1

Filed 1/11/22 P. v. Simon CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication 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

FOURTH APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JAMES DARWIN SIMON II,

Defendant and Appellant.

E075656

(Super. Ct. No. FSB19003159)

OPINION

APPEAL from the Superior Court of San Bernardino County. J. David Mazurek, 

Judge. Affirmed.

Aaron J. Schechter, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Matthew Rodriguez, Acting Attorney General, Lance E. Winters, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, Charles C. Ragland and 

James H. Flaherty III, Deputy Attorneys General, for Plaintiff and Respondent.
2

I.

INTRODUCTION

Defendant and appellant, James Simon, appeals from the judgment entered 

following jury convictions for second degree robbery (Pen. Code, § 2111; count 1), 

assault with a firearm (§ 245, subd. (a)(2)), and felon in possession of a firearm (§ 29800, 

subd. (a)(1)). The jury also found true allegations defendant suffered two strike priors 

(§ 1170.12, subd. (a)(d)) and two prior serious felony convictions (§ 667, subd. (a)(1)). 

The court sentenced defendant to 35 years to life in prison.

Defendant contends the trial court committed instructional error by not instructing 

the jury on the lesser included offense of simple assault. Defendant also argues his trial 

attorney failed to provide effective representation by failing to request the court not to 

impose enhancements for his two prior serious felony convictions.

2

 In addition, 

defendant contends the trial court violated his state and federal due process rights by 

imposing fines and fees without determining whether he had the ability to pay them and 

without holding an ability-to-pay hearing. We reject defendant’s contentions and affirm 

the judgment.

1

Unless otherwise noted, all statutory references are to the Penal Code.

2

Defendant has also filed a habeas corpus petition alleging that his trial attorney 

provided constitutionally deficient representation based on the same grounds raised in the 

instant appeal (Simon v. Brown, case No. E076307). We have addressed the writ petition 

by separate order.
3

II.

FACTS

During the afternoon of September 6, 2019, M.R., a refrigeration technician,

provided refrigeration services at a fast food restaurant. While on his ladder, he noticed 

codefendant Sarah Beurmann waiting to enter the restaurant bathroom. She was only 

wearing underwear. M.R. asked Beurmann if she would like a ride and would entertain 

him with an “exotic dance.” Beurmann said yes, and the two went to a nearby motel. 

Beurmann said she was homeless and requested a new phone and some clothing items. 

M.R. and Beurmann shopped at nearby stores for the items she requested. M.R. was 

carrying $1,800 in cash, some of which he used to pay for the motel room and the items 

purchased for Beurmann.

When M.R. and Beurmann returned to the motel room, they talked for about 40 

minutes. M.R. told Beurmann about his marriage. Defendant knocked on the motel 

room door. Beurmann answered the door. Defendant stood at the door staring at M.R.

and then left. M.R. wondered if Beurmann had ordered some drugs.

Beurmann asked M.R. to give her a ride down the street to “see a friend and get 

something.” M.R. gave Beurmann a ride, waited for her, and drove her back to the motel. 

M.R. noticed Beurmann had some drugs and syringes. Beurmann gave M.R. a backwash 

in the shower. Afterwards, Beurmann put on lingerie and the two attempted sexual 

relations. Then Beurmann went into the bathroom and remained there alone for over an 
4

hour. When Beurmann came out of the bathroom, she gathered her belongings and left. 

M.R. locked and barricaded the door.

A few minutes later, M.R. heard a knock on the door and let Beurmann in. 

Beurmann sat on the bed near the door. A few minutes later someone knocked on the 

door. M.R. told Beurmann not to open the door. Beurmann jumped up from the bed, 

pushed M.R. aside, and opened the door. M.R. testified he tried to push the door shut but 

defendant pushed it open and walked in with a gun. Defendant pointed the gun at M.R.’s 

head and demanded M.R. give him his money. M.R. told defendant he could take 

whatever he wanted. At gunpoint, defendant ordered M.R. to sit on the bed while 

Beurmann gathered M.R.’s belongings. Fearing for his life, M.R. complied.

Defendant and Beurmann then left with M.R.’s pants. M.R. saw Beurmann with 

his pants get into a truck in the parking lot. M.R. pleaded for his pants. M.R.’s wallet 

with $1,800 in cash and two sets of keys were in his pants pockets. After Beurmann

rummaged through M.R.’s pants, she tossed them from the truck. Defendant walked up 

to M.R. and handed him his phone, which M.R. did not realize had been taken. 

Defendant told M.R. in a threatening tone, “‘Answer the phone.’” M.R. understood this 

to mean he should expect a call from defendant possibly trying to extort money from him. 

Immediately after defendant and Beurmann drove away, M.R. called 911, fearing 

defendant might harm his family. M.R. reported he had been robbed.
5

Shortly after M.R. called 911, police officers noticed defendant and Beurmann

sitting in a truck a quarter mile from the motel. An officer saw defendant reach under the 

seat. The police took defendant and Beurmann into custody. The police found $1,908 in 

cash in defendant’s pocket, a methamphetamine pipe in Beurmann’s bra, and 12.36 

grams of methamphetamine in the truck. The police also found a loaded gun and M.R.’s 

wallet under the seat. The police transported defendant and Beurmann to the motel, 

where M.R. identified them.

Beurmann was charged with robbery and pled guilty to a lesser crime of being an 

accessory after the fact to the robbery. Before pleading guilty, Beurmann had intended to 

testify, consistent with her previous statements to the police, that there was no robbery. 

Her plea bargain required her to state under oath that there had been a robbery. After 

doing so, she was released from jail and five misdemeanors against her were dismissed.

Beurmann testified she and defendant robbed M.R. “at gunpoint.” Defendant 

always carried a gun. At the time of the robbery, Beurmann was a prostitute to support 

her drug habit. M.R. had bought her things and paid Beurmann cash, which she used to 

buy drugs. Beurmann became disgusted with M.R. She texted defendant to come get 

her. When defendant picked her up, she told him M.R. was carrying a lot of cash. 

Defendant and Beurmann then returned to the motel. Beurmann testified she saw 

defendant with a gun in M.R.’s motel room.
6

Defendant testified he went to the motel solely because Beurmann told him she 

was in trouble. After he picked up Beurmann at the motel, Beurmann said she forgot 

something. Defendant took her back. Beurmann went inside M.R.’s motel room and the 

door closed. Concerned for her safety, defendant knocked on the door to get Beurmann. 

When the door opened, defendant told Beurmann to get her belongings and leave. 

Defendant acknowledged he was carrying a gun but testified it remained tucked in the 

front of his waistband at all times. Defendant stated, “I believe that it was visible from 

the front of my pants because I had my shirt kind of lifted in a way to where it could be 

seen.” Defendant was unaware Beurmann took M.R.’s pants containing M.R.’s 

belongings. When defendant learned Beurmann had taken M.R.’s phone, defendant gave 

it back to M.R.

Defendant further testified that the night of the charged offense, he had about 

$2,300 in his wallet, which included $900 he borrowed from T.M. and $1,100 he 

borrowed from J.P. Defendant was planning to use the money to pay for retrieving his 

impounded car.

Defendant’s girlfriend, T.M., testified that, with her consent, defendant withdrew 

$900 in cash from her bank account on August 30, 2019. J.P., a business associate of 

defendant, testified he loaned defendant $1,100 but did not remember when.
7

III.

THERE WAS NO INSTRUCTIONAL ERROR

Defendant contends the trial court committed prejudicial error by failing to

instruct the jury sua sponte on the offense of simple assault (§ 240), a lesser included 

offense of the charged offense of assault with a firearm (§ 245, subd. (a)(2); count 2). 

We disagree.

The trial court is required to instruct the jury “‘“on all general principles of law 

relevant to the issues raised by the evidence, whether or not the defendant makes a formal 

request.”’ [Citation.] ‘Conversely, even on request, the court “has no duty to instruct on 

any lesser offense unless there is substantial evidence to support such instruction.”’ 

[Citation.] This substantial evidence requirement is not satisfied by 

‘“any evidence . . . no matter how weak,”’ but rather by evidence from which a jury 

composed of reasonable persons could conclude ‘that the lesser offense, but not the 

greater, was committed.’ [Citation.]” (People v. Avila (2009) 46 Cal.4th 680, 704-705.) 

We review de novo whether the trial court erred in failing to instruct on a lesser included 

offense. (Id. at p. 705; People v. Cole (2004) 33 Cal.4th 1158, 1215.)

It is undisputed that simple assault is a lesser included offense of assault with a 

firearm. (People v. McDaniel (2008) 159 Cal.App.4th 736, 747.) “An assault is an 

unlawful attempt, coupled with a present ability, to commit a violent injury on the person 

of another.” (§ 240.) Defendant argues the trial court was required to instruct on simple 

assault because there was evidence that could have persuaded a reasonable juror that he 
8

was guilty of only simple assault (§ 240), and not assault with a firearm (§ 245, subd. 

(a)(2)). The only evidence defendant cites is evidence (1) M.R. could not describe the 

gun to the 911 operator, (2) M.R.’s statement to the 911 operator that the gun was loaded,

and (3) defendant’s testimony that he never pointed a gun at M.R.

We conclude this evidence was insufficient to support instruction on the lesser 

included offense of simple assault. Although M.R. testified he told the 911 operator he 

could not describe the gun, defendant explained that at that time he was “traumatized.” 

Defendant had just pointed a gun at him, threatening his life. M.R. noted he told the 911 

operator the gun was a revolver. Also, when M.R. testified, he recalled the gun’s handle 

was brown. M.R. said he could see the handle when defendant was holding it. Evidence 

that M.R. was unable to describe the gun to the 911 operator does not provide sufficient 

evidence to support a reasonable finding defendant did not use a gun when assaulting 

M.R.

M.R.’s statement to the 911 operator that the gun was loaded also is insufficient to 

support instruction on the lesser included offense of simple assault. Defendant argues 

that M.R. lied to the 911 operator that he knew the gun was loaded. M.R. acknowledged

at trial that he told the 911 operator the gun was loaded but could not tell this from 

looking at the revolver. M.R. explained he merely assumed the gun was loaded because 

defendant confronted him with it. M.R.’s statement the gun was loaded was nothing

more than a reasonable assumption under the circumstances, and was insufficient to 

support an instruction on simple assault.
9

The only evidence supporting a finding that defendant did not use a gun during the 

assault was his own self-serving testimony denying he used a gun. Such testimony was 

insufficient to support a lesser included offense instruction on simple assault because 

defendant also denied assaulting M.R. Defendant testified he went to the motel twice to 

pick up Sarah. The first time he did not go to the motel room. He waited in his truck for 

Sarah. Defendant testified that the second time, after he returned with Sarah, he waited 

for Sarah in the truck while she went to the motel room to retrieve her belongings. After 

waiting for her for a while, he became concerned about Sarah and went to the motel 

room. He told Sarah to get her belongings and they left. Defendant further testified that,

before leaving, he discovered Sarah had M.R.’s phone and gave it back to him.

Defendant admitted he was carrying a gun in his pants waistband but testified he did not

remove it or use it while he was at the motel.

Because defendant’s testimony did not support a finding of simple assault, his 

testimony that he did not use a gun while in the motel room was insufficient to support 

instruction on simple assault as a lesser included offense of assault with a firearm. The 

evidence supported either finding that defendant did not assault M.R., based on 

defendant’s testimony, or defendant assaulted M.R. using a gun, based on M.R. and 

Sarah’s testimony. The evidence either supported a reasonable finding defendant 

assaulted M.R. with a gun or he did not assault M.R. at all. The court therefore did not 

err in not instructing sua sponte on simple assault.
10

IV.

INEFFECTIVE ASSISTANCE OF COUNSEL

Defendant contends his trial attorney provided ineffective representation by failing 

to request the trial court to exercise its discretion to dismiss two five-year serious felony 

conviction enhancements pursuant to Senate Bill No. 1393 (Legis. Counsel’s Dig., Sen.

Bill No. 1393 (2017-2018 Reg. Sess.) Stats. 2018, ch. 1013, §§ 1, 2.)

Defendant argues it is reasonably probable the trial court would not have imposed 

at least one of the two serious felony conviction enhancements had his attorney requested 

the court to exercise its discretion and not impose the enhancements because of the age of 

the prior serious felony convictions and the trial court’s leniency in imposing concurrent 

sentencing on count 3 (possession of a firearm by a felon; § 29800, subd. (a)(1)).

The two prior serious felony convictions were for a 2001 conviction for robbery 

(§ 211) and attempted robbery (§§ 211, 664), and for a 2014 conviction for violating 

parole on a 2001 conviction for first-degree residential burglary (§ 459). Both the 2001 

and 2014 convictions arose out of offenses defendant committed in 2001. The 2014 

conviction was for an old warrant discovered when defendant was serving his sentence 

on the 2001 conviction for burglary.

Defendant filed a Romero motion (People v. Superior Court (Romero) (1996) 13 

Cal.3d 497), requesting the court to strike one or both of his strike priors, which are based 

on the same convictions as his two serious felony conviction enhancements. Defendant 

argued in his motion and during the sentencing hearing that his strike priors were based 
11

on offenses almost 20 years old and were committed when he was 18 or 19 years old. 

Defendant asserted that he had overcome drug addiction, was self-employed, and had 

become a more mature person. 

The trial court denied defendant’s Romero motion, explaining that the court chose 

not to exercise its discretion to strike any of defendant’s strike priors because defendant 

had spent a large portion of his life in custody, with a criminal record beginning when he 

was a juvenile in 1996. The court noted that defendant was convicted in 1997 of robbery 

with a firearm, was paroled, violated parole, and then went to prison. After that he 

committed an attempted robbery in 2001 and was sentenced to 14 years in prison. When 

released, he violated his parole. Defendant then committed the charged offenses in 2019. 

The trial court concluded defendant had not learned anything from his prior convictions. 

He continues to engage in the same type of conduct and acted in concert with another 

person to set up the victim for a robbery. The court stated: “[T]he Court thinks that the 

defendant has earned a life sentence in this case based upon his prior conduct and his 

conduct in this case. [¶] So the Court doesn’t think that the defendant would be deemed 

outside the spirit in whole or in part. And the Court will deny the motion to strike the 

prior.”

After the court denied defendant’s Romero motion, the parties submitted, with no 

request by defense counsel to dismiss defendant’s two prior serious felony convictions.

The court sentenced defendant to 35 years to life, which included 25 years to life under 

the “Three Strikes” law on count one and a consecutive 10 years for the two five-year 
12

enhancements for the two prior serious felony convictions. The court stayed punishment 

on count 2 under section 654, and imposed a concurrent six-year term on count three

(possession of a firearm by a felon).

A. Applicable Law and Standard of Review

In order to establish a claim for ineffective assistance of counsel (IAC), a 

defendant must show that his or her counsel’s performance was deficient and that the 

defendant suffered prejudice as a result of such deficient performance. (Strickland v.

Washington (1984) 466 U.S. 668, 687-692.) To demonstrate deficient performance, the 

defendant bears the burden of showing that counsel’s performance fell below an objective 

standard of reasonableness under prevailing professional norms. (People v. Lopez (2008) 

42 Cal.4th 960, 966.) To demonstrate prejudice, the “defendant bears the burden of 

showing a reasonable probability that, but for counsel’s deficient performance, the 

outcome of the proceeding would have been different.” (People v. Mickel (2016) 2 

Cal.5th 181, 198.)

“On appeal, we do not second-guess trial counsel’s reasonable tactical decisions.” 

(People v. Lucas (2014) 60 Cal.4th 153, 278.) “[A] defendant’s burden [is] ‘difficult to 

carry on direct appeal,’ as a reviewing court will reverse a conviction based on 

ineffective assistance of counsel on direct appeal only if there is affirmative evidence that 

counsel had ‘“‘no rational tactical purpose’”’ for an action or omission.” (People v.

Mickel, supra, 2 Cal.5th at p. 198, quoting People v. Lucas, supra, (1995) 12 Cal.4th 415, 

437.)
13

The California Supreme Court has “repeatedly stressed ‘that “[if] the record on 

appeal sheds no light on why counsel acted or failed to act in the manner 

challenged[,] . . . unless counsel was asked for an explanation and failed to provide one, 

or unless there simply could be no satisfactory explanation,” the claim on appeal must be 

rejected.’ [Citations.] A claim of ineffective assistance in such a case is more 

appropriately decided in a habeas corpus proceeding.” (People v. Mendoza Tello (1997) 

15 Cal.4th 264, 266-267, quoting People v. Wilson (1992) 3 Cal.4th 926, 936; accord,

People v. Johnson (2016) 62 Cal.4th 600, 653.)

B. No Showing of Prejudice

On September 30, 2018, the Governor signed Senate Bill No. 1393 (2017-2018

Reg. Sess.) which, effective January 1, 2019, amends sections 667 and 1385 to give trial 

courts the discretion to dismiss five-year sentence enhancements under section 667, 

subdivision (a). (See Legis. Counsel’s Dig., Sen. Bill No. 1393 (2017-2018 Reg. Sess.) 

[“This bill would delete the restriction prohibiting a judge from striking a prior serious 

felony conviction in connection with imposition of [a] 5-year enhancement”].)

Although during the sentencing hearing on August 28, 2020, defense counsel 

could have requested the trial court to dismiss defendant’s two prior serious felony 

convictions under section 1385, defendant has not demonstrated his attorney’s failure to 

do so was prejudicial. Defendant has not met his burden of showing a reasonable 

probability that, but for counsel’s deficient performance, the outcome of the proceeding 

would have been different.” (People v. Lopez, supra, 42 Cal.4th at p. 966; People v.
14

Mickel, supra, 2 Cal.5th at p. 198.) Defendant argues the trial court’s imposition of a 

concurrent sentence on count 3 demonstrates that the court was lenient when sentencing 

him. Defendant asserts this leniency shows it is “reasonably possible” the court would 

have also been lenient had defense counsel asked the court to dismiss his prior serious 

felony convictions. This is speculative, not reasonably probable. While it may be 

possible, defendant has not shown it is reasonably probable.

Defendant argues it was reasonably possible the trial court would have dismissed 

one or both serious felony enhancements, despite denying his Romero motion, because 

the trial court demonstrated leniency when sentencing defendant and the trial court has

far greater discretion to dismiss prior serious felony convictions than to dismiss strike 

priors under the Three Strike law. (See People v. Williams (1998) 17 Cal.4th 148, 161.)

In support of this proposition, defendant requests this court to take judicial notice of the 

legislative history of Senate Bill No. 1393, which defendant argues shows that the law

was intended to prevent “inappropriately t[ying] a judge’s hands” and forcing imposition 

of enhancements for prior serious felony convictions, which may have already been used 

as a strike prior. (Senate Committee on Public Safety Analysis of Senate Bill No. 1393, 

dated Apr. 2, 2018, p. 5.)

Defendant’s request for judicial notice of the Senate Bill No. 1393 legislative 

history is granted under Evidence Code sections 459, subdivision (a) and 452, 

subdivision (c), as an official act of the legislature, consisting of a document produced by 
15

the Senate Committee on Public Safety Analysis of Senate Bill No. 1393, dated April 2, 

2018.

Although Senate Bill No. 1393’s legislative history shows that the Legislature 

intended to provide the trial court with discretion to dismiss prior serious felony 

convictions, particularly when already used as strikes, there is no showing it is reasonably 

probable the trial court would have done so had counsel requested it. Furthermore, the 

trial court’s stated reasons for denying defendant’s Romero motion demonstrate that, 

even if requested, it is not reasonably probable that the trial court would have granted 

dismissal of one or both of defendant’s prior serious felony convictions.

In addition, we must presume the trial court was aware of its discretionary 

authority to dismiss defendant’s prior serious felony convictions, even in the absence of 

defense counsel making such a request. (People v. Coddington (2000) 23 Cal.4th 529, 

623; People v. Reyes (2016) 246 Cal.App.4th 62, 82.) The law authorizing such 

discretion had been in effect for 20 months at the time of sentencing. “In the absence of 

evidence to the contrary, we presume that the court ‘knows and applies the correct 

statutory and case law.’” (People v. Thomas (2011) 52 Cal.4th 336, 361, quoting People

v. Coddington, supra, at p. 623; see People v. Reyes, supra, at p. 82.)

The burden is on defendant to demonstrate that the court misunderstood its 

sentencing discretion. (People v. Reyes, supra, 246 Cal.App.4th at p. 82.) Defendant has 

not met this burden or demonstrated prejudice. He has not shown that it is reasonably 
16

probable the trial court would have dismissed one or both of defendant’s prior serious 

felony convictions had defense counsel requested the court to do so.

V.

ABILITY TO PAY FINES AND FEES

Relying on People v. Dueñas (2019) 30 Cal.App.5th 1157 (Dueñas), defendant

argues that that this court must strike the court operations and facilities fees and stay the 

restitution fine because the fines and fees were imposed without an ability-to-pay hearing 

or any finding of ability to pay. We disagree. If there was any Dueñas error, the error

was harmless.

During sentencing, the court indicated it had reviewed defendant’s probation 

report. The probation department recommended the court find defendant had the ability 

to pay $750 for appointed counsel; $727 for investigation costs; $120 for the court 

operations fee (§ 1465.8); $90 for the court construction fee (Gov. Code, § 70373); a

$10,000 restitution fine (§ 1202.4); and a stayed $3,000 parole revocation restitution fine

(§ 1202.45).

The court stated during sentencing that it found that “the defendant does not have 

the present ability to pay for appointed counsel fees nor for the cost of conducting the 

presentence investigation report.” Without stating any additional findings on ability to 

pay, the court ordered defendant to pay other fines and fees totaling $3,210. Those fines 

and fees included a court operations fee of $120 ($40 per count), a court construction fee 
17

of $90 ($30 per count), a $3,000 restitution fine, and a stayed $3,000 parole revocation 

restitution fine.

Dueñas held that defendants have a due process right under the federal and state 

Constitutions to a hearing on their ability to pay court operations and facilities fees. 

(Dueñas, supra, 30 Cal.App.5th at p. 1164.) In addition, “to avoid serious constitutional 

questions” raised by the statutory restitution scheme, the court must stay execution of the 

mandatory restitution fine unless the court determines that the defendant has the ability to

pay it. (Id. at p. 1172.) The same court that decided Dueñas has since clarified that, at 

the ability to pay hearing, defendants bear the burden of showing their inability to pay, 

and the court “must consider all relevant factors,” including “potential prison pay during 

the period of incarceration to be served by the defendant[s].” (People v. Castellano

(2019) 33 Cal.App.5th 485, 490-491.)3

The People argue that defendant forfeited his Dueñas objections to the fines and 

fees by not objecting in the trial court. Defendant contends that if he forfeited the issue, 

his attorney’s failure to object constitutes IAC. We need not decide the issues of 

forfeiture, IAC, or Dueñas error because, even assuming there was Dueñas error, the 

error was harmless beyond a reasonable doubt because the record shows defendant had 

the ability to pay from prison wages the court-ordered fines and fees totaling $3,210. 

3

The California Supreme Court has granted review of the issues presented by

Dueñas in People v. Kopp (2019) 38 Cal.App.5th 47, review granted November 13, 2019, 

S257844.
18

(People v. Jones (2019) 36 Cal.App.5th 1028, 1035; Chapman v. Cal. (1967) 386 U.S. 

18, 24; People v. Kipp (1998) 18 Cal.4th 349, 377.) Defendant was sentenced to a term 

of 35 years to life. He was 40 years old at the time of his sentencing. According to the 

probation report, he was in good health, graduated from high school, and had been selfemployed as a handyman for the past four years, earning approximately $3,500 a month. 

Also, although he had no assets, he also had no debts.

We may consider defendant’s potential prison wages in evaluating the prejudicial 

effect of alleged Dueñas error. (People v. Jones, supra, 36 Cal.App.5th at p. 1035; 

People v. Taylor (2019) 43 Cal.App.5th 390, 402.) “[E]very able-bodied” prisoner is 

required to work. (§ 2700; Cal. Code Regs., tit. 15, § 3040, subd. (a).) A prisoner’s 

assignment to a paid position “is a privilege” that depends on “available funding, job 

performance, seniority and conduct.” (Cal. Code Regs., tit. 15, § 3040, subd. (k); accord

People v. Rodriguez (2019) 34 Cal.App.5th 641, 649, People v. Taylor, supra, 43 

Cal.App.5th at p. 402.) Wages in prison range from $12 to $56 per month, depending on 

the job and skill level involved. (Cal. Code Regs., tit. 15, § 3041.2, subd. (a)(1).) Fifty 

percent of defendant’s wages and trust account deposits will be deducted to pay any 

outstanding restitution fine, plus another 5 percent for the administrative costs of this 

deduction. (§ 2085.5, subds. (a), (e); Cal. Code Regs., tit. 15, § 3097, subd. (f); People v.

Taylor, supra, at p. 402.)
19

Earning the $12 monthly minimum prison wage, defendant will be able to pay off 

his $3,210 in fines and fees in less than 25 years. Given defendant’s age, the length of 

his sentence, and his employment history, we are persuaded beyond a reasonable doubt 

that he has the ability to pay the fines and fees imposed. We therefore conclude any 

Dueñas error or deficient performance by counsel was harmless.

VI.

DISPOSITION

The judgment is affirmed.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

J.

We concur:

MILLER

Acting P. J.

RAPHAEL

J.