IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yolo)
November 29, 2012
THE PEOPLE, PLAINTIFF AND RESPONDENT,
ERIC FRANKLIN SASS, DEFENDANT AND APPELLANT.
(Super. Ct. No. 10-1633)
The opinion of the court was delivered by: Butz , J.
P. v. Sass
NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.
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.
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 jury to not do any outside research, Internet or otherwise. At the time, there were no objections concerning insufficiency of the court's voir dire.
Defendant asserts that the questioning of the jurors by the court and defense counsel was so inadequate that it deprived him of a fair trial. Distinct legal issues pertain to the court's and to the defense counsel's voir dire examinations, so we will discuss the two examinations separately.
A. The Trial Court's Voir Dire Examination
Defendant's challenge of the trial court's voir dire fails for two reasons.
First, defense counsel neglected to object to the trial court's examination and defense counsel failed to conduct a more extensive voir dire examination. As a result, defendant forfeits his right to appeal this issue. (See People v. Holloway (2004) 33 Cal.4th 96, 126 ["defendant has [forfeited his claim of inadequate examination of a juror] by his failure to seek a more extensive or broader inquiry of the juror at the time"].)
Second, assuming that defendant did not forfeit this contention, the trial court's conduct of voir dire does not warrant a reversal because it did not render the trial fundamentally unfair. (People v. Holt (1997) 15 Cal.4th 619, 661 (Holt) ["Unless the voir dire by a court is so inadequate that the reviewing court can say that the resulting trial was fundamentally unfair, the manner in which voir dire is conducted is not a basis for reversal."].)
At least five times during voir dire, the trial court asked prospective jurors if they knew the faces or names of defendant and counsel. As a result of this questioning, a juror revealed his connection to the prosecutor. The juror was dismissed for cause. During voir dire, the court also privately interviewed four prospective jurors about their personal experience with molestation and dismissed all four for cause. The court also permitted defense counsel to conduct his own voir dire examination of the prospective jurors.
Defendant contends the trial court erred in not asking the prospective jurors if they knew of the facts of the case. Section 4.30(b)(9) of the California Standards of Judicial Administration (Standards) provides the model question: "Have any of you heard of, or have you any prior knowledge of, the facts or events in this case?" The Supreme Court has instructed trial courts to use the Standards during voir dire. (Holt, supra, 15 Cal.4th at p. 661.) "Failure to use the recommended language [of the Standards] may be a factor to be considered in determining whether a voir dire was adequate, but the entire voir dire must be considered in making that judgment." (Ibid.)
It would have been ideal if the trial court had asked the model question, particularly after the dismissed prospective juror requested that the court "make sure people don't go on the Internet."*fn2 Nevertheless, the court's voir dire examination need not be perfect; it need only be adequate when considering the entire voir dire. (Holt, supra, 15 Cal.4th at p. 661.) Given that the court asked probing questions throughout the voir dire process (including questions to the jurors regarding their knowledge of defendant and others), dismissed several prospective jurors for cause, and readily permitted defense counsel to conduct his own examination, we find the trial court's voir dire examination was not "so inadequate . . . that the resulting trial was fundamentally unfair." (Ibid.)
B. Defense Counsel's Voir Dire Examination
Defendant contends that his trial counsel provided ineffective assistance through counsel's voir dire examination and counsel's failure to object to the court's voir dire examination. "To secure reversal of a conviction upon the ground of ineffective assistance of counsel under either the state or federal Constitution, a defendant must establish (1) that defense counsel's performance fell below an objective standard of reasonableness, i.e., that counsel's performance did not meet the standard to be expected of a reasonably competent attorney, and (2) that there is a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings." (People v. Cunningham (2001) 25 Cal.4th 926, 1003, citing Strickland v. Washington (1984) 466 U.S. 668, 687-694 [80 L.Ed.2d 674].)
Even assuming for the sake of argument that trial counsel's conduct fell below an objective standard of reasonableness, there is not a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings. As noted, the prospective jurors were asked if they knew the faces or names of defendant and counsel. After the jurors were selected, they were all instructed by the judge to not conduct any outside research, including Internet research. Additionally, the jurors swore an oath to render a verdict "according only to the evidence presented to [them] and to the instructions of the Court." There is nothing in the record to suggest that the actual jurors possessed or relied upon outside knowledge of the case. Therefore, we find that there is not "a reasonable probability that defendant would have obtained a more favorable result absent counsel's shortcomings." (People v. Cunningham, supra, 25 Cal.4th at p. 1003.)
II. Opening Statement
During her opening statement, the prosecutor suggested that expert witness Anthony Urquiza, Ph.D., would "corroborate that defendant committed these sexual acts against [A.B.]" Defense counsel objected and later moved for mistrial. Defense counsel argued that because Dr. Urquiza's only role was to testify about Child Sexual Abuse Accommodation Syndrome (CSAAS), his testimony could not be used to corroborate a witness.*fn3 The court disagreed and found that, although it was "probably an unfortunate choice of words," the word "corroborating" has two different meanings. "[T]here's also the more general sense of corroboration that one person asserts one thing to be true and something another person says somehow provides more weight to that."
Defendant contends that his motion for mistrial should have been granted because the prosecutor's statement constituted misconduct and prejudiced him. We do not agree.
" '[P]rosecutorial misconduct in an opening statement is not grounds for reversal of the judgment on appeal unless the misconduct was prejudicial or the conduct of the prosecutor so egregious as to deny the defendant a fair trial.' " (People v. Wrest (1992) 3 Cal.4th 1088, 1109.)
The record strongly suggests that the prosecutor's statement did not prejudice defendant or deny him a fair trial. First, after the prosecutor's statement, the judge instructed the jurors that it was their responsibility to determine if a witness's testimony supports another witness's testimony. Second, after the prosecutor's opening statement, the judge instructed the jury that the statements made by the attorneys did not constitute evidence. Third, Dr. Urquiza testified that the scope of his CSAAS testimony was to dispel misunderstandings about sex assault victims, and was not to render an opinion regarding whether A.B. was molested. Fourth, and finally, at the conclusion of the trial, the judge instructed the jury that CSAAS testimony was not evidence that defendant committed the acts and such testimony could only be used to determine whether A.B.'s testimony was not inconsistent with being a victim of molestation. We find that any confusion caused by the prosecutor's opening statement was sufficiently mitigated by the court's repeated instructions and the limited nature of Dr. Urquiza's testimony. (See People v. Pigage (2003) 112 Cal.App.4th 1359, 1375 ["a timely admonition from the court generally cures any harm"].)
III. Jury Instructions
As to the section 1203.066, subdivision (a)(8) allegation involving "substantial sexual conduct"--which would render defendant ineligible for probation--the trial judge defined that term for the jury as follows: "Substantial sexual conduct [includes] masturbation of either the victim or the offender." During deliberations, the jury asked for the legal definition of "masturbation." Initially, the judge planned on instructing the jury to use the word's everyday meaning. The judge, however, was persuaded to offer the prosecution's definition. The judge gave the following instruction: "Masturbation encompasses any touching or contact, however slight, of the genitals of the victim or the defendant, with the intent to arouse, appeal to, or gratify the lust, passions, and sexual desires of the defendant or the child. This touching can occur under the clothing or over the clothing."
Defendant contends that this definition is inaccurate and overly broad. Defendant argues that "masturbation" under section 1203.066 requires something more than "any touching." We disagree.
In providing its instruction, the trial court relied upon the definition of masturbation specified by the Court of Appeal in People v. Chambless (1999) 74 Cal.App.4th 773 (Chambless). Chambless interpreted the definition of masturbation within the Sexually Violent Predators Act (SVPA) (Welf. & Inst. Code, § 6600 et seq.). (Chambless, at pp. 782-787.) At the time Chambless was decided,*fn4 the SVPA and section 1203.066 contained an identical definition of "substantial sexual conduct," which includes "masturbation." The term "masturbation" was left undefined, however.
To determine the definition of "masturbation," Chambless applied the common meaning of the word and analogous prior case law. Chambless rejected a quantitative component within the definition because "common sense suggests that . . . the extent of genital touching that would excite or gratify one person may be different than the amount of touching required to do so for another." (Chambless, supra, 74 Cal.App.4th at p. 784, fn. 16.) Chambless also cited the definition of "oral copulation" under section 1203.066 in People v. Grim (1992) 9 Cal.App.4th 1240. (Chambless, at p. 786.) The "oral copulation" definition includes " '[a]ny penetration, however slight, of the mouth of one person by the sexual organ . . . of another person.' " (Grim, at p. 1242.) Subsequent case law has affirmed the Chambless definition of "masturbation" under the SVPA. (See People v. Carlin (2007) 150 Cal.App.4th 322, 333; People v. Lopez (2004) 123 Cal.App.4th 1306, 1311-1312.) Additionally, the Chambless definition has been applied to section 1203.066. (See People v. Dunn (2012) 205 Cal.App.4th 1086, 1098, fn. 8.)
We find no compelling reason to apply an alternative definition of "masturbation" under section 1203.066 and defendant cites to no alternative definition that has precedential value. As a result, we find that the trial court did not err in providing its definition of "masturbation" to the jury.
The judgment is affirmed.
We concur: HULL , Acting P. J. MAURO , J.