People v. Smith CA6

Filed 12/20/21 P. v. Smith CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H048519 (Santa Clara County Plaintiff and Respondent, Super. Ct. No. C1921526)

v.

MICHAEL PERNELL SMITH,

Defendant and Appellant.

Appellant Michael Pernell Smith appeals the imposition of a supervision fee in light of a subsequent statutory amendment rendering the fee unenforceable and uncollectible. We order the fee vacated. I. PROCEDURAL BACKGROUND1 On February 19, 2020, the Santa Clara County District Attorney charged Smith by information with inflicting corporal injury on a specified person (Pen. Code, §273.5 subd. (a)2; count 1), false imprisonment (§ 236; count 2), attempting to dissuade a victim or witness from prosecuting a crime (§ 136.1, subd. (b)(2); count 3), and five counts of misdemeanor violation of a protective order (§ 166, subd. (c)(1); counts 4–8).

As the facts of Smith’s crimes have no bearing on the issue he advances in this 1

appeal, we do not recount them. 2 Unspecified statutory references are to the Penal Code.

On August 17, 2020, Smith pleaded no contest pursuant to a written plea agreement. The People amended count 1 to a misdemeanor violation of section 273.5, subdivision (a), and Smith pleaded no contest to the amended count 1 and to counts 2 and 4 of the information. He agreed to serve a state prison sentence of three years pursuant to section 1170, subdivision (h), one year of which would be spent in custody followed by two years of mandatory supervision. 3 On October 1, 2020, the trial court denied Smith probation and imposed a prison term of three years on count 2 (§ 1170, subd. (h)(5)(B)) and 364 days on counts 1 and 4, to be served concurrently with count 2. The court awarded 385 days of custody credit. The court deemed satisfied the jail sentences on counts 1 and 4 and ordered Smith to serve on mandatory supervision the remaining 710 days of his sentence on count 2.4 The court dismissed counts 3, 5, 6, 7, and 8. (§ 1385.) The court imposed both a $900 restitution fine (§ 1202.4, subd. (b)) and a suspended restitution fine (§ 1202.45) and stayed them pursuant to People v. Duenas (2019) 30 Cal.App.5th 1157. The court waived all other fees except for a monthly supervision fee of $10. (§ 1203.1b.) II. DISCUSSION Assembly Bill No. 1869 (2019–2020 Reg. Sess.) (Assembly Bill 1869) repealed the statute authorizing the supervision fee (section 1203.1b), which at the time of Smith’s sentencing authorized a trial court to order defendants placed on mandatory supervision