gno.law

People v. Jimenez CA4/1

California Court of Appeal · D063936 · 2014-04-07 · Unpublished

Proceeding
appeal from an order
Trial court
Superior Court of San Diego County · No. SCD243800
Trial judge
Honorable Richard S. Whitney
Outcome
affirmed — Affirmed.
Area
criminal
Panel
O'Rourke (author), Judith D. McConnell, McINTYRE

Analysis

A model's reading — qwen3.8-27b, prompt v1, 2026-10-13T06:42Z · confidence low

The trial court awarded the school $6,300.36 in restitution for security upgrades, finding the defendant's burglary was a direct cause of the loss. The Court of Appeal affirmed the order, adopting the reasoning from a prior unpublished opinion in the codefendant's appeal and finding the defendant forfeited arguments regarding his ability to pay.

Ruling reviewedStandardThe courtThe model
Imposition of restitution for commercial property security upgrades
“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).”
unclearcorrectagree with court
agree with court
Forfeiture of ability-to-pay argument
“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”
unclearcorrectagree with court
agree with court

Authorities

  • relied: People v. Carbajal (1995) 10 Cal.4th 1114 — Allows imposition of restitution as a condition of probation even if the loss was not caused by the defendant's criminal conduct, provided it serves a statutory purpose.
  • relied: People v. Bouzas (1991) 53 Cal.3d 467 — The People's failure to address a specific statutory interpretation theory in their brief and at oral argument may constitute an implicit concession of that theory.
  • relied: People v. Gemelli (2008) 161 Cal.App.4th 1539 — A defendant must show prejudicial error in the face of prima facie evidence of loss to succeed on a restitution challenge.
  • relied: People v. Hamilton (1988) 45 Cal.3d 351 — Supports the practice of adopting a prior decision as the decision in the present appeal.
  • relied: Custom Craft Carpets, Inc. v. Miller (1982) 137 Cal.App.3d 120 — Supports the practice of adopting a prior decision as the decision in the present appeal.
  • relied: People v. Welch (1993) 5 Cal.4th 228 — A defendant forfeits a challenge to the reasonableness of a probation condition if they fail to raise it when sentenced.
  • relied: People v. Quiroz (2011) 199 Cal.App.4th 1123 — To challenge a probation condition on appeal, a defendant generally must first raise the issue in the trial court.

The appellate opinion: sound with gaps — The opinion is procedurally sound in its reliance on the prior unpublished opinion in the codefendant's case, which is a recognized practice in California appellate courts. However, the reasoning is thin because it incorporates the substantive legal analysis from an unpublished opinion rather than articulating the legal principles itself, and it relies on a forfeiture argument to dismiss the ability-to-pay claim without detailed analysis of the specific statutory interplay.

How this analysis was made · dispute it

unusual disposition

A model's reading — claude-fable-5-1, prompt v1, 2026-10-13T04:31Z · confidence low

After Jesus Jimenez pleaded guilty to second degree burglary of a middle school and was placed on felony probation, the trial court ordered him to pay $6,300.36 in restitution, jointly and severally with codefendant Macadory, for the school's installation of security bars, finding his conduct was a direct cause of the school's decision to upgrade security and relying on People v. Carbajal. The Court of Appeal affirmed, incorporating by reference its prior unpublished opinion in Macadory's appeal, rejecting a Bouzas implied-concession argument, and holding that any inability-to-pay argument was forfeited for failure to raise it at the restitution hearing.

Ruling reviewedStandardThe courtThe model
Award of $6,300.36 in victim restitution, as a condition of probation, for the school's post-burglary installation of security bars, over objections that such losses are not authorized by Penal Code section 1202.4, subdivision (f)(3), that the burglary was not the proximate cause of the upgrade, and that the award was excessive and served no rehabilitative purpose
“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”
unclearcorrectunsure
The opinion does not state a standard of review and resolves the substantive challenges solely by incorporating parts I through IV of the unpublished Macadory opinion, which is not before me. The trial court's reliance on Carbajal is facially sound: because sentence was suspended and restitution was imposed as a probation condition, Carbajal permits restitution for losses even if not strictly caused by the offense so long as it serves a purpose under section 1203.1, subdivision (j), and here the court also made an express direct-cause finding supported by the probation report (the school decided to install bars as a result of this break-in and the other burglaries). The result is defensible, but I cannot evaluate the actual reasoning on the windfall, proximate cause, and reasonableness arguments because it lives in the incorporated opinion.
Acceptance of the school's claimed loss amount as prima facie evidence of loss without taking the vice principal's testimony, shifting the burden to the defendant to disprove the amount (reviewed in the context of rejecting Jimenez's Bouzas implied-concession argument)
“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.”
unclearcorrectagree with court
Gemelli holds that a victim's statement of loss constitutes prima facie evidence and the burden then shifts to the defendant to show the amount is excessive. The appellate court correctly distinguished Bouzas, where the inferred concession mattered only because the defendant had already established error; here no error was shown. The appellate court is the one declining to find a concession, and its reading of Bouzas is accurate.
Imposition of the restitution award without consideration of Jimenez's ability to pay (appellate court held any inability-to-pay challenge forfeited for failure to raise it at the restitution hearing)
“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”
de novocorrectagree with court
Section 1202.4, subdivision (g) expressly bars consideration of inability to pay in setting the amount of victim restitution, and Welch and Quiroz establish that challenges to the reasonableness of probation conditions are forfeited if not raised at sentencing. Jimenez's counsel participated in the hearing and raised only causation and windfall arguments, so the forfeiture holding is well supported.

Authorities

  • relied: People v. Carbajal (1995) 10 Cal.4th 1114 — A trial court may impose restitution as a condition of probation even where the victim's loss was not caused by the defendant's criminal conduct, if restitution serves one of the purposes of probation set out in Penal Code section 1203.1, subdivision (j).
  • relied: People v. Gemelli (2008) 161 Cal.App.4th 1539 — A victim's statement of the amount of loss is prima facie evidence of loss at a restitution hearing; the burden then shifts to the defendant to show the amount is excessive.
  • relied: People v. Bouzas (1991) 53 Cal.3d 467 — The People's failure to respond to an argument may be treated as an implied concession, which mattered there because the defendant had established error on the point; distinguished here because no error was shown.
  • relied: People v. Welch (1993) 5 Cal.4th 228 — A defendant forfeits a challenge to the reasonableness of a probation condition by failing to raise it at sentencing.
  • relied: People v. Quiroz (2011) 199 Cal.App.4th 1123 — To challenge a probation condition on appeal, a defendant generally must first raise the objection in the trial court.
  • relied: People v. Hamilton (1988) 45 Cal.3d 351 — An appellate court may adopt its prior decision as the decision in a present appeal.
  • relied: Custom Craft Carpets, Inc. v. Miller (1982) 137 Cal.App.3d 120 — An appellate court may incorporate its reasoning from a prior related decision.
  • missed: People v. Anderson (2010) 50 Cal.4th 19 — When restitution is imposed as a condition of probation, the trial court's discretion under section 1203.1 is broader than under section 1202.4 and is not limited by the statutory causation requirement; the controlling Supreme Court treatment of Carbajal in the probation-restitution context.
  • missed: People v. Giordano (2007) 42 Cal.4th 644 — A restitution order is reviewed for abuse of discretion; the court must employ a rational method of calculation and the order must be supported by a factual and rational basis.
  • missed: People v. Lent (1975) 15 Cal.3d 481 — A probation condition is invalid only if it has no relationship to the crime, relates to conduct not itself criminal, and is not reasonably related to future criminality; the governing test for the defendant's claim that the restitution condition served no rehabilitative purpose.

The appellate opinion: sound with gaps — The result is defensible because Carbajal and section 1203.1 give a court imposing probation broad discretion to order restitution for losses connected to the offense, the record supports the direct-cause finding, and the forfeiture and Bouzas points are correctly resolved. But the opinion disposes of the substantive windfall, proximate-cause, and reasonableness arguments entirely by incorporating a separate unpublished opinion, never states the standard of review, and does not cite Anderson, Giordano, or Lent, which are the controlling authorities for probation-condition restitution and its review.

How this analysis was made · dispute it

record incomplete

Opinion

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.

Cites, in this corpus