County District Court No. 12CR1963 Honorable Robert W.
Kiesnowski, Jr., Judge
J. Weiser, Attorney General, Marixa Frias, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
A. Ring, Colorado State Public Defender, Jeffrey Svehla,
Deputy State Public Defender, Denver, Colorado, for
1 Defendant, Rafael Perez, appeals the trial court's
order of restitution. We affirm.
2 In June 2012, Perez hosted a wedding at his ranch. An
argument ensued among some of the wedding guests. "A
bunch of guys" started kicking one of the wedding
guests, Jose Rodriguez, and then Perez broke a beer bottle on
his face. Rodriguez had to be transported to the hospital via
helicopter for medical treatment.
3 Perez was charged with and convicted of second degree
assault with a deadly weapon. On December 2, 2013, the trial
court sentenced Perez to five years in the custody of the
Department of Corrections. A division of this court affirmed
his conviction. People v. Perez, (Colo.App. No.
14CA0326, Mar. 2, 2017) (not published pursuant to C.A.R.
4 At sentencing, the trial court reserved a determination of
restitution for ninety days. On March 6, 2014, ninety-four
days after the order of conviction, the prosecution moved for
an extension of time to request restitution. In its motion,
the prosecution cited extensive and complex medical bills, a
lost wages form received from the victim the previous day,
and "substantial and possible ongoing medical claims
from Crime Victim Compensation" as reasons for a
requested extension. Perez did not object to this request,
and the trial court granted the motion.
5 The prosecution filed its motion to impose restitution with
supporting documentation on May 12, 2014. The trial court
then held multiple hearings on the issue of restitution. At a
restitution hearing in January 2015, the trial court
determined that an in camera review of the records of the
Crime Victim Compensation Board (CVCB) was necessary to
address Perez's proximate causation concerns.
6 After the trial court conducted an in camera review of the
CVCB's records, the trial court issued an order of
restitution on March 16, 2015, finding that proximate cause
had been established and ordering restitution in the amount
of $17, 060 to be paid to the CVCB. It also ordered
restitution in the amount of $2546 to be paid to Rodriguez
for lost wages.
7 Perez now appeals the restitution order on procedural and
Standard of Review
8 Generally, a trial court has broad discretion to determine
a restitution order's terms and conditions. People v.
Rivera, 250 P.3d 1272, 1274 (Colo.App. 2010). We will
reverse only if the trial court abused its discretion.
Id. An abuse of discretion occurs when the trial
court's decision is manifestly arbitrary, unreasonable,
or unfair, or the court misinterprets or misapplies the law.
See People v. Henson, 2013 COA 36, ¶ 9. To the
extent this appeal requires us to consider the trial
court's interpretation of the restitution statutes, we
review such legal issues de novo. People v. Ortiz,
2016 COA 58, ¶ 15.
Cause and Extenuating Circumstances
9 Perez first argues that the trial court erred in ordering
restitution more than ninety-one days after sentencing absent
a showing of good cause. Perez also argues that the trial
court failed to find extenuating circumstances for granting
the prosecution additional time to provide the information
necessary to determine restitution. We discern no reversible
10 Perez contends that this issue was preserved. In support,
he cites to People v. Melendez, 102 P.3d 315 (Colo.
2004), as providing that preservation only requires an
opportunity for the trial court to make findings and draw
conclusions related to the relevant issue. The People
disagree and argue that Perez failed to preserve this
challenge to the restitution order. We agree with the People.
11 Before the trial court, Perez raised two challenges
regarding restitution. First, he argued there was
insufficient evidence that he, as opposed to the other
assailants, caused the damages. He also objected to not
having been provided access to the CVCB records. Yet, Perez
never challenged either the People's motion requesting
more time to submit restitution information or the order
granting that request and never objected that there was no
showing of good cause or finding of extenuating circumstances
affecting the prosecution's ability to determine
restitution. As a result, the trial court was denied the
opportunity to make findings and draw conclusions on this
particular issue. Consequently, Perez's claim is not
12 That being said, we reject the People's argument that
Perez waived this claim. Waiver is the "intentional
relinquishment of a known right or privilege."
People v. Rediger, 2018 CO 32, ¶ 39 (quoting
Dep't of Health v. Donahue, 690 P.2d 243, 247
(Colo. 1984)). Perez did not intentionally relinquish or
abandon his claim on appeal simply by failing to raise this
claim while contesting other aspects of the restitution
order. See id. at ¶ 40 ("The requirement
of an intentional relinquishment of a known right or
privilege . . . distinguishes a waiver from a forfeiture,
which is 'the failure to make the timely assertion of a
right.'" (quoting United States v. Olano,
507 U.S. 725, 733 (1993))). Because Perez's claim is not
waived, we address the merits.
13 We review unpreserved claims for plain error. Id.
To be plain, an error must be obvious and substantial.
Hagos v. People, 2012 CO 63, ¶ 14. Reversal is
required under this standard only if the error "so
undermines the fundamental fairness of the trial itself as to
cast serious doubt on the reliability of the judgment of
conviction." Hagos, ¶ 22; see also
People v. Tillery, 231 P.3d 36, 48 (Colo.App. 2009)