Opinion
No. B212437.
September 21, 2010. [CERTIFIED FOR PARTIAL PUBLICATION]
Pursuant to California Rules of Court, rules 8.1100 and 8.1110, this opinion is certified for publication with the exception of parts I, III, and IV of the Discussion.
Appeal from the Superior Court of Los Angeles County, No. ZM003650, Norman J. Shapiro, Judge.
Richard E. Holly, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Pamela C. Hamanaka, Assistant Attorney General, Kenneth C. Byrne and Eric J. Kohm, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
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 Act (SVPA)). 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 [ 130 Cal.Rptr. 144, 549 P.2d 1240] ( Kelly). Respondent contends that the two-year commitment imposed was unauthorized under Proposition 83.
Statutory references are to the Welfare and Institutions Code unless otherwise indicated.
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 [ 109 Cal.Rptr.3d 346, 230 P.3d 1132]. 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 In the unpublished portion of this opinion (pts. I, III 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 an MDSO was reversed. After new and conflicting psychological evaluations, the trial court found appellant 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. 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
See footnote, ante, page 814.
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).) 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.)
Prior to amendment in 2006, an SVP was required to have committed sexually violent acts against two or more victims. (Former § 6600, subd. (a).)
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 determined "that enforcement of the stipulation would promote the second goal of the judicial estoppel doctrine, that of protecting parties such as Castillo and others similarly situated from `"opponents" unfair strategies.'" ( Id. at p. 170.)
Under Castillo, supra, 49 Cal.4th 174, we affirm the judgment committing appellant to a two-year term.
II
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.
(1) Appellant acknowledges that People v. Scott (1998) 64 Cal.App.4th 550, 579 [ 75 Cal.Rptr.2d 315], held that the right to self-representation recognized in Faretta v. California (1975) 422 U.S. 806 [ 45 L.Ed.2d 562, 95 S.Ct. 2525] ( Faretta) does not extend to appeals. Citing Martinez v. Court of Appeal of Cal, Fourth Appellate Dist. (2000) 528 U.S. 152, 163 [ 145 L.Ed.2d 597, 120 S.Ct. 684], and Price v. Johnston (1948) 334 U.S. 266, 284 [ 92 L.Ed. 1356, 68 S.Ct. 1049], 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 [ 2 Cal.Rptr.3d 890], 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 [ 42 Cal.Rptr.3d 424] ( 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. ( 138 Cal.App.4th 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 [ 93 Cal.Rptr.2d 180], 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. ( Fraser, 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 of Cal., Fourth Appellate Dist., 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 an MDSO had a constitutional right to self-representation. In In re Angel W. (2001) 93 Cal.App.4th 1074, 1080-1083 [ 113 Cal.Rptr.2d 659], 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 [ 33 Cal.Rptr.3d 704], 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. ( Joel E., at p. 435.) In light of the nonpunitive 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.)
(2) 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 nonpunitive purpose." ( Fraser, supra, 138 Cal.App.4th at p. 1446, citing Hubbart v. Superior Court (1999) 19 Cal.4th 1138, 1144 [ 81 Cal.Rptr.2d 492, 969 P.2d 584].) It held: "Consequently, because a civil commitment proceeding under the SVPA has a nonpunitive purpose and is therefore not equivalent to a criminal prosecution, we determine that there is no Sixth Amendment right to self-representation in SVPA proceedings." ( Fraser, at p. 1446.)
(3) Fraser's alternative claim to a constitutional right to self-representation under the due process clause also was rejected. The court acknowledged that a defendant in an SVPA proceeding is entitled to due process protections because civil commitment involves a significant deprivation of liberty. ( Fraser, supra, 138 Cal.App.4th at p. 1446, citing People v. Otto (2001) 26 Cal.4th 200, 209 [ 109 Cal.Rptr.2d 327, 26 P.3d 1061] ( Otto).) But the due process rights applicable in an SVPA proceeding are those accorded in civil proceedings rather than criminal. ( Fraser, at p. 1446.) The court applied four factors identified by the Otto court to determine whether due process requires the right to self-representation in SVPA proceedings: "`(1) the private interest that will be affected by the official action; (2) the risk of an erroneous deprivation of such interest through the procedures used, and the probable value, if any, of additional or substitute procedural safeguards; (3) the government's interest, including the function involved and the fiscal and administrative burdens that the additional or substitute procedural requirement would entail; and (4) the dignitary interest in informing individuals of the nature, grounds, and consequences of the action and in enabling them to present their side of the story before a responsible government official.' ( Otto, supra, 26 Cal.4th at p. 210.)" ( Fraser, at p. 1447.)
The private interests identified in Fraser were liberty, reputation, and freedom from unwanted treatment. ( Fraser, supra, 138 Cal.App.4th at p. 1447.) The court concluded that the second factor, the value of self-representation, weighed against a constitutional right "because it is well established that self-representation does not `further the fairness or accuracy of the proceedings.' ( Conservatorship of Joel E., supra, 132 Cal.App.4th at p. 438.)" ( Id. at pp. 1447-1448, also citing language in Faretta, supra, 422 U.S. at p. 834 and People v. McDaniel (1976) 16 Cal.3d 156, 164 [ 127 Cal.Rptr. 467, 545 P.2d 843].) The third factor, the government's interest in SVPA proceedings, was found not to weigh against finding a constitutional right to self-representation because the Fraser court concluded self-representation was unlikely to place significant fiscal or administrative burdens on the government or impede the government's interest in protecting the public. ( Fraser, at p. 1448.)
(4) The defendant's dignitary interest in SVPA proceedings was the fourth factor considered by the Fraser court. It found: "[T]he dignitary interest protected in an SVPA proceeding is not equivalent to the Faretta concept of respect for the individual in a criminal prosecution. The California Supreme Court has explained that a person subject to the SVPA has a dignitary interest `in being informed of the nature, grounds and consequences of the SVP commitment proceeding' and in `presenting his side of the story before a responsible government official.' [Citation.]" ( Fraser, supra, 138 Cal.App.4th at p. 1448.) The court concluded that self-representation is not necessary to protect a defendant's dignitary interest in an SPVA proceeding, which contains built-in procedural safeguards to protect this interest. ( 138 Cal.App.4th at p. 1448.) It also provides a right to counsel. (§ 6603, subd. (a).)
(5) We agree with the analysis of the court in Fraser, supra, 138 Cal.App.4th 1430, and determine that this analysis leads to the conclusion that there is no constitutional right to self-representation on appeal from an SVPA commitment. Appellant also argues that, even if he does not have a right to argue before this court in propria persona, we have discretion to allow him to do so. At oral argument, his attorney urged that we exercise that discretion by granting appellant's request. We have considered counsel's argument and reconsidered appellant's original request. 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.
III
See footnote, ante, page 814.
"We review sufficiency of the evidence challenges under the SVP Act according to the same standard pertinent to criminal convictions. [Citation.] We thus review the entire record in the light most favorable to the judgment to determine whether substantial evidence supports the determination below. [Citation.] We may not determine the credibility of witnesses, nor reweigh any of the evidence, and we must draw all reasonable inferences in favor of the judgment below. [Citation.]" ( People v. Fulcher (2006) 136 Cal.App.4th 41, 52 ( Fulcher).)
The Fulcher court explained: "In order to establish that defendant was an SVP, the People must prove that (1) defendant was convicted of two separate sexually violent offenses; (2) he had a diagnosable mental disorder that made him a danger to the health or safety to others; (3) his disorder makes it likely he will engage in sexually violent criminal conduct if released; and (4) his sexually violent criminal conduct will be predatory in nature. ( People v. Roberge (2003) 29 Cal.4th 979, 985; Cooley v. Superior Court (2002) 29 Cal.4th 228, 243; People v. Hurtado (2002) 28 Cal.4th 1179, 1186; § 6600, subd. (a).)" ( 136 Cal.App.4th at p. 52.)
The People's case was based on the testimony of Drs. Jack Vognsen and Douglas Korpi, both psychologists. Appellant argues that their opinions were "based entirely upon appellant's past history of sexual abuse last occurring nearly 20 years ago. Neither their more recent interviews nor their reviews of his custodial record have produced any current evidence supporting their conclusions that appellant is an SVP." In particular, he attacks the reliance of the People's psychologists on the Static-99 test instrument, which is designed to measure the risk that a sexual offender may reoffend. He contends that the test is unreliable as applied here because the score it produces does not change over time because it does not include an assessment of present circumstances, such as the offender's age or health problems.
Appellant argues that during his nearly 17 years of incarceration, there is no evidence indicating a continuing sexual deviancy. He describes his 14 violations of prison rules between 1992 and 1998 as not being either sexually or aggressively related. He also contends "there is no substantial evidence that a person of appellant's age [56] continues to pose a serious risk of sexual abuse."
In a related argument, appellant contends that his involuntary commitment is a violation of his federal right to due process because there was no substantial evidence that he currently poses a serious risk of reoffending. He cites Kansas v. Crane (2002) 534 U.S. 407, 413, for the proposition that involuntary commitment is prohibited unless there is "proof of serious difficulty in controlling behavior." Thus, he argues, "the failure of proof that appellant poses a current risk of reoffending is a constitutional infirmity requiring reversal of appellant's commitment."
In Hubbart v. Superior Court, supra, 19 Cal.4th 1138, our Supreme Court explained that the SVPA "makes clear that it is the present inability to control sexually violent behavior which gives rise to the likelihood that more crimes will occur, and which makes the SVP dangerous if not confined. The danger and threat of harm posed to the community necessarily exist whenever such a mental disorder is found — a finding required for commitment as an SVP. Nothing in the statute permits the trier of fact to conclude that the committed person `currently' suffers from a `diagnosed mental disorder' and is `a danger,' even though he is not likely to commit sexually violent crimes and does not pose a present and substantial threat to public safety." ( Id. at p. 1162.)
The Supreme Court in Hubbart expressly rejected an argument that the SVPA is flawed "because it authorizes the use of prior qualifying sex crimes to prove that the alleged predator is mentally disordered and dangerous" and "does little more than establish a `presumption' of danger based on past crimes." ( 19 Cal.4th at p. 1163.) It held: "We disagree. Notwithstanding the nuances of psychiatric diagnosis and the difficulties inherent in predicting human behavior, the United States Supreme Court has consistently upheld commitment schemes authorizing the use of prior dangerous behavior to establish both present mental impairment and the likelihood of future harm. ([ Kansas v.] Hendricks [(1997)] 521 U.S. 346, 358; Heller [v. Doe (1993)] 509 U.S. 312, 323; Allen [v. Illinois (1986)] 478 U.S. 364, 371; Minnesota v. Probate Court [(1940)] 309 U.S. 270, 274.)" ( Hubbart v. Superior Court, supra, 19 Cal.4th 1138, 1163-1164.) Additionally, the Hubbart court concluded "the Legislature could reasonably conclude that the evidentiary methods contemplated by the Act are sufficiently reliable and accurate to accomplish its narrow and important purpose — confining and treating mentally disordered individuals who have demonstrated their inability to control specific sexually violent behavior through the commission of similar prior crimes. As noted, the Act precludes commitment based solely on evidence of such prior crimes. (§ 6600, subd. (a).) We find no patent due process violation on this ground." ( Id. at p. 1164.)
Contrary to appellant's characterization of the evidence, the People's psychologists relied on a number of factors in addition to appellant's history of sexual molestation in reaching the conclusion that he poses a sufficient risk of reoffending, and qualifies as a sexually violent predator under the SVPA. Although both psychologists used the Static-99 test instrument, it was only one of several measures and factors upon which they relied.
Dr. Vognsen performed a total of eight evaluations of appellant's risk of reoffending over time. He administered four different actuarial instruments, including the Static-99, in addition to a clinical assessment of appellant to determine whether the actuarial results were correct. In addition to the four actuarial tests, Dr. Vognsen took into account the following factors: appellant's sexual deviance (diagnosis as pedophile); treatment failure; refusal to participate in treatment at Patton Hospital; poor ability to cooperate with supervisors; poor general self-regulation (impulsiveness); poor cognitive problem solving; history of lying and anger control problems; and diagnosis with a personality disorder. In his opinion, based on all these factors, appellant is likely to reoffend.
Dr. Korpi also performed a number of evaluations of appellant, the last occurring one month before trial. He testified that appellant was 56 at the time of trial and the risk of his reoffending would drop at age 60. Dr. Korpi administered four actuarial measures including the Static-99. On each, appellant scored in the medium-high to high risk of sexually reoffending. Dr. Korpi acknowledged that the Static-99 "is just an approximate test."
Factors identified by Dr. Korpi as increasing the risk appellant would reoffend included: his diagnosis as a pedophile; three arrests for sexual offenses; a boy victim; and his identification with children and grooming them to be victims by befriending them. Another factor considered was that appellant had both sexual offenses with children and a nonsexual battery on his wife, which increased the risk of reoffending. Appellant's history of employment problems and gambling problems demonstrated an inability to settle into a career, which indicates that he is not well socialized. His parents separated before appellant was 16, a recognized risk factor. Dr. Korpi also noted appellant's parole and probation violations, one of the clearest factors for reoffending. In addition, appellant has a history of disciplinary violations in custody and problems with anger. Another factor considered by Dr. Korpi was appellant's failure to complete sex-specific treatment.
Dr. Korpi cited appellant's failure to self-regulate, including his current impulsive and hostile behavior and problems with authorities. As an example, Dr. Korpi noted appellant had thrown pills and forged a nurse's signature on an affidavit about his need for contact lenses. Another factor supporting the conclusion that appellant was at risk of reoffending was that he is alone in the world with no family and friends. When asked about appellant's amenability to treatment, Dr. Korpi responded: "He thinks, one, there is nothing wrong with him, so he doesn't need treatment; and, two, he thinks treatment is absurd. His treatment is God."
In People v. Burris (2002) 102 Cal.App.4th 1096, there was evidence that while awaiting trial and sentencing as to one victim, the defendant committed new sex crimes, repeatedly violated parole (one violation was a new sexual offense) and persistently committed prison rule violations. The Burris court held that this was substantial evidence of lack of control. ( Id. at p. 1109.) It found sufficient evidence that the defendant had a mental illness that made him unlikely to be deterred by the threat of criminal punishment and thus likely to reoffend, which amounted to sufficient evidence of lack of control. ( Id. at pp. 1110-1111.) In the present case, there was evidence that appellant violated probation and parole by committing new sexual offenses with children, and had 14 rule violations while incarcerated.
A defendant's refusal to undergo treatment was found to constitute "potent evidence that he is not prepared to control his untreated dangerousness by voluntary means" in People v. Sumahit (2005) 128 Cal.App.4th 347, 354. The court explained: "The availability of treatment is at the heart of the SVPA. [Citation.] `Through passage of the SVPA, California is one of several states to hospitalize or otherwise attempt to treat troubled sexual predators.' ( Hubbart v. Superior Court[, supra,] 19 Cal.4th 1138, 1143. . . .) Accordingly, one of the key factors which must be weighed by the evaluators in determining whether a sexual offender should be kept in medical confinement is `the person's progress, if any, in any mandatory SVPA treatment program he or she has already undergone; [and] the person's expressed intent, if any, to seek out and submit to any necessary treatment. . . .' [Citation.] A patient's refusal to cooperate in any phase of treatment may therefore support a finding that he `is not prepared to control his untreated dangerousness by voluntary means if released unconditionally to the community.' ( Ibid.)" (Id. at pp. 354-355.)
There was evidence that appellant adamantly and consistently refused treatment for his sexual crimes. He was returned from Patton State Hospital after his first conviction, having been found "untreatable." Thereafter, at Coalinga, he again refused treatment. Dr. Vognsen testified that appellant said he was relying on his religion and God to keep him from reoffending. Appellant's reliance on religion to keep him from reoffending was similar to statements he made after his first conviction, before he committed the crimes which led to his second trial and conviction.
Dr. Vognsen and Dr. Korpi testified that appellant was reported for 14 rules violations while incarcerated; constantly tried to "worm out" of rules; was verbally aggressive with staff, was profane with staff, threw things at staff, threatened staff if he did not get his way, and was angry and confrontational with staff in 2007 and 2008. In addition, he falsified a purported declaration from a registered nurse in a court filing.
We find substantial evidence to support the determination of the jury that appellant is a sexually violent predator within the meaning of the SVPA, and that there was no violation of appellant's federal constitutional right to due process.
IV
Appellant also argues that a hearing on the admissibility of the Static-99 evidence was required under People v. Kelly, supra, 17 Cal.3d 24. In People v. Therrian (2003) 113 Cal.App.4th 609, 611, the court held: "[W]hen an expert's opinion regarding the likelihood of defendant reoffending is not based solely upon the results of a Static-99 test . . ., a Kelly hearing on the admissibility of expert's testimony regarding the test is not required." (Fn. omitted.) Relying on People v. Stoll (1989) 49 Cal.3d 1136, 1157, the Therrian court reasoned that the Kelly test had never been applied to expert medical testimony "`"even when the witness is a psychiatrist and the subject matter is as esoteric as the reconstitution of a past state of mind or the prediction of future dangerousness, or even the diagnosis of an unusual form of mental illness not listed in the diagnostic manual of the American Psychiatric Association . . . ."' [Citations.]" ( Therrian, supra, at p. 615.)
The Court of Appeal in Therrian determined that the Kelly rule had been applied to unproven techniques or procedures that appear to provide some "`definitive truth which the expert need only accurately recognize and relay to the jury, . . .'" ( 113 Cal.App.4th at p. 614.) It reasoned that "`absent some special feature which effectively blindsides the jury, expert opinion testimony is not subject to Kelly/Frye.' [Citation.] `In most other instances, the jurors are permitted to rely on their own common sense and good judgment in evaluating the weight of the evidence presented to them. [Citations.]'" ( Id. at p. 614.)
The experts in Therrian had made clear that the Static-99 "was not definitive," and that many other risk factors were considered in forming an expert opinion of likelihood to reoffend. ( 113 Cal.App.4th at p. 615.) Under these circumstances, the Court of Appeal concluded the trial court did not err by admitting expert testimony based on the Static-99 test without a Kelly hearing. ( Id. at pp. 615-616.)
Here, as in Therrian, supra, 113 Cal.App.4th 609, the experts did not rely solely on Static-99 predictions and acknowledged the test's limitations. The jury was presumably able to use its common sense and judgment in evaluating the experts' opinions. We adopt the reasoning of Therrian and find no error in the admission of Dr. Vognsen and Dr. Korpi's testimony regarding the Static-99 test without a Kelly hearing.
DISPOSITION
The judgment is affirmed.
Willhite, J., and Suzukawa, J., concurred.