1 Filed 6/26/13 P. v. Thompson CA3 NOT TO BE PUBLISHED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 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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Placer)

----

THE PEOPLE, Plaintiff and Respondent,

v. SHARON LYNN THOMPSON, Defendant and Appellant. C071122 (Super. Ct. No. 62105846)

A jury found defendant Sharon Lynn Thompson guilty of se cond 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-f act defense. We find any error harmless. Defendant also contends--and th e 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.2 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 afte r 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 ex hibit 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 earri ngs 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 sh e 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. Nord strom’s policy “for over a hundred years” has been to accept returns with out proof of purchase, to accommodate customers. A Roseville police officer testified defend ant 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 accep t returns without re ceipts, “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 pl eading to be released and claimed she had high blood pressure and that her arm might be brok en. The officer took her to the hospital, where she also claimed sh e had been hit in the head, but she had no visible injuries. Defendant testified she had received the pe rfume and two pairs of earrings as gifts, and went to Nordstrom to exch ange them because she though t that is where they came from. She first went to the perfume departme nt, 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 some3 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 m oney for one pair. Defendant testified she thought she received money be cause 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 ab out what the cashier had done. She testified that when she was stopped and accused of theft, she suggested returning to the cashier, but wh en 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 wa s a drug user. She later testified she had seen the young man and his gi rlfriend using such a pipe. She denied telling the police officer that she entere d Nordstrom with the in tent 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 th e error was harmless. We agree that any error was harmless on this record, and ther efore 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].)4 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 f act, 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 tendere d to the jury by other in structions and by the closing arguments to the jury. 2 As relevant to the burglary charge, the ju ry was instructed that the People had to prove beyond a reasonable doubt that defend ant entered the store with the “specific intent” to commit a theft therein, and that her intent could be pr oven by circumstantial evidence. Theft by lar ceny was also defined. As relevant to the burglary charge, the People argued the poli ce officer told the truth when he testified defend ant admitted entering the store w ith the intent to steal, and defendant lied when she denied telling the offi cer about her plan, and that her effort to evade arrest evidenced her consciousness of guilt. Defense counse l 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, evid ence, and arguments

________________ __________________ __________________ _________________ 2 Defendant’s claim that any error deprived her of a defense in violation of federal due process principles is not persua sive, because, as we explain post , the issue of her intent was presented to the jury th rough other instructions.5 presented the jury with a clea r factual question: When defendant entered the store, did she intend to return or ex change items given to he r 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 requis ite intent, it was instructed to acquit. Therefore, the issue tendered by the omitted instruction--the mistake-of-fact defense--was resolved adversely to defendan t by other instructions, notwithstanding that the jury was not advised that her mistake could be objectivel y unreasonable, if honestly held. Any instructional error was harmless. II The Restitution Fine Among the conditions of probation, the trial cour t imposed a $240 felony restitution fine under Penal Code section 12 02.4, subdivision (b), which it characterized as “the minimum state restitution fund . . . fi ne of $240.” At th e 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.6 2010, ch. 351, § 9.) But effe ctive January 1, 2012, before sentencing, the minimum fine was increased to $240. (Sta ts. 2011, ch. 358, § 1.) The ex post facto clauses of both the federal and state constitutions prohibit any statute which makes more burdensome the puni shment 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 minimu m 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 fi ne had defe ndant’s eligibility been brought to its attention. There was, however, no objection to the $240 fine below. Although defendant does not address fo rfeiture in his briefing, the People in conceding error characterize th e $240 fine as an unauthori zed sentence and opine that defendant may therefore claim error for the first time on appeal. We disagree. “Although the cases are varied, a senten ce 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 becaus e 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 una uthorized when imposed in April, 2012. Because the fine was not unauthorized, de fendant forfeited any claim that the trial court mistakenly imposed more than the mini mum 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, a nd clarifying permissible sentencing choices at the hearing. Routine defects in the cour t’s statement of reasons are easily prevented and corrected if called to the court’s attenti on. As in other waiver cases, we hope to reduce the number of errors co mmitted in the first instance and preserve the judicial7 resources otherwise used to correct them.” ( Scott , supra, 9 Cal.4th at p. 353.) Here, had defendant raised the 2011 minimum fine am ount 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.