To establish a right to restitution, then, "[t]he prosecution must prove by a preponderance of the evidence that the defendant’s conduct proximately caused the victim’s loss and the amount of that loss." People v. Babcock, 2023 COA 49, ¶ 19, 535 P.3d 981, 987. In the context of a restitution award, proximate cause is defined as "a cause which in natural and probable sequence produced the claimed injury and without which the claimed injury would not have been sustained."

Similarly, a defendant can waive a claim that a judge acted without authority. See People v. Babcock, 2023 COA 49, ¶ 15, 535 P.3d 981 (cert. granted 2024 WL 1588427 (Apr. 8, 2024)).A constructive amendment violates a defendant’s due process rights.

In "[a]nswering a question not addressed by the Colorado Supreme Court in [Weeks]," a division of this court recently held that a district court’s ninety-one-day deadline for entry of restitution under section 18-1.3-603(1)(b) is not jurisdictional and is therefore waivable. People v. Babcock, 2023 COA 49, ¶¶ 1, 5-11, 535 P.3d 981. [11] ¶ 18 We find People v. Johnson, 2023 COA 43M, 534 P.3d 947, instructive concerning waiver.

[3, 4] ¶ 8 The People correctly point out that a lack of authority is not a jurisdictional defect. See People v. Babcock, 2023 COA 49, ¶ 7, 535 P.3d 981. This distinction is important because nonjurisdictional timelines can be waived.

Some disagreement exists, however, as to the appropriate standard of review for assessing whether sufficient evidence supports a restitution order. See People v. Babcock, 2023 COA 49, ¶ 17, 535 P.3d 981 ("We note, however, that the appropriate standard of review is far from clear."). Some divisions of this court have applied de novo review, while others have reviewed for an abuse of discretion.

¶ 2 In resolving Roberson's first contention, we distinguish this case from two recent decisions from other divisions of this court: People v. Johnson , 2023 COA 43M, ¶ 28, 534 P.3d 947, which held that a trial court made an express finding of good cause to extend the statutory deadline by entering orders allowing the defendant to object to restitution beyond the deadline, and People v. Babcock , 2023 COA 49, ¶¶ 13–15, 535 P.3d 981, which held that a defendant waived his right to challenge the timeliness of a restitution order by requesting that a restitution hearing be set outside the statutory deadline. ¶ 3 Because we conclude that the district court lacked authority to determine the amount of restitution to be paid by Roberson more than ninety-one days after sentencing, and that Roberson did not waive or invite the error, we vacate the restitution order and do not reach her other challenges.

A defendant, however, may waive this deadline, thus permitting the court to act beyond the ninety-first day. People v. Babcock, 2023 COA 49, ¶¶ 13-14 (cert. granted Apr. 8, 2024).

The waiver of a statutory or constitutional right requires "the intentional relinquishment of a known right or privilege." People v. Babcock, 2023 COA 49, ¶ 12 (quoting Richardson v. People, 2020 CO 46, ¶ 24) (cert. granted Apr. 8, 2024). Because waiver "extinguishes error," it precludes appellate review.

¶ 8 The People correctly point out that a lack of authority is not a jurisdictional defect. See People v. Babcock, 2023 COA 49, ¶ 7. This distinction is important because nonjurisdictional timelines can be waived.