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Filed 8/27/21 P. v. Jackson CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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

FIRST APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE,

Plaintiff and Respondent,

v.

TRAVON LATRELL 

JACKSON,

Defendant and 

Appellant.

 A161068

 (Contra Costa County

 Super. Ct. No. 52003606)

A jury convicted Travon Latrell Jackson of two counts 

relating to driving a stolen vehicle. Because he had previously 

been convicted of residential burglary, the jury’s verdict subjected

Jackson to a doubled sentence under the three strikes law set 

forth in Penal Code1 section 1170.12, subdivision (c)(1). The trial 

court denied Jackson’s request to strike his prior conviction 

pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 

497, and it sentenced him to six years in prison. The trial court 

also imposed a $600 restitution fine and $70 in assessments. 

Jackson appeals, contending the trial court abused its discretion 

when it declined to strike his prior conviction and violated his 

1 Undesignated statutory citations are to the Penal Code.
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due process rights under People v. Dueñas (2019) 30 Cal.App.5th 

1157 (Dueñas) by imposing a fine and assessments he could not 

pay. We disagree and affirm.

BACKGROUND

In January 2020, the police found Jackson at a gas station 

in a car that had been stolen two days earlier. A search of the car 

and Jackson’s person revealed other property that had been 

stolen at the same time and from the same victim as the car, 

including more than $30,000 in cash and two computers. There 

were also burglary tools in the car. 

A jury convicted Jackson of driving or taking a vehicle 

without consent (Veh. Code, § 10851, subd. (a)) and receiving a 

stolen vehicle.2 (§ 496d.) The jury found the vehicle’s value to be 

more than $950. The court found true the allegation that 

Jackson had been convicted of residential burglary in 2018. 

Prior to sentencing, Jackson moved to convert his 

convictions to misdemeanors under section 17, subdivision (b). 

He also invited the trial court to exercise its authority under 

section 1385 and Romero to strike the finding of his prior 

conviction, to avoid having his sentence doubled under section 

1170.12, subdivision (c)(1). Together with his motions, Jackson 

submitted a psychologist’s report. This report stated that 

Jackson had been raised by a foster mother who physically and 

emotionally abused him. The biological son of Jackson’s foster 

2 The jury acquitted Jackson of the other count in the 

information, which charged him with residential burglary based 

on the initial theft of the vehicle and other possessions from the 

victim’s home. 
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mother also abused Jackson sexually when Jackson was five or 

six years old. He began using marijuana daily when he was 14, 

and such heavy use at a young age is associated with problems in 

attention, learning and memory, and executive functioning. 

Jackson dropped out of high school in the 12th grade before 

receiving a diploma. Jackson told the psychologist he had never 

held a steady job. The psychologist diagnosed him with posttraumatic stress disorder and a developmental language disorder 

relating to expressive language. The psychologist believed 

Jackson’s poor executive functioning and communication 

limitations had played a significant role in his inability to secure 

employment and housing. The psychologist recommended 

Jackson receive supportive housing, job training, and drug 

counseling and noted that Jackson would likely need extensive 

support in learning how to apply for jobs, assistance with job 

placement, and supervision once placed. The psychologist also 

reported that Jackson said he was in good physical health. 

At the sentencing hearing, Jackson’s counsel noted that 

Jackson had issues with drugs, did not finish high school, and 

had no history of steady employment. The trial court pointed out 

that after Jackson was placed on probation from his prior 

burglary conviction, he had failed to report and committed a 

trespassing violation. Then, after returning to jail and being 

released again on probation, Jackson had failed to report, was 

arrested by BART police for obstructing or resisting a peace 

officer, and committed the offenses for which he was convicted. 
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Jackson’s counsel did not dispute this history but noted 

that the psychologist had found Jackson suffered from some 

delays and needed more assistance with complying. His counsel 

asserted that he had been transient, using drugs, and did not 

know how to report to probation. Counsel observed that Jackson 

had made positive changes during her representation of him after 

the drugs “wore off,” and she claimed he was ready to change his 

life. Jackson’s sister had offered to allow him to live with her and 

help him with reporting to probation, getting his high school 

diploma, and obtaining mental health and drug counseling. 

The trial court denied the section 17, subdivision (b) motion 

and declined to strike the prior conviction, based on the 

circumstances of the offense and Jackson’s history. It noted 

Jackson had been terminated unsuccessfully from probation in 

juvenile court, his criminal behavior had continued unabated as 

an adult, his performance on supervision had been “nothing short 

of abysmal,” and it was impossible to assist someone who does 

not show up for assistance. The court sentenced Jackson to the 

mid-term of three years for the count of driving or taking a 

vehicle without consent, doubled to six years under section 

1170.12, subdivision (c)(1). The trial court also imposed a midterm sentence of three years, doubled to six years under section 

1170.12, subdivision (c)(1), for the count of receiving a stolen 

vehicle; it stayed that count pursuant to section 654. 

Jackson’s counsel asked the trial court not to impose any 

fines and fees because Jackson could not pay them. His counsel 

noted he had been transient, had never been employed, and had 
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some disabilities documented in the psychologist’s report. The 

court said it would make a finding that he could not pay the fines 

that were discretionary but it had to impose a restitution fine 

under section 1202.4. It found $600 was appropriate because it 

represented $100 per year of his sentence. It also imposed a 

conviction assessment fee of $30 and a court security fee of $40. 

DISCUSSION

I. Romero motion

“ ‘[T]he Three Strikes initiative, as well as the legislative 

act embodying its terms, was intended to restrict courts’ 

discretion in sentencing repeat offenders.’ [Citation.] To achieve 

this end, ‘the Three Strikes law does not offer a discretionary 

sentencing choice, as do other sentencing laws, but establishes a 

sentencing requirement to be applied in every case where the 

defendant has at least one qualifying strike, unless the 

sentencing court “conclud[es] that an exception to the scheme 

should be made because, for articulable reasons which can 

withstand scrutiny for abuse, this defendant should be treated as 

though he actually fell outside the Three Strikes scheme.” ’ 

[Citation.]

“Consistent with the language of and the legislative intent 

behind the three strikes law, [the California Supreme Court has] 

established stringent standards that sentencing courts must 

follow in order to find such an exception. ‘[I]n ruling whether to 

strike or vacate a prior serious and/or violent felony conviction 

allegation or finding under the Three Strikes law, on its own 

motion, “in furtherance of justice” pursuant to Penal Code section 
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1385(a), or in reviewing such a ruling, the court in question must 

consider whether, in light of the nature and circumstances of his 

present felonies and prior serious and/or violent felony 

convictions, and the particulars of his background, character, and 

prospects, the defendant may be deemed outside the scheme’s 

spirit, in whole or in part, and hence should be treated as though 

he had not previously been convicted of one or more serious 

and/or violent felonies.’ ” (People v. Carmony (2004) 33 Cal.4th 

367, 377 (Carmony).) “[A] trial court’s failure to dismiss or strike 

a prior serious and/or violent felony conviction allegation under 

section 1385 should be reviewed for abuse of discretion.” (Id. at 

p. 376.)

Jackson contends his background and the circumstances of 

his offense made it an abuse of discretion for the trial court to 

decline to strike his prior conviction. He concedes that his prior 

conviction was not remote in time, since it occurred only two 

years before the current offense. But Jackson notes that he was 

only 24 years old at the time of sentencing, and none of his 

offenses have been violent. He explains his poor performance on 

probation by emphasizing the serious abuse he suffered as a 

child, his resulting post-traumatic stress disorder, his failure to 

complete high school, and his lack of employment. Jackson also 

points out he was transient at the time of the instant offense and 

has had issues with drugs, which made it difficult for him to 

comply with probation. Jackson argues that he has positive 

future prospects because his sister has offered him a place to live 

and promised to help him obtain mental health counseling, drug 
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counseling, and a high school diploma. Finally, he asserts he 

would still serve a substantial sentence of three years if his prior 

conviction were struck. 

We are sympathetic to Jackson’s difficult upbringing and 

his sister’s willingness to help him turn his life around. These 

facts, as well as the others Jackson highlights, might have 

reasonably persuaded another trial judge to strike his prior 

conviction. But on appeal, given the abuse of discretion standard 

of review, they are insufficient to warrant reversal. “[A] trial 

court will only abuse its discretion in failing to strike a prior 

felony conviction allegation in limited circumstances.” (Carmony, 

supra, 33 Cal.4th at p. 378.) “ ‘[I]t is not enough to show that 

reasonable people might disagree about whether to strike one or 

more’ prior conviction allegations. [Citation.] Where . . . ‘the 

record demonstrates that the trial court balanced the relevant 

facts and reached an impartial decision in conformity with the 

spirit of the law, we shall affirm the trial court’s ruling, even if 

we might have ruled differently in the first instance’ [citation]. 

Because the circumstances must be ‘extraordinary . . . by which a 

career criminal can be deemed to fall outside the spirit of the very 

scheme within which he squarely falls once he commits a strike 

as part of a long and continuous criminal record, the continuation 

of which the law was meant to attack’ [citation], the 

circumstances where no reasonable people could disagree that 

the criminal falls outside the spirit of the three strikes scheme 

must be even more extraordinary.” (Ibid.)
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Jackson’s personal history, nonviolent offenses, and 

promises of family help are not so extraordinary that every 

reasonable person would agree that they outweigh Jackson’s 

choice to commit new offenses three months into the probation 

period for his prior offense, especially after Jackson had already 

had probation revoked several times earlier. Jackson’s drug 

issues and lack of stable housing may have made it more difficult 

for him to comply with probation, but Jackson does not explain 

why he was unable to reach out to his sister earlier, or what 

about his situation has changed since his prior offenses. The trial 

court could reasonably conclude that the three years Jackson 

would serve if his prior conviction were struck would be 

insufficiently long to put an end to Jackson’s repeated offenses.

Jackson notes that the trial court found his criminal 

behavior had continued “unabated” and cites our Supreme 

Court’s statements that a defendant’s recidivist status is relevant 

but not “ ‘singularly dispositive’ ” and that the three strikes law’s 

purpose of ensuring longer sentences does not “predominate” a 

trial court’s exercise of its discretion to strike prior convictions. 

(People v. Garcia (1999) 20 Cal.4th 490, 501.) The trial court did 

not treat as dispositive Jackson’s status as a recidivist or the 

need to increase his sentence. The record shows the trial court 

considered Jackson’s personal history, criminal history, the 

nature of his offenses, the timing of his offenses, and efforts while 

on probation when determining what sentence was appropriate. 

It did not abuse its discretion in the balance it struck between 

these various concerns.
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II. Dueñas and fines

Jackson argues the trial court correctly found he was 

unable to pay certain fines and fees but violated his right to due 

process under the rationale of Dueñas by not concluding he was 

also unable to pay a $600 restitution fine and $70 in court 

operations and facilities assessments. 

“In a nutshell, Dueñas, supra, 30 Cal.App.5th at pages 

1168–1169, held that a sentencing court violated the due process 

rights of a defendant who committed her acts out of poverty when 

it imposed certain mandatory fees and fines that lack a statutory 

exception without first making a finding the unemployed 

defendant (who suffered from cerebral palsy) had the ability to 

pay while she was on probation.” (People v. Oliver (2020) 

54 Cal.App.5th 1084, 1100.) Several decisions have disagreed 

with Dueñas, and the California Supreme Court is currently 

considering the issue. (E.g., People v. Hicks (2019) 

40 Cal.App.5th 320, review granted Nov. 26, 2019, S258946; 

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

2019, S257844.) In the absence of any guidance from our 

Supreme Court, we adhere to the view expressed in this 

Division’s decision in People v. Cowan (2020) 47 Cal.App.5th 32, 

review granted June 17, 2020, S261952 (Cowan) that 

constitutional challenges to fines or fees based on a claim that a 

defendant cannot pay them should be evaluated under the Eighth 

Amendment and article I, section 17 of the California 

Constitution. (Cowan, at p. 42; see Estate of Sapp (2019) 

36 Cal.App.5th 86, 109, fn. 9 [“Absent a compelling reason, the 
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Courts of Appeal are normally loath to overrule prior decisions 

from another panel of the same undivided district or from the 

same division”].) Four factors are relevant to that type of 

evaluation: “ ‘(1) the defendant’s culpability; (2) the relationship 

between the harm and the penalty; (3) the penalties imposed in 

similar statutes; and (4) the defendant’s ability to pay.’ ” (Cowan, 

at p. 47.)

Cowan was decided long before Jackson filed his briefing in 

this case, but he has not mentioned the four relevant factors. 

Instead, he disputes, based on People v. Belloso (2019) 

42 Cal.App.5th 647, 649–650, review granted Mar. 11, 2020, 

S259755, that analysis of the fines and assessments should 

proceed under the Eighth Amendment and focuses solely on his 

inability to pay. But as Cowan pointed out, People ex rel. Lockyer 

v. R.J. Reynolds Tobacco Co. (2005) 37 Cal.4th 707, 728 treated 

ability to pay as one of several factors relevant to determining 

whether a fine is excessive, not an independently sufficient 

reason to bar a fine. (Cowan, supra, 47 Cal.App.5th at p. 48, 

fn. 20.) We stand by Cowan and decline to analyze Jackson’s fine 

and assessments solely based on his inability to pay.

Because of Jackson’s failure to address all four relevant 

factors, he has not established that the fine and assessments 

imposed by the trial court are excessive under the Eighth 

Amendment or article I, section 17 of the California Constitution. 

(See People v. Miralrio (2008) 167 Cal.App.4th 448, 452, fn. 4 [an 

appellate court is not required to address undeveloped claims or 

ones inadequately briefed]; In re S.C. (2006) 138 Cal.App.4th 396, 
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408 [a judgment is presumed correct on appeal, and to 

demonstrate error, appellant must present meaningful legal 

analysis supported by citations to authority]; see also Cowan, 

supra, 47 Cal.App.5th at p. 49 [defendant bears the burden of 

proving inability to pay].)

Moreover, even if Jackson’s ability to pay were the sole 

relevant consideration, we would affirm the trial court’s 

judgment. The trial court waived some discretionary fines and 

fees and stated that it was required to impose a restitution fine. 

This might suggest that the trial court imposed the remaining 

fines without regard to Jackson’s ability to pay. However, the 

trial court imposed a $600 restitution fine even though the Penal 

Code gave it discretion to impose as little as $300 if it believed 

Jackson was unable to pay a larger amount, and it explained why 

it believed a $600 fine to be appropriate. (§ 1202.4, subds. (b)(1), 

(c)–(d).) We therefore interpret the trial court’s imposition of the 

greater amount as reflecting an implicit finding that Jackson was 

able to pay $670 in fines and assessments.

Despite Jackson’s asserted lack of assets, we perceive no 

error in this finding, because “the evaluation of ability to pay 

must include future ability to pay” and take into account wages 

that a defendant may earn in prison. (Cowan, supra, 

47 Cal.App.5th at p. 49; People v. Kopp, supra, 38 Cal.App.5th at 

p. 96.) Jackson admitted to the psychologist that he was in good 

physical health, and Jackson will serve a six-year prison term 

during which he will likely be eligible to earn prison wages. 

Maximum monthly wages for prison inmates range from $12 to 
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$56, and the California Department of Corrections and 

Rehabilitation will deduct up to half of those wages to pay any 

outstanding restitution fines. (§ 2085.5, subd. (a); Cal. Code 

Regs., tit. 15, § 3041.2, subd. (a)(1).) Even if Jackson earns the 

minimum, he can pay off much of his fine and assessments by the 

end of his prison term. If he follows through on his stated 

intentions to obtain his high school diploma and learn how to get 

a job, he should be able to pay off the rest of his fine and 

assessments after his release. In these circumstances, the fine 

and assessments the trial court imposed are not 

unconstitutionally excessive.

III. Abstract of judgment

The Attorney General argues that the trial court 

improperly failed to impose a six-year sentence for the charge of 

receiving a stolen vehicle before staying that sentence under 

section 654. We disagree with the Attorney General’s reading of 

the record. We conclude from the trial court’s statements at 

sentencing that it first imposed the sentence and then stayed it. 

But we do agree, as does Jackson, that the abstract of judgment 

and minute order fail to reflect the numerical term of six years 

that the trial court imposed and stayed. Those records must be 

corrected. (People v. Mitchell (2001) 26 Cal.4th 181, 185, 188 

[appellate courts can and should correct errors in abstracts of 

judgment].)

DISPOSITION

The judgment is affirmed. The trial court clerk shall 

prepare an amended minute order and abstract of judgment to 
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reflect imposition of a six-year term on count three, stayed 

pursuant to section 654. The trial court clerk shall transmit a 

copy of the amended abstract of judgment to the Department of 

Corrections and Rehabilitation.

BROWN, J.

WE CONCUR:

POLLAK, P. J.

TUCHER, J.

People v. Jackson (A161068)