Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Marin County Super. Ct. No. 146729A
Jones, P.J.
Robert A. Girard appeals from a judgment entered after a jury convicted him on three counts of committing a lewd or lascivious act on a child under the age of 14, (Pen. Code, § 288, subd. (a)) and one count of continuous sexual abuse of a child. (§ 288.5, subd. (a).) He contends (1) the trial court erred when it excluded from evidence portions of a pretrial statement that he made, while the court allowed the prosecutor to offer other portions; (2) the court erred when it admitted evidence that he had committed a prior similar sexual offense; (3) the prosecutor committed misconduct during final argument; and (4) the sentence he received constituted cruel and unusual punishment. We conclude the court did not commit any prejudicial errors and will affirm.
Unless otherwise indicated, all further section references will be to the Penal Code.
I. FACTUAL AND PROCEDURAL BACKGROUND
Appellant was convicted of sexually molesting four different prepubescent girls. The circumstances of each offense was similar. Appellant, who was married and had a young daughter, would lure his daughter’s friends to his house for play dates and sleepovers. Appellant would then sexually molest the young girls under his care. The circumstances of appellant’s crimes are as follows:
Jane Doe No. 1
Jane Doe No. 1 (Doe No. 1) was born in October 1997. She lived with her mother C. P. in San Rafael. In March 2006, Doe No. 1 was in second grade and attended an after-school program. Appellant’s daughter T. G. attended the same after-school program. T. G. and Doe No. 1 were friends and appellant had taken Doe No. 1 on out-of-town excursions.
On Thursday, March 23, 2006, C. P. received a phone call from appellant asking whether Doe No. 1 could come to his house for a play date. C. P. agreed so long as Doe No. 1 was home by 8:00 p.m.
Near 6:00 p.m. that evening, C. P. received a call from appellant asking whether Doe No. 1 could sleep over that night. Appellant assured C. P. that the girls would get a good night’s sleep. C. P. agreed. Appellant brought Doe No. 1 home so she could get some clothes and a lunch for the following school day. While there, appellant and C. P. confirmed that Doe No. 1 would have a sleepover at appellant’s house the following Saturday.
That evening as the girls were getting ready for bed, T. G. told Doe No. 1 that appellant was going to give them both massages and that she should take off her clothes. Doe No. 1 complied. Both girls were on T. G.’s bed, and appellant massaged his daughter first. Appellant then turned to Doe No. 1. He put some warm lotion on his hands and starting rubbing Doe No. 1’s back. Appellant then reached down and rubbed Doe No. 1’s vagina, putting his finger inside three times. Doe No. 1 said it hurt and it felt “[w]eird” and hurt “inside” when appellant used his finger to massage “inside [her] private.” When the massage was over, appellant told Doe No. 1 she should not tell her mother because she would be mad at him.
Doe No. 1 went to school as usual the next morning.
The following Saturday, Doe No. 1 spent time with her grandmother. At one point, the grandmother mentioned that Doe No. 1 would be sleeping at T. G.’s that night. Doe No. 1 announced that she did not want to spend the night with T. G. When the grandmother asked why, Doe No. 1 replied that when she spent the night there the prior Thursday, appellant had touched her private spot.
The grandmother called C. P. and told her what Doe No. 1 said. C. P. spoke with Doe No. 1 who reiterated what she told her grandmother.
C. P. called her brother, a police officer, and asked for help. A police officer came to C. P.’s house and spoke with her about the incident. A few hours after the officer left, Corporal Lisa Holton of the San Rafael Police Department called C. P. and asked her to come to the police station. While there, C. P. agreed to call appellant. The call was recorded. C. P. asked appellant to clarify what had happened at his house during the sleepover. Appellant replied that he was massaging T. G., and that Doe No. 1 had asked for a massage too. Appellant admitted that Doe No. 1 was naked during the massage, but said that it was not sexual.
After the call, Corporal Holton went to appellant’s house and asked him to come to the police station. Appellant agreed. During an interview at the station, appellant admitted that he gave Doe No. 1 a massage, that he put his hands on her inner thighs, and that he might have brushed the outside of the girl’s vagina. Appellant was adamant, however, that he did not put his finger inside Doe No. 1’s vagina.
Appellant was arrested later that night.
News of appellant’s arrest spread through the community and caused the parents of T. G.’s friends to question whether their daughters might have been molested too. Three of them stepped forward. The events they described were similar to those relayed by Doe No. 1.
Jane Doe No. 2
Jane Doe No. 2 (Doe No. 2) was born in April 1999. She went to preschool with T. G. and her family was close to T. G.’s family. Appellant often took Doe No. 2 to the mall, to the arcade, and to special Disney events. Between September 2005 and March 2006, Doe No. 2 played at appellant’s house several times a week and spent the night at least once a week.
According to Doe No. 2, every time she spent the night at T. G.’s house, appellant would molest her. He would kneel next to her bed, take off her pajamas, and touch the inside of her vagina with his fingers. Doe No. 2 said this hurt and made her feel uncomfortable.
Jane Doe No. 3
Jane Doe No. 3 (Doe No. 3) was born in October 1999. She lived in San Rafael with her grandmother. Doe No. 3 became friends with T. G. in preschool. Their families would socialize together, going camping and visiting Santa Cruz.
Doe No. 3 often played at appellant’s house and had sleepovers. According to Doe No. 3, one time when she was alone with appellant in his living room, she was wearing a bathing suit. Appellant told her to lie down on the couch. She did. Appellant then removed her bathing suit and licked her vagina.
Subsequently, Doe No. 3 told her relatives that appellant had “licked” her “private” but they were reluctant to believe her. Only after appellant’s arrest did Doe No. 3’s relatives come to think that she might have been telling the truth.
Jane Doe No. 4
Jane Doe No. 4 (Doe No. 4) was born in March 1999. She attended preschool and elementary school with T. G. Her family was friendly with T. G.’s family and they went to ice shows and amusement parks together.
In October 2005, Doe No. 4 started having play dates with T. G. and sleeping over at her house. During one of those sleepovers, Doe No. 4 was in bed when appellant came in and put his hand under her pajamas and inside her underwear. Appellant then put three fingers inside Doe No. 4’s vagina. Doe No. 4 told appellant to stop and she tried unsuccessfully to push his hand away. When appellant was finished, he said, “good night” and left.
The following morning, Doe No. 4 told appellant’s wife M. A. what happened. M. A. refused to believe the child, telling her appellant “wouldn’t do that.”
Based on these facts, an information was filed charging appellant with eight counts: (1) lewd acts on Doe No. 1 (§ 288, subd. (a)), (2) continuous sexual abuse against Doe No. 2 (§ 288.5), (3) lewd acts against Doe No. 2 (§ 288, subd. (a)), (4) lewd acts against Doe No. 2 (§ 288, subd. (a)), (5) lewd acts against Doe No. 2 (§ 288, subd. (a)), (6) lewd acts against Doe No. 3 (§ 288, subd. (a)), (7) lewd acts against Doe No. 4, (§ 288, subd. (a)), and (8) lewd acts against Doe No. 4 (§ 288, subd. (a).) As is relevant, the information also alleged appellant had one prior strike within the meaning of the three strikes law, (§ 1170.12, (c)(1)) and that appellant had one prior conviction for committing a lewd act on a child within the meaning of section 667.61, subdivisions (a), (c), and (d).
The case proceeded to trial where the prosecution presented the evidence we have set forth above. The prosecution buttressed its case with testimony from a witness, A. G., who testified that in 1980 when she was 9 years old, she lived in the same neighborhood as appellant. A. G. said that appellant gave her money and that she often visited his house. During those visits, appellant copulated A. G. orally approximately 10 times, and tried unsuccessfully to engage in intercourse with her approximately 10 times. Appellant told A. G. to keep their relationship quiet.
The jurors considering this evidence rendered a mixed verdict. They convicted appellant on counts 1, 2, 6, and 7, but acquitted him on counts 3, 4, 5, and 8.
Subsequently the court sentenced appellant to 200 years in state prison.
II. DISCUSSION
A. Evidence Exclusion
Appellant went to the police station on the night of his arrest where he was interviewed by the police. The interview was recorded. It is lengthy (over 100 pages), and during the course of the interview appellant made several damaging admissions; he acknowledged he gave Doe No. 1 a massage while she was naked, that he was a registered sex offender, and that he had “a problem” with young girls.
Many portions of the interview were omitted before it was played for the jurors. For example, the court omitted all references to Doe No. 1 because criminal proceedings concerning the allegations she made had already commenced and appellant was represented by counsel at the time.
The prosecution and defense also asked that certain portions of the interview be omitted for tactical reasons. As is relevant here, the prosecutor argued that many of the statements appellant made should be omitted because they were self-serving hearsay. The defense countered that even if some of appellant’s statements were hearsay, they should come in under Evidence Code section 356. The trial court agreed to exclude some passages.
Appellant now contends the trial court should have admitted his complete statement to the police under Evidence Code section 356. Because the court failed to do so, appellant argues, the jurors never learned he denied many of the allegations that were made.
Evidence Code section 356 is sometimes described as the “rule of completeness.” (See People v. Samuels (2005) 36 Cal.4th 96, 130.) It states: “Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party; when a letter is read, the answer may be given; and when a detached act, declaration, conversation, or writing is given in evidence, any other act, declaration, conversation, or writing which is necessary to make it understood may also be given in evidence.”
The purpose of Evidence Code section 356 is to avoid creating a misleading impression. (People v. Samuels, supra, 36 Cal.4th at p. 130.) The trial court is granted the authority to determine whether evidence should be admitted under Evidence Code section 356 and its ruling will be reversed on appeal only where the court abused its discretion. (People v. Pride (1992) 3 Cal.4th 195, 235.)
Here, we need not decide whether the court abused its discretion because any possible error was harmless. As appellant concedes, the issue under California law is whether it is reasonably probable he would have achieved a more favorable result absent the error alleged. The answer is clearly no. Appellant identifies several statements that he contends the court improperly excluded. The first is that he gave Doe No. 2 a massage on only one occasion and that he did not give her a massage on the night the child was suffering from allergic reactions. However, the portion of the interview that was played for the jurors did include this information. The jurors were told appellant gave Doe No. 2 a massage only “one time” and the portion of the interview that was played for the jurors makes clear that the “one time” was different from the night where Doe No. 2 was suffering from allergic reactions.
Next, appellant contends the court improperly omitted his statement that he denied massaging Doe Nos. 3 and 4. In fact, the jurors did learn appellant made such a statement. The portion of the interview that was played indicated that appellant denied ever massaging Doe No. 3 or Doe No. 4.
Appellant maintains the court erred when it omitted his statement that he denied performing oral sex on Doe No. 3. While the portion of the interview that was played for the jurors did not contain that precise denial, it did include appellant’s repeated statements that he had done “nothing sexual” with any of the young girls in question. This is functionally the same thing.
Finally, appellant contends the court erred because it omitted his statements that he did not put his hand between the girls’ legs and touch their vaginas. However again, the jurors did learn essentially the same information. The portion of the interview that was played for them included appellant’s denial that he touched Doe No. 2’s private parts, and appellant’s repeated denials that he had done anything sexual with the any of the girls.
Furthermore and importantly, we do not view this as a close case. The four child victims who testified each independently described similar molestations. Appellant admitted that he had massaged two of the girls while they were naked, a highly incriminating act. Appellant had a history of molestation, and even he admitted to the police that he might well have “a problem.” We conclude it is not reasonably probable that appellant would have achieved a more favorable result absent the error alleged. Any possible error was harmless.
Finally on this issue, appellant contends the exclusion of the evidence at issue deprived him of an opportunity to present a complete defense. He argues that under those circumstances, the error is of federal constitutional dimension, and that reversal is required unless the error is harmless beyond a reasonable doubt. (Chapman v. California (1967) 386 U.S. 18.) We disagree. Where, as here, a “trial court’s ruling did not constitute a refusal to allow defendant to present a defense, but merely rejected certain evidence concerning the defense,” the ruling does not constitute a violation of due process, and the appropriate standard of review is whether it is reasonably probable the admission of the evidence would have resulted in a verdict more favorable to defendant. (People v. Bradford (1997) 15 Cal.4th 1229, 1325.) As we have stated, no reasonable probability exists in this case.
B. Prior Misconduct
Before trial, appellant asked the court to exclude testimony from A. G., now an adult woman whom appellant molested when she was a child. The trial court rejected appellant’s request, ruling the testimony was admissible under Evidence Code section 1108. The court explained its decision as follows:
“I don’t think there is going to be a confusion of the issues. And I don’t think there will be an [undue] consumption of time.
“So I really think the question is: Does the prejudicial nature outweigh the probative value? And [defense counsel’s] argument began to sway me, with the argument that the prior conduct was more serious, until I read [People v. Frazier (2001) 89 Cal.App.4th 30].
“And I have to agree, I am afraid, with the People that the Frazier case seems right on point to the case here. In the Frazier case the prior activity was more serious than the activity in the case at trial. The prior activity was 15 or 16 years previous.
“And something that I did find interesting was that the prior conduct was not a conviction, so it was not as strong, in my opinion, as the evidence in this case, since apparently we are going to hear from a victim who [sic] Mr. Girard [sic?]was convicted of assaulting. So the evidence, in my view, seems quite strong and probative.
“ . . .
“The fact that the defendant has conducted similar activity with a prior young girl, I think has extraordinary probative value, especially as it relates to his propensity and intent.
“And quite honestly, the prejudicial [effect], since you already have four little girls coming [in to] talk about it, I don’t know that the prejudicial effect is as extreme as the probative value. And so I appreciate the defense[] objection, but I am going to permit the prior victim to testify.”
The court did, nevertheless, agree to limit the prior victim’s testimony in order to lessen the prejudicial effect to appellant:
“It seems to me that the important testimony that should come in, as far as this witness is concerned, is that she was a certain age, six or nine, or whatever the age was, that she was invited [in to] Mr. Girard’s home. In the home he orally copulated her. And if it’s one time; one time. If it’s ten times: ten times. But I don’t think she has to go into each incident.
“ . . .
“ . . . . As far as the attempted sexual intercourse, I think she could say that when she was in his home he attempted sexual intercourse with her one time or five times, whatever it was. But I don’t think more descriptions need to come in.”
Appellant now contends the trial court erred when it admitted the prior testimony of A. G. under Evidence Code section 1108.
Evidence Code section 1101, subdivision (a), states the general rule that character evidence is inadmissible to prove a defendant’s conduct on a specific occasion. However, Evidence Code section 1101 is subject to several exceptions, one of which is set forth in Evidence Code section 1108, subdivision (a). As is relevant it states: “In a criminal action in which the defendant is accused of a sexual offense, evidence of the defendant’s commission of another sexual offense or offenses is not made inadmissible by Section 1101, if the evidence is not inadmissible pursuant to Section 352.” Evidence Code section 352, in turn, states: “The court in its discretion may exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.”
Thus, the pivotal issue here is whether the court violated Evidence Code section 352, when it admitted testimony from the prior victim, A. G.
Turning to the first element of Evidence Code section 352, admitting the evidence of the prior crime did not require an undue consumption of time. A. G’s entire testimony, including her direct and cross-examination, covers only 10 pages of the reporter’s transcript.
Turning to the second element, in People v. Falsetta (1999) 21 Cal.4th 903, our Supreme Court set forth the factors a trial court should evaluate when deciding whether evidence of a prior sex crime should be admitted. The court explained, “Rather than admit or exclude every sex offense a defendant commits, trial judges must consider such factors as its nature, relevance, and possible remoteness, the degree of certainty of its commission and the likelihood of confusing, misleading, or distracting the jurors from their main inquiry, its similarity to the charged offense, its likely prejudicial impact on the jurors, the burden on the defendant in defending against the uncharged offense, and the availability of less prejudicial alternatives to its outright admission, such as admitting some but not all of the defendant’s other sex offenses, or excluding irrelevant though inflammatory details surrounding the offense.” (Id. at p. 917.)
Applying those factors, we note that the nature of the charged offense and the uncharged offense were similar. In both instances, appellant committed lewd acts on prepubescent girls who were visiting his home. While in some respects the uncharged offense with its attendant allegations of repeated attempted sexual intercourse were more serious, in other respects the uncharged offense was less inflammatory. A. G. testified that she was a willing participant in the acts appellant committed. That was not the case with any of the victims here.
Evidence concerning the uncharged offense was highly relevant. Appellant admitted that he gave naked massages to two of the prepubescent girls who had visited him, but he denied having any sexual intent. The fact that appellant previously had committed similar lewd acts on a different prepubescent girl was highly probative on appellant’s true intent.
The prior uncharged misconduct was relatively remote. It occurred approximately 25 years before the offenses at issue. On the other hand, “[n]o specific time limits have been established for determining when an uncharged offense is so remote as to be inadmissible.” (People v. Branch (2001) 91 Cal.App.4th 274, 284.) For example, the court in People v. Harris (1998) 60 Cal.App.4th 727, 739, observed that a 23-year gap was “a long time.” By contrast, the court in People v. Waples (2000) 79 Cal.App.4th 1389, 1395, ruled that an uncharged offense that occurred more than 20 years before the charged offense was not too remote given the similarities between the charged and uncharged offenses. On balance we find this factor to be neutral.
It is certain that appellant committed the prior offense. He admitted the crime and suffered a conviction.
There was little danger of confusion here. The four victims in this case were young children and the conduct at issue was recent. By contrast, the uncharged offense occurred many years ago and the testimony concerning that offense was provided by an adult woman.
It was unlikely that appellant would suffer undue prejudice. While the prior offense was undoubtedly disturbing, the charged offenses were also. As the trial court noted trenchantly, “since you already have four little girls coming [in to] talk about it, I don’t know that the prejudicial effect is as extreme as the probative value.”
Appellant would not be put to an undue burden in order to defend against the uncharged offense. He admitted the prior crime.
Finally, the trial court refused to allow unlimited evidence concerning the uncharged offense to avoid undue prejudicial impact from its admission. The court ruled A. G. could tell the jurors what appellant had done, but that she could not go into the details of any of the molestations. The evidence was not unduly inflammatory.
In sum, the trial court carefully weighed the factors our Supreme Court has identified, and reasonably could conclude that evidence of appellant’s prior sex crime should be admitted. The court did not abuse its discretion when it made that ruling. (People v. Branch, supra, 91 Cal.App.4th at p. 282.)
In arguing the trial court erred, appellant relies primarily on People v. Harris, supra, 60 Cal.App.4th 727. The defendant in that case was a mental health nurse who was charged with several sexual offenses after he allegedly took advantage of two emotionally and physically vulnerable women who were under his care. (Id. at pp. 730-732.) At trial, the prosecutor introduced evidence that the defendant committed a prior sexual offense approximately 23 years earlier. The evidence was presented through the testimony of police officers. (Id. at p. 734.) They described finding a woman who had been severely beaten, was covered in blood, and appeared to be unconscious. (Id. at pp. 734-735.) The defendant, whose crotch was bloody, was found hiding nearby. (Ibid.) It was also stipulated that the defendant had been convicted of burglary with great bodily injury. (Id. at p. 735.) The reviewing court stated that evidence of the prior crime was “inflammatory in the extreme,” and would have allowed the jury to speculate as to the defendant’s role in light of his conviction for burglary. (Id. at p. 738, original italics.) The court also noted that the jury could have concluded that the defendant was never punished for the prior rape, and thus might have been inclined to punish him by convicting him of the charged offenses. (Ibid.) The Harris court further found that the remoteness of the evidence weighed in favor of exclusion, since the prior offense had occurred 23 years earlier. (Id. at p. 739.) Although recognizing that admission of the evidence did not consume much time during trial (ibid.), the court concluded that evidence that the defendant was a violent sex offender had little relevance to the “‘breach of trust’ sex crimes.” (Id. at p. 741.) Under those circumstances, the Harris court found an abuse of discretion in the admission of the evidence of the prior conduct. (Id. at p. 741.)
While this case is similar to Harris in some respects, in others, it is markedly different. Here, unlike Harris, the charged and uncharged offense were very similar. In both instances, appellant committed sexual offenses against prepubescent girls who were visiting his home. Furthermore, as we have explained, evidence of the prior offense was not particularly inflammatory as compared to the charged offense. Finally, because appellant was convicted of the prior offense, the jurors would see no need to punish him further for that crime. Harris is not controlling given these significant differences.
Citing McKinney v. Rees (9th Cir. 1993) 993 F.2d 1378, appellant argues that admission of the prior incident violated his federal due process rights. However, that case dealt with the improper admission of character evidence that did not qualify as a sexual offense. As our Supreme Court has noted, because McKinney did not involve “section 1108 . . . nor even involve the admission of evidence of the defendant’s other crimes, it is inapposite.” (People v. Falsetta, supra, 21 Cal.4th at pp. 921-922.)
We conclude the court did not abuse its discretion when it ruled appellant’s prior sex crime was admissible under Evidence Code section 1108.
Having reached this conclusion, we need not determine whether evidence of the prior crime also was admissible on the issue of intent under Evidence Code section 1101.
C. Whether the Prosecutor Committed Misconduct During Final Argument
Appellant contends the prosecutor committed misconduct during her final argument. Appellant’s argument has two components. He claims the prosecutor committed misconduct by (1) referring to facts that were not in evidence, and (2) by improperly vouching for a witness. We will address each argument separately.
1. Facts not in evidence
The prosecutor stated as follows during her closing argument:
“The officers continue with their investigation, and they have Jane Doe No. 1 come in for a tape-recorded interview at the Jeanette Prandi Center, and she comes in for that interview on Monday, March 27th.
“And that’s four days from the time this happened to her. Things are still clear in her mind. It’s not two or three years later. It’s clear in her mind, and she gives an interview consistent with all her statements. And we know it’s consistent with all her statements and we know it’s consistent with what she told you in court, because if it hadn’t been, the defense attorney would have brought the interviewer in here to tell you.” (Italics added.)
At that point defense counsel objected. When the court overruled the objection, the prosecutor continued:
“And she didn’t. So there is no evidence that that little girl, Jane Doe No. 1 made any inconsistent statements.”
Later during her closing argument, the prosecutor stated as follows:
“And the very next day Jane Doe No. 4 is interviewed at the Jeanette Prandi Center. So all these kids were interviewed at the Jeanette Prandi Center in tape-recorded interviews. And the person who interviewed them never came in to testify. And I didn’t need to call that person to testify because these kids didn’t make inconsistent statements.” (Italics added.)
Defense counsel objected at that point and the court sustained the objection.
The prosecutor then clarified her argument, “Well, you didn’t hear about any inconsistent statements.”
Now focusing on the passages we have italicized, appellant argues the prosecutor committed misconduct by referring to facts that were not in evidence during her final argument.
The first barrier appellant faces is procedural. “To preserve a claim of prosecutorial misconduct for appeal, a criminal defendant must make a timely objection, make known the basis of his objection, and ask the trial court to admonish the jury.” (People v. Brown (2003) 31 Cal.4th 518, 553, italics added.) Here, appellant objected to the statements he now challenges, but he did not ask the court to admonish the jury. Therefore he has forfeited his right to raise the argument on appeal. (Ibid.)
Appellant acknowledges this omission and he tries to come within an exception that applies when an objection would have been futile and an admonition would not have cured any harm. (See, e.g., People v. Hill (1998) 17 Cal.4th 800, 820.) An objection clearly would not have been futile here. The court sustained the second of appellant’s objections to comments he now challenges. Nor is it true that an admonition would not have cured any harm. A simple admonition by the trial judge that the jurors were not to consider any facts not in evidence would have cured any possible harm.
Furthermore, even ignoring the procedural barrier, we see no possibility for prejudice here.
It is settled that a prosecutor may comment during argument on the state of the evidence including the failure of the defense to introduce material evidence or to call witnesses. (People v. Mincey (1992) 2 Cal.4th 408, 446.) It is also settled that it is misconduct for a prosecutor to refer to facts that are not in evidence. (See, e.g., People v. Hall (2000) 82 Cal.App.4th 813, 817.) The comments appellant has challenged fall at the margins of these two concepts. On the one hand, it appears the prosecutor was commenting on the defense’s failure to call a witness to impeach the children. The prosecutor argued that because the defense failed to present such evidence, they could infer it did not exist. On the other hand, the prosecutor does appear to go outside the record when she told the jurors that she did not need to call the person who interviewed the children because they did not make any inconsistent statements.
The situation is complicated further by the fact that after defense counsel objected to each statement, the prosecutor clarified her point. After the first objection, the prosecutor stated that because the defense had not called any witnesses to challenge the girls’ credibility “there is no evidence that that little girl, Jane Doe No. 1 made any inconsistent statements.” After the second objection, the prosecutor clarified, “Well you didn’t hear about any inconsistent statements.” When a claim of misconduct focuses on comments the prosecutor made to the jurors, “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.” (People v. Samayoa (1997) 15 Cal.4th 795, 841.) Given the prosecutor’s clarifications, it would be difficult to conclude it is reasonably likely the jurors construed these remarks in an objectionable fashion.
However, we need not draw any fine distinctions in this case because any possible error was harmless.
Misconduct is established under federal law when it infects the trial with such unfairness as to make the conviction a denial of due process. (People v. Hill, supra, 17 Cal.4th at p. 819.) Misconduct under the federal standard requires reversal unless a reviewing court is convinced, beyond a reasonable doubt that the misconduct did not affect the jury’s verdict. (See People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323-1324, citing Chapman v. California, supra, 386 U.S. 18.) Misconduct that falls short of the federal standard is reversible under state law if it is reasonably probable the defendant would have achieved a more favorable result absent the comments at issue. (People v. Bordelon, supra, 162 Cal.App.4th at pp. 1323-1324.)
The error in this case is harmless under either standard. The comments at issue were brief and were immediately clarified by the prosecutor. The nature of the comments, that the testifying child witnesses made statements that were consistent with their testimony, was not particularly damaging. The trial court specifically told the jurors that the prosecutor’s comments were not evidence and that they should only consider the evidence that was presented at trial. As we have explained above, the case against appellant was strong. Under these circumstances, we conclude any possible error the prosecutor may have committed was harmless.
2. Vouching
The prosecutor discussed Doe No. 3’s testimony as follows:
“And so D. [T.] doesn’t call the police. The police call her. So D. [T.] brings in . . . Jane Doe No. 3. And Jane Doe No. 3 is interviewed at the Jeanette Prandi Center as well. There is a tape-recorded interview of her. And Jane Doe No. 3 testified in court. And Jane Doe No. 3 did, I thought, a very good job and knew exactly what happened to her. And I was thinking about, ‘Wow, she did such a good job.’ And think about it: How many times does your friend’s dad lick your privates? Probably doesn’t happen too often. Probably sticks with you when it happens.” (Italics added.)
Appellant now contends the passage we have italicized was misconduct because the prosecutor improperly vouched for the witness.
Like appellant’s first claims of misconduct, this argument faces a procedural hurdle. Appellant neither objected to the statement nor did he ask for an admonition. Both are required to preserve the issue for purposes of appeal. (People v. Brown, supra, 31 Cal.4th at p. 553.) While appellant seeks to come within the exception that applies when an objection would have been futile and an admonition would not have cured any harm, (People v. Hill, supra, 17 Cal.4th at p. 820) again we are not convinced the exception applies. The court did sustain one of appellant’s objections, so an objection would not necessarily have been futile. Furthermore, a simple admonition that prosecutorial vouching is improper would have cured any possible harm.
However, we need not rely solely on the procedural barrier because the prosecutor did not commit misconduct. The prosecutor did not vouch for Doe No. 3’s credibility in any meaningful way. She simply commented on the fact that the very young child witness had been able to describe what had happened to her clearly and forthrightly. The comment was benign and did not constitute improper vouching.
The conclusion we reach is fully consistent with case law. In People v. Ward (2005) 36 Cal.4th 186, the prosecutor stated that a witness had provided “truthful, believable and credible evidence.” (Id. at p. 216.) Our high court ruled that argument was not misconduct and was “no more than a comment on the relative quality and strength of this witness . . . .” (Ibid.) We reach a similar conclusion here. By stating that Doe No. 3 had done a “good job” and that she knew “exactly what happened to her” the prosecutor was simply commenting on the strength of Doe No. 3’s testimony. We find no misconduct.
D. Cumulative Prejudice
Appellant contends that even if none of the errors he has identified is prejudicial by itself, cumulatively they require a reversal of his conviction. We have rejected most on appellant’s arguments on the merits. To the extent the court may have committed some errors, they were minor and even when considered cumulatively, they do not require that appellant’s conviction be reversed. (People v. Jones (2003) 29 Cal.4th 1229, 1268.)
E. Cruel and Unusual Punishment
Appellant was convicted on four counts, each of which carried a sentence of 25 years to life in prison. (See § 667.61, subds. (a), (c), & (d).) Because the trial court also found true the allegation that appellant had a prior strike within the meaning of the three strikes law, each count in fact carried a sentence of 50 years to life. (§ 1170.12., subd. (c)(1).) Furthermore, because appellant had a prior serious felony conviction and was convicted in the current proceeding of more than one felony offense that did not arise out of the same operative facts, the court was required to sentence appellant consecutively on all four counts. (§ 1170.12, subd. (a)(6).) Following this formula, the court sentenced appellant to 200 years to life in prison.
Appellant now contends the sentence he received constitutes cruel and unusual punishment under both the federal and state Constitutions.
A sentence violates the Eighth Amendment of the United States Constitution if it is “grossly out of proportion to the severity of the crime.” (Gregg v. Georgia (1976) 428 U.S. 153, 173.) However, the protection afforded by the Eighth Amendment is narrow. It applies only in the “‘exceedingly rare’” and “‘extreme’” case. (Ewing v. California (2003) 538 U.S. 11, 21 (plur. opn. of O’Connor, J.).) We are not convinced this is such a case. The 200-year sentence imposed is noteworthy and will undoubtedly result in appellant spending the rest of his life in prison. However, appellant’s crimes are also noteworthy. Appellant, a registered sex offender who previously had been convicted of molesting a prepubescent young girl in his home, lured four other prepubescent girls into his home under the pretext of play dates and sleepovers. Appellant then molested the young girls who were under his care. Appellant’s pernicious conduct against some of the most vulnerable members of our society fully supports the lengthy sentence that was imposed. We conclude this is not the “exceedingly rare” and “extreme” case that violates the federal Constitution.
Appellant argues his sentence does violate the federal Constitution because it is so lengthy that he will be unable to serve all of it. He urges this court to follow a concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, 600-602, where Justice Mosk stated that a sentence of 111 years was cruel and unusual punishment because it was impossible for a human being to serve. We note respectfully that Justice Mosk’s opinion was not joined by any other member of the Supreme Court. It has no precedential value. (People v. Byrd (2001) 89 Cal.App.4th 1373, 1383.) In fact, prior case law holds that a sentence is not unconstitutional simply because it exceeds a defendant’s life expectancy. (Ibid.)
Turning to California law, a sentence violates the California Constitution if it is “so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424, fn. omitted.) “The main technique of analysis under California law is to consider the nature both of the offense and of the offender.” (People v. Martinez (1999) 76 Cal.App.4th 489, 494.)
Here, as we have stated, the offenses at issue are extremely serious. Appellant sexually molested four different prepubescent girls. As for appellant himself, he is a registered sex offender who has now been convicted of committing sexual offenses against five different prepubescent girls. The probation report notes that appellant admitted molesting two of his nieces when they were 12 years old, thus raising appellant’s life-time total to at least seven victims. A lengthy sentence that will ensure appellant is barred from the community for the rest of his life and that will protect that community from future predatory conduct is fully justified. The 200-year sentence imposed does not shock the conscience or offend fundamental notions of human dignity. It does not constitute cruel and unusual punishment.
III. DISPOSITION
The judgment is affirmed.
We concur: Needham, J. Stevens, J.