No. 94CA1198Colorado Court of Appeals.
Decided February 22, 1996 Petition for Rehearing DENIED March 21, 1996 Petition for Writ of Certiorari DENIED September 16, 1996
Appeal from the District Court of Douglas County, Honorable Thomas J. Curry, Judge, No. 93CR140.
SENTENCE AFFIRMED IN PART REVERSED IN PART AND CAUSE REMANDED WITH DIRECTIONS
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Gale A. Norton, Attorney General, Raymond T. Slaughter, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, David K. Rees, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
David F. Vela, Colorado State Public Defender, James Grimaldi, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Division III
Plank and Roy, JJ., concur.
Opinion by JUDGE NEY.
[1] Subsequent to entering a guilty plea to a charge of felony theft, defendant, Robert Gilmore Estes, was sentenced to eight years of probation and was ordered to pay restitution of $56,000. He appeals the restitution portion of the sentence. We affirm in part, vacate in part, and remand with directions. [2] The defendant entered into a relationship with a married woman, and early in that relationship, borrowed $9,000 from her to purchase an automobile.Page 360
[3] Thereafter, defendant threatened the victim that he would reveal their relationship by disclosing alleged photographs and tape-recorded telephone conversations unless he was paid certain amounts. Ultimately, $44,000 was paid by the victim, but when further amounts were sought, she contacted law enforcement authorities and defendant was arrested. [4] Defendant was charged with criminal extortion and felony theft (class 3). He entered into a plea agreement whereby he plead guilty to an added count of felony theft (class 4) and the original charges were dismissed. [5] The trial court sentenced the defendant to a term of eight years of intensive supervised probation. As a condition of his probation, defendant was ordered to pay restitution of $56,000 to the victim. That amount consisted of the $44,000 paid to defendant, the $9,000 automobile loan, and $3,000 expended for counseling for the victim and her family. The court also directed that defendant pay for future counseling that might be needed by the victim and her family. I
[6] In an argument raised for the first time on appeal, defendant contends that because the criminal extortion statute under which he was charged, § 18-3-207(1), C.R.S. (1986 Repl. Vol. 8B), was later held to be unconstitutionally overbroad in Whimbush v. People, 869 P.2d 1245 (Colo. 1994), the trial court’s restitution order must be vacated because it penalizes conduct that is not criminal. We disagree.
II
[8] Defendant next maintains that the $9,000 automobile loan should not be part of the restitution portion of the sentence because the loan was not the result of criminal conduct. We agree.
(Colo.App. 1994). [11] The People’s reliance on People v. Borquez, 814 P.2d 382
(Colo. 1991) for the proposition that a restitution order may include losses sustained by a victim from non-criminal conduct is misplaced. Borquez stands for the proposition that a restitution order may properly include losses to a victim resulting from a series of uncharged criminal actions of defendant. However, we conclude that § 16-11-204.5 contemplates restitution to a victim only for losses resulting from criminal conduct by defendant. [12] There is no evidence that the $9,000 automobile loan was the result of any criminal activity. Accordingly, although that amount may be owed by defendant to the victim, it was improperly included in the amount of restitution.
III
[13] Defendant next asserts that the portion of the restitution order for $3,000 for family
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counseling is improper because the family members are not victims of defendant’s criminal conduct. We disagree.
[14] Section 16-11-204.5(1), C.R.S. (1986 Repl. Vol. 8A) provides for restitution to members of the victim’s immediate family and includes within the definition of “immediate family” the victim’s spouse and child. [15] Here, according to the victim impact statement, the effects of defendant’s conduct extended to the family of the victim in that both the victim and her family sustained psychological trauma from the defendant’s conduct. Because the victim and her family are all victims “immediately and directly aggrieved by a defendant” under the terms of § 16-11-204.5(4), C.R.S. (1986 Repl. Vol. 8A), we conclude that the trial court did not abuse its discretion in including $3000 as part of the restitution order for family counseling. IV
[16] Next, defendant argues that the trial court erred in ordering defendant to pay an undetermined amount of restitution for the family’s future counseling. We agree.
V
[19] Finally, defendant contends the restitution order must be vacated because the trial court failed to consider his ability to make restitution. We disagree.
(Colo. 1987). [21] The statements presented at the sentencing hearing revealed that the defendant was employed as an educational director at a boys’ ranch. Accordingly, the record supports the trial court’s conclusion that the defendant has the ability to pay restitution. [22] The restitution order is remanded with instructions to vacate the portions of the order regarding the $9,000 auto loan and the undetermined expenses of future counseling. The remaining portions of the order are affirmed. [23] JUDGE PLANK and JUDGE ROY concur.