Summaries of Published Opinions, 0719 COBJ, Vol. 48, No. 7 Pg. 91

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48 Colo.Law. 91

Summaries of Published Opinions

Vol. 48, No. 7 [Page 91]

Colorado Lawyer

July, 2019

COLORADO COURT OF APPEALS

May 2, 2019

2019 COA 61. No. 16CA0400. People v. Tresco.

Criminal Law—Second Degree Assault—Sixth Amendment—Appointed Counsel—Confrontation Rights—Expert Witness—Evidence—Sentencing—Gang Association.

Tresco was charged with second degree assault for punching a man in the face and causing nerve damage. On the first day of trial, Tresco requested that his public defender be removed, but the trial court did not address the request, and the public defender represented Tresco at trial. The jury found Tresco guilty, and the trial court sentenced him to eight years in the custody of the Department of Corrections and three years of mandatory parole.

On appeal, Tresco argued that the trial court violated his Sixth Amendment rights by denying his counsel of choice. Because Tresco had appointed rather than private counsel, he did not have the right to counsel of his choice under the Sixth Amendment. Further, the record supported the court's finding on remand that there were no conflicts that would have prevented Tresco's counsel from effectively representing him. Therefore, Tresco was not entitled to have his appointed counsel removed.

Tresco next argued that the trial court violated his confrontation rights by erroneously admitting an expert's testimony on the victim's nerve damage. Because the prosecution gave Tresco's counsel a copy of the expert's notes and reports, Tresco had the opportunity to cross-examine the expert witness, and he failed to follow up on his discovery motion requesting that the prosecution provide him with a written summary of the expert's testimony, the trial court did not violate his confrontation rights by admitting the expert's testimony on nerve damage.

Tresco also argued that the trial court erred in considering, in sentencing, video clips of Tresco from the television show Gangland as evidence of his previous gang affiliation. Evidence of gang affiliation is not per se inadmissible during sentencing if it relates to the nature of the offense and the defendant's character, not merely the defendant's abstract beliefs. Here, the evidence of Tresco's prior gang affiliation properly related to his character, as relevant to sentencing, because it shed light on his tendency toward aggression, rage, and assaultive behavior. Further, this evidence was not the dispositive factor in the court's sentencing decision.

The judgment and sentence were affirmed.

2019 COA 62. No. 16CA0446. People v. Perez.

Criminal Law—Sentencing—Restitution—Due Process—Privilege.

Perez hosted a wedding at his ranch. An argument ensued among some of the wedding guests, and Perez ultimately broke a beer bottle on the victim's face. The victim had to be transported to the hospital via helicopter for medical treatment. Perez was convicted of second degree assault with a deadly weapon. At sentencing in 2013, the trial court reserved a restitution determination for 90 days. Ninety-four days after the order of conviction, the prosecution moved for an extension of time to request restitution. Perez did not object, and the court granted the motion. The court ultimately issued a restitution order in 2015.

On appeal, Perez argued that the trial court erred in ordering restitution more than 91 days after sentencing absent a showing of good cause. The statute does not require an explicit finding of good cause but requires the trial court to find that there are extenuating circumstances to grant the prosecution more time to gather and submit the required documentation to determine restitution. Although the trial court did not make a finding that there were extenuating circumstances, the prosecution made sufficient assertions for a finding of extenuating circumstances to have been made. Therefore, the error was not substantial.

Perez also argued that the trial court erred in relying on, but not fully disclosing, otherwise confidential Crime Victim Compensation Board (CVCB) records in determining proximate cause for the purpose of restitution. The statute in effect at the time did not require the trial court to disclose otherwise privileged information to Perez in violation of the victim's privilege rights. Here, the court stated in its order that it provided defense counsel with all non-privileged information from the CVCB's records.

Perez further argued that the trial court's failure to disclose confidential information from the CVCB's records violated his right to due process. However, the constitutional right to due process does not override a claim of privilege. Because no published case law clearly supports Perez's right to obtain privileged documents, the trial court's decision not to provide them, even if error, could not have been obvious.

The restitution order was affirmed.

2019 COA 63. No. 17CA1372. People v. Harrison.

Criminal Law—Affirmative Defense—Immunity for Persons Suffering a Drug Overdose.

Defendant and her friend entered a Burger King restaurant, ordered a meal, and sat down at a booth. After staff at the restaurant noticed defendant and her friend had not touched their food, were slumped over each other, and were otherwise unresponsive, they called 911 for assistance. Police arrived and defendant consented to a search of her purse and backpack, where police found heroin, methamphetamine, and drug paraphernalia. A jury convicted defendant of two counts of possession of a controlled substance and one count of possession of drug paraphernalia.

On appeal, defendant argued that the prosecution failed to disprove her affirmative defense of immunity for persons suffering an emergency drug or alcohol overdose event under CRS § 18-1-711. Under this statute, immunity extends to both the person who called 911 and to the person who suffered the emergency drug or alcohol overdose event. Here, the evidence at trial was insufficient to disprove that a reasonable person in the manager's position would have believed that an emergency drug or alcohol overdose event may have been occurring. The prosecution did not meet its burden to prove the inapplicability of the affirmative defense.

The convictions were vacated.

2019 COA 64. No. 18CA0407. People v. Archuleta.

Criminal Law—Child Abuse Resulting in Death—Jury Verdict—Modified Unanimity Instruction.

Archuleta took care of her 4-month-old grandson for a week. When the child's mother dropped him off at Archuleta's house at the beginning of the week, he was healthy, but by the end of the week the child had suffered numerous injuries, including chemical burns to his face, mouth, and knee; a torn frenulum; broken ribs; and tweezer-induced pinch marks on various parts of his body. Several hours after the child's mother picked him up at the end of the week, she returned to Archuleta's house with the child. Archuleta noticed that the child did not appear to be breathing, so she attempted CPR and called 911. The baby died, and the autopsy revealed that the child had been suffering from dehydration and a bacterial infection that started as pneumonia and had spread to his blood. A jury convicted Archuleta of one count of child abuse resulting in death.

On appeal, Archuleta argued that the trial court erred by failing to give a modified unanimity instruction. The trial court has a duty under CRS § 16-10-108 to properly instruct the jury to ensure that a conviction is the result of a unanimous verdict. Here, the prosecution presented evidence of multiple acts of child abuse, any one of which could have independently established Archuleta's guilt, and argued to the jury that it could find Archuleta guilty under any of three theories of criminal liability in the child abuse statute. Thus, it was reasonably likely that jurors could have convicted Archuleta based on a particular theory that she caused an injury to the child but disagreed about the specific act that established child abuse under that theory. Because the prosecution did not elect which act or acts it was relying on to convict Archuleta, a modified unanimity instruction was necessary, and the trial court erred by failing to give such instruction. Further, this error was not harmless.

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

2019 COA 65. No. 18CA0418. O'Connell v. City and County of Denver. Municipal Law—Historic District Designations—City and County of Denver—Charter—Landmark Preservation Code.

Plaintiffs are property owners in a Denver neighborhood that the City Council of Denver and the City and County of Denver (collectively, defendants) designated as a historic district. Plaintiffs opposed the designation throughout the process and...

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