Thе People of the State of Colorado, Petitioner-Appellee, In the Interest of A.V., Juvenile-Appellant.
No. 17CA0130
Colorado Court of Appeals
September 20, 2018
2018COA138
Opinion by JUDGE FREYRE; Terry and Navarro, JJ., concur
Weld County District Court Nos. 16JD123, 16JD124 & 16JD141; Honorable Randall C. Lococo, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
September 20, 2018
2018COA138
No. 17CA0130 People in Interеst of A.V. — Juvenile Court — Delinquency — Sentencing — Restitution
In this juvenile restitution case, a division of the court of appeals interprets the juvenile restitution statute,
The division further concludes that the juvenile waived his causation аrgument as to the dismissed arson count, and that the invoices submitted with a victim impact statement constituted sufficient evidence to support the restitution ordered for that victim.
The restitution orders are affirmed.
ORDERS AFFIRMED
Division VI
Opinion by JUDGE FREYRE
Terry and Navarro, JJ., concur
Announced September 20, 2018
Cynthia H. Coffman, Attorney General, Christine C. Brady, Senior Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee
Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Juvenile-Appellant
I. Background
¶ 2 In early 2016, a series of home and business burglaries occurred in Greeley. They all occurred in the same general location, at night, and several were accomplished by breaking a back door or window. The victim businesses included Boost Mobile Cellular, Blue Mug Coffee, Taste of Philly, Animal Attractions Pet Store, CG Vapors, and the Country Inn Restaurant. The Country Inn also sustained extensive fire damage in the burglary, and the fire destroyed most of the business.
¶ 3 Police apprehended A.V. and an accomplice fleeing from one of the home burglaries. The accomplice confessed and implicated A.V. When questioned, A.V. admitted being in the backyard of the home during the burglary and provided details of other burglaries in the same general area. In particular, he described the burglaries of Taste of Philly, Blue Mug Coffee, Animal Attractions, Country Inn, and CG Vapors. He also possessed a lizard from Animal Attractions and was wearing shoes whose prints matched shoeprints found at the other burglary scenes.
¶ 4 During a search of A.V.‘s home, police recovered a vape pen stolen from CG Vapors, two mobile phones stolen from Boost Mobile, a distinctive backpack and hat that matched those seen on surveillance video from Taste of Philly, and the lizard. Thereafter, the prosecution charged A.V. in five separate cases: (1) 16JD123 (Taste of Philly); (2) 16JD124 (Country Inn); (3) 16JD141 (home burglaries); (4) 16JD121 (Animal Attractions and CG Vapors); and (5) 16JD118 (Boost Mobile). A.V. pleaded guilty to one count in 16JD123, one count in 16JD124, and two counts in 16JD141 in exchange for the dismissal of the remaining counts and cases 16JD121 and 16JD118.
¶ 5 As part of this global disposition and as relevant here, A.V. pleaded guilty to second degree burglary of the Country Inn in exchange for the dismissal of the remaining counts, including first degree arson. In the written plea agreement, A.V. stipulated to a factual basis and agreed to pay restitution to the victims of the dismissed counts. Similarly, A.V. pleaded guilty to second degree burglary in the Taste of Philly case in exchange for the dismissal of the remaining counts and the dismissal of the Animal Attractions, CG Vapors, and Boost Mobile cases. He stipulated to a factual basis and agreed to pay restitution to the victims of the dismissed counts and cases in the plea agreement.1
¶ 6 The prosecution requested $682,600 in restitution for the Country Inn case and $8119.202 for the dismissed Animal Attractions case. Before the restitution hearing began, the prosecutor stated his understanding that A.V.‘s stipulation to a factual basis in each case (including the dismissed cases) included and constituted a stipulation to causation. Defense counsel responded, “I think that‘s the understanding of how things go here.” Consistent with this understanding, the court took judicial notice of the court files in each case, including the warrantless arrest affidavits.
¶ 7 During argument, A.V. conceded that he owed $470,874.47 (costs incurred to date)
¶ 8 In a detailed oral order, the juvenile court concluded that the testimony of Country Inn‘s owner, the insurer‘s attorney, and the admitted exhibits established restitution of $1000 to Country Inn‘s owner for the deductible and $681,600 to Country Inn‘s insurer for the repair work. The court found that A.V.‘s stipulation to a factual basis, coupled with the similarities between the Country Inn burglary and the other burglaries, showed that “[A.V.]‘s conduct more likely than not was the proximate cause of the damage and the claimed injuries at the Country Inn and that of their insurers.”
¶ 9 The juvenile court further found that the loss amounts submitted by Animal Attractions and its insurer in the victim impact statements sufficiently established the victims’ losses to order restitution in the amount requested. The court found that A.V.‘s conduct proximately caused the claimed losses based on the stipulated factual basis and the judicially noticed information in the affidavits for warrantless arrest.
II. A.V. Waived His Proximate Cause Challenge
¶ 10 A.V. contends that no facts exist to show that he caused the Country Inn fire and that the prosecution failed to meet its burden of proving proximate cause for these claimed losses. We conclude that under the unique facts of this case, A.V. waived his challenge to proximate cause by (1) stipulating to a factual basis in the plea agreement and at the providency hearing; (2) stipulating to pay restitution to the victims of the dismissed counts (in this case the arson count) in the plea agreement; (3) agreeing with the prosecutor before the restitution hearing that A.V.‘s stipulated factual bases in all cases included a stipulation to causation; and (4) asking the court to order $470,874.47 for losses related to the dismissed arson count.
A. Standard of Review
¶ 11 A.V. admits that he did not challenge proximate cause in the juvenile court, but asserts that sufficiency of the evidence may be raised for the first time on appeal. Relying on
¶ 12 The People respond that A.V. waived this alleged error. See People v. Rediger, 2018 CO 32, ¶ 39. For this argument, they rely on A.V.‘s stipulation to a factual basis in all cases and all counts, including dismissed cases and dismissed counts, his agreement to pay restitution to the victims of dismissed counts, and his request for the court to specifically order $470,874.47 in restitution for the dismissed arson count. For the reasons described below, we agree with the People.
B. Waiver Law
¶ 13 “When a party specifically removes issues from a trial court‘s consideration, the party has waived those issues and we may not review them on appeal.” People v. Geisick, 2016 COA 113, ¶ 16. A valid waiver requires “that the defendant intentionally relinquish[] a known right or privilege.” Rediger, ¶ 39; see also People v. Smith, 2018 CO 33, ¶ 17. This approach includes fundamental constitutional rights. Rediger, ¶ 39; People v. Stackhouse, 2015 CO 48, ¶ 8. We must “indulge every reasonable presumption against waiver,” Rediger, ¶ 39 (quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)). Therefore, to determine whether a party has removed an issue from our review, we must
C. Analysis
¶ 14 The record in this case reveals that when he entered his plea, A.V. knew he would be responsible for paying restitution to the victims named in the dismissed counts, and in particular the arson count. Both he and his attorney signed the written plea agreement in which he stipulated to a factual basis and agreed to pay restitution to the victims of the dismissed counts. See McCarty v. People, 874 P.2d 394, 400 (Colo. 1994) (“[W]here a defendant, as part of a plea agreement, consents to restitution, he cannot later disavow the restitution obligation.“); People v. Quinonez, 735 P.2d 159, 164 (Colo. 1987) (“Where a defendant agrees to make restitution at the time of entering a plea, he cannot later disavow the agreement on the basis that there was no showing that he had caused the victim‘s injury.“), superseded by statute on other grounds as stated in Dubois v. People, 211 P.3d 41, 44 (Colo. 2009).
¶ 15 We are not persuaded by A.V.‘s assertion that the stipulated facts related only to the burglary count, to which he pleaded guilty, and not to the dismissed counts. The language in the plea agreement does not contain this limitation, nor did the court‘s discussion with him. Indeed, during the providency hearing, the juvenile court said, “You understand you do not have to plead guilty to anything, you can say not guilty, I didn‘t do it, or I want my day in court?” and A.V. responded, “Yeah.” Then, before imposing sentence, the court reiterated that “[a]ny victims on dismissed counts in individual cases are included in the plea that was made in each of those cases, specifically on the [Country Inn] case, dismissed counts 2 through 4. Victims identified there are included in his plea to Count 1.” Neither A.V. nor his attorney expressed any disagreement with this statement or offered to correct it. See People v. DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App. 2001) (explaining that a defendant must request clarification from the court rather than assert on appeal that he or she was confused at the providency hearing); cf. People v. Randolph, 852 P.2d 1282, 1283-84 (Colo. App. 1992) (Because the defendant was convicted of theft by receiving, “was not charged with any offense relating to the other property,” and the “record is devoid of evidence establishing defendant‘s involvement
¶ 16 Still, under our waiver jurisprudence, simply stipulating to a factual basis may be insufficient to waive causation where the issue of causation is not specifically identified or discussed. Allgier, ¶ 10 (proposing six possible explanations for counsel‘s statement of “no objection“). So we look further. The record reveals that the prosecutor provided timely notice of the restitution amounts requested, and A.V. does not claim otherwise. Indeed, because of the large amount requested in the Country Inn case, defense counsel told the court it was unlikely that she and the prosecutor could reach a resolution without a restitution hearing.
¶ 17 Importantly, at the hearing and before presenting any evidence, the prosecutor clarified his understanding that A.V.‘s stipulation to a factual basis included a stipulation to causation. In our view, this clarification and defense counsel‘s affirmative response that this was also her understanding constituted more than general acquiescence or a failure to object — it established A.V.‘s counsel‘s knowledge that causation was an issue that was not being contested (or proved by the prosecution) at the restitution hearing. See Kessler, ¶ 37 (finding that defense counsel‘s concession that evidence was admissible waived the ability to contest admissibility on appeal). We can think of no other reason for the prosecutor to raise this issue before the hearing except to clarify the scope of his burden of proof at the hearing.
¶ 18 Finally, any possible question that causation remained an issue was dispelled by defense counsel‘s concession (i.e., intentional relinquishment) during argument that A.V. owed $470,874.47 for the arson-related damages and her specific request that the court order restitution in this amount. Counsel never argued that A.V. had not caused the fire and did not otherwise hedge her restitution request based on an objection to paying any restitution. Acсordingly, in light of all the circumstances, we conclude that A.V. waived any challenge to causation and that we have nothing to review in that regard.
III. Estimated Repair Costs are Part of Restitution
¶ 19 A.V. next contends that the juvenile court erroneously ordered him to pay the estimated repair costs to Country Inn‘s insurer. He argues that this amount is speculative and that he should only be obligated to pay for expenses incurred to date. We disagree.
A. Standard of Review and Applicable Law
¶ 20 We review a trial court‘s restitution order for an abuse of discretion. People v. Henry, 2018 COA 48M, ¶ 12. A court abuses its discretion when it misconstrues or misapplies the law, or its decision is manifestly arbitrary, unreasonable, or unfair. Id. We will not disturb the court‘s determination of restitution if it is supported by the record. Id.
¶ 21 We review and interpret statutes de novo. People v. Padilla-Lopez, 2012 CO 49, ¶ 7; People v. McLain, 2016 COA 74, ¶ 9. When construing statutes, we aim to ascertain and give effect to the intent of the General Assembly. Padilla-Lopez, ¶ 7. We accord words and phrases their plain and ordinary meanings. Id. “Where the language is clear, it is not necessary to resort to other tools of statutory construction.” Goodman v. Heritage Builders, Inc., 2017 CO 13, ¶ 17.
¶ 22 Restitution in juvenile cases is governed by the adult restitution statute. People in Interest of D.I., 2015 COA 136, ¶ 9. “Restitution” is “any pecuniary loss suffered by a victim,” including but not limited to certain enumerated types of losses “and other losses or injuries proximately caused by an offender‘s conduct and that can be reasonably calculated and recompensed in money.”
¶ 23 Offenders are required to pay “full restitution” to victims harmed by their misconduct.
¶ 24 A court bases its restitution order on information provided by the prosecuting attorney.
B. Analysis
¶ 25 At the hearing, Country Inn‘s owner described his insurance policy, with its $1000 deductible, and his belief that the policy limit for repairs was $410,000. Yet, the insurer‘s attorney and the uncontested documentary evidence showed that the insurer had paid $470,874.47 in repair expenses as of the date of the hearing. The attorney testified that the insurer had obtained an estimate of $683,000 to perform all required repair work and that the insurer intended to cover repair costs up to that estimated amount.
¶ 26 When challenged on the accuracy of the estimate, the attorney admitted that it wаs based on industry standards and that actual costs could be different. He described this difference as a “cost of doing business as a construction company” and said any differences would be absorbed by the construction company and not the insured.
¶ 27 During argument, A.V.‘s counsel asked the court to order restitution only in the amount paid to date. In particular, she argued that the balance to complete the repairs existed only as a number in an exhibit, that the insurer‘s attorney “had no idea what [the] policy limits were,” “couldn‘t testify to what amount out of what had been paid,” and did not know “whether the [estimate] was going to be the exact amount.” She reasoned that the inaccuracy of the estimate would create a windfall for the insurance company.
¶ 28 Relying on the owner‘s testimony, the attorney‘s testimony, and two exhibits, the juvenile court found that, without considering depreciation, the total cost of repairing Country Inn would be in excess of $800,000. But, considering the depreciation, the insurer agreed to pay $687,365 and had $683,000 in reserves. The court rejected A.V.‘s inaccuracy argument and found that estimates “are permitted in restitution claims and may be considered by [the court] fоr purposes of restitution.” Thereafter, it ordered A.V. to pay $681,6004 to the insurer and $1000 to the owner.
¶ 29 We discern no abuse of discretion in the court‘s order because the record supports it. As the fact finder, the court had the authority to determine the weight of the evidence, the witnesses’ credibility, and ultimately the accuracy of the estimate. See People v. Leonard, 167 P.3d 178, 182 (Colo. App. 2007); cf. People v. Henson, 2013 COA 36, ¶¶ 18-19 (evidence, including a victim‘s
testimony, that supported lost wages was “somewhat thin and unclear” but sufficient to support lost wage finding). Moreover, the court correctly found that it had the legal authority to consider estimated costs. See
¶ 30 Once the prosecution presented competent evidence of the estimated expenses, A.V. could have rebutted the estimate by offering evidence of its inaccuracy. People v. Miller, 830 P.2d 1092, 1094 (Colo. App. 1991) (“[I]f the defendant fails to show that the information is inaсcurate or untrue, the trial court is entitled to rely upon the report or statement as submitted.“). Because he did not, the juvenile court properly relied on the evidence presented and imposed restitution for the total amount of the repairs. Therefore, we affirm its restitution order with respect to the Country Inn losses.
IV. Sufficient Evidence Supports the Animal Attractions Order
¶ 31 A.V. next contends that the invoices submitted with Animal Attractions’ victim impact statement were insufficient to establish restitution and that the prosecution was required to present witness testimony to satisfy its burden. We are not pеrsuaded.
A. Standard of Review and Law
¶ 32 A.V. preserved this issue when he objected to the court‘s order absent witness testimony. We review sufficiency challenges de novo. People v. Barbe, 2018 COA 123, ¶ 25; People v. Ortiz, 2016 COA 58, ¶ 26. We determine “whether the evidence is sufficient in both quality and quantity to satisfy the applicable burden of proof.” Ortiz, ¶ 26.
¶ 33 To meet its burden of proof, a prosecutor may rely solely on victim impact statements. See
B. Analysis
¶ 34 Before the restitution hearing, Animal Attractions submitted a victim impact statement requesting $2564.42 for its losses not covered by insurance. Its insurer requested $2938.74 for the money it had paid out. Attached to the statement were sales receipts documenting the money stolen from the safe and the damage to the back door, as well as a statement from its insurer documenting the costs related to lost terrariums and reptiles, and damage to the security cameras and monitor, safe, pet supplies, register, and clean up.
¶ 35 Contrary to A.V.‘s argument, we are not persuaded that People v. Rivera, 250 P.3d 1272 (Colo. App. 2010), where a division of this court affirmed a restitution order based on documents and a witness statement at sentencing, required the juvenile court to receive testimony before ordering restitution here. First, nothing in Rivera or in the plain language of the restitution statute requires the prosecution to present evidence in the form of testimоny.
V. No Specific Reasonableness Findings Are Required
¶ 36 Relying on
¶ 37 The current juvenile restitution statute provides as follows:
(1) If the court finds that a juvenile who . . . is adjudicated a juvenile delinquent has damaged the personal or real property of a victim, that the victim‘s personal property has been lost, or that personal injury has been caused to a victim as a result of the juvenile‘s delinquent act, the court, in addition to any other sentence or commitment that it may impose on the juvenile pursuant to
section 19-2-907 , shall enter a sentencing order requiring the juvenile to make restitution as required byarticle 18.5 of title 16 andpart 6 of article 1.3 of title 18 , C.R.S.(2) Restitution shall be ordered to be paid in a reasonable manner, as determined by the court and in accordance with
article 18.5 of title 16 andpart 6 of article 1.3 of title 18 , C.R.S.
¶ 38 In A.R.M., the juvenile argued that the statute required the court to consider his ability to pay restitution, and that since he was incarcerated and unable to pay anything, the order should be vacated. 832 P.2d at 1096. A division of this court disagreed, noting that the juvenile system has a strong interest in “encouraging the juvenile to be responsible for the damage he has caused,” and so “wherever possible, restitution should be required.” Id. It held that a court could order rеstitution for an incarcerated juvenile. Id. However, it further held that,
at the time restitution is ordered, the court must make findings of the reasonableness of the restitution amount and the reasonableness of the repayment terms. In considering whether restitution would cause serious hardship or injustice to the juvenile, the court may consider family circumstances as well as the juvenile‘s potential ability to pay after his release from incarceration.
Id.
¶ 39 While we have no disagreement with the division‘s logical interpretation of the juvenile restitution statute in A.R.M., we are precluded from following it because the Genеral Assembly has amended the statute twice to remove the language on which A.R.M. relied. The version of the statute interpreted by A.R.M. provided that
[i]f the court finds that a juvenile who receives a deferral of adjudication or who is adjudicated a juvenile delinquent has damaged the personal or real property of a victim, that the victim‘s personal property has been lost, or that personal injury has been caused to a victim as a result of the juvenile‘s delinquent act, the court shall
enter a sentencing order requiring the juvenile to make restitution for actual damages done to persons or property; except that the сourt shall not order restitution if it finds that monetary payment or payment in kind would cause serious hardship or injustice to the juvenile. Such order shall require payment of insurers and other persons or entities succeeding to the rights of the victim through subrogation or otherwise, if appropriate. Restitution shall be ordered in a reasonable amount to be paid in a reasonable manner, as determined by the court.
¶ 40 In 1996, the General Assembly relocated and amended the statute, removing the “in a reasonable amount” language. See Ch. 288, sec. 9, § 19-2-918, 1996 Colo. Sess. Laws 1782. Four years later, it amended the statute again and removеd the exception language that precluded restitution if it “would cause serious hardship or injustice to the juvenile.” Ch. 232, sec. 2, § 19-2-918, 2000 Colo. Sess. Laws 1041-42.
¶ 41 We conclude that these deletions reflect the General Assembly‘s intent to remove ability to pay and hardship from a juvenile court‘s consideration when ordering restitution. McLain, ¶ 9 (when statutory language is clear we look no further). In doing so, we recognize the harsh result of our interpretation in this case, and its arguable inconsistency with other legislative enactments in recent years aimed at diminishing the punitive aspects and increasing the rehabilitativе aspects of juvenile sentencing. See, e.g.,
VI. Conclusion
¶ 42 The orders of restitution are affirmed.
JUDGE TERRY and JUDGE NAVARRO concur.