People v. Jackson CA1/4 ( 2021 )

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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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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,
A161068
v.
TRAVON LATRELL (Contra Costa County
JACKSON, Super. Ct. No. 52003606)
Defendant and
Appellant.
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.
2
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 post-
traumatic 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 mid-
term 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)
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