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People ex rel A.V.

Court of Appeals of Colorado, Sixth Division

September 20, 2018

The People of the State of Colorado, Petitioner-Appellee,

          Weld County District Court Nos. 16JD123, 16JD124 & 16JD141 Honorable Randall C. Lococo, Judge

          Cynthia H. Coffman, Attorney General, Christine C. Brady, Senior Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

          Nicole M. Mooney, Alternate Defense Counsel, Denver, Colorado, for Juvenile-Appellant


          FREYRE JUDGE

         ¶ 1 A.V., a juvenile, appeals the juvenile court's restitution orders stemming from a global disposition of several different cases. He challenges causation and estimated costs in the burglary of the Country Inn Restaurant, the sufficiency of the evidence in a dismissed count for burglary of the Animal Attractions Pet Store, and the absence of specific reasonableness findings concerning total restitution. We reject his contentions as to the Country Inn restitution orders and conclude that he waived his causation argument. We affirm the Animal Attractions order because the record supports the court's findings. As a matter of first impression, in Part V of this opinion, we interpret the juvenile restitution statute and conclude that amendments occurring in 1996 and 2000, removing the language on which A.V. relies, no longer require the juvenile court to make specific reasonableness findings before imposing restitution. Therefore, we affirm the court's restitution orders.

         I. Background

         ¶ 2 In early 2016, a series of home and business burglaries occurred in Greeley. They all occurred in the same general location, at night, and several were accomplished by breaking a back door or window. The victim businesses included Boost Mobile Cellular, Blue Mug Coffee, Taste of Philly, Animal Attractions Pet Store, CG Vapors, and the Country Inn Restaurant. The Country Inn also sustained extensive fire damage in the burglary, and the fire destroyed most of the business.

         ¶ 3 Police apprehended A.V. and an accomplice fleeing from one of the home burglaries. The accomplice confessed and implicated A.V. When questioned, A.V. admitted being in the backyard of the home during the burglary and provided details of other burglaries in the same general area. In particular, he described the burglaries of Taste of Philly, Blue Mug Coffee, Animal Attractions, Country Inn, and CG Vapors. He also possessed a lizard from Animal Attractions and was wearing shoes whose prints matched shoeprints found at the other burglary scenes.

         ¶ 4 During a search of A.V.'s home, police recovered a vape pen stolen from CG Vapors, two mobile phones stolen from Boost Mobile, a distinctive backpack and hat that matched those seen on surveillance video from Taste of Philly, and the lizard. Thereafter, the prosecution charged A.V. in five separate cases: (1) 16JD123 (Taste of Philly); (2) 16JD124 (Country Inn); (3) 16JD141 (home burglaries); (4) 16JD121 (Animal Attractions and CG Vapors); and (5) 16JD118 (Boost Mobile). A.V. pleaded guilty to one count in 16JD123, one count in 16JD124, and two counts in 16JD141 in exchange for the dismissal of the remaining counts and cases 16JD121 and 16JD118.

         ¶ 5 As part of this global disposition and as relevant here, A.V. pleaded guilty to second degree burglary of the Country Inn in exchange for the dismissal of the remaining counts, including first degree arson. In the written plea agreement, A.V. stipulated to a factual basis and agreed to pay restitution to the victims of the dismissed counts. Similarly, A.V. pleaded guilty to second degree burglary in the Taste of Philly case in exchange for the dismissal of the remaining counts and the dismissal of the Animal Attractions, CG Vapors, and Boost Mobile cases. He stipulated to a factual basis and agreed to pay restitution to the victims of the dismissed counts and cases in the plea agreement.[1]

         ¶ 6 The prosecution requested $682, 600 in restitution for the Country Inn case and $8119.20[2] for the dismissed Animal Attractions case. Before the restitution hearing began, the prosecutor stated his understanding that A.V.'s stipulation to a factual basis in each case (including the dismissed cases) included and constituted a stipulation to causation. Defense counsel responded, "I think that's the understanding of how things go here." Consistent with this understanding, the court took judicial notice of the court files in each case, including the warrantless arrest affidavits.

         ¶ 7 During argument, A.V. conceded that he owed $470, 874.47 (costs incurred to date) in the Country Inn case, which represented the repair and reconstruction expenses resulting from the arson. He asked the court to order that amount, and contested only the estimated costs of $211, 759.53 to complete the repairs. As to Animal Attractions, the prosecution called no witnesses and relied on invoices submitted to victims' compensation[3] for reimbursement. A.V. argued that these invoices alone were insufficient to establish an amount owed.

         ¶ 8 In a detailed oral order, the juvenile court concluded that the testimony of Country Inn's owner, the insurer's attorney, and the admitted exhibits established restitution of $1000 to Country Inn's owner for the deductible and $681, 600 to Country Inn's insurer for the repair work. The court found that A.V.'s stipulation to a factual basis, coupled with the similarities between the Country Inn burglary and the other burglaries, showed that "[A.V.]'s conduct more likely than not was the proximate cause of the damage and the claimed injuries at the Country Inn and that of their insurers."

         ¶ 9 The juvenile court further found that the loss amounts submitted by Animal Attractions and its insurer in the victim impact statements sufficiently established the victims' losses to order restitution in the amount requested. The court found that A.V.'s conduct proximately caused the claimed losses based on the stipulated factual basis and the judicially noticed information in the affidavits for warrantless arrest.

         II. A.V. Waived His Proximate Cause Challenge

         ¶ 10 A.V. contends that no facts exist to show that he caused the Country Inn fire and that the prosecution failed to meet its burden of proving proximate cause for these claimed losses. We conclude that under the unique facts of this case, A.V. waived his challenge to proximate cause by (1) stipulating to a factual basis in the plea agreement and at the providency hearing; (2) stipulating to pay restitution to the victims of the dismissed counts (in this case the arson count) in the plea agreement; (3) agreeing with the prosecutor before the restitution hearing that A.V.'s stipulated factual bases in all cases included a stipulation to causation; and (4) asking the court to order $470, 874.47 for losses related to the dismissed arson count.

         A. Standard of Review

         ¶ 11 A.V. admits that he did not challenge proximate cause in the juvenile court, but asserts that sufficiency of the evidence may be raised for the first time on appeal. Relying on section 18-1-409, C.R.S. 2018, and C.A.R. 4, he reasons that because restitution is part of a sentence and because the statute provides a right to directly appeal a sentence - including the sufficiency and the accuracy of the information on which it is based - we should review his claim de novo.

         ¶ 12 The People respond that A.V. waived this alleged error. See People v. Rediger, 2018 CO 32, ¶ 39. For this argument, they rely on A.V.'s stipulation to a factual basis in all cases and all counts, including dismissed cases and dismissed counts, his agreement to pay restitution to the victims of dismissed counts, and his request for the court to specifically order $470, 874.47 in restitution for the dismissed arson count. For the reasons described below, we agree with the People.

         B. Waiver Law

         ¶ 13 "When a party specifically removes issues from a trial court's consideration, the party has waived those issues and we may not review them on appeal." People v. Geisick, 2016 COA 113, ¶ 16. A valid waiver requires "that the defendant intentionally relinquish[] a known right or privilege." Rediger, ¶ 39; see also People v. Smith, 2018 CO 33, ¶ 17. This approach includes fundamental constitutional rights. Rediger, ¶ 39; People v. Stackhouse, 2015 CO 48, ¶ 8. We must "indulge every reasonable presumption against waiver," Rediger, ¶ 39 (quoting People v. Curtis, 681 P.2d 504, 514 (Colo. 1984)). Therefore, to determine whether a party has removed an issue from our review, we must examine the conduct (or lack of conduct) by the party within the context of all the circumstances. People v. Perez-Rodriguez, 2017 COA 77, ¶ 27 ("To determine whether the statement 'no objection' or even silence should be characterized as either deliberate or inadvertent, it is necessary to consider the objection or silence in the context of its circumstances."). And, because "[w]aiver is accomplished by intent," we focus on whether the right was "known" and whether it was relinquished "intentional[ly]." Rediger, ¶ 40 (quoting United States v. Carrasco-Salazar, 494 F.3d 1270, 1272 (10th Cir. 2007)). In doing so, we are guided by cases that have decided this issue. Rediger, ¶¶ 46-47 (defense counsel stated he had read the instructions and was satisfied with them, and this conduct forfeited rather than waived the instructional error); Smith, ¶ 22 (defense counsel's indication that he "accepted" the jury instructions forfeited rather than waived the instructional error); Stackhouse, ¶ 17 (defense counsel's failure to object to the known closure of the courtroom during voir dire waived the issue on appeal); People v. Allgier, 2018 COA 122, ¶¶ 4, 28 (defense counsel's statement of "no objection" to the admission of firearms forfeited rather than waived the CRE 403 appellate argument related to the firearms' admission); People v. Kessler, 2018 COA 60, ¶ 37 (defense counsel's agreement that the evidence was admissible waived the admissibility issue on appeal); People v. Tee, 2018 COA 84, ΒΆ 4 (where defense counsel affirmatively stated that she was not seeking a ...

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