People v. Sosa

• Decision Date: 12 December 2019
• Docket Number: Court of Appeals No. 17CA2225
• Citation: 487 P.3d 1203
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Alicia Sherie SOSA, Defendant-Appellant.
• Court: Colorado Court of Appeals

487 P.3d 1203

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

v.Alicia Sherie SOSA, Defendant-Appellant.

Court of Appeals No. 17CA2225

Colorado Court of Appeals, Division III.

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

Opinion by JUDGE BROWN

¶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, 431 P.3d 215, 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 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’ 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 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, 439 P.3d 33. 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 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, 381 P.3d 357. "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.

¶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.

¶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, 381 P.3d 410, 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. 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

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