A judge said Thursday that he will consider imposing a tougher sentence for an attorney and former San Ramon resident who killed a bicyclist in a hit-and-run collision in Dublin in 2012 if he concludes that the attorney misled him at sentencing hearings last year.
Spencer Freeman Smith, 36, pleaded no contest to felony hit-and-run and misdemeanor vehicular manslaughter for striking and killing 57-year-old Bo Hu on Dougherty and Fall Creek roads in Dublin on May 15, 2012, and was back in court Thursday morning.
Alameda County Superior Court Judge Michael Gaffey said of Smith, "If he's found to have intentionally misled the court, then there could be greater consequences than those that already have been imposed and there could be a different penalty."
Smith's attorney, Rebecca Feigelson, said, "I don't think that will happen," saying she doesn't think that Smith misled the court, but Gaffey told her, "You're not the judge."
Thursday's hearing was on the issue of whether Smith misled Gaffey at two sentencing hearings last fall by asking to delay serving his jail term because his wife's health was precarious.
But Gaffey postponed the matter until June 10 after Feigelson said Smith's wife can't come to court because her pregnancy is "high-risk" and she's not supposed to travel until after she gives birth, which is scheduled to happen on April 22.
Smith practiced law in San Francisco and lived in San Ramon at the time of the fatal crash that killed Hu. He and his family now live in Santa Ana in Orange County.
After Smith entered his plea, Gaffey could have sentenced him to up to three years and four months in state prison, but at a hearing last Sept. 25 he chose not to send him to prison and instead placed him on five years' felony probation, including one year in the county jail that he could serve at home via electronic monitoring after serving 30 days in jail.
At a hearing two weeks later on Oct. 12, Gaffey reduced Smith's felony hit-and-run conviction to a misdemeanor and reduced his sentence to three years' misdemeanor probation.
At both sentencing hearings, Smith asked to delay serving his jail time because his wife was in delicate health because of her pregnancy and needed bed rest and Gaffey ultimately granted Smith's request.
But prosecutor Matt Gaidos said Smith and his wife then traveled to Dubai for a vacation one week after the Oct. 12 hearing and failed to notify his probation officer, even though he wasn't supposed to travel outside of California.
Gaffey said, "There seem to be some inconsistencies" between what Smith said and his actions afterward.
At a hearing two weeks ago, Gaffey placed Smith back on five years' felony probation and ordered him to serve a year in the county jail after finding that Smith failed to live up to the terms of his probation and his plea agreement with the court by testing positive for cocaine on Oct. 29 after he returned from the trip to Dubai.
Smith was placed in custody at Santa Rita Jail in Dublin in January after he failed to appear in court for a hearing in his case.
Feigelson asked Gaffey Thursday to allow Smith to be placed back on an electronic monitoring program or at least be allowed to serve the rest of his jail term at a facility in Santa Ana so he can be close to his wife and children, but Gaffey denied both requests.
Gaffey said, "The answer is no. Mr. Smith has been given enormous opportunities and he hasn't complied with them. The court is not prepared to give him what he wants because he wants it."
The fatal collision reportedly occurred after Smith had been out drinking with a paralegal from his law firm.
Hu was a Chinese tourist who was in the country for his fiancee's relative's graduation and Smith's case has received widespread attention in China.
Smith was arrested two days after the fatal collision when Dublin police identified him as the owner of a recently purchased black 2012 Mercedes-Benz CLS550 connected with the collision.
Dublin police said Smith's car sustained extensive windshield and front-end damage and was missing parts that were recovered at the scene of the collision.