24CA0818 Peo v Sarabia-Martinez 05-28-2026
COLORADO COURT OF APPEALS
Court of Appeals No. 24CA0818 City and County of Denver District Court No. 14CR10280 Honorable Alex C. Myers, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Jose Ricardo Sarabia-Martinez,
Defendant-Appellant.
ORDER AFFIRMED
Division VI Opinion by JUDGE GOMEZ Moultrie and Berger*, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 28, 2026
Philip J. Weiser, Attorney General, Brittany Limes Zehner, Senior Assistant Attorney General and Assistant Solicitor General, Denver, Colorado, for Plaintiff-Appellee
Tara Jorfald, Alternate Defense Counsel, Bryan Collins, Alternate Defense Counsel, Lakewood, Colorado, for Defendant-Appellant
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Defendant, Jose Ricardo Sarabia-Martinez, appeals the trial
court’s order imposing $1,077,217.94 in restitution after a jury
found him guilty of violations of the Colorado Organized Crime
Control Act (COCCA) and other crimes stemming from a fraudulent
mortgage scheme carried out by his family business. He contends
that the trial court erred by (1) unreasonably delaying its issuance
of the order; and (2) ordering an amount of restitution that
exceeded the original amount awarded, before he obtained reversal
of his convictions in an earlier appeal and was retried. We reject
both contentions and, therefore, affirm.
I. Background
¶2 Sarabia-Martinez and several of his family members ran a
fraudulent mortgage scheme through a series of family-owned
businesses. The scheme generally involved the use of a straw buyer
to purchase a residential property and then sell it to a second straw
buyer at a higher price. That second buyer would obtain a
mortgage loan through false representations and wouldn’t make
any payments on the loan, causing it to go into foreclosure, but not
before the family business netted the proceeds from the second
1 sale, as well as other fees and commissions for its handling of both
closing processes.
¶3 Sarabia-Martinez was eventually indicted by a grand jury on
nineteen criminal counts. After his first trial, he was convicted on
several counts and sentenced to a term of twenty-four years in the
custody of the Department of Corrections (DOC). The prosecution
requested, and the trial court granted, an award of $951,571.57 in
restitution for losses suffered by the Small Business Administration
(SBA), which had guaranteed a loan on a commercial property the
family business used as an office, and by the lenders that had
extended loans on the five residential properties at issue in the
case. On direct appeal, a division of this court reversed the
judgment and ordered a new trial due to the erroneous admission of
evidence. People v. Sarabia-Martinez, (Colo. App. No. 16CA2134,
Dec. 19, 2019) (not published pursuant to C.A.R. 35(e)).
¶4 After a retrial in August 2022, Sarabia-Martinez was again
convicted on most of the same charges, including two COCCA
counts, six forgery counts, and one criminal impersonation count.
The prosecution again sought restitution for the SBA and the
lenders.
2 ¶5 On the date the sentencing hearing was initially scheduled,
the parties agreed to continue that hearing as well as the scheduled
restitution hearing due to delays in receiving the presentence
investigation report, Sarabia-Martinez’s anticipated filing of post-
trial motions (for which he was awaiting trial transcripts), and his
request to obtain rulings on those motions before sentencing. The
court, apparently assuming at the time that it needed to hold the
restitution hearing within ninety-one days of entry of the jury
verdict, asked Sarabia-Martinez if he objected to extending the
deadline. Sarabia-Martinez responded, “I don’t have any objection,”
and the court expressly found justifiable and extenuating
circumstances under People v. Weeks, 2021 CO 75, to extend the
restitution hearing date.
¶6 Due to various delays — including delays for the court to
appoint counsel for Sarabia-Martinez (who had represented himself
during the second trial) and for his newly appointed counsel to get
up to speed on the sentencing and restitution issues — the
sentencing hearing didn’t occur until July 28, 2023. The court
initially had a hearing set for both sentencing and restitution on
that date, but defense counsel requested another continuance to
3 have more time to prepare on both issues, and the court denied the
request as to sentencing but granted it as to restitution. The court
sentenced Sarabia-Martinez to a term of twenty years in the
custody of the DOC and reset the restitution hearing for October
30. It then had the following colloquy with Sarabia-Martinez
concerning his waiver of the right to have a restitution order
entered within ninety-one days:
The [C]ourt: Under the law in Colorado, restitution orders have to be entered within 91 days of sentencing. As we were just saying, that is roughly October 30th of this year. Your counsel’s been asking now, for some time, for additional time to ensure he can have an adequate opportunity to review the record and confirm with the prosecution as to what that restitution amount might be, if it’s stipulated or, at a minimum, to prepare for a hearing. Because we’re sitting here on the last day, I do need just to advise you that I’m doing that, understanding that there would be a waiver of your right to have that restitution order entered within 91 days, and also I’m asking for an agreement from you that there is good cause for delaying an entry of restitution beyond 91 days for those reasons. Do you understand what I’m asking you?
[Sarabia-Martinez]: Yes, your honor.
The [C]ourt: And are you in agreement that you’re willing to waive your right and the statutory right, to the extent that’s required of
4 you, to have a restitution order entered within 91 days of today?
The [C]ourt: And you’re willing to do that?
[Sarabia-Martinez]: Yes.
¶7 After additional inquiries regarding the knowing, voluntary,
and intelligent nature of Sarabia-Martinez’s waiver, the court
accepted the waiver and found good cause under Weeks to delay
issuance of the restitution order.
¶8 The restitution hearing went forward on October 30, 2023.
Afterward, the court took the matter under advisement, noted that
Sarabia-Martinez had already waived the ninety-one-day deadline,
and said it would issue a written order “in due course” after it had
an opportunity to review the figures the prosecution had presented
and the new arguments the defense had made at the hearing.
¶9 About five months later, on March 26, 2024, the court entered
its restitution order, awarding the full $1,077,217.94 the
prosecution had requested. This appeal followed.
II. Timeliness of the Restitution Order
¶ 10 Sarabia-Martinez first contends that the trial court erred by
“causing an unreasonable delay in issuing its restitution order.”
5 Specifically, he points to the court’s delay of 148 days between the
restitution hearing and the order establishing the amount of
restitution. We decline to address this issue because we conclude
that Sarabia-Martinez waived it.
¶ 11 At the time of Sarabia-Martinez’s sentencing in 2023, the
restitution statute required that when a trial court ordered
restitution at sentencing but left the amount open, the court had to
resolve the amount within ninety-one days unless it made an
express finding of good cause for delay before the deadline expired.
See § 18-1.3-603(1)(b), C.R.S. 2023; Weeks, ¶¶ 39-40, 44; People v.
Roddy, 2021 CO 74, ¶ 19.1 A court lacks authority to order any
restitution if it doesn’t comply with this deadline. Weeks, ¶ 45.
¶ 12 But the deadline for determining the amount of restitution is
not jurisdictional and can be waived. Babcock v. People, 2025 CO
26, ¶ 27. We review de novo whether a claim is waived. Id. at ¶ 28.
¶ 13 Waiver is “the intentional relinquishment of a known right or
privilege.” People v. Rediger, 2018 CO 32, ¶ 39 (emphasis omitted)
1 The statutory deadline has since been amended, but we apply the
provisions in effect at the time of Sarabia-Martinez’s sentencing. See Ch. 307, sec. 2, 2025 Colo. Sess. Laws 1607.
6 (quoting Dep’t of Health v. Donahue, 690 P.2d 243, 247 (Colo.
1984)). When, as here, statutory rights are involved, waiver “must
be voluntary, but need not be knowing and intelligent.” People v.
Roberson, 2025 CO 30, ¶ 13 (quoting Finney v. People, 2014 CO 38,
¶ 16). Waiver may be explicit, such as “when a party expressly
abandons an existing right or privilege,” or implied, such as “when
a party engages in conduct that manifests an intent to relinquish a
right or privilege or acts inconsistently with its assertion.” Forgette
v. People, 2023 CO 4, ¶ 28. Waiver extinguishes error and therefore
any appellate review. Rediger, ¶ 40.
¶ 14 Much like the defendant in Roberson, ¶¶ 7-8, 16-17, Sarabia-
Martinez waived the statutory deadline when his counsel, who was
new to the case, repeatedly sought and obtained continuances of
the restitution hearing and only later complained about the length
of time it took to resolve the restitution issues. In addition to
obtaining continuances at his counsel’s behest, Sarabia-Martinez
also expressly waived the restitution deadline in a colloquy with the
court immediately after sentencing. Sarabia-Martinez’s actions,
and his failure thereafter to attempt to revoke his waiver or seek an
earlier ruling from the court, waived any objection he may have had
7 to the timing of the restitution order. In short, given that he argued
for months that the restitution issues were complex and required
significant time to fully understand and address, and that he never
argued otherwise or requested an earlier resolution from the court,
he cannot now argue that the court took too long to resolve the
issues. See id.; see also Babcock, ¶ 30 (the defendant waived
compliance with the ninety-one-day deadline by requesting a
hearing date after expiration of the deadline).
III. Amount of the Restitution Order
¶ 15 Sarabia-Martinez also contends that the trial court violated his
double jeopardy and due process rights by awarding restitution in
an amount that exceeds the amount he was ordered to pay after his
first trial. We’re not persuaded.
¶ 16 We review constitutional challenges to sentencing
determinations de novo. People v. Rojas, 2025 COA 25, ¶ 24.
¶ 17 As part of a defendant’s protection against double jeopardy, a
trial court may not increase a legal sentence once the sentence has
been imposed and the defendant has started serving it. People v.
Woellhaf, 199 P.3d 27, 29-30 (Colo. App. 2007). Similarly, a trial
court may not increase the amount of restitution — which “has the
8 effect of increasing the punishment originally imposed” — once a
legal sentence has been imposed and the defendant has started
serving it. People v. Harman, 97 P.3d 290, 293 (Colo. App. 2004),
overruled on other grounds by, Weeks, ¶ 47 n.16.
¶ 18 But the protection against double jeopardy doesn’t preclude a
trial court from imposing a more severe sentence when a defendant
is reconvicted after a successful appeal and retrial. North Carolina
v. Pearce, 395 U.S. 711, 723 (1969); People v. Cook, 2014 COA 33,
¶ 23. Nonetheless, in that circumstance, the right to due process
requires that “vindictiveness against a defendant for having
successfully attacked his first conviction . . . play no part in the
sentence he receives after a new trial.” Pearce, 395 U.S. at 725; see
also Bordenkircher v. Hayes, 434 U.S. 357, 363 (1978) (“To punish
a person because he has done what the law plainly allows him to do
is a due process violation of the most basic sort, and for an agent of
the State to pursue a course of action whose objective is to penalize
a person’s reliance on his legal rights is ‘patently unconstitutional.’”
(citations omitted)).
¶ 19 A rebuttable presumption that the new sentence resulted from
vindictiveness arises if (1) the new sentence is more severe than the
9 original one and (2) there is a reasonable likelihood that actual
vindictiveness played a part in the resentencing. People v. Johnson,
2015 CO 70, ¶ 22. As to the first requirement, our supreme court
has adopted an aggregate approach for determining whether a new
sentence is more severe, looking at whether the aggregate time of
incarceration exceeds the aggregate time from the original sentence.
Id. at ¶ 37. As to the second, the United States Supreme Court has
applied the presumption in instances when a trial court imposed a
more severe sentence after a successful appeal followed by a new
trial, see Pearce, 395 U.S. at 725; Wasman v. United States, 468
U.S. 559, 569 (1984), but has declined to apply it when the
circumstances in a particular case undercut any assumption that
the new sentence was the result of vindictiveness, see, e.g.,
Alabama v. Smith, 490 U.S. 794, 801 (1989) (the presumption didn’t
apply when a higher sentence was imposed after a trial and the
earlier sentence had followed a guilty plea); Texas v. McCullough,
475 U.S. 134, 138-40 (1986) (the presumption didn’t apply when
the retrial was ordered by the trial judge, not by an appellate court,
and a different judge conducted the resentencing after the retrial).
10 ¶ 20 When the presumption of vindictiveness in a sentence applies,
it may be rebutted if the court “carefully explain[s] [the] reasons for
imposing the greater sentence.” Wasman, 468 U.S. at 569; accord
Pearce, 385 U.S. at 726 (“[W]henever a judge imposes a more severe
sentence upon a defendant after a new trial, the reasons for . . .
doing so must affirmatively appear.”). “Those reasons must be
based upon objective information concerning identifiable conduct
on the part of the defendant occurring after the time of the original
sentencing proceeding.” Pearce, 395 U.S. at 726.
¶ 21 If the prosecution doesn’t rebut the presumption, the new
sentence is invalid. Johnson, ¶ 19. But if it rebuts the
presumption, the burden shifts to the defendant to prove the new
sentence arose out of actual vindictiveness. Id. Similarly, if the
presumption doesn’t apply, the defendant must prove actual
vindictiveness in order to prevail on the claim. Id. at ¶ 41.
¶ 22 In this case, the trial court’s restitution award after the retrial
exceeded the initial award by $125,646.37. The trial court offered
two reasons for rejecting Sarabia-Martinez’s argument that the
restitution should be limited to the amount of the initial award.
11 ¶ 23 First, the trial court reasoned that “the idea that the amount
of restitution ordered is part of [Sarabia-Martinez]’s conviction
and/or sentence is dubious.” It is true, as the People point out,
that our supreme court recently held that an order setting the
amount of restitution is not part of a defendant’s sentence. See
Tennyson v. People, 2025 CO 31, ¶¶ 7, 45. But this doesn’t mean
the same due process principles are any less applicable to a
restitution order than to a sentencing decision. Regardless of
whether a decision affects sentencing or restitution, the fear of
vindictiveness in that decision “may unconstitutionally deter a
defendant’s exercise of the right to appeal or collaterally attack his
first conviction.” Pearce, 395 U.S. at 725. Thus, federal and state
courts consistently have applied the standards set forth in Pearce
and its progeny to restitution orders. See, e.g., United States v.
Nottingham, 648 F. App’x 607, 608 (9th Cir. 2016); United States v.
Feldman, 825 F.2d 124, 132-33 (7th Cir. 1987); People v. Powell,
230 N.Y.S.3d 445, 450-51 (N.Y. App. Div. 2025); Callaham v. State,
732 S.E.2d 88, 92-93 (Ga. Ct. App. 2012); State v. Samora, 2004 UT
79, ¶ 24; State v. Pflepsen, 590 N.W.2d 759, 768-69 (Minn. 1999).
12 ¶ 24 Second, the trial court reasoned that “[Sarabia-Martinez]’s
aggregate sentence in this case following appeal is lesser than the
sentence originally imposed.” As the People point out, while the
restitution order after the retrial increased by $125,646.37, the
sentence decreased by four years. We decline to resolve whether
the decreased length of the sentence can offset the increased
amount of restitution, such that the presumption of vindictiveness
doesn’t apply, because we agree, for other reasons, that there is no
indication the new restitution order resulted from vindictiveness.
See People v. Garcia-Gonzalez, 2020 COA 166, ¶ 16 (we may affirm
on any basis supported by the record).
¶ 25 First, it’s not clear that the presumption of vindictiveness
would apply — at least as to the determination made by the trial
court — given that a different judge made the new restitution ruling
on remand. Cf. McCullough, 475 U.S. at 140 (the presumption
didn’t apply to sentencing decisions made by “different sentencers”);
Rojas, ¶ 41 (the presumption didn’t apply when the defendant’s
“new sentences were imposed by a different judge than the judge
who imposed his original sentences” and nothing in the record
“otherwise suggest[ed] a reasonable likelihood of actual
13 vindictiveness”). Nonetheless, the presumption still might apply to
the decision by the prosecution to seek an increased amount of
restitution on remand. Cf. Blackledge v. Perry, 417 U.S. 21, 27-29
(1974) (considering potential vindictiveness on the part of a
prosecutor by bringing new charges against the defendant after he
asserted his appellate rights); Cook, ¶¶ 21-32 (same).
¶ 26 Yet, even if the presumption applied, we conclude that the
People have effectively rebutted it. Although the trial court didn’t
explain the increase in restitution from the original award to the
new award, the prosecution sufficiently explained the amounts it
requested on remand, and the trial court approved that increase.
¶ 27 During the remand proceedings, the prosecution initially
sought to increase the restitution awardable to the SBA by tacking
on interest. But it ultimately dropped its request for interest and
sought a slightly smaller amount of restitution than it originally had
obtained for the SBA — $654,717.94, compared to $655,234.00.
The court awarded that amount.
¶ 28 The prosecution also sought and obtained increased amounts
of restitution for the lenders — collectively, $422,500, as opposed to
the original $296,337.57. But there is no indication in the record
14 how the amounts were calculated in the initial restitution order
following the first trial. And at the restitution hearing following the
second trial, the prosecution’s expert offered unrebutted testimony
that there were three alternative methods to calculate restitution for
the lenders, the method that resulted in the lowest restitution
amount was calculating the difference between the initial purchase
price and the resale price for each of the five subject properties, and
the amounts being sought for the lenders were calculated by
making those simple calculations. Thus, the restitution award on
remand, while higher, was based on objective evidence and does not
in any way appear to be vindictive.
¶ 29 Accordingly, we reject Sarabia-Martinez’s double jeopardy and
due process challenges to the restitution order.
IV. Disposition
¶ 30 The order is affirmed.
JUDGE MOULTRIE and JUDGE BERGER concur.