Peo v. Taylor

22CA2167 Peo v Taylor 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 22CA2167
City and County of Denver District Court No. 22CR1181
Honorable Adam J. Espinosa, Judge

The People of the State of Colorado,

Plaintiff-Appellee,

v.

Derrick V. Taylor,

Defendant-Appellant.

ORDER AFFIRMED

Division III
Opinion by JUDGE DUNN
Navarro and Gomez, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 21, 2024

Philip J. Weiser, Attorney General, Brenna A. Brackett, Assistant Attorney
General, Bianca Feierstein, Assistant Attorney General, Denver, Colorado, for
Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Christopher Smallwood,
Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 Defendant, Derrick V. Taylor, appeals the district court’s order

imposing restitution, arguing that the court violated the prohibition

against excessive fines under the Eighth Amendment to the United

States Constitution (excessive fines clause) by not considering his

ability to pay. We affirm.

I. Background

¶2 Two police officers were injured while attempting to arrest

Taylor. In exchange for the dismissal of second degree assault

charges, Taylor pleaded guilty to resisting arrest and agreed to pay

restitution. At sentencing, the district court found that Taylor had

stipulated to his liability for restitution, and the court reserved

determination of the restitution amount.

¶3 The prosecution moved for restitution for medical treatment

for both officers and worker’s compensation payments to one

officer. Taylor objected and asked the court to consider his ability

to pay restitution “as required by” the excessive fines clause.

¶4 At the conclusion of the restitution hearing, the district court

rejected Taylor’s argument that criminal restitution constitutes a

fine under the excessive fines clause, and it imposed $4,177.59 in

restitution.

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II. Analysis

¶5 Under the Eighth Amendment, “[e]xcessive bail shall not be

required, nor excessive fines imposed, nor cruel and unusual

punishments inflicted.” U.S. Const. amend. VIII; accord Colo.

Const. art. II, § 20. To determine whether “a fine is constitutionally

excessive,” courts should consider a person’s ability to pay. Colo.

Dep’t of Lab. & Emp. v. Dami Hosp., LLC, 2019 CO 47M, ¶¶ 27, 31.

¶6 The issue here is whether restitution is a “fine” subject to the

excessive fines clause. Taylor maintains that because restitution is

“partially punitive,” the excessive fines clause applies. Thus, he

says that the district court erred by not considering his ability to

pay before imposing restitution.

¶7 We review claims under the excessive fines clause de novo.

See People v. Cardenas, 262 P.3d 913, 914 (Colo. App. 2011); see

also Melton v. People, 2019 CO 89, ¶ 9 (reviewing claim under the

Eighth Amendment de novo).

¶8 Unlike a monetary fine, the purpose of restitution is “mak[e]

the victim whole to the extent practicable.” People v. Courtney, 868

P.2d 1126, 1128 (Colo. App. 1993); cf. § 18-1.3-401(1)(a)(III)(A),

C.R.S. 2024 (identifying fines among the presumptive penalties in

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felony criminal cases); Cardenas, 262 P.3d 915 (“[A] fine is solely a

monetary penalty.”) Crime victims are entitled to restitution for

“losses or injuries proximately caused by [the] offender’s conduct

. . . that can be reasonably calculated and recompensed in money.”

§ 18-1.3-602(3)(a), C.R.S. 2024; see also id. (Restitution means “any

pecuniary loss suffered by a victim.”).

¶9 Rejecting an argument similar to the one Taylor advances

here, a division of this court concluded that restitution is not a fine

under the excessive fines clause. People v. Stafford, 93 P.3d 572,

574-75 (Colo. App. 2004). It reasoned that “[a] fine is solely a

monetary penalty, while restitution serves to make the victim

whole.” Id. at 574. Thus, the division concluded that the

Constitution does not require that a court consider the defendant’s

ability to pay when it orders restitution. Id. at 575; see also

Cardenas, 262 P.3d at 915 (rejecting Eighth Amendment claim that

postjudgment interest on a restitution order constitutes an

excessive fine because restitution is not a fine).

¶ 10 Taylor urges us not to follow Stafford, arguing that because

restitution is “partially punitive,” it must be a fine. Even accepting

Taylor’s premise, we reject this argument for the same reasons

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outlined in Stafford. Not only are we persuaded by Stafford, but we

are aware of no Colorado or United States Supreme Court case

concluding that restitution constitutes a fine under the excessive

fines clause. Because we agree with Stafford that restitution is

different from a monetary fine, we decline to depart from Stafford.

¶ 11 This conclusion is consistent with the plain legislative intent

that restitution be imposed without regard to a defendant’s ability

to pay. We know that is the legislative intent because Colorado

once required courts to consider a defendant’s ability to pay when

imposing restitution, see § 16-11-204.5(1), C.R.S. 1986, but the

legislature removed that requirement in 1996, see Ch. 288, sec. 4,

§ 16-11-204.5(1), 1996 Colo. Sess. Laws 1778. Courts now

determine restitution based on the victim’s pecuniary loss without

regard to a defendant’s ability to pay. § 18-1.3-601(1)(b), (g)(I); see

also § 18-1.3-602(3)(a). And “[w]e presume legislative enactments .

. . by the General Assembly . . . to be constitutional.” Huber v. Colo.

Mining Ass’n, 264 P.3d 884, 889 (Colo. 2011); accord § 2-4-

201(1)(a), C.R.S. 2024.

¶ 12 We are unpersuaded that Paroline v. United States, 572 U.S.

434 (2014), requires a different result. Paroline was a child

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pornography case in which the victim suffered lost income and

would need future counseling from the trauma of knowing that

images of her abuse were being viewed by potentially thousands of

people on the internet. Id. at 440-41. The question in that case

was whether the defendant — a possessor of the pornographic

content — was the proximate cause of the victim’s losses. Id. at

443. The Supreme Court held he was not, commenting that holding

a possessor liable for the conduct of “thousands of other

independently acting possessors and distributors, with no legal or

practical avenue for seeking contribution,” would be “so severe it

might raise questions” under the excessive fines clause. Id. at 455.

Instead, the Court imposed restitution under the federal restitution

statute, 18 U.S.C. § 2259, for only those losses proximately caused

by the defendant’s conduct. See Paroline, 572 U.S. at 443-63.

That’s entirely consistent with Colorado’s proximate cause

requirement for imposing restitution. See § 18-1.3-602(3)(a). To

the extent Paroline hinted that the excessive fines clause could

apply to a restitution order, it did so only in dicta. See Paroline,

572 U.S. at 456.

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¶ 13 The remaining cases Taylor cites are equally out of place. For

example, Austin v. United States, 509 U.S. 602, 621 (1993), and

United States v. Bajakajian, 524 U.S. 321, 328, 334 (1998), are civil

forfeiture cases, not criminal restitution cases. See Timbs v.

Indiana, 586 U.S. 146, 154-56 (2019) (holding that the excessive

fines clause applies to state civil forfeiture actions). And the

Colorado cases Taylor cites — Dami and Malone — address

monetary fines, again not criminal restitution. See Dami, ¶¶ 27, 31

(addressing the imposition of $841,200 in per diem fines for failure

to maintain workers’ compensation insurance); People v. Malone,

923 P.2d 163, 166 (Colo. App. 1995) (vacating a $100,000 fine

where the defendant caused $400 in property damage because the

sentencing court had not considered the defendant’s ability to pay);

see also People v. Pourat, 100 P.3d 503, 507-08 (Colo. App. 2004)

(applying Malone).

¶ 14 In sum, we conclude that restitution doesn’t constitute a fine

under the excessive fines clause. And because the district court

wasn’t required to consider Taylor’s ability to pay before imposing

restitution, we necessarily reject his request for a remand to

reconsider restitution in light of his ability to pay.

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III. Disposition

¶ 15 The order is affirmed.

JUDGE NAVARRO and JUDGE GOMEZ concur.

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