Filed 5/12/21 P. v. Ricks CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

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or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIFTH APPELLATE DISTRICT

THE PEOPLE,

Plaintiff and Respondent,

v.

RICKY RICKS,

Defendant and Appellant.

F078958

(Fresno Super. Ct. No. F16906805)

OPINION

THE COURT*

APPEAL from a judgment of the Superior Court of Fresno County. Timothy 

Kams, Brant K. Bramer, Wayne R. Ellison, James Petrucelli, and Gary D. Hoff, Judges.

†

Nicholas Seymour, under appointment by the Court of Appeal, for Defendant and 

Appellant.

Office of the Attorney General, Sacramento, California for Plaintiff and 

Respondent.

-ooOoo-

* Before Franson, Acting P.J., Meehan, J. and De Santos, J.

†

Judge Kams presided over the August 7, 2017, Marsden hearing; Judge Bramer 

presided over the January 11, 2017, Marsden hearing; Judge Ellison presided over the 

February 16, 2018, Faretta motion and Marsden hearing; Judge Petrucelli presided over 

the trial; and Judge Hoff presided over the sentencing hearing.
2.

INTRODUCTION

Appellant and defendant Ricky Ricks was convicted of second degree robbery and 

sentenced to the second strike term of 16 years in prison. On appeal, his appellate

counsel has filed a brief that summarizes the facts with citations to the record, raises no 

issues, and asks this court to independently review the record. (People v. Wende (1979) 

25 Cal.3d 436 (Wende).) We affirm.

FACTS

Around 8:30 p.m. on November 9, 2016, Daniel Awes-Taylor was working at 

Food Maxx on Fresno Street when defendant walked in through the exit doors. 

Mr. Awes-Taylor was familiar with defendant because of “prior incidents” with him. 

Mr. Awes-Taylor immediately notified Gerardo Fernandez, the store’s security guard, 

that defendant was not supposed to be in the store and asked for his help.

Mr. Awes-Taylor followed defendant and saw him stuffing into his jacket two 

bright yellow, family-sized trays of a thick-cut of meat, that he believed was raw tri-tip. 

Mr. Awes-Taylor started recording defendant on his cell phone.

Mr. Fernandez testified he could see the slab of meat sticking out of defendant’s 

jacket. He approached defendant and asked him to either pay for or return the items. 

Defendant seemed surprised, but he did not respond and walked towards the exit at a fast 

pace.

As defendant approached the exit, Mr. Awes-Taylor could see the meat packages 

sticking out of his jacket, and he tried to grab them. Defendant pulled a knife from his 

left pants pocket, held it in front of him, and pointed it toward Mr. Awes-Taylor. Mr. 

Awes-Taylor felt panic and fear when he saw the knife and did not notice whether the 

blade was extended.

Mr. Awes-Taylor threw up his hands and told defendant, “[O]h, you are going to 

pull a knife.” He thought he was in real danger, and immediately backed away from 

defendant and stopped recording the incident. Mr. Awes-Taylor watched defendant
3.

quickly walk into the parking lot. Mr. Awes-Taylor called the police and reported the 

incident.

Mr. Fernandez saw defendant pull the knife, and testified that the blade was “half 

extended, like he was about to pull it out.” Defendant made a thrusting gesture with his 

hips, like “when someone is about to thrust.” Mr. Fernandez advised everyone to step 

back and let defendant leave. Defendant walked out of the store, and the meat package 

was still sticking out of his jacket. Mr. Fernandez followed defendant into the parking lot 

and told him not to come back to the store, and he did not want him on the property.

At 8:52 p.m., Fresno Police Officer Jason Laird responded to the store and spoke 

with Mr. Awes-Taylor and Mr. Fernandez about the incident; he reviewed the cell phone 

footage of defendant in the store.

Around midnight, Officer Laird was driving around the area and saw defendant

sitting at a bus stop across the street from Food Maxx.

Officer Laird and his partner stopped their patrol car, contacted defendant, and 

asked him to identify himself. Defendant said he was “Rich Richardson” and gave a false 

birthdate; the information did not return any results in the system. Officer Laird asked 

Mr. Awes-Taylor to respond to the area and look at the suspect. Mr. Awes-Taylor 

walked across the street and identified defendant.

Officer Laird found a small folding knife in defendant’s pants pocket. 

Defendant’s jacket was torn open on an outer seam so there was a gap between the liner 

and the shell, consistent with the area where Mr. Awes-Taylor saw him stuff the meat 

packages. Defendant did not have any meat when he was detained. Officer Laird 

advised defendant that they could not find any record of his name, and that usually meant 

it was a false name. Defendant then gave his true name and date of birth.
4.

Procedural background

On April 28, 2017, an information was filed that charged defendant with count 1, 

second degree robbery (Pen. Code, §211)1 with the personal use of a deadly or dangerous 

weapon, a knife (§ 12022, subd. (b)(1)); and count 2, misdemeanor giving false 

information to a police officer (§ 148.9, subd. (a)); with two prior strike convictions and 

two prior serious felony enhancements (§ 667, subds. (a), (b)–(i)).

On February 16, 2018, defendant requested to represent himself pursuant to 

Faretta v. California (1975) 422 U.S. 806 (Faretta). The court advised defendant of his 

constitutional rights and noted defendant’s jury trial was scheduled to begin on 

February 20, 2018. The prosecution objected to any continuances. The court found 

defendant’s Faretta motion was brought for purposes of delay and stated that it would 

only grant the motion if defendant was ready for trial.

Defendant withdrew his Faretta motion and instead moved to discharge his 

appointed counsel pursuant to People v. Marsden (1970) 2 Cal.3d 118 (Marsden). The 

court held a hearing and denied the motion.

On February 20, 2018, defendant’s jury trial began. On February 21, 2018, the 

court granted the prosecution’s motion to amend the information by interlineation to 

correct the name of the alleged victim. The court also dismissed count 2.

On March 1, 2018, the jury found defendant guilty of count 1, second degree 

robbery, and found the personal use enhancement true. On the same day, the court was 

going to hold the bench trial on the prior conviction allegations. After being advised of 

his constitutional rights, defendant admitted the prior strikes convictions and serious 

felony enhancements.

1 All further statutory citations are to the Penal Code unless otherwise indicated.
5.

On March 8, 2019, the court held the sentencing hearing.2 Defendant requested 

the court to dismiss the prior strike convictions and prior serious felony enhancements. 

The court dismissed one prior strike and one enhancement only.

The court imposed the upper term of five years, doubled to 10 years, plus one year 

for the personal use enhancement and five years for the prior serious felony enhancement, 

for an aggregate term of 16 years.

The court imposed a restitution fine of $10,000 (§ 1202.4, subd. (b)) and 

suspended the parole revocation fine in the same amount (§ 1202.45), and left victim 

restitution open, plus a court operations assessment of $40 (§ 1465.8), and a criminal 

conviction assessment of $30 (Gov. Code, § 70373).

The court stated that according to the probation report, defendant had been 

previously employed and did not have any health issues that prevented him from 

working. Based on that information, the court found he had the financial ability to pay 

the restitution fine and fees that it was imposing. The court waived the probation report 

fee of $296 because the other fines and fees “should be paid first and that the length of 

sentence will limit his ability to earn for a period of time.”

On March 11, 2019, defendant filed a timely notice of appeal.

DISCUSSION

As noted above, defendant’s counsel has filed a Wende brief with this court. The 

brief also includes the declaration of appellate counsel indicating that defendant was 

advised he could file his own brief with this court. By letter on June 12, 2020, we invited 

defendant to submit additional briefing.

2 The court granted defendant’s numerous requests to continue the sentencing 

hearing apparently because of the enactment of Senate Bill No. 1393, that amended 

section 667, subdivision (a) to give the court discretion to strike or dismiss the prior 

serious felony enhancements, effective January 1, 2019. (People v. Garcia (2018) 28 

Cal.App.5th 961, 965.)
6.

On June 29, 2020, defendant sent a letter asking this court to relieve his appointed 

appellate counsel for failing to raise issues. On July 15, 2020, this court denied 

defendant’s motion to discharge appellate counsel, advised him that the filing of a Wende

brief was not sufficient grounds to do so, and extended the period for defendant to submit 

his own brief for another 30 days. (See ACCMS)

On April 12, 2021, defendant sent a letter to this court, and asked whether his 

appeal had been decided and for a copy of the opinion. On April 15, 2021, this court 

advised defendant his appeal was pending and not been decided. (See ACCMS)

To date, defendant has not submitted additional briefing on any substantive issue.

After independent review of the record, we find that no reasonably arguable 

factual or legal issues exist.

DISPOSITION

The judgment is affirmed.