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LOS ANGELES , CA - OCTOBER 28: Howard K.Stern appears outside the courthouse after a verdict was reached for Sandeep Kapoor, Khristine Eroshevich and Howard K. Stern at the Criminal Court on October 28 2010, in Los Angeles, California. (Photo by Toby Canham/GettyImages)
Superior Court Judge Robert Perry found Thursday that Stern never had the intent to defraud when he used his name and others to protect Smith's privacy when he obtained prescriptions for her.
Perry also found that psychiatrist Khristine Eroshevich was acting out of concern for Smith and cited her long career and service to the community in deciding to sentence her to no more than one year of probation and a $100 fine for obtaining one Vicodin prescription under a false name
"I don't think there's evidence that a layperson knows it's illegal to write a prescription in another name for a celebrity," the judge said.
Prosecutors had asked the judge Thursday morning to sentence Stern and Eroshevich to five years probation and community service for conspiring to provide prescription medications to the one-time Playboy Playmate.
After a lengthy trial and 13 days of jury deliberations, Howard K. Stern, 42, and Dr. Khristine Eroshevich, 63, were convicted on Oct. 28. Stern was convicted of two charges that he conspired to provide prescription medications to the onetime Playboy Playmate and reality star. Stern -- who was also Smith's attorney -- was acquitted of seven other charges, including unlawfully prescribing a controlled substance.
Eroshevich, a psychiatrist who lived next door to Smith in Studio City, was convicted of two conspiracy charges and one count each of unlawfully prescribing a controlled substance and unlawfully obtaining a prescription by giving a false name. Jurors deadlocked on two other counts against the doctor.
A third defendant, Dr. Sandeep Kapoor, was acquitted of all six charges against him.
The three were not charged with Smith's Feb. 8, 2007, accidental drug overdose death in Florida at age 39.
Perry said in September that he saw weaknesses in the prosecution's case, but felt he had to let the jury decide most of the charges. He said that in the past he had changed verdicts when he did not agree with them.
Prosecutors Asked for Probation Based on Lack of Prior Records
Although Stern and Eroshevich faced up to three years and eight months in prison, prosecutors asked in a sentencing memorandum filed this week that they be placed on probation for five years. Prosecutors asked that Stern be ordered to perform 300 hours of Caltrans work and pay a $5,000 fine.
They asked that Eroshevich be given five years probation, along with 300 hours of community service determined by the California Medical Board and a $5,000 fine. Prosecutors also asked that Eroshevich be barred for prescribing certain controlled substances.
"The people believe that based on the defendants' lack of prior criminal records, and based upon the jury verdicts, that a sentence of probation is appropriate," Deputy District Attorney Sean Carney wrote in the sentencing memorandum. "The defendants, however, should be required to pay a significant find and perform community service to provide a sufficient deterrent against future criminal conduct, and to provide a general deterrent to the community at large.''
Attorneys for Stern and Eroshevich filed motions requesting a new trial and asking that the convictions be either thrown out or reduced to misdemeanors. The defense contends that doctors regularly use phony names to obtain prescriptions for celebrities to protect their privacy.
Carney insisted in his papers, however, that the pair were not just protecting Smith's privacy, but engaged in a pattern of behavior that persisted for several years and warranted felony convictions.