Jury Instructions—Lesser Offenses.  

The People sought review of the Court of Appeals’ judgment reversing Rock’s convictions for second-degree burglary and theft. See People v. Rock, No. 11CA1936 (Colo.App. July 3, 2014). The trial court denied Rock’s request for an additional, lesser included offense instruction on second-degree criminal trespass, on the ground that second-degree criminal trespass is not an included offense of second-degree burglary. The Court of Appeals reversed, concluding that in denying Rock’s request, the trial court erred and that the error was not harmless with regard to either of Rock’s convictions. The Supreme Court reversed the judgment of the Court of Appeals because second-degree criminal trespass is not a lesser included offense of second-degree burglary under the strict elements test, as clarified in Reyna-Abarca v. People, 2017 CO 15, 390 23 P.3d 816.

Criminal Law—Miranda Warnings—Jury Deliberations.

Carter petitioned for review of the Court of Appeals’ judgment in People v. Carter, 2015 COA 36, ___ P.3d ___, which affirmed, among others, his conviction of conspiracy to commit first-degree murder. With regard to a videotaped interrogation by the police, the district court denied a motion to suppress defendant’s statements, rejecting all of his Fifth and Fourteenth Amendment claims, including his assertion that he had not been adequately advised, as required by Miranda v. Arizona, of his right to have an attorney present during interrogation. It also denied defendant’s motion to limit access to that videotape during jury deliberations. In a fractured opinion, in which all three members of the division of the Court of Appeals wrote separately, the intermediate appellate court affirmed with regard to both of these assignments of error. 

The Supreme Court affirmed the judgment of the Court of Appeals. Because the Miranda advisement of defendant reasonably conveyed that he had a right to consult with counsel, both before and during any interrogation by the police, and because the district court did not abuse its discretion in permitting the jury unrestricted access to both a video recording and transcript of defendant’s custodial interrogation, the trial court did not err.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment. 

Osvaldo Corrales-Castro pleaded guilty to criminal impersonation and received a one-year deferred judgment. He successfully complied with the terms of the deferred judgment, and in May 2010, the Court withdrew his guilty plea and the charge was dismissed with prejudice pursuant to CRS § 18-1.3-102(2), which provides that, upon “full compliance with [the conditions of a deferred judgment],” the guilty plea previously entered “shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” In 2013, Corrales-Castro filed a motion to withdraw his guilty plea pursuant to Crim.P. 32(d), which authorizes “a motion to withdraw a plea of guilty . . . before sentence is imposed or imposition of sentence is suspended.” The district court denied the motion and the Court of Appeals reversed, holding that Crim.P. 32(d) authorizes the withdrawal of an already withdrawn plea. The Supreme Court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim.P. 32(d) does not authorize withdrawal of Corrales-Castro’s plea. Accordingly, the Supreme Court reversed the Court of Appeals’ judgment.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment.

Jose Espino-Paez pleaded guilty to the use of a schedule II controlled substance and received a deferred judgment. When he successfully completed the terms of the deferred judgment, his guilty plea was withdrawn and the charge was dismissed with prejudice. In 2012, Espino-Paez filed a motion to withdraw his plea pursuant to Crim.P. 32(d). The district court denied the motion, and the Court of Appeals affirmed, holding that the district court had no authority to withdraw the plea because it had already been withdrawn. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the Supreme Court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim.P. 32(d) does not authorize withdrawal of Espino-Paez’s plea. Accordingly, the Supreme Court affirmed the Court of Appeals’ judgment.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judment. 

Edgar Zafiro-Guillen pleaded guilty to possession of one gram or less of a schedule II controlled substance in exchange for a two-year deferred judgment. In 2009, upon successful completion of the terms of the deferred judgment, the district court withdrew Zafiro-Guillen’s guilty plea and dismissed the case with prejudice. In 2013, Zafiro-Guillen filed a motion to withdraw his guilty plea pursuant to Crim.P. 32(d). The district court denied the motion, holding it lacked jurisdiction. The Court of Appeals affirmed. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the Supreme Court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim.P. 32(d) does not authorize withdrawal of Zafiro-Guillen’s plea. Accordingly, the Court affirmed the Court of Appeals’ judgment.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment. 

Eloisa Roman pleaded guilty to criminal impersonation and received a two-year deferred judgment. She successfully completed her deferred judgment, and her plea was withdrawn and the case was dismissed. In 2013, she filed a motion under Crim.P. 32(d) seeking to withdraw her plea. The trial court denied her motion, and the Court of Appeals reversed, holding that Rule 32(d) authorized the district court to withdraw Roman’s previously withdrawn plea. For the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the Supreme Court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim.P. 32(d) does not authorize withdrawal of Roman’s plea. Accordingly, the Court reversed the Court of Appeals’ judgment.

Criminal Law—Withdrawal of Guilty Plea—Crim.P. 32(d)—Guilty Pleas—Ineffective Assistance of Counsel—Deferred Judgment. 

Jesus Flores-Heredia pleaded guilty to inducement and conspiracy to sell and possess with intent to sell a schedule II controlled substance, and he received a one-year deferred judgment in 1990. Although he successfully completed the deferred judgment in 1991, no court ever ordered his plea withdrawn or the action against him dismissed pursuant to CRS § 18-1.3-102(2), which provides that, upon “full compliance with [the conditions of a deferred judgment]” the guilty plea previously entered “shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice.” In 2014, Flores-Heredia filed a motion to withdraw his plea pursuant to Crim.P. 32(d). The district court concluded that because no order had been entered withdrawing Flores-Heredia’s plea and dismissing the charge under CRS § 18-1.3-102(2), it would enter such an order. The court then denied the Rule 32(d) motion, concluding that it could not withdraw the plea because the plea had already been withdrawn.

The Supreme Court held that CRS § 18-1.3-102(2) requires that a plea be deemed withdrawn and the charge dismissed once the deferred judgment is successfully completed, and when an order to this effect is not entered, it occurs by operation of law as mandated by CRS § 18-1.3-102(2). Therefore, Flores-Heredia’s plea was withdrawn by operation of law when he successfully completed the deferred judgment in 1991. Further, for the reasons discussed in the lead companion case, People v. Corrales-Castro, 2017 CO 60, ___ P.3d ___, announced the same day, the Supreme Court held that the plain terms of Rule 32(d) require a plea to exist for it to be withdrawn. Therefore, Crim. P. 32(d) does not authorize withdrawal of Flores-Heredia’s plea. Accordingly, the Court affirmed the district court’s judgment.

Fourth Amendment—Consensual Encounters. 

In this case, the Supreme Court considered whether defendant’s encounter with police, during which he confessed to possessing a controlled substance, was consensual or whether it constituted an impermissible seizure under the Fourth Amendment. The Court concluded that under the totality of the circumstances, the encounter was consensual. Accordingly, the Court reversed the trial court’s order suppressing evidence from the encounter, and remanded the case for further proceedings consistent with this opinion.

Criminal Law—Sentencing and Punishment—Costs Taxable Against Defendant. 

In this consolidated opinion, the Supreme Court addressed whether sexual offenders must shoulder the cost of their victims’ forensic medical examinations as criminal restitution. By statute, such restitution may include “extraordinary direct public . . . investigative costs.” The Court therefore considered whether the cost of a sexual assault nurse examiner (SANE) examination is “extraordinary” for purposes of the statute. As both a medical and investigative response to a sexual offense, these examinations necessarily perform dual roles. The Court concluded that the hybrid nature of these exams renders them, and their resulting costs, extraordinary. It further concluded that the state may therefore recover those costs as restitution.

Electronic Exhibits—Crime Scene Videos—Statements by the Defendant—Jury Deliberations. 

This case required the Supreme Court to decide whether it was reversible error for a trial court in a criminal case to provide the deliberating jury with “unfettered and unsupervised access” to a crime scene video and a video of a police interview of the defendant. A division of the Court of Appeals concluded that the trial court did not err in either regard. In reaching this conclusion, the division relied on DeBella v. People, 233 P.3d 664, 665–66 (Colo. 2010), in which the Court considered the propriety of a trial court’s order allowing the jury unfettered access to the videotapes of a child sexual assault victim’s out-of-court interviews. Although the Supreme Court agreed that the trial court retains discretion regarding juror access to the videos at issue, the Court disagreed with the division that DeBella provides the appropriate framework for resolving this case.

The Court nevertheless concluded that the division reached the correct result, namely, that the trial court did not abuse its discretion in allowing the jury unfettered access to those videos during deliberations. In arriving at this conclusion, the Court observed that the non-testimonial crime scene video did not present the same risk of undue emphasis as do videos documenting witnesses’ out-of-court, testimonial statements (like the videotapes at issue in DeBella). The Court likewise observed, consistent with well-established precedent, that a defendant’s confession is not subject to the same limitations during deliberations as the out-of-court statements of other witnesses. Accordingly, the Court affirmed the judgment of the Court of Appeals and remanded the case for further proceedings consistent with this opinion.