People v. Jackson CA2/6

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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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, 2d Crim. No. B303129
(Super. Ct. No. 18F-04137)
Plaintiff and Respondent, (San Luis Obispo County)
v.
JOSHUA STEVEN JACKSON,
Defendant and Appellant.
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.
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.
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