Filed 10/12/21 P. v. Long CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

PHILLIP GEROME LONG,

Defendant and Appellant.

F079251

(Super. Ct. No. F13907709)

OPINION

APPEAL from a judgment of the Superior Court of Fresno County. F. Brian 

Alvarez, Judge.

Patricia L. Brisbois, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra and Rob Bonta, Attorneys General, Lance E. Winters, Chief 

Assistant Attorney General, Michael P. Farrell, Assistant Attorney General, Daniel B. 

Bernstein and Carlos A. Martinez, Deputy Attorneys General, for Plaintiff and 

Respondent.

-ooOoo-
2.

INTRODUCTION

Between May and December 2011, defendant Phillip Gerome Long sexually 

abused three girls under 10 years old multiple times. A jury convicted defendant of oral 

copulation with a child under 10 years old (three counts), lewd acts upon a child under 

14 years old (six counts), and possession of child pornography. The trial court sentenced 

defendant to a total term of 396 years to life in prison, including six separate terms of 

50 years to life, pursuant to the “One Strike” law (Pen. Code, § 667.61)1 and the “Three 

Strikes” law (§§ 667, subds. (b)–(i), 1170.12, subds. (a)–(d)).

Defendant contends on appeal (1) the trial court violated his right to due process 

by sentencing under the provisions of subdivision (j)(2) that had not been specifically 

alleged in the amended information; and (2) his sentence of 396 years to life in prison 

violates the Eighth Amendment bar on cruel and unusual punishment. Defendant also 

requests we vacate the judgment as to the presentence report fee in light of Assembly Bill 

No. 1869 (2019–2020 Reg. Sess.).

The People argue that the amended information’s reference to subdivisions (b) and 

(e)(4) adequately provided notice that defendant would be sentenced under the One Strike 

law and authorized all potential sentences to which defendant was exposed under that 

law. The People also argue that defendant forfeited the issue by failing to raise it below 

and that it fails on the merits. The People agree that the presentence report fee should be 

vacated. We reach the merits and affirm defendant’s judgment.

PROCEDURAL BACKGROUND

Originally charged by complaint, defendant was held to answer after his 

preliminary hearing on April 24, 2014. The Fresno County District Attorney filed an 

amended information on February 25, 2019, charging defendant with oral copulation with 

1 All statutory references are to the Penal Code unless otherwise noted; undesignated 

subdivisions are to section 667.61.
3.

a child 10 years old or younger (§ 288.7, subd. (b); counts 1–4),2lewd acts upon a child 

under 14 years old (§ 288, subd. (a); counts 5–11),3 and possession of child pornography 

(§ 311.11, subd. (a); count 12). As to all counts, the amended information alleged a prior 

“strike” conviction within the meaning of the Three Strikes law. (§§ 667, subds. (b)–(i), 

1170.12, subds. (a)–(d).) As to counts 5 through 11, the amended information alleged 

“within the meaning of [subdivision] (b), ... the following circumstances apply: the 

defendant committed an offense specified in [subdivision] (c) against more than one 

victim - [subdivision] (e)(5) [sic].”4 (Brackets in original removed.)

Defendant pled not guilty to the charges in the amended information. After a 12-

day trial, the jury convicted defendant of counts 1 through 3, 5 through 8, and 10 through 

12 on March 15, 2019.5 The jury also found true the multiple victim circumstance 

allegation pursuant to subdivision (e)(4). That same day, defendant waived his right to a 

jury trial regarding his prior conviction and admitted the prior serious felony conviction 

allegation.

The trial court sentenced defendant on April 26, 2019. Defense counsel pointed 

out the presentence report reflected the wrong judicial officer, requested the court 

exercise its discretion to strike defendant’s prior serious felony conviction, but voiced no 

other objections to the sentence. The court characterized the evidence in the case as 

2 Counts 1 through 4 involved victim A.A.

3 Counts 5 through 8 involved victim A.A., count 9 involved victim D.M, count 10 

involved victim A.B., and count 11 involved victim A.C.

4 Subdivision (e)(5) was renumbered as subdivision (e)(4) effective September 9, 2010. 

(Stats. 2010, ch. 219, § 16, p. 1026.) Defendant has not raised any issue as to the error in 

statutory reference. (See People v. Thomas (1987) 43 Cal.3d 818, 826 [where defendant not 

misled, specification of wrong number in applicable statute is not controlling in light of specific 

language of accusatory pleading describing allegation]; People v. Schueren (1973) 10 Cal.3d 

553, 558 [“even a reference to the wrong statute has been viewed of no consequence under the 

circumstances there appearing”].)

5 The jury acquitted defendant of count 4 (involving victim A.A.) and count 9 (involving 

victim D.M.).
4.

“quite troubling” and defendant’s conduct as “quite egregious.” The court characterized 

the child pornography images as “quite vile” and “something that [it] cannot forget.” The 

court also considered the victims, “especially with regards to [A.B.] when she testified,” 

and stated, “she was quite devastated still by her experience.” The court denied the 

motion to strike, also noting defendant had been discharged from parole for assaulting 

and threatening his wife only one year prior to the instant offenses.

The trial court denied probation and sentenced defendant, noting that all counts 

were second strike offenses requiring twice the term otherwise provided. (See § 667, 

subd. (e)(1).) For each of counts 5 through 8, 10, and 11, the court sentenced defendant 

to a term of 50 years to life.6 As to each of counts 1 through 3, the court sentenced 

defendant to a term of 30 years to life.7 The court sentenced defendant to six years on 

count 12.8 The total term of imprisonment was 396 years to life, plus a $3,000 restitution 

fine (§ 1202.4), a stayed $3,000 parole revocation fine (§ 1202.45, subd. (a)), a $40 court 

operations fee (§ 1465.8), a $30 conviction assessment (Gov. Code, § 70373), and a $296 

presentence report fee (former § 1203.1b).

This timely appeal followed on April 26, 2019.

6 Section 667.61, subdivisions (b) and (j)(2) provide for a sentence of 25 years to life, and 

section 667, subdivision (e)(1) provides that any determinate term or minimum indeterminate 

prison term must be twice the term otherwise provided as punishment.

7 Section 288.7, subdivision (b) provides for a punishment of 15 years to life in prison, 

doubled pursuant to section 667, subdivision (e)(1).

8 The court selected the three-year upper term provided by section 311.11, subdivision (a)

and section 18, subdivision (a), doubled pursuant to section 667, subdivision (e)(1).
5.

FACTS

I. People’s Case

Christina9 met defendant through her ex-boyfriend, and they had been family 

friends for a few years. In 2011, Christina’s daughter A.A. was six or seven years old. 

That year, defendant and his ex-wife Cynthia would often watch A.A. while Christina 

was working. Christina and Patricia were sisters. At times, during the eight months 

between May and December, Patricia’s daughters, A.B., A.C., and D.M., would visit 

A.A. while she was at defendant’s residence. At that time, A.B. was seven or eight years 

old, A.C. was five years old, and D.M. was 10 years old.

According to A.A., while she was in defendant’s care, he put his hand on her 

vagina, masturbated, forced her to swallow his sperm, forced her to touch his penis until 

he ejaculated on multiple occasions, pushed her to the floor and forced his penis a small 

way into her vagina and/or anus several different times, used his tongue to lick her 

vagina, and made her lick his penis.

Eventually, A.A. refused to go to defendant’s apartment. Christina learned from

her nieces that A.A. had been sexually abused and, upon questioning A.A., learned what 

defendant had done to A.A. Christina contacted the police.

According to A.B., when she would visit A.A. at defendant’s residence, defendant 

would remove their clothing and touch their vaginas. He would chase them and when 

they were on the floor, pull them to him by their feet, remove their underwear, and touch 

them.

A.C. also described visiting A.A. at defendant’s residence three or more times. 

Defendant would “tickle” her and A.A. when she visited, at times touching their vaginas 

9 We refer to the parties by their first names for clarity and convenience, because some of 

them share a last name. No disrespect is intended.
6.

over their underpants and other times making them disrobe, spread their legs, and 

touching them directly.

D.M. described an incident when she was in the car with defendant and he slid his 

hand up her leg, touching her vagina inside her shorts and underwear. In an interview 

several years earlier, D.M. described two other times defendant touched her vagina when 

she was at defendant’s residence.

All four girls were interviewed in May 2013, and their interviews were entered 

into evidence. In August 2013, detectives executed a search warrant at defendant’s 

residence and seized a laptop computer containing 900 images of child nudity or 

pornography depicting “mostly prepubescent undeveloped children” “engaged in sexual 

activity or focussing [sic] on the child’s genitalia” and a desktop computer containing 

nine images of child pornography.

II. Defense Case

A. Testimony of Defendant’s Former Spouse

Cynthia divorced defendant in 2003 but was living with him again when the 

instant offenses occurred in 2011. Cynthia worked a graveyard shift Tuesday through 

Saturday. A.A. visited their apartment frequently. Cynthia testified that defendant was 

like a grandfather to A.A. and confirmed that A.A. and the other girls would frequent the 

apartment, sometimes spending the night when she was not present, but Cynthia denied 

defendant had behaved inappropriately with them.

B. Defendant’s Testimony

Defendant denied molesting the children but agreed that they ran around the 

apartment naked “like any normal kid would do.” He denied knowledge of or 

responsibility for the images found on the computers.
7.

DISCUSSION

I. Defendant’s due process right to notice of his charges and punishment was not 

violated because the amended information provided notice of the penalties 

defendant faced based on the charges against him.

Defendant argues the trial court’s imposition of 25-year-to-life terms on counts 5

through 8, 10, and 11 violated his due process rights because the information did not 

mention subdivision (j)(2). We disagree.

A. Background

1. The Amended Information

As to counts 5 through 11, the amended information alleged the multiple victim 

circumstance of the One Strike law as follows:

“[W]ithin the meaning of [subdivision] (b), ... the following circumstances 

apply: the defendant committed an offense specified in [subdivision] (c) 

against more than one victim - [subdivision] (e)([4]).” (Brackets in original 

removed.)

2. The One Strike Law

“The Legislature enacted the One Strike law to increase the penalties imposed on 

defendants who commit certain sexual offenses [listed in subdivision (c)] under specified 

circumstances. (Sen. Bill No. 26 (1993–1994 Reg. Sess.); Stats. 1994, ch. 14, § 1, 

p. 2680.) The more serious circumstances were listed in subdivision (d) of 

section 667.61, the less serious in subdivision (e). [Citation.] [Originally, t]he penalty 

imposed depended on the number and seriousness of those circumstances: If a defendant 

committed an offense ‘under one or more of the circumstances specified in 

subdivision (d) or under two or more of the circumstances specified in subdivision (e),’ 

they were to be sentenced to 25 years to life in state prison. (Former § 667.61, subd. (a).) 

If they committed their offense under just one of the circumstances specified in 

subdivision (e), however, they were to be sentenced to 15 years to life in prison. (Former 

§ 667.61, subd. (b).) The age of the victim was not a factor under this scheme.
8.

“The One Strike law has been amended several times, including to increase the 

number of offenses to which its provisions apply and to mandate consecutive sentences 

for defendants convicted of certain offenses. (See Prop. 83, Gen. Elec. (Nov. 7, 2006), 

§ 12; Sen. Bill No. 1128 (2005–2006 Reg. Sess.); Stats. 2006, ch. 337, § 33, p. 2639.) 

The most recent substantive amendments were made in 2010, when the Legislature 

increased the penalties imposed on defendants convicted of sexual offenses against 

minors. (See Stats. 2010, ch. 219, § 16; Legis. Counsel’s Dig., Assem. Bill 1844 (2009–

2010 Reg. Sess.) [(Chelsea King Child Predator Prevention Act of 2010)].) Under the 

current version of the law, the penalty imposed on a defendant depends not only on the 

circumstances underlying their offense [subdivisions (d) and (e)] but also on the nature of 

the offense itself and the ages of the victim and the defendant.” (People v. Betts (2020) 

55 Cal.App.5th 294, 299.)

The Chelsea King Child Predator Prevention Act of 2010 (Chelsea’s Law) added 

the limiting language “Except as provided in subdivision (j), (l), or (m)” to subdivision 

(a)10 and subdivisions “(j), (l), or (m)” to the existing limiting language in subdivision

(b). (Subds. (a), (b), as amended by Stats. 2010, ch. 219, § 16, p. 1025; see Amendments, 

Deering’s Ann. Pen. Code (2021 supp.) foll. § 667.61, p. 330.) The amendment also 

added subdivisions (j) through (n) and redesignated former subdivision (j) as 

subdivision (o). (Subds. (j)–(n), (o), as added & amended by Stats. 2010, ch. 219, § 16, 

p. 1027; Amendments, Deering’s Ann. Pen. Code, supra, foll. § 667.61, p. 330.) Where 

an information charges one of the nine offenses listed in subdivision (c), the amendments 

increase the penalties otherwise provided in subdivisions (a) and (b), depending upon the 

age of the minor victim (over or under 14 years old) and the defendant (over or under 

10 Subdivision (a) provides for a 25-year-to-life term where at least one circumstance in 

subdivision (d) is involved or two circumstances from subdivision (e). Where subdivision (d) 

circumstances are not involved, subdivision (b) provides for a 15-year-to-life term when only

one circumstance from subdivision (e) is involved.
9.

18 years old), and whether the prosecution has proven at least one circumstance from 

subdivision (d) or at least two circumstances from subdivision (e) (in which case the 

penalty is life in prison without parole), or only one circumstance from subdivision (e) 

(providing for a sentence of 25 years to life). (Subds. (j), (l), (m).)

Subdivision (j) applies where the victim is 14 years old or younger. If one 

circumstance from subdivision (d) or two circumstances from subdivision (e) are 

involved, subdivision (j)(1) requires a sentence of life without parole rather than the 25-

year-to-life sentence otherwise provided for in subdivision (a).11 Where the victim is 

younger than 14 years old and the offense involves one circumstance from 

subdivision (e), subdivision (j)(2) provides for a sentence of 25 years to life rather than 

the 15-year-to-life sentence otherwise provided by subdivision (b). (Subds. (b), (j)(2).) 

The law mandates the same penalties for defendants whose victims are minors 14 years 

old or older, but only where a defendant is convicted of an offense listed in 

subdivision (n)(1) through (6). (See subds. (l), (m), (n).)12

In adding enhanced penalties based upon the age of the victim, Chelsea’s Law also 

amended five of the nine qualifying offenses listed in subdivision (c) (§§ 264.1, 286, 287 

[former § 288a], 288, 289) and added lengthier determinate penalties based upon the age 

of the minor victim. (§ 667.61, subd. (c)(3), (5)–(8); Stats. 2010, ch. 219, §§ 4–6, 8–9, 

pp. 1007–1009, 1011–1015.) Three subdivision (c) offenses (§§ 288, subds. (a), (b), 

288.5) already included the age of the minor victim as part of the offense. (See § 667.61, 

subd. (c)(4),(8), (9).)13

11 The life sentence does not apply if the defendant is under 18 years old at the time of the 

offense. (Subd. (j)(1).)

12 The offenses listed in subdivision (n)(1)–(6) are those offenses listed in subdivision (c) 

that are committed against a victim’s will and through the use of force and violence.

13 Of the subdivision (c) offenses, only spousal rape was not amended to increase

punishment depending on the age of the victim. (See §§ 262, subds. (a)(1), (4), 264.1.)
10.

The One Strike law is an alternative sentencing scheme applicable “only if the 

existence of any circumstance specified in subdivision (d) or (e) is alleged in the 

accusatory pleading pursuant to [section 667.61], and is either admitted by the defendant 

in open court or found to be true by the trier of fact.” (Subd. (o); see People v. 

Mancebo (2002) 27 Cal.4th 735, 741–745 (Mancebo) [construing former § 667.61].)

3. Due Process

“ ‘ “No principle of procedural due process is more clearly established than that 

notice of the specific charge, and a chance to be heard in a trial of the issues raised by 

that charge, if desired, are among the constitutional rights of every accused in a criminal 

proceeding in all courts, state or federal.” [Citations.] “A criminal defendant must be 

given fair notice of the charges against him in order that he may have a reasonable 

opportunity properly to prepare a defense and avoid unfair surprise at trial.” ’ [Citation.] 

This goes for sentence enhancements as well as substantive offenses: A defendant has 

the ‘right to fair notice of the specific sentence enhancement allegations that will be 

invoked to increase punishment for his crimes.’ ” (People v. Anderson (2020) 9 Cal.5th 

946, 953.)

Defendant acknowledges that he failed to raise this issue below but argues that this 

is an issue that may be addressed for the first time on appeal despite the lack of any 

objection by defense counsel at the time of sentencing. The People do not argue that 

defendant has forfeited this claim. We agree with defendant. (See People v. Anderson, 

supra, 9 Cal.5th at pp. 961–964 [legal error resulting in an unauthorized sentence is not 

forfeited]; see also Mancebo, supra, 27 Cal.4th at p. 749, fn. 7.)

B. Analysis

The amended information in this case alleged that the offenses in counts 5 through 

11 were those included in subdivision (c). The information also specifically alleged one 

circumstance from subdivision (e) that would qualify defendant for sentencing pursuant 
11.

to subdivision (b), the lower penalty tier of the One Strike law. Subdivision (b) notified 

defendant that he would be facing a 15-year-to-life sentence if one subdivision (e) 

circumstance was found true unless subdivisions (j), (l), or (m) applied. Subdivision (j), 

in turn, clearly states that when the victim is under 14 years old, the punishment is 

25 years to life. Counts 5 through 11 charged defendant with lewd acts upon a child 

under 14 years old (§ 288, subd. (a)) and was expressly pled. The trial court instructed 

the jury on the multiple victim circumstance allegation, which the jury found true in 

reaching its verdicts. The court specifically instructed the jury that to convict defendant 

of counts 5 through 11, it must find that the victims were under 14 years old (as alleged 

in the amended information), and the jury verdicts of guilty on counts 5 through 8, 10, 

and 11 necessarily include this finding.

Therefore, we conclude defendant received notice that upon conviction of these 

crimes, and a true finding of the multiple victim circumstance allegation, he would be 

sentenced to a term of 25 years to life on each count because his victims were under the 

age of 14 years.

We recognize that courts are split on whether a specific reference to 

subdivision (b) in a charging document complies with due process notice requirements as 

to subdivision (j). (Compare In re Vaquera (2019) 39 Cal.App.5th 233, 240–241, review 

granted Nov. 26, 2019, S258376 [sufficient notice] & People v. Zaldana (2019) 

43 Cal.App.5th 527, 534–537, review granted March 18, 2020, S259731 [same] with 

People v. Jimenez (2019) 35 Cal.App.5th 373, 395–397 [insufficient notice].) Our 

decision is in accord with both In re Vaquera and Zaldana. Like those two courts, we 

reject Jimenez’s opposite conclusion, relied upon by defendant, in that Jimenez failed to 

recognize that subdivision (b) specifically references subdivisions (j), (l), and (m) as 

exceptions to a 15-year-to-life sentence and requires consideration of those subdivisions 

in determining a defendant’s sentence. (See Zaldana, at p. 535; In re Vaquera, at p. 244; 

Jimenez, at p. 397.)
12.

Defendant supports his claim of error relying on Mancebo, supra, 27 Cal.4th 735. 

However, Mancebo is not on point as it addressed a different notice question under 

section 667.61. That case involved the pleading requirements for the circumstances in 

subdivisions (d) and (e) that are required before a defendant is subject to the One Strike 

alternative sentencing scheme. (Mancebo, at p. 740.) Specifically, the charging 

document in Mancebo alleged several circumstances set forth in subdivisions (d) and (e), 

including use of a firearm, but did not include the multiple victim circumstance. 

(Mancebo, at p. 740.) The trial court, seeking to maximize defendant’s sentence, 

substituted the uncharged multiple victim circumstance for the firearm circumstance so it 

could use the firearm to secure an additional enhancement under section 12022.5, 

subdivision (a) that had not been charged in the information. (Mancebo, at p. 740.) The 

court concluded this violated the pleading requirements of subdivisions (f) and (i) that 

specifically require the circumstances of sections (d) and (e) to be pled and proved for 

application of One Strike sentencing. (Mancebo, at pp. 740–741.) In this case, however, 

no such error occurred because defendant’s amended information pled the multiple 

victim enhancement as required by subdivision (o).

Chelsea’s Law added subdivisions (j), (l), and (m) but did not add any additional 

pleading requirements when increasing a defendant’s sentence based on the age of the 

victim. (§ 667.61.) We have noted that almost all the offenses listed in subdivision (c) 

have provisions making the age of the victim either an element of the offense or penalty 

and, therefore, age would necessarily be alleged in the charging document and found by 

the jury, as happened in this case.

We conclude that defendant was afforded adequate notice of the 25-year-to-life 

sentence he faced upon conviction because (1) the amended information referred 

specifically to subdivision (b); (2) subdivision (b) referred specifically to subdivision (j) 

as an exception to its provisions; and (3) the amended information pled the applicable 
13.

multiple victim circumstance from subdivision (e) as required by both Mancebo and 

subdivision (o).

II. Defendant’s prison term exceeding his life span does not constitute cruel and 

unusual punishment under the Eighth Amendment.

Defendant contends that his 396-year-to-life sentence constitutes cruel and 

unusual punishment. He argues that any sentence like his “is an absurdity that serves no 

legitimate penal purpose” because he would need to serve a term longer than three human 

life spans to become eligible for parole. Because defense counsel did not object to the 

sentence, defendant argues his counsel was prejudicially ineffective. The People respond 

that defendant’s claim is forfeited and, if not, defendant “is a recidivist and [has] shown 

himself to be a serious danger to the public.” We conclude defendant’s constitutional 

claim is meritless and thus defense counsel’s failure to raise the claim below did not 

amount to ineffective assistance.

“Whether a punishment is cruel and/or unusual is a question of law subject to our 

independent review ....” (People v. Palafox (2014) 231 Cal.App.4th 68, 82.) As 

defendant concedes, however, he did not raise this issue in the trial court. California law 

is clear that by failing to raise the issue below, he has forfeited the claim. (People v. 

Speight (2014) 227 Cal.App.4th 1229, 1247–1248, and cases therein cited.)

In the alternative, defendant contends defense counsel was ineffective for not 

moving to reduce his sentence on constitutional grounds. To prove ineffective assistance, 

defendant must show that defense counsel’s performance fell below an objective standard 

of reasonableness under prevailing professional norms, and that, in the absence of 

counsel’s failure, it is reasonably probable that the result of the sentencing proceeding 

would have been different. (Strickland v. Washington (1984) 466 U.S. 668, 687, 694.)

Defendant’s ineffective assistance of counsel claim fails because he cannot satisfy 

the first prong of Strickland. He cannot show defense counsel’s performance fell below 

an objective standard of reasonableness based on defense counsel’s failure to raise 
14.

constitutional claims that had little or no chance at success under the law. (See People v. 

Anderson (2001) 25 Cal.4th 543, 587 [“[c]ounsel is not required to proffer futile 

objections”]; see also Ewing v. California (2003) 538 U.S. 11, 22 [successful Eighth 

Amendment challenges to noncapital sentences “ ‘exceedingly rare’ ”].) As we discuss 

below, defendant’s Eighth Amendment argument is meritless.

Defendant relies on Coker v. Georgia (1977) 433 U.S. 584 (Coker), defining a 

sentence as unconstitutional where it (1) “makes no measurable contribution to 

acceptable goals of punishment and hence is nothing more than the purposeless and 

needless imposition of pain and suffering,” or (2) is grossly disproportionate to the 

severity of the crime. (Id. at p. 592.) Defendant does not argue that his sentence is 

disproportionate but rather that it does not contribute to the goals of punishment.

Defendant does not object to his entire sentence as unconstitutional but only to 

that portion he cannot serve during his lifetime. We do not believe that Coker’s first test 

is intended to address a portion of a prison sentence, objected to only because it extends 

beyond the defendant’s life. A punishment is unconstitutional under Coker’s first test if it 

imposes “pain and suffering” that “makes no measurable contribution to acceptable goals 

of punishment.” (Coker, supra, 433 U.S. at p. 592.) The case Coker cited for this test 

articulated it somewhat differently: “First, the punishment must not involve the 

unnecessary and wanton infliction of pain.” (Gregg v. Georgia (1976) 428 U.S. 153, 173 

(Gregg).) Neither Coker nor Gregg support defendant’s argument that the portion of a 

sentence he cannot possibly serve imposes pain and suffering, thereby violating the 

Eighth Amendment’s prohibition on cruel and unusual punishment.14

14 In framing the first test, Gregg reviewed several cases involving actual pain or suffering. 

(Gregg, supra, 428 U.S. at p. 173, citing Wilkerson v. Utah (1878) 99 U.S. 130, 136 [execution 

by shooting not cruel and unusual]; Weems v. United States (1910) 217 U.S. 349, 367, 381

[sentence of a minimum punishment of 12 years and one day, in chains, at hard and painful 

labor; the loss of many basic civil rights; and subjection to lifetime surveillance held to be both 

inhuman and out of proportion to the crime of falsifying an official document]; Trop v. 

Dulles (1958) 356 U.S. 86, 100 (plur. opn. of Warren, C. J.); see id. at p. 102 [denaturalization as 
15.

Coker itself provides no help to defendant as it addressed the death penalty for the 

crime of rape of an adult woman where the death determination was, under Georgia law, 

based on prior felonies. (Coker, supra, 433 U.S. at pp. 586–600 (plur. opn. of White, J.).) 

Coker did not address aggregated sentences that result in or exceed life imprisonment and 

thus provides no authority for invalidating the sentence in this case. We cannot conclude 

that a prison sentence that outlasts a defendant’s life involves the unnecessary and 

wanton infliction of pain.

Defendant also relies upon Associate Supreme Court Justice Stanley Mosk’s 

concurring opinion in People v. Deloza (1998) 18 Cal.4th 585, noting that a sentence 

exceeding a human life span can serve no rational penological purpose and is inherently 

cruel and unusual. (See id. at pp. 600–601 (conc. opn. of Mosk, J.), citing Furman v. 

Georgia (1972) 408 U.S. 238, 331 (conc. opn. of Marshall, J.).) Justice Mosk’s 

concurring opinion in Deloza was not the view of the majority of our Supreme Court and 

therefore has no controlling weight or precedential value. (People v. Ceballos (1974) 

12 Cal.3d 470, 483; People v. Byrd (2001) 89 Cal.App.4th 1373, 1383 (Byrd).)

Defendant’s argument, relying on Deloza’s concurrence, has also been rejected by 

other courts. (People v. Haller (2009) 174 Cal.App.4th 1080, 1087–1092 [upholding

sentence of 78 years to life even though no eligibility for parole until defendant would be 

119 years old]; People v. Retanan (2007) 154 Cal.App.4th 1219, 1222, 1231 [upholding 

sentence of 135 years to life for 16 felony offenses arising from molestation of four 

children]; Byrd, supra, 89 Cal.App.4th at pp. 1375–1376, 1383 [upholding sentence of 

115 years plus 444 years to life for 12 counts of robbery plus mayhem, and attempted 

premeditated murder, with personal discharge of firearm, and three priors].)

punishment for desertion cruel and unusual because, while not involving physical mistreatment 

or primitive torture, “civilized nations of the world are in virtual unanimity that statelessness is 

not to be imposed as punishment for crime”].)
16.

Furthermore, defendant’s sentence actually serves valid penological goals,

including vindication of society’s sense of justice, protecting society from criminal 

harms, and deterring criminal behavior. (See People v. Mesce (1997) 52 Cal.App.4th 

618, 632 [The “classic concerns of sentencing” are “retribution, deterrence, and 

incapacitation.”]; see also In re Nuñez (2009) 173 Cal.App.4th 709, 730 [“Valid 

penological goals include retribution, incapacitation, rehabilitation, and deterrence.”]; 

People v. Warner (1978) 20 Cal.3d 678, 689 [“The paramount concern in sentencing 

must be the protection of society.”].)

As defendant seems to acknowledge, his sentence is effectively a sentence of life 

without the possibility of parole. Considering the number of victims (three children 

under 10 years old and one child under 14 years old), the repeated abuse, the eight-month 

period over which the crimes occurred, the gravity and cumulative nature of the crimes, 

and the likely lifelong impact on the child victims, we conclude defendant’s sentence 

plainly furthers these valid penological goals. (See In re Nuñez, supra, 173 Cal.App.4th 

at p. 730; see also People v. Meeks (2004) 123 Cal.App.4th 695, 709 [“... California has 

recognized, and reasonably so, that sex offenders present a serious danger to society 

because of their tendency to repeat their sexual offenses.”].)

As the Supreme Court has noted, the One Strike law was enacted to ensure that 

“serious sexual offenders receive long prison sentences whether or not they have any 

prior convictions. (Stats. 1993–1994, 1st Ex. Sess., ch. 14, § 1, pp. 8570–8572.) 

According to a general statement of purpose in the legislative history, the targeted group 

preys on women and children, cannot be cured of its aberrant impulses, and must be 

separated from society to prevent reoffense. (Sen. Com. on Judiciary, Analysis of Sen. 

Bill No. 26 (1993–1994 1st Ex. Sess.) as introduced Feb. 2, 1994, pp. 9–10.)” (People v. 

Wutzke (2002) 28 Cal.4th 923, 929–930, fn. omitted (Wutzke).)

Here, the jury found true allegations under subdivision (e)(4) that qualifying 

offenses were committed against more than one victim. “[P]ersons convicted of sex 
17.

crimes against multiple victims within the meaning of section 667.61, subdivision (e)([4]) 

‘are among the most dangerous’ from a legislative standpoint. [Citation.] The One 

Strike scheme therefore contemplates a separate life term for each victim attacked on 

each separate occasion.” (Wutzke, supra, 28 Cal.4th at pp. 930–931.)

“The Assembly and Joint Committees heard that mandatory imprisonment is the 

best means by which to deter and punish the sexual exploitation of children. According 

to witnesses, such crimes are typically committed by pedophiles who are ‘fixated’ 

sexually on children, and who have no interest in sexual partners their own age.” 

(Wutzke, supra, 28 Cal.4th at p. 936.)

As explained in Byrd, “it is immaterial that defendant cannot serve his sentence 

during his lifetime. In practical effect, he is in no different position than a defendant who 

has received a sentence of life without possibility of parole: he will be in prison all his 

life. However, imposition of a sentence of life without possibility of parole in an 

appropriate case does not constitute cruel or unusual punishment under either our state 

Constitution [citation] or the federal Constitution. [Citation.] [¶] Moreover ..., a 

sentence such as the one imposed in this case serves valid penological purposes: it 

unmistakably reflects society’s condemnation of defendant’s conduct and it provides a 

strong psychological deterrent to those who would consider engaging in that sort of 

conduct in the future.” (Byrd, supra, 89 Cal.App.4th at p. 1383.)

Although defendant does not argue disproportionality, we note that sentences 

exceeding human life expectancy, like defendant’s, have been repeatedly upheld against 

constitutional challenge as proportional. (See, e.g., People v. Cartwright (1995) 

39 Cal.App.4th 1123, 1132, 1139–1141 [affirming sentence of 375 years to life plus 

53 years after engaging in a proportionality analysis]; People v. Wallace (1993) 

14 Cal.App.4th 651, 666–667 [affirming sentence of 283 years plus eight months after 

engaging in a proportionality analysis]; People v. Bestelmeyer (1985) 166 Cal.App.3d 

520, 532 [affirming sentence of 129 years after engaging in a proportionality analysis].)
18.

Defendant’s acts of molestation affected at least three children while they were 

under his care and at extremely vulnerable times in their lives, realistically leading to 

lifelong consequences for them. Furthermore, defendant continued to commit the 

offenses over an eight-month period. Given this record, the sentence that defendant 

received furthered acceptable penological goals of retribution, incapacitation, and 

deterrence and, accordingly, was not excessive. In light of our finding that defendant’s 

claim is meritless and that established precedent has rejected similar constitutional 

challenges, defendant cannot show defense counsel was ineffective for failing to raise the

claim below.

III. Assembly Bill No. 1869 requires that we vacate the unpaid portion of the 

presentence report fee.

The trial court imposed a $296 presentence report fee pursuant to former 

section 1203.1b. That fee recently became “unenforceable and uncollectible” through the 

enactment of Assembly Bill No. 1869 (2019–2020 Reg. Sess.) effective September 18, 

2020, and operative July 1, 2021. The bill added section 1465.9, which states in relevant 

part:

“On and after July 1, 2021, the balance of any court-imposed costs 

pursuant to ... Sections ... 1203.1b ... as those sections read on June 30, 

2021, shall be unenforceable and uncollectible and any portion of a 

judgment imposing those costs shall be vacated.” (§ 1465.9, subd. (a), 

added by Stats. 2020, ch. 92, § 62, p. 2195.)

Now that July 1, 2021, has passed, we think the plain language of section 1465.9

requires that we vacate the portion of defendant’s judgment imposing the unpaid balance 

of the $296 presentence report fee pursuant to former section 1203.1b. The parties agree. 

(See People v. Clark (2021) 67 Cal.App.5th 248, 259.)

DISPOSITION

Any portion of the $296 presentence report fee imposed pursuant to former 

section 1203.1b unpaid as of July 1, 2021, is vacated.
19.

The trial court is directed to prepare and forward to the Department of Corrections 

and Rehabilitation a new abstract of judgment reflecting the modification.

The judgment is affirmed as modified.

HILL, P. J.

WE CONCUR:

POOCHIGIAN, J.

SMITH, J.