Opinion
G058632
03-22-2022
THE PEOPLE, Plaintiff and Respondent, v. ALBERT JOHN KRUSICK, Defendant and Appellant.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant. Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County No. M-11167, Thomas S. McConville, Judge. Affirmed.
Rudy Kraft, under appointment by the Court of Appeal, for Defendant and Appellant.
Rob Bonta, Attorney General, Julie L. Garland, Assistant Attorney General, Steve Oetting and Kristen Ramirez, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
O'LEARY, P. J.
Albert John Krusick appeals from the judgment committing him to a state hospital after a jury found he was a sexually violent predator (SVP) under the Sexually Violent Predator Act (SVPA). (Welf. & Inst. Code, § 6600 et seq.) "The . . . SVPA or the Act[ ] allows the state to petition superior courts for the involuntary civil commitment of certain convicted sex offenders whose diagnosed mental disorders make them a significant danger to others and likely to reoffend after release from prison." (Walker v. Superior Court (2021) 12 Cal.5th 177, 184, fn. omitted.) At the trial on a commitment petition, the People must prove three criteria beyond a reasonable doubt: (1) the person was previously convicted of a qualifying '"sexually violent offense'" as defined in section 6600, subdivision (b) (§ 6600, subd. (a)(1)); (2) the person has "a diagnosed mental disorder that makes the person a danger to the health and safety of others" (ibid.); and (3) the mental disorder makes it likely the person will engage in future acts of sexually violent criminal behavior if released into the community without treatment. (Ibid; §§ 6601, subd. (d), 6603, 6604; People v. Yates (2018) 25 Cal.App.5th 474, 477 (Yates).)
All further statutory references are to the Welfare and Institutions Code, unless otherwise indicated.
Most of Krusick's contentions concern the admissibility and sufficiency of evidence presented at trial to prove he had been convicted of a qualifying sexually violent offense, the first criterion of the SVPA. He contends: (1) The evidence at his second trial was insufficient to prove his prior conviction for rape of a person incapable of giving legal consent was a sexually violent offense; (2) The second trial was barred by double jeopardy principles because the evidence at his first trial was insufficient to prove his rape conviction was a sexually violent offense; (3) His trial counsel rendered ineffective assistance (a) by failing to object to improper expert opinion testimony that his prior conviction was a qualifying offense, (b) by failing to object to the admission of case-specific hearsay concerning the facts underlying his prior conviction, and (c) by conceding in closing argument his prior conviction was a sexually violent offense; (4) The trial court erred by refusing to consider his motions for a directed verdict, judgment notwithstanding the verdict, or new trial, which were based, in part, on the prosecution's failure to prove his rape conviction was a qualifying offense; (5) His trial counsel rendered ineffective assistance by failing to make similar motions after his first trial; and (6) The prosecutor erred by misstating the law concerning circumstantial evidence in his rebuttal argument.
We conclude there was sufficient evidence Krusick's rape conviction qualified as a sexually violent offense as defined in the SVPA. Even assuming double jeopardy guarantees apply in an SVP case, Krusick's retrial was not barred because his first trial ended in a hung jury. We reject Krusick's claims of ineffective assistance of counsel because the record suggests defense counsel made a reasonable, tactical decision to concede Krusick's rape conviction was a qualifying offense under the SVPA, and consistent with this strategy, counsel did not object to expert opinion and hearsay testimony concerning the offense. Any error by the court in refusing to consider Krusick's motions was harmless, as was the prosecutor's error in his rebuttal argument. Accordingly, we affirm the judgment.
The following summary of the case's procedural and factual history focuses on those portions relevant to Krusick's contentions.
In 2007, the prosecution filed a petition to commit Krusick as an SVP. A declaration in support of the petition alleged Krusick had a 1977 conviction for rape of a person incapable of giving consent (Pen. Code, § 261, subd. (a)(1)) committed by force, violence, duress, menace, or fear, which was a sexually violent offense within the meaning of section 6600, subdivision (b).
I. First SVP Trial
In Krusick's first SVP trial in 2018, Judge Kathleen E. Roberts declared a mistrial after the jury was unable to reach a verdict.
II. Second SVP Trial
A. Pretrial Motion and Hearing
Judge Thomas S. McConville proceeded over Krusick's second jury trial, which began in 2019. Prior to this trial, Krusick filed a motion in limine to exclude case-specific hearsay concerning his underlying offense, prior crimes, and uncharged bad acts. He sought the exclusion of inadmissible hearsay statements in police reports, probation reports, and psychiatric or medical records unless the statements were otherwise admissible under People v. Sanchez (2016) 63 Cal.4th 665 (Sanchez), People v. Burroughs (2016) 6 Cal.App.5th 378 (Burroughs), and People v. Landau (2016) 246 Cal.App.4th 850. Krusick maintained he had one qualifying offense under the SVPA, a 1977 rape conviction for sexual intercourse with a person unable to give consent. Krusick indicated he intended "to admit and stipulate to this one (1) qualifying offense" at trial.
No such stipulation by the parties appears in the appellate record.
In the motion, Krusick argued the prosecution should be precluded from presenting case-specific hearsay pertaining to his qualifying offense through the testimony of the prosecution's expert witness. Krusick further asserted the prosecution should be prohibited from admitting expert testimony based on case-specific facts of which the expert had no personal knowledge.
During a hearing on the pretrial motions, the prosecutor indicated he intended to use court documents to prove the qualifying offense. He acknowledged the experts could not discuss case-specific hearsay without violating Sanchez. The court commented the fact of a prior conviction could be established through permissible documentary evidence and the experts could discuss Krusick's criminal history if it was in a document admitted into evidence. After discussing the issue with the parties, the court indicated it appeared they understood what was permissible under the law, and if anyone strayed during trial, appropriate objections should be made.
Prior to trial, the parties provided the court a joint statement of the case, which stated the jurors would be determining whether all three criteria of the SVPA had been proven beyond a reasonable doubt, including whether Krusick had been convicted of a sexually violent offense.
B. Evidence at Trial
At trial, the prosecution's expert witness, Dr. Charles Mark Patterson, opined Krusick was a sexually violent predator because he met all three of the SVPA's criteria. The defense called four psychologists: Dr. Wesley Maram, Dr. Hy Malinek, Dr. Thomas MacSpeiden, and Dr. Amy Phenix. All four defense psychologists opined the first criterion was satisfied because Krusick had a conviction for a qualifying sexually violent offense. But all four experts agreed Krusick did not meet the SVPA's second criterion because he did not have a diagnosable mental disorder that predisposed him to sexual violence and did not meet the third criterion because he was not likely to commit a sexually violent offense in the future.
1. Evidence Relating to Qualifying Offense
a. Prosecution Expert Patterson
Beginning in 2006, Patterson evaluated Krusick to determine whether he met the SVPA's criteria. Patterson reviewed police reports, probation officer reports, and court documents concerning Krusick's prior offenses, as well as Krusick's jail records, which included his medical records and documented incident reports. Upon completing his review of the documentary records, Patterson concluded Krusick met the criteria for being an SVP. In the following years, Patterson reevaluated Krusick multiple times by reviewing Krusick's records because Krusick never consented to an interview. Each time Patterson concluded Krusick continued to meet the criteria. In total, Patterson completed 11 evaluations of Krusick and two addendum reports.
During Patterson's testimony, the prosecution presented court documents reflecting Krusick was convicted in 1977 of rape of a person incapable of giving legal consent in violation of Penal Code section 261, subdivision (1), following a plea. The charging document to which Krusick pleaded guilty was included and alleged he "willfully, unlawfully and feloniously accomplish[ed] an act of sexual intercourse with Mary [S.], a female who was incapable, through lunacy or other unsoundness of mind, of giving legal consent . . . ." Defense counsel objected "just as to this material" and requested his objection be deemed a continuing objection on the grounds of hearsay, confrontation, and Burroughs. The court did not explicitly rule on the defense objection, but the exhibits were later admitted into evidence.
At the time of Krusick's conviction in 1977, Penal Code section 261, subdivision (1), defined rape as "an act of sexual intercourse accomplished with a female not the wife of the perpetrator, under . . . the following circumstance[ ]: [¶] (1) Where she is incapable, through lunacy or other unsoundness of mind, whether temporary or permanent, of giving legal consent[.]"
Patterson indicated he had reviewed the court documents concerning Krusick's 1977 rape conviction and came to the conclusion Krusick "had been convicted of a sexually-qualifying offense" because the records indicated Krusick was convicted of rape of a person incapable of giving legal consent in violation of Penal Code section 261, subdivision (1). Patterson stated the offense "is among the offenses we call qualifying offenses under the current law."
Initially, Patterson believed Krusick had two qualifying offenses but admitted he subsequently learned Krusick's conviction for statutory rape was not a qualifying sexual offense. Patterson reiterated his opinion Krusick had one qualifying offense.
Patterson considered Krusick's 1977 rape conviction in reaching his opinion Krusick was an SVP. When asked to explain what he considered about the offense, Patterson stated, "it is a qualifying offense, sexual offense, under the statute" and he also looked at the law enforcement documentation that described the facts underlying the conviction. The prosecutor asked Patterson what was significant about Krusick's rape case beyond the fact it was a listed offense. Defense counsel objected on grounds of hearsay, foundation, confrontation, Burroughs, and Sanchez. The court overruled the objection, and Patterson answered the manner in which Krusick developed a relationship with the victim fit his predisposing mental disorder.
The prosecutor then questioned Patterson about the facts underlying Krusick's conviction. Patterson indicated he understood Krusick was employed at a nursing facility for mentally impaired individuals when he committed the offense. The following exchange occurred between the prosecutor and Patterson, without objection by the defense:
"[Prosecutor:] And this was the kind of place where people are committed and they're not free to leave, correct?
"[Patterson:] Yes, it was a locked facility of some kind.
"[Prosecutor:] And did you consider the fact that he befriended at least one female who had substantially below either mental or intellectual capacity?
"[Patterson:] Yes.
"[Prosecutor:] And did that make her highly vulnerable?
"[Patterson:] I believe so, yes.
"[Prosecutor:] And did he make promises to her that are of concern?
"[Patterson:] Yes.
"[Prosecutor:] What sort of promises did he make?
"[Patterson:] That he had, for example, contacted an attorney, would be working with that attorney on her behalf to get her released, and that upon her release, he would care for her in the community himself.
"[Prosecutor:] And what about the fact that he had sex with her in a closet and locked the door?
"[Patterson:] Yeah, that was part of his sexual offending. He had sexual intercourse with her in the facility, either in a closet, or a rest room that he locked the door to.
"[Prosecutor:] Did you consider that on another occasion when the woman was on a pass to the community, he went with her and had sexual intercourse with her in a public rest room?
[Patterson:] Yes."
The prosecutor asked Patterson if he saw anything predatory about Krusick's behavior in the rape case, and Patterson responded he did because it was "clear to [him] from the records that [Krusick] cultivated a relationship with [the victim] for the primary purpose of exploiting her for his own sexual gratification, that she was no more than a casual acquaintance at first, and that he spent time cultivating trust that he then abused."
b. Defense Expert Maram
Maram, a licensed psychologist, interviewed Krusick six times, spending between 20 to 25 hours with him. In determining whether Krusick met the SVPA's three criteria, Maram reviewed reports from other evaluators, police reports, and probation records.
Early in his direct examination, Maram explained he concluded Krusick committed a sexually violent offense by having sex with someone who was mentally incompetent and could not give consent, and therefore, the first criterion of the SVPA was satisfied. After Maram indicated he was familiar with the facts underlying the conviction, defense counsel asked him to describe what happened. Maram stated Krusick was a janitor at a board and care facility where he befriended two females and told them he might help them escape. Krusick convinced one of the females to go into a restroom within the facility, where he had sex with her. Later, they met in a park and had sex in a restroom. Maram stated Krusick did not use any weapons, force, or violence to commit the offense.
On cross-examination, Maram indicated he talked to Krusick about the offense. The prosecutor asked Maram what he found relevant in that discussion. Maram explained Krusick said he was working as a custodian at the facility but claimed he was unaware there was anything different about the facility's residents and did not know the victim Mary S. (Mary) was disabled. Maram indicated Krusick's lack of insight was consistent with his antisocial personality disorder. In discussing the offense with Krusick, Maram found it relevant how Krusick used "deceit" and "guile to manipulate" Mary, pretended he was going to help her get out of the facility, and then used this manipulation to have sex with her on two occasions. Maram testified Krusick's behavior of making promises to help Mary was a type of grooming, and Maram explained grooming is a behavior a person uses to ingratiate himself with another to gain that person's trust to get something in return, which in Krusick's case was sex. Maram explained Krusick's grooming was based on conning and manipulation.
c. Defense Expert Malinek
Malinek, a clinical and forensic psychologist, interviewed Krusick on three occasions between 2008 and 2019 and spent about five or six hours with him. In evaluating Krusick, Malinek reviewed information concerning Krusick's rape conviction, his other criminal offenses, parole violations, SVP reports prepared by other doctors, jail records, and some medical records.
On direct examination, Malinek indicated he had concluded, based on his interviews with Krusick and the materials he had reviewed, Krusick's conviction for rape of a person unable to consent was his only qualifying offense. Asked to explain the nature of the offense, Malinek testified when Krusick was 27 years old, he convinced a woman in a facility where he was working to have sex with him. Malinek explained Krusick's conviction for rape of a person unable to consent was a qualifying sexual conviction under the SVPA.
On cross-examination, Malinek testified Krusick used cunning and manipulation, but no force, to have sex with Mary in the rape case. Asked what was significant about the offense, Malinek said Krusick manipulated and took advantage of a mentally challenged woman in order to have sex with her. Malinek described the offense as a manipulative sexual offense but not violent.
d. Defense Expert MacSpeiden
MacSpeiden reviewed "a multitude [of] documents," including multiple probation officer reports, arrest reports, jail records, and prison records as part of his evaluation of Krusick. MacSpeiden testified on direct examination he concluded Krusick had committed one qualifying offense in 1977. Asked to explain the facts underlying the offense, MacSpeiden stated when Krusick was about 26 years old, he was working as a janitor at a facility and befriended Mary, a 24-year-old resident at the facility, who was mentally disabled. They went into a restroom near her room and had sexual intercourse. On another occasion, when she was out of the facility on a pass, Krusick met her at a park, and they had sexual intercourse in a public restroom. Krusick did not use any force or physical violence in committing the offense.
Under cross-examination, MacSpeiden reiterated Krusick's conviction for having sexual intercourse with Mary, who was incapable of giving legal consent because of her unsoundness of mind, constituted a sexually violent offense. MacSpeiden stated because Mary was unsound mentally, the sexual interaction was without her consent, and therefore, the offense was violent and "listed as a qualifying offense."
Discussing Krusick's prior rape conviction and other offenses, MacSpeiden stated Krusick did not use physical force in the offenses but manipulation and cunning. MacSpeiden briefly touched on duress. He indicated that in determining whether there was duress, the circumstances surrounding the interactions between Krusick and Mary should be considered, including differences in size, soundness of mind, and restrictions on movement.
e. Defense Expert Phenix
Phenix, the fourth defense expert to testify, interviewed Krusick three times. She reviewed criminal legal records from Krusick's prior sex offenses, including probation officer's reports and police reports; she also reviewed evaluation reports by other doctors, Krusick's prison records, and jail records, which included medical records and behavioral incidents.
Phenix testified on direct examination that she had determined Krusick's qualifying sexually violent offense was his conviction for rape of a person incapable of giving consent. Phenix indicated she was familiar with the facts of the incident, and when asked to describe what happened, she stated the victim was a patient in a mental health facility where Krusick was a custodian.
On cross-examination, Phenix testified she previously believed Krusick had two qualifying offenses but his counsel informed her there was only one. She continued, "that's the truth. There is one qualifying offense. If I look at the law, I can see that there's one." Phenix testified the 1977 offense involved vulnerable females in a mental hospital.
C. Defense Motion During Trial
During the trial, defense counsel indicated he would move for judgment of acquittal under Penal Code section 1118.1 at the end of the prosecution's case. The prosecutor argued such a motion would be inappropriate because SVP trials are civil trials and there is no right to a directed verdict in SVP cases. Defense counsel indicated he needed to do more research but argued if a Penal Code section 1118.1 motion was inapplicable, a motion for directed verdict might apply because of the civil nature of the proceedings. Defense counsel asserted such a motion should be considered and granted where the prosecution has failed to present sufficient evidence to prove all of the SVPA's criteria. The court indicated it would research the issue and the defense could make its motion at the appropriate time after the prosecution rested.
After the prosecution rested, defense counsel argued a Penal Code section 1118.1 motion should be available to SVPs under equal protection principles because it is available to defendants in not guilty by reason of insanity (NGI) proceedings and the two are similarly situated. Defense counsel asserted the trial court had the authority to grant either a Penal Code section 1118.1 motion or a motion for a directed verdict where the prosecution failed to prove the elements of the SVP petition beyond a reasonable doubt.
The court indicated it had researched the issue and based on cases concerning SVPA proceedings, the court concluded it did not "have the authority to take the case away from the jury, even if [it] were inclined to do so." Defense counsel asserted the cases the court relied upon were distinguishable because they held pretrial motions for summary judgment and directed verdict were unavailable in SVP proceedings, but Krusick's case was at a different procedural point as the prosecutor had rested his case. Defense counsel argued there was no authority holding a directed verdict was unavailable after the prosecution finished presenting its case to the jury and the court had the inherent authority to grant the motion. The court believed it was "restricted" and "limited" on what it could do, and it did not believe it could take the case away from the jury. The court denied Krusick's motion-whether labeled a motion for a directed verdict or a nonstatutory motion to dismiss-and indicated it believed a motion under the Penal Code was unavailable.
D. Jury Instruction on the SVPA's Criteria
The court instructed the jury the prosecution had to prove the SVPA's three criteria beyond a reasonable doubt: "1. [Krusick] has been convicted of committing sexually violent offenses against one or more victims; [¶] 2. He has a diagnosed mental disorder; [¶] AND [¶] 3. 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." Addressing the first criterion, the instruction stated, "Penal Code 261 (sex with a person incapable of giving consent) is a sexually violent offense when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or another person or threatening to retaliate in the future against the victim or any other person."
E. Closing Arguments Concerning Qualifying Offense
In his closing argument, the prosecutor asserted the first criterion had been proven because Krusick's conviction for rape of a person incapable of giving consent was a sexually violent offense. The prosecutor reminded the jury all the experts agreed Krusick was convicted of a qualifying sexually violent offense. He argued the determination of whether the offense was committed by force or duress was performed by looking at the totality of the circumstances. He contended the relevant circumstances to consider were the differences in size, strength, and mental fitness between Krusick and Mary, as well as the environment in which the offense occurred. He argued the fact Mary was in a lockdown facility and not free to leave while Krusick was an employee at the facility were relevant factors. The prosecutor asserted because of Mary's incapacity, "Krusick imposed sex upon her without her consent. This is the force, this is the duress."
Early in his closing argument, defense counsel stated Krusick's rape conviction involving Mary "was the only qualifying offense." Counsel then rhetorically asked whether Krusick's conduct in that offense arose "to the type of conduct which is within the ambit of the [SVPA]." However, shortly thereafter, counsel indicated the defense did not dispute Krusick was convicted of a qualifying sexually violent offense. Defense counsel submitted there was no dispute Krusick had sexual intercourse with Mary on two occasions, and counsel asserted, "under the elements in the [SVPA] and the definition that the court gave you, it appears to qualify as a sexually violent offense." Defense counsel argued "[b]eyond that" there was no agreement between the parties and the prosecution had not proven the SVPA's two other criteria beyond a reasonable doubt. Multiple times during his argument, defense counsel conceded Krusick had one qualifying offense. But counsel used this to argue Krusick had only one qualifying conviction that was 40 years old and he had not committed any sexually violent predatory offenses since. Counsel also argued the conviction was not physically violent and was not consistent with a qualifying diagnosed mental disorder.
F. Verdict
The jury found Krusick was an SVP within the meaning of section 6600.
G. Posttrial Oral Defense Motion for Judgment Not Withstanding the Verdict
After the jury rendered its verdict, the court stated: "for what it's worth, I don't know how the case would have gone differently had I had the ability to exercise some control over the use of rules that are available in other contexts in order to set aside verdicts. I was concerned at some level that the underlying qualifying offense -- I didn't -- I don't recall hearing evidence it was committed in a violent way. And so I'm -- I'm concerned that there's a potential that the People didn't satisfy an element of the offense. But as I read these cases, I don't know that I had any authority to do anything, because the case had to go to the jury."
Defense counsel argued the prosecution had failed to prove each of the requisite criteria beyond a reasonable doubt and requested the court grant a motion for judgment notwithstanding the verdict. The court believed it lacked the authority to grant the motion because the statute concerning judgment notwithstanding the verdict was in part two of the Code of Civil Procedure, and Bagration v. Superior Court (2003) 110 Cal.App.4th 1677 (Bagration) held motions within that part of the code are unavailable in SVP proceedings. The court, nevertheless, indicated it would permit the defense to brief the matter. After the prosecutor voiced his opposition, the court stated it was unsure of its authority and unsure the prosecution had proven the underlying offense was committed with duress or violence as required by section 6600, subdivision (b). The court indicated it only recalled evidence of coercion which was not the same as violence as contemplated by the statute. After the prosecutor reminded the court there was evidence concerning duress, the court indicated it was not saying it would grant such a motion, only that it was unsure of its authority to consider the motion.
H. Commitment
The court ordered Krusick committed to the custody of the Department of State Hospitals for an indeterminate term for treatment and confinement (§ 6604).
I. Posttrial Defense Motions for New Trial and Judgment Not Withstanding the Verdict
After the court issued the commitment order, the defense filed motions for a new trial, judgment notwithstanding the verdict, and to recall the commitment order. In the motions for a new trial and judgment notwithstanding the verdict, the defense argued the prosecution had failed to present substantial evidence to support the SVPA's criteria.
The court held a hearing on the defense motions. Defense counsel argued the prosecution had not produced substantial evidence Krusick's rape conviction qualified as a sexually violent offense under the SVPA. Counsel further asserted Krusick did not have a qualifying mental disorder and the prosecution had failed to present substantial evidence Krusick was likely to engage in sexually violent predatory behavior if released. Defense counsel requested the court grant the motion for judgment notwithstanding the verdict or, alternatively, order a new trial.
The court denied both motions. The court indicated in assessing the defense motion for a directed verdict, it considered only the prosecution's evidence, but in assessing the defense new trial motion, it considered all of the evidence. The court believed sufficient evidence supported the SVPA's last two criteria. However, addressing the SVPA's first criterion, the court stated it did not "believe there [was] any evidence that the underlying qualifying offense was committed in a sexually violent way." The court noted that while all of the experts testified Krusick had a qualifying sexual offense, none of them testified the offense "involved force or violence" and the documentary evidence admitted at trial did not show Krusick used "force or violence" in the offense. The court commented, "[m]ost of the experts testified that the offense was committed through cunning [and/or] manipulation, which [in the court's opinion was not] the same as force or violence." The court denied the motions nevertheless because it believed it lacked the authority to take the decision away from the jury.
DISCUSSION
I. Introduction
Several of Krusick's contentions focus on whether sufficient evidence was properly presented at trial to prove his prior conviction was a sexually violent offense as defined by the SVPA. We begin with a general discussion of this criterion and evidence admissible to prove it.
SVPA section 6600, subdivision (b), defines the term "'[s]exually violent offense'" as one of several enumerated offenses, including rape (Pen. Code, § 261), "when committed by force, violence, duress, menace, fear of immediate and unlawful bodily injury on the victim or another person, or threatening to retaliate in the future against the victim or any other person . . . ." The SVPA states the existence of a qualifying prior conviction and the details underlying its commission, "including a predatory relationship with the victim, may be shown by 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." (§ 6600, subd. (a)(3).) As our Supreme Court has noted, this provision permits the details of predicate sexual offenses to be proven by documentary evidence, thus creating a statutory "exception to the rules of evidence to allow admission of multiple-level hearsay contained in . . . specified documents." (People v. Stevens (2015) 62 Cal.4th 325, 338.) The Legislature endorsed this use of multiple-level hearsay statements to "relieve victims of the burden and trauma of testifying about the details of the crimes underlying the prior convictions" that may have occurred many years in the past. (People v. Otto (2001) 26 Cal.4th 200, 208.)
The prosecution, however, may not prove a defendant's prior conviction qualifies as a sexually violent offense "by relying solely upon the testimony of a mental health expert . . . ." (Burroughs, supra, 6 Cal.App.5th at p. 403.) In Burroughs, defendant contended and the Court of Appeal agreed it was improper for the prosecution's experts to opine the facts of defendant's qualifying convictions rendered them "sexually violent offenses" under the SVPA. (Ibid.) The Burroughs court explained, "An expert's opinion is admissible only with respect to a subject 'that is sufficiently beyond common experience that an opinion of an expert would assist the trier of fact,' and whether an offense was violent or involved fear, duress, or menace" is a factual question "the experts were in no better position to resolve than the jury." (Ibid.)
Where documentary evidence admissible under section 6600, subdivision (a)(3), to prove a defendant's conviction qualifies as a sexually violent offense is not admitted into evidence, experts cannot relay to the jury as true facts contained in those documents. (Yates, supra, 25 Cal.App.5th at pp. 476, 479.) In Yates, the prosecution's experts testified they had reviewed defendant's criminal and juvenile records and his state hospital file. (Id. at p. 479.) They proceeded to describe the details of defendant's qualifying crimes, and they discussed his criminal history. (Id. at pp. 479-481.) One expert opined certain crimes by defendant qualified as sexually violent offenses under California law, based on facts he learned from his review of defendant's records. (Id. at p. 479.) These records, however, were never admitted into evidence nor their contents shown to be otherwise admissible. (Id. at p. 484.)
On appeal, Yates contended the trial court committed prejudicial error by permitting the experts to relate to the jury "a massive amount of inadmissible case-specific hearsay." (Yates, supra, 25 Cal.App.5th at p. 476.) The Court of Appeal agreed, concluding the testimony was inadmissible under Sanchez, supra, 63 Cal.4th 665. (Yates, supra, 25 Cal.App.5th at p. 485.) The Yates court explained: "Here, except for Yates's own statements to the experts, which were admissible as party admissions (Evid. Code, § 1220), all of the case-specific facts related by the experts were drawn from documents- Yates's criminal, juvenile, and state hospital records-that were neither introduced or admitted into evidence, nor shown to fall within a hearsay exception. Applying Sanchez to the instant case, we therefore conclude that the trial court erred in admitting inadmissible hearsay in the form of expert testimony which related case-specific facts to the jury that were neither subject to a hearsay exception nor independently established by competent evidence. [Citation.]" (Id. at p. 485, fn. omitted.) Finding the error prejudicial, the court indicated, "[w]ithout the inadmissible hearsay, the foundation for the experts' opinions goes up in smoke, and with it most of the evidence in support of the jury's SVP finding." (Id. at p. 487.)
As discussed below, the jury here heard, without objection, expert opinion testimony Krusick's prior rape conviction qualified as a sexually violent offense under the SVPA; testimony that was inadmissible under Burroughs. And experts on both sides relayed inadmissible hearsay to the jury concerning the facts underlying that prior rape conviction as the documentary evidence with these facts was not submitted into evidence; testimony that was inadmissible under Sanchez and Yates.
II. Sufficiency of the Evidence
Krusick contends the prosecution failed to prove he was an SVP because the jury's finding he was previously convicted of a qualifying sexually violent offense was not supported by substantial evidence. Specifically, he asserts there was no evidence his rape conviction was committed by force, violence or duress as required by section 6600, subdivisions (a) and (b). We disagree.
Krusick's contention of insufficient evidence is intertwined with his claim he was deprived of the effective assistance of counsel because his trial counsel failed to object to inadmissible evidence concerning his prior conviction. He argues if his counsel had objected to the inadmissible evidence, there would have been no evidence from which the jury could have found his rape conviction was a qualifying offense. We unravel these two claims by separately addressing them. In analyzing Krusick's sufficiency of the evidence contention, we consider "the whole record of evidence presented" at trial as required by our standard of review. (People v. Poulsom (2013) 213 Cal.App.4th 501, 518 (Poulsom).) Below, in section IV, we address Krusick's claim his trial counsel rendered ineffective assistance by failing to object to the admission of expert testimony concerning his prior conviction.
A. Standard of Review
"In reviewing the sufficiency of the evidence to support a person's civil commitment as an SVP, we apply the substantial evidence standard of review. [Citation.] 'Under this standard, the court "must 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." [Citations.] The focus of the substantial evidence test is on the whole record of evidence presented to the trier of fact, rather than on "'isolated bits of evidence.'"' [Citation.] [¶] We 'must presume in support of the judgment the existence of every fact the trier could reasonably deduce from the evidence.' [Citation.] 'We must therefore view the evidence in the light most favorable to the prevailing party, giving it the benefit of every reasonable inference and resolving all conflicts in its favor . . . .' [Citation.]" (Poulsom, supra, 213 Cal.App.4th at p. 518.)
B. Analysis
The court instructed the jury the prosecution had to prove beyond a reasonable doubt Krusick had been convicted of a sexually violent offense, the SVPA's first criterion. The instruction defined a sexually violent offense, consistent with the definition in section 6600, subdivision (b). The instruction stated a violation of "Penal Code [section] 261 (sex with a person incapable of giving consent) is a sexually violent offense when committed by force, violence, duress, menace, or fear of immediate and unlawful bodily injury to the victim or another person or threatening to retaliate in the future against the victim or any other person."
Krusick contends the prosecution failed to prove his rape conviction in violation of Penal Code section 261, subdivision (1), was committed by force, violence, duress, menace, fear, or threats of retaliation. In his closing argument, the prosecutor argued Krusick committed the rape by force or duress because he had sex with Mary, who was legally unable to consent. There was no evidence Krusick used force or violence in committing the rape offense. Thus, we focus on whether there was substantial evidence to support the theory the rape was committed by duress.
Penal Code section 261, subdivision (b), defines "'[d]uress'" as "a direct or implied threat of force, violence, danger, or retribution sufficient to coerce a reasonable person of ordinary susceptibilities to [1] perform an act which otherwise would not have been performed, or [2] acquiesce in an act to which one otherwise would not have submitted. The total circumstances, including the age of the victim, and the victim's relationship to the defendant, are factors to consider in appraising the existence of duress." "[D]uress is measured by a purely objective standard" and focuses on the defendant's actions, not the victim's response. (People v. Soto (2011) 51 Cal.4th 229, 246.) "'The very nature of duress is psychological coercion.'" (People v. Veale (2008) 160 Cal.App.4th 40, 48.)
Considering the totality of the circumstances, we conclude sufficient evidence supports the jury's implied finding Krusick accomplished the rape by use of duress. Here, the relevant factors to consider in appraising the existence of duress here include Mary's situational and psychological circumstances, as well as her relationship to Krusick. Mary was a mentally disabled resident in a "locked" board and care facility and only permitted to leave when granted a pass. While Krusick did not hold a position of authority at the facility, he worked for the facility and was therefore part of the establishment restricting Mary's freedom. Krusick befriended Mary and told her he might help her escape. Krusick lied to her, telling her he had contacted an attorney, would be working with that attorney on her behalf to get her released, and would care for her upon her release. He deceived Mary by pretending he was going to help her get out of the locked facility. He manipulated and conned her to have sex with him by exploiting her desire to gain her freedom from her captive state.
From this evidence, the jury could reasonably infer Krusick applied duress in his rape of Mary. Krusick's threat was there would be negative consequences if Mary did not have sex with him because he would not help her get out of the facility. A reasonable person of ordinary susceptibilities in Mary's position (captive in a locked facility and wanting out) would have acquiesced to obtain the help Krusick falsely claimed he would provide. As the jury's finding Krusick committed the rape by means of duress is supported by substantial evidence, his conviction qualifies as a sexually violent offense under the SVPA. Thus, Krusick is not entitled to relief on this claim.
III. Double Jeopardy Claim
Krusick contends double jeopardy guarantees and principles of "fairness and equity" prohibited the prosecution from proceeding against him at his second trial because the evidence produced at his first trial was insufficient to prove his rape conviction was a qualifying sexually violent offense. We disagree.
Preliminary, the parties disagree as to whether double jeopardy guarantees apply in an SVP case. Krusick asserts double jeopardy protections apply to NGI commitment proceedings under Penal Code section 1026.5, subdivision (b)(7), and equal protection principles require he be afforded the same protections because he "was similarly situated and suffered disparate treatment when compared to an NGI." The Attorney General argues SVPs are not similarly situated to NGIs for equal protection purposes and are not entitled to double jeopardy protections. We need not address Krusick's equal protection argument. Even assuming arguendo he has a right to double jeopardy protections, his double jeopardy claim is meritless.
Penal Code section 1026.5, subdivision (b), concerns the procedures to be followed before an NGI's commitment can be extended beyond the original maximum term; subdivision (b)(7) states, "All proceedings shall be in accordance with applicable constitutional guarantees" and the NGI "shall be entitled to the rights guaranteed under the federal and State Constitutions for criminal proceedings."
Krusick's first trial ended in a mistrial after the jury was unable to agree on a verdict. The United States Supreme Court has "constantly adhered to the rule that a retrial following a 'hung jury' does not violate the Double Jeopardy Clause" of the United States Constitution. (Richardson v. United States (1984) 468 U.S. 317, 324 (Richardson).) We find Richardson dispositive to Krusick's double jeopardy argument. In Richardson, defendant's first trial ended in a mistrial as to two counts after the jury was unable to reach a verdict. (Id. at p. 318.) Defendant sought to prohibit his retrial on the ground the government failed to present sufficient evidence of the charges at his first trial and the retrial would violate the double jeopardy clause. (Ibid.) Rejecting this argument, the United States Supreme Court stated, "jeopardy does not terminate when the jury is discharged because it is unable to agree. Regardless of the sufficiency of the evidence at petitioner's first trial, he has no valid double jeopardy claim to prevent his retrial." (Id. at p. 326, fn. omitted.)
Krusick does not address Richardson. Instead, he asserts double jeopardy protections must apply where the government failed to provide sufficient proof of the SVPA's criteria at the first trial because otherwise, "there is nothing to stop the government from relitigating over and over again any civil commitment petition even after it loses in the trial court." (Italics added.) But therein lies the fatal flaw in Krusick's argument. The government did not lose after the first trial. The jury was simply unable to reach a unanimous verdict. A hung jury is not the equivalent of an acquittal, and therefore, double jeopardy guarantees do not protect Krusick from a retrial. (Richardson, supra, 468 U.S. at pp. 324-326.)
Krusick's assertion "fairness and equity" prevented his retrial also fails. The two cases Krusick relies on to support this contention-Bennett v. Superior Court (2019) 39 Cal.App.5th 862 (Bennett) and People v. Wright (2016) 4 Cal.App.5th 537 (Wright)-are inapposite as they concerned substantially different situations than the one before us. In Bennett, the Court of Appeal concluded the trial court's finding of probable cause was not supported by substantial evidence and ordered the SVP petition dismissed. (Bennett, supra, 39 Cal.App.5th at p. 885.) In Wright, the Court of Appeal reversed the judgment finding defendant was an SVP after the appellate court concluded it was not supported by substantial evidence of a diagnosed mental disorder. (Wright, supra, 4 Cal.App.5th at pp. 546-547.) Neither Bennett nor Wright addressed the permissibility of a retrial following a mistrial declared because of a hung jury. Thus, we reject Krusick's claim his retrial was barred.
IV. Ineffective Assistance of Counsel
Krusick contends his trial counsel rendered ineffective assistance by: (1) failing to object to expert opinion testimony his rape conviction qualified as a sexually violent offense under the SVPA; (2) failing to object to inadmissible expert testimony relating case-specific hearsay concerning this conviction; and (3) conceding during closing argument this conviction was a qualifying sexually violent offense under the SVPA. The Attorney General contends the record suggests counsel's actions were tactical decisions, and Krusick's allegations of ineffective assistance of counsel must be rejected in this direct appeal. We agree with the Attorney General.
A. Applicable Law
A defendant can prevail on an ineffective assistance of counsel claim only if he demonstrates (1) his counsel's performance was deficient, meaning it fell below an objective standard of reasonableness, and (2) it is reasonably probable that, but for counsel's deficient performance, the result of the proceeding would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687-688, 694-695 (Strickland); People v. Benavides (2005) 35 Cal.4th 69, 92-93.) "'Surmounting Strickland's high bar is never an easy task.' [Citation.]" (Harrington v. Richter (2011) 562 U.S. 86, 105.) And it is "particularly difficult" for a defendant to prevail on direct appeal on a claim of ineffective assistance by trial counsel. (People v. Mai (2013) 57 Cal.4th 986, 1009.)
"'[I]t is all too easy for a court, examining counsel's defense after it has proved unsuccessful, to conclude that a particular act or omission of counsel was unreasonable. [Citation.] A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. Because of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."' [Citation.]" (People v. Ochoa (1998) 19 Cal.4th 353, 445-446 (Ochoa).)
A reviewing court must afford "great deference" to trial counsel's tactical decisions "to avoid 'second-guessing counsel's tactics and chilling vigorous advocacy . . . .' [Citations.]" (In re Fields (1990) 51 Cal.3d 1063, 1069-1070.) "Whether to object at trial is among 'the minute to minute and second to second strategic and tactical decisions which must be made by the trial lawyer during the heat of battle.' [Citation.]" (People v. Riel (2000) 22 Cal.4th 1153, 1202.) "Tactical errors are generally not deemed reversible" (People v. Maury (2003) 30 Cal.4th 342, 389), and "a failure to object will rarely reflect deficient performance by counsel. [Citation.]" (People v. Castaneda (2011) 51 Cal.4th 1292, 1335.)
Our Supreme Court has "repeatedly stressed 'that "[if] the record on appeal sheds no light on why counsel acted or failed to act in the manner challenged[, ] . . . unless counsel was asked for an explanation and failed to provide one, or unless there simply could be no satisfactory explanation," the claim on appeal must be rejected.' [Citations.]" (People v. Mendoza Tello (1997) 15 Cal.4th 264, 266 (Mendoza Tello).) In such a case, a claim of ineffective assistance of counsel "is more appropriately decided in a habeas corpus proceeding. [Citations.]" (Id. at pp. 266-267.)
B. Counsel's Acts and Omissions
During the prosecution's case, Patterson testified he had reviewed the court documents concerning Krusick's rape conviction and concluded Krusick "had been convicted of a sexually-qualifying offense" because the records indicated Krusick was convicted of rape of a person incapable of giving legal consent in violation of Penal Code section 261, subdivision (1). Patterson reiterated his conclusion a couple of times during his testimony. In the defense case, defense counsel elicited from each defense expert their opinion that Krusick's rape conviction was a qualifying sexually violent offense under the SVPA.
Krusick contends his trial counsel rendered ineffective assistance by failing to object to the prosecution's expert's opinion testimony that his rape conviction qualified as a sexually violent offense. He correctly asserts such expert opinion testimony was inadmissible under Burroughs, supra, 6 Cal.App.5th at pages 400 to 403.
Krusick also contends his counsel rendered ineffective assistance by failing to object to the prosecution's expert relating inadmissible case-specific hearsay by discussing the facts underlying his rape conviction. Defense counsel did not object to the prosecutor eliciting case-specific hearsay from Patterson regarding Krusick's prior rape conviction, and defense counsel elicited similar testimony from the defense experts. All of the experts discussed the facts underlying Krusick's rape conviction during their testimony, with varying degrees of specificity.
Although the prosecutor submitted into evidence court documents showing Krusick had been convicted of rape of a person incapable of giving legal consent, these documents did not discuss the facts underlying the conviction. Thus, at least Patterson and MacSpeiden, who did not interview Krusick, learned of the factual basis for the conviction from other documents they reviewed as part of their evaluation of Krusick; documents that were not submitted into evidence. Because these documents were not admitted into evidence or otherwise shown to fall within a hearsay exception, the expert testimony relating these facts was inadmissible hearsay. (Yates, supra, 25 Cal.App.5th at p. 486.)
The analysis is slightly different for whether Maram and Malinek related inadmissible fact-specific hearsay in their testimony concerning Krusick's prior rape offense. Both Maram and Malinek discussed the offense with Krusick. Krusick's statements concerning the offense to these experts were admissible as a party admission under Evidence Code section 1220. (Yates, supra, 25 Cal.App.5th at p. 485.) But is it not clear from the appellate record how much of the details they provided in their testimony came from Krusick's statements or from documents they reviewed that were not admitted into evidence. Thus, it appears most of the expert testimony relating the facts underlying Krusick's rape conviction was inadmissible hearsay.
Next, Krusick contends his counsel rendered ineffective assistance by conceding during closing argument that his rape conviction was a qualifying offense under the SVPA. Defense counsel repeatedly conceded Krusick had one qualifying sexually violent offense.
C. Analysis
Based on the record before us, it appears counsel made a tactical decision to concede Krusick's rape conviction was a qualifying sexually violent offense. Indeed, this conclusion is easy to reach based on how counsel approached the issue during the first and second trials.
In his argument to the jury in the first trial, defense counsel conceded Krusick's rape conviction was a qualifying offense under the SVPA, telling the jury this criterion was undisputed. In his in limine motion prior to the second trial, counsel indicated the defense conceded and was willing to stipulate Krusick's rape conviction was a qualifying offense. The concession of this issue remained the defense position throughout the second trial. Defense counsel not only failed to object to the opinion testimony by the prosecution's expert that Krusick's prior rape conviction qualified as a sexually violent offense, he also elicited similar opinion testimony from the defense experts. During closing argument, defense counsel repeatedly conceded Krusick's rape conviction was a qualifying sexually violent offense, noting all of the experts agreed it was. Defense counsel, instead, focused Krusick's defense and his closing argument on the disagreements between the prosecution's expert and the defense experts as to whether Krusick had a qualifying diagnosis and whether he was likely to reoffend by committing a sexually violent offense if released.
"It is not deficient performance for a criminal defendant's counsel to make a reasonable tactical choice. [Citations.] Reasonableness must be assessed through the likely perspective of counsel at the time." (Ochoa, supra, 19 Cal.4th at p. 445, fn. omitted.) All five experts believed Krusick's rape conviction qualified as a sexually violent offense and satisfied the SVPA's first criterion. However, the four defense experts disagreed with the prosecution's sole expert that the SVPA's two other criteria were satisfied. Based on the information defense counsel had, his tactical decision to concede Krusick's rape conviction qualified as a sexually violent offense appears to be a legitimate strategy. By conceding this issue, counsel could focus the jury's attention on the experts' disagreements on the other two criteria. He also directed the jury's attention away from damaging facts. The concession of an element to gain jury credibility on a disputed issue is a recognized, legitimate strategy. (People v. Mitcham (1992) 1 Cal.4th 1027, 1060-1061; see People v. Freeman (1994) 8 Cal.4th 450, 498 [rejecting claim of ineffective assistance where counsel conceded an element to maintain credibility with jury].) Indeed, defense counsel's strategy worked in the first trial. There, defense counsel also conceded Krusick's rape conviction was a qualifying offense but argued the SVPA's other criteria had not been proven. Some of the jurors obviously agreed given the first jury hung. Defense counsel's adherence to the same strategy in the second trial was a reasonable tactical decision.
Defense counsel's failures to object-to both the inadmissible expert opinion testimony and the inadmissible hearsay testimony regarding the facts underlying the conviction-are consistent with defense counsel's apparent trial strategy. The record reflects defense counsel was well aware of the relevant case law, and in his pretrial in limine motion, he sought the exclusion of inadmissible evidence. But during the prosecutor's questioning of Patterson regarding Krusick's rape conviction, defense counsel did not object to questions eliciting impermissible case-specific hearsay evidence. And when questioning the defense experts, defense counsel similarly elicited details about the offense from them.
During the prosecutor's questioning of Patterson, defense counsel objected twice on the grounds of Sanchez, Burroughs, confrontation, and hearsay, but neither time did the prosecutor elicit inadmissible case-specific hearsay evidence.
"Competent counsel may forgo even a valid objection for tactical reasons. [Citations.]" (People v. Campbell (2020) 51 Cal.App.5th 463, 506.) The appellate record indicates defense counsel's decision to not object to the experts relating case-specific hearsay concerning Krusick's rape conviction was a reasoned, tactical decision.
First, the facts underlying Krusick's conviction were undisputed, and they had some beneficial aspects for the defense. Defense counsel used these facts to highlight Krusick did not commit the offense through violence and to support the defense experts' opinions Krusick was not a violent offender and was not likely to commit a sexually violent offense in the future. As the Attorney General argues, "[i]t is reasonable to conclude that defense counsel allowed purported case-specific hearsay evidence to come in via testimony from the People's expert because the defense experts intended to use the same evidence as a platform to support their conclusions that [Krusick] did not otherwise qualify as an SVP."
Second, if defense counsel had objected, the prosecutor could have sought to rectify the matter by introducing probation reports and other documents admissible under section 6600, subdivision (a)(3). These documents may have contained more inflammatory details regarding the offense that defense counsel wanted to shield from the jury. We agree with the Attorney General that defense counsel could have reasonably preferred to introduce the details of the offense through expert testimony rather than documentary evidence. Defense counsel could and did challenge the credibility and reliability of the prosecution's expert; it would have been more difficult for defense counsel to challenge the credibility of a probation report. Under these circumstances, we conclude Krusick has failed to demonstrate his counsel rendered ineffective assistance by failing to object to the inadmissible expert testimony and by conceding during argument that Krusick's rape conviction was a qualifying sexually violent offense.
There may be evidence outside the appellate record leading to a conclusion Krusick was not adequately represented by his trial counsel or prior attorneys. Claims of ineffective assistance of counsel based on the failure to object to evidence or concession of an element are more appropriately litigated in a habeas corpus petition. (People v. Lopez (2008) 42 Cal.4th 960, 966; Mendoza Tello, supra, 15 Cal.4th at pp. 266-267.)
V. Denial of Defense Motions
During his second trial, Krusick moved for a directed verdict, and after trial, he moved for judgment notwithstanding the verdict and, alternatively, a new trial. Each motion was based on the argument the prosecution had failed to prove the SVPA's three criteria beyond a reasonable doubt. The trial court denied the motions. In doing so, the court indicated it believed the prosecution had failed to prove Krusick's rape conviction was committed by force or violence and therefore failed to prove the conviction qualified as a sexually violent offense. But the court believed it was precluded from granting the defense motions based on its reading of case law. Krusick contends the court erroneously concluded it lacked the authority to grant his motions, and he requests we remand the matter for the court to reconsider them. The Attorney General agrees the trial court incorrectly concluded Krusick's posttrial motions were unavailable in SVP proceedings. But the Attorney General argues the error was harmless because there was substantial evidence of duress. We conclude any error by the trial court in denying Krusick's motions was harmless because substantial evidence supported the jury's finding Krusick's rape conviction qualified as a sexually violent offense.
In denying Krusick's motions, the trial court relied on published decisions holding a court lacks the authority to grant pretrial motions for summary judgment or to dismiss in SVPA proceedings-Bagration, supra, 110 Cal.App.4th 1677; Gray v. Superior Court (2002) 95 Cal.App.4th 322 (Gray); and Reilly v. Superior Court (2013) 57 Cal.4th 641 (Reilly). We briefly discuss their holdings before concluding they are distinguishable.
In Bagration, after the People filed an SVPA petition, defendant brought a pretrial motion for summary judgment on the ground his criminal convictions were not qualifying sexually violent offenses. (Bagration, supra, 110 Cal.App.4th at p. 1681.) After the trial court denied the summary judgment motion, defendant sought a writ of a mandate in the Court of Appeal. (Id. at p. 1682.) The appellate court concluded summary judgment motions under Code of Civil Procedure 437c are inapplicable in SVPA proceedings and denied the petition. (Bagration, supra, 110 Cal.App.4th at p. 1680.) Reaching this conclusion, the Bagration court looked at Code of Civil Procedure section 437c, which governs summary judgment, and noted it is in part 2 of the Code of Civil Procedure. (Bagration, supra, 110 Cal.App.4th at p. 1685.) This was significant because the Supreme Court has held part 2 of the Code of Civil Procedure "does not generally extend to a special proceeding unless the statutes establishing the special proceeding expressly incorporate Code of Civil Procedure Part 2 provisions." (Bagration, supra, 110 Cal.App.4th at p. 1685.) Because SVPA proceedings are special proceedings of a civil nature and the SPVA statutes do not incorporate Code of Civil Procedure part 2 provisions, the Bagration court reasoned summary judgment was not permitted in an SVPA commitment proceeding. (Bagration, supra, 110 Cal.App.4th at pp. 1685-1686.)
The Bagration court also concluded incorporating summary judgment into SVPA proceedings "would potentially supplant" the SVPA's procedural and due process requirements. (Bagration, supra, 110 Cal.App.4th at p. 1688.) The court explained, "Code of Civil Procedure section 437c is inherently inconsistent with the [SVPA] because the mutual summary procedures set forth in Code of Civil Procedure section 437c, if applied to [SVPA] proceedings, would allow an individual to be adjudicated a sexually violent predator without benefit of the required beyond a reasonable doubt burden of proof and, in the case of a jury trial, a unanimous verdict-impairing the requirements that are at the heart of the statute's due process protections." (Id. at pp. 1688-1689.)
Similarly, in Gray, supra, 95 Cal.App.4th 322, defendant moved for summary judgment prior to trial on the basis there was a split of opinion by his evaluators. (Id. at pp. 324-325.) In concluding defendant was not entitled to summary judgment, the Court of Appeal stated: "Once a petition under the Act has been filed, and the trial court (as here) has found probable cause to exist, the matter should proceed to trial. In other words, once a petition has been properly filed and the court has obtained jurisdiction, the question of whether a person is a sexually violent predator should be left to the trier of fact unless the prosecuting attorney is satisfied that proceedings should be abandoned." (Id. at p. 329.)
In Reilly, supra, 57 Cal.4th 641, defendant sought dismissal of the SVPA commitment petition prior to his second probable cause hearing. (Id. at p. 651.) Concluding he was not entitled to writ relief because he had not made the necessary showing, the Supreme Court stated, "Absent material error, 'once a petition has been properly filed and the court has obtained jurisdiction, the question of whether a person is a sexually violent predator should be left to the trier of fact . . . .' [Citation.]" (Id. at p. 656.)
Thus, the cases the trial court relied upon here concern pretrial motions to dispose of an SVPA petition. Krusick, however, made his motions during and after his trial. The parties have not cited any published decisions discussing whether a trial court has the authority to grant a posttrial motion for directed verdict, judgment notwithstanding the verdict, or new trial in an SVP case. They both identify cases where trial courts considered and denied motions for new trial, but the courts' authority to do so was not addressed on appeal-People v. Kisling (2011) 199 Cal.App.4th 687 and People v. Calderon (2004) 124 Cal.App.4th 80. "'"It is axiomatic that cases are not authority for propositions not considered."' [Citation.]" (McWilliams v. City of Long Beach (2013) 56 Cal.4th 613, 626.)
Here, the trial court correctly noted motions for a directed verdict (Code Civ. Proc., § 630), judgment notwithstanding the verdict (Code Civ. Proc., § 629), and a new trial (Code Civ. Proc., § 657) are in part 2 of the Code of Civil Procedure. As explained in Bagration, the California Supreme Court has held the provisions of part 2 of the Code of Civil Procedure do not generally extend to special proceedings, like SVPA commitment proceedings, unless the statutes establishing the special proceeding expressly incorporate them, and the SVPA does not. (Bagration, supra, 110 Cal.App.4th at p. 1685.) The Attorney General asserts a trial court nonetheless has the inherent authority to grant a judgment notwithstanding the verdict or a new trial motion when the court concludes the SVP status was not proven beyond a reasonable doubt.
We need not decide whether the trial court had the statutory or inherent authority to grant Krusick's motions. Even assuming the court had the authority to grant the motions, its failure to do so was proper as substantial evidence supported the jury's finding Krusick's rape conviction qualified as a sexually violent offense. (See Economic Empowerment Foundation v. Quackenbush (1997) 57 Cal.App.4th 677, 692, fn. 13 [we review the result not the trial court's reasoning].)
We conclude denial of the defense motions was the correct result after looking at how a court evaluates motions for directed verdict, judgment notwithstanding the verdict, and a new trial. "'A nonsuit or a directed verdict may be granted "only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given." [Citations.] Unless it can be said as a matter of law, that, when so considered, no other reasonable conclusion is legally deducible from the evidence, and that any other holding would be so lacking in evidentiary support that a reviewing court would be impelled to reverse it upon appeal, or the trial court to set it aside as a matter of law, the trial court is not justified in taking the case from the jury. . . . In other words, the function of the trial court on a motion for directed verdict is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict.' [Citation.]" (CC-California Plaza Associates v. Paller & Goldstein (1996) 51 Cal.App.4th 1042, 1050-1051.) "'"The trial judge's power to grant a judgment notwithstanding the verdict is identical to his power to grant a directed verdict [citations]. . . . 'If there is any substantial evidence, or reasonable inferences to be drawn therefrom, in support of the verdict, the motion should be denied.' [Citation.]"' [Citation.]" (Hansen v. Sunnyside Products, Inc. (1997) 55 Cal.App.4th 1497, 1510.)
Similarly, a court can grant a new trial motion based on insufficiency of the evidence to justify the verdict (Code Civ. Proc., § 657, subd. 6), only if the court is convinced after weighing the evidence from the entire record and reasonable inferences drawn from it that the jury should have reached a different verdict. (Code of Civ. Proc., § 657.) "A new trial motion allows a judge to disbelieve witnesses, reweigh evidence and draw reasonable inferences contrary to that of the jury, and still, on appeal, retain a presumption of correctness that will be disturbed only upon a showing of manifest and unmistakable abuse. [Citation.]" (Fountain Valley Chateau Blanc Homeowner's Assn v. Department of Veterans Affairs (1998) 67 Cal.App.4th 743, 751.) Where a trial court has denied a motion for a new trial in civil proceedings, the reviewing court "must determine whether the court abused its discretion by examining the entire record and making an independent assessment of whether there were grounds for granting the motion." (ABF Capital Corp. v. Berglass (2005) 130 Cal.App.4th 825, 832.)
As discussed ante, we conclude the jury's finding Krusick's conviction qualified as a sexually violent offense is supported by substantial evidence because Krusick used duress in his rape of Mary. When discussing this criterion at the hearing on Krusick's motions, the trial court repeatedly stressed there was no evidence the offense involved "force or violence." But this was not the correct question. The question was whether the entire record contained sufficient evidence Krusick committed the rape by means of duress; a question we have answered affirmatively. Accordingly, Krusick is not entitled to relief on this claim.
VI. Ineffective Assistance of Counsel for Failing to File Motions After First Trial
In his supplemental brief, Krusick contends his trial counsel rendered ineffective assistance by failing to file a motion to dismiss following the prosecution's case in his first trial, a motion for directed verdict following the conclusion of the first trial, and a motion for judgment notwithstanding the verdict following the hung jury in his first trial. He asserts his counsel should have filed these motions because the prosecution failed in his first trial to prove his rape conviction was a qualifying sexually violent offense. We disagree. The appellate record suggests defense counsel did not make these motions because he believed them meritless. This is demonstrated by the fact trial counsel conceded in his argument to the first jury the rape conviction was a qualifying sexual violent offense.
We note the evidence before the first jury on this issue was substantially similar to that before the second jury. During Krusick's first trial, Patterson testified he had learned from reviewing law enforcement documentation that while Krusick was working at a healthcare facility, he befriended an adult female patient with below average intellectual capacity and talked to her about working with an attorney to get her released. Krusick told her he would care for her after her release. Krusick had sexual intercourse with her in a locked room on one occasion and in a public restroom on another occasion when she was out of the facility on a pass. Patterson testified there was a "predatory aspect" to Krusick's offense as he cultivated the relationship in a deceitful way to take advantage of the woman. Patterson described the offense as manipulative and coercive, even though it was not physically violent. As we discussed ante, such evidence was sufficient to prove Krusick committed the rape by duress, considering all of the circumstances under which it occurred. Thus, it is not reasonably likely Krusick would have enjoyed a more favorable result if his counsel had moved for dismissal, directed verdict, or judgment notwithstanding the verdict in his first trial proceedings. Accordingly, Krusick is not entitled to relief on this claim.
VII. Prosecutorial Error
Krusick contends the prosecutor committed prejudicial error by misstating the law concerning circumstantial evidence during his rebuttal argument. Defense counsel, however, failed to object to this portion of the prosecutor's argument. Recognizing counsel's failure to object forfeited his appellate claim, Krusick contends he was deprived of the effective assistance of counsel. The Attorney General argues any error was harmless. We agree with the Attorney General.
A. Background
The court instructed the jury with CALCRIM No. 223, which defined direct and circumstantial evidence and CALCRIM No. 224, the general instruction on the sufficiency of circumstantial evidence.
"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 true finding, 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." As given to the jury, CALCRIM No. 223 stated, "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.
"Also, before you may rely on circumstantial evidence to find the petition is true, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the petition is true. If you can draw two or more reasonable conclusions from the circumstantial evidence, and one of those reasonable conclusions points to a not true finding and another to a true finding on the petition, you must accept the one that points to a not true finding. However, when considering circumstantial evidence, you must accept only reasonable conclusions and reject any that are unreasonable." As provided to the jury, CALCRIM No. 224 stated, "Before you may rely on circumstantial evidence to conclude that a fact necessary to find the petition true has been proved, you must be convinced that the Petitioner has proved each fact essential to that conclusion beyond a reasonable doubt.
1. Defense Closing Argument
Early in his closing argument, defense counsel highlighted some of the instructions given the jury, including the reasonable doubt instruction and the instruction explaining the criteria the prosecution was required to prove to establish Krusick was an SVP. Defense counsel referenced the instruction on circumstantial and direct evidence and discussed the difference between these two types of evidence. Addressing their relevance to the case, defense counsel argued: "Direct evidence, again, if you're looking outside, you see the rain dropping. Indirect evidence would be that example of a person walking into your house. Another example of circumstantial evidence that I like is if you go in your back room, and you left some food on the counter, and you dog is sitting in the kitchen, you come back and the [food is] gone. That would be indirect evidence, because you didn't see the animal take the food, but you can certainly infer what happened based upon the facts, circumstantial facts, and make a deduction from there.
"I think that's important because in this case, when we're dealing with criterion [three], whether or not it's likely Mr. Krusick would offend if he were released into the community, there obviously is no direct evidence of that. The only type of evidence the People would be able to present would be circumstantial evidence.
"One of the instructions the court gave before, you may rely on circumstantial evidence to conclude that a fact necessary to find the petition true has been proved. You must be convinced that the petitioner has proved each fact essential to that conclusion beyond a reasonable doubt. Also, before you may rely on circumstantial evidence to find the petition is true, you must be convinced that the only reasonable conclusion supported by the circumstantial evidence is that the petition is true. If you could draw two or more reasonable conclusions from the circumstantial evidence and one of those reasonable conclusions points to a not true finding, and another to a true finding on the petition, you must accept the one that points to a not true finding. However, when considering circumstantial evidence, you must accept only reasonable conclusions, and reject any that are unreasonable.
"We're going to be talking about this throughout the argument, but when we get to criterion [three], basically it's almost exclusively based on circumstantial evidence."
True to his word, defense counsel touched on application of the circumstantial evidence instruction at various points throughout his argument. Defense counsel discussed the testimony of the four defense experts, all of whom concluded Krusick did not have a diagnosed mental disorder that qualified under the SVPA and he was not likely to engage in sexually violent criminal behavior in the future. Defense counsel offered the jury his views as to why the contrary conclusion of prosecution's expert should be rejected. Counsel returned to the circumstantial evidence instruction and reminded the jurors of their obligation to adopt a reasonable interpretation of the evidence in Krusick's favor. Defense counsel asked the jury consider, "What's so unreasonable about the evidence in this case when Dr. Maram, Dr. MacSpeiden, Dr. Malinek, [and] Dr. Phenix all agree on each one of those factors? It can't be unreasonable if four experts independently have come to the same conclusions and come here to testify to those same conclusions. What's unreasonable is the position taken by the prosecutor and their one stand-out, standalone expert Dr. Patterson."
Discussing Krusick's risk of reoffending, defense counsel argued Krusick was unlikely to reoffend given his age and the prosecution had produced no evidence to the contrary. After making this argument, defense counsel referred back to the circumstantial evidence instruction, saying: "And again, they have their circumstantial evidence from Dr. Patterson's testimony. But when you weigh that against Dr. Phenix, Dr. Maram, Dr. MacSpeiden, and Dr. Malinek, if there's two interpretations of the evidence, I believe our position is the more reasonable interpretation."
Later, defense counsel again argued the prosecution had no direct evidence Krusick would reoffend and asserted they only had Patterson's testimony, which was unreasonable, circumstantial evidence. Defense counsel encouraged the jury to weigh Patterson's testimony against the reasonable conclusions of the four defense experts, and counsel argued the defense experts provided "the more reasonable interpretation."
Again, later in his argument, defense counsel returned to the language in CALCRIM No. 224 and told the jury, "if there's two interpretations of the evidence, you have to adopt the interpretation that points to a not true finding of the petition." He argued all four defense experts had offered reasonable positions Krusick was not significantly likely to sexually reoffend.
2. People's Rebuttal Argument
In his rebuttal argument, the prosecutor responded to the defense's reliance on the circumstantial evidence instruction. In doing so, the prosecutor first paraphrased CALCRIM No. 223, stating: "Direct evidence, circumstantial evidence. Just, you know, you've read -- the instruction direct evidence proves a fact by itself. Circumstantial evidence does not directly prove the fact to be decided, but is evidence of another group of facts by which you may logically and reasonably conclude the truth of the fact in question. Neither is entitled any greater weight."
Krusick's claim of misconduct is based on the prosecutor's comments thereafter, where the prosecutor stated the following: "The fact is . . . that the evidence you're relying on in this case, none of it is circumstantial evidence. It's all direct evidence. Doctor's findings based on direct evidence. Doctor's conclusions based on direct evidence. (Italics added.)
"And also, if you could draw -- you've heard the argument about drawing two conclusions. However, when considering circumstantial evidence, you accept only reasonable conclusions, and reject any that are unreasonable. You must reject the unreasonable. And it's two or more reasonable conclusions from the circumstantial evidence, which in this case, it's all direct evidence. (Italics added.)
"It doesn't mean the conclusions as to each individual piece is evaluated in a vacuum. It relates to the conclusions derived as a whole from circumstantial evidence. And in this case, it's all direct evidence. You know, they're looking at the totality of the circumstances. So this is kind of a red herring, and it doesn't relate to conclusions that are from direct evidence like in this case. (Italics added.)
"And then everything that [Krusick] discussed with the doctors is direct evidence. Things they observed is also direct evidence. Refusal to interview, that's something they notice. Self-report, minimization of crimes, social influences, intimacy deficits, sexual self-regulation, cooperation with supervision, lack of protective factors, ability to get an erection and masturbate, results of the [tests]. That's all direct evidence. So this is, like I said, that's a red herring argument."
The prosecutor then shifted his argument to discuss the beyond-a-reasonable-doubt standard. When he misstated the standard, defense counsel objected. The court informed the prosecutor he had made an incorrect statement of law, and the court admonished the jury as follows, "Whatever I say is what controls the law. [Counsel are] making their arguments, so remember, if there's a conflict between what [counsel is] saying and what I'm saying, follow what I say on the law."
B. Analysis
Krusick asserts the prosecutor's argument that there was only direct evidence was a misstatement of the law because the determination of whether the prosecution had proven the SVPA's three criteria depended on circumstantial evidence.
"The standards governing review of misconduct claims are settled. 'A prosecutor who uses deceptive or reprehensible methods to persuade the jury commits misconduct, and such actions require reversal under the federal Constitution when they infect the trial with such "'unfairness as to make the resulting conviction a denial of due process.'" [Citations.] Under state law, a prosecutor who uses such methods commits misconduct even when those actions do not result in a fundamentally unfair trial.' [Citation.] 'In order to preserve a claim of misconduct, a defendant must make a timely objection and request an admonition; only if an admonition would not have cured the harm is the claim of misconduct preserved for review.' [Citation.] When a claim of misconduct is based on the prosecutor's comments before the jury, '"the question is whether there is a reasonable likelihood that the jury construed or applied any of the complained-of remarks in an objectionable fashion."' [Citations.]" (People v. Friend (2009) 47 Cal.4th 1, 29 (Friend).) "This is not a low standard to meet, since '"we 'do not lightly infer' that the jury drew the most damaging rather than the least damaging meaning from the prosecutor's statements."' [Citations.]" (People v. Spencer (2018) 5 Cal.5th 642, 684.)
Because defense counsel neither objected to the prosecutor's alleged misstatements concerning circumstantial and direct evidence nor requested an admonition, Krusick has forfeited his claim of prosecutorial error. (Friend, supra, 47 Cal.4th at p. 29.) Acknowledging this, Krusick contends his counsel's failure to object constituted ineffective assistance. We proceed to the merits of Krusick's prosecutorial error claim to determine if his counsel was prejudicially ineffective.
The parties agree the prosecutor erred in his rebuttal argument, but they disagree as to the form of the error. Krusick asserts the prosecutor misstated the law concerning circumstantial evidence, while the Attorney General argues the prosecutor mischaracterized the evidence as "all direct evidence." Both are types of prosecutorial error. (People v. Boyette (2002) 29 Cal.4th 381, 435 ["it is misconduct for the prosecutor to misstate the applicable law"]; People v. Valdez (2004) 32 Cal.4th 73, 133 [counsel may not mischaracterize the evidence].) The parties also disagree as to whether the error was prejudicial. We agree with the parties the prosecutor erred, but we conclude the error was harmless.
In his rebuttal argument, the prosecutor correctly paraphrased CALCRIM No. 223 and its definition of circumstantial evidence. The prosecutor also correctly stated part of CALCRIM No. 224, which tells the jurors when considering circumstantial evidence, they must accept only reasonable conclusions and reject unreasonable ones. However, the prosecutor went astray by telling the jury all of the evidence in the case was direct evidence and therefore CALCRIM No. 224 did not apply. Although the prosecutor correctly identified some things relied upon by the experts as direct evidence, he erred by arguing all of the evidence in the case was direct evidence. We perceive this as a mischaracterization of the evidence, rather than a misstatement of law.
The error, however, was harmless. The jurors were properly instructed on the difference between direct and circumstantial evidence and that they must decide whether a fact had been proven based on all of the evidence (CALCRIM No. 223). The jurors were also properly instructed on how to evaluate and consider circumstantial evidence (CALCRIM No. 224). The court instructed the jurors to follow its instructions on the law, not the attorneys' comments, and that the attorneys' remarks in closing argument were not evidence (CALCRIM No. 222). We presume the jurors were capable of following the court's instructions, sorting out the difference between direct and circumstantial evidence based on CALCRIM No. 223, and then evaluating the sufficiency of the circumstantial evidence based on CALCRIM No. 224. (People v. Johnson (2015) 61 Cal.4th 734, 770 ["We presume the jurors understood and followed the instructions"]; People v. Clair (1992) 2 Cal.4th 629, 663, fn. 8 ["We presume that jurors treat the court's instructions as a statement of the law by a judge, and the prosecutor's comments as words spoken by an advocate"].)
Moreover, multiple times during closing arguments, the court admonished the jury to follow the court's instructions on the law, not counsels' arguments if they conflicted with the court's instructions and that counsels' statements were argument not evidence. Indeed, one such admonition came shortly after the prosecutor's argument that all of the evidence in the case was direct evidence. We presume the jury would have perceived the prosecutor's argument as just that-argument. On this record, we perceive no reasonable probability Krusick would have enjoyed a more favorable outcome in the absence of the prosecutor's error. (People v. Peoples (2016) 62 Cal.4th 718, 799; People v. Watson (1956) 46 Cal.2d 818, 836.) Because there was no prejudice to Krusick, his ineffective assistance of counsel claim also fails. (Strickland, supra, 466 U.S. at pp. 694, 697.)
DISPOSITION
The judgment is affirmed.
WE CONCUR: BEDSWORTH, J. MARKS, J. [*]
[*] Judge of the Orange County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.