People v. Valenzuela

Judge REED,

dissenting.

I respectfully dissent.

Two types of public assistance, AFDC benefits and food stamps, were fraudulently obtained by the defendant here. The majority concludes that § 26-2-128(1), C.R.S. (1989 Repl.Vol. 11B) and § 5-12-101(l)(b), C.R.S. (1992 RepLVol. 2) are applicable in the computation of interest to be included in the order of restitution as to both types of benefits and that the interest calculated therein commences from the date that each benefit was received.

While I agree that this is correct as to the AFDC benefits, I disagree that § 26-2-128(1) applies as to the food stamp benefits.

Here, both the AFDC benefits and the federal food stamps received by defendant were distributed to her through programs administered by the Jefferson County Department of Social Services. However, the food stamp program is funded exclusively by the federal government, whereas the funds for the AFDC benefits are provided partially by the state and by the county.

*424By established procedure, based upon the county’s written estimate, the state deposits to the county general fund, an interest bearing account, its share of the AFDC benefits to be disbursed to recipients the following month. Thus, both the state and county contribute to the payment of the AFDC benefits and the wrongful disbursement of them results in a loss of interest to the county general fund.

The food stamps received by defendant are issued solely by the federal government. Except for the county’s role in the administration of that program, neither it nor the state makes any contribution or payment of benefits to the recipient. However, if, as here, the benefits derived from the food stamps are found to have been fraudulently obtained by a recipient, the county reimburses the federal government for the amount of those benefits together with interest charged by the federal government.

While the principal amount of the food stamp benefits received by defendant is not in dispute here, the record is silent as to the rate or amount of interest, if any, which the county paid to the federal government or the date upon which it was paid. The only witness who testified admitted that the amount of the interest paid would have been computed by the county treasurer and that he had no personal knowledge of the same.

As noted by the majority, the sentencing court must order restitution as a condition of probation if the victim sustained actual damages, People v. Phillips, 732 P.2d 1226 (Colo.App.1986), and the amount of restitution may not be based upon speculation. Cumhuriyet v. People, 200 Colo. 466, 615 P.2d 724 (1980).

It is the duty of the sentencing court, in fixing restitution, to determine the victim’s actual monetary loss. In so doing, the court is not required to determine restitution “in accordance with the strict rules of damages applicable to a civil case.” People v. Johnson, 780 P.2d 504, 507 (Colo.1989). Further, if interest is paid by the victim because of defendant’s acts, the amount of interest included in the restitution order must reflect the actual interest paid. People v. Engel, 746 P.2d 60 (Colo.App.1987).

Based upon the record here, the county and state suffer no monetary loss relative to food stamps until the county is required to reimburse the federal government from its general fund for the food stamps fraudulently obtained. At that juncture, the obligation cast upon the county is to pay the value of those food stamps together with an unknown amount of interest charged by the federal government. In my opinion, this sum, together with interest accrued thereon from the time of reimbursement, computed pursuant to § 5 — 12—101(l)(b), is the proper measure of the victim’s actual loss.

Except under circumstances not here present, § 26-2-128(1) provides in pertinent part:

[A]ny previously paid excess public assistance to which the recipient was not entitled shall be recoverable by the county as a debt due to the state and the county in proportion to the amount of public assistance paid by each respectively; except that any fraudulently obtained public assistance or fraudulently obtained overpay-ments shall be recoverable and payable in proportionate shares as provided in section 26-l-112(2)(b), and interest shall be charged and paid to the county department on any sum fraudulently obtained calculated at the legal rate and calculated from the date the recipient obtained such sum to the date such sum is recovered, (emphasis supplied)

I disagree with the majority that the amount of the victim’s loss, for purposes of criminal restitution relating to fraudulently obtained food stamps, is properly determined by use of that statute. I do so for two reasons.

First, by its language, § 26-2-128(1) provides that the excess public assistance is recoverable “as a debt due to the state and the county in proportion to the amount of public assistance paid by each respectively.” (emphasis supplied) Thus, payment of the benefit by the county or the state is a necessary prerequisite to the statute’s application.

Because food stamps are funded exclusively by the federal government, with no contribution by either the state or county at the time the stamps are distributed, I would hold that the claim for restitution, as to food stamp benefits, is not within the purview of § 26-2-128(1).

*425Secondly, and of more significance, even if we assume that the claim for restitution for food stamps falls within the statutory language of § 26-2-128(1), I conclude that any computation of interest thereunder is only speculative of the county’s actual monetary loss. There is nothing in the record to indicate that the rate of interest charged by the/ federal government, as part of its reimbursement claim, bears any relationship to the rate of interest calculated and applied, pursuant to § 26-2-128(1), retroactively to the date that the stamps were received.

Thus, since the assessment of interest must reflect the actual interest paid, People v. Engel, supra, and since the amount of interest actually paid to the federal government is readily ascertainable, I would hold that, as to the food stamp benefits, the sentencing court erred in using § 26-2-128(1) to compute the interest due thereon as part of its order of restitution, and I would vacate that portion of the order.

I would further direct, as part of the remand here, that the actual amount of reimbursement to the federal government be ascertained, after further hearing, and that amount, plus interest accrued thereafter pursuant to § 5-12-101(l)(b), constitute the amount of restitution due for the food stamp portion of the court’s order.