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Colorado Court of Appeals Opinions
March 29, 2012

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.

2012 COA 50. No. 07CA2481. People v. Bondurant.
Murder—Burglary—Expert Testimony—Mental Condition—Separation of Powers Doctrine—Constitutional—Self-Incrimination—Due Process—Effective Assistance of Counsel—Jury Instructions—Extraneous Information.

Defendant Jason William Bondurant appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of first-degree murder after deliberation, second-degree murder, first-degree felony murder, first-degree burglary, false imprisonment, theft, two counts of menacing, and four counts of child abuse. The judgment was affirmed. 

At trial, Bondurant admitted to fatally shooting the two victims, but denied that he could be convicted of the various charges because he lacked the culpable mental state. Bondurant contended that the trial court erred in ordering him to undergo a psychiatric examination pursuant to CRS §16-8-106 after he proposed to introduce expert testimony on his mental condition, because the statutory scheme is unconstitutional. The statute, although affecting the procedure of the courts, also concerns the public policy of full disclosure in criminal cases involving a defense based on a defendant’s mental condition. Additionally, there is not a substantial conflict between the requirements of Crim.P. 11(e) and 16 (II)(b), and CRS § 16-8-107(3)(b). Accordingly, because CRS § 16-8-107(3)(b) does not violate the separation of powers doctrine, the trial court did not err in applying it.

Bondurant also contended that CRS § 16-8-107(3)(b) and relevant portions of CRS §§ 16-8-103.6 and -106 are unconstitutionally vague, both facially and as applied to him. The term “mental condition” and “cooperate” are not incomprehensible as claimed by Bondurant. Therefore, these arguments failed.

Bondurant also maintained that CRS §§ 16-8-103.6(2), -106(2)(c) and (3)(b)–(c), and -107(1.5)(a) and (3)(b) violate a defendant’s constitutional privilege against self-incrimination. However, these statutes limit the admission of information obtained in court-ordered examinations to the issues of mental condition and insanity that defendants themselves have raised. Therefore, they do not violate Bondurant’s constitutional privilege against self-incrimination here.

Bondurant contended that, taken together, CRS §§ 16-8-103.6(2), -106(2)(c) and (3)(b)–(c), and -107(1.5)(a) and (3)(b) violate a defendant’s constitutional right to due process and effective assistance of counsel. The court did not preclude this line of defense, but only required defendant to comply with the statute if he chose to pursue it.

Bondurant contended that there was insufficient evidence to support a finding beyond a reasonable doubt that he had unlawfully entered or remained in the Hawkinses’ home, an element material to his conviction of first-degree burglary and felony murder. Bondurant was not invited to the birthday party taking place at the home on the date of the charged offenses. Bondurant entered the house unexpectedly and with a gun in hand. Based on this evidence, the jury could reasonably infer that Bondurant did not have permission from the Hawkinses to enter their property on the date of the charged offenses.

Bondurant also contended that the trial court erred in refusing to give the jury the supplemental instructions he tendered concerning the elements of intent and trespass for the burglary charge. Defendant’s proposed instructions were duplicative, and the tendered jury instructions were adequate and not an abuse of discretion.

Bondurant further argued that the trial court committed reversible error by addressing separate allegations made by him at trial, so that the jury was, or may have been, improperly exposed to extraneous information. The Court of Appeals ruled that the trial court did not err in disregarding a news story not relevant to this case, and determined that the jury did not learn any prejudicial information in a brief exchange of comments with a court staff member in an elevator ride.

2012 COA 51. No. 09CA0511. People v. Torrez.
Presentence Confinement Credit—Jurisdictions.

Defendant appealed the Jefferson County District Court’s order granting her eighty-six days of presentence confinement credit (PSCC) for the time she was physically confined in Jefferson County before being sentenced and denying her PSCC for the 1,493 days she was confined in Denver and at the Colorado Mental Health Institute at Pueblo (CMHIP). The order was affirmed in part and reversed in part, and the case was remanded. 

Defendant was confined in Denver on separate Denver and Jefferson County arrest warrants. She subsequently was ordered to be confined at CMHIP by both Denver and Jefferson County. After a Denver jury found her not guilty by reason of insanity (NGRI), Denver again ordered her to be confined at CMHIP.

Defendant contended that the Jefferson County District Court erred in granting her only eighty-six days of PSCC, representing the time she physically was confined in Jefferson County. Defendants are not entitled to PSCC for time they are confined in jurisdictions other than where they are seeking PSCC, if there was a separate and independent criminal proceeding that was causing their confinement in the other jurisdiction. Therefore, for the period defendant was confined before the Denver NGRI verdict, the Jefferson County District Court properly granted defendant PSCC only for the time she physically was confined in Jefferson County. However, once the Denver criminal proceeding against defendant ended, defendant no longer was barred from receiving PSCC on the Jefferson County sentence for the time she continued to be confined at CMHIP, because there was no longer a separate and independent criminal proceeding pending against her. Accordingly, the Jefferson County District Court erred in denying defendant PSCC for the period of confinement between the Denver NGRI verdict and imposition of the Jefferson County sentence. The case was remanded to the district court with instructions to grant that PSCC. The order was affirmed in all other respects.

2012 COA 52. No. 10CA1378. People v. Brooks.
Indecent With a Child by Exposure—Failing to Register as a Sex Offender—Out of State.

Defendant Lorenzo Brooks appealed the judgment of conviction following a bench trial in which the court found him guilty of failure to register as a sex offender. The judgment was reversed.

In 1994, defendant pleaded guilty in Harris County, Texas, to indecency with a child by exposure. After sentencing in the Texas case, defendant was transferred to El Paso County, Colorado, where he pleaded guilty to aggravated robbery. He was sentenced to nineteen years in the Colorado Department of Corrections (DOC). When defendant was paroled in Colorado, he was advised that he must register as a sex offender under the Colorado Sex Offender Registration Act. Defendant subsequently was charged with two felony counts of failing to register as a sex offender after it was determined that he no longer resided at the registered address.

Defendant contended that he was not required to register as a sex offender and, therefore, he could not be convicted of failing to register. Defendant was convicted in Texas of indecency with a child by exposure. The crime of indecent exposure in Colorado requires that the crime be “under circumstances in which such conduct is likely to cause affront or alarm to another person.” Because the crime of indecent exposure contains this element, and the Texas statute for indecency with a child lacks this element, defendant was not subject to registration in Colorado. The judgment of conviction was reversed.

2012 COA 53. No. 11CA0613. Figuli v. State Farm Mutual Fire and Casualty.
Insurance—Injuries—Sewage—Absolute Pollution Exclusion Clause.

In this action concerning insurance coverage, plaintiffs Shadi Figuli, Joshua Figuli, and Jean Chu appealed the district court’s summary judgment in favor of defendant State Farm Mutual Fire and Casualty (State Farm). The judgment was affirmed.

In 2004, the Figulis became ill while living in a rental property owned by Chu. The property was covered by a rental dwelling policy with State Farm, and Chu also had a personal liability umbrella policy. After testing on the property revealed the presence of toxic mold and raw sewage, the Figulis filed suit against Chu for their injuries.

Plaintiffs argued that the district court erred in concluding that raw sewage is a pollutant excluded from coverage by State Farm policies’ absolute pollution exclusion (APE) clause and granting summary judgment in favor of State Farm. Here, the APE clause is unambiguous when applied to raw sewage. The policy defines “pollutants” as “any solid, liquid, gaseous or thermal irritant or contaminant, including . . . waste.” “Waste” is defined in the policy as including, but not limited to, materials to be recycled, reconditioned, or reclaimed. The plain meaning of the term “sewage” is waste, and waste clearly is included in the definition of “pollutants” under the policy. Therefore, the district court correctly held that State Farm had no duty to defend or indemnify Chu and properly granted summary judgment in State Farm’s favor.

2012 COA 54. No. 11CA0622. Colorado Division of Insurance v. Trujillo.
Fiduciary—Duty Bail Bonding Agent—License—Bond Premium.

In this case concerning the fiduciary duties owed by a bail bonding agent to his client, respondent Milton Michael Trujillo appealed the final order of petitioner, the Colorado Division of Insurance (Division), affirming the initial decision of the agency’s administrative law judge (ALJ) to revoke and deny his application for renewal of his bail bonding agent and insurance producer licenses. The order was affirmed.

In December 2004, Connie Espinoza gave Trujillo, a licensed bail bonding agent and insurance producer, $3,500 in cash to post bond for her son. Trujillo was unable to post bond for Espinoza’s son. Rather, he gave Connie Cordova, an acquaintance of Espinoza’s son, $2,360 (the $3,500 less $1,140 used to post a bond for Cordova’s friend), claiming that Cordova was the actual owner of the money. Espinoza did not consent to this transaction.

Trujillo contended that the Division erred in denying renewal of his insurance producer and bail bonding agent licenses because the agency misinterpreted CRS §10-2-704 when it determined that he owed a fiduciary duty to Espinoza and should not have returned the bond premium to Cordova. Ted Espinoza is the “insured” under CRS §10-2-704(1)(a), because Trujillo undisputedly received the $3,500 to procure for him a surety bond. Therefore, the $3,500 premium belonged to Connie Espinoza as agent for her son Ted, and it became an unearned premium when Trujillo was unable to post a bond. In the absence of an express agreement, a fiduciary relationship is established between a bail bonding agent and an insured or the insured’s agent when the bonding agent receives a bond premium therefrom, regardless of ownership of the premium. Here, once it was clear that the premium was unearned, Trujillo had a statutory obligation to treat it in a fiduciary capacity and return it to Connie Espinoza. Therefore, the Division’s ultimate finding that Trujillo had a fiduciary duty to Espinoza and breached that duty in failing to return the money to her was reasonable, was supported by substantial evidence, and was not an abuse of discretion.

2012 COA 55. No. 11CA0892. In re the Complaint Filed by the City of Colorado Springs, and Concerning Colorado Ethics Watch.
Campaign Finance Disclosure Requirements—Home-RuleMunicipalities—Jurisdiction.

Colorado Ethics Watch (CEW) sent a letter to the Mayor and Vice Mayor of the City of Colorado Springs (City), alleging that a slate of City Council candidates had violated campaign finance disclosure requirements set forth in part 2 of the elections chapter (campaign practices ordinance) of the City’s Municipal Code (City Code). CEW requested that the City Attorney investigate allegations that the candidates failed to register individual candidate committees and to file campaign finance disclosure reports. 

The Mayor forwarded the complaint to the Secretary of State’s office, requesting it investigate. The Secretary of State forwarded the complaint to the Office of Administrative Courts for assignment to an administrative law judge (ALJ), noting that the City would be the complainant.

The ALJ sua sponte issued an order addressing subject matter jurisdiction, noting that the City is a home-rule municipality that may legislate as to matters of local concern. He concluded that the City’s campaign practices ordinance regulates campaign registration and disclosure practices and provides a process for local investigation and prosecution of alleged violations, and that these provisions superseded state law provisions. The ALJ dismissed for lack of subject matter jurisdiction.

On appeal, the City argued that its campaign practices ordinance addressed only knowing violations, and that non-knowing violations may be referred to the state for investigation under the Fair Campaign Practices Act (FCPA). The Court of Appeals disagreed and affirmed the decision of the ALJ.

The Court looked to section 6 of Article XX of the Colorado Constitution, which provides, in part, that home-rule municipalities have the “power to legislate upon, provide, regulate, conduct and control . . . [a]ll matters pertaining to municipal elections in such city or town . . . including . . . securing the purity of elections.” The FCPA provides that “[t]he requirements of article XXVIII of the state constitution and of this article shall not apply to . . . home rule municipalities that have adopted charters, ordinances, or resolutions that address the matters covered by article XXVIII and [the FCPA].” The Court held that the City fell within this exclusion because its campaign practices ordinance covered matters addressed by the FCPA. Therefore, the ALJ’s ruling on jurisdiction was correct. The Court also found that (1) the Secretary of State has adopted a rule recognizing the exclusion from state disclosure requirements for home-rule municipalities that have legislated on the same subject matter; (2) the Attorney General has issued an opinion concluding that article XXVIII does not apply to home-rule municipalities that have enacted provisions addressing the same subject matter; and (3) the Colorado Supreme Court and divisions of the Court of Appeals previously have held that municipal elections are a matter of local concern. Finally, the Court rejected the City’s assertion that the campaign practices ordinance applies only to knowing violations and that CEW’s complaint did not allege a knowing violation. The order was affirmed.

Colorado Court of Appeals Opinions