People v. Jones CA6

Filed 11/25/20 P. v. Jones CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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