State v. Trujillo

2017 UT App 151

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
JOSEPH D. TRUJILLO,
Appellant.

Opinion
No. 20150779-CA
Filed August 17, 2017

Third District Court, Salt Lake Department
The Honorable Katie Bernards-Goodman
No. 151907205

Nathalie S. Skibine and Andrea J. Garland, Attorneys
for Appellant
Sean D. Reyes, Laura B. Dupaix, and Thomas B.
Brunker, Attorneys for Appellee

JUDGE GREGORY K. ORME authored this Opinion, in which JUDGES
J. FREDERIC VOROS JR. and MICHELE M. CHRISTIANSEN concurred. 1

ORME, Judge:

¶1 Defendant Joseph D. Trujillo appeals the district court’s
order requiring him to pay $2,500 in restitution. We reverse.

¶2 Trujillo pled guilty to the charge of failure to comply with
an officer’s signal to stop, a third degree felony. See Utah Code
Ann. § 41-6a-210(1) (LexisNexis 2010). The district court accepted
Trujillo’s plea based on the following truncated factual account:

1. Judge J. Frederic Voros Jr. participated in this case as a
member of the Utah Court of Appeals. He retired from the court
before this decision issued.
State v. Trujillo

“Mr. Trujillo was driving & ignored [an officer’s] lights signaling
for Mr. Trujillo to pull over, although he saw them.”

¶3 A presentence investigation report (the PSI) was
completed, and the portion reserved for the victim impact
statement and restitution recited, “There are no victims or
restitution owed[.]” Nonetheless, at the sentencing hearing, the
State requested that Trujillo pay $2,500 in restitution—a sum that
the prosecutor acknowledged was “ridiculous.” The State
claimed that $2,500 in restitution was needed to compensate the
owner of the stolen vehicle that Trujillo was driving when he
failed to stop. The car was, apparently, abandoned and
impounded at some point in time after Trujillo failed to stop, 2
although Trujillo was not convicted of abandonment of the
vehicle. See Utah Code Ann. § 41-6a-1408 (LexisNexis Supp.
2016). The State claimed that the owner could not afford to pay
the impound fees, which had climbed to $2,500. 3 No supporting
evidence was submitted, and the State did not even indicate
what evidence it had to support these claims. Trujillo,
unprepared to meet the restitution claim given the lack of prior
notice and the affirmative characterization to the contrary in the
PSI, countered that restitution was inappropriate because he was

2. The record does not disclose whether this was minutes, hours,
or days after Trujillo evaded the pursuing police, although there
is an unexplained reference in the PSI to abandonment occurring
“shortly” after the pursuit.

3. The prosecutor mentioned that the impound lot operator
would accept $700 if it could be paid “now” but expressed doubt
that Trujillo could come up with $700 immediately. Trujillo
addressed the court and generally complained that the
restitution amount sought by the State was high, but he did not
dispel the prosecutor’s assumption that he could not pay $700
“now.”

20150779-CA 2 2017 UT App 151
State v. Trujillo

not convicted of vehicle theft and because he borrowed the
vehicle from his niece in good faith. And he insisted that if
restitution were ordered, $2,500 would be an excessive amount
because the car in question was a forty-year-old Chevrolet, the
implication being that the car was worth less than the impound
fee. 4

¶4 After hearing the State’s request and Trujillo’s rebuttal,
the district court sentenced Trujillo to 365 days in jail with credit
for time served and, without explanation, ordered him to pay
$2,500 in restitution. Trujillo timely appealed.

¶5 Trujillo challenges the district court’s restitution order,
claiming that it was error to “award[] restitution for conduct Mr.
Trujillo never admitted based on the prosecutor’s unsupported
assertions.”

Under usual circumstances, [a]n appellate court
will not disturb a trial court’s restitution order
unless it exceeds that prescribed by law or [the
court] otherwise abused its discretion. However,
[t]he proper interpretation of a statute is a question
of law. Therefore, when reviewing an order . . .
involving the interpretation of a statute, we accord
no deference to the legal conclusions of the district
court but review them for correctness.

State v. Mast, 2001 UT App 402, ¶ 7, 40 P.3d 1143 (first and third
alterations and omission in original) (citations and internal
quotation marks omitted).

¶6 Restitution is warranted “[w]hen a defendant is convicted
of criminal activity that has resulted in pecuniary damages[.]”

4. At the sentencing hearing, the court asked what the value of
the car was. The prosecutor responded that she did not know.

20150779-CA 3 2017 UT App 151
State v. Trujillo

Utah Code Ann. § 77-38a-302(1) (LexisNexis Supp. 2016). For
purposes of the restitution statute, criminal activity includes
“(a) any offense of which the defendant is convicted; or (b) any
other criminal conduct for which the defendant admits
responsibility to the sentencing court with or without an
admission of committing the criminal conduct.” Id. § 77-38a-
102(2). See State v. Bickley, 2002 UT App 342, ¶ 9, 60 P.3d 582
(“[A] defendant cannot be ordered to pay restitution for criminal
activities for which the defendant did not admit responsibility,
was not convicted, or did not agree to pay restitution.”). Of key
importance in this case, the pecuniary damages that trigger
restitution are any “amounts proximately caused by defendant’s
[criminal] conduct.” Mast, 2001 UT App 402, ¶ 24 (reversing the
district court’s grant of restitution for property that was taken in
a robbery and not returned to the victim when the defendant
was only convicted of receiving stolen items and all of the stolen
property she possessed had been returned to the victim).

¶7 It is the State’s burden to “prove that the victim has
suffered economic injury and that the injury arose out of the
defendant’s criminal activities.” State v. Brown, 2009 UT App 285,
¶ 10, 221 P.3d 273. In evaluating causation, Utah courts employ a
“modified ‘but for’ test,” the elements of which are that “(1) the
damages ‘would not have occurred but for the conduct
underlying the . . . [defendant’s] conviction’ and (2) the ‘causal
nexus between the [criminal] conduct and the loss . . . is not too
attenuated (either factually or temporally).’” Id. ¶ 11 (alterations
and omissions in original) (additional internal quotation marks
omitted) (quoting State v. McBride, 940 P.2d 539, 544 n.5 (Utah Ct.
App. 1997)). Pecuniary damages do not arise from criminal
activities if the court must make inferences about the defendant’s
thought processes or behavior in order to connect the damages
to the defendant. See Mast, 2001 UT App 402, ¶¶ 17–18. See also
State v. Larsen, 2009 UT App 293, ¶ 9, 221 P.3d 277 (“One can
only conclude that Defendant admitted to stealing this vehicle
through inference, which Mast prohibits. Because Defendant has

20150779-CA 4 2017 UT App 151
State v. Trujillo

not admitted to theft, he cannot be ordered to pay restitution on
the damages resulting from the theft itself.”) (emphasis in
original); State v. Watson, 1999 UT App 273, ¶ 5, 987 P.2d 1289
(“Without making inferences as the trial court did, it cannot be
said that [the defendant] admitted responsibility for the murder
nor did she agree to pay restitution. [She] only admitted and
pleaded guilty to the obstruction of justice charge for which
there were no pecuniary damages.”).

¶8 Here, the district court erred in ordering Trujillo to pay
restitution because he did not plead guilty to theft or
abandonment and, given the lack of evidence presented in this
case, no reasonable person could conclude that Trujillo’s fleeing
the police caused the owner to incur impound fees. During the
sentencing hearing, the State said it was requesting restitution
because “[Trujillo] was in a stolen car.” On appeal, the State
recognizes the need to recharacterize that theory and claims that
“[r]egardless of whether Defendant stole the car, the car would
not have been impounded were it not for Defendant’s failure to
stop and subsequent abandonment of the vehicle.” But Trujillo
was not convicted of, nor did he confess to or otherwise take
responsibility for, theft or abandonment of the vehicle. See Utah
Code Ann. § 76-6-404 (LexisNexis 2012), id. § 41-6a-1408 (Supp.
2016). On the contrary, he insisted during the sentencing hearing
that he had borrowed the vehicle from his niece. 5

5. The State’s abandonment theory becomes more plausible if it
is not referring to the infraction of abandoning a vehicle in a
technical sense, which requires, among other things, that the
vehicle be unattended for at least forty-eight hours on a highway
or seven days on public or private property, see Utah Code Ann.
§ 41-6a-1408 (LexisNexis Supp. 2016), but merely the act of
leaving the vehicle unattended under circumstances that led to
its impoundment, see id. §§ 41-6a-1404(1), -1405(1)–(2), -1406(1).
For instance, it is at least plausible that Trujillo left the vehicle
(continued…)

20150779-CA 5 2017 UT App 151
State v. Trujillo

¶9 Likewise, the State has not demonstrated that the owner’s
damages arose out of the criminal activity to which Trujillo pled
guilty—failure to respond to an officer’s signal to stop. To be
sure, one can readily envision damages arising directly from
such a failure to stop, given the high speed and dangerous
driving typical of drivers bent on evading police. Damage to
pursuing police vehicles, street signs, parked cars, and garbage
bins come to mind. But damages resulting from the later
impoundment of a vehicle previously involved in evading
police, such as the impoundment fees at issue in this case, are
qualitatively different from the kind of damages typically
resulting from a police chase.

¶10 Impoundment following abandonment in the technical
sense, see supra note 5, requires that the vehicle was left
unattended for a period of time, which means Trujillo would
have had to have evaded police, gotten out of the car, and left it
for at least forty-eight hours on a street or seven days off-street
before its status as abandoned was discovered and it was
impounded. See Utah Code Ann. § 41-6a-1408. But the State has
presented no such evidence. And the Department of
Corrections—whose job it is to identify victims and unearth
any possible pecuniary damages, see id. § 77-38a-203(1)(a)

(…continued)
and continued to flee on foot and that, when he successfully
evaded police as a pedestrian, they were immediately
confronted with the need to deal with the vehicle and, rather
than contacting the owner to come and get it, they chose to have
it impounded. But there is no evidence in the record to support
such a theory. On the record before us, it is also possible that
Trujillo successfully made his getaway while in possession of the
vehicle, which he thereafter returned to his niece, with any
abandonment occurring later, as a result of the actions of
someone else.

20150779-CA 6 2017 UT App 151
State v. Trujillo

(LexisNexis Supp. 2016)—apparently found no evidence of a
nexus between Trujillo’s failure to stop and the owner’s
impound fees. The PSI prepared by Adult Probation and Parole
noted that there were “no victims or restitution owed.” Thus, it
appears that the only thing suggesting a causal connection
between the criminal activity to which Trujillo pled guilty and
the owner’s impound fees is inference, at best, and possibly mere
speculation. See Larsen, 2009 UT App 293, ¶ 9.

¶11 Because Trujillo pled guilty only to failure to respond to
an officer’s signal, not to theft or abandonment, and because the
State has failed to present any evidence demonstrating that the
failure to stop caused the pecuniary damages that the vehicle’s
owner sustained, Trujillo cannot properly be ordered to pay
restitution for the impound fees.

¶12 Reversed.

20150779-CA 7 2017 UT App 151