People v. Nava CA2/4

Filed 1/27/14 P. v. Nava CA2/4 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FOUR

THE PEOPLE, B248183

Plaintiff and Respondent, (Los Angeles County Super. Ct. No. BA380638) v.

ROGELIO NAVA,

Defendant and Appellant.

APPEAL from an order of the Superior Court of Los Angeles County, Henry J. Hall, Judge. Vacated and remanded. James Koester, under appointment by the Court of Appeal, for Defendant and Appellant. Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Lance E. Winters, Assistant Attorney General, and Margaret E. Maxwell, Deputy Attorney General, for Plaintiff and Respondent.

Defendant Rogelio Nava appeals from the judgment entered following the trial court’s finding that he violated the terms and conditions of probation. He contends the court erred by ordering him to pay restitution to a victim and failing to either impose or strike a sentence for an enhancement. The Attorney General agrees with defendant and also requests that we order the abstract of judgment amended to reflect the imposition of mandatory fines. We will vacate the restitution order and direct the superior court to correct the abstract of judgment.

FACTUAL AND PROCEDURAL BACKGROUND1

By an information filed March 2, 2011, defendant was charged with selling, transporting, or offering to sell a controlled substance, to wit, cocaine base, a violation of Health and Safety Code section 11352. He also was alleged to have served a prior prison term within the meaning of Penal Code section 667.5, subdivision (b).2 On May 18, 2011, defendant entered a no contest plea to the charge and admitted that he had served a prior prison term. The trial court suspended the imposition of sentence and placed defendant on three years of formal probation and assessed various fines and fees. On August 11, 2012, defendant was arrested for felony vandalism. (Pen. Code, § 594, subd. (b)(1).) The district attorney’s office filed a new case based on the vandalism arrest, and defendant’s probation was summarily revoked. On April 9, 2013, after a hearing, defendant was found in violation of probation. He was sentenced to five years for the violation of Health and Safety Code section 11352. No sentence was imposed for the prior prison term allegation. The felony vandalism case was dismissed on the prosecution’s motion. The court signed an order requiring