People v. Smith CA1/5

Filed 9/13/23 P. v. Smith CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE, Plaintiff and Respondent, A166955 v. MICHAEL REDELL SMITH, JR., (Alameda County Defendant and Appellant. Super. Ct. No. 175211)

MEMORANDUM OPINION Defendant Michael Redell Smith, Jr., appeals from a September 2022 order summarily denying his petition for resentencing under former Penal Code section 1170.95 (now section 1172.6).1 His appointed counsel filed a brief identifying no arguable issues and requesting that we conduct an independent review of the record under People v. Wende (1979) 25 Cal.3d 436 and People v. Delgadillo (2022) 14 Cal.5th 216 (Delgadillo). Defendant filed a supplemental letter brief. We have evaluated the arguments raised in that

1 We resolve this case by memorandum opinion. (Cal. Stds. Jud. Admin., § 8.1.) Undesignated statutory references are to the Penal Code. We refer to the statute by its current number. Our brief summary of the facts underlying defendant’s conviction—derived from our unpublished opinion in his prior appeal (People v. Smith (May 17, 2018, A149655))—is intended solely for context.

1

brief, and we have exercised our discretion to independently review the record for arguable issues. (Delgadillo, at pp. 226–230, 232.) We find no merit to defendant’s arguments, but we conclude the unpaid balance of the probation investigation fee imposed under former section 1203.1, subdivision (b) must be vacated. The prosecution charged defendant with first degree murder (§ 187, subd. (a)). At trial, the prosecution offered evidence that defendant approached the victim and—from a few inches away—shot him in the throat. The victim died from multiple gunshot wounds. Defendant testified he fired his gun in self-defense. In 2016, a jury convicted defendant of second degree murder (§ 187, subd. (a)) and found true an allegation that he personally and intentionally discharged a firearm causing death (§ 12022.53, subd. (d)). The trial court sentenced defendant to 40 years to life in prison, comprised of 15 years to life on the murder conviction and 25 years to life for the firearm enhancement. Defendant appealed. We reversed the sentence imposed for the firearm enhancement and remanded to permit the lower court to exercise its discretion to strike or dismiss the enhancement under section 12022.53, subdivision (h). In all other respects, we affirmed. At a December 2018 resentencing hearing, the trial court set aside the section 12022.53, subdivision (d) enhancement, and it exercised its discretion to impose a determinate 10-year prison term under subdivision (b). The court reduced defendant’s sentence to 25 years to life, awarded him additional presentence credits, and ordered him to pay a $250 probation investigation fee.2