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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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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