Colorado Court of Appeals Opinions

October 19, 2017

2017 COA 127. No. 13CA1296. People v. Juarez.

Foreign National—Immigration—Criminal Attorney—Ineffective Assistance of Counsel—Deportation.

Juarez is a Mexican foreign national who has lived in Denver since he was approximately 6 years old. In 2009 he was granted lawful permanent residence status. In 2011, after cocaine was found in his possession, Juarez was charged with one felony count of possession of a controlled substance. Juarez pleaded guilty to possession of a schedule V controlled substance, a class 1 misdemeanor. During his providency hearing, Juarez’s attorney acknowledged that this misdemeanor under Colorado state law was the equivalent of a felony under the Immigration and Naturalization Act. Juarez told the court that he understood that the plea could affect his immigration status. Juarez was sentenced to drug court, and after testing positive for THC, he was deported to Mexico. He filed motions for postconviction relief alleging ineffective assistance of counsel, which were denied.

On appeal, Juarez argued that his attorney performed deficiently by failing to inform him that he would be subject to “mandatory deportation” if convicted. Juarez’s attorney acted within the objective standard of reasonableness by informing Juarez that he was “very likely” to be deported by entering into the plea agreement. Therefore, Juarez’s attorney provided constitutionally effective representation.

Juarez also argued that his attorney was required to advise him that his guilty plea would result in lifetime inadmissibility to the United States, mandatory detention, and destruction of the defense of cancellation of removal. Criminal defense attorneys are not required to function as immigration lawyers, and the Court of Appeals found no support for these arguments. Counsel’s performance was within the range of competence demanded of attorneys in criminal cases.

The order was affirmed


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2017 COA 128. No. 14CA1795. People v. Robinson.

Sexual Assault—Prosecutorial Misconduct—Racial Prejudice—Evidence.


Robinson was charged with multiple counts of sexual assault, attempted sexual assault, and unlawful sexual contact. During opening statement in his criminal prosecution, the prosecutor described the incidents to the jury using race-based statements. Defense counsel did not object and the trial court did not admonish the prosecutor or instruct the jury to disregard the prosecutor’s statements. The jury convicted Robinson of two counts of unlawful sexual contact and two counts of the lesser included offense of attempted sexual assault. The trial court sentenced Robinson under the Sex Offender Lifetime Supervision Act to four years to life imprisonment.

On appeal, Robinson argued that the prosecutor’s description of “a dark penis going into a white body” during opening statement constituted prosecutorial misconduct amounting to plain error, requiring reversal of his convictions. Viewed objectively, the prosecutor’s opening statement, by its words and in the context it was presented to the jury, was an appeal to racial prejudice and improper. The statements cast serious doubt on the reliability of Robinson’s convictions.

Robinson also argued that the prosecutor engaged in misconduct when she implied that Robinson was unfaithful to his girlfriend. The nature of Robinson’s relationship with the woman with whom he lived, and whether he might have been unfaithful to her, was irrelevant.

The judgment was reversed and the case was remanded for a new trial. 

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2017 COA 129. No. 15CA0410. People v. Mendez.

Confidential Informant—Audio Recording—Video Recording—Fourth Amendment—Discovery Violation—Remedy—Evidence—Non-Testimonial—Jury Deliberations.

A confidential informant (CI) approached a police investigator with a potential target for a controlled drug buy. The investigator arranged for the CI to purchase methamphetamine from Mendez in a controlled drug buy with concealed audio and video. After the buy, the People charged Mendez with distribution of a schedule II controlled substance. Mendez moved to suppress evidence obtained during the CI’s entry into his apartment. The district court denied the motion.

On appeal, Mendez contended that his conviction must be reversed because the video recording of the controlled buy should have been suppressed as the result of an unreasonable search under the Fourth Amendment. The Court of Appeals concluded that the use of video surveillance by a CI in this case did not violate the Fourth Amendment. Mendez invited the CI into his apartment to engage in a drug transaction. Because Mendez consented to the CI’s presence in his home, he gave up any reasonable expectation of privacy in what the CI could observe or visually record. The district court properly denied the motion to suppress the resulting video recording.

Mendez next asserted that the district court abused its discretion by failing to provide an adequate remedy for a discovery violation. He argued that the prosecution’s failure to disclose a conversation between the CI and a police investigator about the Department of Homeland Security constituted a violation of his constitutional rights and the district court’s chosen remedy deprived him of a fair trial. As a sanction for the discovery violation, the district court ordered the investigator to make himself available for an interview with defense counsel to determine the scope of his representations to the CI. The district court denied defense counsel’s request that the CI be subject to recall for cross-examination. The district court’s discovery sanction was inadequate because Mendez was given no opportunity to cross-examine the CI about whether he believed he would receive immigration support from Homeland Security for his willingness to participate in the controlled buy. That belief could have been relevant to the CI’s motive, regardless of the investigator’s memory of the conversation. And the district court’s remedy did not cure that potential prejudice. Nevertheless, the district court’s error was harmless beyond a reasonable doubt and did not warrant reversal given the overwhelming evidence against Mendez at trial, and the fact that Mendez was able to successfully call the CI’s credibility into doubt by the end of trial.

Finally, Mendez argued that the district court abused its discretion in failing to limit the jury’s access to the video recording and transcript during deliberations. A district court need not limit juror access to non-testimonial evidence. It was not an abuse of discretion for the court to allow the jury unfettered access to the video recording and transcript.

The judgment was affirmed.


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2017 COA 130. No. 15CA1425. People v. Heredia-Cobos.

Sexual Assault—Child—Forensic Interviewer—Expert Testimony—Credibility—Defendant’s Theory of the Case—Evidence—Prior Acts—CRE 404(b).

Defendant was convicted of sexual assault on his 9-year-old great niece, Y.P.

On appeal, defendant contended that the district court abused its discretion by allowing the forensic interviewer who had interviewed Y.P. to testify that Y.P. didn’t show any signs of having been coached. Although such testimony ordinarily is improper (because it’s tantamount to vouching for the child’s credibility), in this case the testimony was admissible to rebut defendant’s defense theory that Y.P. had made up the allegations. Because defendant opened the door to this testimony, it was not error to allow it.

Defendant also contended that the district court erred by allowing evidence of his prior acts of a sexual nature involving other relatives in violation of CRE 404(b). He argued that the prior acts were too dissimilar to his alleged assault of Y.P. to be admissible. Evidence that defendant physically assaulted two female relatives who lived with him was probative of defendant’s intent to sexually assault another female at his home and was relevant to refute his claim that Y.P. fabricated the allegation. Further, the other act evidence was especially relevant because Y.P.’s testimony was the only direct evidence of defendant’s guilt. Thus the potential for unfair prejudice did not outweigh the evidence’s probative value, and the district court did not err in admitting evidence of these acts. Additionally, evidence that defendant masturbated in front his 19-year old niece several times (although he did not physically assault her) was also relevant and no more potentially prejudicial than the evidence of the acts involving the other two relatives. But even assuming that allowing this evidence was error, any error was harmless.

The judgment was affirmed.

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2017 COA 131. No. 16CA1474. People v. Fallis.

Bond—Refund—CRS §16-4-110(1)(d).


Defendant was charged and arrested for allegedly murdering his wife. The district court set a $500,000 bond. Defendant posted bond through Perna by paying a $25,000 premium. Thereafter, defendant cooperated with all court orders and appeared at all hearings. Fourteen months later, just before defendant’s trial was to begin, Perna moved to surrender defendant back into the custody of the court. The court granted the motion. Defendant spent several days in jail while his family secured a second bond and paid another $25,000 premium to a different surety to secure defendant’s release. Defendant was ultimately acquitted. Defendant moved for return of the premium he had paid to Perna, which the court partially granted, ordering Perna to return $11,031.25 to defendant.

On appeal, Perna contended that the district court erred by ordering that he refund a portion of the bond premium to defendant. Under CRS § 16-4-110(1)(d), a court may order return of all or part of the premium defendant paid to prevent unjust enrichment only if the surrender occurred before the defendant’s initial appearance. Here, Perna surrendered defendant to the court 14 months after the court process began, well after defendant’s initial appearance. Accordingly, the court was without the authority to order Perna to refund all or part of defendant’s premium.

The order was vacated.


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2017 COA 132. No. 16CA1542. People in re T.T.

Index of Cases—Involuntary Mental Health Treatment—CRS § 27-65-107(7).


T.T. accepted voluntary mental health treatment, but the physician did not believe T.T. would remain in a voluntary program and filed a certification for short-term treatment pursuant to CRS § 27-65-107. The district court issued a notice of certification for short-term treatment. Six days later the physician filed a notice of termination of involuntary treatment.

            Two years later T.T. learned that his name still appeared on the court’s index of cases. The clerk refused T.T.’s request to remove his name. T.T. filed a pro se motion requesting that his name be omitted from the court’s index in accordance with CRS § 27-65-107(7). The district court denied the motion without making any factual findings or legal conclusions.

            A division of the Court of Appeals issued an order remanding the case for the district court to hold a hearing and make findings of fact and conclusions of law. The district court granted in part T.T.’s motion to omit his name from the index by directing the Arapahoe County Clerk to omit his name from “any list generated or produced, even for the purpose of storage.” The court also denied in part, stating that T.T’s name will “remain in the [Eclipse] database for the purposes of the Clerk of Court’s maintenance of records and to comply with Section 27-65-107(7).”

            On appeal, T.T. argued that the district court erred in denying his motion because based on the plain language of the statute and the stipulated facts, his name should also have been omitted from the Eclipse system when he was released from treatment. The public’s right to access to official records is not absolute. Court records for mental health cases, including indices, are not open to public access. The plain language of CRS § 27-65-107(7) requires the clerk to omit a respondent’s name from the index of cases after the clerk is notified of a respondent’s release from involuntary treatment. Finding the phrase “omit the name of the respondent from the index of cases in such court” to be ambiguous, the Court of Appeals liberally construed this language in light of the General Assembly’s stated objective to “provide the fullest possible measure of privacy, dignity, and other rights to persons undergoing care and treatment for a mental health disorder.” The Court concluded that the index of cases in this instance referred to the Eclipse system.

            The order was reversed and the case was remanded for the district court to order T.T’s name be omitted from the Eclipse system and lists generated from that system.


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2017 COA 133. No. 16CA1678. Adams v. Sagee.

Citizen Right of Initiative—Filing Deadline.


Plaintiffs petitioned to present a ballot initiative to the residents of Sheridan. Sheridan’s City Clerk, Sagee, rejected some of the signatures plaintiffs had collected, leaving them short of the number required for the initiative to be considered. Plaintiffs contested the decision, and the City Clerk upheld it after a protest hearing. Plaintiffs filed a complaint in district court 35 days later pursuant to CRS § 31-11-110(3). The district court dismissed the case for lack of subject matter jurisdiction because plaintiffs failed to file within the CRCP 106 28-day time limit.

            On appeal, plaintiffs conceded that the 28-day jurisdictional bar applied and they filed 35 days after the relevant final decision. They argued that strict application of the time limit to them as pro se parties deprived them of their constitutional right of initiative. The Court of Appeals construed plaintiffs’ argument to be an as-applied challenge to the constitutionality of the statutory time bar. The Court found plaintiffs pro se status irrelevant; pro se parties must comply with procedural rules to the same extent as parties represented by attorneys. The Court concluded that applying CRCP 106(b)’s jurisdictional deadline to plaintiffs’ Rule 106(a)(4) petition does not deprive them of or unduly burden their constitutional right of initiative.

            The judgment was affirmed.


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2017 COA 134. No. 16CA1723. HDH Partnership v. Hinsdale County Board of Equalization.

Taxation of Hunting and Fishing Memberships—County Assessment—Real Property Taxes.


            Owners of fishing and hunting memberships (petitioners) were taxed on the parcels of real estate allocated to them in their membership agreements. The parcels are part of a larger tract of land used as a hunting and fishing club (club). Membership in the club is granted to those who hold a deed to one of the parcels that collectively comprise the club grounds. Members cannot make improvements on their parcels or exclude other club members. The club retains control over the grounds and grants all members equal access, regardless of the parcel to which they hold title. A member’s right to access the grounds can be revoked if the member owes money or violates club rules.

Petitioners initiated this action after they disagreed with the county’s assessment of their parcels. The Hinsdale County Board of Equalization (BOE) affirmed the assessor’s valuation. Petitioners appealed to the Board of Assessment Appeals (BAA), which affirmed the BOE’s decision.

On appeal, petitioners argued that the law permits the court to look beyond the title to the substance of the parties’ rights when determining ownership. The Court of Appeals concluded that the club was the true property owner because it enjoyed the most significant incidents of ownership. The members effectively had a license to use club grounds, even though they held bare legal title to the parcels. Therefore it was the club, and not the members, that had to bear the real property tax burden. Further, the BAA erred in affirming the assessor’s valuation because it was based on the personal property value of petitioners’ licenses to use club grounds rather than the value of the parcels as real property.

            The order was reversed and the case was remanded with directions.


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2017 COA 135. No. 17CA0182. People in re C.A.

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