Filed 1/15/20 P. v. LaBlanc CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

FRANCIS JOHN LaBLANC,

Defendant and Appellant.

E068370

(Super.Ct.No. FELSS1300597)

OPINION

APPEAL from the Superior Court of San Bernardino County. Lorenzo Balderrama, Judge. Dismissed.

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

Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney General, Julie L. Garland, Assistant Attorney General, Michael Pulos, Seth Friedman and Joy Utomi, Deputy Attorneys General, for Plaintiff and Respondent.

I

FACTS AND PROCEDURAL BACKGROUND

Since 1996, Defendant and appellant Francis John LaBlanc has been committed to a state hospital for an indeterminate term of treatment as a sexually violent predator (SVP) under the Sexually Violent Predator Act. (SVPA; Welf. & Inst. Code, § 600 et seq.) In a prior appeal, LaBlanc challenged the trial court’s order pursuant to Welfare and Institutions Code former section 6608, subdivision (a), denying, as frivolous, his petition for unconditional discharge. We concluded the trial court abused its discretion because defendant’s petition was not frivolous, reversed the order, and remanded for the trial court to conduct an evidentiary hearing on the petition. (People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1078, 1081 (LaBlanc I.).) In addition, we denied 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). (LaBlanc I., at pp. 1078-1081.)

On remand, the trial court conducted an extensive evidentiary hearing, during which defendant and the People presented testimony from various witnesses, including expert witnesses, on the question of whether defendant would be a danger to the health and safety of others if he were unconditionally released because he would likely reoffend and engage in sexually violent criminal behavior as a result of his diagnosed mental disorder. (Welf. & Inst. Code, former § 6608, subd. (d); see LaBlanc I., supra, 238 Cal.App.4th at pp. 1069-1070.) After hearing the arguments of counsel, the trial court denied the petition. In its written order, the court indicated its belief that defendant “wasted an opportunity by not participating in the sex offender treatment program at any time over the last 20 years,” because, if he had participated, he “might very well [have] shown that his [diagnosed mental disorder of] Paraphilia had been successfully treated” and “that he could be safely released into the community.” Defendant timely appealed.

On December 19, 2019, while the appeal was pending, the trial court conducted a hearing and concluded, based on reports submitted by the Department of State Hospitals, that defendant no longer meets the criteria for commitment as an SVP. Therefore, the trial court ordered defendant unconditionally released, but stayed execution of its order for 10 court days to allow for an orderly release. Through counsel, defendant has now requested that his appeal be abandoned as moot.

In a criminal case, a defendant may request to abandon his or her appeal at any time. (Cal. Rules of Court, rule. 8.316(a).) If the record has already been filed with the Court of Appeal, the request must be filed in that court. (Id., rule 8.316(b)(2).) “The reviewing court may dismiss the appeal and direct immediate issuance of the remittitur.” (Ibid., italics added.) The Court of Appeal has discretion whether to honor the request. (People v. Scarbrough (2015) 240 Cal.App.4th 916, 920, fn. 2.)

“‘“[W]hen, pending an appeal from the judgment of a lower court, and without any fault of the [opposing party], an event occurs which renders it impossible for this court, if it should decide the case in favor of [defendant], to grant him any effectual relief whatever, the court will not proceed to a formal judgment, but will dismiss the appeal”’ as moot.” (People v. DeLeon (2017) 3 Cal.5th 640, 645.) Because defendant has been or very soon will be unconditionally discharged and released from the hospital, we agree that his claims of error and request for a new hearing on his petition have been rendered moot. (Cf. ibid. [discharge of defendant from parole pending appeal of his parole revocation was “technically moot because a reviewing court’s resolution of the issue could offer no relief regarding the time he spent in custody or the parole term that has already terminated.”].) Therefore, we grant defendant’s request to abandon the appeal and dismiss it.

II.

DISPOSITION

The appeal is dismissed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

J.

We concur:

RAMIREZ

P. J.

CODRINGTON

J.