Filed 7/22/15
See Dissenting Opinion



                          CERTIFIED FOR PUBLICATION



          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                          FOURTH APPELLATE DISTRICT

                                    DIVISION TWO



THE PEOPLE,

        Plaintiff and Respondent,                   E059589

v.                                                  (Super.Ct.No. FELSS1300597)

FRANCIS JOHN LaBLANC,                               OPINION

        Defendant and Appellant.



        APPEAL from the Superior Court of San Bernardino County. Steve Malone,

Judge. Reversed.

        Rudy Kraft, under appointment by the Court of Appeal, for Defendant and

Appellant.

        Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney

General, Julie L. Garland, Assistant Attorney General, Joy Utomi and Christine

Levingston Bergman, Deputy Attorneys General, for Plaintiff and Respondent.


                                            1
       Defendant and appellant Francis John LaBlanc is currently committed for an

indeterminate term of treatment as a sexually violent predator (SVP). In this appeal,

LaBlanc challenges the trial court’s order pursuant to Welfare and Institutions Code1

section 6608, subdivision (a), denying, as frivolous, his petition for unconditional

discharge. We conclude the trial court abused its discretion. Therefore, we reverse the

order and remand for the trial court to conduct an evidentiary hearing on the petition. We

deny defendant’s request that on remand the hearing be assigned to a different judge,

pursuant to Code of Civil Procedure section 170.1, subdivision (c).

                                             I.

                    FACTS AND PROCEDURAL BACKGROUND2

       In 1965, defendant was convicted in Colorado of two counts of rape. (LaBlanc v.

People (Col. 1966) 418 P.2d 888, 889, cert. den. (1967) 388 U.S. 922.) Defendant was

discharged from a Colorado prison in March 1985. Later that year, the San Bernardino

County District Attorney’s Office filed a felony complaint alleging defendant committed



       1Unless otherwise indicated, all undesignated statutory references are to the
Welfare and Institutions Code.

       2   We take some background facts from our prior opinions relating to defendant’s
commitment as an SVP. (People v. Superior Court (LaBlanc) (Oct. 25, 2001, E028182)
[nonpub. opn.] [ordering the superior court to set aside a summary judgment dismissing
the initial petition to commit defendant as an SVP]; People v. LaBlanc (Oct. 17, 2008,
E043166) [nonpub. opn.] [rejecting defendant’s various constitutional challenges to the
Sexually Violent Predator Act (SVPA)].)



                                             2
two counts of forcible rape (Pen. Code, former § 261, subd. 2), and one count of robbery

of an inhabited dwelling (Pen. Code, § 459). Two years later, defendant pleaded guilty to

the California rape and robbery charges, admitted to suffering the two Colorado rape

convictions, and was sentenced to 20 years in state prison.

       Defendant was scheduled to be paroled on May 15, 1996, but, based on an

evaluation by the California Department of Mental Health3 (Department) that defendant

met the criteria for an SVP, the People filed a petition to civilly commit him for treatment

under the SVPA. A jury found beyond a reasonable doubt that defendant was an SVP,

and he has been committed for treatment ever since.

       On January 23, 2013, defendant filed a petition in the superior court seeking an

order pursuant to section 6608 for his unconditional discharge from Coalinga State

Hospital and from the jurisdiction of the Department. Defendant supported his petition

with a report prepared by Mary Jane Alumbaugh, Ph.D., a clinical psychologist, and

requested that the court make a preliminary determination that the petition was not

frivolous and to set an evidentiary hearing on his request for an unconditional discharge.

       At the request of defendant’s appointed counsel, Alumbaugh interviewed

defendant on seven occasions and reviewed various records and reports to determine

whether he was still an SVP as defined in section 6600, subdivision (a)(1), or whether,

       3 The Department of Mental Health is now known as the Department of State
Hospitals, and the Director of Mental Health is now known as the Director of State
Hospitals. (People v. Superior Court (Karsai) (2013) 213 Cal.App.4th 774, 778, fn. 1.)



                                             3
instead, he satisfied the criteria for unconditional release. Alumbaugh found the first

SVP criteria to be present because defendant had been convicted of a sexually violent

offense, as defined in section 6600, subdivision (b), against one or more victims.

Defendant’s criminal records from Colorado and California demonstrated that defendant

had been convicted of forcible rape in both states against a total of four victims. With

respect to the second SVP criteria, Alumbaugh concluded defendant did not have a

diagnosed mental disorder that rendered him a danger to the safety and health of others

because, if released, he would not likely engage in sexually violent criminal behavior.

(§ 6600, subd. (a)(1).) Therefore, Alumbaugh concluded defendant was eligible for

unconditional release.

       During interviews, defendant told Alumbaugh that he lost interest in sex after

receiving radiation therapy for prostate cancer, which left him impotent. Defendant also

told Alumbaugh that he had difficulty getting an erection, and that doctors told defendant

Viagra would not help his type of impotence. In addition to prostate cancer, Alumbaugh

reported that defendant also suffered from heart disease, that he was provisionally

diagnosed with multiple sclerosis, and that he had one testicle surgically removed. A

staff psychiatrist characterized defendant’s health issues as “serious and significant.” The

psychiatrist also told Alumbaugh that, although defendant was occasionally irritated with

staff and his peers, on the whole defendant was pleasant and “poses no more risk than

any other seventy year old.”




                                             4
       With respect to defendant’s psychological diagnoses, Alumbaugh reported that

when defendant was arrested in 1964 for the Colorado rapes, he was assessed before trial

and one doctor diagnosed him with a character disorder that was severe in nature but did

not constitute mental illness. Another Colorado doctor concluded defendant did not

suffer from mental illness and diagnosed him with antisocial personality disorder.

According to Alumbaugh, annual reports prepared by staff at Coalinga State Hospital for

the years 2008, 2009, 2010, 2011, and 2012 diagnosed defendant with “Paraphilia NOS

(non-consenting victim),” but the reports merely quoted from older SVP evaluations and

repeated the earlier conclusion that defendant was dangerous. Alumbaugh noted that

defendant steadfastly refused to attend group sex offender programs or to receive mental

health treatment while in the hospital because the treatment he received would be used

against him, and he did not take psychotropic medications on a regular basis. However,

if released, defendant told Alumbaugh that he planned on relocating to Pennsylvania to

live with his girlfriend and that he would attend a sex offender treatment program there.

       Alumbaugh questioned a number of statements and conclusions found in

defendant’s prior reports:

       First, a report prepared in 2009 asserted defendant sexually abused his half-sisters.

Although the claims were never adjudicated and the report included “no substantiation or

source for the information,” Alumbaugh stated the claims were “given credence and

accepted as facts.” When defendant’s attorney contacted hospital administrators about

the claims, the attorney was told the charges “were mistakenly included.” However, the

                                             5
unsubstantiated claims were repeated in a 2011 report and formed the basis of one

evaluator’s conclusion that defendant “ha[d] the dynamic factor [of] identification with

children . . . .”

        Second, a 2003 report described defendant “as a highly psychopathic individual,” a

characterization that was repeated in reports prepared in 2008 through 2012. According to

Alumbaugh, the reports failed to make note of defendant’s advancing age and a score of

less than 30 on the revised Hare Psychopathy Checklist—Revised (PCL-R).4 These

omissions undermined the conclusion that defendant was highly psychopathic because,

according to the PCL-R manual and relevant literature, the PCL-R score loses significance

in predicting future dangerousness of older men such as defendant.

        Third, defendant’s reports for 2009, 2010, and 2011 concluded defendant’s health

had no impact on his likelihood of reoffending because he suffered “‘no chronic, life-

threatening medical concerns,’” yet Alumbaugh stated those reports made no mention of

defendant’s history of prostate cancer and heart disease.

        Fourth, all of the reports Alumbaugh reviewed repeated the charge that defendant

tried to escape from county jail in 1986. The reports showed defendant was charged with

attempted escape, but the charges were dismissed, yet the reports appeared to conflate

events because they stated the attempt occurred in 1999. The reports also stated, with


        4The PCL-R is a diagnostic tool for rating a person’s psychopathic or antisocial
tendencies. (United States v. Campbell (D. Neb. 2010) 738 F.Supp.2d 960, 967, fn. 14.)



                                             6
certainty, that defendant tried to escape from Atascadero State Hospital. However,

although defendant was charged with attempted escape, defendant’s parole was violated

for possession of contraband, and he was never convicted of attempted escape.

       And finally, a 2012 report stated defendant was involved in three incidents at

Coalinga State Hospital that were “severe” in nature. Yet, according to Alumbaugh, two

of the incidents merely related to defendant’s possession of contraband electronic parts

and other material he used for his hobby of electronics repair. The third incident—in

which defendant was alleged to have stalked a staff member—resulted in defendant suing

that staff member for elder abuse because he felt the staff member was targeting him.

Defendant then requested that other staff members deal with him. The evaluator opined

the alleged stalking was evidence of defendant’s hostility toward women. The same

report concluded that, because defendant’s two marriages ended because of his arrests for

sex crimes, defendant was incapable of living with intimate partners for two continuous

years without encountering significant conflict. According to Alumbaugh, the conclusion

was incorrect because defendant’s first marriage lasted four years and his wife supported

him during his trial. Finally, from the fact defendant’s mother died at age 85, the report

inferred that defendant (who was 70 at the time) had “less than 15 years left at risk.”

Nonetheless, the report opined that defendant’s age and age-related illnesses did not

decrease the risk of defendant reoffending. Alumbaugh questioned the assumption that

defendant would live to age 85 as “optimistic,” and stated “the notion of an 85 year old

rapist does strain credulity.”

                                             7
       In a summary of her conclusions, Alumbaugh opined the reports from 2008 to

2012 were flawed because they merely repeated earlier evaluations of defendant that

were 10 years old and did not consider current literature. She found it surprising that the

reports attributed to defendant’s crimes that were never formally charged or adjudicated

and misrepresented defendant’s alleged escape attempts. Alumbaugh also criticized the

reports for making confident statements about defendant’s health and life expectancy

while ignoring defendant’s serious medical issues and his advanced age. And most

surprising to Alumbaugh was “the continual repetition of past descriptions and actions

with no acknowledgment of changes across the years or even acknowledgement of the

passage of time.”

       During a mental status examination conducted by Alumbaugh, defendant said his

brain is sometimes “‘foggy,’” but he denied having “disturbed thought content such as

paranoia, obsessions, phobias, ideas of reference, thought broadcasting, insertion, or

withdrawal.” Defendant also denied suffering from auditory or visual hallucinations.

Defendant admitted he was solely to blame for his predicament based on his bad choices.

When specifically asked why he raped women, defendant told Alumbaugh, “‘I have

figured out why I did that,’” but then declined to elaborate on his motivation. Defendant

told Alumbaugh the rapes had nothing to do with sexual abuse or anger against women.

He also denied raping more than two women in Colorado, and denied his sisters’

allegations of sexual abuse. Defendant told Alumbaugh that he is not an impulsive

person, and that he “is much calmer and in control at this time in his life.”

                                              8
       When discussing differential diagnosis, Alumbaugh addressed the diagnosis of

“Paraphilia, Not Otherwise Specified,” or “arousal to sex with non-consenting partners.”5

Alumbaugh reported the disorder is relatively rare and, according to articles she cited, is

misused and controversial. According to Alumbaugh, the category of “Not Otherwise

Specified” (NOS) found in the American Psychiatric Association’s Diagnostic and

Statistical Manual of Mental Disorders (DSM) is “for miscellaneous diagnoses that do

not fit any specific diagnostic category,” and is essentially “a residual category.” One

scholarly article cited by Alumbaugh stated that paraphilic coercive disorder was not

intended to be included as a diagnosis in the fourth edition of the DSM, and it was only

meant to cover very specific paraphilias such as necrophilia and coprophilia. Alumbaugh

discussed a number of other scholarly articles, which called into question the validity of

paraphilic coercive disorder as a proper diagnosis for most rapists.

       Alumbaugh also addressed defendant’s prior diagnosis with antisocial personal

disorder. She expressed some skepticism of this diagnosis because it appeared to be

based solely on defendant’s bad grades, truancy, cigarette smoking, and association with

juvenile delinquents. According to Alumbaugh, later evaluators tied this diagnosis to the

unsubstantiated allegations that defendant molested his younger sisters. Alumbaugh

       5 Alumbaugh used the label “Paraphilia NOS” to describe defendant’s diagnosis.
Because the “Not Otherwise Specified” portion of that label is vague, we follow People v.
Johnson (2015) 235 Cal.App.4th 80, 85, as modified April 7, 2015 [2015 Cal.App.Lexis
296] (Johnson), review den. July 8, 2015, S225960, and use the more descriptive term
“paraphilic coercive disorder.”



                                             9
opined that, even if defendant had molested his sisters, the diagnosis of antisocial

personality disorder would be invalid because “there is no research to support [the

conclusion] that an Antisocial Personality Disorder is associated with or predicts sexually

violent behavior.” Although she could not make a conclusive diagnosis, out of an

abundance of caution, Alumbaugh diagnosed defendant with antisocial disorder.

       Alumbaugh opined that defendant is not likely to engage in sexually violent

behavior in the future. According to Alumbaugh, risk assessment of sex offenders is

determined by using actuarial tables that focus on the offender’s sexual deviance, general

criminality, and dynamic or changeable factors associated with reoffense. However,

Alumbaugh opined that currently available actuarial tables have limited value.

Alumbaugh scored defendant as a four on the “Static-99R,”6 which gave him an

8.7 percent recidivist rate over five years. However, Alumbaugh reported that the

average age of the subject population on which the Static-99R was developed was well

below 50 years old, and she cited other actuarial tools that give even lower recidivist rates


       6  The Static-99 is a sex offender risk assessment tool that must be used to evaluate
adult males who are required to register as sex offenders (Pen. Code, § 290.04,
subd. (b)(1)), and it is commonly used in SVPA evaluations. (People v. Paniagua (2012)
209 Cal.App.4th 499, 504, fn. 5.) “The Static-99R is a revised version of the Static-99
that takes into account the age of a sexual offender based on statistics showing the risk of
sexual reoffense decreases as the offender ages.” (People v. McKee (2012) 207
Cal.App.4th 1325, 1341, fn. 4; see Hanson et al., The Field Validity of Static-99/R Sex
Offender Risk Assessment Tool in California (2014) 1 J. Threat Assessment & Mgmt.
102, 103, available at <http://www.cce.csus.edu/portal/admin/handouts/Hanson%20et
%20al%20(2014)%20California%20Static-99.pdf> [as of July 23, 2015].)



                                             10
for men 60 and older. Based on research showing reduced recidivism rates in older men,

and defendant’s physical health, Alumbaugh opined that defendant’s recidivist rate was

“so low it is almost nonexistent.”

       The prosecution did not file a written opposition to defendant’s petition. At the

hearing, defendant’s attorney argued the changes in actuarial research outlined in

Alumbaugh’s report made a sufficient threshold showing to avoid dismissal for

frivolousness. The prosecutor argued that for defendant to obtain a full hearing, the trial

court was required to find that the petition was not frivolous, and that defendant made a

showing of changed circumstances. According to the prosecutor, Alumbaugh’s report

alleged no facts to demonstrate changed circumstances. For instance, the prosecutor

pointed to the fact that defendant refused to participate in sex offender treatment as

evidence that his circumstances had not changed. In response, defendant’s attorney

argued that a showing of changed circumstances was not always necessary, and that the

proper test was whether going forward with an evidentiary hearing would be a frivolous

waste of time. In any event, counsel argued Alumbaugh’s report did demonstrate

changed circumstances based on defendant’s age and the research calling into question

the actuarial tables previously used to determine defendant’s risk of reoffending.

       In its oral ruling, the trial court acknowledged that defendant was 70 years old and

that he was a prostate cancer survivor. The court then addressed Alumbaugh’s opinion

that paraphilic coercive disorder is not a valid diagnosis for sexually violent predators.

“The Court’s response at that is that the jury did find beyond a reasonable doubt having

                                             11
heard experts on both sides of this issue, proof beyond a reasonable doubt that the

defendant did, in fact, have a diagnosed mental disorder that made him a danger to the

health and safety of others and that it was likely that he would engage in serious violent

criminal behavior.” Based on the severity of defendant’s multiple rapes over two

decades, the fact that defendant did not seek treatment while committed, and that

defendant reportedly had intense negative feelings against women, the court concluded

defendant remained a danger to the community. Therefore, the court concluded that “to

proceed farther with the petition would be frivolous and without merit,” and denied the

petition. Defendant appealed.

                                             II.

                                      DISCUSSION

       A. The Trial Court Abused Its Discretion by Denying As Frivolous Defendant’s

Petition for Unconditional Release; on Remand, the Court Shall Conduct an Evidentiary

Hearing on Defendant’s Request

              1. Applicable Law and Standard of Review

       The SVPA provides for the civil commitment for an indefinite period of persons

who are found beyond a reasonable doubt to be an SVP because they have been

convicted of a sexually violent offense against one or more victims and they have been

diagnosed with a mental disorder that renders them a danger to public health and safety

because they are likely to reoffend and commit additional sexually violent acts.

(§§ 6600, subd. (a)(1), 6603, subd. (d), 6604.) The SVPA is “‘designed to ensure that the

                                            12
committed person does not “remain confined any longer than he suffers from a mental

abnormality rendering him unable to control his dangerousness.”’” (People v. Cheek

(2001) 25 Cal.4th 894, 898, quoting Hubbart v. Superior Court (1999) 19 Cal.4th 1138,

1177 (Hubbart).) Among other rights afforded to an SVP at the time defendant filed his

petition, section 6608 provided that an SVP could petition for conditional release or

unconditional discharge without the recommendation or concurrence of the director of

the Department.7 (Former § 6608, subd. (a); Stats. 2012, ch. 24, § 146.)

       “Upon receipt of . . . a petition [for unconditional discharge] without the

concurrence of the director, the court ‘shall endeavor whenever possible to review the

petition and determine if it is based upon frivolous grounds, and, if so, shall deny the

petition without a hearing.’ ([Former] § 6608, subd. (a).) If the petition is not found to

be frivolous, the court shall hold a hearing to determine whether the person committed

would be 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 due to his or her diagnosed mental disorder.

       7   Section 6608 was amended in 2013 to allow a committed person to petition in
the first instance only for conditional release if the Department does not authorize the
petition. (§ 6608, subd. (a), as amended by Stats. 2013, ch. 182, § 3.) After at least one
year on conditional release, the committed person may then petition for unconditional
discharge. (§ 6608, former subd. (k), Stats. 2013, ch. 182, § 3, now subd. (m), as
amended by Stats. 2014, ch. 877, § 1.) Unconditional discharge is still available in the
first instance with the recommendation of the Director of State Hospitals. (§§ 6604.9,
subds. (b), (d), 6605, subd. (a)(1).) The People do not contend that defendant’s petition
should be analyzed under the current version of section 6608, or that he may no longer
request unconditional discharge without the concurrence or recommendation of the
director.



                                              13
([Former] § 6608, subd. (d).) At the hearing, the person petitioning for release has the

burden of proof by a preponderance of the evidence. (§ 6608, subd. (i); [citation].) The

court is required to hold a hearing only if the petition is not based on frivolous grounds.

[Citation.]” (People v. Reynolds (2010) 181 Cal.App.4th 1402, 1406-1407 (Reynolds)

[Fourth Dist., Div. Two].)

       “The apparent rationale for the court’s threshold determination of frivolousness is

‘to deter multiple unsubstantiated requests and to reduce the administrative burden that

might otherwise occur . . . .’” (People v. Olsen (2014) 229 Cal.App.4th 981, 993 (Olsen),

quoting Hubbart, supra, 19 Cal.4th at p. 1148, fn. 14.) However, the SVPA does not

include a definition of “frivolous” for purposes of section 6608, subdivision (a). (Olsen,

at p. 993.) In People v. Collins (2003) 110 Cal.App.4th 340, 346 (Collins), the appellate

court adopted the definition of “frivolous” from the Code of Civil Procedure. “[W]e see

no reason why the Legislature’s definition of the term used in the Code of Civil

Procedure should not apply to SVPA civil proceedings. Code of Civil Procedure section

128.5, subdivision (b)(2) defines ‘frivolous’ to mean ‘(A) totally and completely without

merit or (B) for the sole purpose of harassing an opposing party.’ Whether action taken

by a party or party’s attorney is frivolous under that statute ‘“is governed by an objective

standard: Any reasonable attorney would agree it is totally and completely without

merit.”’ [Citation.]” (Collins, at p. 349, fn. omitted; accord, Reynolds, supra, 181

Cal.App.4th at p. 1411.)




                                             14
       The California Supreme Court adopted essentially the same definition of

frivolousness for section 6608, subdivision (a), relying on the test for frivolous appeals.

“A frivolous petition is one that ‘indisputably has no merit.’” (People v. McKee (2010)

47 Cal.4th 1172, 1192 , quoting In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650;

see Collins, supra, 110 Cal.App.4th at p. 348 [definition of “frivolous” under the Code of

Civil Procedure “is essentially the standard used by the Flaherty court”].) Under that

standard, a petition is not frivolous if it makes a colorable showing of entitlement to

relief. (Cf. Flaherty, at p. 648; People v. Bryant (2014) 60 Cal.4th 335, 363.)

       In Reynolds, this court interpreted former section 6608 to require an SVP seeking

unconditional discharge “to allege facts in his petition that will show he is not likely to

engage in sexually violent criminal behavior due to his diagnosed mental disorder

without supervision and treatment in the community . . . .” (Reynolds, supra, 181




                                             15
Cal.App.4th at p. 1407.)8 We also held that, on appeal, our task was to “review the facial

adequacy of the petition” and determine whether the trial court’s decision constituted an

abuse of discretion. (Id. at p. 1407-1408.) We must “review the record to determine if,

considering all the circumstances before it, the trial court exceeded the bounds of reason.

Where there is a basis for the trial court’s ruling and it is supported by the evidence, we

will not substitute our opinion for that of the trial court. [Citation.]” (Id. at p. 1408.)

Conversely, “[t]he trial court has abused its discretion if appellate review shows that the

petition is not based upon frivolous grounds. [Citations.]” (Olsen, supra, 229

Cal.App.4th at p. 994.)

       8   At oral argument, we asked the parties to address whether a trial court reviewing
a petition under section 6608 may make a determination of credibility. We conclude that,
when conducting its threshold review for frivolousness, the trial court may make a
limited determination of credibility and summarily deny the petition if, on the face of the
petition and/or supporting evidence and any reports filed in opposition, the court
determines the petition is so unworthy of belief that no reasonable trier of fact would
credit it. In such a case, conducting the hearing would needlessly impose on the trial
court the administrative burden the frivolousness review is meant to avoid. (Olsen,
supra, 229 Cal.App.4th at p. 993.)
        However, if the petition and supporting evidence passes such a minimum showing
of credibility and otherwise makes a colorable showing of entitlement to relief, the trial
court may inquire no further into the credibility of the defendant’s proposed witnesses.
Further determination of credibility must be reserved for the evidentiary hearing
contemplated by section 6608, subdivision (g) (former § 6608, subd. (d)). (Cf. Olsen,
supra, 229 Cal.App.4th at pp. 998-999 [during initial review for frivolousness, trial court
may not inquire into factual question of whether defendant qualifies for release].) If the
trial court denies the petition after conducting a full evidentiary hearing, the standard of
review on appeal is for substantial evidence (Reynolds, supra, 181 Cal.App.4th at
p. 1407, citing People v. Rasmuson (2006) 145 Cal.App.4th 1487, 1503 (Rasmuson)), and
the reviewing court will resolve questions of credibility in favor of the verdict.
(Rasmuson, at p. 1507.)



                                              16
              2. Analysis

                     a. Validity of Paraphilic Coercive Disorder As a Diagnosis

       In its oral ruling, the trial court acknowledged that Alumbaugh’s report cited

“numerous experts to opine that [paraphilic coercive disorder is] not a valid or legitimate

mental disorder for sexually violent predators.” However, the trial court rejected that

basis for defendant’s petition based solely on the jury’s verdict in defendant’s

commitment trial. Because the jury in defendant’s commitment trial did not necessarily

decide the validity of defendant’s diagnosis, and defendant’s petition presented a

nonfrivolous basis on which the court might conclude defendant is no longer an SVP, we

conclude the trial court erred.

       The validity of a diagnosis of paraphilic coercive disorder has been the subject of

scholarly debate. (People v. Smith (2013) 216 Cal.App.4th 947, 952 (Smith), quoting

Frances & First, Paraphilia NOS, Nonsconsent: Not Ready for the Courtroom (2011)

39 J. Psychiatry & L. 555; State v. Donald DD. (N.Y. 2014) 21 N.E.3d 239, 247 & fn. 6;

McGee v. Bartow (7th Cir. 2010) 593 F.3d 556, 579-580 & fns. 14-15; Bearden, The

Reality of the DSM in the Legal Arena: A Proposition for Curtailing Undesired

Consequences of an Imperfect Tool (2012) 13 Hous. J. Health L. & Pol’y 79, 96-97.)

Much of the debate centered on whether paraphilic coercive disorder warranted inclusion

in the fifth edition of the DSM, in part because of the widespread use (and alleged

misuse) in SVP commitment proceedings of disorders recognized by the DSM. (E.g.,

Knight, Is a Diagnosis Category for Paraphilic Coercive Disorder Defensible? (2010)

                                             17
39 Arch. Sex Behav. 419; Stern, Paraphilic Coercive Disorder in the DSM: The Right

Diagnosis for the Right Reasons (2010) 39 Arch. Sex Behav. 1443; Wollert, Paraphilic

Coercive Disorder Does Not Belong in the DSM-5 for Statistical, Historical, Conceptual,

and Practical Reasons (2011) 40 Arch. Sex. Behav. 1097.)

       In response to that debate, the editors of the fifth edition of the DSM made

significant changes to the criteria for diagnosing paraphilic disorders to more clearly

distinguish between “atypical human [sexual] behavior and behavior that causes mental

distress to a person or makes the person a serious threat to the psychological and physical

well-being of other individuals.” (Am. Psychiatric Assn., Paraphilic Disorders (2013)

p. 1 [fact sheet].)9 “The fifth edition’s description of paraphilia does not reference

‘nonconsenting persons’ as did the fourth edition’s, and the fifth edition does not

otherwise allude to paraphilic coercive disorder.” (Johnson, supra, 235 Cal.App.4th at

p. 86, fn. omitted.) However, that the DSM no longer recognizes defendant’s diagnosis is

not dispositive in SVP proceedings. “The federal constitution does not require an SVP’s

commitment to be based on a disorder that is uniformly recognized by the mental health

community.” (Id. at p. 89.) Nor does the SVPA. (Id. at p. 91 [“The SVPA does not refer

to the DSM, much less require an SVP’s mental disorder be listed in it”].)




       9
       Available at <http://www.dsm5.org/Documents/Paraphilic%20Disorders%
20Fact%20Sheet.pdf> (as of July 23, 2015).



                                             18
       In Kansas v. Hendricks (1997) 521 U.S. 346, the court upheld the Kansas SVPA

against due process and ex post facto challenges. The defendant in that case argued that a

finding of “mental illness” was a constitutional prerequisite for civil commitment, and

that the Kansas statute was constitutionally infirm because it permitted commitment

based on a finding of “mental abnormality,” “a term coined by the Kansas Legislature,

rather than by the psychiatric community.” (Id. at pp. 358-359.) The high court rejected

the notion that the term “‘mental illness,’” as used in its prior cases, had “any talismanic

significance.” (Id. at p. 359.) “Not only do ‘psychiatrists disagree widely and frequently

on what constitutes mental illness,’ [citation], but the Court itself has used a variety of

expressions to describe the mental condition of those properly subject to civil

confinement. [Citations.]” (Ibid.) The court noted that it had “never required state

legislatures to adopt any particular nomenclature in drafting civil commitment statutes,”

and instead “traditionally left to legislators the task of defining terms of a medical nature

that have legal significance. [Citation.]” (Ibid.) Finally, the court recognized that

“[l]egal definitions, . . . which must ‘take into account such issues as individual

responsibility . . . and competency,’ need not mirror those advanced by the medical

profession. [Citation.]” (Ibid.; see Hubbart, supra, 19 Cal.4th at p. 1156 [“because of

their specialized purpose, civil commitment statutes may not express mental health

concepts in terms identical to those used by the psychiatric community”]. )

       Nonetheless, when reviewing a petition for release under section 6608,

subdivision (a), a court should not ignore the controversial nature of an SVP’s diagnosis.

                                              19
“[T]he existence of a psychiatric debate about [the] validity [of a diagnosis of paraphilic

coercive disorder] ‘is a relevant issue in commitment proceedings and a proper

consideration for the factfinder in weighing the evidence that the defendant has the

“mental disorder” required by statute.’” (Brown v. Watters (7th Cir. 2010) 599 F.3d 602,

612; accord, State v. Shannon S. (N.Y. 2012) 980 N.E.2d 510, 514 [“any issue pertaining

to the reliability of paraphilia NOS as a predicate condition for a finding of mental

abnormality has been viewed as a factor relevant to the weight to be attributed to the

diagnosis, an issue properly reserved for resolution by the factfinder”].) In other words, a

colorable argument that a civil committee’s diagnosis is invalid should not be rejected

when making a threshold determination of frivolousness under section 6608, subdivision

(a), and it should be left for the trier of fact to determine after hearing expert testimony.

       As noted, in its oral ruling, the trial court rejected defendant’s argument about the

validity of paraphilic coercive disorder based solely on the jury’s verdict in defendant’s

commitment trial: “[T]he jury did find by proof beyond a reasonable doubt having heard

experts on both sides of this issue, proof beyond a reasonable doubt that the defendant

did, in fact, have a diagnosed mental disorder that made him a danger to the health and

safety of others and that it was likely that he would engage in serious violent criminal

behavior.” Had the jury in defendant’s commitment trial actually heard conflicting

evidence on the validity of paraphilic coercive disorder, we might agree with the trial

court’s reasoning. The SVP in Johnson was also diagnosed with paraphilic coercive

disorder. (Johnson, supra, 235 Cal.App.4th at p. 85.) At his commitment trial, the

                                              20
state’s experts testified, without objection, that Johnson met the definition of “paraphilic

coercive disorder” because he was sexually aroused or gratified by having sex with

nonconsenting victims. (Ibid.) One of Johnson’s experts testified that paraphilic

coercive disorder is a valid but very rare disorder that did not apply to Johnson, and a

second expert testified that the diagnosis simply does not exist, and if it does exist,

Johnson did not satisfy the criteria for the diagnosis. (Id. at p. 86.) A unanimous jury

found beyond a reasonable doubt that Johnson was an SVP. (Id. at p. 87.)

       In petitions for writ of habeas corpus based on new evidence, Johnson argued that

the fifth edition of the DSM—published after his trial—no longer recognized paraphilic

coercive disorder, so it was no longer a valid mental disorder on which an SVP

commitment may be based. (Johnson, supra, 235 Cal.App.4th at pp. 87-88.) The

appellate court disagreed. “Even if the fifth edition [of the DSM] reflects a growing

skepticism in the psychiatric community about paraphilic coercive disorder, we cannot

conclude that a commitment based on that disorder violates due process, thereby

completely undermining the state’s case against Johnson.” (Id. at pp. 90-91.) Moreover,

the court concluded the scholarly debate about the validity of paraphilic coercive disorder

did not undermine the state’s expert testimony about the disorder. (Id. at p. 91.)

Important for our purposes, the appellate court noted the main thrust of Johnson’s

argument was actually presented to the jury and rejected. “We think it worth reiterating

that the validity of paraphilic coercive disorder was fully litigated at Johnson’s trial.

Johnson did not object to the introduction of the state’s experts’ testimony on the subject,

                                              21
and he was able to cross-examine those experts and present the testimony of his own

experts. [Citation.]” (Id. at pp. 91-92, fn. omitted.) Therefore, even if Johnson had been

able to introduce evidence that the fifth edition of the DSM no longer recognizes

paraphilic coercive disorder, the result would have been the same. “Regardless of the

publication of the DSM’s fifth edition, the record before us includes substantial evidence

that paraphilic coercive disorder is a legitimate diagnosis and that Johnson suffers from

it.” (Id. at p. 92.)

       Unlike in Johnson, the record before us does not demonstrate that the validity of

paraphilic coercive disorder was actually litigated in defendant’s commitment trial. The

prosecution introduced no evidence or court records in opposition to defendant’s petition,

and there is no indication that the trial court reviewed the transcripts from defendant’s

commitment trial, which are not before this court either. At most, the minutes indicate

the trial judge considered the arguments of counsel and Alumbaugh’s report. We find

nothing in the record to support the trial court’s assertion that the jury in defendant’s

commitment trial “heard experts on both sides of this issue.” All we can infer from the

fact of the jury’s verdict is that it found beyond a reasonable doubt that defendant

suffered from a mental disorder and satisfied the criteria for commitment as an SVP. We

therefore decline to assume, as did the trial court, that the jury actually heard evidence in

support of and against the scientific validity of a diagnosis of paraphilic coercive

disorder, and that the jury concluded it was a valid diagnosis.




                                              22
       In her report, Alumbaugh opined that paraphilic coercive disorder is a

controversial and problematic diagnosis for convicted rapists, and she cited to scholarly

articles from experts who raise questions about the validity of that diagnosis. Because

defendant’s petition was supported by evidence that presents a colorable and

nonfrivolous question about the validity of his diagnosis of paraphilic coercive disorder,

we conclude the trial court erred by finding that argument did not support defendant’s

request for an evidentiary hearing. We do not decide whether defendant’s argument is

meritorious. That determination is left for the trier of fact after actually hearing expert

testimony on the issue.

                     b. Passage of Time, Aging, and Health As Factors in Risk of Reoffending

       Although the trial court acknowledged defendant’s advanced age and his survival of

prostate cancer, the court found defendant continued to pose a danger based on his past

crimes, the fact he refused to participate in treatment, and his supposed intense negative

feelings toward women. The court appears to have dismissed out of hand the possibility that

evidence of the passage of time, defendant’s advanced age, and his medical condition might

demonstrate that defendant is not currently dangerous, stating, “the Court feels to proceed

farther with the petition would be frivolous and without merit.” The court erred.

       The “sheer passage of time” since an SVP’s diagnosis and commitment may be a

relevant consideration in proceedings under section 6608 because the SVPA requires a

current diagnosis of a mental disorder and a finding that the committee is currently

dangerous because he is likely to engage in sexually violent conduct in the future.

                                              23
(Litmon v. Superior Court (People) (2004) 123 Cal.App.4th 1156, 1169; Butler v.

Superior Court (People) (2000) 78 Cal.App.4th 1171, 1180; People v. Hedge (1999) 72

Cal.App.4th 1466, 1476.) “Section 6605, subdivision (a), requires that each person

actually committed as an SVP undergo a ‘current examination of his or her mental

condition . . . at least once every year.’ (Italics added.) This suggests the Legislature’s

recognition that diagnoses can change in light of treatment, severity of mental disorder,

changed circumstances, and the passage of time.” (Albertson v. Superior Court (People)

(2001) 25 Cal.4th 796, 803, italics added.)

       In a related fashion, the advanced age and onset of serious medical conditions of

an SVP are potentially relevant factors in determining whether a petition for

unconditional release is frivolous, because various studies have concluded that recidivism

rates decrease significantly among older male sex offenders. (See, e.g., Doe v. Sex

Offender Registry Board (Mass. App. Ct. 2014) 4 N.E.3d 1264, 1270-1272 & fns. 7-8,

10-14 [citing scholarly literature on aging and sex offenders].)

       In Reynolds, the defendant’s petition for unconditional release alleged four years

had passed since his original commitment, making it less likely he would reoffend.

(Reynolds, supra, 181 Cal.App.4th at p. 1406.) Although this court recognized the

passage of time was defendant’s “strongest contention,” we found the defendant’s mere

allegation was insufficient. (Id. at p. 1410.) “[I]nstead of attaching the opinion of an

evaluator indicating that the passage of time had reduced his potential risk, or citing

treatises or journals to support his position that recent research points to the positive

                                              24
effects of aging in reducing risk of reoffending, defendant merely refers to recent

transcripts of SVP proceedings which are not before us.” (Ibid.) We concluded the

petition was frivolous, that defendant’s attorney did not render ineffective assistance of

counsel by conceding the petition did not allege changed circumstances, and affirmed the

order denying it without conducting an evidentiary hearing. (Id. at pp. 1411-1412.)

       In contrast, Alumbaugh cited research indicating that the passage of time and

aging are highly relevant in determining whether an SVP continues to pose a risk to

public safety. For example, Alumbaugh reported that an evaluation prepared in 2003

described defendant as “highly sociopathic” and gave defendant a PCL-R score of 26, but

that report made no mention of the fact that a score of 26 on the PCL-R is below the cut-

off of 30 for the label psychopath and made no mention of defendant’s advancing age.

The same PCL-R score and description of defendant was repeated in reports prepared

between 2008 and 2012. According to Alumbaugh, the PCL-R manual itself indicated

that a PCL-R score is irrelevant in predicting future violent behavior of older men, and

that after age 40 to 45 even a high score is not an accurate predictor. Alumbaugh also

cited published studies which reported age-related reductions in psychopathy, including

one report which concluded that after age 45 “there were few differences between

psychopathic and non-psychopathic offenders.”

       Moreover, when discussing defendant’s score of 4 on the Static-99R, Alumbaugh

opined that defendant’s score was not an accurate predictor of his future dangerousness

because the studies of recidivism rates in sex offenders, on which the Static-99R is based,

                                             25
were comprised of men with a median age of 39. Alumbaugh also reported that “the

developers of the Static-99R have stated the recidivism rates do not apply to individuals

over the age of 70.” Alumbaugh cited various studies and statistics from the Federal

Bureau of Investigations indicating that rates of criminality in general drop significantly

in older populations, and that rape in particular is an extremely rare crime for men over

the age of 45.

       Finally, Alumbaugh reported that defendant suffered from serious medical

conditions which, according to Alumbaugh, significantly reduced the risk of his

reoffending. For instance, Alumbaugh reported that defendant had a declined sex drive

as early as age 40, and was left impotent after undergoing radiation therapy for prostate

cancer. Defendant’s medical charts also indicated that defendant had one testicle

surgically removed. Defendant also suffered from heart disease and had two stents

implanted in his coronary blood vessels, and he was provisionally diagnosed with

multiple sclerosis. Alumbaugh opined that biological issues and age-related illnesses

contribute to a decline in recidivism among older sex offenders, and she cited a study on

reduced sexual arousal among older sex offenders and another study on the prevalence

and severity of erectile dysfunction among men with diabetes and heart disease.

Alumbaugh opined that defendant’s recidivist rate was “so low that it is almost

nonexistent.”

       The evidence cited by Alumbaugh and her expert opinion, supported by citations

to published studies, made a colorable showing that defendant’s advanced age and

                                             26
medical condition significantly reduced the likelihood he would reengage in sexually

violent behavior, such that defendant was entitled to an evidentiary hearing. Again, we

do not determine whether defendant’s showing would succeed during a full evidentiary

hearing, at which time the prosecution may introduce competing expert testimony, and

cross-examine defendant’s witnesses.

                      c. Refusal to Participate in Sex Offender Treatment

         During oral argument before this court, the People contended defendant’s refusal

to participate in sex offender treatment is dispositive and, based solely on that factor, the

People argue the trial court did not abuse its discretion by denying the petition as

frivolous. Our dissenting colleague agrees with the People, and concludes, “[w]ithout his

participation in treatment, defendant’s age and worsening health do not constitute a

change in his condition.” (People v. LaBlanc, E059589, dis. opn. of Codrington, J., at

p. 6.)

         Although published decisions have implicitly recognized that participation in

treatment is an important factor when determining whether an SVP is no longer

dangerous (e.g., Smith, supra, 216 Cal.App.4th at p. 953; Rasmuson, supra, 145

Cal.App.4th at pp. 1508-1509; Collins, supra, 110 Cal.App.4th at pp. 351-352), no case

has ever held that treatment is dispositive or that an SVP may never show changed

circumstances under section 6608 without participating in treatment. Defendant’s refusal

to participate in sex offender treatment is certainly evidence from which a trier of fact

may conclude defendant continues to pose a danger and is therefore not eligible for

                                             27
unconditional discharge. But the ultimate determination of whether an SVP continues to

suffer from a mental disorder that renders him a danger to the public is reserved for the

evidentiary hearing under section 6608, subdivision (g), and is not to be conflated with

the threshold frivolousness determination under subdivision (a). (Olsen, supra, 229

Cal.App.4th at pp. 998-999.) While we share our dissenting colleague’s concern with

defendant’s refusal to participate in sex offender treatment, we cannot say that

defendant’s petition is so utterly lacking in merit that no reasonable attorney would

conclude it makes a colorable showing of entitlement to relief. (Collins, supra, 110

Cal.App.4th at p. 349; Reynolds, supra, 181 Cal.App.4th at p. 1411.)

                     d. Conclusion

       On the facts presented in this record, we conclude defendant made a colorable,

nonfrivolous showing that his diagnosis of paraphilic coercive disorder is not

scientifically valid, and that his advancing age and medical condition make it unlikely

that he will reoffend and commit sexually violent crimes if he is released. Taken

together, these allegations “pass muster” and entitle defendant to an evidentiary hearing

on his request for unconditional release. (Smith, supra, 216 Cal.App.4th at p. 953.)

Therefore, the trial court abused its discretion by finding defendant’s petition frivolous.

       B. The Record Contains No Evidence That Judge Malone Was Biased Against

Defendant or That the Interests of Justice Require His Disqualification on Remand

       Defendant argues that, if we reverse the order denying his petition, we should

remand the matter for reassignment to a different judge, pursuant to Code of Civil

                                             28
Procedure section 170.1, subdivision (c). Defendant contends Judge Malone applied the

wrong legal standards and there is an appearance that he is biased against defendant and

could not fairly conduct an evidentiary hearing on the petition. We disagree, and decline

to disqualify Judge Malone.

              1. Applicable Law

       Code of Civil Procedure section 170.1, subdivision (c), provides: “At the request

of a party or on its own motion an appellate court shall consider whether in the interests

of justice it should direct that further proceedings be heard before a trial judge other than

the judge whose judgment or order was reviewed by the appellate court.” An appellate

court must exercise its power to disqualify a judge under that statute sparingly, and only

when the interests of justice require it. (Peracchi v. Superior Court (People) (2003) 30

Cal.4th 1245, 1256; People v. Landau (2011) 199 Cal.App.4th 31, 40; Hernandez v.

Superior Court (2003) 112 Cal.App.4th 285, 303.)

       An appellate court need not find actual bias in order to invoke Code of Civil

Procedure section 170.1, subdivision (c). (In re Wagner (2005) 127 Cal.App.4th 138,

148; Ng v. Superior Court (People) (1997) 52 Cal.App.4th 1010, 1024, disapproved on

another ground in Curle v. Superior Court (2001) 24 Cal.4th 1057, 1069, fn. 6.) The

court may order disqualification when necessary to dispel the appearance of bias, for

example, when the record shows the trial judge became embroiled or personally invested

in the outcome of the proceedings. (Wagner, at pp. 147-149 [remanding with instructions

that, if the petitioner so requested, the presiding judge of the superior court must reassign

                                             29
the case]; People v. Dutra (2006) 145 Cal.App.4th 1359, 1368 [remanding case to

another trial judge “to forestall any claim of undue embroilment”].)

       Mere judicial error does not establish bias and normally is not a proper ground for

disqualification. (People v. Superior Court (Dorsey) (1996) 50 Cal.App.4th 1216, 1230

[Fourth Dist., Div. Two]; see, e.g., In re Marriage of Walker (2012) 203 Cal.App.4th

137, 153 [error in characterization of husband’s disability allowance did not create

appearance of bias]; People v. Gulbrandsen (1989) 209 Cal.App.3d 1547, 1562 [mere

sentencing error did not “reflect a lack of objectivity implicating the interests of

justice”].) Proper grounds for disqualification under Code of Civil Procedure section

170.1, subdivision (c), “include ‘where a reasonable person might doubt whether the trial

judge was impartial [citation], or where the court’s rulings suggest the “whimsical

disregard” of a statutory scheme. [Citation.]’” (Alhusainy v. Superior Court (People)

(2006) 143 Cal.App.4th 385, 394, quoting Hernandez v. Superior Court, supra, 112

Cal.App.4th at p. 303.)

              2. Analysis

       Defendant argues Judge Malone denied his petition “without any apparent

understanding of the meaning of the term frivolous or of the relevant law.” Defendant’s

reliance on In re Z.K. (2011) 201 Cal.App.4th 51 is misplaced. There, the appellate court

reversed an order terminating a mother’s parental rights because the juvenile court failed

to comply with basic statutory requirements designed to protect the mother’s due process

rights. (Id. at p. 72.) The appellate court concluded that, “[u]nder the circumstances of

                                              30
this case, . . . where the juvenile court terminated mother’s parental rights without making

the requisite finding of detriment and without even understanding that such a finding was

necessary—despite clear case law to the contrary,” it was “in the interests of justice for a

different judge to hear the proceeding on remand.” (Ibid., italics added.)

       In contrast to In re Z.K., the record indicates Judge Malone understood that his

task was to determine whether defendant’s petition was frivolous or merited a full

evidentiary hearing, and that a petition is frivolous if it lacks any merit. Although we

conclude Judge Malone erred by denying the petition as frivolous, his understanding of

the standard of frivolousness comported to the definitions given to section 6608,

subdivision (a). (People v. McKee, supra, 47 Cal.4th at p. 1192; Collins, supra, 110

Cal.App.4th at p. 349.)

       Nor are we convinced that Judge Malone’s error would cause a reasonable person

to believe he had already made up his mind and would not act fairly on remand. In his

reply brief, defendant cites People v. Jones (2010) 186 Cal.App.4th 216. There, the

appellate court held: (1) the defendant’s appointed attorney rendered prejudicial

ineffective assistance of counsel by not conducting sufficient investigation and not

eliciting the testimony of two witnesses at a 2006 hearing on the defendant’s motion to

suppress evidence; and (2) the trial court erred by not finding such ineffective assistance

of counsel at a hearing conducted in 2009 following remand from a prior appeal. (Id. at

p. 244.) The appellate court remanded the case to the presiding judge of the superior

court to reassign the case to another judge to conduct a new suppression hearing. (Id. at

                                             31
p. 245.) In a footnote, the majority explained that, although it did not “doubt the

objectivity and fairness of the judge heretofore assigned this case,” it concluded the

judges’ “statement that the evidence produced by Jones at the 2009 hearing would not

induce him to change his 2006 denial of Jones’s initial suppression motion might cause a

reasonable person aware of the facts to doubt his ability to be impartial at the rehearing of

the suppression motion.” (Ibid., fn. 13.)

       Unlike in Jones, Judge Malone made no comments on the record that would lead a

reasonable person to conclude he was biased or that he had already made up his mind,

and that he could not come to a different conclusion after conducting a full evidentiary

hearing. We find nothing in the record that demonstrates actual bias or the appearance of

bias, so defendant’s request to disqualify Judge Malone is denied.

       During oral argument before this court, defendant’s attorney appeared to concede

that his request for disqualification pursuant to Code of Civil Procedure section 170.1,

subdivision (c), was premature, and that the appropriate means of addressing his concerns

would be to request disqualification directly in the trial court. We express no opinion on

the merits of counsel’s new position.




                                             32
                                           III.

                                     DISPOSITION

      The order denying defendant’s petition is reversed. On remand, the trial court

shall conduct an evidentiary hearing on the petition. Defendant’s request to disqualify

Judge Malone is denied.

      CERTIFIED FOR PUBLICATION



                                                              McKINSTER
                                                                                          J.
I concur:



RAMIREZ
                       P. J.




                                            33
[People v. LaBlanc, E059589]

       CODRINGTON, J., Dissenting.

       The majority opinion concludes the trial court’s dismissal of defendant’s petition

as frivolous should be reversed because defendant met his burden of proof by a

preponderance of evidence to show the petition was not utterly meritless. Based on

defendant’s refusal to submit to mental health treatment, I reject the majority holding that

the trial court abused its discretion. Accordingly, I respectfully dissent.

       Defendant Francis John LaBlanc, who turns 73 in August 2015, was convicted of

two rapes in Colorado, committed in 1962 and 1964. In 1964, he admitted to having

raped 12 or 15 women in Colorado although he did not know exactly how many. He was

known as the “Phantom Rapist.”

       Defendant has been in prison or under civil commitment for 50 years since 1965,

except for a few months in 1985 when he committed two more rapes in San Bernardino

County soon after his release from a Colorado prison. In all four cases, he entered the

victims’ homes and restrained them. One victim had employed him to clean her sofa.

       Beginning in 1996, defendant has been held as a sexually violent predator (SVP)

in a state hospital with additional stints in prison. He once attempted to escape and was

charged with possession of a simulated weapon and destroying public property. During

nearly 20 years of commitment as an SVP, defendant has refused to receive mental health

treatment. Although Dr. Alumbaugh observed defendant’s behavior had improved

beginning in 2006, she also described him as contentious, difficult, angry, resentful,


                                              1
fractious, litigious, troublesome, and vindictive. He was negative and adversarial with a

female psychiatrist. He was also charged with stalking female staff and possessing

contraband.

       In January 2013, defendant filed a petition for unconditional release on the

grounds that he no longer meets the criteria for an SVP and his condition has changed.

(Welf. & Inst. Code, § 6608.) The trial court dismissed the petition as frivolous, citing

the jury’s finding beyond a reasonable doubt that defendant had “a diagnosed mental

disorder that made him a danger to the health and safety of others and that it was likely

that he would engage in serious violent criminal behavior.”

       The meaning of frivolous is not defined by statute. However, the cases agree that

the meaning of frivolous is governed by an objective standard: a reasonable attorney

would agree a petition is completely without merit. (Code Civ. Proc., § 128.5; People v.

Collins (2003) 110 Cal.App.4th 340, 349 (Collins); People v. McKee (2010) 47 Cal.4th

1172, 1192, citing In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)

       In Collins, the appellate court reversed the trial court’s dismissal of a petition as

frivolous when the defendant supported his petition with evidence of three types: he had

health problems; he was participating in sex offender programs and treatment, including

undergoing chemical castration; and a psychiatric report stated defendant was not likely

to reoffend.




                                              2
       Subsequently, this court affirmed the trial court’s dismissal of a petition as

frivolous in People v. Reynolds (2010) 181 Cal.App.4th 1402, 1405 (Fourth Dist.,

Div. Two). In Reynolds, defendant’s counsel ultimately conceded there were no

changed conditions supporting the petition. (Id. at pp. 1406-1409.) Justice Ramirez

commented that “[d]efendant’s strongest contention was that four years had passed

since his initial commitment” (id. at p. 1410) but “[t]he passage of time and the previous

availability of a single favorable witness in 2007 do not establish even a prima facie basis

for relief, such as would entitle him to a hearing.” (Id. at pp. 1410-1411.)

       In People v. Smith (2013) 216 Cal.App.4th 947, 953 (Smith), the appellate court

held that there was no substantial evidence that a defendant’s petition was frivolous, as

conceded by the People, based on several factors: first, defendant “had made ‘significant

progress’ in his treatment and that, in some respects, matters outside his control

prevented him from progressing to the required level for release; [next, factors that]

undermine the validity of the diagnosis [of paraphilia “Not Otherwise Specified” (NOS)]

that led to his commitment; and, if believed, they indicate that this diagnosis, which

indicates he is a danger to others, no longer applies. There is no substantial evidence to

support a finding that appellant’s petition is totally and completely without merit or for

the purpose of harassment.” (Fn. omitted.)

       Notably, the defendants in Collins and Smith, unlike defendant LaBlanc, were

actively engaged in medical and psychological treatment to reduce their risk of



                                              3
reoffending. Similarly, in the recent case of People v. Olsen (2014) 229 Cal.App.4th 981,

989-990 (Olsen), defendant, a transgendered male who committed six rapes between

1972 and 1980, based her petition for release on a psychologist’s opinion that her

participation in treatment had eliminated any risk of reoffending: “‘Her risk to the

community is low at this time. She knows what she needs to do to maintain her sobriety

and her relapse prevention plan is very realistic, as well as grounded to continue

outpatient therapy and use those around [her] who are aware of her past behaviors to keep

her in line by her sharing what her needs are appropriately. . . . [¶] . . . [I]t is my

professional opinion, based on data, that [defendant] does not meet criteria as a sexually

violent predator as described in [Welfare and Institutions Code] Section 6600 . . . .’” In

Olsen, the appellate court remanded the case for the trial court to apply the appropriate

standard for a determination of frivolousness. (Id. at p. 990.)

       I acknowledge, as stated in the majority opinion, that no case has expressly held

that an SVP cannot show changed conditions without participating in treatment.

However, all the cases which have found a petition was not frivolous have involved SVPs

who have participated in treatment. Furthermore, treatment is an essential aspect of the

Sexually Violent Predator Act (SVPA), which “provides for the involuntary civil

commitment, for treatment and confinement, of an individual who is found by a

unanimous jury verdict ([Welf. & Inst. Code,] § 6603, subds. (e), (f)), and beyond a

reasonable doubt ([Welf. & Inst. Code,] § 6604), to be a ‘sexually violent predator’



                                               4
(ibid.).” (Olsen, supra, 229 Cal.App.4th at p. 991.) As expressly stated in the statute:

“If the court or jury determines that the person is a sexually violent predator, the person

shall be committed for an indeterminate term to the custody of the State Department of

State Hospitals for appropriate treatment and confinement . . . .” (Welf. & Inst. Code,

§ 6604.)

       The statutes also recognize the right to refuse treatment bears significantly on

whether a person’s condition has changed: “Where the person’s failure to participate in

or complete treatment is relied upon as proof that the person’s condition has not changed,

and there is evidence to support that reliance, the jury shall be instructed substantially as

follows: [¶] ‘The committed person’s failure to participate in or complete the State

Department of State Hospitals Sex Offender Commitment Program (SOCP) are facts that,

if proved, may be considered as evidence that the committed person’s condition has not

changed. The weight to be given that evidence is a matter for the jury to determine.’”

(Welf. & Inst. Code, § 6605, subd. (a)(3).)

       Nevertheless, in People v. Sumahit (2005) 128 Cal.App.4th 347, 355, the appellate

court held there may be consequences for refusing treatment: “The SVPA’s primary

goal is treatment. ‘The Act provides treatment for mental disorders from which [sex

offenders] currently suffer and reduces the threat of harm otherwise posed to the public.

No punitive purpose was intended.’ ([Hubbart v. Superior Court (1999) 19 Cal.4th

1138, 1144].) Despite the fact that defendant is amenable to and has been offered



                                              5
treatment, he refuses to attend, believing he is not a danger to the community . . . . [¶]

Defendant has the right to refuse treatment.” But a defendant may not be able to do so

and at the same time assert there has been a change in his condition.

       Defendant LaBlanc was committed for treatment as an SVP. He has consistently

refused treatment for 20 years or more. I agree with the trial court there has been no

apparent change in his condition. He cannot simply wait for enough time to elapse.

Without his participation in treatment, defendant’s age and worsening health do not

constitute a change in his condition. Even if he is impotent or incapacitated as he claims,

he could commit other kinds of sexual violence. Given the severity of defendant’s

multiple rapes, the failure to accept treatment while committed, and defendant’s negative

feelings towards women, defendant remains a danger to society. Under these

circumstances, he cannot show his petition for release is not frivolous. Therefore, I

respectfully dissent from the majority opinion reversing the trial court’s dismissal of

defendant’s petition as frivolous.


                                                                 CODRINGTON
                                                                                             J.




                                              6
