Opinion
No. 92CA0840
Decided November 4, 1993. Rehearing Denied January 6, 1994. Certiorari Granted June 6, 1994.
Appeal from the District Court of Jefferson County Honorable William P. DeMoulin, Judge No. 91CR1669
ORDER AFFIRMED IN PART, REVERSED IN PART, AND CAUSE REMANDED WITH DIRECTIONS
Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General Deborah Isenberg Pratt, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
David F. Vela, Colorado State Public Defender, Beth L. Krulewitch, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant
Defendant, Henrietta Valenzuela, appeals from the trial court's order of restitution imposed in conjunction with her sentence to probation. We affirm in part, reverse in part, and remand with instructions.
Defendant applied for and received Aid To Families With Dependent Children (AFDC) and food stamps through Jefferson County from December 1989 through June 1990. She was charged with two counts of theft when authorities learned that she was employed and was not, therefore, legally entitled to these benefits.
Defendant entered a guilty plea to an added third count of attempted theft, and the initial charges were dismissed. The court sentenced her to four years of probation and ordered that she pay restitution in the sum of $6,785.74 as a condition of probation. Defendant did not dispute that she owed $5,779 in restitution for benefits fraudulently obtained, but challenged the court's authority to add $1006.74 interest to that amount.
The court based its determination upon § 26-2-128(1), C.R.S. (1989 Repl. Vol. 11B), which provides:
[A]ny fraudulently obtained public assistance or fraudulently obtained overpayments shall be recoverable and payable in proportionate shares as provided in section 26-1-112 (2) (b), and interest shall be charged and paid to the county department on any sum fraudulently obtained calculated at the legal rate and calculated from the date the recipient obtained such sum to the date such sum is recovered.
The court also relied upon § 5-12-102(1)(b), C.R.S. (1992 Repl. Vol. 2), which sets the legal interest rate at 8%.
The factual circumstances presented are not materially in dispute. Here, public assistance, which under § 26-2-103(7), C.R.S. (1989 Repl. Vol. 11B) includes AFDC benefits and food stamps, was distributed to defendant through programs administered by the Jefferson County Department of Social Services.
I.
Defendant contends that the sentencing court erred by including, within its order of restitution, the sum for interest. Central to this argument is her contention that neither § 26-2-128(1) nor § 5-12-102(1)(b) is applicable in a criminal action. We do not agree.
A sentencing court must order restitution as a condition of probation in every case in which the victim sustained actual damages. Section 16-11-204.5(1), C.R.S. (1986 Repl. Vol. 8A). See People v. Phillips, 732 P.2d 1226 (Colo.App. 1986).
The burden is on the prosecution to prove that the amount of restitution sought is attributable to the defendant's conduct, People v. Engel, 746 P.2d 60 (Colo.App. 1987), and the amount of restitution ordered may not be based on mere speculation. Cumhuriyet v. People, 200 Colo. 466, 615 P.2d 724 (1980).
Further, if, as here, a victim is wrongfully deprived of money by a criminal defendant, the inclusion of interest upon the money so taken may be a proper element in the determination of the victim's actual loss. People v. Acosta, 860 P.2d 1376 (Colo.App. No. 92CA0151, April 22, 1993). This is because the loss of the use of the money involved results in pecuniary loss for which the award of interest may compensate. See Voight v. Colorado Mountain Club, 819 P.2d 1088 (Colo.App. 1991).
In determining the issue of restitution, the sentencing court is not required to conduct a mini-trial on the issue of damages. People v. Johnson, 780 P.2d 504 (Colo. 1989). Additionally, because the sentencing court is not bound by the strict rules of civil damages in fixing the amount of restitution, People v. Johnson, supra, and because interest may be a proper element within the restitution calculation, People v. Acosta, supra, we conclude that § 26-2-128(1), in conjunction with § 5-12-102(1)(b), properly may be used by the court in determining the amount of restitution to be paid by the defendant.
Contrary to defendant's contentions, we find no language in § 26-2-128(1) to indicate that this statute is applicable only to civil actions. Rather, this statute expressly allows recovery of the amount of fraudulently obtained public assistance with interest thereon, without restriction as to the method by which recovery may be had.
We further agree with the sentencing court that the "legal rate" contemplated by § 26-2-128(1) is that set forth in § 5-12-102(1)(b). That is, in the absence of evidence that the interest lost by the victim differed from the amount calculated by application of the statutory rate, or of an agreement pertaining to interest, the interest to be assessed for purposes of restitution shall be determined at the rate of 8% compounded annually from the date that the monies were wrongfully obtained.
II.
Defendant further contends that the evidence was insufficient to prove that Jefferson County suffered actual pecuniary loss beyond the $5,779 she received in benefits. We disagree.
Defendant argues that even if defendant had not received the AFDC benefits, it is possible that some other recipient would have received these funds. In this latter event, no loss of interest would have been sustained by the county general fund account. We reject this contention as being based entirely upon speculation without any evidentiary basis in the record.
III.
Defendant asserts that the trial court abused its discretion in its restitution order by ignoring her ability to pay. We agree.
We recognize generally that it is not required that the sentencing court make express findings concerning the ability of the defendant to pay restitution. People v. Quinonez, 735 P.2d 159 (Colo. 1987). However, the amount of restitution ordered must be tempered by considerations of defendant's financial ability to pay, her duty of support owed to her dependents, and other outstanding family responsibilities. People v. Johnson, supra.
Here, the record indicates that defendant, at the time of the offense, was an impoverished 40-year-old single mother of five children, who received no child support. During the period of her violation, she was earning $1,000 a month, over one-half of which was required for the family's rent. Additionally, because of a similar violation, she will owe to another county restitution represented to be approximately $25,000.
Notwithstanding these circumstances, the sentencing court appears to have ignored the requirements of § 16-11-204.5, C.R.S. (1986 Repl. Vol. 8A), which states:
The amount of such restitution [as a condition of probation] shall be based upon the actual, pecuniary damages sustained by the victim, the ability of the defendant to pay, and the defendant's obligations to support [her] dependents and to meet other family obligations.
Rather than exercise its discretion as to this issue, the sentencing court ordered that the terms of payment be determined by the probation department. The order further noted that an extension of probation for this purpose might be necessary.
Thus, although the sentencing court need not make findings concerning the requirements of § 16-11-204.5, People v. Quinonez, supra, we conclude that, under the specific facts at issue here, the court erred in its failure to take into consideration any element except the victim's pecuniary loss. See § 16-11-204.5; cf. People v. Powell, 748 P.2d 1355 (Colo.App. 1987).
The order of restitution is affirmed insofar as it sets the amount of loss, including interest, sustained by the victim. It is reversed as to the amount of restitution ordered, and the cause is remanded for further proceedings consistent herewith.
JUDGE CRISWELL concurs.