Peo v. Espinoza

21CA1061 Peo v Espinoza 11-26-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 21CA1061
El Paso County District Court No. 18CR6097
Honorable Michael P. McHenry, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Sheri Lynn Espinoza,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE SCHOCK
Tow and Brown, JJ., concur

Prior Opinion Announced November 16, 2023, Vacated in 23SC939

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 26, 2025

Philip J. Weiser, Attorney General, Jessica E. Ross, Senior Assistant Attorney
General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee

Lucy H. Deakins, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellant
¶1 Defendant, Sheri Lynn Espinoza, appeals the district court’s

restitution order on the grounds that (1) the district court lacked

authority to enter it more than ninety-one days after her order of

conviction, and (2) the prosecution failed to present sufficient

evidence to support one component of the restitution amount.

¶2 We previously issued an opinion vacating the restitution order

based on Espinoza’s first argument. People v. Espinoza, (Colo. App.

No. 21CA1061, Nov. 16, 2023) (not published pursuant to C.A.R.

35(e)) (Espinoza I). But the supreme court granted certiorari,

vacated our opinion, and remanded the case for reconsideration in

light of Babcock v. People, 2025 CO 26; Johnson v. People, 2025 CO

29; and People v. Roberson, 2025 CO 30. We now affirm the order.

I. Background

¶3 Espinoza was charged with 170 counts relating to an alleged

scheme to burglarize vehicles, steal credit cards and other property,

and convert the stolen property into cash. She pleaded guilty to

conspiracy to commit money laundering and identity theft.

¶4 In the plea agreement, Espinoza “agree[d] to pay restitution for

all counts and cases governed by this plea agreement including

counts and/or cases that have been dismissed” and “other counts

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that the People have agreed not to file.” She acknowledged that her

misconduct had “caused a loss to victims” and “stipulate[d] to

causation for restitution purposes.” She also agreed that the

prosecution would provide “correct information establishing the

amount of restitution within 91 days of sentencing.”

¶5 The district court accepted Espinoza’s guilty plea and

sentenced her on November 27, 2019. At the sentencing hearing,

the district court ordered that “[t]here will be restitution,” but it did

not set the amount. It gave the People ninety-one days to “calculate

restitution” and Espinoza sixty days thereafter to object.

¶6 On February 26, 2020 — ninety-one days after sentencing —

the People submitted a proposed restitution order, requesting

restitution in the amount of $19,442.78. The district court granted

the request six days later, subject to Espinoza’s right to object and

request a hearing within thirty days. Espinoza’s counsel filed an

objection twenty days later. He did not challenge the timeliness of

the restitution order, but he explained that he had not yet been able

to meet with Espinoza due to the onset of the COVID-19 pandemic.

The district court granted Espinoza additional time to investigate

restitution and ordered her to file a status report within 120 days.

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¶7 On July 1, 2020, Espinoza filed a supplemental objection to

the restitution order, challenging the joint and several liability

component of the order, contesting the total amount of restitution,

and requesting itemized documentation of that amount. She also

requested a hearing after the prosecution provided the

documentation. Again, Espinoza did not object to the timeliness of

the restitution order. The court set a hearing for October 6, 2020.

¶8 Before the hearing, the People filed two amended proposed

restitution orders, each of which made changes to the joint and

several liability. Espinoza objected on grounds similar to those she

had raised before. For the first time, she also asked the court to

dismiss the restitution request as untimely based on People v.

Weeks, 2020 COA 44, aff’d, 2021 CO 75, in which a division of this

court had held that a restitution order must be vacated if it is

entered more than ninety-one days after the order of conviction

without good cause.

¶9 The district court addressed the Weeks issue at the hearing

but declined to follow the division’s opinion in that case, opting

instead to follow a different division’s opinion in People v. Perez,

2020 COA 83, overruled in part by, Weeks, 2021 CO 75, ¶ 47 n.16,

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cert. granted, judgment vacated, and case remanded, (Colo. No.

20SC559, Dec. 6, 2021) (unpublished order). (This was more than

a year before the supreme court’s opinion in People v. Weeks, 2021

CO 75.) The court thus concluded that it was not precluded from

entering its final restitution order more than ninety-one days after

the conviction.

¶ 10 The district court continued the hearing to allow for the

presentation of evidence regarding one component of the

prosecution’s restitution request: approximately $4,600 in damage

to a vehicle caused by one of the alleged break-ins. At the hearing,

the victims of this loss testified that their car was damaged as a

result of the break-in and that they received an estimate of around

$4,600 to repair the damage. But they did not ever have the car

repaired, and they later traded it in for a new car.

¶ 11 Defense counsel argued that the prosecution had failed to

prove that the victims had suffered any actual monetary loss

because they did not get the car fixed and there was no evidence

that the damage reduced the car’s trade-in value. The district court

denied the objection and awarded the full $4,600 estimated repair

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cost.1 It entered the final restitution order — for the full amount of

$19,442.78 requested by the prosecution — on June 1, 2021.

¶ 12 In Espinoza I, we vacated the restitution order, concluding

that (1) the district court lacked authority to enter it more than

ninety-one days after the order of conviction under Weeks, 2021 CO

75, and section 18-1.3-603(1)(b), C.R.S. 2019;2 and (2) Espinoza did

not waive that deadline. See Espinoza I, slip op. at ¶¶ 1, 18-23, 29.

¶ 13 But after we issued that opinion, the supreme court decided

Babcock, Johnson, and Roberson — which, together, outline

circumstances under which a defendant can waive the statutory

deadline. The supreme court vacated our opinion in Espinoza I and

remanded the case for reconsideration in light of that trio of cases.

II. Waiver of Statutory Deadline

¶ 14 The restitution order in this case was entered more than

ninety-one days after the order of conviction. See § 18-1.3-

1 The exact amount of restitution ordered for the damage to the car

was $4,603.66.

2 Section 18-1.3-603(1)(b), C.R.S. 2019, has since been amended.

See Ch. 307, sec. 1, § 18-1.3-603(1)(b), 2025 Colo. Sess. Laws
1606. We refer to the version of the statute in effect at the time of
Espinoza’s sentencing, including its ninety-one-day deadline.

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603(1)(b). But the People argue that Espinoza waived the statutory

deadline by acting inconsistently with it. In supplemental briefing,

Espinoza concedes this result under Johnson, and we agree.

¶ 15 The ninety-one-day deadline in section 18-1.3-601(b) is “not

jurisdictional and can be waived” by voluntary conduct that is

inconsistent with its assertion. Roberson, ¶¶ 12-13. Such conduct

may include (1) requesting a restitution hearing after the deadline,

Babcock, ¶ 30; (2) failing to object to the setting of a hearing after

the deadline, Roberson, ¶ 16; (3) requesting continuances after the

deadline has passed without acknowledging the deadline, id.; or

(4) failing to object to a scheduling order that will extend the

restitution determination beyond the deadline, Johnson, ¶ 31.

¶ 16 In this case, like in Johnson, the district court entered an

order at sentencing that gave the prosecution ninety-one days to

calculate restitution and Espinoza sixty days thereafter to object.

See id. at ¶ 31. Defense counsel did not object to this schedule,

even though it would likely “extend the time for making a final

restitution determination beyond the ninety-one-day deadline.” Id.

¶ 17 Then, when the prosecution filed its restitution request on the

ninety-first day after sentencing, and the district court granted it on

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the ninety-seventh day with an order requiring Espinoza to request

a hearing within thirty days, defense counsel did not object to that

schedule. See id. Instead, counsel filed a nonsubstantive objection

twenty days later, “preserv[ing] . . . Espinoza’s right to object to

restitution.” The court granted Espinoza 120 days to investigate,

and again, she did not object. To the contrary, she filed a

substantive objection to the restitution order 217 days after

sentencing and requested a hearing, which would necessarily occur

outside the ninety-one-day deadline. See id.; Babcock, ¶ 30. It was

not until 299 days after sentencing that Espinoza first asserted that

the proposed restitution order was untimely. See Roberson, ¶ 16.

¶ 18 Under Johnson and Roberson, this conduct constitutes a

voluntary waiver of Espinoza’s right to have the amount of

restitution determined within ninety-one days of her conviction.

III. Sufficiency of the Evidence

¶ 19 Espinoza also challenges the restitution order on the merits.

She argues that the prosecution failed to prove an actual pecuniary

loss with respect to the $4,600 in estimated damage to the car

because the victims never had the car repaired. We disagree.

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¶ 20 A district court’s decision fixing the amount of restitution will

not be disturbed if it is supported by the record. People v. Robb,

215 P.3d 1253, 1264 (Colo. App. 2009). Because Espinoza asserts

that there was no evidence to support the $4,600 loss, and not that

the district court erred by interpreting the evidence, her argument

is a challenge to the sufficiency of the evidence. See Martinez v.

People, 2024 CO 6M, ¶ 20. We therefore review the record de novo

to determine whether the evidence, “when viewed as a whole and in

the light most favorable to the prosecution, is sufficient to support

the district court’s ruling.” People v. Barbre, 2018 COA 123, ¶ 1.

¶ 21 The district court must award restitution for “any pecuniary

loss suffered by a victim . . . [that was] proximately caused by an

offender’s conduct.” § 18-1.3-602(3)(a), C.R.S. 2025. The

prosecution bears the burden of proving by a preponderance of the

evidence both the amount of the victims’ losses and that those

losses were proximately caused by the defendant’s criminal

conduct. People v. Dyson, 2021 COA 57, ¶ 12. Once the

prosecution presents competent evidence of the amount of the loss,

the defendant may present evidence to rebut it. People in Interest of

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A.V., 2018 COA 138M, ¶ 35. Otherwise, the district court may rely

on the evidence presented by the prosecution. Id. at ¶¶ 30, 35.

¶ 22 As an initial matter, we reject the People’s argument that

Espinoza cannot challenge the restitution amount because she

stipulated to causation in her plea agreement. Espinoza does not

challenge the district court’s finding that she caused the damage to

the victims’ car. She argues only that the prosecution failed to

prove the amount of the loss, or that the damage resulted in any

pecuniary loss at all. That is not a challenge to causation. See

Barbre, ¶ 9 (holding that defendant’s stipulation to causation in

plea agreement did not waive challenge to amount of restitution).

¶ 23 But viewing the evidence in the light most favorable to the

prosecution, we conclude that it was sufficient to support the

district court’s finding that the loss associated with the damage to

the car was $4,600. The victim testified that, after the break-in,

there was damage to the car’s rear fender. He further testified that

he obtained an estimate of the cost to repair the damage, which was

about $4,600. This undisputed evidence of the estimated repair

cost was sufficient evidence to establish the amount of the loss.

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See People v. Smith, 181 P.3d 324, 327 (Colo. App. 2007) (“[R]epair

costs should be included in the restitution amount ordered.”).

¶ 24 It does not matter that the victims did not actually complete

the repairs. See A.V., ¶¶ 25-30 (affirming award of restitution for

total estimated repair costs even though repairs had not yet been

completed and some of the costs had not yet been incurred).

Restitution is not limited to a victim’s out-of-pocket expenses; it

includes “any pecuniary loss.” § 18-1.3-602(3)(a). And one

measure of the pecuniary loss caused by damage to property is the

amount it would cost to restore the property to its prior condition.

See A.V., ¶ 29; Smith, 181 P.3d at 327. Just because the victims

did not repair the car does not mean they did not suffer a loss by

having a car with $4,600 of damage that it did not have before.

¶ 25 It is true that another measure of loss might have been the

decrease in the value of the car. And perhaps, if there was evidence

indicating that the reduction in the car’s value was something less

than $4,600, the district court could have found that to be the

victims’ actual loss. But see Smith, 181 P.3d at 327 (holding that

“restitution can include repair costs even if those costs exceed the

damaged object’s value”). Indeed, the district court recognized as

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much. But the only evidence before the district court was that it

would cost $4,600 to put the car in the same condition that it was

before the assault. With no evidence to rebut this estimate, the

district court “properly relied on the evidence presented and

imposed restitution for the total amount of the repairs.” A.V., ¶ 30.

IV. Disposition

¶ 26 The restitution order is affirmed.

JUDGE TOW and JUDGE BROWN concur.

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