August 18, 2019

Archives for October 3, 2012

“Law Suit Days” Clothing Drive on October 10 and 11, 2012

The Denver Bar Association Young Lawyers Division is holding its “Law Suit Days” clothing drive for new and gently used professional and business clothing, shoes, and accessories on October 10 and 11, 2012. The business clothing will be given to Bayaud Enterprises, Inc., a local nonprofit that provides vocational and job placement services for individuals with disabilities and to homeless or low-income individuals and families.

The clothing drive will take place on Wednesday, October 10, and Thursday, October 11, from 8 a.m. to 2:30 p.m. on the steps of the Denver City & County Building  at 1437 Bannock. In the event of inclement weather, the event will be moved inside the City & County Building to the second floor of the rotunda.

Clothing should be clean and on hangers. Volunteers from the Young Lawyers Division will be available to collect the donations at the City & County Building. They will not be able to pick up clothing or accept donations on alternate dates.

Tenth Circuit: In Supervised Release Revocation, Severe or Exceptional Circumstances Not Required to Impose Sentence Above Range Suggested in Chapter 7

The Tenth Circuit Court of Appeals published its opinion in United States v. Vigil on Tuesday, October 2, 2012.

Denise Vigil was originally sentenced to three years probation with conditions. Her probation was revoked and she was given supervised release after serving some jail time. She violated her supervised release conditions and was eventually sentenced to twelve months in prison, half the maximum allowable sentence of two years under 18 U.S.C. § 3583(e)(3). Vigil argued the sentence was unreasonable. The Tenth Circuit applied substantive reasonableness review and affirmed the sentence. In sentencing an individual for violation of supervised release conditions, the judge “must consider the factors in 18 U.S.C. § 3553(a) and the policy statements in Chapter 7 of the Sentencing Guidelines.” The policy statements are advisory, however, not mandatory. Vigil’s argument that her repeated violations were not severe or exceptional was unavailing as that is not required for an upward variance from the sentencing guidelines.

Colorado Court of Appeals: Defendant who Sold Drugs to Undercover Agent Must Return Agent’s Drug Money as Restitution

The Colorado Court of Appeals issued its opinion in People v. Juanda on September 27, 2012.

Restitution—Pecuniary Loss—Victim—Law Enforcement.

Defendant Joseph L. Juanda appealed from an order requiring him to pay restitution. The order was affirmed.

On four occasions, Juanda sold oxycodone to an undercover agent of the Drug Enforcement Administration (DEA). After Juanda pleaded guilty to two drug offenses, the People sought an order of restitution requiring Juanda to return the “buy money” ($11,600) that he had received from the DEA’s agent, which the court granted.

Juanda contended that the court erred in ordering him to pay restitution. “Restitution” means “any pecuniary loss suffered by a victim.” Qualifying pecuniary losses include (1) “money advanced by law enforcement agencies,” and (2) “extraordinary direct public . . . investigative costs.” Here, the money was advanced by the DEA to its undercover agent, who then used the money to buy drugs from Juanda. Therefore, the DEA’s buy money qualifies as “money advanced by [a] law enforcement agenc[y]” under CRS § 18-1.3-602(3)(a), and the trial court’s order was supported by the restitution statute.

Summary and full case available here.

Colorado Court of Appeals: C.R.S. § 18-3-203(1)(f) Does Not Require Consecutive Sentencing but Court has Discretion to Sentence Consecutively

The Colorado Court of Appeals issued its opinion in People v. Diaz on September 27, 2012.

Assault—Consecutive Sentencing—CRS § 18-3-203(1)(f).

Defendant appealed the sentence entered on a jury verdict finding him guilty of second-degree assault. The sentence was vacated and the case was remanded to the district court for resentencing.

While serving a sentence on other charges, defendant punched a prison guard in the eye. On a second occasion, he threw a cup that hit a guard in the mouth. The second assault was tried first. Defendant was found guilty, and he was sentenced to ten years in the custody of the Department of Corrections. The next day, defendant was found guilty of the first assault, and he was sentenced to ten years in prison, to be served consecutively to the sentence imposed for the second assault.

On appeal, defendant contended that the district court erred by ruling that CRS § 18-3-203(1)(f) requires that the sentence for the first assault be served consecutively to the sentence for the second assault. CRS § 18-3- 203(1)(f) requires consecutive sentencing only when a defendant is serving a sentence (and not merely confined on unresolved charges) at the time of the assault. Therefore, the district court erred in ruling that the sentence for the first assault must run consecutively to the sentence for the second assault. Nonetheless, the court had discretion to order the sentence for the first assault to run consecutively to the sentence for the second assault. On remand, the court must exercise its discretion in determining whether the sentence for the first assault should be served consecutively to the sentence for the second assault.

Summary and full case available here.

Colorado Court of Appeals: Judgment Affirmed on Multiple Claims of Error but Case Remanded for Resentencing

The Colorado Court of Appeals issued its opinion in People v. Banks on September 27, 2012.

Juvenile Charged as Adult and Convicted—Privilege Against Self-Incrimination—Recorded Statements—Due Process—Confrontation of Witnesses—Polygraph Test—Challenge for Cause—Sentence—Parole.

Defendant appealed his judgment of conviction entered on a jury verdict finding him guilty of first-degree murder and his sentence of life imprisonment without parole. The judgment was affirmed, the sentence was affirmed in part and vacated in part, and the case was remanded to the trial court for resentencing.

On December 11, 2004, defendant, then age 15 and a member of the Tre Tre Crips gang, attended a house party, where he shot and killed the victim, a 16 year old. Defendant was charged as an adult with first-degree murder after deliberation and later was convicted and sentenced to life imprisonment without parole.

On appeal, defendant contended that the trial court erred in denying his motion for mistrial and permitting the prosecution to question a witness regarding an assertion of the privilege against self-incrimination. Although the prosecution asked the witness about the privilege, the witness did not invoke his Fifth Amendment privilege at trial. Further, because the witness’s credibility was impeached by his admission to having three prior felony convictions, being incarcerated at the time of trial, and lying to an officer, the prosecution’s question about privilege did not have any further prejudicial impact on his credibility.

Defendant also argued that the trial court erred in denying two motions for mistrial and admitting five recorded statements containing inadmissible material. A majority of the statements in these interviews were prior inconsistent or consistent statements, and the required foundational elements were met. Further, most of the statements were cumulative of other testimony or provided context, and defendant did not meet his burden of persuasion in showing how the statements prejudiced him. Thus, the trial court did not abuse its discretion in admitting the recorded interviews or in denying defendant’s two motions for mistrial based on the statements.

Defendant further argued that the trial court violated his federal and state constitutional rights to due process and to confront witnesses. Defendant did not preserve his state constitutional argument. Four of the witnesses were available for the second trial, where defense counsel cross-examined them, and the fifth witness, who was subjected to prior cross-examination, was found by the court to be unavailable to testify. Therefore, the trial court did not violate defendant’s right to confront witnesses by admitting the recorded statements.

Defendant also claimed that the trial court erred by permitting the prosecution to repeatedly refer to Hicks, a known gang member who was a defendant in an unrelated high-profile murder case. The testimony regarding Hicks was relevant to show Hicks’s relationship with defendant, a witness’s fear of testifying, and the disposal of the murder weapon. Thus, evidence of Hicks’s involvement in the case at hand was relevant and was not unduly prejudicial.

Defendant contended that the trial court erred in permitting testimony about a witness’s agreement to take a polygraph test. The trial court did not abuse its discretion in admitting testimony that a witness changed his testimony when confronted with a polygraph test when no results of the polygraph test were mentioned.

Defendant argued that the trial court violated defendant’s right to a fair and impartial jury when it denied his challenges for cause regarding two jurors. Both jurors, however, gave assurances to the court about their ability to be fair and impartial despite their concerns about gang affiliation and safety issues.

Defendant further argued that the mandatory sentence of life imprisonment without parole constituted cruel and unusual punishment and violated his rights to equal protection and due process. The Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole for juvenile offenders. Therefore, defendant’s sentence to life imprisonment was affirmed, but was vacated to the extent he was denied the possibility of parole. The case was remand to the trial court to modify the sentence by including a provision for the possibility of parole after forty years in accordance with CRS § 17-22.5-104(2)(c).

Summary and full case available here.