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 December 12, 2019
2019COA182
No. 17CA2225, People v. Sosa — Criminal Law — Sentencing —
Restitution
A division of the court of appeals concludes — as a matter of
first impression, and as an extension of the rationale in Cowen v.
People, 2018 CO 96 — that Colorado’s restitution statutes do not
authorize a trial court to order a defendant to pay restitution for
pecuniary losses caused by conduct for which a defendant was
never criminally charged.
Because defendant was ordered to pay restitution for losses
arising from conduct for which she was not charged, the division
reverses the restitution order as it applies to defendant and
remands the case to the district court for further proceedings. COLORADO COURT OF APPEALS 2019COA182
Court of Appeals No. 17CA2225 Pueblo County District Court No. 16CR2039 Honorable Thomas B. Flesher, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Alicia Sherie Sosa,
Defendant-Appellant.
ORDER REVERSED AND CASE REMANDED WITH DIRECTIONS
Division III Opinion by JUDGE BROWN Furman and Davidson*, JJ., concur
Announced December 12, 2019
Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Patricia Jo Stone, P.C., Jay C. Fisher, Parker, 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. 2019. ¶1 Defendant, Alicia Sherie Sosa, appeals from the district court’s
order imposing restitution. As a matter of first impression, and as
an extension of the rationale in Cowen v. People, 2018 CO 96, we
conclude that Colorado’s restitution statutes do not authorize a trial
court to order a defendant to pay restitution for pecuniary losses
caused by conduct for which a defendant was never criminally
charged. Because Sosa was ordered to pay restitution for losses
arising from conduct for which she was not charged, we reverse the
restitution order as it applies to Sosa and remand the case to the
district court for further proceedings.
I. Background
¶2 At approximately 1 a.m. on February 28, 2016, two men were
injured and one man was killed during a drive-by shooting at the
Iron Horse Bar in Pueblo. Police identified Angelo Salas and
Timothy Trujillo as the primary suspects and issued warrants for
their arrest.
¶3 During the investigation, police learned that Sosa was Salas’s
girlfriend. About a week after the shooting, police located Sosa’s
rental car and conducted a traffic stop. Salas was inside and was
1 arrested. The officers also identified Trujillo in a car stopped just
behind Sosa’s during the traffic stop. Trujillo was also arrested.
¶4 In a subsequent interview, Sosa admitted that she knew there
was an outstanding warrant for the men and that she had been
camping out with them since the shooting.
¶5 Sosa was charged with accessory to the crime of first or
second degree murder. To facilitate a plea agreement, the
prosecution added a second count of accessory to second degree
murder heat of passion. Sosa pleaded guilty to the second count,
and the first count was dismissed. As part of the plea agreement,
Sosa acknowledged that she would be ordered to pay restitution
and that the dismissed count would be considered for sentencing
and restitution purposes. The court sentenced her to ninety days
in jail followed by three years of supervised probation.
¶6 The prosecution moved the court to order Sosa to pay
restitution, including $25,253.82 to the Victim Compensation Fund
and $5562.70 to the claimant for the deceased victim. The
prosecution asked that Sosa be ordered to pay restitution jointly
and severally with her co-defendants: Salas, Trujillo, and Trujillo’s
girlfriend. The requested restitution included the shooting victims’
2 medical bills and lost wages, the deceased’s funeral costs and
outstanding rent and utility bills, and travel expenses related to the
deceased’s funeral. The court granted the motion in full.
¶7 Sosa timely objected to the amount of the restitution order.
The court held a hearing, denied Sosa’s objections, and stood on its
prior restitution order.
¶8 Sosa appeals.
¶9 After the opening brief was filed, the Colorado Supreme Court
announced Cowen, which held that “Colorado’s restitution statutes
do not allow a trial court to impose restitution for pecuniary losses
caused by conduct that formed the basis of a charge of which the
defendant has been acquitted.” Cowen, ¶ 2. Although the supreme
court expressly declined to consider whether a defendant could be
ordered to pay restitution for losses caused by uncharged conduct,
id. at ¶ 8 n.3, we ordered the parties to file supplemental briefs to
address the impact of Cowen, if any, on Sosa’s appeal.
II. Analysis
A. Standard of Review
¶ 10 In her opening brief, Sosa contends that the district court
abused its discretion by ordering her to pay joint and several
3 restitution for the shooting victims’ losses because she was not the
proximate cause of those losses. We review a district court’s
restitution order for an abuse of discretion. See People v. Henry,
2018 COA 48M, ¶ 12. A court abuses its discretion where its
decision misconstrues or misapplies the law, or is manifestly
arbitrary, unreasonable, or unfair. Id.
¶ 11 In her supplemental brief, Sosa argues that the district court’s
restitution order is not authorized by Colorado’s restitution
statutes. Whether a trial court has authority to impose restitution
for losses suffered as a result of uncharged conduct is a question of
law that we review de novo. Cf. Cowen, ¶ 11 (“[W]e agree with the
parties that whether a trial court has authority to impose
restitution for losses suffered as a result of acquitted conduct is a
question of law.”). We also review questions of statutory
construction de novo. Id.
B. Rules of Statutory Interpretation
¶ 12 When interpreting statutes, our primary goal is to ascertain
and give effect to the legislative intent. Id. at ¶ 12. To do so, we
look first at the language of the statute, giving words and phrases
4 their plain and ordinary meanings, Henry, ¶ 14, if the language is
clear and unambiguous, Cowen, ¶ 12.
¶ 13 In applying the plain meaning of a statute, we must give
consistent effect to all its parts and construe each provision in
harmony with the overall statutory design. Id. at ¶ 13. When a
statutory term is undefined, we construe it in accordance with its
ordinary meaning. Id. at ¶ 14.
C. The Law of Restitution
¶ 14 Restitution must be considered as a part of every criminal
conviction. § 18-1.3-603(1), C.R.S. 2019; People v. Stotz, 2016 COA
16, ¶ 86. “We liberally construe the restitution statute to
accomplish its goal of making victims whole for the harms suffered
as the result of a defendant’s criminal conduct.” People v. Rivera,
250 P.3d 1272, 1274 (Colo. App. 2010). The restitution statute
recognizes that “victims endure undue suffering and hardship
resulting from . . . emotional and psychological injury” and that
“[p]ersons found guilty of causing such suffering and hardship
should be under a moral and legal obligation to make full
restitution to those harmed by their misconduct.” § 18-1.3-
601(1)(a), (b), C.R.S. 2019.
5 ¶ 15 Restitution means “any pecuniary loss suffered by a victim
[that is] proximately caused by an offender’s conduct and that can
be reasonably calculated and recompensed in money.” § 18-1.3-
602(3)(a), C.R.S. 2019. “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.” Rivera, 250 P.3d at
1274. “A defendant may not be ordered to pay restitution for losses
that did not stem from the conduct that was the basis of the
defendant’s conviction.” Id.
D. The District Court Lacked Authority to Order Restitution for Losses Caused by Conduct for Which Sosa Was Not Charged
1. We Extend Cowen to Prohibit Restitution for Losses Proximately Caused by Uncharged Conduct
¶ 16 The Colorado Supreme Court recently held that Colorado’s
restitution statutes do not allow a trial court to impose restitution
for pecuniary losses caused by conduct that formed the basis of a
charge of which the defendant has been acquitted. Cowen, ¶ 2. We
conclude that the court’s rationale is easily extended to preclude
imposition of restitution for pecuniary losses caused by conduct for
which the defendant was never criminally charged.
6 ¶ 17 In Cowen, the defendant wrote two bad checks to a truck
repair shop, one for $9327.65 and another for $13,158.00. Id. at
¶ 3. He was charged with two counts of fraud by check — one
count for each check — but was convicted only of the charge related
to the first check. Id. at ¶ 5. The jury acquitted him of the charge
related to the second check. Id.
¶ 18 Following a hearing, the trial court ordered the defendant to
pay restitution of $22,485.65, the full amount of both checks. Id.
at ¶ 6. The trial court acknowledged that the defendant had been
acquitted of the charge related to the second check, but nonetheless
found “by far more than a preponderance of the evidence” that the
defendant had written both checks knowing he had insufficient
funds to cover them. Id.
¶ 19 Relying on a long line of cases holding that a criminal
conviction establishing a defendant’s culpability is not required to
impose restitution, see, e.g. People v. Ortiz, 2016 COA 58, ¶ 16, a
division of the court of appeals affirmed the restitution order in an
unpublished decision, reasoning that the restitution statutes define
a victim in relation to a defendant’s conduct, “not the charge of
which the defendant was convicted.” Cowen, ¶ 7 (quoting People v.
7 Cowen, slip op. at ¶ 8 (Colo. App. No. 14CA2354, Nov. 23, 2016)
(not published pursuant to C.A.R. 35(e))). The division concluded
that, if the underlying conduct proximately causes a victim’s loss,
restitution is appropriate. See id. Because the trial court found
that the defendant’s conduct proximately caused $22,485.65 in
losses to the victim repair shop, the division upheld the restitution
order. See id.
¶ 20 Based on its interpretation of Colorado’s restitution statutes,
however, the supreme court reversed. Id. at ¶ 42. The court first
acknowledged the legislative declaration that all victims of crime
“endure undue suffering and hardship” and that individuals “found
guilty of causing such suffering and hardship should be under a
moral and legal obligation to make full restitution to those harmed
by their misconduct.” § 18-1.3-601(1)(a), (b) (emphasis added);
Cowen, ¶ 18. The court continued:
Consistent with this proclamation, section 603 provides that “[e]very order of conviction of a felony, misdemeanor, petty, or traffic misdemeanor offense . . . shall include consideration of restitution.” § 18-1.3-603(1), C.R.S. (2018) (emphasis added). As relevant here, section 602 defines “conviction” as “a verdict of guilty by a judge or jury or a plea of guilty or nolo contendere that is accepted by
8 the court for a felony, misdemeanor, petty offense, or traffic misdemeanor offense.” § 18- 1.3-602(2), C.R.S. (2018) (emphases added).
Cowen, ¶ 18. Reading these provisions together, the court
concluded that “[t]he legislature clearly meant to limit restitution
liability to individuals found guilty of causing injury or property loss
that resulted in suffering or hardship to victims harmed by their
misconduct.” Id. at ¶ 19.
¶ 21 The court then considered the definitions of “restitution” —
“any pecuniary loss suffered by a victim . . . proximately caused by
an offender’s conduct and that can be reasonably calculated and
recompensed in money,” § 18-1.3-602(3)(a) (emphasis added) — and
“victim” — “any person aggrieved by the conduct of an offender,”
§ 18-1.3-602(4)(a) (emphasis added). In each instance, the
legislature tied the definition to the conduct of an offender.
¶ 22 Giving the word “offender” its plain and ordinary meaning in
the definitions of “restitution” and “victim,” the court concluded
that the legislature did not intend to empower trial courts to order someone acquitted of a charge to pay restitution for losses caused by the conduct underlying that charge. When an individual is acquitted of a charge, he cannot be deemed an “offender” because he is by definition not a person who committed the
9 crime charged. It follows that the conduct on which the charge was based cannot constitute the “conduct of an offender.” Nor can the victim named in the acquitted charge be considered a person aggrieved by the “conduct of an offender.”
Cowen, ¶ 21.
¶ 23 The court also rejected the People’s proposed statutory
construction in part because it raised due process concerns. The
court confirmed “it is now axiomatic that the presumption of
innocence applies to each crime charged” and that a defendant
retains the presumption of innocence with respect to a charge for
which he is acquitted regardless of whether he is found guilty of a
different charge. Id. at ¶ 38.
To hold otherwise would be tantamount to declaring that when the jury finds a defendant guilty of one charge and not guilty of another, the trial court may nevertheless consider the defendant guilty of the acquitted charge by a less demanding standard of proof. That would be nonsensical even in the context of restitution. Thus, we are convinced that, to comport with procedural due process, restitution must be prohibited for losses resulting from conduct of which a defendant has been acquitted and as to which he retains the presumption of innocence.
10 Id.; cf. Nelson v. Colorado, 581 U.S. ___, ___, 137 S. Ct. 1249, 1256
(2017) (“Colorado may not presume a person, adjudged guilty of no
crime, nonetheless guilty enough for monetary exactions.”).
¶ 24 Although the supreme court declined to consider whether a
restitution award may include losses caused by uncharged conduct,
Cowen, ¶ 8 n.3, we conclude that its rationale can be extended to
answer the question in the negative.
¶ 25 Again, restitution means “any pecuniary loss suffered by a
victim” that was “proximately caused by an offender’s conduct” and
“can be reasonably calculated and recompensed in money.” § 18-
1.3-602(3)(a) (emphasis added). To be a victim for purposes of
restitution, one must be “aggrieved by the conduct of an offender.”
§ 18-1.3-602(4)(a) (emphasis added).
¶ 26 When an individual is not charged with a crime, she cannot be
found guilty of (or plead guilty to) that crime. She cannot be
deemed an “offender” because she “is by definition not a person who
committed the crime charged.” See Cowen, ¶ 21. It follows that
conduct for which an individual is never criminally charged cannot
be deemed the “conduct of an offender,” nor can any person be
considered a victim as to that conduct. See id. Because a court
11 may only order restitution for losses “proximately caused by an
offender’s conduct,” § 18-1.3-602(3)(a), no court may order
restitution for losses proximately caused by conduct for which a
person is not criminally charged.
¶ 27 This is so regardless of whether the individual was charged
with and found guilty of a separate crime. Due process demands
that she retain the presumption of innocence with respect to
conduct for which she is not charged. See Cowen, ¶ 38. To hold
otherwise would be tantamount to declaring that when a jury finds
a defendant guilty of one charge, a trial court may find her guilty of
any number of other uncharged crimes and by a less demanding
standard of proof. That would be “nonsensical” in any context,
including in the context of restitution. See id. Thus, we are
convinced that, to comport with procedural due process, restitution
must be prohibited for losses resulting from conduct for which an
individual has not been criminally charged and as to which she
retains the presumption of innocence.
¶ 28 Our holding today raises the following question: How does this
rule apply to dismissed charges? Unlike uncharged conduct, a
dismissed charge is based on conduct for which an individual has
12 been criminally charged. But like uncharged conduct, when a
charged count is dismissed, an individual cannot be found guilty of
(or plead guilty to) that crime. She cannot be deemed an “offender”
as to the dismissed count, the conduct underlying the dismissed
count cannot be deemed the “conduct of an offender,” and no
person can be considered a victim as to that conduct. See id. at
¶ 21. And she retains the presumption of innocence as to the
dismissed count. See id. at ¶ 38. Thus, for the same reasons
articulated above, no court may order restitution for losses
proximately caused by conduct underlying a dismissed charge.
Due process so requires.
¶ 29 To be clear, this holding does not prevent the prosecution and
the defense from entering into a plea agreement pursuant to which
dismissed or uncharged counts will be considered for purposes of
restitution. See People v. Borquez, 814 P.2d 382, 384-85 (Colo.
1991) (approving restitution order based on uncharged offenses
because “Borquez acknowledged her criminal conduct and the
resulting pecuniary loss incurred by [the victim] in several written
statements and defense counsel tacitly admitted that the plea
agreement was based upon a series of thefts”); People in Interest of
13 A.V., 2018 COA 138M (affirming restitution order based on
dismissed counts where defendant “and his attorney signed the
written plea agreement in which he stipulated to a factual basis and
agreed to pay restitution to the victims of the dismissed counts”).
¶ 30 We recognize that a defendant may receive the benefit of
avoiding trial, pleading guilty to fewer or different offenses, and
receiving a reduced sentence in exchange for making full restitution
to those harmed by her conduct. Both sides ought to be free to
leverage restitution as part of a fair disposition of the case. And
when a defendant agrees to make restitution for losses stemming
from uncharged conduct or dismissed counts, she is bound by that
agreement. See People v. Quinonez, 735 P.2d 159, 164 (Colo. 1987)
(“Where a defendant agrees to make restitution at the time of
entering a plea, he cannot later disavow the agreement on the basis
that there was no showing that he had caused the victim’s injury.”),
superseded by statute on other grounds as stated in Dubois v.
People, 211 P.3d 41 (Colo. 2009).
14 2. Sosa Cannot Be Ordered to Pay Restitution for Losses Proximately Caused by the Shooting
¶ 31 Sosa originally was charged with accessory to the crime of
murder in the first or second degree. The complaint and
information specifically alleged that
[b]etween and including February 28, 2016 and March 7, 2016, Alicia Sheri Sosa unlawfully and feloniously rendered assistance to Timothy Trujillo, with intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of Timothy Trujillo for the commission of a crime, knowing that person committed the crime of Murder in the First or Second Degree, C.R.S. 18-3-102 or 18-3-103, a class 1 or 2 felony; in violation of section 18-8- 105(1), (3), C.R.S.
To facilitate a plea, the prosecution added a second count of
accessory to the crime of second degree murder heat of passion,
which alleged that
on or about the 28th day of February, A.D. 2016 through the 7th day of March, A.D. 2016, at the said County of Pueblo in the State of Colorado, ALICIA SHERI SOSA unlawfully and feloniously rendered assistance to Angelo Salas, with intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of Angelo Salas for the commission of a crime, knowing that person committed the crime of Second Degree Murder Heat of Passion, C.R.S.
15 18-3-103(1), (3)(b), a class 3, 4, or 5 felony; in violation of section 18-8-105(1), (5), C.R.S.
The added count is necessary to facilitate the Plea Agreement reached by the parties.
Sosa pleaded guilty to the second count and the prosecution
dismissed the first count.
¶ 32 “A person is an accessory to crime if, with intent to hinder,
delay, or prevent the discovery, detection, apprehension,
prosecution, conviction, or punishment of another for the
commission of a crime, he renders assistance to such person.”
§ 18-8-105(1), C.R.S. 2019; see also § 18-8-105(5) (“Being an
accessory to crime is a class 5 felony if the offender knows that the
person being assisted has committed . . . a crime . . . .”) (emphasis
added). By its plain language, the offense of accessory describes
conduct that occurs after some underlying crime has already been
committed by another person.
¶ 33 Being an accessory to a crime is different from being a
complicitor to a crime because “[w]hen codefendants are
participants and complicitors in ‘the same criminal acts,’ each is
responsible for the damage he or she caused and also for the
damage caused by the other during the commission of the crime.”
16 People in Interest of D.I., 2015 COA 136, ¶ 15 (The obligation to pay
restitution “may extend to complicitors, who are equally culpable
for the underlying conduct of the offense.”). Conversely, an
accessory “renders aid” after the commission of a crime by another
person; thus, the criminal conduct forming the basis of an
accessory’s conviction is not the same criminal conduct as that of
the person who committed the underlying crime. It is a separate
and distinct offense based on the accessory’s own after-the-fact
conduct.
¶ 34 Sosa was charged with and pleaded guilty to being an
accessory to the crime of second degree murder heat of passion. By
definition, the conduct for which Sosa was criminally charged was
her assistance to Salas and Trujillo after the shooting. Sosa was an
“offender” only as to the accessory crime. Consequently, the district
court was authorized to order Sosa to pay restitution only for losses
proximately caused by her conduct in rendering aid after the
shooting.
¶ 35 Said another way, Sosa was not charged with and did not
plead guilty to any crime based on conduct she engaged in before or
as a participant in the shooting. Because she was not charged with
17 a crime based on such conduct, she has not been found guilty of,
nor did she plead guilty to, a crime based on such conduct. And
she cannot be deemed an “offender” as to any uncharged crime.
¶ 36 Consequently, the district court was not authorized to order
Sosa to pay restitution for losses proximately caused by the
shooting. To hold otherwise would allow the district court to find
Sosa guilty of and punish her for an uncharged crime by a
preponderance of the evidence, a result procedural due process
cannot tolerate.
¶ 37 The restitution order included the shooting victims’ medical
bills and lost wages, the deceased’s funeral costs and outstanding
rent and utility bills, and travel expenses related to the deceased’s
funeral. These losses were proximately caused by the shooting, not
by Sosa’s conduct in delaying Salas’s and Trujillo’s arrests. These
losses would have been sustained regardless of Sosa’s involvement
after the shooting. The district court was not authorized by the
restitution statutes to include such losses in an order of restitution
against Sosa. Accordingly, its order is erroneous as a matter of law
and constitutes an abuse of discretion. We reverse the district
court’s restitution order and remand for further proceedings.
18 3. The Prosecution’s Remaining Arguments are Unpersuasive
¶ 38 The prosecution argues that requiring Sosa to pay restitution
for losses caused by conduct for which she was not criminally
charged does not violate her right to procedural due process in this
case because (1) the district court found that the losses were
proximately caused by Sosa’s conduct; and (2) Sosa “waive[d] any
objection to proximate cause by agreeing to pay the victim’s
restitution on dismissed acts.”
¶ 39 First, the prosecution asserts there is evidence in the record
that Sosa assisted Salas and Trujillo on the day of the shooting by
collecting a bag of guns from a codefendant’s house. Thus, the
prosecution argues there is evidence to support the district court’s
finding that Sosa’s conduct proximately caused the pecuniary
losses included in the restitution order. But the evidence cited by
the prosecution does not support that contention. The shooting
happened around 1 a.m. on February 28, 2016. The cited record
evidence suggests Sosa assisted Salas and Trujillo later that same
day (i.e., after the shooting) by collecting a bag of guns.
¶ 40 Even so, because Sosa failed to provide a transcript of the
restitution hearing, we must presume that the record supports the
19 district court’s proximate cause finding. See People v. Wells, 776
P.2d 386, 390 (Colo. 1989) (“The presumption is that material
portions omitted from the record would support the judgment.”). If
a defendant intends to urge on appeal that a finding is not
supported by the record or contrary to the evidence, she must
include in the record a transcript of all evidence relevant to such
finding. People v. Duran, 2015 COA 141, ¶ 12. So, we will not
disturb the district court’s finding of fact.
¶ 41 But even if the district court found (as a matter of fact by a
preponderance of the evidence) that Sosa proximately caused the
losses claimed as restitution by assisting Salas and Trujillo before
or during the shooting, its order cannot stand as a matter of law
because Sosa was not charged with (or convicted of) a crime based
on such conduct.
¶ 42 Second, based on the plea agreement, the prosecution argues
that Sosa agreed to “make restitution for the first degree murder.”
True, Sosa acknowledged she would “be ordered to pay restitution
to the victim(s) of his/her conduct” and agreed that any “[d]ismissed
counts will be considered for sentencing and restitution purposes,”
but the dismissed count was accessory to first or second degree
20 murder. It was still an accessory charge and, by definition, involved
conduct occurring after the shooting. Sosa was never charged with
murder, so she did not agree to pay restitution proximately caused
by the murder. The plea agreement in this case does not support
the district court’s restitution award.
III. Conclusion
¶ 43 We reverse the restitution order as to Sosa and remand the
case to the district court to determine what losses, if any, were
proximately caused by the conduct for which Sosa was charged —
accessory to first or second degree murder or accessory to second
degree murder heat of passion.
JUDGE FURMAN and JUDGE DAVIDSON concur.