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 November 30, 2023
2023COA112
No. 20CA1153, People v. Poot-Baca — Crimes — Identity Theft — Criminal Possession of a Financial Device; Criminal Law — Prosecution of Multiple Counts for Same Act — Lesser Included Offenses
A division of the court of appeals concludes that criminal
possession of a financial device, § 18-5-903(1), C.R.S. 2023, is not a
lesser included offense of identity theft, § 18-5-902(1)(a), C.R.S.
2023, under either section 18-1-408(5)(a), C.R.S. 2023, or section
18-1-408(5)(c). Because the division also rejects the defendant’s
other claims, the division affirms the judgment and restitution
order. COLORADO COURT OF APPEALS 2023COA112
Court of Appeals No. 20CA1153 City and County of Denver District Court No. 19CR1327 Honorable Jay S. Grant, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Christopher F. Poot-Baca,
Defendant-Appellant.
JUDGMENT AND ORDER AFFIRMED
Division IV Opinion by JUDGE NAVARRO Grove and Lum, JJ., concur
Announced November 30, 2023
Philip J. Weiser, Attorney General, Trina K. Kissel, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Elyse Marie Maranjian, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 Defendant, Christopher F. Poot-Baca, appeals the judgment of
conviction imposed on jury verdicts finding him guilty of robbery of
an at-risk person, identity theft, and criminal possession of a
financial device. He also appeals the district court’s restitution
order. We affirm the judgment and order. In doing so, we hold that
criminal possession of a financial device is not a lesser included
offense of identity theft.
I. Factual and Procedural History
¶2 On the night of January 14, 2019, eighty-one-year-old Minnie
Sheppard was waiting at a bus stop when a man pushed her to the
ground, took her purse and bag, and ran away. Police and
paramedics arrived at the scene and transported Sheppard to the
hospital, where she was diagnosed with a knee fracture.
¶3 While at the crime scene, Sheppard described her assailant’s
physical appearance to the officers and said he had been drinking
out of a Coca-Cola (Coke) bottle, which he dropped before attacking
her. At the hospital, she clarified that it was actually a Coke can.
An officer collected a Coke can from the crime scene, and a DNA
sample taken from it matched that of Poot-Baca.
1 ¶4 Sheppard’s credit card, a Discover Card, was in her purse
when it was stolen. The following day, three unauthorized charges
were made online with the credit card. A few hours later, two men
shopped at a Foot Locker store, and one tried to use her card. The
transactions were declined, and the interaction was recorded on
surveillance video. Poot-Baca was later arrested wearing a
sweatshirt very similar to the one worn by the man in the
surveillance video — a purple sweatshirt bearing an image of
Marilyn Monroe.
¶5 The prosecution charged Poot-Baca with robbery of an at-risk
adult, a crime of violence, identity theft, and criminal possession of
a financial device. A jury convicted him as charged.
¶6 On appeal, Poot-Baca contends that the district court erred by
(1) admitting evidence of Sheppard’s pretrial identification of him
and her identification of him during trial; (2) failing to merge the
possession of a financial device conviction with the identity theft
conviction because the former is a lesser included offense of the
latter; and (3) ordering restitution for uncharged conduct.
2 II. Identification Evidence
¶7 Poot-Baca contends that the district court erroneously
admitted into evidence Sheppard’s identifications of him as the
robber because they were the unreliable products of an
impermissibly suggestive pretrial identification procedure. We
conclude, however, that any error was harmless beyond a
reasonable doubt.
A. Standard of Review and Preservation
¶8 Because the admission of an unreliable identification of the
defendant violates due process, People v. Martinez, 2015 COA 37,
¶ 11, and because Poot-Baca preserved the issue, we apply the
constitutional harmless error standard to determine whether any
error requires reversal. See id. at ¶ 10. “Under this standard, the
prosecution must show the error was harmless beyond a reasonable
doubt.” Id. “If there is a reasonable possibility the error
contributed to the conviction, we will reverse.” Id.
B. Relevant Facts
¶9 Sheppard provided a description of the robber shortly after the
incident, but she did not identify anyone as the robber when
3 presented with two photographic arrays of potential suspects, one
of which included a photograph of Poot-Baca.
¶ 10 Before trial, the parties appeared in court for a deposition of
Sheppard under section 18-6.5-103.5, C.R.S. 2023, premised on
her at-risk status. The prosecution wished to preserve her
testimony for presentation at trial if she was not available at the
time of trial. See § 18-6.5-103.5(4). Defense counsel sought to
waive Poot-Baca’s appearance at the deposition, but the prosecutor
objected. The district court ruled that Poot-Baca had to attend the
deposition because Sheppard’s deposition testimony might become
a substitute for her trial testimony.
¶ 11 The prosecutor did not ask Sheppard to identify her assailant
during the deposition. Immediately afterward, however, Sheppard
spontaneously told the prosecution’s investigator that she
recognized Poot-Baca as her assailant. Defense counsel moved to
suppress this identification and any subsequent in-court
identification. The court denied the motion, finding there was no
“impermissibly suggestive pretrial identification procedure arranged
by law enforcement” and “[t]he inherent suggestiveness of the
courtroom setting [did] not rise to the level that requires the Court
4 to assess the identification for reliability under [Neil v.] Biggers[, 409
U.S. 188 (1972)].”
¶ 12 Sheppard testified during the trial. The prosecutor asked her
about recognizing Poot-Baca as the robber during the deposition.
Sheppard confirmed that she had recognized him then, and she
again identified him during trial as the man who had robbed her.
Defense counsel extensively cross-examined Sheppard about the
circumstances surrounding her identification of Poot-Baca, calling
its reliability into question in light of those circumstances.
C. Analysis
¶ 13 Poot-Baca contends that the district court erred by (1) denying
his request to waive his presence at the deposition; (2) admitting
Sheppard’s pretrial identification of him following the deposition
because it was unreliable under the circumstances; and
(3) admitting her subsequent in-court identification. We need not
decide whether the court erred because any error was harmless in
light of the other identification evidence admitted at trial and not
challenged on appeal.
¶ 14 Most significantly, the prosecution admitted DNA evidence
that identified Poot-Baca as the robber. Sheppard told officers
5 immediately after the robbery that the robber had been drinking a
Coke product and had thrown the can on the ground at the bus
stop. Officers retrieved the Coke can approximately twenty minutes
later and found no other Coke cans at the bus stop. According to
other trial evidence, a match for the DNA profile obtained from the
can was “estimated to be at least 2 octillion times more likely if the
sample originated from Christopher Poot-Baca than if it originated
from one unknown unrelated person.” Based on this data, and in
the absence of a showing that Poot-Baca had an identical twin, the
evidence showed that the probability was greater than 99.9 percent
that Poot-Baca was the source of the DNA on the Coke can.
¶ 15 At trial, Poot-Baca argued that the DNA evidence established
only that he was in the area some time before the robbery. He
presented somewhat vague evidence that he had attended
appointments in the area near the bus stop and that he did not
show up at an appointment on the day of the robbery. But that
evidence did not actually place him at the bus stop previously or
show that he took the bus on prior occasions. In any event, the fact
that Sheppard saw the robber drinking out of the Coke can
6 immediately before the robbery firmly connected Poot-Baca to the
robbery given the DNA evidence.1
¶ 16 Moreover, a still photo from an officer’s body camera footage
recorded when the officer first responded to the scene supported
Sheppard’s account. That photo shows a Coke can on a sidewalk.
Photos taken by officers when they returned to the scene twenty
minutes later also show a Coke can on the sidewalk. None of the
photos depicts any other Coke cans. If Poot-Baca’s theory that he
might have left the Coke can at the bus stop before the robbery
were true, however, there should have been two Coke cans left at
the bus stop: the can with his DNA as well as the one the robber
left. But the police discovered only the Coke can with Poot-Baca’s
DNA. Hence, to believe the defense theory, the jury would have had
to find that, in the twenty minutes between the police’s first
response to the scene and their second, someone removed the Coke
can the robber threw on the ground and replaced it with a Coke can
bearing Poot-Baca’s DNA. We do not discern a reasonable
1 As noted, Sheppard first said it was a Coke bottle but clarified
shortly thereafter that it was actually a Coke can. She consistently maintained that the robber drank from a Coke container, and no other Coke container was found at the crime scene.
7 possibility that the jury would have made this finding if only
Sheppard’s identifications of Poot-Baca had not been admitted at
trial.
¶ 17 Furthermore, the prosecution presented evidence that the
person who tried to use Sheppard’s credit card at Foot Locker
shortly after the robbery wore the same distinctive sweatshirt as
Poot-Baca wore when he was arrested a month later. That is, the
evidence showed that Poot-Baca possessed Sheppard’s credit card
taken during the robbery and attempted to use it the next day.
¶ 18 As a result, the prosecution presented overwhelming evidence
that Poot-Baca was the robber, independent of Sheppard’s
identifications of him. Given this other evidence identifying him as
the culprit, we conclude that the guilty verdicts were surely
unattributable to the alleged error in admitting Sheppard’s
identifications. Therefore, the alleged error was harmless beyond a
reasonable doubt. See Martinez, ¶ 15 (holding that, given the
substantial evidence that the defendant was the person whom the
victim saw trying to break into her home, which was independent of
the victim’s identification of him during a show-up procedure, any
error in admitting the identification evidence was harmless beyond
8 a reasonable doubt); see also People v. Singley, 2015 COA 78M,
¶ 34 (“[C]onsidering the extensive evidence of Singley’s guilt, we
conclude that any error by the trial court in implicitly concluding
that J.A.C.’s out-of-court identification was reliable under the
totality of the circumstances was harmless beyond a reasonable
doubt.”); People v. Houser, 2013 COA 11, ¶ 56 (“[W]e further
conclude that overwhelming evidence of defendant’s guilt rendered
this error harmless beyond a reasonable doubt.”).
III. Double Jeopardy
¶ 19 Poot-Baca next contends that criminal possession of a
financial device is a lesser included offense of identity theft. As a
result, he says, the district court erred by not merging his
conviction for criminal possession of a financial device with his
conviction for identity theft. We disagree.
A. General Principles
¶ 20 To the extent Poot-Baca’s claim presents a question of
statutory construction, we review it de novo. People v. Kern, 2020
COA 96, ¶ 31. In interpreting a statute, our task is “to ascertain
and give effect to the General Assembly’s intent.” Id. We begin with
the statute’s plain language, examining “the statutory design as a
9 whole” and “giving effect to the language of each provision and
harmonizing apparent conflicts where possible.” Id. We read the
statute’s language in context and construe the words and phrases
according to their common usage. Id.
¶ 21 We also review de novo whether a conviction violates the
constitutional prohibition against double jeopardy. Id. at ¶ 26.
Because Poot-Baca did not preserve this claim, we may reverse only
if plain error occurred. Id.
¶ 22 The United States and Colorado Constitutions forbid imposing
multiple punishments for the same offense if the legislature has not
authorized multiple punishments. Id. at ¶ 27. When a defendant’s
conduct establishes the commission of more than one offense, the
defendant may be prosecuted for each such offense. Id.; see § 18-1-
408(1), C.R.S. 2023. “If one offense is included in the other,
however, the defendant may not be convicted of both.” Kern, ¶ 27;
see § 18-1-408(1)(a).
B. The Offenses at Issue
¶ 23 As relevant here, a person commits identity theft if the person
“[k]nowingly uses the personal identifying information, financial
identifying information, or financial device of another without
10 permission or lawful authority with the intent to obtain cash, credit,
property, services, or any other thing of value or to make a financial
payment.” § 18-5-902(1)(a), C.R.S. 2023. As charged in this case,
identity theft is a class 4 felony. § 18-5-902(2).
¶ 24 “A person commits criminal possession of a financial device if
the person has in his or her possession or under his or her control
any financial device that the person knows, or reasonably should
know, to be lost, stolen, or delivered under mistake as to the
identity or address of the account holder.” § 18-5-903(1), C.R.S.
2023. As charged here, this offense is a class 2 misdemeanor.
§ 18-5-903(2)(a).
¶ 25 A “financial device” includes a credit card. § 18-5-901(6)(a),
C.R.S. 2023.
C. Section 18-1-408(5)(a)
¶ 26 Poot-Baca argues that criminal possession of a financial device
is a lesser included offense of identity theft under section 18-1-
408(5)(a) (subsection 408(5)(a)). Pursuant to that provision, one
offense is included in another charged offense when “[i]t is
established by proof of the same or less than all the facts required
to establish the commission of the offense charged.” § 18-1-
11 408(5)(a); see also Reyna-Abarca v. People, 2017 CO 15, ¶ 51. This
test requires a court to “compare the elements of the statutes rather
than the specific evidence used to sustain the charges in a
particular case.” People v. Welborne, 2018 COA 127, ¶ 8.
¶ 27 Under our supreme court’s interpretation of subsection
408(5)(a), “an offense is a lesser included offense of another offense
if the elements of the lesser offense are a subset of the elements of
the greater offense, such that the lesser offense contains only
elements that are also included in the elements of the greater
offense.” Reyna-Abarca, ¶ 64. Our supreme court has since refined
this “subset” test to clarify that there are two ways for an offense to
be included in another for purposes of subsection 408(5)(a). See
People v. Rock, 2017 CO 84, ¶ 16; Page v. People, 2017 CO 88,
¶¶ 10-11; see also Kern, ¶ 28; Welborne, ¶¶ 11-12.
¶ 28 First, a lesser offense is included in the greater offense when
there are multiple ways to commit the greater and proof of the
commission of at least one of those ways necessarily proves
commission of the lesser. Kern, ¶ 28; Page, ¶ 10. Second, an
offense may be included in another under the statutory elements
test when there are multiple ways to commit the lesser, not all of
12 which are included within the greater. Kern, ¶ 28; Page, ¶ 11.
Under those circumstances, “[a]ny set of elements sufficient for
commission of that lesser offense that is necessarily established by
establishing the statutory elements of a greater offense constitutes
an included offense.” Welborne, ¶ 12 (quoting Rock, ¶ 16).
¶ 29 Criminal possession of a financial device does not qualify as a
lesser included offense of identity theft under either test because
criminal possession of a financial device has at least one element
not included in identity theft. Specifically, the offense of criminal
possession of a financial device requires proof that the defendant
knew, or reasonably should have known, that the financial device
was “lost, stolen, or delivered under mistake as to the identity or
address of the account holder.” § 18-5-903(1). The offense of
identity theft premised on use of a financial device does not include
this element. See § 18-5-902(1). Hence, proving the elements of
identity theft does not necessarily establish the elements of criminal
possession of a financial device.
¶ 30 To elaborate, the offense of identity theft premised on the use
of another person’s financial device requires proof that the
defendant knowingly used the device “without permission or lawful
13 authority.” Id. Proof that the defendant knowingly used the
financial device without permission or lawful authority does not
necessarily prove that the defendant knew, or should have known,
that the device was lost, stolen, or delivered under mistake. For
instance, consider the following hypothetical: Person A asks
Person B to hold onto their credit card but instructs them not to
use it. Person B then uses the card to purchase something without
receiving permission from Person A. Person B would know that the
card was not lost, stolen, or misdelivered; so Person B could not be
convicted of criminal possession of a financial device. See § 18-5-
903(1)(a). But Person B could be guilty of identity theft because
they used the credit card without permission or lawful authority.
See § 18-5-902(1).
¶ 31 In sum, because proof of identity theft does not necessarily
establish criminal possession of a financial device, criminal
possession is not a lesser included offense under subsection
408(5)(a). Cf. Kern, ¶ 35 (holding that, because a person could
commit the offense of throwing a missile without also committing
the offense of littering, littering was not a lesser included offense);
Page, ¶ 19 (concluding that establishing the elements of sexual
14 assault by means of penetration necessarily established the
elements of unlawful sexual contact because there was no way to
commit sexual assault without also committing unlawful sexual
contact).
D. Section 18-1-408(5)(c)
¶ 32 Alternatively, Poot-Baca says the lesser offense was included
in the greater under section 18-1-408(5)(c) (subsection 408(5)(c)).
Under that provision, an offense is included in another if “[i]t differs
from the offense charged only in the respect that a less serious
injury or risk of injury to the same person, property, or public
interest or a lesser kind of culpability suffices to establish its
commission.” § 18-1-408(5)(c). Our supreme court has recently
explained that an offense is included in another under this
provision if it differs from the offense charged only in the respect
that “(1) a less serious injury or risk of injury, a lesser kind of
culpability, or both a less serious injury or risk of injury and a
lesser kind of culpability suffice to establish its commission; and
(2) no other distinctions exist.” Pellegrin v. People, 2023 CO 37,
¶ 34. If any other distinctions exist, subsection 408(5)(c) does not
apply. Id.
15 ¶ 33 Poot-Baca contends that subsection 408(5)(c) applies because
the only distinction between the two offenses is that there is a “less
serious injury/risk of injury to the same cardholder” in criminal
possession of a financial device. We disagree because other
distinctions between the offenses exist.
¶ 34 First, the two offenses punish different conduct. Criminal
possession of a financial device prohibits the possession itself, while
identity theft prohibits the use of the financial device. See §§ 18-5-
903(1), 18-5-902(1)(a). Although use necessarily includes
possession, that does not mean the prohibited conduct is the same.
To illustrate, we note that the supreme court in Pellegrin compared
a stalking statute that prohibited repeatedly “following,
approaching, contacting, surveilling, or communicating” to a
harassment statute that prohibited only a single improper
communication. Pellegrin, ¶ 40. The supreme court concluded that
the statutes “punish different conduct.” Id. In doing so, the
supreme court rejected application of the “subset test” to
subsection 408(5)(c). See id. at ¶¶ 42-45.
¶ 35 Second, the statutes protect different things. Criminal
possession of a financial device protects only financial devices, see
16 § 18-5-903(1), while identity theft is broader because it also
protects personal identifying information and financial identifying
information, see § 18-5-902(1)(a). Although a financial device is
included in both statutes, the difference between the statutes
matters for purposes of subsection 408(5)(c). See Pellegrin, ¶ 39
(concluding that subsection 408(5)(c) did not apply because the
stalking statute protected both a specific person and a member of
that person’s immediate family, or someone with whom that person
has or has had a continuing relationship, while the harassment
statute protected only a single specific person).
¶ 36 Accordingly, we conclude that criminal possession of a
financial device is not a lesser included offense of identity theft
under subsection 408(5)(c). For all the reasons we have discussed,
therefore, the district court did not err by failing to merge Poot-
Baca’s convictions for those two offenses.
IV. Restitution
¶ 37 Poot-Baca contends the district court erred by ordering him to
pay restitution to Discover Card for losses resulting from
transactions that he was not convicted of executing. Because
17 sufficient evidence supports the court’s finding that he was the
proximate cause of those losses, we disagree.
A. Standard of Review
¶ 38 We review de novo whether a court has the authority to
impose restitution. People v. Roddy, 2021 CO 74, ¶ 23; see also
People v. Moss, 2022 COA 92, ¶ 8. Some disagreement exists,
however, as to the appropriate standard of review for assessing
whether sufficient evidence supports a restitution order. See People
v. Babcock, 2023 COA 49, ¶ 17 (“We note, however, that the
appropriate standard of review is far from clear.”). Some divisions
of this court have applied de novo review, while others have
reviewed for an abuse of discretion. See Moss, ¶ 9 (applying de
novo review); People v. Barbre, 2018 COA 123, ¶ 15 (applying de
novo review); People v. Martinez, 2022 COA 28, ¶ 14 (applying abuse
of discretion review) (cert. granted Oct. 24, 2022).
¶ 39 Even when reviewing de novo, however, our review is
deferential to the district court’s finding that the defendant was the
proximate cause of the claimed loss. Under that standard, an
appellate court “review[s] the record de novo to determine whether
the evidence was sufficient in both quantity and quality to support
18 a restitution award.” Babcock, ¶ 18. 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 the loss.
Id.; see also Barbre, ¶ 25. “[W]e will not disturb a district court’s
findings and conclusions if the record supports them, even though
reasonable people might arrive at different conclusions based on the
same facts.” Babcock, ¶ 18 (citation omitted). That is, our review is
limited to “whether the prosecution presented sufficient evidence to
convince a reasonable fact finder by a preponderance of the
evidence of the amount of restitution owed.” Id. (citation omitted).
Given the deferential nature of de novo review in this context and
because the outcome here would be the same under any standard
of review, we apply de novo review as Poot-Baca requests.2
¶ 40 Poot-Baca was convicted of robbery for taking Sheppard’s
purse and bag by force on January 14, 2019. He was convicted of
committing identity theft and possession of a financial device based
2 The People decline to take a position on the proper standard of
review.
19 on actions on January 15 involving the Discover Card that had
been in her purse. The prosecution sought restitution in the
amount of $2,651.90 to reimburse the Crime Victims’
Compensation Board and Discover Card. Poot-Baca objected to the
$102.40 requested for Discover Card’s losses, which represented
purchases from various vendors (none of which was Foot Locker).
¶ 41 At the restitution hearing, Poot-Baca argued that the losses
incurred by Discover Card were not proximately caused by his
conduct because the identity theft and criminal possession of a
financial device convictions were based only on evidence that he
used the credit card to attempt a purchase at Foot Locker, which
was declined. His argument was rooted in defense counsel’s
request during trial that the prosecutor elect which transaction
formed the basis for the identity theft charge, given that the same
credit card was affiliated with multiple transactions on the same
day. The prosecutor elected to rely on the evidence related to Foot
Locker to support the identity theft count. Although neither the
jury instructions nor the verdict forms limited any count to the Foot
Locker evidence, the prosecutor in closing argument relied on that
20 evidence to support both the identity theft and the criminal
possession of a financial device counts.
¶ 42 The court rejected Poot-Baca’s argument and awarded the
restitution amount requested by the prosecution. The court found
as follows:
[B]ut for [Poot-Baca] setting these wheels in motion there wouldn’t have been a loss, and there isn’t any real significant proof of any intervening cause that would offset that, and so I find that the People have met their burden of proving the restitution that is — is against Mr. Poot-Baca in the amount of two thousand six hundred and fifty-one dollars and ninety cents. That includes the Victims Comp Fund and the — the amount owed to Discover Card in this case . . . .
C. Relevant Law
¶ 43 A person found guilty of criminal conduct 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.
¶ 44 Proximate cause in the context of restitution is “a cause which
in natural and probable sequence produced the claimed loss and
21 without which the claimed loss would not have been sustained.”
Moss, ¶ 12. “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.” Babcock, ¶ 19.
¶ 45 Generally, a defendant may not be ordered to pay restitution
for losses unless they stem from the conduct that was the basis of
the conviction. Moss, ¶ 13. “Consequently, a district court may not
award restitution for damages arising from criminal conduct (1) of
which the defendant was acquitted; (2) for which the defendant was
never criminally charged; or (3) which underlies a dismissed
charge.” Id. (citations omitted).
D. Application
¶ 46 Poot-Baca argues that he cannot be ordered to pay restitution
to Discover Card because Discover Card’s losses did not result from
his conduct underlying his convictions for identity theft or criminal
possession of a financial device. Even if we accept the premise that
Discover Card’s losses cannot be tied to those convictions, however,
we reject Poot-Baca’s claim because those losses can be tied to his
robbery conviction. Viewing the evidence in the light most favorable
to the prosecution, we conclude that it adequately supports the
22 district court’s finding that Poot-Baca’s robbery proximately caused
$102.40 in losses to Discover Card.
¶ 47 As noted, the jury found that Poot-Baca robbed Sheppard by
forcibly taking her purse, which contained her Discover card. The
evidence of this robbery permitted the district court to reasonably
find that his taking the credit card produced, in a natural and
probable sequence, the unauthorized use of the card. This
consequence was foreseeable even though the robbery offense itself
did not require proof that Poot-Baca used the taken property to
another’s financial detriment. See id. at ¶ 18 (rejecting the
defendant’s claim that “restitution must be directly related to an
element of the crimes for which she was convicted,” concluding
instead that restitution “must be tied to unlawful conduct for which
a defendant was convicted”).
¶ 48 Moreover, the evidence did not compel the court to find an
intervening cause that interfered with the natural and probable
sequence of events. See People v. Clay, 74 P.3d 473, 475 (Colo.
App. 2003) (defining an intervening cause). The evidence permitted
a finding that Poot-Baca took the card from Sheppard on
January 14, and he possessed the card after the January 15 credit
23 card transactions at issue. His attempted purchase with the card
at Foot Locker occurred around 2 p.m. on January 15. All three
Discover transactions at issue were made on January 15 before
2:00 p.m. The fact that Poot-Baca possessed the card shortly after
those three transactions supported the court’s finding that there
was not an intervening cause of the losses. That is, the evidence
supported the finding that Poot-Baca took the credit card the night
of January 14 and still had it around 2:00 p.m. on January 15.
Therefore, the evidence was sufficient to show that Poot-Baca’s
conduct in robbing Sheppard of the credit card was the proximate
cause of the unauthorized credit card purchases made within that
timeframe. See People v. Jaeb, 2018 COA 179, ¶ 50 (“[E]ven if we
assume that the trailer was damaged by the police, the damage was
the natural and probable consequence of defendant’s theft and
would not have occurred but for his actions.”).
¶ 49 Therefore, we affirm the district court’s finding that Poot-Baca
was the proximate cause of Discover Card’s losses.
V. Conclusion
¶ 50 The judgment and order are affirmed.
JUDGE GROVE and JUDGE LUM concur.