P. v. Niehouse
Defendant Mark Anthony Niehouse was initially sentenced on August 9, 2005. We remanded the case for resentencing. We ruled that the sentence violated the plea agreement because defendant was sentenced to five years, instead of the midterm of four years, for his drug offense (Health & Saf. Code, 11383, subd. (c)(1)). (People v. Niehouse (June 8, 2006, E041761) [nonpub. opn.].)
At the resentencing hearing, defendant pleaded guilty to possession of pseudoephedrine for the production of methamphetamine, as well as having a prior conviction for a similar offense. Defendant also admitted that he had not been free of custody or new convictions within five years of being released from prison under Penal Code section 667.5, subdivision (b).
On appeal, defendant contends that the $400 increase in the restitution fine after a successful appeal violated his right to due process and right not to be subjected to double jeopardy. The People simply argue that this issue has been waived by defendants failure to object. We agree with defendant and reduce his restitution fine to $1,200. The trial court is directed to amend the abstract of judgment to strike both the $1,600 restitution fine and the $1,600 parole revocation fine and to reimpose both the originally set $1,200 restitution fine and the $1,200 parole revocation fine. In all other respects, the judgment is affirmed.
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