Wednesday, September 22, 2010
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No Right to Hearing on Request to Represent Self on Appeal—C.A.
By KENNETH OFGANG, Staff Writer
A prison inmate who became the subject of a commitment proceeding in a Sexually Violent Predator Act proceeding was not entitled to a hearing on the denial of his request to represent himself on appeal, the Court of Appeal for this district ruled yesterday.
Div. Four, which had earlier issued a summary denial of Mark Sokolsky’s request for self-representation, affirmed Los Angeles Superior Court Judge Norman Shapiro’s order committing Sokolsky to the state hospital for treatment.
Sokolsky was convicted of multiple counts of molesting children in 1979 and again in 1989.
Following the 1979 conviction, he was placed on probation—in the face of conflicting psychological evaluations—which was revoked months later after he showed pornography to children. He was sent to prison, was released in 1983, and was arrested again in 1988 and charged with molesting his stepchildren.
He was convicted on five counts of child molestation and sentenced to 21 years in prison. A petition under the SVPA was filed in 2000, and a jury found him to be a sexually violent predator.
Jessica’ Law
Sokolsky’s case was one of a number as to which the length of the commitment was uncertain because Proposition 83, Jessica’s Law, was enacted while the petition was pending. The law, approved by the voters in 2006, replaced the original SVPA Act’s scheme of successive two-year commitments with an indefinite commitment from which the subject can only be released by proving he no longer has a predisposition to commit sex crimes.
Due to the uncertainty, the Los Angeles County District Attorney’s Office and the Public Defender’s Office, with the Superior Court’s approval, stipulated that in all cases in which an initial SVP commitment petition was filed before November 2006, a two-year commitment would be imposed. Shapiro accepted the stipulation and imposed the two-year term.
The Court of Appeal, however, concluded that the two-year term was unauthorized and ordered an indefinite commitment. The state Supreme Court granted review and sent the case back to the Court of Appeal after ruling in People v. Castillo (2010) 49 Cal.4th 145, that the stipulation to a two-year commitment was binding.
The panel yesterday affirmed the two-year commitment, in an unpublished portion of its opinion. In the published portion, it rejected Sokolsky’s renewed argument that he should have been allowed to represent himself.
Right Not Extended
Presiding Justice Norman Epstein, writing for the court, noted that the federal constitutional right to self-representation in criminal cases has not been extended to appeals, and that California courts have held that there is no constitutional right to represent oneself in a mentally disordered sex offender, juvenile dependency, or conservatorship proceeding, or in an SVPA proceeding in a trial court.
Epstein noted that Sokolsky’s attorney had urged the panel, at oral argument, to allow Sokolsky to represent himself.
“We have considered counsel’s argument and reconsidered appellant’s original request,” the presiding justice wrote. We decide that this matter should proceed as briefed, with appellant being represented by his attorney of record, and we decline the renewed request to allow him to represent himself.”
Sufficient Evidence
In an another unpublished portion of the opinion, Epstein said there was sufficient evidence to support a finding that Sokolsky still suffers from a mental disorder that prevents him from controlling his volition to commit violent sex crimes.
The jurist cited the results of a Static-99 psychological test. He also noted evidence that Sokolsky “adamantly and consistently refused treatment for his sexual crimes” at two different state hospitals, that he offered only his religious beliefs as an assurance that he would not reoffend—just as he had between his first and second convictions—and that he had a history of aggressive behavior and rules violations while incarcerated.
Attorneys on appeal were Richard E. Holly, by court appointment, for Sokolsky and Deputy Attorneys General Kenneth C. Byrne and Eric J. Kohm for the prosecution.
The case is People v. Sokolsky, B212437.
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