People v. Rivera

• Decision Date: 18 March 2010
• Docket Number: No. 07CA0279.,07CA0279.
• Citation: 250 P.3d 1272
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee,v.Jon Paul RIVERA, Defendant–Appellant.
• Court: Colorado Court of Appeals

250 P.3d 1272

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Jon Paul RIVERA, Defendant–Appellant.

No. 07CA0279.

Colorado Court of Appeals, Div. I.

March 18, 2010.

John W. Suthers, Attorney General, John T. Lee, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.Douglas K. Wilson, Colorado State Public Defender, Andrew C. Heher, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.Opinion by Judge TAUBMAN.

Defendant, Jon Paul Rivera, appeals the trial court's order granting the People's request for restitution of the victim's counseling expenses and denying an in-camera review and disclosure of documents supporting that request. We affirm.

I. Background

In April 2006, Rivera pleaded guilty to sexual assault on a child, a class four felony, stemming from an incident involving thirteen-year-old victim K.T. The court subsequently sentenced Rivera to two years to life in the Department of Corrections.

After the People requested restitution of $2,102.25, Rivera objected only to the portion involving $1,050 for K.T.'s counseling expenses. At a restitution hearing, Rivera requested the court disclose medical records supporting the People's request for restitution of the counseling expenses on the basis that K.T.'s therapy might be attributable to issues that arose before the sexual assault. Alternatively, Rivera requested the court to conduct an in-camera review of the records.

Following a second hearing, the court denied Rivera's motion for discovery and an in-camera review, and granted the People's request for restitution, including K.T.'s counseling expenses.

This appeal followed.

II. Relation of Medical Expenses to Criminal Conduct

Rivera contends K.T.'s counseling expenses were not attributable to his criminal conduct. We disagree.

A trial court has broad discretion to determine the terms and conditions of a restitution order. People v. Reyes, 166 P.3d 301, 302 (Colo.App.2007). We will only reverse its ruling on a showing of abuse of discretion. Id.

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. Roberts v. People, 130 P.3d 1005, 1009 (Colo.2006). The restitution statute recognizes that “victims endure undue suffering and hardship resulting from ... emotional and psychological injury” and “[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.2009. The statute also provides that restitution includes “any pecuniary loss suffered by a victim,” including all out-of-pocket expenses and other “losses or injuries 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.2009.

For an award of restitution to be proper, if the loss claimed is not specifically mentioned in the restitution statute, it must be a loss that was proximately caused by the defendant's conduct. People in Interest of D.W., 232 P.3d 182, 183 (Colo.App. 2009); see § 18–1.3–602(3)(a). 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. People v. Leonard, 167 P.3d 178, 181 (Colo.App.2007). 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. People v. Brigner, 978 P.2d 163, 164 (Colo.App.1999). When a victim seeks restitution for a loss that is attenuated from the defendant's conduct, the trial court must carefully consider whether proximate cause exists. People v. Lassek, 122 P.3d 1029, 1036 (Colo.App.2005) (holding that burial expenses and travel expenses for victim's parents to attend memorial service were a proximate cause of defendant's conduct); cf. People v. Trujillo, 75 P.3d 1133, 1140 (Colo.App.2003) (rejecting restitution request for victim's installation of an alarm system because a general diminished feeling of security could have multiple causes and is attenuated from the offender's criminal conduct).

Medical expenses are commonly included in restitution awards. See, e.g., People v. Webb–Johnson, 113 P.3d 1253, 1254 (Colo.App.2005) (holding that medical expenses are “out-of-pocket expenses” and “anticipated future expenses” recoverable under the restitution statute); People v. Duran, 991 P.2d 313, 314–15 (Colo.App.1999) (upholding restitution order of victims' medical bills without reducing the restitution because of the victims' own provocative conduct).

Counseling and mental health costs are considered medical expenses under the restitution statute. See People v. Miller, 830 P.2d 1092, 1094–95 (Colo.App.1991) (where defendant's act caused psychological harm to child, restitution award for counseling was appropriate, but facts did not support payment of restitution for future counseling sessions); People v. Wheatley, 805 P.2d 1148, 1151 (Colo.App.1990) (restitution was proper for counseling expenses incurred by victim where record supported the conclusion that trauma imposed on victim's pre-existing mental state required counseling). In People v. Estes, 923 P.2d 358, 361 (Colo.App.1996), a division of this court held that the trial court did not abuse its discretion in ordering restitution for family counseling where the victim impact statement alleged that the defendant's conduct caused psychological trauma to both the victim and the victim's family.

Victim compensation boards reimburse victims for expenses incurred due to the commission of a crime. See § 24–4.1–101, C.R.S.2009. The restitution statute provides that restitution may be ordered to any victim compensation board that has paid a victim compensation claim. Dubois v. People, 211 P.3d 41, 46 n. 3 (Colo.2009). The victim compensation statute requires a victim to submit a report from a treating physician attesting to the nexus between a defendant's criminal conduct and the victim's medical treatment. § 24–4.1–105(2)(a), C.R.S.2009. The statute also allows the victim compensation board to order reports of the victim's previous medical history when such information would materially aid its determination. Id.

The People must establish by a preponderance of the evidence the amount of restitution owed. People v. Pagan, 165 P.3d 724, 729 (Colo.App.2006). A court may not order restitution without a hearing at which the prosecution must prove the amount of the victim's loss and its causal link to the defendant's conduct, and at which the defendant may contest those matters. People v. Martinez, 166 P.3d 223, 225 (Colo.App.2007).

Here, Rivera's challenge to the restitution award focuses on the nexus between his conduct and K.T.'s counseling expenses. The record supports the conclusion that Rivera's criminal conduct resulted in psychological trauma to K.T. requiring counseling. First, the victim compensation board granted K.T.'s application for reimbursement of hospital and counseling expenses. In addition, the victim's father testified at Rivera's sentencing hearing that K.T. required weekly counseling as a result of Rivera's criminal conduct. The court also considered a letter written by a friend of the victim's family stating that K.T.'s attitude had changed dramatically as a result of Rivera's criminal conduct and the victim went “from a bubbly preteen to a dark, sad, no-longer-a-little-girl person.” Further, the victim compensation board had the right to request records pertaining to K.T.'s prior medical history after reviewing the report from K.T.'s treating physician before it determined that compensation for K.T.'s counseling expenses was attributable to Rivera's criminal conduct.

Thus, we conclude that K.T.'s counseling expenses were attributable to his criminal conduct.

III. Disclosure

Rivera contends the trial court erred in denying his request for disclosure of medical reports and information submitted by K.T. to the victim compensation board. We disagree.

The victim compensation statute provides that all records concerning an application for victim's compensation are confidential. § 24–4.1–107.5, C.R.S.2009. In addition, these materials are not “discoverable unless the court conducts an in-camera review of the materials sought to be discovered and determines that the materials sought are necessary for the resolution of an issue then pending before the court.” § 24–4.1–107.5(2), C.R.S.2009. Because the victim compensation statute prohibits disclosure of the confidential documents Rivera requested unless the court first conducts an in-camera review, we next address the trial court's refusal to conduct an in-camera review of the confidential documents.

IV. In–Camera Review

Rivera contends the trial court improperly denied his request under section 24–4.1–107.5(2) for an in-camera review of confidential documents supporting K.T.'s counseling expenses. We disagree.

The showing required to trigger an in-camera review of a victim's confidential medical records for use in a restitution hearing is a matter of first impression in Colorado. To determine what showing is necessary, we must consider the language in both the victim compensation statute, § 24–4.1–107.5(2), and the restitution statute, § 18–1.3–602(3)(a).

As noted above, the former statute provides that confidential materials are not discoverable unless the court conducts an in-camera review of the materials sought to be discovered “and determines that the materials sought are necessary for the resolution of an issue then pending before the court.”

Further, section 24–4.1–107.5(1)(a) provides:

In-camera review means a hearing or review in a courtroom, hearing room, or chambers to which the general public is not admitted. After such hearing or review, the contents of the oral and...