P. v. Smith

Filed 10/19/06 P. v. Smith CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Yuba)

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This appeal involves three cases consolidated for sentencing: case Nos. CRF04-752, CRF05-603 and CRF05-636.

In December 2004, defendant Kevin Dean Smith pleaded guilty in case No. CRF04-752 to attempting to evade a peace officer with willful or wanton disregard, a felony (Veh. Code, § 2800.2, subd. (a)) and driving with a suspended license, a misdemeanor (Veh. Code, § 14601.2), and pleaded no contest to violating a court order, a misdemeanor (Pen. Code, § 273.6, subd. (a)).^[1] He also admitted two prior convictions for driving with a suspended license.

Defendant was placed on three years formal probation, on conditions, among others, that he serve 90 days in county jail, with credit for 26 days, and “have no contact with” and “remain 100 yards from” Shawna Langley’s “person, residence, place of employment and school,” “except to facilitate visitation.” He was also ordered to “pay applicable installment collection fees, the monetary considerations are on page 13 and 14 [of the probation report], at the direction of [the] Probation[ Department].” The monetary considerations referenced by the trial court were as follows: “Pay a fine in the amount of $500, plus penalty assessment and surcharges through the Yuba County Municipal Court. Pay a restitution fine in the amount of $200, plus a 10% collection fee in the amount of $20. Pursuant to [s]ection 1202.44, . . . pay an additional $200 restitution fine, suspended, with suspension lifted upon revocation of probation. Pay $20 per month while on probation and not incarcerated for the cost of probation services. Pay $370 for the costs of preparing the presentence report. Pay the cost of attorney fees in an amount as determined by the [c]ourt. Pay the cost of medical fees while incarcerated in an amount as determined by the Revenue & Recovery Officer. Pay a booking fee in the amount of $43.50 to Yuba County. Pay a [c]ourt security fee of $20 pursuant to [s]ection 1465.8[.]”

In June 2005, the trial court found that defendant had violated his probation in case No. CRF04-752 after he pleaded no contest in another case to violating a court protective order by driving his vehicle within 100 yards of Shawna Langley’s residence. Probation was terminated and defendant was sentenced to the upper term of three years in state prison on the evading count, with credit for 108 days (72 actual days and 36 good conduct). He was sentenced to a concurrent 12-month term in jail for violating a court order and a concurrent six-month term in jail for driving with a suspended license. The trial court affirmed the previously imposed $200 restitution fine and imposed a $200 parole revocation fine (§ 1202.45) and a $20 court security fee (§ 1465.8) and ordered defendant to provide samples (§ 296). Execution of sentence was stayed, and defendant was released on his own recognizance so that he could settle the affairs of his recently deceased mother’s estate. When defendant failed to appear on the date set for remand, a bench warrant was issued.

Meanwhile, additional charges were filed against defendant. Defendant was charged in case No. CRF05-603 with stalking when there was a court order in effect prohibiting such behavior (§ 646.9, subd. (b)), false imprisonment (§ 236) and battery, a misdemeanor (§ 242). He was charged in case No. CRF05-636 with making criminal threats, a felony. (§ 422.)

Defendant pleaded no contest in case No. CRF05-603 to stalking in exchange for a stipulated sentence of four years--the upper term. In addition, defendant pleaded no contest in case No. CRF05-636 to making criminal threats. In exchange for his pleas, two other cases were dismissed; however, defendant entered a Harvey waiver with respect to a charge of vehicle theft (Veh. Code, § 10851) in one of the dismissed cases. (People v. Harvey (1979) 25 Cal.3d 754.)

The trial court vacated defendant’s previously imposed three-year sentence in case No. CRF04-752. The court sentenced defendant to an aggregate term of five years four months in state prison, consisting of the upper term of four years in case No. CRF05-603 for stalking, with credit for 74 days (50 actual days and 24 good conduct); a consecutive eight months (one-third the midterm) in case No. CRF04-752 for evading a peace officer, with credit for 121 days (81 actual days and 40 good conduct);^[2] and a consecutive eight months (one-third the midterm) in case No. CRF05-636 for making criminal threats. In addition, defendant was sentenced in case No. CRF04-752 to a concurrent term of one year in jail for disobeying a court order and a concurrent term of two months in jail for driving with a suspended license. The trial court imposed $200 restitution fines and $200 parole revocation fines in each of the three cases. In case No. CRF04-752, the court affirmed that the “previously ordered fine of $500 will be paid”^[3] and imposed a $20 court security fee. In case No. CRF05-603, the court ordered defendant to pay victim restitution in the amount of $1,500 and retained “jurisdiction over the issue of ordering additional restitution upon properly[]noticed motion[.]” The court also ordered defendant to provide samples. (§ 290.)

Defendant appeals. He did not obtain a certificate of probable cause. (§ 1237.5.)

We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief. More than 30 days have elapsed, and we have received no communication from defendant.

Having undertaken an examination of the entire record, we find no arguable error that would result in a disposition more favorable to defendant.

Disposition

The judgment is affirmed.

DAVIS , Acting P.J.

We concur:

HULL , J.

CANTIL-SAKAUYE , J.

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^[1] Further undesignated section references are to the Penal Code.

^[2] The trial court initially awarded defendant 108 days of credit in case No. CRF04-752. On March 21, 2006, however, the trial court issued a minute order finding that defendant was entitled to 121 days of credit and directing the clerk to prepare an amended abstract of judgment to reflect this change. A copy of the minute order was served on this court. Defendant’s appellate counsel states that she has been advised that an amended abstract has been issued.

^[3] We assume this fine is related to defendant’s conviction for driving with a suspended license because the trial court ordered it to be paid to the Yuba County Municipal Court.