Summaries of Published Opinions, 0721 COBJ, Vol. 50, No. 7 Pg. 84

PositionVol. 50, 7 [Page 84]

50 Colo.Law. 84

Summaries of Published Opinions

No. Vol. 50, No. 7 [Page 84]

Colorado Lawyer

July, 2021


May 6, 2021

2021 COA 62. No.18CA1557.People v. Ambrose.

Driving While Ability Impaired—Reasonable Suspicion—Traffic Stop—Juror Challenge for Cause—Elements of Felony Offense—Sentence Enhancer—Intoxilyzer 9000—Expert Testimony—Constitutional Law—Confrontation Clause.

Defendant was pulled over for having a defective taillight. During the stop, the officer detected the odor of alcohol, and defendant consented to perform roadside maneuvers. The officer arrested defendant after observing several clues of impairment and learning from dispatch that he had active restraints on his driver's license in other states. Defendant was convicted of driving while ability impaired (DWAI). In a bench trial, the trial court found that the prosecution had established the existence of three prior convictions for alcohol-related offenses, thereby elevating defendant's conviction from a misdemeanor to a class 4 felony.

On appeal, defendant argued that the trial court erred in finding that the officer had reasonable suspicion to initiate a traffic stop. However, the officer's observation that defendant's car's taillight emitted a steady white light instead of a red light justified the stop. Further, the fact that defendant's vehicle displayed Wisconsin plates does not alter the analysis because CRS § 42-4-215(6) does not require a vehicle to be registered in Colorado to be stopped for a traffic violation.

Defendant further argued that the trial court erred in denying his challenge for cause to Juror C.J. However, the record contains no evidence that Juror C.J. was unable to be fair and impartial, or that she would be unable to follow the law, so the court did not err.

Defendant also argued that because prior convictions under CRS § 42-4-1301(l)(b) transform a misdemeanor conviction into a felony conviction, they constitute an element of the felony offense that must be proved to a jury beyond a reasonable doubt, rather than treated as a sentence enhancer. Based on the holding in Linnebur v. People, 2020 CO 79M, the Court of Appeals agreed. Because the trial court treated defendant's prior convictions as a sentence enhancer, his felony conviction must be reversed.

Defendant also contended that the trial court erroneously admitted Intoxilyzer 9000 (1-9000) evidence without first holding a hearing to assess its reliability under People v. Shreck, 22 P.3d 68 (Colo. 2001). When a party requests a

Shreck analysis, the court has discretion to hold an evidentiary hearing but is not required to do so if it has sufficient information to make specific findings under Shreck. The record reflects that the 1-9000 machine used here was certified by the Colorado Department of Public Health and Environment (CDPHE), and the arresting officer testified that the machine was working properly. Further, the prosecution's late endorsement of the officer as an expert witness does not require a different result, and the trial court offered to continue the trial so defense counsel could endorse his own witness, but counsel refused the offer. Accordingly, there was no abuse of discretion.

Defendant further contended that the officer's testimony that the 1-9000 worked properly constituted expert testimony in the guise of lay testimony. While the officer's opinion is arguably an expert opinion because it was based on specialized training that he received in the operation of the 1-9000, any error was harmless because the testimony did not substantially influence the verdict or the fairness of the trial.

Defendant also argued that the 1-9000 certificate and results are inadmissible as a matter of law because the certificate lacks a signature, so the trial court abused its discretion by admitting it. However, any such deficiency goes to the weight and not the admissibility of the evidence, so the trial court did not err.

Defendant further argued that if the 1-9000 certificate is admissible under CRS § 42-4-1303, it is testimonial, and the statute violates his Sixth Amendment right to confrontation both facially and as applied. However, the 1-9000 certificate merely constitutes prima facie evidence that die 1-9000 complied with CDPHE regulations, so it is neither testimonial nor subject to the Confrontation Clause. Further, CRS §42-4-1303 does not, facially or as applied, violate the Confrontation Clause.

The DWAI conviction was reversed and the case was remanded for imposition of a misdemeanor DWAI and resentencing, unless die prosecution opts to retry the felony DWAI charge. The judgment was otherwise affirmed.

2021 COA 63. No. 19CA2081. In re Estate of Everhart.

Informal Probate—Formal Probate— Motion to Dismiss—CRCP12(b) (5) —Testamentary Capacity—Undue Influence.

Decedent's will devised her estate to her three brothers and two nieces and a nephew. Brother Christopher moved for informal probate of the will and appointment as die personal representative. The other two brothers (Objectors) filed a petition objecting to informal probate and requesting formal probate proceedings. They alleged that the will was invalid because decedent lacked testamentary capacity and Christopher had exerted undue influence over her. Christopher answered the petition, and a niece and nephewmoved to dismiss Objector's petition under CRCP 12(b)(5). The district court granted the motion. Objectors moved for reconsideration, which the court denied.

On appeal, Objectors argued that the court erred by applying Rule 12(b)(5) to a petition objecting to informal probate. They maintained that a petition to commence formal testacy proceedings is not subject to dismissal under Rule 12(b)(5) because CRS § 15-12-403(1) (a) requires the court to "fix a time and place of hearing" on every petition. However, this direction does not mean that a party is entitled to a hearing in every case, and CRS § 15-12-403 does not address motions to dismiss. Further, t he probate rules specifically contemplate motions practice, and allowing dismissal of a facially deficient pleading advances the probate code's purpose. Accordingly, a petition objecting to informal probate and commencing formal probate proceedings is subject to dismissal under Rule 12(b)(5).

Objectors argued in the alternative that even if Rule 12(b)(5) applies, the court erred by concluding that the petition failed to state a plausible claim for relief. Here, Objectors did not allege that Christopher was actively involved with the preparation or execution of decedent's will, and they failed to allege that he deprived decedent of her free choice.

Objectors also challenged dismissal of their claim that decedent lacked testamentary capacity. However, Objectors' allegations were insufficient to show that decedent lacked capacity to make a will.

The judgment was affirmed.

2021 COA 64. No. 20CA1524. People in Interest of S.M.

Dependency and Neglect—Racial Bias— CRCP 60(b)—Termination of Parental Rights.

Parents filed a direct appeal of a judgment terminating their parental rights. While the appeal was pending, the judge who presided over the proceedings below was publicly censured for violating C. J. C. 2.3, which prohibits a judge from manifesting bias or prejudice based on race or ethnicity by word or action. Parents moved for reversal of the termination judgment and remand to the juvenile court for a new termination hearing before another judicial officer, arguing that the judge's decision to terminate their parental rights was due to the judge's prejudice or bias against them based on father's ethnicity and mother's religious affiliation.

The Court of Appeals concluded it could not determine the facts necessary to resolve parents' allegations. Instead, parents must raise their allegations in a CRCP 60(b) motion in juvenile court and obtain a ruling from a different judicial officer, subject to further review by the Court.

The request to reverse termination was denied. A limited remand was granted for the purpose of hearing and ruling on CRCP 60(b) motions. Following resolution of the motions, parents are to immediately forward a certified copy of the district court's order to the Court, and the case will be recertified.

May 13, 2021

2021 COA 65. No. 17CA1911. People v. Garcia.

Extradition—Double Jeopardy—Foreign Country—Jurisdiction—Waiver—Laches—Jury Instructions—Self-Defense.

Defendant was involved in a fatal shooting in Colorado and fled to Mexico. The Mesa County District Attorney's Office (DA) attempted to extradite defendant but was unsuccessful. As an alternative to extradition, the DA and the...

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