Filed 9/29/14 P. v. Motley 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                                           NOT TO BE PUBLISHED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 This opinion has not been certified for publication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
                                                         (Yolo)



THE PEOPLE,                                                                                  C075464

                   Plaintiff and Respondent,                                   (Super. Ct. No. CRF 13-2454)

         v.

LINDA APRIL MOTLEY,

                   Defendant and Appellant.




         Defendant Linda April Motley stole $61.16 worth of food and alcohol from a
Safeway supermarket. Following a bench trial, defendant was convicted of second
degree burglary (Pen. Code, § 459)1 and petty theft with a prior conviction (§§ 484, subd.
(a), 490.5, 666, subd. (b)). Defendant was also found to have been previously convicted
of a “serious” felony within the meaning of section 667, subdivisions (c) and (e)(1) and to
have served two prior prison terms within the meaning of section 667.5, subdivision (b).




1        Undesignated statutory references are to the Penal Code.

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       Prior to sentencing, defendant asked the trial court to strike her prior felony
conviction pursuant to People v. Superior Court (Romero) (1996) 13 Cal.4th 497
(Romero). The trial court denied the motion.
       On appeal, defendant contends the trial court abused its discretion in denying her
Romero motion. Defendant also contends her restitution fine violates the constitutional
prohibition against ex post facto laws. Finding no error, we affirm the judgment.
                                     BACKGROUND
       Defendant went to the Safeway in West Sacramento on the evening of June 19,
2013. She took empty grocery bags from the checkout area and went to the deli counter
where she ordered some chicken wings. Lisa Schwieger, a Safeway employee who was
working at the deli counter that night, asked defendant if she wanted to pay for the
chicken wings at the deli cash register. Defendant said no.
       Schwieger notified the store’s assistant manager, Katie McCann, that defendant
was in the store and refusing to pay. McCann followed defendant around the store and
watched her on the store’s surveillance system.
       Defendant spent the next several minutes browsing the refrigerated “walk-around
case,” the bakery aisle, and the liquor aisle. During this time, she was seen placing a
bottle of liquor and several other items into her otherwise empty grocery bags.
       A short time later, Schwieger saw defendant heading towards the exit. Schwieger
again asked whether defendant wanted to pay for her items. Again, defendant said no.
Defendant left the store without paying and started to walk down the street.
       McCann called the police. West Sacramento Police Officer Christopher Rice
encountered defendant a couple of blocks away from the store. She was carrying grocery
bags and a purse. The grocery bags contained chicken wings, salami, a sandwich, a bag
of chips, a slice of cake, a bottle of vodka, wine coolers, and beer. The purse contained
approximately $2.



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       When Officer Rice asked whether defendant had a receipt for the items in the
grocery bags, she replied that she did not. Instead, defendant said that a friend had
purchased the groceries for her. During the trial, defendant testified that “two different
gentlemen” offered to pay for her groceries. Other than defendant’s testimony, there was
no evidence that anyone accompanied defendant to the store or offered to pay for her
groceries.
       Defendant was detained in the back of Officer Rice’s patrol car and identified by
McCann a short time later. McCann returned the food and alcohol to the store and
calculated their total value to be $61.16.
       Defendant was charged with three counts as follows: (1) second degree burglary
(§ 459 -- count 1); (2) petty theft with a prior conviction (§§ 484, subd. (a), 490.5,
subd. (a), 666, subd. (a) -- count 2); and (3) petty theft with a prior conviction (§§ 484,
subd. (a), 490.5, subd. (a), 666, subd. (b) -- count 3). The first amended information also
alleged that defendant had previously suffered a prior serious felony conviction for
attempted robbery (§§ 664/211) and had served two prior prison terms.
       Defendant waived her right to a jury trial. The trial court found defendant guilty
of second degree burglary and petty theft with a prior conviction, as charged in counts 1
and 3. With respect to count 2, the trial court found defendant guilty of the lesser
included offense of misdemeanor petty theft.
       The trial court found true the People’s allegation that defendant had previously
suffered a felony conviction for attempted robbery in 2012. The trial court also found
true the People’s allegations that defendant had served prior prison terms for driving with
a measurable blood-alcohol content and causing injury in 2004 (Veh. Code, § 23153,
subd. (b)) and for the attempted robbery conviction.2



2     Defendant notes she entered into a negotiated plea of no contest to the attempted
robbery in exchange for a low term sentence of 16 months, resulting in a “ ‘paper

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       Prior to sentencing, defendant filed a “[s]entencing memorandum and statement in
mitigation” emphasizing her history of mental health issues. Defendant asked the trial
court to grant probation with a suspended prison term to give her an opportunity to
complete a mental health treatment program. In the alternative, defendant asked the trial
court to strike some or all of the People’s enhancement allegations in the interests of
justice.
       At the sentencing hearing, defendant’s counsel continued to emphasize
defendant’s history of mental illness, noting: “One of the things that the Court can
consider in either granting or denying the Romero motion [is] the mental state of the
defendant at the time that particular crime was committed. And when she committed that
crime, I believe that she was under the influence of her illness, mental illness. And the
facts in this case seem to support that she has not had any treatment, and she hasn’t been
on any sort of stabilized regimen of medication for her mental illness.”
       The People acknowledged defendant’s struggle with mental illness, but countered
that “she has a horrendous record that goes back to 1985,” with “nine theft-related
convictions.” “Based upon the fact that she was on parole for a similar offense,” the
People argued, “but one where she took, or tried to take, the property by use of force or
violence, and then committed a similar type offense here, I don’t see how the Court
would strike the strike given the recency of it.”
       The trial court denied defendant’s Romero motion, explaining: “[Inasmuch] as the
defendant is statutorily ineligible for probation, I would have to find first that this case
warrants striking her 2012 prior serious felony conviction and ignoring the other three
felony convictions to conclude that this is an unusual case. I can do neither in this
situation. [¶] As [the prosecutor] pointed out, [defendant] has a criminal record that



commitment’ ” (since her custody credits exceeded the term) and parole rather than
prison.

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began in 1985. She’s been convicted of 29 offenses, many of them minor in nature, but
those convictions were ongoing. There was never any significant period of time when
the defendant was not involved in some aspect with the criminal justice system. [¶] With
regard to the strike, the defendant was convicted of attempted robbery in, I think it was
September of 2012, and the events in this case occurred in June of 2013. [¶] Given the
recency of the defendant’s prior conviction, given her entire record, there is nothing that
suggests that this case or [defendant] herself would fall outside the spirit of the Three
Strikes Law. So I would deny the request to strike [the attempted robbery conviction],
and I would deny the request for a grant of probation.”
       The trial court noted, however, that “the information available to me supports the
assertion that the defendant has suffered from some mental health condition for years.”
The trial court concluded that additional information regarding defendant’s mental health
condition would be helpful in deciding whether or not to strike one or more of the prior
prison term enhancements. Accordingly, the trial court continued the sentencing hearing
in order to consider psychological evaluations prepared in connection with defendant’s
conviction for attempted robbery.
       The continued hearing focused on defendant’s mental health condition. Following
oral argument, which included a discussion of five recent mental health reports, the trial
court concluded: “Based on what I have been able to learn, it is absolutely clear to me
that there’s no justification to place [defendant] on probation, but it is also clear to me
that her behavior in this case and her overall contacts with the criminal justice system
warrant some mitigation in the punishment to be imposed for the offenses for which she
was convicted in this case.” Accordingly, the trial court exercised its discretion to strike
one of the prior prison term enhancements in the interests of justice.
       Defendant was then sentenced to a lower term of 16 months, doubled for the
attempted robbery conviction, plus 12 months for the remaining prior prison term
enhancement, for an aggregate sentence of 44 months in state prison. The trial court also

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ordered defendant to pay a $300 restitution fine, stating: “I must impose a restitution fine
of $300.” Defendant did not object to the amount of the restitution fine.
       Defendant filed a timely notice of appeal.
                                       DISCUSSION
                                               I
                                       Romero Motion
       On appeal, defendant contends the trial court abused its discretion by denying her
motion to strike her prior strike conviction pursuant to Romero. She claims that the trial
court “focused exclusively on her criminal history in making that determination,” and
failed to consider her mental condition, “which was the most significant factor, having
contributed to both her present offenses as well as the 2012 strike offense.” We disagree.
       Section 1385 gives the trial court authority, on its own motion or upon application
of the prosecution, “and in furtherance of justice,” to order an action dismissed. (§ 1385,
subd. (a).) In Romero, the California Supreme Court held that a trial court may use
section 1385 to strike or vacate a prior strike for purposes of sentencing under the three
strikes law, “subject, however, to strict compliance with the provisions of section 1385
and to review for abuse of discretion.” (Romero, supra, 13 Cal.4th at p. 504.) Thus, a
trial court’s “failure to dismiss or strike a prior conviction allegation is subject to review
under the deferential abuse of discretion standard.” (People v. Carmony (2004)
33 Cal.4th 367, 374 (Carmony).)
       In ruling on a Romero motion, the trial court “must consider whether, in light of
the nature and circumstances of his present felonies and prior serious and/or violent
felony convictions, and the particulars of his background, character, and prospects, the
defendant may be deemed outside the scheme’s spirit, in whole or in part, and hence
should be treated as though he had not previously been convicted of one or more serious
and/or violent felonies.” (People v. Williams (1998) 17 Cal.4th 148, 161.)



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       Dismissal of a strike is a departure from the sentencing norm. Therefore, in
reviewing a Romero decision, we will not reverse for abuse of discretion unless the
defendant shows the decision was “so irrational or arbitrary that no reasonable person
could agree with it.” (Carmony, supra, 33 Cal.4th at p. 377.) Reversal is justified where
the trial court was unaware of its discretion to strike a prior strike or refused to do so for
impermissible reasons. (Id. at p. 378.) But where the trial court, aware of its discretion,
“ ‘balanced the relevant facts and reached an impartial decision in conformity with the
spirit of the law, we shall affirm the trial court’s ruling, even if we might have ruled
differently in the first instance’ [Citation].” (Ibid.)
       Defendant argues that the trial court “focused exclusively on her criminal history”
and failed to consider her mental condition. However, defendant discussed her mental
condition at length in a six-page “[s]entencing memorandum and statement in
mitigation,” which the trial court received and reviewed prior to sentencing. Defendant
also discussed her mental condition at the sentencing hearing, noting that a mental health
professional had concluded that “she was incapable of knowing or understanding the
nature and quality of her act” at the time of the prior attempted robbery. Indeed,
defendant specifically urged the trial court to consider her mental condition in deciding
whether or not to grant the Romero motion, arguing that she was “under the influence of
her illness, mental illness” at the time of the prior offense.
       There is nothing in the record to suggest that the trial court failed to consider
defendant’s mental health condition in denying the Romero motion. To the contrary, the
trial court acknowledged that “defendant has suffered from some mental health condition
for years.” Indeed, the trial court continued the sentencing hearing in order to consider
additional information regarding defendant’s mental health condition. The trial court also
relied on defendant’s mental health condition to impose the lower term of 16 months for
the current offense of burglary and struck one of her prior prison term enhancements
pursuant to section 667.5, subdivision (b). Thus, the trial court clearly considered

                                               7
defendant’s mental health condition. Nevertheless, the trial court concluded that
defendant’s mental health condition did not warrant sentencing outside of the Three
Strikes law.
       The trial court’s decision was not an abuse of discretion. (People v. Carrasco
(2008) 163 Cal.App.4th 978, 993-994 [trial court’s consideration of defendant’s
background and character demonstrates proper understanding of Romero discretion and
court need not place greater weight on mental illness than on other relevant criteria].)
       Defendant, age 58, has an extensive criminal record, spanning more than a
quarter-century. She has 29 prior convictions, including four prior felony convictions.
She committed the current offense while on parole for her prior strike conviction. Under
the circumstances, and considering that defendant’s prior strike conviction was less than
a year old at the time of sentencing, we cannot say that the trial court’s conclusion was
arbitrary or irrational.
                                              II
                                      Restitution Fine
       At sentencing, the trial court imposed a $300 restitution fine pursuant to
section 1202.4, subdivision (b)(1) which provides in relevant part: “In every case where
a person is convicted of a crime, the court shall impose a separate and additional
restitution fine, unless it finds compelling and extraordinary reasons for not doing so and
states those reasons on the record. [¶] (1) The restitution fine shall be set at the
discretion of the court and commensurate with the seriousness of the offense. If the
person is convicted of a felony, the fine shall not be less than . . . two hundred eighty
dollars ($280) starting on January 1, 2013, and three hundred dollars ($300) starting on
January 1, 2014, and not more than ten thousand dollars ($10,000).”
       Defendant argues that the imposition of the $300 restitution fine was a violation of
the constitutional prohibition against ex post facto penalties and must be reduced to $280



                                              8
to reflect the statutory minimum in effect at the time of her offense. We disagree, as
defendant forfeited any claim of error, and fails to establish error in any event.
         The ex post facto clauses of the state and federal Constitutions prohibit statutes
which increase the punishment for a crime. (U.S. Const., art. I, § 10; Cal. Const., art. I,
§ 9; People v. McKee (2010) 47 Cal.4th 1172, 1193; People v. Schoop (2012)
212 Cal.App.4th 457, 475; People v. Callejas (2000) 85 Cal.App.4th 667, 670.) “It is
well established that the imposition of restitution fines constitutes punishment, and
therefore is subject to the proscriptions of the ex post facto clause and other constitutional
provisions.” (People v. Souza (2012) 54 Cal.4th 90, 143; People v. Valenzuela (2009)
172 Cal.App.4th 1246, 1248.) Accordingly, the amount of a restitution fine is calculated
as of the date of the offense. (People v. Souza, at p. 143; People v. Valenzuela, at p.
1249.)
         Even assuming arguendo the trial court intended to select the statutory minimum,
defendant has forfeited any challenge to the amount of the restitution fine by failing to
object below. The rule of forfeiture applies to ex post facto claims, particularly where the
alleged error could easily have been corrected had it been timely brought to the trial
court’s attention. (See People v. White (1997) 55 Cal.App.4th 914, 917.) “[C]omplaints
about the manner in which the trial court exercises its sentencing discretion and
articulates its supporting reasons cannot be raised for the first time on appeal.” (People v.
Scott (1994) 9 Cal.4th 331, 356; see also In re Sheena K. (2007) 40 Cal.4th 875, 881
[“the forfeiture rule applies in the context of sentencing as in other areas of criminal
law”]; People v. Garcia (2010) 185 Cal.App.4th 1203, 1218 [“[a]n objection to the
amount of restitution may be forfeited if not raised in the trial court”].)
         Defendant tries to avoid the forfeiture rule by claiming that the fine constituted an
unauthorized sentence. Again, we disagree. An unauthorized sentence may be corrected
at any time, whether or not the defendant objected in the trial court. (People v.
Valenzuela, supra, 172 Cal.App.4th at p. 1249; People v. Holman (2013)

                                               9
214 Cal.App.4th 1438, 1450-1451; People v. Turrin (2009) 176 Cal.App.4th 1200, 1205
(Turrin).) However, the unauthorized sentence exception constitutes a “ ‘ “narrow
exception” ’ ” to the forfeiture doctrine that applies only where the sentence “ ‘ “could
not lawfully be imposed under any circumstance in the particular case. ” ’ ” (Turrin, at
p. 1205; People v. Anderson (2010) 50 Cal.4th 19, 26.) Under the version of
section 1202.4 in effect when defendant committed her crimes, the trial court had
discretion to impose any amount greater than $280 and less than $10,000. Defendant’s
$300 fine clearly falls within the permissible range; therefore, the fine is not a sentence
that “ ‘ “could not lawfully be imposed under any circumstances . . . .” ’ ” (Turrin, at
p. 1205.)
       Furthermore, on the merits there was no error. Defendant committed the present
crime on June 19, 2013. She was sentenced on December 11, 2013. The statutory
minimum increased from $280 to $300 on January 1, 2014, almost three weeks after
sentencing. (§ 1202.4, subd. (b)(1).)
       Defendant’s argument assumes that the trial court intended to impose the
minimum fine, and mistakenly believed the minimum fine had already increased to $300.
However, the trial court never expressed an intent to impose the minimum restitution
fine. Instead, the trial court merely stated: “I must impose a restitution fine of $300.”
The trial court’s succinct remarks could reflect a misunderstanding as to the current
amount of the minimum restitution fine, as defendant contends; however, they could also
reflect the trial court’s correct understanding that section 1202.4, subdivision (b) requires
the imposition of “a separate and additional restitution fine, unless [the trial court] finds
compelling and extraordinary reasons for not doing so and states those reasons on the
record.” (§ 1202.4, subd. (b).) In any event, defendant has the burden of affirmatively
showing error, and we cannot find such error on the basis of mere speculation about what
the trial court intended, particularly when the trial court had discretion to impose a $300
fine. (In re Julian R. (2009) 47 Cal.4th 487, 499 [“ ‘ “a trial court is presumed to have

                                              10
been aware of and followed the applicable law” ’ ”]; People v. Nitschmann (2010)
182 Cal.App.4th 705, 708-709 [“ ‘ “A judgment or order of the lower court is presumed
correct. All intendments and presumptions are indulged to support it on matters to which
the record is silent, and error must be affirmatively shown. ” ’ ”].) Thus, on this record,
we must presume that the trial court properly exercised its discretion to impose a $300
restitution fine pursuant to the version of section 1202.4 in effect at the time of
defendant’s offense. (People v. Nitschmann, supra, 182 Cal.App.4th at pp. 708-709.)
We therefore conclude there was no ex post facto violation.
                                       DISPOSITION
       The judgment is affirmed.


                                              BLEASE                    , Acting P. J.


We concur:


         ROBIE                      , J.


         MAURO                      , J.




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