California Court of Appeals, Fourth District, Second Division
APPEAL from the Superior Court No. FELSS1300597 of San Bernardino County. Steve Malone, Judge. Reversed.
[Copyrighted Material Omitted]
[Copyrighted Material Omitted]
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.
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 Code 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).
FACTS AND PROCEDURAL BACKGROUND
In 1965, defendant was convicted in Colorado of two counts of rape. (LaBlanc v.
People (1966) 160 Colo. 575 [418 P.2d 888, 889], cert. den. (1967) 388 U.S. 922 [18 L.Ed.2d 1371, 87 S.Ct. 2125].) 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 two counts of forcible rape (§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 State Department of Mental Health (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 former 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, 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.”
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 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 ChecklistRevised (PCL-R). 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 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 incidentin which defendant was alleged to have stalked a staff memberresulted 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.”
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 half 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.”
When discussing differential diagnosis, Alumbaugh addressed the diagnosis of “Paraphilia, Not Otherwise Specified, ” or “arousal to sex with non-consenting partners.” 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 half sisters. Alumbaugh opined that, even if defendant had molested his half 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, ” 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 for men 60 and older. Based on research showing reduced recidivism rates in older men, and defendant’s physical health, Alumbaugh ...