaintiff and Respondent,                                   Super. Ct. No. 210942)

             v.

DAVID GOMBERG,

         Defendant and Appellant.



         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
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.

                                               2
       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
                                              3
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
                                              4
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
                                              5
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
                                              6
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
                                               7
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,
                                              8
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
                                              9
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.)

                                              10
[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.




                                             11
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
                                             12
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.
                                               13
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
                                              14
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.

                                              15
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
                                              16
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
                                             17
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.
                                               18
       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
                                              19
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
                                             20
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
                                             21
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
                                              22
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
                                             23
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
                                            24
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
                                              25
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.




                                             26
                                 ______________________________________
                                            RUSHING, P.J.




WE CONCUR:




____________________________________
           PREMO, J.




____________________________________
           ELIA, J.




                                   27
