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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 

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or ordered published for purposes of rule 8.1115. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

MERLIN SYLVESTER JONES,

Defendant and Appellant.

 H046461

 (Santa Clara County

 Super. Ct. No. C1760945)

Merlin Sylvester Jones was convicted following a jury trial of attempted second 

degree robbery (Pen. Code, §§ 211 & 664),1assault 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)),2a $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 
2

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 nonaccomplice (§§ 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.
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)), 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))5and 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. 
4

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 
5

(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.” 
6

$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. 
7

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.
8

_______________________________

Greenwood, P.J.

WE CONCUR:

_______________________________________________

 Bamattre-Manoukian, J.

______________________________________

 Grover, J.

People v. Jones

No. H046461