Peo v. Nunez-Guardado

• Court: Colorado Court of Appeals
• Decided: May 8, 2025
• Docket: 24CA0795
• Status: Unpublished

Opinion

24CA0795 Peo v Nunez-Guardado 05-08-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0795 El Paso County District Court No. 23CR2401 Honorable Samuel A. Evig, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Irvin Nunez-Guardado,

Defendant-Appellant.

ORDER AFFIRMED

Division IV Opinion by JUDGE PAWAR Harris and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 8, 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, Kimberley J. Davis, Deputy State Public Defender, Colorado Springs, Colorado, for Defendant-Appellant ¶1 Defendant, Irvin Nunez-Guardado, appeals the district court’s

restitution order. We affirm.

¶2 After Nunez-Guardado exited a ride-share car without paying

the fare, the driver followed him, and a physical altercation ensued

between them. The driver was ultimately transported to the

hospital in an ambulance. Nunez-Guardado was charged with two

counts of class 4 felony second degree assault, misdemeanor

harassment, petty theft, and a crime of violence count. Pursuant to

a plea agreement, he pleaded guilty to the petty theft count in

exchange for the dismissal of the other charges. The prosecution

sought restitution, and, after a hearing, the district court ordered

Nunez-Guardado to pay $1,618.74 to the driver for the cost of his

ambulance bill.

¶3 Nunez-Guardado argues that the district court lacked

authority to impose the restitution order because it was based on

the dismissed assault counts, not the theft count of which he was

convicted. We reject this argument.

¶4 Courts may impose restitution for losses proximately caused

by the offense for which a defendant is convicted. See § 18-1.3-

603(2)(b) (non-exhaustive list of allowable expenses “if proximately

1 caused by the crime”); People v. Moss, 2022 COA 92, ¶ 18

(Restitution need only be “tied to unlawful conduct for which a

defendant was convicted.”). Courts cannot impose restitution

proximately caused by conduct related to dismissed counts unless

the defendant agrees to pay such restitution at the time he enters

his plea. § 18-1.3-603(11); Roddy, ¶¶ 5, 28.

¶5 The plea agreement here included such an agreement, stating

that Nunez-Guardado “agree[d] to pay restitution in all other counts

or cases that the People have agreed to dismiss as part of this plea.”

It also provided that Nunez-Guardado stipulated to causation for

restitution purposes. Nunez-Guardado argues that this written

agreement is not dispositive because statements the prosecutor

made during the providency hearing altered or supplemented the

written plea agreement’s stipulation that he was liable for

restitution on the dismissed charges.

¶6 We need not address this contention, however, because the

record in this case reveals that the district court imposed

restitution based on the theft count Nunez-Guardado was convicted

of, not the dismissed assault counts.

2 ¶7 At the restitution hearing, the court held that “[t]he act of theft

is the proximate cause here.” The court explained that once Nunez-

Guardado committed the theft, the driver’s actions were foreseeable

and arguably lawful and therefore not an intervening cause of the

physical altercation. See Martinez v. People, 2024 CO 6M, ¶¶ 33-43

(the court had the authority to impose restitution for damage to the

victim’s vehicle that was sustained as a result of the defendant’s

theft of the victim’s bicycle and during the victim’s pursuit of the

defendant to recover the bicycle).

¶8 Put simply, the court held that the act of theft proximately

caused the ambulance ride, the loss that the court ordered Nunez-

Guardado to pay in restitution. We therefore reject Nunez-

Guardado’s appellate argument as inapposite — he argues the court

erred by imposing restitution on a basis that it simply didn’t.

Because Nunez-Guardado does not challenge the basis on which

the court actually ordered restitution, we must affirm. Cf. IBC

Denver II, LLC v. City of Wheat Ridge, 183 P.3d 714, 717-718 (Colo.

App. 2008) (appellant’s failure to challenge all reasons for district

court’s decision requires affirmance).

¶9 The order is affirmed.

3 JUDGE HARRIS and JUDGE GROVE concur.