1

Filed 5/25/18

CERTIFIED FOR PARTIAL PUBLICATION*

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

THE PEOPLE,

Plaintiff and Respondent,

v.

JUSTIN BROOKS,

Defendant and Appellant.

 A147410

 (Contra Costa County

 Super. Ct. No. 51513811)

Defendant Justin Brooks appeals from his conviction for first degree burglary. He 

contends that the trial court erred in admitting evidence of uncharged prior burglaries to 

establish intent, common plan and identity; that the prosecutor engaged in prejudicial

misconduct in closing argument; and that the cumulative prejudice of these errors 

warrants reversal. Brooks also challenges the trial court’s order of restitution, to the 

extent it included the costs of certain home security improvements made by the victim, 

pursuant to Penal Code section 1202.4.

1

 Specifically, he contends that the statute does 

not permit restitution for security improvements against a defendant not convicted of a 

“violent felony,” as defined in section 667.5, subdivision (c). 

We hold that the trial court’s erroneous admission of Brooks’s uncharged prior 

acts and the prosecutor’s misconduct caused Brooks to suffer little, if any, prejudice 

because other evidence independently and definitively linked him to the crime. As to the 

restitution issue, we reject Brooks’s unduly narrow reading of the restitution statute and 

 

*

Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is 

certified for publication with the exception of part I.

1 Unless otherwise specified, future statutory references are to the Penal Code.
2

hold that the award of restitution was not precluded as a matter of law. Accordingly, we

affirm.

STATEMENT OF THE CASE

On August 21, 2015, the Contra Costa County District Attorney filed an 

information charging Brooks with first degree residential burglary in violation of sections 

459 and 460. 

Jury trial commenced on December 10, 2015. On December 11, the prosecution 

filed a motion in limine to admit evidence of Brooks’s numerous prior uncharged 

burglaries. (Evid. Code, § 1101, subd. (b).) After a hearing and over defendant’s 

objections, the trial court admitted evidence of two prior acts from April 2 and April 6, 

2012. On December 16, 2015, the jury found Brooks guilty of first degree residential 

burglary. 

Following the sentencing hearing on January 15, 2016, the trial court sentenced 

Brooks to prison for the two-year low term, imposed mandatory fines and fees, and 

ordered him to pay $2,351.34 in direct victim restitution that included reimbursement for 

a burglar alarm and new door locks. 

Brooks timely appealed. 

STATEMENT OF FACTS

In May 2015, Mona Greathouse lived in a one-story, two bedroom bungalow on

Maple Avenue in Concord. Upon returning home from work the evening of May 25, she

noticed that the dead bolt on the front door was unlocked (though she had locked it when 

she departed that morning). Upon entering the home, she discovered that her home had 

been ransacked: cabinets and drawers throughout the home were open and items had 

been rifled through and strewn about. A window in the smaller of the two bedrooms 

(which she used as a home office) had been broken, and there was glass on the ground 

both outside and inside the window. (This window had been damaged about three 

months prior, and Greathouse had placed duct tape over a nine-inch crack prior to the 

break-in.) 
3

At Greathouse’s request, a neighbor called the police. When Concord Police 

Officer Danielle Cruz arrived, they walked together through the home and into the 

backyard. Greathouse discovered that her iPad had been taken from the living room and 

some checks may have been removed from her checkbook in her office. 

In the backyard, the screen door latch had been “broken off completely,” and 

several window screens were removed or damaged. The glass (which was cracked prior 

to the burglary) had been removed from a window in the office, and there was glass on 

the ground. With the glass removed, the interior window lock was accessible; the lock 

was open and the lower sash, pushed up. From this, Officer Cruz surmised that the 

perpetrator(s) had entered Greathouse’s residence through the damaged rear office 

window and exited through the front door.

Forensic Specialist Angela Anzelone collected glass fragments from the ground 

under the broken office window, from which she was able to lift two fingerprints of good 

quality and detail.

2

 These two prints were placed on separate cards and run through a 

program called the Cogent Automated Fingerprint Identification System (CFIS) used to 

search the Automated Fingerprint Identification System (AFIS). CFIS returned a list of 

30 potential candidates, with Brooks listed as number one (the presumed closest match). 

Forensic Specialist Nicole Mendenhall, who testified in the area of fingerprint 

examination and comparison, compared one of the fingerprints Anzelone had collected 

(the latent print) with the number 9 finger on a set of appellant’s fingerprints that had 

been taken on or about April 19, 2012, which were contained in AFIS.3She utilized the 

ACE-V method—which stands for Analyze, Compare, Evaluate and Verify—a procedure 

 

2

She was unable to find any other fingerprints in other areas of the house. 

3

The exemplar prints Mendenhall compared to the latent print from the crime 

scene were not the same prints initially identified by CFIS as a potential match. After 

reviewing the exemplar selected by CFIS, Mendenhall pulled another of Brooks’s

exemplar prints from AFIS, which she felt were clearer, and utilized that exemplar in 

determining that the latent print was left by Brooks. At trial, expert Blickendorfer, a 

fingerprint technician who rolled Brooks’s prints at a preliminary examination in this 

case and compared the rolled prints to the two exemplars considered by Mendenall, 

testified that the rolled set and the two exemplars all belong to Brooks.
4

for comparing a known print to a latent print, which she described in some detail. She 

found 17 points of comparison, nine more than necessary for a match, and thus concluded 

that the latent print matched Brooks’s known exemplar. 

Based upon Mendenhall’s identification, Detective Erika Reed, a Concord police 

officer, obtained and dialed a telephone number for Brooks. A male answered the phone, 

said he was not Brooks, and offered to find him. Then a different male came to the phone 

and identified himself as Brooks. Detective Reed (who had apparently never spoken with 

Brooks before) did not recognize his voice. However, the speaker provided Brooks’s

date of birth (which Reed confirmed) and stated that his “stepdad” had informed him that 

the detective wished to speak with him. 

Reed testified that she told Brooks about the burglary and the fact that Brooks’s

print had been found on the broken window, and asked if Brooks could tell him where 

Greathouse’s iPad was. Brooks initially claimed ignorance, then said he was

uncomfortable talking about the iPad, and then admitted that he had the iPad earlier but 

had left it (in a backpack) with an unidentified male in San Francisco. He also admitted 

to entering Greathouse’s home, because he “was lost and didn’t know what to do.” He 

said he recalled pulling glass from a window and possibly crawling through the window.

He claimed he was “high on meth” when he “did it” and could not recall whether or not 

he used the iPad because his memory was “a blur.” Brooks initially said he could not 

recall taking anything in addition to the iPad, but then acknowledged that he “might 

have” taken Greathouse’s personal checks and “might have thrown them away.” 

At trial, the court admitted evidence that Brooks had previously committed two 

uncharged crimes, specifically, burglary. First, on April 2, 2012, Brooks broke into an 

in-law bungalow inhabited by other members of his family, on the same property where 

Brooks lived.4 The bungalow was locked and Brooks did not have permission to enter. 

Several windows at the back of the unit had been broken. Brooks took a portable gaming 

 

4 At the time, Brooks’s stepfather and mother were living in the in-law unit and 

their two daughters and Brooks were living in the main house. 
5

system and used a computer. Brooks’s stepfather found the gaming system in Brooks’s

room and called the police. The officer dispatched to the scene spoke to Brooks. Brooks, 

while holding the portable gaming system, admitted that he had taken it but said he was 

planning to return it. 

Second, on April 6, 2012, there was a residential burglary at a home on Euclid

Avenue in Concord. One of the home’s inhabitants testified that when he returned home 

from work, he found the rear doors of the home had been “kicked in or pulled” open. 

The bedsheets had been moved and the victim’s laptop taken from the bed, where he had 

left it; the dresser drawers were open and looked as if someone had rifled through them; 

and the closet door was open. In addition to the laptop computer, an iPad and video 

games were missing. His roommate also found his laptop to be missing. 

One of the victims suggested their former roommate, who had recently moved out

and with whom they had a dispute, as a potential suspect; this led the investigating officer 

to suspect Brooks, who had previously visited the roommate at the residence. The officer 

contacted Brooks’s stepfather and then spoke with Brooks in the presence of his mother 

and stepfather. Brooks admitted to having met up with another male, who claimed to 

have a dispute with one of the residents at the Euclid Avenue residence and suggested 

they should “break into the house and steal stuff to get even.” Brooks admitted that his 

companion pried open the back doors and took a laptop from one of the bedrooms and 

that Brooks had taken a laptop, an iPad, and several video games from another bedroom. 

In closing argument, the prosecutor argued that Brooks’s prior offenses were 

relevant to show intent, common plan, and identity. Focusing on identity, defense 

counsel challenged the reliability of both Brooks’s confession and the qualifications and 

methodology of expert Mendenhall. On rebuttal, the prosecutor repeatedly suggested, 

over defense counsel’s objection, that more than one fingerprint expert had verified that 

the latent print belonged to Brooks. Defense counsel’s objections were overruled.

The jury found Brooks guilty of first degree burglary. Defendant’s sentencing 

statement sought probation. The prosecution’s memorandum opposed probation in favor

of incarceration. The probation officer’s report recommended $973.14 in restitution, 
6

based upon the victim’s impact statement requesting reimbursement for her lost iPad, for 

glass repair, eight hours of lost wages, and the City of Concord’s permit fee for 

residential security alarms. It did not include the amounts disputed here, for a security 

system, doorknobs, and deadbolts. 

At the hearing, the prosecutor described Greathouse’s victim impact statement, 

including that Greathouse had been “more scared” since the burglary and “had to put in a 

burglar alarm.” The court ordered victim restitution in the amount of $2,351.34, or 

$1,378.20 higher than the amount in the probation report.

5

 

DISCUSSION

I. Guilt Phase – Impact of Trial Court Error and Prosecutorial Misconduct

A. Admission of Uncharged Prior Offenses

Brooks challenges the admission of prior uncharged acts of residential burglary 

pursuant to Evidence Code section 1101, subdivision (b). The prosecution sought to 

admit 11 incidents, including four residential burglaries. After conducting part of the 

hearing in chambers, the trial court announced it had tentatively “narrow[ed] down” the 

incidents to the two most relevant. 

Defense counsel argued that these acts should not be admitted, particularly for 

purpose of proving intent, as that issue would not be contested: “I don’t believe I can 

realistically argue that there was a lack of intent by the perpetrator who went into . . .

Greathouse’s home. . . .” He also stressed that “[t]he issue for the defense in this case is 

identity. . . .” (Italics added.)

 

5 Brooks’s application to settle record on appeal, which was granted by the trial 

court, explains that at the sentencing hearing the prosecution submitted additional 

expenses incurred by the victim which were not included in the record. The application 

attached the excluded exhibits documenting the victim’s additional expenses—including 

for the installation of a home security alarm, installation of a security chain, and 

replacement and/or adjustment of two deadbolts and lockset—which account for the 

$1,378.20 discrepancy. However, there was no discussion of these amounts, or the basis 

for the restitution award, in the parties’ written submissions or at the hearing.
7

The prosecutor then clarified that she sought admission not only for purposes of 

identity and intent (to which the court had tentatively agreed), but also “to prove a plan, 

to prove lack of mistake.” The prosecutor argued that the similarities between the 

uncharged priors and the Greathouse burglary were numerous and distinctive enough to 

warrant admission for all three purposes.

The trial court granted the motion, admitting the two April 2012 offenses to prove 

the identity of the perpetrator, to establish the perpetrator’s intent to commit a theft, and 

to show that the burglary was part of a common plan or scheme and instructed the jury 

accordingly. In closing argument, the prosecutor urged the jury to consider this evidence 

for all three purposes. 

We doubt that the evidence of Brooks’s prior burglaries was properly admitted. 

(Evid. Code, § 1101, subd. (b); People v. Cole (2004) 33 Cal.4th 1158, 1194 [“such 

evidence is admissible ‘when relevant to prove some fact (such as motive, opportunity, 

intent, preparation, plan, knowledge”]; People v. Ewoldt (1994) 7 Cal.4th 380, 404 

(Ewoldt) [discussing criteria for admission].) The three crimes were more different than

similar: one was instigated by a friend, the others carried out independently; Brooks had 

prior personal connections with the victims of the two prior burglaries, but none with 

Greathouse; in two of the incidents, access was obtained through broken windows, while 

in a third, French doors were pried open; in only one was the victim’s home “ransacked”; 

and, in each, different types of items were taken (not just personal electronics, but also 

video games and personal checks). (Ewoldt, at pp. 402–403 [requiring some degree of 

similarity to establish relevance for each purpose].) In any event, two of the bases for 

admission—“common plan” and “intent”—were never put in issue by the defense, as 

there was ample other evidence establishing these elements. (Id. at p. 406.)6 

 

6

The “common plan” argument is particularly baffling, as the prosecutor never 

argued that the Greathouse burglary and prior acts (which occurred years earlier) were 

part of any overarching plan (Ewoldt, supra, 7 Cal.4th at p. 403) and no evidence 

suggested anything other than a series of spontaneous, unrelated acts (People v. Alcala

(1984) 36 Cal.3d 604, 634, superseded by statute on other grounds as stated in People v. 

Falsetta (1999) 21 Cal.4th 903, 911). 
8

As defense counsel predicted at the in limine hearing, the trial focused on 

identity.

7

 As we have noted, however, the differences among the three crimes were 

substantial, and the similarities are unremarkable. (Ewoldt, supra, 7 Cal.4th at p. 403; 

People v. Felix (1993) 14 Cal.App.4th 997, 1005.)8

That said, we cannot find any reasonable probability that, absent the error, the jury 

would have reached a more favorable verdict. (People v. Alcala, supra, 36 Cal.3d 604, 

636, citing People v. Watson (1956) 46 Cal.2d 818, 836-837 (Watson).) Here, there was

independent, compelling evidence of conduct constituting a crime, the intent to steal, and 

the identity of the perpetrator. As to the last point, Brooks’s fingerprint was lifted from 

the suspected point of entry and Brooks admitted to the investigating detective that he 

broke into Greathouse’s home and took her belongings. And defense counsel’s 

challenges to the fingerprint evidence and Brooks’s admissions were not compelling.

9

 

7 We reject the suggestion that defense counsel may have forfeited this issue 

below. The Attorney General apparently agrees. Thus, we need not determine 

defendant’s ineffective assistance of counsel argument. 

8

See also People v. Nottingham (1985) 172 Cal.App.3d 484, 500 (there were 

material differences among prior and charged offenses and similarities were common in 

sex assault cases, not distinctive); People v. Rivera (1985) 41 Cal.3d 388, 391 (Rivera), 

disapproved on other grounds in People v. Lessie (2010) 47 Cal.4th 1152, 1168 (when 

charged and prior crimes involved multiple perpetrators, use of a weapon and a getaway 

vehicle, and occurred at a convenience store, similarities were not distinctive); People v. 

Bigelow (1984) 37 Cal.3d 731, 749 (use of weapon and ordering victims to lie down not 

sufficiently distinctive to infer that defendant was the triggerman and murderer as 

charged); People v. Haston (1968) 69 Cal.2d 233, 247–248 (robbery of closed businesses 

when employees were present by two armed, middle height Caucasian men who wore 

handkerchiefs over their faces, who entered and exited via employees’ entrance/exit, who 

forced employees to lie face down on the floor but never injured them, and who split 

duties of managing employees and robbing safe, not sufficiently distinctive to constitute a 

“signature” until the presence of a particular individual (other than defendant) at each of 

the crimes was added).

9 Defense counsel challenged Mendenhall’s testimony by arguing that Mendenhall 

lacked certain certifications, her methodology was untrustworthy, and her results should 

have been verified by an independent expert. 

As to the confession, defense counsel argued, inter alia, that the detective could 

not have known, for certain, that it was Brooks on the telephone and emphasized
9

Under these circumstances, there was no reasonable probability that, absent the 

introduction of the prior uncharged offenses, the result would have been more favorable

to Brooks. (See, e.g., People v. Felix, supra, 14 Cal.App.4th at p. 1008 [where there 

were three independent courtroom identifications of defendant Felix and two from 

photographic lineups, introduction of prior conviction was nonprejudicial and unlikely to 

affect the verdict; by contrast, as to defendant Pedrico, where the other evidence of 

identity was “significantly weaker,” the use of the prior conviction was “correspondingly 

more important” and the jury was reasonably likely to have doubts about that 

identification, and the conviction was reversed as to Pedrico]; People v. Gordon (1990) 

50 Cal.3d 1223, 1235–1237, declined to follow on other grounds People v. Edwards

(1991) 54 Cal.3d 787 [where main defense was mistaken identity, admission of similar 

priors was not Watson error where there ample other evidence incriminating defendant]; 

People v. Foster (2010) 50 Cal.4th 1301, 1333 [erroneous admission of evidence of prior 

similar offenses did not constitute Watson error, in part because there was 

“overwhelming evidence establishing that defendant was, in fact, the perpetrator of the 

charged crimes”].)

Brooks’s authorities are unpersuasive. In People v. Nottingham, supra, 172 

Cal.App.3d 484, the erroneous admission of prior crimes was compounded by

instructional error resulting in significant prejudice, as well as the erroneous admission of 

other, unrelated testimony, which was inflammatory and prejudicial to defendant. (Id. at 

pp. 498, 501.) His other cases involved evidence against the defendant which was either 

weak or equivocal, such that evidence of prior acts was more likely to sway the jury. 

(People v. Lopez (2011) 198 Cal.App.4th 698, 716; People v. Bruce (1989) 208 

 

defendant’s claim, during the interview, that at the time of the break-in he was high on 

drugs and his memory was “a blur.” These arguments are undermined by other evidence 

from which the jury reasonably could have found the confession was in fact provided by 

Brooks, including that at the start of the interview, the speaker provided Brooks’s correct 

birthdate and said that his stepfather had warned him to expect the call. Regarding 

Brooks’s self-serving claim that his memory of the incident was poor, Brooks admitted 

he recalled pulling glass from Greathouse’s window and crawling through it.
10

Cal.App.3d 1099, 1103–1106; Rivera, supra, 41 Cal.3d at pp. 392–393; Alcala, supra, 36 

Cal.3d at pp. 635–636.) 

Thus, the admission of two uncharged priors, alone, does not warrant reversal.

B. Prosecutorial Misconduct

Brooks also contends that the prosecutor committed misconduct during closing 

argument by mischaracterizing the nature of the fingerprint evidence and overstating its 

strength. On rebuttal, the prosecutor stated that after expert Mendenhall matched the 

latent fingerprint to Brooks’s exemplar, “somebody else independently came in and 

verified that that print, the latent, matched the known print for Justin Brooks.” Although 

there was no evidence in the record10 to support this argument, the court overruled 

defense counsel’s objection. Shortly thereafter, the prosecutor stated that the jury “heard 

from several experts who verified the latent matched the exemplars.” (Italics added.) 

Again, defense counsel’s objection was overruled. Then the prosecutor re-stated her 

position: “You heard from multiple experts. Some said the latent matched the exemplar. 

The other ones told you the exemplars matched other known exemplars.” (Italics added.) 

Because “some” experts did not verify that the latent matched the exemplar, the 

prosecutor’s comments were not a fair inference from the facts; they mischaracterized the 

facts. (People v. Dennis (1998) 17 Cal.4th 468, 522; People v. Jasso (2012) 211 

Cal.App.4th 1354, 1372.)11 

Whether this misconduct warrants reversal is another question.

Brooks first argues that the prosecutor’s statements rendered the entire trial 

fundamentally unfair and the conviction must be reversed absent a showing that the 

misconduct was harmless beyond a reasonable doubt. While we do not condone the 

conduct of the prosecutor in this case, we cannot find an error of federal constitutional 

 

10 As disclosed by our summary of the evidence, although multiple experts 

testified as to various aspects of the fingerprint evidence, only one expert (Mendenhall) 

testified that she verified that the latent fingerprint lifted at the scene belonged to Brooks.

11 We also agree with Brooks that counsel’s objections preserved this issue for 

appeal. (People v. Bordelon (2008) 162 Cal.App.4th 1311, 1323 (Bordelon).)
11

dimensions. Unlike the prosecutor in People v. Johnson (1981) 121 Cal.App.3d 94, cited 

by appellant, here the prosecutor did not inject new material into the case, transforming

herself into witness who could not be cross-examined and undermining defendant’s right 

to confront witnesses. (Id. at pp. 102–105.) As Brooks acknowledges, the prosecutor

“exaggerate[ed] the weight” of evidence already in the record. Davis v. Zant (11th Cir. 

1994) 36 F.3d 1538, also cited by Brooks, is likewise unavailing. In that case, the 

misconduct was “extensive” rather than isolated (misrepresentations throughout the guilt 

phase of the trial) and far more egregious (in addition to false statements, disparaging 

defense counsel and their management of the defense). (Id. at pp. 1546–1551.)

The improper exposure of jury to certain factual matters is usually tested under the 

Watson standard. (Bordelon, supra, 162 Cal.App.4th at pp. 1323–1324.) The testimony 

of the experts involved in lifting, scanning, and comparing the various fingerprints in 

evidence was not unduly complex or highly technical; thus, it seems unlikely “that the 

jury construed or applied the complained-of remarks in an objectionable fashion.” 

(People v. Jasso, supra, 211 Cal.App.4th at p. 1362.) More importantly, the prosecutor’s 

attempt to “bolster” the fingerprint evidence was immaterial in light of Brooks’s

admissions to Detective Reed, which positively established that Brooks was at 

Greathouse’s residence. Thus, we find the prosecutor’s statements likely did not have 

“any material impact on the jury’s view of the case.” (Bordelon, at p. 1324.) 

C. Cumulative Prejudice

Brooks contends that the combined effect of the foregoing errors deprived him of 

a fair trial, under both federal and state standards. The argument is premised on his 

view—which we do not share—that the admission of prior offenses was “highly 

prejudicial,” such that even minimal prejudice caused by the prosecutor’s misstatements 

was sufficient to render the trial fundamentally unfair. Accordingly, we affirm Brooks’s

conviction.

II. Sentencing Phase – Propriety of Restitution for Security Costs

Brooks also challenges the trial court’s decision to award direct victim restitution 

for security-related items, specifically, installation of a home alarm system, new door 
12

locks, and deadbolts. He contends that restitution for these items is not authorized under 

section 1202.4 (the restitution statute)—specifically, subdivision (f)(3)(J)—because his 

conviction was not for a “violent felony” as defined in section 667.5, subd. (c).

12

 

Initially, we address the People’s contention that defense counsel forfeited 

Brooks’s challenge to the restitution order by failing to object at sentencing. In another 

context, this argument might be more compelling; the question presented here, however,

may be raised for the first time on appeal. (People v. Martinez (2017) 10 Cal.App.5th 

686, 721 [argument that restitution order constituted legal error, if it does not require 

resort to the record or remand for further findings, not subject to forfeiture].) By contrast, 

Brooks’s contention that he should not have to pay for the installation of front and rear 

door locks because the record below reflected no evidence of such expenses raises a 

factual issue, which is subject to forfeiture. (In re Sheena K. (2007) 40 Cal.4th 875, 887.) 

As there is no evidence that defense counsel raised this objection, below or in Brooks’s

opening brief on appeal, we treat it as waived. (Ibid.; Children’s Hospital & Medical 

Center v. Bonta (2002) 97 Cal.App.4th 740, 777 [points not raised in opening brief may 

be treated as waived on appeal], disapproved on another ground in Asante v. California 

Department of Healthcare Services (9th Cir. 2018) 886 F.3d 795, 802, fn. 14.) 

Accordingly, we address only Brooks’s contention that the statute precludes restitution 

for security costs in convictions for nonviolent felonies.

A. California’s Restitution Law 

 

12 After the briefing was complete, defendant sought leave to submit a 

supplemental brief to address intervening authority on the restitution issue, specifically, 

People v. Salas (2017) 9 Cal.App.5th 736 (Salas), which we granted. In response, the 

Attorney General acknowledged the holding of Salas and conceded the issue. However, 

in light of yet another case, People v. Henderson (2018) 20 Cal.App.5th 467, review 

granted May 23, 2018, S247716 (Henderson), which has since issued and directly 

conflicts with Salas, we decline to accept the Attorney General’s concession. The right 

to restitution, which is constitutional, cannot be waived by the prosecution. (People v. 

Valdez (1994) 24 Cal.App.4th 1194, 1203 [constitutional origins of restitution]; People v. 

Gross (2015) 238 Cal.App.4th 1313, 1318 [“[a] victim’s right to restitution is . . . a 

constitutional one; it cannot be bargained away or limited, nor can the prosecution waive 

the victim’s right to receive restitution”].)
13

Under our state’s restitution scheme, convicted criminals may be required to pay 

three types of restitution: a fine, set at the discretion of the court and commensurate with 

the seriousness of the offense, which is paid into a state fund used to compensate victims; 

direct restitution, primarily for economic loss sustained by the victims as a result of the 

defendant’s conduct; or restitution as a condition of probation. (People v. Giordano

(2007) 42 Cal.4th 644, 651–652 (Giordano).) 

This appeal concerns direct restitution, the right to which was created in 1982

when California voters passed Proposition 8, also known as the Victims’ Bill of Rights. 

(Giordano, supra, 42 Cal.4th at p. 652.) The initiative added article I, section 28, 

subdivision (b) to the Constitution (Giordano, at p. 652), which in its current form

establishes specific, enumerated rights “[i]n order to preserve and protect a victim’s 

rights to justice and due process.” (Cal. Const., art. I, § 28, subd. (b).) Among those 

rights is direct restitution, which is defined expansively: “(A) It is the unequivocal 

intention of the People of the State of California that all persons who suffer losses as a 

result of criminal activity shall have the right to seek and secure restitution from the 

persons convicted of the crimes causing the losses they suffer. (B) Restitution shall be 

ordered from the convicted wrongdoer in every case, regardless of the sentence or 

disposition imposed, in which a crime victim suffers a loss.” (Id., subds. (b)(13)(A), 

(B).) As these rights are not self-executing, the Legislature was directed to adopt 

implementing legislation. (Giordano, at p. 652 [discussion on earlier version of the Bill 

of Rights].) The array of laws subsequently passed was eventually consolidated into 

section 1202.4. (Giordano, at p. 653.) 

Initially, subdivision (f) of section 1202.4 provides, in pertinent part, “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.” (§ 1202.4, subd. (f).) It further states, “The 

court shall order full restitution.” (Ibid.) 
14

Section 1202.4, subdivision (f) is followed by numbered parts (1)–(3). 

Subdivision (f)(1) states that “[t]he defendant has a right to a hearing before a judge to 

dispute the determination of the amount of restitution,” describes the manner for 

modifying a restitution order, and authorizes victim testimony via audio or video 

transmission. (§ 1202.4, subd. (f)(1).) Subdivision (f)(2) concerns rights that third 

parties and the State Restitution Fund may have in a victim’s direct restitution order. 

(Id., subd. (f)(2).) Subdivision (f)(3) (relied upon by Brooks) provides: “To the extent 

possible, the restitution order shall be prepared by the sentencing court, shall identify 

each victim and each loss to which it pertains, and 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, including but not limited to, all 

of the following” (§ 1202.4, subd. (f)(3), italics added.) Subdivisions (f)(3)(A)–(L), 

which follow, describe various compensable economic losses, such as the value of 

damaged or stolen property, medical and mental health counseling expenses, and lost 

wages. (Id., subds. (f)(3)(A)–(L).)13 Some of these provisions also include guidance for 

valuing a given loss. (Id., subds. (f)(3)(A), (D), (E), (G), (I), (L).) And one part, 

concerning relocation expenses to move away from the defendant, imposes a verification 

requirement. (Id., subd. (f)(3)(I).) 

Subdivision (f)(3)(J), relied upon by Brooks, provides restitution for “[e]xpenses 

to install or increase residential security . . . including but not limited to, a home security 

device or system, or replacing or increasing the number of locks,” so long as they are

“incurred related to a violent felony, as defined in subdivision (c) of Section 667.5.” (§ 

1202.4, subd. (f)(3)(J).)

B. Applicable Standard of Review

The People argue that we review the trial court’s restitution decision for an abuse 

of discretion. Here, however, Brooks contends that the trial court erroneously construed 

 

13 The list includes one type of compensable noneconomic loss arising from

certain sex crimes committed against children. (§ 1202.4, subd. (f)(3)(F).)
15

section 1202.4, subdivision (f), to permit an award of restitution for security 

improvements following a nonviolent felony because subdivision (f)(3)(J) impliedly 

precludes such an award. We are thus presented with a pure question of law which we 

review de novo. (In re Eric S. (2010) 183 Cal.App.4th 1560, 1564.) In any event, an 

order which rests upon “a demonstrable error of law” constitutes an abuse of discretion. 

(People v. Duong (2010) 180 Cal.App.4th 1533, 1537.) 

C. The Parties’ Arguments

Brooks argues that because section 1202.4, subdivision (f)(3)(J)’s provision 

specifically allows court-ordered restitution for security costs related to a violent felony, 

the principle of expressio unius est exclusion alterius (“the enumeration of things to 

which a statute applies is presumed to exclude things not mentioned”) applies, and we 

should infer that security costs related to nonviolent felonies are impliedly barred. 

(Gonzalez v. Santa Clara County Department of Social Services (2014) 223 Cal.App.4th 

72, 90 [defining expressio unius principle].) He contends that a contrary interpretation 

would render subdivision (f)(3)(J) superfluous, which is not permitted. Finally, he argues 

that security improvements are not necessary to make a victim of a nonviolent felony 

whole, but constitute a windfall to the victim, contrary to the purposes of the statute. In 

his supplemental brief, Brooks reiterates these arguments and additionally cites Salas for 

the proposition that the Legislature’s decision to revise subdivision (f)(3)(J) to add the 

limitation to violent felonies weighs in favor of a narrow reading.

The People respond that Brooks’s reading of the statute is unduly narrow and that 

subdivision (f)(3)’s list of compensable losses is illustrative, not exclusive. The People

also argue that so long as a loss is proven, the sentencing court may exercise its discretion 

to order direct restitution for the loss under the more general authorization in section 

1202.4, subdivision (f).

14

 The People’s interpretation of the restitution statute is 

supported by Henderson, supra, 20 Cal.App.5th 467, review granted, which was decided 

 

14 In its supplemental brief, the People conceded the holding of Salas, supra, and 

effectively abandoned its opposition; however, for the reasons explained in footnote 12,

ante, we do not accept this concession.
16

after the parties submitted their supplemental briefs and which creates a split in authority 

on the issue presented.

D. Discussion

“A fundamental rule of statutory construction is that a court should ascertain the 

intent of the Legislature so as to effectuate the purpose of the law. [Citations.] In 

construing a statute, our first task is to look to the language of the statute itself.

[Citation.] When the language is clear and there is no uncertainty as to the legislative 

intent, we look no further and simply enforce the statute according to its terms. 

[Citations.] [¶] Additionally, however, we must consider [statutory language] in the 

context of the entire statute [citation] and the statutory scheme of which it is a part. ‘We 

are required to give effect to statutes “according to the usual, ordinary import of the 

language employed in framing them.” [Citations.]’ [Citations.] ‘ “If possible, 

significance should be given to every word, phrase, sentence and part of an act in 

pursuance of the legislative purpose.” [Citation.] . . . “When used in a statute [words] 

must be construed in context, keeping in mind the nature and obvious purpose of the 

statute where they appear.” [Citations.] Moreover, the various parts of a statutory 

enactment must be harmonized by considering the particular clause or section in the 

context of the statutory framework as a whole. [Citations.]’ [Citations].” (DuBois v. 

Workers’ Comp. Appeals Bd. (1993) 5 Cal.4th 382, 387–388.)

Subdivision (f)(3)(J) states that the court’s restitution order “shall be of a dollar 

amount that is sufficient to fully reimburse the victim or victims for every determined 

economic loss incurred as a result of the defendant’s criminal conduct, including but not 

limited to, all of the following: [¶] . . . [¶] (J) Expenses to install or increase residential 

security related to a violent felony . . . .” (§ 1202.4, subd. (f)(3)(J).) (As noted, there is 

no dispute that Brooks’s conviction was for a nonviolent felony.) By its own terms, this 

provision requires the court’s restitution order to be for an amount sufficient to reimburse

security expenses related to violent felonies. (Henderson, supra, 20 Cal.App.5th at 

p. 471, rev. granted.) It establishes a minimum. No language supports the contention 

that it somehow precludes restitution to victims of nonviolent felonies. 
17

Brooks’s reliance upon the principle of expressio unius est exclusion alterius is 

improper. It has long been held that it does not apply to an item in an illustrative list, 

such as we have here, as indicated by the language “including, but not limited to.”

15

(People v. Richards (1927) 86 Cal.App. 86, 89. See also Estate of Banerjee (1978) 21 

Cal.3d 527, 540 [declining to apply maxim of expressio unius because “includes” is “not 

ordinarily understood as expressing an intent to limit”].) In Banerjee, the court 

considered a similarly constructed statute: a general phrase making all intangible 

personal property in California taxable “including” particular stocks; it declined to find, 

by implication, that other types of stocks not expressly mentioned, though intangible

property, were not taxable. (Id. at pp. 531–532, 540–541.) Furthermore, Brooks’s

construction renders the “including but not limited to” language mere surplusage. 

(People v. Valencia (2017) 3 Cal.5th 347, 357 [such constructions not permitted]; 

Henderson, supra, 20 Cal.App.5th at p. 473 [rejecting identical application of expressio 

unius], rev. granted.)

The expressio unius doctrine “is most properly viewed as a preference or guideline 

which must be balanced against other indications of legislative intent, and must yield 

when they preponderate against it.” (Gonzalez v. Santa Clara County Department of 

Social Services, supra, 223 Cal.App.4th at p. 90.) It “ ‘[i]s not immutable and is 

inapplicable if its operation would contradict a discernible and contrary legislative 

intent.’ ” (People v. Thurston (2016) 244 Cal.App.4th 644, 665.)16 Here, the context—

 

15 The usual, ordinary meaning of this phrase renders the list that follows 

illustrative, not exhaustive. (See People v. Keichler (2005) 129 Cal.App.4th 1039, 1046

[“Because the statute uses the language ‘including, but not limited to’ these enumerated 

losses, a trial court may compensate a victim for any economic loss which is proved to be 

the direct result of the defendant’s criminal behavior, even if not specifically enumerated 

in the statute”].) 

16 In People v. Thurston, supra, 244 Cal.App.4th 644, this court discerned from 

ballot pamphlet arguments the electorate’s intent in enacting by initiative the Three 

Strikes Reform Act of 2012; although none of the ballot pamphlet arguments bore 

directly on the statutory interpretation question at issue, this court found that the general 

purposes of the Act, as expressed by the ballot arguments in its favor, precluded the 
18

including the history and structure of the statute—mitigates against the application of 

expressio unius. Importantly, victim restitution rights derive from the Constitution, as 

amended through initiative. (Giordano, supra, 42 Cal.4th at p. 652.) Section 1202.4

constitutes implementing legislation, and it must be read in harmony with, and through 

the lens of, the Constitution. (People v. Whisenand (1995) 37 Cal.App.4th 1383, 1390.)

Our Constitution reflects the voters’ “unequivocal” intent to ensure “that all 

persons who suffer losses as a result of criminal activity shall have the right to seek and 

secure restitution from the persons convicted of the crimes causing the losses they suffer” 

and specified that this right applies in “every case, regardless of the sentence or 

disposition imposed, in which a crime victim suffers a loss.” (Cal. Const. art. I, § 28, 

subds. (b)(13)(A), (B), italics added.) Section 1202.4, subdivision (f) echoes that broad 

mandate, requiring restitution “in every case in which a victim has suffered economic 

loss as a result of the defendant’s conduct,” and then states, “[t]he court shall order full

restitution.” (§ 1202.4, subd. (f), italics added.)

By contrast, subdivisions (f)(1)-(2) address matters more fairly characterized as 

procedural—affecting the right to be heard, modes of victim testimony, modification of 

restitution orders, and rights of third parties. (See § 1202.4, subds. (f)(1)-(2).) Similarly,

subdivision (f)(3) governs the preparation and contents of the restitution order. 

Specifically, the order must award restitution in an amount sufficient to reimburse all 

economic losses determined to have resulted from defendant’s criminal conduct, 

including but not limited to the list of items set forth in subdivisions (f)(3)(A)-(L). 

Subdivisions (f)(3)(A)-(L) list types of restitution commonly awarded to crime victims. 

Several of these subparts specify how certain types of restitution must be calculated, and 

one imposes a requirement for third party verification of need, ostensibly to prevent 

abuse. (Id., subds. (f)(3)(A), (D), (E), (G), (I), (L), (I).) 

 

application of expressio unius. (Thurston, at pp. 665–666.) Similarly, another division of 

this court has declined to apply the maxim where doing so would run counter to a wellestablished principle of law. (Arntz Builders v. Superior Court (2004) 122 Cal.App.4th 

1195, 1205.) 
19

In this context, it becomes apparent that these subparts are not intended to define a 

victim’s substantive right to restitution, but to ensure those rights will be fully vindicated

by identifying common types of restitution and providing guidance for calculating the 

proper measure of damages. In other words, subdivision (f)(3)(J) must be construed to

set a floor, not a ceiling. The provision should not be interpreted to impliedly limit—or 

vitiate—victims’ constitutional rights. 

The authorities cited by Brooks are distinguishable and unpersuasive. Dyna-Med,

Inc. v. Fair Employment & Housing Com. (1987) 43 Cal.3d 1379 concerned an 

administrative agency’s ability (or lack thereof) to impose punitive damages. The 

statutory list of remedies following the phrase “including, but not limited to,” were 

corrective and equitable, not punitive or deterrent. (Id. at pp. 1387–1388.) Nonetheless, 

the court found that the application of expressio unius was consistent with, and supported 

by, the following: general tenets of administrative law; the commission’s failure to 

construe the statute to allow punitive damages until 20 years after the statute was enacted; 

the inability of other administrative agencies to award punitive damages; other provisions 

of the statute concerning permissible remedies; and the fact that, unlike Civil Code 

section 3295 governing punitive damages in civil actions, the applicable statutes and 

regulations contained no comparable guidelines for the award of punitive damages.

(Dyna-Med, Inc., at pp. 1388–1392.) Here, comparable considerations weigh against the 

maxim’s application.

Brooks also relies upon People v. Thygesen (1999) 69 Cal.App.4th 988 which, he 

argues, holds that the purpose of the restitution statute is to make a victim whole, not to 

grant a windfall. While we do not dispute that general principle, Thygesen concerned the 

measure of loss, not the implied abrogation of restitution for an entire category of crimes. 

(Id. at p. 995.) In any event, Thygesen supports our view that “the list of factors to be 

considered in subsections (A) through (G) is not exclusive. Section 1202.4, subdivision 

(f)(3) specifically states that in determining what is a loss, the trial court shall consider, 

but is not limited to the factors in subsections (A) through (G).” (Thygesen, at p. 994.) 
20

Finally, People v. Fortune (2005) 129 Cal.App.4th 790, 793 concerned the court’s 

method of calculation of restitution and found no error, as the trial court interpreted the 

applicable subdivision of section 1202.4 consistently with other law, so that the victim 

would not receive more than the value of the property which was fraudulently taken. 

(Fortune, at pp. 795–795.) It declined to set restitution at the higher amount measured by 

the benefit to the criminal defendant. (Ibid.) Here, we face no such discrepancy. 

Our application of statutory construction principles is also supported by other

decisions which are not directly on point, but are analogous and instructive. In People v. 

Moore (2009) 177 Cal.App.4th 1229, the court considered restitution for wages lost as a 

result of the victim’s voluntary attendance at trial. Subdivisions (f)(3)(D) and (E) 

expressly provide restitution for wages lost due to personal injury, caring for an injured 

minor victim, or for time spent as a witness or in assisting the police or prosecution; they 

do not mention voluntary court attendance. (§ 1202.4, subds. (f)(3)(D), (E).) 

Nonetheless, the Court of Appeal affirmed the award of restitution, reasoning that it is 

permitted “for any economic loss which is proved to be the direct result of the 

defendant’s criminal behavior, even if not specifically enumerated in the statute” and that 

the “only limitation the Legislature placed on victim restitution is that the loss must be an 

‘economic loss incurred as the result of the defendant’s criminal conduct.’ ” (Moore, at 

pp. 1231–1232, quoting People v. Crisler (2008) 165 Cal.App.4th 1503, 1508.)

In People v. McCarthy (2016) 244 Cal.App.4th 1096, a different division of this 

court construed section 1202.4, subdivision (f)(3)(F), which requires restitution for a

psychological harm resulting from certain sex crimes against children. Although, at the 

time, subdivision (f)(3)(F) was expressly limited to “felony violations of Section 288,” 

the court affirmed an order of direct restitution for a conviction under section 288.5 

(reasoning, inter alia, that it was a “greater included offense”). It also observed that in 

light of a legislative and historical trend toward enlarging, not restricting, the availability 
21

of restitution, an implied prohibition against restitution would not be appropriate. 

(McCarthy, at p. 1108.)17

These decisions support a liberal reading of subdivision (f) to allow restitution for 

all harms caused by a defendant’s conduct, based upon the general language of 

subdivision (f), “without relying on the more specific language in section 1202.4, 

subdivision (f)(3)(I).” (People v. Mearns (2002) 97 Cal.App.4th 493, 503.) As such, we 

agree with the holding of Henderson that “where a victim incurs the economic loss of 

installing a security system as a direct result of a defendant’s conduct, the trial court may 

include that amount in a victim restitution award regardless of the crime of conviction.” 

(Henderson, supra, 20 Cal.App.5th at p. 472, rev. granted.)18

To the extent it holds otherwise, we disagree with Salas, supra, 9 Cal.App.5th 

736. In reaching a contrary decision, the Fourth District Court of Appeal divined 

legislative intent from an amendment that was immaterial to the question presented and 

applied the canon of expressio unius without examining the constitutional origins of the 

substantive rights at issue in this case. (Id. at pp. 742–744.) We also disagree with the

court’s argument that provisions, in parallel subdivisions, for the manner of calculating

particular losses somehow supports a narrow interpretation of section 1202.4, subdivision 

(f)(3)(J). (Salas, at p. 744.) As we conclude, those provisions aid the court in satisfying

minimum constitutional standards. In any event, the stated premise (that the existence of

a specific “measure of harm” provision, by implication, precludes a trial court from 

utilizing other, unspecified methods of calculation when appropriate) has been expressly 

rejected by another court of appeal. (People v. Mearns, supra, 97 Cal.App.4th at 

pp. 501–502.)

 

17

 Brooks cites People v. Valenti (2016) 243 Cal.App.4th 1140, which interpreted 

section 1202.4, subdivision (f)(3)(F) in a contrary manner. As McCarthy, supra, 244 

Cal.App.4th 1096 was subsequently decided and the statute was later amended to add 

section 288.5, we are not persuaded.

18

 We note, however, that Henderson’s analysis treats the restitution statute as the 

source of victims’ substantive rights, rather than implementing legislation. (Henderson, 

supra, 20 Cal.App.5th at pp. 470–472, rev. granted.)
22

Accordingly, we hold that the statute permits restitution for security costs incurred 

by the victim of a nonviolent felony, notwithstanding the more specific provisions in 

section 1202.4, subdivision (f)(3)(J) requiring the court to award such restitution to the 

victim of a violent felony.

DISPOSITION

The judgment is affirmed in all respects.
23

_________________________

Kline, P.J.

We concur:

_________________________

Stewart, J.

_________________________

Miller, J.

People v. Brooks (A147410)
24

Trial Judge: Hon. Nancy Davis Stark

Trial Court: Contra Costa County Superior Court

Attorney for Appellant: Under Appointment by the Court of Appeal

Michele Kemmerling

Attorneys for Respondent: Attorneys General of California

Xavier Becerra

Kamala D. Harris

Gerald A. Engler

Chief Assistant Attorney General

Jeffrey M. Laurence

Senior Assistant Attorney General

Donna M. Provenzano

Supervising Deputy Attorney General

Christina Vom Saal

Deputy Attorney General