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People v. Perez

Court of Appeals of Colorado, First Division

May 2, 2019

The People of the State of Colorado, Plaintiff-Appellee,
v.
Rafael Perez, Defendant-Appellant. 2019 COA 62

          Adams County District Court No. 12CR1963 Honorable Robert W. Kiesnowski, Jr., Judge

          Philip J. Weiser, Attorney General, Marixa Frias, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Megan A. Ring, Colorado State Public Defender, Jeffrey Svehla, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

          OPINION

          TOW, JUDGE

         ¶ 1 Defendant, Rafael Perez, appeals the trial court's order of restitution. We affirm.

         I. Background

         ¶ 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. 35(e)).

         ¶ 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.

         II. Analysis

         ¶ 7 Perez now appeals the restitution order on procedural and substantive grounds.

         A. 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.

         B. Good 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 error.

         1. Preservation

         ¶ 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 preserved.

         ¶ 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) ...


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