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State of Idaho v. Theodore Charles Mosqueda

December 30, 2010


Appeal from the District Court of the Fourth Judicial District, State of Idaho, Ada County. Hon. Darla S. Williamson, District Judge.

The opinion of the court was delivered by: Perry, Judge Pro Tem

2010 Opinion No. 90

Stephen W. Kenyon, Clerk

Judgments of conviction and sentences for two counts of delivery of a controlled substance, affirmed. Order of restitution, affirmed.

Theodore Charles Mosqueda appeals from his judgments of conviction entered following a jury trial on two counts of delivery of a controlled substance. He asserts several errors in the district court's order for restitution and also that his sentences of incarceration are excessive. We affirm.



After an Ada County Sheriff's detective received information that Mosqueda and his girlfriend, Patricia "Penny" Garcia, were selling prescription pills, an undercover officer called Mosqueda and set up a controlled buy. On April 10, 2008, the officer, accompanied by a surveillance team consisting of several additional officers, met with Mosqueda and purchased thirty-two oxycodone pills from him. A week later another controlled buy was arranged with Mosqueda. At this meeting, occurring on April 16, 2008, Mosqueda was accompanied by Garcia and the officer purchased forty hydrocodone pills from the couple. On two subsequent occasions May 14, 2008, and July 14, 2008, the undercover officer called Garcia and set up two additional controlled buys with her. The undercover officer, again accompanied by the surveillance team, met with Garcia and purchased prescription pills from her. Mosqueda was not personally involved in or charged with any criminal offense related to these two later deliveries.

Mosqueda was charged with delivery of a controlled substance (oxycodone), I.C. § 37- 2732(a)(1)(A), for the April 10 buy and delivery of a controlled substance (hydrocodone), I.C. § 37-2732(a)(1)(A), for the April 16 buy, and was convicted of both charges following a jury trial. At the time set for sentencing, the state sought restitution in the amount of $4,235.17 for "investigative costs" under the provisions of I.C. § 37-2732(k) and presented documentation in support of that request. Mosqueda objected on the basis that the restitution documentation had not been disclosed in advance of the hearing. The district court vacated the sentencing hearing for two weeks to allow Mosqueda time to review the state's request.

At the ensuing sentencing hearing the state again presented its restitution request for $4,235.17. Mosqueda's public defender attempted to stipulate to the amount of the restitution sought, but Mosqueda personally objected. The state responded that if Mosqueda insisted on a full restitution hearing it might seek restitution for the costs incurred for the officers to attend that hearing pursuant to the provisions of I.C. § 37-2732(k). After discussions with the prosecutor, the district court explained to Mosqueda that, should restitution be ordered, the costs for the officers to attend a further restitution hearing could cause the restitution amount to increase by approximately $760. Mosqueda continued to object. The district court calendared a full restitution hearing for a later date and proceeded to sentence Mosqueda for his convictions. The district court imposed a unified sentence of ten years, with three years fixed, on the oxycodone conviction and a concurrent unified sentence of five years, with three years fixed, on the hydrocodone conviction.

At the further restitution hearing the state presented the testimony of an Ada County Sheriff's Office records custodian regarding the hours worked by the various officers involved in the case and how their hourly rate of pay was calculated, which included designated monetary amounts for certain allotted fringe benefits. The state presented a written breakdown of its restitution request, again seeking the same amount as requested before, $4,235.17. Mosqueda, through counsel, contended that restitution was not statutorily authorized for officers' time attendant to the May 14 and July 14, 2008, controlled buys from "co-defendant"*fn1 Garcia because I.C. § 37-2732(k) allows only "restitution for costs incurred by law enforcement agencies in investigating the violation[s]" for which he was convicted and that he was not charged with a crime relating to those two later deliveries. Mosqueda further contended that restitution was not warranted because the state's investigative hours worked, with regard to his convictions, appeared inflated. The state responded to this last argument with a request for a full evidentiary hearing at which all the officers could be present and testify and indicated the costs of doing so would be included in an amended restitution request. In response, Mosqueda contended that the statute did not authorize restitution for the cost of having the officers testify at the restitution hearing itself. Ultimately, the district court granted the state's motion to continue the restitution hearing to a later time so that the officers could testify.

At the final restitution hearing the officers involved in the controlled buys appeared and testified. Contrary to Mosqueda's contentions, the district court held that the costs for the officers to attend the restitution hearing were compensable under the terms of the statute. The court further held, based on the testimony, that the costs associated with the officers' time spent on the Garcia May 14 and July 14 controlled buys were reasonably incurred in investigation of the violations for which Mosqueda was convicted because those later controlled buys could have produced evidence admissible against Mosqueda during his criminal trial. The district court entered a restitution order against Mosqueda in the amount of $5,178.50, which encompassed the original restitution request and the additional amounts for the officers' time to testify at the final restitution hearing. Mosqueda appeals.



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