Peo v. Herrera

22CA0979 Peo v Herrera 10-10-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA0979
Mesa County District Court No. 21CR1583
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Johnny Ralph Herrera, Sr.,

Defendant-Appellant.

ORDER AFFIRMED

Division VII
Opinion by JUDGE PAWAR
Tow and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 10, 2024

Philip J. Weiser, Attorney General, Frank R. Lawson, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Kamela Maktabi, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Johnny Ralph Herrera, Sr., appeals the trial

court’s order imposing restitution. He contends that the order must

be vacated because the prosecution did not comply with its

statutory obligation regarding restitution and the prosecution failed

to sufficiently prove that he proximately caused the damages

sustained. We affirm.

I. Background

¶2 On October 15, 2021, Deputy Pratt tried to conduct a traffic

stop of Herrera’s vehicle, but Herrera refused to stop for the officer.

During the ensuing pursuit, Deputy Pratt, Deputy Rolbiecki, and

Deputy Davidson each attempted a “PIT maneuver”1 to stop the

vehicle. The maneuver involved contacting the back of Herrera’s

car with the front of the patrol car. Ultimately, Davidson

successfully stopped Herrera’s car by using a PIT maneuver and

Herrera was taken into custody.

¶3 Herrera was charged with vehicular eluding, attempted second

degree assault, driving under restraint, reckless endangerment,

violation of a traffic control signal, eluding a police officer, speeding,

1 PIT is short for “precision immobilization technique. People v.
McMinn, 2013 COA 94, ¶ 5.

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and possession of drug paraphernalia. He pleaded guilty to

vehicular eluding and an added count of attempted third degree

assault in exchange for the dismissal of the remaining charges. The

plea agreement stated that the dismissed charges could be

considered for restitution purposes.

¶4 At the January 25, 2022, sentencing hearing, the prosecutor

asked that restitution be imposed and that he be afforded

additional time to submit a request for a restitution amount. The

trial court imposed a prison sentence, ordered Herrera to pay

restitution, and granted the prosecution twenty-one days from

sentencing to submit a restitution amount request.

¶5 On February 3, 2022, the prosecutor filed a motion for

restitution in the amount of $12,885.74 to repair the damage

caused to the patrol cars. The motion included a victim impact

statement and invoices in support of the requested amount. The

victim impact statement indicated that the repair costs for one of

the patrol cars was not final because the needed repairs had not yet

been completed. Herrera objected to the requested restitution

amount, and the court set a hearing.

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¶6 At the March 2, 2022, restitution hearing, the prosecutor

elicited testimony that the remaining repairs were completed a week

or two prior to the hearing and that the final amount paid to repair

the three vehicles was $23,549.22. The trial court ordered Herrera

to pay that amount.

II. Statutory Violation

¶7 Herrera asserts that the restitution order must be vacated

because the trial court erroneously allowed the prosecution to

submit its restitution information after sentencing without

demonstrating that the information was not available at or before

sentencing. He claims that he is prejudiced by the error because he

owes $23,549.22 in restitution. We are not persuaded.

¶8 The restitution statute requires every order of conviction to

include one of four types of restitution orders. § 18-1.3-603(1),

C.R.S. 2024; People v. Weeks, 2021 CO 75, ¶ 3. As relevant here,

section 18-1.3-603(1)(b) requires an order of conviction to include

“[a]n order that the defendant is obligated to pay restitution, but

that the specific amount of restitution shall be determined within

the ninety-one days immediately following the order of conviction,

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unless good cause is shown for extending the time period by which

the restitution amount shall be determined.”

¶9 “The court shall base its order for restitution upon information

presented to the court by the prosecuting attorney, who shall

compile such information through victim impact statements or

other means to determine the amount of restitution and the

identities of the victims.” § 18-1.3-603(2)(a). “[T]he prosecuting

attorney 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.

¶ 10 A division of this court concluded that section 18-1.3-603(2)(a)

imposes an obligation on the prosecution to use reasonable

diligence in determining the amount of restitution it will request

prior to the entry of the order of conviction. People v. Brassill, 2024

COA 19, ¶¶ 1, 30, 45. Another division further held that a trial

court errs when it extends the prosecutor’s deadline to present

restitution information until after sentencing in the absence of a

demonstration that the restitution information was unavailable

before the sentencing hearing. People v. Martinez Rubier, 2024 COA

67, ¶¶ 3-4, 21, 39, 41.

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¶ 11 Initially, we reject Herrera’s assertion that the restitution order

must be vacated because the prosecution’s failure to submit the

restitution information at or before sentencing divested the trial

court of authority to enter the order. See id. at ¶¶ 46-47 (despite

the prosecution’s noncompliance with section 18-1.3-603(2), the

trial court entered a restitution order within section 18-1.3-

603(1)(b)’s ninety-one-day deadline and, therefore, was not deprived

of authority to act on restitution); Brassill, ¶¶ 57-58.

¶ 12 We further conclude that the trial court did not err by finding

that the prosecution sufficiently demonstrated that it exercised

reasonable diligence in obtaining the restitution information before

sentencing and that the information was not available at

sentencing. The prosecutor represented at the sentencing hearing

that the patrol cars had sustained damaged and that, “although the

Victim Impact Statement has been requested, it has not yet been

received.” The prosecutor said that he needed additional time to

“secure the itemized group of the damages suffered by . . . [the]

Mesa County Sheriff’s Department . . . and figure out if we can have

a[n] agreement or if we need to request a hearing.”

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¶ 13 Because the prosecutor asked for an extension of time to file

the restitution information and represented that, despite his office’s

efforts,2 complete information had not yet been received, we

conclude that the trial court’s decision to allow the prosecutor to file

the restitution information after sentencing was not error.

III. Proximate Causation

¶ 14 Herrera next contends that the prosecution failed to establish

that he proximately caused the damage to the three patrol cars.

Specifically, he argues that “the deputies’ intentional decision to

repeatedly crash their patrol cars into Mr. Herrera’s car was grossly

negligent, unforeseeable, and constituted an independent

intervening cause.” We disagree.

2 As discussed, we find no error in the trial court’s reliance on the

prosecutor’s representation that itemized damages were not
complete (and therefore unavailable to the prosecution). But we
also note from our review of the record that the cover letter from the
District Attorney’s office indicates the victim impact statement form
was not sent to the Mesa County Sheriff’s Risk Management Office
until January 26, 2022 — one day after the sentencing hearing.
Though that raises concern in light of the prosecutor’s
representation that “although the Victim Impact Statement has
been requested, it has not yet been received,” it does not alter our
ultimate conclusion. It is undisputed that the repairs had not been
completed at the time of sentencing so complete information was
not available to the prosecution at that time.

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¶ 15 A trial court may order restitution for “any pecuniary loss

suffered by a victim,” which includes, as relevant here, “losses or

injuries 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. 2024; see also § 18-1.3-603(1)(a).

¶ 16 “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.” People v. Perez, 2017 COA 52, ¶ 10. “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). In the restitution context, proximate causation 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. People v. Dyson, 2021 COA 57,

¶ 13.

¶ 17 However, unlawful conduct that is broken by an independent

intervening cause cannot be the proximate cause of damages to

another. Martinez v. People, 2024 CO 6M, ¶ 13. To qualify as an

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intervening cause, an event must be unforeseeable and one in

which the accused does not participate. Id. “Simple negligence is

foreseeable and does not constitute an independent intervening

cause; gross negligence is not foreseeable and thus may serve as an

independent intervening cause.” People v. Sieck, 2014 COA 23, ¶ 9.

Gross negligence is willful and wanton conduct, such as actions

committed recklessly with conscious disregard for the safety of

others. Martinez, ¶ 14.

¶ 18 We will not disturb a trial court’s determination of proximate

cause for restitution purposes unless it is clearly erroneous. Id. at

¶¶ 3, 32. Under the clear error standard, we must affirm the

court’s findings unless they are without support in the record. Id.

at ¶ 34.

¶ 19 In its order, the trial court found that Herrera’s “criminal

actions of eluding law enforcement and placing the public in danger

proximately caused the damages to the three patrol vehicles.” The

court noted that, when a person is eluding law enforcement, “it is

within the natural and probable sequence of events that law

enforcement will attempt to halt the eluder.”

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¶ 20 The record supports the trial court’s finding that Herrera’s

criminal conduct proximately caused the damage to the patrol cars.

The trial court heard testimony from the Mesa County Risk

Administrator and Deputy Pratt.

¶ 21 The Mesa County Risk Administrator testified that during the

underlying incident, the three patrol cars driven by Pratt, Rolbiecki,

and Davidson sustained damage. He said that he was not aware of

any record of unrelated damage to the vehicles that predated the

incident.

¶ 22 Pratt testified that all three patrol cars sustained damage as a

result of the PIT maneuvers used to stop Herrera’s vehicle and the

attempts to pin the vehicle to prevent Herrera from fleeing. Pratt

offered extensive detail about Herrera’s initial failure to stop and

subsequent erratic driving. He explained that Herrera posed a

safety risk to other drivers and described his attempt to stop

Herrera by way of a PIT maneuver before the pursuit entered a busy

intersection. Pratt testified that Herrera was able to drive away

after Pratt attempted to pin Herrera’s car, causing a second deputy

(Rolbiecki) to attempt a PIT maneuver, which was again

unsuccessful. Pratt explained that Herrera eluded again, drove

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down a large embankment onto another road, and was ultimately

stopped by a third deputy (Davidson), who successfully executed a

PIT maneuver.

¶ 23 This testimony provides ample record support that the officers’

PIT maneuvers and attempts to pin Herrera’s vehicle were

foreseeable and that any negligent conduct did not rise to the level

of gross negligence. Indeed, Pratt testified that a PIT maneuver was

the preferred technique used by law enforcement to stop an eluding

vehicle and that the PIT maneuver was the safest way to stop an

eluding vehicle and to ensure the safety of others. Pratt also

testified that Rolbiecki’s final strike to pin Herrera’s vehicle after it

was stopped by Davidson’s PIT maneuver was necessary because

Herrera demonstrated an intent to continue eluding the officers.

¶ 24 The court acknowledged Pratt’s incorrect statements to the

other deputies that Herrera had struck his patrol car when in fact

Herrera had swerved toward him but made no contact. But it

nevertheless found that, in light of Herrera’s observed reckless

driving, the misrepresentation did not lessen its determination of

proximate cause.

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¶ 25 To the extent Herrera argues that he was not the proximate

cause of the damage because he did not participate in the event, he

fails to adequately explain this assertion. People v. Houser, 2020

COA 128, ¶ 24 (we will not consider a bald legal proposition

presented without argument or development).

IV. Disposition

¶ 26 The order is affirmed.

JUDGE TOW and JUDGE SCHUTZ concur.

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