Filed 4/7/14 P. v. Jimenez CA4/1
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                    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.)
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                   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

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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.

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                                         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].)




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                              DISPOSITION

     The order is affirmed.




                                            O'ROURKE, J.

WE CONCUR:


McCONNELL, P. J.


McINTYRE, J.




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