Peo in Interest of GCI

20CA0751 Peo in Interest of GCI 01-20-2022

COLORADO COURT OF APPEALS

Court of Appeals No. 20CA0751

Weld County District Court No. 17JD322

Honorable Thomas J. Quammen, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of G.C.I.,

Juvenile-Appellant.

ORDER VACATED

Division IV

Opinion by JUDGE TOW

Richman and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced January 20, 2022

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney

General, Denver, Colorado, for Petitioner-Appellee

Megan A. Ring, Colorado State Public Defender, Mark Evans, Deputy State

Public Defender, Denver, Colorado, for Juvenile-Appellant

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¶ 1 G.C.I., a juvenile, appeals the district court’s order imposing

restitution. We vacate the restitution order.

I. Background

¶ 2 G.C.I. pleaded guilty to sexual assault on a child. The district

court imposed a two-year deferred adjudication.

¶ 3 The People filed an amended notice of restitution asking the

district court to order G.C.I. to pay $3,861.00 in restitution based

on restitution reports from the local crime victim compensation

board (CVCB). The CVCB’s reports, which were admitted into

evidence at the restitution hearing, categorized the payments to the

victim, S.M., and her mother. For S.M., the CVCB report listed the

following:

• medical services — $2539.00; and

• therapy — mental health — $410.00.

For S.M.’s mother the CVCB report listed the following:

• economic support — wages — $912.00.

¶ 4 At the restitution hearing, the prosecution relied on the CVCB

reports and called the CVCB coordinator as its only witness. At the

conclusion of the hearing, the district court ordered $3,861.00 in

restitution.

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¶ 5 G.C.I. appeals. He asserts that the prosecution presented

insufficient evidence to establish the amount of restitution claimed.

Because we agree with this contention, we do not need to address

G.C.I.’s other arguments — that the district court erred by denying

his motion to review the CVCB records in camera and that his due

process rights were violated.

II. Sufficiency of the Evidence

A. Standard of Review and Applicable Law

¶ 6 We review de novo whether evidence was sufficient to support

a restitution award. People v. Barbre, 2018 COA 123, ¶ 25. In

doing so, 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 caused that amount of loss.” Id.

¶ 7 Criminal defendants must “make full restitution to those

harmed by their misconduct.” § 18-1.3-601(1)(b), C.R.S. 2021.

Restitution “means any pecuniary loss suffered by a victim . . .

proximately caused by an offender’s conduct . . . that can be

reasonably calculated and recompensed in money.”

§ 18-1.3-602(3)(a), C.R.S. 2021.

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¶ 8 The prosecution must prove by a preponderance of the

evidence that the defendant’s conduct proximately caused the

victim’s loss and the restitution amount owed. People v. Henry,

2018 COA 48M, ¶ 15. “Proximate cause in the context of restitution

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. Rivera, 250 P.3d 1272,

1274 (Colo. App. 2010).

¶ 9 Crime victims and their relatives may seek compensation from

a CVCB for losses caused by criminal conduct, including, as

relevant here, medical expenses, mental health counseling, and loss

of earnings. §§ 24-4.1-102(10), -108, -109(1), C.R.S. 2021. When a

CVCB pays a victim compensation claim, it is a “victim” for

purposes of the restitution statute. § 18-1.3-602(4)(a)(IV).

Therefore, “[i]f a CVCB awards compensation to a victim or other

qualifying person, the CVCB is eligible to seek and obtain

restitution from a defendant in [a] criminal proceeding.” People v.

Martinez-Chavez, 2020 COA 39, ¶ 13.

¶ 10 The restitution statute creates a rebuttable presumption that

“the amount of assistance provided and requested by the [CVCB] is

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presumed to be a direct result of the defendant’s criminal conduct

and must be considered by the court in determining the amount of

restitution ordered.” § 18-1.3-603(10)(a), C.R.S. 2021; see

Martinez-Chavez, ¶ 20. The rebuttable presumption shifts the

burden to the defendant to present evidence to show that the

amount paid was not the direct result of his criminal conduct.

Henry, ¶ 19. “[I]f that burden is not met, [the presumption]

establishes the presumed facts as a matter of law.” Id. at ¶ 17

(quoting Krueger v. Ary, 205 P.3d 1150, 1154 (Colo. 2009)).

However, in order to trigger the rebuttable presumption, the

prosecution must establish the amount of assistance provided.

Martinez-Chavez, ¶ 20.

¶ 11 The restitution statute prescribes two alternative ways of

establishing this amount: “[a] list of the amount of money paid to

each provider;” or “summary data reflecting what total payments

were made for” medical and dental expenses, funeral or final

disposition expenses, mental health counseling, wage or support

losses, or other expenses. § 18-1.3-603(10)(b). However, the

second method of establishing the amount provided may only be

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used “[i]f the identity or location of a provider would pose a threat to

the safety or welfare of the victim.” § 18-1.3-603(10)(b)(II).

B. Analysis

¶ 12 G.C.I. contends that the prosecution presented insufficient

evidence to prove that he was liable for the amount of restitution

claimed because the prosecution relied on CVCB summary data to

establish the amount of assistance provided without disclosing the

identity or location of any provider but failed to demonstrate (or

even assert) that disclosing the identity or location of any provider

would pose a threat to the safety or welfare of S.M. We agree.

¶ 13 As a threshold matter, the People argue that G.C.I. failed to

preserve this issue because he did not raise the failure to produce a

list of the amount of money paid to each provider at the restitution

hearing. But, at its core, G.C.I.’s claim is that the statute

establishes the evidentiary threshold for proving the amount of

restitution owed in this context and the prosecution’s failure to

comply with the statute means that evidentiary threshold was not

met. In other words, even couched in this manner, G.C.I.’s

argument is an attack on the sufficiency of the evidence. See

McCoy v. People, 2019 CO 44, ¶ 34 (holding that unpreserved

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sufficiency of the evidence claims are reviewed de novo “even if

consideration of the issue involves a preliminary question of

statutory construction”). Thus, we review G.C.I.’s claim de novo.

¶ 14 The prosecutor relied exclusively on the second method of

proving the amount of assistance provided by the CVCB —

“summary data reflecting what total payments were made.” See

§ 18-1.3-603(10)(b)(II). As noted, the restitution statute only

permits the use of summary data to establish the amount of

assistance provided by the CVCB “[i]f the identity or location of a

provider would pose a threat to the safety or welfare of the victim.”

Id. The prosecutor did not assert that the location or identity of the

providers would pose a threat to the safety or welfare of S.M., nor

did she present any evidence to that effect. See Martinez-Chavez,

¶ 20.

¶ 15 In the absence of such evidence, the statute permits only one

way to establish the amount of assistance provided by the CVCB:

“[a] list of the amount of money paid to each provider.”

§ 18-1.3-603(10)(b)(I). But, as noted, the prosecutor did not provide

such a list. Consequently, we conclude that the prosecution did not

present sufficient evidence to establish the amount of assistance

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provided. See Martinez-Chavez, ¶ 20 (holding that the prosecution

failed to establish the amount of assistance provided because it “did

not provide a list of providers nor did they even argue that

disclosure of such a list would pose a threat to the safety or welfare

of any victim”). In other words, the evidence was insufficient to

support the amount of restitution claimed.

III. Conclusion

¶ 16 The district court’s restitution order is vacated.

JUDGE RICHMAN and JUDGE GROVE concur.