2019 COA 62
Colo. Ct. App.2019Background
- Defendant Rafael Perez was convicted of second-degree assault with a deadly weapon for an attack at a 2012 wedding; sentenced Dec. 2, 2013, to five years in DOC, with restitution reserved for 90 days.
- The People moved for an extension to request restitution 94 days after conviction, citing complex medical bills, a lost-wages form received the prior day, and possible Crime Victim Compensation Board (CVCB) claims; Perez did not object and the court granted the extension.
- The People filed restitution materials May 12, 2014; after hearings and an in camera review of CVCB records, the court ordered restitution March 16, 2015: $17,060 to CVCB and $2,546 to the victim for lost wages.
- On appeal Perez challenged (1) awarding restitution more than 91 days after conviction without a showing of good cause or explicit findings, (2) reliance on but partial nondisclosure of confidential CVCB records, and (3) a related due process violation.
- The Court of Appeals affirmed, applying plain-error review for unpreserved claims and concluding the lack of an explicit finding of extenuating circumstances was error but not plainly harmful; it held the in camera review and disclosure of nonprivileged CVCB material satisfied statutory and constitutional requirements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of restitution (extension past 91 days) | People: extension was requested and granted; statute allows extension for good cause or extenuating circumstances | Perez: restitution ordered >91 days required a showing of good cause and explicit findings | Court: Because extension was requested with supporting reasons, absence of explicit good-cause finding was not reversible plain error; affirmation |
| Requirement to find "extenuating circumstances" to grant more time | People: requested more time and gave factual bases; court granted | Perez: trial court failed to make the statutorily required finding of extenuating circumstances | Court: statutory text requires such a finding; failure was error but not substantial under plain-error review given the People’s proffered reasons |
| Use and disclosure of CVCB records (confidentiality) | People: court did in camera review and provided all non-privileged material to defense | Perez: court relied on CVCB records but did not disclose all materials to him | Court: in camera review and disclosure of nonprivileged records complied with statute then in effect; privileged material need not be disclosed |
| Due process (access to materials and ability to contest causation) | People: defendant had notice and opportunity to contest; privilege may override discovery | Perez: nondisclosure of some CVCB records violated his right to contest restitution basis | Court: defendant got notice and opportunity; because privilege law did not clearly require disclosure, any error was not plain; no due process reversal |
Key Cases Cited
- People v. Rivera, 250 P.3d 1272 (Colo. App. 2010) (standard: trial court has broad discretion in restitution)
- People v. Harman, 97 P.3d 290 (Colo. App. 2004) (time limits for restitution are not jurisdictional)
- People v. Melendez, 102 P.3d 315 (Colo. 2004) (preservation: opportunity to have court make findings can suffice for preservation)
- United States v. Olano, 507 U.S. 725 (U.S. 1993) (forfeiture vs. waiver distinction)
- United States v. Battles, 745 F.3d 436 (10th Cir. 2014) (due process in restitution requires notice of factual basis and opportunity to contest)
- People v. Turley, 870 P.2d 498 (Colo. App. 1993) (privilege protections, e.g., physician-patient, are preserved absent statutory abrogation)
- People v. Kyles, 991 P.2d 810 (Colo. 1999) (circumstances where appellate courts may infer necessary trial-court findings)