CourtListener 10142467•Peo v. Herrera
Texte intégral
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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