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The People v. Stephen Arthur Smith

November 9, 2011

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
STEPHEN ARTHUR SMITH, DEFENDANT AND APPELLANT.



(Super. Ct. No. 09F03926)

The opinion of the court was delivered by: Hull , J.

P. v. Smith CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Defendant Stephen Arthur Smith entered a plea of no contest to reckless driving while fleeing a law-enforcement officer, in exchange for which he received a stipulated prison term, suspension of execution of sentence, and probation conditioned, inter alia, on a one-year jail term. On appeal, defendant contends the written minute order granting probation is at odds with the trial court's oral rendition of judgment wherein the court stated an intent to strike any discretionary fine or fee, whereas the written order imposed booking and classification fees that were discretionary upon a finding that a defendant does not have the ability to pay them. We must vacate the order and remand the matter to the trial court for resentencing.

FACTS AND PROCEEDINGS

The prosecutor recited the stipulated factual basis for the plea. In March 2009, defendant attempted to evade a peace officer. In the process, he drove through three stop signs, drove against traffic on a one-way street, and, after stopping, switched seats with his passenger and got out of the car through the passenger's door.

A written draft of the specific conditions of probation prepared prior to sentencing provided for imposition of a $400 restitution fine (and its parallel stayed revocation fine), the court security and facilities fees, and the fees for booking and classification (citing Government Code section 29550.2 as the basis for the latter). The written draft probation conditions also provided for the collection of small amounts for the monthly costs of probation supervision and drug testing. It did not include any provision for reimbursement of defendant's legal fees.

At the outset of the sentencing hearing, defense counsel requested that the trial court consider "medical home detention" for the jail term. The court eventually agreed to this request based on defendant's unspecified medical condition, but would not release defendant on his own recognizance to tend to "several bags that need to be changed" which were apparently leaking and emitting odors.

In determining if the plea was an informed and voluntary decision, the court questioned defendant about his medications, which included three types of pain-killers, a blood-thinner, and pancreatic enzymes. Defense counsel persuaded the trial court to give defendant an extra day to report to his probation officer after the hearing because "he does have quite a few physical limitations, and now . . . he won't be able to drive."

After entering his plea, defendant waived referral for a probation report and agreed to immediate sentencing. Defense counsel asked the trial court to impose the minimum financial obligation possible because defendant was indigent. The prosecutor did not raise any objection to the request.

In its oral rendition of judgment, the trial court adopted the draft conditions of probation, which defendant had reviewed with his attorney, "with the following exceptions: [¶] The restitution fine listed in item number four is reduced to the minimum of $200. [¶] All other mandatory fines and fees are imposed. [¶] Those that are discretionary are waived." The trial court also awarded 60 days of conduct credit for 61 days of actual custody.

Adjusting the amount of the restitution fine, the minute order reiterated the provisions of the written draft. It also struck the provisions for collecting the costs ...


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