Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIF110714. Bernard Schwartz, Judge.
Gerald J. Miller, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Lilia E. Garcia, Supervising Deputy Attorney General, Janelle Marie Boustany and Deborah LaTouche, Deputy Attorneys General, for Plaintiff and Respondent.
OPINION
RICHLI J.
Between 2002 and 2003, Donald Q. Whitaker molested two eight-year-old girls, R. and K. Defendant molested R. by grabbing her buttocks in his jacuzzi and looking at her “private parts” while tying her bathing suit bottoms. Defendant molested K. on several occasions by putting his hand inside and outside her vagina and by inserting his penis in her vagina. Defendant was convicted of two counts against R. and nine counts against K. of committing a lewd act on a child under the age of 14.
Defendant now contends:
1. The trial court erred by allowing the prosecution to admit evidence of conduct amounting to misdemeanor indecent exposure.
2. The trial court improperly admitted consciousness of guilt evidence that defendant’s computers were wiped clean and he was seen moving boxes out of his apartment after finding out he had been accused of the molestations.
3. The prosecutor committed misconduct during closing argument.
4. Defendant was improperly sentenced on counts 1 and 3.
We find no prejudicial error; however, we agree that defendant’s sentence must be modified to strike eight years of his determinate sentence.
I
PROCEDURAL BACKGROUND
A jury found defendant guilty of two counts of count of committing a lewd act against R. (Pen. Code, § 288, subd. (a)), and the enhancements that he befriended R. for the purpose of molesting her (§ 1203.066, subd. (a)(3)) were found true. The jury also found defendant guilty of nine counts of committing lewd acts against K. (§ 288, subd. (a)). The jury found true for all counts that defendant committed the offenses against more than one victim at the same time (§ 1203.066, subd. (a)(7)) and committed these crimes against multiple victims (§ 667.61, subd. (e)(5)). The trial court sentenced defendant to a total indeterminate term of 30 years to life, plus a determinate term of 26 years in state prison.
All further statutory references are to the Penal Code unless otherwise specified.
II
FACTUAL BACKGROUND
A. Incidents Involving R.
R. was 10 years old at the time of trial. In 2003, R. lived with her mother, Angela, and her two brothers at an apartment complex located on Eucalyptus Street in Moreno Valley.
Around March 2003, defendant, whom R. had not previously met, came over to her apartment and asked her if she wanted to play with K. K. oftentimes visited at defendant’s apartment. K. and R. played at defendant’s house three or four times a week.
At some point in 2003, every time R. wanted to swim in defendant’s jacuzzi, defendant would tell her that he had to fix her bathing suit bottoms by tying them with a rubberband. Defendant would explain to her that her bathing suit bottoms were loose, but R. thought that they fit her fine. Defendant would instruct R. to lay down on a mat in the kitchen, he would sit down in a chair, lean over her, and then lift up her bathing suit shorts. He would look at her “privates.” Defendant did this nine or 10 times.
R.’s older brother testified that he was at defendant’s house one time sitting in the jacuzzi and observed defendant take R. into the kitchen to look at her bathing suit. He could not see into the kitchen.
One time, while R.’s mother was away from the apartment complex, defendant convinced R. to change into K.’s bathing suit, which he had in his house. While R. was changing clothes, she saw defendant staring at her through a crack in the door.
Another day, R. and K. were in the jacuzzi with defendant. Defendant grabbed R.’s buttocks under the water. Defendant did not say anything; he just smiled at R. Defendant squeezed R.’s buttocks long enough that she did not think it was an accident.
Although R. told Angela that defendant had touched her bottom in the jacuzzi, Angela gave defendant the benefit of the doubt, thinking that it must have just been an accident. Two weeks later, R. told Angela that defendant would call her into the house sometimes to fix her bathing suit. Angela did not allow R. to play at defendant’s house anymore, but she still did not call the police.
B. Incidents Involving K.
K. was 10 years old at the time of trial and lived with her grandmother, Diane. K. met Heidi A. through Heidi’s son, James. Heidi started taking K. to defendant’s house (who was Heidi’s friend) with Heidi’s son. Most of the time, K. and R. would play together at defendant’s house.
K. could not identify defendant in court. K. identified defendant from a photograph.
At some point, defendant touched K. while they were in the jacuzzi by placing his hand on her “private parts.” He would rub his hand over her vagina. Sometimes his hand was over her bathing suit and other times it went under. Defendant did this while James and R. were also in the jacuzzi; the bubbles were on so nobody could see. K. believed that defendant did this five or six times.
One time, while K. was in defendant’s bedroom, he closed the door and told her to undress. K. took off her clothes. Defendant then touched her vagina and made a “shaking” motion with his hand. Defendant touched her inside her vagina.
On another occasion, while K. was alone with defendant, he had her undress again. Defendant took off his clothes and put his penis in her vagina. She did not recall that he moved at all. K. also accused defendant of putting a marker pen in her vagina. K. was changing at defendant’s house one time and saw defendant peek through the door to look at her. K. did not recall defendant kissing her on the lips, despite the fact that R. had testified she had seen him kiss K.
K. had been abused twice before, by other men. The first time, her sister’s boyfriend touched her vagina with his penis. K. believed that she was four years old at the time. The boyfriend was convicted for this abuse. The second incident of abuse involved a friend’s father. K. recalled that he had put a red marker pen in her vagina. She also remembered that he put his penis in her vagina. He was convicted of abusing K.
K. admitted that she might have been confused that defendant touched her with the pen; it might have been this previous abuser.
On May 27, 2003, K. was staying the night at R.’s house. Angela asked K. if defendant had “done not nice things to her.” K. nodded her head and said yes. Angela decided it was time to call the police. Angela informed Diane of the allegations, who in turn called Heidi and informed her.
C. Investigation of Incidents
On May 27, 2003, a Riverside County deputy sheriff responded to Angela’s house and spoke with R. R. told the deputy that defendant had grabbed her buttocks and had looked down her pants at her private parts, which she pointed to and said, “My pee pee.” R. told the deputy that she had seen defendant kiss K. on the lips. K. talked to the same deputy. K. told the deputy that defendant had put his hand on her private parts while they were in the jacuzzi. K. pointed at her vaginal area and said, “This is my private parts.” Defendant had touched her inside her bathing suit.
Both R. and K. were interviewed by the Riverside Child and Investigative Team (RCAT) on June 5, 2003. R. described the incidents (which she believed occurred 15 times) occurring in the kitchen by the sink when defendant would make her lay down so he could fix her bathing suit bottoms and look at her at her “front private.” She also stated that defendant watched her change and that defendant grabbed her “butt” under the water in the jacuzzi.
K. told the RCAT interviewer that defendant had taken off his clothes and shown her his “private part,” which she described as “big.” Defendant told K. to take off her clothes, and he then touched her “private part” with his “private part,” while he was on top of her. Defendant moved up and down. He did this more than once. Defendant also put his hand on the inside and outside her vagina. Defendant touched her vagina in the jacuzzi with R. present; he put his hand under her bathing suit. Defendant had kissed her on the lips. Defendant always told her to keep this a secret because he did not want to go to jail.
On June 16, 2003, defendant’s apartment was searched. Inside one of the cars parked in the garage, a photograph of defendant with both K. and R. was found. Stuffed animals were found in defendant’s bedroom. Girl’s swimming suit bottoms and six pairs of girl’s shorts were found in defendant’s closet. “Thousands” of Beanie Babies were found in one bedroom.
Heidi told a police officer that she had suspected something was going on between K. and defendant. She believed that defendant had become obsessed with K. She also indicated that she was concerned when defendant put up a fence around the jacuzzi in May 2003, and she did not take James and K. to defendant’s house anymore.
Defendant talked to Heidi after the allegations had been made to the police. Heidi claimed that “out of the blue” defendant asked her whether K. had said he did anything to her.
A sexual assault examination was performed on K., and the results were analyzed by a pediatrician who specialized in sexual abuse of children. When a child has been sexually abused by penetration, a small tear or damage to the hymen can be found. The tear can heal so that very little hymen is left.
K. had been examined after the two prior incidents of sexual abuse occurring in 2000 and 2002. There was no difference in the condition of her hymen between April 2000 and June 2002, and it appeared to be normal. In the photographs taken in June 2003, after the instant case, she had “very, very little hymen” remaining. The change was consistent with her being vaginally penetrated between 2002 and the examination in 2003.
In his defense, defendant presented several character witnesses (who were young females), who all testified that defendant had never touched them inappropriately or made sexual comments to them.
Defendant also testified on his own behalf. Defendant worked with the Federal Emergency Management Agency (FEMA), which required him to travel. In March 2003, he had knee surgery that restricted his movement. In April 2003, defendant put a fence around the jacuzzi for privacy.
Defendant was notified by his employer on June 12, 2003, that a warrant was out for his arrest for the sexual assaults of K. and R. Defendant called Heidi and asked her if someone had made allegations against him, and she told him it was K. Defendant was in Mobile, Alabama at the time, and was arrested at his hotel.
The only time that defendant recalled touching R. in the jacuzzi was when she sat on the knee on which he had had surgery; it hurt his knee, so he pushed her off of him. Defendant had put a rubberband on R.’s suit to hold it up, but he never looked down her pants. He denied that he looked in on R. while she was changing.
He also denied that he ever showed his penis to K., that he put a marking pen in her vagina, or that he penetrated her with his penis. He said that his problems with his knees would prevent him from getting on top of her.
Additional defense evidence was presented regarding a prior incident involving defendant being accused of masturbating in a pool, which will be discussed further in part III, post. The prosecution presented rebuttal evidence, which will also be addressed, post.
III
EVIDENCE CODE SECTION 352 ISSUES
Defendant has raised two separate claims that the trial court erred by admitting evidence that should have been excluded pursuant to Evidence Code section 352. First, he contends that the trial court erred by introducing evidence of his prior conduct amounting to misdemeanor indecent exposure. Defendant further contends that the trial court erred by admitting evidence that he was seen removing boxes from his apartment after the allegations were made to police and before he was arrested and by admitting evidence that the hard disks on his computers appeared to have been wiped clean.
A. Standard of Review
“‘Under . . . section 352, the trial court enjoys broad discretion in assessing whether the probative value of particular evidence is outweighed by concerns of undue prejudice, confusion or consumption of time.’” (People v. Brown (2000) 77 Cal.App.4th 1324, 1337.) The trial court’s exercise of such discretion will not be disturbed on appeal except on a showing that the court exercised its discretion in an arbitrary, capricious, or patently absurd manner that resulted in a manifest miscarriage of justice. (Ibid; see also People v. Lewis (2001) 26 Cal.4th 334, 374.) “‘The “prejudice” referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, “prejudicial” is not synonymous with “damaging.”’ [Citation.]” (People v. Karis (1988) 46 Cal.3d 612, 638.)
B. Admission of Conduct Amounting to Misdemeanor Indecent Exposure Conduct
1. Additional factual and procedural background
Prior to trial, the prosecution notified the trial court that it might seek to admit a prior incident involving defendant masturbating in a hotel jacuzzi, either under Evidence Code section 1101, subdivision (b), to rebut character evidence, or to impeach defendant if he testified. During the defense case, the trial court noted that there had been a discussion off the record that it was going to allow the prosecution to introduce evidence of that prior incident as impeachment evidence and in response to the character evidence. The trial court also noted that it might later be used as propensity evidence, depending upon the evidence presented by the prosecution.
Defendant testified that in 1995 he was homeless. He had gone to a hotel to wash himself in the pool. He was wearing shorts as he washed off in the pool. As he was dressing, he was approached by police officers, and he was told that he was being arrested for being naked in the pool. The officers never said anything about his masturbating. Defendant claimed that there was a scuffle, and he was choked by the police until he was unconscious. Defendant denied that he was nude or masturbating in the jacuzzi.
The prosecution presented evidence of this prior incident on rebuttal. At approximately 5:50 p.m., defendant was observed by the front desk clerk at the Friendship Inn in Anaheim, in the jacuzzi, naked, fondling with his penis. Defendant was detained by two Anaheim police officers, who had to tackle him to the ground after defendant rushed at them.
Defendant sought to admit evidence that he was convicted only of trespass. The trial court excluded such evidence because the fact of the conviction was inadmissible hearsay. It advised the parties that it was going to instruct the jury with CALJIC No. 2.23.1.
The jury was instructed, “Evidence has been introduced for the purpose of showing that a witness engaged in past criminal conduct amounting to a misdemeanor. This evidence may be considered by you only for the purpose of determining the believability of that witness. The fact that the witness engaged in past criminal conduct amounting to a misdemeanor, if it is established, does not necessarily destroy or impair a witness’ believability. It is one of the circumstances that you may consider in weighing the testimony of that witness.”
Just prior to argument, the prosecution advised the trial court that it only intended to argue the prior misdemeanor conduct as impeachment, and not as Evidence Code section 1108 evidence.
Defendant brought a motion for new trial on the ground that the trial court had improperly admitted the prior incident. The trial court denied the motion, reiterating that it had found at trial that the evidence was more probative than prejudicial under Evidence Code section 352 and that it was a crime of moral turpitude.
2. Analysis
Defendant does not contend that the prior incident was one that did not involve moral turpitude or that it was improper impeachment evidence; rather, he claims the evidence should have been excluded under Evidence Code section 352.
Prior misconduct amounting to a misdemeanor is subject to exclusion under Evidence Code section 352. (People v. Wheeler (1992) 4 Cal.4th 284, 297, fn. 7.) “[C]ourts may and should consider with particular care whether the admission of such [prior misdemeanor conduct] evidence might involve undue time, confusion, or prejudice which outweighs its probative value.” (Id. at pp. 296-297, fn. omitted.)
Here, the evidence that defendant had previously been engaged in conduct that amounted to indecent exposure was clearly relevant to both impeach defendant and to rebut his character evidence. Defendant had presented character evidence that he never acted inappropriately or in a sexual nature toward other girls who had been at his apartment. He also testified that he did not touch R. and K. It was not improper for the prosecution to present evidence in rebuttal that defendant had committed a prior offense that involved lewd conduct to rebut that character evidence. (See Evid. Code, § 1102, subds. (a) & (b).) Indecent exposure, a violation of Penal Code section 314, requires that a person “willfully and lewdly” expose his “private parts” in a public place. Although defendant eventually pled guilty to only trespass, the elements of Penal Code section 314 were certainly supported by the evidence presented. Further, this crime of moral turpitude could be used to impeach defendant’s credibility, to argue both that he lied about the incident itself in his testimony and that his testimony should not be believed.
Defendant argues for the first time on appeal that the prior incident was too remote. The prior incident occurred only seven years prior to the incidents in this case, a time not so remote as to make it completely irrelevant.
Finally, we believe that the probative value of the prior conduct outweighed any potential prejudice. The prior incident was not nearly as inflammatory as the testimony of the two girls in this case. Furthermore, the prior incident was only admitted on rebuttal to impeach defendant’s credibility, and the jury was instructed as such.
Defendant argues that the trial court compounded its error of admitting the prior by “permitting” the People to argue in closing that the prior was evidence of defendant’s guilt, an improper purpose. We do not see how it can be considered trial court error if the prosecutor argues that the evidence constitutes propensity evidence, when the trial court properly admitted it as impeachment evidence only. Moreover, as will be discussed in part IV, post, we believe that the prosecutor’s arguments to the jury did not result in prejudice to defendant
Finally, in light of the other strong evidence of defendant’s guilt in this case, we believe that the admission of this prior misdemeanor conduct was not prejudicial, as it is not reasonably probable that a better result would have resulted had the evidence been excluded. (People v. Sanders (1995) 11 Cal.4th 475, 510; People v. Watson (1956) 46 Cal.2d 818, 836.)
R. and K. independently reported incidents of abuse by defendant. R. consistently stated that defendant looked down her swimsuit bottoms at her private parts. R.’s older brother confirmed that he heard defendant offer to fix her swimsuit and take her into the kitchen. She also consistently reported that defendant grabbed her “buttocks,” and that it was not an accident.
Although K. had some problems with recollection, she consistently testified that defendant had inserted his penis in her vagina while they lay in defendant’s bed, and he touched her vagina while in the jacuzzi. R. testified that she had seen defendant kiss K., which corroborated K.’s testimony of improper touching. The results of the pediatrician’s examination was consistent with K.’s testimony. Further, Heidi testified that she felt that defendant was sexually obsessed with K.
Further, there was other corroborating evidence in that defendant kept items in his home that attracted children, such as stuffed animals and video game systems. He allowed children at his home at various times despite the fact he had no children of his own. He had a girl’s bathing suit and girl’s shorts in his house. The evidence of defendant’s guilt was substantial.
We conclude that even if the trial court erred by admitting the prior misdemeanor conduct, such error was harmless.
C. Admission of Removal of Boxes and Computer Evidence as Consciousness of Guilt Evidence
Defendant next contends that the trial court violated Evidence Code section 352 by admitting evidence that he moved boxes out of his apartment after the allegations surfaced and that his computers were wiped clean.
1. Additional factual and procedural background
Prior to trial, defendant asked that references to the fact that he was taking things out of his apartment after the allegations were made, but prior to his arrest, should be excluded. The trial court found the relevance of the removal of the boxes “minimal” but concluded that despite the fact that it was not known what was in the boxes, it was relevant to show consciousness of guilt.
Angela testified in the People’s case that defendant was out of town when the allegations were made. Angela saw him a few days later at his apartment. She observed defendant in his driveway packing cardboard boxes into the trunk of his car. Defendant testified in his defense that the boxes contained work files and drinking glasses that he was taking to his mother.
After defendant rested, the prosecution advised the trial court that it was seeking to call a computer expert to address defendant’s testimony that the computers in his home were operable. When the computers were examined after the search of defendant’s apartment, they had all been wiped clean. Defendant objected on relevance grounds.
The trial court found that the fact that defendant may have wiped his hard drives clean was relevant to consciousness of guilt. The trial court stated that it was not “critical” evidence but certainly proper rebuttal evidence. The prosecution further argued that it was a reasonable inference from this evidence that his computers contained pornography. The trial court did not think this was a proper argument and admonished the prosecution not to argue this to the jury. The trial court believed that it was proper for the prosecution to argue that defendant was acting suspiciously when he returned, and this was evidence of consciousness of guilt.
On rebuttal, a computer forensic examiner testified that he examined three hard drives from computers taken from defendant’s home. He had trouble getting one of the drives to work but determined that there was nothing on the drive. The second drive had been formatted, but nothing was on it except for real estate matters for another person. A third drive appeared to have been wiped clean, but it was possible it had never been used. The expert could not tell when the computer disks were erased.
Defendant’s requests for a mistrial and to strike the testimony, and his motion for new trial on this ground, were denied, because although the trial court did believe that the computer evidence had almost “zero” value, it was consistent with someone trying to escape or get away. It was circumstantial evidence of defendant’s guilt.
2. Analysis
We agree with the trial court that this evidence had minimal relevance to case, but we are reluctant to say that it was more prejudicial than probative. The evidence had some relevance to show consciousness of guilt. It was certainly suspicious that defendant was seen moving boxes out of his home right after the allegations of abuse were made. Also, defendant indicated that he used the computers in his home for work and personal business. Yet, when they were seized, the computers were inoperable and appeared to have been wiped clean. Regardless of whether it was known what had been on the computers, it was a reasonable inference that defendant was trying to hide something.
We don’t believe that the jury took the leap, as argued by defendant, that the evidence removed was pornography. Defendant provided an explanation that the boxes contained work and drinking glasses for his mother. Defendant further argued that there was no evidence at the time that he took the boxes out of the house that he in fact knew about the allegations. The prosecution did not advise the jury as to what was in the boxes or on the computer, only that their removal and cleansing showed consciousness of guilt.
Regardless, we conclude that whether or not the trial court erred by admitting the evidence, when all of the other testimony is considered, that the admission of this evidence was harmless, as it is not reasonably probable a more favorable result would have been reached had the evidence been excluded. (People v. Sanders, supra, 11 Cal.4th at p. 510; People v. Watson, supra, 46 Cal.2d at p. 836.)
As set forth, ante, the evidence against defendant was strong. This consciousness-of-guilt evidence certainly was not nearly as compelling as the testimony of these two girls who independently accused defendant of abusing them. Accordingly, we find that any conceivable error was harmless.
IV
NO PROSECUTORIAL MISCONDUCT
Defendant contends that the prosecutor committed several instances of misconduct in closing argument.
A. Standard of Review
A prosecutor’s conduct violates California law if it involves the use of deceptive or reprehensible methods to attempt to persuade the jury. (People v. Benavides (2005) 35 Cal.4th 69, 108.) It violates the United States Constitution “when it infects the trial with such unfairness as to make the conviction a denial of due process.” (People v. Morales (2001) 25 Cal.4th 34, 44.) To establish prosecutorial misconduct, a defendant need not show that the prosecutor acted in bad faith, but he must show that his right to a fair trial was prejudiced. (People v. Nguyen (1995) 40 Cal.App.4th 28, 35.) “In either case, only misconduct that prejudices a defendant requires reversal [citation], and a timely admonition from the court generally cures any harm. [Citation.]” (People v. Pigage (2003) 112 Cal.App.4th 1359, 1375.)
B. Analysis
Defendant raises three areas where the prosecutor committed misconduct: the prosecutor (1) misstated the facts regarding the expert testimony; (2) improperly appealed to the passion and prejudice of the jury; and (3) argued that the prior masturbation incident constituted propensity evidence.
1. Misstated testimony
Defendant first claims that the prosecutor improperly misstated the testimony of the expert in regard to the condition of K.’s hymen after the abuse.
The prosecutor argued to the jury that after being with the defendant, “[K.’s] hymen is thin and virtually gone.” He argued such condition was consistent with blunt force vaginal penetration damage, the sort of penetration described by K. The prosecutor concluded, “But after being with this man, now she’s got no hymen.” Defendant objected that such argument misstated the evidence. The trial court overruled the objection but advised the jurors, “Again, ladies and gentlemen, the evidence speaks for itself. If you need readback, you can get that of the doctor’s testimony. This is argument.”
Viewing the prosecutor’s statements in context, we cannot say that his argument constituted misconduct. Clearly, the prosecutor advised the jurors that the evidence showed that K.’s hymen was “thin and virtually gone,” which was consistent with the testimony. The fact that the prosecutor later stated that her hymen was gone was not an attempt to persuade the jury otherwise.
Further, we believe that the trial court’s admonition to the jury cured any potential error. It should be noted that at the very beginning of the argument, the prosecutor tried to present a hypothetical, and defendant objected. The trial court gave a full admonition to the jurors: “Ladies and gentlemen, keep in mind that statements are not evidence. If the lawyers misstate evidence or misuse analogies, all of that is not to be considered by you with respect to anything, with respect to evidence. It is merely argument. Ultimately, it’s what you find to be the evidence what you heard the witnesses testify to.”
This full admonition, combined with the fact that the trial court advised the jurors to request readback of testimony should there be a discrepancy, certainly cured any potential harm caused by the prosecutor’s statement. Moreover, whether K.’s hymen was thin or gone was of no moment, as they were both evidence of sexual penetration.
2. Appeals to passion and prejudice
Defendant next argues the prosecutor committed misconduct by attempting to persuade the jury to convict defendant based on passion and emotion.
The prosecutor argued as to the consistency of R.’s statements. The prosecutor argued, “And, finally, the courtroom testimony. I want to point this out because you’re gonna see it again recurring with [K.]. Imagine yourself eight years old, nine years old. Imagine the man across the way bringing you into his house and doing things like this to you.” Defendant objected. The trial court admonished the jury, “Again, ladies and gentlemen, it is argument. It’s not evidence.” The prosecution further argued “Imagine you having the courage, as scared as you are, to tell your mom . . . .” There was no further objection.
“[I]t is misconduct to appeal to the jury to view the crime through the eyes of the victim.” (People v. Mendoza (2007) 42 Cal.4th 686, 704; see also People v. Stansbury (1993) 4 Cal.4th 1017, 1057.) Here, the prosecutor did request that the jury imagine what it was like to be the two victims. However, the trial court immediately admonished the jurors that this was not evidence, as it had previously admonished them. We believe that was enough to cure any potential harm.
3. Argument on prior indecent exposure misdemeanor conviction
Defendant also argues that the prosecutor committed misconduct because, despite the fact that the trial court admitted the prior misdemeanor conduct for impeachment purposes, the prosecutor argued it as propensity evidence.
The prosecutor argued to the jury that defendant lied about the fence he erected at the jacuzzi. Defendant stated that he had wanted to put up a three-and-a-half foot fence for privacy, but the management had wanted a higher fence. The prosecutor argued that the shorter fence would never have covered the jacuzzi, because the jacuzzi itself was at least three feet high. The prosecutor stated, “That wall is gonna cover him in the jacuzzi about as much as it covered him in 1995 in the jacuzzi.” There was no objection.
The prosecutor later argued that defendant had “an answer for everything,” and that he was trying to lead the jury away from the truth. The prosecutor stated, “What’s the most obvious, how we know this man is a liar? He denies the masturbation incident, right?” The prosecutor then argued that the evidence of the prior masturbation incident was strong given the evidence presented. The prosecutor stated, “And I hope it’s not lost upon any of you that he’s masturbating in a jacuzzi and he touches these girls in a jacuzzi. Frankly, I don’t even know what to make of that. Again, too many coincidences? In that case, way too many.” No objection was made by defendant.
We find that defendant waived any claim of prosecutorial misconduct based on these arguments by failing to object. (People v. Samayoa (1997) 15 Cal.4th 795, 841.) We believe an admonition to the jury would have cured any potential error. (People v. Stansbury, supra, 4 Cal.4th at p. 1056.) If the trial court had been alerted that the prosecution was improperly arguing that the prior incident was propensity evidence, it easily could have reminded the jurors that the prior misconduct was only relevant in assessing defendant’s credibility.
In his reply brief, defendant admits that he never objected but tries to explain this omission, arguing, “[A]ny such objection would have been futile, in light of both the trial court’s prior rulings admitting such evidence and its refusal to admonish the prosecutor as to other acts of misconduct, and would have instead highlighted the evidence to the jury.” We disagree that an objection would have been futile given the fact that the trial court admitted the evidence as impeachment, not as propensity evidence. Moreover, the trial court did admonish the jury to disregard the argument if it conflicted with the evidence. As such, we find the claim has been waived.
Defendant argues for the first time in his reply brief that if we find he waived any objection to the prosecutor’s argument on the prior masturbation incident, he received ineffective assistance of counsel. We do not address an argument raised for the first time in the reply brief. (People v. Failla (2006) 140 Cal.App.4th 1514, 1519-1520, fn. 3.) Moreover, even if we were to address the argument, as stated post, any argument was not prejudicial, and therefore, he is unable to show ineffective assistance of counsel. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694 [104 S.Ct. 2052, 80 L.Ed.2d 674] [must show prejudice to make out a claim of ineffective assistance of counsel].)
However, even if we were to consider that all of the instant comments constituted misconduct, “we may not reverse the judgment if it is not reasonably probable that a result more favorable to the defendant would have been reached in its absence. [Citation.]” (People v. Barnett (1998) 17 Cal.4th 1044, 1133.) As noted, the trial court promptly admonished the jurors on several occasions. Furthermore, despite the fact that the trial court did not admonish the jurors regarding the arguments by the prosecutor pertaining to the prior incident, the jury was instructed that they were to only use the prior incident to assess credibility. We must presume that the jurors followed the instructions. (People v. Young (2005) 34 Cal.4th 1149, 1215.)
Moreover, as indicated, ante, the evidence of defendant’s guilt was overwhelming. These comments by the prosecutor in face of the egregious nature of the acts committed against K. and R. did not render defendant’s trial unfair.
Ultimately, none of the purported misconduct by the prosecutor was such that there was a reasonable likelihood that the defendant would have achieved a more favorable outcome. Therefore, any error was harmless.
V
SENTENCING
Defendant claims in his supplemental opening brief that he was improperly sentenced on counts 1 and 3 under both the one strike law and under the determinate sentencing law (DSL). Respondent concedes the issue.
The trial court sentenced defendant to a determinate term of 26 years. Defendant was sentenced to six years on count 1 and two-year consecutive terms on counts 2 through 11. Thereafter, the trial court sentenced defendant “under the life allegation under 667.61 of 15 years to life for each victim” for counts 1 and 3. The 30-years-to-life indeterminate sentence was to be served consecutive to the determinate term.
Since the jury found the multiple victims allegations under section 667.61, subdivision (e)(5) true for counts 1 and 3, defendant was subject to the mandatory sentence of 15 years to life under section 667.61, subdivision (b) for both of these counts, for both victims. (People v. Wutzke (2002) 28 Cal.4th 923, 930-931.) However, he could not be sentenced additionally to the determinate terms of six years on count 1 and two years on count 3 under the DSL. (See People v. Fuller (2006) 135 Cal.App.4th 1336, 1343.) Accordingly, we will order that the determinate sentences for these counts be stricken.
VII
DISPOSITION
We order that the sentence be modified to strike the determinate sentences of six years on count 1 and two years on count 3. The trial court is directed to amend the abstract of judgment to reflect the modification and to send a copy of the amended abstract to the Department of Corrections and Rehabilitation. The judgment is otherwise affirmed.
We concur: McKINSTER Acting P.J., KING J.