Filed 4/7/14 P. v. Jimenez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063936
Plaintiff and Respondent,
v. (Super. Ct. No. SCD243800)
JESUS A. JIMENEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Honorable
Richard S. Whitney, Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for the Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, Scott C. Taylor and Marissa A. Bejarano, Deputy Attorneys General,
for the Plaintiff and Respondent. Jesus A. Jimenez pleaded guilty to second degree burglary of a middle school
(Pen. Code, § 459). The trial court suspended imposition of sentence and placed him on
three years of felony probation on condition he serve 120 days in custody. Thereafter,
the court awarded the school $6,300.36 in restitution to be paid jointly and severally by
Jimenez and his codefendant, Mikhael A. Macadory. Adopting arguments from
Macadory's prior appeal,1 Jimenez challenges imposition of the restitution award.
Specifically, he contends restitution for commercial property security upgrades is not
authorized by Penal Code section 1202.4, subdivision (f)(3) and thus results in a windfall
to the school; his conduct was not the proximate cause of the school's decision to upgrade
security; and the restitution order was excessive and unreasonable because it serves no
rehabilitative purpose.2 We affirm the order.
1 At Jimenez's request, we have taken judicial notice of the record in Macadory's appeal including our opinion, People v. Macadory (Jan. 15, 2014, D063575) [nonpub. opn.].
2 As we did in Macadory's appeal, we reject Jimenez's assertion, based on People v. Bouzas (1991) 53 Cal.3d 467, that the People implicitly conceded the restitution award was a windfall and serves no rehabilitative purpose by not addressing those issues. In Bouzas, the court inferred the People's concession of a statutory interpretation theory because "although they respond to each of defendant's other arguments, they simply ignored this [theory] in their brief and at oral argument." (Bouzas, at p. 480.) This had consequence in Bouzas because the defendant had established error on that point. (Ibid.) Here, Jimenez's argument is unavailing because he has not met his burden to show prejudicial error in the face of prima facie evidence of loss, as was presented here. (People v. Gemelli (2008) 161 Cal.App.4th 1539,1543.) 2 FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation officer's report in Jimenez's case, as well as
codefendant Macadory's motion opposing a restitution award and accompanying exhibits,
with which Jimenez has augmented the record.
On October 8, 2012, police officers responded to an alarm at Millennial Tech
Middle School. On arrival, the officers conducted a perimeter check and apprehended
three suspects, including Jimenez and Macadory. Officers discovered that the boy's
locker room had been broken into and several of the locks on individual lockers had been
cut off. A window into one classroom had been taken off its hinges and pried open, and
the classroom door was propped open with a duffel bag that contained a computer
monitor. The officers found damage to two other adjacent classrooms. One had pry
marks on its window frame and another had its window shattered. An officer found bolt
cutters and a backpack in the area where the suspects fled.
Millennial Tech Middle School had been burglarized four times since September
2012, but the school had not planned on putting bars on the classrooms because they were
bungalows scheduled to be moved early the following year. The school eventually
decided to put security bars on the classrooms as a result of the break-in involving
Jimenez and the other burglaries.
Jimenez pleaded guilty to second degree burglary, after which the court held a
restitution hearing. Though the People were prepared to present testimony from the
school's vice principal, the court saw no need for it, hearing only the parties' arguments.
The People argued the burglary was one of the causes for the school's loss, and the
3 installation of security bars to a commercial building was a type of restitution recoverable
under Penal Code section 1202.4, making defendants liable for the full amount of
restitution. Macadory's counsel argued there was no connection between all of the
burglaries and the school's security upgrades, which therefore were not the direct result of
Macadory's crime. Counsel maintained that awarding the school the full cost of the
upgrades would amount to a windfall, and Penal Code section 1202.4 precluded an award
for the cost of installing security measures on a commercial building after a burglary,
despite its use of the phrase "including, but not limited to" when enumerating allowable
losses. Jimenez's counsel agreed, asserting there was one broken window in the five or
six buildings on campus. The court took the matter under submission.
The trial court eventually awarded the school the full amount of its requested
restitution. It relied on People v. Carbajal (1995) 10 Cal.4th 1114, which allows
imposition of restitution as a condition of probation, even when the victim's loss was not
caused by the defendant's criminal conduct, if the court finds restitution will serve one of
the purposes set out in Penal Code section 1203.1, subdivision (j). (Carbajal, at p. 1122.)
The court ruled: "[W]hile there may be other factors that led to the eventual decision of
the school to add security bars to classroom windows, it is clear that the conduct of the
defendant was a direct cause of the final decision to install enhanced security measures in
the school to not only protect future theft of school assets, but also to provide an added
measure of security and comfort for the school due to the breach caused by the
defendant's burglary and felonious conduct." It awarded the school $6,300.36 in
restitution to be paid jointly and severally by Jimenez and Macadory.
4 DISCUSSION
The facts underlying the joint and several restitution award are the same as those
presented in our prior opinion. Because Jimenez raises no new issues or arguments but
merely adopts those made by his codefendant Macadory, our prior opinion addressing all
of these points in People v. Macadory, supra, D063575, is dispositive. We hereby
incorporate all of parts I through IV of that decision into this opinion. (Accord, People v.
Hamilton (1988) 45 Cal.3d 351, 355, 363 [adopting prior decision as decision in present
appeal after remand from U.S. Supreme Court]; Custom Craft Carpets, Inc v. Miller
(1982) 137 Cal.App.3d 120, 123.)
Resolution of this appeal includes our conclusion that by failing to raise any issue
concerning his financial condition during the restitution hearing, Jimenez forfeited any
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Filed 4/7/14 P. v. Jimenez CA4/1 NOT TO BE PUBLISHED IN OFFICIAL REPORTS 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.
COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
THE PEOPLE, D063936
Plaintiff and Respondent,
v. (Super. Ct. No. SCD243800)
JESUS A. JIMENEZ,
Defendant and Appellant.
APPEAL from an order of the Superior Court of San Diego County, Honorable
Richard S. Whitney, Judge. Affirmed.
Jeffrey S. Kross, under appointment by the Court of Appeal, for the Defendant and
Appellant.
Kamala D. Harris, Attorney General, Dane R. Gillette, Julie L. Garland, Assistant
Attorneys General, Scott C. Taylor and Marissa A. Bejarano, Deputy Attorneys General,
for the Plaintiff and Respondent. Jesus A. Jimenez pleaded guilty to second degree burglary of a middle school
(Pen. Code, § 459). The trial court suspended imposition of sentence and placed him on
three years of felony probation on condition he serve 120 days in custody. Thereafter,
the court awarded the school $6,300.36 in restitution to be paid jointly and severally by
Jimenez and his codefendant, Mikhael A. Macadory. Adopting arguments from
Macadory's prior appeal,1 Jimenez challenges imposition of the restitution award.
Specifically, he contends restitution for commercial property security upgrades is not
authorized by Penal Code section 1202.4, subdivision (f)(3) and thus results in a windfall
to the school; his conduct was not the proximate cause of the school's decision to upgrade
security; and the restitution order was excessive and unreasonable because it serves no
rehabilitative purpose.2 We affirm the order.
1 At Jimenez's request, we have taken judicial notice of the record in Macadory's appeal including our opinion, People v. Macadory (Jan. 15, 2014, D063575) [nonpub. opn.].
2 As we did in Macadory's appeal, we reject Jimenez's assertion, based on People v. Bouzas (1991) 53 Cal.3d 467, that the People implicitly conceded the restitution award was a windfall and serves no rehabilitative purpose by not addressing those issues. In Bouzas, the court inferred the People's concession of a statutory interpretation theory because "although they respond to each of defendant's other arguments, they simply ignored this [theory] in their brief and at oral argument." (Bouzas, at p. 480.) This had consequence in Bouzas because the defendant had established error on that point. (Ibid.) Here, Jimenez's argument is unavailing because he has not met his burden to show prejudicial error in the face of prima facie evidence of loss, as was presented here. (People v. Gemelli (2008) 161 Cal.App.4th 1539,1543.) 2 FACTUAL AND PROCEDURAL BACKGROUND
The facts are taken from the probation officer's report in Jimenez's case, as well as
codefendant Macadory's motion opposing a restitution award and accompanying exhibits,
with which Jimenez has augmented the record.
On October 8, 2012, police officers responded to an alarm at Millennial Tech
Middle School. On arrival, the officers conducted a perimeter check and apprehended
three suspects, including Jimenez and Macadory. Officers discovered that the boy's
locker room had been broken into and several of the locks on individual lockers had been
cut off. A window into one classroom had been taken off its hinges and pried open, and
the classroom door was propped open with a duffel bag that contained a computer
monitor. The officers found damage to two other adjacent classrooms. One had pry
marks on its window frame and another had its window shattered. An officer found bolt
cutters and a backpack in the area where the suspects fled.
Millennial Tech Middle School had been burglarized four times since September
2012, but the school had not planned on putting bars on the classrooms because they were
bungalows scheduled to be moved early the following year. The school eventually
decided to put security bars on the classrooms as a result of the break-in involving
Jimenez and the other burglaries.
Jimenez pleaded guilty to second degree burglary, after which the court held a
restitution hearing. Though the People were prepared to present testimony from the
school's vice principal, the court saw no need for it, hearing only the parties' arguments.
The People argued the burglary was one of the causes for the school's loss, and the
3 installation of security bars to a commercial building was a type of restitution recoverable
under Penal Code section 1202.4, making defendants liable for the full amount of
restitution. Macadory's counsel argued there was no connection between all of the
burglaries and the school's security upgrades, which therefore were not the direct result of
Macadory's crime. Counsel maintained that awarding the school the full cost of the
upgrades would amount to a windfall, and Penal Code section 1202.4 precluded an award
for the cost of installing security measures on a commercial building after a burglary,
despite its use of the phrase "including, but not limited to" when enumerating allowable
losses. Jimenez's counsel agreed, asserting there was one broken window in the five or
six buildings on campus. The court took the matter under submission.
The trial court eventually awarded the school the full amount of its requested
restitution. It relied on People v. Carbajal (1995) 10 Cal.4th 1114, which allows
imposition of restitution as a condition of probation, even when the victim's loss was not
caused by the defendant's criminal conduct, if the court finds restitution will serve one of
the purposes set out in Penal Code section 1203.1, subdivision (j). (Carbajal, at p. 1122.)
The court ruled: "[W]hile there may be other factors that led to the eventual decision of
the school to add security bars to classroom windows, it is clear that the conduct of the
defendant was a direct cause of the final decision to install enhanced security measures in
the school to not only protect future theft of school assets, but also to provide an added
measure of security and comfort for the school due to the breach caused by the
defendant's burglary and felonious conduct." It awarded the school $6,300.36 in
restitution to be paid jointly and severally by Jimenez and Macadory.
4 DISCUSSION
The facts underlying the joint and several restitution award are the same as those
presented in our prior opinion. Because Jimenez raises no new issues or arguments but
merely adopts those made by his codefendant Macadory, our prior opinion addressing all
of these points in People v. Macadory, supra, D063575, is dispositive. We hereby
incorporate all of parts I through IV of that decision into this opinion. (Accord, People v.
Hamilton (1988) 45 Cal.3d 351, 355, 363 [adopting prior decision as decision in present
appeal after remand from U.S. Supreme Court]; Custom Craft Carpets, Inc v. Miller
(1982) 137 Cal.App.3d 120, 123.)
Resolution of this appeal includes our conclusion that by failing to raise any issue
concerning his financial condition during the restitution hearing, Jimenez forfeited any
arguments that he cannot pay the large restitution award, whether it be authorized by
Penal Code section 1202.4 (Pen. Code, § 1202.4, subd. (g) [defendant's inability to pay
shall not be considered a compelling and extraordinary reason not to impose a restitution
order, nor shall inability to pay be a consideration in determining its amount]) or imposed
as a condition of probation. (Pen. Code, § 1203.1, subd. (a); see People v. Welch (1993)
5 Cal.4th 228, 237 [defendant forfeited challenge to reasonableness of probation
condition because he failed to raise it when sentenced]; People v. Quiroz (2011) 199
Cal.App.4th 1123, 1127 [to challenge a probation condition on appeal a defendant
generally must first raise the issue in the trial court].)
5 DISPOSITION
The order is affirmed.
O'ROURKE, J.
WE CONCUR:
McCONNELL, P. J.
McINTYRE, J.