P. v. Nychay
Filed 12/3/09 P. v. Nychay CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, Plaintiff and Respondent, v. PHILLIP CRAIG NYCHAY, Defendant and Appellant. | D055289 (Super. Ct. No. SCD219414) |
APPEAL from a judgment of the Superior Court of San Diego County, Bernard E. Revak, Judge. (Retired Judge of the San Diego Sup. Ct. assigned by the Chief Justice pursuant to art. VI, 6 of the Cal. Const.) Affirmed in part, reversed in part, and remanded.
In March 2009 Philip Craig Nychay possessed a usable amount of methamphetamine. He entered a negotiated guilty plea to possessing methamphetamine (Health & Saf. Code, 11377, subd. (a)) and admitted serving two prior prison terms (Pen. Code, 667.5, subd. (b); all further statutory references are to the Penal Code). The court sentenced him to prison for a stipulated four-year term: the two-year middle term for possessing methamphetamine and one year for each prison prior. The court imposed fines including an $800 restitution fine ( 1202.4, subd. (b)). Nychay appeals, contending the court abused its discretion by imposing the $800 restitution fine under the mistaken belief that a fine in that amount was mandatory. The People correctly concede the point. ( 1202.4, subds. (b), (d); People v. Dickerson (2004) 122 Cal.App.4th 1374, 1379-1380.) We remand the case for a new restitution hearing so that the court may exercise its discretion pursuant to section 1202.4, subdivisions (b) and (d) in setting the amount of the fine.
DISPOSITION
The $800 restitution fine ( 1202.4, subd. (b)) is reversed. In all other respects the judgment is affirmed. The case is remanded to the trial court with directions to hold a new restitution hearing at which the court shall exercise its discretion in setting the amount of the restitution fine.
McINTYRE, J.
WE CONCUR:
HALLER, Acting P. J.
O'ROURKE, J.
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