People v. Rickard CA1/5

Filed 11/7/13 P. v. Rickard CA1/5 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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, A137215 v. CHARLES FRANK RICKARD, (Del Norte County Super. Ct. No. CRF12-9394) Defendant and Appellant.

Charles Frank Rickard entered a negotiated guilty plea to one count of possession for sale of heroin (Health & Saf. Code, § 11351),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.

1 Unless otherwise noted, all further statutory references are to the Health and Safety Code.

1

I. FACTUAL AND PROCEDURAL BACKGROUND 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 [sic], balance dismissed. Defendant to serve a term of 2 years, 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.” 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