People v. Williams CA3

Filed 8/18/14 P. v. Williams CA3 NOT TO BE PUBLISHED California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published,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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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 (Butte)

THE PEOPLE, C074829

Plaintiff and Respondent, (Super. Ct. No. CM036996)

v.

WILLIAM LEE WILLIAMS,

Defendant and Appellant.

Defendant William Lee Williams entered a negotiated plea of no contest to theft from an elder or dependent adult as a felony (Pen. Code, § 368, subd. (d); count 2)1 and admitted a prior prison term allegation (§ 667.5, subd. (b)) in exchange for dismissal of the remaining count (grand theft of personal property; count 1) and a strike prior (§§ 667, subds. (b)-(i), 1170.12) with a waiver pursuant to People v. Harvey (1979) 25 Cal.3d 754 and in the interest of justice.

1 Undesignated statutory references are to the Penal Code.

1

The court denied probation and sentenced defendant to state prison for an aggregate term of five years, that is, the upper term of four years for the underlying offense plus one year for the prior prison term. The court imposed various fees and fines including a $280 restitution fine and a corresponding $280 parole revocation restitution fine. Defendant appeals. His request for a certificate of probable cause (§ 1237.5) was denied. He contends the trial court erroneously relied upon an improper aggravating factor (an element of the offense) in imposing the upper term. We conclude that defendant has forfeited this claim by failing to object and in any event, we reject the claim on the merits. Defendant also contends that the trial court violated the prohibition against ex post facto laws in imposing restitution fines in an amount that was increased after the date of his offense. We disagree and conclude that this issue is also forfeited. FACTS Defendant’s sister, Nicole Navarro, and her husband lived with an elderly woman, Norma McMillen, helping in her care and the care of her property. In January 2012 defendant moved into McMillen’s home. By the end of April 2012 defendant had stolen several pieces of McMillen’s jewelry and had other people pawn the items for him. When Navarro confronted defendant, he admitted stealing the items and agreed to meet Navarro at the pawn shop to obtain the jewelry. Defendant failed to appear at the pawn shop and McMillen called the police. Two gold pendants were located at the pawn shop and a gold four-leaf clover piece of jewelry was recovered at a gem store. Several items were never recovered, resulting in a loss of over $20,000. McMillen had never given defendant permission to have or sell any of her jewelry. DISCUSSION I In imposing the upper term for theft from an elder, the trial court relied on several factors including that defendant took advantage of a position of trust. Defendant