Filed 12/14/20 P. v. Jackson CA2/6

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION SIX

THE PEOPLE,

 Plaintiff and Respondent,

v.

JOSHUA STEVEN JACKSON,

 Defendant and Appellant.

2d Crim. No. B303129

(Super. Ct. No. 18F-04137)

(San Luis Obispo County)

Joshua Steven Jackson appeals a judgment following his 

conviction for possession of matter depicting a minor engaging in 

sexual conduct with a prior conviction (Pen. Code,1 § 311.11, 

subd. (b)) (count 1), and possession of matter depicting a minor 

engaging in sexual contact with more than 600 images (id., subd. 

(c)) (count 2). Jackson admitted he had three prior strike 

convictions under the “Three Strikes” law in 2003, which 

included two convictions for lewd acts with a child under 14 years 

1 All statutory references are to the Penal Code.
2

of age (§ 288, subd. (a)) and a conviction for continuous sexual 

abuse of a child (§ 288.5). 

The trial court imposed a 25-years-to-life sentence on count 

1 and it stayed the term on count 2. We conclude, among other 

things, that: 1) the trial court did not abuse its discretion by 

declining to strike any of his three prior strike convictions, and 2) 

it did not err by imposing a $5,000 restitution fine. (§ 1202.4, 

subd. (b).) We affirm.

FACTS

On May 10, 2018, Sheriff’s Detective Spencer Garrett 

interviewed Jackson. Garrett had obtained information from 

Google that child pornography was on Jackson’s computer 

account. Jackson admitted that the computer account that

Google had identified was his. Child pornography was found on 

Jackson’s cell phone and his laptop computer.

Garrett testified at the preliminary hearing that on 

Jackson’s phone there were “8,000 images.” He said, “I 

approximated about 90 percent of them were depictions of 

children in sexually suggestive poses. And most of the children 

were nude.” The children’s ages ranged between three years old 

and 17 years old.

On Jackson’s laptop there were between 40,000 to 50,000 

pictures “of children in sexually explicit poses and images.” 

There were videos of child pornography.

Jackson was arrested and charged with two child

pornography possession counts. (§ 311.11, subd. (b) (count 1); id., 

subd. (c) (count 2).) After pleading no contest to both counts,

Jackson filed a request to dismiss his prior strike convictions. 

The trial court denied the request.
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Not Striking a Prior Strike Conviction

Jackson fell within the purview of the Three Strikes law.

Jackson contends the “[trial] court erred in declining to 

strike one of [his] ‘strike’ prior convictions.” We disagree.

“[A] trial court may strike or vacate an allegation or finding 

under the Three Strikes law that a defendant has previously 

been convicted of a serious and/or violent felony” in furtherance of 

justice. (People v. Carmony (2004) 33 Cal.4th 367, 373.) The 

court determines whether the defendant falls outside the spirit of 

the Three Strikes law. A ruling on whether or not to strike the 

priors is reviewed for an abuse of discretion. (Ibid.)

Jackson filed a “request for court dismissal or priors alleged 

under the Three Strikes law” under its discretionary authority as 

provided in People v. Superior Court (Romero) (1996) 13 Cal.4th

497. He claimed, among other things, that he was 38 years old, 

he had attended “monthly sex offender outpatient counseling,” 

and a “determinate sentence” would be appropriate.

The People opposed Jackson’s request. They noted that his 

“criminal career spans 17 years.” During that period he 

committed five felonies and “[h]e has not successfully completed a 

grant of parole.” They said, “There has never been a significant 

period of time in the defendant’s life since 2002, where he was not 

committing crimes or serving time in prison.”

The trial court in denying the request to strike priors said:

1) “Jackson was convicted of three strikes in January of 2003,” 

and was sentenced to state prison for 10 years; 2) in 2012 he 

violated parole; 3) he was “convicted in December 2012 for 

possessing child pornography, a felony” and sentenced to four 

years in state prison; 4) he “then again failed to successfully 

complete parole”; and 5) he then “picked up the felony charges in 
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this case.” He has a “recidivist criminal history.” One of his 2003 

felony convictions involved continuous “sexual abuse of a child.”

The court said it had reviewed “the particulars of his background, 

character, and [his] prospects.”

The probation officer’s report noted that Jackson “has 

accumulated a significant prior criminal record,” his performance 

on parole “was unsatisfactory,” and there were no “possible 

factors in mitigation.” (Italics added.)

The trial court told Jackson “since 2002, there’s been a very 

small window of time . . . that you’ve led a law-abiding life or you 

haven’t been in custody.” Jackson has not shown an abuse of 

discretion. 

The $5,000 Restitution Fine

Jackson contends the trial court erred in imposing a $5,000 

restitution fine.” (§ 1202.4.) The court imposed this fine and 

found Jackson “will be earning prison wages.” Jackson claims 

the future prospect of potentially receiving prison wages is not a 

valid ground to sustain the $5,000 fine.

The People claim that Jackson “did not object to the 

restitution fine at sentencing,” and consequently his challenge to

it is “forfeited.”

During sentencing, Jackson’s counsel said Jackson “has no 

ability to pay” fines or fees. But his counsel did not present 

evidence or offer to present evidence to show why Jackson would 

not be able to pay this fine from prison wages. “ ‘Given that the 

defendant is in the best position to know whether he has the 

ability to pay, it is incumbent on him to object to the fine and 

demonstrate why it should not be imposed.’ ” (People v. Aviles

(2019) 39 Cal.App.5th 1055, 1074.)
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“ ‘ “Ability to pay does not necessarily require existing 

employment or cash on hand.” ’ ” (People v. Aviles, supra, 39 

Cal.App.5th at p. 1076.) “ ‘ “[I]n determining whether a 

defendant has the ability to pay a restitution fine, the court is not 

limited to considering a defendant’s present ability but may 

consider a defendant’s ability to pay in the future.” ’ ” (Ibid.) 

“ ‘This include[s] the defendant’s ability to obtain prison wages 

and to earn money after his release from custody.’ ” (Ibid.)

“Prison wages range from $12 to $56 per month, depending on 

the prisoner’s skill level.” (Ibid.) “The state may garnish 

between 20 and 50 percent of those wages to pay the section 

1202.4, subdivision (b) restitution fine.” (Ibid.)

Where the defendant has not shown physical disability, “[i]t 

is illogical to conclude that [defendant] will not have an ability to 

begin paying at least some of the imposed [fine]” while 

incarcerated. (People v. Lowery (2020) 43 Cal.App.5th 1046, 

1060.)

Here Jackson’s prison sentence is 25 years to life. 

Jackson’s counsel stated that Jackson is in “excellent physical 

health.” He has worked as “a cook, machinist and warehouse 

laborer.” Prior to his arrest, he was employed at a “99 Cent 

store.” He had performed “construction side job work.” At the 

time of sentencing, Jackson was 38 years old. “He denied any 

outstanding debts.” He told the probation department that he 

had a “401k retirement plan” at work. The probation department

recommended that he pay a $10,000 restitution fine. The trial 

court reduced that to $5,000. Jackson has not shown error.
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DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED.

GILBERT, P. J.

We concur:

YEGAN, J.

PERREN, J.
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Hernando J. Baltodano, Judge

Superior Court County of San Luis Obispo

______________________________

California Appellate Project, Richard Lennon, Executive 

Director, under appointment by the Court of Appeal, for 

Defendant and Appellant.

Xavier Becerra, Attorney General, Lance E. Winters, Chief 

Assistant Attorney General, Susan Sullivan Pithey, Assistant 

Attorney General, Noah P. Hill and Nancy Lii Ladner, Deputy 

Attorneys General, for Plaintiff and Respondent.