People v. Welch CA4/2

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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, E073394

v. (Super.Ct.No. BAF1700315)

DEON AUSTIN WELCH, OPINION

Defendant and Appellant.

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 three-

year 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.)

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 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.

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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

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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).)

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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.

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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

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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

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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.)

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 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.

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