     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
                                                             August 23, 2018

                               2018COA123

No. 16CA2226, People v. Barbre — Criminal Law — Sentencing
— Restitution

     In this criminal restitution case, a division of the court of

appeals resolves the dispute between the parties about what

standard of review to apply. This appeal involves the issue of

whether the prosecution sufficiently proved at the restitution

hearing the amount of the victim’s loss proximately caused by the

defendant’s conduct. The division concludes that the appropriate

standard of review in this case is whether the evidence, both direct

and circumstantial, when viewed as a whole and in the light most

favorable to the prosecution, is sufficient to support the district

court’s ruling that the prosecution proved by a preponderance of

the evidence that the defendant caused $10,553.80 in loss to the
victim. Applying that standard of review, the division concludes

that the evidence was sufficient to affirm the restitution order.

     In resolving these issues, the division also analyzes the

historical use of the abuse of discretion standard in criminal

restitution appeals, and explains why that standard of review

should not be applied as broadly as it has in the past.
COLORADO COURT OF APPEALS                                      2018COA123


Court of Appeals No. 16CA2226
Arapahoe County District Court No. 15CR3360
Honorable Patricia D. Herron, Judge


The People of the State of Colorado,

Plaintiff-Appellee,

v.

Kress Nicole Barbre,

Defendant-Appellant.


                              ORDER AFFIRMED

                                  Division III
                       Opinion by JUDGE DAVIDSON*
                       Loeb, C.J., and Vogt*, J., concur

                         Announced August 23, 2018


Cynthia H. Coffman, Attorney General, Ellen M. Neel, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, David A. Kaplan, Deputy State
Public Defender, Centennial, Colorado, for Defendant-Appellant


*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2017.
¶1    Defendant, Kress Nicole Barbre, appeals the district court’s

 order awarding $10,553.80 in restitution to the victim pharmacy

 (the pharmacy). She contends that the prosecution did not

 sufficiently prove she caused that amount of loss. We disagree with

 defendant and affirm the district court’s decision. In doing so, we

 clarify that the appropriate de novo standard of review for the issue

 presented here is whether the evidence, both direct and

 circumstantial, when viewed as a whole and in the light most

 favorable to the prosecution, is sufficient to support the district

 court’s ruling that the prosecution proved by a preponderance of

 the evidence that defendant caused the amount of restitution

 awarded.

                             I. Background

¶2    While working at the pharmacy, defendant stole several types

 of prescription pain medication. She pleaded guilty to one count of

 theft and one count of possession of a controlled substance

 occurring over a nearly yearlong period. The district court

 sentenced her to two years of probation.

¶3    At the restitution hearing, an asset protection manager for the

 pharmacy testified regarding his investigation of the thefts. The


                                    1
 pharmacy’s automated system for tracking inventory was showing

 “negative adjustments,” in other words, missing pills. Over a

 seventeen-day period, the asset protection manager worked with the

 pharmacy manager to conduct daily counts of pills to determine the

 days on which pills were going missing.

¶4    The particular days that pills went missing during that

 seventeen-day period were the same days that defendant worked in

 the pharmacy. The asset protection manager reviewed surveillance

 videos from those days and observed defendant stealing medication.

¶5    The asset protection manager then confronted defendant with

 that evidence. Defendant admitted that she had been stealing

 medications and identified the particular types of medications she

 had been stealing. She also admitted that she had been stealing

 the medications for “a little over a year,” and that the number of

 pills she had stolen was “in the thousands.”

¶6    The asset protection manager then ran a report from the

 automated system reflecting the negative adjustments over the

 previous year for the types of medications that defendant had

 admitted to stealing. The asset protection manager created a

 spreadsheet listing each type of medication, the quantity of stolen


                                   2
 pills for each type, the wholesale price for each type of pill, and the

 total wholesale price for the entire quantity of stolen pills. That

 spreadsheet described by the asset protection manager during the

 restitution hearing appears to be the same spreadsheet submitted

 in the victim impact statement. According to the testimony at the

 restitution hearing and the spreadsheet submitted in the victim

 impact statement, the total wholesale price of those pills was

 $10,553.80. The total number of stolen pills listed in the victim

 impact statement spreadsheet was 5730.

¶7    During closing argument at the restitution hearing, defendant

 argued that the court should not order restitution for the entire

 one-year period, but instead should order restitution based only on

 the pills stolen during the seventeen-day period.

¶8    The district court ultimately concluded that the prosecution

 had met its burden of proving that defendant had caused

 $10,553.80 in loss to the pharmacy. The court specifically relied on

 defendant’s admission that she had stolen thousands of pills over a

 one-year period, and on the reliability of the pharmacy’s automated

 system for tracking inventory.




                                    3
                               II. Waiver

¶9     As an initial matter, we disagree with the People’s contention

  that defendant waived her current challenge to the restitution order

  because of a provision in the plea agreement. The provision at

  issue stated that restitution was “reserved, admit causation.” At

  the providency hearing, the district court confirmed with defendant

  that she was “admitt[ing] restitution as to causation, but an

  amount would be reserved to a later date.”

¶ 10   We note that the provision in the plea agreement is

  ambiguous, and could be read to mean defendant was admitting

  she caused any amount of loss the prosecution might later seek at

  the restitution hearing. Notably, defendant pleaded guilty to theft of

  items valued at $750 or more but less than $2000. See

  § 18-4-401(1)(a), (2)(e), C.R.S. 2017. Later, the prosecution sought

  $10,553.80 in restitution.

¶ 11   But defendant admitted that she caused certain losses but not

  others, and, therefore, the issue of causation cannot be divorced

  from the amount of loss awarded in restitution. Thus, on this

  record, we disagree with the People’s suggestion that the provision




                                    4
  in the plea agreement meant that defendant was stipulating to

  having caused $10,553.80 in loss to the pharmacy.

                             III. Preservation

¶ 12   We also disagree with the People’s argument that defendant

  did not preserve her appellate contention in the district court. In so

  arguing, the People cast defendant’s “causation argument” as

  distinct from her “challenge to the amount of restitution.” Again, in

  a case like this, the issue of causation is inextricably intertwined

  with the issue of the proper amount of restitution. Thus, we

  construe defendant’s contention on appeal as being the same

  argument she made in the district court — namely, that the

  prosecution did not sufficiently prove that she caused $10,553.80

  in loss to the pharmacy.

                         IV. Standard of Review

¶ 13   In terms of the appropriate standard of review, defendant

  argues that we should conduct a de novo sufficiency of the evidence

  review. See People v. Ortiz, 2016 COA 58, ¶ 26 (“[The] defendant

  challenges the sufficiency of the evidence [supporting the restitution

  order]. We review sufficiency challenges de novo, determining




                                     5
  whether the evidence is sufficient in both quality and quantity to

  satisfy the applicable burden of proof.”).

¶ 14   The People disagree and contend that we should review for an

  abuse of discretion. In doing so, they rely on two of the numerous

  Colorado Court of Appeals cases stating that district courts have

  broad discretion in determining the appropriate terms and

  conditions of restitution. Indeed, many other Colorado Court of

  Appeals cases, for decades and to date, state generically that

  restitution orders are reviewed for an abuse of discretion. See, e.g.,

  People v. Henry, 2018 COA 48M, ¶ 12; People v. Quinonez, 701 P.2d

  74, 75 (Colo. App. 1984), aff’d in part and rev’d in part on other

  grounds, 735 P.2d 159 (Colo. 1987). However, the People do not

  cite, nor could we find, a Colorado Supreme Court opinion making

  that same general statement that criminal restitution orders are

  reviewed for an abuse of discretion.

¶ 15   Based on our research, we conclude that the district court’s

  determination in this case that defendant owed $10,553.80 in

  restitution was not a discretionary ruling subject to an abuse of

  discretion review. In reaching this conclusion, and because case

  law supports both defendant’s and the People’s positions, it is


                                     6
  instructive to review the statutory evolution of criminal restitution

  determinations in Colorado.

¶ 16   For decades before 1977, a district court’s decision whether to

  order restitution as part of a probationary sentence was entirely

  discretionary. See § 16-11-204(2)(e), C.R.S. 1973 (A court “may”

  require that the defendant make restitution.); § 39-16-7, C.R.S.

  1963 (same); § 39-16-7, C.R.S. 1953 (same).

¶ 17   In 1977, the General Assembly amended the restitution

  statute to require restitution as part of a probationary sentence.

  See Ch. 216, secs. 5-6, §§ 16-11-204(1), -204.5(1), 1977 Colo. Sess.

  Laws 863-64. In People v. Smith, 754 P.2d 1168 (Colo. 1988), the

  supreme court discussed that statutory amendment and concluded

  that the new statutory language “does not leave the question of

  restitution in the discretion of the trial court, but instead

  unequivocally requires that ‘restitution shall be ordered by the

  court as a condition of probation.’” Id. at 1171 (quoting

  § 16-11-204.5(1)); see also Cumhuriyet v. People, 200 Colo. 466,

  468-69 & n.2, 615 P.2d 724, 725-26 & n.2 (1980) (interpreting the

  pre-1977 version of the statute, but explaining in a footnote that




                                     7
  under the new statute “[r]estitution is . . . a required condition of

  probation”).

¶ 18   In practice, though, district courts retained significant

  discretion after the 1977 amendment because of new statutory

  provisions allowing courts to reduce restitution based on a

  defendant’s ability to pay, and to waive restitution entirely if it

  would impose an undue hardship on the defendant or his family.

  See 1977 Colo. Sess. Laws at 863-64.

¶ 19   However, by 1996, the General Assembly had deleted those

  provisions. See Ch. 288, sec. 4, § 16-11-204.5(1), 1996 Colo. Sess.

  Laws 1778; Ch. 139, sec. 1, § 16-11-204.5(1), 1985 Colo. Sess.

  Laws 628.

¶ 20   Now, under the statutory scheme, every order of conviction of

  a felony, misdemeanor, petty offense, or traffic misdemeanor offense

  “shall” include an order imposing restitution based on the victim’s

  pecuniary loss proximately caused by the defendant’s conduct.

  §§ 18-1.3-602(3)(a), -603(1), C.R.S. 2017; see also

  § 18-1.3-601(1)(b), C.R.S. 2017 (Defendants have an “obligation to

  make full restitution to those harmed by their misconduct.”).

  Further, a statute applicable to probationary sentences provides:


                                      8
  “As a condition of every sentence to probation, the court shall order

  that the defendant make full restitution . . . .” § 18-1.3-205, C.R.S.

  2017 (emphasis added).

¶ 21   Consequently, informed by this legislative history, we conclude

  that a general statement that restitution orders are reviewed for an

  abuse of discretion does not comport with the current statutory

  scheme. Indeed, in some cases, such a general statement could

  detract from appropriate legal analysis.

¶ 22   Even the somewhat more specific rule cited by the People —

  that a district court has discretion to determine the appropriate

  “terms and conditions” of restitution — is too broad. For example,

  in Roberts v. People, 130 P.3d 1005, 1006-10 (Colo. 2006), the

  supreme court clarified that a district court has discretion to decide

  an appropriate rate of prejudgment interest, but that the rate of

  postjudgment interest is mandated by section 18-1.3-603(4)(b)(I).

¶ 23   And, although it can be said that a court abuses its discretion

  if it misconstrues or misapplies the law, it seems inappropriate to

  use the term “discretion” in describing the appropriate standard of

  review, for example, in a case where the sole issue is the proper

  interpretation of the restitution statute. See Dubois v. People, 211


                                    9
  P.3d 41, 43 (Colo. 2009) (in interpreting a provision in the

  restitution statute, the supreme court did not use the term

  “discretion” in describing the standard of review, but instead stated

  that the proper interpretation of a statute is reviewed de novo).

¶ 24   Consequently, because in restitution cases, the statutory

  scheme no longer allows for abuse of discretion as the default

  standard of review, the appropriate standard of review necessarily

  will depend on which of a wide variety of restitution issues district

  courts decide and we are asked to review. Accordingly, the practice

  of applying the same standard of review in all such cases should be

  discarded and courts should proceed with caution and make sure

  to apply the appropriate standard of review in any particular subset

  of restitution cases.

¶ 25   As to the particular issue here, defendant challenges on

  appeal the district court’s conclusion that the prosecution proved

  by a preponderance of the evidence that she caused $10,553.80 in

  loss to the pharmacy. That is a challenge to the sufficiency of the

  evidence. Consequently, we conclude that the appropriate standard

  is to review de novo whether the evidence, both direct and

  circumstantial, when viewed as a whole and in the light most


                                    10
  favorable to the prosecution, establishes by a preponderance of the

  evidence that the defendant caused that amount of loss. See Clark

  v. People, 232 P.3d 1287, 1291 (Colo. 2010); Ortiz, ¶ 26.

¶ 26   In so concluding, we caution that we are not saying this

  standard of review applies in every appeal where the proper amount

  of restitution is at issue. The standard of review we apply in this

  case may not apply, for example, in a case in which the central

  issue is how to value a unique piece of stolen property. See

  § 18-1.3-602(3)(a) (A district court must decide whether the victim’s

  pecuniary loss can be “reasonably” calculated.).

                               V. Analysis

¶ 27   The central issue presented regarding the merits is whether it

  was appropriate to award restitution based on the evidence of

  defendant’s thefts during the one-year period, or whether

  restitution should have been limited to defendant’s thefts during

  the seventeen-day period.

¶ 28   Many of defendant’s arguments on appeal relate to the

  quantity and quality of evidence needed to support a restitution

  order. To be sure, the evidence of defendant’s thefts during the

  seventeen-day period was strong. That evidence included that pills


                                    11
  were stolen only on the particular days that defendant had worked

  in the pharmacy, and that the asset protection manager witnessed

  defendant stealing on the surveillance videos.

¶ 29   However, contrary to defendant’s suggestion on appeal, the

  prosecution did not have to present that quantity and quality of

  evidence to meet the preponderance of the evidence standard for the

  entire one-year period. For example, we disagree with defendant’s

  reliance on Ortiz for the proposition that “first-hand knowledge”

  that the defendant caused the victim’s loss — such as seeing

  defendant stealing on the surveillance videos — is necessary to

  meet the preponderance of the evidence standard.

¶ 30   “A fact is established by a preponderance of the evidence

  when, upon consideration of all the evidence, the existence of that

  fact is more probable than its nonexistence.” People v. Garner, 806

  P.2d 366, 370 (Colo. 1991).

¶ 31   Viewing the direct and circumstantial evidence in the light

  most favorable to the prosecution, we conclude that the district

  court did not err in determining that the prosecution had proven by

  a preponderance of the evidence that defendant caused $10,553.80

  in loss to the pharmacy during the entire one-year period.


                                   12
¶ 32   One of the most important pieces of evidence, of course, is

  defendant’s own admission that she had been stealing medications

  “for a little over a year.” She also admitted to the particular

  medications she had been stealing. The asset protection manager

  limited his inquiry and calculations to only those medications,

  limited his inquiry to the previous one-year period although

  defendant admitted that she had been stealing for “a little over a

  year,” and used the wholesale prices of the medications rather than

  their retail prices.

¶ 33   Defendant also admitted that the total number of pills she had

  stolen was “in the thousands.” Notably, the spreadsheet detailed

  the total number of pills of each medication that defendant had

  admitted to stealing, and the sum of those numbers is 5730, a

  number in the thousands.

¶ 34   The spreadsheet created by the asset protection manager was

  based on the pharmacy’s automated system for tracking inventory

  for each type of medication. Evidence at the restitution hearing

  indicated that the automated system was reliable. The system

  automatically tracked the inventory of pills for each medication —

  when a pharmacy employee filled a prescription for a customer, that


                                    13
  number of pills was automatically deducted from the system. There

  was also a regular process for excluding from the automated system

  issues such as pills being broken, damaged, or dropped on the

  floor. The pharmacy conducted manual counts of pills on a regular

  basis as part of its normal course of business, to verify that the

  information in the automated system was accurate. The asset

  protection manager received automated reports whenever there was

  a negative adjustment between the results of the hand counts and

  the inventory reflected in the automated system. Because the pills

  were located in a secure area of the pharmacy only accessible by

  certain employees, the negative adjustments in the automated

  system were likely the result of theft by one of those employees.

¶ 35   Defendant faults the pharmacy for being unable to prove — for

  the entire one-year period — that the thousands of pills went

  missing on the precise days that she had worked in the pharmacy.

  Under the circumstances, such evidence was not necessary to meet

  the preponderance of the evidence standard. Notably, though, the

  asset protection manager testified that he believed defendant had

  been a full-time employee in the pharmacy during that entire one-

  year period. Further, there was no indication that anyone else in


                                    14
  that pharmacy had been stealing medications, and there were no

  negative adjustments in the automated system for the period after

  defendant was caught.

¶ 36   All of this evidence, viewed in the light most favorable to the

  prosecution, is sufficient to affirm the restitution order.

¶ 37   In arguing the contrary, defendant attempts to analogize the

  facts of this case to the facts of several other cases. For example, in

  Cumhuriyet v. People, 200 Colo. 466, 615 P.2d 724 (1980), the

  defendant was caught attempting to make a purchase with a credit

  card that did not belong to her. The issue presented was whether

  she could be held liable for restitution for another purchase made

  at a different store earlier the same day with the same credit card.

  The supreme court held that the evidence was insufficient that she

  had made the earlier purchase. Id. at 469, 615 P.2d at 726.

¶ 38   The facts in Cumhuriyet would be somewhat similar to this

  case if it weren’t for defendant’s admissions that she had been

  stealing medications for a little over a year and that she had stolen

  thousands of pills. Given those admissions, defendant’s reliance on

  Cumhuriyet is unpersuasive.




                                     15
¶ 39   Defendant also cites People v. Borquez, 814 P.2d 382 (Colo.

  1991), in which the supreme court noted that the defendant was

  ordered to pay restitution based on “an extensive list of items” that

  she herself had admitted stealing. Id. at 383. However, the court in

  Borquez was not addressing the quality or quantity of evidence

  needed to meet the preponderance of the evidence standard, and a

  defendant’s express admission regarding the precise items that she

  had stolen is not necessary to meet the preponderance of the

  evidence standard.

¶ 40   Defendant also relies on United States v. Ferdman, a case in

  which the Tenth Circuit held that a victim’s letter estimating its

  expenses incurred in investigating the defendant’s fraud was too

  speculative to support a restitution award. See 779 F.3d 1129,

  1134, 1140 (10th Cir. 2015). As an initial matter, we question

  defendant’s reliance on a case applying a federal statute, given

  Colorado case law holding that, under Colorado law, an award of

  restitution may be based solely on a victim impact statement. See,

  e.g., Ortiz, ¶ 28; People v. Hill, 296 P.3d 121, 126 (Colo. App. 2011);

  see also § 18-1.3-603(2). Regardless, the evidence indicates that

  the information in the asset protection manager’s spreadsheet was


                                    16
  not based on estimates, but instead reflected the precise number of

  stolen pills for each type of medication that defendant had admitted

  to stealing.

                            VI. Conclusion

¶ 41   The order is affirmed.

       CHIEF JUDGE LOEB and JUDGE VOGT concur.




                                   17
