Filed 7/19/17 P. v. Ortiz CA1/5
NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE


THE PEOPLE,
Plaintiff and Respondent,
v.
JOSEPH A. ORTIZ,
Defendant and Appellant.

A146667

(Napa County
Super. Ct. No. CR171528)


Appellant Joseph A. Ortiz was tried before a jury and convicted of multiple felony and misdemeanor sexual offenses against minors whom he had befriended. He argues that the judgment must be reversed in its entirety because (1) trial court abused its discretion in admitting a “massive” amount of evidence about his foot fetish for the purpose of proving his sexual intent; (2) the trial court abused its discretion in admitting evidence of other uncharged bad acts; and (3) the prosecutor committed misconduct during the questioning of witnesses and in closing argument. In response to our request for supplemental briefing, appellant acknowledges the case must be remanded for resentencing because the trial court imposed determinate sentences for counts on which allegations under the One Strike law (Pen. Code, § 667.61) had been found true, and for which indeterminate sentences were required. Appellant also argues the conviction as to one count must be reversed due to insufficient evidence regarding the victim’s age. We will reverse that conviction and remand the case for resentencing.
I. BACKGROUND
A. Prosecution Evidence
1. Victim Nick Doe, Counts 1–25 (1990’s–early 2000’s)
Appellant was born in December 1977 and was 37 years old at the time of his trial in 2015. In the middle-to-late 1990’s, he befriended Nick Doe, who was born in July 1986, while working as an assistant teacher in Nick’s sixth grade class. Nick viewed appellant as a role model, and their activities outside of school included jumping on the trampoline at appellant’s house and going to baseball games together.
When Nick was 11 or 12 years old, appellant began a pattern in which “[w]e were jumping on his trampoline and after 15, 20 minutes we’d go inside, get me a drink, candy and then he’d proceed to dry hump on me.” On these occasions, they would wrestle on a bed until appellant told Nick he wanted to do a “choke” scene, at which point he would lay Nick down on his back, put a pillow over his throat, put Nick’s legs up and then rub his own genitals against Nick’s through their clothing. The same thing would happen about two or three times a week, but Nick was unsure about what was happening and was too scared to tell anyone. Appellant had an erection every time.
On one occasion when Nick was hit by a baseball at school, appellant dry humped him in a classroom rather than taking him to the school nurse. On another, appellant had Nick dress in nylons, leggings and spandex shorts so they could make a video to try out for professional wrestling. Appellant had Nick wear similar outfits with nylons or leggings “[n]inety-nine percent of the time” they had sexual contact. Appellant molested Nick more than 30 times at appellant’s mother’s house; “too many [times] to count” after appellant moved to another apartment; and “hundreds of times total.” Most of the time, appellant would tell Nick to bend his toes back and would smell his feet. Appellant gave Nick gifts of video games, baseball hats, and pornography.
Once when Nick was 15 or 16, appellant was doing what he did “normally,” i.e., dry humping Nick, when he told Nick he wanted to try something new. Appellant pulled down Nick’s shorts and touched Nick’s anus with his penis, but when Nick jumped up in shock appellant said they should just go back to doing the regular thing. Sometimes appellant would get on top of Nick as he lay on his stomach playing video games and dry hump him on his “butt” while smelling Nick’s feet. Nick did not welcome the sexual contact and told appellant so several times.
The sexual contact continued until Nick was about 18 years old, during which time Nick never told anyone what was happening. Nick made a report with a Napa Police Department officer in 2011, when he was about 25 years old, because he wanted to “get things off his shoulders” and stop others from getting hurt. Due to his embarrassment, he did not give the officer the full details about the number of assaults or the age range during which they were committed. The investigation was suspended because Nick did not appear for a scheduled follow-up meeting with a detective.
2. Laura Doe, Sarah Doe, Nichole Doe and Patrick Doe (2002–2006)
Melissa R. began dating appellant in March 2002, when he was approximately 24 years old and she was 18, and they moved in together a few months later in July 2002. The couple first lived in an apartment in Napa, but moved to a house in Petaluma in the fall of 2002. In the fall of 2003, they moved back to Napa for about six months, before moving to Rohnert Park in April 2004. In April 2005, the couple moved to Santa Rosa, where they lived in the granny unit of a home owned by Melissa’s aunt, Kathleen C.
When appellant and Melissa had sex, he would insist she wear nylons and would push her legs up so far toward her head that she could hardly breath. He would also sniff her feet during sex; it was “pretty much like I wasn’t there, it was just the legs and the feet.”
Appellant became close to Melissa’s family, including her younger sister Laura and her younger cousins Sarah and Patrick, who were the children of Kathleen. He even went to work in the family business. Appellant would often babysit the children in the family and their friends, and would entertain them by making “zombie movies.” Everyone in the family loved and cared about appellant, and he was present for a number of get-togethers, trips and outings.
Laura, who was born on April 22, 1989, liked and trusted appellant when he started dating her sister Melissa. Early one morning in 2002, when she was 13 years old, Laura was present in the first apartment Melissa shared with appellant in Napa. While Melissa was taking a shower, appellant told Laura he wanted to show her a “yoga move.” Appellant put Laura on the bed, pushed her legs back, and dry humped her for a minute or two with his erect penis before ejaculating. Appellant committed similar acts about 30 times over the next few years, until Laura turned 17. More than five similar incidents in which appellant rubbed his penis against Laura’s vaginal area occurred at the Napa apartment when Laura was 13 years old. Appellant would have Laura wear nylons with a pair of shorts over them, and he smelled her feet almost every time.
After Melissa and appellant moved to Petaluma, appellant committed similar acts with Laura on the family room couch when they were alone together. Laura believed she was still 13 when appellant and Melissa moved to Petaluma. The conduct continued after appellant and Melissa moved back to Napa, when Laura was 14 or 15, and when they subsequently moved to Rohnert Park. A couple of incidents happened in appellant’s truck, when Laura was about 15, and more than two others occurred in a bedroom after Melissa and appellant moved to Santa Rosa, in approximately 2005.
Laura told her mother about the abuse when she was 14, but her mother did not believe her. She told her again when she was 16, and Laura’s mother said she would talk to appellant before he married Melissa. Laura did not tell Melissa because she thought Melissa would blame her for what had happened and would hate her.
In 2004, appellant was making a “zombie movie” at the Rohnert Park house with a group of children that included Melissa’s cousin Sarah Doe, whose birthdate was February 9, 1993 and who was then 11 years old. Appellant pulled Sarah away from the group and said he wanted to film a scene with just the two of them. He took her into a bedroom, told her to put on pantyhose and boots, had her lie down on the bed, and pretended to choke her. While he was doing so, he rubbed his penis on her vagina through their clothing for several minutes. Sarah felt confused and upset and didn’t tell anyone. During a second incident at the Rohnert Park house, appellant initiated a wrestling game with Sarah while he was babysitting her and her little sister. He rubbed her in a similar way but also pushed her legs up near her head. In a third incident that occurred after appellant and Melissa had moved to Santa Rosa and were living in the granny unit of the house Sarah shared with her family, appellant came into the house, pushed Sarah’s legs over her head as she sat on the couch, and rubbed against her while wearing his boxer shorts. Additionally, when Sarah was 12 or 13, appellant had taken pictures of her feet.
Another participant in appellant’s zombie movies was Nichole Doe, a friend of the family’s and Sarah’s best friend, who had been born in May 1995. Once while filming at the Rohnert Park house, appellant asked her to come into the bedroom to do a choking scene. He put her on her back with her legs over her head and then got on top of her, telling her that was how it was done in the movies. Appellant dry humped Nichole with his penis rubbing against her vagina for about 10 minutes, and told her to give him another minute when she asked him to stop.
Sarah’s brother Patrick Doe was born in April 1989. In 2004, when he was 14 years old, he was staying overnight at appellant and Melissa’s house, along with Sarah, Nichole and some other friends. Appellant suggested they make a zombie movie and had Patrick dress in a super hero type outfit with white tights and a cape. After filming several group scenes, appellant had Patrick come into a bedroom to do a fight scene with just the two of them in private. He had Patrick lay on the bed, put his legs in the air, and started to grind his erect penis into Patrick’s “ass area” for five to ten minutes. After appellant and Melissa had moved to the granny unit in Santa Rosa, he asked Patrick to do the fight scene again, had him put on some tights, and repeated the behavior. Patrick refused other overtures by appellant and tried to avoid him after that. He said nothing at first because he was afraid no one would take him seriously.
In early 2006, Sarah learned that appellant had molested Nichole and became angry. She told her mother Kathleen that appellant had put her legs in the air and made her wear pantyhose. Sarah seemed upset, but Kathleen thought she might be misconstruing appellant’s penchant for making home movies. Two to three months later, however, Patrick told Kathleen that appellant had been doing similar things to him. Kathleen called Melissa, who at first did not believe her but then spoke to Laura, who sounded relieved and told her appellant had been molesting her as well.
Kathleen and Melissa confronted appellant in person in the granny unit where he was living with Melissa. They said the kids had told them everything. Appellant at first denied the molestations, but then started crying and begging them not to say anything. He promised to get help and moved out that same evening. Kathleen did not call the police because the children were upset and did not want to talk about what had happened. She was also afraid of appellant because she had seen him angry and had two small children at home. Melissa did not call the police because although she was angry at appellant, she still loved him. They were together as “a couple” two more times after the revelation because she was “stupid and weak.” Appellant continued to work at the family’s business.
3. Victim Kellie Doe (2013)
Kellie Doe was 17 years old in 2013 and had known appellant since she was in eighth grade. He was her softball coach and she also considered him a close, trusted friend. She and her friend B.G. would sometimes dress up in strange outfits (leggings, tee shirts, capes and masks) and walk around town while appellant filmed people’s reactions to them.
In approximately July 2013, Kellie went over to appellant’s house before a game and he gave her a massage while she lay on her stomach. Kellie thought everything was fine, but then appellant flipped her over, put her legs up by her head, and rubbed his erect penis against her vagina. He also started rubbing and smelling her feet. A similar incident occurred about two weeks later, during which Kellie took a photograph of appellant with her phone and sent it to her friend Elizabeth C. on the Snapchat social media application. In response, Elizabeth C. called to see what was happening and Kellie used the phone call as an excuse to leave. Appellant told Kellie to give him a second and began thrusting harder against her. On another occasion, Kellie went to appellant’s house to watch a movie while she was having a fight with her parents and she fell asleep. She awoke to find her legs in the air and appellant on top of her, thrusting his penis against her. When Kellie asked what he was doing, appellant said he thought she wanted him to rub her leg. He also smelled and rubbed her feet while he was thrusting.
Kellie did not say anything about the incidents initially, but when her softball team was going to throw a party, she told her friend B.G. she did not want appellant to be there and explained what had happened. The girls talked to B.G.’s father, and Kellie was crying so hard that B.G. had to explain why they did not want appellant present. Kellie also told another friend and her basketball coach who, as a mandated reporter, contacted the Napa Police Department on August 22, 2013.
4. Investigation
After Kellie’s basketball coach reported appellant to the police, an investigator with the district attorney’s office who had previously worked as a detective with the Napa Police Department recalled receiving Nick Doe’s report of abuse in 2011. Eventually the other victims in this case were contacted and interviewed.
During a recorded telephone call from the jail after his arrest, appellant admitted to his mother he had done something “bad.” Police executed a search warrant on the appellant’s home and storage space, and seized CDs depicting wrestling, horror movies, and three video cameras, as well as videos entitled “Wrestling Demolishers” and “Zombie Movie[s].” The wrestling videos depicted young boys dressed in spandex and tights “pinning” other boys. Thousands of pictures on an iPhone found in the storage unit depicted foot fetish material, although only one appeared to be of a child’s foot.
A search warrant was also executed at appellant’s house, where police found DVDs with many depictions of women’s feet and women in stockings, interspersed with pictures of breasts and vaginas. One video was labeled “foot fetish.” In the middle of some videos of women in stockings was a video of Kellie’s friend B.G. getting dressed (pulling a shirt over a sports bra). Appellant’s cell phone had 75–100 pictures of breasts and vaginas and his computer had similar images along with foot fetish images.
5. Child Sexual Abuse Accommodation Syndrome
Officer Shulman of the Napa Police Department qualified as an expert in child molestation investigations. He explained the dynamics of Child Sexual Abuse Accommodation Syndrome, which manifests when victims of childhood sexual abuse accept their situation and become emotionally detached. This is particularly so when there is a relationship between the victim and the abuser, which adds a motivation for secrecy because the victim wants to maintain the emotional tie and does not want to cause trouble. Family members will also delay reporting due to guilt, embarrassment, or fear of the court process. Victims typically do not discuss all the details of the abuse at first due to guilt and embarrassment, which may seem to conflict with more complete statements made later in the process.
B. Defense Evidence
Appellant testified and denied touching any of the victims for a sexual purpose.
Appellant had been friends with Nick for a number of years, and Nick and other school kids would sometimes visit his home; however, appellant was working at Target during the afternoons Nick claimed to have visited him about three times a week. Appellant had gone to professional wrestling school and was licensed as a referee, and he sometimes instructed Nick and other children on wrestling techniques on his trampoline. One wrestling move is a “pin” where you lift both of your opponent’s legs. Nick and appellant remained good friends for 20 years and Nick sometimes stayed over at his house while he was living with Melissa R. He thought Nick may have made up the accusations in this case because he was upset that appellant, as head coach of a team, had placed Nick as third coach rather than as second coach.
As to the victims who were related to Melissa R., appellant acknowledged that while babysitting he would make movies in which the kids would dress in silly costumes, but he denied having any inappropriate physical contact. He did engage in horseplay and wrestling, but he did not rub against them, did not have them wear nylons and did not smell anyone’s feet. Appellant acknowledged being confronted by Melissa and her family in 2004, and further acknowledged he told them he would get help. However, he had meant he would get counseling to help to get over his relationship with Melissa, which had been “absolutely pure hell” for two years. Appellant recalled an incident in which Melissa had shown a 14-year-old cousin her breasts, and he thought she and her family might be falsely accusing him to protect her against this fact being revealed.
Appellant met Kellie while coaching her softball team when she was 13 years old and he was 33 years old. He became her close friend and mentor, and Kellie confided in him about her relationships and family problems. Sometimes for fun, Kelly would dress up and walk around town and appellant would film people’s reactions to her. After she was in a car accident, Kellie asked appellant to massage her back. He had lifted her legs in the air to stretch them because she told him the doctor had suggested she do that, but he did not dry hump her and did not come in contact with her vaginal area. He thought Kellie might be making false accusations because she was worried he might tell her parents about her marijuana use. He also thought she might be jealous because he was spending time with a female friend who was living with him, though he acknowledged Kellie was a lesbian. Appellant also acknowledged that Kellie did not know the other victims in this case.
Asked about his foot fetish, appellant admitted he had started a popular foot fetish site on the Instagram social media application and loved the aesthetics of feet. But he maintained that his interest in feet was not sexual and he was never sexually aroused by feet.
C. Verdict and Sentence
In case no. CR171528, appellant was convicted of 24 felony counts of lewd conduct with a child under 14 years of age and one count of continuous sexual abuse as to Nick Doe (counts 1–25, §§ 288, subd. (a), 288.5); six counts of lewd conduct with a child under 14, seven counts of lewd acts on a child age 14 to 15 by a person at least 10 years older than the child, and one count of continuous sexual abuse as to Laura Doe (counts 26–39; §§ 288, subds. (a) & (c)(1), 288.5, subd. (a)); three counts of lewd conduct with a child under 14, and one count of continuous sexual abuse as to Sarah Doe (counts 40–43; §§ 288, subd. (a), 288.5, subd. (a)); one count of lewd conduct with a child under 14 as to Nichole Doe (count 44; § 288, subd. (a)); and one count of lewd acts on a child age 14 or 15 by a person at least 10 years older than the child as to Patrick Doe (count 45; § 288, subd. (c)(1)). Multiple-victim special allegations under the One Strike law (§ 667.61, subds. (e)(4) & (j)(2)) were found true as to each conviction of section 288, subdivision (a), and section 288.5, subdivision (a). In case number CR167864, which had been consolidated for trial, appellant was convicted of three misdemeanor counts of annoying or molesting a child and three misdemeanor counts of sexual battery against Kellie Doe. (§§ 647.6, subd. (a), 243, subd. (e)(1).)
At sentencing, the trial court vacated the convictions of continuous sexual abuse under section 288.5, subdivision (a) (counts 25, 31 and 43) because appellant could not be convicted of those counts in addition to the violations of section 288, subdivision (a), against the same victims. (See People v. Torres (2002) 102 Cal.App.4th 1053, 1055–1056 (Torres).) The court sentenced appellant to prison for 30 years, eight months, plus 25 years to life, on the remaining counts.
The determinate portion of the term was calculated as follows: (1) as to victim Nick Doe, the eight-year upper term for the section 288, subdivision (a), conviction in count 2 and consecutive two-year terms (one-third the middle term) for the section 288, subdivision (a), convictions in counts 3, 4, 5, and 6, with sentences on the remaining counts (counts 7 to 24) to run concurrently; (2) as to victim Laura Doe, consecutive two-year terms for the section 288, subdivision (a), convictions in counts 26–29, with the sentences on the remaining counts (counts 30-39) to run concurrently; (3) as to victim Sarah Doe, consecutive two-year terms for the section 288, subdivision (a), convictions in counts 40 and 41, with the sentence on count 42 to run concurrently; (4) as to victim Nichole Doe, a two-year consecutive term for the section 288, subdivision (a), conviction in count 44; and (5) as to victim Patrick Doe, an eight-month consecutive term (one-third the middle term) for the section 288, subdivision (c)(1), conviction in count 45.
With regard to the One Strike allegations under section 667.61, subdivisions (e)(4) and (j)(2), the court imposed a sentence of 25 years to life for the section 288, subdivision (a), conviction in count one, in which Nick Doe was named as a victim. The court ordered that as to the other three victims to which the One Strike law applied (Laura Doe, Sarah Doe and Nichole Doe) sentences of 25 years to life would run concurrently, though the court did not specify the counts on which the 25-year-to-life terms would be imposed. The minute order from the sentencing hearing and the abstract of judgment reflected concurrent terms of 25 years to life on counts 26, 40 and 44.
Appellant was sentenced to one year in jail for the misdemeanor charges involving Kellie Doe, with 364 days of credit for time served.
II. DISCUSSION
A. Evidence Concerning Appellant’s Foot Fetish
Appellant contends the trial court abused its discretion in allowing the prosecution, over defense objection, to present evidence that videos and photographs showing he had a foot fetish were discovered during the investigation of this case. He contends his alleged fetish was “incidental” to the charged offenses and was more prejudicial than probative under Evidence Code section 352. We disagree.
“Evidence that a person committed a crime, civil wrong, or other act may be admitted [] not to prove a person’s predisposition to commit such an act, but rather to prove some other material fact, such as that person’s intent or motive.” (People v. McCurdy (2014) 59 Cal.4th 1063, 1095 (McCurdy), citing Evid. Code, § 1101, subd. (b).) Even when relevant, evidence of other acts may be excluded “if its probative value is substantially outweighed by the probability that its admission will be unduly prejudicial.” (Ibid., citing Evid. Code, § 352.) “ ‘Prejudice’, as used in Evidence Code section 352, is not synonymous with ‘damaging’. [Citation.] Rather, it refers to evidence that uniquely tends to evoke an emotional bias against the defendant as an individual, and has little to do with the legal issues raised in the trial.” (Ibid.)
We review a ruling under Evidence Code section 352 for abuse of discretion. (People v. Merriman (2014) 60 Cal.4th 1, 74.) An abuse of discretion occurs when the trial court “exceeds the bounds of reason, all of the circumstances being considered.” (People v. Giminez (1975) 14 Cal.3d 68, 72.) A trial court’s exercise of discretion under section 352 will be upheld under most circumstances. (People v. Kwolek (1995) 40 Cal.App.4th 1521, 1532.)
Appellant was charged with several counts of lewd conduct with a child in violation of section 288, subdivisions (a) and (c)(1). A conviction under either provision requires proof that the defendant acted with the “intent of arousing, appealing to, or gratifying the lust, passions, or sexual desires of that person or the child.” (§ 288, subds. (a) & (c)(1).) Some of the victims in this case testified that appellant kissed, touched or smelled their feet when committing the molestations. The foot fetish evidence was relevant to show that when appellant positioned himself between his victims elevated legs, he was not merely wrestling, engaging in horseplay or giving a massage as he claimed, but was acting for the purpose of sexual gratification. (See People v. Memro (1995) 11 Cal.4th 786, 864.) The evidence was not unduly prejudicial, because appellant’s sexual interest in feet, while perhaps unusual, was not illegal or immoral. Certainly it was not inflammatory compared to the evidence showing that over two decades, appellant had gained the trust of a number of young victims, only to betray that trust by “dry humping” them repeatedly. We have reviewed the foot fetish photographs and videos that were admitted into evidence and did not find them to be particularly shocking or likely to inflame the passions of the jury.
Appellant argues the foot fetish evidence was not probative of the lewd conduct charges because the photographs in appellant’s possession appeared to be of adult feet and did not tend to demonstrate a sexual interest in children. (See People v. King (2010) 183 Cal.App.4th 1281, 1301–1303 [intimidating and sexually inappropriate comments to one girl were not probative of intent because they were not sufficiently similar to the charged crime involving fondling and digital penetration of a different victim]; People v. Earle (2009) 172 Cal.App.4th 372, 389–392 [prior act of indecent exposure not relevant to show intent required for assault with intent to commit rape].) But the fetish evidence did tend to show a sexual interest in feet, a circumstance that was relevant to prove appellant harbored a sexual intent while committing some of the acts described by the victims.
Appellant argues his intent was not truly at issue because the incidents in which he touched or kissed his victims’ feet also involved acts of dry humping, which were indisputably sexual. But even if we were to assume the trial court abused its discretion in admitting the foot fetish evidence, it is not reasonably probable appellant would have achieved a more favorable outcome absent the error. (People v. McCurdy, supra 59 Cal.4th at pp. 1101–1103; People v. Watson (1956) 46 Cal.2d 818, 836.) Several victims testified to the same type of general conduct by appellant: getting them alone, putting their feet over their heads, and rubbing his genital area against theirs. Collusion between all six victims was highly unlikely if not impossible; though Laura, Sarah and Patrick were related and Nichole was a close friend of theirs, Nick did not know Sarah and Patrick and none of the other victims knew Kellie at all. Laura, Sarah and Patrick were very attached to appellant and considered him part of their family; both Nick and Kellie considered appellant a close friend. The evidence revealed no plausible explanation for why the six victims would fabricate similar stories or would want to harm appellant by tarring him as a child molester and subjecting him to criminal prosecution.
We also reject appellant’s claim that the evidence regarding his foot fetish was “so pervasive and so infected the trial with unfairness as to deny appellant his federal constitutional rights to a fair trial and to due process of law.” “The ‘routine application of state evidentiary law does not implicate [a] defendant’s constitutional rights.’ [Citation.] As [appellant] provides no elaboration or separate argument for these constitutional claims, we decline to address further these boilerplate contentions. [Citation.]” (People v. Hovarter (2008) 44 Cal.4th 983, 1010.)
B. Admission of “Wrestling Demolishers” and B.G. “Mask” Videos
Appellant argues that the prejudice arising from evidence of his foot fetish was exacerbated by the admission of other videos seized during the investigation. We reject the claim.
The first item of evidence challenged by appellant was a video labeled “Wrestling Demolishers” that depicted appellant wrestling with four or five boys, with most of the moves ending in “pins” with the boys on their backs and their opponent between their legs. Clips of the tape was played for the jury with Captain Blower of the Napa County Sheriff’s Department describing it. Blower estimated that appellant was 18 to 21 years old when the tape was made, though he could have been younger, and he opined that stills of the video showed appellant sniffing the boys’ feet. Appellant was also questioned about the video, but denied he was smelling the boys’ feet.
Appellant did not object to the “Wrestling Demolishers” video and has forfeited any challenge to that item of evidence. (People v. Simon (2016) 1 Cal.5th 98, 139.) He argues his trial counsel was ineffective in failing to object, but he cannot prevail on this claim because he can show neither deficient performance nor prejudice. (Strickland v. Washington (1984) 466 U.S. 668, 692 (Strickland).) The video, which tended to show appellant’s interest in underage boys, was admissible on the issue of his sexual intent while committing the acts underlying the charged offenses. It also showed conduct similar to that alleged by the victims (holding the boys’ legs over their heads during a “pin”) and was circumstantial evidence he had “committed the charged offense[s] pursuant to the same design or plan he . . . used in committing the uncharged acts.” (People v. Ewoldt (1994) 7 Cal.4th 380, 403.) Counsel was not ineffective in failing to lodge an objection to admissible evidence.
Even if there were merit to appellant’s suggestion that the “Wrestling Demolishers” video should have been excluded as more prejudicial than probative, its admission was not prejudicial under the standard for a claim of ineffective assistance of counsel, which requires a defendant to show “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” (Strickland, supra, 466 U.S. at p. 694.) A reasonable probability is “a probability sufficient to undermine confidence in the outcome.” (Ibid.) The wrestling video did not show any explicitly sexual conduct by appellant, and it was far less damaging than the testimony of the six named victims in this case. There is no reasonable probability appellant would have obtained a better result if the video had been excluded.
The second video challenged by appellant is one he made of Kellie’s friend B.G. while she was dressed in a wrestling suit and leggings. The video, taken when B.G. was 14, was found wedged between two sexual foot fetish videos, and B.G. also testified that appellant had probably given her a massage because he knew about sports medicine. Appellant can show no prejudice even if we assume this evidence should not have been admitted. Given the testimony of the victims in this case, and the absence of any motive on their part to falsely accuse appellant of sexual misconduct, it is not reasonably probable appellant would have obtained a different result if the video and B.G.’s testimony about the massage had been excluded. (Watson, supra, 46 Cal.2d at p. 836.)
C. Prosecutorial Misconduct
Appellant argues the prosecutor committed misconduct by (1) asking the victims and witnesses how they felt about appellant’s actions and how his crimes had affected them; (2) commenting during closing argument on the impact of the molestations; and (3) suggesting during closing argument that appellant had molested other children he had coached. We disagree.
“The applicable federal and state standards regarding prosecutorial misconduct are well established. ‘ “A prosecutor’s . . . intemperate behavior violates the federal Constitution when it comprises a pattern of conduct ‘so egregious that it infects the trial with such unfairness as to make the conviction a denial of due process.’ ” ’ [Citations.] Conduct by a prosecutor that does not render a criminal trial fundamentally unfair is prosecutorial misconduct under state law only if it involves ‘ “ ‘the use of deceptive or reprehensible methods to attempt to persuade either the court or the jury.’ ” ’ [Citation.]” (People v. Samayoa (1997) 15 Cal.4th 795, 841 (Samayoa).)
1. “How Did You Feel?” Questions
During direct examination, the prosecutor asked the victims how they felt after the molestations and received the following responses: (1) Kellie testified her school work was affected, that she did not feel like herself, and that she was emotional and upset about what had happened; (2) Nick testified he was in shock and upset about appellant’s effort to have skin-to-skin contact; (3) Sarah testified she felt confused, really awful, extremely uncomfortable, violated, scared, intimidated, and really upset; (4) Patrick testified he was very uncomfortable; and (5) Nichole testified she felt uncomfortable and confused, and that the incident was more upsetting to her as she got older. In response to similar questions, Kellie’s basketball coach testified she was “really upset” to learn about the incidents; Melissa R. testified she felt sick, angry, shocked and upset, and Kathleen C. testified she was hurt and was more upset and emotional than angry.
The questions asked by the prosecutor were not improper because they did not seek inadmissible evidence and were not likely to elicit an improper response. (See People v. Bell (1989) 49 Cal.3d 502, 532.) In a case where the defense was taking the position that the victims were all lying about the molestations, their feelings about appellant and what he did were relevant to their credibility. There was also nothing particularly damaging about the responses elicited; undoubtedly they jurors would have assumed the victims were upset and angry about appellant’s conduct even in the absence of their testimony on the subject.
2. Closing Argument: Comment on Impact of the Molestations
Appellant correctly observes “it is misconduct for a prosecutor to appeal to the passions of the jurors by urging them to imagine the suffering of the victim.” (People v. Jackson (2009) 45 Cal.4th 662, 691.) He then cites the following comments as an example of such misconduct: “Something for you to consider is that all of these victims are people who did not report immediately. They didn’t have an interest in getting the defendant in trouble, in framing him in some way, in concocting this big elaborate setup. They are all people who, by their own testimony and accounts, liked the defendant, trusted him and to some extent still do or had some sort of conflicting feelings, at least, about that. That’s a part of their lives for an extended period and that’s normal. [¶] All of those victims were people who had a very, very difficult time coming to terms with and accepting what had happened to them and kind of bringing it to light and talking about that. None of them were out to get the defendant or frame him or anything like that. In fact, it was quite the opposite of the way that he presented it. [¶] Going through this criminal justice system that they’ve had to go through, through all of this has been difficult for them. It’s been emotional for them. You got to see some of their raw emotions for yourselves on the stand; and there’s absolutely zero reason, no reason whatsoever for them to put themselves through that and to go through all of that in order to somehow falsely accuse the defendant.”
There is nothing objectionable in these remarks. The prosecutor was simply making the points that (1) the victim’s delay in coming forward did not render them unbelievable as witnesses and (2) they would not have subjected themselves to the difficulties of coming to court if they had not been telling the truth. This was not an improper appeal to sympathy or passion, nor did the prosecutor ask the jurors to place themselves in the victims’ shoes.
Appellant also takes issue with the prosecutor’s comment that the victims’ lives were “seriously impacted.” In context, the prosecutor was making the unobjectionable point that the victims had no reason to lie and that they had corroborated one another in their description of the offenses: “We’ve got six victims in this case. They all gave consistent stories which corroborated each other. None of them has any reason to lie. If anything, it’s quite the opposite. They were all seriously impacted throughout their lives by being molested.”


3. Closing Argument: Suggestion that Others had been Victimized
Finally, we do not agree the prosecutor improperly suggested during closing argument that appellant had molested other victims. The remarks cited by appellant in support of this contention are as follows: “Think to yourselves what is this 35 year old man doing hanging out with and spending all of his time with and communicating with these teenage girls, some girls age 14 to 17? Spending time alone in his bedroom behind closed doors with them. Think about what he’s doing there. Think about 10 years or so ago what this 25 year old was doing spending time basically, almost exclusively with kids aged eight to 15 to 16 years old.” The prosecutor quite aptly observed that it was unusual for a grown man to spend so much time alone with children who were unrelated to him, but nothing in these comments suggests appellant had molested victims other than the ones in this case.
The prosecutor did not engage in misconduct, much less prejudicial misconduct.
D. Sentencing
Section 667.61, the so-called One Strike law, creates an alternative sentencing scheme for crimes falling within its provisions. (People v. Jones (1997) 58 Cal.App.4th 693, 709 & fn. 9.) It “requires the trial court to impose a life sentence when the defendant is convicted of an enumerated sexual offense and the People plead and prove one or more of the specified aggravating circumstances.” (People v. DeSimone (1998) 62 Cal.App.4th 693, 696.) One such circumstance is found in section 667.61, subdivision (e)(4), which applies when “[t]he defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.” Section 288, subdivision (a), has been an offense listed under section 667.61, subdivision (c), since the One Strike law was enacted (see Stats.1993–1994, ch. 14, §§ 1–4); section 288.5 has been included on the list since 1996 (Stats. 2006, ch. 337, § 33, p. 2639, eff. Sept. 20, 2006).
As to each of appellant’s convictions under sections 288, subdivision (a), and 288.5, subdivision (a) (victims Nick, Laura, Sarah and Nichole; counts 1–25, 26–31, 35, 40–43, 44), the jury found true a “multiple victim” circumstance under the One Strike law. (§ 667.61, subds. (c)(8) & (9), (e)(4).) As appellant correctly notes, and as the Attorney General agrees, the trial court erroneously imposed both a determinate sentence and an indeterminate sentence under the One Strike law on counts 26, 40 and 44. (People v. Fuller (2006) 135 Cal.App.4th 1336, 1343 (Fuller).) But the more fundamental problem is that the court, apparently believing that only a single One Strike term could be imposed for each victim, imposed determinate sentences on counts for which One Strike terms were required. In cases where the multiple-victim circumstance is found true as to more than one count, section 667.61 provides for “one life term per victim per occasion.” (People v. Murphy (1998) 65 Cal.App.4th 35, 40; see People v. Valdez (2011) 193 Cal.App.4th 1515, 1521–1524 (Valdez); People v. Stewart (2004) 119 Cal.App.4th 163, 172.) In response to this Court’s request for supplemental briefing regarding the legality of the sentence, the parties agree that the failure to impose One Strike indeterminate terms amounts to an unauthorized sentence.
The case must therefore be remanded for resentencing. We offer the following observations to assist the trial court on remand:
(1) A One-Strike sentence must be imposed for every qualifying count as to which the multiple-victim allegation was found true, subject to the limitation that multiple One Strike sentences may not be imposed for crimes committed against the same victim on the same occasion. (§ 667.61, subd. (g); Valdez, supra, 193 Cal.App.4th at pp. 1521–1524.)
(2) Although the court is not prohibited from imposing a greater aggregate sentence on remand given the unauthorized nature of the sentence imposed (People v. Brown (1987) 193 Cal.App.3d 957, 961), concurrent sentences are permissible under the One Strike law (People v. Valenti (2016) 243 Cal.App.4th 1140, 1178–1179 (Valenti); Valdez, supra, 193 Cal.App.4th at p. 1524; People v. Rodriguez (2005) 130 Cal.App.4th 1257, 1262).
(3) As the trial court recognized at the original sentencing hearing, appellant may not be convicted of both continuous sexual abuse under section 288.5, subdivision (a), and specific acts of lewd conduct committed during the same period. (§ 288.5, subd. (c); People v. Johnson (2002) 28 Cal.4th 240, 244–248; Torres, supra, 102 Cal.App.4th at p. 1059.) In deciding whether to vacate a conviction under 288.5, subdivision (a), or convictions for the lewd acts committed during the same period, the court should attempt to leave a defendant “standing convicted of the alternative offenses that are most commensurate with his culpability.” (Torres, at p. 1059; see People v. Rojas (2015) 237 Cal.App.4th 1298, 1308–1309.)
(4) Section 288.5 was only added to the list of One Strike offenses effective September 20, 2006, and a One Strike indeterminate sentence may not be imposed for violations of that statute occurring before that date. (Valenti, supra, 243 Cal.App.4th at p. 1174.) All of the section 288.5 counts in this case were alleged to have been committed before September 20, 2006; consequently, they are not subject to One Strike sentencing. If those counts are not vacated, i.e., if the trial court elects to sentence appellant on any of the section 288.5 counts rather than on the section 288, subdivision (a), convictions for offenses committed during the same period, determinate sentences may be imposed. (Id. at p. 1175.)
(5) Appellant may not be sentenced to both a determinate sentence and an indeterminate term under the One Strike law on a single count. (Fuller, supra, 135 Cal.App.4th at p. 1343.)
Our comments are intended only to set forth the framework for resentencing; we express no opinion as to how the trial court should exercise its sentencing discretion within that framework.
E. Sufficiency of the Evidence – Count 35
In response to our request for supplemental briefing regarding the One Strike sentencing issue, appellant raises an additional claim: namely, that as to count 35, he was improperly convicted of lewd conduct with a child under 14 years of age in violation of section 288, subdivision (a), because the evidence was insufficient to establish the victim was under 14 at the time of the offense. Appellant argues he was at most guilty of committing a lewd act against a 14 or 15 year old victim pursuant to section 288, subdivision (c)(1), which is not a One Strike offense. Consequently, he argues, he cannot be sentenced to an indeterminate One Strike sentence on count 35 when the case is remanded. We have granted appellant leave to raise this issue. (Cal. Rules of Court, rule 8.200(a)(4).)
The information and verdict forms allege that as to count 35, appellant committed a lewd act with Laura Doe “between January 1, 2003 and October 31, 2003,” and described that act as “Petaluma residence, first time.” Laura was born on April 22, 1989, and would have been 14 years old as of April 22, 2003, meaning she was over the age necessary to establish a violation of section 288, subdivision (a), for more than half of the time frame alleged. Laura testified that she believed appellant and Melissa moved to Petaluma in 2003, when she (Laura) was still 13. Melissa testified that she and appellant moved into the Petaluma house in the fall of 2002, and moved back to Napa in the fall of 2003. This testimony is the only evidence offered regarding the date of the lewd act alleged in count 35, and does not supply substantial evidence that the crime was committed before April 22, 2003; i.e., before Laura turned 14. (See People v. Mejia (2007) 155 Cal.App.4th 86, 97 [reversing conviction for lewd act with a 14 or 15 year old victim under § 288, subd. (c)(1), because evidence was insufficient to establish whether defendant abused his victim before or after her 14th birthday].)
The Attorney General argues the evidence was sufficient to show that Laura was still 13 when appellant committed the lewd act alleged in count 35 because Melissa testified that she and appellant moved to Petaluma in the fall of 2002 and Laura testified that (1) the first sexual incident occurred at the first Napa apartment in 2002, before the move to Petaluma, when she was “probably 13;” (2) that appellant repeated his attacks at the Napa apartment “every two weeks or so;” (3) that more than 30 incidents occurred from the time Laura was 13 until the time she was 17, at various locations; and (4) that the incidents in Petaluma happened “[m]aybe five times.” From this, the jury could reasonably infer that Laura was still 13 years old when Melissa and appellant moved from Napa to Petaluma, and that all of the molestations in Napa were violations of section 288, subdivision (a). Appellant was, in fact, convicted of five counts of violating section 288, subdivision (a), based on the 2002 Napa molestations. (Counts 26–20.) But no aspect of the cited testimony establishes that appellant first molested Laura in Petaluma before her 14th birthday on April 22, 2003, as alleged in the information. We can only speculate that the conduct alleged in count 35 occurred before that date; “ ‘ “[b]y definition, ‘substantial evidence’ requires evidence and not mere speculation.” ’ ” (People v. Ramon (2009) 175 Cal.App.4th 843, 851.) Accordingly, the conviction under count 35 must be reversed and appellant may not be resentenced on that count.
DISPOSITION
Appellant’s conviction under count 35, for a violation of section 288, subdivision (a), is reversed. The case is remanded for resentencing consistent with the principles set forth in section D. of the Discussion. The judgment is otherwise affirmed.
 

NEEDHAM, J.



We concur.




SIMONS, ACTING P.J.




BRUINIERS, J.









(A146667)