People v. Gunn, C090455

CourtCalifornia Court of Appeals
Writing for the CourtRENNER, J.
Decision Date24 June 2021
PartiesTHE PEOPLE, Plaintiff and Respondent, v. JACK LEE GUNN, Defendant and Appellant.
Docket NumberC090455

THE PEOPLE, Plaintiff and Respondent,

JACK LEE GUNN, Defendant and Appellant.


California Court of Appeals, Third District, Butte

June 24, 2021


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 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.


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 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. 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.

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, 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...

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