23CA0764 Peo v Foos 11-13-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 23CA0764 Adams County District Court No. 22CR2988 Honorable Robert W. Kiesnowski, Jr., Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Talon Michael Foos,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE YUN Freyre and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 13, 2025
Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, River B. Sedaka, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Talon Michael Foos appeals the district court’s restitution
order in the amount of $3,535.94. Foos argues that the order must
be vacated because the prosecution failed to comply with a deadline
in the restitution statute. Alternatively, he argues the restitution
amount should be reduced because (1) the victim was not entitled
to replacement value; (2) the prosecution failed to establish
proximate cause; and (3) the victim did not mitigate damages. We
disagree and affirm the restitution order.
I. Background
¶2 On September 27, 2022, Thornton police found Foos asleep in
a truck stolen from Montana. Inside the truck, police discovered
drug paraphernalia, weapons, and firearm accessories. As a result,
the People charged Foos with multiple drug- and weapon-related
offenses, as well as aggravated motor vehicle theft.
¶3 On December 6, 2022, Foos entered into a plea agreement in
which he pleaded guilty to possession of a controlled substance
with intent to distribute and aggravated motor vehicle theft. As part
of the plea agreement, he agreed to pay restitution. Specifically, he
agreed to the following terms:
1 I agree to pay any Court-ordered restitution. . . . I agree that I am obligated to pay restitution as part of this plea agreement, and further agree that the amount of restitution will be determined within 91 days of sentencing unless that deadline is extended for good cause.
¶4 At the providency hearing, the court accepted Foos’s guilty
pleas. During the hearing, the prosecution advised the court that it
“anticipate[d] restitution,” and the court reserved the matter for
sentencing. Immediately afterward, the judge asked Foos: “Do you
understand that you will have to pay any restoration [sic] as a part
of the plea agreement?” Foos responded, “Yes, Ma’am.” Similarly,
in his presentence interview, Foos reiterated that he could remedy
the harm caused by his offense by “pay[ing] restitution to the
victim.”
¶5 At the sentencing hearing on February 8, 2023, the
prosecution informed the court that it was seeking $3,789.95 in
restitution. However, the prosecution had not yet filed the
supporting documentation. The prosecution noted that it “was able
to confirm [the restitution amount] this morning,” though the
record suggests the prosecution received the supporting
2 information — an email from the victim confirming his insurance
settlement — on January 27, 2023.
¶6 The court entered an order finding Foos liable for restitution,
with the amount to be determined later through a subsequent
motion. The court then granted the prosecution twenty-one days to
file its motion for restitution and gave the defense fourteen days
thereafter to file any objection.
¶7 The next morning, on February 9, 2023, the prosecution filed
its restitution motion, requesting $3,789.95, along with supporting
documentation. After the victim transferred the title to his truck to
his insurer, the insurer declared the truck to be a total loss due to
potential drug contamination and paid him a total cash payment of
$16,944.47. Thus, the prosecution’s request consisted of $500.00
for the insurance deductible and $3,289.95 for two after-market
accessories: (1) a trailer hitch valued at $1,400.00 (including
shipping) and (2) a front bumper valued at $1,889.95. To
substantiate the $3,289.95 figure, the prosecution offered
screenshots of website prices for the accessories provided by the
victim.
3 ¶8 Foos filed an objection to the motion for restitution, and the
court held a restitution hearing on March 24, 2023. The court
ordered restitution totaling $3,535.94, which included $1,889.95
for the bumper, $1,095.99 for the hitch (excluding shipping costs),
$500.00 for the insurance deductible, and $50.00 for an insurance
transfer fee.
¶9 Foos now appeals the restitution order, arguing that the order
must be vacated or, at a minimum, reduced. We begin by
addressing whether the order must be vacated and then examine
whether the amount should be reduced.
II. Restitution Order Vacatur
¶ 10 Foos argues that the district court’s restitution order must be
vacated because the prosecution did not provide available
restitution information at sentencing, as required by
section 18-1.3-603(2)(a), C.R.S. 2022,1 and People v. Weeks, 2021
CO 75, ¶ 31. Assuming arguendo that the district court erred by
1 The restitution statute was recently amended to reduce the
prosecution’s deadline from ninety-one to sixty-three days, effective May 30, 2025. Ch. 307, sec. 1, § 18-1.3-603, 2025 Colo. Sess. Laws 1606. That amendment is inapplicable to this case. We therefore rely, throughout this opinion, on the statute that was in effect at the time the court granted restitution.
4 excusing the prosecution’s failure to provide the restitution
information at sentencing, the error was harmless.
A. Standard of Review and Applicable Law
¶ 11 The proper interpretation of the restitution statute is a
question of law that we review de novo. Weeks, ¶ 13.
Section 18-1.3-603 describes the process for obtaining restitution
and imposes deadlines on the court and the prosecution. Id. at ¶ 7.
To obtain restitution, a court must enter one of four orders at
sentencing. Id. at ¶ 3. As relevant here, one option is an order
“that the defendant is obligated to pay restitution, but that the
specific amount of restitution shall be determined” at a later date.
§ 18-1.3-603(1)(b).
¶ 12 This later date is restricted by two statutory deadlines. The
first deadline, subsection (1)(b), requires the court to determine the
amount of restitution “within the ninety-one days immediately
following the order of conviction, unless good cause is shown for
extending the time period by which the restitution amount shall be
determined.” § 18-1.3-603(1)(b); see Weeks, ¶ 5.
¶ 13 The second deadline, subsection (2)(a), requires the
prosecution to “compile [restitution] information” and “present this
5 information to the court prior to the order of conviction or within
ninety-one days, if it is not available prior to the order of
conviction.” § 18-1.3-603(2)(a). “The court may extend this date if
it finds that there are extenuating circumstances affecting the
prosecuting attorney’s ability to determine restitution.” Id. In
Weeks, the court interpreted subsection (2)(a) to mean the
prosecution “should make a motion for restitution before or during
the sentencing hearing.” Weeks, ¶ 44.
¶ 14 When a district court fails to issue one of the four enumerated
orders or fails to comply with its subsection (1)(b) deadline, the
supreme court has held that the district court loses its authority to
order restitution, requiring vacatur of the order. See Snow v.
People, 2025 CO 32, ¶ 27 (vacating the district court’s restitution
order because it failed to enter one of the four enumerated orders
by reserving the issue of restitution in its entirety beyond
sentencing); Weeks, ¶ 47 (vacating the district court’s restitution
order because the court lost authority to order restitution after
violating its subsection (1)(b) deadline).
¶ 15 However, other divisions of this court have held that when, as
here, the district court orders restitution within its subsection (1)(b)
6 deadline, it retains its authority to impose restitution. See People v.
Martinez Rubier, 2024 COA 67, ¶ 47; People v. Brassill, 2024 COA
19, ¶ 58 (cert. granted Aug. 4, 2025).2 Thus, when the district court
retains its authority to order restitution, we review the court’s
decision to excuse the prosecution’s failure to provide the available
restitution information at sentencing for harmless error. Martinez
Rubier, ¶¶ 42-48; Brassill, ¶¶ 56-63.
¶ 16 To determine whether the prosecution’s violation of its
statutory deadline requires vacatur of the restitution order under
harmless error, we consider (1) the gravity of the deviation from
statutory deadlines, “including a consideration of due process
concerns,” and (2) any prejudice to the defendant caused by the
deviation. Martinez Rubier, ¶ 48 (citation omitted).
2 The supreme court granted a writ of certiorari to determine
“[w]hether, under People v. Weeks, 2021 CO 75, the district court loses authority to order restitution due to the prosecution’s lack of compliance with section 18-1.3-603(2)(a) . . . and, thus, whether the court of appeals erred by applying harmless error review instead of vacating the restitution order.” Solano v. People, No. 24SC704, 2025 WL 2591397, at *1 (Colo. Sept. 8, 2025) (unpublished order).
7 B. Discussion
¶ 17 Foos argues that, under Weeks, his restitution order “must be
vacated” because the prosecution submitted the information
supporting its requested amount of restitution one day after the
sentencing hearing, in violation of its subsection (2)(a) deadline.
Assuming the prosecution violated this deadline, we disagree that
the correct remedy is vacatur for two reasons.
¶ 18 First, Weeks does not hold that the prosecution’s failure to
submit restitution information “prior to the order of conviction,” in
violation of subsection (2)(a), requires vacating the order. See
Weeks, ¶ 47. Rather, in Weeks, the court vacated the restitution
order because the district court violated its subsection (1)(b)
deadline when it determined the amount of restitution nearly a year
after sentencing without making an express or timely finding of
good cause to extend that deadline. Id. at ¶ 45. Under those
circumstances, vacatur — not a harmlessness analysis — was the
proper remedy because the district court lost its authority to impose
restitution. See Snow, ¶ 31 (“We chose the remedy of vacatur in
Weeks because we could conceive of no other appropriate remedy
when . . . the trial court, after entering a subsection (1)(b) order
8 finding restitution liability at sentencing, fails to comply with the
ninety-one-day deadline and thus acts without authority in
determining the amount of restitution.”).
¶ 19 Here, by contrast, the district court entered its restitution
order forty-four days after sentencing — well within its
subsection (1)(b) deadline. As in Martinez Rubier, ¶ 46, Foos
does not cite, and we are unaware of, any reported Colorado case holding that a court lacks the authority to enter a restitution order by allowing any deviation from the restitution timetable specified in section 18-1.3-603, so long as the court ultimately enters its restitution order within the ninety-one-day deadline set forth in section 18-1.3-603(1)(b).
Thus, because the district court retained its authority, we conclude
that vacatur was not required by Weeks.
¶ 20 Second, under the harmless error analysis, vacatur is not
required because the prosecution missed the statutory deadline by
only one day and Foos suffered no resulting prejudice. As for the
gravity of the deviation, Foos insists the prosecution was required to
submit the supporting information for its restitution request during
sentencing, unless that information was unavailable. But here, the
prosecution provided the restitution amount at the sentencing
9 hearing and submitted the supporting information the next
morning. At worst, the prosecution’s deviation from the statutory
deadline was one day, and thus of negligible gravity.
¶ 21 As for prejudice, Foos does not argue that the one-day delay
caused him any harm. He was not surprised by the imposition of
restitution given that he had agreed to it in his plea agreement,
during his providency hearing, and in his presentence interview,
provided the amount would be determined “within 91 days of
sentencing unless the deadline is extended for good cause.” Nor
was Foos surprised by the amount; he received notice of the
claimed amount at sentencing. Additionally, because the
prosecution filed its motion only one day after sentencing, Foos had
ample time to object, allowing the court to decide the restitution
amount well within its ninety-one-day deadline. He does not claim
that the delay impaired his memory, the availability of evidence, or
his ability to respond. Martinez Rubier, ¶ 49.
¶ 22 In conclusion, even if the district court erred by excusing the
prosecution’s noncompliance with subsection (2)(a), the error was
harmless and, therefore, does not warrant vacating the restitution
order.
10 III. Restitution Order Reduction
¶ 23 Foos next contends that the district court’s restitution award
should be reduced because (1) the victim was not entitled to the
replacement value of the accessories; (2) the prosecution failed to
prove Foos was the proximate cause of the loss of the accessories;
and (3) the victim chose not to mitigate his losses by retrieving the
accessories. We disagree.
A. Replacement Value
¶ 24 For the first time on appeal, Foos argues the victim should not
have received the replacement value of the accessories but rather
their fair market value. He claims the replacement value of an item
may be awarded only when (1) the victim demonstrates that he
must or will replace an item and (2) the prosecution proves the item
is not readily replaceable at a fair market value cost.
1. Standard of Review and Applicable Law
¶ 25 Generally, we review a question of law regarding the
restitution statute de novo. People v. Knapp, 2020 COA 107, ¶ 69.
But when a contention is unpreserved, we review for plain error.
People v. Ortiz, 2016 COA 58, ¶ 13. But see People v. Butcher, 2018
COA 54M, ¶¶ 24-26 (holding that it is within an appellate court’s
11 discretion to review an unpreserved challenge to a restitution order
for plain error). An error is plain if it is both obvious and
substantial. Hagos v. People, 2012 CO 63, ¶ 14. An error is
obvious if it contravenes a clear statutory command, a well-settled
legal principle, or Colorado case law. People v. Pollard, 2013 COA
31M, ¶ 40. An error is substantial if it so undermines the
fundamental fairness of the proceeding itself as to cast serious
doubt on the reliability of the judgment. Hoggard v. People, 2020
CO 54, ¶ 13.
¶ 26 Section 18-1.3-602(3)(a), C.R.S. 2025, defines restitution as
“any pecuniary loss suffered by a victim,” including but not limited
to “all out-of-pocket expenses,” “anticipated future expenses,” and
“other losses or injuries proximately caused by an offender’s
conduct and that can be reasonably calculated and recompensed in
money.” Accordingly, “the value of property for purposes of
restitution is determined by the victim’s ‘actual, pecuniary loss’ or
the amount of money that will ‘fulfill[] the statutory purpose of
simply making the victim whole to the extent practicable.’”
People v. Stafford, 93 P.3d 572, 575 (Colo. App. 2004) (citation
omitted).
12 ¶ 27 The prosecution bears the burden of establishing the amount
of restitution that a defendant owes by a preponderance of the
evidence, id. at 576, but “[a] trial court has broad discretion in
determining the terms and conditions of a restitution order,”
including the amount, People in Interest of D.W., 232 P.3d 182, 183
(Colo. App. 2009). While the restitution statutes of some states, like
Florida and Texas, require district courts to use fair market value,
Colorado’s restitution statute contains no such requirement.
Stafford, 93 P.3d at 575. Our statute does instruct that it be
“liberally construed” to accomplish its purposes, one of which is “to
provide for and collect full restitution for victims of crime in the
most expeditious manner.” § 18-1.3-601(1)(g)(I), (2), C.R.S. 2025.
2. Discussion
¶ 28 “Because defense counsel didn’t raise this issue below, our
review is for plain error.” Knapp, ¶ 91.
¶ 29 We are unaware of any statutory or case law authority
requiring the use of fair market value in calculating restitution.
Relying on Stafford, Foos asserts that the replacement value of an
item may be awarded “only” when two conditions are satisfied:
(1) the victim demonstrates that he must or will replace an item,
13 and (2) the prosecution proves the item is not readily replaceable at
a fair market value cost. 93 P.3d at 575-76. However, like the
division in Knapp, we note that “[Stafford] held merely that ‘the
award of a reasonable replacement value is appropriate when the
victim demonstrates that he or she must or will replace an item that
is not readily replaceable at a fair market value cost’” — Stafford
“didn’t hold that evidence that an item is not readily replaceable at
fair market value cost is always a necessary predicate to recovery of
reasonable replacement value.” Knapp, ¶ 93 (citation omitted).
¶ 30 In the absence of clear legal authority requiring fair market
value, we cannot conclude that it was plain error for the court to
award restitution based on replacement value.
B. Proximate Cause
¶ 31 Foos argues that three intervening causes break the causal
connection between his crimes and the victim’s injury: (1) the
insurer’s decision to declare the truck a “total loss”; (2) the insurer’s
failure to compensate the victim for the accessories; and (3) the
victim’s decision not to retrieve the accessories.
14 1. Standard of Review and Applicable Law
¶ 32 We review preserved challenges to proximate cause
determinations for clear error. Martinez v. People, 2024 CO 6M,
¶ 32. We “must affirm the district court’s findings unless they are
without ‘support in the record.’” Id. at ¶ 34 (citation omitted). We
review unpreserved challenges to proximate cause determinations
for plain error, Ortiz, ¶ 13, and “[p]lain error review is equally
applicable when a party alters the grounds for his objection on
appeal,” Martinez v. People, 2015 CO 16, ¶ 14.
¶ 33 A defendant convicted of a felony offense must pay restitution
for any pecuniary loss that he proximately caused his victim. See
§ 18-1.3-602(3)(a). Proximate cause is “a cause which in natural
and probable sequence produced the claimed injury and without
which the claimed injury would not have been sustained.” People v.
Sieck, 2014 COA 23, ¶ 6. The prosecution must prove, by a
preponderance of the evidence, that the defendant proximately
caused the victim’s loss to support an award of restitution.
People v. Stone, 2020 COA 24, ¶ 6.
¶ 34 However, “[u]nlawful conduct that is broken by an
independent intervening cause cannot be the proximate cause of
15 injury to another.” Martinez, 2024 CO 6M, ¶ 13 (quoting People v.
Stewart, 55 P.3d 107, 121 (Colo. 2002)). “An intervening force is
one which actively operates in producing harm to another after the
actor’s . . . act or omission has been committed.” Garcia v. Colo.
Cab Co., 2023 CO 56, ¶ 23 (quoting Restatement (Second) of Torts
§ 441(1) (Am. L. Inst. 1965)). To qualify as an intervening cause,
“an event must be unforeseeable and one in which the accused does
not participate.” Martinez, 2024 CO 6M, ¶ 13 (quoting Stewart,
55 P.3d at 121). “To absolve the defendant of responsibility, the
intervening cause must be fully independent of, and not have been
set in motion by, the original [act].” Garcia, ¶ 23 (quoting Deines v.
Atlas Energy Sers., LLC, 2021 COA 24, ¶ 14). But if an event
amounts to an independent intervening cause, then it “destroys the
causal connection between the defendant’s act and the victim’s
injury and, thereby becomes the cause of the victim’s injury.”
People v. Saavedra-Rodriguez, 971 P.2d 223, 225-26 (Colo. 1998).
¶ 35 Therefore, to qualify as an independent intervening cause that
severs proximate cause, the event must (1) actively operate in
producing the harm; (2) be unforeseeable; and (3) be an event the
defendant neither participated in nor set in motion.
16 2. Discussion
¶ 36 We address each of Foos’s asserted intervening events in turn
and conclude the district court neither clearly nor plainly erred in
finding proximate cause.
¶ 37 First, Foos contends that the insurer’s decision to declare the
truck a total loss constitutes an intervening cause. We are
perplexed by Foos’s characterization of that decision as an
intervening cause. As a threshold matter, an intervening event is
one that “actively operates in producing harm to another.” Garcia,
¶ 23. Although Foos tries to characterize the insurer’s decision as
an overreaching, precautionary measure, the insurer’s assessment
of the loss caused by Foos’s criminal conduct did not actively
produce the damage. The insurer merely determined the extent of
the damage caused by Foos’s crimes.
¶ 38 Even if we agreed that the insurer’s decision produced the
harm, the insurer’s decision was set in motion by Foos’s criminal
conduct and foreseeable. Foos set in motion the insurer’s decision
by stealing the victim’s truck across state lines with the intent to
distribute controlled substances. It was reasonably foreseeable that
a person whose vehicle had been stolen would file an insurance
17 claim. And we agree with the district court’s finding that the
insurer’s assessment of the damage was reasonably foreseeable
given the narcotics exposure. Because the decision did not amount
to an intervening cause, the district court did not clearly err by
¶ 39 Second, Foos contends that the insurer’s failure to adequately
compensate the victim for the accessories is an intervening cause.
This specific ground was not raised in the district court and,
therefore, was not preserved.3 Foos argues this coverage “failure”
destroys proximate cause because “a reasonable person would
expect an insurance settlement on a ‘totaled’ vehicle to include any
modifications and accessories that were attached to the vehicle.”
Foos does not cite, and we are not aware of, any legal authority that
recognizes an insurance coverage decision in a restitution case as
an intervening cause. Cf. People v. Martinez, 2022 COA 28, ¶ 2
(allowing insurance companies that indemnify their policyholders
3 Foos asserts this second ground was preserved by his overarching
objection to proximate cause. We disagree and note that an issue is preserved if the district court was “presented with an adequate opportunity to make findings of fact and conclusions of law.” People v. Melendez, 102 P.3d 315, 322 (Colo. 2004).
18 for losses proximately caused by felonies, misdemeanors, or other
offenses to obtain restitution from offenders). As discussed above,
the insurer’s coverage decision did not actively produce harm. Also,
it was reasonably foreseeable that a person whose vehicle had been
stolen would file an insurance claim and that, depending on the
terms of the coverage, some items on the vehicle may not be
covered. Thus, the district court did not plainly err by finding
proximate cause.
¶ 40 Third, Foos contends that the victim’s decision not to retrieve
the accessories constitutes an intervening cause. We are, again,
unpersuaded. As with the previous two grounds, the victim’s
decision did not actively produce the harm. He simply declined to
retrieve parts of his vehicle after it was stolen, impounded in
another state, and declared a total loss due to potential drug
contamination. Nor was the victim’s decision unforeseeable,
considering that he transferred title to his insurer and, as the
district court noted, it would have been “costly and
time-consuming” to “travel over 500 miles to Colorado to remove the
hitch and bumper.” And finally, the victim’s decision not to retrieve
the accessories cannot be considered as entirely independent of
19 Foos’s criminal conduct or unrelated to actions set in motion by
him. Garcia, ¶ 23. For all these reasons, the district court did not
clearly err by finding proximate cause.
C. Duty to Mitigate
¶ 41 Lastly, Foos argues that, even if we were to conclude that his
conduct is the proximate cause of the damages, we should
recognize a victim’s duty to mitigate damages and, consequently,
reduce the amount of restitution ordered.
¶ 42 Whether an injured party has a duty to mitigate damages is a
legal question that we review de novo. Tremitek, LLC v. Resilience
Code, LLC, 2023 COA 54, ¶ 23. There is no Colorado legal authority
imposing an affirmative duty on a crime victim seeking restitution
to mitigate any of their claimed losses. But even assuming the duty
to mitigate applies to crime victims in restitution cases, the victim
in this case did not fail to mitigate. The victim testified that the
recovery would take three days because he would have to travel
over 500 miles with a companion to attempt to remove the
accessories from a truck to which he no longer held ownership
rights. We agree with the district court that these costs “could
20 conceivably equal the costs of the hitch and bumper,” and we
decline to reduce the amount of restitution ordered.
IV. Disposition
¶ 43 The restitution order is affirmed.
JUDGE FREYRE and JUDGE PAWAR concur.