People v. Borquez

рarties provided report between by section 14-10-127. rule is made absolute. State PEOPLE

Colorado, Petitioner,

v. BORQUEZ, Respondent.

Christine

No. 90SC630. Colorado,

Supreme Court Banc.

En 9, 1991.

July Norton, Gen., Raymond T. Atty. A.

Gale Gen., Atty. Timo- Deputy Slaughter, Chief Gen., Daniel thy Tymkovich, Sol. John M. Gen., Mark Deputy Atty. Robert Dailey, Gen., Russell, Atty. Wendy J. First Asst. Section, Ritz, Gen., Appellate Atty. Asst. Denver, petitioner. Vela, State Public Defend-

David F. Colo. Heher, er, Deputy C. State Public Andrew Defender, Denver, respondent. delivered the Chief Justice ROVIRA Opinion of the Court. granted сertiorari to review the

We Bor appeals court of decision holding (Colo.App.1990), P.2d 14 quez, 801 trial court exceeded its that the ordering respondent Christine Bor ‍‌‌‌‌‌‌‌‌​​​‌‌​​‌​‌‌​​​‌​‌‌‌​‌​‌‌‌‌‌​​​‌​‌​​‌​‌​‌‍pay restitution for thefts that were plea. disagree and not the basis of her accordingly reverse. working as a cashier had been (“Target”) May since

at a bring up we’ll have to open, a customer 1986. On December sentencing prоbably items in a let the register several Court came to her placed total- Borquez cart. items shopping Court resolve that.” up bags, rang ling shopping but $628.15 hearing, court sentencing At the the trial as sale worth $14.77. the transaction a three imposed years a sentence of inci- security guard watching the of payment tion and ordered restitution the dent, the customer left with and when $2,370.70 Target of to as а the amount guard her and purchases, the followed probation. of counsel condition Defense into the store. brought her back not objected, arguing Borquez that should being about the incident questioned the pay any be to restitution on Borquez admitted that personnel, not uncharged they offenses were of not the customer for all she had part Tar- of the and that several occа- goods, the and that on damage had incurred no as a result in a given away had merchandise sions she Borquez’s charged on conduct December ex- provided similar manner. She had been 1986 because the merchandise items, approximately list of worth tensive recovered. $2,900, given away she in ex- that had opin- in a appeals, The court divided money receiving those the change fоr court, ion;1 holding that it reversed the trial goods. Borquez the customer were ordering its restitu- exceeded police the brought to station arrested damages that were not the tion for rights, they read their where did to plea; Borquez the that not consent gave Both they both waived. statements thefts; pay uncharged the restitution for in the theft. as their involvement to Target of the that had recoverеd all Borquez was referred the Adams taken December merchandise that was on Pro- Attorney’s Diversion County District thus incurred no loss. condition, agreed she gram. As a accordingly disagree and reverse. the notified restitution seeking Program it that Diversion II $2,370.70 upon list restitution held the trial appeals court of that Borquez provided and her state- that had ordering jurisdiction in court exceeded its $2,900 over worth mеnt that she had stolen Borquez did for thefts to which restitution Borquez a coun- of merchandise. informed ruling is guilty. This specifically plead not Program she selor with Diversion plain language in accordance with the not figure, agree did with the legisla- the intent of the of the statute and program. from the elected to withdraw ture. charged with one count 16-11-204.5(1), 8A C.R.S. theft, felony, class provides that: valued for merchandise every As a condition of $10,000. more, less but than $300 bation, provide shall court plea agreement, Borquez Pursuant restitution to the victim defendant make plead guilty to an added count his conduct or to member theft, felony. At the attempted a class the actual immediate entered, victim’s plea was defense counsel time the damages which were sustained. attorney has district stated that “the shall ordered filings be no other agreed that there will be probation. The amount Finally, of this series events. based out shall be on the completely of such restitution the issue dissent, majority opinion permits Judge Ney the defendant stated that 1. In responsibility compensate vic- her avoid reading compels the of § “a fair may indisputably her. the loss attributable to ordered to in tim for conclusion Assembly loss the suffers restitution for the victim that the General I cannot conceive against victim. of crimes same a series Indeed, such a result.” intended contrary interpretation implicit in appeals relied on The court of (Colo.1987), ability the defen- 735 P.2d 159 granted proba- defendant’s obli- a defendant pay, proposition

dant to and the dependents and to gations his obligations. alleged persons injured by

meet other the conduct Quino- as the In basis of the conviction. 16-11-204.5(4) defines “victim” nez, rеquired the trial court had that resti- as: as used the statute paid particular person tution be ag- immediately directly party the alleged injuries whose were to have result- who grieved by a defendant is convicted charged ed from conduct the defendant’s granted act and who is of a criminal person injuries additionally to a whose as well as others who have probation, alleged werе not to have resulted from the because of a contractual suffered losses charged defendant’s conduct. We reversed party relationship such or because restitution, the trial hold- court’s award 14-6-110, liability under section C.R.S. ing charged offense does re- “[i]f than one If there is more quire proof as an element of the fact of immediately directly aggrieved party injury person entity, the particular to a or compensated for his loss. shall first be prohibit statute would the trial court from give effect to a stat The court must ordering, as a condition of a sentence of according plain ordinary ute probation, anyone restitution to other than meaning employed in accord of the words particular entity person inju- whose See, legislature. ance the intent charging alleged ries were in the document Park, 412 e.g., Estes 786 P.2d Kane v. to have resulted from the defendant’s con- (Colo.1990). Quinonez, duct.” 735 P.2d at 163. requires Section 16-11-204.5 trial Quinonez, charged In re- the offense impose mandatory restitution courts to proof quired as an element of the fact of party im payments for the benefit of the injury particular person; thus the trial aggrieved by mediately directly a de improрerly required that court fendant is convicted of a criminal act. who paid person injuries not to a whose were payments are on the charging document to have by the victim. from the defendant’s resulted “Payment of restitution is authorized Here, duct. the trial court conduct, as to the victim of a defendant’s inju- paid restitution be whose pecuniary damage for the actual alleged to have resulted from the ries were the victim sustained as the direct result of defendant’s conduct. The theft v. Dead- defendant’s conduct.” applicable Borquez requires statute (Colo.1984). 683 P.2d 774 charging name of the victim in the doc- case, 2 the trial Under the facts of particular ument and was the enti- impose court was restitution as ty injuries charg- whose probation. Target clear- ing document to have ‍‌‌‌‌‌‌‌‌​​​‌‌​​‌​‌‌​​​‌​‌‌‌​‌​‌‌‌‌‌​​​‌​‌​​‌​‌​‌‍rеsulted from Bor- directly ag- ly “party immediately Thus, quez’s upon the grieved by who was convicted a defendant” Quinonez, holding in an award of restitu- granted who was of a criminal act and improper. tion to was not directly re- probation. Borquez’s actions “actual, pecuniary damages” Additionally, the court sulted acknowledged ruling in Target. Borquez Cumhuriyet her crimi- reiterated the resulting pecuniary Peoрle, 615 P.2d nal conduct and the Cold. by Target in several written that a criminal conviction estab loss incurred tacitly lishing culpability statements and defense counsel ad- defendant’s required in plea agreement impose mitted that the was based order to restitution. upon a series of thefts. 163. “The 18-4-401(6), (1986). 2. See C.R.S. § 8B ly charged enough to an or conduct forms a basis report However, plea agreement. if the defendant for such restitution conclude question pre- defendant consented opportunity allow the to fix hearing.” restitution based report probation at the Colo, uncharged Cumhuriyet, 200 P.2d at judgment I concur in

726. This is one such case where the of the court. report supports the order for resti- bation Included in re- tution. port was the extensive list of stolen items I. compiled, signed and a statement a security officer indicating, willing “I by her am Target Stores, for Inc. observed Christine got get [Target]. I or what tried to Borquez, checking Target, a cashier for I don’t think I have to for But should bagging and merchandise for a customer everyone Target elses mistakes as [sic] ringing up without numerous items on the get Clearly, particu- me this

trying to to.” register. ap- cash The customer was report probation lar established store, prehended upon leaving all and re-, actual, pecuniary losses as a Borquez items taken were recovered. of suit security questioned by the officer. She confessed to the incident and stated of

The trial court’s award restitu engaged prior had in similar conduct on tion was accordance with the intent of during employment occasions her as a Tar- legislature enаcting section 16-11- get May 1986. Borquez cashier since 204.5(4). pro Restitution as supplied security officer of with a list is intended to ‍‌‌‌‌‌‌‌‌​​​‌‌​​‌​‌‌​​​‌​‌‌‌​‌​‌‌‌‌‌​​​‌​‌​​‌​‌​‌‍make the victim the bation additional merchandise taken. This formed whole, practi criminal offense to the extent Target’s the basis for estimate of $2370.70 cable, profit and to take out of crime. in stolen merchandise. Milne, (Colo. People v. 1984); Cumhuriyet, 200 Colo. Borquez placed Adams Coun- appropriate

P.2d at 726. Restitution ty Program (ADP) Adult Diversion on con- loss incurred a while Bor- dition that she make restitution to profited from the incident. Target later ADP officials When informed that the amount of restitution claimed was Accordingly, appeals judg- the court of $2370.70, Borquez objected to the amount reversed court’s ment is and the trial and from ADP. withdrew probation as a of restitution conditiоn reinstated. Borquez then was with theft $10,000

items valued between $300 on on De- based the incident occurred LOHR, J., part concurs in and dissents (Count I). cember As a result of part, KIRSHBAUM plea agreement, charge additional MULLARKEY, JJ., join in the attempted added, theft was concurrence dissent. (Count II). to the same incident Pursuant concurring part LOHR Justice pled agreement, Borquez guilty to Count part: dissenting in II, and I The district Count was dismissed. disаgree attorney I with the conclusion of the file additional pursu- that an order of restitution based on the series of events to 16-11-204.5(1), plea section 8A The ant C.R.S. which had admitted. agreement issue as condition of of restitution specifical- open.1 on conduct than that During hearing, prosecutor agreed. providency In the defense coun- The defendant’s state- presentence investigаtion stated as an ment to the sel element of attached completely open, report, willing “I "the issue of restitution is left she said that am for bring up got [Target]. we’ll have to to the what I But I which bly Court or tried sentencing everyone Court don’t have to and let the resolve that.” think I should added.) sentencing hearing, (Emphasis At the defense coun- The section further de- party immediately must be fines as argued sel con- “victim” “the directly aggrieved by a defendant who fined to the incident of December is convicted a criminal act and who is merchandise was recovered. as to which all granted probation_” Section 16-11- argument accept this The trial court did not 204.5(4), (1986) 8A C.R.S. in the amount ordered restitution reasoned the loss The court $2370.70. majority appears to hold that defendant’s part occurred of thе as language authorizes the trial court to order regardless specification one restitution for all other incidents of loss Court charge. date in Colorado party caused the defendant opinion, in a divided Appeals reversed charged, harmed the criminal conduct restitution could not be or- cluding that regardless of whether those incidents were for “other thefts to which the defen- dered contemplated part as of the i.e., plead guilty,” thefts of dant did not See maj. op. at In- 384-385.2 allegedly stead, in incidents oth- merchandise lost the incidents need be uncovered investigation er than the December incident that and referred to Id. at 384. charge probation report. formed the of the criminal which the defendant was convicted. Peo- disagree comports plаin that this ple Borquez, 14, v. (Colo.App. meaning 801 P.2d 15 section or with 1990). prior our cases. People Quinonez, v.

In 735 P.2d 159 (Colo.1987), by majority, relied on we II. “[ajbsent consent, stated that a defendant legislatively Probation is created sen granted probation upon conviction an alternative; therefore, tencing any condi may required offense be to restitution imposed tions as terms of ‍‌‌‌‌‌‌‌‌​​​‌‌​​‌​‌‌​​​‌​‌‌‌​‌​‌‌‌‌‌​​​‌​‌​​‌​‌​‌‍must by the conduct pеrsons injured to People v. Dead be authorized statute. alleged as the basis the conviction.” 763, (Colo.1984); Cum 683 P.2d 772 Id. at 162 We noted that huriyet People, 466, v. 200 Colo. People, Cumhuriyet in 200 Colo. (1980). 724 expressly 615 P.2d 724 “[w]e 16-11-204.5(1) provides open question showing ‘the short [what] every sentence to of a criminal conviction [a]s [is] bation, provide culpability the court shall the defendant’s establish for the ” victim injury may defendant make rеstitution to the imposed.’ before restitution be Quinonez, his conduct or to a member of the Cum (quoting 735 P.2d at 163 huriyet, 726) victim’s immediate for the actual 200 Colo. at 615 P.2d at Quinonez)3 (brackets which were sustained. in We then held shall agreement restitution be ordered the court that absent an at the time a entered, probation. as a condition of The amount the defendant cannot injury of such restitution shall be based on the ordered to restitution for result actual, pеcuniary damages ing charges from conduct in Id. at 164. plead guilty. the victim .... she did trying elses mistakes as to me on which the restitution [sic] was based did not stem Particularly light to.” statement, in of the defendant’s charged from the interpretation reasonable open by "the issue of restitution” left Cumhuriyet 3. We did note in that “[t]he agreement is that it concerned the amount of report may enough tion an order restitution, not thе court's to order for such restitution if the defendant is restitution. opportunity question pre-sentence report Colo, probation hearing.” at the at “[h]ere, Although states that P.2d at 726. This statement was not reiterated paid trial court that restitution be Cumhuriyet Quinonez. in injuries our discussion of in whose to have re- conduct," holding implicitly rejects Quinonez sulted from the defendant’s in this 384-385, maj. op. suggestion Cumhuriyet. it is clear that the losses in charge in the or con- Quinonez not included injury to but involved The facts plea agree- for the templated The de- as a basis of another. and death one victim charge form a basis for may of acces- ment nevertheless pleaded guilty to fendant restitution, the victim I degree murder of dissent. sory to first was not died. The defendant who III. vic- concerning injured any crime tim, agree and did not inter- Despite my disagreement with the Nevertheless, sen- injured victim. 16-11-204.5(1) by the pretation section obligation tencing imposed such an that, majority, agree under the facts this probation. We held granting when case, the trial court’s order of $2370.70 by the unauthorized version order to be recognized is authorized. We In then in effect.4 section 16-11-204.5 Quinonez part of a that as result, ap- quoted with reaching this we a defendant probation, a court decision in v. Dead- proval from our plea agreement to fulfill a (Colo.1984),construing mond, 683 P.2d 763 restitution to victims of to make 16-11-204.5, in which we stated section charges alleged in criminal conduct pursuant dismissed have been language unequivocally states “[t]he P.2d 163-64. legislative intent to authorize in- charges dismissed only to the direct victims payments other than the injury to a victim volved entity рerson or criminal conduct—the charge to which the victim named resulted the con- injuries whose principle ap- pled guilty. The alleged as the duct force, however, equal charges plies with proceedings against the defendant.” involving the same potential (quoting P.2d at 162 Dead on criminal conduct but based 774) 683 P.2d at plead guilty. the defendant did Quinonez Although were concerned we plea agree- indicates that the The record a court can order the issue whether contemplated in this case ment than a named by Borquez thefts the entire series of for offense, our conclusion victim ‍‌‌‌‌‌‌‌‌​​​‌‌​​‌​‌‌​​​‌​‌‌‌​‌​‌‌‌‌‌​​​‌​‌​​‌​‌​‌‍of a by being confronted a unauthorized was that such an order is following the at- security officer of section 16-11- on our construction December Bor- tempted theft on of “the to victims 204.5 tо limit restitution of thefts and quez to a series admitted for the convic as the basis a list of items tak- supplied the store with Quinonez, 735 P.2d at 162. tion.” by Target calcu- used en. That list was convicted of acces- Just as the store. Bor- loss to late the $2370.70 victim, Bor- particular of a sory to murder ADP due to her dis- quez withdrew attempted theft on a was convicted claimed agreement with the amount key is that the defen- particular date. The led That Target in restitution. withdrawal only for the crimi- held accountable dant be charges. The filing formal notice as nal act of which she only included the December Deadmond, 683 charge. basis for the See the merchan- incident for which all (the policy of the General As- P.2d at 774 dise was returned. Section sembly payment to limit the of restitu- “is “actual, pe- for authorizes restitution probationers to the direct by adult damages sustained the victim.” cuniary of the conduct of the victims 5, 1986, incident resulted in The December the crimi- as the basis for damages. Despite no question.”). prosecution nal fact, Borquez entered into a this obvious resti- agreement that left the award of that the concludes To the extent 1, supra. The investiga- open. tution note that is See that conduct 16-11-204.5, (1983 prеsently Supp.). in effect are not relevant to C.R.S. The dif- one § and the issue now before us. ferences between that earlier statute the list for restitution possible basis disputed in her Borquez and

supplied from ADP.

withdrawal con- would circumstances these Under Counsel, Donnelly, Disciplinary taken Linda for items clude Counsel, Disciplinary Coyle, Asst. employ- James C. eight month throughout Denver, complainant. though not contemplated, even ment was amount, by settled Tatum, pro se. E. James open, issue leave that Having agreed to trial now assert Borquez cannot delivered KIRSHBAUM Justice full amount awarding the court erred Opinion of the Court. claimed. filed with complaint formal MULLARKEY, JJ., Com- Supreme Court Grievance Colorado KIRSHBAUM 2, 1990, charging the re- May mittee on and dissent. concurrence join in this Tatum, profession- spondent, E. James rеp- during course of his al misconduct in a civil of several defendants resentation 2 in No. filed in Water Division action Pueblo, hearing board Colorado. 14, 1990; hearing ducted adduced, as there considered the evidence State The PEOPLE respondent arguments well as Colorado, Complainant, counsel; and disciplinary the assistant together with a findings of fact entered TATUM, E. re- respondent James recommendation Attorney-Respondent. his miscon- a letter of admonition ceive adopted the find- hearing panel duct. No. 91SA107. board, but recom- hearing ings of the Colorado, Supreme Court to- public censure imposition of mended En Banc. costs. the assessment of gether with public cen- imposition of a agree that July 1991. circumstances of sure is warranted this case. prac- admitted to rеspondent in this state on

tice of law subject Accordingly, he is court and its Grievance jurisdiction of this hearing made the board Committee. fact, findings have not following 2, 1989, the August disputed. On been respondent’s clients were served with prelim- summons, complaint and motion for ex inary injunction the case Parsons, No. Engineer v. rel. State case), the Parsons (hereinafter 89CW33 Divi- pending Water which case was for the 2 of the District Court sion No. District of Colorado. Tenth Judicial in- preliminary hearing on the motion scheduled to commence junction was noti- August and the clients were

Case Details

Case Name: People v. Borquez

Court Name: Supreme Court of Colorado

Date Published: Jul 9, 1991

Citation: 814 P.2d 382

Docket Number: 90SC630

Court Abbreviation: Colo.