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 May 2, 2019

No. 16CA0446, People v. Perez — Criminal Law — Sentencing — Restitution

A division of the court of appeals considers whether the trial

court erred in ordering restitution more than ninety-one days after

sentencing and what, if any, explicit findings the trial court must

make to do so. The division concludes that, based on the facts of

this case, the lack of explicit findings was not plain error. The

special concurrence explains why this case illustrates what appears

to the author to be a pattern of inattentiveness by the prosecution,

defense counsel, and trial courts regarding the procedures

established in the restitution statutes. It also points out two

ambiguities in those statutes that the General Assembly may wish

to address. COLORADO COURT OF APPEALS

Court of Appeals No. 16CA0446 Adams County District Court No. 12CR1963 Honorable Robert W. Kiesnowski, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rafael Perez,

Defendant-Appellant.

ORDER AFFIRMED

Division I Opinion by JUDGE TOW Berger, J., concurs Taubman, J., specially concurs

Announced May 2, 2019

Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Jeffrey Svehla, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Rafael Perez, appeals the trial court’s order of

restitution. We affirm.

I. Background

¶2 In June 2012, Perez hosted a wedding at his ranch. An

argument ensued among some of the wedding guests. “A bunch of

guys” started kicking one of the wedding guests, Jose Rodriguez,

and then Perez broke a beer bottle on his face. Rodriguez had to be

transported to the hospital via helicopter for medical treatment.

¶3 Perez was charged with and convicted of second degree assault

with a deadly weapon. On December 2, 2013, the trial court

sentenced Perez to five years in the custody of the Department of

Corrections. A division of this court affirmed his conviction. People

v. Perez, (Colo. App. No. 14CA0326, Mar. 2, 2017) (not published

pursuant to C.A.R. 35(e)).

¶4 At sentencing, the trial court reserved a determination of

restitution for ninety days. On March 6, 2014, ninety-four days

after the order of conviction, the prosecution moved for an

extension of time to request restitution. In its motion, the

prosecution cited extensive and complex medical bills, a lost wages

form received from the victim the previous day, and “substantial

1 and possible ongoing medical claims from Crime Victim

Compensation” as reasons for a requested extension. Perez did not

object to this request, and the trial court granted the motion.

¶5 The prosecution filed its motion to impose restitution with

supporting documentation on May 12, 2014. The trial court then

held multiple hearings on the issue of restitution. At a restitution

hearing in January 2015, the trial court determined that an in

camera review of the records of the Crime Victim Compensation

Board (CVCB) was necessary to address Perez’s proximate

causation concerns.

¶6 After the trial court conducted an in camera review of the

CVCB’s records, the trial court issued an order of restitution on

March 16, 2015, finding that proximate cause had been established

and ordering restitution in the amount of $17,060 to be paid to the

CVCB. It also ordered restitution in the amount of $2546 to be paid

to Rodriguez for lost wages.

II. Analysis

¶7 Perez now appeals the restitution order on procedural and

substantive grounds.

2 A. Standard of Review

¶8 Generally, a trial court has broad discretion to determine a

restitution order’s terms and conditions. People v. Rivera,

(Colo. App. 2010). We will reverse only if the trial court

abused its discretion.

An abuse of discretion occurs when the

trial court’s decision is manifestly arbitrary, unreasonable, or

unfair, or the court misinterprets or misapplies the law. See People

v. Henson,

. To the extent this appeal requires us

to consider the trial court’s interpretation of the restitution statutes,

we review such legal issues de novo. People v. Ortiz,

.

B. Good Cause and Extenuating Circumstances

¶9 Perez first argues that the trial court erred in ordering

restitution more than ninety-one days after sentencing absent a

showing of good cause. Perez also argues that the trial court failed

to find extenuating circumstances for granting the prosecution

additional time to provide the information necessary to determine

restitution. We discern no reversible error.

3 1. Preservation

¶ 10 Perez contends that this issue was preserved. In support, he

cites to People v. Melendez,

(Colo. 2004), as providing

that preservation only requires an opportunity for the trial court to

make findings and draw conclusions related to the relevant issue.

The People disagree and argue that Perez failed to preserve this

challenge to the restitution order. We agree with the People.

¶ 11 Before the trial court, Perez raised two challenges regarding

restitution. First, he argued there was insufficient evidence that he,

as opposed to the other assailants, caused the damages. He also

objected to not having been provided access to the CVCB records.

Yet, Perez never challenged either the People’s motion requesting

more time to submit restitution information or the order granting

that request and never objected that there was no showing of good

cause or finding of extenuating circumstances affecting the

prosecution’s ability to determine restitution. As a result, the trial

court was denied the opportunity to make findings and draw

conclusions on this particular issue. Consequently, Perez’s claim is

not preserved.

4 ¶ 12 That being said, we reject the People’s argument that Perez

waived this claim. Waiver is the “intentional relinquishment of a

known right or privilege.” People v. Rediger,

(quoting Dep’t of Health v. Donahue,

(Colo.

1984)). Perez did not intentionally relinquish or abandon his claim

on appeal simply by failing to raise this claim while contesting other

aspects of the restitution order. See id. at ¶ 40 (“The requirement of

an intentional relinquishment of a known right or privilege . . .

distinguishes a waiver from a forfeiture, which is ‘the failure to

make the timely assertion of a right.’” (quoting United States v.

Olano,

(1993))). Because Perez’s claim is not

waived, we address the merits.

¶ 13 We review unpreserved claims for plain error.

To be plain,

an error must be obvious and substantial. Hagos v. People,

. Reversal is required under this standard only if the

error “so undermines the fundamental fairness of the trial itself as

to cast serious doubt on the reliability of the judgment of

conviction.” Hagos, ¶ 22; see also People v. Tillery,

(Colo. App. 2009) (applying the plain error standard to sentencing),

aff’d sub nom. People v. Simon,

(Colo. 2011).

5 2. Applicable Law

¶ 14 Every order of conviction for a felony “shall include

consideration of restitution.” § 18-1.3-603(1), C.R.S. 2018. If the

court reserves the determination of restitution, as it is authorized to

do, restitution is to be fixed within ninety-one days after the order

of conviction, unless good cause is shown for extending that time.

§ 18-1.3-603(1)(b). The court must base its restitution order on

information presented by the prosecution. § 18-1.3-603(2). The

prosecution “shall present this information to the court prior to the

order of conviction or within ninety-one days, if it is not available

prior to the order of conviction.” Id. The court may extend this

deadline “if it finds that there are extenuating circumstances

affecting the [prosecution’s] ability to determine restitution.” Id.

Importantly, the time limits in section 18-1.3-603 are not

jurisdictional. People v. Harman,

(Colo. App.

2004).

3. Application

¶ 15 The question here is whether the trial court erred in awarding

restitution under the circumstances presented. Because restitution

was ultimately awarded more than ninety-one days after the order

6 of conviction, a showing of good cause was required. § 18-1.3-

603(1)(b).

¶ 16 Although the trial court granted the prosecution’s motion for

extension of time to request restitution, the trial court did not

formally find that good cause existed. However, the statute does

not require such an explicit finding. People v. Knoeppchen,

. On the other hand, the statute explicitly requires the

trial court to “find[] that there are extenuating circumstances” in

order to grant the prosecution more time to gather and submit the

required documentation. See § 18-1.3-603(2). Because the court

made no such finding explicitly, the court erred.1

¶ 17 However, because the error is not substantial, this case is

distinguishable from People v. Turecek,

, and reversal

is not warranted. In Turecek, the trial court gave the prosecution

——————————————————————— 1 We acknowledge that there are circumstances in which an appellate court may infer that a trial court made a necessary finding. See, e.g., People v. Kyles,

(Colo. 1999) (inferring that the trial court made credibility findings during its analysis of a postconviction challenge to the voluntariness of a plea). Here, however, we opt not to draw such an inference, since neither the request nor the proposed order submitted by the prosecution references the statute or the extenuating circumstances standard.

7 ninety days to file a notice of restitution. Id. at ¶ 4. Instead,

approximately nine months later, the prosecution filed a motion to

impose restitution without explaining its delay or showing good

cause for the delay. Id. at ¶ 5. The trial court then ordered the

defendant to pay restitution without a finding of good cause. Id. at

¶ 6.

¶ 18 Here, in contrast, the prosecution requested an extension of

time to request restitution and provided reasons supporting that

request. Although the trial court did not make an explicit finding of

extenuating circumstances, the prosecution’s request cited

extensive and complex medical bills, a lost wages form received

from the victim the previous day, and “substantial and possible

ongoing medical claims from Crime Victim Compensation” as

reasons for a requested extension. These assertions were sufficient

for a finding of extenuating circumstances to have been made.

Therefore, the trial court’s failure to make such an explicit finding

was not a substantial error because it does not cast serious doubt

on the reliability of the restitution order.

¶ 19 Perez argues that the prosecution’s basis for seeking more

time was unpersuasive, given that all the documentation predated

8 sentencing, and so no extenuating circumstances could have

existed. However, because Perez failed to raise this issue before the

trial court, there is no record that establishes when the prosecution

received the documentation. Thus, again, the reliability of the

judgment is not undermined.

C. Disclosure of CVCB Records

¶ 20 Perez also argues that the trial court erred in relying on, but

not fully disclosing, otherwise confidential CVCB records in

determining proximate cause for the purpose of restitution. We

disagree.

1. Preservation

¶ 21 Perez contends that this issue was preserved by requests

made for documents related to the CVCB’s payments to the victim.

The People disagree. We agree with Perez that this issue was

preserved.

9 2. Applicable Law

¶ 22 A compensation board’s records relating to a crime victim’s

claims are confidential. § 24-4.1-107.5(2), C.R.S. 2014.2 “Any such

materials shall not be discoverable unless the court conducts an in

camera review of the materials sought to be discovered and

determines that the materials sought are necessary for the

resolution of an issue then pending before the court.” Id.

3. Application

¶ 23 In accordance with section 24-4.1-107.5(3), Perez asserted

that the CVCB records were necessary for the resolution of an issue

pending before the trial court, that he was not the proximate cause

of some of the victim’s injuries because “several people were kicking

the victim in an assault,” and that this issue warranted an in

camera review of the CVCB’s records by the trial court. The trial

court then “reviewed in camera the victim’s compensation

program’s file and all non-privileged billing information was

provided to defense counsel.”

——————————————————————— 2 This section of the crime victim compensation act was amended in

its entirety, effective March 30, 2015. The prior version is applicable here.

10 ¶ 24 Perez now asserts that the trial court erred in “not disclosing

to Perez all materials related to the CVCB’s payment to the victim.”

(Emphasis added.) However, Perez’s argument is contrary to what

was required under the statute at the time. The statute provided

that confidential information contained within the file was

discoverable if it was necessary to resolve an issue pending before

the court. Id. Yet, nothing in the statute suggested that this

exception abrogated other established privileges that had attached

to the information. See People v. Turley,

(Colo.

App. 1993) (finding that no exception to the physician-patient

privilege exists in Colorado). Here, the court stated in its order that

it provided defense counsel with all non-privileged information from

the CVCB’s records. Because the statute in effect at the time did

not require that the trial court disclose otherwise privileged

information to the defendant in violation of the victim’s privilege

rights,3 we perceive no error.

——————————————————————— 3 The statute as amended in 2015 clarifies that the court may not

release information contained in the records if it will violate privilege. § 24-4.1-107.5, C.R.S. 2018.

11 D. Due Process Violation

¶ 25 Lastly, Perez argues that the trial court’s failure to disclose

confidential information from the CVCB’s records violated his right

to due process. We disagree.

1. Preservation

¶ 26 Perez also contends that this issue was preserved. The People

disagree and argue that Perez failed to preserve this challenge to the

restitution order. Perez never invoked the protections of due

process in his arguments in the trial court. Therefore, we review

this claim for plain error. Rediger, ¶ 40.

2. Applicable Law

¶ 27 Due process is satisfied in a restitution hearing when the

defendant receives notice of the factual basis for the order and an

opportunity to contest that basis. United States v. Battles,

(10th Cir. 2014); see also Rivera,

(“A

court may not order restitution without a hearing at which the

prosecution must prove the amount of the victim’s loss and its

causal link to the defendant’s conduct, and at which the defendant

may contest those matters.”). However, in a different context, a

division of this court has held that a defendant’s constitutional

12 right to due process does not override a claim of privilege. See

People v. Zapata,

, ¶ 30 (holding that the defendant

was not entitled to discovery or an in camera review of statements

protected by the psychologist-patient privilege), aff’d,

.

Because no published case law clearly supports Perez’s right to

obtain privileged documents, the trial court’s decision not to provide

them, even if error, could not have been obvious.

III. Conclusion

¶ 28 The restitution order is affirmed.

JUDGE BERGER concurs.

JUDGE TAUBMAN specially concurs.

13 JUDGE TAUBMAN, specially concurring.

¶ 29 Although I agree with the majority’s analysis and conclusion, I

write separately to explain why this case illustrates inattentiveness

by the prosecutor, defense counsel, and the trial court regarding

the applicable restitution statutes. I also write to point out two

ambiguities in those statutes which the General Assembly may wish

to address.

I. Background

¶ 30 To facilitate understanding of my comments, I restate some of

the applicable law contained in the majority opinion. First, every

order of conviction for a felony “shall include consideration of

restitution.” § 18-1.3-603(1), C.R.S. 2018. Second, if the trial court

reserves its determination of restitution, restitution must be fixed

within ninety-one days after the order of conviction, unless good

cause is shown for extending that period. § 18-1.3-603(1)(b).

Third, the trial court may extend the ninety-one day period “[i]f it

finds that there are extenuating circumstances affecting the

prosecution’s ability to determine restitution.” § 18-1.3-603(2).

14 II. Inattentiveness to Statutory Provisions

A. Prosecution

¶ 31 As the majority notes, the time limits in section 18-1.3-603 are

not jurisdictional. People v. Harman,

(Colo. App.

2004). Nevertheless, even though the trial court reserved the

determination of restitution for ninety days, the People did not move

for an extension of time to request restitution until ninety-four days

after the order of conviction, March 6, 2014.

¶ 32 When they did, the People did not invoke the statutory terms

of “good cause” or “extenuating circumstances.” Instead they

asserted: “Due to extensive and complex medical bills as well as the

lost wages form received from victim [J.R.] on March 5, 2014;

substantial and possible ongoing claims from crime victim

compensation, the People request an additional [ninety] days to

accumulate all proper documentation.” This statement did not

explain why the People could not have considered the medical bills

in the ninety-day period; why they were complex (Perez says they

were not); and what efforts, if any, the People made to obtain the

victim’s lost wages form within the ninety-day period.

15 ¶ 33 Further, section 18-1.3-603(2) provides that the prosecution

shall present restitution information to the court before the order of

conviction or within ninety-one days, if it is not available before the

order of conviction. Accordingly, the People had an obligation to

show why the information supporting their restitution request was

not available before the order of conviction. Indeed, such a showing

is a prerequisite to the trial court determining that extenuating

circumstances affect the prosecutor’s ability to determine

restitution before the order of conviction.

¶ 34 Finally, as noted, the People did not explicitly assert that the

court should extend the deadline for presenting restitution

information because extenuating circumstances affected their

ability to determine the amount of restitution. See § 18-1.3-603(2).

B. Defense Counsel

¶ 35 As the majority notes, the trial court erred in not explicitly

finding that there were extenuating circumstances to grant the

prosecution additional time to get and submit required

documentation to support its restitution request. However, defense

counsel did not assert that the trial court erred in this regard,

thereby making it more difficult for Perez to litigate this issue on

16 appeal. Similarly, defense counsel did not assert in the trial court

that it should have found that no good cause existed to grant the

People’s request for additional time to submit its documentation for

each restitution request. Although a division has held in People v.

Knoeppchen,

, ___ P.3d ___, ____, that no such

explicit finding is required, certainly defense counsel’s position

would have been stronger had he expressly asked the trial court to

make a good cause determination.

¶ 36 Thus, without a trial court determination of either good cause

or extenuating circumstances, little information in the record

indicates that reversal is appropriate.

C. The Trial Court

¶ 37 As noted above, the trial court did not make an express

finding of either good cause or extenuating circumstances.

Although the good cause statute does not explicitly require such

documentation by the trial court, the statute unequivocally requires

a trial court to find extenuating circumstances to grant the

prosecution more time to gather and submit the required

documentation. Thus, even without a request by defense counsel

17 or the prosecution, the trial court should have realized that it was

required to make a finding of extenuating circumstances.

¶ 38 In addition, in Meza v. People,

,

, the supreme court recognized that the trial court is

authorized, but is not required, to make a finding regarding

particular victims or losses of which the prosecution is aware, while

reserving until a later date a finding with regard to other victims or

losses. It seems clear that, under the circumstances presented, the

prosecution had sufficient information to timely present to the court

documentation regarding most of the victim’s medical expenses.

Also, it appears that the prosecution could have determined the

amount of the victim’s wage losses before the entry of the order of

conviction. Thus, the trial court could have inquired of the

prosecution whether it had sufficient information regarding some

hospital bills and the victim’s wage losses before it entered the

judgment of conviction.

III. Statutory Ambiguities

¶ 39 I note two statutory ambiguities where amended legislation

might be helpful. First, the statutory language discussed above

does not make clear what, if any, differences there are between

18 “good cause” and “extenuating circumstances.” Although those

terms are similar, we presume that the General Assembly intended

different meanings for these terms. People v. J.J.H.,

(Colo. 2001). For example, if the prosecutor had stated that he

was busy litigating other cases and therefore needed more time to

gather and submit restitution information, that explanation might

have constituted “good cause” but may well have fallen short of

constituting “extenuating circumstances.” Similarly, while not

obtaining the victim’s wage loss form until the day before the filing

of a request for additional time may have constituted “good cause,”

such requests may not have constituted “extenuating

circumstances” if no earlier request had been made to the victim for

his wage loss form. Accordingly, the General Assembly may wish to

revisit these two terms so that they are the same, or, if they are

different, to explain how they are different.

¶ 40 Specifically, the General Assembly may wish to clarify section

18-1.3-603(1)(b) to require the prosecution to make a showing of

good cause before the trial court determines that the prosecution

may be accorded additional time to present restitution information.

Such clarification may be helpful because the Knoeppchen, ¶ 26,

19 ___ P.3d at ___, division held that a good cause determination may

be made at a later date. Nevertheless, it makes sense to require the

prosecution to submit its good cause explanation before the trial

court grants it additional time to present its restitution information

to the court.

¶ 41 Finally, I note that in imposing any time limit for the

submission of restitution information, the General Assembly may

wish to balance the interest in making a victim whole, on the one

hand, against requiring the prosecution to promptly submit

restitution information to the court before memories fade and

evidence becomes stale, on the other. In any event, the General

Assembly should recognize that a relatively small percentage of

restitution assessed is actually collected. In fiscal year 2014

through fiscal year 2018, the following percentages of state-wide

restitution assessed were paid as of August 27, 2018 — 18.6, 22.2,

16.1, 14.4, and 10.9. Colorado Judicial Branch, Annual Statistical

Report: Fiscal Year 2018, at 115, 119 (2018). These statistics

suggest that while making victims whole is a laudable goal, it will

not often be achieved. This is likely to be the case whether trial

20 courts frequently or seldom grant prosecution requests for

additional time to submit restitution information.

¶ 42 Notwithstanding these statistics, however, prosecutors,

defense counsel, and trial courts should be attentive to the

statutory requirements for prosecutors to obtain additional time to

submit restitution information to the trial courts.

21