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Filed 4/8/14 P. v. Gonzales CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION ONE

THE PEOPLE,

Plaintiff and Respondent,

v.

ANTHONY JAMES GONZALES et al.,

Defendants and Respondents;

DENNIS CARLTON,

 Appellant.

 A136902

 (Contra Costa County

 Super. Ct. Nos. 051106574 &

 11555184)

In this appeal, Dennis Carlton, a crime victim, appeals from the trial court’s

restitution order issued against defendants Anthony James Gonzales, Marcelina Louise 

Gallardo, and Rahim Kenjoni. He claims the court abused its discretion in allowing the 

defendants’ expert witness to testify out of order at the restitution hearing, and asserts the 

court improperly struck his own direct testimony when he refused to commit to a return 

date to conduct his cross-examination. We affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

On November 6, 2010, Carlton met with Kenjoni and Gallardo, whom he believed 

were husband and wife, at a Starbucks coffee shop. Carlton brought a briefcase with him 

containing various pieces of jewelry and other items. He had spoken with Kenjoni on 

several prior occasions, understanding him to be a serious buyer of jewelry that Carlton 
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had advertised on Craigslist as being for sale. Carlton planned to show the couple a fourcarat ruby ring, in addition to a few other pieces of jewelry. 

Carlton showed Kenjoni and Gallardo several pieces of jewelry as they sat at a 

table. At some point, Gonzales ran toward Carlton, wrestled his briefcase from him, and

ran away. Carlton ran after him and yelled at witnesses to contact the police. Gonzales 

entered the passenger side of a vehicle, which then drove from the area. A witness 

recorded the vehicle’s license plate number. Subsequently, all three defendants were 

charged in connection with the offense. The stolen jewelry was not recovered. 

On November 29, 2010, defendant submitted a letter to the district attorney’s 

office claiming a loss “of business property and future earnings” in the amount of 

$160,796. 

On September 26, 2011, Gonzales plead no contest to felony second degree 

robbery (Pen. Code, §§ 211, 212.5, subd. (c)).1 That same day, the trial court suspended 

imposition of sentence, placed him on formal probation, and ordered him to serve 270 

days in jail. The court also fined him $200 (§ 1202.4, subd. (b)(1)) and ordered him to 

make victim restitution following a restitution hearing. 

On October 26, 2011, Gallardo and Kenjoni pled no contest to being Gonzales’s 

accomplices in grand theft. (§ 487, subd. (c).) That same day, the trial court suspended 

imposition of sentence for Gallardo, placed her on three years probation, and ordered her 

to serve 120 days in jail. The court also fined her $200 (§ 1202.4, subd. (b)(1)), and 

ordered her to make restitution to Carlton in the amount of $160,796, with the right to 

contest that amount at a hearing. The court suspended imposition of sentence for Kenjoni 

and ordered that he serve a split sentence on probation of 14 months in county jail and 22 

 

1

 All further undesignated statutory references are to the Penal Code unless 

otherwise indicated.
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months in supervision jail. The court also fined him $200 (§ 1202.4, subd. (b)(1)). 

Further victim restitution costs were to be determined following the restitution hearing. 

On April 9, 2012, a restitution supplemental report was filed indicating Carlton 

was now requesting restitution in the total amount of $1,285,631.42, including over $1 

million dollars “for possible future losses, projected 26 years to age 86 (based on total 

income of $42,412.00 for tax year 2009).” 

On April 13, 2012, Carlton testified on direct examination at the restitution 

hearing. He stated the briefcase that Gonzales stole had contained approximately 37 

items of precious diamonds, emeralds, rubies, sapphires, gold, silver, coins, and other 

items. He indicated he had generated a document reflecting his fair market valuation of 

the jewelry, which he had already submitted to the police and the district attorney’s 

office. His appraisal report was based on his status as a gemologist, and his experience of 

each item that was stolen. At the conclusion of his direct testimony, the trial court 

continued the hearing to May 18, 2012 for cross-examination. 

The continued restitution hearing was set for 1:30 p.m. on May 18, 2012. 

However, the hearing did not commence until 3:30 p.m. because the trial court’s calendar 

had been “careening out of control” that day. The court decided to call the defendants’

expert witness out of order, ahead of Carlton’s cross-examination, as the witness had 

traveled some distance to arrive at the court’s location. The district attorney objected, 

noting Carlton had been to court numerous times and was eager to finish his testimony. 

Carlton was asked to leave the hearing after defense counsel requested he be excluded 

while the expert testified. 

Defendants’ expert witness, Sherry Yarnal, testified that she had appraised 

thousands of gems. The appraisal of a single gem takes her between one and a half and 

two hours, and for each gem appraised she generates a 12-page report. Creating such an 

appraisal report to determine a gem’s value requires “a comparative analysis of [the]

stone,” which involves taking measurements of the gem, and judging its quality in terms 
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of color, clarity, cut, and carat weight. She also testified that she keeps extensive written 

and computerized records of every gem she buys or sells in the course of her business, 

and she keeps records of all transactions for at least seven years. There is always a 

written record for every gem she buys or sells. All transactions involve paperwork, and 

she would never buy or sell a gem without such a record attesting to its appraised value. 

In her opinion, a professional jeweler keeping such information entirely in his memory is 

unheard of. Written records are necessary for tax purposes, among other reasons. 

Yarnal examined the documentation that Carlton had provided to support his 

estimation of the value of the jewelry he lost during the robbery. In comparing 

photographs of his jewelry to the descriptions of the jewelry he had provided, Yarnal 

opined that the descriptions were too vague to support the listed valuations. Moreover, to 

the extent that she could form an opinion of the value of the jewelry from the 

photographs and descriptions, his valuations appeared to be severely inflated. She 

estimated that some of his valuations could be three times more than what she would 

expect to be the market value of the piece of jewelry.2 

At the conclusion of Yarnal’s testimony, the trial court attempted to find a court 

date on which Carlton would be available to return for cross-examination. He refused to 

agree to a future hearing date, initially claiming that his availability would depend on 

what his doctors told him. The court then asked: “Mr. Carlton, is there any date I can 

make available for you for the continuation of the hearing?” He responded: “I am not 

going to have the time. Nineteen months is too much time already. It should have gone 

to trial. It’s stolen property. You should have it seized. All the relevant people are in 

court. I object. It’s obvious. It’s a no-brainer.” He then left the courtroom. The court 

 

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 Approximately six weeks after Yarnal testified, Carlton sent her a letter in which 

he threatened to file suit against her if she did not pay him $1,314,884.14 in “damages.” 

Additionally, when he addressed the court at the final restitution hearing on July 13, 

2012, he requested that the court not only strike Yarnal’s testimony as irrelevant, but also 

demanded that the court order her arrest and prosecution, as well as that of her husband. 
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found he had voluntarily absented himself from the proceedings and granted the 

defendants’ request to strike his direct testimony.

On August 10, 2012, the trial court ordered Gonzales, Gallardo, and Kenjoni to 

pay $1,063 in restitution to Carlton. Restitution was granted for the loss of silver coins 

and various other items, as well as for $767 in medical expenses. All other claims for 

restitution were denied. This appeal followed.

DISCUSSION

I. Standing

Gallardo argues that this appeal is unauthorized, claiming Carlton’s counsel had 

no authority to file a notice of appeal on the public prosecutor’s behalf, and that Carlton 

has no authority to exercise “the People’s sole right to appeal.” We disagree.3

The right to appeal is normally statutory. An order is not appealable unless 

expressly made so by statute. (People v. Valenti (1957) 49 Cal.2d 199, 204, disapproved 

on other grounds in People v. Sidener (1962) 58 Cal.2d 645, 647; People v. Chi Ko Wong

(1976) 18 Cal.3d 698, 709, disapproved on other grounds in People v. Green (1980) 27 

Cal.3d 1, 33-34.) “Article I, section 28 of the California Constitution originally was 

enacted by initiative in 1982 as ‘The Victims’ Bill of Rights’ [citation] and amended by 

initiative in 2008 as the ‘Victims’ Bill of Rights Act of 2008: Marsy’s Law’ [citation].” 

(In re David (2012) 202 Cal.App.4th 675, 681, fn. 5.) Subdivision (b) of this section

“provides certain ‘rights’ to victims of crime, including, inter alia, the rights of privacy, 

notice of proceedings, and restitution.” (In re David, supra, at p. 681, italics added.) 

Additionally, subdivision (c)(1) of this section states: “A victim, the retained attorney of 

a victim, a lawful representative of the victim, or the prosecuting attorney upon request of 

the victim, may enforce the rights enumerated in subdivision (b) in any trial or appellate 

 

3

 We previously denied Gallardo’s motion to dismiss this appeal on these same 

grounds. 
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court with jurisdiction over the case as a matter of right.” (Cal. Const., art. I, § 28, subd. 

(c)(1), italics added.)

In spite of the above language, Gallardo contends these constitutional provisions 

do not authorize a private party’s appeal of restitution orders to confer appellate 

jurisdiction. She claims the term “enforce” merely allows a victim, his or her attorney, or 

a prosecutor subsequently to enforce and collect the ordered amount in any court with 

jurisdiction, as if it were a civil judgment. (§1202.4, subds. (a)(3)(B), (h), & (i).) She

further argues Marsy’s Law did not confer authority to a private party to exercise the 

People’s sole right to appeal and obtain jurisdiction. 

We conclude a victim has the right to a restitution hearing under Marsy’s Law, 

which right includes the option to appeal an order issued at that hearing. Under article I, 

section 28, subdivision (b)(13) of the California Constitution, restitution is one of the 

rights victims may pursue, and a restitution hearing is normally the setting in which 

victims obtain their entitlement to restitution from criminal defendants. To interpret 

Article I, section 28, subdivision (c)(1) in a manner that would deny victims the right to 

appeal adverse rulings would essentially render their rights illusory. Accordingly, we 

conclude Carlton had a right to seek restitution at the restitution hearing and that he can 

now challenge the trial court’s ruling in this appeal. 

II. Restitution and the Standard of Review

As noted above, the California Constitution gives crime victims a right to 

restitution and, consequently, requires a trial court to order a convicted wrongdoer to pay 

restitution in every case in which a crime victim suffers a loss. (Cal. Const., art. I, § 28, 

subd. (b)(13)(B).) To implement this requirement, section 1202.4, subdivision (f)

generally provides that “in every case in which a victim has suffered economic loss as a 

result of the defendant’s conduct, the court shall require that the defendant make 

restitution to the victim or victims in an amount established by court order, based on the 

amount of loss claimed by the victim or victims or any other showing to the court.” The 
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restitution amount “shall be of a dollar amount that is sufficient to fully reimburse the 

victim or victims for every determined economic loss incurred as the result of the 

defendant's criminal conduct . . . .” (§ 1202.4, subd. (f)(3).) “The defendant has the right 

to a hearing before a judge to dispute the determination of the amount of restitution.” 

(§ 1202.4, subd. (f)(1).)

“At a victim restitution hearing, a prima facie case for restitution is made by the 

People based in part on a victim’s testimony on, or other claim or statement of, the 

amount of his or her economic loss. [Citations.] ‘Once the victim has [i.e., the People 

have] made a prima facie showing of his or her loss, the burden shifts to the defendant to 

demonstrate that the amount of the loss is other than that claimed by the victim.

[Citations.]’ [Citation.]” (People v. Millard (2009) 175 Cal.App.4th 7, 26 (Millard).) A 

“defendant bears the burden of proving that the amount of restitution claimed by the 

victim exceeds repair or replacement cost of lost or damaged property,” but the defendant 

is not required to meet that burden until the replacement or repair cost of the victim’s 

property is established. (People v. Vournazos (1988) 198 Cal.App.3d 948, 958-959.)

“ ‘The standard of review of a restitution order is abuse of discretion. “A victim’s 

restitution right is to be broadly and liberally construed.” [Citation.] “ ‘When there is a 

factual and rational basis for the amount of restitution ordered by the trial court, no abuse 

of discretion will be found by the reviewing court.’ ” [Citations.]’ [Citation.] However, 

a restitution order ‘resting upon a “ ‘demonstrable error of law’ ” constitutes an abuse of 

the court’s discretion. [Citation.]’ [Citation.] ‘In reviewing the sufficiency of the 

evidence [to support a factual finding], the “ ‘power of the appellate court begins and 

ends with a determination as to whether there is any substantial evidence, contradicted or 

uncontradicted,’ to support the trial court’s findings.” [Citations.] Further, the standard 

of proof at a restitution hearing is by a preponderance of the evidence, not proof beyond a 

reasonable doubt. [Citation.] “If the circumstances reasonably justify the [trial court’s] 

findings,” the judgment may not be overturned when the circumstances might also 
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reasonably support a contrary finding. [Citation.] We do not reweigh or reinterpret the 

evidence; rather, we determine whether there is sufficient evidence to support the 

inference drawn by the trier of fact. [Citation.]’ [Citation.]” (Millard, supra,

175 Cal.App.4th 7, 26.)

III. Carlton’s Claims of Error Fail

A. The Taking of Yarnal’s Testimony

Carlton first asserts the trial court erred in permitting defendants to call their 

expert witness out of order before his cross-examination. The primary authority he cites 

in support of this claim is Evidence Code section 772. We cannot agree with his 

assertion that this statute imposes any mandatory requirement that all phases of a 

particular witness’s testimony be concluded without interruption by the taking of other 

testimony. Evidence Code section 772 provides, in pertinent part, only that “(a) The 

examination of a witness shall proceed in the following phases: direct examination, crossexamination, redirect examination, recross-examination . . . . [¶] (b) Unless for good 

cause the court otherwise directs, each phase of the examination of a witness must be 

concluded before the succeeding phase begins.”

Contrary to the position taken by defendant, Evidence Code section 772 does not 

require that all phases of the examination of a witness be concluded without interruption. 

The statute provides only that each phase of a witness’s testimony shall be completed 

before the next phase commences: i.e., direct examination must be completed before 

cross-examination commences. Obviously, there was no deviation from this procedure 

here, since defendant’s direct examination was completed before Yarnal testified.

In any event, the court did not act improperly in calling Yarnal out of turn. The 

decision was based on unforeseen congestion of the court’s calendar, combined with a 

reasonable exercise of courtesy towards an expert witness who had traveled some 

distance to the court and who, unlike Carlton, had no personal stake in the matter. The 

court did not seek to deliberately impede Carlton’s cross-examination. Moreover, instead 
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of working with the court to establish a new date for his testimony, Carlton flatly advised 

the court he would not be available. While his evident frustration is perhaps 

understandable, unforeseen delays are simply an inherent part of court proceedings and 

are not to be taken personally.4 

B. Even If the Trial Court Erred, Carlton Does Not Show Prejudice

Carlton next asserts the trial court erred in striking his testimony as a sanction for 

not agreeing to commit to a return date for his cross-examination. Even if we accept his 

assertion, we discern no prejudice. 

The trial court found there was “an absence of any credible factual basis to support 

Mr. Carlton’s claim of $160,000.00 as to the value of the stolen jewelry.” Additionally, 

the court indicated that, even if it had considered Carlton’s stricken testimony, the court 

would have found it was not sufficient to show he had suffered a loss of property in the 

amount claimed. For example, the court noted Carlton did not produce any computerized 

inventory, bills of sale, purchasing receipts, or insurance appraisals to verify his claim. 

Thus, there was essentially no documentation to corroborate Carlton’s valuations. Under 

the circumstances, we do not agree with Carlton’s contention that this was a “close case.” 

We also disagree with his contention that without cross-examination the trial court could 

not rationally have determined his evidence to be insufficient to support his claim for the 

stolen jewelry. Defendants were not required to cross-examine him at all and, under the 

circumstances, it is difficult to see how such examination would have aided him in 

substantiating his claim.5

 

4

 While Carlton contends that he provided an intelligible and medically necessary 

reason to refuse to return at a later date, we note he did attend the final restitution 

hearing on July 13, 2012. 

5

 On appeal, Carlton does not contend that admitting the direct examination 

testimony would have led the court to find him entitled to some or all of the million 

dollars in future lost income he sought. 
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The trial court’s conclusion that Carlton failed to sufficiently prove his losses is 

supported by substantial evidence, particularly the testimony of Yarnal as to industry 

standards for the proper documentation of precious stones and jewelry. Relying on 

Yarnal’s testimony, the court found the values asserted by Carlton appeared to be 

inflated, and the descriptions he provided “lacked the necessary information to 

substantiate the proposed valuation of $160,000.00.” For example, in estimating from 

memory the value of the pieces of jewelry stolen from him, he applied a formula of 

$3,200 per carat to an aggregate weight of 50 carats to reach a value of $160,000 for the 

stolen gems. The accuracy of this method of appraising the market value of gems was 

placed into doubt by Yarnal’s testimony that, while carat weight is relevant, equally 

important variables are a gem’s color, clarity, and cut. Moreover, the aggregate carat 

weight for a group of gems is not an accurate gauge of value, because a single larger gem

is worth much more than several smaller gems that total to the same weight. 

Given the evidence undercutting the credibility of his valuation, it is not 

reasonably probable Carlton would have obtained a more favorable outcome with regard 

to the property loss claim had the court considered his direct testimony. In determining 

restitution, a court must “employ a method that is rationally designed to determine the . . . 

victim’s economic loss.” (People v. Giordano (2007) 42 Cal.4th 644, 663-664.) Our 

review of the record substantiates the lower court’s conclusion that Carlton had failed to 

provide the court with a rationally designed method for determining the value of the 

stolen jewelry. Based on the expert testimony from Yarnal and Carlton’s lack of 

reasonable documentation, the substantial amounts he sought were not appropriate in the 

restitution hearing context. “The purpose of an order for victim restitution is threefold, to 

rehabilitate the defendant, deter future delinquent behavior, and make the victim whole 

by compensating him for his economic losses. [Citation.] . . . [¶] The order is not 

however, intended to provide the victim with a windfall. [Citations.]” (In re Anthony M. 

(2007) 156 Cal.App.4th 1010, 1017.) 
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C. The Award Was Not Unconscionably Low

Finally, Carlton claims that the restitution order must be reversed because it was 

“unconscionably low.” In so arguing, he neither discusses the evidence before the court 

nor cites any legal authority pertinent to the claim of error. 

An appellate court is not required to conduct an independent search of the record 

to determine the sufficiency of the evidence. Because Carlton has failed to discuss the 

evidence and explain why it does not support the court’s restitution award, his claim of 

error is forfeited. (Foreman & Clark Corp. v. Fallon (1971) 3 Cal.3d 875, 881.) 

Regardless, we have already concluded the trial court properly rejected his inflated and 

unsupported estimates regarding his claimed lost property and income. The court did 

award restitution for his medical expenses and various other items that it found were 

either substantiated or uncontested. 

DISPOSITION

The order is affirmed.

_________________________

Dondero, Acting P. J.

We concur:

_________________________

Banke, J.

_________________________

Becton, J.

 



Judge of the Contra Costa County Superior Court, assigned by the Chief Justice 

pursuant to article VI, section 6 of the California Constitution.