Peo in Interest of ZJ

23CA1643 Peo in Interest of ZGJ 11-21-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 23CA1643
Jefferson County District Court No. 21JD155
Honorable Ann Gail Meinster, Judge

The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of Z.G.J.,

Juvenile-Appellant.

ORDER AFFIRMED

Division I
Opinion by JUDGE SULLIVAN
J. Jones and Lipinsky, JJ., concur

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

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

K. Andrew Fitzgerald, Alternate Defense Counsel, Grand Junction, Colorado,
for Juvenile-Appellant
¶1 Defendant, Z.G.J., appeals the order awarding restitution for

the victim’s family’s counseling expenses after he pleaded guilty to

one count of sexual assault. We affirm.

I. Background

¶2 In April 2021, Z.J.’s sister contacted law enforcement, alleging

that Z.J. had sexually assaulted her multiple times between 2015

and 2018. Law enforcement interviewed Z.J. regarding his sister’s

allegation. Z.J. admitted he had sexually assaulted her on multiple

occasions when she was eight or nine years old. In February 2022,

due to Z.J.’s admission, law enforcement reopened a case involving

Z.J.’s former girlfriend, C.V., who had alleged years earlier that Z.J.

had sexually assaulted her multiple times between 2017 and 2018.

Z.J., his sister, and C.V. were all minors at the time of the sexual

assaults. The prosecution charged Z.J. with several offenses in two

cases for sexually assaulting his sister and C.V.

¶3 In May 2023, the parties reached a global disposition in which

Z.J. agreed to plead guilty to an added count of sexual assault in

the case involving C.V. The court accepted the disposition, and Z.J.

pleaded guilty to sexual assault under section 18-3-402(1)(a),

C.R.S. 2024, a class 4 felony. In exchange, the prosecution agreed

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to dismiss the case involving Z.J.’s sister, along with the original

counts in the case involving C.V. The parties also stipulated to a

deferred adjudication and sentence so that Z.J. could enter a

treatment program.

¶4 At the plea hearing, the prosecutor filed a notice of restitution,

requesting $9,120 for mental health counseling for C.V. and three

of her immediate family members. The Crime Victim Compensation

Board for the First Judicial District (the Board) paid those

counseling expenses. The prosecutor submitted four crime victim

compensation summaries from the Board that corroborated the

amount, although the summaries didn’t identify the provider or

providers of the mental health counseling.

¶5 Defense counsel didn’t agree with the requested amount,

saying that she may “potentially need to request a hearing on that.”

The court reserved restitution so defense counsel could have an

opportunity to file an objection. Z.J. then obtained new defense

counsel.

¶6 At the sentencing hearing, C.V. and her immediate family

members gave victim impact statements. Z.J.’s new defense

counsel said that she anticipated objecting to restitution. The

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prosecutor requested that the court award the full amount of

requested restitution.

¶7 One week later, Z.J. objected to restitution on the ground that

the prosecutor had only provided the court with summaries. The

court denied Z.J.’s objection.

¶8 Z.J. now appeals. He contends that insufficient evidence

supports the court’s restitution award for C.V.’s family members

because the prosecutor provided only summaries of the counseling

expenses. (Z.J. doesn’t dispute the restitution amount awarded to

C.V.) Z.J. also weaves in a proximate cause argument, asserting

that the court erred by determining that he “was the proximate

cause of the [family’s] loss when the required evidence under the

statute ha[d] not been met.”

¶9 We interpret Z.J.’s argument as twofold: (1) the court erred by

determining that he proximately caused the losses to C.V.’s family

members and (2) the summaries were insufficient to prove the

amount that the Board paid for C.V.’s family members’ counseling.

We disagree with these contentions and affirm.

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II. Discussion

A. Standard of Review

¶ 10 In the restitution context, we review for clear error the district

court’s determination that the defendant proximately caused the

victim’s losses. Martinez v. People, 2024 CO 6M, ¶ 32. However,

when the defendant frames his argument as a challenge to the

sufficiency of the evidence supporting the amount of restitution

awarded — that is, a challenge to the quantum of evidence provided

to the court — our review is de novo. See id. at ¶¶ 19-22; People v.

Moss, 2022 COA 92, ¶ 11. In other words, “our de novo

determination is whether the prosecution presented sufficient

evidence to convince a reasonable fact finder by a preponderance of

the evidence of the amount of restitution owed.” Moss, ¶ 11.

¶ 11 We also review issues of statutory interpretation de novo.

People v. Henry, 2018 COA 48M, ¶ 13. When construing a statute,

our goal is to give effect to the General Assembly’s intent. People v.

Webb-Johnson, 113 P.3d 1253, 1253 (Colo. App. 2005). To

determine the General Assembly’s intent, we first look to the

statute’s language, giving words and phrases their plain and

ordinary meanings. Henry, ¶ 14 (citation omitted).

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B. Applicable Law

¶ 12 Section 18-1.3-603, C.R.S. 2024, of the Restitution Act, §§ 18-

1.3-601 to -603, C.R.S. 2024, requires convicted offenders to pay

restitution to compensate crime victims for the harm they suffered

as a result of the offender’s conduct. “The purpose of restitution is

to make the victim whole, and the Restitution Act is to be liberally

construed to accomplish that purpose.” People v. McCann, 122 P.3d

1085, 1087 (Colo. App. 2005).

¶ 13 The Act provides that “[a]n effective criminal justice system

requires timely restitution to victims of crime and to members of the

immediate families of such victims in order to lessen the financial

burdens inflicted upon them, to compensate them for their suffering

and hardship, and to preserve the individual dignity of victims . . .

.” § 18-1.3-601(1)(e). As relevant here, a “victim” includes, but isn’t

limited to, “[a]ny victim compensation board that has paid a victim

compensation claim.” § 18-1.3-602(4)(a)(IV).

¶ 14 The prosecution bears the burden of proving by a

preponderance of the evidence “the amount of restitution owed and,

generally, that the defendant’s conduct was the proximate cause of

the victim’s loss.” Henry, ¶ 15; see People v. Barbre, 2018 COA 123,

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¶ 30. “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). This burden requires more than

speculation, but the prosecution need not prove restitution by the

same quality of evidence required in a criminal trial on the merits.

People in Interest of A.V., 2018 COA 138M, ¶ 24.

¶ 15 In 2015, the General Assembly amended the Act to authorize

restitution in cases where a victim compensation board seeks

reimbursement for assistance it provides to a victim. See Henry,

¶ 16 (“A crime victim may seek compensation from a compensation

board . . . . If the board pays such a claim, a court may order the

defendant to reimburse the board for the amount of assistance that

it paid to the victim.”).

¶ 16 The 2015 amendment created a rebuttable presumption in

section 18-1.3-603(10) that the amount paid by a victim

compensation board is a direct result of the defendant’s criminal

conduct. See § 18-1.3-603(10); Henry, ¶ 17. Specifically, section

18-1.3-603(10)(a) says that, if the victim compensation board

provides assistance to or on behalf of a victim, “the amount of

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assistance provided and requested by the crime victim

compensation board is presumed to be a direct result of the

defendant’s criminal conduct and must be considered by the court

in determining the amount of restitution ordered.” § 18-1.3-

603(10)(a). The prosecution can establish the amount that the

court must presume is a direct result of the defendant’s criminal

conduct in one of two ways — by providing either

(I) [a] list of the amount of money paid to
each provider; or

(II) [i]f the identity or location of a provider
would pose a threat to the safety or welfare of
the victim, summary data reflecting what total
payments were made for [various expenses
including mental health counseling].

§ 18-1.3-603(10)(b). However, the prosecution need not rely on the

statutory presumption to establish the amount of restitution;

rather, it can also rely on victim impact statements or “other

means.” § 18-1.3-603(2)(a); see Barbre, ¶ 40 (“[U]nder Colorado

law, an award of restitution may be based solely on a victim impact

statement.” (citing People v. Ortiz, 2016 COA 58, ¶ 28)); see also

A.V., ¶ 33 (“To meet its burden of proof, a prosecutor may rely solely

on victim impact statements.”). The court “shall base its order for

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restitution” on the information presented by the prosecution. § 18-

1.3-603(2)(a).

¶ 17 With these principles in mind, we turn to whether the evidence

was sufficient to support the court’s restitution award to C.V.’s

family.

C. Analysis

¶ 18 The Board determined that C.V.’s mother, father, and sister

were “secondary victims.” The prosecutor provided the court with

summaries from the Board reflecting the total amounts that the

Board had paid for mental health counseling services for C.V. and

her family members. The summaries showed that the Board had

paid the following for mental health counseling for C.V.’s family

members at the time of the sentencing hearing: (1) $2,500 for C.V.’s

sister; (2) $1,260 for C.V.’s mother; and (3) $270 for C.V.’s father.

¶ 19 The prosecutor also presented victim impact statements from

C.V. and each of her family members detailing how they had

suffered due to Z.J.’s conduct. As C.V.’s mother explained at the

sentencing hearing,

(1) Each member of the C.V.’s family struggled from “serious

psychological issues” due to Z.J.’s conduct.

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(2) C.V. and her sister began struggling in school, were

unable to focus, and became “actively suicidal.”

(3) The fear of running into Z.J. exacerbated the family’s

stress, and C.V.’s parents lived in constant fear that C.V.

or her sister would die by suicide.

(4) C.V.’s sister’s therapy cost $120 per week, and the

combined weekly cost for all four family members therapy

was $720, or $37,440 per year.

¶ 20 Thus, the court had both the Board’s summaries and the

family’s victim impact statements available to it when deciding

restitution.

¶ 21 We conclude that the court didn’t clearly err by finding that

Z.J. proximately caused the family’s psychological injuries because

the combination of this information provided some evidence to

support that finding. Indeed, in her victim impact statement, C.V.’s

mother tied the family’s need for mental health counseling directly

to Z.J.’s criminal conduct. See People v. Miller, 830 P.2d 1092,

1094 (Colo. App. 1991) (“[I]f the defendant fails to show that [a

victim impact statement] is inaccurate or untrue, the trial court is

entitled to rely upon the report or statement as submitted.”).

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¶ 22 We also conclude on de novo review that the same

information, when viewed in the light most favorable to the

prosecution, was sufficient for the prosecution to prove by a

preponderance of the evidence the amount of restitution that Z.J.

owed to the Board. Based on C.V.’s mother’s victim impact

statement, it appears that the Board paid but a small portion of

C.V.’s family’s counseling expenses.

¶ 23 In determining that sufficient evidence supported the court’s

restitution order, we note that we don’t rely on section 18-1.3-

603(10)(a)’s rebuttable presumption. As the People acknowledge,

the summary lists that the Board provided didn’t identify the

mental health counseling providers, as required by subsection

603(10)(b)(I). Nor do the People rely on subsection 603(10)(b)(II) to

defend the court’s restitution award. But, as explained above, we

need not rely on the statute’s rebuttable presumption to affirm the

court’s restitution award.

III. Disposition

¶ 24 We affirm the order.

JUDGE J. JONES and JUDGE LIPINSKY concur.

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