     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                   SUMMARY
                                                                  May 2, 2019

                                2019COA62

No. 16CA0446, People v. Perez — Criminal Law — Sentencing —
Restitution

     A division of the court of appeals considers whether the trial

court erred in ordering restitution more than ninety-one days after

sentencing and what, if any, explicit findings the trial court must

make to do so. The division concludes that, based on the facts of

this case, the lack of explicit findings was not plain error. The

special concurrence explains why this case illustrates what appears

to the author to be a pattern of inattentiveness by the prosecution,

defense counsel, and trial courts regarding the procedures

established in the restitution statutes. It also points out two

ambiguities in those statutes that the General Assembly may wish

to address.
COLORADO COURT OF APPEALS                                         2019COA62


Court of Appeals No. 16CA0446
Adams County District Court No. 12CR1963
Honorable Robert W. Kiesnowski, Jr., Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Rafael Perez,

Defendant-Appellant.


                              ORDER AFFIRMED

                                  Division I
                           Opinion by JUDGE TOW
                             Berger, J., concurs
                        Taubman, J., specially concurs

                           Announced May 2, 2019


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
¶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


                                   1
 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.




                                   2
                          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.




                                      3
                            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.




                                     4
¶ 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) (applying the plain error standard to sentencing),

  aff’d sub nom. People v. Simon, 266 P.3d 1099 (Colo. 2011).


                                     5
                           2.     Applicable Law

¶ 14   Every order of conviction for a felony “shall include

  consideration of restitution.” § 18-1.3-603(1), C.R.S. 2018. If the

  court reserves the determination of restitution, as it is authorized to

  do, restitution is to be fixed within ninety-one days after the order

  of conviction, unless good cause is shown for extending that time.

  § 18-1.3-603(1)(b). The court must base its restitution order on

  information presented by the prosecution. § 18-1.3-603(2). The

  prosecution “shall present this information to the court prior to the

  order of conviction or within ninety-one days, if it is not available

  prior to the order of conviction.” Id. The court may extend this

  deadline “if it finds that there are extenuating circumstances

  affecting the [prosecution’s] ability to determine restitution.” Id.

  Importantly, the time limits in section 18-1.3-603 are not

  jurisdictional. People v. Harman, 97 P.3d 290, 293 (Colo. App.

  2004).

                             3.    Application

¶ 15   The question here is whether the trial court erred in awarding

  restitution under the circumstances presented. Because restitution

  was ultimately awarded more than ninety-one days after the order


                                      6
  of conviction, a showing of good cause was required. § 18-1.3-

  603(1)(b).

¶ 16   Although the trial court granted the prosecution’s motion for

  extension of time to request restitution, the trial court did not

  formally find that good cause existed. However, the statute does

  not require such an explicit finding. People v. Knoeppchen, 2019

  COA 34, ¶ 25. On the other hand, the statute explicitly requires the

  trial court to “find[] that there are extenuating circumstances” in

  order to grant the prosecution more time to gather and submit the

  required documentation. See § 18-1.3-603(2). Because the court

  made no such finding explicitly, the court erred.1

¶ 17   However, because the error is not substantial, this case is

  distinguishable from People v. Turecek, 2012 COA 59, and reversal

  is not warranted. In Turecek, the trial court gave the prosecution



                         ———————————————————————
  1 We acknowledge that there are circumstances in which an
  appellate court may infer that a trial court made a necessary
  finding. See, e.g., People v. Kyles, 991 P.2d 810, 819 (Colo. 1999)
  (inferring that the trial court made credibility findings during its
  analysis of a postconviction challenge to the voluntariness of a
  plea). Here, however, we opt not to draw such an inference, since
  neither the request nor the proposed order submitted by the
  prosecution references the statute or the extenuating circumstances
  standard.

                                     7
  ninety days to file a notice of restitution. Id. at ¶ 4. Instead,

  approximately nine months later, the prosecution filed a motion to

  impose restitution without explaining its delay or showing good

  cause for the delay. Id. at ¶ 5. The trial court then ordered the

  defendant to pay restitution without a finding of good cause. Id. at

  ¶ 6.

¶ 18     Here, in contrast, the prosecution requested an extension of

  time to request restitution and provided reasons supporting that

  request. Although the trial court did not make an explicit finding of

  extenuating circumstances, the prosecution’s request 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. These assertions were sufficient

  for a finding of extenuating circumstances to have been made.

  Therefore, the trial court’s failure to make such an explicit finding

  was not a substantial error because it does not cast serious doubt

  on the reliability of the restitution order.

¶ 19     Perez argues that the prosecution’s basis for seeking more

  time was unpersuasive, given that all the documentation predated


                                      8
  sentencing, and so no extenuating circumstances could have

  existed. However, because Perez failed to raise this issue before the

  trial court, there is no record that establishes when the prosecution

  received the documentation. Thus, again, the reliability of the

  judgment is not undermined.

                   C.    Disclosure of CVCB Records

¶ 20   Perez also argues that the trial court erred in relying on, but

  not fully disclosing, otherwise confidential CVCB records in

  determining proximate cause for the purpose of restitution. We

  disagree.

                           1.    Preservation

¶ 21   Perez contends that this issue was preserved by requests

  made for documents related to the CVCB’s payments to the victim.

  The People disagree. We agree with Perez that this issue was

  preserved.




                                    9
                          2.      Applicable Law

¶ 22   A compensation board’s records relating to a crime victim’s

  claims are confidential. § 24-4.1-107.5(2), C.R.S. 2014.2 “Any such

  materials shall not be discoverable unless the court conducts an in

  camera review of the materials sought to be discovered and

  determines that the materials sought are necessary for the

  resolution of an issue then pending before the court.” Id.

                            3.     Application

¶ 23   In accordance with section 24-4.1-107.5(3), Perez asserted

  that the CVCB records were necessary for the resolution of an issue

  pending before the trial court, that he was not the proximate cause

  of some of the victim’s injuries because “several people were kicking

  the victim in an assault,” and that this issue warranted an in

  camera review of the CVCB’s records by the trial court. The trial

  court then “reviewed in camera the victim’s compensation

  program’s file and all non-privileged billing information was

  provided to defense counsel.”



                          ———————————————————————
  2 This section of the crime victim compensation act was amended in

  its entirety, effective March 30, 2015. The prior version is
  applicable here.

                                     10
¶ 24   Perez now asserts that the trial court erred in “not disclosing

  to Perez all materials related to the CVCB’s payment to the victim.”

  (Emphasis added.) However, Perez’s argument is contrary to what

  was required under the statute at the time. The statute provided

  that confidential information contained within the file was

  discoverable if it was necessary to resolve an issue pending before

  the court. Id. Yet, nothing in the statute suggested that this

  exception abrogated other established privileges that had attached

  to the information. See People v. Turley, 870 P.2d 498, 502 (Colo.

  App. 1993) (finding that no exception to the physician-patient

  privilege exists in Colorado). Here, the court stated in its order that

  it provided defense counsel with all non-privileged information from

  the CVCB’s records. Because the statute in effect at the time did

  not require that the trial court disclose otherwise privileged

  information to the defendant in violation of the victim’s privilege

  rights,3 we perceive no error.




                       ———————————————————————
  3 The statute as amended in 2015 clarifies that the court may not

  release information contained in the records if it will violate
  privilege. § 24-4.1-107.5, C.R.S. 2018.

                                    11
                       D.    Due Process Violation

¶ 25   Lastly, Perez argues that the trial court’s failure to disclose

  confidential information from the CVCB’s records violated his right

  to due process. We disagree.

                             1.    Preservation

¶ 26   Perez also contends that this issue was preserved. The People

  disagree and argue that Perez failed to preserve this challenge to the

  restitution order. Perez never invoked the protections of due

  process in his arguments in the trial court. Therefore, we review

  this claim for plain error. Rediger, ¶ 40.

                            2.    Applicable Law

¶ 27   Due process is satisfied in a restitution hearing when the

  defendant receives notice of the factual basis for the order and an

  opportunity to contest that basis. United States v. Battles, 745 F.3d

  436, 461 (10th Cir. 2014); see also Rivera, 250 P.3d at 1275 (“A

  court may not order restitution without a hearing at which the

  prosecution must prove the amount of the victim’s loss and its

  causal link to the defendant’s conduct, and at which the defendant

  may contest those matters.”). However, in a different context, a

  division of this court has held that a defendant’s constitutional


                                     12
  right to due process does not override a claim of privilege. See

  People v. Zapata, 2016 COA 75M, ¶ 30 (holding that the defendant

  was not entitled to discovery or an in camera review of statements

  protected by the psychologist-patient privilege), aff’d, 2018 CO 82.

  Because no published case law clearly supports Perez’s right to

  obtain privileged documents, the trial court’s decision not to provide

  them, even if error, could not have been obvious.

                            III.   Conclusion

¶ 28   The restitution order is affirmed.

       JUDGE BERGER concurs.

       JUDGE TAUBMAN specially concurs.




                                    13
       JUDGE TAUBMAN, specially concurring.

¶ 29   Although I agree with the majority’s analysis and conclusion, I

  write separately to explain why this case illustrates inattentiveness

  by the prosecutor, defense counsel, and the trial court regarding

  the applicable restitution statutes. I also write to point out two

  ambiguities in those statutes which the General Assembly may wish

  to address.

                                I. Background

¶ 30   To facilitate understanding of my comments, I restate some of

  the applicable law contained in the majority opinion. First, every

  order of conviction for a felony “shall include consideration of

  restitution.” § 18-1.3-603(1), C.R.S. 2018. Second, if the trial court

  reserves its determination of restitution, restitution must be fixed

  within ninety-one days after the order of conviction, unless good

  cause is shown for extending that period. § 18-1.3-603(1)(b).

  Third, the trial court may extend the ninety-one day period “[i]f it

  finds that there are extenuating circumstances affecting the

  prosecution’s ability to determine restitution.” § 18-1.3-603(2).




                                    14
                  II. Inattentiveness to Statutory Provisions

                                A. Prosecution

¶ 31   As the majority notes, the time limits in section 18-1.3-603 are

  not jurisdictional. People v. Harman, 97 P.3d 290, 293 (Colo. App.

  2004). Nevertheless, even though the trial court reserved the

  determination of restitution for ninety days, the People did not move

  for an extension of time to request restitution until ninety-four days

  after the order of conviction, March 6, 2014.

¶ 32   When they did, the People did not invoke the statutory terms

  of “good cause” or “extenuating circumstances.” Instead they

  asserted: “Due to extensive and complex medical bills as well as the

  lost wages form received from victim [J.R.] on March 5, 2014;

  substantial and possible ongoing claims from crime victim

  compensation, the People request an additional [ninety] days to

  accumulate all proper documentation.” This statement did not

  explain why the People could not have considered the medical bills

  in the ninety-day period; why they were complex (Perez says they

  were not); and what efforts, if any, the People made to obtain the

  victim’s lost wages form within the ninety-day period.




                                    15
¶ 33   Further, section 18-1.3-603(2) provides that the prosecution

  shall present restitution information to the court before the order of

  conviction or within ninety-one days, if it is not available before the

  order of conviction. Accordingly, the People had an obligation to

  show why the information supporting their restitution request was

  not available before the order of conviction. Indeed, such a showing

  is a prerequisite to the trial court determining that extenuating

  circumstances affect the prosecutor’s ability to determine

  restitution before the order of conviction.

¶ 34   Finally, as noted, the People did not explicitly assert that the

  court should extend the deadline for presenting restitution

  information because extenuating circumstances affected their

  ability to determine the amount of restitution. See § 18-1.3-603(2).

                              B. Defense Counsel

¶ 35   As the majority notes, the trial court erred in not explicitly

  finding that there were extenuating circumstances to grant the

  prosecution additional time to get and submit required

  documentation to support its restitution request. However, defense

  counsel did not assert that the trial court erred in this regard,

  thereby making it more difficult for Perez to litigate this issue on


                                    16
  appeal. Similarly, defense counsel did not assert in the trial court

  that it should have found that no good cause existed to grant the

  People’s request for additional time to submit its documentation for

  each restitution request. Although a division has held in People v.

  Knoeppchen, 2019 COA 34, ¶ 25, ___ P.3d ___, ____, that no such

  explicit finding is required, certainly defense counsel’s position

  would have been stronger had he expressly asked the trial court to

  make a good cause determination.

¶ 36   Thus, without a trial court determination of either good cause

  or extenuating circumstances, little information in the record

  indicates that reversal is appropriate.

                              C. The Trial Court

¶ 37   As noted above, the trial court did not make an express

  finding of either good cause or extenuating circumstances.

  Although the good cause statute does not explicitly require such

  documentation by the trial court, the statute unequivocally requires

  a trial court to find extenuating circumstances to grant the

  prosecution more time to gather and submit the required

  documentation. Thus, even without a request by defense counsel




                                    17
  or the prosecution, the trial court should have realized that it was

  required to make a finding of extenuating circumstances.

¶ 38   In addition, in Meza v. People, 2018 CO 23, ¶ 14, 415 P.3d

  303, 308, the supreme court recognized that the trial court is

  authorized, but is not required, to make a finding regarding

  particular victims or losses of which the prosecution is aware, while

  reserving until a later date a finding with regard to other victims or

  losses. It seems clear that, under the circumstances presented, the

  prosecution had sufficient information to timely present to the court

  documentation regarding most of the victim’s medical expenses.

  Also, it appears that the prosecution could have determined the

  amount of the victim’s wage losses before the entry of the order of

  conviction. Thus, the trial court could have inquired of the

  prosecution whether it had sufficient information regarding some

  hospital bills and the victim’s wage losses before it entered the

  judgment of conviction.

                            III. Statutory Ambiguities

¶ 39   I note two statutory ambiguities where amended legislation

  might be helpful. First, the statutory language discussed above

  does not make clear what, if any, differences there are between


                                     18
  “good cause” and “extenuating circumstances.” Although those

  terms are similar, we presume that the General Assembly intended

  different meanings for these terms. People v. J.J.H., 17 P.3d 159,

  162 (Colo. 2001). For example, if the prosecutor had stated that he

  was busy litigating other cases and therefore needed more time to

  gather and submit restitution information, that explanation might

  have constituted “good cause” but may well have fallen short of

  constituting “extenuating circumstances.” Similarly, while not

  obtaining the victim’s wage loss form until the day before the filing

  of a request for additional time may have constituted “good cause,”

  such requests may not have constituted “extenuating

  circumstances” if no earlier request had been made to the victim for

  his wage loss form. Accordingly, the General Assembly may wish to

  revisit these two terms so that they are the same, or, if they are

  different, to explain how they are different.

¶ 40   Specifically, the General Assembly may wish to clarify section

  18-1.3-603(1)(b) to require the prosecution to make a showing of

  good cause before the trial court determines that the prosecution

  may be accorded additional time to present restitution information.

  Such clarification may be helpful because the Knoeppchen, ¶ 26,


                                    19
  ___ P.3d at ___, division held that a good cause determination may

  be made at a later date. Nevertheless, it makes sense to require the

  prosecution to submit its good cause explanation before the trial

  court grants it additional time to present its restitution information

  to the court.

¶ 41   Finally, I note that in imposing any time limit for the

  submission of restitution information, the General Assembly may

  wish to balance the interest in making a victim whole, on the one

  hand, against requiring the prosecution to promptly submit

  restitution information to the court before memories fade and

  evidence becomes stale, on the other. In any event, the General

  Assembly should recognize that a relatively small percentage of

  restitution assessed is actually collected. In fiscal year 2014

  through fiscal year 2018, the following percentages of state-wide

  restitution assessed were paid as of August 27, 2018 — 18.6, 22.2,

  16.1, 14.4, and 10.9. Colorado Judicial Branch, Annual Statistical

  Report: Fiscal Year 2018, at 115, 119 (2018). These statistics

  suggest that while making victims whole is a laudable goal, it will

  not often be achieved. This is likely to be the case whether trial




                                    20
  courts frequently or seldom grant prosecution requests for

  additional time to submit restitution information.

¶ 42   Notwithstanding these statistics, however, prosecutors,

  defense counsel, and trial courts should be attentive to the

  statutory requirements for prosecutors to obtain additional time to

  submit restitution information to the trial courts.




                                    21
