People v. Jones CA6

Filed 12/21/22 P. v. Jones CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, H049264 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1760945)

v.

MERLIN SYLVESTER JONES,

Defendant and Appellant. THE COURT1 Defendant Merlin Sylvester Jones appeals from the judgment imposed after his resentencing. Jones contends that we should reverse and remand his case for resentencing in accordance with the amendments to Penal Code section 1170, subdivision (b)2 effected by Senate Bill No. 567 (2021-2022 Reg. Sess.), and that we should vacate the criminal justice administration fee imposed by the trial court that has been repealed by Assembly Bill No. 1869 (2019-2020 Reg. Sess.). For the reasons set forth below, we reverse the judgment and remand for resentencing, and we strike the unpaid balance of the criminal justice administration fee.

1 Before Greenwood, P. J., Grover, J. and Danner, J. 2 Undesignated statutory references are to the Penal Code.

I. PROCEDURAL BACKGROUND3 Jones was convicted following a jury trial of attempted second degree robbery (§§ 211 & 664; count 2), assault with a semiautomatic firearm (§ 245, subd. (b); count 3), and possession of a firearm by a felon (§ 29800, subd. (a)(1); count 4).4 The jury found true the allegations as to count 2 that Jones personally and intentionally used a firearm causing great bodily injury on a non-accomplice (§§ 12022.7, 12022.53, subds. (b), (c), & (d)), and as to count 3 that he personally used a firearm (§ 12022.5, subd. (a)), and personally inflicted great bodily injury on a non-accomplice (§ 12022.7, subd. (a)). Jones also admitted that he had suffered a prior strike conviction and a serious felony conviction.5 (§ 667, subds. (a), (b)-(i).) The trial court sentenced Jones to a total determinate term of 11 years, followed by an indeterminate term of 25 years to life. On November 25, 2020, this court reversed the judgment and remanded the case for resentencing to allow the trial court the opportunity to exercise its recently-conferred discretion to strike the five-year penalty imposed under section 667, subdivision (a) in accordance with Senate Bill No. 1393 (2017-2018 Reg. Sess.). (People v. Jones (Nov. 25, 2020, H046461) [nonpub. opn.] 2022 WL 6937348.) On remand, on June 30, 2021, the trial court sentenced Jones to the term of 25 years to life in prison, consecutive to 11 years, as follows: as to count 2, the court imposed the upper term of three years, doubled as a result of the strike, for a total of 6 years, plus a consecutive 25 years to life term based on the firearms enhancement (§ 12022.53, subd. (d)); as to count 3, the court imposed a concurrent term of 16 years, consisting of a midterm sentence of six years, doubled because of the strike, plus a four-