Peo v. Foos

23CA0764 Peo v Foos 11-13-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0764
Adams County District Court No. 22CR2988
Honorable Robert W. Kiesnowski, Jr., Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Talon Michael Foos,

Defendant-Appellant.

ORDER AFFIRMED

Division V
Opinion by JUDGE YUN
Freyre and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 13, 2025

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

Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Talon Michael Foos appeals the district court’s restitution

order in the amount of $3,535.94. Foos argues that the order must

be vacated because the prosecution failed to comply with a deadline

in the restitution statute. Alternatively, he argues the restitution

amount should be reduced because (1) the victim was not entitled

to replacement value; (2) the prosecution failed to establish

proximate cause; and (3) the victim did not mitigate damages. We

disagree and affirm the restitution order.

I. Background

¶2 On September 27, 2022, Thornton police found Foos asleep in

a truck stolen from Montana. Inside the truck, police discovered

drug paraphernalia, weapons, and firearm accessories. As a result,

the People charged Foos with multiple drug- and weapon-related

offenses, as well as aggravated motor vehicle theft.

¶3 On December 6, 2022, Foos entered into a plea agreement in

which he pleaded guilty to possession of a controlled substance

with intent to distribute and aggravated motor vehicle theft. As part

of the plea agreement, he agreed to pay restitution. Specifically, he

agreed to the following terms:

1
I agree to pay any Court-ordered
restitution. . . . I agree that I am obligated to
pay restitution as part of this plea agreement,
and further agree that the amount of
restitution will be determined within 91 days
of sentencing unless that deadline is extended
for good cause.

¶4 At the providency hearing, the court accepted Foos’s guilty

pleas. During the hearing, the prosecution advised the court that it

“anticipate[d] restitution,” and the court reserved the matter for

sentencing. Immediately afterward, the judge asked Foos: “Do you

understand that you will have to pay any restoration [sic] as a part

of the plea agreement?” Foos responded, “Yes, Ma’am.” Similarly,

in his presentence interview, Foos reiterated that he could remedy

the harm caused by his offense by “pay[ing] restitution to the

victim.”

¶5 At the sentencing hearing on February 8, 2023, the

prosecution informed the court that it was seeking $3,789.95 in

restitution. However, the prosecution had not yet filed the

supporting documentation. The prosecution noted that it “was able

to confirm [the restitution amount] this morning,” though the

record suggests the prosecution received the supporting

2
information — an email from the victim confirming his insurance

settlement — on January 27, 2023.

¶6 The court entered an order finding Foos liable for restitution,

with the amount to be determined later through a subsequent

motion. The court then granted the prosecution twenty-one days to

file its motion for restitution and gave the defense fourteen days

thereafter to file any objection.

¶7 The next morning, on February 9, 2023, the prosecution filed

its restitution motion, requesting $3,789.95, along with supporting

documentation. After the victim transferred the title to his truck to

his insurer, the insurer declared the truck to be a total loss due to

potential drug contamination and paid him a total cash payment of

$16,944.47. Thus, the prosecution’s request consisted of $500.00

for the insurance deductible and $3,289.95 for two after-market

accessories: (1) a trailer hitch valued at $1,400.00 (including

shipping) and (2) a front bumper valued at $1,889.95. To

substantiate the $3,289.95 figure, the prosecution offered

screenshots of website prices for the accessories provided by the

victim.

3
¶8 Foos filed an objection to the motion for restitution, and the

court held a restitution hearing on March 24, 2023. The court

ordered restitution totaling $3,535.94, which included $1,889.95

for the bumper, $1,095.99 for the hitch (excluding shipping costs),

$500.00 for the insurance deductible, and $50.00 for an insurance

transfer fee.

¶9 Foos now appeals the restitution order, arguing that the order

must be vacated or, at a minimum, reduced. We begin by

addressing whether the order must be vacated and then examine

whether the amount should be reduced.

II. Restitution Order Vacatur

¶ 10 Foos argues that the district court’s restitution order must be

vacated because the prosecution did not provide available

restitution information at sentencing, as required by

section 18-1.3-603(2)(a), C.R.S. 2022,1 and People v. Weeks, 2021

CO 75, ¶ 31. Assuming arguendo that the district court erred by

1 The restitution statute was recently amended to reduce the

prosecution’s deadline from ninety-one to sixty-three days, effective
May 30, 2025. Ch. 307, sec. 1, § 18-1.3-603, 2025 Colo. Sess.
Laws 1606. That amendment is inapplicable to this case. We
therefore rely, throughout this opinion, on the statute that was in
effect at the time the court granted restitution.

4
excusing the prosecution’s failure to provide the restitution

information at sentencing, the error was harmless.

A. Standard of Review and Applicable Law

¶ 11 The proper interpretation of the restitution statute is a

question of law that we review de novo. Weeks, ¶ 13.

Section 18-1.3-603 describes the process for obtaining restitution

and imposes deadlines on the court and the prosecution. Id. at ¶ 7.

To obtain restitution, a court must enter one of four orders at

sentencing. Id. at ¶ 3. As relevant here, one option is an order

“that the defendant is obligated to pay restitution, but that the

specific amount of restitution shall be determined” at a later date.

§ 18-1.3-603(1)(b).

¶ 12 This later date is restricted by two statutory deadlines. The

first deadline, subsection (1)(b), requires the court to determine the

amount of restitution “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.” § 18-1.3-603(1)(b); see Weeks, ¶ 5.

¶ 13 The second deadline, subsection (2)(a), requires the

prosecution to “compile [restitution] information” and “present this

5
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.” § 18-1.3-603(2)(a). “The court may extend this date if

it finds that there are extenuating circumstances affecting the

prosecuting attorney’s ability to determine restitution.” Id. In

Weeks, the court interpreted subsection (2)(a) to mean the

prosecution “should make a motion for restitution before or during

the sentencing hearing.” Weeks, ¶ 44.

¶ 14 When a district court fails to issue one of the four enumerated

orders or fails to comply with its subsection (1)(b) deadline, the

supreme court has held that the district court loses its authority to

order restitution, requiring vacatur of the order. See Snow v.

People, 2025 CO 32, ¶ 27 (vacating the district court’s restitution

order because it failed to enter one of the four enumerated orders

by reserving the issue of restitution in its entirety beyond

sentencing); Weeks, ¶ 47 (vacating the district court’s restitution

order because the court lost authority to order restitution after

violating its subsection (1)(b) deadline).

¶ 15 However, other divisions of this court have held that when, as

here, the district court orders restitution within its subsection (1)(b)

6
deadline, it retains its authority to impose restitution. See People v.

Martinez Rubier, 2024 COA 67, ¶ 47; People v. Brassill, 2024 COA

19, ¶ 58 (cert. granted Aug. 4, 2025).2 Thus, when the district court

retains its authority to order restitution, we review the court’s

decision to excuse the prosecution’s failure to provide the available

restitution information at sentencing for harmless error. Martinez

Rubier, ¶¶ 42-48; Brassill, ¶¶ 56-63.

¶ 16 To determine whether the prosecution’s violation of its

statutory deadline requires vacatur of the restitution order under

harmless error, we consider (1) the gravity of the deviation from

statutory deadlines, “including a consideration of due process

concerns,” and (2) any prejudice to the defendant caused by the

deviation. Martinez Rubier, ¶ 48 (citation omitted).

2 The supreme court granted a writ of certiorari to determine

“[w]hether, under People v. Weeks, 2021 CO 75, the district court
loses authority to order restitution due to the prosecution’s lack of
compliance with section 18-1.3-603(2)(a) . . . and, thus, whether the
court of appeals erred by applying harmless error review instead of
vacating the restitution order.” Solano v. People, No. 24SC704,
2025 WL 2591397, at *1 (Colo. Sept. 8, 2025) (unpublished order).

7
B. Discussion

¶ 17 Foos argues that, under Weeks, his restitution order “must be

vacated” because the prosecution submitted the information

supporting its requested amount of restitution one day after the

sentencing hearing, in violation of its subsection (2)(a) deadline.

Assuming the prosecution violated this deadline, we disagree that

the correct remedy is vacatur for two reasons.

¶ 18 First, Weeks does not hold that the prosecution’s failure to

submit restitution information “prior to the order of conviction,” in

violation of subsection (2)(a), requires vacating the order. See

Weeks, ¶ 47. Rather, in Weeks, the court vacated the restitution

order because the district court violated its subsection (1)(b)

deadline when it determined the amount of restitution nearly a year

after sentencing without making an express or timely finding of

good cause to extend that deadline. Id. at ¶ 45. Under those

circumstances, vacatur — not a harmlessness analysis — was the

proper remedy because the district court lost its authority to impose

restitution. See Snow, ¶ 31 (“We chose the remedy of vacatur in

Weeks because we could conceive of no other appropriate remedy

when . . . the trial court, after entering a subsection (1)(b) order

8
finding restitution liability at sentencing, fails to comply with the

ninety-one-day deadline and thus acts without authority in

determining the amount of restitution.”).

¶ 19 Here, by contrast, the district court entered its restitution

order forty-four days after sentencing — well within its

subsection (1)(b) deadline. As in Martinez Rubier, ¶ 46, Foos

does not cite, and we are unaware of, any
reported Colorado case holding that a court
lacks the authority to enter a restitution order
by allowing any deviation from the restitution
timetable specified in section 18-1.3-603, so
long as the court ultimately enters its
restitution order within the ninety-one-day
deadline set forth in section 18-1.3-603(1)(b).

Thus, because the district court retained its authority, we conclude

that vacatur was not required by Weeks.

¶ 20 Second, under the harmless error analysis, vacatur is not

required because the prosecution missed the statutory deadline by

only one day and Foos suffered no resulting prejudice. As for the

gravity of the deviation, Foos insists the prosecution was required to

submit the supporting information for its restitution request during

sentencing, unless that information was unavailable. But here, the

prosecution provided the restitution amount at the sentencing

9
hearing and submitted the supporting information the next

morning. At worst, the prosecution’s deviation from the statutory

deadline was one day, and thus of negligible gravity.

¶ 21 As for prejudice, Foos does not argue that the one-day delay

caused him any harm. He was not surprised by the imposition of

restitution given that he had agreed to it in his plea agreement,

during his providency hearing, and in his presentence interview,

provided the amount would be determined “within 91 days of

sentencing unless the deadline is extended for good cause.” Nor

was Foos surprised by the amount; he received notice of the

claimed amount at sentencing. Additionally, because the

prosecution filed its motion only one day after sentencing, Foos had

ample time to object, allowing the court to decide the restitution

amount well within its ninety-one-day deadline. He does not claim

that the delay impaired his memory, the availability of evidence, or

his ability to respond. Martinez Rubier, ¶ 49.

¶ 22 In conclusion, even if the district court erred by excusing the

prosecution’s noncompliance with subsection (2)(a), the error was

harmless and, therefore, does not warrant vacating the restitution

order.

10
III. Restitution Order Reduction

¶ 23 Foos next contends that the district court’s restitution award

should be reduced because (1) the victim was not entitled to the

replacement value of the accessories; (2) the prosecution failed to

prove Foos was the proximate cause of the loss of the accessories;

and (3) the victim chose not to mitigate his losses by retrieving the

accessories. We disagree.

A. Replacement Value

¶ 24 For the first time on appeal, Foos argues the victim should not

have received the replacement value of the accessories but rather

their fair market value. He claims the replacement value of an item

may be awarded only when (1) the victim demonstrates that he

must or will replace an item and (2) the prosecution proves the item

is not readily replaceable at a fair market value cost.

1. Standard of Review and Applicable Law

¶ 25 Generally, we review a question of law regarding the

restitution statute de novo. People v. Knapp, 2020 COA 107, ¶ 69.

But when a contention is unpreserved, we review for plain error.

People v. Ortiz, 2016 COA 58, ¶ 13. But see People v. Butcher, 2018

COA 54M, ¶¶ 24-26 (holding that it is within an appellate court’s

11
discretion to review an unpreserved challenge to a restitution order

for plain error). An error is plain if it is both obvious and

substantial. Hagos v. People, 2012 CO 63, ¶ 14. An error is

obvious if it contravenes a clear statutory command, a well-settled

legal principle, or Colorado case law. People v. Pollard, 2013 COA

31M, ¶ 40. An error is substantial if it so undermines the

fundamental fairness of the proceeding itself as to cast serious

doubt on the reliability of the judgment. Hoggard v. People, 2020

CO 54, ¶ 13.

¶ 26 Section 18-1.3-602(3)(a), C.R.S. 2025, defines restitution as

“any pecuniary loss suffered by a victim,” including but not limited

to “all out-of-pocket expenses,” “anticipated future expenses,” and

“other losses or injuries proximately caused by an offender’s

conduct and that can be reasonably calculated and recompensed in

money.” Accordingly, “the value of property for purposes of

restitution is determined by the victim’s ‘actual, pecuniary loss’ or

the amount of money that will ‘fulfill[] the statutory purpose of

simply making the victim whole to the extent practicable.’”

People v. Stafford, 93 P.3d 572, 575 (Colo. App. 2004) (citation

omitted).

12
¶ 27 The prosecution bears the burden of establishing the amount

of restitution that a defendant owes by a preponderance of the

evidence, id. at 576, but “[a] trial court has broad discretion in

determining the terms and conditions of a restitution order,”

including the amount, People in Interest of D.W., 232 P.3d 182, 183

(Colo. App. 2009). While the restitution statutes of some states, like

Florida and Texas, require district courts to use fair market value,

Colorado’s restitution statute contains no such requirement.

Stafford, 93 P.3d at 575. Our statute does instruct that it be

“liberally construed” to accomplish its purposes, one of which is “to

provide for and collect full restitution for victims of crime in the

most expeditious manner.” § 18-1.3-601(1)(g)(I), (2), C.R.S. 2025.

2. Discussion

¶ 28 “Because defense counsel didn’t raise this issue below, our

review is for plain error.” Knapp, ¶ 91.

¶ 29 We are unaware of any statutory or case law authority

requiring the use of fair market value in calculating restitution.

Relying on Stafford, Foos asserts that the replacement value of an

item may be awarded “only” when two conditions are satisfied:

(1) the victim demonstrates that he must or will replace an item,

13
and (2) the prosecution proves the item is not readily replaceable at

a fair market value cost. 93 P.3d at 575-76. However, like the

division in Knapp, we note that “[Stafford] held merely that ‘the

award of a reasonable replacement value is appropriate when the

victim demonstrates that he or she must or will replace an item that

is not readily replaceable at a fair market value cost’” — Stafford

“didn’t hold that evidence that an item is not readily replaceable at

fair market value cost is always a necessary predicate to recovery of

reasonable replacement value.” Knapp, ¶ 93 (citation omitted).

¶ 30 In the absence of clear legal authority requiring fair market

value, we cannot conclude that it was plain error for the court to

award restitution based on replacement value.

B. Proximate Cause

¶ 31 Foos argues that three intervening causes break the causal

connection between his crimes and the victim’s injury: (1) the

insurer’s decision to declare the truck a “total loss”; (2) the insurer’s

failure to compensate the victim for the accessories; and (3) the

victim’s decision not to retrieve the accessories.

14
1. Standard of Review and Applicable Law

¶ 32 We review preserved challenges to proximate cause

determinations for clear error. Martinez v. People, 2024 CO 6M,

¶ 32. We “must affirm the district court’s findings unless they are

without ‘support in the record.’” Id. at ¶ 34 (citation omitted). We

review unpreserved challenges to proximate cause determinations

for plain error, Ortiz, ¶ 13, and “[p]lain error review is equally

applicable when a party alters the grounds for his objection on

appeal,” Martinez v. People, 2015 CO 16, ¶ 14.

¶ 33 A defendant convicted of a felony offense must pay restitution

for any pecuniary loss that he proximately caused his victim. See

§ 18-1.3-602(3)(a). Proximate cause is “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.

Sieck, 2014 COA 23, ¶ 6. The prosecution must prove, by a

preponderance of the evidence, that the defendant proximately

caused the victim’s loss to support an award of restitution.

People v. Stone, 2020 COA 24, ¶ 6.

¶ 34 However, “[u]nlawful conduct that is broken by an

independent intervening cause cannot be the proximate cause of

15
injury to another.” Martinez, 2024 CO 6M, ¶ 13 (quoting People v.

Stewart, 55 P.3d 107, 121 (Colo. 2002)). “An intervening force is

one which actively operates in producing harm to another after the

actor’s . . . act or omission has been committed.” Garcia v. Colo.

Cab Co., 2023 CO 56, ¶ 23 (quoting Restatement (Second) of Torts

§ 441(1) (Am. L. Inst. 1965)). To qualify as an intervening cause,

“an event must be unforeseeable and one in which the accused does

not participate.” Martinez, 2024 CO 6M, ¶ 13 (quoting Stewart,

55 P.3d at 121). “To absolve the defendant of responsibility, the

intervening cause must be fully independent of, and not have been

set in motion by, the original [act].” Garcia, ¶ 23 (quoting Deines v.

Atlas Energy Sers., LLC, 2021 COA 24, ¶ 14). But if an event

amounts to an independent intervening cause, then it “destroys the

causal connection between the defendant’s act and the victim’s

injury and, thereby becomes the cause of the victim’s injury.”

People v. Saavedra-Rodriguez, 971 P.2d 223, 225-26 (Colo. 1998).

¶ 35 Therefore, to qualify as an independent intervening cause that

severs proximate cause, the event must (1) actively operate in

producing the harm; (2) be unforeseeable; and (3) be an event the

defendant neither participated in nor set in motion.

16
2. Discussion

¶ 36 We address each of Foos’s asserted intervening events in turn

and conclude the district court neither clearly nor plainly erred in

finding proximate cause.

¶ 37 First, Foos contends that the insurer’s decision to declare the

truck a total loss constitutes an intervening cause. We are

perplexed by Foos’s characterization of that decision as an

intervening cause. As a threshold matter, an intervening event is

one that “actively operates in producing harm to another.” Garcia,

¶ 23. Although Foos tries to characterize the insurer’s decision as

an overreaching, precautionary measure, the insurer’s assessment

of the loss caused by Foos’s criminal conduct did not actively

produce the damage. The insurer merely determined the extent of

the damage caused by Foos’s crimes.

¶ 38 Even if we agreed that the insurer’s decision produced the

harm, the insurer’s decision was set in motion by Foos’s criminal

conduct and foreseeable. Foos set in motion the insurer’s decision

by stealing the victim’s truck across state lines with the intent to

distribute controlled substances. It was reasonably foreseeable that

a person whose vehicle had been stolen would file an insurance

17
claim. And we agree with the district court’s finding that the

insurer’s assessment of the damage was reasonably foreseeable

given the narcotics exposure. Because the decision did not amount

to an intervening cause, the district court did not clearly err by

finding proximate cause.

¶ 39 Second, Foos contends that the insurer’s failure to adequately

compensate the victim for the accessories is an intervening cause.

This specific ground was not raised in the district court and,

therefore, was not preserved.3 Foos argues this coverage “failure”

destroys proximate cause because “a reasonable person would

expect an insurance settlement on a ‘totaled’ vehicle to include any

modifications and accessories that were attached to the vehicle.”

Foos does not cite, and we are not aware of, any legal authority that

recognizes an insurance coverage decision in a restitution case as

an intervening cause. Cf. People v. Martinez, 2022 COA 28, ¶ 2

(allowing insurance companies that indemnify their policyholders

3 Foos asserts this second ground was preserved by his overarching

objection to proximate cause. We disagree and note that an issue is
preserved if the district court was “presented with an adequate
opportunity to make findings of fact and conclusions of law.”
People v. Melendez, 102 P.3d 315, 322 (Colo. 2004).

18
for losses proximately caused by felonies, misdemeanors, or other

offenses to obtain restitution from offenders). As discussed above,

the insurer’s coverage decision did not actively produce harm. Also,

it was reasonably foreseeable that a person whose vehicle had been

stolen would file an insurance claim and that, depending on the

terms of the coverage, some items on the vehicle may not be

covered. Thus, the district court did not plainly err by finding

proximate cause.

¶ 40 Third, Foos contends that the victim’s decision not to retrieve

the accessories constitutes an intervening cause. We are, again,

unpersuaded. As with the previous two grounds, the victim’s

decision did not actively produce the harm. He simply declined to

retrieve parts of his vehicle after it was stolen, impounded in

another state, and declared a total loss due to potential drug

contamination. Nor was the victim’s decision unforeseeable,

considering that he transferred title to his insurer and, as the

district court noted, it would have been “costly and

time-consuming” to “travel over 500 miles to Colorado to remove the

hitch and bumper.” And finally, the victim’s decision not to retrieve

the accessories cannot be considered as entirely independent of

19
Foos’s criminal conduct or unrelated to actions set in motion by

him. Garcia, ¶ 23. For all these reasons, the district court did not

clearly err by finding proximate cause.

C. Duty to Mitigate

¶ 41 Lastly, Foos argues that, even if we were to conclude that his

conduct is the proximate cause of the damages, we should

recognize a victim’s duty to mitigate damages and, consequently,

reduce the amount of restitution ordered.

¶ 42 Whether an injured party has a duty to mitigate damages is a

legal question that we review de novo. Tremitek, LLC v. Resilience

Code, LLC, 2023 COA 54, ¶ 23. There is no Colorado legal authority

imposing an affirmative duty on a crime victim seeking restitution

to mitigate any of their claimed losses. But even assuming the duty

to mitigate applies to crime victims in restitution cases, the victim

in this case did not fail to mitigate. The victim testified that the

recovery would take three days because he would have to travel

over 500 miles with a companion to attempt to remove the

accessories from a truck to which he no longer held ownership

rights. We agree with the district court that these costs “could

20
conceivably equal the costs of the hitch and bumper,” and we

decline to reduce the amount of restitution ordered.

IV. Disposition

¶ 43 The restitution order is affirmed.

JUDGE FREYRE and JUDGE PAWAR concur.

21