Opinion
23CA0569
05-23-2024
The People of the State of Colorado, Plaintiff-Appellee, v. Francisco Ibarra, Defendant-Appellant.
Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Adams County District Court No. 22CR82 Honorable Mark D. Warner, Judge
Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Julieanne Farchione, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Fox and Grove, JJ., concur
OPINION
SULLIVAN JUDGE
¶ 1 Defendant, Francisco Ibarra, appeals the district court's restitution order. We affirm and remand the case for correction of the mittimus.
I. Background
¶ 2 Ibarra was charged with three counts of first degree criminal trespass, one count of felony theft, and one count of misdemeanor theft, all as acts of domestic violence. The charges stemmed from allegations that Ibarra went to property belonging to the family of his ex-girlfriend, T.N., and broke into and stole various items from T.N.'s vehicle, her sister B.N.'s vehicle, and her grandfather C.N.'s vehicle. Windows on all three vehicles had been broken. Ibarra had allegedly texted T.N. after the incident saying, "I have the tv out of the van . . [.] the stereos out of the cars . . [.] and the rims off a truck," followed by multiple laughing face emojis.
¶ 3 On August 29, 2022, Ibarra pleaded guilty to an added count of felony theft as an act of domestic violence, in exchange for dismissal of the original charges. In the plea agreement, Ibarra agreed to pay restitution on all counts, including those that were dismissed, "and further agree[d] that the amount of restitution will be determined within 91 days of sentencing unless that deadline is extended for good cause."
¶ 4 At the plea and sentencing hearing, the prosecution requested thirty-five days to file a restitution motion. Defense counsel did not object. The district court sentenced Ibarra to fifteen months in the custody of the Department of Corrections and gave the prosecution thirty-five days to file a restitution request. The court did not include restitution on the mittimus.
¶ 5 Thirty-two days later, on September 30, 2022, the prosecution filed a motion to impose restitution requesting $6,414.95 payable to T.N, B.N., and C.N. The request included amounts to repair the victims' broken vehicle windows. In support of its request, the prosecution attached six cost estimates from various vendors. The prosecution had shared four of them - two from Amazon and one each from Arapahoe Kia and Les Schwab Tire - with Ibarra's counsel through discovery several months earlier.
¶ 6 On November 4, 2022, Ibarra filed an objection to the imposition of restitution and requested a hearing. He argued that the district court should deny restitution because (1) the prosecution had not shown that he was the proximate cause of the losses, and (2) some of the information provided had been available before the sentencing date, and thus the prosecution was required to present it to the court before the order of conviction under section 18-1.3-603(2)(a), C.R.S. 2023.
¶ 7 The prosecution responded to the objection on November 15, 2022, requesting that the plea be withdrawn because Ibarra's objection was contrary to the terms of the plea agreement. In the alternative, the prosecution asked the district court to "issue a written order, before November 25, 2022, establishing good cause that would allow the imposition of restitution to be ordered after 91 days, pursuant to People v. Weeks."
¶ 8 Eighty-one days after sentencing, the district court issued an order finding good cause to extend its ninety-one-day deadline for imposing restitution. The court cited Ibarra's objection to the amount of restitution owed and causation, as well as the parties' agreement to set a hearing date outside the ninety-one-day deadline.
¶ 9 The district court eventually held a hearing on February 17, 2023. At the beginning of the hearing, the court rejected Ibarra's argument that it should deny the restitution motion because some of the information was available to the prosecution prior to the order of conviction. It explained that Ibarra agreed to having restitution determined within ninety-one days in the plea agreement. T.N. then testified regarding the damage to and losses from the three vehicles. The court found T.N. credible, that the requested restitution was causally related to Ibarra's criminal conduct, and that the amounts requested were reasonable and necessary. Defense counsel then specifically objected to the restitution requested for the vehicles' glass repairs, arguing that Ibarra was never charged with or pleaded guilty to anything related to the damage to the vehicles. Counsel also argued that the vehicles had been outside during the period before the charged incident, meaning the windows could have been broken beforehand. And counsel reiterated Ibarra's argument that the prosecution had failed to comply with section 18-1.3-603(2). The court rejected counsel's arguments and affirmed its order for restitution.
II. The Prosecution's Burden Under Section 18-1.3-603(2)(a)
¶ 10 Ibarra contends that the district court lacked authority to impose restitution because the prosecution submitted the restitution information after the order of conviction despite having some of the information beforehand. We conclude that Ibarra waived this claim.
A. Standard of Review and Legal Authority
¶ 11 Whether a court has authority to order a defendant to pay restitution is a legal question that we review de novo. People v. Roddy, 2021 CO 74, ¶ 23.
¶ 12 The restitution statute requires every order of conviction to include one of four types of restitution orders. § 18-1.3-603(1); People v. Weeks, 2021 CO 75, ¶ 3. As relevant here, section 18-1.3-603(1)(b) requires an order of conviction to include "[a]n order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined within the ninety-one days immediately following the order of conviction, unless good cause is shown for extending the time period by which the restitution amount shall be determined."
¶ 13 The court must base its restitution order on the information provided by the prosecution, "who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims." § 18-1.3-603(2)(a). "[T]he prosecuting attorney 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.; see also People v. Brassill, 2024 COA 19, ¶ 30 ("[T]he restitution statute requires the prosecution to exercise reasonable diligence to determine the amount of restitution and present it to the court at or before the sentencing hearing.").
B. Analysis
¶ 14 Relying on People v. Johnson, 2023 COA 43M (cert. granted Apr. 8, 2024), and People v. Fregosi, 2024 COA 6, the People argue that Ibarra waived his challenge to the timeliness of the prosecution's request by stipulating to a ninety-one-day timeframe in his plea agreement. We agree.
¶ 15 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. People v. Rediger, 2018 CO 32, ¶ 40.
¶ 16 In his plea agreement, Ibarra acknowledged that he was "obligated to pay restitution as part of this plea agreement, and further agree[d] that the amount of restitution will be determined within 91 days of sentencing unless that deadline is extended for good cause." He also confirmed that he had read, understood, and "fully discussed" the plea agreement with his attorney. At the combined providency and sentencing hearing, the district court reviewed the plea terms with Ibarra, who confirmed that he understood them and did not have any questions. The court found that Ibarra's plea was knowing, voluntary, and intelligent.
¶ 17 The district court proceeded to immediate sentencing where it found that "there will be restitution." But even though Ibarra's counsel had received some of the cost estimates from the prosecution through discovery months earlier, and despite the restitution statute plainly outlining the prosecution's obligation to present restitution information before "the order of conviction or within ninety-one days, if it is not available prior to the order of conviction," § 18-1.3-603(2)(a), Ibarra did not object when the court "g[a]ve the People 35 days to file any motion."
¶ 18 By agreeing to the terms of the plea agreement, confirming in a colloquy with the court that he had reviewed the plea paperwork with his counsel, and not objecting when the district court extended the prosecution's deadline to file its restitution motion, Ibarra waived any objection to the timeliness of the prosecution's restitution request. See Rediger, ¶ 39; Johnson, ¶¶ 35-39 (Welling, J., specially concurring) (concluding that the defendant, by the terms of his plea agreement, waived any challenge to the prosecution's statutory deadline in section 18-1.3-603(2)(a) to provide restitution information to the district court); Fregosi, ¶¶ 1920 (holding that the defendant waived a challenge to the timeliness of the prosecution's restitution request because he agreed to reserve restitution in the plea agreement and stated at sentencing that he had no objection to the prosecution's request for a ninety-one-day extension).
III. Restitution for the Vehicle Windows
¶ 19 Ibarra challenges the district court's award of restitution on two additional grounds. He argues that (1) he was never charged with and did not plead guilty to offenses related to the breaking of vehicle windows, and (2) the only evidence that he was involved in breaking the vehicle windows was speculative, given that the vehicles were left unattended outside before the charged incident. We disagree with Ibarra's contentions.
A. Standard of Review and Legal Authority
¶ 20 As to Ibarra's first contention, we review it de novo. See People v. Sosa, 2019 COA 182, ¶ 11 ("Whether a trial court has authority to impose restitution for losses suffered as a result of uncharged conduct is a question of law that we review de novo.").
¶ 21 As to his second condition, the parties dispute the appropriate standard of review. The appropriate standard of review depends on what grounds Ibarra asserts to challenge the restitution order. See Martinez v. People, 2024 CO 6M, ¶¶ 19-20; People v. Barbre, 2018 COA 123, ¶ 24. We review de novo sufficiency of the evidence challenges where we are asked to address whether the quantum of evidence provided to the district court was substantial and sufficient to support the court's determination of restitution. Martinez, ¶ 20.
¶ 22 The People, however, assert that we should review the restitution order for clear error, reversing only if there was no evidence in the record to support it. See id. at ¶¶ 19-22, 34 (a challenge to the district court's findings based on the evidence provided by the prosecution is reviewed for clear error, for which we must affirm the court's findings unless they lack support in the record).
¶ 23 Because we conclude that the evidence was sufficient under the stricter de novo standard, we do not address the People's clear error argument.
¶ 24 In reviewing a sufficiency of the evidence claim, we evaluate "whether the evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, establishes by a preponderance of the evidence" that the defendant proximately caused the victim's losses. Barbre, ¶ 25. 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." People v. Stewart, 55 P.3d 107, 116 (Colo. 2002) (quoting CJI-Crim., 9:10, 9(3) (1983)). "A fact is established by a preponderance of the evidence when, upon consideration of all the evidence, the existence of that fact is more probable than its nonexistence." People v. Garner, 806 P.2d 366, 370 (Colo. 1991).
B. Uncharged Conduct
¶ 25 A defendant may not be ordered to pay restitution for damages arising from criminal conduct for which the defendant was never criminally charged. Sosa, ¶ 26.
¶ 26 Here, Ibarra was charged with one count of felony theft for unlawfully, feloniously, and knowingly, taking things of value from C.N.'s vehicle, and one count of misdemeanor theft for unlawfully and knowingly taking a thing of value from T.N.'s vehicle. He was also charged with three counts of first degree criminal trespass. The conduct underlying these charges was Ibarra's unlawful, felonious, and knowing entry into T.N.'s, B.N.'s, and C.N.'s vehicles with the intent to commit theft therein.
¶ 27 Ibarra argues that the district court should not have ordered him to pay restitution for the damage to the vehicle windows because he was never charged with criminal mischief or anything related to the damage. But the conduct for which he was criminally charged was the unlawful, felonious, and knowing entry into the victims' vehicles to steal items. The court was authorized to order him to pay restitution for losses proximately caused by that conduct. See id. at ¶ 34. Ibarra's conduct - breaking the vehicle windows to enter the vehicles to steal - constituted unlawful, felonious, and knowing entry. Therefore, the court did not impose restitution on Ibarra based on uncharged conduct.
¶ 28 That Ibarra was not also charged with criminal mischief as to the damage to the windows is immaterial. In People v. Moss, 2022 COA 92, the defendant similarly argued that she could not be held responsible for restitution for vehicle damage because she did not specifically plead guilty to - and was not charged with - such damage. Moss, ¶ 18. The division rejected the defendant's assertion that restitution must be "directly related to an element of the crimes for which [the defendant] was convicted," and we agree with that division's reasoning. Id. Restitution need only be tied to the unlawful conduct for which the defendant was charged. Id. Here, the restitution award was supported by an appropriate "evidentiary link" between the charged conduct and the victims' losses related to the vehicles' windows. Id. at ¶ 19.
C. Sufficiency of the Evidence
¶ 29 At the restitution hearing, the prosecution presented evidence in the form of testimony from T.N. and exhibits showing estimates for repairs to the windows of the three vehicles totaling $2,208.66. T.N. testified that on the day of the incident, Ibarra "had texted me and told me that he broke into my mini van, he had stolen [a] TV out of that, taken the stereo out of the vehicles, and he stole the tires off of the truck," which she said was consistent with the amount she was requesting. She testified that she noticed the broken windows once she went to see the vehicles after receiving Ibarra's text. T.N. testified that Ibarra broke the back window to get into her vehicle, ripped the headliner, and ripped the television out of the roof to steal it. According to the estimate she procured from a car dealer, T.N. said, the damage to her vehicle window cost $787.50. She next testified that Ibarra broke the back window of B.N.'s vehicle to get in, although nothing was stolen. T.N. obtained the estimate for that damage, which she considered a fair replacement cost, from Safelight AutoGlass, which totaled $1,012.98. Regarding C.N.'s vehicle, T.N. testified that Ibarra broke the driver's side window to get into the vehicle, put it on jacks, and stole the tires and rims. She specifically stated that the glass was not broken before this incident. The estimate she obtained from Safelight AutoGlass totaled $408.18 for C.N.'s vehicle. T.N. also testified that all of the claims were directly related to the incident involving Ibarra, she did not make any requests for anything that was not part of this incident, and all of the requests were in line with the known values of the items that were damaged in her, B.N.'s, and C.N.'s vehicles.
¶ 30 On cross examination, defense counsel asked T.N. questions related to the location of the vehicles on the date of the incident and how long they had been there. T.N. testified that the vehicles had been on her father's property where no one lived, awaiting repairs. Her vehicle had been there for approximately two months before the incident, B.N.'s vehicle for a few weeks, and C.N.'s vehicle for approximately one month. And the vehicles remained on the lot after the incident for months before the estimates for restitution were compiled. T.N. said she went out to the property to check on the vehicles almost every weekend. She said she was there the weekend before the incident and there was no damage to the vehicles at that time. T.N. also stated that she was not at the property on the date of the incident and did not witness Ibarra break anything.
¶ 31 Ibarra argues that this evidence is insufficient to establish proximate causation for the damage to the vehicles' windows. He claims that the vehicle windows could have been broken by another person or some natural event before or after the date of his offenses. He also claims that, although he admitted to stealing items in the text he sent to T.N., he never admitted to breaking or damaging any windows.
¶ 32 Based on the record, we conclude that the broken vehicle windows were a natural and probable result of Ibarra's conduct. The district court could reasonably conclude from the evidence that Ibarra broke the windows on all three vehicles so he could enter the vehicles and steal items, as opposed to some speculative other person or natural event that occurred before or after the incident. And the district court found T.N.'s testimony credible. We therefore conclude that the evidence, when viewed as a whole and in the light most favorable to the prosecution, established by a preponderance of the evidence that Ibarra proximately caused the losses for the vehicles' windows. Barbre, ¶ 25.
IV. Mittimus
¶ 33 The district court did not include the amount of restitution on the mittimus. Accordingly, we remand for the court to amend the mittimus to reflect the amount of restitution owed. See People v. Smith, 121 P.3d 243, 251 (Colo.App. 2005).
V. Disposition
¶ 34 The restitution order is affirmed, and the case is remanded to the district court to amend the mittimus.
JUDGE FOX and JUDGE GROVE concur.