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.
¶ 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.
¶ 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.
¶ 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.
¶ 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.
¶ 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.
25 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)).
26 ¶ 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.
27 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.
¶ 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.