Filed 6/26/13 P. v. Thompson 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                                           NOT TO BE PUBLISHED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
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or ordered published for purposes of rule 8.1115.



              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                        (Placer)
                                                            ----



THE PEOPLE,                                                                                  C071122

                   Plaintiff and Respondent,                                     (Super. Ct. No. 62105846)

         v.

SHARON LYNN THOMPSON,

                   Defendant and Appellant.




         A jury found defendant Sharon Lynn Thompson guilty of second degree burglary
and possession of a methamphetamine pipe. (Pen. Code, § 459; Health & Saf. Code,
§ 11364.) Defendant timely appeals from an order suspending imposition of sentence
and granting probation.
         On appeal, defendant contends--and the People concede--that the trial court erred
by not instructing the jury on the mistake-of-fact defense. We find any error harmless.
Defendant also contends--and the People again concede--that the trial court violated the
prohibition against ex post facto laws when it imposed a restitution fine of $240. We
disagree with the parties, as we explain, and shall affirm.


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                                          FACTS
       On April 17, 2011, defendant entered a Nordstrom store in Roseville and returned
jewelry she acquired without payment while in the store. She had a methamphetamine
pipe in her purse.
       A store detective testified that after he received a call from a cashier about
defendant’s effort to return merchandise, he began tracking defendant on security
cameras, and the jury was shown a video exhibit depicting defendant’s movements.
Defendant tried but failed to return perfume and earrings that Nordstrom does not sell.
She then picked up two pairs of different earrings from a table, walked away, then picked
up a third pair of earrings, and returned two of those pairs, receiving cash for them.
Store security then stopped defendant, but she resisted and had to be handcuffed. She
had $17.32 in her purse, which was returned to the store. She claimed she had entered
the store with four pairs of earrings. Nordstrom’s policy “for over a hundred years” has
been to accept returns without proof of purchase, to accommodate customers.
       A Roseville police officer testified defendant admitted to him that “she came to
Nordstrom’s to take items and immediately return them for cash.” She said she knew
Nordstrom’s policy was to accept returns without receipts, “so she would take items from
the rack and go right to the register and try to return them for money.” She was
cooperative until she learned she was going to jail, then began pleading to be released and
claimed she had high blood pressure and that her arm might be broken. The officer took
her to the hospital, where she also claimed she had been hit in the head, but she had no
visible injuries.
       Defendant testified she had received the perfume and two pairs of earrings as gifts,
and went to Nordstrom to exchange them because she thought that is where they came
from. She first went to the perfume department, but was told she could not exchange the
perfume because it lacked a sticker, and she was told to take the earrings to another
department to determine if they came from Nordstrom. On her way, she found some

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earrings she wanted, and went to a cashier to make the exchange, telling the cashier she
was not sure whether or not the earrings she had brought had been purchased at
Nordstrom. The cashier told her she could refund the money for one pair. Defendant
testified she thought she received money because the earrings she brought were more
expensive, and thought the money reflected the difference in value between the ones she
brought and the ones she wanted in exchange. She was confused about what the cashier
had done. She testified that when she was stopped and accused of theft, she suggested
returning to the cashier, but when she turned, she was slammed to the ground by security
officers, causing a knot in her head, bruising to her knees, and pain in her arm. She first
testified she had never seen the pipe in her purse, but she had been the live-in caregiver
for a young man with mental problems who was a drug user. She later testified she had
seen the young man and his girlfriend using such a pipe. She denied telling the police
officer that she entered Nordstrom with the intent to steal or had brought four pairs of
earrings with her into the store
                                      DISCUSSION
                                              I
                           Failure to Properly Instruct the Jury
       Defendant contends the trial court had a duty to give a mistake-of-fact instruction,
despite the lack of a request therefor. (See People v. Barton (1995) 12 Cal.4th 186, 195.)
The People concede the point, but contend the error was harmless. We agree that any
error was harmless on this record, and therefore need not address the trial court’s
instructional duty.1


_____________________________________________________________________
1 Recently another court has concluded there is no duty to instruct on the mistake-of-fact
defense absent request. (People v. Lawson (2013) 215 Cal.App.4th 108, 117 [petn. for
rev. pending, S210732].)


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       A.     The Applicable Instruction
       A person is not guilty of a crime “who committed the act or made the omission
charged under an ignorance or mistake of fact, which disproves any criminal intent.”
(Pen. Code, § 26, subd. Three.) “The effect of mistake . . . is to negate the element of
intent.” (People v. Scott (1983) 146 Cal.App.3d 823, 833.) Thus, as defendant argues, if
she acted under the mistaken belief that she was returning or exchanging gifts purchased
at Nordstrom, she lacked the intent to steal.
       B.     Harmless Error
       In this case, any error was harmless under any standard of review, because the
defense of lack of intent to steal was tendered to the jury by other instructions and by the
closing arguments to the jury.2
       As relevant to the burglary charge, the jury was instructed that the People had to
prove beyond a reasonable doubt that defendant entered the store with the “specific
intent” to commit a theft therein, and that her intent could be proven by circumstantial
evidence. Theft by larceny was also defined.
       As relevant to the burglary charge, the People argued the police officer told the
truth when he testified defendant admitted entering the store with the intent to steal, and
defendant lied when she denied telling the officer about her plan, and that her effort to
evade arrest evidenced her consciousness of guilt. Defense counsel argued defendant did
not enter the store with the intent to steal, but was confused; further, any intent to steal
was formed after she failed to “exchange things she believed were from that store” and
therefore burglary was not proven. Thus, the instructions, evidence, and arguments


_____________________________________________________________________
2 Defendant’s claim that any error deprived her of a defense in violation of federal due
process principles is not persuasive, because, as we explain post, the issue of her intent
was presented to the jury through other instructions.


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presented the jury with a clear factual question: When defendant entered the store, did
she intend to return or exchange items given to her that she thought came from
Nordstrom, or did she enter with the intent to acquire items while in the store and then try
to obtain money for them?
       A mistake-of-fact instruction would not have changed the jury’s resolution of this
factual question about defendant’s intent, because “‘the factual question posed by the
omitted instruction was necessarily resolved adversely to the defendant under other,
properly given instructions.” (People v. Wright (2006) 40 Cal.4th 81, 98; see People v.
Chaffin (2009) 173 Cal.App.4th 1348, 1353.)
       Defendant contends that the instructions given did not explain that her purported
mistake did not have to be objectively reasonable. (See People v. Russell (2006) 144
Cal.App.4th 1415, 1425-1426.) This point is not significant. The instructions given
precluded a burglary conviction unless the jury found that defendant intended to steal
before she entered the store. If the jury had any reasonable doubt about whether
defendant was merely mistaken, and did not possess the requisite intent, it was instructed
to acquit. Therefore, the issue tendered by the omitted instruction--the mistake-of-fact
defense--was resolved adversely to defendant by other instructions, notwithstanding that
the jury was not advised that her mistake could be objectively unreasonable, if honestly
held. Any instructional error was harmless.
                                                  II
                                     The Restitution Fine
       Among the conditions of probation, the trial court imposed a $240 felony
restitution fine under Penal Code section 1202.4, subdivision (b), which it characterized
as “the minimum state restitution fund . . . fine of $240.” At the time of the burglary,
April 17, 2011, that statute provided for a fine between $200 and $10,000, “at the
discretion of the court and commensurate with the seriousness of the offense.” (Stats.



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2010, ch. 351, § 9.) But effective January 1, 2012, before sentencing, the minimum fine
was increased to $240. (Stats. 2011, ch. 358, § 1.)
       The ex post facto clauses of both the federal and state constitutions prohibit any
statute which makes more burdensome the punishment for a crime after its commission.
(Tapia v. Superior Court (1991) 53 Cal.3d 282, 294, 295.) “A restitution fine qualifies as
punishment for purposes of the prohibition against ex post facto laws.” (People v. Saelee
(1995) 35 Cal.App.4th 27, 30.)
       Thus defendant was actually eligible for the earlier minimum fine of $200, given
that his offense date was before its raise to $240. Further, it appears from the trial court’s
remarks that it would have imposed a $200 fine had defendant’s eligibility been brought
to its attention. There was, however, no objection to the $240 fine below.
       Although defendant does not address forfeiture in his briefing, the People in
conceding error characterize the $240 fine as an unauthorized sentence and opine that
defendant may therefore claim error for the first time on appeal. We disagree.
       “Although the cases are varied, a sentence is generally ‘unauthorized’ where it
could not lawfully be imposed under any circumstance in the particular case. Appellate
courts are willing to intervene in the first instance because such error is ‘clear and
correctable’ independent of any factual issues presented by the record at sentencing.”
(People v. Scott (1994) 9 Cal.4th 331, 354 (Scott).) The $240 fine could be lawfully
imposed in April, 2011 and was therefore not unauthorized when imposed in April, 2012.
       Because the fine was not unauthorized, defendant forfeited any claim that the trial
court mistakenly imposed more than the minimum fine by not raising it at the sentencing
hearing. “Although the court is required to impose sentence in a lawful manner, counsel
is charged with understanding, advocating, and clarifying permissible sentencing choices
at the hearing. Routine defects in the court’s statement of reasons are easily prevented
and corrected if called to the court’s attention. As in other waiver cases, we hope to
reduce the number of errors committed in the first instance and preserve the judicial

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resources otherwise used to correct them.” (Scott, supra, 9 Cal.4th at p. 353.) Here, had
defendant raised the 2011 minimum fine amount below, the trial court could have
corrected any error in the amount of the fine. Because she did not, she may not challenge
the fine on appeal.
                                    DISPOSITION
       The judgment is affirmed.

                                                       DUARTE                     , J.

We concur:



          RAYE                       , P. J.



          BUTZ                       , J.




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