People v. Smith CA3

Filed 12/5/14 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Butte) ----

THE PEOPLE, C073978

Plaintiff and Respondent, (Super. Ct. No. CM036324)

v.

JAMES STEVEN SMITH,

Defendant and Appellant.

Defendant James Steven Smith pleaded no contest plea to felony driving with a blood alcohol level of 0.08 percent or higher (Veh. Code, § 23152, subd. (b); count 2) and admitted a 2005 prior felony driving under the influence related conviction (Veh. Code, § 23550.5). The court dismissed count 1, driving under the influence (Veh. Code, § 23152, subd. (a)), on the People’s motion. The court sentenced defendant to state prison for the upper term of three years and imposed various fees and fines.

1

Defendant appeals. His request for a certificate of probable cause (Pen. Code, § 1237.51) was denied. He contends that when the trial court imposed the $840 restitution fine, the $840 parole revocation restitution fine (parole fine), and the $465 fine authorized by Vehicle Code section 23550.5, the court was unaware of its discretion to set these fines at lower amounts and failed to consider relevant factors in determining the amounts. We conclude that defendant has forfeited these claims by failing to raise them below. Defendant also contends and the People concede that the trial court was required to set forth the statutory authority for two penalty assessments on the $465 Vehicle Code fine -- the $4 “EMAT” fee and the $5 “DMV” fee. We direct the trial court to correct the abstract by setting forth the statutory authority for “EMAT” fee and “DMV” fee. We affirm. FACTUAL AND PROCEDURAL BACKGROUND Prior to sentencing, the probation officer recommended numerous fees and fines including a $840 restitution fine, a $840 parole revocation restitution fine, a $465 fine plus penalty assessments totaling $1,886, a $30 conviction assessment fee, a $40 court operations assessment, and a $736 presentence investigation report fee. The probation officer noted that defendant had numerous prior convictions (6 felonies and 15 misdemeanors) and was on probation at the time of the February 2012 offense. The 59- year-old defendant had previously worked in construction and warehousing from 1979 to 2000 and for the last 13 years had been unemployed because of legal issues, health issues, and incarceration but claimed a monthly income of $825 from employment and social security disability. The probation officer noted that defendant’s ability to pay fines and fees was unknown due to his disability and poor health. But the probation officer also included defendant’s statement about the current offense wherein defendant