1

Filed 6/24/21 P. v. Gunn CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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

THIRD APPELLATE DISTRICT

(Butte)

----

THE PEOPLE,

Plaintiff and Respondent,

v.

JACK LEE GUNN,

Defendant and Appellant.

C090455

(Super. Ct. No. CM028448)

Defendant Jack Lee Gunn was found to be a sexually violent predator (SVP) under 

the Sexually Violent Predator Act (Welfare and Institutions Code § 6600 et seq. 

(SVPA)), and committed to the custody of the California Department of State Hospitals 

for an indeterminate term.1(People v. Gunn (July 24, 2018, C085173) [nonpub. opn.].) 

He brought a petition for unconditional discharge from his SVP commitment in 2019 at 

1

 Undesignated statutory references are to the Welfare and Institutions Code.
2

the age of 84. (§ 6605.) A jury found defendant continued to meet the criteria for 

commitment as an SVP, and the trial court denied the petition. 

Defendant appeals, arguing: (1) the trial court erred in failing to instruct the jury 

on the use of circumstantial evidence; (2) the trial court violated his due process rights by 

instructing the jury with CALCRIM No. 3454A, the pattern instruction for determining a 

committed person’s current status under the SVPA; (3) the trial court erred in admitting 

certain exhibits without an applicable hearsay exception; (4) his trial counsel was 

ineffective for failing to object to expert testimony relating case-specific facts drawn 

from probation reports and other records; and (5) the trial court erred in excluding various 

witnesses. Defendant also contends he suffered cumulative prejudice from the asserted 

errors. Finding no reversible error, we affirm. 

I. BACKGROUND

Defendant was convicted of committing a lewd and lascivious act upon a child 

under the age of 14 years in 2001 after he repeatedly molested a five-year old girl (Victim 

1) (Pen. Code, § 288, subd. (a)). (People v. Gunn, supra, C085173.) He was placed on 

probation for three years and ordered to serve 300 days in county jail. (Ibid.) Defendant 

stayed out of trouble until 2005, when he was convicted of annoying or molesting a child 

under 18 years of age with a prior sex offense (Pen. Code, § 647.6, subd. (c)(1)), after he 

molested a six-year old girl (Victim 2). (People v. Gunn, supra, C085173.) 

Defendant was placed on probation for five years and ordered to participate in sex 

offender treatment. (People v. Gunn, supra, C085173.) As we shall see, defendant

struggled to comply with the terms and conditions of probation. (Ibid.) Probation 

officers searched defendant’s computer in 2010 and found materials deemed off limits. 

(Ibid.) The trial court revoked probation and sentenced defendant to three years in state 

prison. (Ibid.) Defendant was adjudicated an SVP and civilly committed to Coalinga 

State Hospital in 2013. (Ibid.) Defendant filed a petition for unconditional release from 
3

civil commitment in May 2019. (§ 6605.) The petition was tried to a jury in August 

2019. 

A. The Prosecution’s Evidence

The prosecution presented two expert witnesses, both forensic psychologists 

employed or contracted by Department of State Hospitals to perform SVP evaluations.2 

Their testimony is summarized below.

1. Dr. Jeffrey Davis

Dr. Jeffrey Davis conducted an SVP evaluation of defendant in January 2019. In 

performing the evaluation, Dr. Davis reviewed numerous documents, including charging 

documents and probation reports, sex offender treatment records, probation violation 

reports, and hospital records. Dr. Davis also interviewed defendant. Based on the 

foregoing, Dr. Davis diagnosed defendant with pedophilic disorder, sexually attracted to 

females, nonexclusive type. 

Dr. Davis based his diagnosis primarily on defendant’s criminal history, as 

revealed in police and probation reports. He considered the circumstances surrounding 

defendant’s qualifying conviction, explaining that they resulted from a series of contacts 

with Victim 1 over a period of several months. At the time, Victim 1 was five or six

years old, and defendant was 66 years old. Relying on a probation report, Dr. Davis 

testified that defendant fondled Victim 1’s vaginal area, penetrated her vagina with his 

finger, and directed her to fondle his penis. These contacts came to an end when Victim 

1’s mother effectively caught defendant in the act. Defendant admitted the molestation 

and was convicted by plea in 2001. 

When asked about the qualifying conviction by Dr. Davis, defendant 

acknowledged the sexual contact with Victim 1, but claimed the child initiated it. 

2 The prosecution’s experts share the same surname: Dr. Jeffrey Davis and Dr. Stephen 

Davis. For clarity, we will sometimes refer to them by their full names. 
4

Specifically, defendant maintained that Victim 1 grabbed his hand, placed it on her 

vaginal area, and directed him to rub her clitoris. According to Dr. Davis, defendant said 

he initially complied but then stopped, prompting Victim 1 to demand “more.” 

Defendant added that he should have stopped but failed to do so. Dr. Davis found 

significant the fact that defendant continued to claim that Victim 1 had been the 

aggressor, some 18 years after the fact. Dr. Davis also noted that defendant had 

previously expressed a belief that Victim 1 experienced the molestation as “joyful.” Dr. 

Davis explained that such a belief was consistent with cognitive distortion, which he 

described as a belief or beliefs that minimize culpability and facilitate sexual offending. 

Dr. Davis found further support for the diagnosis of pedophilia in defendant’s 

2005 offense. By now, defendant was 70 years old and living in a trailer park. The 

trailer park was also home to a group of children. Despite his recent conviction for lewd 

and lascivious acts against a child, defendant invited another prepubescent girl, six-year 

old Victim 2, to enter his trailer to play games on his computer. While there, defendant 

rubbed Victim 2’s buttocks. Dr. Davis found significant that defendant, “only four years 

after being caught for [lewd and lascivious acts against a child] and placed on probation, 

and going to treatment too, he commits another sexual offense against a similar aged 

female.” 

Dr. Davis’s diagnosis was also informed by a series of probation violations and 

possible violations, many of which evinced a continuing preoccupation with children. 

These violations and possible violations are briefly summarized below. 

In 2007, probation officers searched defendant’s residence and found magazines 

containing photographs of young children. The magazines, though not pornographic, 

were nevertheless prohibited by defendant’s probation. Later that year, defendant was 

observed in the park in the company of several small children. He was arrested and taken 

into custody, but ultimately found not to have violated probation. 
5

In 2008, defendant moved to another trailer park, one with designated senior and 

non-senior sections. Defendant assured probation officers that he was moving to the 

senior section, but instead moved into the non-senior section, choosing a trailer that was 

right next door to one with three young children in residence. That children lived next 

door should have been obvious to defendant from the many toys strewn about the front 

yard. Defendant would later claim he had not seen the toys. 

In 2009, defendant was again found in possession of magazines featuring 

photographs of young children. As before, the magazines were not pornographic, but 

were nevertheless prohibited by defendant’s probation. 

In 2010, defendant requested and received permission to have a laptop computer.3 

Defendant purchased the computer within the week. Shortly thereafter, a probation 

search revealed that he had visited numerous internet sites hosting children’s cartoons. 

Defendant was admonished to stay away from such sites. 

Defendant ran into trouble with the computer again the following year when 

another probation search revealed he had viewed questionable images of children, 

ranging in age from infants to 10 years old. (People v. Gunn, supra, C085173.) During 

the trial, Dr. Davis allowed that the images were neither pornographic, nor even sexually 

explicit.4 Nevertheless, defendant had been told not to possess or view such photographs, 

3 Earlier that year, he appeared on The Oprah Winfrey Show, in an episode dealing with 

child molestation. Dr. Jeffrey Davis viewed portions of the episode and noted that 

defendant admitted more extensive sexual contacts with Victim 1 in his discussion with 

Oprah than he acknowledged in interviews with SVP evaluators. Defendant also told 

Oprah that he had fantasized about molesting Victim 1 before doing so. 

4 The images depicted fully clothed children, both boys and girls, in poses deemed 

“sexually suggestive” by the probation officer. Many of the images appear to have been 

“sight gags,” in which children were shown in attitudes conveying a sexual double 

entendre (e.g., an image of a boy with a clown holding a balloon in a manner that 

suggests a penis extending from the boy’s genital area). 
6

and Dr. Davis was concerned both that they tended to normalize sexual contact with 

children and that they could be used to attract children as part of a grooming process. Dr. 

Davis thus opined that defendant’s struggles with probation were relevant, not only to his

diagnosis of pedophilia, but also to his assessment of defendant’s risk of reoffending. 

Dr. Davis explained that SVP evaluators cannot predict whether someone will act 

criminally in the future but can only estimate that person’s risk of reoffending. He

elaborated that SVP evaluators typically use actuarial assessment tools to estimate an 

SVP’s risk of reoffending. The Static-99R is one such tool. (People v. Shazier (2014) 60 

Cal.4th 109, 118.) The Static-99R uses 10 fixed—or “static”—factors to assess an SVP’s

risk of reoffending. An SVP evaluator assigns points for each factor based upon the

SVP’s history and measures the resulting score against recidivism rates by sample groups 

of offenders with the same score to determine whether the SVP poses an average or 

above or below average risk of reoffending. (Id. at p. 112 [“Based on recidivism rates 

among sample groups of convicted sex offenders,” the Static-99R and similar actuarial 

tools “identify and assign numerical weights to established facts about a particular 

offender, such as his or her age and history of sexual convictions, as bases for predicting 

the likelihood he or she will commit new sex offenses”].) 

Dr. Davis administered the Static-99R and scored defendant as “-1,” a “very low” 

score that would ordinarily be associated with a below average risk of reoffending. 

However, Dr. Davis thought defendant’s score failed to capture his real risk of 

reoffending. Dr. Davis explained that recidivism rates decline with advancing age, 

dropping off significantly after the age of 60. This decline is expressed as a negative 

number in the Static-99R (here, -3), which reduces an aging SVP’s overall score. After 

the age of 70, Dr. Davis continued, recidivism rates decline so precipitously that 

meaningful comparisons with sample groups of other offenders are no longer possible. 

Dr. Davis observed that defendant’s offense pattern was “very unusual”—indeed, 

“blue moon rare”—in that he committed his first known offense after the age of 60, 
7

ensuring he would receive the maximum age-related adjustment on the Static-99R. Dr. 

Davis noted that he had never seen such a pattern before. “And then,” Dr. Davis 

continued, “to reoffend in his 70’s is remarkable.” Dr. Davis added that defendant’s 

offense pattern was “really off the charts,” “a real head scratcher,” and “the exception 

that proves the rule.” 

Dr. Davis explained that an assessment with the Static-99R after defendant’s first 

offense at the age of 66 would have indicated he presented a very low risk of reoffending. 

Yet, defendant defied the odds by reoffending at the age of 70. Under the circumstances, 

Dr. Davis opined that the Static-99R underestimated defendant’s actual risk of 

reoffending. 

Dr. Davis testified that he also administered the Structured Risk Assessment 

Forensic Version (SRA-FV), a tool that considers dynamic risk factors not addressed by 

the Static-99R.5 This time, defendant’s score indicated an above average risk of 

reoffending, though only slightly so. According to Dr. Davis, the SRA-FV was closer to 

capturing defendant’s risk of reoffending, but still presented only part of the picture. As 

before, Dr. Davis opined that the usefulness of the risk assessment tool was limited by the 

fact that there are “very, very few offenders in any sample groups of [defendant’s] age.” 

Ultimately, Dr. Davis concluded that neither the Static-99R nor the SRA-FV 

accurately assessed defendant’s risk of reoffending. In the absence of an appropriate risk 

assessment tool, Dr. Davis relied upon structured clinical judgment, which considers 

static risk factors without applying actuarial scores, and dynamic risk factors, such as

defendant’s preoccupation with children and problems with supervision. Dr. Davis 

explained: “We see these pictures, for example, and problems with supervision and so 

forth throughout this period until he was revoked. So then looking at that, I would think 

5 The SRA-FV incorporates scores from the Hare Psychopathy Checklist Revised 

(PCLR), which Dr. Davis also administered. Defendant also scored low on the PCLR. 
8

about what’s different since then, since he was revoked? Well, he’s older. Does being 

older convey the same protective buffer against reoffense in his case that it does for most 

offenders? Well, the history says it doesn’t for him. He’s quite rare that way.” Under 

the circumstances, Dr. Davis concluded that defendant continues to pose a serious and 

well-founded risk of sexual offense, despite his low scores on the Static-99R and SRAFV. 

2. Dr. Stephen Davis

Dr. Stephen Davis, another forensic psychologist at Coalinga, testified for the 

prosecution as well. Dr. Stephen Davis evaluated defendant in January 2019. As part of 

his evaluation, Dr. Stephen Davis reviewed numerous documents, including police 

reports, probation reports, and hospital records.

6

 Dr. Stephen Davis also interviewed 

defendant. Like Dr. Jeffrey Davis, Dr. Stephen Davis concluded that defendant suffers 

from pedophilic disorder, sexually attracted to females, nonexclusive type. 

Dr. Stephen Davis explained that he based his diagnosis on defendant’s offense 

pattern. He noted that defendant admitted to digitally penetrating Victim 1 in a probation 

report. When asked about the 2001 offense, defendant disclosed that he spent 18 months 

cultivating a relationship with Victim 1’s family, a process Dr. Stephen Davis 

characterized as grooming. Defendant also told Dr. Stephen Davis that Victim 1 had 

been the aggressor the first time he had sexual contact with her, and that she initiated the 

contact approximately 50 percent of the time. Defendant said that he participated in the 

contact because he loved Victim 1 and wanted to make her feel good. Defendant also 

said that Victim 1 was sexually provocative and enjoyed the molestation, statements that 

6 Dr. Stephen Davis also reviewed assessments by other SVP evaluators. Dr. Stephen 

Davis declined to review Dr. Jeffrey Davis’s assessment, however, as he wanted to form 

his own, independent conclusions. 
9

Dr. Stephen Davis described as “offense supportive beliefs.” Defendant denied touching 

Victim 2. 

In making his diagnosis, Dr. Stephen Davis also relied on defendant’s admission 

in his SVP interview that he began having sexual fantasies about children at 64 or 65 

years old. When asked whether he continued to fantasize about children, defendant 

responded elliptically, saying only that it would stand to reason that he did. Dr. Stephen

Davis observed that defendant “went out of his way to be around children at every turn,” 

noting that he was discovered in the park with children and found with materials that 

could be used to lure children. Dr. Stephen Davis opined that defendant suffers from 

volitional impairment, and “go[es] out of his way to create opportunities to offend 

without regard for the long-term impact of his victim.” 

Dr. Stephen Davis noted that defendant regularly attended sex offender treatment 

upon arriving at Coalinga, but effectively dropped out after 14 months, and then failed to 

return for an extended period of time. Although defendant had recently resumed 

treatment, he told Dr. Stephen Davis that he does not believe he needs it. Defendant’s 

scattershot approach to treatment, and stated belief that Victim 1 enjoyed being molested, 

led Dr. Stephen Davis to conclude that defendant lacks insight and understanding into his 

offenses or risk factors. 

Dr. Stephen Davis administered the Static-99R and scored defendant as “-1,” or 

“below average risk.” Dr. Stephen Davis also administered the SRA-FV and scored 

defendant as “low risk.” Like Dr. Jeffrey Davis, however, Dr. Stephen Davis thought the 

Static-99R and SRA-FV failed to capture defendant’s real risk of reoffending. Dr. 

Stephen Davis observed that defendant is an “idiosyncratic offender” in that he started 

having sexual fantasies about children at an age when most offenders are slowing down. 

Dr. Stephen Davis reiterated that defendant was constantly looking for opportunities to be 

around children as a member of the community, indicating a lack of insight and volitional 

impairment. He added that defendant had failed to advance in treatment and continued to 
10

harbor offense supportive beliefs (e.g., Victim 1 enjoyed the molestation). Under the 

circumstances, Dr. Stephen Davis concluded that defendant posed a serious and wellfounded risk of reoffending upon release. 

B. Defense Evidence

Defendant also presented two expert witnesses, both forensic psychologists under 

contract with Department of State Hospitals to perform SVP evaluations. Neither 

defense expert challenged the diagnosis of pedophilia. Instead, defendant’s experts 

focused on whether, at age 84, he still posed a serious and well-founded risk of 

reoffending. That testimony is summarized below. 

1. Dr. Douglas Korpi 

Dr. Douglas Korpi evaluated defendant twice. Dr. Korpi evaluated defendant for 

the first time in 2012, when defendant was 77. Dr. Korpi administered the Static-99R 

and scored defendant as “really, really low risk.” Recognizing the age-related limitations 

of the Static-99R, however, Dr. Korpi relied on clinical judgment to conclude that 

defendant was an SVP. 

Dr. Korpi reevaluated defendant in 2019. This time, Dr. Korpi concluded that 

defendant no longer presented a serious and well-founded risk of reoffending. Dr. Korpi 

identified several reasons for his change in assessment. First, Dr. Korpi noted that 

defendant was now seven years older, a change he found significant. Dr. Korpi explained 

that the Los Angeles County District Attorney’s Office reviewed records of 800 offenders 

from 1997 through 2016, and determined that 71 percent reoffended in their sixties, 26 

percent reoffended in their seventies, and 3 percent reoffended in their eighties. 

Although Dr. Korpi had been prepared to say there was a high probability that defendant 

would reoffend in his seventies, he could not say that defendant was statistically likely to 

reoffend in his eighties. Dr. Korpi acknowledged on cross-examination, however, that 

the analysis conducted by the Los Angeles County District Attorney’s Office was neither

peer reviewed nor published. 
11

Second, Dr. Korpi observed that defendant does not have antisocial personality 

disorder or an extensive criminal history. He acknowledged, however, that defendant had 

run into problems with probation, and such problems are among the most important risk 

predictors. 

Third, Dr. Korpi opined that defendant was a “light duty” pedophile. Though 

defendant had been sexually inappropriate with Victim 1, Dr. Korpi explained, he was 

“not the hardcore sort of pedophile that [Dr. Korpi] typically want[s] to put away in the 

hospital.” Dr. Korpi allowed that defendant harbored offense supportive beliefs, adding 

that “only sex offenders” say their victims enjoyed being molested, as defendant had. Dr. 

Korpi also allowed that defendant exercised bad judgment in possessing photographs of 

children in 2010. However, Dr. Korpi saw no indication that defendant was sexually 

preoccupied or suffering from volitional impairment in 2019. 

Finally, Dr. Korpi observed that defendant had received extensive sex offender 

treatment. Although defendant had not completed treatment, he had been exposed to it, 

and acknowledged he might have destroyed Victim 1’s life. Accordingly, Dr. Korpi 

reversed his earlier assessment and concluded, “I think the fact of him not being very 

antisocial, not being very pedophiliac, and being old, and being in treatment so many 

times, I think that says we can let him go now.” 

2. Dr. Timothy Salz

Dr. Timothy Salz, a forensic psychologist and SVP evaluator under contract with 

the Department of State Hospitals, evaluated defendant and concluded he was not likely 

to reoffend if released. In reaching this conclusion, Dr. Salz found significant that 

defendant committed his first known offense at the age of 66, “which is kind of on the 

older side for sex offenses.” Dr. Salz was also struck by the fact that defendant “only has 

this one really noteworthy sex offense,” which was “unusual for patients down at the 

hospital.” Indeed, Dr. Salz could not “think of a single patient down there who had a less 
12

noteworthy sex offense history.” Dr. Salz emphasized that the 2001 offense involving 

Victim 1 was defendant’s most egregious offense in 18 years. 

Dr. Salz considered defendant’s 2005 offense involving Victim 2 “inappropriate, 

and something that he really should have known better,” but not something that would 

have been “unusual” or “a big deal” had he not been a sex offender. As for the 

photographs, Dr. Salz was “sort of stunned that anybody would make such a big deal 

about [them].” Dr. Salz noted that the photographs were not pornographic, but were 

“sexually-toned sight gags,” many of which featured male children, who are not part of

defendant’s preferred victim pool. 

Dr. Salz administered the Static-99R and scored defendant “-1,” or “below 

average.” He also administered the SRA-FV and found that defendant was a “routine sex 

offender,” rather than a high-risk offender. From this finding, Dr. Salz inferred that 

defendant’s risk of reoffending was less than 2 percent over five years (compared with a 

6 percent rate for high risk offenders). Dr. Salz noted that, according to the Social 

Security Administration, defendant’s natural life expectancy was 90 to 91 years, 

suggesting that he might not live long enough to reoffend. Dr. Salz also administered the 

PCLR and found that defendant scored “very, very low.” 

Dr. Salz also considered various protective factors that reduced defendant’s risk 

level. In addition to his age, Dr. Salz considered the fact that defendant had participated 

in sex offender treatment and appeared to have gained insight into his offense. Dr. Salz 

noted that the sex offender treatment program is “particularly long and intense, and 

typically takes an offender 10 years to get through.” Dr. Salz also noted that defendant 

had been in the community for much of the time between 2001 and 2011 and “had ample 

opportunity to sexually offend in a more serious criminal way than he did.” Based on the 

foregoing, Dr. Salz concluded that defendant does not pose a substantial and wellfounded risk for reoffending. 
13

C. Defense Witnesses 

Before jury selection, the prosecutor moved in limine to exclude the following 

defense witnesses on relevance grounds: (1) Joe Lopez, a longtime friend who was 

prepared to support defendant financially and help him purchase a trailer should he be 

released; (2) Dr. Lester Cook, M.D., a doctor from Coalinga who treated defendant for 

depression; (3) Dr. Christopher North, an SVP evaluator who evaluated defendant in 

April 2017; (4) Dr. Jordan Hopkins, a unit psychologist and member of defendant’s 

treatment team; and (5) Renee Pierce, a unit supervisor at Coalinga. The trial court 

granted the prosecutor’s motion to exclude the testimony of Lopez, Pierce, and Dr. North. 

The trial court denied the motion to exclude the testimony of Drs. Cook and Hopkins. 

During the trial, defense counsel elicited hearsay from Dr. Jeffrey Davis, based on 

conversations with Dr. Hopkins. Dr. Davis explained that he had spoken to several 

people about defendant, adding that “he’s described as respectful, polite, not a behavioral 

problem. He tends to keep to himself. He’s social in a general sense, but he doesn’t 

really socialize with anybody in particular.” During a bench conference, the prosecutor 

noted that she had not objected to Dr. Davis’s testimony relating what Dr. Hopkins had 

said, and therefore, there was no reason to call Dr. Hopkins. The trial court asked 

defense counsel whether he still intended to call Dr. Hopkins, and counsel responded, “I 

don’t know yet.” The prosecutor rejoined that, in that case, she objected to the hearsay. 

Defense counsel responded, “I won’t call her then.” He then continued his crossexamination of Dr. Davis, eliciting more hearsay based on information from Dr. Hopkins, 

including that defendant had not been caught with child pornography or sexually acting 

out at Coalinga. The defense did not call Dr. Hopkins as a witness. 

After Dr. Jeffrey Davis completed his testimony, the prosecutor renewed her 

motion to exclude Dr. Cook, this time for undue consumption of time. The trial court 

granted the motion. 
14

D. Exhibits

Towards the end of the trial, the trial court admitted the following documentary 

exhibits over defense objection: (1) a probation report for defendant’s 2001 offense

(Exhibit 15A); (2) a probation report for defendant’s 2005 offense (Exhibit 18A); (3) a 

supplemental probation report describing defendant’s violation of probation (Exhibit 

19A); and (4) an extensively redacted SVP evaluation by Dr. Jack Vognsen (Exhibit 

24A).

E. Verdict and Commitment 

On August 30, 2019, the jury found that defendant was still an SVP, and the trial 

court ordered him committed to the Department of State Hospitals for an indeterminate 

term. 

II. DISCUSSION

A. The SVPA

“Under the SVPA, an offender who is determined to be an SVP is subject to 

involuntary civil commitment for an indeterminate term ‘ “immediately upon release 

from prison.” ’ ” (People v. Putney (2016) 1 Cal.App.5th 1058, 1065 (Putney).) To 

establish that an offender is an SVP, the prosecution must prove beyond a reasonable 

doubt that the offender (1) has been convicted of a sexually violent offense against one or 

more victims, and (2) has a diagnosed mental disorder that makes him or her 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. (§ 6600, subd. (a)(1).) “The SVPA is designed ‘ “to provide 

‘treatment’ to mentally disordered individuals who cannot control sexually violent 

criminal behavior” ’ and to keep them confined until they no longer pose a threat to the 

public.” (Putney, supra, at p. 1065.)

“After commitment, an SVP is evaluated every year to consider ‘whether the 

committed person currently meets the definition of a sexually violent predator and 

whether conditional release to a less restrictive alternative, pursuant to Section 6608, or 
15

an unconditional discharge, pursuant to Section 6605, is in the best interest of the person 

and conditions can be imposed that would adequately protect the community.” (In re 

Butler (2020) 55 Cal.App.5th 614, 628-629.) 

“Section 6605, subdivision (a), provides that, when a court receives a petition for 

unconditional discharge, it holds a hearing to determine whether ‘probable cause exists to 

believe that the committed person’s diagnosed mental disorder has so changed that he or 

she is not a danger to the health and safety of others and is not likely to engage in 

sexually violent criminal behavior if discharged. ’ ” (People v. Smith (2020) 49 

Cal.App.5th 445, 452.) Section 6605, subdivision (a)(2) provides that, if the trial court 

“determines that probable cause exists to believe that the committed person’s diagnosed 

mental disorder has so changed that he or she is not a danger to the health and safety of 

others and is not likely to engage in sexually violent criminal behavior if discharged, then 

the court shall set a hearing on the issue.” In that circumstance, section 6605, subdivision 

(a)(3) gives the committed person “the right to demand a jury trial and to have experts 

evaluate him or her on his or her behalf.” At trial, the burden of proof is “on the state to 

prove beyond a reasonable doubt that the committed person’s diagnosed mental disorder 

remains such that he or she is a danger to the health and safety of others and is likely to 

engage in sexually violent criminal behavior if discharged.” (Ibid.) 

B. CALCRIM Nos. 223 and 224

Defendant argues the trial court erred by refusing to instruct the jury with 

CALCRIM Nos. 223 and 224 regarding the consideration of circumstantial evidence. 

The People appear to concede that CALCRIM Nos. 223 and 224 should have been given 

but argue any error was harmless. We accept the apparent concession and agree that the 

error was harmless. 

“ ‘In considering a claim of instructional error we must first ascertain what the 

relevant law provides, and then determine what meaning the instruction given conveys. 

The test is whether there is a reasonable likelihood that the jury understood the 
16

instruction in a manner that violated the defendant’s rights.’ [Citation.] We determine 

the correctness of the jury instructions from the entire charge of the court, not from 

considering only part of an instruction or one particular instruction. [Citation.] The 

absence of an essential element from one instruction may be cured by another instruction 

or the instructions taken as a whole. [Citation.] Further, in examining the entire charge 

we assume that jurors are ‘ “ ‘ “intelligent persons and capable of understanding and 

correlating all jury instructions which are given.” ’ ” ’ ” (People v. Smith (2008) 168 

Cal.App.4th 7, 13.) 

“Circumstantial evidence has been defined as ‘ “that which is applied to the 

principal fact, indirectly, or through the medium of other facts, from which the principal 

fact is inferred.” ’ [Citation.] If the prosecution is substantially relying on circumstantial 

evidence to establish any element of the case, the trial court has a sua sponte duty to give 

CALCRIM No. 223, defining direct and circumstantial evidence, and CALCRIM No. 

224, instructing on how to evaluate circumstantial evidence. [Citations.] Generally, 

these instructions must both be given when circumstantial evidence is substantially relied 

upon for any element by the prosecution.” (People v. Smith, supra, 168 Cal.App.4th at p. 

14, fns. omitted.)7 

7 CALCRIM No. 223 provides: “Facts may be proved by direct or circumstantial 

evidence or by a combination of both. Direct evidence can prove a fact by itself. For 

example, if a witness testifies he saw it raining outside before he came into the 

courthouse, that testimony is direct evidence that it was raining. Circumstantial evidence 

also may be called indirect evidence. Circumstantial evidence does not directly prove the 

fact to be decided, but is evidence of another fact or group of facts from which you may 

logically and reasonably conclude the truth of the fact in question. For example, if a 

witness testifies that he saw someone come inside wearing a raincoat covered with drops 

of water, that testimony is circumstantial evidence because it may support a conclusion 

that it was raining outside. [¶] Both direct and circumstantial evidence are acceptable 

types of evidence to prove or disprove the elements of a charge, including intent and 

mental state and acts necessary to a conviction, and neither is necessarily more reliable 

than the other. Neither is entitled to any greater weight than the other. You must decide 

whether a fact in issue has been proved based on all the evidence.” 
17

The prosecution’s case substantially relied on the expert opinions of Drs. Jeffrey

Davis and Stephen Davis. Expert opinion testimony is commonly characterized as 

indirect or circumstantial evidence. (See, e.g., People v. Gentry (1968) 257 Cal.App.2d 

607, 611; People v. Di Giacomo (1961) 193 Cal.App.2d 688, 695; People v. Goldstein 

(1956) 139 Cal.App.2d 146, 154; People v. Jones (1954) 42 Cal.2d 219, 222.) The jury 

was instructed on evaluating competing expert opinions (CALCRIM No. 332) and 

reasonable doubt in civil commitment proceedings (CALCRIM No. 219).8 Defendant 

 CALCRIM No. 224 refers to the defendant’s guilt or innocence, but the parties agree 

that the pattern instruction would need to be modified for use in an SVP case. As so 

modified, CALCRIM No. 224 would provide: “Before you may rely on circumstantial 

evidence to conclude that a fact necessary to find the defendant [to be an SVP] has been 

proved, you must be convinced that the People have proved each fact essential to that 

conclusion beyond a reasonable doubt. [¶] Also, before you may rely on circumstantial 

evidence to find the defendant [to be an SVP], you must be convinced that the only 

reasonable conclusion supported by the circumstantial evidence is that the defendant 

[meets the SVP criteria]. If you can draw two or more reasonable conclusions from the 

circumstantial evidence, and one of those reasonable conclusions points to [not meeting 

the SVP criteria] and another to [meeting the SVP criteria], you must accept the one that 

points to [not meeting the SVP criteria]. However, when considering circumstantial 

evidence, you must accept only reasonable conclusions and reject any that are 

unreasonable.” 

8 The jury was instructed with CALCRIM No. 332 as follows: “Witnesses were allowed 

to testify as experts and to give opinions. You must consider the opinions, but you are 

not required to accept them as true or correct. The meaning and importance of any 

opinion are for you to decide. In evaluating the believability of an expert witness, follow 

the instructions about the believability of witnesses generally. In addition, consider the 

expert’s knowledge, skill, experience, training, and education, the reasons the expert gave 

for any opinion, and the facts or information on which the expert relied in reaching that 

opinion. You must decide whether information on which the expert relied was true and 

accurate. [¶] You may disregard any opinion that you find unbelievable, unreasonable, 

or unsupported by the evidence. [¶] An expert witness may be asked a hypothetical 

question. A hypothetical question asks the witness to assume certain facts are true and to 

give an opinion based on the assumed facts. It is up to you to decide whether an assumed 

fact has been proved. If you conclude that an assumed fact is not true, consider the effect 

of the expert’s reliance on that fact in evaluating the expert’s opinion. [¶] If the expert 
18

argues jurors should have also been instructed that, if the experts’ opinion testimony 

supported two reasonable inferences, one leading to the conclusion that he meets the SVP 

criteria and another leading to the conclusion he does not, they were obligated to accept 

the inference leading to the conclusion that he does not meet the SVP criteria. 

We are not aware of any published authority addressing whether circumstantial 

evidence instructions are required in SVP proceedings.9 In the absence of any such 

authority, defendant argues by analogy to other civil commitment schemes. (See People 

v. Contreras (2010) 184 Cal.App.4th 587, 591-593 [trial court properly instructed jury 

with CALCRIM No. 224 in civil commitment proceeding for mentally disordered 

offender]; and see Conservatorship of Walker (1987) 196 Cal.App.3d 1082, 1094-1095 

[trial court instructed jury with BAJI No. 2.00 (defining direct and circumstantial 

evidence) but erroneously refused to give proposed instruction on evaluating 

circumstantial evidence in civil proceeding to appoint a conservator for a mentally ill 

witnesses disagreed with one another, you should weigh each opinion against the others. 

You should examine the reasons given for each opinion and the facts or other matters on 

which each witness relied. You may also compare the experts’ qualifications.” 

 The jury was instructed with CALCRIM No. 219 as follows: “The fact that a petition 

to declare Respondent a current sexually violent predator has been filed is not evidence 

that the petition is true. You must not be biased against the Respondent just because the 

petition has been filed and this matter has been brought to trial. The Petitioner is required 

to prove the allegations of the petition are true beyond a reasonable doubt. [¶] Proof 

beyond a reasonable doubt is proof that leaves you with an abiding conviction that the 

allegations of the petition are true. The evidence need not eliminate all possible doubt 

because everything in life is open to some possible or imaginary doubt. [¶] In deciding 

whether the Petitioner has proved the allegations of the petition are true beyond a 

reasonable doubt, you must impartially compare and consider all the evidence that was 

received throughout the entire trial. Unless the evidence proves the Respondent is 

currently a sexually violent predator beyond a reasonable doubt, you must find the 

petition is not true.” 

9 We disregard defendant’s discussion of unpublished opinions touching on this issue. 

(California Rules of Court, rule 8.1115, subd. (a).)
19

person under the Lanterman-Petris-Short Act].) The People appear to accept the analogy 

and concede error. We agree that the trial court should have instructed the jury with 

CALCRIM Nos. 223 and 224. 

We turn to the question of prejudice. Defendant argues the trial court violated his 

federal constitutional right to due process, requiring review under the harmless beyond a 

reasonable doubt standard established by Chapman v. California (1967) 386 U.S. 18, 24 

(Chapman). We disagree. A trial court does not commit error of constitutional 

dimension by failing to instruct on circumstantial evidence if it has properly instructed on 

reasonable doubt. As our Supreme Court explained in People v. Rogers (2006) 39 

Cal.4th 826: “Insofar as the federal Constitution itself does not require courts to instruct 

on the evaluation of circumstantial evidence where, as here, the jury was properly 

instructed on reasonable doubt [citations], defendant’s claim necessarily rests on the 

asserted arbitrary denial of a state-created liberty interest. [Citation.] We doubt the 

common law right to a circumstantial evidence instruction rises to the level of a liberty 

interest protected by the due process clause.” (Id. at pp. 886-887; see also People v. 

Smith, supra,168 Cal.App.4th at pp. 18-19.) The jury here was properly instructed with 

CALCRIM No. 219 on reasonable doubt and the People’s burden of proof. We therefore 

review the error under the standard established by People v. Watson (1956) 46 Cal.2d 818

(Watson), which requires reversal only if “it is reasonably probable that a result more 

favorable to the appealing party would have been reached in the absence of the error.” 

(Id. at p. 836.) 

To prove that defendant was still an SVP, the prosecution was required to show 

that he was “convicted of a sexually violent offense against one or more victims,” has “a 

diagnosed mental disorder,” and is “a danger to the health and safety of others” because 

he is “likely” to “engage in sexually violent criminal behavior.” (§ 6600, subd. (a)(1).) It 

was undisputed that defendant was convicted of a sexually violent offense and has a 

diagnosed mental disorder. Thus, the only issue for the jury was whether he was “likely” 
20

to “engage in sexually violent criminal behavior.” (§ 6600, subd. (a); People v. Superior 

Court (Ghilotti) (2002) 27 Cal.4th 888, 922 [“ ‘likely’ . . . connotes much more than the 

mere possibility that the person will reoffend,” but “does not require a precise 

determination that the chance of reoffense is better than even. . . . [T]he person is ‘likely’ 

to reoffend if . . . the person presents a substantial danger, that is, a serious and wellfounded risk, that he or she will commit such crimes if free in the community”].)

We perceive no reasonable probability that defendant would have obtained a more 

favorable result had the jury been instructed with CALCRIM Nos. 223 and 224. 

Although CALCRIM Nos. 223 and 224 were technically required here given the 

prosecution’s reliance on expert testimony (see People v. Gentry, supra, 257 Cal.App.2d 

at p. 611), we do not believe that either instruction would have made much of a 

difference to defendant in the particular circumstances of this case. True, most of the 

evidence was circumstantial, in the sense that most of the evidence was expert testimony. 

But the underlying facts were almost entirely undisputed. All testifying experts agreed, 

for example, that defendant received low scores on the Static-99R and SRA-FV, but he 

failed to complete sex offender treatment and continued to harbor offense supportive 

beliefs. Where they differed was in their application of professional judgment to the 

undisputed facts. The jury’s task was thus to choose between opposing expert opinions 

drawn from undisputed facts. Had jurors believed that prosecution and defense experts’ 

opinions were equally reasonable, CALCRIM No. 224 would have required them to find 

that defendant did not meet the SVP criteria. (See CALCRIM No. 224 [“If you can draw 

two or more reasonable conclusions from the circumstantial evidence, and one of those 

reasonable conclusions points to [not meeting the SVP criteria] and another to [meeting 

the SVP criteria], you must accept the one that points to [not meeting the SVP 

criteria]”].) But the jury received the same guidance from CALCRIM Nos. 332 and 219, 

which instructed jurors to weigh the experts’ opinions against one another and satisfy 

themselves that the prosecution had established that defendant was currently an SVP 
21

beyond a reasonable doubt. (See CALCRIM Nos. 332 [“If the expert witnesses disagreed 

with one another, you should weigh each opinion against the others”] and 219 [“In

deciding whether the Petitioner has proved the allegations of the petition are true beyond 

a reasonable doubt, you must impartially compare and consider all the evidence that was 

received throughout the entire trial. Unless the evidence proves the Respondent is 

currently a sexually violent predator beyond a reasonable doubt, you must find the 

petition is not true”].) In the circumstances of the present case, where the jury was tasked 

with choosing between competing interpretations of the facts, rather than deciding the 

facts themselves, we can safely say that jurors received the same message from 

CALCRIM Nos. 332 and 219 as they would have from CALCRIM Nos. 223 and 224. 

Reasonable jurors would have understood from the instructions as a whole that they were 

required to find defendant was not currently an SVP if they found the expert testimony 

reasonably supported the conclusion he no longer posed a serious and well-founded risk 

of reoffending. (People v. Ayers (2005) 125 Cal.App.4th 988, 997 [“Jurors are presumed 

to be intelligent people, capable of understanding and correlating all instructions”].) The 

jury here resolved the conflict in expert opinions against defendant and found the 

prosecution’s experts more credible. There is no reasonable probability that defendant 

would have a received a more favorable result had CALCRIM Nos. 223 and 224 been 

given. 

C. CALCRIM No. 3454A

Defendant next challenges the trial court’s instruction with CALCRIM No. 

3454A, the pattern instruction for proceedings under section 6605. Defendant’s 

arguments concerning CALCRIM No. 3454A were not raised in the trial court, and we 

question whether they were properly preserved for appellate review. (People v. Virgil 

(2011) 51 Cal.4th 1210, 1260 [party’s failure to object to jury instructions forfeits the 

claim on appeal].) Nevertheless, defendant urges us to excuse the failure to object on the 

ground that the instruction affected his substantial rights (Pen. Code, § 1259), and the 
22

People do not argue forfeiture. We will therefore consider the merits of defendant’s 

challenge to CALCRIM No. 3454A. 

Jurors were instructed with CALCRIM No. 3454A in pertinent part as follows: 

“The People allege that Jack Lee Gunn is currently a sexually violent predator. To prove 

this allegation, the People must prove beyond a reasonable doubt that: [¶] 1: He has a 

diagnosed mental disorder; [¶] AND [¶] 2: As a result of that diagnosed mental disorder, 

he is a danger to the health and safety of others because it is likely that he will engage in 

sexually violent predatory criminal behavior. [¶] The term diagnosed mental disorder

includes conditions either existing at birth or acquired after birth that affect a person’s 

ability to control emotions and behavior and predispose that person to commit criminal 

sexual acts to an extent that makes him or her a menace to the health and safety of others. 

[¶] A person is likely to engage in sexually violent predatory criminal behavior if there is 

a substantial danger, that is, a serious and well-founded risk that the person will engage in 

such conduct if released in the community. [¶] . . . [¶] You may consider evidence that 

Jack Lee Gunn failed to participate in or complete the State Department of Mental 

Health Sex Offender Commitment Program as an indication that his condition as a 

sexually violent predator has not changed. The meaning and importance of that evidence 

is for you to decide. [¶] You may not conclude that Jack Lee Gunn is currently a 

sexually violent predator based solely on his prior convictions without additional 

evidence that he currently has such a diagnosed mental disorder.” (Original emphasis 

omitted; new emphasis added.) 

CALCRIM No. 3454A is based on section 6605, which provides in pertinent part: 

“The burden of proof at the hearing [for unconditional discharge] shall be on the state to 

prove beyond a reasonable doubt that the committed person’s diagnosed mental disorder 

remains such that he or she is a danger to the health and safety of others and is likely to 

engage in sexually violent criminal behavior if discharged. Where the person’s failure to 

participate in or complete treatment is relied upon as proof that the person’s condition 
23

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.’ ” (§ 6605, subd. (a)(3), emphasis added.) 

CALCRIM No. 3454A also incorporates section 6600, subdivision (a)(3), which 

provides in pertinent part: “Jurors shall be admonished that they may not find a person a 

sexually violent predator based on prior offenses absent relevant evidence of a currently 

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.” 

(Emphasis added.) 

Defendant argues CALCRIM No. 3454A deviates from sections 6605, subdivision 

(a)(3) and 6600, subdivision (a)(3) in material respects. First, he observes that 

CALCRIM No. 3454A authorizes the jury to consider evidence that a committed person 

failed to participate in or complete treatment as “an indication that his condition as a 

sexually violent predator has not changed.” (Emphasis added.) By contrast, section 

6605, subdivision (a)(3) provides that jurors must be instructed “substantially” that the 

committed person’s failure to participate in or complete treatment may be considered as 

“evidence that the committed person’s condition has not changed.” (Emphasis added.) 

Second, defendant observes that CALCRIM No. 3454A instructed jurors they could not 

conclude he was an SVP based solely on his prior convictions without “additional

evidence” that he currently has a diagnosed mental disorder, while section 6600, 

subdivision (a)(3) specifies that jurors may not find a person an SVP based on prior 

offenses absent “relevant evidence” of a currently diagnosed mental disorder. 

(CALCRIM No. 3454A, emphasis added; § 6600, subd. (a)(3), emphasis added.) 

Together, defendant says, these differences allowed the jury to find he was still an SVP
24

based solely on evidence he failed to complete sex offender treatment, without finding 

beyond a reasonable doubt that he continues to have a diagnosed mental disorder that 

makes him a danger to the health and safety of others, in violation of his right to due 

process.

10

 We are not persuaded.

Defendant argues that the word “condition,” as used in section 6605, subdivision 

(a)(3), should be understood to refer to the committed person’s “diagnosed mental 

disorder.” When so read, defendant continues, the statute calls for an instruction 

allowing jurors to consider evidence of a failure to participate in or complete treatment as 

an indication that the committed person’s diagnosed mental disorder has not changed. 

Defendant argues CALCRIM No. 3454A impermissibly authorizes jurors to consider 

evidence of the committed person’s failure to participate in or complete treatment as an 

indication that the person’s condition as an SVP has not changed, thereby sweeping more 

broadly than the statute, and relieving the prosecution of the burden of proving the other 

SVP criterion beyond a reasonable doubt; namely, that he was still a danger to the health 

and safety of others. We disagree with defendant’s interpretation of section 6605, 

subdivision (a)(3). 

“ ‘Our fundamental task in interpreting a statute is to determine the Legislature’s 

intent so as to effectuate the law’s purpose. We first examine the statutory language, 

giving it a plain and commonsense meaning. We do not examine that language in 

isolation, but in the context of the statutory framework as a whole in order to determine 

its scope and purpose and to harmonize the various parts of the enactment. If the 

language is clear, courts must generally follow its plain meaning unless a literal 

interpretation would result in absurd consequences [that] the Legislature did not intend. 

10

 Defendant also observes that CALCRIM No. 3454A and section 6600, subdivision (f) 

differ slightly in their discussions of “recent overt acts.” However, he appears to concede 

the differences are immaterial and does not attempt to explain how they prejudiced him. 
25

If the statutory language permits more than one reasonable interpretation, courts may 

consider other aids, such as the statute’s purpose, legislative history, and public policy.’ ” 

(Jarmon v. HCR ManorCare, Inc. (2020) 10 Cal.5th 375, 381.) 

Defendant’s interpretation of section 6605, subdivision (a)(3) turns on the 

meaning of the word “condition.” The Merriam-Webster Online Dictionary defines the 

noun “condition,” in pertinent part, as “a state of being” (e.g., “the human condition”), a 

“social status,” and “a usually defective state of health” (e.g., “a serious heart condition”). 

(Merriam-Webster Online Dict. <https://www.merriamwebster.com/dictionary/condition> [as of June 22, 2021], archived at 

<https://perma.cc/P8DL-28GY> .) Defendant assumes the word “condition” refers to a 

committed person’s hitherto “defective state of health,” which would encompass any 

diagnosed mental disorder. But we believe the word “condition” was intended here in the 

broader sense of a “a state of being” or “status,” such as the condition of being an SVP. 

We find support for this interpretation in section 6605, subdivision (a)(2), which 

provides for a probable cause hearing to determine whether “the committed person’s 

diagnosed mental disorder has so changed that he or she is not a danger to the health and 

safety of others and is not likely to engage in sexually violent criminal behavior if 

discharged.” (Emphasis added.) Had the Legislature intended to limit the jury’s 

consideration of the committed person’s failure to participate in or complete treatment to 

the presence or absence of a diagnosed mental disorder, it could have done so, as it did in 

the immediately preceding subdivision. That the Legislature chose instead to authorize a 

jury instruction contemplating jury consideration of treatment failures “as evidence that 

the committed person’s condition has not changed,” argues in favor of a broader 

construction, one that sensibly allows jurors to consider the evidence for any relevant 

purpose. 

Our construction comports with case law recognizing that “participation in 

treatment is an important factor when determining whether an SVP is no longer 
26

dangerous.” (People v. LaBlanc (2015) 238 Cal.App.4th 1059, 1077; see id. at p. 1078

[holding that the defendant’s refusal to participate in sex offender treatment was 

“certainly evidence from which a trier of fact may conclude [he] continues to pose a 

danger”].) It is also consistent with the treatment and public safety purposes of the 

SVPA. (Putney, supra, 1 Cal.App.5th at p. 1065 [“The SVPA is designed ‘ “to provide 

‘treatment’ to mentally disordered individuals who cannot control sexually violent 

criminal behavior” ’ and to keep them confined until they no longer pose a threat to the

public”]; People v. Sumahit (2005) 128 Cal.App.4th 347, 355 [“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’ ”].) These statutory purposes would be ill-served by an instruction authorizing 

jurors to consider evidence of a committed person’s treatment failures only for the 

limited purpose of determining whether he still suffers from a diagnosed mental disorder, 

but not for the essential purpose of determining whether he continues to pose a danger to 

the health and safety of others. We therefore reject defendant’s interpretation of section 

6600, subdivision (a)(3). Having done so, we conclude no conflict exists between the 

statute and the instruction, at least so far as the jury’s consideration of treatment evidence 

is concerned. 

We now turn to defendant’s argument that CALCRIM No. 3454A conflicts with 

section 6600, subdivision (a)(3). As noted, CALCRIM No. 3454A instructed jurors they 

could not conclude defendant was an SVP based solely on his prior convictions without 

“additional evidence” he currently has a diagnosed mental disorder, while section 6600, 

subdivision (a)(3) specifies that jurors may not find a person an SVP based on prior 

offenses absent “relevant evidence” of a currently diagnosed mental disorder. 

(CALCRIM No. 3454A, emphasis added; § 6600, subd. (a)(3), emphasis added.) We 

need not parse the differences between section 6600, subdivision (a)(3) and CALCRIM 

No. 3454A, because we perceive no possibility they could have contributed to the verdict. 
27

It was undisputed that defendant continues to suffer from a diagnosed mental disorder. 

Whether the jury was instructed to look for “additional evidence” or “relevant evidence” 

of a currently diagnosed mental disorder would not have changed anything. The error, if 

any, was harmless under any standard. (Watson, supra, 46 Cal.2d at p. 836; Chapman, 

supra, 386. U.S. at p. 24.)

C. Documentary Evidence

Defendant next challenges the admission of four documentary exhibits, arguing 

they should have been redacted or excluded because they contained inadmissible hearsay. 

We agree that much of this evidence was “hearsay that was not shown to fall within a 

hearsay exception.” (People v. Burroughs (2016) 6 Cal.App.5th 378, 411.) 

Nevertheless, we find no reversible error. 

1. Applicable Evidentiary Principles and Standard of Review

As a general rule, hearsay evidence—“evidence of a statement that was made 

other than by a witness while testifying at the hearing and that is offered to prove the 

truth of the matter stated” (Evid. Code, § 1200, subd. (a))—is inadmissible, except as 

provided by law (id., subd. (b)). “Documents like reports, criminal records, hospital 

records, and memoranda—prepared outside the courtroom and offered for the truth of the 

information they contain—are usually themselves hearsay and may contain multiple 

levels of hearsay, each of which is inadmissible unless covered by an exception.” 

(People v. Yates (2018) 25 Cal.App.5th 474, 482.) 

The Legislature has expanded the scope of admissible hearsay evidence in SVP 

proceedings. Section 6600, subdivision (a)(3) provides: “Conviction of one or more 

crimes enumerated in this section shall constitute evidence that may support a court or 

jury determination that a person is a sexually violent predator, but shall not be the sole 

basis for the determination. The existence of any prior convictions may be shown with 

documentary evidence. The details underlying the commission of an offense that led to a 

prior conviction, including a predatory relationship with the victim, may be shown by 
28

documentary evidence including, but not limited to, preliminary hearing transcripts, trial 

transcripts, probation and sentencing reports, and evaluations by the State Department of 

State Hospitals.” 

Section 6600, subdivision (a)(3) thus creates a broad hearsay exception for 

documentary evidence to prove the existence and details underlying the commission of 

the offenses leading to prior convictions and to the defendant’s predatory relationship 

with the victim. (People v. Otto (2001) 26 Cal.4th 200, 206-207 [§ 6600, subd. (a)(3) 

“authorizes the use of hearsay in presentence reports to show the details underlying the 

commission of a predicate offense”].) “By permitting the use of presentence reports at 

the SVP proceeding to show the details of the crime,” our Supreme Court has explained, 

“the Legislature necessarily endorsed the use of multiple-level-hearsay statements that do 

not otherwise fall within a hearsay exception.” (Id. at p. 208.) Portions of otherwise 

admissible reports containing information that does not pertain to the defendant’s 

qualifying conviction, however, are not made admissible by section 6600, subdivision 

(a)(3). (People v. Burroughs, supra, 6 Cal.App.5th at pp. 410-411.) 

Another hearsay exception is relevant here, the exception for statements made by a 

party opponent (we refer to this as the party admission exception), codified at Evidence 

Code section 1220. The party admission exception applies as follows: “The evidence 

was of statements, defendant was the declarant, the statements were offered against him, 

and he was a party to the action. Accordingly, the hearsay rule does not make the 

statements inadmissible.” (People v. Carpenter (1999) 21 Cal.4th 1016, 1049.) 

The hearsay rules governing testimony by expert witnesses are also relevant, 

though only tangentially so. Our Supreme Court announced significant changes in the 

law relating to testimony by expert witnesses in People v. Sanchez (2016) 63 Cal.4th 665.

Before Sanchez, expert witnesses were permitted to relate case-specific hearsay to the 

jury, so long as jurors were told that they could only consider such information for its 

effect on the expert’s opinion, and not for its truth. (People v. Yates, supra, 25 
29

Cal.App.5th at p. 482.) Sanchez ended this practice. (Ibid.) In the post-Sanchez world, 

an expert witness “may still rely on hearsay in forming an opinion, and may tell the jury 

in general terms that he did so.” (Sanchez, supra, at p. 685; see Evid. Code, §§ 801, 

802.) But an expert may no longer “relate as true case-specific facts asserted in hearsay 

statements, unless they are independently proven by competent evidence or covered by a 

hearsay exception.” (Sanchez, supra, at p. 686.) “The Sanchez rule applies to civil SVP 

proceedings.” (People v. Bocklett (2018) 22 Cal.App.5th 879, 890 [applying Sanchez to 

SVP jury trial adjudicating defendant an SVP]; see also People v. Burroughs, supra, 6 

Cal.App.5th at p. 403.) 

“A trial court’s ruling on the admissibility of evidence, including one that turns on 

the hearsay nature of the evidence, is reviewed under the abuse of discretion standard.” 

(People v. Roa (2017) 11 Cal.App.5th 428, 442; see also People v. Waidla (2000) 22 

Cal.4th 690, 725.) Any error regarding the admission of such evidence requires reversal 

only if “it is reasonably probable that a result more favorable to the appealing party 

would have been reached in the absence of the error.” (Watson, supra, 46 Cal.2d at p. 

836.)

2. Challenges to Exhibits

Defendant observes the prosecution’s experts related inadmissible case-specific 

hearsay in their testimony, and we do not disagree. However, defendant largely failed to 

object to the prosecution’s expert testimony in the trial court and does not challenge the 

admission of such testimony on appeal. Instead, defendant focuses on the documentary 

exhibits on which the experts relied. We consider defendant’s challenges to the exhibits 

below.

a. Exhibit 15A

Defendant first challenges the admission of Exhibit 15A, the probation report for 

defendant’s 2001 offense involving Victim 1. Dr. Jeffrey Davis properly relied on 

Exhibit 15A to relate the circumstances giving rise to defendant’s qualifying conviction. 
30

(§ 6600, subd. (a)(3); People v. Otto, supra, 26 Cal.4th at p. 207.) Defendant 

acknowledges that much of the report was admissible. However, he argues that Exhibit 

15A also contains information unrelated to his qualifying conviction, which should have 

been redacted. We perceive no error.

Defendant objected to Exhibit 15A on hearsay grounds, pointing to the probation 

report’s discussion of another psychologist’s evaluation of him. As relevant here, Exhibit 

15A indicated that defendant admitted sexually abusing Victim 1 in an interview with the 

other psychologist and told the psychologist that he “ ‘possibly had sexual feelings for 

younger children of about ten years of age.’ ” Exhibit 15A also indicated the 

psychologist believed defendant was “plagued by anxiety about the future,” given to 

“ ‘extreme and bizarre thoughts,’ ” and likely suffering from “ ‘[c]hronic psychological 

maladjustment.’ ” Defendant made no other objections to Exhibit 15A. The trial court 

overruled defendant’s objection and admitted the report. 

We agree with defendant that the report’s twice-repeated discussion of the other 

psychologist’s evaluation was not covered by the hearsay exception created by section 

6600, subdivision (a)(3). But we cannot say the trial court erred in admitting the report in 

the circumstances of this case. The prosecution’s experts testified without objection that 

defendant admitted sexually abusing Victim 1 and admitted having sexual fantasies about 

children. Much of the complained-of evidence was thus already before the jury. 

Although there was no other evidence that defendant suffered from anxiety, extreme 

thoughts, or chronic psychological maladjustment, the report’s references to these aspects 

of the psychologist’s evaluation could not have made any difference to jurors presented 

with unanimous expert testimony that defendant suffered from a diagnosed mental 

disorder. On the record before us, we conclude that any error in admitting portions of the 

report describing the other psychologist’s evaluation of defendant was harmless. 

Defendant’s other objections to Exhibit 15A were not raised in the trial court and have 

therefore been forfeited. (People v. Partida (2005) 37 Cal.4th 428, 435.)
31

b. Exhibit 18A

Defendant next challenges the admission of Exhibit 18A, the probation report for 

the 2005 offense involving Victim 2. Defendant objected to Exhibit 18A on hearsay 

grounds and argues the report should have been excluded in its entirety. He observes that 

the 2005 offense was not a qualifying offense, and thus was not covered by the hearsay 

exception created by section 6600, subdivision (a)(3). We do not disagree with this last 

point. (People v. Burroughs, supra, 6 Cal.App.5th at p. 411.) Even so, most of the 

complained-of material from the exhibit was already before the jury in the form of expert 

testimony from Dr. Jeffrey Davis, who testified to the circumstances surrounding the 

2005 offense without objection. Defendant does not identify any other prejudice that 

could have resulted from the admission of Exhibit 18A. Under the circumstances, we 

conclude that any error in admitting Exhibit 18A was harmless. 

c. Exhibit 19A

Defendant next challenges the admission of Exhibit 19A, the supplemental 

probation report for defendant’s 2011 violation of probation. Defendant objected to 

Exhibit 19A on hearsay grounds and argues the trial court should have excluded the 

report in its entirety. As before, defendant argues the probation violation was not a 

qualifying offense, and thus, not covered by section 6600, subdivision (a)(3). Here again, 

we find no prejudice from any error

Dr. Jeffrey Davis testified extensively about defendant’s problems with 

supervision. Dr. Davis recounted the probation search of defendant’s laptop and 

commented upon the photographs found there, many of which were independently 

admitted and published to the jury, without objection.11 With an exception not relevant 

here, defendant made no objection to the photographs or any testimony based on Exhibit 

11 Indeed, defendant’s trial counsel offered several of the photographs into evidence. 
32

19A.12 As before, the jury had already heard most of the complained-of material from 

the report by the time defendant interposed an objection. Under the circumstances, we 

conclude, again, that defendant could not have been prejudiced by any error in admitting 

the exhibit. 

d. Exhibit 24A

Defendant next challenges the trial court’s admission of Exhibit 24A, an 

extensively redacted SVP evaluation by Dr. Jack Vognsen. Dr. Vognsen evaluated 

defendant in 2012 and prepared a report which states: “After the death of his wife and 

his conviction for the offenses against [Victim 1], Mr. Gunn reported that ‘my sex drive 

went to the toilet.’ ” The trial court admitted the redacted evaluation as a party admission 

over defense objection, and the prosecutor used the exhibit to elicit testimony from Dr. 

Stephen Davis that defendant reoffended after representing that his libido had failed him. 

Defendant argues the exhibit contained hearsay not made admissible by any exception, 

and we agree. Although the statement attributed to defendant may have been admissible 

as a party admission or nonhearsay, that statement was part of a longer statement 

attributed to Dr. Vognsen, which was neither. The trial court should not have admitted 

Exhibit 24A. 

Although we find error in admitting Exhibit 24A, we conclude, again, that the 

error was harmless. Evidence that defendant may have misrepresented his sex drive in 

2012 could not have caused prejudice given the defense theory, as expressed by Dr. 

Korpi, that defendant had been an SVP in 2012, but was no longer an SVP in 2019. On 

the record before us, we discern no prejudice from the erroneous admission of Exhibit 

24A. 

12 Defendant objected to testimony that he failed to complete homework required for his 

sex offender treatment program. 
33

D. Ineffective Assistance of Counsel

Defendant argues his trial counsel was constitutionally ineffective for failing to 

object to case-specific hearsay in expert testimony and failing to object to unspecified 

photographs. The People do not address this argument. 

To establish ineffective assistance of counsel, a defendant must show both that 

counsel’s representation fell below an objective standard of reasonableness and that it is 

reasonably probable that, but for counsel’s error, the result of the proceeding would have 

been different. (Strickland v. Washington (1984) 466 U.S. 668, 686-688; People v. 

Benavides (2005) 35 Cal.4th 69, 92-93; People v. Ledesma (1987) 43 Cal.3d 171, 215-

218.) “ ‘A reasonable probability is a probability sufficient to undermine confidence in 

the outcome.’ ” (Ledesma, supra, at p. 218.) 

In reviewing a claim of ineffective assistance, we “must indulge a strong 

presumption that counsel’s conduct falls within the wide range of reasonable professional 

assistance. [Citation.] Tactical errors are generally not deemed reversible, and counsel’s 

decisionmaking must be evaluated in the context of the available facts. [Citation.] To 

the extent the record on appeal fails to disclose why counsel acted or failed to act in the 

manner challenged, we will affirm the judgment unless counsel was asked for an 

explanation and failed to provide one, or unless there simply could be no satisfactory 

explanation.” (People v. Maury (2003) 30 Cal.4th 342, 389; see also People v. Hayes 

(1990) 52 Cal.3d 577, 621 [“Whether to object to inadmissible evidence is a tactical 

decision”].) 

We find no ineffective assistance of counsel. Defendant’s trial counsel may have 

reasonably believed that defendant would be more helped than hurt by the details of his 

non-qualifying offense and probation violation, to which Dr. Jeffrey Davis testified 

without objection. A pervasive defense theme was that defendant was a “light duty” 

pedophile, whose criminal record was milder than most SVPs to begin with and 

becoming milder still with advancing age. With respect to the 2005 offense, Dr. Salz 
34

opined: “[I]f you just look at the offense itself; you know, patting a 6-year old girl’s 

bottom over the clothing, is not something that’s all that unusual. And I dare say that 

many, if not most of us, have done that in a way that was nonsexual, and really not a big 

deal.” With respect to the photographs, Dr. Salz testified: “I saw the write-up that 

included those 46 photos, and I was sort of stunned that anybody would make such a big 

deal about it.” Dr. Korpi similarly suggested that defendant’s possession of the 

photographs spoke more to a lapse in judgment than any real risk of reoffending. Both 

defense experts emphasized that defendant had not been found with similar photographs 

at Coalinga. On the record before us, trial counsel could have rationally believed that 

jurors should know the details of the non-qualifying offense and probation violation, so 

they would understand that neither was as serious as the qualifying offense, and neither 

would have been a crime but for defendant’s status as a repeat offender. We cannot say 

this plausible, tactical decision amounted to ineffective assistance of counsel. (See 

People v. Earp (1999) 20 Cal.4th 826, 896.)

E. Defense Witnesses

Defendant next argues the trial court violated his right to present a defense by 

excluding the testimony of the following five witnesses: (1) Lopez, defendant’s longtime 

friend; (2) Dr. Cook, a doctor from Coalinga; (3) Dr. North, an SVP evaluator; (4) Dr. 

Hopkins, a unit psychologist and member of defendant’s treatment team; and (5) Pierce, a 

unit supervisor at Coalinga.13 We are not persuaded. 

“A trial court’s decision to admit or exclude evidence is reviewed for abuse of 

discretion, and it will not be disturbed unless there is a showing that the trial court acted 

in an arbitrary, capricious, or absurd manner resulting in a miscarriage of justice. (People 

v. Rodriguez (1999) 20 Cal.4th 1, 9-10.) Evidence Code section 352 gives the trial court 

13 As we shall discuss, the trial court did not, in fact, exclude Dr. Hopkins’ testimony
35

discretion to exclude evidence if ‘its probative value is substantially outweighed by the 

probability that its admission will (a) necessitate undue consumption of time or (b) create 

substantial danger of undue prejudice, of confusing the issues, or of misleading the 

jury.’ ” (People v. Wall (2017) 3 Cal.5th 1048, 1069.)14 

We review a trial court’s ruling under Evidence Code section 352 for abuse of 

discretion. (People v. Lewis (2001) 26 Cal.4th 334, 372-373.) “ ‘It is . . . well settled that 

the erroneous admission or exclusion of evidence does not require reversal except where

the error or errors caused a miscarriage of justice. [Citation.] “A ‘miscarriage of justice’ 

should be declared only when the court, ‘after an examination of the entire cause, 

including the evidence,’ is of the ‘opinion’ that it is reasonably probable that a result 

more favorable to the appealing party would have been reached in the absence of the 

error.” ’ ” (People v. Fields (2009) 175 Cal.App.4th 1001, 1018.)

The trial court did not abuse its discretion by excluding Lopez’s testimony. Lopez 

would have testified that he was prepared to support defendant financially and help 

defendant purchase a trailer should he be released. This testimony was relevant to 

defendant’s plans for release, which were relevant to his risk of reoffending. Even so, the 

trial court could reasonably conclude that the probative value of the testimony was 

minimal and substantially outweighed by the potential for wasted time and juror 

confusion. It is true, as defendant observes, that Dr. Stephen Davis questioned his release 

plans. However, Dr. Davis questioned the wisdom of defendant’s plan to live in a trailer 

park, not his ability to purchase a trailer. Neither Dr. Davis nor anyone else cast doubt on 

14 The trial court did not expressly invoke Evidence Code section 352 in excluding the 

proffered defense witnesses. However, the trial court “is not required to ‘ “expressly 

weigh prejudice against probative value or even expressly state that it has done so, if the 

record as a whole shows the court was aware of and performed its balancing function 

under Evidence Code section 352.” ’ ” (People v. Nunez & Satele (2013) 57 Cal.4th 1, 

31.)
36

defendant’s financial stability. Likewise, no expert opined that financial pressures could 

contribute to defendant’s risk of reoffending. We find no abuse of discretion in the trial 

court’s ruling excluding the proffered testimony of Lopez. 

We reach the same conclusion with respect to the proffered testimony of Dr. 

North. Dr. North would have testified that he evaluated defendant in April 2017 and 

found he was no longer an SVP.15 The trial court could reasonably conclude that an SVP 

evaluation from two years ago was not relevant to the question whether defendant was 

currently an SVP, which was the question before the jury. (See CALCRIM No. 3454A.) 

No abuse of discretion appears from the exclusion of Dr. North’s testimony.

No abuse of discretion appears from the exclusion of Pierce’s testimony either. 

Pierce, a unit supervisor at Coalinga, would have testified that defendant had not acted 

out or exhibited behaviors common to persons with volitional impairment, such as 

possessing child pornography or behaving violently. We review the trial court’s exercise 

of discretion on the basis of the facts known to the court at the time of its ruling. (People 

v. Hendrix (2013) 214 Cal.App.4th 216, 243.) Here, the trial court granted the 

prosecutor’s motion to exclude Pierce’s testimony as irrelevant and cumulative, but 

contemporaneously denied the prosecutor’s motion to exclude the testimony of Drs. 

Hopkins and Cook. At the time of the trial court’s ruling, Drs. Hopkins and Cook were 

each expected to testify about defendant’s behavior in custody. On the record before us, 

the trial court could reasonably conclude that additional testimony concerning

defendant’s behavior would be cumulative, and any testimony concerning the behavior of 

other committed persons would be irrelevant. We perceive no abuse of discretion in the 

exclusion of Pierce’s testimony. 

15 There was no proffer in the trial court as to Dr. North’s conclusions. 
37

No error appears from the trial court’s ruling with respect to the proffered 

testimony of Dr. Hopkins. As noted, Dr. Hopkins was described as a unit psychologist at 

Coalinga and a member of defendant’s treatment team. Dr. Hopkins was expected to 

testify about “how he’s doing at the hospital; whether he’s been going to classes, and 

what kind of behavior he has had there.” The trial court denied the prosecutor’s motion 

to exclude Dr. Hopkins’s testimony. On cross-examination, defendant’s trial counsel 

elicited hearsay evidence from Dr. Jeffrey Davis, based on his conversations with Dr. 

Hopkins. When challenged, defendant’s trial counsel represented that he would not call 

Dr. Hopkins as a witness and then proceeded to elicit more hearsay evidence from Dr. 

Davis. The trial court did not force or even suggest this arrangement. On the record 

before us, we do not even find a ruling that can be said to have been adverse to defendant, 

let alone a manifest abuse of discretion. We reject the claim of error.16

That leaves Dr. Cook. No abuse of discretion appears here either. Dr. Cook 

would have testified that he treated defendant for depression and observed that defendant 

was compliant with his medication, regularly attended treatment and meetings, and 

showed no signs of aggression at Coalinga. As noted, the trial court denied the 

prosecutor’s initial motion in limine to exclude Dr. Cook’s testimony on grounds of 

relevance but granted her renewed motion after Dr. Jeffrey Davis completed his 

testimony. The trial court observed that Dr. Cook was not an SVP evaluator, and thus not 

qualified to render an opinion on defendant’s risk of reoffending. The trial court also 

observed that Dr. Davis had already testified to defendant’s behavior in the hospital. 

Under the circumstances, the trial court concluded that Dr. Cook’s testimony was 

unnecessary and would require an undue consumption of time. We cannot say the court 

16 To the extent defendant claims ineffective assistance of counsel based on his trial 

counsel’s election to not call Dr. Hopkins, we reject that claim as well. 
38

abused its broad discretion. Dr. Davis unambiguously testified that defendant behaved 

appropriately in custody. Dr. Davis also testified that defendant participated in treatment, 

though he failed to complete a treatment program (a fact no party disputes). Additional 

testimony from Dr. Cook would not have been necessary to show that defendant was not 

acting out in custody. Defendant emphasizes that Dr. Cook would have also testified 

about his compliance with treatment for depression, but does not explain how that 

testimony would have been relevant to his diagnosed mental disorder of pedophilia 

(which, again, was undisputed), or how compliance with treatment for depression would 

bear on his risk of reoffending. We find no error. 

F. Cumulative Prejudice

Finally, defendant contends the cumulative effect of the errors in his case denied 

him a fair trial. (People v. Hill (1998) 17 Cal.4th 800, 844-845 [a series of trial errors, 

though independently harmless, may rise to the level of prejudicial error].) As we have 

either rejected the merits of defendant’s claims of error or found any asserted errors to be 

nonprejudicial, we reject his contention that the judgment must be reversed for 

cumulative error. 
39

III. DISPOSITION

The judgment is affirmed.

/S/

 

RENNER, J.

We concur:

/S/

 

ROBIE, Acting P. J.

/S/

 

MURRAY, J.