The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY January 18, 2024
2024COA6
No. 21CA0116, People v. Fregosi — Criminal Law — Sentencing — Restitution — Procedural Deadlines — “Good Cause” to Extend Trial Court’s Deadline — Actual Costs of Specific Future Treatment
A division of the court of appeals clarifies the relationship
between sections 18-1.3-603 (1)(b) and (1)(c) following People v.
Weeks, 2021 CO 75 and holds that a district court that defers a
restitution determination for ninety-one days under subsection
(1)(b) may further extend that deadline under subsection (1)(c) when
a victim incurs ongoing therapy expenses. The division also
concludes that sufficient evidence supports the district court’s
decision not to review in camera or to disclose the Crime Victim
Compensation Board records. COLORADO COURT OF APPEALS 2024COA6
Court of Appeals No. 21CA0116 Weld County District Court No. 19CR2209 Honorable Marcelo A. Kopcow, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Alexander Ryan Fregosi,
Defendant-Appellant.
ORDER AFFIRMED
Division V Opinion by JUDGE FREYRE Yun and Kuhn, JJ., concur
Prior Opinion Announced November 30, 2023, WITHDRAWN
OPINION PREVIOUSLY ANNOUNCED AS “NOT PUBLISHED PURSUANT TO C.A.R. 35(e)” ON November 30, 2023, IS NOW DESIGNATED FOR PUBLICATION
Announced January 18, 2024
Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Mackenzie R. Shields, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Alexander Ryan Fregosi, appeals the district
court’s restitution order. We affirm.
I. Background
¶2 Fregosi pleaded guilty to menacing as an act of domestic
violence, a class 5 felony, in exchange for the dismissal of two other
counts. As part of his plea agreement, he acknowledged that “[t]he
People reserve[d] restitution” and that he “stipulate[d] to [a] factual
basis.”
¶3 The court accepted the plea agreement and confirmed that
Fregosi understood its terms. The court found Fregosi’s plea was
knowing, intelligent, and entered without undue influence or
coercion. The court then set the matter for a sentencing hearing.
¶4 The court sentenced Fregosi to three years in the custody of
the Department of Corrections. During the hearing, the prosecutor
asked for ninety-one days to seek restitution. The court asked
defense counsel if he had any objection, and counsel responded,
“No, Judge.” The court granted the prosecutor’s request.
¶5 Fifty-one days later, the prosecutor requested $873.10 in
restitution for the victim’s medical and therapy costs accrued to
date. Additionally, the prosecutor said he believed further
1 restitution would be forthcoming and asked the court to reserve
future restitution under section 18-1.3-603(1)(c), C.R.S. 2023, to
account for the victim’s future treatment costs.
¶6 The court gave Fregosi twenty-one days to object to the
motion. Fregosi did not object or otherwise respond to the motion.
Therefore, on May 28, 2020 (seventy-three days after sentencing),
the court ordered Fregosi to pay $873.10 in restitution to the Crime
Victim Compensation Board (CVCB). The order further stated,
“Pursuant to C.R.S. § 18-1.3-603, in addition to the specific amount
of restitution listed in this order, the defendant shall be required to
pay the actual costs of specific future treatment of any victim of the
crime, if applicable.”
¶7 Subsequently, the prosecution filed thirteen amended
restitution requests seeking compensation for the victim’s ongoing
therapy costs. Fregosi objected to the amended requests. Among
other things, he objected to the court entering any orders beyond
the ninety-one-day deadline without making express and timely
good cause findings.
¶8 The court granted all the amended requests. In each of its
orders, the court indicated that, under section 18-1.3-603, it
2 reserved final determination of restitution to account for the costs of
the victim’s ongoing treatment. And at each hearing, the court
reiterated its intent to reserve the final restitution determination
under section 18-1.3-603.
¶9 At a December 2021 restitution hearing, the CVCB coordinator
reported that the victim had reached the limit of therapy sessions
covered by the CVCB. The court then entered a final restitution
order in the amount of $4,473.10.1
II. Restitution
¶ 10 Fregosi contends that the district court lacked the authority to
grant the prosecutor’s requested amount of restitution seventy-
three days after sentencing because (1) the prosecutor failed to file
the information necessary to support restitution before the
judgment of conviction entered, as required by section 18-1.3-
603(2); and (2) the court failed to enter a specific order at
1 Before the final restitution hearing, the prosecutor filed a motion
to clarify the total restitution amount due to a calculation error. The motion sought to correct the final restitution amount to a total of $4,923.10. After the hearing, the prosecutor filed a second motion asking to correct another error. This correction brought the total to $4,473.10, which is the final restitution amount the court entered.
3 sentencing under section 18-1.3-603(1). We address and reject
both contentions.
A. Standard of Review and Applicable Law
¶ 11 Questions of statutory interpretation and whether a district
court has authority to order a defendant to pay restitution are legal
questions that we review de novo. People v. Weeks, 2021 CO 75,
¶ 24; People v. Roddy, 2021 CO 74, ¶ 23.
¶ 12 The restitution statute provides, in pertinent part, as follows:
(1) Every order of conviction of a felony . . . shall include consideration of restitution. Each such order shall include one or more of the following:
(a) An order of a specific amount of restitution be paid by the defendant;
(b) An order that the defendant is obligated to pay restitution, but that the specific amount of restitution shall be determined 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;
(c) An order, in addition to or in place of a specific amount of restitution, that the defendant pay restitution covering the actual costs of specific future treatment of any victim of the crime; or
(d) Contain a specific finding that no victim of the crime suffered a pecuniary loss and
4 therefore no order for the payment of restitution is being entered.
(2)(a) The court shall base its order for restitution upon information presented to the court by the prosecuting attorney, who shall compile such information through victim impact statements or other means to determine the amount of restitution and the identities of the victims. Further, the prosecuting attorney shall present this 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. The court may extend this date if it finds that there are extenuating circumstances affecting the prosecuting attorney’s ability to determine restitution.
....
(3) Any order for restitution may be:
(a) Increased if additional victims or additional losses not known to the judge or the prosecutor at the time the order of restitution was entered are later discovered and the final amount of restitution due has not been set by the court . . . .
§ 18-1.3-603.
¶ 13 Every judgment of conviction must include one or more of the
four types of restitution orders outlined in section 18-1.3-603(1).
Weeks, ¶ 3. Section 18-1.3-603(1) does not permit the district
court “to address the issue of restitution in a judgment of conviction
5 by entering an order deferring that issue in its entirety.” Id. at ¶ 30.
Nor does it allow the prosecution “to ask that the issue of
restitution (not just the amount of restitution) ‘remain open’ for any
period of time after the judgment of conviction enters.” Id.
¶ 14 Further, under section 18-1.3-603(2), the prosecutor must
move for restitution before or during the sentencing hearing and
present the information supporting a proposed amount of
restitution before the judgment of conviction is entered, if it is then
available. Id. at ¶¶ 30-31. If that information is not available, the
prosecution may submit it no later than ninety-one days after the
judgment of conviction enters. Id. And the district court may
extend this ninety-one-day deadline if — before the deadline
expires — it expressly finds extenuating circumstances affecting the
prosecution’s ability to determine restitution. Id. at ¶ 40.
¶ 15 Any failure to comply with these provisions bars the district
court from awarding restitution. Id. at ¶ 45.
B. Initial Restitution Request
¶ 16 Fregosi maintains that the district court lacked the authority
to grant the ninety-one-day extension because the prosecution had
access to, but failed to present, information supporting its initial
6 restitution request at the time of sentencing. We disagree and
conclude that he waived the issue. We further conclude that even if
he did not waive the issue, the record shows that the restitution
information was not available at the time of sentencing.
1. Waiver
¶ 17 Waiver is the intentional relinquishment of a known right or
privilege. People v. Roberson, 2023 COA 70, ¶ 24. Although a
waiver can be implied, the conduct must be unequivocal and clearly
manifest an intent to relinquish the claim. Phillips v. People, 2019
CO 72, ¶ 21. The mere failure to raise an issue does not suffice. Id.
We indulge every reasonable presumption against waiver. Id. In
“[a]nswering a question not addressed by the Colorado Supreme
Court in [Weeks],” a division of this court recently held that a
district court’s ninety-one-day deadline for entry of restitution
under section 18-1.3-603(1)(b) is not jurisdictional and is therefore
waivable. People v. Babcock, 2023 COA 49, ¶¶ 1, 5-11.
¶ 18 We find People v. Johnson, 2023 COA 43M, instructive
concerning waiver. There, the division determined that, under
Weeks, a plea agreement provision giving the prosecutor additional
time to submit restitution information serves “as both a motion for
7 restitution and the parties’ acknowledgment that restitution
information was not available before the conviction.” Johnson,
¶ 24. When the prosecution subsequently files its restitution
motion within ninety-one days, the prosecution has “met its
obligation under subsection (2)” of section 18-1.3-603. Id.
¶ 19 Here, as in Johnson, Fregosi agreed to pay restitution, and
“[t]he People reserve[]d restitution” in the plea agreement. Id. at ¶
6; see also id. at ¶¶ 35-39 (Welling, J., specially concurring)
(concluding that the defendant, by the terms of his plea agreement,
waived any challenge to the prosecution’s deadline in section 18-
1.3-603(2) to provide restitution information to the court before
judgment of conviction enters). Thus, simply by the terms of the
plea agreement, Fregosi waived this issue.
¶ 20 But even if we look beyond the terms of the plea agreement,
the record shows that Fregosi clearly and unequivocally waived this
argument when defense counsel stated at sentencing that he had
no objection to the prosecution’s request for a ninety-one-day
extension. Phillips, ¶ 21.
¶ 21 Accordingly, Fregosi’s challenge to the timeliness of the
prosecution’s requested restitution amount fails.
8 2. Restitution Information Was Not Available at Sentencing
¶ 22 Even assuming Fregosi had not waived this issue, we conclude
that the record shows the restitution information was not available
to the prosecution at the time of sentencing.
¶ 23 Fregosi argues that the dates of the service provider’s bills
were the dates that the prosecution should have had the
information to request restitution. But that is not how CVCB
claims are processed. Indeed, as the CVCB coordinator testified,
the CVCB negotiates medical and mental health bills with each
service provider. Thus, the amount the CVCB ultimately pays is
different from the service provider’s original bill.
¶ 24 Here, the record shows that disbursements for the victim’s
mental health therapy were not approved until April 2020 — one
month after sentencing. The record further shows that the victim’s
medical bills were still being processed by the CVCB in early May
2020 — two months after sentencing.
¶ 25 Accordingly, because the prosecution did not have the
information, it had ninety-one days to present that information.
See § 18-1.3-603(2)(a).
9 C. Subsequent Restitution Orders
¶ 26 We next consider and reject Fregosi’s contention that the
district court erred by granting the amended restitution requests
because it did not make the express good cause findings necessary
to extend the ninety-one-day deadline. We disagree for three
reasons.
¶ 27 First, no provision in the restitution statute precludes a court
that deferred its restitution determination under subsection (1)(b)
from later finding good cause (under subsection (1)(b)) and
extenuating circumstances (under subsection (2)(a)) to further
extend the statutory deadline under subsection (1)(c) within the
initial ninety-one-day period. Fregosi’s assertion that the court’s
subsection (1)(c) order could only be given effect if it were entered at
sentencing contradicts subsection (1)(c)’s purpose of accounting for
unknown costs to be ascertained during the initial period.
¶ 28 Second, neither Weeks nor Meza v. People, 2018 CO 23,
demands a contrary conclusion. Indeed, in its discussion of
compensation for ongoing treatment under section 18-1.3-603(3)(a),
the Weeks court observed that when a court enters a subsection
(1)(b) order requiring a partial amount of restitution but defers the
10 final amount of restitution and later invokes subsection (3)(a) to
increase the amount of restitution, the court — though still bound
to determine the final amount of restitution within ninety-one days
of the judgment of conviction — may, alternatively, make its
determination “within whatever expanded time period the court has
established upon a finding of good cause.” Weeks, ¶ 36; see also
Meza, ¶ 14 (“While perhaps less express, paragraph (b), permitting
an order that the defendant is obligated to pay restitution but that
the specific amount of that restitution is to be determined later,
contains nothing actually precluding the court from making
findings at sentencing with regard to particular victims or losses of
which the prosecution is aware, while reserving until a later date,
within ninety-one days, findings with regard to other victims or
losses of which the prosecution is not yet aware.”).
¶ 29 Finally, the record shows that the court complied with the
requirements of section 18-1.3-603(1). During sentencing, the
prosecution requested, and the district court granted, a ninety-one-
day period to determine restitution under section 18-1.3-603(1)(b).
Before the expiration of the ninety-one-day deadline, the court
entered an order under section 18-1.3-603(1)(c), reserving the issue
11 of future restitution costs to account for the victim’s ongoing
therapy treatment. The record further shows that the court
reiterated its section 18-1.3-603(1)(c) order each time it granted the
prosecution’s amended restitution requests. Moreover, at each
hearing, the court expressly indicated its intent to find good cause
to reserve the final determination of restitution based on the
victim’s ongoing treatment. For example, at the third restitution
hearing, defense counsel asked the court to clarify its restitution
order. The court responded,
[T]he victim has received future counseling expenses and if there’s a need for her to get additional counseling expenses for mental health or otherwise than that’s good cause for the court to consider restitution in the future based on this — assault that she suffered where there was physical and now mental health treatment necessary.
Thus, the court expressly stated that its orders finding that the
victim had incurred future therapy expenses constituted good cause
for extending the final determination of restitution beyond the
statutory deadline.
¶ 30 Based on this record, we conclude that the court’s express
finding that the victim incurred ongoing treatment costs and
12 requiring Fregosi to pay those costs, constituted a valid restitution
order under section 18-1.3-603(1)(c). See Weeks, ¶ 7 n.4 (noting
that, under the restitution statute, “talismanic incantations” are not
necessary, and “substance controls over form”).
¶ 31 Because the court made a good cause finding in an order
entered before the ninety-one-day deadline expired and that order
was reiterated in each restitution order thereafter, we conclude that
the court had the authority to extend the ninety-one-day deadline
based on future losses accounted for in the subsequent restitution
orders.
III. Disclosure of CVCB Records
¶ 32 Fregosi raises two challenges regarding disclosure of the CVCB
records. He first contends that the prosecution failed to establish
that the amounts paid by the CVCB were the direct result of his
criminal conduct. Second, he contends that the district court erred
by declining to conduct an in camera review of the CVCB records.
We reject both contentions.
13 A. Additional Facts
¶ 33 The prosecutor’s amended restitution requests included CVCB
summaries of the victim’s ongoing therapy costs. The summaries
excluded the identity of the victim’s treatment provider.
¶ 34 In his objections to the amended restitution requests, Fregosi
argued that the prosecution had not proved that his conduct was
the proximate cause of the victim’s loss. Specifically, he asserted
that he needed the CVCB summaries to include the identity of the
victim’s treatment providers and requested an in camera review of
the CVCB records.
¶ 35 The court denied Fregosi’s requests in a written order. The
court explained that Fregosi’s purported evidentiary hypothesis for
needing the CVCB records was speculative and did not warrant an
in camera review. The court further found that releasing the
records would pose a threat to the victim’s welfare.
¶ 36 Fregosi reasserted these arguments at subsequent restitution
proceedings. In response, the prosecutor elicited testimony from
the CVCB coordinator who explained the CVCB’s policy of excluding
the identity of the victim’s treatment provider in cases involving
domestic violence. The CVCB coordinator also testified concerning
14 the application process for mental health reimbursement and the
limitations on such requests and confirmed that these standards
were followed in this case.
¶ 37 The court repeatedly found no error in the nondisclosure of
the CVCB records based on its continued finding that disclosure
would pose a risk to the victim’s welfare.
B. Sufficiency
¶ 38 Framed as a sufficiency issue, Fregosi contends that the
prosecution failed to establish that the amounts paid by the CVCB
were the direct result of his criminal conduct because it relied
exclusively on the CVCB payment summaries that did not include
the identity of the victim’s treatment provider or otherwise establish
that including that information would pose a threat to the safety or
welfare of the victim. We are not persuaded.
1. Standard of Review and Applicable Law
¶ 39 Generally, we review a trial court’s restitution award for an
abuse of discretion. People v. Gregory, 2019 COA 184, ¶ 21. A trial
court abuses its discretion when it misconstrues or misapplies the
law, or when its decision fixing the amount of restitution is not
supported by the record. Id.
15 ¶ 40 But in a sufficiency challenge, we review the record de novo to
determine whether the evidence was sufficient in both quantity and
quality to support a restitution award. People v. Barbre, 2018 COA
123, ¶ 25; Dempsey v. People, 117 P.3d 800, 807 (Colo. 2005). We
evaluate “whether the evidence, both direct and circumstantial,
when viewed as a whole and in the light most favorable to the
prosecution, establishes by a preponderance of the evidence that
the defendant caused that amount of loss.” Barbre, ¶ 25.
¶ 41 Convicted offenders must “make full restitution to those
harmed by their misconduct.” § 18-1.3-601(1)(b), C.R.S. 2023.
Restitution “means any pecuniary loss suffered by a victim . . .
proximately caused by an offender’s conduct . . . that can be
reasonably calculated and recompensed in money.” § 18-1.3-
602(3)(a), C.R.S. 2023.
¶ 42 “Proximate cause in the context of restitution is defined as 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. Rivera, 250 P.3d 1272, 1274 (Colo.
App. 2010).
16 ¶ 43 Crime victims and their relatives may seek compensation from
the CVCB for losses caused by criminal conduct. §§ 24-4.1-102(1),
-108, -109(1), C.R.S. 2023. When a CVCB pays a victim
compensation claim, it is a “[v]ictim” for purposes of the restitution
statute. § 18-1.3-602(4)(a)(IV). Therefore, “[i]f a CVCB awards
compensation to a victim or other qualifying person, the CVCB is
eligible to seek and obtain restitution from a defendant in [a]
criminal proceeding.” People v. Martinez-Chavez, 2020 COA 39, ¶
13.
¶ 44 The prosecution must prove by a preponderance of the
evidence that the defendant’s conduct proximately caused the
victim’s loss and the amount of that loss. People v. Henry, 2018
COA 48M, ¶ 15. For CVCB claims, however, the restitution statute
creates a rebuttable presumption that “the amount of assistance
provided and requested by the [CVCB] is presumed to be a direct
result of the defendant’s criminal conduct and must be considered
by the court in determining the amount of restitution ordered.”
§ 18-1.3-603(10)(a); see Martinez-Chavez, ¶ 20. The rebuttable
presumption shifts the burden to the defendant to present evidence
to show that the amount paid was not the direct result of their
17 criminal conduct. Henry, ¶ 19. “[I]f that burden is not met, [the
presumption] establishes the presumed facts as a matter of law.”
Id. at ¶ 17 (quoting Krueger v. Ary, 205 P.3d 1150, 1154 (Colo.
2009)). To trigger the rebuttable presumption, however, the
prosecution must establish the amount of assistance provided.
Martinez-Chavez, ¶ 20.
¶ 45 The restitution statute prescribes two ways of establishing this
amount: (1) “[a] list of the amount of money paid to each provider”;
or (2) “[i]f the identity or location of a provider would pose a threat
to the safety or welfare of the victim, summary data reflecting what
total payments were made for.” § 18-1.3-603(10)(b)(I)-(II).
2. Analysis
¶ 46 We reject Fregosi’s sufficiency challenge for three reasons.
First, the record supports the court’s determination that disclosing
the identity of the victim’s treatment provider would pose a risk to
the victim. The victim expressed concern that disclosing additional
information about her treatment providers would revictimize her
and “bring[] up a lot of extra trauma for her.” Additionally, the
CVCB coordinator explained that, in the context of domestic
violence cases, releasing this type of information can implicate
18 patient safety and welfare because doing so allows the offender to
“basically look up that provider and know where [the victim] [is]
going to be on that day and time.”
¶ 47 Second, the record shows that the prosecution did not rely
solely on the CVCB summaries. The prosecution presented
testimony from the CVCB coordinator who explained how the CVCB
processes claims and how this case met the statutory requirements.
Additionally, the court also took judicial notice of the pre-sentence
investigation report, the Crim. P. 11 paperwork, and Fregosi’s arrest
affidavit.
¶ 48 Finally, Fregosi offered no evidence to rebut the statutory
presumption of causation, such as evidence of an alternate reason
for the victim’s ongoing therapy.
¶ 49 Accordingly, we conclude that sufficient evidence supports the
court’s findings and affirm the order.
C. In Camera Review and Disclosure
¶ 50 Fregosi last contends that the district court erred in declining
to conduct an in camera review of the CVCB records. We disagree.
19 1. Standard of Review and Applicable Law
¶ 51 A trial court’s refusal to conduct an in camera review is
reviewed for an abuse of discretion. People v. Blackmon, 20 P.3d
1215, 1220 (Colo. App. 2000).
¶ 52 The restitution statute’s definition of “[v]ictim” includes any
CVCB that has compensated a victim. § 18-1.3-602(4)(a)(IV). “[T]he
amount of assistance provided and requested by the crime victim
compensation board is presumed to be a direct result of the
defendant’s criminal conduct.” § 18-1.3-603(10)(a). Moreover, the
CVCB’s records relating to the claimed amount of restitution are
confidential. § 24-4.1-107.5(2), C.R.S. 2023. Consequently, “a
defendant generally cannot obtain access to them.” Henry, ¶ 28.
¶ 53 “But in restitution proceedings, section 24-4.1-107.5(3)
creates a two-step process through which a defendant can obtain
information in CVCB records.” People v. Hernandez, 2019 COA
111, ¶ 17.
¶ 54 First, the defendant may ask the court to conduct an in
camera review if the request “is not speculative and is based on an
evidentiary hypothesis that warrants an in camera review” to rebut
20 the presumption established in section 18-1.3-603(10)(a). Id.
(quoting § 24-4.1-107.5(3)).
¶ 55 Second, after conducting an in camera review, the court may
release additional information contained in the records only if it
finds that the information “[i]s necessary for the defendant to
dispute the amount claimed for restitution” and “[w]ill not pose any
threat to the safety or welfare of the victim, or any other person
whose identity may appear in the board’s records, or violate any
other privilege or confidentiality right.” § 24-4.1-107.5(3)(a)-(b).
¶ 56 Here, Fregosi presented no evidence or information that the
victim received medical or mental health treatment unrelated to the
conduct for which he was convicted. Fregosi’s only evidentiary
hypothesis was that he needed the CVCB records
to investigate and potentially litigate (a) whether the costs-as-alleged are primarily based upon outpatient mental-health services; (b) whether the costs were in-fact “proximately caused” by [Fregosi’s] conduct, or rather are related in whole (or in part) to something besides [Fregosi’s] conduct; or (c) whether the costs were something for which [the victim] was eligible to have insurance cover (in whole, or in part) etc.
21 Essentially, Fregosi alleged nothing more than that he needed or
wanted additional information. If a litigant fails to show “a specific
factual basis demonstrating a reasonable likelihood” that the
discovery will yield material evidence, the request for in camera
review is properly denied. People v. Spykstra, 234 P.3d 662, 671-72
(Colo. 2010). Accordingly, we conclude that Fregosi’s insufficient
and speculative evidentiary hypothesis does not meet the statutory
requirements for an in camera review.2 See Rivera, 250 P.3d at
1277 (concluding that defendant’s request for an in camera review
of the victim’s medical records on the basis that the victim “must
have had previous mental health problems” was speculative where
there was no evidence presented that the victim received counseling
before the crime).
IV. Disposition
¶ 57 The restitution order is affirmed.
JUDGE YUN and JUDGE KUHN concur.
2 Even assuming Fregosi’s hypothesis were nonspeculative, based
on our conclusion that the district court properly determined that disclosure of the CVCB records would pose a threat to the victim’s welfare, the court had sufficient grounds upon which to deny the request.