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People v. Perez

Court of Appeals of Colorado, First Division

April 20, 2017

The People of the State of Colorado, Plaintiff-Appellee,
v.
Jimmy Aruther Perez, Defendant-Appellant.

         Adams County District Court No. 14CV2608 Honorable Walter R. Kiesnowski, Jr., Judge

          Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Douglas K. Wilson, Colorado State Public Defender, Lisa Weisz, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          GRAHAM JUDGE.

         ¶ 1 Defendant, Jimmy Aruther Perez, appeals the district court's restitution order. He contends that the court abused its discretion by ordering him to reimburse the victim $10, 080 for expended vacation and sick days. Because we conclude that used vacation and sick leave are pecuniary losses compensable to the victim under the Restitution Act (the Act), sections 18-1.3-601 to -603, C.R.S. 2016, we affirm in part but remand for reduction of the restitution award by $840 (representing an additional five working days ordered by the court but not supported by the record).

         I. Background

         ¶ 2 Perez pleaded guilty to leaving the scene of an accident resulting in serious bodily injury, § 42-4-1601(1), (2)(a), C.R.S. 2016, in exchange for the dismissal of additional charges. After the court sentenced Perez, the prosecution requested restitution in the amount of $9, 240, based on the victim missing fifty-five days of work after the accident. Perez objected to the prosecution's restitution request.

         ¶ 3 At the restitution hearing, the prosecution submitted evidence that the victim made $21 an hour and that he typically worked an eight-hour day. The victim missed fifty-five days of work due to his injuries from the accident, but for a portion of those days he was compensated by his employer through his use of vacation and sick leave. Perez argued that the victim did not lose wages for the period he expended vacation and sick leave, and while the expenditure of his leave was "a loss of some kind, " that loss was not compensable under the Act. Perez also argued that he was not the proximate cause of the victim's losses because he pleaded guilty to leaving the scene of an accident resulting in serious bodily injury but not to any crime establishing he was the proximate cause of the victim's injury.

         ¶ 4 In a written order, the district court held that Perez was the proximate cause of the victim's losses because his "construction of the restitution statute [was] entirely too narrow and ignore[d] the broad meaning intended by the [G]eneral [A]ssembly when it tied a defendant's restitution obligation to his overall criminal conduct and not the charges to which he has pled guilty." The court also concluded that

the reasonable value of the victim's economic damages is based upon his hourly rate of approximately $21.00 per hour, multiplied by 40 hours per week for 12 weeks. . . . [T]he reasonable value of the paid time off which the victim was required to exhaust because of [Perez's] overall criminal conduct is $10, 080.

         II. Restitution

         A. Standard of Review

         ¶ 5 "A trial court has broad discretion to determine the terms and conditions of a restitution order." People v. Rivera, 250 P.3d 1272, 1274 (Colo.App. 2010). "A court abuses its discretion when it misconstrues or misapplies the law or when its decision fixing the amount of restitution is not supported by the record." People v. Stotz, 2016 COA 16, ¶ 85 (citations omitted). Restitution is part of a defendant's criminal sentence. People v. Vasseur, 2016 COA 107, ¶ 16. We review the legality of a sentence de novo. People v. Oliver, 2016 COA 180M, ¶ 16.

         ¶ 6 "Whether the sentencing court interpreted the statutory sentencing scheme correctly is a question of statutory interpretation that we review de novo." People v. Rice, 2015 COA 168, ¶ 10. Our primary task is to give effect to the General Assembly's intent. Id. at ΒΆ 11. "To discern the General Assembly's intent, we look to the plain language of the statute, and ...


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