Filed 2/26/20




                       CERTIFIED FOR PARTIAL PUBLICATION*


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                             FIFTH APPELLATE DISTRICT

THE PEOPLE,
                                                                   F076907
        Plaintiff and Respondent,
                                                       (Super. Ct. No. CRM034457B)
                  v.

JOSE LUIS BOTELLO,                                               OPINION
        Defendant and Appellant.



        APPEAL from a judgment of the Superior Court of Merced County. Ronald W.
Hansen, Judge.
        Kyle Gee, under appointment by the Court of Appeal, for Defendant and
Appellant.
        Xavier Becerra, Attorney General, Gerald A. Engler, Chief Assistant Attorney
General, Michael P. Farrell, Assistant Attorney General, Louis M. Vasquez and
William K. Kim, Deputy Attorneys General, for Plaintiff and Respondent.
                                         -ooOoo-
        Jose Luis Botello was convicted of murdering two juveniles he shot and killed at a
party. The jury found true multiple murder and active gang participation special



        *Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part I of the Discussion.
circumstances. He was sentenced to serve two consecutive life without the possibility of
parole terms.
      On appeal, Botello separately challenges his convictions and sentence. He first
argues erroneously admitted evidence denied him a fair trial. He then argues the court
failed to exercise informed discretion in pronouncing life without parole sentences. We
will reverse the judgment and remand for a new sentencing hearing.
                                    BACKGROUND
      Two juveniles were shot and killed during a backyard “high school party.”1 Four
eyewitnesses—two near the front yard and two in the backyard—testified at trial.
      Before the murders, the two witnesses near the front yard had observed a van drive
past multiple times. The van’s occupants repeatedly shouted “A-Town.” Eventually, the
van stopped in front of the party house and two individuals—one wearing a white
Oakland Raiders2 jersey—joined the party for a few minutes before reentering the van.
One of the witnesses watched the van park down the road and saw the same two
individuals “sn[eaking] [back into the party] through the orchards.” Worried the
sneaking individuals would “start problems,” the vigilant witness “alerted” the second
witness to “kick them out.” Gunfire rang out moments later.
      The two witnesses in the backyard observed the shooting. They identified the
shooter as wearing a white Raiders jersey. One of these witnesses specifically identified
Botello as the shooter. The other witness saw an “A-Towner” “throw some gang signs,
pull out a gun, and shoot two people ….” This witness identified Botello as wearing the
white Raiders jersey but was not sure he was the shooter.



      1 A third person was shot and killed in the front yard. Botello was not charged
with any crimes relating to that homicide.
      2  No eyewitness described the jersey as affiliated with the Oakland Raiders, but
other evidence established this fact.


                                            2.
       Botello admitted attending the party while wearing a white Raiders jersey. Indeed,
he was the only person wearing a white Raiders jersey at the party. He further admitted
he was a “Sureño,” “A-Town” gang member. Botello claimed he was innocent.
       A gang expert witness opined A-Town is a criminal street gang aligned with the
Sureño “street faction of … the Mexican Mafia.” The expert testified A-Towns’s
primary activities included assaults with or without weapons and murder. The gang
“consistently and repeatedly committed these types of crimes.” The expert further
explained the rivalry between A-Town and other gangs, and the importance to gangs of
control, power, territory, and violence.
       The expert ultimately offered two opinions. The expert first opined Botello was
an A-Town gang member based on Botello’s admission, various photographs wherein
Botello demonstrates gang signs, Botello’s tattoos, and a rap song video in which Botello
glorifies gang violence. Second, the expert concluded the murders in this case benefited
the A-Town criminal street gang in part because they represent a “willingness” to
“eliminate” rival gang members—in this case, one victim was adorned in colors rivaling
A-Town—and generally fortifies territory by instilling fear.
Verdicts and Sentence
       The jury found Botello guilty of two counts of murder with various enhancements
and special circumstances.3 He was sentenced to serve two consecutive life in prison
without parole terms.



       3   The full convictions follow:
Count One: First degree murder (Pen. Code, § 187, subd. (a)) (unlabeled statutory
references are to the Penal Code); enhancement for personally discharging a firearm
which caused death (§ 12022.53, subd. (d)); enhancement for committing felony for
benefit of criminal street gang (§ 186.22, subd. (b)); special circumstances intentional
murder while actively participating in criminal street gang (§ 190.2, subd. (a)(22));
special circumstances multiple murder (§ 190.2, subd. (a)(3)).


                                             3.
                                      DISCUSSION
       This appeal presents the following questions: Did the trial court prejudicially err in
admitting into evidence Botello’s rap song video glorifying gang violence? Did the trial
court abuse its discretion in sentencing Botello to serve life in prison without the
possibility of parole?
       We first conclude the court erred by admitting the rap song video into evidence.
The error, however, is harmless. Second, we vacate the sentence because we are unable
to conclude the trial court’s sentence complied with the Eighth Amendment prohibition
against cruel and unusual punishments.
I. Error in Admitting the Rap Video is Harmless
       Botello first argues the trial court abused its discretion by allowing the prosecution
to introduce into evidence a rap song video depicting Botello glorifying gang-related
violence. The People believe the court properly exercised its discretion and,
alternatively, any error is harmless. We agree the court abused its discretion by allowing
the prosecution to introduce the evidence but find the error harmless.
       A. Additional Background
       The prosecution sought to introduce the rap song video under four theories:
“Relevant to motive,” “Relevant to intent,” “Relevant to identity,” and “Relevant to the
gang enhancement.” The court initially stated the song “expresses a clear state of mind
and attitude, and I think it’s very relevant.” The court reserved its ruling and concluded,
“I acknowledge it’s highly prejudicial. But it’s relevant … to the gang issue, but also the
state of mind and intent on the homicide itself.”




Count Two: First degree murder (§ 187, subd. (a)); enhancement for personally
discharging a firearm which caused death (§ 12022.53, subd. (d)); special circumstances
multiple murder (§ 190.2, subd. (a)(3)).


                                             4.
      The following morning, Botello’s counsel argued additional points against
admissibility. Because the video was filmed “seven months or eight months after the
shooting,” it was not relevant to “motive or intent.” The court concluded:

             “[W]ell, obviously the evidence is very relevant. And so
             really the only basis for the objection is [Evidence Code
             section] 352.

             “The fact that it’s seven months after this incident, I don’t
             find that that is a long period of time.

             [¶] … [¶]

             “The evidence is directly relevant to the frame of mind, the
             attitude, the gang culture that the defendant is allegedly
             steeped in. And even though it’s after the fact and may not be
             relevant to the possibility of intent or motive as of the date of
             the shooting, it’s very relevant to the gang culture and
             attitude.

             “And although technically not an admission, but it sure shows
             the willingness to engage in this violent conduct to defend the
             respect of the gang. … The evidence is coming in.”
The video was played twice during the trial.
      The prosecutor asked the gang expert witness several questions related to the
video. The gang expert testified Botello displayed several “hand signs … showing his
allegiance to A-Town Sureños.” The expert also “decipher[ed]” the lyrics for the jury.
The lyrics indicated Botello was “retaliat[ing]” “with a gun” because they “show[] the
individual willingness to, you know, commit a crime with the use of a gun. And it is
identifying that something happened. And in a response, he’s going to do something with
a gun as a response.”
      According to the expert, the song “identif[ied] … a form of fear tactic identifying
that they’re massive killers, meaning they’re identifying their willingness to commit
crimes all the way up to murder.” The expert defined “dirty work”—a lyric in the song—


                                               5.
to mean “ ‘[w]e’re going to commit crimes that need to be committed for the area we
represent.’ ” The lyrics represented a challenge to Norteño rivals and “verbaliz[ed] [a]
willingness of criminal behavior ….”
       The expert further testified the lyrics demonstrate the “willingness to commit
criminal activity all the way to death, murder.” “It just identifies that [Botello’s]
willing – the willingness to commit crimes and the level of commitment.” The song
“clearly” indicates Botello’s willingness to shoot rival gang members. It includes
multiple challenges demonstrating Botello’s willingness to commit more violent crimes
than his rivals, including a reference to perpetually carrying a firearm.
       The expert ultimately concluded the video

              “clearly identifies [Botello] is a part of A-Town. And
              through the context of several words, in several different
              manners, threatens anyone who is willing to challenge him,
              take him on, and then identifies that he is – in his individual
              participation challenges a rival or the target of this to
              basically function, exist, to his level. And then uses in
              several different ways … he’s not fearful of the repercussion.
              Identifies several times that he has a gun, will use a gun, and
              will go so far as to commit murder to benefit what it is that he
              stands for.

              “I mean, it’s clear based on my training and experience …
              [Botello] has made the choice to participate in the culture of
              A-Town Sureños and is willing to commit the most violent of
              offenses, murder at the direction of, furtherance of, benefit of
              A-Town Sureños.”
The prosecution later referenced the video multiple times in closing argument.
       The prosecution4 first stated Botello “said he was willing to kill for his gang, and
he did kill for his gang.” The prosecution then asked the jury to acknowledge Botello’s
“arrogance … and his disregard for human life.” Next, echoing the court’s jury

       4The Attorney General prosecuted this case. Two separate attorneys presented
the People’s closing and rebuttal arguments.


                                              6.
instructions, the prosecution reiterated “it would be improper … to find [Botello] guilty
just for being a gang member.” The prosecution argued the video supplied “motive” and
“answers the why in this case, and that, in turn, helps answer the who ….” Referencing
the lyrics, the prosecution finally concluded “[t]he shooter must have been willing to do
some dirty work for his gang. [Botello] said he was willing to kill for his gang and
shouted the name of his gang moments before the shooting.”
       B. The Trial Court Abused Its Discretion
       “[G]ang-related evidence ‘creates a risk the jury will improperly infer the
defendant has a criminal disposition’ and … such evidence should therefore ‘be carefully
scrutinized by trial courts.’ ” (People v. Mendez (2019) 7 Cal.5th 680, 691 (Mendez).)
“With certain exceptions not relevant here, Evidence Code section 1101, subdivision (a),
provides that ‘evidence of a person’s character’—whether in the form of an opinion,
evidence of reputation, or evidence of specific instances of conduct—‘is inadmissible
when offered to prove [the person’s] conduct on a specified occasion.’ This prohibition,
however, does not preclude ‘the admission of evidence that a person committed a crime,
civil wrong, or other act when relevant to prove some fact … other than [the person’s]
disposition to commit such an act,’ including ‘motive, opportunity, intent, preparation,
[or] plan.’ ” (People v. Valdez (2012) 55 Cal.4th 82, 129 (Valdez).)
       “Evidence Code section 352 provides that a court ‘in its discretion may exclude
evidence if its probative value is substantially outweighed by the probability that its
admission will (a) necessitate undue consumption of time or (b) create substantial danger
of undue prejudice, of confusing the issues, or of misleading the jury.’ We review a trial
court’s ruling under this section for abuse of discretion and will reverse a trial court's
exercise of discretion to admit evidence ‘only if “the probative value of the [evidence]
clearly is outweighed by [its] prejudicial effect.” [Citations.]’ ‘Prejudice for purposes of
Evidence Code section 352 means evidence that tends to evoke an emotional bias against
the defendant with very little effect on issues, not evidence that is probative of a

                                              7.
defendant’s guilt.’ ” (Valdez, supra, 55 Cal.4th at p. 133.) “The prejudicial effect of
evidence … may, of course, outweigh its probative value if it is merely cumulative
regarding an issue not reasonably subject to dispute.” (People v. Tran (2011) 51 Cal.4th
1040, 1049.)
       We find the court here abused its discretion for two reasons. First, the trial court,
without justification, “assume[d] [the lyrics] relate actual events ….” (People v.
Melendez (2016) 2 Cal.5th 1, 24 [excluding from evidence “mere[] rap lyrics” because no
reason to assume their truth].) “Absent some meaningful method to determine which
lyrics represent real versus made up events, or some persuasive basis to construe specific
lyrics literally, the probative value of lyrics as evidence of their literal truth is minimal.”
(People v. Coneal (2019) 41 Cal.App.5th 951, 968 (Coneal).) Reasonable people
“ ‘understand musical lyrics … as the figurative expressions which they are’ ” and such
lyrics “ ‘are not intended to be and should not be read literally on their face, nor judged
by a standard of prose oratory.’ ” (In re George T. (2004) 33 Cal.4th 620, 636-637
(George T.).)
       Under appropriate circumstances, lyrics may be “probative of their literal truth.
For example, where lyrics are written within a reasonable period of time before or after
the charged crime and bear a sufficient level of similarity to the charged crime, their
probative value as a statement of fact is increased. [Citations.] It may also be that lyrics
with sufficient corroboration from other evidence will have increased probative value.”
(Coneal, supra, 41 Cal.App.5th at p. 969, fn. omitted.)
       “We do not purport to provide an exhaustive list of factors that may increase the
probative value of lyrics as statements of literal fact or intent. It is sufficient that no such
factors were present here to increase the probative value of the rap lyrics as evidence” of
Botello’s gang association, identity, intent, and motive. (Coneal, supra, 41 Cal.App.5th
at p. 969.) To be sure, there was significant evidence to corroborate the gang association
referenced in the lyrics. More directly, this is not a case involving a song which projects

                                               8.
a pure fantasy. But this brings us to the second reason we conclude the court abused its
discretion: “[C]orroborating evidence … render[s] the lyrics cumulative.” (Ibid.)
       The lyrics in this case were cumulative to far more persuasive and probative gang-
related evidence. Botello himself admitted his gang membership. (See Arizona v.
Fulminate (1991) 499 U.S. 279, 296 [“A confession is like no other evidence. Indeed,
‘the defendant’s own confession is probably the most probative and damaging evidence
that can be admitted against him.’ ”].) Multiple eyewitnesses established the shooter was
associated with the A-Town gang. The same witnesses provided ample evidence the
shooting was gang-related.
       The gang expert’s opinions rested little on the lyrics. The expert witness generally
explained gang motives relative to fear, rivalry, and territory. The expert’s opinion that
the shooting was gang-related was not based on the lyrics. The opinion was instead
based on fear, rivalry, and territory motives.
       The expert’s opinion that Botello was “an A-Town gang member” was not based
on the lyrics. This opinion was instead based on Botello’s “associations,” “comments,”
“hand signs” displayed in several photographs, “statements,” “tattoos,” and various
clothing, firearms, and writings depicted in multiple photographs. The expert
summarized the photographs provided “several examples of … Botello identifying in
various ways, be it selfie-style pictures, writing in the frame of a text, which identify his
individual allegiance to Sureños, specifically A-Town Sureños.”5
       To support the video’s admissibility the People rely on People v. Olguin (1994)
31 Cal.App.4th 1355 (Olguin) and People v. Zepeda (2008) 167 Cal.App.4th 25
(Zepeda). We find these cases distinguishable.




       5As recounted above, the expert later, and separately, testified the rap video
impacted his opinion that Botello was a gang member.


                                              9.
       Olguin, supra, 31 Cal.App.4th 1355 does not discuss whether the rap lyrics were
cumulative to other evidence. The opinion found, on one hand, “[g]ang membership was
obviously important, and evidence tending to show it was highly relevant,” but is devoid
of any discussion on the other hand establishing the appellant’s gang membership—
apparently the lyrics there were the most probative evidence of gang membership. (Id. at
p. 1373.) The opinion predates by ten years George T., supra, 33 Cal.4th 620 which
expressed a general presumption against assuming a lyric’s truth. In any event, the lyrics
in Olguin, supra, themselves were self-corroborating. (Olguin, supra, 31 Cal.App.4th at
p. 1375, fn. 5 [“I’m wanted by the D.A. for committing a crime.”].) For these reasons we
find Olguin, supra, distinguishable.
       Zepeda, supra, is distinguishable because the court there found the lyrics
“provided noncumulative evidence of defendant’s state of mind and his gang association
differing in context from his tattoos, drawings, notebook, and pictures of himself flashing
gang signs.” (Zepeda, supra, 167 Cal.App.4th at p. 35.) The court concluded the “lyrics,
coupled with the other evidence of defendant’s gang membership and his animosity
towards Sureños, go beyond mere fiction to disclosing defendant’s state of mind, his
motives and intentions, and his fealty to furthering his criminal gang’s activities.” (Ibid.)
We find no such “noncumulative evidence” in this case. For example, unlike Botello, the
defendant in Zepeda did not confess his gang membership.
       We do not suggest a defendant’s admission to gang membership renders all other
evidence establishing gang membership cumulative. But there is a line to be drawn in
each case depending on the facts in each case. That line is not always clear—in fact, it is
often blurry—hence the abuse of discretion standard. We simply find the evidence here
clearly crossed even a blurry line.
       In sum, the “probative value of [the] lyrics as evidence of their literal truth [was]
minimal.” (Coneal, supra, 41 Cal.App.5th at p. 968.) The evidence corroborating the
video’s violent expressions was scant. The probability of prejudice was dangerously

                                             10.
high. The expert, believing the lyrics were true, testified the rap song established
Botello’s gang membership and willingness to murder despite no rational basis for this
belief.6 That irrational belief is the exact prejudice section 352 seeks to avoid. Trial
courts must “ ‘carefully scrutinize[]’ ” gang-related evidence because of the “ ‘risk the
jury will improperly infer the defendant has a criminal disposition ….’ ” (Mendez, supra,
7 Cal.5th at p. 691.)
       The lyrics themselves were entirely cumulative to other evidence and were
meaningless in contrast to evidence describing general gang-related motives and themes,
the gang’s “consistent[] and repeated[]” commission of violent assaults and murders, and
Botello’s self-admitted gang membership. The “ ‘prosecution has no right to present
cumulative evidence which creates a substantial danger of undue prejudice to the
defendant.’ ” (People v. Cardenas (1982) 31 Cal.3d 897, 905.) Accordingly, we find the
trial court abused its discretion by admitting the audio and lyrics in evidence.7 We turn
next to examine the prejudice.
       C. The Erroneously Admitted Evidence Was Harmless
       “When evidence is erroneously admitted, we do not reverse a conviction unless it
is reasonably probable that a result more favorable to the defendant would have occurred
absent the error.” (People v. Powell (2018) 5 Cal.5th 921, 951.) Applying that standard
leads us to conclude the error here was harmless.



       6  Our decision finding an abuse of discretion is not based on testimony presented
at trial. We find an abuse of discretion because the lyrics were cumulative to other
evidence and the high probability the jury would conflate Botello’s expressed penchant to
commit gang-related murders with a general propensity to murder. The expert’s
testimony simply ignited this probability. Courts must carefully weigh gang-related
evidence because a gang-related motive to commit nonspecific crimes blurs the line
between motive and propensity. (See Mendez, supra, 7 Cal.5th at p. 691.)
       7We note that our conclusion is that the audio and lyrics, not the video itself, were
unduly prejudicial.


                                             11.
       Multiple eyewitnesses in this case described the shooter as wearing a white
Raiders jersey. Two eyewitnesses identified Botello’s presence at the party—one
specifically identified him as the shooter. The other eyewitness placed Botello at the
shooting but was unclear as to his role. All eyewitness accounts corroborated each other
and established two individuals associated with the A-Town gang, one wearing a Raiders
jersey, snuck into the party, confronted the victims, and then fired multiple gunshots.
       Botello’s admission to A-Town gang membership and wearing a white Raiders
jersey to the party materially and substantially corroborated the eyewitnesses. In short,
the evidence painted one picture: Botello was the shooter. Because the rap lyrics were
unnecessary to paint that picture, there is no reasonable probability for a more favorable
result absent the error. We reject his contrary claim.
II. The Eighth Amendment Commands Strict Compliance for Juvenile Life Without
Parole Sentencing; the Sentence is Vacated and We Remand for a New Sentencing
Hearing
       Botello believes the trial court abused its discretion in sentencing him to serve life
without parole in prison. Specifically, he contends “the trial court failed to recognize and
apply the correct legal standard to its [sentencing] decision.” He further asserts trial
courts must find “irreparable corruption resulting in permanent incorrigibility” prior to
imposing life without parole sentences on juvenile offenders.
       The People only argue section 3051, subdivision (b)(4), which affords juveniles
sentenced to life without parole an opportunity to parole after incarceration for 25 years,
moots his contention. Before we address the issues, we provide a brief overview to frame
them in context.
       The United States Supreme Court confronted mandatory life without parole
sentences for juveniles in Miller v. Alabama (2012) 567 U.S. 460 (Miller). The Court
held the Eighth Amendment demands “individualized sentencing … before imposing the
harshest possible penalty for juveniles.” (Id. at p. 489.) By “tak[ing] into account how

                                             12.
children are different, and how those differences counsel against irrevocably sentencing
them to a lifetime in prison,” individualized sentencing “distinguish[es] … between ‘the
juvenile offender whose crime reflects unfortunate yet transient immaturity, and the rare
juvenile offender whose crime reflects irreparable corruption.’ ” (Id. at pp. 479-480.)
       In Montgomery v. Louisiana (2016) 577 U.S. __ [136 S.Ct. 718] (Montgomery),
the Court held Miller, supra, 567 U.S. 460 applied retroactively. Retroactivity, however,
“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 by resentencing them.” (Montgomery, supra, 577 U.S. at p. __ [136 S.Ct. at
p. 736].)
       As a result, California enacted section 3051, subdivision (b)(4). This statute
“avoid[s] the Miller issues associated with” sentences pronounced prior to Miller. (In re
Kirchner (2017) 2 Cal.5th 1040, 1054-1055.)
       Our analysis proceeds in the following manner: First, we determine section 3051,
subdivision (b)(4), does not moot Botello’s abuse of discretion claim. Next, we examine
and illuminate the transient immaturity versus irreparable corruption legal standard
applicable to juvenile life without parole sentencing. We conclude, to faithfully apply
this deeply rooted in the Eighth Amendment sentencing standard, a trial court must
affirmatively and expressly find the circumstances justify imposing a life without parole
sentence upon a juvenile offender.
       Finally, we vacate Botello’s sentence because we cannot determine from the
record whether the trial court applied the correct sentencing standard. Miller and
Montgomery demand clear answers to complex questions. Mindful of this dichotomy, we
will offer some general guidance to promote clear answers in our trial courts.




                                            13.
       A. The Abuse of Discretion Claim is not Moot
       Botello argues his abuse of discretion claim is not moot for two reasons. First, a
life without parole sentence triggers “disadvantageous collateral consequences.” (See
People v. DeLeon (2017) 3 Cal.5th 640, 645-646.) He identifies in his briefing several
such consequences including access to “rehabilitative programs,” “severe movement and
time-of-day restrictions,” limited access to vocational training which in turn limits the
ability to demonstrate parole suitability, “hous[ing]” accommodations, and denial of
“compassionate medical release ….” (See generally Cal. Code Regs., tit. 15, § 3375 et
seq.; People v. Scott (2016) 3 Cal.App.5th 1265, 1273-1274 [“LWOP prisoners are, for
example, foreclosed from vocational training or other programs and rehabilitative
services that are available to other prisoners.”].)
       Second, Botello correctly points out that the sentences underlying section 3051’s
protections “remain valid” because those protections are designed to avoid “the Miller
issues associated with the earlier sentences.” (In re Cook (2019) 7 Cal.5th 439, 448-449
[§ 3051, subd. (b)(4) enacted to implement Montgomery and Miller].) He argues that
(1) if the underlying sentences “remain valid,” and (2) if section 3051 is aimed at
juvenile offenders sentenced before Miller, then he is entitled to a validly imposed
sentence because section 3051 is not designed to protect against his life without parole
sentence. In other words, if section 3051 is amended or repealed in the future, then he
must serve life without parole because his sentence remains valid.
       The People argue the exact opposite, i.e., section 3051 moots this claim. The
People are incorrect. Section 3051, subdivision (b)(4), moots a constitutional challenge
to a life without parole sentence. (People v. Franklin (2016) 63 Cal.4th 261, 286
(Franklin) [“Franklin’s Eighth Amendment challenge to his original sentence has been
rendered moot.”].) It does not moot Botello’s abuse of discretion challenge.
       In general, courts must decide only “ ‘ “actual controversies by a judgment which
can be carried into effect ….” ’ ” (In re Arroyo (2019) 37 Cal.App.5th 727, 732

                                              14.
(Arroyo).) Courts may not “ ‘ “give opinions upon moot questions or abstract
propositions, or … declare principles or rules of law which cannot affect the matter in
issue in the case before it.” ’ ” (Ibid.) “ ‘ “[A] case becomes moot when a court ruling
can have no practical impact or cannot provide … effect[ive] relief.” ’ ” (Ibid.)
          The question presented here is not moot for two reasons. First, an ultimate
sentence less than life without parole would ameliorate Botello’s concern with
“disadvantageous collateral consequences.”
          Second, ensuring that sentences are constitutionally imposed in the first instance
protects against any future modification to section 3051’s applicability to juveniles in
Botello’s position, i.e., juveniles sentenced to life without parole after Miller, supra.8
The People’s argument allows trial courts to entirely ignore Miller, supra, 567 U.S. 460
and instead allow the Legislature to mete justice. Such a position is untenable. We turn
next to the merits.
          B. The Irreparable Corruption and Permanent Incorrigibility Standard
          To help appreciate and understand the true sentencing standard we first recite
recent juvenile Eighth Amendment precedent. “The Eighth Amendment prohibition on
cruel and unusual punishment ‘guarantees individuals the right not to be subjected to
excessive sanctions.’ ” (Franklin, supra, 63 Cal.4th at p. 273.) “This prohibition
encompasses the ‘foundational principle’ that the ‘imposition of a State’s most severe
penalties on juvenile offenders cannot proceed as though they were not children.’ ”
(Ibid.)
          The United States Supreme Court squarely addressed life without parole sentences
for juvenile homicide offenders in Miller, supra, 567 U.S. 460. “Because juveniles have


         We do not decide whether modifying or rescinding section 3051’s protections
          8
would violate the Constitution. That question is not ripe for decision. We simply note
Botello’s argument presents an “ ‘ “actual controvers[y]” ’ ” in which our ruling can
“ ‘ “provide … effect[ive] relief.” ’ ” (Arroyo, supra, 37 Cal.App.5th at p. 732.)


                                               15.
diminished culpability and greater prospects for reform, … ‘they are less deserving of the
most severe punishments.’ ” (Id. at p. 471.)
       “[C]hildren have a ‘ “lack of maturity and an underdeveloped sense of
responsibility,” ’ leading to recklessness, impulsivity, and heedless risk-taking.
[Citation.] … [C]hildren ‘are more vulnerable … to negative influences and outside
pressures,’ including from their family and peers; they have limited ‘contro[l] over their
own environment’ and lack the ability to extricate themselves from horrific, crime-
producing settings.” (Miller, supra, 567 U.S. at p. 471.) A child’s “traits are ‘less fixed’
and his [or her] actions less likely to be ‘evidence of irretrievabl[e] deprav[ity].” (Ibid.)
       “[T]he distinctive attributes of youth diminish the penological justifications for
imposing the harshest sentences on juvenile offenders, even when they commit terrible
crimes. Because ‘ “[t]he heart of the retribution rationale” ’ relates to an offender’s
blameworthiness, ‘ “the case for retribution is not as strong with a minor as with an
adult.” ’ [Citations.] Nor can deterrence do the work in this context, because ‘ “the same
characteristics that render juveniles less culpable than adults” ’—their immaturity,
recklessness, and impetuosity—make them less likely to consider potential punishment.
[Citation.] … Deciding that a ‘juvenile offender forever will be a danger to society’
would require ‘mak[ing] a judgment that [he or she] is incorrigible’—but
‘ “incorrigibility is inconsistent with youth.” ’ ” (Miller, supra, 567 U.S. at pp. 472-473.)
       “[F]or the same reason, rehabilitation could not justify that sentence. Life without
parole ‘forswears altogether the rehabilitative ideal.’ [Citation]. It reflects ‘an
irrevocable judgment about [an offender’s] value and place in society,’ at odds with a
child’s capacity for change.” (Miller, supra, 567 U.S. at p. 473.)
       “Life-without-parole terms … ‘share some characteristics with death sentences
that are shared by no other sentences.’ [Citation.] Imprisoning an offender until he dies
alters the remainder of his life ‘by a forfeiture that is irrevocable.’ [Citation.] And this
lengthiest possible incarceration is an ‘especially harsh punishment for a juvenile,’

                                             16.
because he [or she] will almost inevitably serve ‘more years and a greater percentage of
his [or her] life in prison than an adult offender.’ [Citation.] The penalty when imposed
on a teenager, as compared with an older person, is therefore ‘the same … in name
only.’ ” (Miller, supra, 567 U.S. at pp. 474-475.) For this reason, “this ultimate penalty
for juveniles [i]s akin to the death penalty ….”9 (Id. at p. 475.)
       For these reasons, the Court required “a sentencer” to consider youth “and its
hallmark features” prior to imposing life without parole on a juvenile offender. (Miller,
supra, 567 U.S. at pp. 476-480.) The Court broadly identified five categories or factors
to consider: (1) “immaturity, impetuosity, and failure to appreciate risks and
consequences.”; (2) “family and home environment that surrounds him [or her]—and
from which [a juvenile] cannot usually extricate himself [or herself]”; (3) “the
circumstances of the homicide offense, including the extent of … participation in the
conduct and the way familial and peer pressures may have” contributed; (4) how
“incompetencies associated with youth” may have impacted the charges and convictions;
and (5) “the possibility of rehabilitation.” (Id. at pp. 477-478.)
       “But given … children’s diminished culpability and heightened capacity for
change,” the Court concluded “appropriate occasions for sentencing juveniles to this
harshest possible penalty will be uncommon. That is especially so because of the great
difficulty … of distinguishing at this early age between ‘the juvenile offender whose crime
reflects unfortunate yet transient immaturity, and the rare juvenile offender whose crime
reflects irreparable corruption.’ … [W}e do not foreclose a sentencer’s ability to make
that judgment in homicide cases, [but] we require it to take into account how children are
different, and how those differences counsel against irrevocably sentencing them to a



       9Life without parole is the “ultimate penalty for juveniles” because “no individual
may be executed for an offense committed when he or she was a juvenile ….” (Franklin,
supra, 63 Cal.4th at p. 274.)


                                             17.
lifetime in prison.” (Miller, supra, 567 U.S. at pp. 479-480, fn. omitted, emphasis
added.)
       In Montgomery, supra, 577 U.S. __ [136 S.Ct. 718], the Court explained that
“Miller … did more than require a sentencer to consider a juvenile offender’s youth
before imposing life without parole; it established that the penological justifications for
life without parole collapse in light of ‘the distinctive attributes of youth.’ [Citation.]
Even if a court considers a child’s age before sentencing him or her to a lifetime in
prison, that sentence still violates the Eighth Amendment for a child whose crime reflects
‘ “unfortunate yet transient immaturity.” ’ [Citation.] Because Miller determined that
sentencing a child to life without parole is excessive for all but ‘ “the rare juvenile
offender whose crime reflects irreparable corruption,” ’ [citation], it rendered life without
parole an unconstitutional penalty for ‘a class of defendants because of their status’—that
is, juvenile offenders whose crimes reflect the transient immaturity of youth.” (Id. at
p. __ [136 S.Ct. at p. 734], emphasis added.)
       In sum, “Miller did bar life without parole … for all but the rarest of juvenile
offenders, those whose crimes reflect permanent incorrigibility.” (Montgomery, supra,
577 U.S. at p. __ [136 S.Ct. at p. 734].) “Before Miller, every juvenile convicted of a
homicide offense could be sentenced to life without parole. After Miller, it will be the
rare juvenile offender who can receive that same sentence.” (Ibid.) “The question is
whether [a juvenile offender] can be deemed, at the time of sentencing, to be irreparably
corrupt, beyond redemption, and thus unfit ever to reenter society, notwithstanding the
‘diminished culpability and greater prospects for reform’ that ordinarily distinguish
juveniles from adults.” (People v. Gutierrez (2014) 58 Cal.4th 1354, 1391.)
       Distinguishing between juvenile offenders “whose crimes reflect transient
immaturity and those rare children whose crimes reflect irreparable corruption” or
“permanent incorrigibility” is constitutionally imperative. (Montgomery, supra, 577 U.S.
at p. __ [136 S.Ct. at p. 734].) To properly implement this constitutional mandate, we

                                              18.
conclude trial court judges must expressly find “irreparable corruption” or “permanent
incorrigibility” prior to imposing life without parole sentences upon juvenile offenders.
(Ibid.; People v. Padilla (2016) 4 Cal.App.5th 656, 673 (Padilla) [“trial court must assess
the Miller factors with an eye to making an express determination whether the juvenile
offender’s crime reflects permanent incorrigibility arising from irreparable corruption.”].)
       While the People do not directly address the question underlying our conclusion,
Botello identifies two cases potentially at odds with our conclusion. These cases merit
discussion.
       First, in People v. Palafox (2014) 231 Cal.App.4th 68, this court upheld a
juvenile’s life without parole sentence where the trial court “implicitly concluded
defendant was unfit ever to reenter society.” (Id. at p. 91.) The Palafox opinion relied
heavily on the fact the Miller court declined to hold “LWOP categorically
unconstitutional for juvenile offenders, or at least … [declined to] explicitly [announce]
such a sentence cannot constitutionally stand in [the] face of a potential for
rehabilitation.” (Palafox, at p. 90.) This basis predates, and is directly at odds with,
Montgomery’s explication that “Miller did bar life without parole … for all but the rarest
of juvenile offenders, those whose crimes reflect permanent incorrigibility.”
(Montgomery, supra, 577 U.S. at p. __ [136 S.Ct. at p. 734].)
       The next case, People v. Blackwell (2016) 3 Cal.App.5th 166, held a judge may
sentence a juvenile to life without parole in prison without violating the Sixth
Amendment right to trial by jury. (Id. at pp. 186-188; see generally Apprendi v. New
Jersey (2000) 530 U.S. 466 [explaining right to jury trial as it relates to sentencing].)
Blackwell further concluded Miller did “not require a finding of fact regarding a child’s
incorrigibility or irrevocable corruption.” (Blackwell, at p. 192.) In so concluding,
Blackwell declares “ ‘irreparable corruption’ is not a factual finding, [it] merely
‘encapsulates the [absence] of youth-based mitigation.’ ” (Ibid.)



                                             19.
       We respectfully disagree. Miller’s paradigmatic approach encapsulates much
more than youth-based mitigation. (Montgomery, supra, 577 U.S. at p. __ [136 S.Ct. at
p. 734].) The Court clearly announced, “Even if a court considers a child’s age before
sentencing him or her to a lifetime in prison, that sentence still violates the Eighth
Amendment for a child whose crime reflects ‘ “unfortunate yet transient immaturity.” ’ ”
(Ibid., emphasis added.) “Miller did not merely impose an ‘individualized sentencing
requirement’; it imposed a substantive rule that life without parole is only an appropriate
punishment for ‘the rare juvenile offender whose crime reflects irreparable corruption.’ ”
(Adams v. Alabama (2016) 136 S. Ct. 1796, 1799, Sotomayor, J. concurring in decision
to grant writ, vacate judgment, and remand case, quoting Montgomery, supra; Padilla,
supra, 4 Cal.App.5th at p. 673, fn. 7.) Blackwell’s “youth-based mitigation” metric is
irreconcilable with Montgomery.
       We acknowledge Miller itself did not impose a formal factfinding requirement.
(Montgomery, supra, 136 S. Ct. at p. 735.) But the Supreme Court specifically declined
to impose such a finding out of “[f]idelity to … federalism ….” (Ibid.) The “Court [was]
careful to limit the scope of any attendant procedural requirement [to its Eighth
Amendment holding] to avoid intruding more than necessary upon the States’ sovereign
administration of their criminal justice systems.” (Ibid.) “That Miller did not impose a
formal factfinding requirement does not leave States free to sentence a child whose crime
reflects transient immaturity to life without parole. To the contrary, Miller established
that this punishment is disproportionate under the Eighth Amendment.” (Ibid.) For these
reasons, we maintain a formal finding is necessary to faithfully administer Miller and
Montgomery.
       Three reasons underpin our conclusion. First, a formal finding ensures
compliance with the rigorous Eighth Amendment standards pronounced by the United
States Supreme Court. Second, requiring trial courts to state their logic on the record
imposes no additional burden because they are already required to determine “at the time

                                             20.
of sentencing [whether a juvenile offender is] irreparably corrupt, beyond redemption,
and thus unfit ever to reenter society” prior to sentencing a juvenile offender to life
without parole. (Gutierrez, supra, 58 Cal.4th at p. 1391.) There is simply no reason to
permit implicit compliance. There is, however, a vital reason to demand express
compliance, which brings us to our third reason.
       A formal finding of irreparable corruption or permanent incorrigibility guarantees
meaningful appellate review. (See People v. Elliott (2012) 53 Cal.4th 535, 595 [“Under
the due process and equal protection clauses of the federal Constitution’s Fourteenth
Amendment, and under state law, a criminal defendant is entitled to an appellate record
that is ‘sufficient to permit adequate and effective appellate review.’ ”].) The pronounced
judgment in this case amply illustrates the need for detailed, explicit, and precise
sentencing in the juvenile life without parole context.
       C. Applying Miller and Montgomery to This Case
       To recap, Botello argues the trial court “failed to recognize and apply the correct
legal standard to its discretion.” The People simply argue the issue is moot and do not
directly address the point other than to note “the court considered the youth-related
factors set forth in Miller, [and] was unwilling to decide whether Botello’s murders …
showed irreparable corruption.” The record leaves us unable to determine if the court
applied the correct legal standard. Accordingly, we will vacate the sentence.
              i. Additional Background
       The court commenced the sentencing hearing by acknowledging “the top end of
the sentence is sentenced to life without the possibility of parole. Based on the special
circumstances, the Court has discretion with respect to various other alternatives.”
       Botello’s attorney then informed the court they would like to submit a transcript of
the juvenile court transfer hearing testimony to aid in Botello’s eventual Penal Code




                                             21.
section 3051 parole hearing.10 That transcript contained no less than four direct
expressions that Botello “is probably going to be successful in treatment or
rehabilitation.”11
       Next, the prosecution, after presenting two emotionally powerful victim impact
statements, argued “[t]his was an execution.” Referring to the rap video, the prosecution
stated, “the video clearly shows [Botello] for what he is…. There is not one hint of
remorse in that video for taking two innocent human lives. If anything, the defendant
brags, talks about killing, and this is after he’s already committed these callous crimes.”
       While recognizing section 3051’s applicability to the ultimate outcome, the
prosecution concluded, “Nonetheless, it’s the role of this Court, as the Court knows,
regardless of what the [L]egislature decrees is going to happen in the future, it’s the role
of this Court to today to impose a just sentence. And the People would urge this Court
that in this case … the maximum sentence is the appropriate sentence.”
       Botello’s attorney asked “the Court to use its discretion” and acknowledged the
court “does not have to sentence Mr. Botello to life without parole.” The attorney urged
the court “to consider something other than life without parole.”
       In pronouncing judgment, the trial court stated,

                “I have considered Mr. Botello’s age at the time the crime
                was committed. He was just three or four months shy of
                18 years of age. …




       10   The juvenile court judge was not the trial court judge.
       11 The record does not indicate the trial court read the transcript or was otherwise
aware of its content prior to pronouncing judgment. We note this testimony not because
we find it determinative—credibility and weight are for the trial court to determine—but
rather because it indicates the court did not fully engage in the process Miller and
Montgomery elucidate.


                                              22.
              “Now the only information I have about his family
              environment is nothing significant. … There was no father
              influence in his upbringing, at least that the Court is aware of.

              “And then I focus on the nature of these offenses. These were
              two murders that were callous, calculated, and, I agree with
              the prosecution, that it amounted to an execution …

              [¶] … [¶]

              “So those are the comments that I have regarding Mr. Botello
              with respect to his future.

              “As to whether or not he can rehabilitate, I just can’t make
              that prediction for anyone. You know, people can change,
              but – so to make that prediction today, I think, is unfair. The
              parole board should have to make that assessment after 25
              years of imprisonment.

              “But I do make the comments about the nature of this offense
              and the circumstances on which it occurred and the
              glorification that he made of it in his rap video.”
The court subsequently imposed two consecutive life without parole sentences.
                     ii. Analysis
       “ ‘Defendants are entitled to sentencing decisions made in the exercise of the
“informed discretion” of the sentencing court.’ ” (Gutierrez, supra, 58 Cal.4th at
p. 1391.) “[A]n abuse of discretion arises if the trial court based its decision on
impermissible factors [citation] or on an incorrect legal standard.” (People v. Knoller
(2007) 41 Cal.4th 139, 156.) “ ‘ “Failure to exercise a discretion conferred and
compelled by law constitutes a denial of a fair hearing and a deprivation of fundamental
procedural rights, and thus requires reversal.” ’ ” (People v. Leon (2016)
243 Cal.App.4th 1003, 1023 (Leon).) “[T]he appropriate remedy is to remand for
resentencing unless the record ‘clearly indicate[s]’ that the trial court would have reached




                                             23.
the same conclusion” had it faithfully discharged its duty. (Gutierrez, supra, 58 Cal.4th
at p. 1391.)
       Unfortunately, we are unable to determine whether the trial court properly applied
Miller and Montgomery. The record undoubtedly demonstrates the court was aware of its
discretion to impose a sentence other than life without parole. The court clearly
considered Botello’s age and certainly felt the circumstances of the offense were
egregious. But “[t]he record in this case does not reflect that the sentencing court ever
considered ‘the ultimate question posed by the courts in both Miller and Gutierrez, ...:
Did th[is] crime[ ] reflect transient immaturity or irreparable corruption?’ ” (In re Berg
(2016) 247 Cal.App.4th 418, 431 (Berg).) The record contains no clear indication the
court “deemed [Botello], at the time of sentencing, to be irreparably corrupt, beyond
redemption, and thus unfit ever to reenter society, notwithstanding the ‘diminished
culpability and greater prospects for reform’ that ordinarily distinguish juveniles from
adults.” (Gutierrez, supra, 58 Cal.4th at p. 1391.)
       To the contrary, the court specifically stated, “whether or not he can rehabilitate, I
just can’t make that prediction for anyone. You know, people can change, but – so to
make that prediction today, I think, is unfair.” It is unclear whether the court’s comment
is addressing a singular factor for consideration or whether the court is declining to
answer the ultimate question. On one hand the statement strongly indicates, as the People
put it, the court “was unwilling to decide whether Botello’s murders … showed
irreparable corruption.” The statement is also, on the other hand, conceivably consistent
with a less than artful articulation that Botello is irreparably corrupt while simultaneously
acknowledging a philosophical or theoretical principle that “people can change ….”12

       12 As noted, the record contains direct testimony relating to Botello’s rehabilitative
prospects. The record does not indicate the sentencing court engaged this testimony.
Again, it is for the trial court, not this court, to assess the testimony’s credibility and
weight. We sympathize with the trial court expressing its frustration and acknowledge
the “great difficulty … of distinguishing at this early age between ‘the juvenile offender

                                             24.
       This record leaves us unable to conclude “that the trial court would have
[impos]ed the same” sentence had it diligently applied Miller and Montgomery.
(Gutierrez, supra, 58 Cal.4th at p. 1391.) Consequently, we will remand for
resentencing.
       D. Considerations Moving Forward
       Like both the trial court here and the United States Supreme Court, we recognize
the “great difficulty” these sentencing decisions present. (Miller, supra, 567 U.S. at
p. 479.) To help ease this difficulty, we offer a few suggestions and highlight a few tools
to assist trial courts. By no means are these suggestions or tools comprehensive or
exclusive.
       In each case the trial court will have at its disposal “the probation officer[’s] …
report on the behavioral patterns and social history of the” juvenile offender. (Welf. &
Inst. Code, § 707, subd. (a)(2).) The court will also have at its disposal the “probation
officer[’s] … report … upon the circumstances surrounding the crime and the prior
history and record of the” juvenile offender. (§ 1203, subd. (b)(1).) These reports will
provide some insight into two fruitful and important areas: Prior rehabilitative efforts and
social structure.
       Prior rehabilitative efforts may present in two ways. First, juvenile and criminal
history may disclose an individual’s previous success in completing rehabilitative


whose crime reflects unfortunate yet transient immaturity, and the rare juvenile offender
whose crime reflects irreparable corruption.’ ” (Miller, supra, 567 U.S. at p. 480.) For
this exact reason the Court believed such sentences would be “rare” and “uncommon.”
(Ibid.)
Nonetheless, trial courts may not refuse to comply with Miller and Montgomery by
instead asking “[t]he parole board … to make that assessment after 25 years of
imprisonment.” Indeed, such a refusal is incompatible with precedent because juvenile
offenders are entitled to a validly imposed sentence “at the outset.” (Gutierrez, supra,
58 Cal.4th at pp. 1386-1387.)



                                             25.
programs. Of course, repeated delinquency and criminality, and any escalating behavior,
might reveal prior success failed to bear actual fruit. Second, the absence of any history
is itself evidence of rehabilitative potential. The proper inference in any given case is
appropriately left to the trial court’s sound discretion.
       An individual’s social structure may shed light on the potential for rehabilitation.
A court might find a strong social structure signals a higher chance for rehabilitation. For
example, actively involved parents, siblings, and friends may improve an offender’s
prospects. The absence of such a structure may reduce such prospects or, on the other
hand, indicate transient immaturity. Again, the appropriate inference is for the trial court
to determine.
       Of course, we strongly emphasize potential inferences are simple to state but in
reality highly complex to correctly identify. To this end, expert testimony presented on
the issue of potential rehabilitation may prove valuable. Such expert testimony may be
presented by the People, the juvenile offender, or both. The court itself may find expert
testimony necessary to aid its ultimate decision. The court may, in the absence of or in
addition to any expert testimony on the topic, appoint an expert to conduct a specific
evaluation. (People v. Stuckey (2009) 175 Cal.App.4th 898, 913 [“the court always has
the power to appoint its own experts to assist the court, if the need arises.”]; Rutherford v.
Owens-Illinois, Inc. (1997) 16 Cal.4th 953, 967 [describing a court’s inherent powers].)
       A court may also find it appropriate “that a just disposition of the case requires
such diagnosis and treatment services as can be provided at a diagnostic facility of the
Department of Corrections, may order that defendant be placed temporarily in such
facility for a period not to exceed 90 days, with the further provision in such order that
the Director of the Department of Corrections report to the court his diagnosis and
recommendations concerning the defendant within the 90-day period.” (§ 1203.03,
subd. (a).) Then, “[t]he Director of the Department of Corrections shall, within the 90
days, cause defendant to be observed and examined and shall forward to the court his

                                              26.
diagnosis and recommendation concerning the disposition of defendant’s case. Such
diagnosis and recommendation shall be embodied in a written report ….” (Id., at
subd. (b).)
       Courts should also consider evidence evincing remorse or lack thereof. Lack of
remorse in one case might rightfully favor incorrigibility, and in another case it might
indicate transient immaturity. Again, the appropriate inference is best left to the trial
court’s sound discretion.
       Finally, courts should consider evidence of actual rehabilitation. Actual, self
reflective rehabilitative efforts are important. This is especially true when several years
have passed between the crime and the sentencing hearing. This may occur due to delays
within the criminal justice system, or delays in establishing the juvenile offender’s
identity.
       In either situation, but especially the latter, courts should carefully note the
juvenile offender’s education, rehabilitative efforts, and work history as it relates to his or
her future prospects. The court should also consider whether the juvenile offender has
children or a partner or spouse. These circumstances may signal rehabilitative potential.
       Our hope is that trial courts may find these suggestions beneficial. We reiterate
these suggestions are by no means comprehensive or exclusive. In an adversarial system,
the possibilities are curtailed only by the limits of imagination.
                                      CONCLUSION
       Commitment to the Eighth Amendment cannot rest on beleaguered attempts to
reconstruct a potentially implicit rationale underlying life without parole sentences. We
cannot divine a court’s logic or reason if we are unsure what question, if any, the court is
answering. Permitting implied compliance with this constitutional mandate invites
unwarranted conjecture and hypothesis into “ ‘an irrevocable judgment about [a juvenile
offender’s] value and place in society ….’ ” (Miller, supra, 567 U.S. at p. 473.) Because



                                              27.
such judgments are “akin to the death penalty,” the stakes are too high for assumptions.
(Id. at p. 475.)
       Explicit compliance with Miller and Montgomery precludes speculation and
promotes judicial economy by facilitating meaningful appellate review. The appropriate
remedy here is to vacate the sentence and remand to the trial court for a clear and
reasoned pronouncement of judgment, including an express answer to “the ultimate
question posed by the courts in both Miller and Gutierrez, ...: Did th[ese] crime[s] reflect
transient immaturity or irreparable corruption?” (Berg, supra, 247 Cal.App.4th at p. 431;
Gutierrez, supra, 58 Cal.4th at p. 1391; Padilla, supra, 4 Cal.App.5th at p. 673.)
                                      DISPOSITION
       The judgment is reversed. We remand to the trial court to conduct a new
sentencing hearing in explicit compliance with Miller, Montgomery, and this opinion.13



                                                                 _____________________
                                                                          SNAUFFER, J.
WE CONCUR:


 _____________________
FRANSON, Acting P.J.


 _____________________
SMITH, J.




       13 We note the trial court failed to award custody credits at sentencing. The
abstract of judgment mirrored this failure. Any subsequently pronounced judgment shall
appropriately award custody credits.


                                            28.
