v. Sosa

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
December 12, 2019

2019COA182

No. 17CA2225, People v. Sosa — Criminal Law — Sentencing —

Restitution

A division of the court of appeals concludes — as a matter of

first impression, and as an extension of the rationale in Cowen v.

People, 2018 CO 96 — that Colorado’s restitution statutes do not

authorize a trial court to order a defendant to pay restitution for

pecuniary losses caused by conduct for which a defendant was

never criminally charged.

Because defendant was ordered to pay restitution for losses

arising from conduct for which she was not charged, the division

reverses the restitution order as it applies to defendant and

remands the case to the district court for further proceedings.
COLORADO COURT OF APPEALS 2019COA182

Court of Appeals No. 17CA2225
Pueblo County District Court No. 16CR2039
Honorable Thomas B. Flesher, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Alicia Sherie Sosa,

Defendant-Appellant.

ORDER REVERSED AND CASE
REMANDED WITH DIRECTIONS

Division III
Opinion by JUDGE BROWN
Furman and Davidson*, JJ., concur

Announced December 12, 2019

Philip J. Weiser, Attorney General, Erin K. Grundy, Assistant Attorney General,
Denver, Colorado, for Plaintiff-Appellee

Patricia Jo Stone, P.C., Jay C. Fisher, Parker, 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. 2019.
¶1 Defendant, Alicia Sherie Sosa, appeals from the district court’s

order imposing restitution. As a matter of first impression, and as

an extension of the rationale in Cowen v. People, 2018 CO 96, we

conclude that Colorado’s restitution statutes do not authorize a trial

court to order a defendant to pay restitution for pecuniary losses

caused by conduct for which a defendant was never criminally

charged. Because Sosa was ordered to pay restitution for losses

arising from conduct for which she was not charged, we reverse the

restitution order as it applies to Sosa and remand the case to the

district court for further proceedings.

I. Background

¶2 At approximately 1 a.m. on February 28, 2016, two men were

injured and one man was killed during a drive-by shooting at the

Iron Horse Bar in Pueblo. Police identified Angelo Salas and

Timothy Trujillo as the primary suspects and issued warrants for

their arrest.

¶3 During the investigation, police learned that Sosa was Salas’s

girlfriend. About a week after the shooting, police located Sosa’s

rental car and conducted a traffic stop. Salas was inside and was

1
 arrested. The officers also identified Trujillo in a car stopped just

behind Sosa’s during the traffic stop. Trujillo was also arrested.

¶4 In a subsequent interview, Sosa admitted that she knew there

was an outstanding warrant for the men and that she had been

camping out with them since the shooting.

¶5 Sosa was charged with accessory to the crime of first or

second degree murder. To facilitate a plea agreement, the

prosecution added a second count of accessory to second degree

murder heat of passion. Sosa pleaded guilty to the second count,

and the first count was dismissed. As part of the plea agreement,

Sosa acknowledged that she would be ordered to pay restitution

and that the dismissed count would be considered for sentencing

and restitution purposes. The court sentenced her to ninety days

in jail followed by three years of supervised probation.

¶6 The prosecution moved the court to order Sosa to pay

restitution, including $25,253.82 to the Victim Compensation Fund

and $5562.70 to the claimant for the deceased victim. The

prosecution asked that Sosa be ordered to pay restitution jointly

and severally with her co-defendants: Salas, Trujillo, and Trujillo’s

girlfriend. The requested restitution included the shooting victims’

2
 medical bills and lost wages, the deceased’s funeral costs and

outstanding rent and utility bills, and travel expenses related to the

deceased’s funeral. The court granted the motion in full.

¶7 Sosa timely objected to the amount of the restitution order.

The court held a hearing, denied Sosa’s objections, and stood on its

prior restitution order.

¶8 Sosa appeals.

¶9 After the opening brief was filed, the Colorado Supreme Court

announced Cowen, which held that “Colorado’s restitution statutes

do not allow a trial court to impose restitution for pecuniary losses

caused by conduct that formed the basis of a charge of which the

defendant has been acquitted.” Cowen, ¶ 2. Although the supreme

court expressly declined to consider whether a defendant could be

ordered to pay restitution for losses caused by uncharged conduct,

id. at ¶ 8 n.3, we ordered the parties to file supplemental briefs to

address the impact of Cowen, if any, on Sosa’s appeal.

II. Analysis

A. Standard of Review

¶ 10 In her opening brief, Sosa contends that the district court

abused its discretion by ordering her to pay joint and several

3
 restitution for the shooting victims’ losses because she was not the

proximate cause of those losses. We review a district court’s

restitution order for an abuse of discretion. See People v. Henry,

2018 COA 48M, ¶ 12. A court abuses its discretion where its

decision misconstrues or misapplies the law, or is manifestly

arbitrary, unreasonable, or unfair. Id.

¶ 11 In her supplemental brief, Sosa argues that the district court’s

restitution order is not authorized by Colorado’s restitution

statutes. Whether a trial court has authority to impose restitution

for losses suffered as a result of uncharged conduct is a question of

law that we review de novo. Cf. Cowen, ¶ 11 (“[W]e agree with the

parties that whether a trial court has authority to impose

restitution for losses suffered as a result of acquitted conduct is a

question of law.”). We also review questions of statutory

construction de novo. Id.

B. Rules of Statutory Interpretation

¶ 12 When interpreting statutes, our primary goal is to ascertain

and give effect to the legislative intent. Id. at ¶ 12. To do so, we

look first at the language of the statute, giving words and phrases

4
 their plain and ordinary meanings, Henry, ¶ 14, if the language is

clear and unambiguous, Cowen, ¶ 12.

¶ 13 In applying the plain meaning of a statute, we must give

consistent effect to all its parts and construe each provision in

harmony with the overall statutory design. Id. at ¶ 13. When a

statutory term is undefined, we construe it in accordance with its

ordinary meaning. Id. at ¶ 14.

C. The Law of Restitution

¶ 14 Restitution must be considered as a part of every criminal

conviction. § 18-1.3-603(1), C.R.S. 2019; People v. Stotz, 2016 COA

16, ¶ 86. “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.” People v. Rivera,

250 P.3d 1272, 1274 (Colo. App. 2010). The restitution statute

recognizes that “victims endure undue suffering and hardship

resulting from . . . emotional and psychological injury” and that

“[p]ersons found guilty of causing such suffering and hardship

should be under a moral and legal obligation to make full

restitution to those harmed by their misconduct.” § 18-1.3-

601(1)(a), (b), C.R.S. 2019.

5
¶ 15 Restitution means “any pecuniary loss suffered by a victim

[that is] proximately caused by an offender’s conduct and that can

be reasonably calculated and recompensed in money.” § 18-1.3-

602(3)(a), C.R.S. 2019. “Proximate cause in the context of

restitution is defined as a cause which in natural and probable

sequence produced the claimed injury and without which the

claimed injury would not have been sustained.” Rivera, 250 P.3d at

1274. “A defendant may not be ordered to pay restitution for losses

that did not stem from the conduct that was the basis of the

defendant’s conviction.” Id.

D. The District Court Lacked Authority to Order Restitution for
Losses Caused by Conduct for Which Sosa Was Not Charged

1. We Extend Cowen to Prohibit Restitution for Losses
Proximately Caused by Uncharged Conduct

¶ 16 The Colorado Supreme Court recently held that Colorado’s

restitution statutes do not allow a trial court to impose restitution

for pecuniary losses caused by conduct that formed the basis of a

charge of which the defendant has been acquitted. Cowen, ¶ 2. We

conclude that the court’s rationale is easily extended to preclude

imposition of restitution for pecuniary losses caused by conduct for

which the defendant was never criminally charged.

6
¶ 17 In Cowen, the defendant wrote two bad checks to a truck

repair shop, one for $9327.65 and another for $13,158.00. Id. at

¶ 3. He was charged with two counts of fraud by check — one

count for each check — but was convicted only of the charge related

to the first check. Id. at ¶ 5. The jury acquitted him of the charge

related to the second check. Id.

¶ 18 Following a hearing, the trial court ordered the defendant to

pay restitution of $22,485.65, the full amount of both checks. Id.

at ¶ 6. The trial court acknowledged that the defendant had been

acquitted of the charge related to the second check, but nonetheless

found “by far more than a preponderance of the evidence” that the

defendant had written both checks knowing he had insufficient

funds to cover them. Id.

¶ 19 Relying on a long line of cases holding that a criminal

conviction establishing a defendant’s culpability is not required to

impose restitution, see, e.g. People v. Ortiz, 2016 COA 58, ¶ 16, a

division of the court of appeals affirmed the restitution order in an

unpublished decision, reasoning that the restitution statutes define

a victim in relation to a defendant’s conduct, “not the charge of

which the defendant was convicted.” Cowen, ¶ 7 (quoting People v.

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 Cowen, slip op. at ¶ 8 (Colo. App. No. 14CA2354, Nov. 23, 2016)

(not published pursuant to C.A.R. 35(e))). The division concluded

that, if the underlying conduct proximately causes a victim’s loss,

restitution is appropriate. See id. Because the trial court found

that the defendant’s conduct proximately caused $22,485.65 in

losses to the victim repair shop, the division upheld the restitution

order. See id.

¶ 20 Based on its interpretation of Colorado’s restitution statutes,

however, the supreme court reversed. Id. at ¶ 42. The court first

acknowledged the legislative declaration that all victims of crime

“endure undue suffering and hardship” and that individuals “found

guilty of causing such suffering and hardship should be under a

moral and legal obligation to make full restitution to those harmed

by their misconduct.” § 18-1.3-601(1)(a), (b) (emphasis added);

Cowen, ¶ 18. The court continued:

Consistent with this proclamation, section 603
provides that “[e]very order of conviction of a
felony, misdemeanor, petty, or traffic
misdemeanor offense . . . shall include
consideration of restitution.” § 18-1.3-603(1),
C.R.S. (2018) (emphasis added). As relevant
here, section 602 defines “conviction” as “a
verdict of guilty by a judge or jury or a plea of
guilty or nolo contendere that is accepted by

8
 the court for a felony, misdemeanor, petty
offense, or traffic misdemeanor offense.” § 18-
1.3-602(2), C.R.S. (2018) (emphases added).

Cowen, ¶ 18. Reading these provisions together, the court

concluded that “[t]he legislature clearly meant to limit restitution

liability to individuals found guilty of causing injury or property loss

that resulted in suffering or hardship to victims harmed by their

misconduct.” Id. at ¶ 19.

¶ 21 The court then considered the definitions of “restitution” —

“any pecuniary loss suffered by a victim . . . proximately caused by

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

recompensed in money,” § 18-1.3-602(3)(a) (emphasis added) — and

“victim” — “any person aggrieved by the conduct of an offender,”

§ 18-1.3-602(4)(a) (emphasis added). In each instance, the

legislature tied the definition to the conduct of an offender.

¶ 22 Giving the word “offender” its plain and ordinary meaning in

the definitions of “restitution” and “victim,” the court concluded

that the legislature did not intend to empower
trial courts to order someone acquitted of a
charge to pay restitution for losses caused by
the conduct underlying that charge. When an
individual is acquitted of a charge, he cannot
be deemed an “offender” because he is by
definition not a person who committed the

9
 crime charged. It follows that the conduct on
which the charge was based cannot constitute
the “conduct of an offender.” Nor can the
victim named in the acquitted charge be
considered a person aggrieved by the “conduct
of an offender.”

Cowen, ¶ 21.

¶ 23 The court also rejected the People’s proposed statutory

construction in part because it raised due process concerns. The

court confirmed “it is now axiomatic that the presumption of

innocence applies to each crime charged” and that a defendant

retains the presumption of innocence with respect to a charge for

which he is acquitted regardless of whether he is found guilty of a

different charge. Id. at ¶ 38.

To hold otherwise would be tantamount to
declaring that when the jury finds a defendant
guilty of one charge and not guilty of another,
the trial court may nevertheless consider the
defendant guilty of the acquitted charge by a
less demanding standard of proof. That would
be nonsensical even in the context of
restitution. Thus, we are convinced that, to
comport with procedural due process,
restitution must be prohibited for losses
resulting from conduct of which a defendant
has been acquitted and as to which he retains
the presumption of innocence.

10
 Id.; cf. Nelson v. Colorado, 581 U.S. ___, ___, 137 S. Ct. 1249, 1256

(2017) (“Colorado may not presume a person, adjudged guilty of no

crime, nonetheless guilty enough for monetary exactions.”).

¶ 24 Although the supreme court declined to consider whether a

restitution award may include losses caused by uncharged conduct,

Cowen, ¶ 8 n.3, we conclude that its rationale can be extended to

answer the question in the negative.

¶ 25 Again, restitution means “any pecuniary loss suffered by a

victim” that was “proximately caused by an offender’s conduct” and

“can be reasonably calculated and recompensed in money.” § 18-

1.3-602(3)(a) (emphasis added). To be a victim for purposes of

restitution, one must be “aggrieved by the conduct of an offender.”

§ 18-1.3-602(4)(a) (emphasis added).

¶ 26 When an individual is not charged with a crime, she cannot be

found guilty of (or plead guilty to) that crime. She cannot be

deemed an “offender” because she “is by definition not a person who

committed the crime charged.” See Cowen, ¶ 21. It follows that

conduct for which an individual is never criminally charged cannot

be deemed the “conduct of an offender,” nor can any person be

considered a victim as to that conduct. See id. Because a court

11
 may only order restitution for losses “proximately caused by an

offender’s conduct,” § 18-1.3-602(3)(a), no court may order

restitution for losses proximately caused by conduct for which a

person is not criminally charged.

¶ 27 This is so regardless of whether the individual was charged

with and found guilty of a separate crime. Due process demands

that she retain the presumption of innocence with respect to

conduct for which she is not charged. See Cowen, ¶ 38. To hold

otherwise would be tantamount to declaring that when a jury finds

a defendant guilty of one charge, a trial court may find her guilty of

any number of other uncharged crimes and by a less demanding

standard of proof. That would be “nonsensical” in any context,

including in the context of restitution. See id. Thus, we are

convinced that, to comport with procedural due process, restitution

must be prohibited for losses resulting from conduct for which an

individual has not been criminally charged and as to which she

retains the presumption of innocence.

¶ 28 Our holding today raises the following question: How does this

rule apply to dismissed charges? Unlike uncharged conduct, a

dismissed charge is based on conduct for which an individual has

12
 been criminally charged. But like uncharged conduct, when a

charged count is dismissed, an individual cannot be found guilty of

(or plead guilty to) that crime. She cannot be deemed an “offender”

as to the dismissed count, the conduct underlying the dismissed

count cannot be deemed the “conduct of an offender,” and no

person can be considered a victim as to that conduct. See id. at

¶ 21. And she retains the presumption of innocence as to the

dismissed count. See id. at ¶ 38. Thus, for the same reasons

articulated above, no court may order restitution for losses

proximately caused by conduct underlying a dismissed charge.

Due process so requires.

¶ 29 To be clear, this holding does not prevent the prosecution and

the defense from entering into a plea agreement pursuant to which

dismissed or uncharged counts will be considered for purposes of

restitution. See People v. Borquez, 814 P.2d 382, 384-85 (Colo.

1991) (approving restitution order based on uncharged offenses

because “Borquez acknowledged her criminal conduct and the

resulting pecuniary loss incurred by [the victim] in several written

statements and defense counsel tacitly admitted that the plea

agreement was based upon a series of thefts”); People in Interest of

13
 A.V., 2018 COA 138M (affirming restitution order based on

dismissed counts where defendant “and his attorney signed the

written plea agreement in which he stipulated to a factual basis and

agreed to pay restitution to the victims of the dismissed counts”).

¶ 30 We recognize that a defendant may receive the benefit of

avoiding trial, pleading guilty to fewer or different offenses, and

receiving a reduced sentence in exchange for making full restitution

to those harmed by her conduct. Both sides ought to be free to

leverage restitution as part of a fair disposition of the case. And

when a defendant agrees to make restitution for losses stemming

from uncharged conduct or dismissed counts, she is bound by that

agreement. See People v. Quinonez, 735 P.2d 159, 164 (Colo. 1987)

(“Where a defendant agrees to make restitution at the time of

entering a plea, he cannot later disavow the agreement on the basis

that there was no showing that he had caused the victim’s injury.”),

superseded by statute on other grounds as stated in Dubois v.

People, 211 P.3d 41 (Colo. 2009).

14
 2. Sosa Cannot Be Ordered to Pay Restitution for Losses
Proximately Caused by the Shooting

¶ 31 Sosa originally was charged with accessory to the crime of

murder in the first or second degree. The complaint and

information specifically alleged that

[b]etween and including February 28, 2016
and March 7, 2016, Alicia Sheri Sosa
unlawfully and feloniously rendered assistance
to Timothy Trujillo, with intent to hinder,
delay, or prevent the discovery, detection,
apprehension, prosecution, conviction, or
punishment of Timothy Trujillo for the
commission of a crime, knowing that person
committed the crime of Murder in the First or
Second Degree, C.R.S. 18-3-102 or 18-3-103, a
class 1 or 2 felony; in violation of section 18-8-
105(1), (3), C.R.S.

To facilitate a plea, the prosecution added a second count of

accessory to the crime of second degree murder heat of passion,

which alleged that

on or about the 28th day of February, A.D.
2016 through the 7th day of March, A.D.
2016, at the said County of Pueblo in the State
of Colorado, ALICIA SHERI SOSA unlawfully
and feloniously rendered assistance to Angelo
Salas, with intent to hinder, delay, or prevent
the discovery, detection, apprehension,
prosecution, conviction, or punishment of
Angelo Salas for the commission of a crime,
knowing that person committed the crime of
Second Degree Murder Heat of Passion, C.R.S.

15
 18-3-103(1), (3)(b), a class 3, 4, or 5 felony; in
violation of section 18-8-105(1), (5), C.R.S.

The added count is necessary to facilitate the
Plea Agreement reached by the parties.

Sosa pleaded guilty to the second count and the prosecution

dismissed the first count.

¶ 32 “A person is an accessory to crime if, with intent to hinder,

delay, or prevent the discovery, detection, apprehension,

prosecution, conviction, or punishment of another for the

commission of a crime, he renders assistance to such person.”

§ 18-8-105(1), C.R.S. 2019; see also § 18-8-105(5) (“Being an

accessory to crime is a class 5 felony if the offender knows that the

person being assisted has committed . . . a crime . . . .”) (emphasis

added). By its plain language, the offense of accessory describes

conduct that occurs after some underlying crime has already been

committed by another person.

¶ 33 Being an accessory to a crime is different from being a

complicitor to a crime because “[w]hen codefendants are

participants and complicitors in ‘the same criminal acts,’ each is

responsible for the damage he or she caused and also for the

damage caused by the other during the commission of the crime.”

16
 People in Interest of D.I., 2015 COA 136, ¶ 15 (The obligation to pay

restitution “may extend to complicitors, who are equally culpable

for the underlying conduct of the offense.”). Conversely, an

accessory “renders aid” after the commission of a crime by another

person; thus, the criminal conduct forming the basis of an

accessory’s conviction is not the same criminal conduct as that of

the person who committed the underlying crime. It is a separate

and distinct offense based on the accessory’s own after-the-fact

conduct.

¶ 34 Sosa was charged with and pleaded guilty to being an

accessory to the crime of second degree murder heat of passion. By

definition, the conduct for which Sosa was criminally charged was

her assistance to Salas and Trujillo after the shooting. Sosa was an

“offender” only as to the accessory crime. Consequently, the district

court was authorized to order Sosa to pay restitution only for losses

proximately caused by her conduct in rendering aid after the

shooting.

¶ 35 Said another way, Sosa was not charged with and did not

plead guilty to any crime based on conduct she engaged in before or

as a participant in the shooting. Because she was not charged with

17
 a crime based on such conduct, she has not been found guilty of,

nor did she plead guilty to, a crime based on such conduct. And

she cannot be deemed an “offender” as to any uncharged crime.

¶ 36 Consequently, the district court was not authorized to order

Sosa to pay restitution for losses proximately caused by the

shooting. To hold otherwise would allow the district court to find

Sosa guilty of and punish her for an uncharged crime by a

preponderance of the evidence, a result procedural due process

cannot tolerate.

¶ 37 The restitution order included the shooting victims’ medical

bills and lost wages, the deceased’s funeral costs and outstanding

rent and utility bills, and travel expenses related to the deceased’s

funeral. These losses were proximately caused by the shooting, not

by Sosa’s conduct in delaying Salas’s and Trujillo’s arrests. These

losses would have been sustained regardless of Sosa’s involvement

after the shooting. The district court was not authorized by the

restitution statutes to include such losses in an order of restitution

against Sosa. Accordingly, its order is erroneous as a matter of law

and constitutes an abuse of discretion. We reverse the district

court’s restitution order and remand for further proceedings.

18
 3. The Prosecution’s Remaining Arguments are Unpersuasive

¶ 38 The prosecution argues that requiring Sosa to pay restitution

for losses caused by conduct for which she was not criminally

charged does not violate her right to procedural due process in this

case because (1) the district court found that the losses were

proximately caused by Sosa’s conduct; and (2) Sosa “waive[d] any

objection to proximate cause by agreeing to pay the victim’s

restitution on dismissed acts.”

¶ 39 First, the prosecution asserts there is evidence in the record

that Sosa assisted Salas and Trujillo on the day of the shooting by

collecting a bag of guns from a codefendant’s house. Thus, the

prosecution argues there is evidence to support the district court’s

finding that Sosa’s conduct proximately caused the pecuniary

losses included in the restitution order. But the evidence cited by

the prosecution does not support that contention. The shooting

happened around 1 a.m. on February 28, 2016. The cited record

evidence suggests Sosa assisted Salas and Trujillo later that same

day (i.e., after the shooting) by collecting a bag of guns.

¶ 40 Even so, because Sosa failed to provide a transcript of the

restitution hearing, we must presume that the record supports the

19
 district court’s proximate cause finding. See People v. Wells, 776

P.2d 386, 390 (Colo. 1989) (“The presumption is that material

portions omitted from the record would support the judgment.”). If

a defendant intends to urge on appeal that a finding is not

supported by the record or contrary to the evidence, she must

include in the record a transcript of all evidence relevant to such

finding. People v. Duran, 2015 COA 141, ¶ 12. So, we will not

disturb the district court’s finding of fact.

¶ 41 But even if the district court found (as a matter of fact by a

preponderance of the evidence) that Sosa proximately caused the

losses claimed as restitution by assisting Salas and Trujillo before

or during the shooting, its order cannot stand as a matter of law

because Sosa was not charged with (or convicted of) a crime based

on such conduct.

¶ 42 Second, based on the plea agreement, the prosecution argues

that Sosa agreed to “make restitution for the first degree murder.”

True, Sosa acknowledged she would “be ordered to pay restitution

to the victim(s) of his/her conduct” and agreed that any “[d]ismissed

counts will be considered for sentencing and restitution purposes,”

but the dismissed count was accessory to first or second degree

20
 murder. It was still an accessory charge and, by definition, involved

conduct occurring after the shooting. Sosa was never charged with

murder, so she did not agree to pay restitution proximately caused

by the murder. The plea agreement in this case does not support

the district court’s restitution award.

III. Conclusion

¶ 43 We reverse the restitution order as to Sosa and remand the

case to the district court to determine what losses, if any, were

proximately caused by the conduct for which Sosa was charged —

accessory to first or second degree murder or accessory to second

degree murder heat of passion.

JUDGE FURMAN and JUDGE DAVIDSON concur.

21