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Filed 3/28/23 P. v. Fimbres CA1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for 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. 

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

THE PEOPLE,

Plaintiff and Respondent,

v.

ROBERT JAMES FIMBRES,

Defendant and Appellant.

 A165100

 

 (Napa County 

 Super. Ct. No. 19CR002444)

Robert James Fimbres pled no contest to recklessly setting 

fire to his mother’s home (Pen. Code, § 452, subd. (b))1 and, 

pursuant to the parties’ plea agreement, was placed on formal 

probation for a term of three years. Fimbres appeals after the 

trial court denied a motion to reduce his probation term to two 

years, pursuant to subsequent ameliorative amendments to 

section 1203.1, subd. (a). We conclude the trial court did not err 

and affirm.

BACKGROUND

A.

According to the probation report and transcript from 

Fimbres’s preliminary hearing,2 Fimbres used gasoline to set fire 

1 Undesignated statutory references are to the Penal Code.

2 The parties stipulated that the preliminary hearing 

transcript and the police report served as the factual basis for 
2

to a flag and other items that he found in his mother’s garage. 

Although Fimbres started the fire in her driveway, his mother’s 

house caught on fire. Fimbres’s mother was not present at the 

time (in August 2019) because she was moving, and the house 

was vacant. Fimbres admitted to police that he started the fire. 

He set his mother’s flag on fire after it fell on the ground, and the 

fire spread to his mother’s house. 

Fimbres was charged with arson of a structure (§ 451, subd. 

(c); count one) and recklessly causing fire to an inhabited 

structure (§ 452, subd. (b); count two). He pled no contest to 

count two, in exchange for, among other things, dismissal of 

count one and a three-year term of probation. The sentencing 

court suspended imposition of sentence and, pursuant to the 

negotiated plea agreement, placed Fimbres on formal probation 

for three years. 

B.

About two months after Fimbres’s sentencing hearing, 

Assembly Bill No. 1950 (2019-2020 Reg. Sess.) amended section 

1203.1, effective January 1, 2021, to generally limit the term of 

felony probation to two years. (Stats. 2020, ch. 328, § 2.) The 

Napa County Probation Department then filed a petition for 

modification, recommending that the trial court reduce the term

of Fimbres’s probation to two years under the new law. The trial 

court held a hearing and denied the petition. 

DISCUSSION

A.

Fimbres argues that his term of probation must be reduced 

to two years, pursuant to Assembly Bill No. 1950, and that the 

trial court erred in ruling otherwise. After independently 

Fimbres’s plea. However, in describing Fimbres’s offense, both 

parties cite the probation report. 
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reviewing this question of statutory interpretation (People v. 

Saxton (2021) 68 Cal.App.5th 428, 431), we disagree.

1.

At the time of Fimbres’s sentencing hearing (in November 

2020), former section 1203.1, subdivision (a) allowed courts to 

impose felony probation “for a period of time not exceeding the 

maximum possible term of the sentence,” except “where the 

maximum possible term of the sentence [was] five years or less,” 

in which case probation could “continue for not over five years.” 

(Former § 1203.1, subd. (a); People v. Forester (2022) 78 

Cal.App.5th 447, 451-452 (Forester).) As amended by Assembly 

Bill No. 1950, section 1203.1, subdivision (a), now generally 

limits the maximum term of felony probation to two years. (§ 

1203.1, subds. (a), (l); Stats. 2020, ch. 328, § 2.) 

There are several statutory exceptions to the two-year 

limit, including for any offense that “includes specific probation 

lengths within its provisions.” (§ 1203.1, subd. (l)(1).)3 If the 

exception applies, probation “may continue for a period of time 

not exceeding the maximum possible term of the sentence.” 

(§ 1203.1, subd. (l)(1).)

2.

Although the retroactivity of Assembly Bill No. 1950 is 

currently under review by our Supreme Court in People v. 

Prudholme (Aug. 26, 2021, E076007) [nonpub. opn.], review 

granted November 10, 2021, S271057, the People concede that 

Assembly Bill No. 1950 applies retroactively to cases like 

3 This exception was originally found in former section 

1203.1, subdivision (m) (Stats. 2020, ch. 328, § 2), which has since 

been redesignated as subdivision (l). (People v. Kite (2023) 87 

Cal.App.5th 986, 991, fn. 2; Assem. Bill No. 177 (2021-2022 Reg. 

Sess.), Stats. 2021, ch. 257, §§ 21, 22.) We hereafter cite only the 

current version of the statute.
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Fimbres’s that were not final when the amended law became 

effective. We assume the parties are correct. (See People v. 

McKenzie (2020) 9 Cal.5th 40, 46-47 [defendant’s case is not yet 

final for this purpose if they are placed on probation with 

imposition of sentence suspended]; People v. Sims (2021) 59 

Cal.App.5th 943, 947, 964.) 

3.

We also agree with the People that Fimbres is subject to an 

exception from the two-year limit because he was convicted of a 

domestic violence offense subject to a specified term of probation 

(§§ 1203.1, subd. (l)(1), 1203.097, subd. (a)(1)). 

Penal Code section 1203.097, subdivision (a)(1), requires a 

minimum three-year period of probation for “a crime in which the 

victim is a person defined in Section 6211 of the Family Code.” 

The Family Code defines domestic violence as “abuse” 

perpetrated against persons in certain defined relationships with 

a defendant, including parent. (Fam. Code, § 6211, subd. (f); 

Prob. Code, § 13, subd. (a); People v. Cates (2009) 170 Cal.App.4th 

545, 547-548.) Under the Family Code, the meaning of abuse “is 

not limited to the actual infliction of physical injury or assault” 

(Fam. Code, § 6203, subd. (b)) but is statutorily defined to include 

destruction of personal property. (Fam. Code, §§ 6203, subd. 

(a)(4) [abuse means “engag[ing] in any behavior that . . . could be 

enjoined pursuant to [Family Code] Section 6320”], 6320, subd. 

(a) [court may enjoin “a party from . . . destroying personal 

property . . . of the other party”]; People v. Brown (2001) 96 

Cal.App.4th Supp. 1, 30-31, 39-40 [domestic violence probation 

conditions under Pen. Code, § 1203.097 properly imposed against 

defendant convicted of vandalism for smashing his wife’s car 

windows after argument]; cf. Cates, supra, at pp. 550-551 [citing 

Brown with approval].) 

It is well settled that application of section 1203.097 is not 

limited to particular domestic violence offenses. Rather, the 
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statute “applies to any person placed on probation for a crime if 

the underlying facts of the case involve domestic violence, even if 

the statute defining the crime does not specifically refer to 

domestic violence.” (People v. Cates, supra, 170 Cal.App.4th at p. 

548, italics added; accord, Forester, supra, 78 Cal.App.5th at p. 

453.)

We recognize that the facts of this case differ from what we 

would colloquially consider “domestic violence” and even from the 

facts presented in People v. Brown, supra, 96 Cal.App.4th Supp. 

1. However, the Family Code defines domestic violence more 

broadly than the Penal Code. (Compare Fam. Code, §§ 6203, 

subd. (a)(4), 6320, subd. (a), 6211 with Pen. Code, § 13700, subds. 

(a), (b); People v. Kovacich (2011) 201 Cal.App.4th 863, 893–895.) 

And, by referring only to Family Code section 6211 in Penal Code 

section 1203.097, subdivision (a), there is no indication that the 

Legislature intended to incorporate the Penal Code’s more 

restrictive definition.

Fimbres does not dispute that his mother is of the class of 

persons specified as a domestic violence victim in Family Code 

section 6211 or that the underlying facts of his case involve 

“abuse” as defined by the relevant sections of the Family Code.

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Instead, Fimbres contends that he should not be subject to the 

three-year minimum probation term established by Penal Code 

section 1203.097 because the sentencing court failed to impose 

the statute’s additional mandated terms—including completion of 

a batterer’s program and a protective order. (Pen. Code, 

4 Nor does Fimbres argue that—in determining the victim 

was his mother or that Fimbres destroyed her personal 

property— he was entitled to a jury trial or that the trial court 

engaged in impermissible factfinding. By failing to include 

reasoned analysis on any of these points in his opening brief, 

Fimbres has forfeited the arguments. (See People v. Stanley

(1995) 10 Cal.4th 764, 793; Tiernan v. Trustees of Cal. State 

University & Colleges (1982) 33 Cal.3d 211, 216, fn. 4.)
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§ 1203.097, subds. (a)(2), (6).) We are unpersuaded. First, 

Fimbres cannot complain of any such error because the error was 

in his favor. (See People v. Lee (1999) 20 Cal.4th 47, 57.) Second, 

we fail to see how any error in omitting other mandatory terms 

impacts our statutory interpretation. 

The two-year limit found in section 1203.1, subdivision (a), 

does not apply to Fimbres simply because the statute defining the 

elements of his conviction—section 452, subdivision (b)—itself 

does not establish a minimum length of probation. Because the 

Penal Code routinely separates punishment provisions from the 

sections defining crimes, the position—that the only offenses 

exempt from the two-year probation limit, under section 1203.1, 

subdivision (l)(1), are those that contain a specific probation 

length in the same statutory section establishing the underlying 

offense—has been rejected in the published opinions considering 

the question. (People v. Rodriguez (2022) 79 Cal.App.5th 637, 

641, 644-645 [specific term exception applies to defendant’s 

assault (§ 245, subd. (a)(4)) offense because § 1203.097, subd. 

(a)(1), specifies three-year probation minimum for crimes 

involving domestic violence]; Forester, supra, 78 Cal.App.5th at 

pp. 456-458 [applying same reasoning to stalking (§ 646.9, subd. 

(b)) offense].)

The trial court did not err in concluding the two-year 

probation limit (§ 1203.1, subd. (a)) does not apply.

DISPOSITION

The order denying modification of Fimbres’s probation term 

is affirmed.
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______________________

BURNS, J. 

We concur:

____________________________

JACKSON, P.J. 

____________________________

LANGHORNE, J.*

A165100

* Judge of the Napa County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.