February 23, 2017

Income Eligibility Guidelines Amended in Several Chief Justice Directives

On Wednesday, February 22, 2017, the Colorado State Judicial Branch released updates to several Chief Justice Directives to reflect changes in the income eligibilitly guidelines. The amended Chief Justice Directives are listed here:

  • CJD 16-02, “Court Appointments Through the Office of Respondent Parents’ Counsel,” Attachment B amended.
  • CJD 14-01, “Appointment of State-Funded Counsel in Juvenile Delinquency Cases,” Attachment B amended.
  • CJD 04-06, “Court Appointments Through the Office of the Child’s Representative,” Attachment A amended.
  • CJD 04-05, “Appointment and Payment Procedures for Court-appointed Counsel, Guardians ad litem, Child and Family Investigators, and Court Visitors paid by the Judicial Department in proceedings under Titles 12, 13, 14, 15, 19 (special respondents in dependency and neglect only), 22, 25.5, and 27, C.R.S.,” Attachment A amended.
  • CJD 04-04, “Appointment of State-Funded Counsel in Criminal Cases and For Contempt of Court,” Attachment B amended.

For all of the Colorado Supreme Court’s Chief Justice Directives, click here.

Colorado Supreme Court: Competency Evaluation Properly Excluded from Speedy Trial Calculation

The Colorado Supreme Court issued its opinion in Nagi v. People on Tuesday, February 21, 2017.

Criminal Trials—Continuances—Speedy Trial.

Defendant sought review of the Colorado Court of Appeals’ judgment affirming his conviction and sentence for sexual assault on a child by one in a position of trust. See People v. Nagi, 2014 COA 12. In addition to rejecting his challenge to the legality of his sentence, the court of appeals rejected defendant’s assertion that he was denied his statutory right to a speedy trial, as prescribed by C.R.S. § 18-1-405. Defendant had argued that the district court lacked sufficient grounds to justify ordering a competency evaluation, and that the period during which defendant was under observation or examination was therefore not properly excluded from the calculation of the time within which trial was statutorily required. With one member of the panel dissenting, the appellate court found that the district court did not abuse its discretion in ordering the evaluation, notwithstanding its reference to defendant’s choice to proceed pro se as at least one of the reasons for questioning his competency, and that the evaluation period was therefore properly excluded and defendant’s statutory speedy trial right was not violated.

Summary provided courtesy of The Colorado Lawyer.

Tenth Circuit: Commerce Clause Does Not Protect Creator of Child Pornography

The Tenth Circuit Court of Appeals issued its opinion in United States v. Humphrey on Wednesday, January 18, 2017.

Reginald Humphrey was convicted of the rape and forcible sexual abuse of his live-in girlfriend’s stepdaughter and sentenced to five years’ imprisonment. During the state’s investigation into the abuse claims, police found photographs and videos depicting the abuse on Humphrey’s computer. Subsequent to his conviction on the abuse claims, a grand jury indicted Humphrey on one count of producing child pornography in violation of 18 U.S.C. § 2251(a).

Section 2251(a) prohibits a minor from engaging in sexually explicit conduct to create a visual depiction of such conduct if it was made with materials that have been mailed, shipped, or transported via intrastate commerce. The court stated that there is no doubt § 2251(a) applies to Humphrey’s conduct in this case. Humphrey conditionally pleaded guilty to the charge, and reserved his right to appeal the district court’s ruling, arguing that the application of § 2251(a) to his solely intrastate activities violated the commerce clause as he did not distribute or share the child pornography across state lines.

The Tenth Circuit had to determine if the previous decisions of the court upholding the application of § 2251(a) to the production of child pornography were invalidated by the Supreme Court decision in National Federation of Independent Business v. Sebelius. While Humphrey acknowledges the court’s holding in United States v. Jeronimo-Bautista that the application of § 2251(a) to the intrastate production of child pornography did not violate the commerce clause, he argues the holding should be overturned in light of the ruling in NFIB, which rejected congress’s regulation of an individual’s inactivity in the market.

The court rejected Humphrey’s argument that NFIB should apply, as the NFIB case involved an individual’s failure to engage in a commercial activity where Congress had mandated action, while Humphrey’s case involved no requirement to act by Congress. The court states that this distinguishes Humphrey’s case from NFIB, because, “here, Humphrey didn’t fail to produce child pornography; he actively engaged in producing it.” The court states that because the NFIB case has no affect on Congress’s ability to regulate interstate commerce, they are bound by their previous holding in Jeronimo-Bautista.

The court affirmed the district court’s denial of Humphrey’s motion to dismiss.

HB 17-1134: Creating Civil Remedy Against Elected Officials in Sanctuary Jurisdictions

On January 30, 2017, Rep. Dave Williams and Sen. Vicki Marble introduced HB 17-1134, “Concerning Holding Colorado Government Accountable for Creating Sanctuary Jurisdiction Policies.”

The bill is known as the ‘Colorado Politician Accountability Act’.

The bill includes a legislative declaration that states that addressing sanctuary jurisdictions is a matter of statewide concern and that makes findings about how sanctuary policies are contrary to federal law and state interests.

The bill creates a civil remedy against the state or a political subdivision of the state (jurisdiction) and against its elected officials for creating sanctuary policies. The bill also creates a crime of rendering assistance to an illegal alien that can be brought against an elected official for creating a sanctuary jurisdiction.

An elected official is responsible for the creation of a sanctuary jurisdiction if the elected official votes in favor of imposing or creating a law, ordinance, or policy that allows the jurisdiction to operate as a sanctuary jurisdiction, fails to take steps to try to change a law, ordinance, or policy that allows the jurisdiction to operate as a sanctuary jurisdiction, or is a county sheriff who imposes or enforces a policy that allows the jurisdiction to operate as a sanctuary jurisdiction in a county in which the elected officials have not voted to impose or create a sanctuary jurisdiction.

The bill allows any person who claims that he or she is a victim of any crime committed by an illegal alien who established residency in a sanctuary jurisdiction to file a civil action for compensatory damages against a jurisdiction and against the elected officials of the jurisdiction who were responsible for creating the policy to operate as a sanctuary jurisdiction. Notwithstanding the protections of the ‘Colorado Governmental Immunity Act’, the jurisdiction and its officials who are responsible for creating a sanctuary jurisdiction are civilly liable for damages if the person who engaged in the criminal activity:

  • Is determined to be an illegal alien;
  • Had established residency in the sanctuary jurisdiction; and
  • Is convicted of the crime that is a proximate cause of the injury to a person or property.

The maximum amount of compensatory damages for injury to persons is $700,000 per person or $1,980,000 for injury to 2 or more persons; except that no person may recover in excess of $700,000. The maximum amount of compensatory damages for injury to property is set at $350,000 per person or $990,000 for injury to multiple persons; except that no person may recover in excess of $350,000.

The bill defines a ‘sanctuary jurisdiction’ as a jurisdiction that adopts a law, ordinance, or policy on or after the effective date of this bill that prohibits or in any way restricts an official or employee of the jurisdiction from:

  • Cooperating and complying with federal immigration officials or enforcing federal immigration law;
  • Sending to or receiving from or requesting from federal immigration officials information regarding the citizenship or immigration status, lawful or unlawful, of an individual;
  • Maintaining or exchanging information about an individual’s immigration status, lawful or unlawful, with other federal agencies, state agencies, or municipalities;
  • Inquiring about an individual’s name, date and place of birth, and immigration status while enforcing or conducting an official investigation into a violation of any law of this state;
  • Continuing to detain an individual, regardless of the individual’s ability to be released on bail, who has been identified as an illegal alien while in custody for violating any state law; or
  • Verifying the lawful presence and eligibility of a person applying for a state or local public benefit as required by state and federal law.

The bill sets forth the requirements for determining when an illegal alien has established residency in a sanctuary jurisdiction. An ‘illegal alien’ is defined as a person who is not lawfully present within the United States, as determined by federal immigration law.

The governing body of any jurisdiction is prohibited from adopting a law, ordinance, rule, policy, or plan or taking any action that limits or prohibits an elected official, employee, or law enforcement officer from communicating or cooperating with an appropriate public official, employee, or law enforcement officer of the federal government concerning the immigration status of an individual residing in the state. The governing body of a jurisdiction is required to provide written notice to each elected official, employee, and law enforcement officer of the jurisdiction of his or her duty to communicate and cooperate with the federal government concerning enforcement of any federal or state immigration law. The governing body of any jurisdiction in this state is required to annually submit a written report to the department of public safety (department) that the jurisdiction is in compliance with the cooperation and communication requirements. If the department does not receive those written reports, the department is required to provide the name of that jurisdiction to the state controller.

A law enforcement officer of a jurisdiction who has reasonable cause to believe that an individual under arrest is not lawfully present in the United States shall immediately report the individual to the appropriate U.S. immigration and customs enforcement office (ICE) within the department of homeland security. The governing body of any jurisdiction is required to report annually to the department on the number of individuals who were reported to ICE by law enforcement officers from that jurisdiction. The department is directed to compile and submit annual reports on compliance to the general assembly and to the state controller. The state controller is required to withhold the payment of any state funds to any jurisdiction that is found by the department to have failed to comply with these reporting requirements. The state controller shall withhold funds until the department notifies the state controller that the jurisdiction is in compliance.

The bill creates the crime of rendering assistance to an illegal alien through a sanctuary jurisdiction, which is a class 4 felony. A person who is an elected official of a jurisdiction commits rendering assistance to an illegal alien through a sanctuary jurisdiction if, with intent to hinder, delay, or prevent the discovery, detection, apprehension, prosecution, conviction, or punishment of illegal aliens within the jurisdiction:

  • He or she was responsible for creating a sanctuary jurisdiction in the jurisdiction to which the official is elected; and
  • When, as a result of the protection afforded by a sanctuary jurisdiction, a third person engages in criminal activity and the third person:
  • Is an illegal alien as legally defined by federal immigration law;
  • Had established residency in the sanctuary jurisdiction that was created by the official; and
  • Has been convicted of a crime that caused injury to a person or to property.

A person who has knowledge of a crime committed by an illegal alien as a result of the creation of a sanctuary jurisdiction may file an affidavit with the attorney general or with a district attorney outlining the crime and requesting that charges be brought or that a grand jury be impaneled. The attorney general or district attorney shall investigate and respond in writing with his or her decision to the person filing the affidavit within 49 days. If the attorney general or district attorney declines to bring charges or impanel a grand jury, the person may file a second affidavit directly with the applicable court.

The bill includes a severability clause and a provision that states that the bill is not subject to judicial review.

The bill takes effect upon passage and applies to acts or omissions occurring on or after said date.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs and Judiciary committees. It is scheduled to be heard in the State, Veterans, and Military Affairs committee on February 22, 2017, at 1:30 p.m.

HB 17-1138: Requiring Review of Hate Crime Reporting by Law Enforcement

On February 1, 2017, Rep. Joseph Salazar introduced HB 17-1138, “Concerning the Reporting of Hate Crimes by Law Enforcement Agencies.”

The bill requires the division of criminal justice within the department of public safety, on or before July 1, 2019, and on or before July 1 of each year thereafter, to:

  • Review reports provided by each law enforcement agency in the state to the Colorado bureau of investigation;
  • Determine whether each law enforcement agency is accurately reporting hate crimes occurring within the agency’s jurisdiction; and
  • Report such information to the general assembly.

The bill was introduced in the House and assigned to the Judiciary Committee.

HB 17-1147: Adding a Statutory Definition of the Purpose of Community Corrections

On February 2, 2017, Rep. Lang Sias and Sen. Daniel Kagan introduced HB 17-1147, “Concerning Defining the Purposes of Community Corrections Programs.”

The bill provides the purposes of community corrections programs.

The bill was introduced in the House and assigned to the Judiciary Committee.

HB 17-1109: Expanding Permissible Venues for Prosecution of Child Sexual Assault Pattern Offenses

On January 20, 2017, Reps. Terri Carver & Jessie Danielson and Sens. John Cooke & Rhonda Fields introduced HB 17-1109, “Concerning Prosecuting in One Jurisdiction a Person who has Committed Sexual Assaults Against a Child in Different Jurisdictions.”

In current law, several sex-assault-on-a-child crimes are designated ‘pattern’ offenses, meaning that the defendant has a pattern of sexually assaulting the same child repeatedly. When such assaults occur in more than one jurisdiction, the district attorney in each such jurisdiction must prosecute a case for the incident that occurred in his or her jurisdiction.

The bill allows a prosecutor to charge and bring a pattern-offense case for all such assaults in any jurisdiction where one of the acts occurred. The bill allows the prosecution of a defendant charged with sex-assault-on-a-child pattern offense or sex-assault-on-a-child-in-a-position-of-trust pattern offense to be tried:

  • In a county where at least one or more of the incidents of sexual contact occurred;
  • In a county where an act in furtherance of the offense was committed; or
  • In a county where the victim resided during all or part of the offense.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 21, 2017, at 1:30 p.m.

HB 17-1141: Providing Equal Protection from Deprivation of Constitutional Rights by a Federal Employee

On February 1, 2017, Rep. Kimi Lewis introduced HB 17-1141, “Concerning the Malicious Deprivation of Constitutional Rights by a Federal Employee Related to Public Lands.”

The bill makes it illegal for a person who is a federal employee acting under color of law to take any action:

  • That deprives a range allotment owner of any property right appurtenant, inherent, or related to the range allotment, including the right to possess, use, dispose of, exclude other from, or defend the range allotment; and
  • For which the deprivation offends due process or is a physical or regulatory taking without the payment of just compensation.

A violation is an unclassified felony punishable by a fine of up to $500,000 and imprisonment of up to 5 years, or both. An owner who suffers a loss as a result of the person’s actions also has a civil right of action to recover damages.

The bill was introduced in the House and assigned to the State, Veterans, and Military Affairs Committee. It is scheduled to be heard in committee on February 22, 2017, at 1:30 p.m.

HB 17-1111: Giving Juvenile Court Jurisdiction to Enter Protection Orders

On January 20, 2017, Rep. Susan Beckman introduced HB 17-1111, “Concerning Allowing Juvenile Courts to Enter Civil Protection Orders in Dependency and Neglect Cases.”

The bill clarifies that the juvenile court (court) has jurisdiction to enter civil protection orders in dependency and neglect actions in the same manner as district and county courts. The court must follow the same procedures for the issuance of the civil protection orders and use standardized forms. Civil protection orders must be entered into the central registry for protection orders and are enforced in the same manner as civil protection orders issued by other courts.

If the civil protection order is made permanent, it remains in effect after the termination of the dependency and neglect action. The clerk of the court shall file a certified copy of a permanent civil protection order in an existing district court case, if applicable, or with the county court in the county where the protected party resides.

The bill was introduced in the House and assigned to the Judiciary Committee. It is scheduled for hearing in committee on February 23, 2017, at 1:30 p.m.

Colorado Supreme Court: “Possession” of Child Pornography Occurs When Computer User Views Files on Internet

The Colorado Supreme Court issued its opinion in Marsh v. People on Monday, February 6, 2017.

Child Pornography—Criminal Trials—Evidence.

In this case, the Colorado Supreme Court considered the meaning of “possession” in  Colorado’s child pornography statute and held that when a computer user seeks out and views child pornography on the Internet, he possesses the images he views. Accordingly, the court concluded that because the evidence presented at trial established that petitioner’s cache contained images that a computer user had previously viewed on the web browser, the Internet cache images qualified as relevant evidence that the petitioner had previously viewed, and thus possessed, those images. Therefore, the court affirmed the court of appeals’ judgment in its entirety.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: Totality of Circumstances Informs Probable Cause Determination

The Colorado Supreme Court issued its opinion in People v. Cox on Monday, February 6, 2017.

Fourth Amendment—Probable Cause—Totality of the Circumstances—Canine Alerts.

Several factors led the trooper, who had stopped defendant’s vehicle for a traffic infraction, to suspect that there might be evidence of illegal activity in the vehicle’s trunk, including defendant’s unusual nervousness, an inconsistency in his account of his travels, the fact that he had two cell phones on the passenger seat of his vehicle, and the fact that the trooper’s canine alerted to the trunk for the presence of  drugs. The trooper searched the trunk over defendant’s objection and found  multiple sealed packages of marijuana. Defendant filed a motion to suppress the evidence found in the trunk, which the trial court granted. The trial court concluded that the canine alert could not be considered under the totality of the circumstances because the canine would alert to both legal and illegal amounts of marijuana. The trial court ultimately held that the trooper did not have probable cause to search the trunk.

The Colorado Supreme Court reversed. Under People v. Zuniga, 2016 CO 52, issued before the trial court issued its order in this case, the canine alert should be considered as a part of the totality of the circumstances. Considering the totality of the circumstances, including the canine alert, defendant’s unusual nervousness, an inconsistency in his account of his travels, and the fact that he had two cell phones on the passenger seat of his vehicle, there was probable cause to search the vehicle’s trunk.

Summary provided courtesy of The Colorado Lawyer.

Colorado Supreme Court: In Identity Theft Case, People Must Show Knowledge of Theft

The Colorado Supreme Court issued its opinion in People v. Molina on Monday, February 6, 2017.

Criminal Law—Identity Theft.

This case came to the Colorado Supreme Court on certiorari review of the court of appeals’ unpublished opinion, People v. Molina, No. 11CA1650 (Colo. App. June 19, 2014). A jury convicted Daniela Molina of two counts of identity theft and three counts of forgery. The court granted certiorari to resolve three issues: (1) whether the People must show that Molina knew she stole another person’s information; (2) whether there was sufficient evidence that Molina knew she stole a real person’s information; and (3) whether an apartment lease and employment qualify under the identity theft statute as “thing[s] of value.” The court answered all three questions in the affirmative. Therefore, the court affirmed in part and reversed in part the court of appeals’ judgment and remanded the case for proceedings consistent with this opinion.

Summary provided courtesy of The Colorado Lawyer.