August 21, 2019

Case Law: In re People v. Day, Pattern of Sexual Abuse Enhancement Provision

on May 10, 2010.

Criminal Law—Sexual Assault—Sexual Assault Pattern of Abuse Sentence Enhancer—CRS §§ 18-3-405, -405.3, and -401—Statutory Construction—Attempted Sexual Assault not a Basis for Pattern of Abuse Conviction or Sentencing—Trial Judge Instructions—Jury Verdict Forms—Original Proceeding—C.A.R. 21.

In this original proceeding, defendant Day challenged the trial court’s indeterminate ten-year-to-life sentence after applying the pattern of sexual abuse enhancement provision, CRS § 18-3-405(2)(d). Day was convicted of attempted sexual assault on a child, in violation of CRS § 18-3-405(1), and attempted sexual assault on a child by one in a position of trust, in violation of CRS § 18-3-405.3(1) and (2)(a). When sentencing Day, the trial court applied the pattern of sexual abuse sentence enhancer, pursuant to CRS § 18-3-405(2)(d).

The Supreme Court held that the trial court erred as a matter of law in applying the pattern of sexual abuse sentence enhancer to Day’s judgment of conviction, because the jury found Day guilty only of attempted sexual assault. Accordingly, the Court returned this case to the trial court for resentencing based on the two attempted sexual assault on a child convictions.

Summary, full case, and all May 10, 2010, opinions also available here.

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