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The People v. Gerald Holt Ayers Iii

May 29, 2012

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
GERALD HOLT AYERS III, DEFENDANT AND APPELLANT.



(Super. Ct. Nos. CRF074342, CRF051990)

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

P. v. Ayers 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

In August 2005, in case No. 051990 (the 2005 case),*fn1 defendant Gerald Holt Ayers III pled no contest to cashing a check with intent to defraud. Imposition of sentence was suspended and defendant was placed on probation for five years on the conditions, among others, that he pay a $200 restitution fine and a $200 restitution fine suspended unless probation is revoked.

In October 2007, in case No. 074342 (the 2007 case), defendant pled no contest to threatening to commit a crime resulting in death or great bodily injury, reckless driving while eluding a pursuing peace officer, resisting an executive officer, and driving under the influence of alcohol or drugs. Defendant admitted that, as a result of these convictions, he violated his probation in the 2005 case.

Defendant was sentenced to state prison for four years four months in the 2007 case plus eight months consecutive in the 2005 case. Execution of sentence was suspended and defendant was again placed on probation for five years on the conditions, among others, that he pay a $200 restitution fine and a $200 restitution fine suspended unless probation is revoked.

In November 2010, defendant admitted that he violated his probation in both cases. In December 2010, the trial court ordered execution of the prison sentence. The court orally imposed a $200 restitution fine in each case. Then, turning to matters that had not been part of the suspended sentence, the court orally imposed a $200 parole revocation fine and a $30 "court construction fee assessment" in each case. Defendant was awarded 229 days' custody credit and 114 days' conduct credit.*fn2

In addition to these orally pronounced fines and fees, the abstract of judgment reflects a $200 probation revocation fine in each case.

On appeal, defendant contends the trial court erred by imposing restitution fines following revocation of probation that were in addition to, or greater than, the fines imposed at the original sentencing hearing. Defendant also contends, and the People concede, the $30 criminal conviction assessments must be stricken because the statutes do not apply to convictions that occurred prior to the January 1, 2009, effective date. We shall modify the judgment.

FACTS*fn3

The 2005 Case

Defendant wrote insufficient funds checks ...


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