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Filed 9/17/15 P. v. Simon CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOHN PHILLIP SIMON,

 Defendant and Appellant.

2d Crim. No. B260444

(Super. Ct. No. F472628)

(San Luis Obispo County)

John Phillip Simon appeals the judgment and order of commitment, entered 

after a jury trial, finding that he is a sexually violent predator (SVP). (Welf. & Inst. 

Code, § 6600.) He contends the trial court prejudicially erred when it permitted an expert 

witness to testify about sexual offenses with which appellant had been charged, but was 

later acquitted. We affirm.

Facts

Appellant's Prior Convictions

In 1985, appellant was sentenced to three years in state prison after having 

been convicted of three counts of lewd and lascivious acts upon a child, in violation of 

Penal Code section 288, subdivision (a). In that case, appellant molested the 10-year old 

daughter of a woman with whom he had an intimate relationship. The daughter 

complained that appellant went into her bedroom at 4:00 or 5:00 a.m. and touched her 

vagina. She told him to get out of her room. About an hour later, appellant returned to 
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her room and did the same thing again. The victim later stated that appellant had 

"bothered" her on at least 10 previous occasions. 

In 1996, appellant was convicted of violating Penal Code section 288, 

subdivision (b) after he molested a sleeping 12-year old girl. In this incident, appellant 

pulled down the child's panties, restrained her, and tried to put his penis in her vagina. 

He left semen on her thighs and cheeks. At the time, appellant was in an intimate

relationship with the victim's mother. In 2014, the victim told investigators that appellant 

began abusing her while she was in the fourth grade and the conduct continued through 

her fifth grade year. She estimated appellant molested her at least 50 times.

In 2002, appellant was found to meet the SVP criteria and was committed 

to Atascadero State Hospital (ASH). In 2005, while still a patient at ASH, appellant 

physically assaulted a staff member. He made criminal threats to another staff member 

and physically assaulted that person in 2006. Appellant was convicted of assault with 

great bodily injury and making criminal threats. He was sentenced to eight years in state 

prison. (Pen. Code §§ 245, subd. (a)(1), 422.) Between 2008 and 2012, appellant 

committed at least 10 serious violations of prison rules. Among other things, he was 

cited for fighting, battery on an inmate causing serious injury, fighting resulting in the use 

of chemical agents, assault on a peace officer and obstructing a peace officer.

Sexual Offenses of Which Appellant was Acquitted

Appellant was arrested in 1982 for molesting three other girls. He was 

charged with two counts of rape, one count of lewd acts on a child under 14, rape by 

force, and oral copulation. Appellant was acquitted of these offenses. 

In 2014, an investigator from the district attorney's office interviewed the 

three complaining witnesses from this case, who are sisters. They explained that 

appellant had been in an intimate relationship with their mother and that he molested each 

of them while they were in their beds. When these assaults occurred, the sisters were 12, 

8 and 4 years old, respectively. The oldest sister, Gina, related that appellant came into 

her bedroom and began touching her buttocks and vagina. She kicked him and pulled the 

covers over herself. Appellant offered her money, but she said no. Appellant left the 
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room. Moments later, Gina heard her eight-year old sister, Helen, screaming in a nearby 

bedroom. She went to investigate and found appellant lying on top of Helen, with his 

pants and underwear down around his knees. When appellant noticed Gina in the 

doorway, he got up and pulled up his pants. Helen said appellant had rubbed his erect 

penis against her vagina and tried to penetrate her. He also sucked on her breast and 

forced his penis into her mouth. Appellant did this twice more, during an assault that 

lasted five or ten minutes. 

The sisters told the investigator that, after this series of molestations, they 

were removed from their home by social workers. They also described the molestations 

as going on for over one year. If they objected, they were beaten. Gina stated that 

appellant raped her. Another sister said that appellant applied a cigarette to her vagina. 

A social worker's report indicated that all three sisters had been sexually penetrated. 

Appellant's Mental Health Evaluations

One of respondent's expert witnesses, Dr. Larry Wornion, a licensed 

clinical psychologist, evaluated appellant for purposes of the SVP commitment petition. 

Appellant refused to cooperate with the evaluation and declined to speak with Dr. 

Wornion. Wornion nevertheless reviewed medical records from appellant's treatment at 

ASH and diagnosed him with pedophilia, schizophrenia paranoid type, alcohol abuse in 

institutional remission, and anti-social personality disorder. He described appellant as 

paranoid, suspicious, and delusional. "His world is populated by people that have 

plans to hurt him . . . to implant things in him, [and] subject him to these special 

microwaves . . . ." Appellant's uncontrolled psychiatric disorder led to "episodes of 

continued violent behavior," including the fights and other physical misconduct he 

engaged in while in prison. Dr. Wornion described appellant as "a powder keg." He 

opined that appellant has "a well-entrenched and incredibly well-established delusional 

disorder which, in conjunction with all the other things that we've seen, make him 

extraordinarily high-risk." 

Dr. Wornion reviewed medical records and staff reports from appellant's 

prior commitments as a mentally disordered offender (MDO) and as an SVP. Appellant 
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also received mental health treatment while in prison. Dr. Wornion reviewed those 

records as well. These records indicated that appellant suffered delusions and other 

psychotic symptoms for many years. During his time in custody, appellant has filed 

grievances and prison appeals in which he claimed that he was being bombarded by 

microwave rays that made him feel like a guinea pig and "increased his sexual tension." 

In 2008, he wrote a letter to a prison doctor in which he complained that he was normal, 

but that microwave technology was being used on him, which irritated his urethra, so that 

people could monitor his masturbatory habits. In 2013, appellant complained to ASH 

staff that he could feel a vibration in his groin area that he believed was caused by a 

device implanted there. Some staff notes described appellant as suspicious and paranoid, 

noting that some of his violent outbursts occurred as he complained of being monitored 

harassed by staff. 

While in custody and while a patient at ASH, appellant has refused 

medication. He also declined to speak to Dr. Wornion, or to Dr. Coles, the second 

evaluator. Dr. Coles reviewed the same documents as Dr. Wornion and opined that 

appellant suffers from "pedophilic disorder," alcohol disorder, "schizophrenia, paranoid 

type and antisocial personality disorder." He also concluded that appellant is 

"volitionally impaired" by his "pedophilic disorder" and that he is "likely to engage in 

sexually violent predatory behavior as a result of his mental disorders." 

Defense Experts

Dr. Theodore Donaldson, a forensic psychologist, disagreed with the 

diagnosis that appellant has antisocial personality disorder because he does not believe 

antisocial personality disorder is an actual disorder. He agreed that appellant suffers from 

schizophrenia or schizoaffective disorder, but opined that neither condition in and of 

itself would predispose an individual to commit violent sexual acts. He also found no 

evidence connecting appellant's disorder to his sexual behavior. Dr. Donaldson also 

disagreed that appellant has pedophilic disorder or pedophilia. Appellant's victims were 

always members of his household; his crimes were, in Dr. Donaldson's opinion, 

"opportunistic," rather than the product of a sexual preoccupation with children. In 
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addition, Dr. Donaldson pointed out, there is no evidence appellant collected pictures of 

children or ever tried to access child pornography. He did not display the type of intense 

or recurrent fantasies involving children that are part of the diagnostic criteria for 

pedophilia. 

Dr. Carolyn Murphy, a psychologist in private practice, shared many of Dr. 

Donaldson's opinions. After reviewing the same documents as Dr. Wornion and Dr. 

Coles, Dr. Murphy concluded appellant does not have a diagnosed mental disorder that 

would predispose him to commit sex offenses. None of appellant's disorders appeared to 

have been specifically linked to his crimes. In addition, appellant's delusions were not 

specifically sexual in nature. Dr. Murphy opined that appellant does not meet the 

diagnostic criteria for pedophilia because there was an alternative explanation for the 

sexual assaults he committed. The assaults were random and triggered by opportunity, 

rather than the result of a specific sexual desire. Appellant's alcohol abuse may also 

have played a role in the offenses. Appellant did not demonstrate an exclusive sexual 

attraction to children, but was also willing to offend against adults, teens and preteens. 

She saw no evidence of any recurrent sexual interest in children over the last twenty 

years, or any behavior, such as possession of pornography that would indicate a sexually 

deviant interest in children. 

Dr. Frederico Banales, a psychiatrist at ASH, treated appellant for about 

four months in 2013 and 2014. Unlike Dr. Wornion, Dr. Coles and Dr. Donaldson, Dr. 

Banales had talked to appellant on numerous occasions. He testified that appellant did 

not act out sexually or in a paraphilic manner; he was not aware of appellant having 

ongoing sexual fantasies involving children. Banales also did not believe appellant was 

psychotic. 

Dr. Joseph Abrahamson, a staff psychiatrist at ASH, had been treating 

appellant since March 2014. He testified that appellant had been doing well in treatment 

and was not a serious behavioral problem at the hospital. Dr. Abrahamson opined that 

appellant's diagnosis with schizoaffective disorder was "unreasonable" because appellant 

was no longer experiencing psychotic symptoms. 
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Discussion

Appellant was acquitted of the offenses with which he had been charged in 

connection with the 1982 incidents. In 2014, an investigator with the district attorney's

office interviewed the complaining witnesses from that case; the resulting report 

described many sex offenses, including offenses with which appellant was never charged. 

Both Dr. Wornion and Dr. Coles relied on the 1982 police report and 2014 investigator's 

report in forming their expert opinions that appellant meets the SVP criteria. Appellant 

contends the trial court erred when it admitted evidence of the 1982 incidents because he 

was acquitted of those alleged offenses. In addition, because the 2014 report was 

prepared more than 30 years after the alleged offenses, appellant contends the report is 

not the type of information expert witnesses could reasonably rely upon in forming their 

opinions. Appellant further contends the trial court should have excluded evidence of the 

1982 incidents under Evidence Code section 352. 

A qualified expert is entitled to render an opinion on the question of 

whether a person meets the SVP criteria because he or she 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." (Welf. & Inst. 

Code, § 6600, subd. (a)(1); People v. Gardeley (1996) 14 Cal.4th 605, 617.) "Expert 

testimony may . . . be premised on material that is not admitted into evidence so long as it 

is material of a type that is reasonably relied upon by experts in the particular field in 

forming their opinions." (People v. Gardeley, supra, 14 Cal.4th at p. 618.) An expert 

may base his or her opinion "on information that is itself inadmissible hearsay if the 

information is reliable and of the type reasonably relied upon by experts on the subject." 

(People v. Dodd (2005) 133 Cal.App.4th 1564, 1569.) If this basic requirement of

reliability is satisfied, "even matter that is ordinarily inadmissible can form the proper 

basis for an expert's opinion testimony. (In re Fields (1990) 51 Cal.3d 1063, 1070 

[expert witness can base 'opinion on reliable hearsay, including out-of-court declarations 

of other persons'] . . . .) And because Evidence Code section 802 allows an expert 

witness to 'state on direct examination the reasons for his opinion and the matter . . . upon 
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which it is based,' an expert witness whose opinion is based on such inadmissible matter 

can, when testifying, described the material that forms the basis of the opinion." (People 

v. Gardeley, supra, 14 Cal.4th at p. 618.)

In People v. Dodd, expert witnesses testified that Dodd had the severe 

mental disorder of pedophilia based on two prior convictions for unlawful sex with a 

minor and information concerning a third such incident that was contained in a report 

prepared by a parole agent. With respect to the third incident, the parole agent's report 

stated in full: " '[I]t should be noted that on 4/17/98, it was reported that Dodd was 

responsible for molesting a seven year old girl in Modesto, California. This prior case is 

strikingly similar to the present case [one of the underlying prior convictions] which 

involved Dodd allegedly molesting the child of his girlfriend. . . .' " (People v. Dodd, 

supra, 133 Cal.App.4th at p. 1567.) This was the only information in the record 

concerning the third incident, without which the diagnosis of pedophilia was 

unsupported.

We held the order committing Dodd as a mentally disordered offender 

(MDO) (§ 2960 et seq.), was not supported by substantial evidence because the parole 

agent's report was unreliable hearsay. (Id. at pp. 1568-1569.) In our view, the report's 

"brief and conjectural reference to the April 1998 incident fails to establish the 

occurrence of the incident with sufficient reliability to be considered by the experts in 

forming their opinions. We conclude that, without consideration of the April 1998 

incident, there was no substantial evidence to support the finding that [Dodd] suffered 

from pedophilia." (Id. at p. 1569.) We explained further, the parole agent's report "does 

not identify the source of the information regarding the April 1998 incident, and nothing 

in the report or the record as a whole indicates that the parole agent obtained the 

information from police officers, witnesses, the victim and her family, arrest or crime 

reports, his own investigation, or any other source which could be deemed reliable. An 

expert opinion cannot reasonably be based on nonspecific and conclusory hearsay that 

does not set forth any factual details of an act necessary for the opinion." (Id. at p. 1570.)
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Appellant relies on Dodd, supra, to contend the trial court erred when it 

permitted respondents' experts to testify concerning the 1982 incidents because he was 

acquitted and because an investigator's report, prepared 30 years later, was not reliable. 

Appellant's reliance is misplaced. 

The trial court "has considerable discretion to control the form in which the 

expert is questioned to prevent the jury from learning of incompetent hearsay." (People 

v. Price (1991) 1 Cal.4th 324, 416.) There was no abuse of discretion here because the 

information on which the experts relied was more factually detailed and more reliable 

than the information at issue in Dodd. Expert witnesses reviewed and relied on a police 

report prepared in 1982, as well as the investigator's report prepared in 2014. Unlike the 

parole agent's report in Dodd, the police report and investigator's report on which 

respondent's experts relied in this case were not "brief and conjectural[,]" or "nonspecific 

and conclusory[.]" (People v. Dodd, supra, 133 Cal.App.4th at pp. 1569, 1570.) These 

reports provided the expert witnesses with detailed factual statements by the complaining 

witnesses obtained near the date of the offenses and confirmed many years later. 

Consequently, the trial court did not abuse its discretion when it permitted the expert 

witnesses to testify they had relied on these reports and to describe their content. (People 

v. Catlin (2001) 26 Cal.4th 81, 137.)

We further conclude the trial court did not abuse its discretion when it 

declined to exclude the evidence as unduly prejudicial under Evidence Code section 352. 

Evidence Code section 352 grants the trial court discretion to exclude evidence the 

probative value of which is substantially outweighed by the danger of undue prejudice, 

confusion, or time consumption. (People v. Cudjo (1993) 6 Cal.4th 585, 609.) The 

prejudice section 352 is designed to avoid is prejudice based on extraneous factors, not 

the damage to a defense that naturally flows from relevant, probative evidence. (People 

v. Zapien (1993) 4 Cal.4th 929, 958.) " 'In other words, evidence should be excluded as 

unduly prejudicial when it is of such nature as to inflame the emotions of the jury, 

motivating them to use the information, not to logically evaluate the point upon which it 

is relevant, but to reward or punish one side because of the jurors' emotional reaction. In 
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such a circumstance, the evidence is unduly prejudicial because of the substantial 

likelihood the jury will use it for an illegitimate purpose.' (Vorse v. Sarasy (1997) 53 

Cal.App.4th 998, 1008-1009.)" (People v. Doolin (2009) 45 Cal.4th 390, 438-439.) 

Here, the charges leveled against appellant in 1982 were that he sexually 

assaulted three young girls who were the children of a woman with whom he had a sexual 

relationship. Reports of those assaults were probative of the diagnosis that appellant has 

the mental disorder pedophilia and were relevant to the question of whether appellant's 

mental disorders make him a danger to others in that he is likely to engage in sexually 

violent criminal behavior. (Welf. & Inst. Code, § 6600, subd. (a)(1).) The evidence was 

not unduly prejudicial because the 1982 assaults are similar in kind and severity to those 

for which appellant was convicted. Evidence of the 1982 assaults was " 'no stronger and 

no more inflammatory' " than evidence of the crimes for which appellant was convicted 

in 1985 and 1996. (People v. Eubanks (2011) 53 Cal.4th 110, 144.) The trial court did 

not abuse its discretion when it permitted respondent's expert witnesses to rely on the 

1982 allegations in forming their opinions concerning appellant's status as an SVP.

Appellant was acquitted of charges relating to the 1982 assaults. In 

addition, the reports on which the experts relied described at least one assault that was 

never the subject of criminal charges. Neither of these circumstances mandated 

exclusion of the evidence as a basis for the expert witnesses' opinion testimony. In a 

prosecution for a sex offense, a jury may be entitled to consider evidence that the 

defendant committed prior sex offenses, whether the defendant was charged with those 

offenses or was acquitted of them, to prove the defendant's propensity to commit sex 

offenses. (Evid. Code, § 1108; People v. Villatoro (2012) 54 Cal.4th 1152, 1160; People 

v. Mullens (2004) 119 Cal.App.4th 648, 664-665.) For the same reason here, the jury 

was entitled to consider evidence that expert witnesses relied on appellant's prior 

convictions and prior uncharged sex offenses in forming their opinions that appellant 

meets the SVP criteria. 

Finally, we conclude any error in admitting evidence of the 1982 incidents 

was harmless because there is no reasonable probability the result would have been more 
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favorable to appellant had the evidence been excluded. (People v. Gonzales (2013) 56 

Cal.4th 353, 388-389.) One of respondent's expert witnesses, Dr. Coles, testified he 

would have found appellant met the SVP criteria even without considering the 1982 

incidents. Even without considering the 1982 incidents, appellant has a long history of 

committing sexual offenses with convictions for multiple offenses in both 1985 and 1996. 

While in prison, he violated prison rules by fighting with other inmates and staff. He also 

assaulted staff while a patient at ASH. Appellant has made delusional complaints,

including that he was being bombarded by microwaves and that ASH staff were 

monitoring how much he masturbated. The evidence that appellant meets the SVP 

criteria was overwhelming; there is no reasonable probability appellant would have 

obtained a more favorable result had evidence of the 1982 been excluded.

Conclusion

The judgment and order of commitment is affirmed.

NOT TO BE PUBLISHED.

YEGAN, J.

We concur:

GILBERT, P.J.

PERREN, J.
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Jacquelyn H. Duffy, Judge

Superior Court County of San Luis Obispo

______________________________

Gerald L. Miller, under appointment by the Court of Appeal, for Defendant 

and Appellant. 

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

Attorney General, Lance E. Winters, Senior Assistant Attorney General, Michael C. 

Keller, Michael Katz, Deputy Attorneys General, for Plaintiff and Respondent.