People v. Galope CA6

Filed 2/10/14 P. v. Galope CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

THE PEOPLE, H039646 (Monterey County Plaintiff and Respondent, Super. Ct. No. SS111541A)

v.

MICHAEL ANTHONY GALOPE,

Defendant and Appellant.

I. INTRODUCTION Defendant Michael Anthony Galope pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378) and possession of methamphetamine (Id., § 11377, subd. (a)). He also admitted having suffered one prior conviction (id., § 11370.2, subd. (a)), and having served two prior prison terms (Pen. Code, § 667.5, subd. (b)).1 He was placed on probation with various terms and conditions. After defendant violated his probation, the trial court sentenced him to five years in county jail. On appeal, defendant contends that a restitution fine, a probation revocation restitution fine, and a suspended parole revocation restitution fine imposed by the trial court should each be reduced to $200.

1 All further statutory references are to the Penal Code unless otherwise indicated.

For reasons that we will explain, we will order the restitution fine and the probation revocation restitution fine each reduced to $200, and the parole revocation restitution fine stricken. We will affirm the judgment as so modified. II. FACTUAL AND PROCEDURAL BACKGROUND On August 15, 2011, sheriff deputies contacted defendant, who indicated that he was on parole and subject to search.2 Upon searching defendant and his car, deputies found 1.91 grams of a substance that tested presumptively positive for methamphetamine, as well as messages on defendant’s cell phone from people requesting prices for narcotics. Later, defendant called his wife and told her that he had been “conducting business.” He instructed her to collect money from those who owed him. On November 18, 2011, defendant pleaded no contest to possession of methamphetamine for sale (Health & Saf. Code, § 11378; count 1) and possession of methamphetamine (Id., § 11377, subd. (a); count 2). He also admitted that he had suffered a prior conviction within the meaning of Health and Safety Code section 11370.2, subdivision (a), and that he had served two prior prison terms (§ 667.5, subd. (b)). On December 30, 2011, the trial court sentenced defendant to five years in prison, suspended execution of the sentence, and placed defendant on probation for three years with various terms and conditions. The five-year term consisted of the middle term of two years on count 1 (possession of methamphetamine for sale) and three years consecutive for a prior conviction under Health & Safety Code section 11370.2, subdivision (a). The court stayed the sentence on count 2 (possession of methamphetamine). The court ordered defendant to pay various amounts, including a