People v. Quinonez

• Decision Date: 06 April 1987
• Docket Number: No. 84SC478,84SC478
• Citation: 735 P.2d 159
• Parties: The PEOPLE of the State of Colorado, Petitioner, v. Fred QUINONEZ, Respondent.
• Court: Colorado Supreme Court

Page 159

735 P.2d 159

The PEOPLE of the State of Colorado, Petitioner, v. Fred QUINONEZ, Respondent.

No. 84SC478.

Supreme Court of Colorado,

En Banc.

April 6, 1987.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., John Milton Hutchins, First Asst. Atty. Gen., Denver, for petitioner.

Jeffrey S. English, Lakewood, for respondent.

ROVIRA, Justice.

We granted certiorari to review two issues considered in People v. Quinonez, 701 P.2d 74 (Colo.App.1984). The court of appeals held that restitution could not be ordered paid to persons other than those who were victims of crimes for which a defendant was charged and that restitution could not be ordered unless the trial court made a factual finding that a defendant had the ability to pay before the order was entered.

We agree that restitution may not be ordered paid to persons who were victims of a defendant's uncharged criminal activity. However, a defendant may, as part of a plea agreement, consent to the payment of restitution to persons or entities damaged as a result of his conduct. We also hold that the trial court need not make factual findings regarding a defendant's ability to pay prior to ordering restitution. The opinion of the court of appeals is affirmed in part and reversed in part.

I.

An altercation between the occupants of two cars occurred on March 1, 1982. James Darr and Christopher Mastalski, the occupants of one car, were injured and killed, respectively. The three occupants of the other car, which included Fred Quinonez (respondent), were charged with various offenses.

Respondent was charged with first-degree murder and accessory to first-degree murder in connection with Mastalski's death. He was not charged with any crimes relating to Darr. As part of a plea agreement, respondent pled guilty to the accessory charge and the murder charge was dismissed. He was sentenced to a community corrections program for two years, plus one year of probation. He also was ordered to pay $11,579.79 to Mastalski's estate and $491 to Darr. Respondent objected to the order of restitution, but did not refuse probation.

Respondent appealed the order of restitution on three grounds. He argued that he could not be ordered to pay restitution to Darr, because Darr was not a victim of the charges to which he had pled guilty. He also claimed that the restitution to Mastalski's estate was "really" for the treating physicians and hospital, and they were not victims within the meaning of section 16-11-204.5, 8 C.R.S. (1983 Supp.). Respondent also contended that the trial court's order was invalid because it had not considered his ability to pay in determining the amount of restitution.

The court of appeals reversed the order of restitution to Darr because respondent was not charged with a crime involving Darr. The court also held that the debts incurred for medical expenses were damages suffered by Mastalski and thus were properly payable by respondent, but remanded to the trial court, holding that factual findings concerning a defendant's ability to pay must be made whenever restitution is ordered. ¹

II.

The first issue on which we granted certiorari is whether the trial court can order restitution, as a condition of a sentence to probation, payable to a victim of a related offense arising out of the same criminal episode where the defendant was not charged with the related offense.

Section 16-11-204.5, 8 C.R.S. (1983 Supp.), stated in pertinent part as follows at the time the defendant was sentenced: ²

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

This statute requires trial courts to impose mandatory restitution payments in connection with sentences to probation. In People v. Deadmond, 683 P.2d 763 (Colo.1984), we construed the statute as follows:

The language of Colorado's statute is unambiguous. 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. The language unequivocally states a legislative intent to authorize restitution payments only to the direct victims of criminal conduct--the person or entity whose injuries resulted from the conduct alleged as the basis for criminal proceedings against the defendant.

Deadmond at 774 (footnote omitted). We thus recognized a clear legislative policy to limit the authority of trial courts to require restitution payments as a condition of probation. Absent consent, a defendant granted probation upon conviction of an offense may be required to pay restitution only to persons injured by the conduct alleged as the basis for the conviction. Such allegations would generally be found in the information or an indictment. ³

In People v. Milne, 690 P.2d 829 (Colo.1984), we recognized that a trial court may enter a probation order requiring a defendant, without his consent, to pay restitution to persons not named specifically in an information, so long as the criminal conduct directly causing the injuries sustained by such persons was alleged in the information. In Milne, the defendant was found guilty of violating a statute that required a license to sell securities. The evidence at trial established that the defendant had sold numerous "investment notes" to several parties. Recognizing that each sale constituted a separate violation of the statute, we concluded that each note purchaser was directly injured by the conduct charged in the information and, therefore, was entitled to restitution even in the absence of the defendant's consent.

In Milne, the elements of the offense charged--unlicensed sale of securities--did not include injury to any particular person or entity. Many other offenses do not require proof that any particular person or entity suffered injury as a result of the prohibited conduct. ⁴ Although in such circumstances names of persons or entities actually suffering injuries as a direct result of the conduct allegedly constituting the offense would not normally appear in the charging document, section 16- 11-204.5 would require a trial court electing to impose a sentence of probation to order restitution payments to any such unnamed person or entity. If the offense charged does require as an element of proof the fact of injury to a particular person or entity, the statute would prohibit a trial court from ordering, as a condition of a sentence to 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. See Deadmond.

§ 24-4.1-102(10), 10 C.R.S. (1986). The definition of "compensable crime" contained in that statute includes any act in violation of § 42-4-1202(1) or (1.5), 17 C.R.S. (1984). Violations of the latter subsections--driving under the influence of alcohol or certain other drugs--constitute misdemeanor offenses and require no proof of damages to any victim as an element of those crimes.

In Cumhuriyet v. People, 200 Colo. 466, 615 P.2d 724 (1980), this court reversed a court of appeals decision that had affirmed a restitution order for a sum not the subject of criminal charges. The statute then applicable, § 16-11-204(2)(e), 8 C.R.S. (1978), granted trial courts discretion to require a defendant, as a condition of probation, to "[m]ake restitution ... to the victim of his conduct for the damages or injury which was sustained...." Noting the absence of any allegation in the information filed against the defendant or in the probation report prepared for the sentencing hearing that conduct of the defendant had caused damage to a particular retail establishment, we held that the trial court improperly ordered restitution to that establishment.

In Cumhuriyet, we recognized the possibility that the statute then applicable might have granted trial courts discretion to require restitution as a condition of probation for conduct allegedly committed by a defendant but not charged in a formal accusation. We expressly left open "the question of [what] showing short of a criminal conviction [is] required to establish the defendant's culpability for the injury before restitution may be imposed." Cumhuriyet, 200 Colo. at 469, 615 P.2d at 726. We also observed that some jurisdictions require notice and an opportunity for the defendant to be heard before considering restitution for losses from related offenses.

Examining cases from other jurisdictions, one principle that seems to hold true is that where a defendant agrees to pay restitution to "victims" named in dismissed counts but not named in counts to which the defendant pleads guilty as a part of a plea bargain, a restitution order issued as a condition of sentence is valid. However, a defendant who did not agree that he would pay restitution to victims of counts other than those to which he pled guilty until after his plea has been taken could not be ordered to pay restitution to those unnamed victims. See, e.g., Kimbrell v. State, 666 P.2d 454 (Alaska App.1983) (order of restitution to victims of dismissed charges remanded for determination whether defendant agreed at time of plea to make restitution to those victims); Dent v. State, 432 So.2d 163 (Fla.App. 4 Dist.1983) (order of restitution to victims of uncharged crimes upheld because the record indicated that the defendant had agreed, at the time of the plea, to make such restitution); State v. Kennedy, 327 N.W.2d 3 (Minn.1982) (defendant must agree at time of plea to make restitution to any victims not named in counts...