People v. Russell CA3 ( 2021 )

Filed 6/9/21 P. v. Russell CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Sacramento)
----
THE PEOPLE, C089035
Plaintiff and Respondent, (Super. Ct. No. 06F03704)
v.
DANIEL RUSSELL,
Defendant and Appellant.
Defendant Daniel Russell was sentenced to life without parole (LWOP) for crimes
committed as a minor. We remanded the case for resentencing in accordance with the
guiding principles of Miller v. Alabama (2012) 567 U.S. 460 [183 L.Ed.2d 407] (Miller)
and People v. Gutierrez (2014) 58 Cal.4th 1354 (Gutierrez). (People v. Pearson
(Sept. 25, 2014, C063484) [nonpub. opn.] (Pearson).) In Gutierrez, the California
Supreme Court held that the United States Supreme Court’s decision in Miller, “requires
a trial court, in exercising its sentencing discretion, to consider the ‘distinctive attributes
of youth’ and how those attributes ‘diminish the penological justifications for imposing
1
the harshest sentences on juvenile offenders’ before imposing life without parole on a
juvenile offender.” (Gutierrez, supra, 58 Cal.4th at p. 1361, quoting Miller, supra,567 U.S. at p. 472.)
At the hearing on the remittitur on December 7, 2018, the trial court determined
that Russell was not entitled to a resentencing hearing, because Penal Code section 3051,
subdivision (b)(4), effective January 1, 2018 (Stats. 2017, ch. 684, § 1.5), provided that
juvenile offenders sentenced to LWOP were eligible for a parole hearing after 25 years of
incarceration.1
Russell contends his right to resentencing was not made moot by section 3051,
subdivision (b)(4), because the trial court had originally assumed that LWOP was the
presumptive sentence for Russell’s crimes and thus did not exercise “informed
discretion” in imposing that sentence. We disagree. We remanded the case for the trial
court to exercise its sentencing discretion informed by the guiding principles of Miller
and Gutierrez, which require the court to consider “ ‘distinctive attributes of youth’ ” in
imposing an LWOP sentence. As a result of section 3051, subdivision (b)(4), Russell
was not subject to an LWOP sentence at the time of the hearing on the remittitur and the
guidance of Miller and Gutierrez was not applicable.
Russell further contends that even if his claim to an exercise of discretion
consistent with Miller and Gutierrez is moot, the trial court was required to obey the
remittitur and resentence him. Russell misreads the scope of the remittitur. We directed
the trial court to resentence Russell in accordance with the requirements of Miller and
Gutierrez for imposing LWOP sentences on juvenile offenders. Since, by operation of
law, the trial court could not impose an LWOP sentence, the court did not disobey the
remittitur in failing to apply Miller and Gutierrez principles.
1 All undesignated statutory references are to the Penal Code.
2
However, Russell correctly contends that the trial court erred in declining to order
a transfer hearing under Proposition 57, which requires a juvenile court judge to conduct
a “transfer hearing” before a minor can be tried in criminal court. The Attorney General
concedes this point. (People v. Delgado (2018) 27 Cal.App.5th 1092, 1095.)
FACTS AND PROCEEDINGS
We incorporate by reference the statement of facts from our opinion in Pearson,
supra, C063484. In sum, Russell and Calvin Pearson targeted and savagely beat to death
a partially blind and deaf 90-year-old woman in her home and robbed her of jewelry and
money. The jury convicted Russell of first degree murder, first degree residential
burglary, and first degree residential robbery with special circumstances. The trial court
sentenced Russell to life in prison without the possibility of parole for first degree murder
with special circumstances and stayed his sentence on the other counts.
Russell appealed. We held that the record documented that the trial court
erroneously believed there was a presumptive sentence of life without parole under
section 190.5 for first degree murder with special circumstances committed by a
defendant 16 years or older but under 18.2 Russell was 16 at the time of the crimes. In
Gutierrez, the California Supreme Court rejected the presumption in favor of LWOP, and
2 Section 190.5, subdivision (b), provides: “The penalty for a defendant found guilty of
murder in the first degree, in any case in which one or more special circumstances
enumerated in Section 190.2 or 190.25 has been found to be true under Section 190.4,
who was 16 years of age or older and under the age of 18 years at the time of the
commission of the crime, shall be confinement in the state prison for life without the
possibility of parole or, at the discretion of the court, 25 years to life.”
In Gutierrez, the California Supreme Court overruled People v. Guinn (1994)
28 Cal.App.4th 1130, which held that LWOP was the presumptive sentence under section
190.5 for 16- or 17-year-old offenders who committed murder with special
circumstances. (Guinn, supra, at pp. 1141-1142, disapproved in Gutierrez, supra,
58 Cal.4th at p. 1387.)
3
as we said in Pearson, required us “to read section 190.5 as giving the trial court
discretion, unfettered by any presumption, in deciding whether to impose a life without
parole sentence.” (Pearson, supra, C063484 [at p. 36].)
We rejected the Attorney General’s argument that Miller did not apply because
section 1170, subdivision (d)(2), gave Russell the opportunity to petition the sentencing
court for recall and resentencing after serving at least 15 years of his sentence. This same
argument was made and rejected in Gutierrez. (Gutierrez, supra, 58 Cal.4th at pp. 1384-
1386.) We noted that the court in Gutierrez explained that nothing in Miller or its
predecessor jurisprudence indicated that an opportunity to recall a sentence in 15 to 24
years did not “ ‘somehow make more reliable or justifiable the imposition of [an LWOP]
sentence and its underlying judgment of the offender’s incorrigibility “at the outset.”
[Citation.]’ ” (Pearson, supra, C063484 [at pp. 37-38], quoting Gutierrez, supra,
58 Cal.4th at p. 1386.)
We concluded that the trial court “did not, as the Supreme Court mandated in
Miller, ‘take into account how children are different, and how those differences counsel
against irrevocably sentencing them to a lifetime in prison.’ ” (Pearson, supra, C063484
[at p. 38], quoting Miller, supra, 567 U.S. at p. 480.) Nor did we know the extent to
which the trial court was influenced by an erroneous presumption in determining
Russell’s culpability. While we did not fault the trial court for following pre-Gutierrez
law, we concluded that the court was not aware of the full scope of its discretion under
section 190.5 as guided by Miller, and Russell was entitled to a sentencing decision made
in the exercise of “ ‘informed discretion.’ ” (Pearson, supra, C063484 [at p. 38], quoting
Gutierrez, supra, 58 Cal.4th at pp. 1390.) We held that “we are compelled to remand this
matter for resentencing in accordance with the guiding principles set forth in Gutierrez.”
(Pearson, supra, C063484 [at p. 39].) The disposition stated: “We remand for
resentencing in accordance with the principles expressed herein. In all other respects, the
judgments are affirmed.” (Id. [at p. 44].)
4
In the meantime, Senate Bill No. 260 (2013-2014 Reg. Sess.), which became
effective January 1, 2014, added section 3051 creating a youth offender parole process.
(Stats. 2013, ch. 312, § 4.) Section 3051 provides that a juvenile under the age of 18 at
time of his or her crime was entitled to a youth offender parole hearing after 15, 20 or 25
years of incarceration. (Former § 3051, subds. (a) & (b).)
In People v. Franklin (2016) 63 Cal.4th 261 (Franklin), the defendant, 16 years
old at the time he shot and killed another teenager, was sentenced to two consecutive 25-
year-to-life terms for a total of 50 years to life in prison. (Id. at p. 268.) The defendant
argued that his sentence, mandated by statute, was the “ ‘functional equivalent’ ” of a
term of life without parole, imposed without consideration of his youth as required by
Miller. (Id. at p. 276.) The California Supreme Court rejected the argument, holding that
Senate Bill No. 260, “means that [the defendant] is now serving a life sentence that
includes a meaningful opportunity for release during his 25th year of incarceration. Such
a sentence is neither LWOP nor its functional equivalent. Because [the defendant] is not
serving an LWOP sentence or its functional equivalent, no Miller claim arises here.”
(Franklin, supra, 63 Cal.4th at pp. 279-280.)
However, former section 3051, subdivision (h), excluded several categories of
juvenile offenders from eligibility for a youth offender parole hearing, including juveniles
sentenced to LWOP. (Franklin, supra, 63 Cal.4th at pp. 277-278.) On October 11, 2017,
the Governor signed Senate Bill No. 394 (2017-2018 Reg. Sess.), which amended section
3051, subdivision (b)(4), to expand the youth offender parole process to persons under 18
sentenced to LWOP.
As a result, in People v. Lozano (2017) 16 Cal.App.5th 1286, the court held that a
Miller claim by a juvenile offender sentenced to LWOP is “moot, as [the defendant’s]
situation is not materially different from that of the defendant in Franklin.” (Id. at
p. 1290.) The Lozano court noted that in Montgomery v. Louisiana (2016) 577 U.S. ___
[136 S.Ct. 718], the United States Supreme Court held that giving Miller retroactive
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effect “ ‘does not require States to relitigate sentences, let alone convictions, in every
case where a juvenile offender received mandatory life without parole. A State may
remedy a Miller violation by permitting juvenile homicide offenders to be considered for
parole, rather than resentencing them.’ ” (Lozano, supra, 16 Cal.App.5th at p. 1290;
Montgomery, supra, 577 U.S. at p. ___ [136 S.Ct. at p. 736] [citing Wyoming statute
providing that juvenile homicide offenders are eligible for parole after 25 years].)
At the hearing on December 7, 2018, the trial court observed that this court had
issued a remittitur instructing the lower court to resentence Russell based on
developments in the law that occurred after he was originally sentenced to LWOP. But
since the remittitur there had been legislative enactments and cases interpreting them.
Therefore, Russell is “not entitled to a resentencing hearing.”
As summarized by defense counsel: “[T]hat issue is now moot because the
amendment to Penal Code section 3051 giving juvenile LWOP defendants a parole
hearing after 25 years. We were waiting because after 3051 was amended, the Second
District Court of Appeal decided People v. Lozano, which also concluded that the
amendment makes the resentencing, the Miller violations -- all of that other stuff -- moot
because they’re going to get a parole hearing. [¶] The California Supreme Court then
granted review in Lozano which, again, brought this case to a screeching halt.
Subsequently, the California Supreme Court dismissed the grant of review as being moot,
which basically makes Lozano good law again. And based upon that, I am of the opinion
that there is no longer a Constitutional infirmity with my client having been sentenced to
LWOP since he will be getting a parole hearing after 25 years which satisfies the
constitutional deficiency. Does that make sense?”
The trial court responded: “It does. And that was the whole issue with respect to
Miller.”
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DISCUSSION
Exercise of Discretion in Sentencing
Russell contends that “[i]t does not matter that new legislation now affords
appellant the possibility of parole. He was entitled to a proper exercise of sentencing
discretion when the court made its discretionary sentencing choice in the first instance.”
Russell does not articulate what informs a proper exercise of discretion. However,
Miller, Gutierrez, and our prior opinion in Pearson make clear it is the consideration of
the characteristics of youth which is required for the trial court to exercise informed
discretion in imposing an LWOP sentence of a juvenile offender. And, as Franklin held,
that exercise of discretion is not required for any other sentence but LWOP.
In Miller, the court said its jurisprudence had established that, for purposes of
sentencing, juveniles are constitutionally different from adults and have diminished
culpability and greater prospects for reform. Juveniles lack maturity, have an
underdeveloped sense of responsibility leading to recklessness, impulsivity, and heedless
risk-taking, are more vulnerable to negative influences and outside pressures, and have
limited control of their environment and less ability to extricate themselves from horrific
crime settings. (Miller, supra, 567 U.S. at p. 471.) Because their character is not as well
formed and less fixed, their actions are less likely to evidence irretrievable depravity.
(Ibid.; Gutierrez, supra, 58 Cal.4th at p. 1375.) But penalty schemes such as mandatory
LWOP, “prevent the sentencer from taking account of these central considerations. By
removing youth from the balance—by subjecting a juvenile to the same life-without-
parole sentence applicable to an adult—these laws prohibit a sentencing authority from
assessing whether the law’s harshest term of imprisonment proportionately punishes a
juvenile offender.” (Miller, supra, 567 U.S. at p. 474.)
In Gutierrez, the California Supreme Court held that under Miller “imposition of
the harshest punishment of a juvenile requires individualized sentencing that takes into
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account an offender’s ‘youth (and all that accompanies it)’ . . . .” (Gutierrez, supra,
58 Cal.4th at p. 1378, quoting Miller, supra, 567 U.S. at p. 479.) Gutierrez thus required
a trial court to “consider all relevant evidence bearing on the ‘distinctive attributes of
youth’ discussed in Miller and how those attributes ‘diminish the penological
justifications for imposing the harshest sentences on juvenile offenders.’ ” (Gutierrez,
supra, 58 Cal.4th at p. 1390.) The court specified that the sentencing court must
consider: (1) “a juvenile offender's ‘chronological age and its hallmark features—among
them, immaturity, impetuosity, and failure to appreciate risks and consequences,’ ”
(2) “ ‘the family and home environment that surrounds [the juvenile]—and from which
he cannot usually extricate himself—no matter how brutal or dysfunctional,’ ” (3) “ ‘the
circumstances of the homicide offense, including the extent of [the juvenile defendant’s]
participation in the conduct and the way familial and peer pressures may have affected
him,’ ” (4) “whether the offender ‘might have been charged and convicted of a lesser
offense if not for incompetencies associated with youth—for example, his inability to
deal with police officers or prosecutors (including on a plea agreement) or his incapacity
to assist his own attorneys,’ ” and (5) evidence or information “bearing on ‘the possibility
of rehabilitation.’ ” (Id. at pp. 1388-1389.)
The court concluded that “a sentencing court must consider [these] factors . . .
before imposing life without parole on a juvenile homicide offender.” (Gutierrez, supra,
58 Cal.4th at p. 1389.)
We remanded this case because the trial court did not follow the detailed guidance
set forth in Miller and Gutierrez in sentencing Russell to LWOP. We did not remand for
the trial court to simply repeat the exercise of discretion generally required in sentencing
decisions. Indeed, we noted that “the trial court carefully considered both aggravating
and mitigating circumstances as they related to the exercise of its discretion” to impose
an alternative 25-year-to-life sentence under section 190.5, subdivision (b). (Pearson,
supra, C064384 [at p. 38].)
8
As a result of the enactment of section 3051, subdivision (b)(4), by operation of
law, Russell has effectively been sentenced to an indeterminate term of 25 years to life,
no matter what sentence the trial court originally imposed. Thus, the guiding principles
of Miller and Gutierrez that must inform the discretion of a court sentencing a juvenile
offender to LWOP do not apply. Moreover, section 190.5, subdivision (b), provides that
the alternative penalty to LWOP for special circumstances murderers 16 and 17 years old
is “at the discretion of the court, 25 years to life.” Since Russell is now serving this
sentence and cannot be sentenced to LWOP, there is no further discretion for the trial
court to exercise on remand.3
Scope of Remittitur
Russell next contends that “[e]ven if the sentencing court believed that statutory
amendments mooted or eliminated the need for resentencing, it was still obligated to obey
the ruling of the appellant [sic] court. The sentencing court was ordered to exercise
discretion in resentencing appellant and had not [sic] choice but to obey that directive.”
“The court may reverse, affirm, or modify a judgment or order appealed from, . . .
and may, if proper, order a new trial and may, if proper, remand the cause to the trial
court for such further proceedings as may be just under the circumstances.” (§ 1260.)
“The order of the reviewing court is contained in its remittitur, which defines the scope of
the jurisdiction of the court to which the matter is returned. ‘The order of the appellate
court as stated in the remittitur, “is decisive of the character of the judgment to which the
3 Had defense counsel pressed the trial court to resentence Russell in accordance with
Miller and Gutierrez principles, the court would have responded these principles did not
apply since Russell was not subject to an LWOP sentence. Therefore, counsel did not
render ineffective assistance, as Russell claims, when he conceded the effect of section
3051, subdivision (b)(4), on resentencing. Defense counsel does not render ineffective
assistance by failing to take futile actions. (People v. Memro (1995) 11 Cal.4th 786, 834;
People v. Price (1991) 1 Cal.4th 324, 387.)
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appellant is entitled.” ’ ” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688,
701; People v. Dutra (2006) 145 Cal.App.4th 1359, 1366 (Dutra) [on remand “the trial
court is revested with jurisdiction of the case, but only to carry out the judgment as
ordered by the appellate court”].)
“The appellate court need not expressly comment on every matter intended to be
covered by the disposition. The disposition is construed according to the wording of its
directions, as read with the appellate opinion as a whole. [Citation.] . . . [Citation.] [¶]
Whether the trial court has correctly interpreted an appellate opinion is an issue of law
subject to de novo review. In interpreting the language of a judicial opinion, the
appellate court looks to the wording of the dispositional language, construing these
directions ‘in conjunction with the opinion as a whole.’ [Citations.]” (Ducoing
Management, Inc. v. Superior Court (2015) 234 Cal.App.4th 306, 313.)
In Dutra, this court issued a remittitur remanding the case for “ ‘a sentencing
trial.’ ” (Dutra, supra, 145 Cal.App.4th at p. 1363.) Advised by the Attorney General
that an intervening California Supreme Court case vitiated the remittitur, the trial judge
denied the appellant any further hearing. (Id. at p. 1364.) We held that it was the trial
court’s duty to follow the terms of the remittitur, noting that “the rule requiring a trial
court to follow the terms of the remittitur is jurisdictional . . . .” (Id. at p. 1367.)
Russell relies on People v. Berg (2019) 34 Cal.App.5th 856 (Berg), as well as
Dutra. In Berg, the trial court granted a prisoner’s petition for habeas corpus contending
that an LWOP sentence imposed for a crime he committed as a juvenile violated Miller
and Gutierrez. The court ordered the sentence vacated and Berg resentenced. (Berg,
supra, 34 Cal.App.5th at pp. 862-863.) The People appealed and the appellate court
affirmed and issued a remittitur to the trial court. (Id. at p. 864.) Based on the enactment
of section 3051, subdivision (b)(4), the trial concluded that Berg’s claim was moot,
vacated its order granting the habeas petition, and reinstated the LWOP sentence. (Berg,
supra, 34 Cal.App.5th at p. 867.) Notwithstanding Dutra, the trial court reasoned that the
10
appellate court had simply affirmed the order granting the habeas petition and the trial
court had inherent authority to reconsider its prior ruling granting the petition. (Ibid.)
The appellate court, however, analogized an order granting a habeas petition to a final
judgment upheld on appeal, which the lower court had no jurisdiction to reopen or retry,
and rejected the lower court’s attempt to distinguish Dutra. (Id. at pp. 873-877.) The
court held that the order vacating the order granting the habeas petition and reinstating
the sentence was void. (Id. at p. 877.)
In this case, the trial court did not materially depart from our directions on remand,
let alone reopen or reexamine an order or final judgment affirmed on appeal. Following
the “dictates of Gutierrez,” we concluded we were “compelled to remand this matter for
resentencing in accordance with the guiding principles set forth in Gutierrez.” (Pearson,
supra, C063484 [at p. 38]; id. [at p. 39].) Unlike Dutra, we did not remand for “ ‘a
sentencing trial’ ” (Dutra, supra, 145 Cal.App.4th at p. 1363), but rather for the trial
court to apply the principles mandated in Miller and Gutierrez for imposition of an
LWOP sentence on a juvenile offender. Since the trial court could not sentence Russell
to LWOP, the court did not disobey our directions. Moreover, as discussed, after the
enactment of section 3051, subdivision (b)(4), by operation of law, Russell was
effectively resentenced to 25 years to life, the alternative to LWOP authorized by section
190.5, subdivision (b). There was no further discretion for the trial court to exercise in
obedience to the remittitur.
Updating Actual Time Credits
Russell contends the trial court should have updated the calculation of custody
credits when it amended the abstract of judgment to eliminate the parole revocation fine,
11
which, as discussed in Pearson, the Attorney General agreed should be stricken.4
(Pearson, supra, C063484 [at p. 43].)
In People v. Buckhalter, supra, 26 Cal.4th at page 23, our Supreme Court held that
when “an appellate remand results in modification of a felony sentence during the term of
imprisonment, the trial court must calculate the actual time the defendant has already
served and credit that time against the ‘subsequent sentence.’ (§ 2900.1.)”
The Attorney General argues that the sentence in Russell’s case was never
modified within the meaning of section 2900.1. We agree that the trial court did not
impose a new, recalculated sentence. However, section 2900.5, subdivision (d) states:
“It is the duty of the court imposing the sentence to determine the date or dates of any
admission to, and release from, custody prior to sentencing and the total number of days
to be credited pursuant to this section. The total number of days to be credited shall be
contained in the abstract of judgment provided for in Section 1213.” Section 2900.5, like
section 2900.1, imposes on the trial court an obligation to give credit for the actual time
the defendant has spent in custody and record that time in the abstract of judgment.
Moreover, Russell argues, and the Attorney General concedes, that the amended
abstract of judgment contains an error. The “Date Sentence Pronounced” is incorrectly
recorded as “06-27-14” when Russell’s original sentencing date was November 6, 2009,
and the parole revocation fine was stricken on December 7, 2018.
The Attorney General identifies a second error in the amended abstract of
judgment, which records “1,299” in the column for local conduct credits as well as the
same amount of time in the column for actual time served credits, despite section 2933.2,
4 Russell calculates that he is entitled to an additional 3,319 custody credits for the time
served between sentencing on November 6, 2009, and the hearing on remand on
December 7, 2018. While the Attorney General does not dispute this calculation, it is the
responsibility of the trial court to recalculate custody credits. (People v. Buckhalter
(2001) 26 Cal.4th 20, 23.)
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subdivision (a), disqualifying a defendant convicted of murder from receiving conduct
credit. However, the total credit column records only 1,299 days, indicating that the
duplicative conduct credit number is a clerical error.
Since the trial court must issue a new abstract of judgment to correct these errors,
we conclude it is consistent with the policy of section 2900.1 and 2900.5 that the actual
time Russell served prior to the December 8, 2018 hearing on remand be calculated and
set forth in the abstract of judgment, as well.
Proposition 57
As noted, Russell was 16 at the time of his crimes. The parties agree that he
entitled to conditional reversal and remand to the juvenile court for a transfer hearing
under Proposition 57.
California voters passed Proposition 57, the Public Safety and Rehabilitation Act
of 2016, intended to change the state law “to require that, before youths can
be transferred to adult court, they must have a hearing in juvenile court” and to ensure
that minors “accused of committing certain severe crimes would no longer automatically
be tried in adult court . . . .” (Voter Information Guide, Gen. Elec. (Nov. 8, 2016)
analysis of Prop. 57 by the Legis. Analyst, p. 56.)
Welfare and Institutions Code section 707, subdivision (a)(1), requires that an
allegation of criminal conduct against any person under 18 years of age must now be
commenced in juvenile court. To prosecute the minor under general criminal law, the
prosecution must file a motion to transfer the case from juvenile court to adult court.
(Welf. & Inst. Code, § 707, subd. (a)(1); People v. Superior Court (Lara) (2018)
4 Cal.5th 299, 303 (Lara).)
In Lara, the California Supreme Court held that Proposition 57 applies
retroactively to pending cases to entitle a minor who was charged directly in adult court
to a transfer hearing in juvenile court. (Lara, supra, 4 Cal.5th at pp. 303-304.) As
13
discussed in Lara, the appropriate action is to conditionally reverse Russell's conviction
and sentence and remand for a juvenile transfer hearing under Welfare and Institutions
Code section 707.
The juvenile court must conduct the hearing as if the prosecutor originally filed a
petition in juvenile court and moved to transfer the case against Russell to a court of
criminal jurisdiction. (Lara, supra, 4 Cal.5th at p. 310; Welf. & Inst. Code, § 707, subd.
(a)(1).) If the juvenile court determines that it would have transferred Russell to a court
of criminal jurisdiction because he is “ ‘not a fit and proper subject to be dealt with under
the juvenile court law,’ ” then his convictions and sentence are reinstated. (Lara, supra,
4 Cal.5th at p. 310; Welf. & Inst. Code, § 707.1, subd. (a).) If the juvenile court finds
that it would not have transferred Russell to a court of criminal jurisdiction, then it shall
treat his convictions as juvenile adjudications and “ ‘impose an appropriate “disposition”
within its discretion.’ ” (Lara, supra, 4 Cal.5th at p. 310.)
DISPOSITION
The judgment is conditionally reversed and remanded to the juvenile court with
directions to conduct a transfer hearing in which the court will determine Russell’s fitness
for treatment within the juvenile system. If, at the hearing, the juvenile court determines
it would not have transferred the case to a court of criminal jurisdiction, then Russell’s
convictions will be deemed to be a juvenile adjudication as of that date. The juvenile
court will then conduct a dispositional hearing.
If, at the hearing, the juvenile court determines that it would have transferred
Russell to a court of criminal jurisdiction, then the judgment of the court of criminal
jurisdiction shall be reinstated as of that date. The court is then directed to prepare an
amended abstract of judgment reflecting recalculation of custody credits for the actual
time Russell served prior to the hearing on remand on December 7, 2018, the correct date
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sentenced was pronounced, and no local conduct credits. A certified copy of the
amended abstract shall be served on the Department of Corrections and Rehabilitation.
In all other respects, the judgment is affirmed.
/s/
RAYE, P. J.
We concur:
/s/
MAURO, J.
/s/
DUARTE, J.
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