The People Of The State Of Colorado, Petitioner-appellee,in The Interest Of D.W., Juvenile-appellant.

• Decision Date: 22 October 2009
• Docket Number: No. 08CA2223.,08CA2223.
• Citation: 232 P.3d 182
• Parties: The PEOPLE of the State of Colorado, Petitioner-Appellee,In the Interest of D.W., Juvenile-Appellant.
• Court: Colorado Court of Appeals

232 P.3d 182

The PEOPLE of the State of Colorado, Petitioner-Appellee, In the Interest of D.W., Juvenile-Appellant.

No. 08CA2223.

Colorado Court of Appeals Div. III.

Sept. 3, 2009.

Rehearing Denied Oct. 22, 2009.

John W. Suthers, Attorney General, Elizabeth Rohrbough, Senior Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee.

Douglas K. Wilson, Colorado State Public Defender, Angela Brant, Deputy State Public Defender, Denver, Colorado, for Juvenile-Appellant.

Opinion by Judge ROMÁN.

D.W., a juvenile, appeals the restitution order entered in a juvenile delinquency adjudication based on his guilty plea admitting that he committed acts which, if committed by an adult, would constitute the offense of sexual assault on a child. The central issue on appeal is whether the People proved that D.W.'s delinquent conduct was the proximate cause of losses incurred by the victim's parents when they sold their house so that the victim would no longer have to live near D.W. We conclude the People did not meet this burden because there is no competent evidence in the record establishing that D.W. posed an ongoing and specific threat to the victim. Therefore, we vacate the restitution order and remand for entry of a modified order.

A trial court has broad discretion in determining the terms and conditions of a restitution order, and its ruling will not be disturbed absent an abuse of discretion. People v. Smith, 181 P.3d 324, 325 (Colo.App.2007); People v. Reyes, 166 P.3d 301, 302 (Colo.App.2007).

The People have the burden of establishing restitution by a preponderance of the evidence. People v. Pagan, 165 P.3d 724, 729 (Colo.App.2006); People v. Harman, 97 P.3d 290, 294 (Colo.App.2004).

Section 18-1.3-602(3)(a), C.R.S.2008, of the restitution statute defines restitution as follows:

any pecuniary loss suffered by a victim [which] includes but is not limited to all out-of-pocket expenses, interest, loss of use of money, anticipated future expenses, rewards paid by victims, money advanced by law enforcement agencies, money advanced by a governmental agency for a service animal, adjustment expenses, and other losses or injuries proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money. “Restitution” does not include damages for physical or mental pain and suffering, loss of consortium, loss of enjoyment of life, loss of future earnings, or punitive damages.

Accordingly, if the loss claimed is not specifically mentioned in the restitution statute, it must be a loss that was proximately caused by the offender's conduct. Reyes, 166 P.3d at 303.

“ ‘Proximate cause’ has been defined for purposes of restitution 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 in Interest of D.S.L., 134 P.3d 522, 527 (Colo.App.2006) (quoting People v. Clay, 74 P.3d 473, 475 (Colo.App.2003)).

Here, the essential facts related to the delinquency adjudication are not in dispute. In January 2007, the victim (then age fourteen) told his parents that, on approximately four separate occasions in 2000, D.W. had forced him to perform and receive oral sex (at the time of the abuse, the victim was eight, D.W. was twelve, and both boys lived on the same street). The victim also told his parents that, in 2002, D.W. had threatened to beat him up if he disclosed what had occurred.

As part of a police investigation, the victim called D.W. (who still lived on the same street) and asked him to apologize. D.W. apologized to the victim for having made him perform oral sex. After D.W. was contacted by the police, he admitted that he had engaged in oral sex with the victim.

D.W. pleaded guilty, as set forth above, pursuant to a plea bargain in which other delinquency charges were dismissed. Following the imposition of sentence (which is not at issue in this appeal), in May 2008 the magistrate convened a hearing to address D.W.'s objection to the amount of restitution sought by the victim's family.

The victim's mother testified that she and her husband had sold their home because of “the threat and intimidation that [they] were under living next to the perpetrator.” She testified the victim had experienced post-traumatic stress disorder, and that they had obtained a permanent civil protective order against D.W. in April 2007 (after initially obtaining a temporary protective order in March 2007). However, the People did not introduce a copy of the protective order into evidence, and the victim's mother did not testify that the order was based on allegations distinct from those underlying this delinquency action. Further, she admitted that D.W. had not violated the terms of the order in the fourteen months since it had first entered.

The victim's mother sought restitution for numerous expenses related to preparing the house for sale, including things such as: new carpeting, landscaping materials, and painting supplies. In addition, she testified that she and her husband had paid their real estate agent a commission of $15,157. However, she did not testify as to the sale date, and she did not indicate whether they sold the house at a profit or a loss.

The victim's father testified that he missed several days of work as a result of the victim's revelation of the abuse, and that he lost $2,943.20 in wages. But he was unable to specify how many of the missed work days he spent helping the victim, and how many of those days he spent preparing the house for sale.

The magistrate ordered D.W. to pay: (1) $6,694.30 (for materials purchased to ready the home for sale); (2) $15,157 (for the real estate agent's commission); (3) $2,943.20 (for the father's lost wages); and $500 (for the victim's counseling services-an amount that is not at issue on appeal). The magistrate reasoned that D.W.'s unlawful conduct in 2002 was the proximate cause of the enumerated “losses” stemming from the home sale because (1) pursuant to section 13-14-102(4)(a), (9)(a), C.R.S.2008, the civil restraining order could not have issued absent a showing of an imminent and ongoing threat; and (2) if the victim's family had remained in their house, “contact between [D.W.] ... and the victim ... would obviously not be isolated or limited[,] but instead continuous and unavoidable.”

On district court review, the court acknowledged the absence of any evidence at the restitution hearing indicating that D.W. had threatened the victim or his family after the delinquency petition was filed. Similarly, the district court recognized that the magistrate had not reviewed the court file for the civil restraining order case. Nevertheless, the district court upheld the magistrate's proximate cause determination with respect to the house sale expenses because “a court of competent jurisdiction found such facts in existence to issue the orders that require a stringent standard.” The court also upheld the other portions of the magistrate's order, and D.W. then filed this appeal.

Our analysis is guided by three cases in which divisions of this court have analyzed whether an offender's unlawful conduct was the proximate cause of losses related to the mitigation of a victim's fear. First, in People v. Trujillo, 75 P.3d 1133, 1140 (Colo.App.2003), the division reversed an order...