People v. Borquez

814 P.2d 382, 15 Brief Times Rptr. 911, 1991 Colo. LEXIS 425, 1991 WL 123100

• Court: Supreme Court of Colorado
• Decided: July 9, 1991
• Docket: 90SC630
• Status: Published

Opinions

Chief Justice ROVIRA

delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in People v. Borquez, 801 P.2d 14 (Colo.App.1990), holding that the trial court exceeded its authority in ordering the respondent Christine Borquez to pay restitution for thefts that were not the basis of her plea. We disagree and accordingly reverse.

I

Borquez had been working as a cashier at a Target store (“Target”) since May of 1986. On December 5, 1986, a customer came to her register with several items in a shopping cart. Borquez placed items total-ling $628.15 in shopping bags, but rang up the transaction as a sale worth only $14.77. A security guard was watching the incident, and when the customer left with the purchases, the guard followed her and brought her back into the store.

On being questioned about the incident by store personnel, Borquez admitted that she had not charged the customer for all of the goods, and that on several other occasions she had given away merchandise in a similar manner. She then provided an extensive list of items, worth approximately $2,900, that she had given away in exchange for money from those receiving the goods. Borquez and the customer were arrested and brought to the police station where they were read their rights, which they both waived. Both gave statements as to their involvement in the theft.

Borquez was referred to the Adams County District Attorney’s Diversion Program. As a condition, she agreed to pay restitution to Target. Target notified the Diversion Program that it was seeking $2,370.70 in restitution based upon the list that Borquez had provided and her statement that she had stolen over $2,900 worth of merchandise. Borquez informed a counselor with the Diversion Program that she did not agree with the figure, and she elected to withdraw from the program.

Borquez was charged with one count of theft, a class 4 felony, from Target on December 5, 1986, for merchandise valued at $300 or more, but less than $10,000. Pursuant to a plea agreement, Borquez agreed to plead guilty to an added count of attempted theft, a class 5 felony. At the time the plea was entered, defense counsel stated that “the district attorney has agreed that there will be no other filings based out of this series of events. Finally, the issue of restitution is left completely open, which we’ll have to bring up to the Court probably at sentencing and let the Court resolve that.”

At the sentencing hearing, the trial court imposed a sentence of three years probation and ordered payment of restitution in the amount of $2,370.70 to Target as a condition of probation. Defense counsel objected, arguing that Borquez should not be required to pay any restitution on the uncharged offenses because they were not part of the plea agreement, and that Target had incurred no damage as a result of Borquez’s charged conduct on December 5, 1986 because the merchandise had been recovered.

The court of appeals, in a divided opinion;¹ reversed the trial court, holding that it exceeded its authority in ordering restitution for damages that were not the basis of the plea; that Borquez did not consent to pay restitution for the uncharged thefts; and that Target had recovered all of the merchandise that was taken on December 5, 1986, and thus incurred no loss. We disagree and accordingly reverse.

II

The court of appeals held that the trial court exceeded its jurisdiction in ordering restitution for thefts to which Borquez did not specifically plead guilty. This ruling is not in accordance with the plain language of the statute and the intent of the legislature.

Section 16-11-204.5(1), 8A C.R.S. (1986), provides in part that:

As a condition of every sentence to probation, the court shall provide that the defendant make restitution to the victim of his conduct or to a member of the victim’s immediate family for the actual damages which were sustained. Such restitution shall be ordered by the court as a condition of probation. The amount of such restitution shall be based on the actual, pecuniary damages sustained by the victim, and the ability of the defendant to pay, and the defendant’s obligations to support his dependents and to meet other family obligations.

Section 16-11-204.5(4) defines “victim” as used in the statute as:

the party immediately and directly aggrieved by a defendant who is convicted of a criminal act and who is granted probation, as well as others who have suffered losses because of a contractual relationship with such party or because of liability under section 14-6-110, C.R.S. If there is more than one victim, the party immediately and directly aggrieved shall first be compensated for his loss.

The court must give effect to a statute according to the plain and ordinary meaning of the words employed in accordance with the intent of legislature. See, e.g., Kane v. Estes Park, 786 P.2d 412 (Colo.1990).

Section 16-11-204.5 requires trial courts to impose mandatory restitution payments for the benefit of the party immediately and directly aggrieved by a defendant who is convicted of a criminal act. Such payments are based on the actual, pecuniary damages sustained by the victim. “Payment of restitution is authorized only as to the victim of a defendant’s conduct, and only for the actual pecuniary damage the victim sustained as the direct result of the defendant’s conduct.” People v. Dead-mond, 683 P.2d 763, 774 (Colo.1984).

Under the facts of this case, the trial court was required to impose restitution as a condition of probation. Target was clearly a “party immediately and directly aggrieved by a defendant” who was convicted of a criminal act and who was granted probation. Borquez’s actions directly resulted in “actual, pecuniary damages” to Target. Borquez acknowledged her criminal conduct and the resulting pecuniary loss incurred by Target in several written statements and defense counsel tacitly admitted that the plea agreement was based upon a series of thefts.

The court of appeals relied on People v. Quinonez, 735 P.2d 159 (Colo.1987), for the proposition that a defendant granted probation may be required to pay restitution only to persons injured by the conduct alleged as the basis of the conviction. In Quino-nez, the trial court had required that restitution be paid to the particular person whose injuries were alleged to have resulted from the defendant’s charged conduct and additionally to a person whose injuries were not alleged to have resulted from the defendant’s charged conduct. We reversed the trial court’s award of restitution, holding that “[i]f the offense charged does require as an element of proof the fact of injury to a particular person or entity, the statute would prohibit the trial court from ordering, as a condition of a sentence of probation, restitution to anyone other than the particular entity or person whose injuries were alleged in the charging document to have resulted from the defendant’s conduct.” Quinonez, 735 P.2d at 163.

In Quinonez, the offense charged required as an element of proof the fact of injury to a particular person; thus the trial court improperly required that restitution be paid to a person whose injuries were not alleged in the charging document to have resulted from the defendant’s charged conduct. Here, the trial court required that restitution be paid to a person whose injuries were alleged to have resulted from the defendant’s charged conduct. The theft statute applicable to Borquez requires the name of the victim in the charging document ² and Target was the particular entity whose injuries were alleged in the charging document to have resulted from Bor-quez’s conduct. Thus, based upon the holding in Quinonez, an award of restitution to Target was not improper.

Additionally, the court in Quinonez reiterated the ruling in Cumhuriyet v. People, 200 Cold. 466, 469, 615 P.2d 724, 726 (1980), that a criminal conviction establishing the defendant’s culpability is not required in order to impose restitution. Quinonez, 735 P.2d at 163. “The probation report may be enough to support an order for such restitution if the defendant is given an opportunity to question the pre-sentence report at the probation hearing.” Cumhuriyet, 200 Colo, at 469, 615 P.2d at 726. This is one such case where the probation report supports the order for restitution. Included in Borquez’s probation report was the extensive list of stolen items that she compiled, and a signed statement by her indicating, “I am willing to pay for what I got or tried to get from [Target]. But I don’t think I should have to pay for everyone elses [sic] mistakes as Target is trying to get me to.” Clearly, this particular probation report established that Target sustained actual, pecuniary losses as a re-, suit of Borquez’s criminal conduct.

The trial court’s award of restitution was in accordance with the intent of the legislature in enacting section 16-11-204.5(4). Restitution as a condition of probation is intended to make the victim of the criminal offense whole, to the extent practicable, and to take the profit out of crime. People v. Milne, 690 P.2d 829, 836 (Colo. 1984); Cumhuriyet, 200 Colo. at 469, 615 P.2d at 726. Restitution was appropriate because Target incurred a loss while Bor-quez profited from the incident.

Accordingly, the court of appeals judgment is reversed and the trial court’s order of restitution as a condition of probation is reinstated.

LOHR, J., concurs in part and dissents in part, and KIRSHBAUM and MULLARKEY, JJ., join in the concurrence and dissent.

1 . In dissent, Judge Ney stated that

“a fair reading of § 16-11-104.5(1) compels the conclusion that a defendant may be ordered to pay restitution for the loss the victim suffers in a series of crimes against that same victim. Indeed, the contrary interpretation implicit in the majority opinion permits the defendant to avoid her responsibility to compensate the victim for the loss indisputably attributable to her. I cannot conceive that the General Assembly intended such a result.”

2 . See § 18-4-401(6), 8B C.R.S. (1986).