July 17, 2019

Colorado Court of Appeals: Trial Court May Only Increase Level of Distribution of Schedule II Substance Felony Based on Equal or More Severe Felony

The Colorado Court of Appeals issued its opinion in People v. Jacobs on Thursday, November 15, 2018.

Criminal Law—Uniform Controlled Substances Act—Sentence Enhancer—Distribution—Conspiracy to Distribute—Prior Conviction—Habitual Criminal—Double Jeopardy Clause.

A jury convicted defendant of distribution and conspiracy to distribute a schedule II controlled substance. The trial court subsequently found that defendant had been convicted in 2007 of distributing a controlled substance. Based on this finding, it enhanced the distribution of a controlled substance conviction from a class 3 felony to a class 2 felony and found defendant was a habitual criminal. The court then sentenced defendant to 24 years in prison for the distribution count. Applying the habitual criminal finding, the court increased the sentence on this count to 96 years in prison. On the conspiracy count, the court sentenced defendant to 12 years in prison for that class 3 felony. Again applying the habitual criminal finding, the court increased the sentence on this count to 48 years in prison, to be served concurrently with the sentence on the distribution count.

On appeal, defendant argued that the 2007 conviction did not fit the statutory definition of a conviction that the trial court could use to enhance the distribution count from a class 3 felony to a class 2 felony. Here, the mittimus and amended mittimus in the 2007 case contain a mistake: they state that defendant pleaded guilty to a class 3 felony charge, but documents in the record from the 2007 case clearly show that defendant pleaded guilty to a class 4 felony. Pursuant to C.R.S. § 18-18-405(2)(a), a trial court may only increase the level of a class 3 distribution of a schedule II controlled substance felony based on an equal or more severe felony. Therefore, the trial court erred when it relied on defendant’s prior conviction to enhance his class 3 distribution felony to a class 2 felony.

Defendant also argued that one of the habitual criminal counts, which was based on the 2007 conviction, suffered from the same statutory defect. But any error involving the 2007 conviction was harmless because vacating one of defendant’s five habitual criminal counts would have no effect on his sentence, which only requires three prior felony convictions.

Defendant further contended that his convictions and sentences on both the distribution and conspiracy counts based on the same quantum of drugs violated the Double Jeopardy Clause. The prosecution conceded this contention, noting that, even under plain error review, the trial court obviously and substantially violated defendant’s right to avoid double jeopardy.

The enhancement of defendant’s class 3 felony distribution conviction and prison sentence for that conviction were reversed. The conviction and sentence for conspiracy to distribute a schedule II controlled substance were also reversed, and the case was remanded with directions.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: DUI Defendant Not Entitled to Have Jury Decide Existence of Prior Convictions for Sentence Enhancement

The Colorado Court of Appeals issued its opinion in People v. Gwinn on Thursday, September 6, 2018.

Criminal Law—Driving While under the Influence of Alcohol—Evidence—Impeachment—Direct Examination—Jury Instruction—Search Warrant—Prior DUI Convictions—Sentence Enhancer—Preponderance of the Evidence.

Gwinn rear-ended another car while driving home from work and was arrested for driving while under the influence of alcohol (DUI). Gwinn admitted drinking four beers before the accident occurred. After a jury convicted Gwinn of DUI and careless driving, the trial court, in a separate proceeding, found that Gwinn had three prior DUI convictions, adjudicated him a felony DUI offender, and sentenced him to 30 months of probation, two years of work release, and 90 days in the county jail.

On appeal, Gwinn first contended that the trial court’s refusal to allow the testimony of eight current and former Colorado Department of Public Health and Environment (CDPHE) employees deprived him of his constitutional right to present a defense. Gwinn sought to introduce this testimony to show that the Intoxilyzer 9000 breath test machine did not produce accurate results. The trial court did not err when it granted CDPHE’s motion to quash the witness subpoenas, finding that the testimony was irrelevant to Gwinn’s refusal because it failed to establish Gwinn’s knowledge of the Intoxilyzer 9000’s alleged deficiencies at the time he refused to submit to chemical testing. Because the accuracy of the breath test machine was not relevant, Gwinn was not deprived of the right to present a defense.

Gwinn next contended that the trial court erroneously permitted the prosecutor to lead a friendly witness, Officer Perez, “under the guise of impeachment” where no impeachment occurred. Because Officer Perez’s direct testimony that Gwinn’s speech “sounded normal” was contradicted by his previous statement in the sobriety examination report that Gwinn’s speech was “mumbled,” no error occurred when the trial court allowed impeachment with leading questions about a prior statement.

Gwinn next argued that the trial court erroneously admitted People’s Exhibit 1, an express consent affidavit and notice of revocation form, under CRE 403. Officer Perez testified that he reviewed the express consent affidavit with Gwinn, which made the affidavit relevant to Gwinn’s knowledge of the consequences of his refusal to take a chemical test. Here, the trial court properly admitted the exhibit under CRE 803(6).

Gwinn also contended that the trial court erroneously rejected a tendered instruction informing the jury that law enforcement may obtain a search warrant to compel a defendant to submit to a blood test and instructing the jury that it was permitted to draw an inference from an officer’s failure to employ this procedure that the officer did not believe there was evidence to support a search warrant. However, the officer was not required to obtain a search warrant, and the officer testified that he does not usually do so in DUI cases. Therefore, there was no error.

Gwinn last contended that his prior DUI convictions trial, conducted by the trial court, violated his federal constitutional right to a jury trial. The General Assembly intended prior DUI convictions to constitute a sentence enhancer rather than an element of DUI. A defendant is not entitled to have a jury determine the existence of the prior DUI convictions used to enhance his sentence from a misdemeanor to a felony. Further, the prosecution’s burden of proving prior convictions is by a preponderance of the evidence not, as Gwinn argued, beyond a reasonable doubt.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Noncustodial Escape Convictions Precluded from Use as Current Conviction for Habitual Offender Purposes

The Colorado Court of Appeals issued its opinion in People v. Jompp on Thursday, September 6, 2018.

Criminal Law—Speedy Trial—Insufficient Evidence—Robbery—Assault—Noncustodial Escape—Jury Instructions—Lesser Nonincluded Offense—Resisting Arrest—Sixth Amendment—Habitual Criminal.

Jompp, the victim, and an acquaintance, B.B., were driving around one evening in a stolen car while high on methamphetamine. After they picked up C.P., they later pulled the vehicle over and a fight broke out between Jompp and the victim. Jompp, B.B., and C.P. left the victim unconscious on the ground, and the victim later died of his injuries. Days later, police found Jompp. After the police handcuffed Jompp, he took off running. After a short chase he was caught and taken to jail. A jury convicted Jompp of third degree assault, robbery, and escape. The trial court adjudicated Jompp a habitual criminal and sentenced him to 48 years in prison.

On appeal, Jompp contended that the court violated his speedy trial rights by continuing his jury trial, over his objection, beyond six months after he pleaded not guilty and 13 months after he was arrested. Here, the trial court acted within its discretion by relying on the prosecution’s offer of proof that they were diligently trying to find B.B. to secure her testimony at trial and by finding that there was a reasonable possibility that B.B. would be available to testify. Therefore, there was sufficient record evidence to support the court’s granting of the prosecution’s request for a continuance. Further, the trial court didn’t plainly err because Jompp’s constitutional right to a speedy trial wasn’t obviously violated.

Jompp also contended that the prosecution presented insufficient evidence that he committed robbery, as either a principal or accomplice. Here, after Jompp attacked the victim, B.B. said she then saw C.P. get out of the car, go over to the victim, and start digging through his pockets. C.P. admitted that she went through the victim’s pockets to get money at Jompp’s direction and she gave him the money she found. Further, the court of appeals rejected Jompp’s argument that the prosecution had to show that the force he used against the victim was calculated to take the victim’s money. The record contained sufficient evidence to support the jury’s conclusion beyond a reasonable doubt that Jompp robbed the victim.

Jompp next contended that the court erred by failing to instruct the jury that it could convict him of the lesser nonincluded offense of resisting arrest. Here, the undisputed record evidence showed that Jompp was in custody. He had already submitted to the police officer’s instructions, was handcuffed, searched, and led by the arm to a patrol car for transport to jail before he ran from the officer. Therefore, the court didn’t abuse its discretion by declining to instruct the jury on the crime of resisting arrest.

Finally, Jompp contended that the court convicted him in violation of his Sixth Amendment right to a jury trial when, at sentencing, it, not the jury, found that he had prior convictions and increased his sentence under the habitual criminal sentencing statute. Jompp failed to preserve this issue at trial, and the prior conviction exception remains well-settled law, so the trial court did not err.

Finally, Jompp contended that his sentence is illegal because his noncustodial escape conviction can’t be deemed a current offense under the habitual criminal statute. The court held that C.R.S. § 18-1.3-801(5) (2013) precluded a noncustodial escape conviction from being used as a current conviction for adjudicating a defendant a habitual criminal under subsection (2) of that section. Therefore, the trial court erred in adjudicating Jompp a habitual criminal on his noncustodial escape conviction.

The judgment of conviction was affirmed. The part of the sentence based on Jompp’s escape conviction was vacated and the case was remanded for resentencing on that conviction. The remainder of the sentence was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Penalty Enhancer Applies to Any Conduct in Furtherance of Offense that Occurs in Close Proximity to Victim

The Colorado Court of Appeals issued its opinion in People v. Trejo Lopez on Thursday, August 23, 2018.

Criminal Law—Theft—At-Risk-Adult—Challenge for Cause—Jury—Presumption of Innocence—Sentence Enhancer.

Defendant and the 70-year-old victim had been neighbors in a mobile home park. While visiting the victim in his trailer, defendant asked to use the bathroom, took a gun that was hanging on the bathroom wall and put it into his backpack, and then left the premises. The jury convicted defendant of theft from an at-risk adult under C.R.S. § 18-6.5-103(5).

On appeal, defendant contended that the trial court erred when it denied his challenge for cause to prospective juror H.S. Defense counsel challenged H.S. for cause because she seemed confused about the presumption of innocence and expressed anti-gun views. H.S.’s comments about the presumption of innocence revealed confusion rather than evinced a bias or inability to follow and apply the law, and she was articulate in explaining her views. When she did not respond to the court’s final questions, it was reasonable for the court to conclude that she would follow the law. Thus, the trial court did not abuse its discretion in denying defendant’s challenge for cause to H.S.

Defendant also contended that the prosecution failed to present sufficient evidence to prove beyond a reasonable doubt that he committed any element or portion of the theft in the presence of the victim. Defendant argued that the theft was completed when he took possession of the gun in the bathroom and outside the presence of the victim. C.R.S. § 18-6.5-103 enhances the penalties for theft when any element or portion of the offense is committed in the presence of an at-risk person, which is any person 70 years of age or older. “Portion of the offense” means conduct taken in furtherance of the crime that occurs in temporal proximity to an element of the offense and is physically close to the victim. Here, immediately after taking possession of the gun, defendant left the bathroom and walked a few feet away from the victim as he left the trailer, and defendant spoke with the victim before leaving with the gun. Therefore, defendant committed a portion of the theft in the victim’s presence.

Defendant also argued that the trial court abused its discretion when it rejected his tendered jury instruction on “presence” and declined to issue an alternate instruction defining the term. Providing the jury with defendant’s instruction, which required proof of additional elements not found in the charged crime, would have been an inaccurate instruction. The trial court did not abuse its discretion.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.