Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County, No. SCD219414 Bernard E. Revak, Judge. (Retired Judge of the San Diego S.Ct. assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.)
McINTYRE, J.
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.
WE CONCUR: HALLER, Acting P. J., O'ROURKE, J.