P. v. Hardrick
Filed 4/14/06 P. v. Hardrick CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
| THE PEOPLE, Plaintiff and Respondent, v. CHARLES HARDRICK, Defendant and Appellant. | H028778 (Santa Clara County Super. Ct. No. CC448319) |
Defendant Charles Hardrick was convicted by no contest plea of lewd conduct on a child (Pen. Code, § 288, subd. (a)),[1] unlawful sexual intercourse with a minor more than three years younger than himself (§ 261.5, subd. (c)), and misdemeanor child molest
(§ 647.6, subd. (a)). The court sentenced him to three years in state prison and ordered him to pay $102,100 in victim restitution (§ 1202.4) and a $10 fine and penalty assessments pursuant to section 1202.5. On appeal defendant contends that the court's victim restitution order was arbitrary and capricious, and that the fine imposed pursuant to section 1202.5 must be stricken. We agree with both contentions. We will reverse the judgment and remand the matter to the trial court with directions to strike the $10 fine and to hold a new victim restitution hearing.
BACKGROUND
On January 8, 2004, 14-year-old Jane Doe (Jane) reported to police that she had had sexual relations with defendant. The sexual relations began around October 2003, when Jane was 13 years old. Jane said that she met defendant through a school mate who was defendant's friend. She said that he talked her into having sex with him but that he did not force her to do so. The sexual relations consisted of defendant placing his penis into Jane's vagina, defendant placing his fingers into her vagina an unknown number of times, and Jane orally copulating defendant on three occasions.
Defendant admitted meeting Jane through a friend who was her school mate. At the time defendant was 20 years old. He knew that Jane was in high school when he began having sexual relations with her, but reported that he initially believed that she was 17. He had sexual intercourse with her approximately once a week for one month. He denied having any oral sex with her. He discovered how old Jane Doe was when she informed him that she was about to turn 14. He then ceased sexual relations with her, except that they had sex on one more occasion three weeks later.[2]
Defendant was charged by felony complaint filed April 1, 2004, with lewd conduct on a child under 14 (§ 288, subd. (a); count 1), unlawful sexual intercourse with a minor more than three years younger than defendant (§ 261.5, subd. (c); count 2), and misdemeanor child molest (§ 647.6, subd. (a); count 3). The complaint further alleged that defendant had substantial sexual conduct with the victim during the commission of the offense in count 1 (§ 1203.066, subd. (a)(8)).
On September 2, 2004, defendant entered a negotiated plea of no contest to the charges. Conditions of the plea included the dismissal of the probation ineligibility allegation and a maximum sentence of three years in state prison. The court ordered a probation report and set the matter for sentencing on October 29, 2004. The probation report recommended that probation be denied, that defendant be sentenced to three years in state prison, and that he be ordered to pay â€
