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People ex rel. D.M.

Court of Appeals of Colorado, Fifth Division

April 18, 2019

The PEOPLE of the State of Colorado, Petitioner-Appellee IN the INTEREST OF D.M., Juvenile-Appellant.

          As Modified May 23, 2019

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          Boulder County District Court No. 15JD385, Honorable Patrick D. Butler, Judge

         Philip J. Weiser, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

         The Law Office of Thomas W. Martin, LLC, Thomas W. Martin, Fort Collins, Colorado, for Juvenile-Appellant

         OPINION

         J. JONES, JUDGE.

         [¶ 1] Section 18-1.3-603(1), C.R.S. 2018, says that every order of conviction for a criminal offense (with certain exceptions) must "include consideration of restitution." And, unless the sentencing court finds that no victim suffered a pecuniary loss, the court must order the defendant to pay restitution to the victim. Id.

         [¶ 2] Likewise, a juvenile whom the court has adjudicated delinquent must pay restitution for a victim’s loss of personal property as required by section 18-1.3-603. § 19-2-918(1), C.R.S. 2018. But what if the victim’s pecuniary loss is the value of marijuana stolen from the victim’s marijuana store? Can a defendant be required to pay restitution for such loss?

         [¶ 3] D.M., a juvenile who stole marijuana from a marijuana store, says "no," contending that because the Federal Controlled Substances Act (CSA), 21 U.S.C. § § 801-971 (2018), makes it a federal offense to distribute marijuana and provides that no one has a property interest in marijuana, Colorado’s restitution statutes can’t be applied to his conduct. In short, he contends that the CSA preempts the restitution statutes in these circumstances. But because we don’t see any positive conflict between the CSA and the restitution statutes, we reject D.M.’s preemption argument and affirm the order of restitution.

          I. Background

         [¶ 4] D.M. and two of his friends broke into a licensed marijuana dispensary in the middle of the night and stole marijuana plants and products worth $ 178,000. The People filed a petition for delinquency, charging D.M. with theft and second degree burglary, both class 3 felonies. D.M. agreed to plead guilty to burglary of a nondwelling, a class 4 felony, in exchange for dismissal of the original charges. The district court accepted the plea agreement, adjudicated D.M. delinquent, and sentenced him to nine months of probation.

         [¶ 5] The prosecution filed a motion for an order requiring D.M. to pay $ 178,000 in restitution for the value of the stolen marijuana. D.M. didn’t dispute the amount of the loss but argued that the court couldn’t order such restitution because the CSA preempts the restitution statutes. The district court

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rejected that argument and ordered D.M. to pay the store owner $ ...


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