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People v. Krueger

California Court of Appeals, Fifth District
Mar 17, 2008
No. F052681 (Cal. Ct. App. Mar. 17, 2008)

Opinion


THE PEOPLE, Plaintiff and Respondent, v. JOHN WALTER KRUEGER, Defendant and Appellant. F052681 California Court of Appeal, Fifth District March 17, 2008

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

APPEAL from a judgment of the Superior Court of Kern County. Stephen P. Gildner, Judge, Super. Ct. No. BF114244A.

George W. Woodworth for Defendant and Appellant.

Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Kathleen A. McKenna and Lloyd G. Carter, Deputy Attorneys General, for Plaintiff and Respondent.

OPINION

CORNELL, J.

A jury convicted John Walter Krueger of committing five counts of lewd and lascivious conduct with three young boys, in violation of Penal Code section 288, subdivision (a). The jury also found true the allegation that he committed the offenses against multiple victims. The trial court sentenced Krueger to five consecutive sentences of 15 years to life.

All further statutory references are to the Penal Code unless otherwise noted.

Krueger raises numerous contentions, primarily focused on the sentence and his belief that trial counsel was ineffective. We will affirm the judgment.

FACTUAL AND PROCEDURAL SUMMARY

We present the relevant facts through the witnesses in the order the jury received the evidence. We do this to ease the analysis of the contentions raised by Krueger.

S.’s Testimony

S. was age 12 at the time of trial. He was friends with Krueger’s three sons, W., T., and C. All four boys were born in the Ukraine and brought to the United States after they were adopted.

S.’s mother, Sharon, would take S. to visit Krueger and his sons in Bakersfield. During these visits, S. and his mother would stay at the hotel owned by Krueger. On these visits, S. slept on W.’s bed, which was located in Krueger’s bedroom. Sharon would sleep in a separate hotel room.

Sometimes, when everyone was in bed, Krueger would ask S. to come to his bed. When S. got into Krueger’s bed, Krueger would touch S.’s penis and take S.’s hand and place it on his (Krueger’s) penis. The two would rub each other’s penises. Krueger would have an erection when S. touched his penis. These encounters occurred approximately five to six times in Bakersfield.

S. also heard Krueger call C. to his bed. S. could see what Krueger was doing to C. when W. got out of bed to get a drink of water. It appeared Krueger was “humping” C. or poking his penis into C.’s buttocks. S. did not see C. touch Krueger’s penis, but he did see Krueger touch C.’s penis.

S. also heard Krueger call W. and T. to his bed, and he saw Krueger do the same things with them that he had done with C. He saw this activity the five or six times he stayed at Krueger’s house.

On one occasion S. and his mother went on a snow-skiing trip with Krueger and his sons. Krueger and all four boys slept in Krueger’s motorhome while S.’s mother stayed in a cabin. Krueger asked S. to join him in his bed in the motorhome. When S. got into Krueger’s bed, Krueger again fondled him as described before.

On another occasion S. and his mother went on a vacation to San Diego with Krueger and his sons. S. ended up in Krueger’s bed and endured the same type of inappropriate activity.

On cross-examination, S. confirmed that T. and C. had not slept in Krueger’s room, so they could not see what occurred in Krueger’s room from their bedroom. S. had stayed with Krueger three or four times before the first molestation occurred, making S. 10 years of age when the molestations began.

On the way home from San Diego, S. told his mother that he was uncomfortable around Krueger. About a week later, S. told his mother that Krueger had molested him, W., C., and T. About 10 months later, S. and his mother reported the molestations to the police.

When S. first reported the molestations, he told the officers that he and the three boys all slept in the second bedroom, so he could not see what occurred in Krueger’s bedroom. When S. was interviewed a second time, he stated the only other boy he saw Krueger molest was W.

With the help of his mother, S. later remembered he had seen Krueger also molest C. and T. S.’s mother helped him remember things about the molestations about five times, with each session lasting one hour. Sometimes S.’s mother would ask him questions, and sometimes she would suggest things to S. that would help him remember things. She did not tell S. what to say. S.’s mother first helped him remember things before his first police interview. That session lasted one and one-half hours. After that session, S. and his mother went to see the police.

Sharon’s Testimony

S.’s mother, Sharon, testified that she adopted S. on July 29, 2002. Sharon had S. examined, and she learned that he has difficulty processing things told to him orally. He does much better if he can see pictures.

Sharon knows the Krueger boys and Krueger. They met in January 2003. Krueger learned that Sharon had adopted S. and wanted to introduce his boys to S. The boys instantly became friends.

The first time Sharon and S. traveled to Bakersfield was for a reunion for families that had adopted children from the Ukraine. Krueger hosted the event. Sharon and S. stayed at Krueger’s hotel. S. slept in Sharon’s room the first night and may have slept with the boys the second night.

Sharon and S. returned approximately six times to Bakersfield for visits. On most occasions, S. slept with the Krueger boys. In addition, Sharon and S. took three trips with Krueger and the boys -- a cruise to Mexico, a snow-skiing trip, and a trip to San Diego. When snow skiing, Sharon stayed in the lodge while Krueger and the boys stayed in Krueger’s motorhome.

The group went to San Diego over the Presidents’ Day weekend in 2005. Krueger arranged for two hotel rooms. The boys were split up between the two rooms, with an adult in each room. Krueger was irritable on that trip, which made Sharon uncomfortable. On the way home, Sharon asked S. if Krueger made him uncomfortable. S. answered yes. Sharon then asked S. when Krueger made him uncomfortable. S. replied that he was uncomfortable when Krueger called him to his bed. S. said that Krueger rubbed his body because S. was cold, and that Krueger touched his bottom while doing this, but did not mention any other types of bad touches. Sharon asked Krueger about bringing S. to his bed. Krueger admitted doing so, but denied molesting S.

In December 2005, Krueger posted a notice on a group Web site that stated he was hosting a boy from the Ukraine who was available for adoption. S. said he wanted to go meet the new boy and see the Krueger boys. Sharon said she needed to know what happened when S. got into bed with Krueger. S. stated that Krueger “humped” him. S. admitted that Krueger touched his penis and forced S. to touch his (Krueger’s) penis. S. also said that he saw Krueger do the same things with W., C., and T. Sharon admitted asking S. some questions, but denied helping S. remember what had occurred. Sharon also stated this occurred on only one occasion.

This was the term S. used for the molestation previously described.

Kathleen Neuman’s Testimony

Kathleen Neuman, a social worker with Kern County, supervised two visits Krueger had with his adopted sons. On January 11, 2006, Neuman heard Krueger ask C. how long he had been in the orphanage and whether he wanted to go back to the orphanage. C. also kissed T. on the lips and grabbed him by the shoulders and started gyrating while saying to T., “Let’s dance.”

During the January 18, 2006 visit, C. and T. placed their jackets over the observation window through which Neuman was watching so she could not see into the room. Krueger was sitting on the couch with W. and was whispering something to him. Neuman also observed C. try to kiss T. on the lips and heard Krueger comment that C. was a “pretty little boy.”

W.’s Testimony

W. was 12 years old when he testified. He was born in the Ukraine to a family of about 15 children. T. is W.’s biological brother and is two years younger than W. T. and W. went to live in an orphanage when W. was about seven. T. and W. were adopted by Krueger about three months before W. was to turn eight. C. was adopted about a year later.

W. stated that Krueger touched his private areas only to check to see if they were clean. Before C. was adopted, T. and W. shared a room and Krueger slept in another room. After C. was adopted, Krueger had a door installed between the two rooms. T. and C. slept in one room and W. and Krueger slept in another room in separate beds. W. would get into Krueger’s bed for about 30 minutes at night about once a week or so. W. did not remember why he did so, but when he got into Krueger’s bed he would just sleep.

Krueger never touched W.’s penis or buttocks. Nor did W. see Krueger touch T.’s or C.’s private areas. On one occasion C. got punished for touching T.’s privates, even though they were playing around.

T.’s Testimony

T. was nine when he testified. He stated that no one had ever touched his penis or buttocks. He admitted that Krueger touched his penis to make sure it was clean. T. admitted that on one occasion he told Donna Hansen, a licensed marriage/family therapist, that he was touched on his private area, but he meant to say that Krueger did not touch him. T. also admitted in a prior hearing that he testified that Krueger never touched his penis, and he never saw Krueger touch anyone else’s penis.

C.’s Testimony

C. was nine when he testified. He stated that no one had touched his penis or his buttocks. He did not remember telling Detective William Darbee that Krueger had touched his penis. He remembered telling Darbee that when Krueger touched him, it made him feel weird, and that the touching occurred in Krueger’s bed. C. also told Darbee he was touched on the outside of his clothes.

Hansen’s Testimony

T. is one of Hansen’s clients. During a counseling session, T. said that Krueger had touched him inappropriately. The session began with T. drawing three pictures. Hansen asked T. to draw a picture of the person who had touched him. T. drew a picture of two people, one individual larger than the other. He identified the larger individual as Krueger and the smaller individual as himself. T. said Krueger had touched his penis. The picture T. drew showed Krueger’s hand cut off.

Hansen admitted on cross-examination that T. was asked approximately five times if he had been touched inappropriately before he stated he had. She also admitted that a child could be manipulated into making an admission of abuse if the question were asked repeatedly. She admitted that T. repeatedly had denied being touched by anyone, stated he missed his father, and stated he did not understand why he could not go home. Hansen did not feel she had badgered T. into accusing Krueger of molesting him.

Darbee’s Testimony

Darbee was assigned to the juvenile/sex crimes division of the Bakersfield Police Department. He went to Krueger’s hotel to interview him in December 2005. When he arrived, all the boys were dressed in their underwear, as was Krueger. While waiting for Krueger, Darbee saw C. put his hand inside another boy’s briefs, apparently touching his penis.

Darby interviewed C. on two occasions. The first was late the night he first appeared at the hotel. A video recording of the interview was introduced into evidence and played for the jury.

C. was interviewed a second time a few days later. Darbee observed the beginning of the interview and conducted the latter part of the interview. A video recording of this interview also was played for the jury. In the interview, C. admitted he had been touched inappropriately by Krueger and claimed he had been molested approximately 10 times.

C.C.’s Testimony

C.C. was age 27 at the time of trial. He was born in Cambodia and moved to Bakersfield in 1986. He met Krueger through their church. C.C. began spending time with Krueger. Krueger molested C.C. for the first time when C.C. spent the night at Krueger’s motel. Krueger fondled and masturbated C.C. At the time C.C. was approximately seven years old. Krueger molested C.C. approximately one to three times in a two-year period. When C.C. was 16, he told his family and the church what had occurred. The church investigated but nothing came out of the investigation.

S.R.’s Testimony

S.R. was age 32 at the time of trial. S.R. was eight years old when he met Krueger. After S.R. and his mother grew to trust Krueger, S.R. would spend the night at Krueger’s house. Eventually, S.R. ended up sleeping in Krueger’s bed. Krueger began by asking S.R. to sleep in his bed so he could read him a story. After about the third time S.R. had slept with Krueger, Krueger asked S.R. to do inappropriate things. Krueger liked to masturbate while touching S.R.’s penis. Krueger molested S.R. approximately 15 times, beginning when S.R. was eight and ending when S.R. was 11 or 12.

Defense Evidence

Krueger’s defense consisted of several character witnesses, including his stepson, and a psychiatrist who suggested the techniques used in investigating this case could have led to false accusations. The character witnesses all testified that they did not believe Krueger had molested anyone. Krueger’s stepson testified that Krueger was a good father, he had not been molested by Krueger, and he did not believe Krueger would molest any child.

Our brief summary of the defense evidence does not mean we give it little weight. We summarized it so because it was the jury’s function to determine the weight to be assigned the testimony.

Procedural Summary

The amended information charged Krueger with three counts of violation of section 288, subdivision (a) for acts committed against S., and one count each for acts committed against T., W., and C. Each count also alleged the offense fell within the meaning of section 667.61, subdivisions (c) and (e)(5) because there were multiple victims. The jury found Krueger guilty of three counts of molesting S., and one count each of molesting T. and C. Krueger was found not guilty of molesting W. The jury also found the charged enhancement true for each guilty verdict.

The trial court denied Krueger’s motion for a new trial and sentenced him to five consecutive sentences of 15 years to life, for a total sentence of 75 years to life.

DISCUSSION

I. Sufficiency of the Evidence

We begin by addressing two claims that the verdicts were not supported by sufficient evidence. Our review of the sufficiency of the evidence is deferential. We “‘review the whole record in the light most favorable to the judgment below to determine whether it discloses substantial evidence -- that is, evidence which is reasonable, credible, and of solid value -- such that a reasonable trier of fact could find the defendant guilty beyond a reasonable doubt.’ [Citation.]” (People v. Hillhouse (2002) 27 Cal.4th 469, 496; People v. Superior Court (Jones) (1998) 18 Cal.4th 667, 681.) We focus on the whole record, not isolated bits of evidence. (People v. Slaughter (2002) 27 Cal.4th 1187, 1203.) We presume the existence of every fact the trier of fact reasonably could deduce from the evidence that supports the judgment. (People v. Kraft (2000) 23 Cal.4th 978, 1053.) We will not substitute our evaluations of a witness’s credibility for that of the trier of fact. (People v. Koontz (2002) 27 Cal.4th 1041, 1078.)

The jury found Krueger guilty of committing lewd and lascivious acts against T., in violation of section 288, subdivision (a) as alleged in count 4 of the information. Krueger alleges the judgment was not supported by substantial evidence. Krueger’s argument attempts to discredit the testimony supporting the judgment, while emphasizing the testimony that supports his argument. Our task is just the opposite.

Hansen testified that T. told her during a counseling session that Krueger had touched his penis, and that T. drew pictures to explain what he was telling her. Hansen testified the pictures were consistent with T.’s statements. S. testified that he heard Krueger call T. to his bed and observed Krueger rubbing his penis against T. and observed Krueger touch T.’s penis.

Krueger argues that this evidence was, in essence, unbelievable. He begins by attacking S.’s credibility. Krueger asserts that S. admitted he lied about seeing Krueger molest T. The record is not so clear. There certainly were some inconsistencies in S.’s testimony. He was interviewed at least twice. During cross-examination, Krueger’s counsel established that during one interview S. stated he and the three Krueger boys would sleep in one bedroom and Krueger would sleep in the other bedroom. S. stated that he could see from this bedroom into the other bedroom. At trial, it was established that this was impossible because of the location of the bedroom doors. Under questioning, S. admitted that it was not true that he could see Krueger molesting the Krueger boys from the boys’ bedroom.

This admission by S., however, was not a statement that Krueger did not molest T. S. testified at trial that he slept with W. in a bed that was located in Krueger’s room, and from this bed he could see the other boys being molested by Krueger.

While the admission by S., and other inconsistencies in his statements to the police, certainly raised issues about his credibility, it was for the jury to resolve the credibility issues. On review, we will not substitute our evaluation of a witness’s credibility for that of the trier of fact. (People v. Koontz, supra, 27 Cal.4th at p. 1078.) In other words, we are bound by the credibility determinations of the trier of fact. The jury in this case obviously determined S.’s testimony was worthy of belief. There was substantial evidence in the record to support this determination.

We reach the same conclusion when analyzing Krueger’s other credibility arguments. He again attacks S.’s credibility because S. testified that his mother helped him remember events. According to S., his mother asked him questions that helped him remember more about the molestations. S. testified there were five or six such sessions, each lasting between 60 and 90 minutes. Sharon, S.’s mother, testified that these sessions did not occur as described by S. Once again, this testimony raises issues about S.’s credibility, but those issues were for the jury to consider, not this court.

Krueger also attacks Hansen’s credibility. He claims that Hansen rewarded T. when he admitted Krueger molested him. According to Krueger, Hansen assumes all of her patients have been molested and feels it is her job to get them to admit they were molested. Once again, the testimony is not quite so clear.

Krueger’s counsel’s first question to Hansen on cross-examination was whether she assumed a child who was referred to her for suspected abuse was abused. Hansen stated that she tried to keep an open mind. When counsel asked if there could be false accusations of abuse, Hansen stated that she would not lead a child to say something that did not happen. On the third try counsel stated, “But the point is that you assume it happened, do you not?” Hansen replied, “Yeah. I guess I would.”

During direct examination, the People established that T. admitted he had been molested in September 2006, but he did not want to talk about the molestation. At the next session, T. again stated he did not want to talk about the molestation. During the following session, T. was very quiet. Hansen asked him if he wanted to draw. T. drew some pictures, and Hansen then asked him what was going on in the pictures. Hansen then gave him another piece of paper on which to draw and asked him to draw a picture of the person who had “touched him.” After he drew a picture of two figures, one larger than the other, Hansen asked some questions about it. T. said that the larger person was touching his penis. He identified the larger person as “Papa.”

There was no testimony that Hansen attempted to get T. to identify Krueger as the one who had molested him. Instead, Hansen merely followed up on T.’s statement that he had been abused by getting him to discuss the incident. There was no evidence that Hansen’s assumption that T. had been abused, if indeed such an assumption existed, influenced T.’s disclosure.

Nor does the record support Krueger’s assertion that T. was rewarded after disclosing the molestation. Instead, Hansen testified that after T. admitted he had been molested, but declined to talk about it, the next activity was to play with puppets. There is no indication that T. was told that if he said he was molested he could play with the puppets.

This review of the record to clarify Krueger’s assertions, however, misses the point. Assuming Krueger’s arguments raised a question about Hansen’s methods, it was for the jury to decide whether her methods led to a false disclosure by T.

On review, we are required to assume the existence of every fact the jury reasonably could deduce from the evidence at trial. (People v. Kraft, supra, 23 Cal.4th at p. 1053.) The jury reasonably could have deduced from Hansen’s testimony that T.’s disclosure that he was molested by Krueger was valid and based the verdict on that testimony. This argument necessarily fails.

II. Newly Discovered Evidence

After the jury found Krueger guilty, he discharged his trial counsel and retained new counsel. A motion for a new trial followed. The trial court denied the motion in its entirety.

One of the grounds argued in Krueger’s motion was that he had discovered new evidence that would assist his defense. He contends the trial court erred in denying the motion on this ground.

Motions for new trial are authorized by section 1179 et seq. Section 1181 lists the grounds on which such a motion may be made. Subdivision 8 of section 1181, on which Krueger relies, states that a new trial may be granted “When new evidence is discovered material to the defendant, and which he could not, with reasonable diligence, have discovered and produced at the trial.”

The new evidence offered by Krueger was testimony by Christopher Reid. Reid was a member of the same church as Krueger in 1996 when C.C. charged Krueger with molestation. Reid was the moderator of the committee assigned by the church to investigate C.C.’s charges. The committee interviewed C.C. on two occasions and also interviewed Krueger. In addition, the committee performed a physical exam of Krueger. The purpose of this exam was to ascertain the characteristics of Krueger’s penis. C.C. had described Krueger’s penis as circumcised with a white or light pink color. The medical exam conducted by the committee found Krueger’s penis was uncircumcised and dark brown in color. The committee concluded there was insufficient evidence to proceed in prosecuting Krueger, apparently based on C.C.’s erroneous description of Krueger’s penis. Krueger argues this evidence would have destroyed C.C.’s credibility, resulting in an acquittal.

As Krueger admits, we review the trial court’s ruling on a motion for a new trial to determine whether the trial court abused its discretion in denying the motion. (People v. McDaniel (1976) 16 Cal.3d 156, 177.) There was no abuse here. At the hearing, Reid testified that he provided Krueger’s counsel with a copy of the report prepared by the committee prior to trial. The evidence on which Krueger relied at the hearing, therefore, was not newly discovered. This ground alone justified denial of the motion. (People v. Garcia (1935) 2 Cal.2d 673, 685.)

III. Ineffective Assistance of Counsel

A defendant is entitled to a new trial if he received ineffective assistance of counsel at trial. (People v. Lagunas (1994) 8 Cal.4th 1030, 1036.) Krueger argues he is so entitled.

“Establishing a claim of ineffective assistance of counsel requires the defendant to demonstrate (1) counsel’s performance was deficient in that it fell below an objective standard of reasonableness under prevailing professional norms, and (2) counsel’s deficient representation prejudiced the defendant, i.e., there is a ‘reasonable probability’ that, but for counsel’s failings, defendant would have obtained a more favorable result. [Citations.] A ‘reasonable probability’ is one that is enough to undermine confidence in the outcome. [Citations.]

“Our review is deferential; we make every effort to avoid the distorting effects of hindsight and to evaluate counsel’s conduct from counsel’s perspective at the time. [Citation.] A court must indulge a strong presumption that counsel’s acts were within the wide range of reasonable professional assistance. [Citation.] … Nevertheless, deference is not abdication; it cannot shield counsel’s performance from meaningful scrutiny or automatically validate challenged acts and omissions. [Citation.]” (People v. Dennis (1998) 17 Cal.4th 468, 540-541.)

“If the record contains an explanation for the challenged aspect of counsel’s representation, the reviewing court must determine ‘whether the explanation demonstrates that counsel was reasonably competent and acting as a conscientious, diligent advocate.’ [Citation.] On the other hand, if the record contains no explanation for the challenged behavior, an appellate court will reject the claim of ineffective assistance ‘unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation .…’ [Citation.]” (People v. Cudjo (1993) 6 Cal.4th 585, 623.)

We will apply these standards to each of Krueger’s claims of deficient performance by his counsel.

A. Failure to Call Reid as a Witness

The trial court denied Krueger’s motion for a new trial based on the theory that Reid’s testimony was newly discovered evidence. As explained, Reid was not a newly discovered witness because Krueger’s counsel obtained a copy of the church’s investigative report before trial.

Krueger now reframes his argument by asserting that his counsel was ineffective for failing to call Reid as a witness. Krueger is contending that had his counsel called Reid as a witness, the report prepared by Reid for the church could have been admitted into evidence. The jury would have learned from this report that C.C. told the church investigators that Krueger was circumcised and that his penis was white, while in reality Krueger was not circumcised and his penis was dark in color. The jury also would have learned the church investigators concluded there was no basis for bringing charges against Krueger.

Krueger’s argument is not supported by the rules of evidence. The report would have been inadmissible hearsay. (Evid. Code, § 1200, subds. (a), (b).) It was an out-of-court statement offered for the truth of the matter asserted. No exception to the rule precluding hearsay appears, and Krueger does not suggest an exception exists. (Id., § 1220 et seq.) Moreover, while Reid may have been permitted to testify as to statements he heard C.C. make (id., §§ 1220, 1235), he would not have been permitted to testify as to the appearance of Krueger’s penis because he lacked personal knowledge of the matter. (Id., § 702, subd. (a).) Reid admitted that two other members of the church’s investigating committee examined Krueger. His knowledge was limited to what he was told by those two members, which, of course, is inadmissible hearsay.

Reid’s testimony, therefore, was collateral to the issues presented to the jury. Krueger’s counsel’s decision not to call Reid as a witness, therefore, was well within the wide range of professional assistance and did not result in Krueger receiving ineffective assistance of counsel.

B. Failure to Object

Krueger claims his counsel was ineffective for failing to object at numerous points during the trial. We will discuss the incidents individually.

1. Opening statement

During his opening statement, the prosecutor began by summarizing the testimony of the direct witnesses. He then turned to the anticipated testimony of C.C. and S.R. with the following comments: “The case won’t end there. This trial will not end there, evidence-wise. We [will] hear from who I am going to label prior victims but, realistically, that is your decision to make. [¶] We are going to hear from two people. One is a person named [C.C.], presently 27 years old.”

The prosecutor then summarized C.C.’s anticipated testimony without again referring to C.C. as a victim. The prosecutor next turned to S.R.’s anticipated testimony. “I told you that there were two prior victims. The other person is named [S.R.]. He is now 32 years old.”

There was not any other reference to either C.C. or S.R. as victims during the prosecutor’s opening statement. Krueger contends that he received ineffective assistance of counsel because his counsel failed to object to these “victim” references. We disagree.

As stated above, to establish that Krueger’s counsel was ineffective, his representation must have fallen outside the bounds of reasonableness and Krueger must have suffered prejudice as a result of this deficient representation. Krueger has failed to cite any authority or provide sufficient argument to support either prong.

Krueger has not cited any authority for the assertion that the prosecutor’s statements were objectionable. His comments were not evidence, and the jury was so instructed. Moreover, the prosecutor told the jury that while he referred to C.C. and S.R. as victims, it was ultimately the jury’s responsibility to decide whether they were victims. We see no basis for Krueger objecting to the prosecutor’s opening statement.

Also, Krueger cannot establish that had his counsel objected, he would have obtained a better result. It is difficult to believe the jury was influenced by these comments. The jury was instructed that the statements were not evidence. There was virtually no evidence to contradict the testimony of the witnesses. The only issue was whether the jury found C.C. and S.R. credible. It is inconceivable that an objection during opening statement would have changed the jury’s resolution of this issue. Krueger’s counsel was not ineffective when he failed to object to these comments.

2. Prior conduct evidence

Krueger claims his counsel was ineffective for failing to object to the admission of the alleged prior acts of molestation from C.C. and S.R. The People sought to introduce this evidence under both Evidence Code sections 1101 and 1108. The trial court found the evidence admissible under both code sections.

Krueger cites People v. Ewoldt (1994) 7 Cal.4th 380 as authority for the proposition that the evidence should have been excluded. Ewoldt, decided before the Legislature adopted Evidence Code section 1108, addressed the admission of evidence of prior acts of sexual misconduct pursuant to Evidence Code section 1101.

There are several reasons for rejecting Krueger’s argument. First, Krueger’s counsel did object to the evidence. He argued the testimony should be excluded under the provisions of both Evidence Code sections 1101 and 1108. The trial court held a hearing before trial to hear the proposed testimony. The trial court then heard argument from both counsel on the admissibility of the proposed evidence. Krueger does not explain what more his counsel could, or should, have done in seeking to exclude the evidence. This omission, in essence, is a concession that trial counsel did everything necessary to protect Krueger’s rights.

Second, to the extent Krueger is attempting to argue the trial court erred in admitting the evidence, the failure to discuss Evidence Code section 1108 as a basis for the admission of the testimony requires rejection of the argument. Even if we assume the trial court should not have permitted the evidence pursuant to Evidence Code section 1101, Krueger fails to explain why the evidence should have been excluded pursuant to the provisions of section 1108. We must assume from this omission that Krueger concedes the evidence was admissible pursuant to the terms of this statute.

Finally, if we proceed to the merits of the admissibility of C.C.’s and S.R.’s testimonies pursuant to Evidence Code section 1108, we would find it admissible. Evidence Code section 1108, subdivision (a) permits admission of “evidence of the defendant’s commission of another sexual offense” if the defendant is charged with a sexual offense and the trial court concludes the evidence should not be excluded pursuant to policies stated in Evidence Code section 352.

Krueger was accused of committing various sexual offenses as defined in Evidence Code section 1108, subdivision (d)(1)(A), and the testimony of C.C. and S.R. constituted sexual offenses. Therefore, the testimony should have been excluded only if the provisions of Evidence Code section 352 so required.

Evidence Code section 352 provides the trial court with discretion to exclude evidence if the court determines that the probative value of the evidence is substantially outweighed by (1) the probability that its admission will necessitate undue consumption of time, (2) the probability that its admission will create a substantial danger of undue prejudice, (3) the probability that its admission will create a substantial danger of confusing the issues, or (4) the probability that its admission will create a substantial danger of misleading the jury. The trial court has discretion in deciding whether to exclude evidence pursuant to the provisions of Evidence Code section 352. We review for an abuse of discretion. (People v. Tafoya (2007) 42 Cal.4th 147, 174.)

In People v. Harris (1998) 60 Cal.App.4th 727, 737-741, the appellate court identified five factors that may be used to review the admissibility of proposed Evidence Code section 1108 testimony. We will utilize these factors to analyze this issue.

The first factor is the inflammatory nature of the proposed evidence. Application of this factor requires us to compare the prior crime evidence with the current crimes. In this case, the prior crime evidence essentially was identical to the charged offenses. Krueger points out that C.C.’s testimony hinted that he may have been sodomized, while none of the other witnesses claimed they were sodomized. This testimony was discredited during cross-examination, however, and C.C. never claimed that he was sodomized. This factor, therefore, does not suggest the testimony should have been excluded.

The second factor is the probability that the prior crime evidence would confuse the jury. It is unlikely the jury was confused by C.C.’s and S.R.’s testimonies. The jury was properly instructed, and C.C. and S.R. were adults at the time they testified. No one suggested that Krueger should have been convicted for the crimes he committed against C.C. and S.R. We conclude there was little probability the jury would be confused by the testimony.

The third factor to be considered is the amount of time that has passed between the prior crimes and the charged crimes. In this sliding scale analysis, the proposed testimony becomes less probative as the amount of time between the events increases. The information charged Krueger with molesting the boys in this case beginning in August 2002. S.R. testified that Krueger molested him beginning in the early 1980’s through approximately 1986. C.C. testified that Krueger began molesting him in approximately 1986 and continued until approximately 1988. According to the testimony, therefore, approximately 14 years passed between the prior crime testimony and the current charges. While this factor suggests the prior crime evidence was remote, it was not so remote as to require exclusion in and of itself.

The fourth factor is the consumption of time required by the prior crime testimony. Very little court time was taken up by C.C.’s and S.R.’s testimonies. The complete testimony of both witnesses consisted of approximately 31 pages of the reporter’s transcript. This factor clearly does not suggest the testimony should have been excluded.

The final factor identified in Harris is the probative value of the evidence. Here, we should consider whether the proposed testimony was material and whether it was cumulative. Again, this factor favors admission of the prior crime evidence. C.C.’s and S.R.’s testimonies were very relevant. Krueger’s defense was, in large part, an attempt to discredit S. S. became confused while testifying, probably because of his age and because English is not his primary language. C.C.’s and S.R.’s testimonies enhanced S.’s credibility because they testified they had similar experiences with Krueger. This is the reason the Legislature changed the law to permit prior sex offense evidence to be admitted.

Each of the factors, with the possible exception of the remoteness factor, favored admission of the testimony. Thus, the trial court did not abuse its discretion in admitting the prior crime evidence. Krueger received a full hearing on the issue and the trial court did not err in its ruling. There was no ineffective assistance of counsel in this area.

3. S.’s testimony

Krueger contends that his counsel should have moved to exclude S.’s testimony because the testimony was not credible. The argument is unsupported by any authority, which is sufficient grounds to reject the argument as abandoned. (Poway Royal Mobilehome Owners Association v. City of Poway (2007) 149 Cal.App.4th 1460, 1480.) We also reject the argument, however, because it has no merit.

As discussed above, Krueger’s arguments all attack S.’s credibility. Credibility, however, is to be determined by the jury. (Evid. Code, § 312, subd. (b).) An assertion that a witness lacks credibility is not grounds for excluding the testimony, except, perhaps, in extreme cases. This was not an extreme case, and Krueger has failed to cite any authority for the proposition that had counsel objected to the evidence, it would have been excluded. Counsel is not ineffective for failing to make a meritless objection. (People v. Ochoa (1998) 19 Cal.4th 353, 463.)

C. Submitting a Question of Law to the Trial Court

Neuman, the social worker who observed at least two visits between Krueger and W., T., and C., asserted the information was privileged pursuant to Welfare and Institutions Code sections 827 and 10850, Penal Code section 11167.5, and Evidence Code section 1040.

This section establishes the confidentiality of juvenile court files, as well as exceptions thereto.

This section establishes confidentiality for public assistance records.

This section establishes confidentiality for mandatory child abuse reports.

This section creates a privilege for official information.

The prosecutor stated that the above privileges, to the extent they may apply to the requested testimony, must give way pursuant to the provisions of Evidence Code section 1027. This section provides that the psychotherapist-patient privilege (Evid. Code, § 1010 et seq.) does not apply if the patient is under the age of 16 and if the psychotherapist has reasonable cause to believe the child has been the victim of a crime and disclosure of the information would be in the best interests of the child.

The prosecutor’s reliance on Evidence Code section 1027 is misplaced because Neuman was not relying on psychotherapist privilege.

When the trial court requested comment by Krueger’s counsel, he responded that he was not familiar with the code sections to which Neuman referred and submitted the matter to the court. Krueger claims his counsel was ineffective for failing to familiarize himself with the code sections on which Neuman relied.

Neuman’s testimony was limited to her observations as a percipient witness during Krueger’s supervised visits with the three boys. Since the prosecutor did not seek to review a juvenile case file, public assistance records, or official information, none of the privileges asserted by Neuman was applicable. Accordingly, she had no basis to refuse to testify. If we assume Krueger’s counsel should have familiarized himself with the code sections cited by Neuman, the failure to do so did not have any effect on the trial because they were inapplicable. It follows that Krueger did not receive ineffective assistance of counsel.

D. Failure to Request Answer Be Stricken

Hansen is the therapist who treated T. She testified to some of the information T. told her during counseling sessions. One of the statements T. made was that Krueger had touched him inappropriately. The prosecutor then asked Hansen if she believed T. In the record, Hansen states, “Yes, I did,” before Krueger’s counsel objected to the question. The trial court properly sustained the objection. Krueger’s counsel failed to request Hansen’s response be stricken from the record. Krueger asserts that his counsel was ineffective for failing to make the motion to strike.

Even if we assume Krueger’s counsel erred in failing to request Hansen’s answer be stricken from the record, we doubt that, had the motion to strike been made, Krueger would have obtained a better result. Krueger’s timely objection, and the trial court’s sustaining the objection, undoubtedly informed the jury that Hansen’s opinion about T.’s veracity was irrelevant. The jury was instructed that it was required to decide whether a witness was believable. We presume the instructions were followed, and Krueger has not attempted to rebut that presumption. (People v. Alfaro (2007) 41 Cal.4th 1277, 1326.) The failure to make a motion to strike was a trivial matter and did not result in Krueger’s counsel being ineffective.

E. Additional Character Witnesses

The final assertion of ineffective assistance of counsel is related to Krueger’s defense. Robert D. Gonzales, Barbara Clevenger, Matthew Garrett, Jonathan Chen, Linda Krueger, Teresa Sterrett, Monika Freeman, and Paul Robert Krueger all testified as to Krueger’s good character in one form or another. At the end of a trial day during the defense case, Krueger’s counsel was instructed to call the next witness. He informed the trial court that the only witnesses available that afternoon were additional character witnesses and that he was looking to the trial court for “guidance on that.” The trial court sustained the prosecutor’s objection to these witnesses as cumulative.

Krueger contends his counsel was ineffective for not arguing that he should have been allowed to call additional character witnesses. We disagree. Krueger’s counsel undoubtedly recognized that calling additional character witnesses would not have enhanced Krueger’s defense, but instead ran the risk of alienating the jury. The decision to accept the trial court’s ruling falls well within the wide range of reasonable professional assistance. Even if it does not, Krueger fails to explain, nor can we conceive, how the testimony of additional character witnesses would have resulted in a more favorable outcome. Krueger’s “good character” was established before the jury through the eight witnesses that so testified. Additional character witnesses would not have made any difference in the outcome.

IV. The Sentence

Krueger makes several contentions concerning his sentence. We will discuss them separately.

A. Statutory Penalty

Krueger claims the maximum sentence to which he was exposed was only 24 years, instead of the 75-years-to-life term that was imposed by the trial court. The argument appears to be based on a typographical error in the jury form.

Krueger argues that his maximum sentence was eight years for counts 1, 2 and 3, and eight years each for counts 4 and 6.

The first amended information charged Krueger with six counts of violating section 288, subdivision (a). Each count also charged as an enhancement that Krueger committed the crimes against more than one victim pursuant to the provisions of section 667.61.

The enhancement reads in full: “IT IS FURTHER ALLEGED THAT JOHN WALTER KRUEGER, IN THE COMMISSION OF THE ABOVE CHARGED OFFENSE HAS COMMITTED AN OFFENSE IN VIOLATION OF SUBDIVISION 667.61(C), AGAINST MORE THAN ONE VICTIM, WITHIN THE MEANING OF PENAL CODE SECTION 667.61(E)(5).”

Section 667.61 provides for an increased sentence for certain specified crimes under certain specified circumstances. The crimes specified in section 667.61 include violations of section 288, subdivision (a). (§ 667.61, subd. (c)(8).) One of the circumstances specified in section 667.61 is if the defendant is convicted in the action of committing one of the specified crimes against more than one victim. (§ 667.61, subd. (e)(5).) Therefore, the People alleged that Krueger committed a crime included in section 667.61, subdivision (c) and a circumstance specified in section 667.61, subdivision (e) applied to the case. This allegation, if found true, exposed Krueger to a term of 15 years to life on each count pursuant to the provisions of section 667.61, subdivision (b).

The verdict form erroneously stated: “We, the Jury, empaneled to try the above entitled cause, find it to be true that JOHN WALTER KRUEGER, in the commission of the above charged offense has committed an offense in violation of subdivision 661.61(c), against more than one victim, within the meaning of Penal Code Section 667.61(e)(5), as alleged in the Information.” (Italics added.) According to Krueger, the reference to section 661.61, subdivision (c) instead of section 667.61, subdivision (c), invalidated the enhancement finding. If Krueger is correct, his sentence would be limited to the term specified in the statute, or a maximum of eight years for each count. (§ 288, subd. (a).)

The enhancement found true for each count contained the same typographical error.

The section 667.61, subdivision (b) enhancement applies if the jury finds that (1) the defendant committed a crime specified in section 667.61, subdivision (c), under one of the circumstances specified in section 667.61, subdivision (e). The jury made the requisite findings. It found Krueger guilty of violating section 288, subdivision (a) (five counts), and found there was more than one victim in the case. (§ 667.61, subds. (c)(8), (e)(5).) These two findings required the trial court to impose a sentence of 15 years to life on each count pursuant to the terms of section 667.61, subdivision (b). The verdict form’s reference to section 661.61, instead of section 667.61 is irrelevant.

B. Counts 1 through 3

Krueger argues the trial court erred in sentencing him to a separate sentence for counts 1, 2, and 3 because the information and the verdict form for each count were identical. In essence, Krueger is arguing that the jury may have convicted him for each count based on the same act.

The evidence at trial was sufficient to support the three counts of molestation. S. testified he was molested by Krueger “[p]robably five or six times” in Bakersfield, and he identified at least two additional locations where he was molested -- during the snow-skiing trip and the trip to San Diego.

“‘In a criminal case, a jury verdict must be unanimous. [Citation.] … Additionally, the jury must agree unanimously the defendant is guilty of a specific crime. [Citation.] Therefore, cases have long held that when the evidence suggests more than one discrete crime, either the prosecution must elect among the crimes or the court must require the jury to agree on the same criminal act. [Citations.] [¶] This requirement of unanimity as to the criminal act “is intended to eliminate the danger that the defendant will be convicted even though there is no single offense which all the jurors agree the defendant committed.” [Citation.]’” (People v. Norman (2007) 157 Cal.App.4th 460, 464-465.)

The prosecutor did not elect a specific incident to support the three counts involving S. The trial court, however, instructed the jury with the unanimity instruction as follows: “The defendant is accused of having committed the crime of Penal Code section 288(a). The prosecution has introduced evidence for the purpose of showing that there is more than one act upon which a conviction for each count may be based. [¶] The defendant may be found guilty if the proof shows beyond a reasonable doubt that he committed any one or more of the acts; however, in order to return a verdict of guilty as to any count, all jurors must agree that he committed the same act or acts. [¶] It is not necessary that the particular act agreed upon be stated in your verdict. [¶] In addition, you may not use the same act to find the defendant guilty of more than one count.”

Krueger ignores this instruction in his argument. We, on the other hand, presume the jury followed the instruction (People v. Alfaro, supra, 41 Cal.4th at p. 1326) and based the guilty verdict in each count on a separate act. Accordingly, we reject Krueger’s argument.

C. Discretion of the Court

Finally, Krueger argues the trial court erred because it believed it was required to impose consecutive sentences on each count. This argument arises from the proceedings at the sentencing hearing.

The trial court initially stated that it was not certain if consecutive sentences were required. The prosecutor then argued for a different sentencing scheme altogether, based on his mistaken recollection of a particular case. The trial court recessed for lunch to allow time for some additional research on the topic. After the recess, the prosecutor corrected himself and confirmed that Krueger was eligible for a 15-year-to-life sentence on each count, and that the trial court had discretion to impose the sentences either consecutively or concurrently. The probation officer agreed with the prosecution’s assessment and specifically stated the trial court had discretion to impose the sentences either consecutively or concurrently. Krueger’s counsel thereafter argued that case law permitted imposition of concurrent sentences, and he urged the trial court to impose concurrent sentences. As stated above, the trial court imposed consecutive sentences.

It is clear from the record that the trial court understood it had discretion to impose either concurrent or consecutive sentences. To the extent Krueger is arguing otherwise, we reject the argument. We do not understand Krueger’s brief to suggest the trial court abused its discretion in imposing consecutive sentences, and therefore do not address that issue.

DISPOSITION

The judgment is affirmed.

WE CONCUR: WISEMAN, Acting P.J., HILL, J.


Summaries of

People v. Krueger

California Court of Appeals, Fifth District
Mar 17, 2008
No. F052681 (Cal. Ct. App. Mar. 17, 2008)
Case details for

People v. Krueger

Case Details

Full title:THE PEOPLE, Plaintiff and Respondent, v. JOHN WALTER KRUEGER, Defendant…

Court:California Court of Appeals, Fifth District

Date published: Mar 17, 2008

Citations

No. F052681 (Cal. Ct. App. Mar. 17, 2008)