California Court of Appeal Jul 30, 2014 No. E058585Unpublished
Filed 7/30/14 P. v. Smith CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION TWO
THE PEOPLE,
Plaintiff and Respondent, E058585
v. (Super.Ct.No. FSB1105827)
LARRY MICHAEL SMITH, OPINION
Defendant and Appellant.
APPEAL from the Superior Court of San Bernardino County. Bridgid M.
McCann, Judge. Affirmed as modified.
Jeanine G. Strong, under appointment by the Court of Appeal, for Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney
General, Julie L. Garland, Assistant Attorney General, William M. Wood, Meagan J.
Beale and Felicity Senoski, Deputy Attorneys General, for Plaintiff and Respondent.
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Defendant Larry Smith is on three years of formal probation after a jury convicted
him of grand theft of personal property for taking construction equipment and other items
from the property he was renting. Although he agreed to them at sentencing, defendant
now challenges the probation conditions regarding alcohol and the finding that he has the
within the six months following the hearing date; and “[t]he likelihood that the defendant
shall be able to obtain employment within a six-month period from the date of the
hearing.” (§ 987.8, subds. (g)(2)(A), (B) & (C).) “[T]here is a presumption under the
statute that a defendant sentenced to prison does not have the ability to reimburse defense
costs. Subdivision (g)(2)(B) of section 987.8 provides in pertinent part: ‘Unless the
court finds unusual circumstances, a defendant sentenced to state prison shall be
determined not to have a reasonably discernible future financial ability to reimburse the
costs of his or her defense.’” (Flores, supra, 30 Cal.4th at p. 1068.)
Here, the record shows the trial court did not overtly or implicitly consider the
above factors, as it was required to do.
Defendant was ordered to serve six months in jail with credit for a little more than
30 days served. We might consider this sufficient evidence that defendant could not pay
the counsel fee, except that the trial court commented that defendant was unlikely to
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spend more than 90 days in jail, and “may end up with weekends.” In addition, although
defendant had a history of self-employment at which he earned between $2,000 and
$4,000 per month, he also reported medical debts from a hospital stay of between $8,000
and $12,000. Based on this mixed record, we are unable to reliably determine whether
defendant had the present ability to pay the counsel fee. However, in the interest of
conserving the judicial resources that would be expended in a remand to hold a hearing
on this issue, we strike the counsel fee.
DISPOSITION
The judgment is modified to strike the $200 counsel fee. In all other respects, the
judgment is affirmed.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS GAUT J.*
We concur:
RAMIREZ P. J.
RICHLI J.
* Retired Associate Justice of the Court of Appeal, Fourth Appellate District, Division Two, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the defendant waived his challenges to alcohol-related probation conditions by failing to object at sentencing, but that the trial court erred in imposing counsel fees without conducting the required ability-to-pay determination. Consequently, the court struck the counsel fees and otherwise affirmed the judgment.
Issues
Whether the defendant waived his challenge to alcohol-related probation conditions by failing to object at the sentencing hearing.
Whether the alcohol-related probation conditions are unconstitutionally overbroad or vague.
Whether the trial court erred in ordering the defendant to pay $200 in counsel fees without determining his ability to pay.
Disposition. Affirmed as modified.
Quotations verified verbatim against the opinion
“The judgment is modified to strike the $200 counsel fee. In all other respects, the judgment is affirmed.”