People v. Smith CA3

Filed 6/4/15 P. v. Smith CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Yuba) ----

THE PEOPLE, C077880

Plaintiff and Respondent, (Super. Ct. No. CRF14183)

v.

ALEX SMITH IV,

Defendant and Appellant.

In this appeal, defendant Alex Smith IV contends, and the People agree, the trial court’s imposition of a no-visitation order between defendant and the victim under Penal Code1 section 1202.05 was unauthorized, and the order must be stricken, because the statutes under which defendant was convicted are not among those that allow for imposition of a section 1202.05 no-visitation order and because the victim was not a

1 Further undesignated section references are to the Penal Code.

1

minor at the time of sentencing. We agree with the parties on this point; however, we also conclude the trial court erred in not considering whether to issue a no-contact order under section 136.2, subdivision (i)(1), because that statute requires the court to consider issuing such an order whenever the defendant is convicted of a crime that requires sex offender registration, as defendant was here. Accordingly, we will strike the existing no- visitation order and remand the case to the trial court to consider whether to impose a no- contact order under section 136.2. FACTUAL AND PROCEDURAL BACKGROUND In March 2014, defendant introduced himself to the victim over the Internet. Shortly thereafter, they met in person. After repeatedly telling the victim that she needed to make money if she wanted to be in a relationship with him, and despite the victim’s protests that she was not interested in prostituting herself, defendant had a friend create an online advertisement in her name. Multiple responses were received, and defendant drove the victim to meet a potential customer. The victim was in contact with defendant via text message while she and the customer negotiated what acts would be performed and what those acts would cost. A Yuba County Sheriff’s Deputy contacted the victim and customer and found out they were meeting for sex. The victim was 17 years old at the time of this encounter. Following defendant’s eventual arrest, he contacted the victim and told her to tell the police she had lied about his actions. The victim told the Yuba County District Attorney’s Office investigator about defendant’s call and other calls from an unknown woman using defendant’s cell phone calling the victim a “ ‘snitch’ ” and a “ ‘snitch ass bitch’ ” and telling the victim, “ ‘when I see you, I’m going to fucking kill you.’ ” Defendant was charged with (among other things) persuading a minor to engage in a commercial sex act and making criminal threats. Defendant eventually pled no contest to these two charges and the remainder of the charges were dropped. In November 2014, the trial court sentenced defendant to five years and eight months in prison, required him