Peo v. Cadaret

Opinion

24CA0513 Peo v Cadaret 08-20-2026 COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0513 El Paso County District Court No. 22CR6126 Honorable Erin Sokol, Judge

The People of the State of Colorado, Plaintiff-Appellee, v. Robert Timothy Cadaret, Defendant-Appellant.

JUDGMENT AFFIRMED IN PART AND VACATED IN PART, AND CASE REMANDED WITH DIRECTIONS

Division VII

Opinion by JUDGE MEIRINK

Pawar and Sullivan, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced August 20, 2026

Philip J. Weiser, Attorney General, Sonia Raichur Russo, Senior Assistant Attorney General, Allison S. Block, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Jennifer Tuttle, Alternate Defense Counsel, Denver, Colorado, for Defendant- Appellant

¶1 Defendant, Robert Timothy Cadaret, appeals the trial court’s judgment of conviction and sentence entered on jury verdicts finding him guilty of attempted second degree murder, first degree assault, aggravated robbery, first degree burglary, and theft. We affirm in part, vacate in part, and remand with directions.

I. Background

¶2 Cadaret shared a two-bedroom apartment with A.B. and her boyfriend, Collin Martinez. A.B. and Martinez shared a bedroom and sold drugs out of the apartment. Because A.B. and Martinez kept large amounts of money and drugs in their bedroom, they installed a deadbolt on the door. ¶3 In November 2022, Cadaret called his friend, Blaine Brown, to help him move out of the apartment. Cadaret told Brown that A.B. and Martinez owed him rent. A.B. was alone in her bedroom with the deadbolt locked when Cadaret used a weight to break down the door to her bedroom. Cadaret threw the weight at A.B., which hit her and knocked her into the wall. Cadaret then started hitting A.B. At some point, A.B. pulled a gun from her purse, and a physical struggle ensued. Cadaret was able to grab the gun from A.B., and he shot her in the right temple.

2

¶4 When Brown and Cadaret left the apartment, Cadaret was carrying a box that had A.B.’s purse in it, which had about $10,000 in cash, drugs, and A.B.’s gun. A.B. survived, but she suffered hearing and vision loss and has difficulty using her left hand. ¶5 Cadaret was charged with attempted second degree murder, first degree assault, two counts of aggravated robbery, two counts of first degree burglary, theft (value between $2,000 to $5,000), and seven crimes of violence counts.1 He was convicted on all counts. At sentencing, the court merged the two counts of aggravated robbery and the two counts of first degree burglary. Cadaret was sentenced to three consecutive terms of thirty-two years in the custody of the Department of Corrections (DOC) for the attempted second degree murder, first degree assault, and first degree burglary convictions, with the sentences for the remaining convictions running concurrently.

II. Discussion

¶6 Cadaret contends that the trial court erred by (1) not instructing the jury that robbery and theft are mutually exclusive

1 The prosecution additionally charged Cadaret with possession of a weapon by a previous offender but dismissed that count.

3

verdicts (i.e., that he couldn’t be convicted of both); (2) failing to merge the first degree assault count as a lesser included offense of the merged first degree burglary counts; (3) imposing consecutive sentences for attempted second degree murder, first degree assault, and first degree burglary; and (4) granting the prosecution’s request for restitution, which included fourteen months of prejudgment interest. We address each contention in turn.

A. Mutually Exclusive Verdicts ¶7 Cadaret contends that the trial court should’ve instructed the jury that it could find him guilty of aggravated robbery or theft — but not both — because the elements of robbery and theft are mutually exclusive. We disagree.

1. Applicable Law and Standard of Review ¶8 “[M]utually exclusive guilty verdicts are invalid because elemental exclusivity — wherein an element of one verdict is incompatible with an element of another verdict — means each element of the crime was not proven beyond a reasonable doubt to support the conviction . . . .” People v. Shockey, 2026 CO 10, ¶ 17 (emphasis omitted). Verdicts are mutually exclusive when an element of one crime negates a necessary element of another crime.

4

People v. Rigsby, 2020 CO 74, ¶ 18. To determine whether two guilty verdicts are mutually exclusive we look to the statutory elements of the offenses. Id. ¶9 Whether verdicts are mutually exclusive is a question of law we review de novo. People v. Delgado, 2019 CO 82, ¶ 13. We also review de novo whether the jury instructions accurately informed the jury of the law, but we review the trial court’s formulation of the instructions for abuse of discretion. People v. Stellabotte, 2016 COA 106, ¶ 18, aff’d, 2018 CO 66.

2. Analysis

¶ 10 Cadaret argues that the court erred by not instructing the jury that he couldn’t be convicted of both robbery and theft because the elements of robbery and theft negate each other. Specifically, Cadaret argues that robbery requires the use of force, whereas theft requires means other than the use of force. We disagree. ¶ 11 Cadaret was charged and convicted of theft under section 18- 4-401(1) and (2)(f), C.R.S. 2025.2 Under section 18-4-401(1), theft

2 Cadaret’s theft was categorized as a class 6 felony because the

items stolen were valued between $2,000 and $5,000. See § 18-4- 401(2)(f), C.R.S. 2025.

5

occurs when an individual “knowingly obtains, retains, or exercises control over anything of value of another without authorization or by threat or deception,” with the intent to permanently deprive the person of the use or benefit of the item. In line with the statute, the jury was instructed that the elements of theft were that the defendant “obtained, retained, or exercised control over anything of value of another, without authorization or by threat or deception,” with the intent to deprive the individual of the property permanently. Importantly, neither section 18-4-401(1) nor the jury instruction state that theft must necessarily occur without the use of force or with specific means other than force. ¶ 12 Comparatively, Cadaret was charged with aggravated robbery (wound, strike, or put in fear) under section 18-4-302(1)(b), C.R.S. 2025, and aggravated robbery (suggestion or representation of a deadly weapon) under section 18-4-302(1)(d). The jury instructions for both theories of aggravated robbery included the element of “by the use of force, threats, or intimidation.” While Cadaret’s convictions for aggravated robbery under section 18-4-302(1)(b) required the jury to find that he used force, the conviction for theft

6

under 18-4-401(1) didn’t, so the elements of aggravated robbery and theft didn’t negate each other. ¶ 13 Cadaret points to Delgado, which held that theft under 18-4- 401(5) and robbery under section 18-4-301(1), C.R.S. 2025, are mutually exclusive because a taking under the former occurs by means other than the use of force while a taking under the latter occurs from use of force. Delgado, ¶ 27. To find the defendant guilty of both offenses, the jury would have to find that the defendant both used and didn’t use force. Id. at ¶ 28. However, in Delgado, the court analyzed theft under section 18-4-401(5), not section 18-4-401(1), as we do here. See id. at ¶¶ 27-31. Under section 18-4-401(5), “[t]heft from the person of another by means other than the use of force, threat, or intimidation is a class 5 felony without regard to the value of the thing taken.” (Emphasis added). As the supreme court explained, this subsection (5) of the theft statute was specifically enacted “to cover those situations that would otherwise constitute robbery, but for the lack of force, threats, or intimidation” and to address situations in which a theft may occur by an invasion of a victim’s person without their

7

knowledge and without force. People v. Warner, 801 P.2d 1187, 1191 (Colo. 1990) (footnote omitted). ¶ 14 Simply put, Cadaret wasn’t charged with theft under section 18-4-401(5), and the jury wasn’t asked to determine whether he committed theft by means other than the use of force. Instead, he was charged under section 18-4-401(1) for theft without authorization or by threat or deception. The verdicts weren’t mutually exclusive because they didn’t require the jury to find that Cadaret used force (for aggravated robbery) and didn’t use force (for theft). ¶ 15 We therefore conclude that the trial court properly instructed the jury as to theft and aggravated robbery and that the convictions didn’t result in mutually exclusive verdicts.

B. Merger

¶ 16 Cadaret contends that double jeopardy bars his conviction for aggravated burglary and first degree assault because the first degree assault charge was a lesser included offense of the first degree burglary charge and wasn’t supported by a separate assault. We disagree.

8

1. Applicable Law and Standard of Review ¶ 17 The Double Jeopardy Clauses of the Colorado and United States Constitutions prevent an accused from suffering multiple punishments for the same offense. Reyna-Abarca v. People, 2017 CO 15, ¶ 49. An individual may be prosecuted for multiple offenses when the conduct establishes the commission of more than one offense, but the individual may not then be convicted of multiple offenses if one of the offenses is included in the other. Id. at ¶ 51. To determine whether an offense is a lesser included offense of another offense, Colorado courts apply an elements approach. Id. at ¶¶ 52-53. “[A]n offense is a lesser included offense of another offense if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense.” Id. at ¶ 64. ¶ 18 “Multiple convictions for two separate offenses the elements of one of which constitute a subset of the elements of the other can clearly stand if the offenses were committed by distinctly different conduct.” People v. Rock, 2017 CO 84, ¶ 17. “We look ‘to all the evidence introduced at trial to determine whether the evidence on

9

which the jury relied for conviction was sufficient to support distinct and separate offenses.’” People v. Valera-Castillo, 2021 COA 91, ¶ 53 (quoting People v. Mintz, 165 P.3d 829, 834 (Colo. App. 2007)). This includes times and locations of the acts, the defendant’s intent, the prosecution’s presentation of the acts as legally separable, and any intervening events separating the acts. Id. ¶ 19 We review de novo claims that a conviction violates double jeopardy. People v. Torrez, 2024 COA 11, ¶ 47. We also review de novo whether convictions merge. Valera-Castillo, ¶ 49.

2. Analysis

¶ 20 Cadaret argues that the court erred by not merging the first degree assault conviction with the merged burglary convictions because when assault is the predicate offense — as is the case here — the elements of first degree burglary include all of the elements of assault and, therefore, must merge. We disagree. ¶ 21 A person commits first degree burglary when he

knowingly enters unlawfully, or remains unlawfully after a lawful or unlawful entry, in a building or occupied structure with intent to commit therein a crime . . . against another person or property, and if in effecting entry or

10

while in the building or occupied structure or in immediate flight therefrom, the person . . .

assaults or menaces any person, . . . is armed with explosives, or . . . uses a deadly weapon or possesses and threatens the use of a deadly weapon.

§ 18-4-202(1), C.R.S. 2025. If we break down the statute, there are four alternate means by which a person may commit first degree burglary: by “[(1)] assault[ing] or [(2)] menac[ing]” anyone inside, “or [by being] [(3)] armed with explosives or [(4)] a deadly weapon.” Litwinsky v. Zavares, 132 F. Supp. 2d 1316, 1320 (D. Colo. 2001) (quoting §18-4-202(1)). “The statute is phrased in the disjunctive; only one of the predicate offenses is required to complete the offense of first-degree burglary.” Id. ¶ 22 Based on Cadaret’s two burglary charges, the prosecution presented two theories to the jury: (1) first degree burglary predicated on the use or possession and threat of use of a deadly weapon (use and threat of use of the gun) and (2) first degree burglary predicated on assault. The jury found Cadaret guilty of burglary under both theories. ¶ 23 With respect to first degree burglary’s use or possession of a deadly weapon element, the court instructed the jury as follows:

11

(1) that the defendant . . .

(2) in the State of Colorado, at or about the date and place charged,

(3) knowingly,

(4) entered unlawfully, or remained unlawfully . . . ,

(5) in a building or occupied structure, (6) with intent,

(7) to commit therein the crime of theft, against another person or property, and

(8) in effecting entry or while in the building or occupied structure or in immediate flight from the building or occupied structure,

(9) the defendant . . . used a deadly weapon or possessed and threatened the use of a deadly weapon, namely: firearm.

The jury instruction for first degree burglary predicated on assault was the same, except for element (9), which stated, “[T]he defendant or another participant in the crime committed the crime of assault against any person.” ¶ 24 A defendant commits first degree assault when, “[w]ith intent to cause serious bodily injury to another person, he causes serious bodily injury to any person by means of a deadly weapon.” § 18-3-

12

202(1)(a), C.R.S. 2025. Though deadly weapon isn’t defined in the statute, the charging documents, jury instructions, and verdict forms specified that Cadaret could be convicted of first degree assault only if there was proof that he used a firearm. ¶ 25 To determine whether the first degree assault conviction merges with the first degree burglary convictions, we focus on the predicate offense underlying each burglary charge. Cadaret’s charge for first degree burglary predicated on the use of a deadly weapon didn’t even mention assault — let alone list its elements — so assault can’t be a lesser included offense of the charge, and merger doesn’t apply. See People v. Hogan, 114 P.3d 42, 57 (Colo. App. 2004) (“An offense is lesser included for purposes of merging into a greater offense when the proof of the essential elements of the greater offense necessarily establishes all the elements required to prove the lesser offense.” (emphasis added)). ¶ 26 The prosecution’s other burglary charge was predicated on assault. The prosecution presented evidence of two separate assaults at trial but charged only one. The first assault occurred when Cadaret threw the weight at A.B., caused her to fall into a wall, and then started hitting her. This assault was uncharged, but

13

the prosecution still had to prove the elements of assault.3 The second occurred when Cadaret wrestled the gun away from A.B. and shot her — this was the only assault charged, and it was charged in the first degree. While both assaults were part of a continuous episode, they were separated by the intervening struggle and Cadaret gaining possession of A.B.’s gun. See People v. Gillis, 2020 COA 68, ¶¶ 40-49 (holding that the defendant’s separate convictions for first degree burglary and third degree assault weren’t erroneous when the defendant assaulted the victim twice and the prosecution treated the assaults as legally separable). ¶ 27 Had the prosecution charged Cadaret with burglary predicated solely on assaulting A.B. with a firearm, the first degree assault conviction would have to merge. See Torrez, ¶¶ 51-52 (holding that when one of the defendant’s first degree burglary convictions was premised on a specific assault, it was a lesser included offense and had to merge). True, the prosecution didn’t charge Cadaret

3 If predicated on an assault charge, the first degree burglary

statute doesn’t specify the degree of assault. Here, the prosecution presented evidence that Cadaret intentionally or knowingly used a deadly weapon (weight) to cause A.B. bodily injury, which could’ve established second or third degree assault. See §§ 18-3-203, 18-3- 204, C.R.S. 2025.

14

separately for the assault with the weight. Nevertheless, based on the record, that assault acted as the predicate offense for Cadaret’s first degree burglary charge (assault). It was therefore reasonable for the jury to conclude that Cadaret committed this assault against A.B. without using a firearm, unlike the elements required for the other burglary theory. It also demonstrates that the jury relied on different evidence to convict Cadaret of the first degree assault charge, which required a firearm. ¶ 28 Because Cadaret wasn’t convicted multiple times for the same conduct, no double jeopardy concerns existed, nor did the court err by not merging Cadaret’s first degree assault conviction with his first degree burglary convictions.

C. Concurrent or Consecutive Sentences ¶ 29 Cadaret next contends that the court abused its discretion by imposing consecutive sentences for his convictions for attempted second degree murder, first degree assault, and first degree burglary because the counts arose from the same criminal episode, are based on the same series of acts, and are supported by identical evidence. We agree that the sentences for attempted second degree murder and first degree assault should have been imposed to run

15

concurrently but disagree that the first degree burglary conviction also required a concurrent sentence.

1. Applicable Law and Standard of Review ¶ 30 Sentencing courts have the discretion to impose consecutive or concurrent sentences. Juhl v. People, 172 P.3d 896, 899 (Colo. 2007). But that discretion is limited by both section 18-1.3- 406(1)(a), C.R.S. 2022,4 and section 18-1-408(3), C.R.S. 2025. People v. Espinoza, 2020 CO 43, ¶ 8. When an individual is convicted of two or more crimes of violence that arise from the same incident, section 18-1.3-406(1)(a) mandates that the sentences shall be served consecutively. Conversely, when a defendant’s multiple convictions arise from the same criminal episode, involve one victim, and are supported by identical evidence, section 18-1-408(3) requires courts to impose concurrent sentences. Espinoza, ¶ 9. ¶ 31 Section 18-1-408(3)

offers a criminal defendant protections beyond those granted by constitutional jeopardy and statutory merger guarantees by ensuring that a defendant will not be consecutively

4 The General Assembly amended section 18-1.3-406 in 2023. See Ch. 297, sec. 1, § 18-1.3-406(1)(a)-(b), 2023 Colo. Sess. Laws 1778- 79. Those changes apply to offenses committed on or after July 1, 2023. We refer to the language in effect at the time of the offense.

16

sentenced for multiple offenses committed as part of a single criminal episode and established by the same evidence, despite their not technically merging into a single offense.

Id. at ¶ 11. “[T]he mere possibility that the jury may have relied on identical evidence in returning more than one conviction is not sufficient to trigger the mandatory concurrent sentencing provision.” People v. Muckle, 107 P.3d 380, 383 (Colo. 2005). Concurrent sentencing under section 18-1-408(3) is mandated “only when the evidence will support no other reasonable inference than that the convictions were based on identical evidence.” Schneider v. People, 2016 CO 70, ¶ 23. “[W]hether the evidence supporting the offenses is identical turns on whether the charges result from the same act, so that the evidence of the act is identical, or from two or more acts fairly considered to be separate acts, so that the evidence is different.” Juhl, 172 P.3d at 902. ¶ 32 We review a court’s sentencing decision for an abuse of discretion. People v. Herrera, 2014 COA 20, ¶ 16. The court abuses its discretion when its decision is manifestly arbitrary, unreasonable, or unfair or when it misapplies or misinterprets the law. People v. Kirby, 2024 COA 20, ¶ 16. We review questions of

17

statutory interpretation de novo, People v. Apodaca-Zambori, 2013 COA 29, ¶ 16, and a trial court’s application of the mandatory sentencing statutes de novo, People v. Phillips, 2012 COA 176, ¶ 171.

2. Analysis

¶ 33 Cadaret argues that his convictions for attempted second degree murder and first degree assault are supported by identical evidence of the single shot fired at A.B. and that his sentences must therefore run concurrently. We agree. ¶ 34 As a preliminary matter, we aren’t persuaded by the People’s suggestion that the jury could’ve found that the attempted second degree murder charge was based on Cadaret throwing the weight at A.B. rather than Cadaret shooting A.B. in the temple. The prosecution provided evidence focusing on the gunshot and said the following during closing argument:

[A.B.] miraculously survived. That’s why we are not here for homicide. We are here for an attempted murder. But that substantial step is any conduct, which is strongly corroborative of the firmness of the actor’s purpose and completion of the event. Shot her in the head.

That’s a pretty big substantial step.

18

Based on the record, it’s unreasonable to infer that the jury found Cadaret guilty of attempted murder based on evidence other than the gunshot. See Muckle, 107 P.3d at 384 (“It is only when the evidence will support no other reasonable inference than that the convictions were based on identical evidence that a sentencing court must find that the defendant is entitled to concurrent sentences.”). ¶ 35 The charges of attempted second degree murder and first degree assault were both based on evidence of Cadaret shooting A.B. in the temple. As Cadaret correctly points out, the prosecution neither presented evidence nor argued that multiple shots were fired. Indeed, testimony at trial indicated that A.B. was shot once, and that testimony was supported by one cartridge case being found on scene. The prosecution’s closing argument similarly referred to “the shot,” rather than multiple shots. The prosecution’s closing also argued that the attempted second degree murder charge was supported by evidence that Cadaret shot A.B. in the right temple with a firearm and that the same act — “a bullet straight to the head” — supported a conviction for first degree assault.

19

¶ 36 Thus, Cadaret’s convictions for attempted second degree murder and first degree assault were both supported by the evidence that A.B. was shot only once in the head. Cf. Muckle, 107 P.3d at 383 (holding that shots were sufficiently distinguishable from one another to form the basis of two counts when the victim was shot in the abdomen while sitting down and then shot in the back of the arm while fleeing the defendant). But see Juhl, 172 P.3d at 902 (holding that the defendant’s convictions for first degree assault and vehicular assault were supported by identical evidence of his head-on collision with the victim’s vehicle while he was driving at a high rate of speed to elude police). Because both counts arose from a single act and are supported by identical evidence, the sentences for each count must run concurrently under section 18-1-408(3). See People v. Rodriguez-Ortiz, 2025 COA 61, ¶¶ 89-90, (holding that the defendant’s convictions for attempted first degree murder and first degree arson must run concurrently because they were based on one distinct act — the defendant throwing a Molotov cocktail into the victim’s room which ignited a fire) (cert. granted Feb. 9, 2026).

20

¶ 37 The People argue that section 18-1.3-406 controls, not section 18-1-408(3), because the heading of the former is more specific and its provisions address only sentencing, while the latter’s provisions address the prosecution of multiple offenses for the same act generally, with only a single subsection mentioning sentencing. This argument is misguided. As divisions of this court have noted, crimes of violence are “separate” under section 18-1.3-406(1)(a) if they aren’t based on identical evidence. People v. O’Shaughnessy, 275 P.3d 687, 697 (Colo. App. 2010), aff’d, 2012 CO 9; People v. Espinoza, 2017 COA 122, ¶ 32, rev’d on other grounds, 2020 CO 43. Thus, while section 18-1.3-406(1)(a) requires consecutive sentences when an individual is convicted of one or more separate crimes of violence arising from the same incident, when counts are supported by identical evidence, they aren’t separate crimes and section 18-1- 408(3) controls. ¶ 38 Cadaret contends that his conviction for aggravated burglary is similarly supported by identical evidence because the forced entry, initial altercation with A.B., and the gunshot all occurred in the same place and “continuously in a short period of time.” This is incorrect. While some of the same evidence supported the burglary

21

conviction, additional evidence beyond the gunshot was required and presented at trial to prove the charged burglary counts. Specifically, the prosecution presented evidence that Cadaret entered A.B.’s locked room by using a weight to break down the door and that he assaulted A.B. by throwing the weight at her and later hitting her. These acts, while occurring closely together, were supported by evidence apart from the gunshot. ¶ 39 Even assuming that the shooting was the assault that supported the burglary assault charge — which we’ve determined it wasn’t — the evidence of the shooting alone wouldn’t have been enough to support a burglary conviction. Additional evidence was required and presented that Cadaret unlawfully entered A.B.’s room and took her items. See Chirinos-Raudales v. People, 2023 CO 33, ¶ 27 (holding that the jury couldn’t have convicted defendant on both counts of sexual assault from the evidence presented for one count alone because the count for pattern of sexual abuse required evidence of at least one other incident). Because Cadaret’s conviction for burglary required additional evidence beyond the shooting, the conviction wasn’t supported by identical evidence under section 18-1-408(3), and the court wasn’t required to impose

22

a concurrent sentence. Rather, the court was required under section 18-1.3-406(1)(a) to impose a consecutive sentence for the burglary conviction. Accordingly, the court didn’t abuse its discretion by ordering Cadaret’s first degree burglary conviction sentence to run consecutively. ¶ 40 We vacate the sentence in part and remand the case for the court to correct the mittimus to reflect concurrent sentences for Cadaret’s convictions of attempted second degree murder and first degree assault.

D. Prejudgment Interest ¶ 41 Cadaret argues that the court abused its discretion by granting the prosecution’s restitution request because it included prejudgment interest for the fourteen months prior to his sentencing, during which he was in the custody of the DOC. We disagree.

1. Applicable Law and Standard of Review ¶ 42 Interest doesn’t accrue on an order for restitution when an individual is serving a sentence in a correctional facility operated by or under contract with the DOC. § 18-1.3-603(4)(b.5)(I)(A), C.R.S. 2025. Our primary task when interpreting a statute is to give effect

23

to the intent of the legislature. People v. Oliver, 2016 COA 180M, ¶ 17. We do so by first examining the plain language of the statute. People v. Norton, 63 P.3d 339, 343 (Colo. 2003). When the statute’s language is clear and unambiguous we don’t engage in further statutory analysis. People v. Rice, 2015 COA 168, ¶ 11. ¶ 43 Questions of statutory interpretation are reviewed de novo. Oliver, ¶ 17.

2. Analysis

¶ 44 The prosecution filed a restitution request for $142,505.86, including interest to reflect the fourteen months between A.B.’s initial losses and Cadaret’s sentencing. Cadaret argues that section 18-1.3-603(4)(b.5)(I)(A) precludes this prejudgment interest because he was in custody during the pendency of the proceedings. We are unpersuaded. The statute’s plain language provides that interest doesn’t accrue while an individual is serving a sentence. § 18-1.3- 603(4)(b.5)(I)(A). But Cadaret wasn’t serving a sentence during the time before his sentencing hearing. See People v. Corral, 174 P.3d 837, 840 (Colo. App. 2007) (“A defendant cannot be serving a sentence that has not yet been imposed.”). Cadaret points also to his presentence confinement credit of 433 days, reflecting the time

24

that he was in custody prior to sentencing. While that credit reduces his sentence by 433 days, it isn’t a part of the sentence itself. See People v. Baker, 2019 CO 97M, ¶¶ 16, 18 (holding that the language of the presentence confinement statute indicates that presentence confinement credit isn’t a component of a defendant’s sentence and doesn’t affect the sentence itself but only the amount a defendant serves). ¶ 45 Because Cadaret wasn’t serving his sentence during the fourteen months prior to sentencing, the court’s award of interest didn’t violate section 18-1.3-603(4)(b.5)(I)(A), and the court didn’t err by granting the restitution request, which included prejudgment interest.

III. Disposition

¶ 46 We affirm in part, vacate in part, and remand to the district court to amend the mittimus consistent with this opinion.

JUDGE PAWAR and JUDGE SULLIVAN concur.