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The People v. Desmond Lee Sear

March 27, 2013

THE PEOPLE, PLAINTIFF AND RESPONDENT,
v.
DESMOND LEE SEAR, DEFENDANT AND APPELLANT.



(Super. Ct. No. 10F04592)

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

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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Pursuant to a negotiated disposition, defendant Desmond Sear pled no contest to two counts of robbery (Pen. Code,*fn1 § 211), and admitted he personally used a firearm (§ 12022.53, subd. (b)), in exchange for a stipulated sentence of 13 years in prison. The trial court also imposed various fines and fees.

On appeal, defendant contends the abstract of judgment must be corrected to reduce the restitution fine (§ 1202.4) from $3600 to $240. He further contends the theft-related crime prevention fine (§ 1202.5) must be vacated because the trial court did not orally impose it.

We shall remand to permit the trial court to clarify the amount of the restitution fine and impose a mandatory parole revocation in like amount. We shall order the abstract of judgment corrected to delete the crime prevention fine under section 1202.5.

BACKGROUND

Defendant and two others committed a home invasion robbery against a woman and her 11-year-old son. Defendant personally used a gun.

In an amended information, the People charged defendant and the two others with two counts of first degree robbery and one count of first degree burglary (§ 459) and alleged defendant personally used a firearm in the commission of the robberies. Pursuant to a plea bargain, defendant pled no contest to the two robbery counts and admitted the personal use of a firearm as to the second count in exchange for a stipulated sentence of 13 years.

Defendant asked to delay sentencing so that the probation department could review information that defendant had been admitted into a program at Delancey Street. The People requested immediate sentencing, indicating they would not consent to placement at Delancey Street. The trial court found delay fruitless because, in the court's view, Delancey Street was not an option in lieu of 13 years in prison.

After sentencing defendant to 13 years in prison, in accordance with the terms of the plea bargain, the trial court turned to fines and fees. The court stated, "Mr. Sear is being ordered to pay the restitution fine as outlined by the probation department. He's also being ordered to pay the minimum amounts of the mandatory fines and fees. That's a $40 court operations assessment, $30 dollar criminal conviction assessment, $240 restitution fine. Jail, booking, and classification fees are waived."

The probation report recommended a restitution fine of $3,600, as well as an additional restitution fine (parole revocation fine) in the same amount under section 1202.45, suspended unless defendant's parole was revoked. The report also recommended a crime prevention fine of $20 ($10 for each offense) pursuant to section 1202.5.

The abstract of judgment reflects restitution fines of $3,600 pursuant to sections 1202.4, subdivision (b) and 1202.45. It also recites a ...


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