June 16, 2019

Colorado Court of Appeals: Arrest in California Not Enough to Show Defendant Procured Prosecution There

The Colorado Court of Appeals issued its opinion in People v. Giem on Thursday, December 19, 2015.

Double Jeopardy Clause—Out-of-State prosecution—Aggravated Motor Vehicle Theft.

Giem approaching the victim in a parking lot in Jefferson County, pointed a gun at him, demanded his car keys, and took his car. The car was equipped with an antitheft transmitter. The next day, law enforcement officials in California found Giem driving the victim’s car. In February 2012, Giem pleaded guilty to unlawful driving or taking of a vehicle and DUI in California. He was later prosecuted in Colorado for this same incident, and his motion to dismiss the charges based on the Double Jeopardy Clause and CRS § 18-1-303 were denied.

On appeal, Giem challenged only the court’s ruling on his motion to dismiss, arguing that the Double Jeopardy Clause and CRS § 18-1-303 barred his prosecution in Colorado. CRS § 18-1-304(1)(b), however, creates an exception that allows a prosecution to proceed even if § 18-1-303 would otherwise bar it if the former prosecution “[w]as procured by the defendant without the knowledge of the appropriate prosecuting official and with the intent to avoid the sentence that otherwise might be imposed.” Here, the court’s factual findings do not support its legal conclusion that Giem procured his California prosecution. Merely being present in California with a stolen car stops short of procuring a prosecution there. Therefore, the trial court incorrectly determined that CRS § 18-1-304(1)(b) prevented Giem from taking advantage of § 18-1-303. Giem’s Colorado prosecutions for menacing, theft, and aggravated robbery, however, were not based on the same conduct that resulted in his conviction in California for unlawful driving or taking of a vehicle. Therefore, Giem’s prosecutions in Colorado for these crimes were not barred by his prior conviction in California for unlawful driving or taking of a vehicle. Conversely, Giem’s prosecution in Colorado for aggravated motor vehicle theft was based on the same conduct as the California conviction for unlawful taking of a vehicle, as both offenses were based on the taking and retention by Giem of the victim’s vehicle. Therefore, the People in Colorado were barred from prosecuting Giem for aggravated motor vehicle theft because it is not clear that the law of California and the law of Colorado for this crime were intended to prevent a substantially different harm or evil. The judgment was affirmed as to all counts except the count of aggravated motor vehicle theft, which was reversed.

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

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