July 22, 2017

Colorado Court of Appeals: Concealed Weapon Statute Requires Person to Carry Weapon “Unlawfully”

The Colorado Court of Appeals issued its opinion in People in Interest of L.C. on Thursday, June 15, 2017.

Protection Order—Constitutionality—Evidence—Possession of Weapon.

A police officer observed L.C. in a public park after hours. The officer contacted L.C. and discovered that he was subject to a protection order, which provided, among other things, that L.C. was not to “possess or control a firearm or other weapon.” When the officer searched L.C.’s backpack, he found a knife with a five and one-half inch blade inside a sheath. L.C. was found guilty of violating a protective order and unlawfully carrying a concealed weapon. He was adjudicated delinquent and sentenced to probation. L.C. petitioned for district court review, which was denied.

On appeal, L.C. contended that C.R.S. § 18-12-105, which defines the offense of unlawfully carrying a concealed weapon, is unconstitutionally vague and overbroad. The statute is not unconstitutionally vague, and the merits of L.C.’s overbreadth argument were not addressed because he did not raise it in the district court. L.C. also contended that the evidence was insufficient to prove that he carried a concealed knife “on or about his . . . person,” as required to sustain a conviction for the statutory violation. He argued that because the knife was in a sheath in an interior zippered compartment of his backpack, it was not readily accessible and therefore was not “on or about” his person. The Court of Appeals disagreed with L.C.’s interpretation.

L.C. further contended that because the prosecution failed to prove that he did anything directed at the protected person named in the protection order, the evidence was insufficient to establish that he violated it. Violation of a protective order does not always require proof that the accused contacted the protected person. Thus, evidence that the protection order contained a provision prohibiting L.C. from possessing a weapon and that L.C. was found in possession of a weapon was sufficient to sustain his conviction for violation of a protection order.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Department of Human Services Did Not Suffer Injury and Therefore Lacked Standing

The Colorado Court of Appeals issued its opinion in People in Interest of D.Z.B. on Thursday, February 23, 2017.

Juvenile—Delinquent—Pre-Adjudication Placement—Department of Human Services—Standing.

D.Z.B. had a complex history with the Arapahoe County Department of Human Services (Department) and the juvenile court. Over the Department’s objection, the court placed him in a residential child care facility managed by the Department, in lieu of bond, while his adjudication was pending.

On appeal, the Department asserted that the court lacked authority to place D.Z.B. in the facility pre-adjudication and in lieu of bond over the Department’s objection. The Department was not a party to the delinquency actions against D.Z.B., so it alleged as an injury the costs of D.Z.B.’s care. The obligation and costs of D.Z.B.’s care are incidental to his delinquency action because the Department has a statutory duty to care for and house children removed from their homes in delinquency actions. Thus the Department did not show an injury in fact. Further, the Children’s Code does not confer standing on the Department to challenge a juvenile court’s ruling regarding pre-adjudication placement. The Department lacked standing to appeal.

The appeal was dismissed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Restitution Award Vacated Where No Evidence Defendant Proximately Caused Damage

The Colorado Court of Appeals issued its opinion in People in Interest of D.I. on Thursday, September 24, 2015.

Restitution— Unendorsed Expert Testimony.

A police officer responded to a dispatch of someone recklessly driving a car that had been reported stolen two days earlier. The sole occupant of the car, D.I., was arrested. After he was in custody, officers saw that the ignition had been “punched” so that it could be started with a screwdriver. They found a screwdriver near the driver’s seat and no keys.

D.I. was charged with theft, first-degree aggravated motor vehicle theft, and possession of burglary tools (the screwdriver). The juvenile court adjudicated D.I. for committing the crimes of second-degree aggravated motor vehicle theft and possession of burglary tools. He was sentenced to “up to two years of probation or further court order” and ordered to pay $3067.91 in restitution for damage to the car.

On appeal, D.I. argued the trial court abused its discretion when it ordered restitution because there was no evidence that he proximately caused the damage to the car. The Court of Appeals agreed. According to the court’s findings, the damage to the car was inflicted two days before the time the court found that D.I. exercised control over the car. Therefore, the restitution order must be vacated.

D.I. argued that it was error to admit unendorsed expert testimony from a lay witness when it allowed a police officer to testify about the use of screwdrivers to operate stolen vehicles. The Court concluded that even if some of the testimony should not have been admitted, any error was harmless. The judgment of conviction was affirmed and the restitution order was vacated.

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

Colorado Court of Appeals: Juvenile Petition Dismissed Where Acts Charged Occurred when Offender Under 10 Years Old

The Colorado Court of Appeals issued its opinion in People in Interest of P.K. on August 27, 2015.

Juvenile—Aggravated Incest—Subject Matter Jurisdiction—Age.

In 2011, when P.K. was 11 years old, he was charged with three counts of aggravated incest against his younger brother. P.K. was between 8 and 11 years old at the time of the alleged offenses. P.K. offered an admission to a single charge of aggravated incest. The juvenile court accepted P.K.’s admission and sentenced him to two years of supervised probation. After a second petition to revoke probation was filed against P.K., his counsel asserted that the juvenile court lacked subject matter jurisdiction to have taken P.K.’s admission and imposed a sentence because he was under 10 years old for over half of the charging period. The juvenile court denied his motion to withdraw his admission. P.K. appealed.

In assessing the jurisdiction of the juvenile court, the relevant inquiry is the age at which the alleged acts were committed, not the age at which a disposition was imposed. Here, the prosecution charged multiple dates within a range, some of which occurred when P.K. was under 10 years old. Because the juvenile court only has jurisdiction over children 10 years of age and older, the juvenile court was without jurisdiction to accept P.K.’s admission because the charging document was fatally defective by including dates in which P.K. was under the age of 10. The order was reversed and the case was remanded with directions to the juvenile court to dismiss the delinquency petition without prejudice.

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

HB 13-1082: Setting Parameters for Expungement of Juvenile Delinquency Records

On January 16, 2013, Rep. Jeanne Labuda introduced HB 13-1082 – Concerning Juvenile Delinquency Records. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

A court that adjudicates a person a juvenile delinquent shall consider initiating expungement proceedings for the person’s records not more than 30 days after the person’s sentence is discharged.

A court that adjudicates a person an aggravated juvenile offender or a violent juvenile offender, or that adjudicates a person a juvenile delinquent for a felony offense of unlawful sexual behavior, shall consider initiating expungement proceedings for the person’s records not more than 5 years after the person’s sentence is discharged.

The bill permits a court to order a petitioner’s records expunged in cases where the petitioner has been convicted of a misdemeanor since the termination of the court’s jurisdiction or the petitioner’s unconditional release from parole supervision.

Under current law, the public has access to arrest and criminal records information, including a physical description, that concerns a juvenile who is adjudicated a juvenile delinquent or is subject to a revocation of probation for:

  • Committing the crime of possession of a handgun by a juvenile;
  • Committing an act that would constitute a class 1, 2, 3, or 4 felony; or
  • Committing an act that would constitute any crime that involves the use or possession of a weapon if such act were committed by an adult.

The bill limits the public’s access to include only arrest and criminal records information, including a physical description, that concerns a juvenile who is adjudicated a juvenile delinquent or is subject to a revocation of probation for:

  • Committing the crime of possession of a handgun by a juvenile; or
  • Committing an act that would constitute a class 1 felony.

The bill is assigned to the Judiciary Committee.