Peo v. Bailey

• Court: Colorado Court of Appeals
• Decided: April 3, 2025
• Docket: 22CA2206
• Status: Unpublished

Opinion

22CA2206 Peo v Bailey 04-03-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2206 City and County of Denver District Court No. 22CR1172 Honorable Jennifer B. Torrington, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Travis A. Bailey,

Defendant-Appellant.

ORDER AFFIRMED

Division III Opinion by JUDGE DUNN Tow and Meirink, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 3, 2025

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

Megan A. Ring, Colorado State Public Defender, Casey Mark Klekas, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Travis A. Bailey, appeals the district court’s

restitution order. We affirm.

I. Background

¶2 Bailey was charged with one count each of second degree

assault (strangulation) and third degree assault based on

allegations that he grabbed the victim by her throat and threw her

onto the ground, injuring her back, neck, shoulders, and elbow.

¶3 As part of a plea agreement, Bailey agreed to plead guilty to

second degree assault, as an act of domestic violence, in exchange

for dismissal of the remaining count. The parties agreed to a three-

year deferred judgment and sentence, and Bailey agreed to pay

restitution. The district court accepted the agreement and

sentenced Bailey accordingly.

¶4 The prosecution timely submitted its request for restitution in

the amount of $12,075.68, payable to the Second Judicial District

Victim Compensation Fund, a statutorily established crime victim

compensation board (CVCB). Attached to the motion was a

summary from the CVCB that corroborated the amount requested,

noting that the amount paid was for “Medical expenses” incurred by

1 the victim. However, the summary did not identify the provider or

providers of those medical expenses.

¶5 Bailey objected to the amount requested and asked the court

to release the restitution records that CVCB relied on after an in

camera review. The district court set the matter for a hearing.

¶6 At the hearing, the district court denied Bailey’s request for an

in camera review of the records, concluding that Bailey “ha[d] not

shown that his request [was] anything more than speculation, nor

ha[d] he shown any evidentiary hypothesis which would warrant an

in camera review.”

¶7 Following this ruling, the prosecution elicited testimony from a

CVCB program administrator for the Denver District Attorney’s

Office. The program administrator explained the process required

to apply for CVCB funds and confirmed that the CVCB had received

a request relating to this case and that it was approved in

accordance with that process. Further, the program administrator

testified that a payment of $12,075.68 was made directly to the

“medical provider” for “medical expenses” on the victim’s behalf.

The program administrator did not testify as to what specific

“medical expenses” were included in the amount requested.

2 ¶8 In addition to this testimony, the district court judicially

noticed Bailey’s guilty plea to second degree assault, including the

portion of Bailey’s plea agreement where he agreed to have

“intentionally caused bodily injury to [the victim].” The court also

judicially noticed the contents of the court file, including the

probable cause affidavit and the victim impact statement. Apart

from a photograph of the victim’s neck injury, Bailey did not

present any additional evidence.

¶9 Based on the evidence presented at the hearing, the district

court found that the prosecution “met [its] burden of proving, by a

preponderance of evidence, not only the amount of the victim’s

medical expenses but also that those losses were proximately

caused by [Bailey’s] criminal conduct” and ordered him to pay

$12,075.68 in restitution.

II. Sufficiency

¶ 10 Bailey contends that the prosecution failed to present

sufficient evidence for the restitution amount ordered. We disagree.

A. Standard of Review

¶ 11 In the restitution context, we review for clear error the district

court’s determination that the defendant proximately caused the

3 victim’s losses. Martinez v. People, 2024 CO 6M, ¶ 32. But when,

as here, a defendant challenges the sufficiency of the evidence

supporting the amount of restitution awarded — that is, a challenge

to the quantum of evidence provided to the court — our review is de

novo. See id. at ¶¶ 19-22; People v. Moss, 2022 COA 92, ¶ 11. In

other words, “our de novo determination is whether the prosecution

presented sufficient evidence to convince a reasonable fact finder by

a preponderance of the evidence of the amount of restitution owed.”

Moss, ¶ 11.

B. Analysis

¶ 12 Restitution means “any pecuniary loss suffered by a victim

[that was] . . . proximately caused by an offender’s conduct and that

can be reasonably calculated and recompensed in money.” § 18-

1.3-602(3)(a), C.R.S. 2024.

¶ 13 Crime victims may seek compensation from the CVCB for

losses caused by criminal conduct, including medical and hospital

expenses. §§ 24-4.1-102(1), -108, -109(1)(a), C.R.S. 2024. When a

CVCB pays a victim compensation claim, it is a “[v]ictim” for

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

Therefore, if the CVCB pays such a claim, a court may order the

4 defendant to reimburse the CVCB for the amount of assistance that

it paid to the victim. People v. Fregosi, 2024 COA 6, ¶ 43.

¶ 14 “The prosecution must prove by a preponderance of the

evidence that the defendant’s conduct proximately caused the

victim’s loss and the amount of that loss.” Id. at ¶ 44. However, for

CVCB claims, the restitution statute creates a rebuttable

presumption that the amount paid by the CVCB is a direct result of

the defendant’s criminal conduct. See § 18-1.3-603(10)(a), C.R.S.

2024; People v. Henry, 2018 COA 48M, ¶ 17. Specifically, section

18-1.3-603(10)(a) says that if the CVCB provides assistance to or on

behalf of a victim, “the amount of assistance provided and

requested by the crime victim compensation board is 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.”

¶ 15 To trigger the rebuttable presumption, however, the

prosecution must establish the amount of assistance provided.

People v. Martinez-Chavez, 2020 COA 39, ¶ 20. The restitution

statute prescribes two ways of establishing this amount: (1) “[a] list

of the amount of money paid to each provider”; or (2) “[i]f the

5 identity or location of a provider would pose a threat to the safety or

welfare of the victim, summary data reflecting what total payments

were made for” by category. § 18-1.3-603(10)(b)(I), (II)(A)-(E).

¶ 16 But the prosecution need not rely on the statutory

presumption to establish the amount of restitution; rather, it can

also rely on “victim impact statements or other means.” § 18-1.3-

603(2)(a); People v. Barbre, 2018 COA 123, ¶ 40 (noting that “under

Colorado law, an award of restitution may be based solely on a

victim impact statement”). The court “shall base its order for

restitution” on the information presented by the prosecution. § 18-

1.3-603(2)(a).

¶ 17 At the restitution hearing, the prosecution presented

testimony from the CVCB program administrator who explained

how the CVCB processes claims it receives and how this case met

the statutory requirements. The CVCB program administrator

testified that she reviewed the victim’s itemized medical bill and

confirmed that the date of the bill coincided with the date the crime

occurred as well as the date the medical services were provided.

She also testified that she confirmed that the victim had not made

any payments toward the bill. And she verified whether the victim

6 had insurance and, if so, whether the victim’s insurance company

had made any payments or whether a self-pay discount had been

applied by the hospital. Additionally, the CVCB program

administrator testified that the CVCB paid a total of $12,075.68 in

medical expenses directly to the medical provider on behalf of the

victim in this case. When viewed in the light most favorable to the

People, this evidence was sufficient to prove by a preponderance of

the evidence the amount of restitution that Bailey owed to the

CVCB.

¶ 18 In reaching this conclusion, we note that Bailey does not

contest the district court’s proximate cause finding — that the

amounts paid by the CVCB directly resulted from his criminal

conduct. Rather, his assertion is that there was insufficient

evidence for the restitution amount ordered because the

prosecution relied exclusively on the CVCB payment summary that

did not include the identity of the victim’s treatment provider or

otherwise establish that including that information would pose a

threat to the safety or welfare of the victim.

¶ 19 Indeed, the CVCB payment summary did not identify the

medical providers, as required by section 18-1.3-603(10)(b)(I). Nor

7 did the prosecution assert under section 18-1.3-603(10)(b)(II) that

providing such information would pose a threat to the safety or

welfare of the victim. But, as discussed, we need not rely on the

statute’s rebuttable presumption to affirm the district court’s

restitution award. And because we do not rely on section 18-1.3-

603(10)(a)’s rebuttable presumption, there is no requirement to

consider the amount of assistance provided as directed by section

18-1.3-603(10)(b).

¶ 20 Moreover, we note that Bailey presented no evidence at the

hearing contesting either the process the CVCB undertook to

determine the amount requested or the amount itself. And to the

extent he suggested that the victim had health insurance sufficient

to reduce the amount claimed, the CVCB program administrator

testified that while she could not recall if the victim had insurance

or not, (1) there was a disclosure from the victim concerning

whether she had health insurance, (2) the itemization sent to the

CVCB indicated if insurance had paid a portion of the bill, and

(3) the CVCB verified whether insurance had paid any portion of the

bill. The CVCB program administrator also testified that if the

victim did not have insurance, the hospital usually applies a “self-

8 pay discount” to reduce the amount of the bill and the CVCB

applies this discount before they make any payments.

¶ 21 Nor are we persuaded by Bailey’s reliance on Martinez-Chavez.

In Martinez-Chavez, a division of this court reversed a restitution

order after the district court had failed to hold a hearing despite the

defendant’s objection to causation. Id. at ¶¶ 2, 6. The division

based its holding, in part, on its observation that the defendant’s

objection involved a mixed question of law and fact, and therefore

necessitated a hearing, because the prosecution bore the burden of

proof on causation. Id. at ¶ 20. Thus, the division’s comments

concerning the prosecution’s failure to comply with section 18-1.3-

603(10) are limited to its conclusion that the prosecution’s

restitution motion falls short of establishing causation. Id. But

they do not stand for the proposition that the only way a restitution

award to a CVCB can stand is if the prosecution satisfies section

18-1.3-603(10). Cf. Fregosi, ¶ 47 (rejecting defendant’s sufficiency

challenge because the record provided sufficient evidence to uphold

the restitution order without relying solely on the CVCB

summaries).

9 ¶ 22 Thus, when, as here, the parties do not dispute causation and

the prosecution presents sufficient evidence to meet its burden

concerning the amount of restitution, no basis for vacating the

restitution order exists. Cf. id. Accordingly, we conclude that

sufficient evidence supports the court’s findings and affirm the

order.

III. In Camera Review and Disclosure

¶ 23 Next, Bailey contends that the district court violated his

constitutional right to due process when it denied defense counsel’s

request to conduct an in camera review of the CVCB records. We

disagree.

¶ 24 A district court’s refusal to conduct an in camera review is

reviewed for an abuse of discretion. Id. at ¶ 51. We review de novo

whether the court violated the defendant’s right to due process.

People v. Calderon, 2014 COA 144, ¶ 23.

¶ 25 The CVCB’s records relating to the claimed amount of

restitution are confidential. § 24-4.1-107.5(2), C.R.S. 2024.

However, in restitution proceedings, section 24-4.1-107.5(3) creates

10 a two-step process through which a defendant can obtain

information in the CVCB’s records. People v. Hernandez, 2019 COA

111, ¶ 17.

¶ 26 First, the defendant may ask the district court to conduct an

in camera review if the request “is not speculative and is based on

an evidentiary hypothesis that warrants an in camera review.”

§ 24-4.1-107.5(3). Second, after conducting such a review, the

court may release information if it finds the information “[i]s

necessary for the defendant to dispute the amount claimed for

restitution” and “[w]ill not pose any threat to the safety or welfare of

the victim, or any other person whose identity may appear in the

board’s records, or violate any other privilege or confidentiality

right.” § 24-4.1-107.5(3)(a)-(b).

¶ 27 Bailey did not satisfy these statutory requirements. He

presented no evidence or information that the amount of medical

expenses requested was inaccurate. Rather, his only evidentiary

hypothesis was that he needed the CVCB records “to have a

meaningful opportunity to contest the validity of [the requested]

amount” and “to do an independent review into the validity of the

claim” given his “belief” that the victim “had medical insurance at

11 the time of the offense and likely, would not have been required to

pay the amount currently requested.”

¶ 28 Based on this record, we cannot say that Bailey has alleged

anything more than that he needed or wanted additional

information to investigate the possibility that the victim might have

had insurance and, therefore, the amount requested might have

been inaccurate. “If a litigant fails to show ‘a specific factual basis

demonstrating a reasonable likelihood’ that the discovery will yield

material evidence, the request for in camera review is properly

denied.” Fregosi, ¶ 56 (quoting People v. Spykstra, 234 P.3d 662,

671-72 (Colo. 2010)). Accordingly, we conclude that Bailey’s

insufficient and speculative evidentiary hypothesis does not meet

the statutory requirements for an in camera review. See id.

(concluding that the defendant’s request for an in camera review of

the victim’s medical and mental health records was speculative

because the defendant needed them to investigate, among other

things, “whether the costs were something for which [the victim]

was eligible to have insurance cover (in whole, or in part)”).

¶ 29 Finally, because Bailey received sufficient notice of the

prosecution’s intent to seek restitution, the basis of its claim, and

12 an opportunity to contest it, due process was satisfied. See People

v. Perez, 2020 COA 83, ¶ 49 (due process is satisfied, in the

restitution context, when the defendant receives notice of the

factual basis for the restitution order and an opportunity to contest

that basis), overruled on other grounds by People v. Weeks, 2021 CO

75, ¶ 47 n.16; cf. Hernandez, ¶ 60 (concluding section 18-1.3-

603(10) does not violate due process on its face).

IV. Disposition

¶ 30 The restitution order is affirmed.

JUDGE TOW and JUDGE MEIRINK concur.