Opinion
C072907
12-21-2018
THE PEOPLE, Plaintiff and Respondent, v. GREGORY BRIAN JONES, Defendant and Appellant.
NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. Nos. MF03407A, TF036463A, MF034256B, MF034510A, MF034638A, MF034652A, MF034671A)
Following guilty pleas in seven different cases of theft and drug offenses, defendant Gregory Brian Jones appeals. In his initial brief defendant contended: (1) the trial court improperly stayed rather than struck on-bail enhancements (§ 12022.1) in two cases; (2) the trial court imposed concurrent sentences in two of his cases for possession and transportation of the same drugs, contrary to section 654; (3) the trial court erred in denying his motion to strike a prior conviction under the Three Strikes law "in furtherance of justice" (Pen. Code, § 1385; People v. Superior Court (Romero) (1996) 13 Cal.4th 497 (Romero)); and (4) two restitution fines were improperly imposed ex post facto.
Undesignated statutory references are to the Penal Code in effect at the time of the charged offenses.
While this appeal was pending, the Legislature redefined " 'transports' " in certain drug offenses to mean "transport for sale." (Health & Saf. Code, §§ 11352, subd. (c), 11379, subd. (c), as amended by Stats. 2013, ch. 504, §§ 1-2; Health & Saf. Code, § 11360, subd. (c), as amended by Stats. 2015, ch. 77, § 1).) At defendant's request, we allowed supplemental briefing on the effect of the new legislation on this case. Defendant filed a supplemental brief, but the Attorney General did not. Additionally, defendant requested and we allowed supplemental briefing on the application of Proposition 47 to defendant's convictions. Defendant contends that we should reduce eight of his felony convictions to misdemeanor convictions. The Attorney General opposes reduction by this court and argues that defendant must petition for recall and resentencing under Proposition 47's resentencing provisions.
We conclude the legislative amendments to the drug transportation provisions may affect the judgment on count 2 in case number MF034638A, count 2 in MF034256B, and count 1 in MF034510A, and we reverse and remand to the trial court for further proceedings.
We also reverse judgment in two theft cases, case numbers MF034652A and MF034671A, because of the trial court's error in staying the on-bail enhancements. It was improper to stay the enhancements and since the trial court clearly intended that the sentences not be imposed, we vacate the order staying them and strike them instead.
We otherwise affirm the judgments.
FACTUAL AND PROCEDURAL BACKGROUND
On August 20, 2012, defendant pleaded guilty to seven cases involving drug and theft offenses and admitted a strike conviction, a 2001 conviction for robbery. Pursuant to the negotiated agreement, defendant's sentence exposure was limited to "six years at 80 percent as enhanced by the strike."
We set forth the seven cases in chronological order based on the date of the offenses. The facts underlying the charges are taken from the probation reports, preliminary hearing transcripts, and/or the prosecutor's articulation of the factual basis for the plea.
TF036463A—April 19, 2011, Possession of Methamphetamine and Concentrated Cannabis
On September 22, 2011, the prosecutor filed an information charging defendant with (1) possession of a controlled substance, methamphetamine (Health & Saf. Code, § 11377), and (2) possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)). The information alleged defendant had a strike conviction in 2001 for robbery (§§ 211, 667, subd. (d), 1170.12, subd. (b)).
The pleading in this case mistakenly alleged the strike conviction was in 2011.
This case arose from an April 19, 2011, traffic stop during which the officer noted a strong smell of marijuana. Defendant failed a sobriety test. The probation report says police found marijuana in defendant's pocket and the car's glove box. The preliminary hearing transcript, which the parties stipulated the court could use at sentencing, contains an officer's testimony that he found marijuana in the driver's door panel and a pill bottle containing both methamphetamine and concentrated cannabis in the glove box.
MF034070A—December 21, 2011, Theft Offense
On May 9, 2012, the prosecutor filed an information charging defendant with petty theft with a prior theft-related conviction and a strike allegation for the 2001 robbery (§§ 666, 667, subd. (d), 1170.12, subd. (b)). Defendant was apprehended shoplifting a personal massager at CVS Pharmacy on December 21, 2011.
MF034256B—January 24, 2012, Transportation/Possession of Methamphetamine, Concentrated Cannabis, and Hashish Oil
On February 14, 2012, the prosecutor filed a complaint charging defendant with (1) possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), (2) transportation/sale of hash/oil/concentrated cannabis/methamphetamine (Health & Saf. Code, § 11379), (3) misdemeanor possession of concentrated cannabis (Health & Saf. Code, § 11357, subd. (a)), (4) misdemeanor possession of drug paraphernalia (Health & Saf. Code, § 11364), and (5) possession of marijuana while driving, an infraction under Vehicle Code section 23222, subdivision (b).
The factual basis articulated by the prosecutor supported the transportation theory. He mentioned nothing of actual sales.
The prosecution did not allege the 2001 strike conviction in this case.
This case arose from a traffic stop on January 24, 2012. Defendant was in the driver's seat with marijuana in plain view in the center console cup holder. He also had a small bag in the coin pocket of his jeans containing 0.31 gram of methamphetamine. In the car, police also found 0.37 gram of concentrated cannabis, a glass pipe with methamphetamine residue, and a bottle containing hashish oil.
The probation report did not indicate where these items were found in the car.
MF034510A—April 12, 2012, Transportation of Marijuana and Driving Under the Influence
On August 20, 2012, the prosecutor filed a complaint deemed an information charging defendant with (1) sale, furnishing, and/or transportation of marijuana (Health & Saf. Code, § 11360, subd. (a)), and (2) misdemeanor driving under the influence of drugs or alcohol (Veh. Code, § 23152, subd. (a)). The 2001 robbery was again alleged as a strike conviction.
According to the probation report, police made a traffic stop and "smelled a strong marijuana odor emitting from the inside of the vehicle." Defendant was driving. Three others were in the vehicle. An officer saw a small baggie of marijuana in the cup holder. A search revealed more marijuana, hashish, methamphetamine, and a glass pipe.
The complaint alleged the offenses occurred on April 12, 2012. The probation report incorrectly says the offenses occurred on January 24, 2012, which was the date of another traffic stop in case MF034256B.
In preliminary hearing testimony, the arresting officer testified that he found a quantity of marijuana in the glove box and on defendant's person. The amount in the glove box was apparently 46 grams and the amount in defendant's pocket was 10.6 grams. The officer opined that that the marijuana found in defendant's pocket was possessed for personal use. The officer was not asked to opine about the purpose of defendant's possession of the larger quantity found in the glove box. There was no testimony about marijuana found in a cup holder or hashish, methamphetamine, or a glass pipe also being found in the car. Nor was there any reference to other people in the vehicle.
Defendant testified at the preliminary hearing that the marijuana was for his own personal use and that he had a "prescription" and a marijuana card, which was in the glove box. The officer testified that defendant never said he had a marijuana card. The officer did not see any marijuana card, but did not examine the paperwork that was in the glove box.
MF034638A —May 3, 2012, Transportation/Possession of Methamphetamine
At the change of plea hearing, the prosecutor and the trial court mistakenly referred to this case by the wrong case number (MF036463A).
On May 9, 2012, the prosecutor filed a complaint charging defendant with (1) possession of methamphetamine (Health & Saf. Code, § 11377, subd. (a)), and (2) transportation and sale of methamphetamine (Health & Saf. Code, § 11379). As to both counts, the pleading alleged the 2001 robbery as a strike conviction.
Although the pleading charged transport and sale, the prosecutor in reciting the factual basis for the plea stated that defendant possessed and transported methamphetamine. No facts were articulated indicating defendant actually sold or intended to sell methamphetamine.
This case arose when police attempted a traffic stop on May 3, 2012. Defendant at first refused to stop, and when he eventually did, he exited the car and tried to discard two baggies of crystal methamphetamine, approximately 1.2 grams and 0.4 gram.
MF034652A—May 5, 2012, Theft Offense and On-Bail Enhancement
On August 20, 2012, the prosecutor filed a complaint later deemed an information charging defendant with petty theft with a prior theft-related conviction (§ 666) and alleging the 2001 robbery as a strike conviction. An on-bail enhancement was also alleged. (§ 12022.1.)
This case arose when defendant shoplifted two large bags of dog food from a Safeway store on May 5, 2012.
MF034671A—May 13, 2012, Theft Offense and On-Bail Enhancement
On May 15, 2012, the prosecutor filed a complaint charging defendant with petty theft with a prior theft-related conviction (§ 666) and alleged the 2001 robbery conviction as a strike. An on-bail enhancement was also alleged. (§ 12022.1.)
In this case, defendant was caught shoplifting a Bissell steam cleaner from a Wal-Mart store on May 13, 2012.
Romero Motion and Sentencing
Defendant filed a Romero motion to dismiss the strike allegation—the 2001 robbery conviction—which according to defense counsel involved stealing some videotapes from behind the counter at a movie rental store. Defense counsel did not state the source of the information concerning these purported underlying facts.
The prosecution correctly observed that the crime as was described by defense counsel is a theft, not a robbery. Apparently, the probation department did not investigate the underlying facts of the strike conviction or was unable to obtain any information. And it appears the prosecutor made no effort to obtain the police report from the investigating agency or the Santa Clara County District Attorney's Office or tried, but was unsuccessful in obtaining any documentation. As the prosecutor noted, there is no "reliable evidence" concerning the underlying facts of the strike conviction in the record.
On November 14, 2012, the trial court denied defendant's Romero motion, finding his criminal history places him within "the spirit of the three strikes law." The court sentenced defendant to a total aggregate term of four years, calculated as follows:
For the principal term, the trial court selected count 1 of MF034510A—selling, furnishing, and transporting marijuana on April 12, 2012. The court sentenced defendant to four years (double the low term).
On case TF036463A—the April 19, 2011, drug offenses—the court imposed two years eight months (double the low term) for count 1, possession of methamphetamine; and the same for count 2, possession of concentrated cannabis; both concurrent with each other and concurrent with case MF034510A.
On case MF034070A—the December 21, 2011, theft—the court imposed two years eight months (double the low term), also concurrent with MF034510A.
On case MF034256B—the January 24, 2012, drug offenses—the court imposed the low term of two years on count 2, transportation/sale of methamphetamine; a concurrent low term of one year four months on count 1, possession of methamphetamine; 180 days on each of the two misdemeanors and a fine on the infraction. The court ordered counts 1, 3, and 4, to be served concurrent to count 2, and the sentence to be served concurrent with case MF034510A.
On case MF034638A—the May 3, 2012, drug offenses—the court imposed two years eight months (double the low term) on count 1, possession of methamphetamine; and four years (double the low term) on count 2, transporting/selling methamphetamine, with the sentences to run concurrent with each other and concurrent with the sentence in case MF034510A.
The abstract of judgment and clerk's minutes show a sentence of two years eight months on the transportation count, whereas the court orally pronounced four years. In criminal cases the oral pronouncement of judgment generally controls over a conflicting written judgment (People v. Mitchell (2001) 26 Cal.4th 181, 185-186 (Mitchell); People v. Urke (2011) 197 Cal.App.4th 766, 779 (Urke)), unless circumstances demonstrate otherwise (People v. Smith (1983) 33 Cal.3d 596, 599). We see no such circumstances in this case. However, the abstract shows the transportation sentence to run concurrent with the two year eight month possession sentence.
The reporter's transcript shows the trial court mistakenly referring to this case by a nonexistent case number "MF036463A" (italics added) while also later imposing sentence on the real "TF036463A" (italics added), which involved only possession offenses. While the oral pronouncement of judgment generally controls over a conflicting written judgment (Mitchell, supra, 26 Cal.4th at pp. 185-186; Urke, supra, 197 Cal.App.4th at p. 779), the circumstances of each particular case determine whether one portion of the record should prevail against contrary statements in another part of the record (People v. Smith (1983) 33 Cal.3d 596, 599). Here, it is clear the oral pronouncement used the wrong case number, because the court imposed sentence for sale/transportation, which was not charged in case TF036463A, which alleged only possession. Moreover, the trial court also orally pronounced sentence separately on the real case TF036463A, stating the correct number. Accordingly, we disregard the trial court's mistaken reference to the wrong case number.
On case MF034652A—the May 5, 2012, theft—the court imposed two years eight months (double the low term), to be served concurrent with case MF034510A. The court stayed the two-year on-bail enhancement.
On case MF034671A—the May 13, 2012, theft—the court imposed two years eight months (double the low term), to be served concurrent with case MF034510A and stayed the on-bail enhancement.
DISCUSSION
I. On-Bail Enhancements—Theft Offenses
Regarding cases MF034652A (the May 5, 2012, theft) and MF034671A (the May 13, 2012, theft), defendant contends the trial court improperly stayed the section 12022.1 on-bail enhancements rather than imposing them or striking them, as required by law. (People v. Haykel (2002) 96 Cal.App.4th 146, 151 [" 'Unless a statute says otherwise, an enhancement may be imposed or stricken, but . . . may not be stayed' "]; see also People v. Meloney (2003) 30 Cal.4th 1145, 1155-1156 [§ 1385 gives trial court discretion to strike § 12022.1 enhancements].) Defendant argues that because the trial court stated it was staying the enhancements pursuant to Meloney and because the court clearly evinced an intent to sentence defendant to a total aggregate term of four years, the trial court clearly would not decide to impose the enhancements on remand, and therefore we should simply strike them. The Attorney General agrees the trial court erred but asks us to remand rather than strike the enhancements. We agree with defendant and reverse the order staying the enhancements and strike them instead.
II. The Drug Offenses
A. Retroactivity of Subsequent Drug Transportation Legislation
As noted, defendant was convicted of counts alleging the transportation of methamphetamine, concentrated cannabis, and hashish oil (MF034256B), and transportation of methamphetamine (MF034638A).
Defendant argues in his supplemental brief that the 2013 legislation, redefining "transportation" of certain drugs, including methamphetamine, to mean transportation for sale, requires outright reversal, or at least reversal and remand, of his convictions on the two counts of violating Health and Safety Code section 11379—count 2 of case MF034256B, and count 2 of case MF034638A. As we will explain, we reverse both convictions.
Health and Safety Code sections 11352 and 11379 provide that any person who "transports" specified controlled substances shall be punished by imprisonment. (Health & Saf. Code, §§ 11352 [and the predecessor version in effect at the time of the charged offenses and conviction, Stats. 2011, ch. 15, § 154], 11379 [and its predecessor version, Stats. 2011, ch. 15, § 174].) Courts had interpreted the word " 'transports' " to include transport of controlled substances for personal use. (People v. Rogers (1971) 5 Cal.3d 129, 134-135; People v. Eastman (1993) 13 Cal.App.4th 668, 673-677.) But the Legislature amended Health and Safety Code sections 11352 and 11379 to define "transport" as "transport for sale." (Health & Saf. Code, §§ 11352, subd. (c), 11379, subd. (c); Stats. 2013, ch. 504, §§ 1-2.) Those amendments took effect on January 1, 2014, after defendant's conviction and sentencing, but while the appeal in his cases was pending.
"[W]here the amendatory statute mitigates punishment and there is no saving clause, the rule is that the amendment will operate retroactively so that the lighter punishment is imposed" if the amended statute takes effect before the judgment of conviction becomes final. (In re Estrada (1965) 63 Cal.2d 740, 744, 748.) Finality in this context means final disposition in the highest court authorized to review the judgment. (People v. Rossi (1976) 18 Cal.3d 295, 304.) This rule of retroactivity applies to amendments which add to the elements of a crime or enhancement. (People v. Vinson (2011) 193 Cal.App.4th 1190, 1197-1199; People v. Todd (1994) 30 Cal.App.4th 1724, 1728-1730; People v. Figueroa (1993) 20 Cal.App.4th 65, 68.)
Here, the amended statutes do not contain saving clauses which evince the Legislature's intent that the amendments apply prospectively only.
This rule of retroactivity may apply even where, as here, the defendant pleaded guilty pursuant to a plea bargain. (Doe v. Harris (2013) 57 Cal.4th 64, 66, 71.) Our Supreme Court in Doe v. Harris, at the request of the Ninth Circuit Court of Appeals, addressed the question whether the law in effect at the time of a plea agreement binds the parties or could the terms of the plea agreement be affected by changes in the law. (Id. at p. 66.) Our high court concluded that the general rule in California is that the plea agreement will be deemed to incorporate and contemplate not only the existing law but the reserve power of the state to amend the law or enact additional laws for the public good and in pursuance of public policy. (Ibid.) Although the facts and circumstances of a particular plea agreement might give rise to an implicit promise that the defendant will be unaffected by a change in the law (id. at pp. 71, 73), the People make no such argument here, where they have not filed a supplemental brief.
According to the author's statement included in an Assembly bill analysis, the purpose of the 2013 amendments was to limit felony drug transportation charges to individuals involved in drug trafficking. (Assem. Com. on Public Safety, Rep. on Assem. Bill No. 721 (2013-2014 Reg. Sess.) as amended Apr. 16, 2013.) The amendments make it " 'expressly clear that a person charged with this felony must be in possession of drugs with the intent to sell. Under AB 721, a person in possession of drugs ONLY for personal use would remain eligible for drug possession charges. However, personal use of drugs would no longer be eligible for a SECOND felony charge for transportation.' " (Id. at p. 3.) The amendments benefit a defendant by requiring proof of an additional element—intent to sell—for a drug transportation conviction, and by eliminating criminal liability for drug transportation in cases involving possession for personal use.
Accordingly, we conclude the 2013 legislation applies retroactively to defendant's conviction of Count Two of case number MF034638A, transportation of methamphetamine in violation of Health and Safety Code section 11379. Defendant is entitled to the benefit of the amendment and accordingly, we reverse and remand for further proceedings.
Defendant argues we should also reverse his Health and Safety Code section 11379 conviction in count 2 of case number MF034256B. That conviction was for transporting not only methamphetamine but also hashish oil and concentrated cannabis. Hashish oil and concentrated cannabis are forms of marijuana, which is not covered by the 2013 legislative amendments. (Health & Saf. Code, § 11018 [defines marijuana to include resin and derivatives from the plant]; People v. Bergen (2008) 166 Cal.App.4th 161, 164-170 [hash oil is produced by extracting resin, i.e., concentrated cannabis, from marijuana to produce soluble concentrated cannabis known as hash oil; concentrated cannabis and marijuana resin are components of marijuana and are thus subsumed within the statutory definition of "marijuana"].)
This was a defect in the charging document. It alleged Health and Safety Code section 11379 as to all of the controlled substances, even though only the methamphetamine falls under that statute. Transporting marijuana falls under Health and Safety Code section 11360. Defendant did not raise this issue in his supplemental brief on appeal, nor could he do so on appeal, because he failed to demur to the pleading in the trial court. A defendant must demur to a defective pleading, or else the defect is forfeited. (People v. Goldman (2014) 225 Cal.App.4th 950, 955-957, citing §§ 1004 & 1012.)
While the 2013 legislation did not change the definition of transport related to transportation of marijuana, 2015 legislation did and that amendment took effect on January 1, 2016 (Health & Saf. Code, § 11360, subd. (c), as amended by Stats. 2015, ch. 77, § 1), while defendant's appeal was pending. Accordingly, defendant is entitled to the benefit of that amendment as well and accordingly, we reverse count 2 of case number MF034256B and remand for further proceedings.
B. Equal Protection
Defendant in his supplemental brief also asks us to reverse and remand his conviction for transportation of marijuana (Health & Saf. Code, § 11360) in case number MF034510A (count 1). Defendant argues the 2013 legislation, which did not redefine "transport" with respect to marijuana (Health & Saf. Code, § 11360), violates the equal protection clauses of the federal and state Constitutions by treating transportation of marijuana for personal use more harshly than transportation of some other drugs such as methamphetamine for personal use. We need not address defendant's equal protection argument because as we have noted, the legislature amended section 11360 to require that the transportation be for purposes of sale, effective January 1, 2016. (Health & Saf. Code, § 11360, subd. (c), as amended by Stats. 2015, ch. 77, § 1.) Based on Estrada, defendant is entitled to the benefit of this amendment and we remand for further proceedings.
C. Section 654
Defendant contends the sentences in case numbers MF034256B (Jan. 24, 2012, drug offenses) and MF034638A (May 3, 2012, drug offenses), violated section 654 and federal due process by imposing in each case concurrent terms for both possessing and transporting the same drugs at the same time. Defendant's failure to raise the point in the trial court does not bar it on appeal. (People v. French (2008) 43 Cal.4th 36, 46.) We need not address defendant's contentions because they appear to have been rendered moot in light of the legislative amendments discussed ante.
Section 654 provides in part, "(a) An act or omission that is punishable in different ways by different provisions of law shall be punished under the provision that provides for the longest potential term of imprisonment, but in no case shall the act or omission be punished under more than one provision. . . ."
III. Romero Motion
Defendant argues the trial court erred by denying his Romero motion to strike his prior conviction for second degree robbery in 2001. We disagree.
A trial court has the authority to dismiss a strike conviction in the interests of justice under section 1385, subdivision (a). (Romero, supra, 13 Cal.4th at p. 504.) 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 reviewing for abuse of discretion, we are guided by two fundamental precepts. First, ' "[t]he burden is on the party attacking the sentence to clearly show that the sentencing decision was irrational or arbitrary. [Citation.] In the absence of such a showing, the trial court is presumed to have acted to achieve legitimate sentencing objectives, and its discretionary determination to impose a particular sentence will not be set aside on review." ' [Citations.] Second, a ' "decision will not be reversed merely because reasonable people might disagree. 'An appellate tribunal is neither authorized nor warranted in substituting its judgment for the judgment of the trial judge.' " ' [Citations.] Taken together, these precepts establish that a trial court does not abuse its discretion unless its decision is so irrational or arbitrary that no reasonable person could agree with it." (Carmony, supra, 33 Cal.4th at pp. 376-377.)
In deciding whether to exercise its discretion to dismiss strike allegations, courts must determine whether the defendant should be deemed outside the spirit of the Three Strikes law 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 (Williams).) In making this determination courts must consider three circumstances: (1) the nature and circumstances of his present felonies; (2) the nature and circumstances of his strike offense; and (3) the particulars of his background, character, and prospects for the future. (Ibid.)
We reject defendant's argument that prison overcrowding is a factor that should have been considered by the trial court.
A. The Nature and Circumstances of the Current Offenses
Here, the individual felonies for which defendant was convicted are relatively low grade as far as felonies go. What distinguishes defendant is the number of offenses. Defendant racked up seven felony cases, all pending at one time. Additionally, two of the felonies were committed while he was on bail. These factors cut against a finding that defendant is outside the spirit of the Three Strikes law, a measure enacted by both the Legislature and the voters to address recidivism.
B. Nature and Circumstances of the Strike Offense
Little was apparently known about the defendant's strike offense because neither the probation department nor the prosecutor obtained any information describing the underlying conduct. (See fn. 9, ante.) As we have noted, defense counsel stated her understanding of what occurred, but what counsel described did not amount to a robbery and the source of counsel's information was not stated. All we know for sure about the strike offense is that defendant took property by force or fear from the immediate presence of a victim. Given the state of the record, this circumstance cuts against striking the strike allegation because, as a matter of law, the conviction involved violence or the threat of violence.
Had defense counsel obtained documentation corroborating what she told the court, or at least been able to quote a credible source, that information would have been potentially helpful, but still not dispositive given the other Williams factors. --------
C. Background, Character, and Prospects for the Future
Defendant was 47 years old at the time of sentencing in these cases. The probation reports show that, since 1996, defendant has had nine prior felony convictions and eight prior misdemeanor convictions for drug and theft offenses. Additionally, he has violated his parole three times. He started in 1996 with grand theft and fraud. While on probation, he was convicted in 1999 for grand theft and petty theft. While on probation, he committed theft and was sentenced to a two-year prison term in 2000. In 2001, he committed the strike offense for which he served a two-year prison term. In 2004, he was sentenced to four years in prison for resisting arrest and drug convictions. In 2007, he was convicted of driving on a suspended license.
Defendant argues his current and past cases are mostly for nonviolent drug or petty theft offenses. He told the trial court he struggles with addiction problems. On appeal, defendant argues addiction is "undoubtedly the root of the problem," yet when he addressed the court at sentencing, he did not explain what efforts, if any, he previously made on his own to address his addiction issues. He asks us to focus on the good—his family relationships and work with foster children and the homeless, as reflected in letters submitted with his motion. However, while commendable, this information does not warrant a finding that the trial court abused its discretion in declining to dismiss defendant's strike. The record as a whole, including defendant's extensive criminal history, demonstrates continuous criminal conduct undeterred by repeated grants of probation and repeated incarcerations. The totality of the circumstances does not show that defendant should be deemed outside the spirit of the Three Strikes law.
Indeed, in light of his record, the trial court would have been well within its discretion if it had imposed the maximum agreed upon sentence of six years, instead of the four-year term defendant received. It appears that the trial court took defendant's positive attributes into account when it sentenced defendant to four years instead of the six-year sentence.
We conclude the trial court did not abuse its discretion in denying defendant's Romero motion.
IV. Proposition 47
While defendant's appeal was pending, the electorate passed Proposition 47. Defendant filed supplemental briefing asking us to reduce eight of his felony convictions to misdemeanors. The Attorney General opposes reduction by this court, arguing that defendant may file a petition for recall under Penal Code section 1170.18. We agree with the Attorney General.
We cannot reduce defendant's sentences. Defendant may petition for recall under Penal Code section 1170.18 in the trial court, if he has not already done so. (People v. DeHoyos (2018) 4 Cal.5th 594, 597.) Resentencing is only available to defendant pursuant to the statutory resentencing procedure in Penal Code section 1170.18. (DeHoyos, at p. 597.)
V. Restitution Fine and Parole Revocation Fine
Defendant argues the trial court's imposition of a $240 restitution fine (§ 1202.4, subd. (b)(1)) and a $240 parole revocation fine (§ 1202.45) at the 2012 sentencing constituted an ex post facto violation because the minimum for restitution fines was only $200 at the time defendant committed his crimes. Defendant asks us to reduce each fine to $200. The contention lacks merit.
The federal and state ex post facto clauses (U.S. Const., art. I, § 9; Cal. Const., art. I, § 9) prohibit application of a statute making more burdensome the punishment, including a restitution fine, for a crime after its commission. (Tapia v. Superior Court (1991) 53 Cal.3d 282, 294-295; People v. Saelee (1995) 35 Cal.App.4th 27, 30; People v. Downing (1985) 174 Cal.App.3d 667, 672.)
Section 1202.4 requires the trial court to impose a restitution fine in every criminal conviction unless it finds compelling and extraordinary reasons not to do so. Section 1202.45 requires the trial court impose a parole revocation fine in same amount as the restitution fine, in cases where the sentence includes parole.
At the time defendant committed his offenses, section 1202.4 gave the court discretion to impose a fine in an amount set in the trial court's discretion, but not less than $200 and not more than $10,000. (Stats. 2010, ch. 351, § 9.) Section 1202.4 was amended operative January 1, 2012, raising the minimum to $240 for the year 2012, and higher amounts in subsequent years. (Stats. 2011, ch. 358, § 1.)
We agree with the People that defendant forfeited this issue by failing to object in the trial court. (People v. McCullough (2013) 56 Cal.4th 589, 591-592; People v. Gamache (2010) 48 Cal.4th 347, 409.) Before he entered his guilty pleas, the trial court expressly told defendant he would be required to pay a restitution fine "of not less than 240 dollars and not more than 10,000 dollars," and a separate parole revocation fine of $240. Thus, the court never said it was going to impose the "minimum" restitution fine. Defendant made no objection but instead entered his guilty pleas with the understanding the court intended to impose a restitution fine of at least $240. Because the fine was well within the statutory range at the time he committed the offenses, and he failed to object in the trial court, the matter is forfeited.
We reject defendant's challenge to the restitution fines.
DISPOSITION
The judgments in cases MF034652A (May 5, 2012, theft) and MF034671A (May 13, 2012, theft) are reversed, the trial court's order staying the 12022.1 on-bail enhancements is vacated, and the enhancements are stricken. The abstracts of judgment must be amended accordingly.
Because of the 2013 and 2015 legislation, the judgments in case numbers MF34256B, MF034510A, and MF034638A are reversed and remanded to the trial court for further proceedings.
The trial court shall forward corrected and amended abstracts of judgment to the Department of Corrections and Rehabilitation.
The judgments are otherwise affirmed.
MURRAY, J. We concur: HULL, Acting P. J. MAURO, J.