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Colorado Court of Appeals Opinions
October 30, 2008

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

No. 05CA2434. People v. Gonzales-Quevedo.
First-Degree Murder—Deliberation—Insanity—Relevance—Cross-Examination—Sixth Amendment—Gang Affiliation—Bias.

Defendant appeals the judgment of conviction entered on jury verdicts finding him guilty of first-degree murder after deliberation, criminal attempt to commit first-degree murder after deliberation, and accessory to a crime. The judgment is affirmed.

Defendant argues that the trial court impermissibly chilled his constitutional right to present an insanity defense by entering an order that would have allowed the prosecution to present allegedly irrelevant and unfairly prejudicial evidence that defendant suffered from Antisocial Personality Disorder (APD). The Court of Appeals disagrees, holding that because defendant initially pleaded not guilty by reason of insanity (NGRI), the prosecution’s APD evidence was relevant to rebut this defense. Further, the prosecution’s APD evidence was not unfairly prejudicial.

The Court also rejects defendant’s contention that the trial court erred by denying his motion to present evidence of his mental state without pleading NGRI. When a defendant’s mental disease or defect renders the defendant incapable of accurately comprehending the surrounding circumstances accurately and making a reasoned decision about an appropriate course of action, or otherwise falls within the statutory definition of insanity, the defendant must plead NGRI to introduce evidence to that effect.

The Court further holds that the trial court’s ruling prohibiting defendant from cross-examining the prosecution’s witnesses regarding their gang affiliation did not violate defendant’s Sixth Amendment confrontation rights. Because testimony concerning a witness’s gang affiliation makes the existence of the witness’s bias toward the defendant more probable, such testimony is relevant to support that inference. In this case, however, and contrary to defendant’s assertions, the trial court admitted substantial testimony regarding the prosecution witnesses’ gang affiliations. To the extent that the court limited defendant’s inquiry into the other topics noted in his offers of proof, defendant’s proffers as to those subjects were speculative and conclusory at best, and the court did not abuse its discretion in precluding such inquiries. The judgment is affirmed.

No. 06CA1936. People v. Hodge.
Plea Agreement—Sentence—Advisement—Probation—Aggravated Range.

Defendant appeals the trial court’s order denying his most recent postconviction motion seeking to withdraw his plea agreement. The order is vacated.

Defendant contends the trial court should have granted his most recent motion to withdraw his plea for two reasons. First, his advisement was defective, because the court advised him that he could receive a sentence as low as two years if it found extraordinary mitigating factors, when in fact he was subject to mandatory aggravation based on probation status when he committed the crimes. Second, his sentence is illegal, because the court did not advise him that he was subject to mandatory aggravation.

Defendant was subject to mandatory aggravation because he was on probation when he committed this offense. Although the prosecutor referred to a range of ten to thirty-two years based on defendant’s probationary status, the court made no mention of the mandatory minimum sentence based on probationary status; instead, the court advised defendant that the range was two to thirty-two years. Thereafter, the prosecutor made no further comments regarding the sentencing range.

The Court holds that, because the sentencing range for the first-degree burglary count is actually eight to twenty-four years, the trial court incorrectly advised defendant. Defendant’s lost opportunity of a two-year sentence cannot be cured by remand for resentencing, because he still would be subject to the eight-year minimum. Accordingly, the advisement was defective and defendant is entitled to an evidentiary hearing to determine whether the error was harmless. However, the sentence was not illegal, because defendant received a sentence within the aggravated range authorized by the statute for his offense. The order is vacated and the case is remanded for further proceedings.

No. 06CA2609. People v. Griego.
Sentence—Plea Agreement—Community Corrections—Revocation.

Defendant appeals the prison sentence imposed following termination of her community corrections placement. The sentence is affirmed.

Pursuant to a plea agreement, defendant pled guilty to aggravated felony theft. With respect to sentencing, the People agreed not to object to a direct sentence to community corrections, and the parties agreed that the length of any community corrections sentence would be open to the court. The parties also agreed to a six-year cap on any prison sentence imposed. The court sentenced defendant to a nine-year term in community corrections. After defendant was terminated from her community corrections program for cause, the court resentenced her to nine years in the Department of Corrections (DOC).

Defendant argues that the nine-year prison sentence violates her right to due process because it is inconsistent with her understanding of the plea agreement. The Court disagrees. If the sentencing court holds a hearing, it may resentence an offender terminated from community corrections to any sentence that originally might have been imposed. Here, because it was undisputed that defendant was on probation for another felony at the time of the offense, the nine-year DOC sentence is within the range of sentences that originally could have been imposed for defendant’s class 4 felony conviction for aggravated felony theft.

Defendant also argues that the sentence violates the terms of her plea agreement because it exceeds the stipulated six-year cap on any prison sentence imposed. However, in the absence of language expressly addressing the contingency of revocation (or, in this case, termination) of a conditional sentence, a sentencing stipulation will not be construed as limiting the court’s discretion in the event the defendant fails to comply with the terms of the conditional sentence originally imposed. Defendant’s plea agreement contained no explicit language covering the contingency of her termination from community corrections. She received the benefit of her bargain when she was initially sentenced to community corrections, and following her termination, "a different factual predicate existed" on which the court could base its sentencing determination. Thus, the court was no longer bound by the terms of the plea agreement, including the six-year sentencing cap. The sentence is affirmed.

No. 07CA0505. People v. Cooper.
Felony Theft—Second-Degree Aggravated Motor Vehicle Theft—Sentence—Habitual Criminal Statute—CRS § 18-1.3-801(1.5)—Proportionality Review.

Defendant raises issues concerning the judgment of conviction and the propriety of the sentence after a jury convicted him of felony theft and second-degree aggravated motor vehicle theft. The judgment is affirmed, and the sentence is affirmed in part and reversed in part.

Defendant took a pickup truck from a Fort Collins Ford dealership, purportedly for a test drive. Thirteen hours later, he was pulled over by the police in Kansas, driving the same pickup truck.

Defendant argues that the trial court did not have authority to sentence him as a habitual offender for the class 6 felony of aggravated motor vehicle theft. The habitual criminal statute applies to defendants convicted in Colorado of any class 1, 2, 3, 4, or 5 felonies who have been convicted of two previous and separate felonies in the past ten years. Here, defendant was found guilty of theft, a class 4 felony, and was found to have two prior felony convictions within the past ten years. Therefore, the court properly applied the habitual criminal statute when sentencing defendant on this offense. However, the court also applied the habitual criminal statute to defendant’s sentence for his class 6 felony conviction for aggravated motor vehicle theft. The maximum sentence for a class 6 felony is eighteen months. The trial court sentenced defendant to more than four years. Because the habitual criminal statute did not apply to this offense, this portion of the sentence is reversed.

Defendant also argues that the trial court erred by declining to conduct an extended proportionality review of his sentences, instead conducting only an abbreviated proportionality review. Defendant’s three convictions represent a pattern of stealing cars that extended over eight years. The pattern indicates that the crimes were planned and intentional, arising out of a motive to illegally obtain the property of others. Automobile theft is a significant offense. Therefore, defendant’s present offense and the predicate offenses, in combination, were sufficiently grave and serious to support the eighteen-year habitual criminal sentence.

No. 07CA1343. City of Brighton v. Palizzi.
Eminent Domain—Real Property—Annexation—Undeveloped—Residential—Commercial—Valuation Evidence—Just Compensation.

In this eminent domain action, petitioner, the City of Brighton, appeals the judgment awarding respondents (collectively, landowners) $204,387.15 for the value of property taken by the City to widen a road. The judgment is reversed.

The City took possession of landowners’ undeveloped acreage to complete a street-widening project. The City instituted this action to determine how much it owed the landowners. The landowners took the position that the highest and best use of the parcels was as a mixed commercial and residential development (which would require rezoning). The City’s appraiser also determined that the highest and best use of the parcels was as a mixed commercial and residential development. However, unlike the landowners’ appraiser, he took into account that the two parcels at issue had not been annexed by the City, had not been rezoned for any higher use, and were completely undeveloped. As a condition of annexation, the landowners would be required to dedicate a seventy-foot-wide strip of land bordering Bromley Lane to the City.

The City contends the district court erred in permitting the landowners to present valuation evidence based on the potential future use of the parcels for commercial purposes. Just compensation typically is measured by the present reasonable market value of the property taken, in light of the property’s highest and best use. Because it is undisputed that commercial use would require annexation and rezoning, and the City would condition any such annexation and rezoning on dedication of the seventy-foot-wide strip to the City, an appraisal based on such use improperly assumes a use to which the strip could not be put. Therefore, the district court abused its discretion by admitting evidence that valued the entire parcels as developed mixed use, and valued the strip in accordance with the average per square foot value of the entire parcels as so developed. The judgment is reversed and the case is remanded for further proceedings.

No. 07CA1652. People v. Romero.
Escape—Challenge for Cause—CRS § 16-10-103.

Defendant appeals the judgment of conviction entered on a jury verdict finding him guilty of escape. The judgment is reversed.

On October 10, 2006, defendant was convicted of violating his probation in a different criminal case and sentenced to sixty days in the Denver County Jail, with an assignment to work release that allowed him to check out of the jail every day to go to work. On November 1, 2006, defendant checked out and did not return.

The People charged defendant with escape in violation of CRS § 18-8-208(2). A jury found him guilty. He was sentenced to four years in the Department of Corrections (DOC), to be followed by mandatory parole.

Defendant contends it was error to deny his challenges for cause of two prospective jurors. The Court agrees with respect to one, J.M-S, and thus does not address defendant’s contention regarding the other.

During voir dire, J.M.-S said she worked as a security specialist at a community corrections facility. Before the jurors were sworn in, defense counsel challenged her for cause because she works for a law enforcement agency. The district court denied the challenge because "she’s not a compensated law enforcement officer related to law." She remained on the jury after defendant exhausted his preemptory challenges.

CRS § 16-10-103 sets forth circumstances where a juror may be challenged for cause based on actual or implied bias. Where such bias exists, the court has no discretion to deny a timely and clear challenge for cause on that basis. CRS § 16-10-103(1)(k) requires a court to sustain a challenge for cause where "[t]he juror is a compensated employee of a public law enforcement agency." The Colorado Supreme Court has defined "public law enforcement agency" as a "police-like division of government that has the authority to investigate crimes and to arrest, to prosecute, or to detain suspected criminals."

The Court sees no basis to distinguish community corrections from the DOC in this context. Therefore, it holds that an employee of a community corrections facility is an employee of a public law enforcement agency within the meaning of CRS § 16-10-103(1)(k). The challenge should have been sustained, and the case is remanded for a new trial.

No. 07CA1799. People v. Carr.
Dismissal—Uniform Mandatory Disposition of Detainers Act.

The People appeal the trial court’s order dismissing charges filed against defendant. The judgment is affirmed.

Defendant was charged with distribution of marijuana and three habitual criminal counts. On February 12, 2007, while defendant was in the legal and physical custody of the Department of Corrections (DOC) for a sentence in another case, he filed a pro se "Request for Disposition of Detainer and Certificate of Inmate Status," asking that his trial commence within 180 days pursuant to the Uniform Mandatory Disposition of Detainers Act (UMDDA).

On May 21, 2007, defendant appeared with counsel, entered a plea of not guilty, and made a request for a bond reduction and for the court to set the matter for trial. The bond was reduced and the court suggested a trial date of August 28, 2007. Although this date was approximately two weeks beyond the expiration of the 180-day UMDDA period, both parties agreed without mentioning defendant’s request under the UMDDA.

On August 14, 2007, defendant filed a motion to dismiss the charges based on the UMDDA. On August 21, 2007, the trial court granted the motion for dismissal because defendant had not expressly waived his UMDDA rights "on the record after full advisement by the court."

The People argue that the UMDDA ceased to apply once defendant was paroled and released from the physical custody of the DOC. The People concede that "this argument was not made in the trial court." Therefore, the Court does not address it.

The People also argue that defendant waived his rights under the UMDDA by accepting a trial date outside of the 180-day speedy trial period. The Court disagrees.

The Court notes that CRS § 16-14-104(2) specifies that a valid waiver by a defendant of his or her rights under the UMDDA must be express, on the record, and preceded by full advisement by the court. Here, there was no advisement that accepting the trial date would constitute a waiver of defendant’s rights under the UMDDA and defendant made no express waiver on the record. The trial court correctly determined that it was without jurisdiction to proceed to trial. The order of dismissal is affirmed.

No. 07CA2284. Long View Systems Corp. USA v. Industrial Claim Appeals Office.
Unemployment Compensation—Definition of "Employment."

In this unemployment compensation case, petitioner (Long View) seeks review of an order affirming a hearing officer’s decision that services performed for Long View by Gino Lucero and other similarly situated individuals constituted "employment" under the Colorado Employment Security Act. The order is set aside.

Lucero signed a consulting agreement with Long View in which he agreed to provide computer and information systems operating and consulting services. The agreement provided that Lucero’s work would start on January 2, 2007 "and may end as late as March 31, 2007." Long View paid Lucero $18 per hour, and he averaged forty hours of work per week. His work was with one of Long View’s clients, Anadarko Petroleum (Anadarko).

Following Lucero’s completion in April 2007 of work under the consulting agreement, he filed a claim for unemployment benefits. In July 2007, a deputy issued a decision that under CRS § 8-70-115, Lucero and other similarly situated workers were engaged in "employment" with Long View.

Long View appealed, and the hearing officer affirmed. Long View then sought administrative review before the Industrial Claim Appeals Office (Panel), which also affirmed.

The Court of Appeals affirms the Panel’s decision that the consulting agreement does not create a rebuttable presumption of an independent contractor relationship. However, the Court agrees with Long View’s contention that the record does not support the Panel’s findings regarding the issues of "independent trade" and "control and direction."

The hearing officer made no express determination whether Long View had shown, under CRS § 8-70-115(1)(b), that Lucero was customarily engaged in an independent trade, occupation, profession, or business related to the services performed under the consulting agreement. The hearing officer found only that there was no evidence Lucero had worked for other companies during the three-month period he worked under the consulting agreement. The Court does not believe that, when looking at a short-term contract for services, a lack of contemporaneous work for others is dispositive of whether a worker maintained an independent trade or business.

The Court also agrees with Long View’s contention that the evidentiary findings do not support the determination that Long View had the right to direct and control Lucero’s work. The Court finds that Anadarko was directing and controlling Lucero’s work. On remand, the hearing officer is to make additional findings as to whether CRS § 8-70-115(b) is applicable to this situation.

No. 08CA0402. People in the Interest of L.O.L., and Concerning J.B.L.
Termination of Parent–Child Relationship—Mootness—Burden of Proof.

The child, L.O.L., through her guardian ad litem (GAL), appeals the order denying the motion to terminate her parent–child relationship with mother. The appeal is dismissed in part and the order is reversed in part.

The Adams County Department of Social Services (Department) filed a dependency and neglect petition on L.O.L.’s behalf and removed her from parental custody after her father caused her to suffer a brain injury. A year later, Department filed a motion to terminate parental rights, alleging that, despite mother’s compliance with the treatment plan, all therapeutic efforts to reestablish the bond between mother and child had failed. The court denied the motion and Department appealed.

Following the Court of Appeals’ review of the petitions submitted, the record, and the lower court’s register of actions, the Court requested additional briefing from Department and the GAL on the issue of mootness, because since the petition was filed, L.O.L. had been returned to mother’s custody. Further review of the trial court record shows that: (1) L.O.L. had been in mother’s custody since June 2008; and (2) at the September review hearing, all parties agreed with the recommendation to keep L.O.L. with mother.

The Court holds that the issue of termination of parental rights is technically moot. However, it addresses the issue of the correct burden of proof, because it is a matter capable of repetition in a context that will evade review.

Here, where the child has been returned to mother under no objection from any party, the termination of parental rights issue is moot. Because no party is seeking termination of parental rights, the Court’s ruling on this issue would have no practical effect on the existing controversy; therefore, the Court will not address it.

The GAL asserts that the trial court erred in requiring Department to present evidence beyond a reasonable doubt to prove its motion to terminate. Because this mistake could be repeated and evade review, the Court addresses it. The Court agrees with the GAL, holding that the correct standard is clear and convincing evidence. The "beyond a reasonable doubt" standard is applicable only if the Indian Child Welfare Act of 1978 (ICWA) applies. In this case, the ICWA was not applicable. The order is reversed to the extent it determines that the higher ICWA burden of proof should apply in these circumstances. The appeal is dismissed as moot in all other respects, and the case is remanded to the trial court for further proceedings as warranted.

Colorado Court of Appeals Opinions