California Court of Appeal Jul 24, 2014 No. E057813Unpublished
Filed 7/24/14 P. v. Packer CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E057813
v. (Super.Ct.No. FSB702342)
THOMAS ELVIN PACKER, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Kyle S. Brodie,
Judge. Affirmed.
Doris M. LeRoy, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, and Eric A. Swenson, Kristine A.
Gutierrez, and Laura A. Glennon, Deputy Attorneys General, for Plaintiff and
Respondent.
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A jury convicted defendant Thomas Elvin Packer of 16 counts of lewd acts upon a
child under the age of 14 (Pen. Code, § 288, subd. (a)), and found true multiple victim
allegations as to counts 6 through 16 (Pen. Code, § 667.61, subds. (b), (c), (e)). The trial
court determined allegations that defendant had suffered two prior convictions of serious
or violent felonies to be true. (Pen. Code, §§ 667.61, subds. (b)-(i), 1170.12, subd. (a).)
Defendant was sentenced to 841 years to life, consisting of consecutive terms of 75 years
to life on counts 6 through 16, consecutive to a 16-year determinate term imposed for the
convictions in counts 1 through 5.
In this appeal, defendant contends the prosecutor committed misconduct during
voir dire. We conclude this claim was not properly preserved and is otherwise lacking in
merit. Accordingly, the judgment will be affirmed.
I. FACTUAL BACKGROUND
Defendant does not challenge the sufficiency of evidence to support the judgment;
thus, the facts may be briefly stated. Defendant repeatedly molested his two young
stepdaughters over an approximate 14-year period. Defendant began to molest the older
girl, L., soon after he moved in with the victims’ mother and her children. L. was nine
years old when the molestations commenced. Defendant continued to molest L. until she
was 17 years old. Shortly after L. turned 18, she moved out of the home. L.’s younger
sister, M., was 11 years old when L. left the home. After L. moved out, defendant turned
his lewd attentions to M. Defendant continually molested M. until she was 13 years old,
at which time she ran away from home. M. went to live with her grandparents. When M.
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told her grandparents about defendant’s molestations, they convinced her to go to the
police and report the crimes.
Defendant had previously been convicted of molesting two other young girls in the
1980’s, and both of those victims testified at trial. A. was defendant’s stepdaughter from
a prior marriage. Defendant continually molested A. from the time she was six or seven
years old until she was almost 11. While she was living in Montclair, A. invited her
friend, D., to spend the night at her house. D. was 10 or 11 years old at this time.
Defendant molested D. both times she stayed at his house. D. told her sister about the
molestations, and the sister called the police. Defendant was arrested and sentenced to
prison for molesting A. and D.
At trial, defendant testified and denied molesting the victims in this case, M. and
L. Defendant admitted having molested A. and D. Defendant served a prison term of
eight years for his convictions in the earlier case.
II. DISCUSSION
A. The Questioning of Potential Jurors
During the prosecutor’s voir dire of the prospective jurors, the following colloquy
took place:
“[The Prosecutor:] Have you ever, or has anyone heard of, a child making false
allegations of sexual abuse? Do you know what circumstances that would be? Have
you—do you remember any specific situation?
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“[Defense Counsel:] Your Honor, we are getting close to prejudging the evidence
here.
“[The Court:] Objection is overruled.
“[The Prosecutor:] Let me ask a different question anyway. . . . (Juror No. 5),
have you ever heard of a situation where someone, or actually anybody, that someone has
been sexually assaulted but did not report right away?
“[Prospective Juror:] Yes.
“[The Prosecutor:] Can you think of a reason why someone wouldn’t report right
away?
“[Defense Counsel:] Your Honor, I’m going to object. That calls for prejudgment
of the evidence.
“[The Court:] Pretty close, [Prosecutor].
“[The Prosecutor:] How about—do you think children that are molested always
tell right away?
“[Prospective Juror:] No, they don’t.
“[The Prosecutor:] Okay. Can you think of reasons why?
“[Defense Counsel:] Same objection.
“[Prospective Juror:] Yes.
“[The Court:] Overruled.
“[Prospective Juror:] Yes, plenty of them.
“[The Prosecutor:] Can you give me an example?
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“[Prospective Juror:] Scared, feeling guilty, feeling like it’s their fault.
“[The Prosecutor:] Okay. If—let’s see who hasn’t been picked on. [¶] . . . (Juror
No. 18), I haven’t really picked on you. Would you tend to disbelieve someone if they
took months or years to report a crime like that?
“[Defense Counsel:] Your Honor, that calls for flat prejudgment.
“[The Court:] I think that’s right, [Prosecutor], sustain the objection.”
Defense counsel did not request that the jury be admonished, and made no further
mention of the currently disputed line of questioning. Prospective Juror No. 18 was
subsequently excused for cause. Prospective Juror No. 5 eventually served on the jury.
Defense counsel did not exhaust his peremptory challenges.
B. Applicable Law
A prosecutor who uses deceptive or reprehensible methods to persuade the court
or 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.’” (Darden v. Wainwright (1986) 477 U.S. 168, 181
[91 L.Ed.2d 144, 106 S.Ct. 2464]; see People v. Cash (2002) 28 Cal.4th 703, 733.)
Under state law, a prosecutor who uses such methods commits misconduct even when
those actions do not result in a fundamentally unfair trial. (People v. Frye (1998) 18
Cal.4th 894, 969; see People v. Fuiava (2012) 53 Cal.4th 622, 679.)
“[A] reviewing court will not review a claim of misconduct in the absence of an
objection and request for admonishment at trial.” (People v. Gionis (1995) 9 Cal.4th
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1196, 1215; see also People v. Scott (1997) 15 Cal.4th 1188, 1217.) “[O]nly if an
admonition would not have cured the harm is the claim of misconduct preserved for
review.” (People v. Alfaro (2007) 41 Cal.4th 1277, 1328; People v. Earp (1999) 20
Cal.4th 826, 858.)
“It is, of course, well settled that the examination of prospective jurors should not
be used ‘“to educate the jury panel to the particular facts of the case, to compel the jurors
to commit themselves to vote a particular way, to prejudice the jury for or against a
particular party, to argue the case, to indoctrinate the jury, or to instruct the jury in
matters of law.”’ [Citations.]” (People v. Fierro (1991) 1 Cal.4th 173, 209.) “‘[I]t is not
a proper object of voir dire to obtain a juror’s advisory opinion based upon a preview of
the evidence.’” (People v. Butler (2009) 46 Cal.4th 847, 860.) “A prosecutor is
prohibited from vouching for the credibility of witnesses or otherwise bolstering the
veracity of their testimony by referring to evidence outside the record.” (People v. Frye,
supra, 18 Cal.4th at p. 971; see also People v. Carter (2005) 36 Cal.4th 1114, 1178.)
While it is not a proper function of voir dire examination of prospective jurors to
educate the jury panel to the particular facts of the case, counsel must be “allowed to ask
questions reasonably designed to assist in the intelligent exercise of peremptory
challenges whether or not such questions are also likely to uncover grounds sufficient to
sustain a challenge for cause.” (People v. Williams (1981) 29 Cal.3d 392, 407.) Either
party is entitled to ask prospective jurors questions that are specific enough to determine
if those jurors harbor bias that would cause them not to follow an instruction on the issues
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presented in the case, although an inquiry must not be so specific that it requires
prospective jurors to prejudge an issue based on a summary of the evidence likely to be
presented. (People v. Coffman and Marlow (2004) 34 Cal.4th 1, 47; People v. Burgener
(2003) 29 Cal.4th 833, 865.) Proper inquiry is that which is “‘“directed to whether,
without knowing the specifics of the case, the juror has an ‘open mind’”’” on the issues
presented. (People v. Butler, supra, 46 Cal.4th at p. 859; see also People v. Solomon
(2010) 49 Cal.4th 792, 838.)
In our examination of the prosecutor’s questions and comments during voir dire
we consider whether there is a reasonable likelihood that the jury construed or applied
any of the complained-of remarks in an objectionable fashion. (People v. Ayala (2000)
23 Cal.4th 225, 284.) “‘[A]s a general matter, it is unlikely that errors or misconduct
occurring during voir dire questioning will unduly influence the jury’s verdict in the case.
Any such errors or misconduct “prior to the presentation of argument or evidence,
obviously reach the jury panel at a much less critical phase of the proceedings, before its
attention has even begun to focus upon the . . . issue[s] confronting it.”’” (People v.
Seaton (2001) 26 Cal.4th 598, 636, citing People v. Medina (1995) 11 Cal.4th 694, 741.)
C. The Prosecutor Did Not Engage in Prejudicial Misconduct During Jury Voir Dire
Defendant acknowledges that, although an objection was raised and sustained in
response to the prosecutor’s alleged misconduct during voir dire, the defense made no
request that the jury be admonished. Thus, the issue of forfeiture is presented. As
previously discussed, in order “‘[t]o preserve for appeal a claim of prosecutorial
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misconduct, the defense must make a timely objection at trial and request an admonition;
otherwise, the point is reviewable only if an admonition would not have cured the harm
caused by the misconduct.’” (People v. Kipp (2001) 26 Cal.4th 1100, 1130, quoting
People v. Price (1991) 1 Cal.4th 324, 447.) An admonition would have easily corrected
the minimal amount of harm that could have possibly been caused by the alleged
misconduct in this case; therefore, defendant’s claim has been forfeited. Despite the
absence of any request for admonishment, we proceed to the merits of the claim of
misconduct to respond to defendant’s implied assertion that any prejudice could not
readily have been cured by the court’s intervention.
Upon our review of the record, we find that the prosecutor’s questions and
remarks constituted neither improper comment without evidentiary substantiation nor an
effort to indoctrinate the jury. The prosecutor did not seek to offer evidence on the Child
Sexual Abuse Accommodation Syndrome.1 The inquiries were directed at the past
experiences and prior knowledge of the jurors in an effort to determine their probable
impartiality.2 As we read the record here, the prosecutor was undertaking an appropriate
examination of possible bias in light of the past personal exposure of the prospective
1Evidence concerning the Child Sexual Abuse Accommodation Syndrome was subsequently presented to the jury through the testimony of an expert witness.
2 Notably, defense counsel used a similar type of questioning to determine how the prospective jurors might react to evidence that his client had suffered a prior conviction for a similar offense. Defense counsel addressed this line of questioning to Juror No. 5, the same juror involved in the prosecutor’s allegedly improper questioning. Defense counsel subsequently elected to retain Juror No. 5 on the jury.
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jurors to incidents of delayed reporting in cases involving child molestation, not
attempting to offer evidence on the facts of the specific case. We discern no
impermissible attempt by the prosecutor to influence the prospective jurors to vote guilty
based on the facts of the case; nor do we perceive an unreasonable likelihood that the jury
understood or applied any of the remarks during voir dire in an erroneous or improper
manner as comments on the evidence.
Assuming arguendo that any of the prosecutor’s questions or comments during
voir dire could be said to constitute misconduct, any such error was not prejudicial even
under a standard of beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S.
18, 24 [17 L.Ed.2d 705, 87 S.Ct. 824].) The trial court sustained defendant’s objection to
the prosecutor’s final disputed question, thereby limiting any possible prejudicial effect.
The jury was correctly instructed on the prosecution’s burden of proof beyond a
reasonable doubt with CALCRIM No. 220, both before and after the presentation of
evidence. The jury was also twice given CALCRIM No. 222, which instructed that
statements of the attorneys were not evidence. We ordinarily presume the jury followed
the instructions and disregarded the prosecutor’s remarks to the extent they were
inconsistent with the instructions. (People v. Osband (1996) 13 Cal.4th 622, 717.)
Moreover, the prosecution’s evidence was very strong. The jury had no difficulty
resolving this case, reaching its verdicts following less than two hours of deliberation.
Defendant has not shown that the court’s rulings and instructions were inadequate to
prevent any possible prejudice from the prosecutor’s alleged misconduct during voir dire,
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nor do we discern any reasonable possibility that the instructions were inadequate to cure
any error.
III. DISPOSITION
The judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ P. J.
We concur:
RICHLI J.
MILLER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant forfeited his claim of prosecutorial misconduct during voir dire by failing to request a jury admonition, and that the claim lacked merit because the prosecutor's questions were directed at determining juror bias rather than improperly indoctrinating the jury.
Issues
Whether the defendant preserved his claim of prosecutorial misconduct during voir dire by failing to request a jury admonition.
Whether the prosecutor's questioning of prospective jurors regarding delayed reporting of sexual abuse constituted prejudicial misconduct.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“defendant’s claim has been forfeited.”
“the prosecutor’s questions and remarks constituted neither improper comment without evidentiary substantiation nor an effort to indoctrinate the jury.”
“The inquiries were directed at the past experiences and prior knowledge of the jurors in an effort to determine their probable impartiality.”