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People v. Bryant4/7/2005
ORDER AFFIRMED
Marquez and Carparelli, JJ., concur
Defendant, Stacey Lee Bryant, appeals the order of restitution imposed as part of his sentence to probation. We affirm.
Defendant was charged with extortion based on alleged threats he and another individual, known only as "Jose," made to the victim. Shortly thereafter, the victim quit his job and moved to another state.
Defendant subsequently pleaded guilty to an added count of attempted extortion, the original charges against him were dismissed, and he was sentenced to three years probation. As a condition of his probation, defendant was ordered to pay restitution for the victim's moving expenses, the charges the victim incurred for terminating his apartment lease early, and the victim's "lost wages." This appeal followed.
The court shall award restitution if it finds that the victim of a crime suffered a pecuniary loss. See § 18-1.3-603(1), C.R.S. 2004. However, restitution is intended to make the victim whole and specifically includes repayment of actual pecuniary loss the victim sustained as the direct result of the defendant's criminal conduct. Therefore, the loss may be one specifically mentioned in the statute or some other loss or injury that is "proximately caused by an offender's conduct and that can be reasonably calculated and recompensed in money." Section 18-1.3-602(3)(a), C.R.S. 2004.
"Proximate cause" for purposes of restitution has been 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." See People v. Clay, 74 P.3d 473, 475 (Colo. App. 2003)(quoting People v. Stewart, 55 P.3d 107, 116 (Colo. 2002), and CJI-Crim. 9:10, 9(3) (1983)).
I.
Relying on People v. Trujillo, 75 P.3d 1133 (Colo. App. 2003), defendant contends the trial court erred in ordering restitution because the victim's losses were too attenuated from his criminal conduct. We disagree.
In People v. Trujillo, supra, the defendant was convicted of burglary and was ordered to pay restitution for the cost of installing an alarm system in the victim's home. A division of this court concluded that, with respect to this portion of the restitution order, the trial court's findings did not support any loss by the victim "other than a generalized feeling of insecurity" and that such loss was too attenuated from the defendant's criminal conduct to support the order. Therefore, the division reversed that portion of the order and remanded the case to the trial court with directions to "reconsider the issue of restitution, make findings of fact, and determine if the victim's loss is one that falls within the definition of restitution in § 18-1.3-602(3)." See People v. Trujillo, supra, 75 P.3d at 1140-41.
However, the trial court here found that unlike the "generalized feeling of insecurity" in Trujillo, the victim's loss was caused by a "specific threat" that was "still outstanding." More specifically, the court found that defendant and "Jose" had acted together; that, although only one of them had made the verbal threat to the victim, they were both involved in more than one contact with the victim; and that, although both of them had access to information regarding the victim's residence and employment, only one of them (defendant) had been "picked up." Based on these findings, the court concluded that "defendant's actions were the proximate cause" of the victim's efforts to avoid the outstanding threat against him and that restitution for those efforts was appropriate.
We conclude the record supports the trial court's findings, and we agree wi
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