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)

D efendant Justin Brooks appeals from his conviction for first degree burglary

. He
contends that the trial court erred in admitting evid ence 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

warrant s reversal

. Brooks also challenges the tr ial 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 B rooks to suff er little, if any
, prejudice
because other evidence independently and definitively link ed 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 pre cluded 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 bur glary 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 resident ial burglary. Following the sentencing hearing o n January 15, 2016, the trial court sentenc ed
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 lock s

. Brooks timely appealed

.

STATEMENT OF FAC TS 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 sh e 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 ab out three months prior, and Greathouse had placed duct tape over a nine

- inch crack prior to the
break

- in. )3

A t Greathouse’s request, a neighbor called the police. When Concord P olice
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 fr om a window in the office
, and there was glass on the ground. With the glass removed, the interior window lock was accessible; the l ock was open and the lower sash, pushed up. From this , Officer Cruz surmised that the perpetrator(s) had entered Greathous e’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 goo d 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 li st of
30 potential candidates, with Brooks listed as number one (the presumed closest match)

. Forensic S pecialist Nicole Mendenhall
, who testified in the area of fingerprint examination and comparison, compared one o f 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. 3 She utilized the
ACE

- V method

— which stands for Analyz e, Compare, Evaluate and Verify

— a procedure

2 She w as un able 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 exem plar 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 technici an 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

. S he 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 h ave 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 t he 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 t he portable gaming system , admitted that he had taken it but said he was planning to return it.
Sec ond, 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 beds heets had been moved and the victim’s la ptop taken fro m 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

game s were missing. His roommate also found his laptop to be missing.
One of the victims suggested t heir for mer roommate, who had recently moved out and with whom they had a dispute
, as a potential suspect; this led the investigating officer to suspect Bro oks, 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 di spute 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

c ounsel 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 verifi ed that the latent print belonged to Brooks. Defense counsel’s objections were overruled. The jury found Brooks guilty of first degree burglary. D efendant’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 fo r residential security alarms. It did not include the amounts disputed here , for a security system, doorknobs
, and deadbolts

. At the hearing, t he 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. Admissio n 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 in cidents, includi ng four resident ial burglaries. After conducting part of the hearing in chambers, the trial court announced it had tentatively “narrow[ed] down ” th e incidents to the two most relevant

. D efense counsel argued that these acts should not be admitted, part icularly for purpose of proving intent , as that i ssue 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 f or 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 pr osecution 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, inst allation of a security chain, and replacement and/or adjustment of two deadbolts and lockset

— which account for th e $1,378.20 discrepancy. However, there was no discussion of these amounts, or the basis for the restitution award, in the parties’ written su bmissions 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 ide ntity 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 arg ument, t he 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. C ode , § 1101, subd. (b); People v. Cole (2004) 33 Cal.4th 1158, 1194 [“such
evi dence 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, F rench doors were pried open; in only one was the victim’s home “r ansacked” ; 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 [r equiring 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. 40 6.) 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 overarchi ng 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 focus ed on identity

. 7 A s we have noted, however, t he 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, citin g People v. Watson (1956) 46 Ca l.2 d 818, 836

- 837 ( Watson ) .) Here, t here 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 fin gerprint 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 d efense counsel’s challenges to the fingerprint evidence and Brooks’ s admissions were not compelling

. 9

7 We reject the su ggestion 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. 4 th 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 orde ring victims to lie down not sufficiently distinctive to infer that defendant was the tri ggerman 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 e ntered 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 sufficie ntly 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 certification s, her methodology was untrustworthy, and her results should have been veri fied by an independent expert. As to the confession, d efense counsel argued , inter alia, that the detective could not have known, for certain, that it was Brooks on the telephone a nd emphasized9

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

w ere 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

– 12 37, 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 defenda nt]; People v. Foster (2010) 5 0 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 th e 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 adm ission 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 i n fact provided by Brooks, including that a t the start of the interview, the speaker provided Brooks’ s correct b irthdate and said that his step father had warned him to e xpect the call. R egarding Brooks’ s self

- serving claim that his memory of the incident was poor, Brook s admitted he recalled pulling glass from Greathouse’s window and crawlin g 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 ad mission 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 overst ating its strength. On rebuttal, the prosecutor stated that a fter expert Mendenhall m atched 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 record 10 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 object ion was overruled. Then t he 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 , t he 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 showin g that the
misconduct was harmless beyo nd 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 ( Men denhall) 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 preserve d this issue for appeal. ( People v. Bordelon (2008 ) 162 Cal.App. 4th 1311, 1323 ( Bordelo n ) .)11

dimensions

. Unlike the prosecutor in People v. Johnson (1981) 121 Cal.App. 3d 94, cited by appellant, here the prosec utor did not inject new material into the case, transform ing
her self into witness who could not be cross

- examined and undermining defendant’s right to confront witnesses. ( Id . at pp. 102

– 105.) As Brooks acknowled ges, 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 o f jury to certain factual matters is usually tested under the
Watson standard. ( Bordelon , supra, 162 Cal.App.4th at pp. 1323

– 13 24.) Th e testimony of the experts involved in lifting, scanning, and comparing the various fingerprints in
evidence was not unduly complex or highly technical ; thus, i t 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 .) M ore importantly
, the prosecutor’s attempt to “b olster” the fingerprint evidence was immaterial in light of Brooks’ s admissions to D etective 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 o n 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 t hat even minimal prejudice caused by t he prosecutor’s misstatements
was sufficient to render the trial fundamentally unfair. Accordingly , we affirm Brooks’ s convict ion.
II. Sentencing Phase

– Propriety of Restitution for Security Costs
Brooks also challenges the trial court’s decision to award direct victim r estitution for security

- related items , specifically, installation of a home alarm system, new door12

locks , and dea dbolts. He contends that restitution for these items is not authorized u nder
section 1202.4 (the resti tution statute)

— specifically, subdivision (f)(3) (J)

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

. 12

Ini tially, 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 Att orney 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 restitutio n]; 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 wa ive the victim’ s right to rec eive 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
defend ant’s conduct; or restitution as a condition of probation. ( People v. Giordano (2007) 42 Cal.4th 644, 651

– 652 ( Giordano ) .) This appeal c oncerns direct restitution, the rig ht 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
establish es specific, enumerated rights “[i]n order t o 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 convi cted wrongdoer in every case, regardless of the sentence or disposition imposed, in which a crime victim suffers a loss.” ( Id., subd s . (b) (13)(A), (B).) As these righ ts are not self

- executing, the L egislature was directed to adopt implementing legislation. ( Giordano, at p. 652 [discussion o n 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 provi des, 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.” ( I bi d .)14

Section 1202.4, s ubdivision (f) is followed by numbered parts (1)

– ( 3).
Sub di vision (f) (1 ) states that “[t]he defendant has a right to a hearing before a judge to
d ispute 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 r ights that third

par ties and the State Restitution F und 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 ever y 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 .) S ub division s (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. , subd s . (f)(3) (A)

– (L).) 13 Some of these provisions also include guidance for valuing a given loss . ( Id.
, subd s . (f)(3)(A ), (D), (E), (G), (I), (L).) And one p art , concerning relocation expenses to move away from the defendant
, imposes a verification requirement. ( Id. , subd. (f)(3)(I).)
S ubdivision (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 non economic loss arising from certain sex crimes committed against children. (§ 1202.4, subd. (f)(3)(F).)15

s ecti on 1202.4, subdivision (f), to permit an award of restitution for security improvements following a nonviolent felony because sub division (f)(3)(J) impliedly precludes such an award. We are thus presented with a pure question of law which we
review de nov o. ( In re Eric S. (2010) 183 Cal.App.4th 1560, 1564.) In any event, an
order which rests up on “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, sub division (f)(3)(J)’s provision specifically allows court

- ordered restitution for se curity 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 C ounty Dep artment of Social Services (2014) 223 Cal.App. 4th 72, 90 [defining expressio unius principle ] .) He contends that a contrary interpretation
would render sub division (f)(3)(J) supe rfluous, which is not permitted . Finally, he argues that security improvements are not necess ary 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 L eg islature’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 o f th e 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 secti on 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 sub mitted their supplemental brief s and which crea tes 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, ho wever, 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 fr aming 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 co ntext, 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 who le. [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 non violent felony.) By its own terms, this provision requires the court’s restitution order to be for an amount sufficient to reimburs e 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 intan gible 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] ; He nderson, 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 C ounty De partment 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 disce rnible 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 illu strative, 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 n ot specifi cally 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 o f the ballot pamphlet arguments bore directly on the statutory inte rpretation question at issue, this court found that the general purposes of the Act, as expressed by the ballot arguments in its favor, precluded the18

including the history and structure of the statute

— mitigate s 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
constit utes 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 C onstitution 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 co nvicted of the crimes c ausing 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. a rt. I, § 2 8,
subd s . (b)(13)(A), (B), ital ics 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, subdivision s (f) (1)

- (2) address matters more fairly characterized as procedural

— affecting the right to be heard
, modes o f victim testimony, modification of restitution orders, and rights of third parties. (See § 1202.4, subd s . (f)(1)

- (2 ) .) Similarly,
sub division (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 t o 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 v ictims.
Several of the se subparts s pecify how certain types of restitution must be calculated , and one imposes a requirement for third party verification of need, ostensibly to prevent
abuse

. ( Id.
, subd s . (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 well

established 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 dis tinguishable and unpe rsuasive. 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 fo llowing 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: gener al tenets of administrative law; the com mission’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 windf

all. 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, s ubdivision (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 s ection 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

. ( I bi d. ) 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 cou rt considered restitution for wages lost as a result of the victim’s voluntary attendance at trial

. Sub divisions (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 a s a witness or in assisting the police or prosecution ; they
do not mention voluntary court attendance

. (§ 1202.4, subd s . (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 lo ss 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, sub division (f)(3) (F), which requires restitution for a psychological harm resulting from certain sex crimes against children. Although, at the time, sub division (f)(3) (F) was expressly limited to “felo ny violations o f Section 288,”
the court affir med an order of direct restitution for a conviction under s ection 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 availability21

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

. ( McCarthy
, at p. 1108.) 17

These decisions support a libera l reading of subdivision (f) to allow restitution for
all harms ca used 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 hol ding 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.” ( Hen derson, 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 c onstitutional 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, sub division (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, preclude s a trial court from utilizing other , unspecified method s of calculation when appropriate ) has been expressly rejected by another court of appeal

. ( People v. Mearns , supra , 97 Cal.App.4th at

p p

. 501

– 502.)

17 Brook s 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 p p . 470

– 472 , rev. granted .)22

Accordingly , we hold that the statute permits re stitution for security costs incurred by the victim of a nonviolent felony , notwithstanding the more specific provisions in section 1202.4, sub division (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 fo r Respondent : Attorney s 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