People v. Sanders CA3

Filed 2/26/21 P. v. Sanders CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, C083382

Plaintiff and Respondent, (Super. Ct. No. CM043507)

v.

KEVIN LAMONT SANDERS,

Defendant and Appellant.

Defendant Kevin Lamont Sanders appeals the imposition of a $39 theft fine under Penal Code section 1202.5.1 He contends the fine was unauthorized as it is punitive and could not be imposed following his Harvey2 waiver. The People agree the fine was

1 Undesignated statutory references are to the Penal Code in effect at the time of the alleged offense. 2 People v. Harvey (1979) 25 Cal.3d 754, 758 (Harvey).

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unauthorized, but for a different reason, the People argue the statute requires the defendant be convicted of an enumerated theft offense and defendant was not. We agree with the People and will strike the fine. In all other respects, the judgment is affirmed. FACTUAL AND PROCEDURAL BACKGROUND Defendant was charged with possession of methamphetamine in jail (§ 4573.6, subd. (a)) and it was further alleged defendant had served two prior prison terms (§ 667.5, subd. (b)) and had a prior strike conviction (§§ 667, subd. (d), 1170.12, subd. (b)). Defendant pleaded no contest to possessing methamphetamine in jail. The trial court suspended imposition of sentence, placed defendant on five years’ formal probation, and granted him drug court. A few months later, the probation department filed a petition to violate defendant’s probation, alleging defendant (1) failed to report for drug testing; (2) moved residences without informing his probation officer; and (3) failed to submit papers to his behavioral health counselor as directed by his probation officer. Shortly thereafter, a complaint in a new case, case No. 16CM0447, charged defendant with misdemeanor petty theft. (§§ 484, 488, 490.5.) Defendant admitted the probation violation allegation that he failed to report for drug testing. The remaining allegations in the petition and the petty theft complaint were dismissed with Harvey waivers. The trial court denied reinstatement on probation and sentenced defendant to the upper term of four years in state prison on the methamphetamine charge. The trial court imposed various fines and fees, including a fine under section 1202.5, “as it applies to the case that was dismissed with a Harvey waiver, 16CM00447.” DISCUSSION Defendant contends the $39 fine ($10 theft fine plus penalty assessments) imposed pursuant to section 1202.5 was improper. We must agree.