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People v. Fregosi.

2024 COA 6. No. 21CA0116. Sentencing—Restitution—Procedural Deadlines—Good Cause to Extend Trial Court’s Deadline—Actual Costs of Specific Future Treatment—In Camera Review of Records.

January 18, 2024

Fregosi pleaded guilty to menacing as an act of domestic violence. As part of his plea agreement, he acknowledged that the People reserved restitution and that he stipulated to a factual basis. The court accepted the plea agreement and confirmed that Fregosi understood its terms. During the sentencing hearing, the prosecutor requested 91 days to seek restitution. Defense counsel did not object to the request, which the court granted. The prosecutor requested $873.10 in restitution for the victim’s medical and therapy costs, accrued to date, 51 days later. The prosecutor also asked the court to reserve future restitution under CRS § 18-1.3-603(1)(c) to account for the victim’s future treatment costs. Fregosi did not object or otherwise respond to the motion, and 73 days after sentencing, the court ordered Fregosi to pay $873.10 in restitution to the Crime Victim Compensation Board (CVCB). The court also ordered Fregosi to pay the victim’s actual costs of specific future treatment. The prosecution subsequently filed 13 amended restitution requests seeking compensation for the victim’s ongoing therapy costs. Fregosi objected to the amended requests. The court granted all requests. When the CVCB coordinator later reported that the victim had reached the limit of therapy sessions covered by the CVCB, the court entered a final restitution order for $4,473.10.

On appeal, Fregosi contended that the district court lacked authority to grant the prosecutor’s requested restitution amount 73 days after sentencing because the prosecutor failed to file the information necessary to support restitution under CRS § 18-1.3-603(2) before the judgment of conviction entered. Every judgment of conviction must include one or more of the four types of restitution orders outlined in CRS § 18-1.3-603(1). Under CRS § 18-1.3-603(2), the prosecutor must move for restitution before or during the sentencing hearing and present the information supporting a proposed amount of restitution before the judgment of conviction is entered, if it is then available, and if that information is not available, the prosecution may submit it no later than 91 days after the judgment of conviction enters. The district court may extend this deadline if, before the deadline expires, it expressly finds extenuating circumstances affecting the prosecution’s ability to determine restitution. Here, Fregosi waived the issue by the terms of his plea agreement and by not objecting to the prosecution’s request for a 91-day extension. Accordingly, Fregosi’s challenge to the timeliness of the prosecution’s requested restitution amount fails. And even if Fregosi did not waive the issue, the record shows that the restitution information was not available at the time of sentencing, so the prosecution had 91 days to present that information under § 18-1.3-603(2)(a).

Fregosi also argued that the district court erred by granting the amended restitution requests because it did not make the express good cause findings necessary to extend the 91-day deadline. However, the restitution statute does not preclude a court that deferred its restitution determination under subsection (1)(b) from later finding good cause under that subsection and extenuating circumstances under subsection (2)(a) to further extend the statutory deadline under subsection (1)(c) within the initial 91-day period. This conclusion is supported by People v. Weeks, 2021 CO 75, and Meza v. People, 2018 CO 23. Here, the record shows that the court complied with the requirements of CRS § 18-1.3-603(1). The record further shows that the court reiterated its CRS § 18-1.3-603(1)(c) order each time it granted the prosecution’s amended restitution requests, and at each hearing, the court expressly indicated its intent to find good cause to reserve the final determination of restitution based on the victim’s ongoing treatment. Because the court made a good cause finding in an order entered before the 91-day deadline expired and that order was reiterated in each restitution order thereafter, the court had authority to extend the deadline based on future losses accounted for in the subsequent restitution orders.

Fregosi further contended that the prosecution failed to establish that the amounts paid by the CVCB were the direct result of his criminal conduct because it relied exclusively on CVCB payment summaries that did not include the identity of the victim’s treatment provider or otherwise establish that including that information would pose a threat to the victim’s safety or welfare. The restitution statute creates a rebuttable presumption that the amount of assistance provided and requested by the CVCB is presumed to be a direct result of the defendant’s criminal conduct, and the court must consider this in determining the restitution amount. The rebuttable presumption shifts the burden to the defendant to present evidence to show that the amount paid was not the direct result of their criminal conduct. Here, the record supports the court’s determination that disclosing the identity of the victim’s treatment provider would pose a risk to the victim; the record shows that the prosecution did not rely solely on the CVCB summaries; and Fregosi offered no evidence to rebut the statutory presumption of causation. Accordingly, sufficient evidence supports the court’s findings.

Lastly, Fregosi asserted that the district court erred in declining to conduct an in camera review of the CVCB records. If a litigant fails to present a specific factual basis showing a reasonable likelihood that the discovery of information through in camera review will yield material evidence, the request for in camera review is properly denied. Here, Fregosi presented no evidence or information that the victim received medical or mental health treatment unrelated to the conduct for which he was convicted. Accordingly, Fregosi did not meet the statutory requirements for an in camera review.

The restitution order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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