Peo v. Lobato

23CA0476 Peo v Lobato 12-11-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA0476
El Paso County District Court No. 22CR3027
Honorable Jessica L. Curtis, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Anthony Lobato,

Defendant-Appellant.

JUDGMENT AFFIRMED

Division I
Opinion by JUDGE J. JONES
Grove and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 11, 2025

Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant
Attorney General and Assistant Solicitor General, Denver, Colorado, for
Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, M. Shelby Deeney, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Anthony Lobato, appeals the district court’s

judgment of conviction entered on jury verdicts finding him guilty of

two counts of second degree assault, one count of third degree

assault, and two crime of violence sentence enhancers. We affirm.

I. Background

¶2 One evening, Brandi Medina and her husband, Gerald Burt,

hosted a cookout at their house. They invited their neighbors, Terry

and Brandy Blansett. They also invited Lobato (Medina’s half-

brother) and his girlfriend, Cayla Brengard. Following a long period

of estrangement, Medina and Lobato had, in the year prior,

resumed contact.

¶3 The party started well. Medina, Lobato, and Brengard were in

the garage; Burt and the neighbors were in the back yard.

Suddenly, Lobato got into his car alone and left the party. No one

knew where he went.

¶4 A short time later, Lobato returned to the party and walked

into the garage from the front of the house. He walked up to

Brengard and, without provocation, headbutted her in the face. He

then went through the garage and into the backyard. He walked

over to Burt, who was bending down to grab a beer, and kicked him

1
in the face. Lobato then grabbed Terry Blansett, put him in a

headlock, and headbutted him in the face. He picked up a chair

and threw it at Brandy Blansett. Terry Blansett yelled at Lobato

that he was “going home [to] get my gun.” Lobato threw Terry

Blansett to the ground and hit him several times. The fight then

moved into the front yard, where it was recorded by a nearby Nest

Cam and Ring camera.

¶5 Hoping to stop Lobato from hitting Terry Blansett, Medina hit

Lobato with a chair. Lobato then grabbed Medina by her hair and

began yanking her around.

¶6 Burt told Lobato to leave Medina alone. Lobato hit Burt again.

Medina got on top of Burt and screamed for someone to call the

police. Lobato then left the house.

¶7 Officers later arrived at the house, and an ambulance took

those injured to the hospital. Medina, Terry Blansett, and Burt

sustained multiple injuries. Brengard told officers that Lobato most

likely drove back to their shared storage unit. After interviewing the

party-goers at the hospital, the officers went to the storage unit to

find Lobato.

2
¶8 When officers arrived at the storage facility, they saw Lobato’s

car parked in front of the unit he shared with his girlfriend. An

officer testified that, when officers tried to open the storage unit, it

felt like someone inside was holding the door closed. Officers

repeatedly announced their presence (over a loudspeaker) and told

the person in the unit to come out. When no one answered or came

out, the officers called in a SWAT team due to the violent nature of

Lobato’s altercations at the party and their suspicion that Lobato

might be in the storage unit. They also obtained an arrest warrant.

The SWAT team arrived, repeatedly announced its presence and the

possibility of greater use of force, and told the person inside the

unit to come out. When nobody responded, the SWAT team

sprayed pepper spray into the unit through a hose. A recording

from an officer’s body camera showed that after the officers sprayed

the pepper spray, Lobato came out of the unit and was arrested.

¶9 A jury convicted Lobato of all the assault charges relating to

Medina, Burt, and Terry Blansett. The district court sentenced him

to fifteen years in the custody of the Department of Corrections.

3
II. Discussion

¶ 10 Lobato contends that the district court erred by (1) denying his

counsel’s Batson objection; (2) admitting into evidence a video of his

arrest; (3) denying his counsel’s request for a mistrial based on

jurors possibly seeing him in handcuffs; (4) admitting officer

testimony about obtaining search and arrest warrants; and (5)

ordering restitution. We reject each of his contentions.

A. Batson Challenge

¶ 11 Lobato contends that the district court clearly erred by

denying his counsel’s Batson objection to the prosecutor’s use of a

peremptory challenge to strike a particular potential juror because

the court (1) incorrectly concluded that there needed to be a pattern

of peremptory strikes of minority persons to support a Batson

objection and (2) credited the prosecutor’s race-neutral explanation

for dismissing the juror. We aren’t persuaded.

1. Relevant Facts

¶ 12 During voir dire, the prosecutor asked the prospective jurors

whether they could ever tell what another person is thinking. Juror

15, who had a Hispanic surname, responded, “Not really.” The

prosecutor asked Juror 15 if he could ever infer whether someone

4
acted purposefully or accidentally, and he responded, “Possibly by

looking at their face, a particular action they take or a certain

movement.” When the prosecutor followed up on that response,

asking whether someone could tell whether another person acted

purposefully depending on what that person does, Juror 15 said,

“Well, I’m not really sure.”

¶ 13 After voir dire, the prosecutor used the prosecution’s fifth

peremptory challenge to excuse Juror 15. Lobato’s counsel

objected, asserting that the challenge was discriminatory under

Batson v. Kentucky, 476 U.S. 79 (1986), because Juror 15 was

Hispanic or Latino. The district court noted that there were “other

. . . people of color with traditionally Hispanic surnames” within the

jury pool. The prosecutor said he excused Juror 15 because his

responses to questions about what someone was thinking

suggested that he would hold the People to too high of a standard

for proving the mens rea component of the charges. The court first

determined that, based on its recollection, Juror 15 was indeed

unable to satisfactorily answer the questions — and therefore found

that the prosecutor’s reason was “sufficient” — and then said there

5
were “several people of color” remaining in the pool. So the court

denied the challenge.

2. Applicable Law and Standard of Review

¶ 14 To ensure that individuals aren’t excluded from jury service

because of their race, the United States Supreme Court has

established a three-step test to evaluate claims of racial

discrimination in jury selection. Batson, 476 U.S. at 95-98.

¶ 15 First, the opponent of the strike must make a prima facie case

of racial discrimination by showing that the “totality of the relevant

facts gives rise to an inference of purposeful discrimination.”

Valdez v. People, 966 P.2d 587, 589 (Colo. 1998) (citing Batson, 476

U.S. at 96-98). A struck juror being a member of a minority group

“does not, in itself, raise an inference of discrimination.” People v.

Rodriguez, 2015 CO 55, ¶ 16 (quoting United States v. Vasquez-

Lopez, 22 F.3d 900, 902 (9th Cir. 1994)).

¶ 16 Second, if a defendant establishes a prime facie case, the

burden shifts to the proponent of the strike to provide a race-

neutral explanation. Valdez, 966 P.2d at 590. This burden isn’t a

high one, and the proponent doesn’t need to provide a persuasive or

even plausible explanation. Id.

6
¶ 17 Third, after the party opposing the strike is allowed to attempt

to rebut the proponent’s race-neutral reason, the court must

determine whether the opponent has proved purposeful

discrimination. Id. In making this assessment, the court may

consider a variety of factors, such as “the proponent’s demeanor,

how reasonable or improbable the proponent’s explanations are,

and whether the proffered rationale has some basis in accepted trial

strategy.” People v. Collins, 187 P.3d 1178, 1182 (Colo. App. 2008)

(citing Miller-El v. Cockrell, 537 U.S. 322, 339 (2003)).

¶ 18 We review first- and second-step Batson determinations de

novo, but we review the court’s finding at the third step for clear

error. Valdez, 966 P.2d at 590-91. The “trial court’s step-three

finding as to the existence of discrimination is due ‘great deference,’

as it ‘turn[s] on evaluation of credibility.’” People v. Wilson, 2015

CO 54M, ¶ 13 (quoting Batson, 470 U.S. at 98 n.21). Under the

clear error test, “an appellate court will set aside a trial court’s

findings of fact only if they are unsupported by the record.” People

v. Romero, 2024 CO 62, ¶ 47.

7
3. Analysis

¶ 19 Lobato argues that the court’s comment that there were other

“people of color with traditionally Hispanic surnames” in the

remaining jury pool shows that it improperly required that he show

a pattern of discrimination to prevail on his Batson challenge. But

the court made this statement at step one. The fact that Juror 15

may be Hispanic doesn’t alone show that, under the totality of the

circumstances, there was an inference of racial discrimination.

Rodriguez, ¶ 16. And that was all Lobato’s counsel offered at step

one. So it’s questionable whether the totality of circumstances

created an inference of racial discrimination.

¶ 20 But even if Lobato satisfied the first step, the court didn’t

clearly err at the third step by determining that the strike wasn’t

attributable to purposeful discrimination. The court implicitly

found the prosecutor’s explanation race-neutral — a finding Lobato

doesn’t contest — and noted that Juror 15 seemed “unable to be

responsive to the proponent’s inquiries.” That finding is supported

by the record. And Juror 15’s responses did indeed cast doubt on

his ability to assess mens rea under the facts of this case in a way

consistent with the prosecution’s theory.

8
¶ 21 Lobato asserts that his counsel rebutted the prosecutor’s

explanation by pointing out that Juror 15 responded that he might

be able to infer what someone is thinking “by looking at their face.”

But Juror 15 later hedged on that response. We observe that the

prosecutor also dismissed Juror 6, who made comments similar to

those made by Juror 15. There is no suggestion of purposeful

discrimination as to that prospective juror. Thus, we conclude the

district court didn’t clearly err by accepting the prosecutor’s

explanation and finding that Lobato’s counsel failed to prove

purposeful discrimination.

B. Video Evidence of Lobato’s Arrest

¶ 22 Lobato contends that the video evidence of his arrest

introduced at trial was irrelevant and prejudicial because, contrary

to the prosecution’s assertion, it wasn’t evidence of flight; it

portrayed him as a dangerous person; and it was cumulative of

officer testimony about the circumstances of his arrest. We aren’t

persuaded.

1. Relevant Facts

¶ 23 On the first day of trial, the prosecution sought to introduce

an eight-minute video of Lobato’s arrest taken from an officer’s body

9
camera. Lobato’s counsel objected to the video, arguing that it was

irrelevant and prejudicial. The prosecutor responded that the video

showed Lobato’s consciousness of guilt and cited People v. Summitt,

132 P.3d 320 (Colo. 2006), as support. After reviewing Summitt, the

court ruled that introducing the entire video could be unduly

prejudicial to Lobato but that a truncated version of the video could

be admissible to show consciousness of guilt.

¶ 24 On the second day of trial, over defense counsel’s renewed

objection, the court admitted the shortened version of the video,

which was less than a minute long. Officers who participated in

Lobato’s arrest also testified about the arrest.

2. Standard of Review and Applicable Law

¶ 25 “Trial courts have broad discretion in determining the

admissibility of evidence based on its relevance, its probative value,

and its prejudicial impact.” People v. Elmarr, 2015 CO 53, ¶ 20. A

court abuses that discretion when “its ruling is ‘manifestly

arbitrary, unreasonable, or unfair,’ or where it is based on an

erroneous view of the law.” Id. (quoting People v. Stewart, 55 P.3d

107, 122 (Colo. 2002)).

10
¶ 26 All relevant evidence is presumptively admissible except as

otherwise provided by constitution, rule, or statute. CRE 402.

Evidence is relevant when it makes a fact of consequence more or

less likely than it would be without it. CRE 401. And “once

relevance is established, the inferences drawn from that evidence

are solely for the jury to draw, not an appellate court.” People v.

Gonzales, 2019 COA 30, ¶ 37, aff’d, 2020 CO 71. It doesn’t matter

that “other inferences may be equally probable.” Summitt, 132 P.3d

at 324. Nonetheless, even relevant evidence should be excluded if

its probative value is substantially outweighed by the danger of

unfair prejudice. CRE 403. Evidence is considered unfairly

prejudicial if it suggests a decision based on an improper basis,

such as “sympathy, hatred, contempt, retribution, or horror.”

People v. Valdez, 2017 COA 41, ¶ 37 (quoting People v. Dist. Ct., 785

P.2d 141, 147 (Colo. 1990)).

¶ 27 “Evidence of flight and concealment to avoid arrest can be

admissible to show [a defendant’s] consciousness of guilt, ‘but only

if it can be shown the defendant was aware he or she was being

sought.’” Summitt, 132 P.3d at 324 (quoting People v. Perry, 68

P.3d 472, 475 (Colo. App. 2002)). Such evidence is admissible if the

11
“defendant had reason to believe that he had committed a crime,

that his identity was known, that his pursuit and apprehension

would probably ensue, and that he fled or concealed himself for any

length of time to frustrate this apprehension.” People v. Larson, 572

P.2d 815, 817 (Colo. 1977) (quoting Robinson v. People, 165 P.2d

763, 765 (Colo. 1946)); see also Summitt, 132 P.3d at 324 (“Flight

means a deliberate attempt to avoid detection and arrest.”).

3. Analysis

¶ 28 Lobato argues that the video evidence of his arrest was

irrelevant because it didn’t show that he was in flight or attempting

to conceal himself to avoid arrest. But there was evidence that

Lobato knew police might seek him out and attempted to conceal

himself. After Lobato hit Burt in the front yard, Medina shouted for

someone to call the police, and Lobato immediately fled to a storage

unit. Compare Summitt, 132 P.3d at 325 (the defendant wasn’t

aware that he was being sought by police, so he wasn’t avoiding

arrest by leaving the hospital and going home), with People v.

Sanchez, 253 P.3d 1260, 1264-65 (Colo. App. 2010) (evidence that

the defendant stabbed someone, heard someone say 911 had been

called, fled, and hid in a trailer supported flight instruction).

12
¶ 29 And when officers arrived at the storage unit, Lobato didn’t

answer their requests for him to come out but instead remained

quiet. He also tried to prevent officers from opening the storage

unit’s door. After he came out of the unit, he acted in a way that

could be construed as seeking to evade arrest.

¶ 30 Lobato asserts that the storage unit was his residence, so he

had simply returned home and wasn’t actively avoiding arrest, like

the defendant in Summitt. But Lobato didn’t introduce substantial

evidence that this storage unit was his residence. And even if it

was, the facts in this case are distinguishable from those in

Summitt because one could infer that Lobato knew that the police

were being contacted and that they would seek to apprehend him.

And, knowing that, Lobato didn’t voluntarily leave the unit, but

instead remained quiet, attempting to create the impression that he

wasn’t inside, and physically prevented police from opening the

door.

¶ 31 Lobato also argues that, even if the video was relevant, it was

unfairly prejudicial. Specifically, he argues that the video unfairly

“painted [him] as a dangerous person.” But the video was less than

a minute long and was highly probative of consciousness of guilt.

13
We aren’t convinced that its probative value was substantially

outweighed by any danger of unfair prejudice: the video didn’t show

Lobato armed or attacking anyone, and, perhaps other than when it

showed him getting on his feet (disobeying officer commands), it

didn’t portray him as particularly aggressive.

¶ 32 The video also wasn’t needlessly cumulative. Though officers

testified at trial about the arrest, “[t]he fact that evidence is

cumulative does not, by itself, render the evidence inadmissible.”

People v. Thompson, 2017 COA 56, ¶ 184 (quoting People v.

Pahlavan, 83 P.3d 1138, 1140 (Colo. App. 2003)). The officers

testified about their own perspectives of the arrest. The video

allowed the jury to make its own conclusions. See CRE 403

(relevant evidence “may be” excluded if it is “needless[ly] . . .

cumulative” (emphasis added)).

C. Jurors’ View of Lobato in Handcuffs

¶ 33 Lobato contends that there was a possibility that jurors saw

him in handcuffs, which violated his right to due process and

required a mistrial. Again, we disagree.

14
1. Relevant Facts

¶ 34 During a break at trial, two jurors saw Lobato in the

courthouse hallway. They saw him from the front as he was being

escorted with his hands cuffed behind his back. A deputy was

walking in front of Lobato (and therefore between Lobato and the

jurors). The trial judge was in the hallway walking behind Lobato

and saw the event. After the break, the judge said for the record

that the two jurors were about twenty-five yards away from Lobato

and couldn’t see his handcuffs.

¶ 35 Lobato’s counsel moved for a mistrial due to concerns that the

jurors had seen Lobato in handcuffs. In the alternative, counsel

requested that the court poll all the jurors about whether they had

seen Lobato’s handcuffs. The court declined to poll the jurors,

saying that doing so would disclose to all the jurors that Lobato was

in handcuffs, and therefore would be “essentially telling [the jury]

what they saw.” The court denied the request for a mistrial because

there wasn’t a “manifest necessity for it” given that the jurors “could

not see his hands” and wouldn’t consider it unusual that anyone in

the back hallway needed to be escorted.

15
2. Applicable Law and Standard of Review

¶ 36 A defendant is entitled to appear innocent in front of the court,

and “the presumption of innocence requires the garb of innocence.”

People v. Dillon, 655 P.2d 841, 846 (Colo. 1982) (quoting Eaddy v.

People, 174 P.2d 717, 718 (Colo. 1946)). Exposing a shackled

defendant to a jury can warrant a mistrial if shackling is deemed

unnecessary and prejudicial. Id. Thus, shackling a defendant,

including handcuffs, in front of a jury is prohibited unless the court

determines that it’s necessary. Hoang v. People, 2014 CO 27, ¶ 13.

¶ 37 If a defendant requests a mistrial, the court must determine

whether “the ‘prejudice to the accused is too substantial to be

remedied by other means.’” Bloom v. People, 185 P.3d 797, 807

(Colo. 2008) (quoting People v. Collins, 730 P.2d 293, 303 (Colo.

1986)), superseded by statute on other grounds, Ch. 389, sec. 9,

§ 16-8-111, 2008 Colo. Sess. Laws 1856; see also People v. Jackson,

2018 COA 79, ¶ 20 (“Declaring a mistrial is ‘the most drastic of

remedies’ . . . .” (quoting People v. Santana, 255 P.3d 1126, 1132

(Colo. 2011))), aff’d, 2020 CO 75.

¶ 38 Mere inadvertent exposure of a handcuffed defendant in a

court hallway normally doesn’t warrant a mistrial. Dillon, 655 P.2d

16
at 846 (discussing Scott v. People, 444 P.2d 388 (Colo. 1968), and

McLean v. People, 473 P.2d 715 (Colo. 1970)); see also Hamrick v.

People, 624 P.2d 1320, 1323 (Colo. 1981) (“[T]he momentary,

inadvertent exposure of the defendant in handcuffs, outside the

courtroom . . . did not prejudice the defendant’s right to a fair

trial.”).

¶ 39 The district court is in the best position to determine whether

a mistrial is warranted, and we won’t overturn its ruling absent a

showing of a gross abuse of discretion and prejudice to the

defendant. Bloom, 185 P.3d at 807.

3. Analysis

¶ 40 Lobato argues that even though the judge witnessed the event,

she didn’t have the same vantage point as the jurors and therefore

couldn’t “say for certain that the jurors did not see the handcuffs.”

And because the judge declined to poll the jurors, Lobato says,

“there was no concrete evidence that the jury did not see Mr.

Lobato” in handcuffs.

¶ 41 But the defendant has the burden to show that the jurors saw

the handcuffs. See Hoang, ¶ 24. And the judge said the exposure

was “very quick” and the jurors didn’t see the handcuffs. We are in

17
no position to second-guess the district court’s finding. See People

v. Beauvais, 2017 CO 34, ¶ 31 (“As with any other finding of fact, a

highly deferential standard of review precludes an appellate court

from substituting its reading of a cold record for the trial court’s in-

the-moment and better-informed determination.”).

¶ 42 We recognize that the district court didn’t articulate the proper

standard in determining whether a mistrial was appropriate. The

court said that there wasn’t a “manifest necessity” for a mistrial,

when it should have said the question is whether any prejudice to

Lobato was too substantial to be remedied by other means. See

Bloom, 185 P.3d at 807-08. But, in effect, the court applied the

correct standard: It considered whether Lobato was prejudiced by

the encounter and concluded that he wasn’t. See id. at 808 (where

the district court articulated the wrong standard but applied the

correct one, and came to the correct conclusion, there was no

error).

D. Officer Testimony About Search and Arrest Warrants

¶ 43 Lobato contends that officer testimony about the issuance of

search and arrest warrants violated his right to a fair trial because

18
the statements were prejudicial given that probable cause wasn’t at

issue. We conclude that there was no reversible error.

1. Relevant Facts

¶ 44 At trial, multiple officers testified about the circumstances

surrounding Lobato’s arrest. Lobato argues that two of the officers’

statements1 violated his right to a fair trial because the officers

mentioned search and arrest warrants:

1. Officer Clinton testified that after she spoke with the

victims at the hospital, she “went to [the] police station to

write a warrant.” Lobato’s counsel didn’t object to this

statement.

2. Sergeant Scott testified that she left a copy of the search

warrant in the storage unit. Lobato’s counsel objected to

this statement. The court overruled the objection.

1 Lobato actually asserts that there were three warrant-related

statements that violated his right to a fair trial. But the district
court sustained Lobato’s counsel’s objection to the third statement
and told jurors to disregard it, and we don’t review a claim of error
if the court sustained an objection to the purportedly improper
testimony and the defense didn’t request any further relief (that the
court denied). See People v. Jamison, 2018 COA 121, ¶ 37.

19
2. Standard of Review and Applicable Law

¶ 45 We review a district court’s evidentiary rulings for an abuse of

discretion. See Elmarr, ¶ 20. A district court abuses its discretion

when “its ruling is ‘manifestly arbitrary, unreasonable, or

unfair,’ . . . [or] based on an erroneous view of the law.” Id. (quoting

Stewart, 55 P.3d at 122).

¶ 46 If the defense didn’t object to the testimony, we review any

claim of error for plain error. People v. Penn, 2016 CO 32, ¶ 28.

Under plain error review, we reverse only if the error was obvious

and “so undermined the fundamental fairness of the trial . . . as to

cast serious doubt on the reliability of the judgment of conviction.”

Id. (quoting Hagos v. People, 2012 CO 63, ¶ 14). But if the defense

objected to the testimony, we review the claim of error for harmless

error. Hagos, ¶ 12. Under harmless error review, “we reverse if the

error ‘substantially influenced the verdict or affected the fairness of

the trial proceedings.’” Id. (quoting Tevlin v. People, 715 P.2d 338,

342 (Colo. 1986)).

¶ 47 Generally, when probable cause isn’t at issue in a case, it is

improper for a witness to testify about obtaining a search or arrest

warrant or having probable cause to do so. People v. Salazar, 2023

20
COA 102, ¶ 39. But if the testimony was minimal and didn’t

provide details about the process of obtaining a warrant, any error

in allowing it is typically considered harmless. See id. at ¶ 42.

3. Analysis

¶ 48 Officer Clinton’s statement arguably wasn’t proper. But even

if it was improper, any error in allowing it wasn’t plain. It was

made in passing, Officer Clinton didn’t provide any detail about the

process of obtaining a warrant, and the prosecutor didn’t

subsequently rely on it. See People v. Mapps, 231 P.3d 5, 12 (Colo.

App. 2009); People v. Renfro, 117 P.3d 43, 48 (Colo. App. 2004); cf.

People v. Mullins, 104 P.3d 299, 301-02 (Colo. App. 2004) (finding

plain error because, among other things, the investigating officer

went into detail about having probable cause to obtain an arrest

warrant and the evidence against the defendant wasn’t

overwhelming).

¶ 49 Sergeant Scott only made a passing reference to a search

warrant. She didn’t discuss the details of applying for the search

warrant. And again, the prosecutor didn’t later rely on it.

Therefore, any error in allowing this statement was harmless. See

Salazar, ¶¶ 42-43.

21
E. Cumulative Error

¶ 50 We reject Lobato’s cumulative error argument. Considering

the two errors we have assumed for purposes of argument (allowing

the officers’ statements regarding the warrants), Lobato wasn’t

denied his right to a fair trial. See Howard-Walker v. People, 2019

CO 69, ¶ 24.

F. Restitution

¶ 51 Lobato contends that the district court erred by ordering

restitution more than ninety-one days after sentencing, denying his

counsel’s request for an in camera review of supporting

documentation, and ordering a restitution amount that isn’t

supported by the record. We disagree with these contentions.

1. Relevant Facts

¶ 52 At Lobato’s sentencing on January 30, 2023, the court ordered

him to pay restitution, with the final amount to be determined

within ninety-one days unless there was a finding of good cause to

extend the deadline. On March 10, the prosecution asked the court

to order Lobato to pay $5,366.90 to the Colorado Crime Victim

Compensation Board (CVCB). Four days later, Lobato’s counsel

objected to restitution and requested a hearing.

22
¶ 53 Before the hearing, Lobato’s counsel asked the court to

conduct an in camera review of the CVCB’s supporting documents.

At a status conference on April 17, after hearing arguments from

both sides, the court said it wanted to review the issue further,

which it said provided good cause to extend the ninety-one-day

deadline. The court then set another hearing for April 24.

¶ 54 On April 24, the court ruled that it wouldn’t review the CVCB

documents because it wasn’t persuaded by Lobato’s counsel’s

evidentiary hypothesis for undertaking such a review. But the

court ordered the prosecution to provide the defense with “a list of

the amount of money paid to each provider by the [CVCB],” unless

doing so “would pose a threat to the safety or welfare of a victim.”

The court set a date for a restitution hearing and again expressly

found good cause to extend the deadline so that Lobato could be

present at the hearing (a critical stage of the proceeding).

¶ 55 At the June 20 hearing, a CVCB administrator testified that

the CVCB paid $5,205.05 to the victims. The court found that

23
Lobato’s conduct proximately caused the amount requested by the

CVCB and ordered restitution in the amount of $5,207.90.2

2. Timeliness of Restitution Order

¶ 56 Lobato contends that the district court improperly ordered

restitution more than ninety-one days after sentencing. We

disagree.

a. Applicable Law

¶ 57 Defendants must “make full restitution to those harmed by

their misconduct.” § 18-1.3-601(1)(b), C.R.S. 2025. Thus, every

order of conviction must include consideration of restitution. See

§ 18-1.3-603(1)(a), C.R.S. 2025. But, if a court orders restitution

but defers ruling on the amount, it must determine the specific

amount within ninety-one days after sentencing, or beyond that if

the court finds good cause to extend the deadline. § 18-1.3-

603(1)(b), C.R.S. 2022;3 see People v. Weeks, 2021 CO 75, ¶¶ 4, 39.

2 The final amount ordered reflects the amount requested by the

prosecution on March 10, less a $159 payment to a Colorado
Springs Radiologist.
3 In 2025, the time period for determining restitution was changed

from ninety-one to sixty-three days after sentencing. Ch. 307, sec.
1, § 18-1.3-603, 2025 Colo. Sess. Laws 1606. Because Lobato’s
sentencing occurred in 2023, we refer to the August 2022 version of
the statute when referring to the deadline.

24
b. Analysis

¶ 58 In Weeks, the prosecutor asked at sentencing that the issue of

restitution remain open because he hadn’t yet filed a motion.

Weeks, ¶ 11. The supreme court held that the issue of restitution

can’t “remain open” after the judgment of conviction is entered. Id.

at ¶ 8. Lobato argues that, as in Weeks, the district court left open

the entire issue of restitution, and therefore the court’s ultimate

order awarding restitution was untimely. But at the end of the

sentencing hearing, the court said, “Restitution will be ordered, and

the amount to be finalized in 91 days unless a good cause finding

extends that.” That order complied with section 18-1.3-603(1)(b),

C.R.S. 2022. The court subsequently found good cause to extend

the deadline — twice — and Lobato doesn’t challenge those

findings. See Weeks, ¶ 5.

3. In Camera Review of CVCB Records

¶ 59 Lobato also contends that the district court improperly refused

to review the CVCB’s records in camera even though his attorney

provided a nonspeculative evidentiary hypothesis justifying such a

review. We disagree.

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a. Applicable Law and Standard of Review

¶ 60 In a restitution proceeding, “[t]he prosecution bears the

burden of proving, by a preponderance of the evidence, . . . that the

defendant’s conduct was the proximate cause of the victim’s loss.”

People v. Henry, 2018 COA 48M, ¶ 15. But if the restitution

amount is requested on behalf of the CVCB, there is a rebuttable

presumption that the amount is directly related to the defendant’s

conduct. People v. Fregosi, 2024 COA 6, ¶ 44 (citing § 18-1.3-

603(10)(a)). A defendant may rebut this presumption by presenting

evidence that the amount requested wasn’t the result of his

criminal conduct. Id.

¶ 61 The CVCB’s records are confidential, so a defendant cannot,

as a matter of right, obtain access to them. Id. at ¶ 52. But he may

ask the court to conduct an in camera review of the CVCB’s records

if the request isn’t speculative and is based on “an evidentiary

hypothesis” that would rebut the statutory presumption. Id. at

¶ 54. The evidentiary hypothesis must show “‘a specific factual

basis demonstrating a reasonable likelihood’ that the discovery will

yield material evidence” regarding proximate cause. Id. at ¶ 56

(quoting People v. Spykstra, 234 P.3d 662, 671-72 (Colo. 2010)).

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¶ 62 We review a district court’s refusal to conduct an in camera

review for an abuse of discretion. Id. at ¶ 51.

b. Analysis

¶ 63 Before the April 17 status hearing, Lobato’s counsel asked the

court to conduct an in camera review of the CVCB records because

counsel said she couldn’t tell whether the services rendered were

proximately caused by Lobato’s conduct. But such inability isn’t a

specific factual basis for review because it doesn’t show that there is

any likelihood that discovery will yield material evidence. See id. at

¶ 56 (an expression of a desire for additional information is

insufficient). Thus, the district court didn’t abuse its discretion by

refusing to undertake an in camera review.

4. Restitution Amount

¶ 64 Lobato contends that the district court improperly ordered a

restitution amount that is $2.85 more than what the CVCB

administrator testified to at trial. We disagree.

a. Applicable Law and Standard of Review

¶ 65 The prosecution must prove the restitution amount by a

preponderance of the evidence and may rely on documentary or

nondocumentary evidence to meet this burden. See People v.

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Babcock, 2023 COA 49, ¶ 30, aff’d, 2025 CO 26; § 18-1.3-603(2).

When the sufficiency of this evidence is at issue, we review de novo.

See People v. Stone, 2020 COA 24, ¶ 7.

b. Analysis

¶ 66 Lobato argues that because the CVCB administrator testified

to a restitution amount that was $2.85 less than what was ordered

by the court, there isn’t any evidence to support the court-ordered

amount. But the prosecution provided nontestimonial evidence

supporting the amount ordered by the district court — the CVCB’s

written request. Thus, there was evidence supporting the court’s

order, even if the CVCB administrator indicated a slightly different

amount at the hearing.

III. Disposition

¶ 67 We affirm the judgment of conviction.

JUDGE GROVE and JUDGE SCHUTZ concur.

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