Filed 11/25/20 P. v. Jones CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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
SIXTH APPELLATE DISTRICT
THE PEOPLE, H046461
(Santa Clara County
Plaintiff and Respondent, Super. Ct. No. C1760945)
v.
MERLIN SYLVESTER JONES,
Defendant and Appellant.
Merlin Sylvester Jones was convicted following a jury trial of attempted second
degree robbery (Pen. Code, §§ 211 & 664),1 assault with a semiautomatic firearm (§ 245,
subd. (b)), and possession of a firearm as a felon (§ 29800, subd. (a)(1)). Jones admitted
that he had been convicted of a prior strike offense (§§ 667 (b)-(i)/1170.12), and a prior
serious felony (§ 667, subd. (a)).
The trial court ordered Jones to pay a $120 court operations fee (§ 1465.8), a $90
court facilities fee (Gov. Code, § 70373), a $129.75 criminal justice administration fee
(Gov. Code, § 29550.2. subd. (a)),2 a $1,000 restitution fine (§ 1202.4, subd. (b)) and
1
All subsequent unspecified statutory references are to the Penal Code.
2
In his opening brief, Jones represents that the criminal justice administrative fee
was imposed pursuant to Government Code section 29550.2, subdivision (a). The
reporter’s transcript of the sentencing hearing indicates the court imposed a fee of
“$129.75 pursuant to Government Code sections 29550, 29550.1, and 29550.2,” and the
minute order and abstract of judgment are silent as the specific section of the Government
Code that was applied in this case. While the criminal justice administration fee can only
be imposed under one of the three sections of the Government Code cited by the trial
stayed a corresponding $1,000 section 1202.45 parole revocation restitution fine, in
addition to a prison term.
Jones asserts on appeal that the case must be remanded for resentencing pursuant
to Senate Bill No. 1393 (2017-2018 Reg. Sess.), and for the trial court to consider
whether he has the ability to pay the fines and fees pursuant to People v. Dueñas (2019)
30 Cal.App.5th 1157 (Dueñas). Jones also maintains that he is entitled to additional
presentence custody credits.
The Attorney General concedes, and we agree, that the matter must be remanded
for resentencing pursuant to Senate Bill No. 1393, and that Jones is entitled to additional
custody credits. We find that Jones forfeited his challenge to the $1,000 restitution fine
(§ 1202.4, subd. (b)) and the corresponding suspended $1,000 parole revocation
restitution fine (§ 1202.45, subd. (a)), because he failed to object in the trial court based
on his inability to pay despite having a statutory basis to do so. We conclude that the trial
court is not required to conduct a hearing regarding Jones’s ability to pay the $120 court
operations fee (§ 1465.8), and the $90 court facilities fee (Gov. Code, § 70373) for
reasons we explain below.
I. STATEMENT OF THE CASE3
In July 2017, Jones was charged by information with Count 1—attempted murder
(§§ 187 & 664), Count 2—attempted second degree robbery (§§ 211 & 664), Count 3—
assault with a semiautomatic firearm (§ 245, subd. (b)) and Count 4—possessing a
firearm as a felon (§ 29800, subd. (a)(1)). In addition, the information alleged that Jones
personally and intentionally discharged a firearm causing great bodily injury to a non-
accomplice (§§ 12022.7 & 12022.53, subds. (b), (c), & (d)), as to Counts 1 and 2, and
court, (see People v. McCullough (2013) 56 Cal.4th 589, 592), we do not address this
issue because Jones does not challenge the imposition of the fee in this appeal as
discussed in footnote 6, post.
3
The underlying facts are omitted because they are not relevant to the issues on
appeal.
2
that he personally used a firearm (§ 12022.5, subd. (a)), and personally inflicted great
bodily injury on a non-accomplice (§ 12022.7, subd. (a)), as to Count 3. The information
also alleged that Jones had been convicted of a prior strike (§§ 667, subd (b)-(i)/
1170.12), and a prior serious felony (§ 667, subd. (a)).
Following a jury trial, Jones was convicted of Counts 2, 3, and 4, and the jury
found the firearm and great bodily injury allegations applicable to those counts true. The
trial court declared a mistrial as to Count 1, because the jury could not reach a verdict.
Jones admitted that he had been convicted of a prior strike and a prior serious felony.
The court denied Jones’s Romero4 motion to dismiss his prior strike conviction as
well as his motion to strike the firearm enhancements. The trial court sentenced Jones as
follows: on Count 2, Jones was ordered to serve the upper term of three years in prison,
doubled to six years because of his strike conviction, with a consecutive term of 25-
years-to-life on the enhancement for discharging a firearm causing great bodily injury; on
Count 3, Jones was ordered to serve the midterm of six years, doubled to 12 years
because of the strike conviction, with a consecutive term of four years for the gun use
enhancement for a total 16 years, to run concurrent with the sentence on Count 2; on
Count 4, Jones was ordered to serve the midterm of two years, doubled to four years
because of the strike conviction, to run concurrent with the terms for Counts 2 and 3.
The trial court dismissed the great bodily injury enhancement as to Count 3, and imposed
a consecutive five-year term for the prior serious felony enhancement pursuant to section
667, subdivision (a), for a total determinate term of 11 years, followed by the
indeterminate term of 25 years to life.
The trial court ordered Jones to pay a $120 court operations fee (§ 1465.8), a $90
court facilities fee (Gov. Code, § 70373), a $129.75 criminal justice administration fee
(Gov. Code, § 29550.2, subd. (a))5 and a $1,000 restitution fine (§ 1202.4, subd. (b)).
4
People v. Superior Court (Romero) (1996) 13 Cal.4th 497.
5
See footnote 2, ante.
3
The court also imposed a corresponding suspended $1,000 section 1202.45, subdivision
(a) parole revocation restitution fine.
Jones filed a timely notice of appeal.
II. DISCUSSION
A. Senate Bill No. 1393
Jones asserts, and the Attorney General concedes, that his case must be remanded
so the trial court can exercise its discretion whether to strike the prior felony conviction
enhancement under section 667, subdivision (a), pursuant to Senate Bill No. 1393. We
accept the Attorney General’s concession.
At the time the trial court sentenced Jones in November 2018, Senate Bill No.
1393, which amended sections 667, subdivision (a), and section 1385 to grant trial courts
discretion to strike or dismiss a prior serious felony enhancement was not yet in effect.
“Senate Bill 1393 applies retroactively to all cases or judgments of conviction in which a
five-year term was imposed at sentencing, based on a prior serious felony conviction,
provided the judgment of conviction is not final . . . .” (People v. Garcia (2018) 28
Cal.App.5th 961, 971-972.)
Because Jones was convicted and sentenced for one prior serious felony
enhancement under section 667, subdivision (a), and his conviction is not yet final,
remand is required to allow the trial court to exercise its discretion whether to strike the
enhancement.
B. Ability to Pay Fines and Fees
Citing Dueñas, Jones asserts he is entitled to a determination of whether he has the
ability to pay the $120 court operations fee (§ 1465.8), and the $90 court facilities fee
4
(Gov. Code, § 70373).6 Jones asks that we remand the matter to the trial court for such
determination.
Jones also asserts pursuant to Dueñas that we should stay the execution of the
$1,000 restitution fine (§ 1202.4, subd. (b)) and the corresponding suspended $1,000
parole revocation restitution fine (§ 1202.45, subd. (a)),7 until the prosecution can
establish that he has the ability to pay.
Jones did not object in the trial court to the imposition of the fines and fees based
on an inability to pay. The Attorney General argues that Jones has forfeited his challenge
to the imposition of the restitution fine, because there was a statutory basis to object
based on an inability to pay at the time the fine was imposed, and he failed to object.
However, the Attorney General concedes that because this case must be remanded for the
trial court to consider whether to strike Jones’s prior serious felony, the trial court may
also consider Jones’s ability to pay the $120 court operations fee (§ 1465.8), and the $90
court facilities fee (Gov. Code, § 70373).
We find Jones forfeited his challenge to the $1,000 restitution fine and his
suspended $1,000 parole revocation restitution fine because there was a statutory basis to
object to this fine based on his inability to pay that existed prior to the Dueñas decision.
Under section 1202.4, subdivision (b)(1), the trial court is required to impose a restitution
fine of not less than $300, and not more than $10,000. The statute provides that the trial
court may not consider a defendant’s ability to pay when imposing the minimum fine of
6
Although Jones refers to the $129.75 criminal justice administration fee (Gov.
Code, § 29550.2, subd. (a)) in a footnote in his opening brief, he does not argue that he is
entitled to a determination of whether he has the ability to pay that fee.
7
Section 1202.45, subdivision (a) states: “In every case where a person is
convicted of a crime and his or her sentence includes a period of parole, the court shall, at
the time of imposing the restitution fine pursuant to subdivision (b) of Section 1202.4,
assess an additional parole revocation restitution fine in the same amount as that imposed
pursuant to subdivision (b) of Section 1202.4” Section 1202.45, subdivision (c) states, in
relevant part: “[The fine] shall be suspended unless the person’s parole, post-release
community supervision, or mandatory supervision is revoked.”
5
$300; however, if the court sets a restitution fine in excess of the minimum, it should
consider “any relevant factors, including, but not limited to, the defendant’s inability to
pay, the seriousness and gravity of the offense and the circumstances of its
commission, . . . [and] the extent to which any other person suffered losses as a result of
the crime . . . .” (§ 1202.4, subd. (d)).8
Here, the trial court imposed a restitution fine in the amount of $1,000, and a
suspended parole revocation restitution fine in the same amount. Since $1,000 for both
the restitution fine and the suspended parole revocation restitution fine was “in excess of
the minimum fine” (§ 1202.4, subd. (c)), Jones had statutory grounds to object based on
an inability to pay. “[E]ven before Dueñas a defendant had every incentive to object to
imposition of a maximum restitution fine based on inability to pay because governing law
as reflected in the statute (§ 1202.4, subd. (c)), expressly permitted such a challenge.
[Citation.]” (People v. Gutierrez (2019) 35 Cal.App.5th 1027, 1033 (Gutierrez).) “Thus,
even if Dueñas was unforeseeable . . ., under the facts of this case [defendant] forfeited
any ability-to-pay argument regarding the restitution fine by failing to object.” (Ibid.)
Regarding the $120 court operations fee (§ 1465.8, subd. (a)(1)), and the $90 court
facilities fee (Gov. Code, § 70373), the Attorney General concedes that because this
matter is being remanded for resentencing, Jones can raise the issue of his inability to pay
these fees in the trial court. We do not accept the Attorney General’s concession. Jones
was sentenced to a determinate term of 11 years in prison, followed by a term of 25 years
to life. Even if the trial court grants Jones the relief he requests under Senate Bill No.
1393 and strikes the felony prior he suffered under section 667, subdivision (a), he will
still serve a determinate prison term plus 25 years to life. “Wages in California prisons
currently range from $12 to $56 a month.” (People v. Jones (2019) 36 Cal.App.5th 1028,
8
As the parole revocation fine under section 1202.45, subdivision (b) must be
assessed “in the same amount as that imposed pursuant to subdivision (b) of 1202.4,” we
conclude that the section 1202.45, subdivision (d) factors apply to its imposition as well.
6
1045.) Since the challenged fees total $210, Jones will have sufficient time to earn this
amount while incarcerated even if we assume he will earn only the minimum prison
wage.9
C. Custody Credit
Jones asserts, and the Attorney General concedes, that he is entitled to additional
presentence custody credit including two days of actual time, and 11 days of 15 percent
custody credit pursuant to section 2933.1.
At sentencing, Jones was awarded 578 days of custody credit for actual days
served, and 76 days of 15 percent custody credit pursuant to section 2933.1, for a total of
654 days of presentence credit. However, Jones was entitled to 580 days of actual time
served because he was in custody from the date of his arrest on April 2, 2017, until his
sentencing on November 2, 2018. Therefore, Jones’s 15 percent custody credit must be
increased to 87 days pursuant to section 2933.1, making 667 days the total amount of
custody credit Jones should have been awarded at sentencing.
III. DISPOSITION
The judgment is reversed and the matter is remanded for resentencing for the
superior court to determine whether to strike Jones’s prior serious felony conviction
(§ 667, subd. (a)). The abstract of judgment shall be corrected to reflect that Jones has
580 days of credit for actual time served, and 87 days of 15 percent credit, for a total of
667 days of credit. The trial court is directed to forward the corrected abstract of
judgment to the Department of Corrections and Rehabilitation.
9
Because we find Jones forfeited his challenge to the restitution fines (§ 1202.4,
subd. (b); § 1202.45, subd. (a)), and that he has the ability to pay the court operations fee
(§ 1465.8), and the court facilities fee (Gov. Code, § 70373) through his prison wages, we
decline to consider the constitutional issues raised in the Dueñas opinion.
7
_______________________________
Greenwood, P.J.
WE CONCUR:
_______________________________________________
Bamattre-Manoukian, J.
______________________________________
Grover, J.
People v. Jones
No. H046461
8