Peo v. Salaz

22CA1193 Peo v Salaz 10-24-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA1193
Mesa County District Court No. 20CR73
Honorable Valerie J. Robison, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Adam Joseph Salaz,

Defendant-Appellant.

ORDER AFFIRMED IN PART, VACATED IN PART,
AND CASE REMANDED WITH DIRECTIONS

Division IV
Opinion by JUDGE HARRIS
Yun and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 24, 2024

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

Megan A. Ring, Colorado State Public Defender, M. Shelby Deeney, Deputy
State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Adam Joseph Salaz, appeals the trial court’s

restitution order. He contends that the court violated statutory

requirements, depriving it of authority to enter the order, or,

alternatively, that the court erred in determining the amount of

restitution owed. We agree that the trial court erred by awarding

restitution for a cell phone based on its replacement value.

Otherwise, we affirm.

I. Background

¶2 The victim, who was an Uber driver, picked up Salaz for a ride

he booked to downtown Grand Junction. During the ride, Salaz

told the victim that he had a gun and ordered her to drive him to

the desert. The victim managed to escape, and Salaz drove away in

the victim’s car. Salaz and the car were located the next day in New

Mexico.

¶3 Salaz pleaded guilty under a plea agreement to second degree

kidnapping, robbery, and second degree aggravated motor vehicle

theft. The agreement required Salaz to pay restitution and provided

that “[r]estitution shall remain open for a period of 91 days.”

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¶4 At the July 15, 2021, sentencing hearing, the prosecutor

asked the court to enter a restitution order in the amount of

$11,401.34 — $2,423.01 to the victim and $8,978.33 to the Crime

Victim Compensation Board (CVCB). But he also said that the

victim was engaged in “ongoing treatment” and might incur

additional reimbursable expenses. For that reason, he asked the

court to “leave restitution open for 91 days.” Salaz objected to the

“restitution amount” but not to liability for restitution generally,

acknowledged that the parties had “agreed to keep restitution

open,” and requested a restitution hearing.

¶5 The court ordered that “[r]estitution will be open for a period of

91 days” and ordered the prosecution to file a restitution motion

within sixty days. At the parties’ urging, the court agreed to hold

the restitution hearing ninety days later, on October 13.

¶6 The prosecution did not file a restitution motion within sixty

days. Instead, on October 12, a newly assigned prosecutor filed a

combined motion for restitution and for a continuance of the

restitution hearing. The motion sought a couple of hundred dollars

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less in restitution than had been requested at the sentencing

hearing.

¶7 Counsel appeared for the scheduled restitution hearing the

next day, but Salaz, who was incarcerated, did not. The prosecutor

reiterated her request for a continuance. Defense counsel objected,

but he also declined to waive Salaz’s right to be present at the

hearing and told the court that without Salaz, “I don’t think we can

move forward today.”

¶8 The trial court found good cause to continue the hearing and

extend the deadline for determining restitution. The court

explained that it was “not going to have a restitution hearing” when

Salaz had “request[ed] to be” present “and . . . he [wa]s not,” and it

further noted that the prosecutor had been assigned to the case

only one day before the scheduled hearing.

¶9 The court rescheduled the hearing for December 2. After

further delays, the cause of which are not relevant to this appeal, a

two-day restitution hearing was completed in March 2022. In a

thorough written order (the final restitution order), the court

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ordered Salaz to pay $11,265.39 in restitution — the amount

requested in the prosecution’s October 12 motion.

II. Trial Court’s Authority to Enter the Order

¶ 10 Salaz contends that the final restitution order must be vacated

based on the trial court’s failure to comply with statutory

requirements. We disagree.

A. Legal Principles

¶ 11 Every judgment in a felony case must include “consideration

of restitution,” meaning it must include (a) an order fixing a specific

amount of restitution; (b) an order requiring restitution but

deferring the specific amount for up to ninety-one days; (c) an order

fixing restitution and requiring the defendant to pay certain future

costs; or (d) a finding that no restitution is owing. § 18-1.3-

603(1)(a)-(d), C.R.S. 2024; People v. Weeks, 2021 CO 75, ¶ 29.

Thus, under section 18-1.3-603(1)(b), the provision at issue here,

the statute requires the judgment to include an order assigning

liability for restitution, even if the amount is determined later. See

Sanoff v. People, 187 P.3d 576, 578 (Colo. 2008).

¶ 12 Two statutory deadlines apply to the subsequent

determination of the amount of restitution. Under section 18-1.3-
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603(2), if the information is not available before sentencing, the

prosecution has ninety-one days to submit the proposed amount of

restitution to the court. See Weeks, ¶ 31; People v. Brassill, 2024

COA 19, ¶ 30. And under section 18-1.3-603(1)(b), the trial court

also has ninety-one days to fix the amount of restitution owed.

Weeks, ¶ 39. Both deadlines can be extended, however. As

relevant here, the court may enter its restitution order after the

ninety-one-day deadline if, before the deadline expires, it finds good

cause for the delay. Id. at ¶ 5. But absent a timely good-cause

finding, a trial court lacks authority to enter an order fixing the

amount of restitution once the statutory deadline has expired. Id.

at ¶ 45.

B. Application

¶ 13 Salaz contends that the trial court failed to comply with the

restitution statute in two ways: first, it neglected to include in the

judgment any order assigning liability for restitution and second,

without a showing of good cause for the delay, it determined the

amount of restitution beyond the ninety-one-day deadline. We

discern no basis for vacating the final restitution order.

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¶ 14 The record establishes that the trial court considered

restitution at sentencing, recognized that Salaz owed some amount

to the victim (who had by then submitted a request for restitution

along with supporting documentation) and the CVCB, and, at

defense counsel’s request, deferred to a later date only a

determination of the exact amount. Though the mittimus stated

that “restitution is left open for 91 days,” it also stated that Salaz

“objects to restitution and requests a hearing” and included the

hearing date and time. Thus, we disagree that the trial court

impermissibly deferred the issue of restitution in its entirety. See

id. at ¶ 30. By ordering the prosecution to submit a motion for

restitution detailing amounts owed to the CVCB, granting the

request for a hearing, and noting the defense’s objection and

hearing date on the mittimus, the court effectively assigned

restitution liability to Salaz even if it did not use language from

section 18-1.3-603(1)(b). See People v. Tennyson, 2023 COA 2, ¶ 37

(court’s oral pronouncements at sentencing sufficiently assigned

restitution liability even in the absence of any language on the

judgment) (cert. granted Sept. 11, 2023).

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¶ 15 But even if the court erred by failing to adequately note

restitution liability on the judgment, the error does not require

vacatur of the final restitution order. The restitution statute

distinguishes “an order assigning liability for restitution from a

determination of the amount of restitution for which the defendant

is liable.” Sanoff, 187 P.3d at 578. Only the order assigning

liability is a component of the judgment of conviction, which

includes the defendant’s sentence; the order fixing the amount of

restitution is a separate appealable order. Id. Therefore, Salaz had

to raise the alleged error in the judgment of conviction by filing an

appeal within forty-nine days after the judgment was entered. See

Weeks, ¶ 30 n.9 (“[A] defendant’s conviction becomes a final and

appealable judgment of conviction upon entry of a preliminary

restitution order . . . even [if] the order doesn’t include the amount

of restitution.”); see also C.A.R. 4(b)(1). The only reason he can

raise the issue now is that the omission of a liability order in the

judgment results in an illegal sentence that can be challenged at

any time. See People v. Bowerman, 258 P.3d 314, 316 (Colo. App.

2010) (the failure to make an initial finding concerning the

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defendant’s liability for restitution results in an illegal sentence);

Crim. P. 35(a).

¶ 16 But an illegal sentence can also be corrected at any time. And

the remedy for this particular error is to remand for the trial court

to amend the mittimus to reflect the necessary order under section

18-1.3-603(1)(b), not to vacate the entirely separate final restitution

order. See Tennyson, ¶ 31 (“[I]f a sentence is illegal because it does

not contain the ‘consideration of restitution’ as required by section

18-1.3-603(1), the district court must correct it.”).1

¶ 17 We also disagree that the court failed to comply with the

ninety-one-day deadline to fix the amount of restitution. According

to Salaz, the court improperly found good cause to continue the

October 13 hearing based on the prosecution’s late-filed restitution

motion.

¶ 18 Whether good cause exists to extend section 18-1.3-603(1)(b)’s

deadline is reviewed for an abuse of discretion. People v. Weeks,

2020 COA 44, ¶ 11, aff’d, 2021 CO 75. A court abuses its

1 We decline to do that in this case, though, because Salaz does not

argue that his sentence is illegal or seek correction of the error
through a remand to amend the mittimus.
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discretion when its decision is manifestly arbitrary, unreasonable,

or unfair, or when it misconstrues or misapplies the law. Id.

¶ 19 The ninety-one-day deadline expired on October 14. During

the October 13 proceedings, the court found “good cause to extend

the restitution deadline until the hearing can be held and an order

can be issued.” As the court had just explained, the hearing could

not be held primarily because Salaz was not present and had not

waived his right to be present. The court also considered that a

new prosecutor had just been assigned to the case. The court’s

written order confirmed that the prosecutor’s motion to continue

the restitution hearing was granted “[f]or the reasons stated on the

record at the hearing on October 13, 2021.” The court then

reiterated its good cause finding, stating that there was “good cause

to extend the time for entry of restitution” until it could rule on the

motion.

¶ 20 In his reply brief, Salaz says his absence from the October 13

hearing did not constitute good cause to continue the hearing and

extend the deadline for fixing restitution because it is “the

prosecution’s duty to produce an incarcerated defendant for

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prosecution in court.” But according to the court’s finding in the

final restitution order — a finding that Salaz does not challenge on

appeal — defense counsel had not requested that the prosecution

produce Salaz for the hearing. And there was no evidence that the

prosecution knew Salaz intended to attend the hearing rather than

waive his appearance. (In the end, Salaz appeared for the

restitution hearing by Webex.)

¶ 21 Considering all of the circumstances, we conclude that the

court did not abuse its discretion by finding good cause to continue

the hearing and to extend the deadline for fixing the amount of

restitution.

III. Restitution Award

¶ 22 Alternatively, Salaz argues that the court erred in determining

the amount of restitution owed by (1) adopting the CVCB’s lost

wages calculation; (2) finding that he proximately caused the

damage to the victim’s car; and (3) awarding the victim the

replacement value, rather than the fair market value, of her cell

phone and accessories. We agree in part with Salaz’s third

argument.

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A. Legal Principles and Standard of Review

¶ 23 The trial court must order restitution for “any pecuniary loss

suffered by a victim” and “proximately caused by” the defendant’s

conduct that can be “reasonably calculated and recompensed in

money.” § 18-1.3-602(3)(a), C.R.S. 2024. A “victim” includes any

victim compensation board that has paid a victim compensation

claim. § 18-1.3-602(4)(a)(IV). Proximate cause in the restitution

context means 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 (citation omitted).

¶ 24 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. “The

preponderance of evidence standard only requires proof that ‘the

existence of a contested fact is more probable than its

nonexistence.’” Dyson, ¶ 14 (quoting People v. Taylor, 618 P.2d

1127, 1135 (Colo. 1980)).

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¶ 25 The appropriate standard of review in restitution cases

depends on the issue the trial court decided and that we are

reviewing. People v. Barbre, 2018 COA 123, ¶ 24. As a general

matter, we review the trial court’s factual findings for clear error

and its legal conclusions de novo. Martinez v. People, 2024 CO 6M,

¶ 24. Because Salaz’s challenge to the court’s proximate cause

finding is not a sufficiency claim, but rather a dispute with the

court’s interpretation of the evidence, we review the court’s

determination on that issue for clear error. Id. at ¶¶ 20-21, 32.

B. Lost Wages

¶ 26 The evidence at the restitution hearing established that the

CVCB paid the victim $7,878.33 in lost wages. The CVCB

administrator testified that “lost wages are paid at 80% of gross

wages lost.” Where crime victims have “a variable kind of income,”

the CVCB asks for several months of earning statements “to

establish . . . an average pay.”

¶ 27 The victim in this case submitted documentation showing her

gross income, expenses and fees, and net income for the three

months before the offense — October, November, and December

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2019. Her gross income was considerably higher in December than

in October or November. The victim did not know whether her

gross income for those months represented the total amount Uber

collected for rides or the amount Uber paid her for the rides.

¶ 28 The court found that the prosecution had met its burden to

prove that the victim lost $7,878.33 in lost wages.

¶ 29 In challenging the lost wages award on appeal, Salaz argues

only that

defense counsel elicited testimony and
introduced evidence (including three exhibits)
rebutting the accuracy of: the number of days
of missed work; the accuracy of the
comparable months used in the calculation;
and the income — gross or net — used to
determine what the victim had been paid by
Uber.

¶ 30 In fact, though, there was no evidence admitted at the hearing

of the number of missed work days for which the victim was paid or

of which months of employment the CVCB used to calculate the

victim’s lost wages. (There was also no evidence that the victim’s

income in October and November was more representative of her

average monthly income than her earnings in December, but only

that she earned more in December. She testified that she worked
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ninety hours a week during all three months.) And while the

evidence showed that the CVCB calculated lost wages using eighty

percent of a victim’s gross income, Salaz does not explain on appeal

why the court erred by accepting this methodology.

¶ 31 On this record, and in light of Salaz’s conclusory argument, we

cannot say that the court clearly erred in ordering restitution to the

CVCB in the amount of $7,878.33 for the victim’s lost wages.

C. Insurance Deductible

¶ 32 The victim testified that after she recovered her car, she

brought it to a body shop for repairs. The body shop estimated the

cost of repairs at over $4,700, but the victim testified that she paid

only a $1,000 deductible. The court ordered Salaz to reimburse the

victim for the deductible.

¶ 33 On appeal, Salaz argues that the court clearly erred by finding

that he caused more than $1,000 in damage to the car because

photographs admitted at the hearing do not depict any significant

damage.

¶ 34 The victim testified that after she jumped out of the car, the

car rolled into a barbed wire fence, causing damage to the

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“passenger side” of the car, “the front of the vehicle,” and a wheel

rim. She noted scratches on the bumper, on a panel, and on the

headlights. She also testified that none of the repairs listed on the

estimate were for damage that had occurred before the incident.

¶ 35 The evidence supported a finding that Salaz had caused the

damage to the victim’s car. To the extent the photographs and the

testimony conflicted, it was up to the trial court to resolve the

conflict. See People v. Poe, 2012 COA 166, ¶ 14 (“It is the fact

finder’s role to weigh the credibility of the witnesses, to determine

the weight to give all parts of the evidence, and to resolve conflicts,

inconsistencies, and disputes in the evidence.”).

¶ 36 Because there is record support for its finding regarding

damages, the court did not err by ordering restitution to the victim

in the amount of her deductible.

D. Cell Phone and Headphones

¶ 37 The victim’s cell phone and headphones were in the car when

it was stolen, and those items were not recovered. At the time, the

items were about two years old. The victim did not know the stolen

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phone’s fair market value. She bought a new (identical model)

phone for $499.99 and new headphones for $150.

¶ 38 On appeal, Salaz argues that the trial court erred by awarding

the replacement value of the phone and headphones because the

prosecution failed to present evidence that these items were not

readily replaceable at fair market value cost. He says that awarding

the replacement cost put the victim in a better financial position

than she would have been in had the crime not occurred. We agree

in part.

¶ 39 In the restitution context, the value of property is determined

by the victim’s “actual, pecuniary loss” or the amount of money that

will fulfill “the statutory purpose of simply making the victim whole

to the extent practicable.” People v. Stafford, 93 P.3d 572, 575

(Colo. App. 2004). Generally, awarding restitution based on the fair

market value of an item will best fulfill the statute’s goal to make

the victim whole. “‘[F]air market value’ refers to the price that

would be agreed on by a willing seller and a willing buyer under no

compulsion to sell or buy.” People v. Henson, 2013 COA 36, ¶ 31,

superseded by statute on other grounds as stated in Martinez, ¶¶ 15-

16
17. Still, “a court can award restitution of a ‘reasonable

replacement value’ — rather than being limited to recovery of fair

market value — when the victim demonstrates that . . . she will

need to replace an item that isn’t readily replaceable at a fair

market value cost.” People v. Knapp, 2020 COA 107, ¶ 90.

¶ 40 The trial court reasoned that the victim was entitled to the

replacement value of the cell phone because “[t]here was no

testimony presented to indicate that the prior phone had a lower

value than the replacement phone or that the replacement of the

prior phone could have been achieved for a lower cost.” We

disagree with the court’s reasoning for two reasons.

¶ 41 First, it is “common knowledge that in the field of [cell phone]

technology[,] advances are constantly being made so that used

equipment depreciates in value over relatively short periods of

time.” In re Christopher R., 704 A.2d 443, 445 (Md. 1998) (reversing

restitution order based on replacement value of stolen computers).

Thus, the victim’s testimony that the cell phone was two years old

when it was stolen necessarily established that it had a lower value

than a brand new phone.

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¶ 42 Second, the prosecution bears the burden to prove the amount

of restitution — that is, the money necessary to compensate the

victim for her actual pecuniary loss. In this case, then, the

prosecution, not Salaz, had to show that the victim was entitled to

$500 to compensate her for the loss of her two-year-old cell phone.

In other words, the prosecution had to demonstrate that the victim

could not “readily replace[] [the stolen phone] at a fair market value

cost,” Knapp, ¶ 90, but it presented no evidence of the phone’s fair

market value or of any efforts the victim made to obtain a

comparable used cell phone. Nor can we say that the court could

have “reasonably assumed that there [is] not a broad and active

market for used [cell phones] comparable to [the one] stolen.”

Stafford, 93 P.3d at 576.

¶ 43 Therefore, we conclude that the trial court erred by awarding

restitution for the cell phone based on its replacement value.

¶ 44 But we reach the opposite conclusion regarding the

headphones. We think the trial court could reasonably have

assumed that there is no broad active market for two-year-old wired

headphones.

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IV. Disposition

¶ 45 The order is affirmed in part and vacated in part, and the case

is remanded to the trial court. On remand, the court is directed to

deduct $499.99 from the final restitution order and amend the

mittimus accordingly.

JUDGE YUN and JUDGE KUHN concur.

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