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People v. Sokolsky

September 21, 2010

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
MARK SOKOLSKY, DEFENDANT AND APPELLANT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Norm Shapiro, Judge. Affirmed. (Los Angeles County Super. Ct. No. ZM003650).

The opinion of the court was delivered by: Epstein, P.J.

opinion on remand from Supreme Court

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 our original opinion in this case, we agreed with respondent that the proper term of commitment for appellant was indeterminate. We modified the term of commitment on that ground. The Supreme Court granted review and transferred the matter to us with directions to vacate our opinion and to reconsider the cause in light of People v. Castillo (2010) 49 Cal.4th 145. We have done so, based on Castillo. We now conclude that the stipulation is effective.

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 declined appellant's renewed request to represent himself made at oral argument. In the unpublished portion of this opinion (parts I, III and IV), we find sufficient evidence of appellant's risk of reoffending; reject his argument that a Kelly hearing was required as to the Static-99 test; and hold that he was properly committed for a two-year term. 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 finding that he was 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.

The Supreme Court granted review and transferred the matter to us with directions to vacate our original opinion and reconsider the matter in light of People v. Castillo, supra, 49 Cal.4th 145. No supplemental briefs were filed by the parties after transfer. (Cal. Rules of Court, rule 8.200(b).)

DISCUSSION

I.

The SVPA, "as originally enacted (stats. 1995, ch. 763, § 3, p. 5922), provided for the involuntary civil commitment for a two-year term of confinement and treatment of persons who, by a unanimous jury verdict after trial (Welf. & Inst. Code, former §§ 6603, subd. (d), 6604), are found beyond a reasonable doubt to be an [sexually violent predator] SVP (former § 6604)." (People v. McKee (2010) 47 Cal.4th 1172, 1185, fn. omitted (McKee).) The term of commitment for a sexually violent predator was modified to an indefinite commitment, from which the individual can be released if he proves by a preponderance of the evidence that he no longer is an SVP, in 2006 by both legislative enactment (Sen. Bill No. 1128, stats. 2006, ch. 337, § 55) and Proposition 83 (The Sexual Predator Punishment and Control Act: Jessica's Law), passed by the voters in November 2006. (People v. Castillo, supra, 49 Cal.4th at pp. 148-149.)

A sexually violent predator is defined as "a person who has been convicted of a sexually violent offense against one or more victims and who has a 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)(1).)*fn5 There is no dispute in this case that appellant committed qualifying sexual offenses within the meaning of the SVPA. "Under the Act, a person is 'likely' to engage in sexually violent criminal behavior (i.e., reoffend) if he or she 'presents a substantial danger, that is, a serious and well-founded risk, that he or she will commit such crimes if free in the community.' (People v. Superior Court (Ghilotti) (2002) 27 Cal.4th 888, 922.)" (McKee, supra, 47 Cal.4th at p. 1186.)

In March 2008, appellant was committed to a two-year term pursuant to a stipulation entered into between the Los Angeles County District Attorney's Office, the Los Angeles County Public Defender's Office and Los Angeles Superior Court. Appellant's petition had been pending since March 2000. Thus, when the petition was filed, the term of commitment was two years, but when imposed, the term of commitment had been changed to an indefinite term under the 2006 legislation and initiative.

The People's trial brief explained the stipulation: "[D]ue to the ambiguity concerning the retroactive application of the law at the time, and because of concern over judicial resources in trial and appellate courts, the Los Angeles County District Attorney's Office, the Los Angeles County Public Defender's Office and former presiding judge of the Criminal Courts David Wesley entered into a stipulation prior to the passage of the new law. The stipulation provides that all SVP initial commitment petitions which were already filed before the passage of Jessica's law would have a two-year commitment imposed instead of an indeterminate commitment. The People will abide by the stipulation and ask the court to accept the stipulation in this case." After the jury reached its verdict, both counsel and the court agreed that the appropriate term of commitment was two years. A two-year commitment was imposed on appellant consistent with the local policy agreement.

Respondent contends imposition of a two-year commitment was invalid because at the time, the law required commitment for an indeterminate term. In our original opinion, we concluded that the court was required to impose the indefinite term of commitment applicable in light of the 2006 amendments. We noted that the validity of the stipulation between the Los Angeles County District Attorney's Office, the Los Angeles County Public Defender's Office, and the trial court was before the Supreme Court in People v. Castillo. The Supreme Court has now settled the issue, holding that the stipulation is enforceable pursuant to the doctrine of judicial estoppel. (People v. Castillo, supra, 49 Cal.4th at pp. 156-170.) It concluded "that enforcement of the stipulation indeed would promote the first goal of the judicial estoppel doctrine, that of maintaining the integrity of the judicial system." (Id. at p. 169.) The Castillo court also ...


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