1

Filed 1/12/22 P. v. Welch CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

DEON AUSTIN WELCH,

Defendant and Appellant.

E073394

(Super.Ct.No. BAF1700315)

OPINION

APPEAL from the Superior Court of Riverside County. Bernard J. Schwartz, 

Judge. Affirmed in part; reversed in part and remanded.

Jean Ballantine, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief Assistant Attorney 

General, Julie L. Garland, Assistant Attorney General, Daniel Rogers, Adrianne Denault

and Christopher P. Beesley, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Deon Austin Welch was found guilty of 15 counts of aggravated sexual 

assault of a minor under the age of 14 years for repeatedly raping his girlfriend’s 

daughter for three years and was sentenced to state prison for 230 years to life. On 

appeal, he argues: (1) the trial court erred by not instructing the jury on the lesser 

included offense of statutory rape; (2) the prosecutor committed misconduct during 

closing arguments; (3) the trial court misunderstood its sentencing discretion when it 

imposed the maximum restitution and parole revocation restitution fines; (4) his sentence 

is cruel and/or unusual under the federal and state constitutions; and (5) the errors 

cumulatively rendered his trial unfair and require reversal. We agree the trial court 

misunderstood its discretion to take into consideration defendant’s ability to pay when 

imposing a restitution and parole revocation restitution fine above the statutory minimum, 

and we reverse and remand for the court to exercise that discretion. In all other respects, 

the judgment is affirmed.

I.

FACTS AND PROCEDURAL BACKGROUND1

Jane Doe was 16 years old during the trial. She testified that, starting when she 

was 11 years old and in the 6th grade, defendant raped her numerous times over a threeyear period. Defendant impregnated Jane, and she gave birth while she was in the 8th 

grade and one week before her 14th birthday.

1

 Defendant does not challenge the sufficiency of the evidence to support his 

convictions. Therefore, we need not provide a detailed recitation of the facts. We must 

construe the facts in the light most favorable to the judgment. (People v. Curl (2009) 

46 Cal.4th 339, 342, fn. 3.)
3

Jane testified that, at first, defendant started to touch and squeeze her breasts. She 

tried to pull away from him and said she did not like what he was doing, but he grabbed 

her tightly. Over time, defendant started to remove Jane’s clothing and touch her vagina 

with his fingers. Finally, defendant began to force himself onto Jane and have 

intercourse with her. The first time he did so, he got on top of Jane and, when she tried to 

scream, he covered her mouth so her mother would not hear her. He covered Jane’s 

mouth on many other occasions to prevent her from screaming while he had intercourse 

with her. If Jane tried to resist defendant, he would grab her and force her or tell her,

“Stop, it’s going to be ok.” On one occasion, when Jane said she did not want to have 

sex with defendant, he took her phone away. Jane was afraid of defendant because he 

threatened her and her family, and he said he would hurt her if she told anyone what he 

had done.

The People charged defendant with 15 counts of aggravated sexual assault of a 

minor under the age of 14 years in the commission of a rape (Pen. Code,2 §§ 269, 

subd. (a)(1), 261, subd. (a)(2), (a)(6), counts 1-15), one count of aggravated sexual 

assault of a minor under the age of 14 years in the commission of sodomy (§§ 269, 

subd. (a)(3), 286, subds. (c)(2), (c)(3), (d)(2), (d)(3), count 16), and one count of 

continuous sexual abuse of a minor under the age of 14 years (§ 288.5, count 17). In 

addition, the People alleged defendant inflicted great bodily injury upon Jane during the 

commission of the rape alleged in count 15. (§ 12022.8.) The trial court granted the 

2

 All further statutory references are to the Penal Code unless otherwise indicated.
4

People’s motion to dismiss count 17 in the interest of justice. (§ 1385.) The jury found 

defendant guilty on counts 1 through 15 and found true the sentencing allegation that 

defendant inflicted great bodily injury during the commission of count 15. But, it found 

him not guilty on count 16 (of both the charged offense and the lesser included offense of 

simple assault). The trial court selected count 15 as the principal count, and sentenced 

defendant to state prison for 15 years to life, plus a five-year consecutive term for the 

great bodily injury finding. (§§ 269, subd. (b), 12022.8.) The court also sentenced him

to state prison for 15 years to life for each of the remaining 14 counts, to be served 

consecutively with the term on count 15, for a total sentence of 230 years to life. (§ 269, 

subd. (c).) Relevant here, the court imposed the maximum $10,000 restitution and parole 

revocation fines. (§§ 1202.4, subd. (b), 1202.45, subd. (c).)

Defendant timely appealed.

II.

DISCUSSION

A. The Trial Court Was Not Required to Instruct the Jury on Counts 1 

Through 15 on the Lesser Included Offense of Unlawful Sex with a Child. 

Defendant argues that the trial court had a sua sponte duty to instruct the jury on 

the lesser included offense of unlawful sex with a child, and the court’s failure to do so 

was prejudicial and requires reversal of his convictions on counts 1 through 15 for 

aggravated sexual assault of a minor under the age of 14 years in the commission of a 

rape. Because no substantial evidence was introduced that defendant was only guilty of 
5

the lesser included offense, and not guilty of the greater offense, we conclude the trial 

court had no sua sponte duty to instruct on the lesser included offense.

We review a claim of instructional error de novo. (People v. Wilson (2021) 

11 Cal.5th 259, 295.) A trial court has a sua sponte duty to instruct the jury on general 

legal principles that closely and openly apply to the facts presented at trial and are 

necessary for the jury’s understanding of the case. (People v. Zamudio (2008) 43 Cal.4th 

327, 370.)

“A trial court has a sua sponte duty to instruct the jury on a lesser included 

uncharged offense if there is substantial evidence that would absolve the defendant from 

guilt of the greater, but not the lesser, offense. [Citation.] Substantial evidence is 

evidence from which a jury could conclude beyond a reasonable doubt that the lesser 

offense was committed.” (People v. Simon (2016) 1 Cal.5th 98, 132.) “[T]he existence 

of ‘any evidence, no matter how weak’ will not justify instructions on a lesser included 

offense, but such instructions are required whenever evidence that the defendant is guilty 

only of the lesser offense is ‘substantial enough to merit consideration’ by the jury.” 

(People v. Breverman (1998) 19 Cal.4th 142, 162.) “Speculative, minimal, or 

insubstantial evidence is insufficient to require an instruction on a lesser included 

offense.” (Simon, at p. 132.) When deciding whether evidence of a lesser included 

offense is substantial, “a court determines only its bare legal sufficiency, not its weight.” 

(Breverman, at p. 177.)

Defendant contends, and the People concede, that applying the accusatory pleading 

test, unlawful sex with a child (§ 261.5) is a lesser included offense of aggravated sexual 
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assault of a minor under the age of 14 years in the commission of a rape (§ 269, 

subd. (a)(1)). We agree, but for a different reason. “Two tests have traditionally been 

applied in determining whether an uncharged offense is necessarily included within a 

charged offense—the statutory or legal ‘elements’ test and the ‘accusatory pleading’ test. 

‘Under the elements test, if the statutory elements of the greater offense include all of the 

statutory elements of the lesser offense, the latter is necessarily included in the former. 

Under the accusatory pleading test, if the facts actually alleged in the accusatory pleading 

include all of the elements of the lesser offense, the latter is necessarily included in the 

former.’” (People v. Sloan (2007) 42 Cal.4th 110, 117.) Where, as here, the information 

“merely ‘incorporate[d] the statutory definition of the charged offense without referring to 

the particular facts’ in detail, we ‘must rely on the statutory elements’ alone.” (People v. 

Fontenot (2019) 8 Cal.5th 57, 65.)

Defendant’s convictions on counts 1 through 15 for aggravated sexual assault of a 

minor under the age of 14 years in the commission of a rape required the jury to conclude 

beyond a reasonable doubt that he raped Jane in violation of section 261, 

subdivision (a)(2) or (a)(6). (§ 269, subd. (a)(1).) Rape is an unlawful act of sexual 

intercourse with a person, who is not the perpetrator’s spouse. (§ 261, subd. (a).) 

Section 261, subdivision (a)(2), provides that an act of sexual intercourse is rape when it 

is accomplished against the victim’s will “by means of force, violence, duress, menace,
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or fear of immediate and unlawful bodily injury.”3 Section 261, subdivision (a)(6), 

provides that an act of sexual intercourse is rape when it “is accomplished against the 

victim’s will by threatening to retaliate in the future against the victim or any other 

person, and there is a reasonable possibility that the perpetrator will execute the threat.”4 

In contrast, the offense commonly known as “statutory rape” consists only of unlawful 

sexual intercourse, by an adult, with a nonspouse minor—it does not require that the act 

be accomplished against the victim’s will by force or other means.

5

 Aggravated sexual 

assault of a minor cannot be committed without committing an act of sexual intercourse 

with a nonspouse minor. Therefore, unlawful sex with a child is a lesser included offense 

of aggravated sexual assault/forcible rape under the statutory elements test.

Nonetheless, we agree with the People that the trial court was not required to 

instruct the jury on unlawful sex with a child because the evidence did not merit the jury 

3

 An act is against the victim’s will if he or she does not consent to it. (People v. 

Oliver (2020) 54 Cal.App.5th 1084, 1095.) “‘[D]uress’ means a direct or implied threat 

of force, violence, danger, or retribution sufficient to coerce a reasonable person of 

ordinary susceptibilities to perform an act which otherwise would not have been 

performed, or acquiesce in an act to which one otherwise would not have submitted.” 

(§ 261, subd. (b).) The totality of the circumstances—including the victim’s age and

relationship to the defendant—are factors to be considered when determining the 

existence of duress. (Ibid.) And, “‘menace’ means any threat, declaration, or act which 

shows an intention to inflict an injury upon another.” (§ 261, subd. (c).)

4

 “‘[T]hreatening to retaliate’ means a threat to kidnap or falsely imprison, or to 

inflict extreme pain, serious bodily injury, or death.” (§ 261, subd. (a)(6).)

5

 Relevant here, unlawful sexual intercourse with a nonspouse minor, who is 

more than three years younger than the perpetrator, is a felony/misdemeanor wobbler. 

(§ 261.5, subd. (c).)
8

considering the lesser included offense. The evidence showed that defendant forced 

himself on Jane; had sexual intercourse with her; prevented her from pulling away or 

screaming when she tried to resist him; punished her by taking her phone away if she said 

she did not want to have sex with him; and threatened her family and threatened to hurt 

her if she reported the abuse. No affirmative evidence was introduced that defendant had 

nonforced, consensual sex with Jane.

Defendant argues that the evidence of the greater offense was not strong because

Jane’s accounts of what happened to her “were varied and conflicting,” and she had 

“credibility problems.” But, when deciding whether the trial court was required to 

instruct on a lesser included offense, “courts should not evaluate the credibility of 

witnesses, a task for the jury.” (People v. Breverman, supra, 19 Cal.4th at p. 162.) 

Because the evidence supported the greater offense of aggravated sexual assault of a 

minor under the age of 14 years in the commission of a rape, and not the lesser included 

offense of statutory rape, we find no error.

B. The Prosecutor Did Not Err During Closing Argument.

Defendant argues the prosecutor committed prosecutorial misconduct during 

closing arguments by telling the jury that Jane’s pregnancy was “compelling” and 

“powerful” evidence that defendant had raped her. We find no error.

As our Supreme Court has stated, the term “‘“misconduct”’” is inapt to the extent 

it suggests the claim of error only applies when the prosecutor acts “‘with a culpable state 

of mind.’” (People v. Centeno (2014) 60 Cal.4th 659, 666-667.) “‘A more apt 

description of the transgression is prosecutorial error.’” (Id. at p. 667.) “Such error 
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occurs, as a matter of state law, when a prosecutor ‘engage[s] in deceptive or 

reprehensible tactics in order to persuade the trier of fact to convict.’ [Citation.] Federal 

constitutional error occurs only when the prosecutor’s actions ‘comprise a pattern of 

conduct that is serious and egregious, such that the trial is rendered so unfair that the 

resulting conviction violates the defendant’s right to due process of law.’ [Citation.] ‘In 

order to be entitled to relief under state law, defendant must show that the challenged 

conduct raised a reasonable likelihood of a more favorable verdict.’ [Citation.] Under 

federal law, relief is not available if ‘the challenged conduct was . . . harmless beyond a 

reasonable doubt.’”6 (People v. Daveggio and Michaud (2018) 4 Cal.5th 790, 854.)

“A criminal prosecutor has much latitude when making a closing argument. Her 

argument may be strongly worded and vigorous so long as it fairly comments on the 

evidence admitted at trial or asks the jury to draw reasonable inferences and deductions 

from that evidence.” (People v. Seumanu (2015) 61 Cal.4th 1293, 1330.) The prosecutor 

errs when he or she mischaracterizes the evidence. (People v. Hill (1998) 17 Cal.4th 800, 

823.) “A prosecutor’s ‘vigorous’ presentation of facts favorable to his or her side ‘does 

not excuse either deliberate or mistaken misstatements of fact.’” (Ibid.) Likewise, a 

prosecutor errs by misstating the law. (People v. Fayed (2020) 9 Cal.5th 147, 204.)

6

 Defendant concedes he did not object to the alleged error and did not request an 

admonition from the trial court. But, he argues this court can exercise its discretion to 

review the error or, in the alternative, he argues his trial attorney’s failure to object 

constituted ineffective assistance of counsel. Because we address the merits of this 

claim, we need not decide whether defendant forfeited it.
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“‘“When attacking the prosecutor’s remarks to the jury, the defendant must show” 

that in the context of the whole argument and the instructions there was “‘a reasonable 

likelihood the jury understood or applied the complained-of comments in an improper or 

erroneous manner.’”’” (People v. Beck and Cruz (2019) 8 Cal.5th 548, 657.)

The trial court properly instructed the jury with CALCRIM No. 220: the 

prosecutor had the burden to prove each element of the charged offenses beyond a 

reasonable doubt. And, the court properly instructed the jury with CALCRIM Nos. 1123 

and 1000 on the elements of aggravated sexual assault of a minor under the age of 14 

years in the commission of a rape.

During closing argument, the prosecutor told the jury that Jane remained silent 

about the fact she was being raped by defendant over a three-year period because nobody 

had believed her. It was only when she became pregnant that “she felt comfortable 

beginning to tell the truth to people.” The prosecutor told the jury that Jane’s pregnancy, 

at the age of 13, was “compelling evidence” because it “tells you that there were rapes 

happening,” and it corroborated Jane’s statements and testimony. After discussing the 

evidence at length, the prosecutor addressed the elements of aggravated sexual assault of 

a minor under the age of 14 years in the commission of a rape and argued they had been 

proven beyond a reasonable doubt. The prosecutor argued that Jane did not consent to 

have sexual intercourse with defendant, but that he used force, fear, or duress to make her 

submit. The prosecutor did not argue the resulting pregnancy, by itself, established a 

rape.
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During rebuttal argument, the prosecutor once more told the jury that Jane’s 

pregnancy was a “compelling nature of [the] evidence,” which “makes your job as jurors 

easy.” Finally, to rebut defense counsel’s suggestion that Jane’s inconsistent statements 

about being raped was circumstantial evidence, the prosecutor argued, “[W]hat is 

circumstantial evidence is the DNA of [Jane’s] baby. And it is just as powerful as the 

direct evidence that she testified to that he was raping her.” But, again, the prosecutor 

did not argue Jane’s pregnancy alone established the elements of the offense of 

aggravated sexual assault of a minor under the age of 14 years in the commission of a 

rape.

Defendant argues the prosecutor’s statements about Jane’s pregnancy constituted 

prejudicial error because they “trivialized and oversimplified the elements of the charged 

offenses and the jurors’ required deliberative process.” We disagree. The prosecutor did 

not misstate the elements of the offense or suggest the resulting pregnancy was sufficient 

evidence to establish defendant had raped Jane. To the contrary, the prosecutor explicitly 

addressed the legal elements of the offense and argued that the evidence established 

beyond a reasonable doubt that Jane did not consent to have sexual intercourse with 

defendant. The prosecutor’s characterization of the pregnancy as “compelling” and 

“powerful” was made primarily in the context of addressing questions about Jane’s 

credibility and, at most, the prosecutor argued the pregnancy corroborated her direct 

statements that she had been raped. Because the jury was properly instructed on the 
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elements of the offense, we conclude it is not reasonably probable it understood or 

applied the prosecutor’s statements in an improper manner.7

C. The Trial Court Erred When It Concluded It Could Not Consider 

Defendant’s Ability to Pay the Maximum Restitution and Parole Revocation Restitution 

Fines.

Defendant argues the trial court erred during sentencing because it was under the 

misapprehension that it could not consider his ability to pay when determining whether to 

impose restitution and parole revocation restitution fines above the statutory minimum. 

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157, defendant argues the error 

violated his rights to due process and to be free from excessive fines. We need not reach 

defendant’s constitutional claim. Because the trial court did not understand its discretion 

to consider defendant’s ability to pay, and the record does not clearly indicate the court 

would have likely imposed the same fine had it understood its discretion, we reverse the 

fines and remand for the trial court to exercise its discretion. On remand, defendant may 

present evidence about his current ability to pay.

Section 1202.4 mandates that, absent a compelling or extraordinary circumstance,

every defendant convicted of a felony shall pay a restitution fine of no less than $300 and 

no more than $10,000. (§ 1202.4, subd. (b)(1).) The court may, in its discretion, impose a 

restitution fine using the following formula: the minimum fine ($300), times the “number 

of years of imprisonment the defendant is ordered to serve,” times “the number of felony 

7

 We hasten to add that the trial court also properly instructed the jury with 

CALCRIM No. 104: the closing arguments of counsel were not evidence.
13

counts of which the defendant is convicted.” (Id., subd. (b)(2).) The court must also 

impose a parole revocation restitution fine in the same amount as the restitution fine. 

(§ 1202.45, subd. (a).) A defendant’s inability to pay is not a compelling or extraordinary 

reason to not impose the restitution fine at all, but it may be considered “in increasing the 

amount of the restitution fine in excess of the minimum fine . . . .” (§ 1202.4, subds. (c); 

see id., subd. (d) [listing factors the court must consider when setting restitution fine 

above the $300 minimum, “including, but not limited to, the defendant’s inability to 

pay”].) The defendant bears the burden of demonstrating he is unable to pay the fines. 

(Id., subd. (d).)

In its sentencing report, the probation department recommended the trial court 

impose a restitution fine according to the formula set forth in section 1202.4, 

subdivision (b)(2). But, because that sum far exceeded the statutory maximum, the 

department recommended a fine of $10,000. The report indicated defendant’s monthly 

income had been $1,800 and monthly expenses were $1,975, meaning he had a monthly 

net income of negative $175. However, the department informed the court that inability 

to pay was not a compelling reason to not impose the fine. 

At defendant’s sentencing hearing, the trial court indicated it intended to follow 

the probation department’s recommendation and impose a $10,000 restitution fine and a 

$10,000 parole revocation restitution fine. The prosecutor agreed with the proposed 

order, but defense counsel asked that, “based on [defendant’s] inability to pay,” the court 

impose the $300 minimum. The prosecutor responded that inability to pay is not a reason 

to impose no fine at all. “I think it should be imposed.” The trial court noted, “the 
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restitution fine and the parole revocation fine . . . are not subject to the defendant’s ability 

to pay,” so it imposed the maximum fines as recommended.

The record supports defendant’s assertion that the trial court was under the 

misapprehension that it could not consider defendant’s ability to pay when deciding 

whether to impose restitution and parole revocation restitution fines above the statutory 

minimum. “‘“Defendants are entitled to ‘sentencing decisions made in the exercise of the 

“informed discretion” of the sentencing court,’ and a court that is unaware of its 

discretionary authority cannot exercise its informed discretion.”’” (People v. Bell (2020) 

47 Cal.App.5th 153, 198-199, quoting People v. McDaniels (2018) 22 Cal.App.5th 420, 

425.) We must remand for the trial court to exercise its informed discretion unless the

court clearly indicated it would have imposed the same restitution fine even if it had the 

discretion to consider defendant’s inability to pay. (See Bell, at p. 199.) 

We find nothing in the record that clearly indicates the trial court would have 

imposed the maximum restitution and parole revocation restitution fines even if it had the 

discretion to consider defendant’s inability to pay. Neither the probation department in 

its sentencing report nor the prosecutor during the sentencing hearing addressed the 

relevant factors the court must consider when imposing a restitution fine above the $300 

minimum, and the trial court did not address them either. While it is possible the court 

might have still imposed the maximum fines even after considering the defendant’s 

ability to pay, the record is silent on the matter. Therefore, we reverse the restitution and 

parole revocation restitution fines and remand for the trial court to consider the factors 
15

listed in section 1202.4, subdivision (d), including defendant’s ability to pay. Defendant 

shall be permitted at that time to present evidence about his present ability to pay. 

D. Defendant’s Sentence Is Not Cruel and/or Unusual.

Next, defendant argues his sentence of 230 years to life, which will necessarily 

exceed his natural life, serves no valid purpose and is, therefore, cruel and/or unusual 

under the federal and California constitutions. We disagree.

The Eighth Amendment prohibition on cruel and unusual punishment bars 

sentences that are grossly disproportionate to the crime. (Ewing v. California (2003) 

538 U.S. 11, 23-24.) In applying this principle of proportionality, a court begins by 

comparing the gravity of the offense with the severity of the sentence. (In re Coley

(2012) 55 Cal.4th 524, 542.) If the comparison leads the reviewing court to draw an 

inference of disproportionality, it must then compare the sentence to sentences imposed 

on similar defendants in the same jurisdiction and to the sentences imposed on similar 

defendants in other jurisdictions. (Ibid.) If this inter- and intra-jurisdictional comparison 

validates the court’s initial inference of disproportionality, the sentence is cruel and 

unusual. (Ibid.) Article I, section 17 of the California Constitution, prohibits punishment 

that is cruel or unusual. It bars a sentence that “is so disproportionate to the crime for 

which it is inflicted that it shocks the conscience and offends fundamental notions of 

human dignity.” (In re Lynch (1972) 8 Cal.3d 410, 424.)

Citing life expectancy statistics, defendant—who was 30 years old at sentencing—

argues that any state prison sentence of more than 60 years will “likely equate to a life 

term without the possibility of parole.” And, relying exclusively on the separate opinion 
16

by the late Justice Stanley Mosk in People v. Deloza (1998) 18 Cal.4th 585, 600 (conc. 

opn. of Mosk, J.) (Deloza), defendant argues a sentence that no human being may 

complete serves no rational or legitimate penological purpose and is per se

disproportionate to the crime.

The courts have considered and rejected similar arguments to the one made here. 

Relying on the concurring opinion in Deloza, the defendant in People v. Byrd (2001) 

89 Cal.App.4th 1373 (Byrd) challenged as cruel and/or unusual his sentence of 115 years 

plus 444 years to life for his conviction of inter alia, robbery, mayhem, and attempted 

murder, among other crimes. The court was not persuaded. “Preliminarily, we note that 

‘no opinion has value as a precedent on points as to which there is no agreement of a 

majority of the court. [Citations.]’ [Citations.] Because no other justice on our Supreme 

Court joined in Justice Mosk’s concurring opinion, it has no precedential value. [¶] In 

any event, we respectfully disagree with Justice Mosk’s analysis. In our view, 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.” (Byrd, at p. 1383.) In addition, the court found that the sentence did serve 

“valid penological purposes” because “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.” (Ibid.)
17

Other courts have likewise rejected the argument, based on Justice Mosk’s

concurring opinion in Deloza, that a prison term that will necessarily exceed the 

defendant’s life is per se cruel and/or unusual. (E.g., People v. Haller (2009) 

174 Cal.App.4th 1080, 1089-1090 [three strikes sentence of life without the possibility 

of parole plus 78 years for multiple convictions of making criminal threats and assault 

with a deadly weapon].) Especially relevant here, the court in People v. Retanan (2007) 

154 Cal.App.4th 1219 rejected the claim that a sentence of 135 years to life for multiple 

convictions of aggravated child sexual assault, lewd or lascivious conduct, and other 

sexual offenses against children was cruel and/or unusual. “California courts repeatedly 

have upheld such lengthy prison sentences. [Citations.] Defendant was convicted of 

numerous sex crimes against four young girls, including the rape of a 10-year-old. He 

attempted to silence two of his victims by threats against the life of the person they loved 

the most. His many offenses were made possible by exploiting the trust of his victims’ 

parents. [¶] Defendant’s sentence is not disproportionate to the offender or the offenses. 

His claim of cruel and unusual punishment is without merit.” (Id. at p. 1231.)

We agree with the decisions just discussed. Justice Mosk’s concurring opinion in 

Deloza has no precedential value and is not binding on this court. (Byrd, supra,

89 Cal.App.4th at p. 1383.) Nor are we persuaded that, in an appropriate case such as 

this, where the defendant was convicted of multiple aggravated sex crimes against a 

minor, a sentence that will exceed the defendant’s natural life can serve no useful or valid 

penological purpose and is disproportionate to the offense. Therefore, we must conclude 

defendant’s sentence is not cruel and/or unusual.
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E. No Cumulative Error. 

Finally, defendant argues the cumulative effect of the alleged errors rendered his 

trial unfair and requires reversal. Except for the sentencing error we have identified with 

respect to the restitution and parole revocation restitution fines, for which we reverse and 

remand, defendant has established no error, prejudicial or otherwise. “[T]here is no 

prejudice to cumulate.” (People v. Wall (2017) 3 Cal.5th 1048, 1072.) 

III.

DISPOSITION

The restitution and parole revocation restitution fines are reversed, and the matter 

is remanded for the trial court to consider all relevant factors, including defendant’s 

ability to pay, when determining whether to impose fines above the statutory minimum.

In all other respects, the judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

McKINSTER

Acting P. J.

We concur:

FIELDS

J.

MENETREZ

J.