People v. Nieto CA3

Filed 5/22/14 P. v. Nieto CA3 NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 THIRD APPELLATE DISTRICT (Sacramento) ----

C073236 THE PEOPLE, (Super. Ct. No. 11F03865) Plaintiff and Respondent,

v.

MIRTALA NIETO,

Defendant and Appellant.

A jury found defendant Mirtala Nieto guilty of possessing methamphetamine for sale. (Health & Saf. Code, § 11378.) Pursuant to Penal Code section 1170, subdivision (h)(1),1 the court sentenced her to a total term of three years: it ordered her to serve one year in county jail and thereafter two years on supervised release, in accordance with conditions applicable to persons on probation. (§ 1170, subd. (h)(5)(B)(i).)2

1 Undesignated statutory references are to the Penal Code. 2 Under the terms of the recent realignment legislation, the courts are permitted to sentence certain nonviolent felons to county jail rather than state prison. The courts also

1

On appeal, defendant claims the court improperly imposed a probation revocation restitution fine pursuant to section 1202.44, and the judgment should be corrected to reflect accurately the court declined to impose two nonmandatory fines. The People concede both points. We conclude the abstract of judgment must be corrected to reflect the revocation restitution fine was imposed pursuant to section 1202.45, and to strike imposition of the drug treatment and drug program fines. DISCUSSION3 I The Trial Court Properly Imposed a Second $400 Restitution Fine At the sentencing hearing, the court sentenced defendant to three years in state prison but, pursuant to section 1170, subdivision (h)(5)(B)(i), ordered defendant to serve one year in county jail and then two years on supervised release. The court asked defendant if she had reviewed all of the “recommended proposed terms of probation in the probation report,” and defendant indicated she understood the terms and did not need the court to read them to her. The court nonetheless reiterated to defendant that she would be required to participate in a drug program, could not use or possess drugs or associate with persons using or possessing drugs, would be subject to search, be required to register, may not possess a firearm or other deadly weapon, must seek and maintain regular employment, may not leave the state without permission of the probation department and must pay various fines and fees, including a restitution fine of $400 pursuant to section 1202.4, subdivision (b), and a “further restitution fine of [$]400