PEOPLE v. NYCHAY
On April 13, 2009, pursuant to a negotiated plea agreement with the San Diego District Attorney's Office, Phillip C. Nychay pleaded guilty to unlawfully possessing a usable amount of methamphetamine in violation of Health and Safety Code section 11377, subdivision (a). He also admitted serving two of three prior prison terms alleged pursuant to Penal Code[2] section 667.5, subdivision (b). In return, the district attorney agreed to dismiss the balance of the complaint and to stipulate to a four-year prison sentence. It was further agreed that the four-year prison sentence would run concurrent to any parole violations.
Immediately upon accepting the plea agreement, the court sentenced Nychay to the low term of two years in prison for possession of a controlled substance and two consecutive one-year terms for the prior prison terms. In addition, Nychay was ordered to pay $800 in state restitution fines. Nychay received presentence custody credit of 50 days. A timely notice of appeal was filed.
Nychay argued on appeal that the trial court erred when it found it lacked discretion in setting restitution. The Attorney General agreed with Nychay. We agreed as well.
Indeed, on December 3, 2009, this court remanded Nychay's case for a new restitution hearing at which the trial court could exercise its discretion pursuant to section 1202.4, subdivisions (b) and (d). In all other respects, we affirmed the judgment. (Unpublished opinion D055289.)
On remand the trial court struck the previously imposed $800 fine and ordered the fine set at $200. At the hearing, Nychay also requested the court recalculate his section 4019 custody credits. The court denied his request.
Nychay appeals.
Comments on PEOPLE v. NYCHAY