February 12, 2016

e-Legislative Report: 2/3/2016

Editor’s Note: Yesterday, we erroneously published an e-Legislative Report from 2015. The current e-Legislative Report is below. We apologize for the confusion.

e-Legislative Report

Hello loyal e-leg report readers, here is this week’s installment of the world under the Gold Dome; as always, we welcome your feedback, thoughts, comments and questions.  This news report is designed to keep you up to date on the activity of interest to the bar, and to lawyers across practice areas that are happening at the Capitol.

Things move pretty fast this time of year, and we’re off to a busy start – the legislature has released over 300 bills for consideration, committees are meeting and negotiations and amendments are happening hundreds of times a day.  The capitol is humming for sure!

Feel free to drop me a line on how we are doing or raise an issue on a piece of legislation. Contact me at jschupbach@cobar.org

CBA Legislative Policy Committee

For followers who are new to CBA legislative activity, the Legislative Policy Committee (“LPC”) is the CBA’s legislative policy making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions from requests from the various sections and committees of the Bar Association.  Members are welcome to attend the meetings – please RSVP if you are interested.

LPC Meeting held Friday, January 29, 2016

The following bills were discussed at the LPC last week.  Other bills of interest from that agenda are tracked and updated below.

SB 16-013 Concerning Statutory Changes Related to the Office of the Child Protection

The bill addresses several items in the statutes relating to the office of the child protection ombudsman (office), including:

Clarifying that the child protection ombudsman board’s (board) duties are advisory only;  Shifting the responsibility for accountability in policies and procedures from the board to the office; Clarifying that the ombudsman cannot be subpoenaed by independent parties to testify in personal custody proceedings; and Removing the statutory requirement for an audit of the office by the office of the state auditor but leaving it at the discretion of the legislative audit committee to request such an audit at a future date.

The CBA – through the Legislative Policy Committee is seeking to amend this bill to restore the ability to subpoena the Ombudsman.  This is an important part of the process, and a vital step to access to data that might be otherwise unavailable.

HB 16-1085 Concerning Simplifying the Process for Returning to a Proper Name after Decree of Dissolution

Under current law, a party to a divorce or legal separation may request in the petition that his or her prior name be restored as part of the decree of dissolution or legal separation. This process to restore a prior name does not involve a background check or publication of the name. However, if the party does not change his or her name at the time the decree of dissolution or legal separation is entered, he or she must follow the procedures for a name change under civil law that include a fingerprint-based background check and publication of the name.

Subject to certain conditions, the bill permits a party to a dissolution or legal separation action to request the restoration of his or her prior full name by filing a motion in the court that granted the divorce or legal separation. The ex-parte motion does not require notice to the other party to the divorce or legal separation. The bill includes the requirements for filing the motion and the conditions under which the court must grant the motion.
The bill also clarifies that the provisions of the adult name change statute do not apply to a party to a dissolution or legal separation action who requests restoration of a prior name pursuant to the new statute.

The CBA supports this legislation. We are working with the sponsor with respect to an amendment that would require notice be given to the other party in the dissolution.

Bills that the LPC is monitoring, watching or working on can be found at this link:

http://www.statebillinfo.com/sbi/index.cfm?fuseaction=Public.Dossier&id=21762&pk=996

@ the Capitol – These are the bills we are focused on:

HB 16-1051 Forms To Transfer Vehicle Ownership Upon Death

On and after the effective date of the bill, the department of revenue (department) shall make available a beneficiary designation form (form) that allows the owner or joint owners of a vehicle to arrange to transfer ownership of the vehicle to a named beneficiary upon the death of the owner or upon the death of all joint owners of the vehicle. Upon the death of the owner or of the last surviving joint owner, the beneficiary may present the form to the department and request a new title of ownership of the vehicle in the beneficiary’s name. The request must be accompanied by: Proof of the death of the vehicle’s owner or proof of the death of the last surviving joint owner of the vehicle; and the statutory fee for an application for a certificate of title.

Upon the presentation of a properly executed and notarized form and the accompanying documents and fee, the department, subject to any security interest, shall issue a new certificate of title to the beneficiary.

The transfer of ownership of a vehicle via a form is not considered testamentary and is not subject to the provisions of the “Colorado Probate Code”.
The CBA is working with the sponsor and other attorneys to ensure that the intent of the bill is harmonized with existing laws, and that it will work well once enacted into law.

HB 16-1077 Recreate Statutory Revisions Committee

The statutory revision committee created in 1977 and repealed in 1985, was a standing body tasked with making an ongoing investigation into statutory defects and anachronisms. The bill recreates the committee.  The recreated committee is comprised of 8 members, with the majority and minority party leaders of each chamber of the general assembly appointing 2 members of those bodies. The committee is staffed by the office of legislative legal services, and is charged with: Making an ongoing examination of the common law and statutes of the state and current judicial decisions for the purpose of discovering defects and anachronisms in the law and recommending needed reforms; Receiving, soliciting, and considering proposed changes in the law from legal organizations, public officials, lawyers, and the public generally as to defects and anachronisms in the law; Recommending legislation, from time to time, to effect such changes in the law as it deems necessary in order to modify or eliminate antiquated, redundant, or contradictory laws; and Reporting its findings and recommendations from time to time to the committee on legal services and annually to the general assembly.

The CBA is working with the Sponsors to offer amendments to shape the scope and membership of this committee.  We believe that the members and expertise of the Bar Association can provide value to the committee upon enactment, and into the future, should the bill pass.

HB 16-1145 Documentary Fee For Residential Real Property

Currently, a person filing a real property conveyance document with a county clerk and recorder must pay a documentary fee if the consideration for the conveyance is more than $500. The amount of the fee is based on the consideration paid, which is the total sales price to the purchaser, unless there is evidence of a separate consideration paid for personal property.

For purposes of the documentary fee, the bill changes the determination of the consideration paid for the grant or conveyance of residential real property as follows: Eliminates any reduction for a separate consideration paid for personal property from the total sales price; Generally requires the consideration amount listed on the grant or conveyance document to be used to determine the documentary fee; and If there is no consideration amount or the amount listed on the grant or conveyance document is $500 or less, and there is a related declaration filed, then the total sales price listed on the declaration is used to determine the documentary fee.  The bill also specifies that, unless indicated as commercial or industrial real property at the time of recording, a grant or conveyance is deemed to be of residential real property for the purpose of determining the documentary fee.

The CBA has significant concerns about this bill and the effects it will have upon real property transactions across the state.  We have been working with the stakeholders and sponsors to try and improve the bill, and to try and find a solution to the documentary fee challenges, but without harming other important aspects of property transactions.

SB 16-026 Personal Rights Of Protected Persons

A guardian or conservator shall not restrict a protected person’s right of communication, visitation, or interaction with other persons, including the right to receive visitors, telephone calls, or personal mail, unless such restrictions are authorized by a court order.  A court may issue an order restricting the communications, visitations, or interactions that a person may have with a protected person upon a showing of good cause by a guardian or conservator. In determining whether to issue such an order, the court shall consider certain factors.  An interested person, including the protected person, who reasonably believes that a guardian or conservator has violated a court order or abused his or her discretion in restricting a protected person’s right of communication, visitation, or interaction with other persons may move the court to: Require the guardian or conservator to grant a person access to the protected person; Restrict, or further restrict, a person’s access to the protected person; Modify the guardian or conservator’s duties; or Remove the guardian or conservator.
A guardian or conservator who knowingly isolates a protected person in violation of law or a court order is subject to removal. With certain exceptions, a guardian or conservator shall promptly notify a protected person’s closest known family members and any person designated by the protected person to be notified in the event that the protected person: Changes his or her residence; Resides at a location other than the protected person’s residence for more than 7 days; Is admitted to a medical facility for acute care or
emergency care; or Dies.

The CBA supports the intent and purpose of this legislation.  We offered testimony that outlined our belief that this was a significant bill, outlined some concerns we had for how the bill might not work well with existing statute, and reaffirmed our commitment to continuing our work with the sponsor.

New Bills of Interest

These are a few of the new bills.  They have been sent to our Sections for review and comment.  If you have any questions about these – or any other bills at the legislature, please drop me a line and I’m happy to help you however I can.

HB 16-1115 Prohibition of Sealing Municipal Domestic Violence Convictions

Under current law, conviction records related to municipal offenses are eligible for record sealing. The bill prohibits sealing a municipal assault or battery conviction or any other municipal conviction, if the conviction involves the underlying factual basis of domestic violence.

HB 16-1117 Electronic Recording for Certain Custodial Interrogation

The bill requires all law enforcement agencies to have audio-visual recording equipment available and policies and procedures in place for preserving custodial interrogations by January 1, 2017. A peace officer must record custodial interrogations occurring in a permanent detention facility if the peace officer is investigating a class 1 or 2 felony or a felony sexual assault. A peace officer does not have to record the interrogation if: the defendant requests that the interrogation not be recorded and the defendant’s request is preserved by electronic recording or in writing; The recording equipment fails; The recording equipment is unavailable, either through damage or extraordinary circumstances; Exigent circumstances related to public safety prevent recording; or The interrogation takes place outside of Colorado.

The court may admit evidence from a custodial interrogation that is not recorded. When offering evidence from an unrecorded interrogation, if the prosecution shows by a preponderance of the evidence that one of the exceptions apply or that the evidence is offered as rebuttal or impeachment evidence, the court may admit the evidence without a cautionary instruction. If the prosecution does not meet that burden, the court shall issue a cautionary instruction to the jury after admitting the evidence.

HB 16-1154 Employer Definition Clarify Franchisee Status

The bill clarifies that the definition of “employer” only includes a person that possesses authority to control an employee’s terms and conditions of employment and actually exercises that authority directly. The bill specifies that a franchisor is not considered an employer of a franchisee’s employees unless a court finds that a franchisor exercises a type or degree of control over the franchisee or the franchisee’s employees not customarily exercised by a franchisor for the purpose of protecting the franchisor’s trademarks and brand.

Tenth Circuit: Statutory Rape Not Per Se Crime of Violence for Sentence Enhancement Purposes

The Tenth Circuit Court of Appeals issued its opinion in United States v. Madrid on Monday, November 2, 2015.

Jonathan Madrid pleaded guilty to possession of methamphetamine with intent to distribute in 2014. The presentence investigation report (PSR) classified him as a “career offender” subject to sentence enhancement due to his two prior convictions, one of which was a New Mexico conviction for cocaine trafficking and the other of which was a Texas conviction for statutory rape. The career offender enhancement changed his Guidelines sentencing range from 92-115 months to 188-235 months. He was sentenced to 188 months. He appealed his sentence, arguing the Texas conviction does not qualify as a “crime of violence” under U.S.S.G. § 4B1.1.

The Tenth Circuit noted that a conviction counts as a crime of violence when it (1) has as an element the use, attempted use, or threatened use of physical force; (2) is specifically enumerated in the Guidelines as a crime of violence; or (3) otherwise involves conduct that presents a risk of serious injury. Using the modified categorical approach, the Tenth Circuit analyzed the Texas statute under which Madrid was convicted to see if it fits the definition of crime of violence. The parties agreed that force was not an element of Madrid’s crime of conviction. The Tenth Circuit noted that the Guidelines specifically listed “forcible sex offenses” as crimes of violence, but held that statutory rape is not per se a forcible sex offense. The Tenth Circuit looked only to the elements of the charged offense, not the defendant’s actual conduct, to determine whether the offense was forcible. Because the Texas statute under which Madrid was convicted did not contain an element of force, the Tenth Circuit declined to look at Madrid’s actual conduct and found that his offense did not qualify as a forcible sex offense for Guidelines purposes.

Finally, the Tenth Circuit examined the residual clause of the Guidelines. Following the U.S. Supreme Court’s invalidation of the residual clause of the Armed Career Criminal Act in Johnson v. United States, 135 S. Ct. 2551 (2015), the Tenth Circuit found that the substantially similar Guidelines clause was invalid as unconstitutionally vague. The Tenth Circuit relied on Johnson‘s holding in stating “[t]he vagueness doctrine exists not only to provide notice to individuals, but also to prevent judges from imposing arbitrary or systematically inconsistent sentences.” Because the Guidelines’ residual clause was substantially similar to that of the ACCA, the Tenth Circuit found it did not provide adequate notice to defendants and allowed potential abuse by the judiciary.

The Tenth Circuit remanded with instructions for the district court to vacate Madrid’s sentence and resentence him consistent with its opinion.

Tenth Circuit: DEA Agent’s Removal of Luggage from Common Storage Area Constituted Illegal Seizure

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hill on Monday, November 9, 2015.

Kelvin Hill boarded an eastbound Amtrak train in Los Angeles. When it made a regularly scheduled stop in Albuquerque, DEA Agent Kevin Small boarded the train and entered the common luggage area. He found a small black and white “Coogi” brand bag with no tag. He took the suitcase into the passenger area and asked each passenger whose bag it was. No one responded, including Hill, so Agent Small deemed the bag abandoned. He searched the suitcase, finding a large quantity of cocaine as well as clothing linking the bag to Hill.

A grand jury indicted Hill of possession with intent to distribute 500 grams or more of cocaine. He moved to suppress the cocaine, asserting Small’s actions in taking the bag from the common luggage area and moving it about the coach amounted to an illegal seizure, rendering Hill’s abandonment of the bag invalid. The district court denied Hill’s motion, instead concluding Small did not seize the bag at any time before Hill abandoned it. Hill entered a conditional guilty plea, reserving the right to appeal the district court’s denial of his suppression motion.

On appeal, the Tenth Circuit analyzed the following question: “Did Small’s actions in removing Hill’s bag from the train’s common luggage area and carrying it through the coach as he questioned passengers constitute a seizure of the bag?” The Tenth Circuit concluded that it did. The Tenth Circuit found that Small’s actions interfered with Hill’s possessory interest in the bag, because by taking the bag for his own purposes, Small interfered with Hill’s right to access the bag for his own purposes, on his own time, and at the place where unchecked baggage is properly stowed. The Tenth Circuit noted that the more difficult question was whether Small’s interference was meaningful for Fourth Amendment purposes.

The Tenth Circuit could not find any case law dealing with a fact scenario similar to the one at hand. Instead, most cases dealing with luggage presented two situations: when luggage is seized directly from a person, or when it is seized while checked at an airport. The Tenth Circuit found that the owner’s possessory interest was greatest when the bag was in his or her direct control and least when the bag was checked. Because the scenario at hand was somewhere in-between those two points, the Tenth Circuit analyzed the facts independently, finding that Hill would have reasonably expected other passengers to perhaps shift his bag’s position but would not have expected anyone to carry the bag through the coach. The Tenth Circuit therefore concluded that Agent Smart’s actions constituted a seizure.

The Tenth Circuit reversed the district court’s decision and remanded for further proceedings.

Tenth Circuit: Officer Lacked Reasonable Basis to Effect Felony Stop Based on Mistaken Information

The Tenth Circuit Court of Appeals issued its opinion in Maresca v. Bernalillo County on Thursday, October 22, 2015.

Stephen Maresca, a former police officer, and his family were returning from a family hike when they were pulled over by Bernalillo County Sheriff’s Deputies J. Fuentes, G. Grundhoffer, and four other officers. Officer Fuentes, who had completed her training as a new officer approximately two months earlier, initiated the stop. Mr. Maresca waved to Officers Fuentes and Grundhoffer as he drove by, and Officer Fuentes randomly decided to follow the Marescas’ truck—a red 2004 Ford F-150 pickup. She attempted to type their license plate number into her onboard computer, but got a digit wrong and received a message that the vehicle, a maroon 2009 Chevrolet four-door sedan, had been stolen.

Without double-checking the license plate number or verifying that the information on her screen matched the Marescas’ vehicle, she initiated a “felony stop.” She called the Marescas actual license plate number into dispatch, stating that the vehicle was stolen, but did not wait for dispatch to verify the information before initiating the felony stop. As a result of this call, other officers were dispatched to assist. For the felony stop, she and Officer Grundhoffer, who was following her in a different vehicle, stood behind the open doors of their vehicles with weapons drawn and shouted orders at the Marescas. She ordered Mr. Maresca to turn off the truck, throw his keys out of the window, exit the truck with his hands in the air, lift his shirt above his waistband so she could check for weapons, and lay on the highway on his stomach. She repeated this procedure with Mrs. Maresca. The Marescas complied fully with Officer Fuentes’ commands. While they were laying on the ground, Mrs. Maresca informed the officers that there were children and a dog in the truck. Mr. Maresca also told them that there had to be a mistake and to check everything again. The officers ignored the Marescas.

The officers ordered the boys out of the car the same way as Mr. and Mrs. Maresca, and ordered 9-year-old M.M. to exit the vehicle and lift her shirt. The evidence is disputed whether they forced her to lay on her stomach or sternly told her to stay at the side. After all the Marescas were out of the truck, the dog became upset and jumped out of the vehicle, running into the highway. Mr. Maresca called the dog and the officers allowed him to hold onto her. Two more deputies arrived and one began directing traffic around the “felony stop.” Two additional deputies arrived next, and the Marescas presented disputed evidence that one of them pointed his gun directly at 14-year-old C.M.’s head, leading C.M. to freak out and start crying to his mom that they were going to kill him. There was also disputed evidence that an officer stood over Mrs. Maresca with his gun cocked in a sideways gangster-style hold. Mrs. Maresca began to panic, and the children and Mrs. Maresca were all crying.

Finally, between seven and fifteen minutes after initiating the stop, Officer Fuentes returned to her vehicle and re-ran the Marescas’ plate, at which point she discovered her error. Fuentes asked one of the other deputies whether she was going to get into trouble. The deputy told her to uncuff the Marescas, let them return to their vehicle, and call a sergeant. Sergeant Bartholf explained to the Marescas that Fuentes was a new officer. The parties dispute whether he ever apologized. Mrs. Maresca asked Officer Quintana why he thought it necessary to point his gun at her when she was already laying on the ground, at which point Quintana smiled and walked away.

The Marescas filed suit in New Mexico state court, alleging the officers violated their 42 U.S.C. § 1983 rights to be free from unlawful arrest and excessive force. The Marescas also asserted state law claims against the officers for assault, false imprisonment, battery, and negligence, and asserted claims against Bernalillo County for negligent training. Defendants removed the case to the U.S. District Court for the District of New Mexico. The Marescas filed a motion for summary judgment on their federal claims, and the defendants moved for summary judgment on all claims. The district court denied the Marescas’ motion, granted defendants’ motion, and dismissed the Marescas’ state law claims without prejudice. The Marescas appealed.

The Tenth Circuit analyzed qualified immunity and found it inapplicable to Officer Fuentes. The Marescas argued Officer Fuentes violated their Fourth Amendment rights by arresting them without probable cause and by using excessive force. The officers argued that they did not arrest the Marescas, but the Tenth Circuit disagreed, finding the duration of the stop, the use of firearms, and rough treatment to which they subjected the Marescas indicated that the stop was an arrest. The Tenth Circuit further concluded the arrest was not supported by probable cause because the officers lacked an objectively reasonable basis to believe the truck was stolen. The Tenth Circuit noted that the sole basis for the arrest was Officer Fuentes’ “mistaken and unreasonable belief” that the truck was stolen. The Tenth Circuit clarified that it was not holding that a mere typing error deprives officers of a reasonable basis to effect an arrest, but rather based the holding in this case on all the facts taken together. However, in this case, the undisputed facts established that Fuentes violated the Marescas’ Fourth Amendment rights. The Tenth Circuit held that Officer Fuentes was not entitled to qualified immunity, and in fact that the Marescas were entitled to summary judgment against Officer Fuentes.

Turning to Officer Grundhoffer’s role, the Tenth Circuit concluded it was reasonable for him to rely on the information he was given by Officer Fuentes in assisting with the felony stop. The Tenth Circuit found no evidence that Officer Grundhoffer’s conduct was in bad faith or unreasonable under the circumstances. It therefore upheld qualified immunity as to Officer Grundhoffer.

Turning to the excessive force claim, the Tenth Circuit concluded that the Marescas were entitled to have their claims evaluated by a jury. The Tenth Circuit reiterated that although it granted summary judgment to the Marescas on their Fourth Amendment claims against Officer Fuentes, there were still questions of fact regarding whether the officers used force that was unreasonable under the circumstances. The Tenth Circuit reminded the officers that the use of force must be justified under the circumstances, especially when directed at children as it was here. The Tenth Circuit also found that the Marescas presented evidence of more than de minimus injury.

The Tenth Circuit reversed the district court’s grant of summary judgment to Officer Fuentes based on qualified immunity, and also reversed the court’s denial of summary judgment to the Marescas as related to Officer Fuentes. It remanded for further proceedings consistent with its opinion. The Tenth Circuit affirmed the grant of summary judgment as to Officer Grundhoffer’s qualified immunity. On the excessive force claims, the Tenth Circuit affirmed the denial of summary judgment to the Marescas and remanded for further proceedings.

Probate, Name Change, and More JDF Forms Amended by State Judicial in January

In January 2016, the Colorado State Judicial Branch issued 13 new forms. Many of the forms are in the Probate category, specifically dealing with adult guardianships, and the rest of the forms include forms about name changes, request for payment of fees, and appointments of guardians ad litem. The forms are available here in PDF format and are available from the State Judicial forms page in Word or PDF.

PROBATE

  • JDF 895 – “Instructions to Register Out of State Guardianship or Conservatorship Orders for Adult in Colorado” (1/16)
  • JDF 797 – “Rights of Respondent in Appointment of Guardian/Conservator” (R01/16)
  • JDF 799 – “Information for Respondent in Appointment of Guardian” (R01/16)
  • JDF 805 – “Acceptance of Office” (R01/16)
  • JDF 854 – “Order for Termination of Guardianship” (R01/16)

NAME CHANGE

  • JDF 385 – “Instructions for Filing a Change of Name Following Conviction/Adjudication of a Felony” (R01/16)
  • JDF 388 – “Instructions for Filing a Change of Name for an Individual 70 Years of Age or Older” (R01/16)
  • JDF 432 – “Instructions for Filing a Change of Name (Adult)” (R01/16)
  • JDF 387 – “Final Decree for Change of Name to Obtain Identity Related Documents” (R01/16)
  • JDF 433 – “Petition for Change of Name (Adult)” (R01/16)

CRIMINAL

  • JDF 208 – “Application for Public Defender, Court-Appointed Counsel, or Guardian Ad Litem” (R01/16)

DOMESTIC

  • JDF 1318 – “Order Appointing Child and Family Investigator” (R01/16)

MISCELLANEOUS

  • JDF 207 – “Request and Authorization for Payment of Fees” (R01/16)

For all of State Judicial’s JDF forms, click here.

Colorado Court of Appeals: City Liable for Medical Costs of Person in Custody

The Colorado Court of Appeals issued its opinion in Denver Health & Hospital Authority v. City of Arvada on Thursday, January 28, 2016.

Arvada police were called to a domestic disturbance involving Terry Ross. While they were there, Ross attempted suicide and was taken by ambulance to Denver Health, where he was treated for a gunshot wound to the face. Eventually, he was released into the custody of Arvada police. In March 2014, Denver Health filed a complaint against the City of Arvada for payment of Ross’s medical expenses, seeking $29,264.69 from Arvada. The parties stipulated to the facts and filed cross-motions for summary judgment. The district court denied Arvada’s motion and granted Denver Health’s, ruling the hospital was entitled to payment under C.R.S. § 16-3-401(2).

On appeal, the city argued § 16-3-401(2) was void for vagueness because it does not expressly define the term “in custody” and does not address at what point in time the term applies. Arvada challenged the vagueness of the statute on its face, not as applied. The Colorado Court of Appeals found the statute was not vague on its face when read together with other provisions of Title 16. Arvada argued Ross was not in custody when his need for medical care arose and therefore it should not be liable for the cost of treatment. The court of appeals disagreed, finding that the legislature intended the costs of medical treatment for detainees to be borne by the detaining party.

The court of appeals affirmed the district court’s grant of summary judgment to Denver Health. Judge Vogt wrote a special concurrence, urging the legislature to resolve the problem of when a municipality is liable for medical costs of a person with whom it interacts.

Colorado Supreme Court: Felony Murder Instruction Adequately Apprised Jury of Elements of Kidnapping

The Colorado Supreme Court issued its opinion in Esquivel-Castillo v. People on Monday, January 25, 2016.

Sufficiency of an Information—Notice of Charges—Felony Murder.

Esquivel-Castillo petitioned for review of the judgment of the court of appeals affirming his conviction of felony murder. A jury acquitted him of a separate count of kidnapping, charged according to the “seized and carried” alternative way of committing that crime, but convicted him of felony murder for a death caused during his commission or attempted commission of kidnapping the same victim, during the same charged timeframe, by a different statutorily qualifying act of kidnapping. As pertinent to the issue on review in the Supreme Court, the court of appeals rejected Esquivel-Castillo’s assertion that the more specific kidnapping charge necessarily limited the scope of the more generally charged felony murder count to a charge of death caused in the course of or in furtherance of the commission of kidnapping by seizing and carrying the victim from one place to another, resulting in his having been convicted of a crime with which he had never been charged.

The Supreme Court affirmed the judgment of the court of appeals. Because one count of an information is not circumscribed by another count of that information unless the latter is incorporated in the former by clear and specific reference, the Court determined that the crime of kidnapping alleged more generally as an element of felony murder was not limited to the specific alternative act of kidnapping alleged in the separate kidnapping count. Therefore, jury instructions as to all statutory forms of kidnapping supported by the evidence did not constructively amend the felony murder charge.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Supreme Court: City Ordinance Effectively Barring Sex Offender Residence Does Not Conflict with State Law

The Colorado Supreme Court issued its opinion in Ryals v. City of Englewood on Monday, January 25, 2016.

Home Rule—Local Government Law—Land Use—Sex Offenders—Conflict in Matter of Mixed State and Local Concern—Preemption.

Having accepted jurisdiction over this certified question of law from the Tenth Circuit, the Supreme Court held that state law does not preempt Englewood’s Ordinance 34. The ordinance implicates a matter of mixed state and local concern by effectively barring sex offenders from residing in Englewood, but it does not conflict with Colorado’s statutory regime for regulating sex offenders as required for state preemption. Nothing in the state regulatory regime prevents home-rule cities from barring sex offenders from residing in their communities, nor is there anything that suggests sex offenders are permitted to live wherever they wish. Furthermore, a state statutory provision specifically authorizes local law enforcement to decline an offender’s application for residency if it violates local law. As such, Ordinance 34 does not conflict with state law and thus is not preempted. This Court therefore answered the certified question in the negative and returned this case to the Tenth Circuit for further proceedings.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Multiple Sentences Treated as One Continuous Sentence for Parole Eligibility Date Calculation

The Colorado Court of Appeals issued its opinion in Fetzer v. Colorado Department of Corrections on Thursday, January 14, 2016.

Fetzer v. Colorado Department of Corrections explored the application of C.R.S. § 17-22.5-101 to parole eligibility dates (PEDs) when an inmate has multiple concurrent and consecutive sentences that were imposed at different times. Fetzer was convicted of seven crimes between August 1988 and March 2000. In 2014, the Colorado Supreme Court issued Nowak v. Suthers, 320 P.3d 340 (Colo. 2014), in which it determined that for purposes of computing an inmate’s PED, C.R.S. § 17-22.5-101 requires the DOC to consider all of an inmate’s sentences as one continuous sentence.

Relying on Nowak, Fetzer requested that the DOC review his PED. The supervisor of time and release computations for the DOC determined Nowak was not applicable to Fetzer’s case and computed his PED based on the start date of his longest concurrent sentence. Fetzer filed a petition for mandamus relief in the trial court. The DOC filed a motion to dismiss, attaching an affidavit from the supervisor. The trial court did not timely receive Fetzer’s response to the DOC’s motion, although it was timely filed through the prison’s mail system, and the court granted the DOC’s motion to dismiss.

Fetzer appealed to the Colorado Court of Appeals, contending the trial court erred in dismissing his petition for mandamus and failing to construe his several sentences as one continuous sentence. The court of appeals agreed. The court concluded the trial court misapplied C.R.S. § 17-22.5-101, finding that it applies to concurrent and consecutive sentences alike and the sentences must be construed as one continuous sentence with an effective date of the date the first sentence became effective.

The court of appeals reversed the trial court’s judgment and remanded for recalculation of Fetzer’s PED.

 

Colorado Supreme Court: Showing of Deterioration of Condition Required for Involuntary Increase of Psychiatric Medication

The Colorado Supreme Court issued its opinion in People v. Marquardt on Tuesday, January 19, 2016.

Marquardt was committed to the Colorado Mental Health Institute in Pueblo after a plea of not guilty by reason of insanity. While there, he voluntarily took 10 mg per day of Saphris, an anti-psychotic medication that kept his mental condition stable, but refused to increase his dose because of concerns of potentially permanent side effects. The People petitioned the court to allow them to slowly increase Marquardt’s dose of Saphris to 20 mg, arguing that although he was stable on 10 mg, 20 mg could potentially allow him to return to society. The trial court applied the test articulated in People v. Medina, 705 P.2d 961, 973 (Colo. 1985), and determined that Marquardt’s failure to improve justified increasing the dose of Saphris.

On appeal, the Colorado Court of Appeals found the trial court had incorrectly applied the Medina test because the People had not shown that Marquardt’s mental condition was deteriorating. The court of appeals found that Medina permitted court-ordered medication increases to prevent deterioration but not solely for the purpose of expediting a patient’s treatment. The People appealed, and the Colorado Supreme Court agreed with the court of appeals, finding the Medina test was the proper analysis for determining whether a court should order forcible medication increases over a patient’s right to bodily integrity. In this case, the supreme court held the court of appeals correctly determined that the trial court had incorrectly applied the test where there was no deterioration of condition shown.

The supreme court affirmed the court of appeals.

Tenth Circuit: Denial of Qualified Immunity Appropriate Where Victim Not Threatening Officers

The Tenth Circuit Court of Appeals issued its opinion in Tenorio v. Pitzer on Tuesday, October 6, 2015.

Hilda Valdez called 911 to report that her sister-in-law’s husband, Russell Tenorio, had a knife to his throat and was intoxicated. Officers Moore, Hernandez, and Liccione of the Albuquerque Police Department were dispatched to the call, and Officer Pitzer also responded. The 911 operator relayed to the officers that Tenorio had a knife to his own throat but no one was injured, he had broken some windows, he had been violent in the past (this was incorrect but was relayed to the officers), was waving the knife around, takes medication for seizures, and several other people were around. When the officers arrived, they met Ms. Valdez on the front lawn. Ms. Valdez was panicked and frightened. The officers entered the house without announcing themselves. Officer Pitzer was in front with his handgun drawn, and announced that he was “going lethal.” Officer Moore was behind Pitzer with his Taser, Officer Liccione was third and also had his gun drawn, and Officer Hernandez had a shotgun with bean bags but stayed behind to talk to Ms. Valdez.

When the officers entered the house, they asked Mrs. Tenorio to step out of the way and hustled her outside. On her way out, she said, “Russell, put that down.” She was followed by Tenorio, who had a blank stare and was holding a kitchen knife loosely by his side. Officer Pitzer shouted at Tenorio to drop the weapon, and two or three seconds later Pitzer shot Tenorio, Moore tased him, and he fell to the ground. Tenorio was hospitalized for months for the life-threatening injuries he suffered that night, and later brought 42 U.S.C. § 1983 excessive force claims against Pitzer, other officers, and the City of Albuquerque. Pitzer moved for summary judgment based on qualified immunity, but the district court denied his motion, concluding the evidence could show Pitzer violated clearly established law under two theories: (1) Pitzer lacked probable cause to believe that Tenorio presented a serious risk of harm to himself or others when he shot Tenorio, and (2) Pitzer and his fellow officers recklessly created the situation that resulted in use of deadly force. Pitzer appealed the denial of his summary judgment motion.

The Tenth Circuit found interlocutory jurisdiction by accepting the facts as agreed to by the parties and using the court’s construction of the evidence in the light most favorable to Tenorio. The Tenth Circuit evaluated Pitzer’s claim for qualified immunity based on a standard of objective reasonableness as judged from the perspective of a reasonable officer on the scene. The district court weighed four factors in denying Pitzer’s motion, including (1) whether the officers ordered the victim to drop his weapon, (2) whether the victim made hostile motions with the weapon toward the officers, (3) the distance between the officers and the victim, and (4) the manifest intentions of the victim. The court concluded the first factor was neutral because although the officers ordered Tenorio to drop his knife, they did not give him sufficient time to comply, the second factor weighed against probable cause because Tenorio was holding a small knife loosely by his thigh, the third factor weighed against probable cause because Tenorio was not within striking distance when he was shot, and the fourth factor weighed against probable cause because the only person Tenorio was said to have threatened was himself. The Tenth Circuit accepted the district court’s findings concerning the evidence and agreed that it sufficed to bar summary judgment against Tenorio’s claims.

The Tenth Circuit evaluated circuit precedent and determined that its prior holdings on probable cause supported the district court’s denial. Because Tenorio was not charging the officers, was not holding the weapon in a threatening gesture, was not speaking or moving aggressively, and was not within striking distance of the officers, it was unreasonable under circuit precedent for Officer Pitzer to use lethal force.

The Tenth Circuit affirmed the district court’s denial of qualified immunity, noting that a contrary judgment may be permissible after a jury trial. Judge Phillips wrote a scathing dissent. He would have granted qualified immunity based on the fact that Tenorio had a weapon and was in the same small room as the officers.

Tenth Circuit: Juror Questionnaire, Taken in Isolation, Not Enough to Show Impermissible Bias

The Tenth Circuit Court of Appeals issued its opinion in Eizember v. Trammell on Tuesday, September 10, 2015.

When he was released from the Tulsa jail, Scott Eizember went to his ex-girlfriend’s house to exact revenge since she had alerted authorities about his violation of a protective order. He broke into a house across the street and found a shotgun. When the Cantrells, an elderly couple who lived in the house, returned home, Eizember engaged in an altercation with Mr. Cantrell where he tried to wrestle the gun from Eizember. A shot was fired during the altercation that killed Mrs. Cantrell. Eizember wrestled the gun away from Mr. Cantrell and beat him with the gun until he lost consciousness, and eventually died. Next, he headed across the street and shot Tyler Montgomery, his ex-girlfriend’s son, and beat Mr. Montgomery’s grandmother. Mr. Montgomery ran to his pickup truck to drive away but Eizember jumped into the bed of the truck. Mr. Montgomery eventually crashed the truck and ran away for help. Eizember ran the other direction and hitched a ride, but eventually shot at the other driver too.

For the next 11 days, he hid in the woods, emerging only to steal clothes and a pistol from a nearby house. He soon stole a car from outside a church and made his way out of town. When the car ran out of gas, he continued hitchhiking, and was offered a ride by Dr. Sam Peebles and his wife, whom he ordered at gunpoint to drive him to Texas. After hours in the car, Dr. Peebles was able to shoot Eizember with his own gun. Eizember wrestled the revolver away from Dr. Peebles and bludgeoned him with it, also hitting Mrs. Peebles in the head when the revolver wouldn’t fire at her. At a nearby convenience store, a clerk saw Eizember was shot and called the police. Eizember was arrested and taken to the hospital, then jail.

Eizember was eventually convicted of first-degree murder for Mr. Cantrell’s death, second-degree felony murder for Mrs. Cantrell’s death, assault and battery with a dangerous weapon for beating Montgomery’s grandmother, shooting with intent to kill for Mr. Montgomery, and first-degree burglary for breaking into the Cantrells’ home. He unsuccessfully appealed to the Oklahoma Court of Criminal Appeals (OCCA) and the U.S. Supreme Court denied certiorari. The OCCA also denied his petition for post-conviction relief, as did a federal district court, but the district court granted Eizember a Certificate of Appealability on several issues.

On appeal, Eizember argued that two jurors, D.B. and J.S., should have been excluded because they were impermissibly biased in favor of the death penalty. The Tenth Circuit, noting that both the OCCA and the federal district court rejected this claim, disagreed with Eizember. The Tenth Circuit applied a Witt standard and agreed with the OCCA that, when considered in context, D.B.’s answers did not show impermissible bias. Although the questionnaire answers pointed out by Eizember tended to show bias toward the death penalty, D.B.’s answers during voir dire showed that she could fairly consider all sentencing options. The Tenth Circuit held that the trial court did not clearly err by retaining D.B. as a juror. As for J.S., his answers tended to show less bias than D.B.’s answers, so the Tenth Circuit found no error in the trial court’s refusal to dismiss him. The dissent suggested that the OCCA did not apply the Witt standard at all in rejecting Eizember’s arguments against retaining D.B. and J.S. on the jury, therefore relying on an incorrect legal standard and necessarily mandating reversal, but the majority did not agree.

Eizember next argued that the jury was confused about the meaning of life with the possibility of parole as a sentencing option due to a prospective juror’s erroneous comment during voir dire. The Tenth Circuit disagreed, finding that the parties agreed the jurors were properly instructed on the meaning of life with the possibility of parole as a sentencing option. Eizember argued that his sentences should be vacated due to the jury’s confusion, but the Tenth Circuit again disagreed, finding that even if there had been error vacating the sentences was not the proper remedy.

Next, Eizember argued that the jury was improperly instructed on the elements of second-degree “depraved mind” murder, and the prosecution agreed. Eizember contended that because of the improper instruction, he was deprived of his federal due process rights to have the jury instructed on a non-capital alternative offense. The Tenth Circuit again disagreed, finding that although the instruction incorrectly advised the jury of the non-capital offense of “depraved mind” murder, the jury was properly instructed on felony murder, which is a non-capital offense. Eizember argued that the jury would not have been able to convict him of felony murder, but the Tenth Circuit rejected this argument as well, noting that Eizember requested the felony murder instruction. Eizember next argued that his attorney’s failure to object to the incorrect “depraved mind” instruction constituted ineffective assistance of counsel. The OCCA found that the incorrect instruction had no impact on Eizember’s rights, because it is unavailable under state law when a jury finds a killing intentional beyond a reasonable doubt, as it did in Eizember’s case.

The judgment of the district court was affirmed. Chief Judge Briscoe wrote a detailed dissent regarding D.B.’s bias in favor of the death penalty.