Filed 6/27/14 P. v. Mercadel CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

FOURTH APPELLATE DISTRICT

DIVISION THREE

THE PEOPLE,

 Plaintiff and Respondent,

v.

JIMMIE LEE MERCADEL,

 Defendant and Appellant.

 G048881

 (Super. Ct. No. 13HF1216)

 O P I N I O N

Appeal from a judgment of the Superior Court of Orange County, David A. 

Hoffer, Judge. Reversed in part.

Marta I. Stanton for Defendant and Appellant.

Kamala D. Harris, Attorney General, Dane R. Gillette, Chief Assistant 

Attorney General, Julie L. Garland, Assistant Attorney General, William M. Wood and 

Brendon W. Marshall, Deputy Attorneys General, for Plaintiff and Respondent.
2

INTRODUCTION

Defendant Jimmie Lee Mercadel appeals from the sentence imposed after 

he was convicted of second-degree burglary for an abortive attempt to shoplift $2,300 in 

merchandise from an Irvine Wal-Mart. He asserts he should have been given either 

straight probation or a prison term lower than the maximum he received. He also asserts 

that a condition of his mandatory supervision after incarceration was unconstitutional.

We affirm the sentence imposed and the trial court’s decision to deny 

probation. Although only 25 years old when he was convicted, Mercadel already had a 

12-year history of committing ever more serious offenses while repeatedly violating the 

terms of his various probations. In fact, he was on probation from a prior theft when he 

committed this crime. The trial court was well within its discretion when it denied 

probation and imposed the maximum sentence, hoping to encourage Mercadel to consider 

the likely outcome of his present course before he did something that could put him away 

for a large portion of his life.

We reverse the condition of mandatory supervision, however. The 

condition is not “narrowly tailored,” that is, it is not reasonably related to probation 

supervision of a person convicted of Mercadel’s crime. It therefore does not pass 

constitutional muster, and it must be more narrowly drawn. 

FACTS

On April 9, 2013, an Irvine police officer received a call informing him that 

a person in a local Wal-Mart was behaving like a shoplifter. The officer drove to the 

Wal-Mart and parked outside, watching the exit doors, while Wal-Mart’s loss prevention 

personnel spoke to a police dispatcher about the person’s movements inside the store, and 

the dispatcher relayed the information to the officer. About 10 minutes after the officer 

arrived, a person matching the description given by the Wal-Mart personnel walked 

outside, just as the watchers inside the store told the dispatcher the person they were 
3

observing was leaving the store. This person, Mercadel, was arrested and taken into 

custody. 

Mercadel was charged with second-degree burglary under Penal Code 

sections 459 and 460, subdivision (b).1 At trial, a Wal-Mart employee in charge of 

monitoring the Irvine store for shoplifters testified as the only witness. He stated he had 

observed Mercadel on store surveillance cameras acting in a manner typical of 

shoplifters: grabbing handfuls of the same high-end product without examining the price 

sticker, throwing them into a cart, and looking around to see whether he was being 

observed. Mercadel was also caught on camera stuffing some of the merchandise into a 

large Target shopping bag. He evidently had a confederate, because he emptied the 

Target bag into the shopping cart and abandoned it after another man came into the store 

and presumably told him the police were setting up outside to apprehend him.2In the 

abandoned cart, Wal-Mart employees found 64 items, the total price of which was 

$2,300. 

Mecadel was convicted of second-degree commercial burglary. The trial

court denied probation and sentenced him to three years, the high term, with the sentence 

split evenly between custody and mandatory supervision under section 1170, subdivision 

(h).

3

 Explaining its decision on both probation and sentencing, the court reasoned that 

Mercadel, although still a young man, had begun his life of crime at age 13 and had, since 

that time, proceeded from minor brushes with the law to more serious offenses. Although 

he had been on probation almost continuously between age 13 and age 19, and then again 

beginning at age 22, the experiences appeared to have made no impression on him, as 

 

1

All further statutory references are to the Penal Code.

2

The Wal-Mart employee testified that one type of shoplifting is the “push-out,” during which the 

thief runs out of a side exit with a full shopping cart to an accomplice waiting in a car. Subsequently they take the 

merchandise to another store for a return, where they get a store credit because they have no receipt. They then can 

use the store credit to pay for whatever they want from the store. 

3

A probation officer recommended three years’ probation. The prosecutor recommended the low 

term, noting previous failures of probation to correct Mercadel’s behavior. 
4

evidenced by numerous probation violations.

4

 Now he had engaged in a pre-planned and 

potentially dangerous felony, with an accomplice, intending to steal over $2,000 in 

merchandise – while on probation for a similar crime. In the judge’s view, the courts had 

been slapping Mercadel’s wrist for too many years and had thereby persuaded him that he 

could continue to commit crimes without serious consequences. The judge expressed a

hope that a combination of real jail time and subsequent close supervision by a probation 

officer could turn Mercadel’s life around. Mercadel did not object either to the sentence

or to any of the mandatory supervision conditions at any time during the hearing.

DISCUSSION

Mercadel has raised two issues on appeal. First, he asserts that the court 

should not have sentenced him to three years – the maximum sentence for second-degree 

burglary – but should have sentenced him either to probation or to a lower term. The 

second issue deals with one of the conditions of his mandatory supervision once he was 

out of jail: “maintain a residence subject to the approval of the probation . . . officer . . .” 

Mercadel now objects that this condition is overbroad and violates his constitutional right 

of free association and his right to travel. 

I. Sentence and Probation

We review the sentence imposed by the trial court, including whether to 

grant probation, for abuse of discretion. (People v. Lent (1975) 15 Cal.3d 481, 486

(Lent).)

 

4

A probation and sentencing report included eight pages of Mercadel’s prior offenses, beginning at 

age 12 when he grabbed a fellow student’s money. Since that time he had, as a juvenile, threatened other students 

with a knife, stolen a truck, and exposed himself to a little girl in a beauty shop. As an adult, he had been convicted 

of falsely identifying himself to a police officer, stealing a laptop and a cell phone from a university professor, 

indecent exposure, and resisting arrest. 
5

A. Three-Year Sentence

Mercadel asserts on appeal that the imposition of the maximum term –

three years – for his second-degree burglary conviction was “irrational and arbitrary.” 

When a court selects the sentence from among the upper, middle, and lower terms 

authorized by statute, California Rules of Court, rule 4.420(b)5allows it to consider 

circumstances in aggravation and mitigation and any other factor reasonably related to 

the sentencing decision. The circumstances of aggravation and mitigation are found in 

rules 4.421 and 4.423 respectively. 

Mercadel did not object to any of the aggravating factors at the sentencing 

hearing, either before or after sentence was pronounced, and “the finding of even one 

factor in aggravation is sufficient to justify the upper term.” (People v. Steele (2000) 83 

Cal.App.4th 212, 226.) He also did not object to the sentence itself. (See People v. Scott

(1994) 9 Cal.4th 331, 353 [waiver doctrine applies to claims involving trial court’s failure 

to properly make discretionary sentencing choices].) Mercadel has thus waived any error 

in the sentence the court handed down. 

Even if Mercadel had preserved this issue for appeal, it would still be 

meritless. The trial court properly considered the circumstances in aggravation, there 

being no mitigating circumstances at all. Among the ones listed in the rule, the court 

cited “[t]he manner in which the crime was carried out indicates planning, sophistication, 

or professionalism,” (rule 4.421(a)(8)); “[t]he crime involved an attempted . . . taking . . . 

of great monetary value,” (rule 4.421(a)(9)); “[t]he defendant’s prior convictions as an 

adult or sustained petitions in juvenile delinquency proceedings are numerous or of 

increasing seriousness,” (rule 4.421(b)(2)); “[t]he defendant was on probation . . . when 

the crime was committed;” (rule 4.421(b)(4)); and “[t]he defendant’s prior performance 

 

5

All further rule references are to the California Rules of Court. 
6

on probation . . . was unsatisfactory.” (Rule 4.421(b)(5).) The court also noted that 

Mercadel’s prior sentence for commercial burglary had been reduced to a misdemeanor, 

apparently causing him to believe that all such crimes were misdemeanors, for which he 

would get nothing worse than informal probation as a sentence.

6

 The court believed a 

high-term sentence was necessary to disabuse Mercadel of these notions. 

The trial court’s weighing of the aggravating factors (several serious ones) 

against the mitigating factors (zero) provided ample justification for a high-term 

sentence. Far from being “arbitrary and irrational,” a stiff sentence may be just the thing 

to deflect Mercadel from what is obviously a career path of increasingly serious crimes. 

Certainly leniency has had no such salutary effect. 

B. Denial of Probation

Many of the same factors the court considers when it imposes a sentence 

also apply to determining whether to grant probation. Rule 4.414 sets out a nonexclusive list of criteria affecting probation. 

The criteria of rule 4.414 militated strongly against probation. The court 

noted the severity of the crime (rule 4.414(a)(1)); the degree of monetary loss (rule 

4.414(a)(5)); Mercadel’s active participation (rule 4.414(a)(6)) and the likelihood of 

repetition (rule 4.414(a)(7)); the sophistication of the crime itself (rule 4.414(a)(8)); 

Mercadel’s prior record (rule 4.414(b)(1); his poor performance on probation in the past 

(rule 4.414(b)(2)7; and the unlikelihood that sentencing him to probation for this crime 

would result in an improved performance. (Rule 4.414(b)(4).) The court would have 

been well within its discretion to deny probation entirely.

 

6

The probation officer reported that Mercadel refused to participate in an interview before the 

preparation of the probation and sentencing report because he thought he had been convicted of a misdemeanor, for 

which no report was necessary. The probation officer’s explanation failed to persuade him of his error. 

7

According to the probation report, Mercadel was on informal probation for three different crimes 

when he committed his second-degree burglary at the Wal-Mart. 
7

Instead, the court afforded Mercadel something resembling probation: 

mandatory supervision. (See § 1170, subd. (h)(5)(B)(i) and (ii) [mandatory supervision is 

undertaken “by the county probation officer in accordance with the terms, conditions, and 

procedures generally applicable to persons placed on probation”]). The court split 

Mercadel’s three-year sentence evenly between jail time and mandatory supervision.8 By 

splitting the sentence, the court hoped, first, to convey to Mercadel that he was in serious 

trouble (“This isn’t misdemeanor land anymore.”) and, second, to afford him the benefits 

of oversight by a probation officer after his release, in the hope Mercadel would learn “he 

can get along without . . . committing crimes.” Whether or not Mercadel takes advantage 

of the opportunity, the court acted well within its discretion in affording it.

II. Residence Restriction

A probation condition may be overbroad if it unduly restricts the exercise 

of a constitutional right. (In re Byron B. (2004) 119 Cal.App.4th 1013, 1016.) Probation 

conditions are valid even though they restrict the exercise of constitutional rights if they 

are narrowly drawn to serve the important interests of public safety and rehabilitation and 

are specifically tailored. (In re Babak S. (1993) 18 Cal.App.4th 1077, 1084; see People 

v. O’Neil (2008) 165 Cal.App.4th 1351, 1356, quoting People v. Bauer (1989) 211 

Cal.App.3d 937, 942 [conditions impinging on constitutional rights must be “‘carefully 

tailored’”].)

Whether a condition restricting a defendant’s residence to one approved by 

a probation officer is unconstitutional is presently before our Supreme Court in People v. 

Schaeffer (2012) 208 Cal.App.4th 1, S205260, rev. granted Oct. 31, 2012 (Schaeffer).

9

 

 

8

The court also gave Mercadel credit for 260 days served (including 130 days of conduct credit) 

and terminated the probation sentences in the other criminal cases. 

9

Actually the defendant in Schaeffer identified two conditions as unconstitutional: first, the 

defendant must reside at a residence approved by the probation officer, and, second, the defendant cannot move 

without the probation officer’s permission. The defendant asserted that both conditions infringed on her right to 

travel and her freedom of association. (Schaeffer, supra, 208 Cal.App.4th at p. 4.) Mercadel’s mandatory 

supervision is not subject to the second Schaeffer condition.
8

No published opinion has found the broad residential restrictions imposed here to be 

constitutional; indeed, People v. Bauer (1989) 211 Cal.App.3d 937 found a nearly 

identical provision to be unconstitutionally overbroad. 

Mercadel claims the mandatory supervision condition requiring him to 

“maintain a residence subject to the approval of the probation . . . officer or mandatory 

supervision officer” is unconstitutionally overbroad because it infringes on his 

constitutional rights to travel and to freedom of association. We focus only on the 

constitutionality of the condition, not whether it is reasonable as applied to Mercadel. 

(See Lent, supra, 15 Cal.3d at p. 486 [test for reasonableness of probation conditions].) 

By failing to object below, Mercadel has forfeited all claims except a challenge “based on 

the ground the condition is vague or overbroad and thus facially unconstitutional.” (In re 

Sheena K. (2007) 40 Cal.4th 875, 878.)

But even a facial challenge to constitutionality requires more than a onesize-fits-all approach. Our inquiry does not take into account the individual facts 

pertaining to this particular probationer – as would an “as applied” challenge – but it 

must take into account the nature of the case and the goals and needs of probation in 

general. For example, what is constitutional in a case involving drug usage is not 

necessarily the same as what is constitutional in an assault case. The difficulties of the 

probation department and the probationer will be quite different in cases where the 

probationer may be fighting addiction than they will be in other cases. This broad 

consideration of the nature of the case must inform all decisions about whether the 

condition has been “narrowly tailored,” even where, as here, we do not reach the personal 

circumstances of the probationer.

Here, the offenses are theft-related. The appropriate inquiry therefore, is 

whether the probation condition use is reasonably related to probation supervision of a 

thief. In that regard, we find People v. Bauer, supra, instructive. In Bauer, the defendant 
9

was convicted of false imprisonment and assault. As a probation condition, the trial court 

required the defendant to “obtain his probation officer’s approval of his residence . . . .” 

(Bauer, supra, 211 Cal.App.3d at p. 940.) The Bauer court concluded the restriction was 

unconstitutionally overbroad, explaining “[t]he condition is all the more disturbing 

because it impinges on constitutional entitlements – the right to travel and freedom of 

association. Rather than being narrowly tailored to interfere as little as possible with 

these important rights, the restriction is extremely broad.” (Id. at p. 944.)

Bauer has been accepted since it was decided nearly 25 years ago, and has 

been applied in analyzing other probation conditions. For example, in People v. O’Neil

(2008) 165 Cal.App.4th 1351 (a case involving drug sales but not usage), the appellate 

court found a probation condition prohibiting the probationer from associating with 

persons not approved by his probation to be unconstitutionally overbroad. (Id. at p. 

1357-1358.) Relying on Bauer, the court explained the probation condition placed no 

limits or guidelines on the probation officer’s discretion. Thus, “[w]ithout a meaningful 

standard, the order is too broad and it not saved by permitting the probation department to 

provide the necessary specificity.” (Ibid.)

The probation condition here suffers from the same infirmity as the one in 

Bauer. It puts no limits on the probation officer’s discretion. Probationer’s residence 

could be disapproved for any reason, including inconvenience. Nothing about the nature 

of the charges suggests a need for such unfettered oversight, so we cannot approve this 

broad restriction. It must be re-drawn. 
10

DISPOSITION

The sentence and the mandatory supervision order are affirmed except for 

the residence restriction. The matter is remanded to the trial court for imposition of a 

more narrowly drawn substitute condition.

BEDSWORTH, J.

WE CONCUR:

RYLAARSDAM, ACTING P. J.

ARONSON, J.