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People v. Quinonez4/6/1987
JUSTICE ROVIRA delivered the Opinion of the Court.
We granted certiorari to review two issues considered in People v. Quinonez, 701 P.2d 74 (Colo. App. 1984). The court of appeals held that restitution could not be ordered paid to persons other than those who were victims of crimes for which a defendant was charged and that restitution could not be ordered unless the trial court made a factual finding that a defendant had the ability to pay before the order was entered.
We agree that restitution may not be ordered paid to persons who were victims of a defendant's uncharged criminal activity. However, a defendant may, as part of a plea agreement, consent to the payment of restitution to persons or entities damaged as a result of his conduct. We also hold that the trial court need not make factual findings regarding a defendant's ability to pay prior to ordering restitution. The opinion of the court of appeals is affirmed in part and reversed in part.
I.
An altercation between the occupants of two cars occurred on March 1, 1982. James Darr and Christopher Mastalski, the occupants of one car, were injured and killed, respectively. The three occupants of the other car, which included Fred Quinonez (respondent), were charged with various offenses.
Respondent was charged with first-degree murder and accessory to first-degree murder in connection with Mastalski's death. He was not charged with any crimes relating to Darr. As part of a plea agreement, respondent pled guilty to the accessory charge and the murder charge was dismissed. He was sentenced to a community corrections program for two years, plus one year of probation. He also was ordered to pay $11,579.79 to Mastalski's estate and $491 to Darr. Respondent objected to the order of restitution, but did not refuse probation.
Respondent appealed the order of restitution on three grounds. He argued that he could not be ordered to pay restitution to Darr, because Darr was not a victim of the charges to which he had pled guilty. He also claimed that the restitution to Mastalski's estate was "really" for the treating physicians and hospital, and they were not victims within the meaning of section 16-11-204.5, 8 C.R.S. (1983 Supp.). Respondent also contended that the trial court's order was invalid because it had not considered his ability to pay in determining the amount of restitution.
The court of appeals reversed the order of restitution to Darr because respondent was not charged with a crime involving Darr. The court also held that the debts incurred for medical expenses were damages suffered by Mastalski and thus were properly payable by respondent, but remanded to the trial court, holding that factual findings concerning a defendant's ability to pay must be made whenever restitution is ordered.
II.
The first issue on which we granted certiorari is whether the trial court can order restitution, as a condition of a sentence to probation, payable to a victim of a related offense arising out of the same criminal episode where the defendant was not charged with the related offense.
Section 16-11-204.5, 8 C.R.S. (1983 Supp.), stated in perti- nent part as follows at the time the defendant was sentenced:
As a condition of every sentence to probation, the court shall provide that the defendant make restitution to the victim of his conduct for the actual damages which were sustained. . . . The amount of such restitution shall be based on the actual, pecuniary damages sustained by the victim, the ability of the defendant to pay, and the defendant's obligations to
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