August 18, 2017

Colorado Court of Appeals: Sexually Violent Predator Designation Can Be Challenged in Crim. P. 35 Motion

The Colorado Court of Appeals issued its opinion in People v. Baker on Thursday, July 27, 2017.

Sexually Violent Predator Designation—Illegal Sentence—Correction—Crim. P. 35—Timeliness.

Baker pleaded guilty to one count of sexual assault on a child by one in a position of trust and was designated a sexually violent predator (SVP). He was sentenced in 2012. Baker’s counsel did not file an objection to the SVP designation and Baker did not file a direct appeal challenging any aspect of the judgment, including the SVP designation. About a year later, Baker’s counsel filed a Crim. P. 35(b) motion to reconsider Baker’s sentence, which was denied. In 2015, Baker filed a pro se Crim. P. 35(a) motion to correct an illegal sentence, claiming that he was entitled to an additional 19 days of presentence confinement credit (PSCC). The prosecution conceded that Baker was entitled to an additional 18 days of PSCC and the court issued an amended mittimus that included the additional 18 days. In early 2016, defendant filed a motion to vacate his SVP status. The prosecution argued that the court could not reconsider the SVP designation under Crim. P. 35(b) because it is not part of a criminal sentence. The motion was denied.

On appeal, Baker contended that his 2016 motion to vacate his SVP status was cognizable under Crim. P. 35.  It was not cognizable under 35(a) or (b) because an SVP designation is not part of a criminal sentence. However, it was cognizable under Crim. P. 35(c), because Crim. P. 35(c) allows a collateral attack on a conviction or sentence and also on any part of the judgment in a criminal case. A criminal “judgment” includes “findings” made by the district court and any statement that the defendant is required to register as a sex offender. An SVP designation is a finding and part of a criminal “judgment” under Crim. P. 35(c)(2)(VI). And Baker’s postconviction motion can be properly characterized as a collateral attack on the SVP designation. Although Baker did not file a direct appeal challenging his SVP designation, under Crim. P. 35(2)(c) he is not foreclosed from challenging the designation in a postconviction proceeding. Further, Baker’s motion was not time barred because the three-year deadline for collaterally attacking the original judgment of conviction pursuant to Crim. P. 35(c) is renewed when an illegal sentence is corrected pursuant to Crim. P. 35(a), which was done in Baker’s case in 2015. Therefore, the district court erred by denying Baker’s postconviction motion without considering whether the motion was cognizable under Crim. P. 35(c).

The order was reversed and the case was remanded for the district court to reconsider Baker’s SVP designation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Witness’s Vague and Fleeting Reference to Prior Criminal Activity Did Not Undermine Fairness of Trial

The Colorado Court of Appeals issued its opinion in People v. Salas on Thursday, May 18, 2017.

Sexual Assault on a Child—Due Process—Mistrial—Prior Criminality—Videotaped Interview—Inconsistent Statements—Sexually Violent Predator—Findings of Fact.

A jury found Salas guilty of sexual assault on a 9-year-old child by one in a position of trust and sexual assault on a child, pattern of abuse. The trial court’s order found him to be a sexually violent predator (SVP).

On appeal, Salas contended that the trial court abused its discretion and violated his rights to due process, a fair trial, and an impartial jury by denying his motion for a mistrial after victim’s grandmother testified by giving a nonresponsive answer to a question which, Salas contended, impermissibly referred to prior criminality. Because grandmother’s remark was fleeting, minimally prejudicial, and immediately followed by a curative instruction, the trial court did not abuse its discretion when it denied Salas’s motion for a mistrial.

Salas next contended that the district court abused its discretion when it denied his request to play a videotaped interview of grandmother. Here, defense counsel sufficiently confronted grandmother with her inconsistent statements and she either explained or conceded them. Thus admission of the videotape would have been cumulative, and the trial court did not abuse its discretion.

Salas also argued that the trial court’s determination that he qualified as an SVP failed to satisfy statutory and due process requirements because the court never made specific findings of fact in support of its determination as required by C.R.S. § 18-3-414.5(2). While the record evidence might support a conclusion that Salas either promoted or established a relationship with the victim for purposes of sexual victimization, the court did not make specific findings on this matter, and other evidence might lead to the opposite conclusion. This error was substantial and cast serious doubt on the reliability of the SVP designation.

The judgment and sentence were affirmed. The SVP designation was vacated and the case was remanded for the trial court to make specific findings of fact regarding Salas’s SVP designation.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: “Knowingly” Element Should Have Been Offset but Error Harmless

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, January 12, 2017.

Juvenal Onel Garcia was married to the victim, but in August 2010 a protective order issued against Garcia concerning the victim. However, on occasion in April 2012, he would go to the victim’s house to watch their children at her request. One night, he was late, and when he arrived the victim told him to leave because he had been drinking. He took her car keys and left. The victim eventually reported her car stolen after he did not return. When he came back, they physically struggled. According to the victim, Garcia then tried to take her clothes off and force intercourse, but she fought him off and he immediately masturbated. They resumed struggling, he prevented her from calling 911, and he left, again taking her car. The victim called police and was taken to the hospital.

Garcia was charged with first degree burglary, attempted sexual assault, unlawful sexual contact, third degree assault, violation of a protection order, and obstruction of telephone service, as well as attempted sexual assault and unlawful sexual contact. He was designated a sexually violent predator (SVP). Garcia appealed, arguing first that the trial court erred in not applying “knowingly” to every element of the offense of sexual assault, including the “caused submission” element. The court of appeals found no error. The jury instruction in this case was based on the model jury instruction then in effect, and although the model jury instruction was later amended to offset the word “knowingly,” the court concluded any error in the failure to offset “knowingly” was not obvious. The court of appeals found the trial court did not commit plain error and affirmed.

Garcia next contended his sentences for class 4 attempted sexual assault and class 4 unlawful sexual contact should be vacated because the jury was not instructed and therefore did not find that Garcia knowingly used force or submission, so elevation of the offenses to a higher class of felony was not warranted. After evaluating the instructions under a plain error standard, the court of appeals found none. The court found that a published opinion directly addressed and refuted Garcia’s contention, so there was no error in the trial court’s instructions.

Garcia also argued that the trial court erred in its interrogatory on force related to sexual assault because the trial court did not define “force,” “threat,” or “intimidation,” which are narrower in the legislative context than in ordinary use. The court of appeals again rejected his argument. The court again looked to prior case law that had addressed the issue, and affirmed Garcia’s convictions and sentences.

Garcia argued that the mens rea element for violation of a protection order was not proved. The court of appeals disagreed, finding there was plenty of evidence to show that Garcia knew the protective order was still in place and he was not supposed to contact the victim. The court affirmed this sentence and conviction also.

Finally, Garcia contended the trial court erred in designating him a sexually violent predator (SVP) because he neither established nor promoted his relationship with the victim for purposes of sexual victimization, as required by the statute. The court evaluated two supreme court cases that had not been decided at the time of Garcia’s conviction and remanded for reconsideration in light of the two cases.

Garcia’s sentences and convictions were affirmed, and the court of appeals remanded for consideration of the SVP designation in light of new precedent.

Colorado Court of Appeals: Court’s Determination that Y-STR Method of DNA Testing Reliable Affirmed

The Colorado Court of Appeals issued its opinion in People v. Tunis on Thursday, December 5, 2013.

Sexual Assault—Burglary—Reliability of DNA Evidence—First Impression—Expert Testimony—Jury—Sexually Violent Predator.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of sexual assault and second-degree burglary. The judgment was affirmed and the sentence was vacated in part.

Defendant challenged, as an issue of first impression in Colorado, the reliability of certain DNA evidence—specifically, the Y Chromosome-Short Tandem Repeat(Y-STR) analysis—and argued that the trial court erred by admitting it. The court acted within its discretion by determining that the scientific principles underlying the use of the Y-STR analysis, which only examines DNA types on the Y chromosome, were reliable. The statistical methods generally have been accepted by other laboratories, similar statistical methods have been used in other fields, and other jurisdictions have admitted similar evidence as reliable. In addition, the evidence was properly admitted through expert testimony.

Defendant also contended that the court erred by releasing a juror who repeatedly fell asleep and replacing him with an alternate juror. Defendant failed to prove bias in the replacement, so the trial court was well within its discretion to dismiss the sleeping juror and to replace him with the alternate juror.

The Supreme Court granted certiorari and remanded this case to the Court of Appeals to determine whether defendant is a sexually violent predator based on the criterion that he “promoted a relationship primarily for the purpose of sexual victimization.” Defendant’s actions of delivering a baby blanket to the victim a couple months before the assault at the request of his grandmother and asking the bartender the night of the assault if victim’s husband was home did not constitute “promoting a relationship primarily for the purpose of sexual victimization.” Therefore, the sexually violent predator portion of defendant’s sentence was vacated.

Summary and full case available here.

Colorado Supreme Court: Masked Offender Can Qualify as “Stranger” for Purposes of Sexually Violent Predator Determination

The Colorado Supreme Court issued its opinion in People v. Hunter on Monday, July 1, 2013.

Sexually Violent Predator—“Stranger”—Statutory Interpretation—CRS § 18-3-414.5(1)(a)(III).

The Supreme Court held that the court of appeals’ erred in reversing petitioner’s designation as a sexually violent predator under CRS § section 18-3-414.5(1)(a). The Court held that “stranger” in § 18-3-414.5(1)(a)(III) means either the victim is not known by the offender or the offender is not known by the victim at the time of the offense.

Summary and full case available here.

Colorado Supreme Court: Relationship Prong of Sexually Violent Predator Determination Can Be Satisfied by Totality of Circumstances

The Colorado Supreme Court issued its opinion in Candelaria v. People on Monday, July 1, 2013.

Sexually Violent Predator—CRS § 18-3-414.5(1)(a)(III)—Specific Intent.

The Supreme Court held that an offender need not specifically intend to establish or promote a relationship with the victim primarily for the purpose of sexual victimization to satisfy the relationship criterion of the sexually violent predator statute, CRS § 18-3-414.5(1)(a)(III). The Court accordingly overruled the court of appeals’ decision in People v. Stead, 66 P.3d 117 (Colo.App. 2002), to the extent that it conflicts with this holding. In addition, the Court upheld the court of appeals’ judgment affirming the trial court’s specific findings and resulting designation of petitioner as a sexually violent predator.

Summary and full case available here.

Colorado Supreme Court: Improper Definition of “Promoted a Relationship” Applied When Determining Sexually Violent Predator Status

The Colorado Supreme Court issued its opinion in Uribe-Sanchez v. People on Monday, July 1, 2013.

Sexually Violent Predator—CRS § 18-3-414.5(1)(a)(III)—“Promoted a Relationship.”

Applying its interpretation of the term “promoted a relationship” in CRS § 18-3-414.5(1)(a)(III) from People v. Gallegos, 2013 CO 45, the Supreme Court held that the court of appeals erred when it concluded that petitioner promoted a relationship with his victim by violently sexually assaulting her. The Court remanded the case to the court of appeals with instructions to remand to the trial court to determine whether to designate petitioner as a sexually violent predator under the proper interpretation of “promoted a relationship.”

Summary and full case available here.

Colorado Supreme Court: Defendant who Sexually Assaulted Girlfriend’s Daughter Did Not Establish Relationship with Victim for Purpose of Assault

The Colorado Supreme Court issued its opinion in People v. Gallegos on Monday, July 1, 2013.

Sexually Violent Predator—“Established a Relationship”—“Promoted a Relationship”—CRS § 18-3-414.5(1)(a)(III).

The Supreme Court affirmed in part and reversed in part the court of appeals’ decision affirming petitioner’s designation as a sexually violent predator under CRS § 18-3-414.5(1)(a). The Court held that an offender “established a relationship” with his or her victim primarily for the purpose of sexual victimization where the offender created, started, or began a relationship primarily for that purpose. Here, petitioner had lived with the victim and treated her as his stepdaughter for the three years preceding the assault. The Court held that, based on these facts, petitioner had not established a relationship with the victim primarily for the purpose of sexual victimization. Thus, he should not be designated as a sexually violent predator.

The Court also held that an offender “promoted a relationship” if, excluding the offender’s behavior during the commission of the sexual assault that led to his or her conviction, the offender otherwise encouraged a person with whom he had a limited relationship to enter into a broader relationship primarily for the purpose of sexual victimization. Because the trial court failed to consider whether petitioner promoted a relationship with his victim primarily for the purpose of sexual victimization, the Court remands the case to the court of appeals with instructions to remand to the trial court to make specific factual findings and determine whether petitioner promoted a relationship with his victim primarily for the purpose of sexual victimization.

Summary and full case available here.

Colorado Supreme Court: Trial Court Should Afford Great Weight to Sex Offender Management Board’s Screening Tool Before Classifying Defendant as Sexually Violent Predator

The Colorado Supreme Court issued its opinion in Allen v. People on Monday, July 1, 2013.

Sexually Violent Predator—CRS § 18-3-414.5(1)(a)(IV)—Risk Assessment Screening Instrument.

The Supreme Court upheld the court of appeals’ decision affirming petitioner’s designation as a sexually violent predator under CRS § 18-3-414.5(1)(a)(IV). The Court held that although the trial court makes the ultimate designation, it should give substantial deference to the Sex Offender Management Board’s scored risk assessment screening instrument. A trial court that deviates from the results of a scored risk assessment screening instrument must make specific findings to demonstrate the necessity of its deviation.

Summary and full case available here.