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The People v. Eric Franklin Sass

November 29, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
ERIC FRANKLIN SASS, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10-1633)

The opinion of the court was delivered by: Butz , J.

P. v. Sass

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

After an initial jury deadlocked, a second jury found defendant Eric Franklin Sass guilty of 11 counts of lewd and lascivious acts upon a child under the age of 14 (Pen. Code, § 288, subd. (a))*fn1 and one count of misdemeanor lewd and obscene conduct (§ 314, subd. 1). Additionally, the jury sustained a substantial sexual conduct allegation, making defendant ineligible for probation. (§ 1203.066, subd. (a)(8).) The trial court imposed an aggregate sentence of 24 years in state prison.

On appeal, defendant contends: (1) the trial court failed to conduct sufficient voir dire examination of the prospective jurors; (2) defense counsel provided ineffective assistance by failing to conduct an adequate voir dire examination; (3) the trial court failed to correct an erroneous and prejudicial statement made during the prosecution's opening statement; and (4) the trial court provided an inaccurate and overly broad definition of "masturbation" in a jury instruction.

We reject all of defendant's contentions and shall affirm the judgment.

FACTUAL BACKGROUND

From 2003 through 2009, defendant and his girlfriend lived together with her twin children, Matthew and A.B. Defendant and his girlfriend had three children together, and A.B. referred to defendant as "Dad." Defendant started molesting A.B. when she was around eight years old. The molestation included defendant rubbing A.B.'s genitals with his hands and penis. Defendant was arrested on April 6, 2010. At trial, defendant argued that he suffered from a neurological impairment that affected his impulse control, sexuality, and memory.

Procedural history relevant to the specific contentions on appeal is set forth below.

DISCUSSION

I. Voir Dire

Jury selection for the second trial took two days. On several occasions, the trial judge asked prospective jurors if they recognized the names or faces of defendant and counsel; no one said they did. However, after a prospective juror was dismissed on the second day of jury selection, she suggested to the judge that he "make sure people don't go on the Internet . . . because [she had] already previously known about [the] case." The judge thanked the prospective juror and stated that he does "give that instruction." After the jurors were sworn in, the judge instructed the ...


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