No. 20CA1912. People v. Moss.

2022 COA 92. Sentencing—Restitution—Proximate Cause—Pecuniary Loss.

August 11, 2022

Moss was charged with numerous offenses relating to her unlawful possession of a motor vehicle. She pleaded guilty to aggravated motor vehicle theft and first degree criminal trespass of the victim’s apartment, and the remaining charges were dismissed. The dismissed charges and the charges to which Moss pleaded guilty alleged that the offenses occurred “on or about November 19.” The prosecution requested $4,187.19 in restitution. Following a hearing, the district court ordered Moss to pay $461.13 in restitution for the cost to replace the vehicle’s transmission fluid and battery, and the cost to have the car towed.

On appeal, Moss challenged the restitution award on two interrelated grounds. She argued that the need to replace the transmission fluid and the battery were not related to any charged crime and, alternatively, that the restitution was not directly related to an element of the crimes for which she was convicted. Restitution means a victim’s pecuniary loss that was proximately caused by a defendant’s conduct and that can be reasonably calculated and recompensed in money. While restitution need not be tied to a specific element of the crime, a defendant cannot be ordered to pay restitution for uncharged conduct, and any pecuniary loss must be tied to the defendant’s conduct on the dates of the offenses for which the defendant is convicted. Here, the prosecution presented no evidence that the need to replace the transmission fluid or the battery stemmed from defendant’s conduct on or about November 19. Therefore, the evidence did not establish that defendant caused the claimed damage to the vehicle during her unlawful possession, and the district court erred by ordering restitution for the transmission fluid and battery.

The restitution order as to the transmission fluid and battery was reversed and the case was remanded with directions to impose restitution for the towing costs only.