APPEAL from a judgment of the Superior Court of Los Angeles County, Norm Shapiro, Judge. Affirmed as modified. (Los Angeles County Super. Ct. No. ZM003650).
The opinion of the court was delivered by: Epstein, P.J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Mark Sokolsky appeals from a jury verdict adjudicating him a sexually violent predator under Welfare and Institutions Code section 6600 et seq. (Sexually Violent Predator's Act (SVPA)).*fn2 Appellant argues he is entitled to a hearing on his right to represent himself in propria persona in this court. He also challenges the sufficiency of the evidence of his risk of reoffending, and contends that his involuntary commitment violates his due process rights. Appellant asserts that the Static-99 test employed by the psychological evaluators should not have been admitted without an evidentiary hearing under People v. Kelly (1976) 17 Cal.3d 24 (Kelly). Respondent contends that the two-year commitment imposed was unauthorized under Proposition 83.
In the published portion of this opinion we conclude appellant has no right to self-representation on appeal and that summary denial of his application was not an abuse of discretion. We decline appellant's renewed request to represent himself made at oral argument. We also agree with respondent that the proper term of commitment was indeterminate and modify the term of commitment on that ground. In the unpublished portion of this opinion (parts II and III) we find sufficient evidence of appellant's risk of reoffending and reject his argument that a Kelly hearing was required as to the Static-99 test. As modified, the judgment is affirmed.
FACTUAL AND PROCEDURAL SUMMARY
Appellant and the district attorney stipulated that appellant was convicted of multiple counts of felony molestation of children under 14 years of age in 1979 and again in 1989. These felonies qualified as sexually violent offenses for the purposes of the SVPA. After the 1979 conviction, appellant was sent to Patton State Hospital as a mentally disordered sex offender (MDSO). He was returned to court nine months later, after having been found untreatable because he would not acknowledge his sex offenses. The earlier proceeding finding him a mentally disordered sex offender was reversed.*fn3 After new and conflicting psychological evaluations, the trial court found appellate was not an MDSO and placed him on probation. Appellant violated probation five months later by showing pornography to children. He was sent to prison and was released in March 1983.
In 1988, while living with his second wife, appellant was arrested and convicted for molesting his stepdaughters.*fn4 He was convicted of five counts of child molestation and sentenced to 21 years in prison.
In March 2000, the district attorney filed a petition under section 6250 et seq., alleging appellant was likely to engage in sexually violent predatory criminal behavior if released and requesting a trial to determine whether he is a sexually violent predator under the SVPA. Probable cause was found that appellant came within the statute and a jury trial was held. The jury found appellant to be a sexually violent predator and he was committed on August 12, 2008, for a period of two years. This timely appeal followed.
Appellant sought to represent himself on appeal. We summarily denied that request. Appellant's petition for mandate/prohibition and stay was denied by the California Supreme Court. The United States Supreme Court denied his petition for writ of certiorari.
Appellant acknowledges that People v. Scott (1998) 64 Cal.App.4th 550, 579, held that the right to self-representation recognized in Faretta v. California (1975) 422 U.S. 806 (Faretta) does not extend to appeals. Citing Martinez v. Court of Appeal (2000) 528 U.S. 152, 163, and Price v. Johnston (1948) 334 U.S. 266, 284, he argues an appellate court has discretion to grant a request for self-representation on appeal. Appellant argues that the denial of his request deprived him of a substantial right.
Alternatively, appellant argues that due process entitles him to a hearing on his request for self-representation because of the significant liberty interests at stake in a proceeding under the SVPA. He cites People v. Williams (2003) 110 Cal.App.4th 1577, which held that once the state granted a statutory right to self-representation in an MDSO hearing, that interest is protected by due process.
In People v. Fraser (2006) 138 Cal.App.4th 1430 (Fraser), the Court of Appeal held that a defendant has no right to self-representation in an SVPA trial. The court concluded there is no constitutional right to self-representation in a civil commitment proceeding under the SVPA, under either the rationale of Faretta or the due process clause of the United States Constitution. (Id. at p. 1444.)
The appellant in Fraser cited no direct authority to support application of the Faretta right to self-representation to a civil commitment proceeding under the SVPA. He also acknowledged that the only decision on the issue, People v. Leonard (2000) 78 Cal.App.4th 776, 784, merely assumed without deciding that individuals subject to the SVPA are to receive the same constitutional protections accorded criminal defendants, including the right to self-representation. (Fraser, supra, 138 Cal.App.4th at p. 1444.) Fraser based his claim to a right to self-representation on the Faretta rationale of respect for the individual and the Sixth Amendment right to make one's own defense. (Id. at p. 1445.) Self-representation is required, he argued, to ensure a defendant is able to present a defense of his own choosing.
The Fraser court observed that the United States Supreme Court has not extended the right to self-representation under Faretta to proceedings other than criminal prosecutions. It cited Martinez v. Court of Appeal, supra, 528 U.S. 152, in which the court declined to extend the right to appeal from a criminal conviction. (Fraser, supra, 138 Cal.App.4th at p. 1445, citing Martinez, supra, 528 U.S. at pp. 159- 160.)
In addition, the Court of Appeal in Fraser examined California cases which found no Sixth Amendment right to self-representation in proceedings other than criminal prosecutions. In People v. Williams, supra, 110 Cal.App.4th 1577, 1588, the court rejected a claim that a defendant in a proceeding to commit him as a mentally disordered sex offender had a constitutional right to self-representation. In In re Angel W. (2001) 93 Cal.App.4th 1074, 1080-1083, the court ruled that a parent's right to self-representation in a juvenile dependency proceeding is statutory rather than constitutional. In Conservatorship of Joel E. (2005) 132 Cal.App.4th 429, an objector's request to represent himself in a conservatorship proceeding was found to have no basis in the Sixth Amendment because it applies exclusively to criminal prosecutions. (Id. at p. 435.) In light of the non-punitive purpose of commitment of a conservatee, the court concluded that the proceedings are not "`sufficiently akin to criminal prosecutions to warrant Sixth Amendment protection.'" (Ibid.)
The Fraser court concluded that the rationale of these cases applied to preclude application of the Sixth Amendment to SVPA proceedings: "The California Supreme Court has established that SVPA proceedings have a non-punitive purpose." (Fraser, supra, 138 Cal.App.4th at p. 1446, citing Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144 (Hubbart).) It held: "Consequently, because a civil commitment proceeding under the SVPA has a non-punitive purpose and is therefore not equivalent to a criminal ...