Appellate court rejects DA’s petition to reconsider release of sexual predator

The Los Angeles County district attorney's office seems to be setting the stage for a Supreme Court hearing in an effort to keep a convicted child molester incarcerated.

On Thursday, the 2nd District Court of Appeal denied the prosecutor's petition for a rehearing, which it filed the day before on the grounds the court misinterpreted the term "systemic breakdown" in its Sept. 12 denial of a writ petition to keep the defendant incarcerated. People v. Superior Court of Los Angeles County, B287946 (Cal. App. 2nd Dist., filed Sept. 12, 2018).

Justice Gail R. Feuer, who wrote the opinion on behalf of the panel, affirmed Los Angeles County Superior Court Judge James Bianco's determination that the defendant's right to a speedy trial had been violated and should, therefore, be released.

George Vasquez, who has been categorized as a sexually violent predator and held at Coalinga State Hospital since 2002, awaited for 17 years a post-prison trial to determine whether his sexually violent predator status should continue as his public defenders repeatedly waived time.

The district attorney's office did not comment on the court's denial of its petition for a rehearing. In its brief, the office claims the court erred in its definition of "systemic breakdown," a term it used to describe the upheaval at the public defender's office the justices blamed for the delays.

"A 'systemic breakdown' should require an inherent failure to provide a timely trial, not mere errors in an individual case," the brief read. "This opinion provides no guidance to courts and provides the type of perverse incentives for defense attorneys that the U.S. Supreme Court in Vermont v. Brillon (2009) 556 U.S. 81, and the California Supreme Court in People v. Williams (2013) 58 Cal.4th 197, warned against."

The court did not offer any explanation for dismissing the petition for a rehearing. Robert S. Gerstein of Santa Monica, who represented Vasquez at the appellate level, said the court correctly determined the idea of a systemic breakdown is a matter of fact and not a matter of law, a difference that gives the appellate court the authority to review the case and make its own determination.

"I don't think the criticism of the opinion in the petition for rehearing is warranted," Gerstein said. "The existence of systemic breakdown in a public defender's office is a question a fact, something institutional that leads to delay," Gerstein said. "The DA's office is essentially saying systemic breakdown is a term of art and not just a question of fact; it's a legal concept that has to be defined. That's not the case here."

Gerstein said he suspects the petition was filed as a result of recent policy changes.

Specifically, Rule 8.500 under California's Rules of Court states, "A party may petition for review without petitioning for rehearing in the Court of Appeal, but as a policy matter the Supreme Court normally will accept the Court of Appeal opinion's statement of the issues and facts unless the party has called the Court of Appeal's attention to any alleged omission or misstatement of an issue or fact in a petition for rehearing."

The district attorney's office said it had not yet made a decision whether to appeal to the state Supreme Court. The office has 60 days to do so. After that, the decision will be made final, and the stay on Vasquez's release will be lifted. Should the office file with the Supreme Court, the stay will remain until the petition for review is denied or a decision is made in the case.