April 2017: Summaries of Published Opinions, 0617 COBJ, Vol. 46 No. 6 Pg. 99
| Author | Cobar Host, J. |
Colorado Court of Appeals
Cobar Host, J.
April 2017: Summaries of Published Opinions
The summaries of Colorado Court of Appeals published opinions are written for the CBA by licensed attorneys Teresa Wilkins (Englewood) and Paul Sachs (Steamboat Springs). They are provided as a service by the CBA; are not the official language of the Court; and are available only in The Colorado Lawyer and on the CBA website, www.cobar.org (click on "Opinions/Rules /Statutes"). The CBA cannot guarantee their accuracy or completeness. The full opinions, the lists of opinions not selected for official publication, the petitions for rehearing, and the modified opinions are available both on the CBA website and on the Colorado Judicial Branch website, www.courts.state.co.us (click on "Courts/Court of Appeals/Case Announcements").
April 6, 2017
2017 COA 39. No. 14CA0245. People v. Al-Turki.
Colorado Sex Offender Lifetime Supervision Act—Probation—CRS § 18-1.3-406(1)(a) and (b)—Crime of Violence—Sex Offender.
Al-Turki was convicted under the Colorado Sex Offender Lifetime Supervision Act of 1998 (LSA) of 12 counts of unlawful sexual contact through use of force, intimidation, or threat. The district court ultimately sentenced him to indeterminate prison terms of six years to life. Al-Turki renewed his previously filed Rule 35(b) motion for reduction of sentence, arguing that he was eligible for a probationary sentence under CRS § 18-1.3-406(1)(a). The trial court denied the motion.
On appeal, Al-Turki contended that he was eligible to have his indeterminate term of incarceration sentence, which was imposed under the LSA and the crime-of-violence statute, CRS § 18-1.3-406(1)(b), modified to probation under CRS § 18-1.3-406(1)(a). The mandatory sentencing for violent crimes statute, CRS § 18-1.3-406(1), differentiates between crimes of violence that involve sex offenses (CRS § 18-1.3-406(1)(b)) and those that do not involve sex offenses (CRS § 18-1.3-406(1)(a)). CRS § 18-1.3-406(1)(b) provides that defendants convicted of a sex offense that is a crime of violence "shall" be sentenced to an indeterminate term of incarceration. Thus, a crime-of-violence sex offender is not eligible for probation. Al-Turki was convicted of a sex offense that is a crime of violence. Therefore, the district court did not err in concluding that CRS § 18-1.3-406(1)(b) precluded it from modifying Al-Turki’s sentence to probation.
The order was affirmed.
2017 COA 40. No. 14CA0842. People v. Davis.
Wiretapping—Conspiracy—Habitual Criminal —Unanimity Instruction—Single Transaction—Limiting Instruction—Prior Conviction—Jury.
After an investigation that entailed wiretapping, the People charged defendant with one count of conspiracy to distribute a schedule II controlled substance (methamphetamine) and several habitual criminal counts. A jury convicted defendant of the conspiracy charge, and the district court, after finding that defendant was a habitual criminal, sentenced him to 48 years.
On appeal, defendant contended that the district court erred in not requiring the prosecution to elect the overt act on which it was relying to prove the conspiracy charge or not giving the jury a special, modified unanimity instruction regarding the overt act. When the People charge a defendant with crimes occurring in a single transaction, they do not have to elect among the acts that constitute the crime, and a special unanimity instruction (one that tells the jury that it must agree unanimously as to the act proving each element) need not be given. A defendant can participate in a number of crimes or events to accomplish a single conspiracy. The Colorado Supreme Court has indicated that the following factors tend to show a single criminal episode: the alleged acts occurred during the same period, the type of overt act alleged is the same, the unlawful objective of the conspiracy is the same, and the same evidence would be relevant to the charges. Here, the actions occurred in a relatively short time frame, evidence of defendant’s phone conversations with one person primarily established the conspiracy, and all the overt acts on which the jury could have relied were done in furtherance of the same unlawful objective. Therefore, the evidence presented in this case showed one criminal episode, and hence one conspiracy. Though the prosecution alleged numerous overt acts in furtherance of the single conspiracy, that did not require unanimous agreement by the jurors as to the precise overt act defendant committed. Therefore, the district court did not err, much less plainly err, in failing to require an election or to give the jury a special unanimity instruction.
Defendant also contended that the district court erred in not providing the jury a limiting instruction. However, defendant did not request a limiting instruction, and a trial court’s failure to give a limiting instruction sua sponte does not constitute plain error.
Defendant further contended that his rights to jury trial and due process were violated when the judge, instead of the jury, found that he had been convicted of prior felonies. The Colorado Supreme Court has held that the fact of a prior conviction is expressly excepted from the jury trial requirement for aggravated sentencing.
The judgment was affirmed.
2017 COA 41. No. 14CA1030. People v. Valdez.
Murder—Robbery—DNA Evidence—Collateral Estoppel—Expungement—Constitutionality—Katie’s Law—Surveillance Camera—Evidence—Jury.
A jury convicted Valdez of first degree murder after deliberation and several other charges arising from the robbery of a jewelry store during which one of the two hooded robbers shot and killed the owner. Valdez did not testify but defended based on misidentification. Valdez was sentenced to life without the possibility of parole on the first degree murder count, was consecutively sentenced to 32 years on the aggravated robbery count, and received concurrent sentences on the other counts.
On appeal, Valdez argued that the match of his DNA to the DNA evidence from the crime scene was derived from a sample unconstitutionally collected when he was arrested on an unrelated charge in a traffic case. Valdez’s DNA sample was taken during his arrest for aggravated driving under restraint —habitual offender. Although Valdez pleaded guilty to a misdemeanor in that traffic case and was eligible to apply for DNA expungement under CRS § 16-23-105 (part of Katie’s Law), he failed to either move to suppress the DNA sample before pleading guilty or seek expungement based on his misdemeanor plea. The constitutionality of Katie’s Law was not determined in the traffic case. Because Katie’s Law, as applied to Valdez, is constitutional, the trial court did not err in denying his motion to suppress.
Valdez also argued that the district court erred in admitting a surveillance camera video of the robbery in progress depicting the owner’s dying moments because it was unfairly prejudicial, and further erred by improperly giving the jurors unfettered access to replay all of the videos during deliberations. The recording of the robbery in progress showed the actual crime. Therefore, it was not unfairly prejudicial, and the trial court did not abuse its discretion by admitting the surveillance video from the overhead camera. Additionally, the videos were played for the jurors only after their request, and the court clerk supervised the playback. Therefore, the trial court did not abuse its discretion in declining to limit the number of times the jury could view the videos or in refusing to impose other restrictions on the jury’s consideration of them.
Having affirmed Valdez’s convictions on all charges, including first degree murder, Valdez’s argument that it was error to impose a lesser sentence consecutively rather than concurrently is moot.
The judgment and sentence were affirmed.
2017 COA 42. No. 15CA0852. Farm Credit of Southern Colorado, ACA v. Mason. Credit Agreement—Jury Demand—Equitable—Non-Disclosure—Abandonment—Estoppel—Waiver —Consent—Conversion—Bankruptcy—Collateral Estoppel—Damages.
Zachary funded his farming operations with loans from Farm Credit of Southern Colorado, ACA and Farm Credit of Southern Colorado, FLCA (collectively, Farm Credit). Zachary was having difficulty paying his debt to Farm Credit and had planted crops on seven farms for the coming harvest. Written agreements between Farm Credit and Zachary granted Farm Credit a perfected security interest in Zachary’s crops (Crop Collateral) and their proceeds. Farm Credit refused to continue funding Zachary’s farming operations and Zachary was unable to cultivate the Crop Collateral. Zachary’s father, James, thereafter took over the cultivation of the Crop Collateral. James never attempted to transfer the Crop Collateral or its proceeds to Farm Credit. Farm Credit filed a complaint for various claims against Zachary and other parties, but not James. Zachary thereafter filed for bankruptcy. As part of a bankruptcy adversary proceeding, Farm Credit filed an amended complaint alleging that Zachary transferred the Crop Collateral to James. Farm Credit later amended the state trial court complaint to add James as a defendant. Ultimately, the trial court entered a judgment against James, finding him liable for converting the Crop Collateral and awarding Farm Credit damages plus interest.
On appeal, James argued that the trial court erred in striking his demand for a jury trial. Based on the complaint, Farm Credit’s remedy was in the nature of a foreclosure, an equitable action. Because the basic thrust of the underlying action was equitable and not legal...
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