People v. Russell CA1/1

Filed 3/27/25 P. v. Russell CA1/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE, Plaintiff and Respondent, A169598 v. DION MARZELL RUSSELL, (Contra Costa County Super. Ct. No. 5-101075-0) Defendant and Appellant.

Defendant Dion Marzell Russell appeals from a resentencing in which the trial court imposed the upper terms on three convictions for an aggregate prison term of 22 years. The parties agree the trial court erred in imposing the upper terms in violation of Penal Code1 section 1170, subdivision (b) (section 1170(b)). They dispute whether the error was prejudicial. We conclude it was and, accordingly, we vacate the sentence and remand for a full resentencing.

1 Undesignated statutory references are to the Penal Code.

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I. BACKGROUND According to evidence presented at the preliminary hearing,2 in March 2009, Jane Doe 1, then nine years old, told police and forensic interviewers that Russell, her father, had placed his penis into her butt twice while she was sleeping in the living room. He put his hand over her mouth to stop her from screaming. A separate victim, Jane Doe 2, told police that in January 2008, she was in her apartment and Russell came up behind her, pulled down her pants, put his hands on her butt, and grabbed her around the neck. He took her cell phone. Jane Doe 2 was in her forties but described herself as being “ ‘slow.’ ” In 2014, Russell pleaded no contest to two counts of a lewd act involving force or fear on a child under 14 years old (§ 288, subd. (b); counts four and five) and one count of residential burglary (§§ 459, 460, subd. (a); count six). The offenses in counts four and five were committed against Jane Doe 1 and the count six offense was committed against Jane Doe 2. Russell also admitted a one-year prison prior (§ 667.5, subd. (b)). The trial court sentenced Russell to a total prison term of 23 years, comprised of the upper term of eight years for each lewd act conviction, the upper term of six years for the burglary conviction, and one year for the prison prior enhancement. Later, Russell became eligible for resentencing under Senate Bill No. 483 (2021–2022 Reg. Sess.), which added section 1172.75 to the Penal Code, invalidating most prison prior enhancements imposed before January