P. v. Nychay
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.
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