(Super. Ct. No. 10F00752)
The opinion of the court was delivered by: Nicholson , Acting P. J.
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
On October 21, 2009, defendant Steve Joseph Noble was a state prisoner housed at Folsom State Prison.*fn1 Ignoring an officer's orders, defendant threw a book. Inside the book was an inmate-manufactured weapon that consisted of a piece of metal that had been sharpened to a point.
Defendant pleaded guilty to possession of a sharp instrument in state prison (Pen. Code, § 4502, subd. (a))*fn2 and admitted that he had suffered two strikes: a 1987 conviction of forcible lewd acts upon a child (§ 288, subd. (b)) and a 1992 conviction of second degree robbery (§§ 211, 212.5). (§§ 667, subds. (b)-(i), 1170.12.) In exchange, four prior prison term allegations (§ 667.5, subd. (b)) were dismissed and the prosecution refrained from going forward on an unrelated case involving an assault upon a correctional officer.
Defendant was sentenced to state prison for 25 years to life consecutive to the term he was then serving. Because he was a sentenced prisoner at the time of the offense, he was not awarded custody or conduct credit. The trial court initially imposed a $2,500 restitution fine (§ 1202.4) and a $2,500 restitution fine suspended unless parole is revoked (1202.45). However, following defendant's objection, both fines were reduced to $1,000. Defendant was ordered to pay a $40 court security fee. (§ 1465.8, subd. (a)(1).)
We appointed counsel to represent defendant on appeal. Counsel filed an opening brief that sets forth the facts of the case and requests this court to review the record and determine whether there are any arguable issues on appeal. (People v. Wende (1979) 25 Cal.3d 436.) Defendant was advised by counsel of the right to file a supplemental brief within 30 days of the date of filing of the opening brief.
Defendant filed a supplemental brief contending the $1,000 restitution fine violates the plea agreement, which included an agreement that "no restitution would be ordered."*fn3 (Original underscoring.) The point has no merit.
During the plea colloquy, this exchange occurred:
"THE COURT: You could be ordered to pay a restitution fine and the minimum amount is two hundred, the maximum amount is ten thousand. [¶] Do you understand?
"(Off-the-record discussion was held between [defense counsel] ...