People v. Gunn CA3
C090455
Cal. Ct. App.Jun 24, 2021Background
- Jack Lee Gunn was civilly committed as a sexually violent predator (SVP) after convictions for lewd acts on a child (2001) and a later child-molestation-related conviction (2005); he petitioned for unconditional discharge in 2019 at age 84.
- Jury trial on the §6605 petition focused only on whether Gunn was still "likely" to engage in sexually violent criminal behavior; diagnosis of pedophilic disorder and prior qualifying convictions were undisputed.
- Prosecution experts (Drs. Jeffrey and Stephen Davis) relied on criminal/probation records, photographs found during supervision, treatment noncompliance, and structured risk tools (Static-99R, SRA-FV) to conclude Gunn remained a high risk despite low actuarial scores.
- Defense experts (Drs. Korpi and Salz) agreed on the diagnosis but argued that advanced age, low actuarial scores, treatment exposure, and limited offense history made reoffense unlikely.
- Trial rulings: court admitted several probation/SVP reports (some redacted), excluded certain defense witnesses on relevance/consumption-of-time grounds, gave CALCRIM No. 3454A and expert-evidence/ reasonable-doubt instructions but did not give CALCRIM Nos. 223/224 on circumstantial evidence.
- Jury found Gunn remained an SVP; Gunn appealed raising instructional, hearsay, ineffective assistance, witness-exclusion, and cumulative-prejudice claims. Court affirmed.
Issues
| Issue | Plaintiff's Argument (People) | Defendant's Argument (Gunn) | Held |
|---|---|---|---|
| Failure to give CALCRIM Nos. 223/224 (circumstantial-evidence instructions) | People conceded the instructions should have been given but argued any error harmless. | Trial court erred; instruction on evaluating circumstantial evidence required and its omission violated due process. | Court accepted concession of error but applied Watson harmlessness (nonconstitutional); error harmless because jury had CALCRIM Nos. 332 and 219 and decided between competing expert inferences. |
| Use of CALCRIM No. 3454A (treatment-failure language and "additional/relevant evidence" phrasing) | Instruction correctly implemented §6605/§6600 and permissibly lets jury consider treatment nonparticipation as evidence the committed person’s condition/status hasn’t changed. | Instruction broadened statute, letting jury treat treatment failure as indication of SVP status and risk without proving continued dangerousness beyond a reasonable doubt. | Court rejected Gunn’s statutory/due-process reading, construed "condition" as status and held instruction consistent with statutory purpose; any variance harmless. |
| Admission of documentary exhibits (probation reports, redacted SVP eval) | Exhibits admissible under §6600 hearsay-authorization for documentary evidence about prior offenses or were cumulative/harmless. | Exhibits included multi-level, case-specific hearsay not covered by exceptions (Sanchez) and should have been redacted/excluded. | Court acknowledged some inadmissible material but found any erroneous admissions harmless because experts had already related same facts and evidence was cumulative. |
| Ineffective assistance for not objecting to expert case-specific hearsay and some photographs | (People did not substantively oppose on appeal.) | Counsel’s failure to object to experts’ case-specific hearsay and to certain exhibits was objectively unreasonable and prejudicial. | Court found counsel’s omissions plausibly tactical (letting harmless/contextual material in to support defense themes) and no reasonable probability of a different outcome; claim rejected. |
| Exclusion of proposed defense witnesses (Lopez, Drs. Cook, North, Hopkins, Pierce) | Exclusions were within trial court discretion under Evidence Code §352 and relevance rules. | Excluding witnesses deprived Gunn of material, exculpatory testimony and violated his right to present a defense. | Court held no abuse of discretion: some witnesses were cumulative or weakly relevant, others were excluded for undue time/limited probative value; Hopkins’ situation did not produce a prejudicial ruling. |
| Cumulative error | Errors, if any, were harmless and not prejudicial in aggregate. | Combined errors denied a fair trial. | Court found no reversible cumulative prejudice; affirmed judgment. |
Key Cases Cited
- Chapman v. California, 386 U.S. 18 (1967) (establishes harmless-beyond-a-reasonable-doubt standard for constitutional errors)
- People v. Rogers, 39 Cal.4th 826 (2006) (federal Constitution does not require circumstantial-evidence instruction where reasonable-doubt instruction is correct)
- People v. Ghilotti, 27 Cal.4th 888 (2002) (definition and standard for "likely" under SVPA)
- People v. Shazier, 60 Cal.4th 109 (2014) (discussion of Static-99R and actuarial tools in SVP context)
- People v. Otto, 26 Cal.4th 200 (2001) (§6600 authorizes use of documentary hearsay like presentence and probation reports for prior-offense details)
- People v. Sanchez, 63 Cal.4th 665 (2016) (limits expert testimony about case-specific hearsay; experts may rely on but not repeat such hearsay to the jury as truth)
- People v. Burroughs, 6 Cal.App.5th 378 (2016) (applies Sanchez principles to SVP hearings; discusses improper hearsay in exhibits)
- People v. LaBlanc, 238 Cal.App.4th 1059 (2015) (treatment participation is a material factor in assessing continued dangerousness under SVPA)