People v. Polk CA2/6

Filed 5/20/14 P. v. Polk CA2/6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 SIX
THE PEOPLE, 2d Crim. No. B251239
(Super. Ct. Nos. F471008, F489802)
Plaintiff and Respondent, (San Luis Obispo County)
v.
PAULINE UNGUREAN POLK,
Defendant and Appellant.
Pauline Ungurean Polk appeals a judgment entered after a nolo contendere
plea to possession of cocaine, possession of methamphetamine, possession of
concentrated cannabis, and misdemeanor possession of drug paraphernalia, with a finding
that she served a prior prison term. (San Luis Obispo County Case No. F471008; Health
& Saf. Code, §§ 11350, subd. (a), 11377, subd. (a), 11357, subd. (a), 11364.1; Pen. Code,
§ 667.5, subd. (b).)1 We modify the judgment to reflect a $240 restitution fine, remove
the stay regarding the $240 probation revocation restitution fine, and impose a suspended
$240 mandatory supervision restitution fine, but otherwise affirm. (§§ 1202.4, subd. (b),
1202.44, 1202.45, subd. (b).)
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All further statutory references are to the Penal Code unless stated otherwise.
Polk also appeals a judgment entered after a nolo contendere plea to
possession of methamphetamine. (San Luis Obispo County Case No. F489802; Health &
Saf. Code, § 11377, subd. (a).) We affirm.
FACTS AND PROCEDURAL HISTORY
Case No. F471008
On February 16, 2012, San Luis Obispo County Sheriff's Deputy Cory
Pierce arrested Polk for possession of drugs and drug paraphernalia. On May 15, 2012,
Polk waived her constitutional rights and pleaded nolo contendere to possession of
cocaine, possession of methamphetamine, possession of concentrated cannabis, and
misdemeanor possession of drug paraphernalia. (Health & Saf. Code, §§ 11350, subd.
(a), 11377, subd. (a), 11357, subd. (a), 11364.1.) Polk also admitted that she served a
prior prison term. (§ 667.5, subd. (b).) The trial court suspended imposition of sentence
and granted Polk three years of formal probation with terms and conditions that included
180 days confinement in county jail. The court imposed a $1,000 drug fine, a $240
restitution fine, and a $240 probation revocation restitution fine (stayed). (Health & Saf.
Code, 11350, subd. (d)(1); §§ 1202.4, subd. (b), 1202.44.)
On December 6, 2012, and again on April 8, 2013, Polk admitted violating
the terms of her probation. In each instance, the trial court revoked and then reinstated
probation, but with additional terms.
Case No. F489802
On June 17, 2013, the San Luis Obispo County prosecutor filed an
information charging Polk with possession of methamphetamine. (Health & Saf. Code,
§ 11377, subd. (a).) On July 2, 2013, Polk waived her constitutional rights and right to a
preliminary examination and pleaded nolo contendere to possession of
methamphetamine. She also admitted violating her probation in case No. F471008.
Sentencing
Pursuant to a stipulated disposition, the trial court revoked probation and
imposed a hybrid sentence of five years four months pursuant to section 1170,
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subdivision (h)(5)(B)(i) for case No. F471008. The court imposed a $1,800 restitution
fine and awarded Polk 344 days of presentence custody credit. (§ 1202.4, subd. (b).) In
case No. F489802, the court imposed a two-year midterm to be served concurrently in
county jail, pursuant to section 1170, subdivision (h)(5)(B)(i). The court imposed a $560
restitution fine and awarded Polk 153 days of presentence custody credit. (§ 1202.4,
subd. (b).)
Polk appeals and contends that the trial court erred by increasing the
restitution fine to $1,800 in case No. F471008.
DISCUSSION
Polk argues that the trial court had no statutory authority to increase the
restitution fine from $240 to $1,800 following revocation of probation. The Attorney
General properly concedes. "Despite the fact that the restitution fine is imposed as a
condition of probation, . . . it survives the probationary term." (People v. Arata (2004)
118 Cal.App.4th 195, 201.) Thus, the original restitution fine remains in force despite the
revocation of probation. (Id. at pp. 201-202 [trial court lacks authority to impose a
second restitution fine following revocation of probation].)
The Attorney General requests that we modify the judgment to remove the
stay on the previously imposed probation revocation restitution fine. (§ 1202.44.) When
the trial court revokes probation and sentences the defendant to jail or prison, the court
must lift the stay of the previously imposed probation revocation restitution fine. (People
v. Guiffre (2008) 167 Cal.App.4th 430, 434-435.)
The Attorney General also properly requests that we impose and stay the
mandatory supervision revocation restitution fine pursuant to section 1202.45,
subdivision (b). Section 1202.45, subdivision (c) requires that the fine be suspended
unless the mandatory supervision is revoked.
We modify the judgment in case No. F471008 to reflect a $240 restitution
fine, remove the stay regarding the $240 probation revocation restitution fine, and impose
a suspended $240 mandatory supervision restitution fine, but otherwise affirm. The trial
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court shall prepare an amended abstract of judgment accordingly and forward the
certified amended abstract to the Department of Corrections and Rehabilitation. We
affirm the judgment in case No. F489802.
NOT TO BE PUBLISHED.
GILBERT, P.J.
We concur:
YEGAN, J.
PERREN, J.
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John A. Trice, Judge
Superior Court County of San Luis Obispo
______________________________
Richard B. Lennon, 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, Senior Assistant Attorney General, Margaret E.
Maxwell, Supervising Deputy Attorney General, for Plaintiff and Respondent.
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