Rickard
Filed 11/7/13 P. v. Rickard 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NOT TO BE PUBLISHED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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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,
v.
CHARLES
FRANK RICKARD,
Defendant and Appellant.
A137215
(Del Norte County
Super. Ct. No. CRF12-9394)
Charles
Frank Rickard entered a negotiated guilty plea to one count of
& Saf. Code, § 11351),
name="_ftnref1" title="">[1] one
count of possession for sale of ecstasy
(§ 11378), and one count of maintaining a place for selling or using
controlled substances (§ 11366). A
stipulated term of the plea agreement
was that Rickard would be sentenced to a prison term of two years on each count,
to be served concurrently. The trial
court imposed the agreed term of imprisonment, but also imposed a $10,000 fine,
pursuant to section 11352.5, and ordered Rickard to pay $500 in attorney fees,
pursuant to Government Code section 27712 and Penal Code section 987.8. Rickard appeals, challenging the sentence insofar
as it imposed the section 11352.5 fine and ordered the reimbursement of
attorney fees. We conclude that the
attorney fees order must be reversed and that the section 11352.5 fine must be
stricken.
According
to the presentence report, on February 16, 2012, law enforcement executed a
search warrant at Rickard’s residence. They
found various drugs, including heroin and methylenedioxymethamphetamine (MDMA
or ecstasy), as well as hypodermic needles, methamphetamine pipes, digital scales,
razor blades, zip lock baggies, pay/owe sheets, and $1,470 in cash.
Rickard was
charged, by complaint, with possession for sale of heroin (§ 11351; count 1),
possession for sale of oxycodone (§ 11351; count 2), possession for
sale of ecstasy (§ 11378; count 3), possession of heroin
(§ 11350; count 4), possession of ecstasy (§ 11377; count 5),
and maintaining a place for unlawfully selling or using controlled substances
(§ 11366; count 6). No
enhancement allegations based on the amount of drugs involved were included in
the complaint.
At his
arraignment, Rickard pleaded not guilty.
However, he later changed his plea, pursuant to a negotiated
disposition, and pleaded guilty to counts 1, 3, and 6. Rickard’s signed plea declaration
provided: “I understand in addition to
incarceration I could receive . . . the following penalties and
consequences: [¶] a. A fine up to
$10,000 plus penalty assessment. [¶] . . . [¶] h. I will be required to make restitution to any
victim. [¶] . . . [¶] Bargain as Follows: Defendant to plead to Count 1 and Count 3 [
each count, concurrent to each other. [¶] . . . I understand
that the Court will not decide whether to accept a plea or sentence bargain or
to impose sentence or extend probation until a Probation Officer makes an
investigation and reports on my background, prior record (if any) and the
circumstances of the case. [¶] . . . [¶] . . . I
understand that my plea bargain will be reviewed by the judge who will be
sentencing me. I further understand that
that judge will have the power to refuse to accept my bargain, but, if he
should refuse, I have the right to withdraw my plea.â€
On September
18, 2012, the Honorable Carl Bryan II accepted Rickard’s plea, referred the
matter to probation for a presentence investigation and report, took an
continued the matter for sentencing. The
prosecutor stated: “For the record I
just ask it reflect the indicated term is two years. And as part of the conditions, [Rickard] is
forfeiting all his money and items seized.†Defense counsel responded: “Those items deemed to be part of his
criminal activity would be forfeitable.â€
Judge Bryan stated: “All right. That will be the order.â€
In advance of
sentencing, the probation department prepared its presentence report, which
provided: “Given all the factors in this
case: [Rickard’s] underlying motivation,
the quantity and volume of substances, and the sophisticated nature of
implementation of his actions, the Probation Department has grave concerns
regarding the plea agreement in this matter.
A mitigated sentence given such circumstances is unwarranted, even in
the face of a minimal criminal history.
It is clear that [Rickard] was a significant figure in the local supply
of illegal substances of all kinds, and although some compromise might be
reached to serve the greater interest of [j]ustice, a sentence in keeping with
the significant nature of his actions is called for. [¶] Therefore, the
Probation Department recommends that the Court reject the plea as it does not
appear to be in the interest of justice. [¶] However, should the Court choose to accept the current plea agreement, a
sentencing recommendation has been attached for the Court’s consideration. It would also be recommended that the
[section] 11352.5 fine be imposed at the amount of $10,000.†The presentence report included a forensic
test report showing that the heroin had a net weight of 17.68 grams.
On October
18, 2012, the Honorable Leonard LaCasse accepted the negotiated plea and sentenced
Rickard to the agreed prison term. In
addition to other fines and fees, the court imposed a $10,000 fine, pursuant to
section 11352.5. The court
explained: “And in addition, given the
substances addressed, the behavior and the rather voluminous amounts of drugs
addressed in the probation report, the court’s going to fine you a penal fine
in the sum of $10,000.†Despite the
probation report’s silence on the issue, the court also ordered Rickard to
reimburse the County of Del Norte $500 for attorney fees, pursuant to
Government Code section 27712 and Penal Code section 987.8. Rickard filed a timely notice of appeal, stating
that his appeal was “based on the sentence or other matters occurring after the
plea that do not affect the validity of the plea.â€
II. Discussion
Rickard asserts
that the trial court (1) committed Apprendi
when it imposed a section 11352.5 fine; and (2) erred in ordering him to
reimburse $500 in attorney fees without notice and a hearing. The People concede error.
A. Section 11352.5 Fine
Section
11352.5 provides in relevant part: “The
court shall impose a fine not
exceeding fifty thousand dollars ($50,000), in the absence of a finding that
the defendant would be incapable of paying such a fine, in addition to any term
of imprisonment provided by law for any of the following persons: [¶] (1) Any
person who is convicted of violating Section 11351 of the Health and Safety
Code by possessing for sale 14.25 grams
or more of a substance containing heroin.†(Italics added.)
Rickard argues
that the trial court violated his due
process rights by imposing the fine even though the weight of heroin involved
was never admitted or found by a jury on the basis of proof beyond a reasonable
doubt. (Apprendi, supra, 530 U.S. at p. 490 [“[o]ther than the fact of
a prior conviction, any fact that increases the penalty for a crime beyond the
prescribed statutory maximum must be submitted to a jury, and proved beyond a
reasonable doubtâ€]; Southern Union Co. v.
United States (2012) 567 U.S. ___ [132 S.Ct. 2344, 2357] [
criminal fines].)
title="">[4]
The People concede
the Apprendi error but ask us not to
strike the fine. Instead, they urge that
the matter be remanded for a determination of whether the court would accept
the plea without the fine. They
contend: “The imposition of the
. . . section 11352.5 fine was essential to the sentencing court’s
acceptance of the plea.†The record does
not support their contention.
Here, the
plea bargain was initially accepted by Judge Bryan without any mention of a
section 11352.5 fine. But, before
Rickard was sentenced by Judge LaCasse, the probation department made clear the
amount of heroin involved and wrote, in its presentence report: “The Probation Department recommends that the
Court reject the plea as it does not appear to be in the interest of justice.
[¶] However, should the Court choose
to accept the current plea agreement, a sentencing recommendation has been
attached for the Court’s consideration.
It would also be recommended that the [section] 11352.5 fine be imposed
at the amount of $10,000.†(Italics
added.) On the record, Judge LaCasse merely
stated the terms of the negotiated sentence and then continued: “And in addition, given the substances
addressed, the behavior and the rather voluminous amounts of drugs addressed in
the probation report, the court’s going to fine you a penal fine in the sum of
$10,000.†Nothing in the record
indicates that the trial court would not have accepted the plea agreement, but
for imposition of the $10,000 fine. It
is equally, if not more, plausible that Judge LaCasse included the fine under
the mistaken impression that such was compelled by the mandatory language of
the law, while overlooking that a section 11352.5 enhancement had not been
alleged and the weight of heroin had not been admitted. (§ 11352.5.) The statutory language suggests that a
sentencing court must impose a fine, absent a finding that the defendant would
be incapable of paying it, when a defendant is convicted of violating section
11351 “by possessing for sale 14.25 grams
or more of a substance containing heroin.â€
(§ 11352.5, subd. (1).)
However, a sentencing court has no discretion to impose such a fine, in
any amount, when a defendant has not been so convicted. Accordingly, we will strike the fine. (See Pen. Code, § 1260 [appellate court
“may . . . modify a judgment . . . as may be just under the
circumstancesâ€]; People v. Humphrey
(1997) 58 Cal.App.4th 809, 813 [appellate court’s power to modify a sentence is
“exercise[d] . . . sparingly for . . . the trial court’s
articulated discretion is, generally speaking, controllingâ€].)
B. Attorney Fees
Rickard also contends that the trial
court erred, and violated his right to due process, in ordering the
reimbursement of attorney fees without conducting a noticed hearing. We address Rickard’s argument notwithstanding
his failure to object at sentencing. (See
People v. Verduzco (2012) 210
Cal.App.4th 1406, 1420–1421; People v.
Viray (2005) 134 Cal.App.4th 1186, 1214 [“unless the defendant has secured
a new, independent attorney when such an order is made, she is effectively
be vicariously charged with her erstwhile counsel’s failure to object to an
order reimbursing his own feesâ€]; People
v. Lopez (2005) 129 Cal.App.4th 1508, 1537.)
Penal Code
section 987.8, subdivision (b) provides in relevant part: “In any case in which a defendant is provided legal
assistance, either through the public defender or private counsel appointed by
the court, upon conclusion of the criminal proceedings in the trial court
. . . the court may, after
notice and a hearing, make a determination of the present ability of the
defendant to pay all or a portion of the cost thereof.†(Italics added.) Although Judge LaCasse found Rickard had the
present ability to pay $500 in attorney fees, the People concede that Rickard was
not given notice of a hearing or a hearing itself on that issue.
We accept the People’s concession
that the case must be remanded to permit the trial court to comply with the statutory
requirements for reimbursement of attorney fees, and we reject Rickard’s
assertion that the fee order should simply be stricken because of the statutory
presumption that a defendant sentenced to prison is unable to reimburse
attorney fees. (Pen. Code, § 987.8,
subd. (g)(2)(B) [“[u]nless the court finds unusual circumstances, a defendant
sentenced to state prison shall be
determined not to have a reasonably discernible future financial ability to
reimburse the costs of his or her defenseâ€].)
When, as here, no finding has been made regarding unusual circumstances,
our Supreme Court has indicated that remand is the appropriate remedy.
v. Flores (2003) 30 Cal.4th 1059, 1068–1069.) Accordingly, we will reverse the attorney
fees order and remand to the trial court so that it can provide the notice and
conduct the hearing required by the statute.
(Id. at pp. 1061, 1068–1069;
People v. Prescott (2013) 213
Cal.App.4th 1473, 1476; People v. Tuggle (2012)
203 Cal.App.4th 1071, 1081.)
The
attorney fee order is reversed, and the matter is remanded to the trial court
for notice and a hearing under Penal Code section 987.8, subdivision (b). The judgment is further modified to strike the
$10,000 fine imposed pursuant to section 11352.5. The judgment is otherwise affirmed.
_________________________
Bruiniers,
J.
We concur:
_________________________
Simons, Acting P. J.
_________________________
Needham, J.
Unless otherwise noted, all further statutory references are to the Health and
Safety Code.
People v. Arbuckle (1978) 22 Cal.3d
749.
