The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Arnold Roman MARTINEZ, Defendant-Appellant.
Court of Appeals No. 19CA1308
Colorado Court of Appeals, Division III.
March 3, 2022
Rehearing Denied March 24, 2022
2022 COA 28, 511 P.3d 739
Opinion by JUDGE LIPINSKY
2022 COA 28
Philip J. Weiser, Attorney General, John T. Lee, First Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Jacob B. McMahon, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Opinion by JUDGE LIPINSKY
¶ 1 The Colorado restitution statutes require an offender to “mak[e] the victim whole to the extent practicable.” People v. Courtney, 868 P.2d 1126, 1128 (Colo. App. 1993). Offenders must “make full restitution to those harmed by their misconduct.”
¶ 2 Today we decide that the 2000 amendments to the restitution statutes did not alter the prior case law allowing insurance companies that indemnify their policyholders for losses proximately caused by felonies, misdemeanors, or other offenses specified in the restitution statutes to obtain restitution from offenders.
¶ 3 Arnold Roman Martinez appeals the district court‘s order granting the prosecution‘s motion for restitution. We affirm.
I. Background Facts
¶ 4 The district court entered the restitution order to compensate the victim and his insurer for damage to the victim‘s car resulting from his collision with Martinez while Martinez was attempting to abscond with the victim‘s $6,000 bicycle. Officer Ryan Scheevel documented the facts of the attempted bicycle theft in his report.
¶ 5 The victim and his wife left their garage door open after returning home. When the victim‘s wife heard a noise in the garage, she looked into the garage. She screamed to her husband that a man was in the garage, stealing the bicycle.
¶ 6 The victim ran outside and saw a man, later identified as Martinez, riding off on the bicycle. The victim got into his car and chased Martinez. Another individual saw the victim pursuing Martinez and called 911.
¶ 7 The victim caught up with Martinez and pulled in front of him “in an attempt to get [him] to stop.” Rather than stopping, however, Martinez “ran directly into the front passenger side fender” of the victim‘s car. Martinez got off the bicycle and walked up the street. He then got into another car and drove away. The victim recovered the bicycle, which was undamaged. But the collision resulted in damage to the victim‘s car.
¶ 8 The prosecution charged Martinez with second degree burglary, criminal mischief, and violation of bail bond conditions. Martinez entered into a global plea agreement in which he pleaded guilty to offenses in another case and the prosecutor dropped the charges arising from the theft of the victim‘s bicycle. Under the plea agreement, Martinez agreed to pay restitution for damages caused by the theft.
¶ 9 The prosecutor filed a motion for restitution in the amount of $2,393.84, which represented the cost of repairing the victim‘s car. Martinez objected, arguing that his actions were not the proximate cause of the damage to the car.
¶ 10 The district court conducted a hearing on the restitution motion. At the hearing, Officer Scheevel testified
¶ 11 At the conclusion of the hearing, the court ordered Martinez to pay the requested amount of restitution — $500.00 to the victim for his insurance deductible and the remaining $1,893.84 to the victim‘s insurer, GEICO, which had covered the victim‘s loss.
II. Discussion
¶ 12 Martinez contends that the district court erred by (1) determining that he was the proximate cause of the damage to the victim‘s car; and (2) awarding restitution to GEICO. We disagree with both contentions.
A. Martinez‘s Theft Was the Proximate Cause of the Damage to the Victim‘s Car
1. Standard of Review
¶ 13 Although the parties agree that the prosecution bears the burden of proving the amount of restitution and causation by a preponderance of the evidence, see People v. Henry, 2018 COA 48M, ¶ 15, 439 P.3d 33, 36, they disagree on the standard of appellate review.
¶ 14 The trial court‘s interpretation of the statutory reference to “losses ... proximately caused by [the] offender‘s conduct,”
2. The Meaning of “Proximate Cause” in the Restitution Statutes
¶ 15 “Restitution must be considered as a part of every criminal conviction.” People v. Sosa, 2019 COA 182, ¶ 14, 487 P.3d 1203, 1206. In light of the statutory reference to “proximate[ ] cause,”
¶ 16 In contrast, “unlawful conduct that is broken by an independent intervening cause cannot be the proximate cause of an injury.” People v. Clay, 74 P.3d 473, 475 (Colo. App. 2003). “An independent intervening cause ‘is an act by an independent person or entity that destroys the causal connection between the defendant‘s act and the victim‘s injury and, thereby becomes the cause of the victim‘s injury.‘” Id. (quoting People v. Saavedra-Rodriguez, 971 P.2d 223, 225-26 (Colo. 1998) ). “To qualify as an independent intervening cause, an event must be unforeseeable and one in which the accused does not participate.” Id.
¶ 17 A victim‘s negligence may serve as an independent intervening cause if it rises to the level of gross negligence. “Simple negligence is foreseeable and does not constitute an independent intervening cause; gross negligence is not foreseeable and thus may serve as an independent intervening cause.” People v. Sieck, 2014 COA 23, ¶ 9, 351 P.3d 502, 504. Grossly negligent, and therefore unforeseeable, conduct is “abnormal human behavior that constitutes ‘an extreme departure from the ordinary standard of care.‘” People v. Smoots, 2013 COA 152, ¶ 10, 396 P.3d 53, 55 (quoting People v. Lopez, 97 P.3d 277, 282 (Colo. App. 2004) ), aff‘d sub nom. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.
3. The District Court‘s Ruling
¶ 18 The district court‘s restitution order included the following findings, which tracked Officer Scheevel‘s testimony:
- After the victim‘s wife alerted the victim that Martinez was stealing the bicycle, the victim pursued Martinez in his vehicle.
- The victim “drove in his vehicle parallel to” Martinez.
- When Martinez “did not stop the bicycle, [the victim] pulled his car in front of [Martinez] in an attempt to stop” Martinez.
- When the victim pulled over, Martinez, “on the bicycle, hit [the victim]‘s vehicle on the passenger
side fender above the front tire.”
¶ 19 The court concluded that the victim‘s act of “pulling his vehicle in front of [Martinez] while [Martinez] was riding [the victim]‘s bicycle” was not an independent intervening cause of the damage to the car. The court said it was foreseeable that “the victim would attempt to prevent [Martinez] from taking his property by pulling in front of [Martinez] when [Martinez] failed to stop or pull over.” It noted that Martinez “was clearly participating in the event as he was riding [the victim]‘s bicycle parallel to [the victim]‘s car while he was in the act of stealing the bicycle.”
¶ 20 The court further said that the victim‘s act of pulling in front of Martinez constituted, at most, “simple negligence.” According to the court, the victim‘s actions “would not constitute gross negligence as he was pulling his vehicle in front of [Martinez] anticipating that [Martinez] would stop and thus cease the theft of the bicycle.” The court concluded that Martinez‘s theft of the bicycle was the proximate cause of the damage to the victim‘s car.
4. The District Court Did Not Abuse Its Discretion by Determining that Martinez‘s Theft Was the Proximate Cause of the Damage to the Victim‘s Car
¶ 21 Martinez contends that the victim‘s conduct constituted an independent intervening
¶ 22 Martinez argues that, because the victim chose to pursue him and allegedly intentionally crashed into Martinez, the victim‘s behavior was grossly negligent and thus not foreseeable. But the record does not support Martinez‘s contention that the victim “intentionally caused the collision.”
¶ 23 We agree with the district court that the evidence presented at the hearing demonstrated that the victim‘s action in turning in front of the bicycle thief was not grossly negligent as a matter of law. Officer Scheevel — the sole witness at the restitution hearing — testified that the victim pulled up parallel to Martinez on the bicycle and then “turned into the path of the bicycle” “in [an] attempt to get [Martinez] to stop.” Martinez presented no evidence that the victim intentionally hit Martinez or that Martinez was unable to stop before colliding with the victim‘s car. The record is devoid of evidence that, as Martinez argues, the victim chose to “elevate his property‘s recovery over Mr. Martinez‘s safety.”
¶ 24 Martinez makes the critical concession that he “could reasonably [have] expect[ed] pursuit” after stealing the bicycle. If the victim‘s pursuit was foreseeable, it was also foreseeable that, upon reaching Martinez, the victim would take steps to recover his bicycle, such as attempting to force Martinez to stop. It defies logic to claim that, once the victim‘s car was parallel to Martinez, the victim would simply back off and allow Martinez to speed away on the victim‘s $6,000 bicycle. And it further defies logic to assert that, upon catching up with the fleeing thief, the victim would intentionally damage his own property. As noted above, the evidence does not show the victim intended to collide with Martinez; rather, he expected Martinez to surrender the purloined bicycle.
¶ 25 Martinez further argues that the victim‘s “dangerous act of self-help” was grossly negligent because, had the victim been charged with a crime for intentionally colliding with Martinez, the victim‘s actions would not have been justified under the defense of property statute. In support, he primarily relies on People v. Oslund, 2012 COA 62, 292 P.3d 1025, and People v. Goedecke, 730 P.2d 900 (Colo. App. 1986).
¶ 26 These cases are distinguishable. Oslund and Goedecke were not proximate cause cases. Rather, they considered whether, under the facts presented, a defendant who had physically attacked a thief was entitled to a self-defense jury instruction, see Oslund, ¶¶ 24-26, 292 P.3d at 1029, or a defense of property jury instruction, see Goedecke, 730 P.2d at 901.
¶ 27 In Oslund, the division held that the trial court had correctly decided that the defendant was not entitled to a self-defense instruction because, by the time the defendant found and beat the thief, the “defendant could no longer prevent the theft” — the “theft was completed when [the thief] not only exercised control of the property, but moved it away from an area within defendant‘s control.” Oslund, ¶¶ 24-25, 292 P.3d at 1029. In arguing that the defendant should be convicted of aggravated robbery for punching the thief and taking other items from him, the prosecutor noted that “when defendant and his brother ‘came out [of the house] there was nobody running down the street.‘” Id. at ¶ 21, 292 P.3d at 1029.
¶ 28 Goedecke is even more distinguishable than Oslund. In that case, the division held that the defendant was not entitled to a defense of property instruction because the defendant encountered the thief “[s]ome time” after the theft and assaulted him after the stolen property had been destroyed. Goedecke, 730 P.2d at 901. As the division explained, “force was [not] necessary to prevent an attempted theft.” Id.
¶ 29 Here, the victim attempted to stop a theft in progress. The victim did not need to “find and catch” Martinez, see Oslund, ¶ 3, 292 P.3d at 1027. After the victim‘s wife shouted that someone was stealing the bicycle, the
¶ 30 Finally, because the evidence does not show that the victim intentionally struck Martinez, we are not persuaded that Martinez did not participate in the collision. Rather, Martinez participated in the collision with the victim‘s car by refusing to stop. See Sieck, ¶ 10, 351 P.3d at 504 (concluding there was no independent intervening cause where, “in the absence of the defendant‘s conduct,” the victim‘s negligent behavior “would not have caused the injuries“).
¶ 31 Thus, the district court did not abuse its discretion by determining that Martinez was the proximate cause of the damage to the victim‘s car.
B. GEICO Was a “Victim” for Purposes of the Restitution Statutes
1. Standard of Review
¶ 32 Martinez admittedly did not preserve his argument that, under the 2000 amendments to the restitution statutes, insurance companies like GEICO are no longer “victims” entitled to awards of restitution. He urges us to consider this argument, which he characterizes as a challenge to an illegal sentence, under
¶ 33 We need not resolve whether plain error review applies to the argument, however, in light of our determination that the trial court did not err by awarding restitution to GEICO as a “victim” under the restitution statutes. We reach that conclusion after considering Martinez‘s statutory argument de novo. See Dubois v. People, 211 P.3d 41, 43 (Colo. 2009) (holding that interpretation of the restitution statutes is “a question of law and therefore subject to de novo review“).
2. The Statutory Definition of “Victim”
¶ 34 For purposes of the restitution statutes, “victim” means
any person aggrieved by the conduct of an offender and includes but is not limited to the following:
....
Any person who has suffered losses because of a contractual relationship with, including but not limited to, an insurer, or because of liability under
section 14-6-110, C.R.S. [2021] , for a person described in subparagraph (I) or (II) of this paragraph (a).
3. GEICO Is a “Victim” Under Section 18-1.3-602(4)(a)(III)
¶ 35 Martinez argues that, because the statutory definition of “victim” refers to someone “who has suffered losses because of a contractual relationship with, including but not limited to, an insurer,” it excludes GEICO and other insurers. See
¶ 36 Martinez‘s interpretation of
¶ 37 Martinez does not dispute that a “contractual relationship with ... an insurer” includes insurance contracts, like the victim‘s policy with GEICO. See Bailey v. Allstate Ins. Co., 844 P.2d 1336, 1339 (Colo. App. 1992) (“[T]he relationship between an insurer and an insured is initially and fundamentally based on the insurance contract.“). Rather, he argues that
¶ 39 A direct victim‘s insurer falls within the category of persons who suffer losses because of an insurance policy for a policyholder who was a direct victim. Id. If a direct victim files a claim for a covered loss with the victim‘s insurer, the insurer is contractually required to indemnify the policyholder and thereby incurs a loss of its own. Indeed, a division of this court held in Oliver that
¶ 40 Thus, an insurance company that indemnifies a policyholder because the policyholder was the victim of a felony, misdemeanor, or other specified offense can be a “victim” for purposes of the restitution statutes. Although GEICO is an insurance company, it is nonetheless a “victim” because it paid the cost of repairing the damage to the victim‘s car above the $500 deductible.
¶ 41 We disagree with Martinez‘s interpretation of
¶ 42 First, we reject Martinez‘s contention that the 2000 version of the restitution statutes reflects the General Assembly‘s intent to exclude insurers, such as GEICO, from the definition of “victim.”
¶ 43 In the 1985 amendments to the restitution statutes, the definition of “victim” included “the party immediately and directly aggrieved by a defendant ... as well as others who have suffered losses because of a contractual relationship with such party.” Ch. 140, sec. 1, § 16-11-204.5(4), 1985 Colo. Sess. Laws 630. Under this version of the statute, “courts were allowed to order payments made to victims’ insurers as well as to direct victims.” People v. Woodward, 11 P.3d 1090, 1092 (Colo. 2000) ; see also People v. Lunsford, 43 P.3d 629, 631 (Colo. App. 2001) (affirming the district court‘s restitution order requiring payment to the victims’ insurer under the 1985 version of the statute); People v. Rogers, 20 P.3d 1238, 1240 (Colo. App. 2000) (holding that the 1985 version “on its face allow[ed] for recovery of the losses claimed by the victim‘s insurer“). Martinez concedes that insurers could be “victims” under the 1985 version of the statute.
¶ 44 In 1996, the General Assembly further amended the definition of “victim” to include a direct reference to insurers as a subset of those persons or entities that could receive restitution “because of a contractual relationship with [a direct victim].” Ch. 288, sec. 4, § 16-11-204.5(4), 1996 Colo. Sess. Laws 1779.
¶ 45 When the General Assembly enacted the 2000 version of the restitution statutes, it relocated the reference to the direct victim to the end of the definition: “Any person who
¶ 46 (The 2000 version also replaced the reference to “person or entity” with “person.” As explained supra Part II.B.2, the definition of “person” includes corporations, limited liability companies, partnerships, associations, and other legal entities. See
¶ 47 A comparison of the 1985 amendment, the 1996 amendment, and the 2000 version of the statutes demonstrates that each change to the definition of “victim” expanded it:
| 1985 amendment | 1996 amendment | 2000 version |
|---|---|---|
| “because of a contractual relationship with [the direct victim]” | “because of a contractual relationship with [the direct victim], including, but not limited to, an insurer” | “because of a contractual relationship with, including but not limited to, an insurer, ... for a [direct victim]” |
¶ 48 The 2000 version of the definition of “victim” replaced “a contractual relationship with ” the direct victim, which first appeared in the 1985 amendment, with the broader “a contractual relationship with, including but not limited to, an insurer ... for ” a direct victim. 2000 Colo. Sess. Laws at 1031-32 (emphases added). There is a
¶ 49 Second, the 1996 amendments to the restitution statutes not only added a specific reference to “an insurer” to the definition of “victim,” but also inserted the phrase “including, but not limited to,” immediately before “an insurer.” 1996 Colo. Sess. Laws at 1779. This demonstrates that, in the post-1985 changes to the restitution statutes, the General Assembly intended to expand the contractual relationship language found in the 1985 amendment. See People v. Roggow, 2013 CO 70, ¶ 20, 318 P.3d 446, 451 (“The phrase ‘includes, but is not limited to’ suggests an ‘expansion or enlargement’ and a ‘broader interpretation.’ “).
¶ 50 Third, Martinez‘s statutory argument runs afoul of principles of statutory construction. “We liberally construe the restitution statute to accomplish its goal of making victims whole for the harms suffered as the result of a defendant‘s criminal conduct.” Sosa, ¶ 14, 487 P.3d at 1206 (quoting Rivera, 250 P.3d at 1274 ). Limiting the scope of
¶ 51 Fourth, Martinez‘s statutory argument is inconsistent with the purposes of the restitution statutes, which include rehabilitating offenders and deterring future criminality.
III. Conclusion
¶ 52 The order is affirmed.
JUDGE GOMEZ concurs.
JUDGE J. JONES specially concurs.
JUDGE J. JONES, specially concurring.
¶ 53 I agree with the result reached by the majority and almost all of its analysis. I take issue, however, with one aspect of the analysis: the majority cites People v. Henson, 2013 COA 36, ¶ 9, 307 P.3d 1135, for the proposition that we review the district court‘s determination that Martinez proximately caused the damage to the victim‘s car for an abuse of discretion. As I see it, the proper standard of review for that factual determination is clear error. That the cases don‘t expressly say so seems to be a result of many years of rote repetition and uncritical analysis.
¶ 54 In Henson, the division said, “[w]e review the district court‘s restitution order for an abuse of discretion.” Id. The division then apparently applied that standard to the issues of the amount of restitution owed and whether the victim‘s losses were proximately caused by the defendant. And it did so even after acknowledging that the prosecution bears the burden of proving both the amount of restitution and proximate cause by a preponderance of the evidence. Id. at ¶ 11. What accounts for this application of the abuse of discretion test to issues subject to a factual burden of proof?
¶ 55 The Henson division cited People v. Rivera, 250 P.3d 1272, 1274 (Colo. App. 2010), as authority for applying the abuse of discretion test. That case says that “[a] trial court has broad discretion to determine the terms and conditions of a restitution order.” Id. If one looks at the cases Rivera cites for that proposition, and then looks at the cases those cases cite, and so on down the line, one discovers that this language has its genesis in a line of authority dealing with discretionary conditions of probation .1
¶ 56 The supreme court‘s decision in Cumhuriyet v. People, 200 Colo. 466, 615 P.2d 724 (1980), appears to be the destination to which this path leads. In that case, the court considered whether the district court had properly ordered restitution as a condition of probation. It applied former
¶ 57 But that statutory regime hasn‘t existed for quite some time. About twenty years ago, the General Assembly enacted
¶ 58 As noted, the prosecution must prove the amount of restitution and proximate cause by a preponderance of the evidence. Henson, ¶ 11 ; People in Interest of K.M., 232 P.3d 310, 312 (Colo. App. 2010) ; People v. Harman, 97 P.3d 290, 294 (Colo. App. 2004), overruled on other grounds by People v. Weeks, 2021 CO 75, 498 P.3d 142. In attempting to meet that burden, the prosecution may present presentence reports and “any other evidence ... with respect to damages.” People v. Carpenter, 885 P.2d 334, 336 (Colo. App. 1994).
¶ 59 Thus, the current statutory regime contemplates (1) mandatory imposition of restitution and (2) determination of the amount and proximate cause using an evidentiary burden indistinguishable from that applicable to damages and causation in civil cases. What‘s more, the test for proximate cause in this context isn‘t meaningfully distinguishable from the test for causation in fact in the civil context, which has always been regarded as a factual question. See Rocky Mountain Planned Parenthood, Inc. v. Wagner, 2020 CO 51, ¶¶ 28-29, 467 P.3d 287 (causation in fact is established “if the negligent conduct in a ‘natural and continued sequence, unbroken by any efficient, intervening cause, produce[s] the result complained of, and without which the result would not have occurred’ “; “[c]ausation in fact is typically a question for the jury” (quoting N. Colo. Med. Ctr., Inc. v. Comm. on Anticompetitive Conduct, 914 P.2d 902, 908 (Colo. 1996) )); see also People v. Hernandez, 2019 COA 111, ¶ 40, 487 P.3d 1095 (recognizing that “the proximate cause issue to be resolved at the restitution hearing raised a question of fact“).
¶ 60 The bottom line is that we should treat proximate cause for restitution purposes as a question of fact. And the law is crystal clear that an appellate court reviews findings of fact for clear error, not an abuse of discretion. See, e.g. , Gallegos Fam. Props., LLC v. Colo. Groundwater Comm‘n, 2017 CO 73, ¶ 17, 398 P.3d 599 ; People v. Minor, 222 P.3d 952, 956 (Colo. 2010) ; People v. DeBorde, 2016 COA 185, ¶ 23, 411 P.3d 220. A factual finding is clearly erroneous only if it has no support in the record. Sanchez-Martinez v. People, 250 P.3d 1248, 1254 (Colo. 2011) ; M.D.C./Wood, Inc. v. Mortimer, 866 P.2d 1380, 1384 (Colo. 1994) ; People v. Nelson, 2014 COA 165, ¶ 17, 360 P.3d 175.
¶ 61 In sum, I believe we should review the district court‘s factual finding that Martinez‘s conduct proximately caused the damage to the victim‘s car for clear error. And applying that test, I conclude that the district court‘s