LaBlanc

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.

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…

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 1 section 6608, subdivision (a), denying, as frivolous, his petition for unconditional discharge. We conclude *1063 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 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 (Pen. Code, § 261, subd. 2), and one count of robbery of an…

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…