People in the Interest of A.V ( 2018 )

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
September 20, 2018
2018COA138
No. 17CA0130 People in Interest of A.V. — Juvenile Court —
Delinquency — Sentencing — Restitution
In this juvenile restitution case, a division of the court of
appeals interprets the juvenile restitution statute, section 19-2-918,
C.R.S. 2018, to conclude that a court does not need to consider or
make findings concerning whether the total restitution amount
would cause “serious hardship or injustice” to the juvenile, contrary
to the holding in People in Interest of A.R.M., 832 P.2d 1093, 1096
(Colo. App. 1992), where another division of this court interpreted
an earlier version of the statute which specifically permitted
consideration of “serious hardship or injustice.”
The division further concludes that the juvenile waived his
causation argument as to the dismissed arson count, and that the
invoices submitted with a victim impact statement constituted
sufficient evidence to support the restitution ordered for that victim.
The restitution orders are affirmed.
COLORADO COURT OF APPEALS 2018COA138
Court of Appeals No. 17CA0130
Weld County District Court Nos. 16JD123, 16JD124 & 16JD141
Honorable Randall C. Lococo, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of A.V.,
Juvenile-Appellant.
ORDERS AFFIRMED
Division VI
Opinion by JUDGE FREYRE
Terry and Navarro, JJ., concur
Announced September 20, 2018
Cynthia H. Coffman, Attorney General, Christine C. Brady, Senior Assistant
Attorney General, Denver, Colorado, for Petitioner-Appellee
Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Juvenile-
Appellant
¶1 A.V., a juvenile, appeals the juvenile court’s restitution orders
stemming from a global disposition of several different cases. He
challenges causation and estimated costs in the burglary of the
Country Inn Restaurant, the sufficiency of the evidence in a
dismissed count for burglary of the Animal Attractions Pet Store,
and the absence of specific reasonableness findings concerning
total restitution. We reject his contentions as to the Country Inn
restitution orders and conclude that he waived his causation
argument. We affirm the Animal Attractions order because the
record supports the court’s findings. As a matter of first
impression, in Part V of this opinion, we interpret the juvenile
restitution statute and conclude that amendments occurring in
1996 and 2000, removing the language on which A.V. relies, no
longer require the juvenile court to make specific reasonableness
findings before imposing restitution. Therefore, we affirm the
court’s restitution orders.
I. Background
¶2 In early 2016, a series of home and business burglaries
occurred in Greeley. They all occurred in the same general location,
at night, and several were accomplished by breaking a back door or
1
window. The victim businesses included Boost Mobile Cellular,
Blue Mug Coffee, Taste of Philly, Animal Attractions Pet Store, CG
Vapors, and the Country Inn Restaurant. The Country Inn also
sustained extensive fire damage in the burglary, and the fire
destroyed most of the business.
¶3 Police apprehended A.V. and an accomplice fleeing from one of
the home burglaries. The accomplice confessed and implicated A.V.
When questioned, A.V. admitted being in the backyard of the home
during the burglary and provided details of other burglaries in the
same general area. In particular, he described the burglaries of
Taste of Philly, Blue Mug Coffee, Animal Attractions, Country Inn,
and CG Vapors. He also possessed a lizard from Animal Attractions
and was wearing shoes whose prints matched shoeprints found at
the other burglary scenes.
¶4 During a search of A.V.’s home, police recovered a vape pen
stolen from CG Vapors, two mobile phones stolen from Boost
Mobile, a distinctive backpack and hat that matched those seen on
surveillance video from Taste of Philly, and the lizard. Thereafter,
the prosecution charged A.V. in five separate cases: (1) 16JD123
(Taste of Philly); (2) 16JD124 (Country Inn); (3) 16JD141 (home
2
burglaries); (4) 16JD121 (Animal Attractions and CG Vapors); and
(5) 16JD118 (Boost Mobile). A.V. pleaded guilty to one count in
16JD123, one count in 16JD124, and two counts in 16JD141 in
exchange for the dismissal of the remaining counts and cases
16JD121 and 16JD118.
¶5 As part of this global disposition and as relevant here, A.V.
pleaded guilty to second degree burglary of the Country Inn in
exchange for the dismissal of the remaining counts, including first
degree arson. In the written plea agreement, A.V. stipulated to a
factual basis and agreed to pay restitution to the victims of the
dismissed counts. Similarly, A.V. pleaded guilty to second degree
burglary in the Taste of Philly case in exchange for the dismissal of
the remaining counts and the dismissal of the Animal Attractions,
CG Vapors, and Boost Mobile cases. He stipulated to a factual
basis and agreed to pay restitution to the victims of the dismissed
counts and cases in the plea agreement.1
1 A.V. similarly resolved other cases, not at issue here, in which he
stipulated to a factual basis and restitution for victims of the
dismissed counts and dismissed cases.
3
¶6 The prosecution requested $682,600 in restitution for the
Country Inn case and $8119.202 for the dismissed Animal
Attractions case. Before the restitution hearing began, the
prosecutor stated his understanding that A.V.’s stipulation to a
factual basis in each case (including the dismissed cases) included
and constituted a stipulation to causation. Defense counsel
responded, “I think that’s the understanding of how things go here.”
Consistent with this understanding, the court took judicial notice of
the court files in each case, including the warrantless arrest
affidavits.
¶7 During argument, A.V. conceded that he owed $470,874.47
(costs incurred to date) in the Country Inn case, which represented
the repair and reconstruction expenses resulting from the arson.
He asked the court to order that amount, and contested only the
estimated costs of $211,759.53 to complete the repairs. As to
Animal Attractions, the prosecution called no witnesses and relied
2 Taste of Philly and CG Vapors did not request restitution, but A.V.
agreed to pay Animal Attractions and Boost Mobile restitution as
part of the plea agreement. Animal Attractions requested $2564.42
and its insurer requested $2938.74. Boost Mobile and its insurer
requested $2616.04.
4
on invoices submitted to victims’ compensation3 for reimbursement.
A.V. argued that these invoices alone were insufficient to establish
an amount owed.
¶8 In a detailed oral order, the juvenile court concluded that the
testimony of Country Inn’s owner, the insurer’s attorney, and the
admitted exhibits established restitution of $1000 to Country Inn’s
owner for the deductible and $681,600 to Country Inn’s insurer for
the repair work. The court found that A.V.’s stipulation to a factual
basis, coupled with the similarities between the Country Inn
burglary and the other burglaries, showed that “[A.V.]’s conduct
more likely than not was the proximate cause of the damage and
the claimed injuries at the Country Inn and that of their insurers.”
¶9 The juvenile court further found that the loss amounts
submitted by Animal Attractions and its insurer in the victim
impact statements sufficiently established the victims’ losses to
order restitution in the amount requested. The court found that
A.V.’s conduct proximately caused the claimed losses based on the
3 Section 24-4.1-105, C.R.S. 2018, permits crime victims to apply
for compensation from the victim compensation board by
submitting documents demonstrating damages.
5
stipulated factual basis and the judicially noticed information in the
affidavits for warrantless arrest.
II. A.V. Waived His Proximate Cause Challenge
¶ 10 A.V. contends that no facts exist to show that he caused the
Country Inn fire and that the prosecution failed to meet its burden
of proving proximate cause for these claimed losses. We conclude
that under the unique facts of this case, A.V. waived his challenge
to proximate cause by (1) stipulating to a factual basis in the plea
agreement and at the providency hearing; (2) stipulating to pay
restitution to the victims of the dismissed counts (in this case the
arson count) in the plea agreement; (3) agreeing with the prosecutor
before the restitution hearing that A.V.’s stipulated factual bases in
all cases included a stipulation to causation; and (4) asking the
court to order $470,874.47 for losses related to the dismissed arson
count.
A. Standard of Review
¶ 11 A.V. admits that he did not challenge proximate cause in the
juvenile court, but asserts that sufficiency of the evidence may be
raised for the first time on appeal. Relying on section 18-1-409,
C.R.S. 2018, and C.A.R. 4, he reasons that because restitution is
6
part of a sentence and because the statute provides a right to
directly appeal a sentence — including the sufficiency and the
accuracy of the information on which it is based — we should
review his claim de novo.
¶ 12 The People respond that A.V. waived this alleged error. See
People v. Rediger, 2018 CO 32, ¶ 39. For this argument, they rely
on A.V.’s stipulation to a factual basis in all cases and all counts,
including dismissed cases and dismissed counts, his agreement to
pay restitution to the victims of dismissed counts, and his request
for the court to specifically order $470,874.47 in restitution for the
dismissed arson count. For the reasons described below, we agree
with the People.
B. Waiver Law
¶ 13 “When a party specifically removes issues from a trial court’s
consideration, the party has waived those issues and we may not
review them on appeal.” People v. Geisick, 2016 COA 113, ¶ 16. A
valid waiver requires “that the defendant intentionally relinquish[] a
known right or privilege.” Rediger, ¶ 39; see also People v. Smith,
2018 CO 33, ¶ 17. This approach includes fundamental
constitutional rights. Rediger, ¶ 39; People v. Stackhouse, 2015 CO
7
48, ¶ 8. We must “indulge every reasonable presumption against
waiver,” Rediger, ¶ 39 (quoting People v. Curtis, 681 P.2d 504, 514
(Colo. 1984)). Therefore, to determine whether a party has removed
an issue from our review, we must examine the conduct (or lack of
conduct) by the party within the context of all the circumstances.
People v. Perez-Rodriguez, 2017 COA 77, ¶ 27 (“To determine
whether the statement ‘no objection’ or even silence should be
characterized as either deliberate or inadvertent, it is necessary to
consider the objection or silence in the context of its
circumstances.”). And, because “[w]aiver is accomplished by
intent,” we focus on whether the right was “known” and whether it
was relinquished “intentional[ly].” Rediger, ¶ 40 (quoting United
States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007)).
In doing so, we are guided by cases that have decided this issue.
Rediger, ¶¶ 46-47 (defense counsel stated he had read the
instructions and was satisfied with them, and this conduct forfeited
rather than waived the instructional error); Smith, ¶ 22 (defense
counsel’s indication that he “accepted” the jury instructions
forfeited rather than waived the instructional error); Stackhouse,
¶ 17 (defense counsel’s failure to object to the known closure of the
8
courtroom during voir dire waived the issue on appeal); People v.
Allgier, 2018 COA 122, ¶¶ 4, 28 (defense counsel’s statement of “no
objection” to the admission of firearms forfeited rather than waived
the CRE 403 appellate argument related to the firearms’ admission);
People v. Kessler, 2018 COA 60, ¶ 37 (defense counsel’s agreement
that the evidence was admissible waived the admissibility issue on
appeal); People v. Tee, 2018 COA 84, ¶ 4 (where defense counsel
affirmatively stated that she was not seeking a mistrial at that time,
after two jurors engaged in pre-deliberation discussions, counsel
waived rather than forfeited the issue on appeal); Geisick, ¶ 20
(defense counsel’s argument that the evidence supported lesser
non-included offenses forfeited, rather than waived, a sufficiency
challenge on appeal); People v. Tillery, 231 P.3d 36, 44 (Colo. App.
2009), aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011)
(defense counsel’s participation in the formulation of an instruction
waived the instructional error).
C. Analysis
¶ 14 The record in this case reveals that when he entered his plea,
A.V. knew he would be responsible for paying restitution to the
victims named in the dismissed counts, and in particular the arson
9
count. Both he and his attorney signed the written plea agreement
in which he stipulated to a factual basis and agreed to pay
restitution to the victims of the dismissed counts. See McCarty v.
People, 874 P.2d 394, 400 (Colo. 1994) (“[W]here a defendant, as
part of a plea agreement, consents to restitution, he cannot later
disavow the restitution obligation.”); People v. Quinonez, 735 P.2d
159, 164 (Colo. 1987) (“Where a defendant agrees to make
restitution at the time of entering a plea, he cannot later disavow
the agreement on the basis that there was no showing that he had
caused the victim’s injury.”), superseded by statute on other grounds
as stated in Dubois v. People, 211 P.3d 41, 44 (Colo. 2009).
¶ 15 We are not persuaded by A.V.’s assertion that the stipulated
facts related only to the burglary count, to which he pleaded guilty,
and not to the dismissed counts. The language in the plea
agreement does not contain this limitation, nor did the court’s
discussion with him. Indeed, during the providency hearing, the
juvenile court said, “You understand you do not have to plead guilty
to anything, you can say not guilty, I didn’t do it, or I want my day
in court?” and A.V. responded, “Yeah.” Then, before imposing
sentence, the court reiterated that “[a]ny victims on dismissed
10
counts in individual cases are included in the plea that was made
in each of those cases, specifically on the [Country Inn] case,
dismissed counts 2 through 4. Victims identified there are included
in his plea to Count 1.” Neither A.V. nor his attorney expressed any
disagreement with this statement or offered to correct it. See People
v. DiGuglielmo, 33 P.3d 1248, 1251 (Colo. App. 2001) (explaining
that a defendant must request clarification from the court rather
than assert on appeal that he or she was confused at the
providency hearing); cf. People v. Randolph, 852 P.2d 1282, 1283-84
(Colo. App. 1992) (Because the defendant was convicted of theft by
receiving, “was not charged with any offense relating to the other
property,” and the “record is devoid of evidence establishing
defendant’s involvement in the theft of the personal property,” it
was error to impose restitution for missing items.).
¶ 16 Still, under our waiver jurisprudence, simply stipulating to a
factual basis may be insufficient to waive causation where the issue
of causation is not specifically identified or discussed. Allgier, ¶ 10
(proposing six possible explanations for counsel’s statement of “no
objection”). So we look further. The record reveals that the
prosecutor provided timely notice of the restitution amounts
11
requested, and A.V. does not claim otherwise. Indeed, because of
the large amount requested in the Country Inn case, defense
counsel told the court it was unlikely that she and the prosecutor
could reach a resolution without a restitution hearing.
¶ 17 Importantly, at the hearing and before presenting any
evidence, the prosecutor clarified his understanding that A.V.’s
stipulation to a factual basis included a stipulation to causation. In
our view, this clarification and defense counsel’s affirmative
response that this was also her understanding constituted more
than general acquiescence or a failure to object — it established
A.V.’s counsel’s knowledge that causation was an issue that was
not being contested (or proved by the prosecution) at the restitution
hearing. See Kessler, ¶ 37 (finding that defense counsel’s
concession that evidence was admissible waived the ability to
contest admissibility on appeal). We can think of no other reason
for the prosecutor to raise this issue before the hearing except to
clarify the scope of his burden of proof at the hearing.
¶ 18 Finally, any possible question that causation remained an
issue was dispelled by defense counsel’s concession (i.e., intentional
relinquishment) during argument that A.V. owed $470,874.47 for
12
the arson-related damages and her specific request that the court
order restitution in this amount. Counsel never argued that A.V.
had not caused the fire and did not otherwise hedge her restitution
request based on an objection to paying any restitution.
Accordingly, in light of all the circumstances, we conclude that A.V.
waived any challenge to causation and that we have nothing to
review in that regard.
III. Estimated Repair Costs are Part of Restitution
¶ 19 A.V. next contends that the juvenile court erroneously ordered
him to pay the estimated repair costs to Country Inn’s insurer. He
argues that this amount is speculative and that he should only be
obligated to pay for expenses incurred to date. We disagree.
A. Standard of Review and Applicable Law
¶ 20 We review a trial court’s restitution order for an abuse of
discretion. People v. Henry, 2018 COA 48M, ¶ 12. A court abuses
its discretion when it misconstrues or misapplies the law, or its
decision is manifestly arbitrary, unreasonable, or unfair. Id. We
will not disturb the court’s determination of restitution if it is
supported by the record. Id.13
¶ 21 We review and interpret statutes de novo. People v. Padilla-
Lopez, 2012 CO 49, ¶ 7; People v. McLain, 2016 COA 74, ¶ 9. When
construing statutes, we aim to ascertain and give effect to the intent
of the General Assembly. Padilla-Lopez, ¶ 7. We accord words and
phrases their plain and ordinary meanings. Id. “Where the
language is clear, it is not necessary to resort to other tools of
statutory construction.” Goodman v. Heritage Builders, Inc., 2017
CO 13, ¶ 17.
¶ 22 Restitution in juvenile cases is governed by the adult
restitution statute. People in Interest of D.I., 2015 COA 136, ¶ 9.
“Restitution” is “any pecuniary loss suffered by a victim,” including
but not limited to certain enumerated types of losses “and other
losses or injuries proximately caused by an offender’s conduct and
that can be reasonably calculated and recompensed in money.”
§ 18-1.3-602(3)(a), C.R.S. 2018.
¶ 23 Offenders are required to pay “full restitution” to victims
harmed by their misconduct. § 18-1.3-601(1)(b), C.R.S. 2018. This
includes recovery of the actual pecuniary loss suffered by the victim
as a direct result of the defendant’s conduct, including “anticipated
future expenses.” See § 18-1.3-602(3)(a). One purpose of
14
restitution is to make the victim whole to the extent practicable.
People v. Courtney, 868 P.2d 1126, 1128 (Colo. App. 1993). Other
purposes include rehabilitation, deterring future criminality, and
reducing the financial burden on victims and their families, as well
as compensating them for their losses. § 18-1.3-601(1)(c)-(g). The
restitution statute must be liberally construed to accomplish these
goals. § 18-1.3-601(2).
¶ 24 A court bases its restitution order on information provided by
the prosecuting attorney. § 18-1.3-603(2), C.R.S. 2018. The
prosecution bears the burden of proving the amount of restitution
owed by a preponderance of the evidence. People v. Vasseur, 2016
COA 107, ¶ 15. The defendant must have the opportunity to
contest the amount of the victim’s loss, but the court need not
“conduct a mini-trial on the issue of damages.” People v. Johnson,
780 P.2d 504, 507 (Colo. 1989); accord Vasseur, ¶ 15. More than
speculation is required for a defendant to bear responsibility for a
victim’s loss. People v. Stafford, 93 P.3d 572, 576 (Colo. App. 2004).
But the prosecution is not required to prove restitution by the same
quality of evidence required in a trial on the merits of the case.
People v. Rosales, 134 P.3d 429, 433 (Colo. App. 2005).
15
B. Analysis
¶ 25 At the hearing, Country Inn’s owner described his insurance
policy, with its $1000 deductible, and his belief that the policy limit
for repairs was $410,000. Yet, the insurer’s attorney and the
uncontested documentary evidence showed that the insurer had
paid $470,874.47 in repair expenses as of the date of the hearing.
The attorney testified that the insurer had obtained an estimate of
$683,000 to perform all required repair work and that the insurer
intended to cover repair costs up to that estimated amount.
¶ 26 When challenged on the accuracy of the estimate, the attorney
admitted that it was based on industry standards and that actual
costs could be different. He described this difference as a “cost of
doing business as a construction company” and said any
differences would be absorbed by the construction company and
not the insured.
¶ 27 During argument, A.V.’s counsel asked the court to order
restitution only in the amount paid to date. In particular, she
argued that the balance to complete the repairs existed only as a
number in an exhibit, that the insurer’s attorney “had no idea what
[the] policy limits were,” “couldn’t testify to what amount out of
16
what had been paid,” and did not know “whether the [estimate] was
going to be the exact amount.” She reasoned that the inaccuracy of
the estimate would create a windfall for the insurance company.
¶ 28 Relying on the owner’s testimony, the attorney’s testimony,
and two exhibits, the juvenile court found that, without considering
depreciation, the total cost of repairing Country Inn would be in
excess of $800,000. But, considering the depreciation, the insurer
agreed to pay $687,365 and had $683,000 in reserves. The court
rejected A.V.’s inaccuracy argument and found that estimates “are
permitted in restitution claims and may be considered by [the court]
for purposes of restitution.” Thereafter, it ordered A.V. to pay
$681,6004 to the insurer and $1000 to the owner.
¶ 29 We discern no abuse of discretion in the court’s order because
the record supports it. As the fact finder, the court had the
authority to determine the weight of the evidence, the witnesses’
credibility, and ultimately the accuracy of the estimate. See People
v. Leonard, 167 P.3d 178, 182 (Colo. App. 2007); cf. People v.
Henson, 2013 COA 36, ¶¶ 18-19 (evidence, including a victim’s
4 This reflects the $683,000 minus the $1000 deductible and $400
in attorney fees.
17
testimony, that supported lost wages was “somewhat thin and
unclear” but sufficient to support lost wage finding). Moreover, the
court correctly found that it had the legal authority to consider
estimated costs. See § 18-1.3-602(3)(a) (restitution includes
“anticipated future expenses”); Stafford, 93 P.3d at 576 (concluding
that witness testimony concerning company’s total expenses
incurred as a result of the defendant’s theft was sufficient to
support a restitution order); Courtney, 868 P.2d at 1128 (explaining
how the victim’s estimate of the value of tools inside his stolen car
was sufficient to support restitution for lost tools). And the record
demonstrates that A.V. thoroughly cross-examined the attorney on
the accuracy of the estimates.
¶ 30 Once the prosecution presented competent evidence of the
estimated expenses, A.V. could have rebutted the estimate by
offering evidence of its inaccuracy. People v. Miller, 830 P.2d 1092,
1094 (Colo. App. 1991) (“[I]f the defendant fails to show that the
information is inaccurate or untrue, the trial court is entitled to rely
upon the report or statement as submitted.”). Because he did not,
the juvenile court properly relied on the evidence presented and
imposed restitution for the total amount of the repairs. Therefore,
18
we affirm its restitution order with respect to the Country Inn
losses.
IV. Sufficient Evidence Supports the Animal Attractions Order
¶ 31 A.V. next contends that the invoices submitted with Animal
Attractions’ victim impact statement were insufficient to establish
restitution and that the prosecution was required to present
witness testimony to satisfy its burden. We are not persuaded.
A. Standard of Review and Law
¶ 32 A.V. preserved this issue when he objected to the court’s order
absent witness testimony. We review sufficiency challenges de
novo. People v. Barbe, 2018 COA 123, ¶ 25; People v. Ortiz, 2016
COA 58, ¶ 26. We determine “whether the evidence is sufficient in
both quality and quantity to satisfy the applicable burden of proof.”
Ortiz, ¶ 26.
¶ 33 To meet its burden of proof, a prosecutor may rely solely on
victim impact statements. See § 18-1.3-603(2); People v. Hill, 296
P.3d 121, 126 (Colo. App. 2011). The court may also order
restitution for victims not named in the counts reflected in the
judgment of conviction. People v. Foos, 2016 COA 139, ¶ 21; People
v. Steinbeck, 186 P.3d 54, 60 (Colo. App. 2007) (restitution statute
19
does not require the defendant be charged with a specific act to be
ordered to pay restitution); People v Armijo, 989 P.2d 224, 227
(Colo. App. 1999) (explaining that the restitution statute does not
authorize an award of restitution to persons not designated in the
charge, unless the defendant agrees to pay such restitution); see
also United States v. Thompson, 39 F.3d 1103, 1104 (10th Cir.
1994) (holding that where the defendant agreed to pay full
restitution in exchange for the dismissal of forty-seven counts, it
was proper to order full restitution).
B. Analysis
¶ 34 Before the restitution hearing, Animal Attractions submitted a
victim impact statement requesting $2564.42 for its losses not
covered by insurance. Its insurer requested $2938.74 for the
money it had paid out. Attached to the statement were sales
receipts documenting the money stolen from the safe and the
damage to the back door, as well as a statement from its insurer
documenting the costs related to lost terrariums and reptiles, and
damage to the security cameras and monitor, safe, pet supplies,
register, and clean up.
20
¶ 35 Contrary to A.V.’s argument, we are not persuaded that People
v. Rivera, 250 P.3d 1272 (Colo. App. 2010), where a division of this
court affirmed a restitution order based on documents and a
witness statement at sentencing, required the juvenile court to
receive testimony before ordering restitution here. First, nothing in
Rivera or in the plain language of the restitution statute requires
the prosecution to present evidence in the form of testimony. § 18-
1.3-603(2) (“The court shall base its order for restitution upon
information presented to the court by the prosecuting
attorney . . . .”); see also Vasseur, ¶¶ 18-22 (the right of
confrontation and the rules of evidence do not apply in a restitution
proceeding). To the contrary, the prosecution may rely solely on
documentary evidence to meet its burden. See, e.g., People v.
Stanley, 2017 COA 121, ¶¶ 7-9 (ordering restitution based on
documents only); People v. Welliver, 2012 COA 44, ¶ 6 (court was
justified in relying on two documents attached to the presentence
report in determining the amount of restitution); People v.
Brockelman, 862 P.2d 1040, 1042 (Colo. App. 1993) (victim impact
statement and police report established a basis for an order of
restitution). And when the prosecutor here submitted documents to
21
support his request, the burden shifted to A.V. to show that the
requested amount was incorrect. See Miller, 830 P.2d at 1094(absent evidence the information is incorrect, the trial court can rely
on evidence submitted by the prosecutor). Because the documents
support the court’s order and A.V. offered no rebuttal evidence, we
conclude that the court’s order was not an abuse of discretion and
affirm it.
V. No Specific Reasonableness Findings Are Required
¶ 36 Relying on section 19-2-918(2), C.R.S. 2018, and People in
Interest of A.R.M., 832 P.2d 1093 (Colo. App. 1992), A.V. last
contends that the juvenile court was required to make specific
reasonableness findings before ordering restitution and that
$692,806.20 is not a reasonable amount of restitution to be
awarded against an incarcerated juvenile. Because the General
Assembly has twice amended the version of the statute interpreted
by A.R.M., we conclude that A.R.M.’s holding is not relevant here
and that no abuse of discretion occurred.
¶ 37 The current juvenile restitution statute provides as follows:
(1) If the court finds that a juvenile who . . . is
adjudicated a juvenile delinquent has damaged
the personal or real property of a victim, that
22
the victim’s personal property has been lost, or
that personal injury has been caused to a
victim as a result of the juvenile’s delinquent
act, the court, in addition to any other
sentence or commitment that it may impose on
the juvenile pursuant to section 19-2-907,
shall enter a sentencing order requiring the
juvenile to make restitution as required by
article 18.5 of title 16 and part 6 of article 1.3
of title 18, C.R.S.
(2) Restitution shall be ordered to be paid in a
reasonable manner, as determined by the
court and in accordance with article 18.5 of
title 16 and part 6 of article 1.3 of title 18,
C.R.S.
§ 19-2-918. A.V. relies on the “reasonable manner” language and
A.R.M. to argue that a court is required to make specific,
on-the-record findings about the reasonableness of the restitution
amount and the reasonableness of repayment terms, considering
whether the restitution would cause serious hardship or injustice to
the juvenile. He further argues that a court should consider the
family’s circumstances and the juvenile’s potential ability to pay
after his release from incarceration.
¶ 38 In A.R.M., the juvenile argued that the statute required the
court to consider his ability to pay restitution, and that since he
was incarcerated and unable to pay anything, the order should be
23
vacated. 832 P.2d at 1096. A division of this court disagreed,
noting that the juvenile system has a strong interest in
“encouraging the juvenile to be responsible for the damage he has
caused,” and so “wherever possible, restitution should be required.”
Id. It held that a court could order restitution for an incarcerated
juvenile. Id. However, it further held that,
at the time restitution is ordered, the court
must make findings of the reasonableness of
the restitution amount and the reasonableness
of the repayment terms. In considering
whether restitution would cause serious
hardship or injustice to the juvenile, the court
may consider family circumstances as well as
the juvenile’s potential ability to pay after his
release from incarceration.
Id.¶ 39 While we have no disagreement with the division’s logical
interpretation of the juvenile restitution statute in A.R.M., we are
precluded from following it because the General Assembly has
amended the statute twice to remove the language on which A.R.M.
relied. The version of the statute interpreted by A.R.M. provided
that
[i]f the court finds that a juvenile who receives
a deferral of adjudication or who is adjudicated
a juvenile delinquent has damaged the
24
personal or real property of a victim, that the
victim’s personal property has been lost, or
that personal injury has been caused to a
victim as a result of the juvenile’s delinquent
act, the court shall enter a sentencing order
requiring the juvenile to make restitution for
actual damages done to persons or property;
except that the court shall not order restitution
if it finds that monetary payment or payment in
kind would cause serious hardship or injustice
to the juvenile. Such order shall require
payment of insurers and other persons or
entities succeeding to the rights of the victim
through subrogation or otherwise, if
appropriate. Restitution shall be ordered in a
reasonable amount to be paid in a reasonable
manner, as determined by the court.
§ 19-2-703(4), C.R.S. 1991 (emphasis added).
¶ 40 In 1996, the General Assembly relocated and amended the
statute, removing the “in a reasonable amount” language. See Ch.
288, sec. 9, § 19-2-918, 1996 Colo. Sess. Laws 1782. Four years
later, it amended the statute again and removed the exception
language that precluded restitution if it “would cause serious
hardship or injustice to the juvenile.” Ch. 232, sec. 2, § 19-2-918,
2000 Colo. Sess. Laws 1041-42.
¶ 41 We conclude that these deletions reflect the General
Assembly’s intent to remove ability to pay and hardship from a
juvenile court’s consideration when ordering restitution. McLain,
25
¶ 9 (when statutory language is clear we look no further). In doing
so, we recognize the harsh result of our interpretation in this case,
and its arguable inconsistency with other legislative enactments in
recent years aimed at diminishing the punitive aspects and
increasing the rehabilitative aspects of juvenile sentencing. See,
e.g., § 19-2-102(1), C.R.S. 2018 (explaining that the intent of the
juvenile system includes consideration of the “best interests of the
juvenile”); § 19-2-402(1)(c), C.R.S. 2018 (limiting juvenile detention
for juveniles between ten and thirteen years old); Ch. 128, sec. 1,
§ 19-2-517, 2012 Colo. Sess. Laws 439-40 (raising the age of direct-
filing from fourteen to sixteen); see also People in Interest of J.S.R.,
2014 COA 98M, ¶ 31 (“[U]nlike the adult criminal justice system,
the purpose of the juvenile system is primarily rehabilitative, not
punitive.”). Nevertheless, we are bound by the statute’s plain
language, which mandates that the juvenile court order full
restitution for the victims’ losses. See Riley v. People, 104 P.3d 218,
221 (Colo. 2004) (“There is a presumption that the word ‘shall’ when
used in a statute is mandatory.”). Accordingly, we affirm the court’s
orders.
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VI. Conclusion
¶ 42 The orders of restitution are affirmed.
JUDGE TERRY and JUDGE NAVARRO concur.
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