COLORADO COURT OF APPEALS                                       2017COA52


Court of Appeals No. 15CA1352
Adams County District Court No. 14CV2608
Honorable Walter R. Kiesnowski, Jr., Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Jimmy Aruther Perez,

Defendant-Appellant.


                      ORDER AFFIRMED IN PART AND CASE
                        REMANDED WITH DIRECTIONS

                                  Division I
                         Opinion by JUDGE GRAHAM
                       Taubman and Navarro, JJ., concur

                           Announced April 20, 2017


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
¶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


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 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


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           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 ¶ 11. “To discern the General Assembly’s intent, we look to the

 plain language of the statute, and where that language is clear and

 unambiguous, we engage in no further statutory analysis.” Id.



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¶7    “Whether a particular claim for restitution fits within the

 statutory definition is a question of law, which this court reviews de

 novo.” In re Welfare of M.R.H., 716 N.W.2d 349, 351 (Minn. Ct.

 App. 2006); cf. People v. McLain, 2016 COA 74, ¶ 9 (interpretation of

 the restitution statute is subject to de novo review).

       B.   Defendant Proximately Caused the Victim’s Injuries

¶8    Perez claims that the district court erred in holding that his

 actions were the proximate cause of the victim’s injuries because it

 did not make an express finding on the issue. We identify no

 reversible error.

¶9    “‘Proximate cause’ means a cause that in ‘natural and

 probable sequence produced the claimed injury’ and ‘without which

 the claimed injury would not have been sustained.’” People v.

 Lassek, 122 P.3d 1029, 1035 (Colo. App. 2005) (quoting People v.

 Stewart, 55 P.3d 107, 116 (Colo. 2002)).

            [I]n determining the proper amount of
            restitution owed, sentencing courts may
            consider both uncharged and acquitted
            criminal conduct that has been proved by a
            preponderance of the evidence; courts are not
            limited to considering only the criminal
            conduct which a defendant was found beyond
            a reasonable doubt to have committed.



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  Stotz, ¶ 90; see People v. Steinbeck, 186 P.3d 54, 60 (Colo. App.

  2007) (the Act “only requires that the conduct underlying the basis

  of the defendant’s criminal conviction proximately caused the

  victim’s losses”).

¶ 10   The prosecution bears the burden of proving, by a

  preponderance of the evidence, both the amount of restitution owed

  and that the victim’s losses were proximately caused by the

  defendant. Vasseur, ¶ 15.

¶ 11   The People argue on appeal that Perez either waived or invited

  this error. See People v. Gross, 2012 CO 60M, ¶ 8 (invited error

  doctrine); People v. Rediger, 2015 COA 26, ¶¶ 54-60 (waiver) (cert.

  granted Feb. 16, 2016). Our review of the record discloses that

  Perez made this argument to the district court at the restitution

  hearing, and, therefore, we conclude the doctrines of waiver and

  invited error do not apply.

¶ 12   The district court rejected Perez’s proximate cause contention

  but did not expressly state it found Perez to be the proximate cause

  of the victim’s injuries. However, the court’s rejection necessarily

  implied that it found Perez to be the proximate cause of the victim’s

  injuries, and sufficient record evidence supports that finding. The


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  conduct underlying the charge of leaving the scene of an accident

  resulting in serious bodily injury was Perez hitting the victim with

  his car. Although the district attorney elected to charge defendant

  with leaving the scene of an accident instead of a crime based on

  his having caused the victim’s injuries, the court is not precluded

  from ordering restitution because of the charge elected. Steinbeck,

  186 P.3d at 60. The crime for which Perez pleaded guilty arose

  from acts that injured the victim, and we discern no error in the

  court’s rejection of his arguments to the contrary.

       C.    Expended Vacation and Sick Days are Losses Compensable
                            Under the Restitution Act

¶ 13        Every judgment of conviction for a felony offense must include

  the consideration of an order of restitution to be paid by the

  defendant. § 18-1.3-603(1); see Lassek, 122 P.3d at 1034. “We

  liberally construe the restitution statute to accomplish its goal of

  making victims whole for the harms suffered as the result of a

  defendant’s criminal conduct.” Rivera, 250 P.3d at 1274; see

  Roberts v. People, 130 P.3d 1005, 1009 (Colo. 2006).

                 “Restitution” means any pecuniary loss
                 suffered by a victim and includes but is not
                 limited to all out-of-pocket expenses, interest,
                 loss of use of money, anticipated future


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            expenses, rewards paid by victims, money
            advanced by law enforcement agencies, money
            advanced by a governmental agency for a
            service animal, adjustment expenses, and
            other losses or injuries proximately caused by
            an offender’s conduct and that can be
            reasonably calculated and recompensed in
            money. “Restitution” does not include
            damages for physical or mental pain and
            suffering, loss of consortium, loss of enjoyment
            of life, loss of future earnings, or punitive
            damages.

  § 18-1.3-602(3)(a), C.R.S. 2016 (emphasis added).

¶ 14   While “pecuniary loss” is not defined in the Act, Black’s Law

  Dictionary defines pecuniary loss as “[a] loss of money or of

  something having monetary value.” Black’s Law Dictionary 1088

  (10th ed. 2014); see Roalstad v. City of Lafayette, 2015 COA 146,

  ¶ 34 (where a statute does not define a term and the word at issue

  is a term of common usage, we may refer to dictionary definitions in

  determining the word’s plain and ordinary meaning).

¶ 15   Perez contends that vacation and sick leave are not

  compensable under the Act because the loss of leave is not a

  pecuniary loss. We disagree.

¶ 16   The Act contemplates compensation for a victim’s lost wages.

  See § 18-1.3-602(3)(a); People v. Bryant, 122 P.3d 1026, 1029 (Colo.



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App. 2005) (“‘[L]ost wages’ are wages not received by the victim from

the date the crime was committed to the date restitution is

imposed . . . .”). We conclude expenditure of vacation and sick

leave is a loss of employee benefits comparable to a victim’s lost

wages. See In re Ryan A., 39 P.3d 543, 550 (Ariz. Ct. App. 2002)

(Under Arizona’s restitution statute, the court declined “to construe

the term ‘lost wages’ so narrowly as to preclude restitution for the

loss of indirect employment benefits, such as annual leave or

vacation time . . . . The loss of such benefits is a real economic loss

tied to wages earned.”); In re K.F., 92 Cal. Rptr. 3d 784, 793 (Cal.

Ct. App. 2009) (Under California’s restitution statute, the court

found a victim’s loss of sick leave was compensable because “by

depleting his sick leave . . . the credits consumed would not be

available [to the victim] to cover future illnesses or for whatever

other beneficial purpose the employer might allow.”); M.R.H., 716

N.W.2d at 353 (Under Minnesota’s restitution statute, “[a]lthough

accrued leave is not one of the losses specifically listed in the

statute, earned but unused leave is a compensable asset, and its

loss therefore may be recoverable by a victim-employee through

restitution.”); see also State v. Loutsch, 656 N.W.2d 781, 786 (Wis.


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  Ct. App. 2002) (under Wisconsin’s restitution statute, sick leave is

  compensable), overruled on other grounds by State v. Fernandez,

  764 N.W.2d 509, 511 (Wis. 2009).

¶ 17   Perez seeks to distinguish between vested and unvested leave

  when considering the compensability of vacation and sick leave.

  Relying on In re Marriage of Cardona, 2014 CO 3, he argues that

  any unvested leave is not compensable under the Act.1 In that

  divorce proceeding, the supreme court concluded that “where a

  spouse has an enforceable right to be paid for accrued vacation or

  sick leave, as established by an employment agreement or policy,

  such accrued leave earned during the marriage is marital property

  for purposes of the [Uniform Dissolution of Marriage Act (UDMA)].”

  Id. at ¶ 14. In reaching this conclusion, the court noted that vested

  interests constitute property under the UDMA, id. at ¶¶ 21-29, but

  that “interests that are speculative” (unvested interests) “are ‘mere

  expectancies’ that are not property.” Id. at ¶ 13 (quoting In re




  1The evidence at the restitution hearing established that the victim
  was entitled to payment for his accrued vacation leave at any time,
  but that he was only entitled to a payment for sick leave after he
  accrued 160 hours.

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  Marriage of Balanson, 25 P.3d 28, 36 (Colo. 2001)). Perez urges us

  to adopt a similar distinction in the restitution context.

¶ 18   We perceive no benefit to categorizing vacation and sick leave

  as vested or unvested under the Act because irrespective of the

  leave’s status, its expenditure by the victim constitutes a loss. As

  the supreme court noted in Cardona, “time off is itself

  ‘compensation’ that has value,” id. at ¶ 29, and “when [an]

  employee ‘uses’ vacation days, the employee still receives the earned

  compensation, albeit in the form of time off from work,” id. at ¶ 32.

  When a victim expends his or her right to time off due to the

  conduct of a defendant (and the value of that time off can be

  reasonably calculated and recompensed in money), the Act

  mandates restitution. See § 18-1.3-602(3)(a); cf. People in Interest of

  D.S.L., 134 P.3d 522, 528 (Colo. App. 2006) (awarding the victim

  lost wages where he was unable to work preapproved overtime

  hours because of the defendant’s criminal conduct).

¶ 19   In addition, we liberally construe the Act to accomplish the

  statute’s purposes. Johnson v. People, 2016 CO 59, ¶ 32. Making

  the victim whole is one such purpose of the Act. Vasseur, ¶ 13. “A

  victim is made whole when he or she is placed ‘in the same financial


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  position he [or she] would have been in had the wrong not been

  committed.’” People v. Reyes, 166 P.3d 301, 304 (Colo. App. 2007)

  (alteration in original) (quoting Alcaraz v. State, 44 P.3d 68, 73

  (Wyo. 2002)). Because Perez cannot give the victim his vacation

  and sick leave back to make the victim whole, in order to place the

  victim in the same financial position he would have been in had

  Perez not committed the crime, Perez can be ordered to pay the

  value of the expended vacation and sick leave. And, contrary to

  Perez’s contention, we do not discern this payment to be a

  “windfall” inappropriately benefiting the victim. See id. (“Restitution

  is intended to make the victim whole, ‘not to put the victim in a

  better position than before the crime occurred.’”) (citation omitted)

  (quoting Simmons v. State, 205 S.W.3d 194, 198 (Ark. Ct. App.

  2005)). While the victim could not receive cash for his first 160

  hours of sick leave, such leave had value both because the victim

  was forced to exhaust that leave and because that leave will no

  longer be available for the victim to use to cover future illnesses.

¶ 20   In sum, we conclude that expended vacation and sick leave

  are compensable as “other losses . . . proximately caused by an




                                    11
  offender’s conduct and that can be reasonably calculated and

  recompensed in money.” § 18-1.3-602(3)(a).

             D.    The Victim Missed Fifty-Five Days of Work

¶ 21   Lastly, Perez contends the court erred in ordering he pay the

  victim for twelve weeks of missed work. While the victim did testify

  at the restitution hearing that he missed twelve weeks, the

  prosecution sought restitution for fifty-five days of missed work,

  and the record supports this calculation. Because awarding an

  additional five days of missed work results in an $840 windfall to

  the victim, we remand for the district court to reduce the restitution

  order by $840. See Reyes, 166 P.3d at 304 (the Act avoids a

  windfall for the victim); see also Oliver, ¶ 43 (reviewing a claimed

  error in the court’s restitution for plain error).

                              III.   Conclusion

¶ 22   The order is affirmed in part, and the case is remanded for the

  district court to reduce the restitution order by $840.

       JUDGE TAUBMAN and JUDGE NAVARRO concur.




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