ARTICLE 1 PROVISIONS APPLICABLE TO OFFENSES GENERALLY
Editor's note: This title was repealed and reenacted in 1971. For historical information concerning the repeal and reenactment, see the editor's note following the title heading.
Law reviews: For article, "Criminal Law", which discusses Tenth Circuit decisions relating to criminal law, see 61 Den. L.J. 255 (1984); for article, "Criminal Law", which discusses Tenth Circuit decisions dealing with criminal law, see 62 Den. U. L. Rev. 125 (1985); for a discussion of Tenth Circuit decisions dealing with criminal law, see 66 Den. U. L. Rev. 711 (1989) and 67 Den. U. L. Rev. 691 (1990); for article, "Felony Sentencing in Colorado", see 18 Colo. Law. 1689 (1989); for article, "1990 Criminal Law Legislative Update", see 19 Colo. Law. 2049 (1990).
Section
PART 1 PURPOSE AND SCOPE OF CODE - CLASSIFICATION OF OFFENSES
18-1-101. Citation of title 18.
- This title shall be known and may be cited as the "Colorado Criminal Code"; within this title, the "Colorado Criminal Code" is sometimes referred to as "this code".
- The portion of any section, subsection, paragraph, or subparagraph contained in this code which precedes a list of examples, requirements, conditions, or other items may be referred to and cited as the "introductory portion" of the section, subsection, paragraph, or subparagraph.
Source: L. 71: R&RE, p. 388, § 1. C.R.S. 1963: § 40-1-101.
ANNOTATION
Caption "criminal code" complies with constitutional requirements concerning titles. The caption "criminal code" is broad enough to embrace every offense against the law that can be classified as a misdemeanor or felony as well as criminal pleading and practice, and fully complies with the constitutional requirements concerning titles to legislation. Heller v. People, 2 Colo. App. 459, 31 P. 773 (1892) (decided under G.S. § 1616).
Although a child under the age of 10 cannot be found guilty of a crime, such a child can commit a crime. Therefore, an adult can be found guilty of contributing to the delinquency of a minor where the minor is under the age of 10. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).
18-1-102. Purpose of code, statutory construction.
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This code shall be construed in such manner as to promote maximum fulfillment of its general purposes, namely:
- To define offenses, to define adequately the act and mental state which constitute each offense, to place limitations upon the condemnation of conduct as criminal when it is without fault, and to give fair warning to all persons concerning the nature of the conduct prohibited and the penalties authorized upon conviction;
- To forbid the commission of offenses and to prevent their occurrence through the deterrent influence of the sentences authorized; to provide for the rehabilitation of those convicted and their punishment when required in the interests of public protection;
- To differentiate on reasonable grounds between serious and minor offenses, and prescribe penalties which are proportionate to the seriousness of offenses and which permit recognition of differences in rehabilitation possibilities as between individual offenders;
- To prevent arbitrary or oppressive treatment of persons accused or convicted of offenses and to identify certain minimum standards for criminal justice which, within the concept of due process of law, have the stature of substantive rights of persons accused of crime;
- To promote acceptance of responsibility and accountability by offenders and to provide restoration and healing for victims and the community while attempting to reduce recidivism and the costs to society by the use of restorative justice practices.
Source: L. 71: R&RE, p. 388, § 1. C.R.S. 1963: § 40-1-102. L. 2011: (1)(e) added, (HB 11-1032), ch. 296, p. 1401, § 4, effective August 10.
ANNOTATION
Law reviews. For case note, "Interjurisdictional Merger of Sentences: The Need for an Interstate Compact", see 49 U. Colo. L. Rev. 473 (1978). For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981).
Construction. Criminal statutes are to be construed strictly in favor of the accused. People v. Roybal, 618 P.2d 1121 ( Colo. 1980 ); People v. Russell, 703 P.2d 620 (Colo. App. 1985).
Sentencing court should tailor the sentence to the defendant, keeping in mind past record, potential for rehabilitation, and protection of the public as well. People v. Alvarez, 187 Colo. 290 , 530 P.2d 506 (1975).
Sentencing discretion reposes in court. It is the court, and not the probation department, in whom sentencing discretion is reposed. People v. Edwards, 198 Colo. 52 , 598 P.2d 126 (1979).
Sentencing involves an exercise in judicial discretion and, accordingly, a sentencing judge has wide latitude in arriving at a final decision. People v. Cohen, 617 P.2d 1205 (Colo. 1980).
The trial court has wide discretion in sentencing and, absent a finding of abuse of discretion, an appellate court will not substitute its judgment for that of the trial judge. People v. Madonna, 651 P.2d 378 (Colo. 1982).
The trial court has broad discretion in sentencing one convicted of a felony. All relevant factors may be considered to determine which alternative is most appropriate to meet the sentencing goals and policies of deterrence, punishment, rehabilitation, and protection of the public. Absent a finding of an abuse of discretion, an appellate court will not substitute its judgment on appeal. Adair v. People, 651 P.2d 389 (Colo. 1982).
Record must clearly justify action of sentencing judge where a sentence is imposed for an extended term. People v. Cohen, 617 P.2d 1205 (Colo. 1980).
Considerations in appellate review of sentence. In an appellate review of a sentence, a claim of excessiveness generally requires a consideration of the nature of the offense, the character of the offender, and the public interest in safety and deterrence. People v. Cohen, 617 P.2d 1205 (Colo. 1980).
When an offender has committed offenses in a number of different jurisdictions, the sentence imposed should "promote maximum fulfillment" of the legislative directives in the sentencing statutes. People v. Lewis, 193 Colo. 203 , 564 P.2d 111 (1977).
Applied in People v. Wilson, 43 Colo. App. 68, 599 P.2d 970 (1979); People v. Martinez, 628 P.2d 608 ( Colo. 1981 ).
18-1-102.5. Purposes of code with respect to sentencing.
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The purposes of this code with respect to sentencing are:
- To punish a convicted offender by assuring the imposition of a sentence he deserves in relation to the seriousness of his offense;
- To assure the fair and consistent treatment of all convicted offenders by eliminating unjustified disparity in sentences, providing fair warning of the nature of the sentence to be imposed, and establishing fair procedures for the imposition of sentences;
- To prevent crime and promote respect for the law by providing an effective deterrent to others likely to commit similar offenses;
- To promote rehabilitation by encouraging correctional programs that elicit the voluntary cooperation and participation of convicted offenders;
- To select a sentence, a sentence length, and a level of supervision that addresses the offender's individual characteristics and reduces the potential that the offender will engage in criminal conduct after completing his or her sentence; and
- To promote acceptance of responsibility and accountability by offenders and to provide restoration and healing for victims and the community while attempting to reduce recidivism and the costs to society by the use of restorative justice practices.
Source: L. 79: Entire section added, p. 668, § 15, effective July 1. L. 2011: (1)(c) and (1)(d) amended and (1)(e) added, (HB 11-1180), ch. 96, p. 282, § 1, effective August 10; (1)(c) and (1)(d) amended and (1)(f) added, (HB 11-1032), ch. 296, p. 1402, § 5, effective August 10.
ANNOTATION
Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982). For comment, "Criminal Sentencing in Colorado: Ripe for Reform", see 65 U. Colo. L. Rev. 685 (1994).
Sentencing is a discretionary decision which requires weighing of various factors and striking a fair accommodation between the defendant's need for rehabilitation or corrective treatment and society's interest in safety and deterrence. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
Sentencing, by its very nature, is a discretionary act that is not subject to scientific precision. Flower v. People, 658 P.2d 266 (Colo. 1983).
A judge has wide latitude in reaching his decision on a particular sentence. People v. Martinez, 628 P.2d 608 (Colo. 1981).
Sentencing is a complex process which requires the exercise of the sound discretion of the sentencing judge. People v. Beland, 631 P.2d 1130 (Colo. 1981).
The discretion implicit in the sentencing decision is not an unrestricted discretion devoid of reason or principle. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
Some of the more common factors to be considered in sentencing are: The gravity of the offense in terms of harm to person or property or in terms of the culpability requirement of the law; the defendant's history of prior criminal conduct; the degree of danger the defendant might present to the community if released forthwith; the likelihood of future criminality in the absence of corrective incarceration or treatment; the prospects for rehabilitation under some less drastic sentencing alternative, such as probation; and the likelihood of depreciating the seriousness of the offense were a less drastic sentencing alternative chosen. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980); People v. Reed, 43 P.3d 644 ( Colo. 2001 ).
Judge's sentencing discretion limited by general assembly. Although a judge has broad discretion in tailoring a sentence to accommodate various factors, the sentence must be consistent with legislatively imposed limits and constraints. People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981).
In order to achieve the purposes of sentencing, the general assembly has required the sentencing court to consider and weigh, prior to the imposition of the sentence, the nature and elements of the offense, the character and record of the offender, and all aggravating or mitigating circumstances surrounding the offense and the offender, including those specifically found by the court to be extraordinary. People v. Manley, 707 P.2d 1021 (Colo. App. 1985).
Purposes of sentencing are to punish a defendant in relation to the seriousness of the offense, to assure fair and consistent treatment of all convicted offenders, to deter others likely to commit similar offenses, and to promote the defendant's rehabilitation. People v. Reed, 43 P.3d 644 (Colo. 2001).
Sentencing decision should reflect rational selection from various sentencing alternatives in a manner consistent with the dominant aims of the sentencing process. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
Proper and fair sentence is one that can be reasonably explained. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
Sentence must bear some proportionality to severity of offense for which it is imposed, notwithstanding the need for public protection. People v. Martinez, 628 P.2d 608 ( Colo. 1981 ); People v. Piro, 701 P.2d 878 (Colo. App. 1985).
Three considerations of concern to judge when setting sentence are the need to protect society at large and deter potential offenders, to punish the convicted offender, and to rehabilitate him. People v. Bravo, 630 P.2d 612 ( Colo. 1981 ); People v. Jordan, 630 P.2d 613 ( Colo. 1981 ); People v. Watkins, 684 P.2d 234 ( Colo. 1984 ).
Defendant's behavior deemed relevant factor. A defendant's behavior during judicial proceedings and while in custody may well become relevant facts for the court to consider as part of the factors it weighs in sentencing. Smith v. District Court, 629 P.2d 1055 (Colo. 1981).
Judge must consider rehabilitation needs of individual defendant. People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981).
While rehabilitation is a preferred goal, it is only one factor which must be considered in tailoring a sentence to each individual case. People v. Jordan, 630 P.2d 613 (Colo. 1981).
Sentence must be supported by reasons in record. Hereafter in felony convictions involving the imposition of a sentence to a correctional facility the sentencing judge must state on the record the basic reasons for the imposition of sentence. The statement need not be lengthy, but should include the primary factual considerations bearing on the judge's sentencing decision. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
Particularly where sentence involves restrictive form of deprivation. Requirement that sentencing judge state on the record the basic reasons for imposing a sentence is particularly essential in those cases where the sentence involves a very restrictive form of deprivation, such as a term of confinement to a correctional facility. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
Failure to state reasons creates obstacle to appellate review. The failure of a sentencing judge to state on the record the basic reasons for the selection of a particular sentence creates a burdensome obstacle to effective and meaningful appellate review of sentences. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
Factors in appellate review of extended term of confinement. In evaluating the propriety or intrinsic fairness of an extended term of confinement, an appellate court focuses on the nature of the offense, the character of the offender and the public interest and determines whether the record establishes a clear justification for the sentence imposed. People v. Scott, 630 P.2d 615 (Colo. 1981).
No vacation or modification unless abuse of discretion. On review, an appellate court may not vacate or modify a sentence imposed by a trial court unless it appears that the trial judge clearly abused his discretion in imposing the sentence. People v. Beland, 631 P.2d 1130 (Colo. 1981).
Although judiciary has exclusive authority to impose sentences, such sentences must be within the limits determined by the general assembly which has the exclusive authority to define crimes and impose punishment. People v. Schwartz, 823 P.2d 1386 (Colo. App. 1991).
No abuse of discretion. In light of the facts and the nature of the crimes, the trial court did not abuse its discretion in imposing consecutive sentences for aggravated robbery and second degree kidnapping. People v. Fuller, 791 P.2d 702 (Colo. 1990).
Trial court did not abuse its discretion in imposing a sentence of twice the maximum presumptive range. The sentence was appropriate because the defendant had committed an especially vicious attack in violation of a restraining order, and the court gave due consideration to the defendant's rehabilitative potential and employment history. People v. Hayward, 55 P.3d 803 (Colo. App. 2002).
Because the sentence imposed was within the range required by law and was based on appropriate considerations supported by the record, trial court did not abuse its discretion in imposing an aggravated sentence. People v. Martinez, 179 P.3d 23 (Colo. App. 2007).
The trial court did not abuse its discretion in sentencing a defendant convicted of second degree murder, theft, and attempted theft to imprisonment for 45 years despite the fact the defendant tested positive for the human immunodeficiency virus (HIV). People v. Baca, 852 P.2d 1302 (Colo. App. 1992).
Applied in People v. Wylie, 44 Colo. App. 38, 605 P.2d 494 (1980); People v. Hostetter, 44 Colo. App. 44, 606 P.2d 80 (1980); People v. Hamling, 634 P.2d 1023 (Colo. App. 1981); People v. Phillips, 652 P.2d 575 ( Colo. 1982 ); People v. Turman, 659 P.2d 1368 ( Colo. 1983 ); Rocha v. People, 713 P.2d 350 ( Colo. 1986 ).
18-1-103. Scope and application of code.
- Except as otherwise expressly provided by sections 18-1.3-402 and 18-1.3-504, or unless the context otherwise requires, the provisions of this code govern the construction of and punishment for any offense defined in any statute of this state, whether in this title or elsewhere, and which is committed on or after July 1, 1972, as well as the construction and application of any defense to a prosecution for such an offense.
- Except as otherwise provided by section 18-1-410, the provisions of this code do not apply to or govern the construction of, prosecution for, and punishment for any offense committed prior to July 1, 1972, or the construction and application of any defense to a prosecution for such an offense. Such an offense shall be tried and disposed of according to the provisions of law existing at the time of the commission thereof in the same manner as if this code had not been enacted. All pending actions shall proceed to final disposition in the same manner as if this code had not been enacted.
- The provisions of this code do not bar, suspend, or otherwise affect any right or liability to damages, penalty, forfeiture, or other remedy authorized by law to be recovered or enforced in a civil action for any conduct which this code makes punishable; and the civil injury is not merged in the offense.
Source: L. 71: R&RE, p. 389, § 1. C.R.S. 1963: § 40-1-103. L. 73: p. 533, § 1. L. 95: (3) amended, p. 16, § 8, effective March 9. L. 2002: (1) amended, p. 1509, § 176, effective October 1.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (1), see section 1 of chapter 318, Session Laws of Colorado 2002.
ANNOTATION
The only purpose of this section was to ensure that the substantive crime definitions and penalty provisions in the repealed chapter 40 of Colorado Revised Statutes 1963, rather than those in this title, would continue in force as to crimes committed prior to July 1, 1972. People v. Montera, 195 Colo. 118 , 575 P.2d 1294 (1978).
The provisions of this section are not jurisdictional in nature, therefore, the protections of this section may be waived by entry of a voluntary and knowing plea of guilty. People v. Sandreschi, 849 P.2d 873 (Colo. App. 1992).
The reference in subsection (2) to "this code" must be read to refer only to the "Colorado Criminal Code" of which it is a part. People v. Montera, 195 Colo. 118 , 575 P.2d 1294 (1978).
Application of subsection (2). Subsection (2) applies only to the criminal code, and not to the code of criminal procedure. People v. Loger, 188 Colo. 291 , 535 P.2d 210 (1975).
1 U.S.C. § 109 nullifies abatement of indictments and prosecutions for acts committed under former code. Because subsection (2) does not obviate prosecutions for illegal activities occurring before July 1, 1972, 1 U.S.C. § 109 operates to nullify any abatement of an indictment and subsequent prosecution for criminal acts committed under the former criminal code. United States v. Smaldone, 485 F.2d 1333 (10th Cir. 1973), cert. dismissed, 416 U.S. 917, 94 S. Ct. 1625, 40 L. Ed. 2d 286, cert. denied, 416 U.S. 936, 94 S. Ct. 1934, 40 L. Ed. 2d 286 (1974).
Section 18-1-405 not applicable to offense committed prior to July 1, 1972. The speedy trial provision of § 18-1-405 does not apply to an action where the alleged offense was committed prior to July 1, 1972. People v. Reliford, 186 Colo. 6 , 525 P.2d 467 (1974).
Nor § 18-1-409 . Since the offense for which the defendant was sentenced was committed prior to July 1, 1972, the right of appeal under § 18-1-409 is not available to him. People v. Knight, 185 Colo. 364 , 525 P.2d 425 (1974).
Preemption of municipal ordinance by code. Where state assault statute was repealed when criminal code took effect on July 1, 1972, and defendant was charged with violation of municipal assault ordinance occurring on July 7, 1972, municipal assault ordinance was not preempted, on July 7, by state assault ordinance; however, it could be argued that municipal assault ordinance was preempted by assault provisions of criminal code. City of Lakewood v. District Court, 181 Colo. 69 , 506 P.2d 1228 (1973).
Where defense requested instruction defining "intentionally" in terms of new statute which became effective July 1, 1972, but offense had occurred prior to that time, trial court did not err in refusing such request. People v. Crawford, 191 Colo. 504 , 553 P.2d 827 (1976).
Body execution statute unconstitutional under fourteenth amendment. Kinsey v. Preeson, 746 P.2d 542 (Colo. 1987).
Applied in People v. Marlott, 191 Colo. 304 , 552 P.2d 491 (1976); Barreras v. People, 636 P.2d 686 (Colo. App. 1981).
18-1-104. "Offense" defined - offenses classified - common-law crimes abolished.
- The terms "offense" and "crime" are synonymous and mean a violation of, or conduct defined by, any state statute for which a fine or imprisonment may be imposed.
- Each offense falls into one of eleven classes, one of six drug offense levels, or one unclassified category. There are six classes of felonies as described in section 18-1.3-401 and four levels of drug felonies as described in section 18-1.3-401.5, three classes of misdemeanors as described in section 18-1.3-501 and two levels of drug misdemeanors as described in section 18-1.3-501, two classes of petty offenses as described in section 18-1.3-503, and the category of drug petty offense as described in section 18-1.3-501 (1)(e).
- Common-law crimes are abolished and no conduct shall constitute an offense unless it is described as an offense in this code or in another statute of this state, but this provision does not affect the power of a court to punish for contempt, or to employ any sanction authorized by law for the enforcement of an order lawfully entered, or a civil judgment or decree; nor does it affect the use of case law as an interpretive aid in the construction of the provisions of this code.
Source: L. 71: R&RE, p. 389, § 1. C.R.S. 1963: § 40-1-104. L. 89: (2) amended, p. 829, § 39, effective July 1. L. 2002: (2) amended, p. 1510, § 177, effective October 1. L. 2014: (2) amended, (SB 14-163), ch. 391, p. 1969, § 5, effective June 6.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (2), see section 1 of chapter 318, Session Laws of Colorado 2002.
ANNOTATION
Annotator's note. Since § 18-1-104 is similar to former § 40-1-1, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Common-law rule. Colorado has statutorily adopted the common-law rule that a crime consisted of the union of an act and intent. Gallegos v. People, 159 Colo. 379 , 411 P.2d 956 (1966).
Courts are not precluded from reliance upon the common law in amplification of sections of the criminal code. People v. Berry, 703 P.2d 613 (Colo. App. 1985).
The common law may be used in aid of the meaning to be given statutory language, when such language is not defined in the statute. Allen v. People, 175 Colo. 113 , 485 P.2d 886 (1971).
Where a statute does not define a crime, but merely gives to it its common-law name or designation, resort must be had to the common law to ascertain what acts constitute the crime in question. Thompson v. People, 181 Colo. 194 , 510 P.2d 311 (1973).
When the general assembly defines a crime and sets forth the intent necessary to commit the crime, the courts cannot alter the elements or substitute a different animus or intent. People v. Kanan, 186 Colo. 255 , 526 P.2d 1339 (1974).
The definition of a crime is the same as that of a misdemeanor, each consisting of a violation of a public law. Hoffman v. People, 72 Colo. 552, 212 P. 848 (1923).
"Crime" includes all grades of public offenses, which at the common law are often classified as treason, felony, and misdemeanor. Hoffman v. People, 72 Colo. 552, 212 P. 848 (1923).
The violation of a municipal ordinance does not come within the definition of this section and is neither a crime nor a misdemeanor. City of Greeley v. Hamman, 12 Colo. 94, 20 P. 1 (1888).
Violation of a no-contact order issued by a municipal court pursuant to authority in §§ 14-4-101 to 14-4-105, is a crime under § 18-6-803.5. People v. Rhorer, 967 P.2d 147 (Colo. 1998).
Contempt of court. Although the general assembly in 1971 abolished all common law crimes in Colorado, it reserved to the courts the power to punish contempt by enacting this section. People v. Barron, 677 P.2d 1370 ( Colo. 1984 ).
The power to define criminal conduct and to establish the legal components of criminal liability is vested with the general assembly. Rowe v. People, 856 P.2d 486 (Colo. 1993).
In addition to establishing the essential components of criminal liability, it is within the prerogative of the general assembly to establish affirmative defenses based on principles of justification or excuse. Rowe v. People, 856 P.2d 486 (Colo. 1993).
Within constitutional limitations, the general assembly also may restrict an affirmative defense to a particular crime. Rowe v. People, 856 P.2d 486 (Colo. 1993).
Applied in People v. Swanson, 638 P.2d 45 ( Colo. 1981 ); City of Greenwood Vill. v. Fleming, 643 P.2d 511 ( Colo. 1982 ).
18-1-105. Felonies classified - presumptive penalties. (Repealed)
Source: L. 71: R&RE, p. 390, § 1. C.R.S. 1963: § 40-1-105. L. 72: p. 267, § 4. L. 73: p. 531, § 83. L. 74: (1) and (2) amended, p. 409, §§ 26, 27, effective April 11; (3) and (4) added, p. 251, § 3, effective January 1, 1975. L. 76: (1) amended, p. 548, § 7, effective July 1. L. 77: Entire section R&RE, p. 867, § 15, effective July 1, 1979. L. 79: (1), (6), and (7) R&RE and (1)(c) amended, pp. 669, 700, §§ 16, 69, effective July 1. L. 81: (1)(b), (1)(c), and (7) amended and (8) and (9) added, pp. 969, 970, 972, 986, §§ 1, 1, 1, 2, effective July 1. L. 82: (8) repealed, p. 312, § 3, effective July 1. L. 84: (1)(a) amended, p. 513, § 5, effective July 1. L. 85: (9)(d) added, p. 675, § 4, effective June 7; (1)(a)(II), (2), and (4) amended and (1)(a)(III), (1)(a)(IV), (9)(a)(VI), and (9)(e) added, pp. 622, 652, 655, 667, 675, §§ 5, 7, 1, 3, effective July 1. L. 86: (9)(a)(VII), (9)(a)(VIII), and (9)(f) added, p. 769, §§ 1, 2, effective July 1. L. 87: (9)(a)(IV.5) added, p. 606, § 9, effective April 16. L. 88: (1)(a)(III), IP(9)(a), (9)(d)(I), and (9)(e)(I) amended, (1)(b)(IV), (1)(b)(VI) to (1)(b)(VIII), and (10) added, and (1)(b)(V) added and amended, pp. 680, 681, 716, 711, 1439 §§ 3, 5, 2, 4, 14, 44, effective July 1. L. 89: (1)(a)(III)(A), (1)(a)(IV), (1)(b)(I), (2), and (9)(a)(V) amended and (1)(b)(V) to (1)(b)(VIII) repealed, pp. 829, 861, §§ 40, 156, effective July 1. L. 90: (11) added, p. 989, § 1, effective April 16; (9)(a)(IV), (9)(a)(IV.5), (9)(a)(VI), and (9)(a)(VII) repealed and (9.5) added, p. 955, §§ 27, 25, effective June 7. L. 91: (4) and (10) amended, p. 404, §§ 5, 6, effective June 6. L. 92: (11) repealed, p. 393, § 25, effective July 1. L. 93: (1)(a)(IV), (1)(c), and (10) amended and (1)(a)(V) and (9.7) added, pp. 1983, 54, 1730, 1981, §§ 8, 19, 12, 7, 9, effective July 1. L. 95: (1)(a)(V)(D) amended, p. 879, § 15, effective May 24; (4) amended, p. 1293, § 3, effective July 1. L. 96: (1)(a)(III)(A) and (1)(b)(II) amended and (1)(a)(III)(E) added, p. 1841, § 4, effective July 1; (9)(a)(III) amended, p. 736, § 7, effective July 1. L. 97: (9)(a)(IX), (9.5)(a.5), (9.5)(c.5), and (9.5)(c.7) added, p. 1546, §§ 17, 18, effective July 1; (1)(b)(IV) amended, p. 1009, § 11, effective August 6. L. 98: (1)(a)(V)(C) amended, p. 399, § 6, effective April 21; (1)(a)(VI) added, p. 1447, § 38, effective July 1; (9)(g) added, p. 1264, § 1, effective July 1; (1)(a)(V)(C), (1)(a)(V)(D), (1)(c), and (9)(e)(I) amended and (1)(a)(V)(C.3), (1)(a)(V)(C.5), (1)(b)(II.5), (9)(e.5), and (9.7)(c) added, pp. 1289, 1290, §§ 4, 5, 6, 7, effective November 1. L. 99: (9.5)(a) amended and (9.7)(b)(XIII) added, pp. 800, 794, §§ 22, 3, effective July 1. L. 2000: IP(9.7)(b), (9.7)(b)(I), (9.7)(b)(II), and (9.7)(b)(III) amended, p. 702, § 25, effective July 1; (1)(a)(III)(A.5) added, p. 1107, § 3, effective August 2; (12) added, p. 1049, § 12, effective September 1. L. 2001: (13) added, p. 1009, § 1, effective July 1. L. 2002: (1)(a)(V)(C) and (1)(a)(V)(C.3) amended and (1)(a)(V)(C.7) added, p. 124, § 1, effective March 26; (1)(a)(V)(C.7) amended, p. 1192, § 41, effective July 1; (9)(e.5) amended, p. 758, § 3, effective July 1; (1)(a)(V)(C.7) amended and entire section repealed, pp. 1566, 1463, §§ 387, 3, effective October 1. L. 2002, 3rd Ex. Sess.: (4) amended, p. 15, § 7, effective July 12.
Editor's note: This section was relocated to § 18-1.3-401 in 2002.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (1)(a)(V)(C.7) and repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002.
18-1-106. Misdemeanors classified - penalties. (Repealed)
Source: L. 71: R&RE, p. 390, § 1. C.R.S. 1963: § 40-1-106. L. 79: Entire section amended, p. 700, § 70, effective July 1. L. 87: Entire section amended, p. 626, § 1, effective April 1. L. 88: (1) amended and (1.5) added, p. 717, § 3, effective July 1. L. 89: (1.5)(a) amended, p. 1643, § 4, effective June 5. L. 93: (1) amended and (3) added, pp. 55, 1984, §§ 20, 10, effective July 1. L. 97: (3)(b) amended, p. 1539, § 1, effective July 1; (1.5) amended, p. 1009, § 12, effective August 6. L. 98: IP(3)(b) amended and (3)(b)(V) added, p. 1231, § 1, effective July 1. L. 99: (3)(b)(I.5) added, p. 347, § 3, effective July 1. L. 2000: (3)(b)(I.5) and (3)(b)(II) amended, p. 703, § 26, effective July 1; (4) added, p. 1108, § 4, effective August 2; (5) added, p. 1049, § 13, effective September 1. L. 2001: (3)(b)(III) and (3)(b)(V) amended and (3)(b)(VI) added, p. 568, § 3, effective May 29; (6) added, p. 1010, § 2, effective July 1. L. 2002: (3)(b)(VI) amended, p. 1186, § 21, effective July 1; entire section repealed, p. 1463, § 3, effective October 1.
Editor's note: This section was relocated to § 18-1.3-501 in 2002.
Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002.
18-1-107. Petty offenses classified - penalties. (Repealed)
Source: L. 71: R&RE, p. 390, § 1. C.R.S. 1963: § 40-1-107. L. 73: p. 499, § 5. L. 79: Entire section amended, p. 700, § 71, effective July 1. L. 81: Entire section amended, p. 2025, § 17, July 14. L. 93: Entire section amended, p. 55, § 21, effective July 1. L. 2000: Entire section amended, p. 1049, § 14, effective September 1. L. 2002: Entire section repealed, p. 1463, § 3, effective October 1.
Editor's note: This section was relocated to § 18-1.3-503 in 2002.
Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002.
18-1-108. Offenses not classified. (Repealed)
Source: L. 71: R&RE, p. 391, § 1. C.R.S. 1963: § 40-1-108. L. 76, Ex. Sess.: 10, § 1. L. 79: Entire section amended, p. 671, § 21, effective July 1. L. 93: Entire section amended, p. 1985, § 11, effective July 1. L. 2000: Entire section amended, p. 1050, § 15, effective September 1. L. 2002: Entire section repealed, p. 1463, § 3, effective October 1.
Editor's note: This section was relocated to § 18-1.3-504 in 2002.
Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002.
18-1-109. Penalty not fixed by statute - punishment. (Repealed)
Source: L. 72: p. 268, § 5. C.R.S. 1963: § 40-1-109. L. 79: Entire section amended, p. 701, § 72, effective July 1. L. 85: Entire section amended, p. 657, § 6, effective July 1. L. 93: Entire section amended, p. 1985, § 12, effective July 1. L. 2000: Entire section amended, p. 1050, § 16, effective September 1. L. 2002: Entire section repealed, p. 1463, § 3, effective October 1.
Editor's note: This section was relocated to § 18-1.3-505 in 2002.
Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002.
18-1-110. Payment and collection of fines for class 1, 2, or 3 misdemeanors and class 1 or 2 petty offenses - release from incarceration. (Repealed)
Source: L. 89: Entire section added, p. 886, § 1, effective April 6. L. 97: (3) amended, p. 1571, § 5, effective July 1. L. 2002: Entire section repealed, p. 1463, § 3, effective October 1.
Editor's note: This section was relocated to § 18-1.3-506 in 2002.
Cross references: For the legislative declaration contained in the 2002 act repealing this section, see section 1 of chapter 318, Session Laws of Colorado 2002.
PART 2 JURISDICTION AND PLACE OF TRIAL
18-1-201. State jurisdiction.
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A person is subject to prosecution in this state for an offense which he commits, by his own conduct or that of another for which he is legally accountable, if:
- The conduct constitutes an offense and is committed either wholly or partly within the state; or
- The conduct outside the state constitutes an attempt, as defined by this code, to commit an offense within the state; or
- The conduct outside the state constitutes a conspiracy to commit an offense within the state, and an act in furtherance of the conspiracy occurs in the state; or
- The conduct within the state constitutes an attempt, solicitation, or conspiracy to commit in another jurisdiction an offense prohibited under the laws of this state and such other jurisdiction.
- An offense is committed partly within this state if conduct occurs in this state which is an element of an offense or if the result of conduct in this state is such an element. In homicide, the "result" is either the physical contact which causes death or the death itself; and if the body of a criminal homicide victim is found within the state, the death is presumed to have occurred within the state.
- Whether an offender is in or outside of the state is immaterial to the commission of an offense based on an omission to perform a duty imposed by the law of this state.
Source: L. 71: R&RE, p. 391, § 1. C.R.S. 1963: § 40-1-201.
ANNOTATION
By this section, Colorado has modified the common-law rule of limited territorial jurisdiction by enlarging its power to prosecute crimes that may originate outside the state. People v. Martinez, 37 Colo. App. 71, 543 P.2d 1290 (1975); People v. Cullen, 695 P.2d 750 (Colo. App. 1984).
Jurisdiction not limited by district. Criminal jurisdiction over felony offenses committed in Colorado extends to all the district courts of Colorado. People v. Joseph, 920 P.2d 850 (Colo. App. 1995).
Criminal jurisdiction over felonies committed in Colorado generally extends to all district courts of the state. People v. Burgess, 946 P.2d 565 (Colo. App. 1997); People v. Brown, 70 P.3d 489 (Colo. App. 2002); People v. Sharp, 155 P.3d 577 (Colo. App. 2006).
Issue of sovereign jurisdiction a legal question for the trial court. Where determination of jurisdiction depends upon a resolution of disputed facts, the issue must be submitted to the jury with an appropriate instruction, regardless of whether raised by defendant. However, no plain error results from a failure to submit the issue to the jury if the uncontested facts overwhelmingly support jurisdiction. People v. Cullen, 695 P.2d 750 (Colo. App. 1984).
Larceny may be prosecuted at place goods stolen or brought. Larceny is considered a continuing crime and every asportation considered a new taking; thus larceny could be prosecuted not only at the place where the goods were stolen, but also wherever the goods were subsequently brought. People v. Martinez, 37 Colo. App. 71, 543 P.2d 1290 (1975).
Key analysis is not where e-mail threats are written or read, but rather whether the result of sender's conduct, causing a reasonable person to be in fear for his or her safety, occurs, at least in part, in this state. People v. Chase, 2013 COA 27 , 411 P.3d 740.
Evidence sufficient to establish that e-mails, with their implicit and explicit threats, would have caused a reasonable person in recipients' position to fear for their safety and the safety of others in this state. People v. Chase, 2013 COA 27 , 411 P.3d 740.
Conduct of making a credible threat occurred at least partly in this state because sender sent e-mails to addresses associated with individuals sender knew to reside here. Trial court therefore had jurisdiction over felony stalking counts. People v. Chase, 2013 COA 27 , 411 P.3d 740.
Theft committed partly within state. Where there was evidence presented that defendant exercised control over stolen chain saws in Colorado without authorization, the offense of theft was "committed partly within this state" as contemplated by subsection (2), and, therefore, in accordance with subsection (1)(a) defendant "is subject to prosecution in this state" for that offense. People v. Martinez, 37 Colo. App. 71, 543 P.2d 1290 (1975).
Delivery of goods not "conduct" for purposes of subsection (2). People v. Tinkle, 714 P.2d 919 (Colo. App. 1985).
An omission to act in accordance with a custody decree is sufficient to confer jurisdiction on charges of second degree kidnapping. People v. Haynie, 826 P.2d 371 (Colo. App. 1991).
Defendant's alleged expatriation under the Expatriation Act of 1868 does not remove personal jurisdiction from a state court in a criminal prosecution where the offense was committed in that state. People v. Jones, 140 P.3d 325 (Colo. App. 2006).
District court had personal jurisdiction over defendant filing a Crim. P. 32(d) motion because defendant's filing of the motion constituted a waiver of any objection to jurisdiction. By filing the Crim. P. 32(d) motion, defendant subjected himself to the court's authority because the doctrine of personal jurisdiction exists to protect the individual against the exercise of the court's adjudicatory authority, and any action favorable to defendant taken by the court on defendant's motion would be for his benefit and at his request. People v. Corrales-Castro, 2015 COA 34 M, 412 P.3d 701, rev'd on other grounds, 2017 CO 60, 395 P.3d 778.
Applied in People v. Warren, 196 Colo. 75 , 582 P.2d 663 (1978); People v. Rice, 40 Colo. App. 357, 579 P.2d 647 (1978).
18-1-202. Place of trial - applicability.
- Except as otherwise provided by law, criminal actions shall be tried in the county where the offense was committed, or in any other county where an act in furtherance of the offense occurred.
- If a person committing an offense upon the person of another is in one county and his victim is in another county at the time of the commission of an act constituting an element of the offense, the offense is committed and trial may be had in either of said counties.
- In a case involving the death of a person, the offense is committed and the offender may be tried in any county in which the cause of death is inflicted, or in which death occurs, or in which the body of the deceased or any part of such body is found.
- Theft of property is committed and the offender may be tried in any county in which he exercised control over the property.
- If the commission of an offense commenced outside the state is consummated within this state, the offense is committed and the offender shall be tried in the county where the offense is consummated.
- If an offense is committed in or upon any automobile, trailer, railroad car, aircraft, or other vehicle of transportation passing within or over this state, the offense is deemed to have been committed and the offender may be tried in any county through or over which the vehicle of transportation passed.
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- When multiple crimes are based upon the same act or series of acts arising from the same criminal episode and are committed in several counties, the offender may be tried in any county in which any one of the individual crimes could have been tried, regardless of whether or not the counties are in the same judicial district.
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- For purposes of this subsection (7), when a person commits one of the offenses listed in subparagraph (II) of this paragraph (b) on two or more occasions within a six-month period, it may be considered part of the same criminal episode. Nothing in this subsection (7) shall bar prosecution of an offense that could have been joined in another prosecution.
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The provisions of subsection (7)(b)(I) of this section apply to the following offenses:
- Theft, as defined in section 18-4-401;
- Repealed.
- Criminal mischief, as defined in section 18-4-501;
- Fraud by check, as defined in section 18-5-205;
- Defrauding a secured creditor or debtor, as defined in section 18-5-206;
- Failure to pay over assigned accounts, as defined in section 18-5-502;
- Concealment or removal of secured property, as defined in section 18-5-504;
- Failure to pay over proceeds, as defined in section 18-5-505;
- Unauthorized use of a financial transaction device, as defined in section 18-5-702;
- Cybercrime, as defined in section 18-5.5-102;
- Procuring food or accommodation with intent to defraud, as defined in section 6-25-103;
- Trafficking in food stamps, as defined in section 26-2-306, C.R.S.;
- Unlawful use of a patient personal needs trust fund, as defined in section 25.5-6-206, C.R.S.;
- Criminal tampering with a motor vehicle, as defined in section 42-5-103, C.R.S.;
- Theft of motor vehicle parts, as defined in section 42-5-104, C.R.S.;
- Theft in connection with assistive technology, as described in section 6-1-409, C.R.S.;
- Theft of farm products, as described in section 35-36-313;
- Fraud in connection with obtaining public assistance, as described in section 26-1-127, C.R.S.;
- Fraud in connection with obtaining food stamps, as described in section 26-2-305, C.R.S.;
- An offense described in part 1 of article 5 of this title;
- Forgery, as defined in sections 18-5-102 and 18-5-104; and
- Identity theft, as defined in section 18-5-902.
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- For an indictment or information that includes an offense described in article 5 of this title, the offender may be tried in a county where the offense occurred, in a county where an act in furtherance of the offense occurred, or in a county where a bank, savings and loan, credit union, or government agency processed a document or transaction related to the offense.
- For the purpose of this section, "processed" means to physically handle a document or to make a written or electronic entry in a permanent or temporary record of the transaction, whether the entry is made manually or through automated means.
- An inchoate offense is committed and the offender may be tried in any county in which any act which is an element of the offense, including formation of the agreement in conspiracy, is committed.
- When a person in one county solicits, abets, agrees, aids, or attempts to aid another in the planning or commission of an offense in another county, the offense is committed and the offender may be tried for the offense in either county, or in any other county in which the principal offense could be tried.
- When an offense is committed on the boundary line between two counties, or so close thereto as to be difficult to readily ascertain in which county the offense occurred, the offense is committed and the offender may be tried for the offense in either county.
- Proof of the county in which the offense occurred or which county is the proper place for trial pursuant to this section shall not constitute an element of any offense and need not be proven by the prosecution at trial unless required by the statute defining the offense. Any challenge to the place of trial pursuant to this section shall be made by motion in writing no later than twenty-one days after arraignment, except for good cause shown. The court shall determine any such issue prior to the commencement of the trial and the selection of a jury. If the court finds that trial is not proper in the county in which the charges were filed, the court shall transfer the case to a court of appropriate jurisdiction in the proper county. Failure to challenge the place of trial as provided in this subsection (11) shall constitute a waiver of any objection to the place of trial. Pursuant to section 16-12-102 (2), C.R.S., the prosecution may file an interlocutory appeal of a decision transferring the case to another county.
- If a person commits the offense of failure to register as a sex offender as provided in section 18-3-412.5, the offense is committed and the offender may be tried in the county in which the offender was released from incarceration for commission of the offense requiring registration, in the county in which the offender resides, in the county in which the offender completed his or her last registration, or in the county in which the offender is apprehended.
- If a person commits identity theft as described in section 18-5-902, identity theft is committed and the offender may be tried in any county where a prohibited act was committed, in any county where an act in furtherance of the offense was committed, or in any county where the victim resides during all or part of the offense. For purposes of this subsection (13), a business entity resides in any county in which it maintains a physical location.
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If a person commits sexual assault on a child as described in section 18-3-405 (1) and commits the offense as part of a pattern of sexual abuse as described in section 18-3-405 (2)(d), or commits sexual assault on a child by one in a position of trust as described in section 18-3-405.3 (1) and commits the offense as part of a pattern of sexual abuse as described in section 18-3-405.3 (2)(b), the offender may be tried for all acts:
(I) In a county where at least one of the acts constituting the offense or the pattern of sexual abuse was committed; or
(II) In a county where an act in furtherance of the offense was committed.
- This subsection (14) takes effect on April 4, 2017, and applies to an act constituting a pattern of sexual abuse for which the offense's statute of limitations has not yet run on April 4, 2017.
- Nothing in this subsection (14) allows for a defendant to be placed in jeopardy twice for the same incident of sexual conduct involving a child that has been previously alleged as an incident necessary to form a pattern of sexual abuse as defined in section 18-3-401(2.5) in violation of the prohibition against second trials in sections 18-1-301, 18-1-302, and 18-1-303.
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If a person commits sexual assault on a child as described in section 18-3-405 (1) and commits the offense as part of a pattern of sexual abuse as described in section 18-3-405 (2)(d), or commits sexual assault on a child by one in a position of trust as described in section 18-3-405.3 (1) and commits the offense as part of a pattern of sexual abuse as described in section 18-3-405.3 (2)(b), the offender may be tried for all acts:
Source: L. 71: R&RE, p. 391, § 1. C.R.S. 1963: § 40-1-202. L. 84: (10) added, p. 536, § 4, effective July 1. L. 87: (7) amended, p. 606, § 10, effective April 16. L. 92: (3) amended and (11) added, p. 402, § 12, effective June 3. L. 95: (12) added, p. 469, § 17, effective July 1. L. 98: (7) amended, p. 793, § 2, effective July 1. L. 2002: (12) amended, p. 1181, § 4, effective July 1. L. 2003: (7)(b)(II) amended and (7)(c) added, p. 976, § 15, effective April 17; (7)(b)(II)(S) and (7)(b)(II)(T) amended and (7)(b)(II)(V) added, p. 1019, § 1, effective April 17. L. 2004: (7)(c)(I) amended, p. 1738, § 3, effective July 1. L. 2006: (7)(b)(II)(N) amended, p. 2005, § 60, effective July 1; (7)(b)(II)(W) and (13) added, p. 1317, §§ 2, 1, effective July 1. L. 2011: (12) amended, (SB 11-007), ch. 107, p. 335, § 1, effective August 10; (12) amended, (HB 11-1278), ch. 224, p. 964, § 8, effective August 10. L. 2012: (11) amended, (SB 12-175), ch. 208, p. 862, § 101, effective July 1. L. 2013: (7)(b)(II)(B) and (7)(b)(II)(C) repealed, (HB 13-1160), ch. 373, p. 2200, § 9, effective June 5. L. 2017: (14) added, (HB 17-1109), ch. 97, p. 292, § 1, effective April 4; IP(7)(b)(II) and (7)(b)(II)(L) amended, (HB 17-1245), ch. 240, p. 989, § 2, effective August 9; IP(7)(b)(II) and (7)(b)(II)(R) amended, (SB 17-225), ch. 262, p. 1246, § 5, effective August 9. L. 2018: (7)(b)(II)(K) amended, (HB 18-1200), ch. 379, p. 2293, § 5, effective August 8. L. 2020: IP(7)(b)(II) and (7)(b)(II)(R) amended, (HB 20-1213), ch. 160, p. 754, § 6, effective June 29.
Editor's note:
- Amendments to subsection (7)(b)(II) by Senate Bill 03-147 and House Bill 03-1020 were harmonized.
- Subsection (7)(b)(II)(V) was originally numbered as (7)(b)(II)(U) in House Bill 03-1020 but has been renumbered on revision for ease of location.
Cross references: For similar provisions concerning the place of trial, see Crim. P. 18; for change of venue, see part 1 of article 6 of title 16; for the place of trial of an action for violation of a custody order, see § 18-3-304 (4).
ANNOTATION
Law reviews. For article, "Criminal Procedure in Colorado -- A Summary and Recommendations for Improvement", see 22 Rocky Mt. L. Rev. 221 (1950). For article, "One Year Review of Criminal Law", see 34 Dicta 98 (1957). For article, "One Year Review of Criminal Law and Procedure", see 38 Dicta 65 (1961).
Pursuant to subsection (11), the prosecution is not required to prove venue as an element of the offense and, therefore, the prosecution's burden of proof is not unconstitutionally lowered. The sixth amendment does not require venue to be an element of the crime proven beyond a reasonable doubt. A defendant's right to proper venue can be vindicated without having to submit the issue to a jury. People v. Lewis, 2017 COA 147 , 433 P.3d 70.
Venue provisions are solely for the benefit of the defendant and may be waived. People v. Taylor, 732 P.2d 1172 ( Colo. 1987 ); People v. Rice, 579 P.2d 647 (Colo. App. 1978); People v. Joseph, 920 P.2d 850 (Colo. App. 1995).
Entry of plea forecloses objection. Once the accused subjects himself or herself to the authority of the court by offering a guilty plea, any further objection to venue is deemed waived. Vigil v. People, 310 P.2d 552 ( Colo. 1957 ); People v. Joseph, 920 P.2d 850 (Colo. App. 1995).
The propriety of venue is a matter of law and fact, not discretion. Therefore, a court must take evidence and make specific findings when it severs counts that are not triable under the court's jurisdiction. People v. Reed, 132 P.3d 347 (Colo. 2006).
Authority of district attorney is a technical matter subject to waiver. Just as a defendant may waive objections to venue, he or she may also waive any objection to the authority of the district attorney to bring a criminal charge. People v. Joseph, 920 P.2d 850 (Colo. App. 1995).
Larceny may be prosecuted where goods stolen or brought. Larceny is considered a continuing crime and every asportation considered a new taking; thus larceny could be prosecuted not only at the place where the goods were stolen, but also wherever the goods were subsequently brought. People v. Martinez, 37 Colo. App. 71, 543 P.2d 1290 (1975).
Out-of-state theft. The Colorado courts have jurisdiction over the offense of theft which originated in the state of New Mexico. People v. Martinez, 37 Colo. App. 71, 543 P.2d 1290 (1975).
Theft committed partly in state. Where there was evidence presented that defendant exercised control over stolen chain saws in Colorado without authorization, the offense of theft was "committed partly within this state" as contemplated by § 18-1-201(2) , and, therefore, in accordance with § 18-1-201(1)(a) defendant "is subject to prosecution in this state" for that offense. People v. Martinez, 37 Colo. App. 71, 543 P.2d 1290 (1975).
Under subsection (9), drug transaction crime starting in one county and completed in an adjacent county may be tried in either county even though almost all of the transaction occurred in the adjacent county. People v. Ray, 109 P.3d 996 (Colo. App. 2004).
Crime committed on highway. Under the provisions of this section where a criminal offense is committed on a public highway between two counties the trial may be had in either county. Stone v. People, 71 Colo. 162, 204 P. 897 (1922) (decided under R.S. 08, § 1908).
Where the "cause of death" is administered in one city when a defendant causes a bomb to be placed in the airplane, out of his custody and beyond his control, with the intent and for the purpose of causing the death of a passenger on the plane, the death is undoubtedly the result of defendant's unlawful act, and this having occurred in the city the venue is there properly laid pursuant to this section, and the trial court there unquestionably has jurisdiction. Graham v. People, 134 Colo. 290 , 302 P.2d 737 (1956) (decided under §§ 39-9-1 and 40-2-12, CRS 53).
Venue in a kidnapping case may be either in the county in which the offense was committed or in any county through which the person kidnapped was taken or kept while under confinement or restraint. Claxton v. People, 164 Colo. 283 , 434 P.2d 407 (1967) (decided under § 40-2-47, C.R.S. 1963).
Where an accused is charged with multiple crimes arising from the same criminal episode and which were committed in several counties, charges can be filed in any county in which any of the individual charges could be filed so long as such offenses were committed within the same judicial district since this section does not broaden the authority of the district attorney to file charges based on crimes committed outside the judicial district. People v. Taylor, 732 P.2d 1172 ( Colo. 1987 ); People v. Cortez, 737 P.2d 810 ( Colo. 1987 ).
This section does not limit the situs of a crime to the county in which the offense is committed but also includes any county where an act in furtherance of the offense occurred. People v. Taylor, 732 P.2d 1172 ( Colo. 1987 ); People v. Bobo, 897 P.2d 909 (Colo. App. 1995); People v. Joseph, 920 P.2d 850 (Colo. App. 1995); People v. Shackley, 248 P.3d 1204 ( Colo. 2011 ).
Although some evidence against defendant was seized in a different county, there was a reasonable inference that the seized evidence was used to commit the crimes that were alleged to have been committed in the county where the trial occurred; therefore, venue was proper. People v. Richardson, 181 P.3d 340 (Colo. App. 2007).
Filing or preparing tax returns in one county is not an act "in furtherance of the offense" of criminal impersonation. Change of venue to county where work was performed was proper. People v. Nevarez-Zambrano, 222 P.3d 329 (Colo. 2010).
Under subsection (11), the prosecution is not required to prove venue as an element of the offense. Therefore, an erroneous allegation of venue does not constitute reversible error. People v. Brown, 70 P.3d 489 (Colo. App. 2002).
Applied in People v. Gould, 193 Colo. 176 , 563 P.2d 945 (1977); People v. Donahue, 41 Colo. App. 70, 578 P.2d 671 (1978); People v. Rice, 40 Colo. App. 357, 579 P.2d 647 (1978); People v. Beck, 42 Colo. App. 69, 593 P.2d 371 (1979); People v. Freeman, 668 P.2d 1371 ( Colo. 1983 ); People v. Cortez, 703 P.2d 648 (Colo. App. 1985), aff'd, 737 P.2d 810 ( Colo. 1987 ); People v. Felgar, 58 P.3d 1122 (Colo. App. 2002).
PART 3 WHEN PROSECUTION BARRED BY FORMER PROCEEDINGS
Cross references: For constitutional provisions concerning double jeopardy, see § 18 of art. II, Colo. Const.
Law reviews: For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses cases relating to double jeopardy, see 15 Colo. Law. 1572 (1986).
18-1-301. Second trial barred by former prosecution for same offense.
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If a prosecution is for a violation of the same provision of law and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances:
- The former prosecution resulted in an acquittal. There is an acquittal if the prosecution resulted in a finding of not guilty by the trier of fact or in a determination that there was insufficient evidence to warrant a conviction. A finding of guilty of a lesser included offense is an acquittal of the greater inclusive offense even though the conviction is subsequently set aside.
- The former prosecution was terminated by a final order or judgment for the defendant that has not been set aside, reversed, or vacated, and that necessarily required a determination inconsistent with a fact or a legal proposition that must be established for conviction of the offense.
- The former prosecution resulted in a conviction. There is a conviction if the prosecution resulted in a judgment of conviction that has not been reversed or vacated, a verdict of guilty that has not been set aside and that is capable of supporting a judgment, or a plea of guilty accepted by the court. In the latter two instances, failure to enter judgment must be for a reason other than a motion of the defendant.
- The former prosecution was improperly terminated. Except as otherwise provided in subsection (2) of this section, there is an improper termination of a prosecution if the termination is for reasons not amounting to an acquittal, and it takes place after the jury is sworn if the case is tried by a jury or after the first prosecution witness is sworn if trial is by court following waiver of jury trial.
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Termination is not improper under any of the following circumstances:
- The defendant consents to the termination or waives his right to object to the termination. The defendant is deemed to have waived all objections to a termination of the trial unless his objections to the order of termination are made of record at the time of the entry thereof.
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The trial court finds that:
- The termination is necessary because it is physically impossible to proceed with the trial in conformity with the law; or
- There is a legal defect in the proceedings that would make any judgment entered upon a verdict reversible as a matter of law; or
- Prejudicial conduct has occurred in or outside the courtroom making it unjust either to the defendant or to the state to proceed with the trial; or
- The jury is unable to agree upon a verdict; or
- False statements of a juror on voir dire prevent a fair trial.
Source: L. 71: R&RE, p. 396, § 1. C.R.S. 1963: § 40-1-401.
ANNOTATION
Jeopardy does not attach if an information is insufficient in form and substance to sustain a conviction. People v. Garner, 187 Colo. 294 , 530 P.2d 496 (1975).
Jeopardy attaches upon guilty plea. Jeopardy attaches to a county court prosecution when the defendant enters a plea of guilty. Corr v. District Court, 661 P.2d 668 (Colo. 1983).
Jeopardy attaches upon court's acceptance of a plea of guilty, and the attachment of jeopardy is what triggers the statutory bar of subsection (2) of § 18-1-408. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).
Jeopardy attaches after first prosecution witness is sworn in, so, because no witnesses had yet been sworn in in the habitual criminal proceeding when the trial court dismissed the charges, jeopardy was not considered to have attached. People v. Barnum, 217 P.3d 908 (Colo. App. 2009).
Compulsory joinder broader than "same offense" principle or collateral estoppel. The compulsory joinder requirement of subsection (2) of § 18-1-408 is broader than both the "same offense" principle of double jeopardy as codified in this section and the collateral estoppel effect of a prior determination of an ultimate fact as outlined in § 18-1-302 . Jeffrey v. District Court, 626 P.2d 631 ( Colo. 1981 ); Corr v. District Court, 661 P.2d 668 ( Colo. 1983 ).
Protection from reprosecution where proceedings improperly terminated. Where defendants had completed a full trial and all charges had been submitted to the jury, and the jury returned a verdict on only one of the numerous charges, dismissal of the jury without further instruction or deliberation on the remaining charges is an improper termination of the proceedings, and the defendants are protected from reprosecution on those charges. Ortiz v. District Court, 626 P.2d 642 (Colo. 1981).
Where trial judge, despite objections of defense attorney, erroneously declared a mistrial sua sponte because a key staff member resigned, the docket was crowded, and the trial ran longer than was anticipated, second trial was barred by double jeopardy. The court's reasons for declaring a mistrial were not substantial enough to warrant a finding of "manifest necessity". People v. Berreth, 13 P.3d 1214 (Colo. 2000).
Double jeopardy principles do not prevent reinstatement of a defendant's habitual criminal counts. The state's double jeopardy law does not apply to noncapital sentencing proceedings, so double jeopardy does not bar trial of a defendant's habitual counts. People v. Porter, 2015 CO 34, 348 P.3d 922.
Where the court gave defendant a choice between a mistrial and a continuance, defendant's response that he did not request either was sufficient to preserve his objection. Paul v. People, 105 P.3d 628 (Colo. 2005).
Trial court did in fact declare a mistrial based on jury deadlock. Although the trial court did not expressly declare a mistrial at the time the jury returned the unsigned verdict form, the record showed that the court and the parties understood that a mistrial had been declared. People v. Richardson, 184 P.3d 755 (Colo. 2008).
Trial court did not abuse its discretion in ordering a mistrial when the defense did not disclose to prosecution a defense witness's new alibi evidence and elicited the evidence on cross-examination. People v. Jackson, 2018 COA 79 , __ P.3d __.
Applied in People v. Bartsch, 37 Colo. App. 52, 543 P.2d 1273 (1975); People v. Hoinville, 191 Colo. 357 , 553 P.2d 777 (1976).
18-1-302. Second trial barred by former prosecution for different offense.
-
Although a prosecution is for a violation of a different provision of law than a former prosecution or is based on different facts, it is barred by the former prosecution under the following circumstances:
-
The former prosecution resulted in an acquittal or a conviction as defined in section 18-1-301 (1)(a) and (1)(c) and the subsequent prosecution is for:
- Any offense of which the defendant could have been convicted under the allegation of the complaint, information, or indictment of the first prosecution; or
- The same conduct, unless the offense of which the defendant was formerly convicted or acquitted and the offense for which he is subsequently prosecuted each requires proof of a fact not required by the other and the law defining each of the offenses is intended to prevent a substantially different harm or evil or the second offense was not consummated when the former trial began.
- The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that necessarily required a determination inconsistent with a fact that must be established for conviction of the second offense.
- The former prosecution was improperly terminated, as improper termination is defined in section 18-1-301 (1)(d) and (2), and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.
-
The former prosecution resulted in an acquittal or a conviction as defined in section 18-1-301 (1)(a) and (1)(c) and the subsequent prosecution is for:
Source: L. 71: R&RE, p. 397, § 1. C.R.S. 1963: § 40-1-402.
ANNOTATION
This section must be read to deal with multiple prosecutions in the same jurisdiction since § 18-1-303 sets out the circumstances in which a second trial in Colorado is barred by a former prosecution in another jurisdiction. Clearly, this section cannot be construed to bar separate prosecutions for different state and federal offenses arising out of the same series of transactions, for such trials could not be held in the same court. People v. Hines, 194 Colo. 284 , 572 P.2d 467 (1977).
The test of double jeopardy as to different offenses is not whether the criminal intent is one and the same and inspiring the whole transaction, but whether separate acts have been committed with the requisite criminal intent and are such as are made punishable. Conviction and sentences for two distinct offenses did not put appellees twice in jeopardy where the Colorado statutes separately define the offenses of burglary and assault with intent to rob. Burglary is a crime against property; it is the unlawful entering of a dwelling house or building with the intent to commit larceny or other felony. Assault with intent to rob is a crime directed against a person; it is an unlawful attempt coupled with a present ability to commit a violent injury on the person, with the specific intent to commit robbery. The offenses were separate and independent and the imposition of two consecutive sentences were within the law and did not constitute a violation of any federally protected right. Trujillo v. Patterson, 266 F. Supp. 901 (D. Colo. 1966), aff'd per curiam, 389 F.2d 1003 (10th Cir. 1967).
Collateral estoppel is an integral part of the concept of double jeopardy. People v. Horvat, 186 Colo. 202 , 527 P.2d 47 (1974).
Simply stated, collateral estoppel bars relitigation between the same parties of issues actually determined at a previous trial. People v. Horvat, 186 Colo. 202 , 527 P.2d 47 (1974).
Subsection (1)(a)(II) is designed to protect a defendant from having to relitigate an issue of ultimate fact once it has been determined by a valid and final judgment. When a previous judgment was based on a general verdict, a court is required to examine the record, taking into account the pleadings, evidence, charge, and other relevant matters, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose. People v. Matheson, 671 P.2d 968 (Colo. App. 1983).
This section protects a defendant from having to relitigate a factual issue once it has been determined by a valid and final judgment. The doctrine of collateral estoppel generally precludes a later trial if a rational fact-finder could not have grounded its earlier verdict upon an issue other than that upon which a later conviction would necessarily be based. People v. Allen, 944 P.2d 541 (Colo. App. 1996).
Collateral estoppel and invalidity of dual sovereignty in Colorado barred trial. Where defendant was tried in a municipal court for reckless and careless driving in violation of that municipality's traffic code, he could not later be tried in district court for feloniously inflicting bodily injury while under the influence of intoxicating liquor by operating and driving a motor vehicle in a reckless, negligent, or careless manner, in violation of the state code, because of the doctrine of collateral estoppel, and because dual sovereignty is no longer valid in Colorado. People v. Horvat, 186 Colo. 202 , 527 P.2d 47 (1974).
Compulsory joinder broader than "same offense" principle or collateral estoppel. The compulsory joinder requirement of § 18-1-408 (2) is broader than both the "same offense" principle of double jeopardy as codified in § 18-1-301 and the collateral estoppel effect of a prior determination of an ultimate fact as outlined in this section. Jeffrey v. District Court, 626 P.2d 631 ( Colo. 1981 ); Corr v. District Court, 661 P.2d 668 ( Colo. 1983 ).
This statutory prohibition against a later prosecution does not apply if the offense in the later prosecution necessarily requires proof of a fact not required by the former prosecution and the law defining each offense is intended to prevent a substantially different harm or evil. People v. Allen, 944 P.2d 541 (Colo. App. 1996).
Effect of acquittal upon lesser included offense. It is the character of the evidence which must control in determining whether the lesser included offense of assault with intent to commit rape can stand alone or fall on acquittal of forcible rape. Miera v. People, 164 Colo. 254 , 434 P.2d 122 (1967).
Applied in People v. Williams, 651 P.2d 899 ( Colo. 1982 ); People v. Garcia, 698 P.2d 801 ( Colo. 1985 ).
18-1-303. Second trial barred by prosecution in another jurisdiction.
-
If conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States, or another state, or of a municipality, a prosecution in any other of these jurisdictions is a bar to a subsequent prosecution in this state under either of the following circumstances:
-
The first prosecution resulted in a conviction or an acquittal as defined in section 18-1-301 (1)(a) and (1)(c), and the subsequent prosecution is based on the same conduct, unless:
- The offense for which the defendant was formerly convicted or acquitted requires proof of a fact not required by the offense for which he is subsequently prosecuted and the law defining each of the offenses is intended to prevent a substantially different harm or evil; or
- The second offense was not consummated when the former trial began.
- The former prosecution was terminated by an acquittal or by a final order or judgment for the defendant that has not been set aside, reversed, or vacated and that necessarily required a determination inconsistent with a fact that must be established for conviction of the offense for which the defendant is subsequently prosecuted.
-
The first prosecution resulted in a conviction or an acquittal as defined in section 18-1-301 (1)(a) and (1)(c), and the subsequent prosecution is based on the same conduct, unless:
Source: L. 71: R&RE, p. 397, § 1. C.R.S. 1963: § 40-1-403.
ANNOTATION
Dual sovereignty no longer viable in Colorado. In early cases the courts recognized the concept of dual sovereignty for the purposes of prosecution and punishment of an accused in both a state and municipal court for the same act. The concept of dual sovereignty is no longer viable in Colorado. People v. Horvat, 186 Colo. 202 , 527 P.2d 47 (1974).
Subsection (1)(a) specifically defines the capacity of the state to prosecute when there has been a previous prosecution in a municipality. People v. Talarico, 192 Colo. 445 , 560 P.2d 90 (1977).
Effect of previous prosecution in municipal court. Where defendant was tried in a municipal court for reckless and careless driving in violation of that municipality's traffic code, he could not later be tried in district court for feloniously inflicting bodily injury while under the influence of intoxicating liquor by operating and driving a motor vehicle in a reckless, negligent, or careless manner, in violation of the state code, because of the doctrine of collateral estoppel, and because dual sovereignty is no longer valid in Colorado. People v. Horvat, 186 Colo. 202 , 527 P.2d 47 (1974).
Where defendant struck one man and also allegedly hit another man, and the assault on the first man resulted in the filing of charges for the violation of two municipal ordinances, to which the defendant pleaded guilty, and where the district attorney filed a felony complaint in the Denver county court and charged the defendant with first-degree assault and second-degree burglary, and the felony assault charge predicated on the acts which allegedly caused the injuries to the second man was dismissed by the county court judge, and the district attorney then filed a direct information in the district court, charging the defendant with first-degree assault, this section did not justify dismissal of the felony assault charge against the defendant. People v. Mendoza, 190 Colo. 519 , 549 P.2d 766 (1976).
Jeopardy does not attach when a charge is dismissed on grounds unrelated to a defendant's criminal liability. Where, prior to the commencement of trial, a federal charge was dismissed on the basis of a finding of incompetency to stand trial, jeopardy did not attach; consequently, state prosecution did not amount to "subsequent prosecution". Chatfield v. Colo. Court of Appeals, 775 P.2d 1168 ( Colo. 1989 ).
A complete defense to a subsequent state prosecution is provided by this section; it does not function to deprive a district court of jurisdiction over a defendant or a charged offense. Chatfield v. Colo. Court of Appeals, 775 P.2d 1168 ( Colo. 1989 ).
Prosecution by Indian tribal court bars a subsequent Colorado prosecution where the requirements of this section are met. People v. Morgan, 785 P.2d 1294 (Colo. 1990).
Exception in this section for previously tried offenses which require proof of different facts than the subsequently tried offense does not include facts required to establish jurisdiction and venue or facts concerning the dates of the conduct. People v. Morgan, 785 P.2d 1294 (Colo. 1990).
Colorado's subsequent prosecution barred because it was based on the same conduct for which defendant was convicted in California. Colorado's prosecution for aggravated motor vehicle theft was based on same conduct as California conviction for unlawful taking of a vehicle, and the exception in (1)(a)(I) does not apply because California and Colorado statutes were intended to prevent substantially similar harm. People v. Giem, 2015 COA 176 , 378 P.3d 809.
While the California offense requires proof of a fact that the Colorado offense does not, the subsection (1)(a)(I) exception to the statutory bar applies only if both prongs of the exception are satisfied. Colorado could not show that the law defining the California offense and the law defining the Colorado offense were intended to prevent a substantially different harm or evil. People v. Giem, 2015 COA 176 , 378 P.3d 809.
Federal acquittal or conviction based on same conduct is a bar to state prosecution unless federal action requires proof of a fact not required by state offense. People v. Esch, 786 P.2d 462 (Colo. App. 1989).
Defendant's federal prosecution under the Racketeer Influenced and Corrupt Organizations Act (RICO) and subsequent state conviction for first degree murder for the same incident do not constitute double jeopardy. The RICO conviction required proof of facts not necessary for the state murder conviction, and the two laws seek to prohibit substantially different evils. People v. Gladney, 250 P.3d 762 (Colo. App. 2010).
Applied in People v. Hines, 194 Colo. 284 , 572 P.2d 467 (1977); Blum v. County Court, 631 P.2d 1191 (Colo. App. 1981); People v. Wentling, 2015 COA 172 , 409 P.3d 411.
18-1-304. Former prosecution not a bar.
-
A former prosecution is not a bar within the meaning of sections 18-1-301 to 18-1-303, if the former prosecution:
- Was before a court that lacked jurisdiction over the defendant or the offense; or
- Was procured by the defendant without the knowledge of the appropriate prosecuting official and with the intent to avoid the sentence that otherwise might be imposed; or
- Resulted in a judgment of conviction that was set aside, reversed, or vacated upon appeal or in any other subsequent judicial proceeding.
Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-404.
ANNOTATION
Defendant's arrest in stolen car in California and subsequent California prosecution does not amount to procuring prosecution in California for purposes of the exception. California law enforcement pulled over and arrested defendant for unlawful driving or taking of a vehicle because stolen Colorado vehicle contained antitheft transmitter. Merely being present in California with a stolen car stops short of procuring a prosecution under this section. The fact that defendant accepted California plea based on lawyer's advice that it would allow him to avoid prosecution in Colorado does not affect analysis because his decision to take the plea occurred after his prosecution began and did not bring about the prosecution. People v. Giem, 2015 COA 176 , 378 P.3d 809.
PART 4 RIGHTS OF DEFENDANT
18-1-401. Purpose.
It is the intent of this part 4 to confer upon every person accused of an offense the benefits arising from said part 4 as a matter of substantive right, in implementation of minimum standards of criminal justice within the concept of due process of law.
Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-501.
ANNOTATION
Applied in People v. Aragon, 665 P.2d 137 (Colo. App. 1982); People v. Germany, 674 P.2d 345 ( Colo. 1983 ).
18-1-402. Presumption of innocence.
Every person is presumed innocent until proved guilty. No person shall be convicted of any offense unless his guilt thereof is proved beyond a reasonable doubt.
Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-502.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963).
Annotator's note. Since § 18-1-402 is similar to former § 40-2-20 C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
The policy of the government is to punish only those who violate the law and to protect the innocent in all cases. Criminal prosecutions are not to be regarded or conducted as contests between individuals respecting civil rights, wherein advantages not reaching the merits may be gained by one party over another. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
Legislature's competence to establish culpability and justification not impaired. Constitutional mandate requiring the prosecution to establish all essential elements of a crime beyond a reasonable doubt does not impair the legislature's competence to establish the statutory constituents of criminal culpability for various offenses and to formulate particular rules of justification or excuse for acts that otherwise might be criminally punishable. People v. Ledman, 622 P.2d 534 (Colo. 1981).
Accused presumed innocent until guilt proved beyond reasonable doubt. The prosecution in a criminal case must establish the guilt of the accused by proof beyond a reasonable doubt, and until the prosecution meets that burden, the accused is presumed to be innocent. People v. Hill, 182 Colo. 253 , 512 P.2d 257 (1973); Vega v. People, 893 P.2d 107 ( Colo. 1995 ).
Section provides foundation of criminal justice system. The presumption of innocence, coupled with proof of each element of the charge beyond a reasonable doubt, provides the foundation for a system of criminal justice. People v. Kanan, 186 Colo. 255 , 526 P.2d 1339 (1974).
Component parts of due process of law. Proof beyond a reasonable doubt and presumption of innocence are principles of law applicable to criminal cases which have been so universally accepted and applied as to have become component parts of the term "due process of law". People v. Hill, 182 Colo. 253 , 512 P.2d 257 (1973).
The presumption of innocence has meaning independent of the concept of proof beyond a reasonable doubt which relates to the burden of proof. People v. Hill, 182 Colo. 253 , 512 P.2d 257 (1973).
Combining in one instruction the instructions on presumption of innocence, burden of proof, and reasonable doubt did not amount to an abuse of discretion, where no prejudice has been shown. People v. Sharpe, 183 Colo. 64 , 514 P.2d 1138 (1973).
II. PRESUMPTION OF INNOCENCE.
Purpose of presumption of innocence. The presumption of innocence was developed for the purpose of guarding against the conviction of an innocent person. It was not developed for the purpose of aiding the guilty to escape punishment. It is nevertheless perfectly plain that the presumption, together with the related rule on the burden of proof, in guarding against the conviction of an innocent person, may in some cases prevent the conviction of a person who is actually guilty. Thus, where the prosecution is unable to muster evidence sufficient to overcome the presumption, there will be an acquittal, even though the defendant is actually guilty. This is a calculated risk which society is willing to take. It does so because it regards the acquittal of guilty persons less objectionable than the conviction of innocent persons. The implication that society is just as anxious to convict the guilty as it is to acquit the innocent is false; otherwise there would be no presumption of innocence. Martinez v. People, 172 Colo. 82 , 470 P.2d 26 (1970).
Presumption of guilt raised by implications of defendant's prior criminality held prejudicial error. People v. Bugarin, 181 Colo. 62 , 507 P.2d 875 (1973).
It is not proper to raise a presumption of guilt on the ground that, having committed one crime, the depravity it exhibits makes it likely defendant would commit another. White v. People, 177 Colo. 386 , 494 P.2d 585 (1972).
A presumption of guilt should not be generated against an accused by showing that he committed a crime indicative that he is a depraved person who likely would commit the crime for which he is being tried. Kurtz v. People, 177 Colo. 306 , 494 P.2d 97 (1972).
Prosecution's closing argument misstating the presumption of innocence was erroneous. Prosecution's statements in closing argument that defendant "sits here in front of you a guilty man" and that the presumption of innocence "we had when we started this case is gone" were flawed because a defendant retains a presumption of innocence throughout the trial process. The presumption remains until after a jury returns a guilty verdict. People v. McBride, 228 P.3d 216 (Colo. App. 2009).
Failure to instruct on the presumption of innocence constitutes a denial of due process of law and deprived defendant of his constitutional right to a fair trial. People v. Hill, 182 Colo. 253 , 512 P.2d 257 (1973).
Failure to instruct the jury as to the presumption of innocence is plain error. People v. Aragon, 665 P.2d 137 (Colo. App. 1982).
Instruction on the presumption of innocence is salutary, in that it guarantees that the defendant's liberty will not be lost precipitously and that the state will be put to the proper test in securing a conviction in a criminal case. People v. Hill, 182 Colo. 253 , 512 P.2d 257 (1973).
Instruction on presumption of innocence held inappropriate. Renfrow v. People, 176 Colo. 160 , 489 P.2d 582 (1971); Brown v. People, 177 Colo. 397 , 494 P.2d 587 (1972); English v. People, 178 Colo. 325 , 497 P.2d 691 (1972).
Recommended instruction on the presumption of innocence should read: "The law presumes every person charged with crime to be innocent. This presumption of innocence remains with the defendant throughout the trial and should be given effect by you unless and until, by the evidence introduced before you, you are convinced the defendant is guilty beyond a reasonable doubt." Martinez v. People, 172 Colo. 82 , 470 P.2d 26 (1970).
Instruction was not erroneous. Zamora v. People, 175 Colo. 340 , 487 P.2d 1116 (1971).
Submitting erroneous instruction requires reversal only if objected to. Submitting to the jury an erroneous instruction on the presumption of innocence would ordinarily require reversal, but only if the defendant objected to the instruction. People v. Simmons, 182 Colo. 350 , 513 P.2d 193 (1973).
III. PROOF BEYOND REASONABLE DOUBT.
Law reviews. For comment on Jones v. People (146 Colo. 40 , 360 P.2d 686 (1961)), see 34 Rocky Mt. L. Rev. 243 (1962).
The reasonable doubt which authorizes an acquittal is as to the defendant's guilt, not his innocence. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
Prosecution bears initial burden of proof. Before the accused can be convicted of murder, or called upon to produce evidence in justification or mitigation of such an offense, the prosecution must make out such a case as will, under the law, sustain a verdict of guilty. Kent v. People, 8 Colo. 563, 9 P. 852 (1886).
Burden extends to all essential elements of crime. It is axiomatic that the burden of proof rests upon the prosecution throughout the trial to prove beyond a reasonable doubt the existence of all essential elements necessary to constitute the offense charged. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
Prosecutor must establish fair account of transaction. The policy of the law, as evinced by the presumption of innocence and the doctrine of reasonable doubt, would require the public prosecutor to introduce such proof as will give a fair account of the transaction. This being done, it devolves upon the defendant to produce in evidence such matters of mitigation, justification or excuse, if any such exist, as may tend to explain his action and show the necessity therefor; otherwise a verdict of guilty must necessarily be returned against him. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
He cannot be compelled to search for and put in evidence all the facts connected with the transaction, or exculpatory facts in the prisoner's favor. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
All matters showing justification or excuse must be considered in favor of accused. When the circumstances surrounding the commission of the homicide are produced in evidence by the state, all matters, if any, which go to justify or excuse the killing must be considered in favor of the defendant; and if sufficient to manifest that the accused was justified or excused in committing the homicide, he is not bound to prove it by affirmative evidence in his own behalf. Kent v. People, 8 Colo. 563, 9 P. 852 (1886).
As to all facts in evidence properly constituting part of the res gestae, they are to be considered by the jury, in passing upon the question of guilt or innocence, without discrimination as to the rules of evidence, whether introduced by the prosecutor or the defendant. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
The rule relating to the res gestae applies to all defenses which traverse the averments of the indictment and go to the essence of the guilt charged against the accused. Within this class may be mentioned self-defense, provocation, heat of blood, and, generally, all matters growing out of the res gestae which go to justify, extenuate or excuse the crime charged, including the defense of alibi. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
The burden is never on the defendant to show that he did not commit the crime. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
Defendant's only burden is to raise a reasonable doubt in the minds of the jury as to his guilt from all the evidence of the case. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
Burden on accused to raise reasonable doubt of sanity. While up to the point of establishing an unjustifiable homicide the prosecution carries the burden of proof beyond a reasonable doubt, sanity is presumed. He who relies upon its absence must then produce evidence which will at least raise a reasonable doubt of its existence. Shank v. People, 79 Colo. 576, 247 P. 559 (1926).
The killing having been established, the defendant had the burden of proving the effect of his mental condition as a mitigating circumstance in the perpetration of the killing. Jones v. People, 146 Colo. 40 , 360 P.2d 686 (1961); Jones v. People, 155 Colo. 148 , 393 P.2d 366 (1964).
Burden of establishing defendant's capacity to form specific criminal intent. Once some evidence from either the prosecution or the defense raises the issue of impaired mental condition, the burden devolves upon the prosecution to establish beyond a reasonable doubt the defendant's capacity to form the specific intent required for the offense as well as the defendant's guilt as to all essential elements of the crime charged against him. People v. Ledman, 622 P.2d 534 (Colo. 1981).
The accused is not required by this section to prove circumstances of mitigation or excuse beyond a reasonable doubt, or to the extent of satisfactorily establishing his defense. Kent v. People, 8 Colo. 563 , 9 P. 852 (1886); Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
Nor by a preponderance of evidence. When the killing is proved the burden does not devolve on the accused to show anything to the satisfaction of the jury by a fair preponderance of the evidence. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889).
In a substantial number of cases insanity is the only defense relied upon and as a practical matter the accused could be deprived of essential and time-honored safeguards and could be required to establish his innocence by a preponderance of the evidence, if provisions requiring proof of sanity by a preponderance of the evidence were upheld. People ex rel. Juhan v. District Court, 165 Colo. 253 , 439 P.2d 741 (1968).
Defense need only raise reasonable doubt of guilt. The accused is only required to prove excuse or mitigation as any other facts are required to be proved; and if the matters relied on be supported by such proof are such as would produce a reasonable doubt in the minds of the jury as to the guilt of the prisoner, when the whole evidence concerning the transaction comes to be considered by the jury, the rule of law is that there must be an acquittal. Kent v. People, 8 Colo. 563 , 9 P. 852 (1886); Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
The accused has the burden of showing circumstances of mitigation or circumstances that justify or excuse the homicide. If the showing be sufficiently strong to create a reasonable doubt of the guilt of the accused as to any grade of offense included in the indictment, the accused is entitled to the benefit thereof. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889).
It is not incumbent upon the defendant to prove anything to the satisfaction of the jury; rather, it is sufficient if he, by any evidence in the case, succeeds in raising a reasonable doubt in the minds of the jury of the truth of any essential element of the charge against him. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
Due process of law requires prosecution to establish all essential elements of crime beyond a reasonable doubt. People v. Ledman, 622 P.2d 534 (Colo. 1981).
Prejudice inevitable when instruction reduces prosecution's obligation of proof. Prejudice to the defendant is inevitable when the court instructs the jury in such a way as to reduce the prosecution's obligations to prove each element of its case beyond a reasonable doubt. People v. Kanan, 186 Colo. 255 , 526 P.2d 1339 (1974).
During voir dire, the court's description improperly added additional commentary to the reasonable doubt standard that trivialized the prosecution's burden of proof and imparted an incorrect instruction to the jurors. This error was structural and requires reversal of the conviction. Proper jury instruction on reasonable doubt at the close of trial did not cure the court's error. People v. Knobbe, 2020 COA 7 , __ P.3d __.
Instruction on reasonable doubt held fair statement of its legal meaning. People v. Focht, 180 Colo. 259 , 504 P.2d 1096 (1972).
Instructions held erroneous. Any instruction, whatever its language, which in effect imposes upon the defendant the burden of affirmatively showing that no crime has been committed constitutes reversible error, since it clearly deprives him of the benefit of a reasonable doubt as to his guilt which may arise from all the evidence. Leonard v. People, 149 Colo. 360 , 369 P.2d 54 (1962).
Trial court's example of reasonable doubt during voir dire did not lower the prosecution's burden and was not structural error, but trial courts should stop the practice of providing such examples. The court did tell the jury it was an example and did properly instruct the jury on reasonable doubt. People v. Tibbels, 2019 COA 175 , __ P.3d __.
18-1-403. Legal assistance and supporting services.
All indigent persons who are charged with or held for the commission of a crime are entitled to legal representation and supporting services at state expense, to the extent and in the manner provided for in articles 1 and 2 of title 21, C.R.S.
Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-503. L. 81: Entire section amended, p. 928, § 2, September 1. L. 96: Entire section amended, p. 1016, § 4, effective May 23. L. 2014: Entire section amended, (HB 14-1363), ch. 302, p. 1264, § 11, effective May 31.
Cross references: For other provisions concerning legal counsel for the indigent, see § 16 of art. II, Colo. Const., and Crim. P. 44.
ANNOTATION
Law reviews. For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses cases relating to the right to counsel, see 15 Colo. Law. 1578 (1986).
Annotator's note. For other annotations concerning legal counsel for the indigent, see § 16 of art. II, Colo. Const., and Crim. P. 44.
Implementation of ABA standards. The general assembly, in adopting this section, was endeavoring to meet and implement the ABA standards for criminal justice relating to providing defense services. Brown v. District Court, 189 Colo. 469 , 541 P.2d 1248 (1975).
For the right of defendant to have counsel appointed for appeal, see In re Griffin, 152 Colo. 347 , 382 P.2d 202 (1963).
Motion within discretion of court. The granting or denial of a motion to provide supporting services to counsel for an indigent defendant in a criminal prosecution is a matter within the sound discretion of the trial court. Brown v. District Court, 189 Colo. 469 , 541 P.2d 1248 (1975); People v. Marquiz, 685 P.2d 242 (Colo. App. 1984), aff'd, 726 P.2d 1105 ( Colo. 1986 ); People v. Tafoya, 703 P.2d 663 (Colo. App. 1985).
Must demonstrate need for appointment of expert witness. Having failed to demonstrate any particularized and reasonable need for the appointment of investigatory, expert, or other defense services, defendant was not entitled to the appointment of expert witnesses. Brown v. District Court, 189 Colo. 469 , 541 P.2d 1248 (1975).
Defendant entitled to have his expert take fingerprints from a plastic bag containing cocaine seized from his car, however, he was not entitled to require the state to conduct such fingerprint analysis. People v. Roy, 948 P.2d 99 (Colo. App. 1977).
Trial court did not abuse its discretion in failing to provide, at state expense, a private interpreter to translate out-of-court discussions between defendant and his attorney where legal representation was supplied by a pro bono attorney rather than a public defender. People v. Cardenas, 62 P.3d 621 (Colo. 2002).
Applied in Bd. of County Comm'rs v. Buck, 168 Colo. 499 , 452 P.2d 6 (1969).
18-1-404. Preliminary hearing or waiver - dispositional hearing.
- Every person accused of a class 1, 2, or 3 felony or level 1 or level 2 drug felony by direct information or felony complaint has the right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged in the information has been committed by the defendant. In addition, only those persons accused of a class 4, 5, or 6 felony by direct information or felony complaint which felony requires mandatory sentencing or is a crime of violence as defined in section 18-1.3-406, or is a sexual offense under part 4 of article 3 of this title, shall have the right to demand and receive a preliminary hearing within a reasonable time to determine whether probable cause exists to believe that the offense charged in the information or felony complaint was committed by the defendant. The procedure to be followed in asserting the right to a preliminary hearing, and the time within which demand therefor must be made, as well as the time within which the hearing, if demanded, shall be had, shall be as provided by rule of the supreme court of the state of Colorado. A failure to observe and substantially comply with such rule is a waiver of the right to a preliminary hearing.
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- No person accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony by direct information or felony complaint, except those which require mandatory sentencing or which are crimes of violence as defined in section 18-1.3-406, or which are sexual offenses under part 4 of article 3 of this title, shall have the right to demand or receive a preliminary hearing; except that such person shall participate in a dispositional hearing for the purposes of case evaluation and potential resolution.
- Any defendant accused of a class 4, 5, or 6 felony or level 3 or level 4 drug felony who is not otherwise entitled to a preliminary hearing pursuant to paragraph (a) of this subsection (2), may demand and shall receive a preliminary hearing within a reasonable time pursuant to subsection (1) of this section, if the defendant is in custody; except that, upon motion of either party, the court shall vacate the preliminary hearing if there is a reasonable showing that the defendant has been released from custody prior to the preliminary hearing.
Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-504. L. 98: Entire section amended, p. 1272, § 2, effective July 1. L. 2002: (1) and (2)(a) amended, p. 1510, § 178, effective October 1. L. 2014: Entire section amended, (SB 14-163), ch. 391, p. 1970, § 6, effective June 6.
Cross references: (1) For the rule of the supreme court on preliminary hearings, see Crim. P. 5.
(2) For the legislative declaration contained in the 2002 act amending subsections (1) and (2)(a), see section 1 of chapter 318, Session Laws of Colorado 2002.
ANNOTATION
Primary purpose of the preliminary hearing is to determine whether probable cause exists to support the prosecution's charge that the accused committed a specific crime. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).
The preliminary hearing is held for the limited purpose of determining if probable cause exists to believe that the crime or crimes charged were committed by the defendant. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974).
Although a preliminary hearing provides the defendant with an early opportunity to question the government's case, it is not designed to alter the basic proposition that an accused is entitled to one trial on the merits of the charge. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).
The preliminary hearing was created as a screening device to afford the defendant an opportunity to challenge the sufficiency of the prosecution's evidence to establish probable cause before an impartial judge. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974).
Prosecution not required to lay out all witnesses and evidence. A preliminary hearing is a screening device and does not require that the prosecution lay out for inspection and for full examination all witnesses and evidence. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).
Judge must draw all reasonable inferences favorable to the prosecution at a preliminary hearing. People ex rel. Russel v. Hall, 620 P.2d 34 (Colo. 1980).
A trial court commits reversible error when it resolved the inferences arising from conflicting testimony in a preliminary hearing in the defendant's favor. People v. Williams, 628 P.2d 1011 (Colo. 1981).
Standard of review in determining if probable cause had been established requires that the evidence be sufficient to induce a person of ordinary prudence and caution conscientiously to entertain a reasonable belief that the defendant may have committed the crimes charged. People ex rel. Russel v. Hall, 620 P.2d 34 (Colo. 1980).
The standards for determining probable cause at a preliminary hearing are: (1) Probable cause is established when the evidence is sufficient to induce a person of ordinary prudence and caution to a reasonable belief that the defendant committed the crimes charged; (2) the evidence presented must be viewed in the light most favorable to the prosecution; (3) if testimony conflicts, the trial court must draw an inference for the prosecution; and (4) the preliminary hearing is a screening device and not a trial. People v. Williams, 628 P.2d 1011 (Colo. 1981).
Hearsay evidence and other evidence, which would be incompetent if offered at the time of trial, may be the bulk of evidence at a preliminary hearing. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).
Hearsay evidence, which would otherwise be inadmissible at the trial, may be considered for purposes of establishing probable cause. People v. Williams, 628 P.2d 1011 (Colo. 1981).
Admissibility of confessions and evidence not resolved as required at trial. The admissibility of a confession at a preliminary hearing, which is alleged to be involuntary or the admissibility of evidence that may have been seized in violation of amendment 4 of the U.S. Const. need not be resolved on the same basis that would be required when such motion is properly before the trial court or at the time of the trial. People v. Quinn, 183 Colo. 245 , 516 P.2d 420 (1973).
Waiver admits evidence sufficient to establish probable cause. If the defendant elects to waive the preliminary hearing and to proceed to trial, the waiver operates as an admission by the defendant that sufficient evidence does exist to establish probable cause that the defendant committed the crimes charged. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974).
Right to hearing may not be restored once waived. Under the Colorado rules of criminal procedure and the statutes of this state, a district court is not vested with the power to restore a defendant's statutory right to a preliminary hearing once the defendant had waived that right in county court bind-over proceedings. People ex rel. Farina v. District Court, 184 Colo. 406 , 521 P.2d 778 (1974).
Defendant entitled to a preliminary hearing on all class 1, 2, or 3 felonies even when the felony classification results from a sentence enhancer. People v. Simpson, 2012 COA 156 , 292 P.3d 1153.
18-1-405. Speedy trial.
- Except as otherwise provided in this section, if a defendant is not brought to trial on the issues raised by the complaint, information, or indictment within six months from the date of the entry of a plea of not guilty, he shall be discharged from custody if he has not been admitted to bail, and, whether in custody or on bail, the pending charges shall be dismissed, and the defendant shall not again be indicted, informed against, or committed for the same offense, or for another offense based upon the same act or series of acts arising out of the same criminal episode.
- If trial results in conviction which is reversed on appeal, any new trial must be commenced within six months after the date of the receipt by the trial court of the mandate from the appellate court.
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If a trial date has been fixed by the court, and thereafter the defendant requests and is granted a continuance for trial, the period within which the trial shall be had is extended for an additional six-month period from the date upon which the continuance was granted.
(3.5) If a trial date has been fixed by the court and the defendant fails to make an appearance in person on the trial date, the period within which the trial shall be had is extended for an additional six-month period from the date of the defendant's next appearance.
- If a trial date has been fixed by the court, and thereafter the prosecuting attorney requests and is granted a continuance, the time is not thereby extended within which the trial shall be had, as is provided in subsection (1) of this section, unless the defendant in person or by his counsel in open court of record expressly agrees to the continuance or unless the defendant without making an appearance before the court in person or by his counsel files a dated written waiver of his rights to a speedy trial pursuant to this section and files an agreement to the continuance signed by the defendant. The time for trial, in the event of such agreement, is then extended by the number of days intervening between the granting of such continuance and the date to which trial is continued.
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To be entitled to a dismissal under subsection (1) of this section, the defendant must move for dismissal prior to the commencement of his trial and prior to any pretrial motions which are set for hearing immediately before the trial or prior to the entry of a plea of guilty to the charge or an included offense. Failure to so move is a waiver of the defendant's rights under this section.
(5.1) If a trial date is offered by the court to a defendant who is represented by counsel and neither the defendant nor his counsel expressly objects to the offered date as being beyond the time within which such trial shall be had pursuant to this section, then the period within which the trial shall be had is extended until such trial date and may be extended further pursuant to any other applicable provisions of this section.
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In computing the time within which a defendant shall be brought to trial as provided in subsection (1) of this section, the following periods of time shall be excluded:
- Any period during which the defendant is incompetent to stand trial, or is unable to appear by reason of illness or physical disability, or is under observation or examination at any time after the issue of the defendant's mental condition, insanity, incompetency, or impaired mental condition is raised;
- The period of delay caused by an interlocutory appeal whether commenced by the defendant or by the prosecution;
- A reasonable period of delay when the defendant is joined for trial with a codefendant as to whom the time for trial has not run and there is good cause for not granting a severance;
- The period of delay resulting from the voluntary absence or unavailability of the defendant; however, a defendant shall be considered unavailable whenever his whereabouts are known but his presence for trial cannot be obtained, or he resists being returned to the state for trial;
- The period of delay caused by any mistrial, not to exceed three months for each mistrial;
- The period of any delay caused at the instance of the defendant;
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The period of delay not exceeding six months resulting from a continuance granted at the request of the prosecuting attorney, without the consent of the defendant, if:
- The continuance is granted because of the unavailability of evidence material to the state's case, when the prosecuting attorney has exercised due diligence to obtain such evidence and there are reasonable grounds to believe that this evidence will be available at the later date; or
- The continuance is granted to allow the prosecuting attorney additional time in felony cases to prepare the state's case and additional time is justified because of exceptional circumstances of the case and the court enters specific findings with respect to the justification;
- The period of delay between the new date set for trial following the expiration of the time periods excluded by paragraphs (a), (b), (c), (d), and (f) of this subsection (6), not to exceed three months;
- The period of delay between the filing of a motion pursuant to section 18-1-202 (11) and any decision by the court regarding such motion, and if such decision by the court transfers the case to another county, the period of delay until the first appearance of all the parties in a court of appropriate jurisdiction in the county to which the case has been transferred, and in such event the provisions of subsection (7) of this section shall apply.
- If a trial date has been fixed by the court and the case is subsequently transferred to a court in another county, the period within which trial must be had is extended for an additional three months from the date of the first appearance of all of the parties in a court of appropriate jurisdiction in the county to which the case has been transferred.
Source: L. 71: R&RE, p. 398, § 1. C.R.S. 1963: § 40-1-505. L. 79: (2) amended, p. 725, § 1, effective October 1. L. 85: (4) and (5) amended and (5.1) and (6)(h) added, pp. 622, 623, §§ 6, 7, effective July 1. L. 87: (3.5) added, p. 606, § 11, effective April 16. L. 88: (3.5) amended, p. 664, § 4, effective July 1. L. 92: (6) amended and (7) added, p. 402, § 13, effective June 3. L. 94: (6)(a) amended, p. 1716, § 4, effective July 1. L. 99: (6)(a) amended, p. 404, § 7, effective July 1.
RECENT ANNOTATIONS
Absent the defendant's consent, a trial court may grant the prosecution a continuance with a tolling of the speedy trial period for up to six months if the prosecution establishes that, (1) as a result of a public health crisis, evidence material to its case is unavailable; (2) it has exercised due diligence to obtain that evidence; and (3) there are reasonable grounds to believe that the unavailable evidence will be available on the new trial date. People v. Lucy, 2020 CO 68, 467 P.3d 332.
Speedy trial right violated and defendant's case dismissed with prejudice when neither the prosecution nor the district court sought to commence trial within six months of the issuance of the appellate court mandate, and the delay was not properly attributable to the defendant. People v. DeGreat, 2020 CO 25, 461 P.3d 11.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For note, "Right of a Federal Prisoner to a Speedy Trial on a State Charge", see 12 Rocky Mt. L. Rev. 214 (1940). For article, "One Year Review of Criminal Law and Procedure", see 39 Dicta 81 (1962). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses cases relating to speedy trials, see 15 Colo. Law. 1595 and 1617 (1986). For article, "Justice Delayed is Justice Denied", see 21 Colo. Law. 2195 (1992). For article, "The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado--Part I", see 31 Colo. Law. 115 (July 2002). For article, "The Ins and Outs, Stops and Starts of Speedy Trial Rights in Colorado--Part II", see 31 Colo. Law. 59 (Aug. 2002).
Annotator's note. (1) For other annotations concerning speedy trials, see § 16 of art. II, Colo. Const., and Crim. P. 48.
(2) Since § 18-1-405 is similar to former § 39-7-12, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Purpose of section. It is not the purpose of this section to enable the guilty to escape, but to prevent unnecessary delays on the part of the prosecution. This section was intended to give effect to that provision of our bill of rights which guarantees one accused of a criminal offense a speedy trial. Henwood v. People, 57 Colo. 544, 143 P. 373 (1914).
This section is not concerned with the crime, nor with the punishment therefor, but is intended to prevent any unreasonable detention of an accused preliminary to his trial. The accomplishment of this purpose does not require final action on the criminal charge. People v. Henwood, 65 Colo. 566, 179 P. 874 (1919).
The fundamental right of an accused to a speedy trial arises from § 16 of art. II, Colo. Const. This section must be regarded as having been enacted for the purpose of rendering the constitutional guaranty effective and providing a method of securing the right declared. Ex parte Schechtel, 103 Colo. 77 , 82 P.2d 762 (1938), overruled on other grounds in Watson v. People, 700 P.2d 544 ( Colo. 1985 ).
This section is intended to implement the constitutional right to a speedy trial by requiring dismissal of the case whenever the defendant is not tried within the six-month period and the delay does not qualify for one of the express exclusionary categories set out in the statute. People v. Deason, 670 P.2d 792 ( Colo. 1983 ); People v. Marez, 916 P.2d 543 (Colo. App. 1995).
The obvious purpose of both the rule of criminal procedure and this section is to prevent dillydallying on the part of the district attorney or the court in a criminal proceeding. People v. Bates, 155 Colo. 277 , 394 P.2d 134 (1964).
The right to a speedy trial is not only for the benefit of the accused, but also for the protection of the public. It is essential that an early determination of guilt be made, so that the innocent may be exonerated and the guilty punished. Jaramillo v. District Court, 174 Colo. 561 , 484 P.2d 1219 (1971); People v. Martin, 732 P.2d 1210 ( Colo. 1987 ).
Intent of this section is to prevent unnecessary prosecutorial and judicial delays. People v. Cerrone, 867 P.2d 143 (Colo. App. 1993), aff'd on other grounds, 900 P.2d 45 ( Colo. 1995 ).
The speedy trial provisions are designed to foster more effective prisoner treatment and rehabilitation by eliminating, as expeditiously as possible, the uncertainties surrounding outstanding criminal charges. Simakis v. District Court, 194 Colo. 436 , 577 P.2d 3 (1978).
An accused person's right to a speedy trial is ultimately grounded on the federal and state constitutions, and statutes relating to speedy trial are intended to render these constitutional guarantees more effective. Simakis v. District Court, 194 Colo. 436 , 577 P.2d 3 (1978).
The right of an accused to a speedy trial is an important civil right, and when the constitutional mandate is invoked the matter should receive careful consideration by the courts. Ex parte Russo, 104 Colo. 91 , 88 P.2d 953 (1939).
Section guarantees speedy trial. Under this section and under § 16 of art. II, Colo. Const., a defendant in a criminal action is entitled to a speedy trial, and, generally speaking, he may not be held without trial for a period beyond that fixed by law. Ex parte Schechtel, 103 Colo. 77 , 82 P.2d 762 (1938).
It does not limit the constitutional right of an accused person to have a speedy public trial. Hicks v. People, 148 Colo. 26 , 364 P.2d 877 (1961).
Trial in violation of defendant's speedy trial rights not permitted. A court would be proceeding without jurisdiction if it was to try a criminal defendant in violation of his rights under the Colorado speedy trial statute and the rules of the Colorado supreme court. Hampton v. District Court, 199 Colo. 104 , 605 P.2d 54 (1980).
Court's practice of postponing arraignment until all pretrial matters are concluded thwarts purpose of this section and Crim. P. 48(b). People v. Chavez, 779 P.2d 375 (Colo. 1989).
Period during which a defendant first was charged counts in assessing a contention by defendant that he was denied his constitutional right to a speedy trial when the state filed charges against him, later sought and obtained dismissal of the charges, and still later refiled the charges. People v. Nelson, 2014 COA 165 , 360 P.3d 175.
Meaning of subsection (1). The phrase "brought to trial on the issues raised by the . . . information", as used in this section, refers to a trial which resolves the ultimate guilt or innocence of the accused as to the charges filed against him and not a sanity trial, even when the defendant pleads not guilty by reason of insanity. People v. Deason, 670 P.2d 792 (Colo. 1983).
Subsection (2) is ambiguous because it is silent on the remedy if a new trial does not occur within six months. In order to effectuate the intent of the statute, the dismissal remedy from subsection (1) must be imported into subsection (2). In addition, it is necessary to import the provisions of subsection (6) into subsection (2) in order to avoid an absurd result. People v. Mosley, 397 P.3d 1122 (Colo. App. 2011), aff'd on other grounds, 2017 CO 20, 392 P.3d 1198.
An accused is "brought to trial" when the court calls the case for trial and the attorneys are ready to proceed. People v. Peltz, 697 P.2d 766 (Colo. App. 1984), aff'd, 728 P.2d 1271 ( Colo. 1986 ).
Commencement of a sanity trial is not the functional equivalent of a trial on the merits for purposes of satisfying the state's speedy trial obligation. People v. Deason, 670 P.2d 792 (Colo. 1983).
Section applies in juvenile proceedings. Trial courts are bound by the statutory and constitutional speedy trial requirements in juvenile as well as adult proceedings; fundamental fairness requires no less. P.V. v. District Court, 199 Colo. 357 , 609 P.2d 110 (1980); People in Interest of T.F.B., 199 Colo. 474 , 610 P.2d 501 (1980).
Burden of compliance with time requirements is on prosecution and trial court. People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978); Marquez v. District Court, 200 Colo. 55 , 613 P.2d 1302 (1980).
If trial court fails to cause such record to be made, dismissal of charges is required, even after jury has returned verdict of guilty. People v. Scales, 745 P.2d 259 (Colo. App. 1987), rev'd on other grounds, 763 P.2d 1045 ( Colo. 1988 ).
It is duty of both prosecutor and trial judge to secure and protect defendant's right to speedy trial. People v. Chavez, 779 P.2d 375 ( Colo. 1989 ); Fisher v. County Court, 796 P.2d 65 (Colo. App. 1990).
Even where defendant moves for change of venue. Where the defendant successfully moved for a change of venue, and the case was delayed because the trial judge did not designate a new venue and set a date or trial, such delay is attributable to the state since it is the responsibility of the district attorney and the trial court to cause the case to be brought to trial within the prescribed time limits. People v. Colantonio, 196 Colo. 242 , 583 P.2d 919 (1978).
Burden of compliance with speedy trial statute includes making a record sufficient for an appellate court to determine statutory compliance. Marquez v. District Court, 200 Colo. 55 , 613 P.2d 1302 (1980).
The constitutional right to a speedy trial derived from the federal and Colorado constitutions, is distinct from the statutory speedy trial right and the determination as to one does not necessarily dispose of the other. People v. Harris, 914 P.2d 425 (Colo. App. 1995).
This statutory language is mandatory and leaves no room for court discretion. Its preface confines exceptions only to those delineated in the statute. Carr v. District Court, 190 Colo. 125 , 543 P.2d 1253 (1975).
The language of this section is mandatory and leaves no discretion for a court to fashion exceptions to the six-month rule apart from those delineated in the statute. Harrington v. District Court, 192 Colo. 351 , 559 P.2d 225 (1977).
The language of this section is mandatory unless the period of delay fits within or can be inferred from one of its exclusionary provisions. People v. Martin, 732 P.2d 1210 (Colo. 1987).
If defendant is not tried within six months of entering plea of not guilty, and defendant has not waived speedy trial rights and no extensions or exclusions are allowable, charges must be dismissed. Tongish v. Arapahoe County Court, 775 P.2d 63 (Colo. App. 1989).
If no statutory exception or constitutional right justifies a delay and the defendant has taken no action to either cause or consent to a delay, noncompliance with the speedy trial requirements of this section must result in dismissal of the charges against the defendant. People v. Arledge, 938 P.2d 160 (Colo. 1997).
This section and Crim. P. 48(b) clarify and simplify the parameters of the constitutional right to a speedy trial. Carr v. District Court, 190 Colo. 125 , 543 P.2d 1253 (1975); People v. Cisneros, 193 Colo. 141 , 563 P.2d 355 (1977); People v. Chavez, 779 P.2d 375 ( Colo. 1989 ).
This section and Crim. P. 48(b) were designed to render the federal and state constitutional rights to a speedy trial more effective. Sweet v. Myers, 200 Colo. 50 , 612 P.2d 75 (1980); People v. Sanchez, 649 P.2d 1049 ( Colo. 1982 ).
Crim. P. 48(b) was designed to substantially conform to this section. Carr v. District Court, 190 Colo. 125 , 543 P.2d 1253 (1975).
Since Crim. P. 48(b) is the procedural counterpart to the speedy trial statute and is virtually identical to this section, the resolution of a speedy trial issue is the same whether the analysis proceeds from the statute or the rule. People v. Deason, 670 P.2d 792 (Colo. 1983).
Effect of Crim. P. 48(b). Trial within the time period prescribed by Crim. P. 48(b) does not preclude raising the defendant's right to a speedy public trial as embodied in § 16 of art. II, Colo. Const. Casias v. People, 160 Colo. 152 , 415 P.2d 344 (1966).
For the applicability of Crim. P. 48(b), see Rhodus v. People, 160 Colo. 407 , 418 P.2d 42 (1966); Ferguson v. People, 160 Colo. 389 , 417 P.2d 768 (1966); Lucero v. People, 161 Colo. 568 , 423 P.2d 577 (1967); Maes v. People, 169 Colo. 200 , 454 P.2d 792 (1969); Lucero v. People, 173 Colo. 94 , 476 P.2d 257 (1970).
Right to a speedy trial has been formulated to force the prosecution to try a defendant promptly in compliance with the statutes, rules, and constitutional requirements of each case. People ex rel. Coca v. District Court, 187 Colo. 280 , 530 P.2d 958 (1975).
Right to speedy trial attaches with filing of a formal charge. People v. Chavez, 779 P.2d 375 (Colo. 1989).
Where determination that delays in bringing defendant to trial involved resolutions of fact questions, the district attorney could not appeal such determinations. People v. Murphy, 183 Colo. 106 , 515 P.2d 107 (1973).
Section parallels C.M.C.R. 248(b). This section, also enacted as Crim. P. 48(b), is the parallel rule to C.M.C.R. 248(b). Bachicha v. Municipal Court, 41 Colo. App. 198, 581 P.2d 746 (1978).
Subsection (5.1) does not apply to acts committed before July 1, 1985, but which continue thereafter. People v. Newton, 764 P.2d 1182 (Colo. 1988).
This section, and not the Uniform Mandatory Disposition of Detainers Act (UMDDA), §§ 16-14-101 to 16-14-108, applies to the retrial of charges on convictions overturned on appeal. The UMDDA applies only to untried charges, and the charges against this defendant, while still pending, were not untried. People v. Campbell, 885 P.2d 327 (Colo. App. 1994).
Applied in People v. Flowers, 190 Colo. 453 , 548 P.2d 918 (1976); People v. Reliford, 39 Colo. App. 474, 568 P.2d 496 (1977); People v. Trujillo, 41 Colo. App. 223, 586 P.2d 235 (1978); People v. Gonzales, 198 Colo. 546 , 603 P.2d 139 (1979); People v. Peek, 199 Colo. 3 , 604 P.2d 23 (1979); People v. Boos, 199 Colo. 15 , 604 P.2d 272 (1979); People ex rel. Freed v. County Court, 42 Colo. App. 272, 592 P.2d 1355 (1979); People v. Williams, 628 P.2d 1011 ( Colo. 1981 ); People v. Small, 631 P.2d 148 ( Colo. 1981 ); People v. Jones, 631 P.2d 1132 (Colo. 1981); People v. Mann, 646 P.2d 352 ( Colo. 1982 ); People in Interest of D.M., 650 P.2d 1350 (Colo. App. 1982); People v. Olds, 656 P.2d 705 ( Colo. 1983 ); People v. Ashton, 661 P.2d 291 (Colo. App. 1982); People v. Harding, 671 P.2d 975 (Colo. App. 1983); People v. Jones, 677 P.2d 383 (Colo. App. 1983); Snyder v. Moss, 703 P.2d 1311 (Colo. App. 1985); People v. Mascarenas, 706 P.2d 404 ( Colo. 1985 ); People v. Goodpaster, 742 P.2d 965 (Colo. App. 1987).
II. SCOPE OF RIGHT TO SPEEDY TRIAL.
Incarceration of defendant outside state did not make him unavailable for purposes of speedy trial considerations, unless the prosecution can show that despite diligent efforts defendant's presence could not be secured. Watson v. People, 700 P.2d 544 ( Colo. 1985 ); People v. Byrne, 762 P.2d 674 ( Colo. 1988 ).
Diligent efforts found lacking. See People v. Byrne, 762 P.2d 674 (Colo. 1988).
Trial within required period not preclusion of assertion of right. A defendant is not precluded from asserting his constitutional right to a speedy trial simply because the trial was held within the required statutory period; the defendant, however, has the burden of proving that his constitutional speedy trial right has been denied. Gelfand v. People, 196 Colo. 487 , 586 P.2d 1331 (1978).
A defendant is entitled to be tried within six months of the entry of a plea of not guilty. People v. Slender Wrap, Inc., 36 Colo. App. 11, 536 P.2d 850 (1975).
Speedy trial is calculated separately for each criminal complaint. When charges in a complaint are properly dismissed within the speedy trial period without prejudice, they are a nullity. If defendant is arraigned under new charges, even if they are identical to the dismissed charges, the speedy trial period begins anew. Huang v. County Court of Douglas County, 98 P.3d 924 (Colo. App. 2003).
When charges are dismissed without prejudice within the speedy trial period and defendant is later charged with the same or similar counts, the speedy trial clock begins anew unless the district attorney dismissed the charges and refiled them to avoid a speedy trial violation. People v. Walker, 252 P.3d 551 (Colo. App. 2011); People v. Nelson, 2014 COA 165 , 360 P.3d 175.
When the court dismissed the original charges against defendant when victim did not show up for trial within the speedy trial period against the wishes of the prosecution and defendant did not object, there is no basis to claim district attorney sought dismissal of the original charges to avoid a speedy trial violation. People v. Walker, 252 P.3d 551 (Colo. App. 2011).
Court and prosecutor's joint responsibility to avoid useless delays. It is the joint responsibility of the district attorney and the trial court to assiduously avoid any occasion for a useless and unnecessary delay in the trial of a criminal case. People v. Murphy, 183 Colo. 106 , 515 P.2d 107 (1973).
Ad hoc balancing test used to determine whether right to speedy trial has been denied. People v. Spencer, 182 Colo. 189 , 512 P.2d 260 (1973); People v. Chavez, 779 P.2d 375 ( Colo. 1989 ).
The test includes four factors: The length of the delay, the reason for the delay, the defendant's assertion or demand for a speedy trial, and the prejudice to the defendant. People v. Spencer, 182 Colo. 189 , 512 P.2d 260 (1973); People v. Chavez, 779 P.2d 375 ( Colo. 1989 ); People v. Fears, 962 P.2d 272 (Colo. App. 1997).
Statutory speedy trial period held to exclude period of time reasonably necessary to reset the case for trial after issuance of remittitur following appeal of case on constitutional grounds. People in Interest of N.P., 768 P.2d 707 (Colo. 1989) (decided under law in effect prior to 1985 amendment).
Speedy trial statute tolled with regard to all counts of the charging document when the people file an original proceeding seeking reinstatement of one or more counts of a multi-count charging document. People v. Beyette, 711 P.2d 1263 (Colo. 1986).
Time taken to complete appeal is excluded from six-month speedy trial period, but only the time of defendant's absence and a reasonable time to reschedule the hearing may be excluded. People ex rel. Gallagher v. District Court, 933 P.2d 583 (Colo. 1997).
The six-month speedy trial period for commencing a new trial after initial conviction was reversed on appeal was tolled while defendant's C.A.R. 21 proceeding was being considered by the supreme court; therefore, the period of delay caused by the C.A.R. 21 proceeding is excluded from the six-month speedy trial period. People v. Powell, 917 P.2d 298 (Colo. App. 1995).
Appeal of trial court's ruling that death penalty statute was unconstitutional, although not technically "interlocutory," was not improperly filed and ultimately was accepted and decided by the Colorado supreme court pursuant to C.A.R. 21. Therefore, speedy trial period was tolled during the pendency of the appeal. People v. Fears, 962 P.2d 272 (Colo. App. 1997).
The speedy trial exclusions in subsection (6) apply to a subsection (2) retrial. The basic right to a speedy trial is established in subsection (1) and the rest of the subsections implement or clarify that right. Subsection (2) does not establish the right to a speedy trial in a retrial: It merely identifies the triggering event that starts the six-month clock. The exclusions in subsection (6) apply to both a new trial and retrial. Mosley v. People, 2017 CO 20, 392 P.3d 1198; Delacruz v. People, 2017 CO 21, 393 P.3d 480.
Stay of proceedings pending appeal is one means, but not the exclusive means, for tolling of the speedy trial period to occur. People v. Fears, 962 P.2d 272 (Colo. App. 1997).
Right guaranteed although defendant is out on bail or parole. Under former provision, the lapse of the prescribed time after the issuance of a capias and arrest of the defendant without an application to postpone or delay the trial entitles him to his discharge, notwithstanding the fact that he has been out on bail. Van Buren v. People, 7 Colo. App. 136, 42 P. 599 (1895).
The fact that the accused during almost the whole time of the delay was at large upon bail does not divest him of his right to the speedy trial guaranteed by the constitution and the provisions of this section. Ex parte Miller, 66 Colo. 261, 180 P. 749 (1919).
The parole status of a federal prisoner is without effect on the conduct of officials charged with the prosecution of an indictment against the prisoner for the violation of a state law. Ex parte Schechtel, 103 Colo. 77 , 82 P.2d 762 (1938), overruled in Watson v. People, 700 P.2d 544 ( Colo. 1985 ).
The fact that defendant was at large under bond manifestly does not divest him of the right to that speedy trial which is guaranteed by § 16 of art. II, Colo. Const. Hicks v. People, 148 Colo. 26 , 364 P.2d 877 (1961).
The right to a speedy trial is not dissipated by the fact that the defendant is granted bail. Jaramillo v. District Court, 174 Colo. 561 , 484 P.2d 1219 (1971).
Section cannot be invoked where defendant has not been apprehended. One charged with a criminal offense may not invoke the provisions of this section concerning speedy trials where he has not been apprehended, and committed for trial. Ex parte Russo, 104 Colo. 91 , 88 P.2d 953 (1939).
Or where delay caused by defendant. One charged with a criminal offense may not successfully invoke his right to a speedy trial where the delay of which he complains was occasioned by his avoidance of arrest, it appearing that the prosecution proceeded reasonably as to time after defendant was apprehended. Ex parte Russo, 104 Colo. 91 , 88 P.2d 953 (1939).
A person is not entitled to be discharged if he requested a postponement of his trial or otherwise caused the delay. People v. Bates, 155 Colo. 277 , 394 P.2d 134 (1964).
The record does not disclose that defendant was in anywise denied the speedy public trial guaranteed him by the constitution where at least certain delays in getting to trial were of his own making. Lucero v. People, 161 Colo. 568 , 423 P.2d 577 (1967).
Both § 18-1-405 and Crim. P. 48 exclude delay which is caused by, agreed to, or created at the instance of the defendant. Saiz v. District Court, 189 Colo. 555 , 542 P.2d 1293 (1975).
Because sufficient time for trial preparation is a necessary requirement for the effective assistance of counsel, and the substitution of counsel was made at the instance of defendant, continuing the trial date outside the speedy trial deadline was not a violation of his statutory right to a speedy trial. People v. Brewster, 240 P.3d 291 (Colo. App. 2009).
In the absence of a showing of bad faith on the part of the prosecutor in endorsing a witness on the day of the trial, the delay resulting from the defendant's tactical decision to seek a continuance as a result of the late endorsement is chargeable to her. People v. Steele, 193 Colo. 187 , 563 P.2d 6 (1977).
Both competency examinations requested by defense counsel for the benefit of the defendant and scheduling delays to accommodate defense counsel are attributable to the defendant. Jones v. People, 711 P.2d 1270 (Colo. 1986).
Where defendant held in another jurisdiction pending extradition to a foreign state makes no effort to disclose his whereabouts to prosecuting authorities in a county in which charges are pending against him, and where such authorities are unaware of the pending extradition proceedings, the period of delay until the defendant returns to the state is attributable to the defendant and must be excluded from the applicable six-month speedy trial period. People v. Moye, 635 P.2d 194 (Colo. 1981).
When a defendant fails to make a scheduled bond appearance before the trial court, the six-month speedy trial period is tolled until he makes himself available to the court, even where some of the time he is unavailable due to being incarcerated in another jurisdiction. People v. Moye, 635 P.2d 194 (Colo. 1981).
The provisions of this section cannot be used to the advantage of a defendant who violates his bond, fails to appear at the trial, and absconds from the state. People v. Martin, 732 P.2d 1210 (Colo. 1987).
Six-month period was tolled during period of time that defendant was being processed in federal system, at which time defendant was unable to appear on scheduled trial date in state trial; defendant's failure to appear for trial on the state charges could only be attributed to defendant and, therefore, constituted a waiver of his right to speedy trial. People v. Marquez, 739 P.2d 917 (Colo. App. 1987).
Defendant's speedy trial time was tolled by his voluntary request for speedy disposition of detainer filed against him by authorities in another state, and by his subsequent removal to that state, where defendant's actions precluded Colorado authorities from objecting to his removal. People v. Yellen, 739 P.2d 1384 ( Colo. 1987 ).
Subsection (6) includes any delays agreed to by defendant or requested by his attorney. Scheduling delays to accommodate defense counsel are attributable to the defendant. People v. Hamer, 689 P.2d 1147 (Colo. App. 1984); People v. Marez, 916 P.2d 543 (Colo. App. 1995).
Defendant's speedy trial rights were not violated when, in response to the testimony of defendant's mental health expert during a suppression hearing that defendant's statements were involuntary because of a mental disorder, prosecution requested, and was granted, three month continuance in order to arrange for expert testimony and analyze the alleged mental disorder. People v. Whalin, 885 P.2d 293 (Colo. App. 1994).
The time necessary to determine the people's appeal after the trial court granted the defendant's motion to dismiss certain charges was chargeable to the defendant and therefore excluded from the speedy trial computations. People v. Warner, 930 P.2d 564 (Colo. 1996).
A motion by the defendant's attorney for a continuance, made in open court with the consent of the defendant, is a request for a continuance, governed by subsection (3), rather than a mere delay, governed by subsection (6). In the absence of a showing of bad faith on the part of the prosecution in the late disclosure of evidence bearing on the credibility of one of its prospective witnesses, the legal consequence of defense counsel's request for a continuance was to extend the period within which the trial could be commenced for an additional six months from the date of the continuance. People v. Duncan, 31 P.3d 874 (Colo. 2001).
Delay caused by briefing and determining defendant's motion to dismiss properly charged to defendant. Williamsen v. People, 735 P.2d 176 (Colo. 1987).
Delay due to substitution of counsel. Continuances made necessary because of the substitution of counsel may, depending upon the particular circumstances of the case, be chargeable to the defendant. People v. Scales, 763 P.2d 1045 (Colo. 1988).
Substitution was appropriate when caused by defendant's refusal to cooperate with defense attorney and continuance resulting therefrom was properly charged to the defendant. People v. Scales, 763 P.2d 1045 (Colo. 1988).
Trial court's ruling, which disqualified defendant's former attorneys for ethical conflict and which caused need for continuance so that new attorney could prepare, did not deprive defendant of speedy trial rights, where defendant agreed to continuance. People v. Lewis, 739 P.2d 861 (Colo. App. 1987); People v. Monroe, 907 P.2d 690 (Colo. App. 1995).
Determination that delay was caused by substitution of counsel not supported by record and not properly chargeable to defendant. Defendant's actions did not require a substitution of counsel, he was not counseled by the court on a need for a continuance and he expressed no understanding of such a need, and the court did not attempt to find other counsel who could meet the deadline. People ex rel. Gallagher v. District Court, 933 P.2d 583 (Colo. 1997).
Substitution may cause defendant to be tried after speedy trial date. Delay may be charged to defendant if court finds the defendant will not receive effective assistance of counsel without a postponement. People ex rel. Gallagher v. District Court, 933 P.2d 583 ( Colo. 1997 ); People v. Roberts, 2013 COA 50 , 321 P.3d 581.
Continuance to allow third attorney to prepare for trial was properly chargeable to defendant where defendant had engaged in a pattern of noncooperation with his attorneys and failure to continue the trial date would have given the defendant a claim of ineffective assistance of counsel. The fact that the trial court delayed in appointing the third attorney due to a competency evaluation of the defendant in another case did not change this result. People v. Rocha, 872 P.2d 1285 (Colo. App. 1993).
Where defendant requested a continuance because of the unavailability of his fingerprint expert, the delay was attributable to the defendant and it does not make the granting of an earlier continuance an abuse of discretion. People v. Madsen, 743 P.2d 437 (Colo. App. 1987).
Charges not dismissed where defendant's expressed understanding of computation of time period differs from statute. Where defendant's expressed understanding was that the six-month period of the speedy trial statute would commence to run at the end of defendant's continuance, the failure to try defendant within six months of the granting of the continuance does not entitle him to dismissal of charges. Baca v. District Court, 198 Colo. 486 , 603 P.2d 940 (1979).
Delays analyzed to ascertain what part due to defendant. In computing the time chargeable to a defendant in connection with speedy trial determinations, any prolonged lapse of time which causes a trial date to be extended should be carefully analyzed by the trial court to ascertain what part, if any, was due to delays at the request of or for the benefit of the defendant, and the time involved in such delays is properly chargeable to a defendant. People v. Murphy, 183 Colo. 106 , 515 P.2d 107 (1973).
Period of delay was excluded from the speedy trial period under the provisions of subsection (6)(c). The trial court did not abuse its discretion in refusing to grant a severance, therefore the continuance granted to the codefendant was chargeable to the defendant, and the defendant was not denied his right to a speedy trial. People v. Backus, 952 P.2d 846 (Colo. App. 1998); People v. Reynolds, 159 P.3d 684 (Colo. App. 2006).
Defendants' delay in asserting their right to a speedy trial is entitled to strong evidentiary weight in determining whether the defendants were denied their constitutional right to a speedy trial. People v. Spencer, 182 Colo. 189 , 512 P.2d 260 (1973).
Delay caused by extradition attributable to prosecution. Delay initiated by the issuance of the governor's arrest warrant and subsequent extradition to another state is attributable to the people. People v. Wimer, 43 Colo. App. 237, 604 P.2d 1183 (1979).
Delay caused by defendant's waiver of extradition not attributable to defendant. Delay in bringing defendant to trial which is caused by defendant's waiver of extradition to another state is not attributable to the defendant within the meaning of this section. People v. Wimer, 43 Colo. App. 237, 604 P.2d 1183 (1979).
Motion for continuance of arraignment date containing waiver. Where petitioner moved to continue his arraignment date and his written motion contained a statement to the effect that "the Defendant waives his right to a speedy trial", this statement was intended only as a waiver of the right to challenge any speedy trial violation caused by the request for a continuance of the arraignment date and was not effective with respect to any subsequently occurring statutory speedy trial violation. Sweet v. Myers, 200 Colo. 50 , 612 P.2d 75 (1980).
Section not invoked where grant of new trial extends original limitation. Where defendant's first trial was completed before the expiration of the period fixed by statute, and a new trial was thereafter granted, the new trial may be set beyond such period. Ferguson v. People, 160 Colo. 389 , 417 P.2d 768 (1966).
Or where defendant moves for separate trial. Where a trial is not had as required by this section, but practically every continuance is made with the express consent of a defendant's counsel, and where a defendant moves for a separate trial, such motion being filed, heard and denied after the expiration of such period, the defendant cannot avail himself of the benefits of the statute. Gallegos v. People, 139 Colo. 166 , 337 P.2d 961 (1959), overruled in Villafranca v. People, 194 Colo. 472 , 573 P.2d 540 (1978).
Or where delay caused by detention by another sovereign power. The constitutional right of one charged with the commission of a crime to a speedy trial is not violated by failure of the state to put him on trial while he is in the custody of the United States serving a sentence for violation of federal laws, and in such circumstances there is no obligation imposed upon the prosecuting authorities of the state to apply to the federal government for a return of such prisoner to the state for trial on the state charge. Ex parte Schechtel, 103 Colo. 77 , 82 P.2d 762 (1938), overruled in Watson v. People, 700 P.2d 544 ( Colo. 1985 ).
But not where defendant is incarcerated by same sovereign. A sovereign may not deny an accused person a speedy trial in a court also of that sovereign by reason of the circumstance that the accused is incarcerated in a penal institution of that sovereign under a prior conviction and sentence of that sovereign. Rader v. People, 138 Colo. 397 , 334 P.2d 437 (1959).
Prosecutor had duty to obtain defendant's presence. Where the district attorney was aware that the defendant was being held in custody in another county concerning a different charge, the district attorney had the burden of obtaining the presence of the defendant and delay due to defendant's absence is not chargeable to defendant for purposes of computing speedy trial requirements. People v. Murphy, 183 Colo. 106 , 515 P.2d 107 (1973).
Chronic trial congestion does not excuse the respondents' failure to bring petitioners to trial within the six-month time limit imposed by this section. Carr v. District Court, 190 Colo. 125 , 543 P.2d 1253 (1975).
Docket congestion merely factor to consider. Although it is clear that docket congestion would not warrant a retrial later than the three-month maximum period for delay caused by a mistrial, it is a factor in determining the reasonableness of the delay within the statutory and procedural time periods of subsection (6)(e) and Crim. P. 48(b)(6)(V). Pinelli v. District Court, 197 Colo. 555 , 595 P.2d 225 (1979).
Delay due to congested docket not caused by defendant. Neither the trial court's decision to conduct a hearing, nor the court's congested docket when the hearing date arrived, produce delays that were "caused at the instance of the defendant." People v. Bell, 669 P.2d 1381 (Colo. 1983).
When a trial court continues a case due to docket congestion, but makes a reasonable effort to reschedule within the speedy trial period, and defense counsel's scheduling conflict does not permit a new date within the speedy trial deadline, the resulting delay is attributable to defendant. The period of delay is excludable from time calculations for purposes of the applicable speedy trial provision. Hills v. Westminster Mun. Court, 245 P.3d 947 (Colo. 2011).
When the defendant pleads "not guilty by reason of insanity" and is thus entitled to a separate trial on the sanity issue, he must be brought to trial on that issue within six months from the date of entry of the plea or defendant's last continuance under subsection (3). People v. Haines, 37 Colo. App. 302, 549 P.2d 786 (1976).
Once the sanity trial is ended and the defendant is found to be sane, he must then be brought to trial on the other issues of the crime charged within the statutory six months from the judgment in the sanity trial. People v. Haines, 37 Colo. App. 302, 549 P.2d 786 (1976).
Period from time of commitment until filing of final psychiatric report excludable. When a defendant pleads not guilty by reason of insanity, the period from the time of commitment until the filing of the final psychiatric report, if filed within a reasonable time, is excludable for purposes of the six-month period. People v. Renfrow, 193 Colo. 131 , 564 P.2d 411 (1977).
Commitment to institution not necessary for exclusion of time for psychiatric reports. The defendant need not be committed to an institution for examination before a reasonable time can be excluded from the speedy trial computation for filing of psychiatric reports. People v. Brown, 44 Colo. App. 397, 622 P.2d 573 (1980).
Defendant confined to mental institution. When a defendant is confined to a mental institution or hospital for observation or examination prior to a determination of mental competency, he cannot complain of a denial of his constitutional right to a speedy trial because of the delay occasioned by that confinement. People v. Jones, 677 P.2d 383 (Colo. App. 1983), aff'd in part and rev'd in part on other grounds, 711 P.2d 1270 ( Colo. 1986 ).
For an example of the computation of six-month period where defendant pleads not guilty by reason of insanity, see Sanchez v. District Court, 200 Colo. 33 , 612 P.2d 519 (1980).
Exclusions from six-month period. Subsection (6)(a) excludes from the six-month term in which a trial must commence only that period of delay required for the sanity examination and the filing of a timely report with the court. People v. Deason, 670 P.2d 792 (Colo. 1983).
The period excluded from speedy trial computation under subsection (6) does not end upon the filing of a report that a defendant is competent to proceed, but rather when the court makes a determination that the defendant is restored to competency. People v. Harris, 914 P.2d 425 (Colo. App. 1995).
This section mandates exclusion from a defendant's speedy trial computation of any period during which he or she was actually being examined for competency, without regard for the necessity or propriety of the court's order requiring such an examination. Nagi v. People, 2017 CO 12, 389 P.3d 875.
Defendants not denied right. Where the record reflects that the defendants made no demand for a speedy trial until 14 months expired and showed no prejudice as a result of the delay and that the delay occurred to permit the defendants to obtain expert testimony and prepare for trial, and moreover, the defendants were free on bond at all times prior to trial, the defendants were not denied their constitutional right to a speedy trial. People v. Spencer, 182 Colo. 189 , 512 P.2d 260 (1973).
Because criminal proceedings are suspended during the entire time a defendant is incompetent and may not resume until a judicial determination is made that the defendant has been restored to competency, there is no basis upon which to find that the period in which a defendant is "incompetent" under subsection (6) ends in any manner other than in accord with the procedures of the former § 16-8-113. People v. Harris, 914 P.2d 425 (Colo. App. 1995).
Court retains jurisdiction to correct erroneous judgment. In a criminal proceeding where the trial court has jurisdiction of the person of the defendant and of the subject matter and has entered an erroneous judgment, such court retains jurisdiction to correct, modify, or alter such erroneous judgment notwithstanding expiration of the term of court at which the erroneous judgment was pronounced. Under former provision, the fact that there had been a considerable lapse of time and that many terms of court had intervened was held to be immaterial. Villalon v. People, 145 Colo. 327 , 358 P.2d 1018 (1961).
For the effect of refiling of information as result of change in circumstances, see Schiffner v. People, 173 Colo. 123 , 476 P.2d 756 (1970).
Delay chargeable to defendant. In computing the time within which a defendant must be brought to trial, in order for the delay to be charged to the defendant, it must be attributable to affirmative action on defendant's part, or to defendant's express consent to the delay, or to other affirmative conduct evidencing such consent. Tasset v. Yeager, 195 Colo. 190 , 576 P.2d 558 (1978).
Any delays resulting from a defendant's attempt to meet the conditions of a plea bargain, such as the time allocable to defendant's efforts to qualify for a deferred judgment, should be charged to the defendant. People v. Luevano, 670 P.2d 1 (Colo. 1983).
Defendant's attempt to effect plea bargain by applying for probation attributable to defendant and tolls running of speedy trial period under subsection (6)(f). People v. Madsen, 707 P.2d 344 (Colo. 1985).
Delay not attributable to defendant where a continuance is granted to prosecution as a sanction against the defense for his failure to disclose any defenses other than his not guilty plea, and for his failure to identify his intent to cross-examine the prosecution's witnesses. People v. Castro, 835 P.2d 561 (Colo. App. 1992).
Or where trial judge instituted reconsideration of a recusal motion, previously denied, and judge recused himself three days prior to trial. At this point, the judge could not require the defendant to waive speedy trial and no part of the subsequent delay was chargeable to the defendant. People v. Arledge, 938 P.2d 160 (Colo. 1997).
Key to interpreting subsection (6)(f) is to determine whether the defendant caused the delay. If the delay is caused by, agreed to, or created at the instance of the defendant, it will be excluded from the speedy-trial calculation made by the court. People v. Bell, 669 P.2d 1381 (Colo. 1983).
"Material evidence" for purposes of subsection (6)(g)(I) means evidence that has a logical connection with consequential facts. The prosecution has the burden of proving the evidence is material. In order to satisfy that burden, the prosecution must provide the court with enough specificity and information on the record to show that the unavailable evidence is material to the prosecution's case. The court had sufficient information to exercise its independent judgment to determine that the evidence was material. People v. Roberts, 146 P.3d 589 (Colo. 2006).
No evidence of a lack of due diligence under subsection (6)(g)(I) where prosecution had prior knowledge of the victim's pregnancy and did not obtain a subpoena. The prosecution asserted to the trial court that, when the trial was originally scheduled, it was anticipated that the victim would have delivered her baby and been available for trial. The trial court did not abuse its discretion in finding that the extension of the victim's pregnancy beyond her original expected due date was the cause of her nonappearance. People v. Scialabba, 55 P.3d 207 (Colo. App. 2002).
Appeal tolls speedy trial period. The period of time necessary to go through the appellate process, where the appeal stems from a dismissal upon the defendant's motion, tolls the statutory speedy trial period. People v. Jamerson, 198 Colo. 92 , 596 P.2d 764 (1979); People v. Daley, 97 P.3d 295 (Colo. App. 2004).
Delay caused by interlocutory appeal excluded. This section and Crim. P. 48 exclude from the computation of the time in which a defendant shall be brought to trial the period of delay caused by an interlocutory appeal. People v. Medina, 40 Colo. App. 490, 583 P.2d 293 (1978).
"Interlocutory appeal" construed. An original proceeding initiated in good faith by either the defense or the prosecution constitutes an "interlocutory appeal" for purposes of the speedy trial statute. People v. Ferguson, 653 P.2d 725 ( Colo. 1982 ); People v. Beyette, 711 P.2d 1263 ( Colo. 1986 ).
Prosecution's appeal from a new trial order must be characterized as interlocutory in nature, so as to toll the speedy trial period under subsection (6)(b), so long as the appeal is taken in good faith, is filed before the defendant is convicted, and is necessarily disruptive of the course of proceeding to a final resolution. People v. Gallegos, 946 P.2d 946 ( Colo. 1997 ); People v. Curren, 2014 COA 59 M, 348 P.3d 467.
Prosecution's appeal of a trial court's partial dismissal at a preliminary hearing of a multi-count information is an interlocutory appeal that tolls the running of the speedy trial period. People v. Gallegos, 946 P.2d 946 (Colo. 1997).
Prosecution's appeal of an order granting defendant a new trial was interlocutory in nature for purposes of tolling the speedy trial period under subsection (6)(b) even though it was also final in the sense contemplated under § 16-12-102 , and the speedy trial period was tolled during the prosecution's appeal. People v. Curren, 2014 COA 59 M, 348 P.3d 467.
Appeal of disqualification of district attorney did not have a substantial effect on prosecution's case where special prosecutor was appointed. As such, appeal of the disqualification was not an interlocutory appeal. People v. Witty, 36 P.3d 69 (Colo. App. 2000).
Even a second interlocutory appeal, if initiated in good faith, tolls the statute regardless of the fact that it is later dismissed. People v. Morgan, 681 P.2d 970, (Colo. App. 1984), cert. denied, 469 U.S. 881, 105 S. Ct. 248, 83 L. Ed. 2d 185 (1984).
New trial order pursuant to motion treated as reversal on appeal. A new trial order pursuant to a new trial motion is similar to a reversal on appeal for purposes of the speedy trial provisions. People v. Jamerson, 196 Colo. 63 , 580 P.2d 805 (1978); People v. Jamerson, 198 Colo. 92 , 596 P.2d 764 (1979).
Measurement of six-month period upon filing of amended complaint. When the prosecution files an amended complaint charging new material after the defendant's initial guilty plea, the period of time for dismissal under the speedy trial provisions is measured from the second guilty plea unless the prosecution has shown bad faith in amending the complaint. If the amended complaint does not charge new material, the time period is measured from the original guilty plea. Amon v. People, 198 Colo. 172 , 597 P.2d 569 (1979).
Period of delay caused by mistrial not includable. The computation of the six-month period allowed for in this section and Crim. P. 48(b)(1) shall not include any period of delay caused by a mistrial, and the extension provided following a mistrial is part of the period of delay caused thereby. Pinelli v. District Court, 197 Colo. 555 , 595 P.2d 225 (1979).
Three-month exclusion from period following mistrial. Subsection (6)(e) and Crim. P. 48(b)(6)(V) grant the prosecution a three-month exclusion in which to retry a case after a mistrial, provided that the delays are reasonable. People v. Pipkin, 655 P.2d 1360 ( Colo. 1982 ); Mason v. People, 932 P.2d 1377 ( Colo. 1997 ).
The general assembly intended to grant no more than three months as an exclusion from the speedy trial period, which is one-half of the statutory speedy trial period, following a mistrial. People v. Pipkin, 655 P.2d 1360 (Colo. 1982).
Mistrials due to prosecutor's actions not treated differently. Neither Crim. P. 48(b)(6)(V) nor subsection (6)(e) treats mistrials due to the prosecutor's actions differently than mistrials due to other reasons. People v. Erickson, 194 Colo. 557 , 574 P.2d 504 (1978).
Prosecutor must request additional time upon change of venue. When a change of venue is granted after arraignment, it is incumbent upon the prosecuting attorney to make a motion to obtain additional time to bring the defendant to trial because of the exceptional circumstances of the case. People v. Colantonio, 196 Colo. 242 , 583 P.2d 919 (1978).
District attorney's motion for continuance insufficient basis for justifying delay. Where the record indicated that the respondent court granted the district attorney's motion to continue the July 30, 1979, trial date solely on the basis of the district attorney's written motion which contained only the unsupported allegation that a material witness would be unavailable for trial on July 30, 1979, and there was no showing of due diligence or that the witness would be available at a later trial date, the delay between July 30, 1979, and November 1, 1979, was not properly excludable from the statutory speedy trial period under subsection (6)(g)(I), and where defendant had plead not guilty on April 20, 1979, the petitioner was entitled to a dismissal of the charges against him under subsection (1). Sweet v. Myers, 200 Colo. 50 , 612 P.2d 75 (1980).
There was sufficient evidence of a reasonable possibility that witness would be available to testify to justify granting the prosecution's request for a continuance to secure the witness's testimony. People v. Jompp, 2018 COA 128 , 440 P.3d 1166.
Habitual criminal charges not subject to statutory speedy trial deadline. Habitual charges are not offenses, but rather are sentence enhancers, and thus the statutory speedy trial six-month time limit does not apply. Section 18-1.3-803 (1) specifically requires the court to conduct a hearing on habitual charges as soon as practicable after the trial of the substantive offense, so the specific requirements of that statute control over the general speedy trial statute. People v. Green, 2012 COA 68 M, 296 P.3d 260.
Forfeiture action under Colorado public nuisance statute is civil in nature and therefore is not subject to constitutional or statutory speedy trial provisions applicable to criminal prosecutions. People v. Milton, 732 P.2d 1199 (Colo. 1987).
Where defendant is present when trial date is set and does not object to the setting of a trial date beyond the time required by statute, an extension of the statutory deadline to the date actually set for trial results. People v. Velarde, 790 P.2d 903 (Colo. App. 1989).
Defendant was not denied right to speedy trial where he was counseled at length by trial court and appeared to have understood the need for a continuance caused by substitution of counsel and where neither the prosecution nor the judiciary was responsible for the delay. People v. Cerrone, 867 P.2d 143 (Colo. App. 1993).
III. ENFORCEMENT OF RIGHT.
Defendant must enter a plea before he may take advantage of the restriction of this section and Crim. P. 48(b)(1). People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976).
Six-month limitation runs from date plea entered. The six-month limitation of both this section and Crim. P. 48(b)(1) runs from the date that defendant's plea is entered. People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976).
A defendant must be brought to trial within six months from the date of the entry of a plea of not guilty, except as otherwise provided by subsection (6)(a). Sanchez v. District Court, 200 Colo. 33 , 612 P.2d 519 (1980).
Rule that defendant must be brought to trial within six months from the date of the entry of a plea of not guilty equally applies where a defendant pleads not guilty by reason of insanity. Sanchez v. District Court, 200 Colo. 33 , 612 P.2d 519 (1980).
Computation of six-month time provision found in People v. Hampton, 696 P.2d 765 (Colo. 1985).
The special time limitations of § 24-60-501 prevail, when conflicts arise, over the more general criminal procedure provisions of this section and Crim. P. 48. Simakis v. District Court, 194 Colo. 436 , 577 P.2d 3 (1978).
UMDDA controls over general speedy trial provisions. The UMDDA is a special statute designed to foster more effective prisoner treatment and rehabilitation; thus, when there is a conflict with the general speedy trial provisions, § 16-14-101 et seq., this section, § 24-60-501 et seq., and Crim. P. 48, the provisions of the uniform act control. People v. Swazo, 199 Colo. 486 , 610 P.2d 1072 (1980).
Policies of this section same as §§ 16-14-101 to 16-14-108 . The policies underlying this section and Crim. P. 48 are the same as those relative to the UMDDA, §§ 16-14-101 to 16-14-108 . People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978).
The six-month period commences upon the arraignment for the last information. People v. Dunhill, 40 Colo. App. 137, 570 P.2d 1097 (1977); Meehan v. County Court, Jefferson Co., 762 P.2d 725 (Colo. App. 1988).
It is the shared responsibility of the trial court and the prosecution to schedule the suppression hearing for a date within the six-month speedy trial period so that, if the motion were granted, a new trial could commence within the six-month period. People v. Zedack, 93 P.3d 629 (Colo. App. 2004).
The length of delay "caused by any mistrial" must be calculated to include the days on which the aborted trial or trials were in progress. People v. Erickson, 194 Colo. 557 , 574 P.2d 504 (1978).
The entire period of delay caused by a mistrial is to be "excluded" from the computation of the time within which a defendant must be tried. People v. Thimmes, 643 P.2d 778 (Colo. App. 1981).
Delay excluded may be longer than period of absence. The excludable period of delay resulting from defendant's absence, may, in some cases, be longer than merely the period of defendant's absence. People v. Alward, 654 P.2d 327 (Colo. App. 1982), cert. dismissed, 677 P.2d 948 ( Colo. 1984 ).
Factors authorized a continuance and thereby extended the speedy trial time where a period of delay was attributable to the inability of the prosecution, despite its exercise of due diligence, to obtain the victim's presence for trial and prosecution demonstrated the victim would be available to testify at a later date. People v. Grenemyer, 827 P.2d 603 (Colo. App. 1992).
Defendant's right to speedy trial not violated where defendant asked for a continuance to review evidence produced by the prosecution concerning the credibility of a prospective witness and there was no indication of bad faith by the prosecution in producing the evidence just prior to trial. The legal consequence of the defendant's request for a continuance was to extend the period within which trial could be commenced for an additional six months from the date of the continuance, as provided in subsection (3). People v. Duncan, 31 P.3d 874 (Colo. 2001).
Speedy trial right not violated where trial court did not abuse its discretion in finding prosecutors had acted with due diligence in seeking to obtain presence of out-of-state witnesses for trial and a continuance was warranted. People v. Wolfe, 9 P.3d 1137 (Colo. App. 1999).
The speedy trial statute is not violated in a case where there is no evidence a sheriff acted in bad faith in violating a segregation order that resulted in a delay of the defendant's criminal proceedings and a defendant's waiver of a statutory speedy trial right. People v. McMurtry, 101 P.3d 1098 (Colo. App. 2003), rev'd on other grounds, 122 P.3d 237 ( Colo. 2005 ).
The intent of the general assembly was to exclude a reasonable time period from the speedy trial period following the absence or unavailability of the defendant when the delays are such that might reasonably result from the defendant's absence. People v. Martin, 732 P.2d 1210 (Colo. 1987).
Six-month period includes a reasonable period of time in which to reschedule and prepare for trial a case that has been postponed from its original trial date due to the voluntary absence of the defendant. People v. Martin, 732 P.2d 1210 (Colo. 1987).
Factors to be considered in determining whether the trial delay is reasonable include the difficulty in locating witnesses, the problem of overcrowded dockets, and the potential abuse of the speedy trial period by defendants who attempt to run time off the speedy trial period before absconding from the state. People v. Martin, 732 P.2d 1210 (Colo. 1987).
Defendant's motion for severance shortly before trial constitutes an exceptional circumstance allowing consideration of docket congestion in determining the reasonable period of delay that tolls statute. People v. Runningbear, 753 P.2d 764 (Colo. 1988).
In order to determine if the defendant was entitled to have the charges against him dismissed for violating his rights to a speedy trial, the court must determine whether there was a delay that should be attributable to the defendant's absence and whether the trial delay caused by such absence was reasonable. People v. Martin, 732 P.2d 1210 (Colo. 1987).
Whether jeopardy has attached is irrelevant. If the court is forced to dismiss the jurors or prospective jurors and reschedule the trial, whether jeopardy has yet attached is irrelevant in computing the length of delay excluded due to mistrial. People v. Erickson, 194 Colo. 557 , 574 P.2d 504 (1978).
Effect of escape on running of six-month rule. The defendant was not denied a speedy trial under this section, as his escape stopped the running of the six-month rule, and that the time did not again commence to run until the district attorney had actual knowledge of his return to custody. People v. Gillings, 39 Colo. App. 387, 568 P.2d 92 (1977).
Exclusion of period fairly attributable to defendant's voluntary unavailability. Subsection (6)(d) contemplates an exclusion from the speedy trial period not only for the time of the defendant's actual absence or unavailability but also for any additional period of delay that may be fairly attributable to the defendant as a result of his voluntary unavailability. People v. Sanchez, 649 P.2d 1049 ( Colo. 1982 ); People v. Milton, 732 P.2d 1199 ( Colo. 1987 ).
In determining what delay can be attributable to the absence or unavailability of the defendant, each case must be viewed individually, and the determination is dependent upon the facts of the specific case. People v. Martin, 732 P.2d 1210 (Colo. 1987).
Such delay may include the time required to reschedule the defendant's trial. People v. Gray, 710 P.2d 1149 (Colo. App. 1985).
Defendant has burden to prove he has been denied speedy trial. People v. Chavez, 779 P.2d 375 (Colo. 1989).
Accused must move for dismissal or discharge. To properly raise the question the accused may apply for his discharge or for dismissal for lack of a speedy trial. Jaramillo v. District Court, 174 Colo. 561 , 484 P.2d 1219 (1971).
In accordance with the express language of subsection (5), defendant waived his right to a speedy trial by failing to move for dismissal of charges prior to entering a guilty plea. This did not, however, automatically waive the defendant's constitutional right to a speedy trial. Moody v. Corsentino, 843 P.2d 1355 (Colo. 1993).
The objection that the defendant has not had a speedy trial must itself be speedily raised when the case is moved for trial. Keller v. People, 153 Colo. 590 , 387 P.2d 421 (1963).
Failure to move for dismissal prior to beginning of trial is a waiver of the statutory right to speedy trial. People v. Drake, 748 P.2d 1237 (Colo. 1988).
A juvenile's failure to request dismissal on speedy trial grounds before the beginning of the adjudicatory trial will result in the waiver of the juvenile's speedy trial rights under this section. People ex rel. J.M.N., 39 P.3d 1261 (Colo. App. 2001).
Defendant's attorney did not object to the trial date on speedy trial grounds until the date of trial. The defendant waived his ability to claim that his right to a speedy trial had been violated. People of City of Aurora v. Allen, 885 P.2d 207 (Colo. 1994).
Subsection (5) does not require the defendant to demand his right at the earliest possible time. Harrington v. District Court, 192 Colo. 351 , 559 P.2d 225 (1977).
Subsection (5) merely requires that the defendant make such a demand prior to the commencement of his trial, which, in most cases, would certainly be after the trial setting. Harrington v. District Court, 192 Colo. 351 , 559 P.2d 225 (1977).
Defendant's failure to demand dismissal prior to trial pursuant to alleged denial of speedy trial rights normally waives any speedy trial objection after conviction. People v. Marquez, 739 P.2d 917 (Colo. App. 1987).
Effect of the failure of the prosecution and the trial court to comply with the speedy trial statute requires the dismissal of the charges against the defendant with prejudice. People v. Martin, 732 P.2d 1210 (Colo. 1987).
Upon refusal of discharge, accused may apply for habeas corpus. Where a person is entitled to discharge under this section, but such discharge is denied him in the district court, he may at once apply for the writ of habeas corpus. Ex parte Miller, 66 Colo. 261, 180 P. 749 (1919).
A defendant is entitled to a dismissal of charges against him or her for violation of his or her statutory right to a speedy trial if he or she timely files a motion to dismiss even if it is filed on the day of trial, as long as it is filed prior to any hearing on any pretrial motion that is set for hearing on that date. A defendant should not have to assert a violation of his or her speedy trial right weeks before trial when a violation of such right might not occur until days before, or even on the day of, trial. People v. Desantiago, 2014 COA 66 M, 409 P.3d 389.
Right to speedy trial may be waived. The right to a speedy trial, both under this section and § 16 of art. II, Colo. Const., may certainly be waived. Keller v. People, 153 Colo. 590 , 387 P.2d 421 (1963).
Defendant can waive his constitutional and statutory right to a speedy trial by his failure to make a timely objection. People v. O'Donnell, 184 Colo. 104 , 518 P.2d 945 (1974).
Defendant's failure to object to the date set for pre-trial motions hearing constituted his consent to the trial schedule that was offered, subject only to the condition that the actual trial commence within a reasonable time thereafter. A defendant cannot stand mute and allow a trial schedule to be adopted without registering his complaint that such schedule violates his speedy trial rights. People v. Atkins, 885 P.2d 243 (Colo. App. 1994); People v. Franco, 74 P.3d 357 (Colo. App. 2002).
Failure to object before trial is waiver. A defendant who has gone to trial without objection cannot by motion obtain his discharge on the ground that he was not tried within the time prescribed by this section. Heller v. People, 2 Colo. App. 459, 31 P. 773 (1892).
Failure to object in the trial court to the first trial being held and the subsequent request for a continuance by the defendant constitutes a waiver of the statutory and constitutional right to a discharge. Keller v. People, 153 Colo. 590 , 387 P.2d 421 (1963).
Statutory right to a speedy trial can be waived, and it is waived by failure to make objection at the trial. Valdez v. People, 174 Colo. 268 , 483 P.2d 1333 (1971).
Counsel's sending waiver form to defendant not waiver. An agreement by defense counsel to send a waiver form to the defendant cannot be interpreted as a waiver of defendant's right to a speedy trial. People v. Bell, 669 P.2d 1381 (Colo. 1983).
Written waiver not essential. The fact that the defendant did not execute a written waiver of her right to a speedy trial as required in the deferred prosecution statute and as she agreed to do in open court does not inure to her benefit. People v. Ybarra, 190 Colo. 409 , 547 P.2d 925 (1976).
But affirmative conduct is. An express consent to the delay or other affirmative conduct evidencing such consent must be shown. Harrington v. District Court, 192 Colo. 351 , 559 P.2d 225 (1976); People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978); People v. Wimer, 43 Colo. App. 237, 604 P.2d 1183 (1979).
An express waiver or other affirmative conduct evidencing such a waiver must be shown. People v. Gallegos, 192 Colo. 450 , 560 P.2d 93 (1977); Rance v. County Court, 193 Colo. 220 , 564 P.2d 422 (1977).
Mere silence by a defense counsel at a trial setting shall not be construed as a waiver of the defendant's statutory right to a speedy trial. Harrington v. District Court, 38 Colo. 360 , 559 P.2d 225 (1977); Rance v. County Court, 193 Colo. 220 , 564 P.2d 422 (1977); People v. Lopez, 41 Colo. App. 206, 587 P.2d 792 (1978).
This section does not state that defendant's failure to object to a trial setting beyond the six-month period should be viewed as a delay attributable to the defendant. In fact, subsection (5) mandates that the only affirmative action required on the part of the defendant be that he move for a dismissal prior to trial. Harrington v. District Court, 192 Colo. 351 , 559 P.2d 225 (1977).
Failure of each defendant to interpose any objection to a trial setting in county court beyond the six-month speedy trial period did not waive his right to a speedy trial. Rance v. County Court, 193 Colo. 220 , 564 P.2d 422 (1977).
Request for a pretrial conference in criminal case, without more, does not constitute waiver of speedy trial right nor a delay caused at defendant's instance to be excluded from speedy trial calculations. Rodman v. County Court, 694 P.2d 871 (Colo. App. 1984).
Waiver by defense attorney's setting trial date. Where a trial date is set at the request of the defendant's attorney to accommodate his schedule, the defendant waives any speedy trial claims as to this trial date. People v. Fetty, 650 P.2d 541 (Colo. 1982).
When defense counsel insists he could not try the case prior to expiration of the six-month speedy trial period, this is tantamount to a request for a continuance. People v. Chavez, 650 P.2d 1310 (Colo. App. 1982).
When a defendant's attorney participates in a trial date setting which is within six months of the plea entered on that day, regardless of an earlier plea, the defendant thereby acquiesces to subsection (6)(f) and the prosecution thus meets its burden of demonstrating compliance with the speedy trial statute. People v. Rogers, 706 P.2d 1288 (Colo. App. 1985).
To establish a waiver the record must demonstrate that defense counsel had notice of the trial date and had adequate opportunity to object. People v. Franco, 74 P.3d 357 (Colo. App. 2002).
Nothing in subsection (5.1) precludes an off-the-record trial setting, nor does the subsection specify that the defendant or defense counsel must be present. People v. Franco, 74 P.3d 357 (Colo. App. 2002).
No provision in this section for revocation once a waiver is in place. People v. Jefferson, 981 P.3d 613 (Colo. App. 1998).
A guilty plea waives a defendant's right to claim the improper denial of his or her statutory right to a speedy trial. People v. McMurtry, 122 P.3d 237 (Colo. 2005).
By entering an unconditional, voluntary guilty plea, a defendant waives the right to assert, either on appeal or by collateral attack, a violation of the statutory right to speedy trial. People v. Owen, 122 P.3d 1006 (Colo. App. 2005).
Defendant's attorney, without defendant's personal consent, may obtain a continuance of a trial setting subject to the discretion of the trial court and the continuance will extend the speedy trial deadline an additional six months from the granting of the continuance. People v. Anderson, 649 P.2d 720 (Colo. App. 1982).
Defendant's motion to dismiss, because defense counsel was unable to proceed on the scheduled trial date within the speedy trial period, was considered tantamount to a request for a continuance in order to protect the defendant's sixth amendment right to counsel. People v. Wilson, 972 P.2d 701 (Colo. App. 1998).
Compliance with speedy trial requirements is jurisdictional. Failure to comply with the requirements of the speedy trial act is jurisdictional in the sense that defendant may request mandatory dismissal of the charges upon expiration of the allotted time. People v. Anderson, 649 P.2d 720 (Colo. App. 1982).
Failure to comply not automatic deprivation of jurisdiction. However, failure to bring defendant to trial within the allotted time does not automatically deprive the trial court of jurisdiction because defendant's failure to demand dismissal prior to trial waives any speedy trial objection. People v. Anderson, 649 P.2d 720 (Colo. App. 1982).
Relief in nature of prohibition under C.A.R. 21, is appropriate remedy when a district court is proceeding without jurisdiction to try a defendant in violation of his right to a speedy trial. Marquez v. District Court, 200 Colo. 55 , 613 P.2d 1302 (1980).
Whether a speedy trial has been afforded is a judicial question. Casias v. People, 160 Colo. 152 , 415 P.2d 344 (1966).
Exclusions and extensions applied concomitantly. Nothing prevents a court from applying concomitantly the exclusionary provisions of subsection (6) and the rule governing extensions in subsection (3) when it makes a speedy trial determination. People v. Luevano, 670 P.2d 1 (Colo. 1983).
Entry of negotiated plea which is later withdrawn tantamount to continuance. Where defendant enters negotiated plea which he later withdraws following the court's rejection of the plea agreement, it is appropriate to view such plea as a continuance requested by the defendant under subsection (3). People v. Madsen, 707 P.2d 344 (Colo. 1985).
The fact that defendant was allowed to withdraw his plea because the plea bargain could not be implemented is irrelevant for speedy trial analysis. People v. Cass, 68 P.3d 537 (Colo. App. 2002).
A speedy public trial is a relative concept in that the circumstances of each case determine whether or not it has been afforded. Casias v. People, 160 Colo. 152 , 415 P.2d 344 (1966); Maes v. People, 169 Colo. 200 , 454 P.2d 792 (1969).
Speedy public trial does not mean trial immediately after the accused is apprehended and indicted, but public trial consistent with the court's business. Maes v. People, 169 Colo. 200 , 454 P.2d 792 (1969).
Defendants have the burden of proof that an expeditious trial was denied them. Casias v. People, 160 Colo. 152 , 415 P.2d 344 (1966); Maes v. People, 169 Colo. 200 , 454 P.2d 792 (1969).
A motion for discharge or for dismissal for want of due prosecution of a charge of crime must be sustained by the accused; he has the burden of showing that he was not afforded a speedy trial. Jaramillo v. District Court, 174 Colo. 561 , 484 P.2d 1219 (1971).
The burden is upon the defendant to establish that he has been denied a speedy trial in violation of the statute or rule or that his constitutional right to a speedy trial requires dismissal. Saiz v. District Court, 189 Colo. 555 , 542 P.2d 1293 (1975).
Prima facie showing of violation shifts burden of proof to prosecution. Where a defendant has shown a prima facie violation of this section with no evidence in the record to the contrary, the burden of showing compliance with the time requirements of the rule and statute rests with the trial court and the prosecution. People v. Wimer, 43 Colo. App. 237, 604 P.2d 1183 (1979).
Dismissal of charges. The people cannot indiscriminately dismiss and refile charges in order to avoid the mandate of this section and Crim. P. 48(b)(1). However, to be entitled to dismissal on these grounds, the defendant must affirmatively establish the existence of such a course of action on the part of the prosecution. People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976); Meehan v. County Court, Jefferson Co., 762 P.2d 725 (Colo. App. 1988); People v. Kraemer, 795 P.2d 1371 (Colo. App. 1990).
Charges in an original information properly dismissed without prejudice within the speedy trial limits for that case become a nullity; upon defendant's arraignment under a subsequent information, speedy trial period begins anew. People v. Kraemer, 795 P.2d 1371 (Colo. App. 1990).
The speedy trial period is calculated separately for each criminal complaint brought against a defendant, and, generally, if the charges in a summons and complaint are properly dismissed without prejudice, that case becomes a nullity, and a new speedy trial period begins if and when the accused enters a plea to subsequently filed charges, unless the defendant can establish that the prosecution acted in bad faith to circumvent the speedy trial limits. People in Interest of C.O., 870 P.2d 1266 (Colo. App. 1994).
Where original case was properly dismissed without prejudice by the county court, the speedy trial period started anew in the juvenile case, and the juvenile waived his right to speedy trial by not objecting when the juvenile trial was scheduled outside the speedy trial limits. People in Interest of C.O., 870 P.2d 1266 (Colo. App. 1994).
Dismissing a claim in an earlier case for the legitimate purpose of joinder does not support a conclusion that prosecutor was indiscriminately dismissing and refiling charges in order to avoid the speedy trial mandate. People v. Kraemer, 795 P.2d 1371 (Colo. App. 1990).
Finding of good cause for denial of motion for severance is specifically required by subsection (6)(c). Although court properly denied motion for severance on evidentiary grounds, under § 16-7-101, it was an abuse of discretion to deny motion for severance on speedy trial grounds under this section where court made no finding of good cause why severance should not be granted. People v. Hernandez, 829 P.2d 392 (Colo. App. 1991).
Insufficient proof. The burden of establishing that the prosecution indiscriminately dismissed and refiled charges in order to avoid the mandate of this section and Crim. P. 48(b)(1) is not satisfied by proof only that the district attorney sought and obtained a subsequent indictment for different offenses arising from the same transaction. People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976); Meehan v. County Court, Jefferson Co., 762 P.2d 725 (Colo. App. 1988).
Dismissal of charges sufficient to protect defendant's rights. Where defendant's trial took place within six months of defendant's plea of not guilty to the charges in the second indictment, and while the trial was not held until more than six months after defendant's plea to the charges of the original indictment, those charges were dismissed by the trial court, such dismissal was sufficient to protect defendant's rights under this section and Crim. P. 48(b)(1). People v. Wilkinson, 37 Colo. App. 531, 555 P.2d 1167 (1976); Meehan v. County Court, Jefferson Co., 762 P.2d 725 (Colo. App. 1988).
Defendant waived right to speedy trial. Although the first trial which resulted in a mistrial took place beyond the period fixed by statute, the defendant waived any right to discharge he may have had under this section by going to trial without objection. Such an objection is a prerequisite to his claim for discharge under this section and under § 16 of art. II, Colo. Const., guaranteeing a speedy trial. Keller v. People, 153 Colo. 590 , 387 P.2d 421 (1963); Keller v. Tinsley, 335 F.2d 144 (10th Cir.), cert. denied, 379 U.S. 938, 85 S. Ct. 342, 13 L. Ed. 2d 348 (1964).
Agreement by defendant and defense counsel at hearing within six-month period that defendant was responsible for 20 days of delay in bringing case to trial deemed express consent to a 19-day delay in the trial and waiver of any speedy trial claims. People v. Barnes, 636 P.2d 1323 (Colo. App. 1981).
Defendant expressly waived the requirements concerning trial within period fixed by statute. Under such circumstances, this section is not applicable. Wilson v. People, 156 Colo. 243 , 398 P.2d 35 (1965).
Defendant's failure to object to the trial date or to seek an earlier trial date, and his request for a continuance, all operated to waive his constitutional and statutory rights to discharge because he was not brought to trial within the time limits set by this section. Adargo v. People, 159 Colo. 321 , 411 P.2d 245 (1966); Adargo v. Patterson, 371 F.2d 822 (10th Cir. 1967).
Where the record does not disclose any objection to delay made by defendant at the time of trial and further and where defendant's motion for postconviction relief under Crim. P. 35(b) does not set forth any facts showing that the delay was in any manner oppressive or arbitrary nor that he was in any way deprived of any defense or that any witness was unavailable, the court is not required to hold an evidentiary hearing. Valdez v. People, 174 Colo. 268 , 483 P.2d 1333 (1971).
Motion for discharge not waived. Rude v. People, 44 Colo. 384, 99 P. 317 (1909).
Delay justified discharge. In re Garvey, 7 Colo. 502, 4 P. 758 (1884); Rude v. People, 44 Colo. 384, 99 P. 317 (1909); Ex parte Miller, 66 Colo. 261, 180 P. 749 (1919).
Duty of court to dismiss if dismissal required because right denied. If the constitution, the statutes, the rules, or the case law requires dismissal of a prosecution because of a denial to right of a speedy trial, it is the duty of the trial court to order that the case be dismissed. People ex rel. Coca v. District Court, 187 Colo. 280 , 530 P.2d 958 (1975).
Section does not apply to an action where the alleged offense was committed prior to July 1, 1972. People v. Reliford, 186 Colo. 6 , 525 P.2d 467 (1974).
Defendant cannot be required to pursue his C.A.R. 21 proceeding in a separate action only at the expense of his right to a speedy trial. People v. Rosidivito, 940 P.2d 1038 (Colo. App. 1996).
Test in subsection (6)(g)(I) applied in People v. Koolbeck, 703 P.2d 673 (Colo. App. 1985).
18-1-406. Right to jury trial.
- Except as otherwise provided in subsection (7) of this section, every person accused of a felony has the right to be tried by a jury of twelve whose verdict shall be unanimous. In matters involving misdemeanors, the accused is entitled to be tried by a jury of six. In matters involving petty offenses, the accused has the right to be tried by a jury under the terms and conditions of section 16-10-109, C.R.S.
- Except as to class 1 felonies, the person accused of a felony or misdemeanor may waive a trial by jury by express written instrument filed of record or by announcement in open court appearing of record.
- A defendant may not withdraw a voluntary and knowing waiver of trial by jury as a matter of right, but the court, in its discretion, may permit withdrawal of the waiver prior to the commencement of the trial.
- Except as to class 1 felonies, the defendant in any felony or misdemeanor case may, with the approval of the court, elect, at any time before the swearing in of the jury, or after the swearing in of the jury and before verdict, with the agreement of the district attorney and the approval of the court, to be tried by a number of jurors less than the number to which he would otherwise be entitled.
- Upon request of the defendant in advance of the commencement of the trial, the defendant shall be furnished with a list of prospective jurors who will be subject to call in the trial.
- Either the district attorney or the defendant may challenge the array on the ground that there has been a material departure from the requirements of the law governing the selection of jurors, but such challenge shall be made in writing setting forth the particular grounds upon which it is based and shall be filed prior to the swearing in of the jury selected to try the case.
- Except as to class 1 felonies, with respect to a twelve-person jury, if the court excuses a juror for just cause after the jury has retired to consider its verdict, the court in its discretion may allow the remaining eleven jurors to return the jury's verdict.
Source: L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-506. L. 72: p. 268, § 6. L. 86: (1) amended, p. 769, § 3, effective July 1. L. 91: (4) amended, p. 405, § 7, effective June 6. L. 94: (1) amended and (7) added, p. 1716, § 5, effective July 1.
Cross references: For similar provisions concerning the right to trial by jury, see Crim. P. 23.
ANNOTATION
Law reviews. For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with the right to a jury trial, see 62 Den. U. L. Rev. 1982 (1985).
Annotator's note. For other annotations concerning the right to trial by jury, see § 23 of art. II, Colo. Const., and Crim. P. 23.
Although there is a statutory right to a unanimous verdict in criminal cases in Colorado, the state constitution does not explicitly guarantee the right to a unanimous verdict. Nevertheless, there are some cases in which the jury may return a general verdict of guilty when instructed on alternative theories of principal and complicitor liability and in which the state constitution has provided a criminal defendant the right to a unanimous jury verdict. People v. Hall, 60 P.3d 728 (Colo. App. 2002).
Subsection (1) of this section and Crim. P. 23, which provide for six jurors in misdemeanor cases, are constitutional under § 23 of art. II of the Colorado Constitution. People v. Rodriguez, 112 P.3d 693 (Colo. 2005).
Jury to have at least six persons. One accused of a noncapital felony or class 1 misdemeanor who elects, pursuant to subsection (4), to be tried by a jury of less than 12 persons may not be tried by a jury of less than six persons. People ex rel. Hunter v. District Court, 634 P.2d 44 ( Colo. 1981 ); People v. Byerley, 635 P.2d 542 ( Colo. 1981 ).
Right to waive trial by jury is substantive in nature. Garcia v. People, 200 Colo. 413 , 615 P.2d 698 (1980).
Even though subsection (2) fails to provide a procedure for waiving a jury trial in class 1 felonies, because the criminal defendant has a substantive right to waive a jury trial, the lack of a waiver procedure does not prohibit the waiver right of the criminal defendant. People v. Cisneros, 720 P.2d 982 (Colo. App.), cert. denied, 479 U.S. 887, 107 S. Ct. 282, 93 L. Ed. 2d 257 (1986).
Requirement of § 16-8-105 (2) that prosecution consent to waiver of jury in sanity trial applied to trial of defendant prosecuted for second degree murder rather than this subsequently enacted general statute which does not refer to prosecutor's consent to waiver of jury trial. People v. District Court, 731 P.2d 720 (Colo. 1987).
Colorado constitution does not afford criminal defendants the right to waive jury and be tried by the court. People v. District Court, 843 P.2d 6 ( Colo. 1992 ); People v. District Court, 953 P.2d 184 ( Colo. 1998 ).
A court exceeds its jurisdiction if it allows a defendant to waive his or her right to a jury trial over the objection of the district attorney based on defendant's claim that his due process rights would be violated by testifying and that he would be subject to impeachment about his past criminal convictions and his ties to drug use. It is not a due process violation to be subject to impeachment about prior criminal convictions; the choice to testify or not is part of adversarial trial process and does not create an unfair trial for the defendant. People v. McKeel, 246 P.3d 638 (Colo. 2010).
In construing the provisions of subsection (2) with § 16-10-101, requiring the prosecution to consent to waiver of jury trial, due process compels conclusion that prosecution alone cannot compel trial by jury where defendant may not receive a fair trial. People v. District Court, 843 P.2d 6 (Colo. 1992).
The right to a 12-person jury is purely statutory. The sixth and fourteenth Amendments to the U.S. Constitution guarantee the right to trial by jury, but do not, nor does the Colorado Constitution, guarantee the right to a 12-person jury. People v. Chavez, 791 P.2d 1210 (Colo. App. 1990).
Constitutional right to a jury of 12 lies only with felony cases and does not extend to misdemeanor cases. A defendant in a misdemeanor case does not have a constitutional right under art. II, § 23, of the Colorado Constitution to demand a 12-person jury. People v. Rodriguez, 112 P.3d 693 ( Colo. 2005 ).
The statutory right to a 12-person jury could be waived by counsel's statements. The requirement that a defendant must make a written or oral "announcement" of his intention to waive a jury does not extend to a reduction in the number of jurors. People v. Chavez, 791 P.2d 1210 (Colo. App. 1990).
Allotment of right to select mode of trial made in unequivocal terms. When the general assembly has allotted to one party only, such as the accused in a criminal proceeding, the right to select the appropriate mode of trial, it has done so in unequivocal terms. S.A.S. v. District Court, 623 P.2d 58 (Colo. 1981).
Subsection (2) and Crim. P. 23(a)(5) are not reconcilable and directly conflict with each other because the rule provides an additional requirement not present in subsection (2), that the prosecutor's consent must be obtained as a condition before a defendant's oral request to waive his right to a jury trial may be allowed. Garcia v. People, 200 Colo. 413 , 615 P.2d 698 (1980).
Subsection (2) controls over Crim. P. 23(a)(5). Garcia v. People, 200 Colo. 413 , 615 P.2d 698 (1980).
Defendants voluntarily waived jury. Where, when the jury was assembled in the courtroom ready for trial, defendants' counsel orally announced that defendants had decided to waive their right to a jury trial, and the court inquired of each defendant if that was their desire and both indicated in the affirmative, and as a further precaution, the court then insisted that a written waiver of jury trial be prepared and be signed by each defendant and their counsel, which was done, it will be presumed that defendants understandingly, voluntarily, and deliberately decided to waive the jury. People v. Fowler, 183 Colo. 300 , 516 P.2d 428 (1973).
Waiver precludes defendant's complaint that judge rules on evidence and renders verdict. Where the defendant voluntarily and with advice of counsel waived a jury trial, defendant in such circumstances cannot be heard to complain when he creates a situation which necessarily makes the trial judge both the one who decides the admissibility of evidence and the one who renders the verdict. People v. Thompson, 182 Colo. 198 , 511 P.2d 909 (1973).
Judge attempted to use office to force defendant to waive right. When the trial judge couples his intervention into plea negotiations with threats of a longer sentence if the defendant goes to trial and is found guilty, he has attempted to use his office to force the defendant to waive his right to a jury trial or be penalized for exercising this constitutionally guaranteed right. People v. Clark, 183 Colo. 201 , 515 P.2d 1242 (1973).
Applied in People v. Lichtenstein, 630 P.2d 70 ( Colo. 1981 ); People v. Jones, 631 P.2d 1132 ( Colo. 1981 ).
18-1-407. Affirmative defense.
- "Affirmative defense" means that unless the state's evidence raises the issue involving the alleged defense, the defendant, to raise the issue, shall present some credible evidence on that issue.
- If the issue involved in an affirmative defense is raised, then the guilt of the defendant must be established beyond a reasonable doubt as to that issue as well as all other elements of the offense.
Source: L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-507.
Cross references: For the affirmative defense of impaired mental condition, see §§ 16-8-103.5 and 18-1-803; for other provisions concerning affirmative defenses generally, see §§ 18-1-710 and 18-1-805; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 through 15 of this title 18.
ANNOTATION
Law reviews. For article, "Homicides Under the Colorado Criminal Code", see 49 Den. L. J. 137 (1972). For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981). For article, "Choice of Evils in Colorado", see 18 Colo. Law. 1117 (1989). For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995).
Choice of evils is affirmative defense covered by this section. People v. Strock, 42 Colo. App. 404, 600 P.2d 91 (1979), rev'd on other grounds, 623 P.2d 42 ( Colo. 1981 ); People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).
As is impaired mental condition. The issue of responsibility due to an impaired mental condition is an affirmative defense. People v. Ledman, 622 P.2d 534 (Colo. 1981).
Duress is affirmative defense. Bailey v. People, 630 P.2d 1062 (Colo. 1981).
Justification is recognized as an affirmative defense to the charge of speeding but the defendant must present credible evidence as to the specific threat of injury and the lack of a reasonable alternative other than commission of the offense. People v. Dover, 790 P.2d 834 (Colo. 1990).
Heat of passion is affirmative defense. People v. Harris, 797 P.2d 816 (Colo. App. 1990).
The defense of alibi is not an affirmative defense and therefore no special instructions are necessary to inform the jury of the prosecution's burden to prove a defendant alleged to have committed an offense did commit that offense. People v. Huckleberry, 768 P.2d 1235 (Colo. 1989).
Because the defendant's tendered instruction improperly suggested that alibi was an affirmative defense, the trial court properly refused to give the tendered instruction based on People v. Huckleberry, 768 P.2d 1235 ( Colo. 1989 ); however, the question of whether the trial court properly refused the instruction does not resolve the issue of whether the trial court erred in failing to provide a theory of the case instruction. People v. Nunez, 841 P.2d 261 ( Colo. 1992 ).
Court, not jury, must determine whether affirmative defense is raised. People v. Fincham, 799 P.2d 419 (Colo. App. 1990).
When an exception is included in a statutory section defining the elements of the offense, it is usually the burden of the prosecution to prove the exception does not apply. However, when an exception is found in a separate clause or is clearly disconnected from the definition of the offense, it is the defendant's burden to claim it as an affirmative defense. People v. Reed, 932 P.2d 842 (Colo. App. 1996).
When an affirmative defense is raised by the defendant, the prosecution must prove each element of the crime beyond a reasonable doubt in addition to disproving beyond a reasonable doubt the affirmative defense. People v. Fincham, 799 P.2d 419 (Colo. App. 1990); Vega v. People, 893 P.2d 107 ( Colo. 1995 ).
Prosecution must prove beyond a reasonable doubt an exception to self-defense for the jury to reject a defendant's claim of self-defense on that basis. People v. Castillo, 2014 COA 140 M, __ P.3d __, rev'd on other grounds, 2018 CO 62, 421 P.3d 1141.
Jury instruction which is in conflict with the legislative intent of this section should not be used. People v. Rex, 689 P.2d 669 (Colo. App. 1984).
Instructions containing erroneous statements of law which improperly relegated to the jury the function of determining whether an affirmative defense was an issue in a case and which had the effect of relieving the prosecution of its burden of proof were at odds with standard jury instructions on affirmative defenses. Lybarger v. People, 807 P.2d 570 (Colo. 1991).
Insanity is an affirmative defense to a crime. Once any credible evidence of insanity is introduced the prosecution bears the burden of proving the defendant's sanity beyond a reasonable doubt. People v. Serravo, 823 P.2d 128 (Colo. 1992).
By the plain meaning of subsection (2), only when some credible evidence supports an affirmative defense is the prosecution required to disprove it as though it were another element of the defense. In the absence of express statutory language to the contrary, the threshold determination as to whether some credible evidence exists to support an affirmative defense is a matter of law for the court to decide. People v. Hill, 934 P.2d 821 (Colo. 1997).
Under subsection (2), a defendant has not "raised the issue" of the affirmative defense of insanity, in the sense that it has become an issue for consideration by the factfinder, until the court determines credible evidence on that issue has been presented. People v. Hill, 934 P.2d 821 (Colo. 1997).
Lawful possession of marihuana under § 18-18-406 (10) is an affirmative defense to charges of unlawful possession with intent to distribute marihuana and unlawful possession of eight or more ounces of marihuana. The provision provides a legal justification to what would otherwise be criminally culpable behavior. People v. Reed, 932 P.2d 842 (Colo. App. 1996).
To present an affirmative defense for abandonment to the jury, defendant must present "some credible evidence" on the issue of the claimed defense. It is not necessarily the case, however, that the defense of abandonment is not available once defendant has injured the victim. O'Shaughnessy v. People, 2012 CO 9, 269 P.3d 1233.
Applied in People v. Villa, 43 Colo. App. 284, 605 P.2d 481 (1979); People v. Taggart, 621 P.2d 1375 ( Colo. 1981 )(justified physical force for disciplinary purposes as affirmative defense in child abuse prosecution); People v. Traubert, 625 P.2d 991 ( Colo. 1981 )(renunciation and abandonment as affirmative defense in prosecution for attempted second degree burglary); People v. Smith, 623 P.2d 404 (Colo. 1981); People v. Gallegos, 628 P.2d 999 (Colo. 1981); People v. Andrews, 632 P.2d 1012 (Colo. 1981); Hendershott v. People, 653 P.2d 385 ( Colo. 1982 ), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983); People v. Quintana, 665 P.2d 605 ( Colo. 1983 ); People v. Turner, 680 P.2d 1290 (Colo. App. 1983); People v. Huckleberry, 738 P.2d 17 (Colo. App. 1986).
18-1-408. Prosecution of multiple counts for same act.
-
When any conduct of a defendant establishes the commission of more than one offense, the defendant may be prosecuted for each such offense. He may not be convicted of more than one offense if:
- One offense is included in the other, as defined in subsection (5) of this section; or
- One offense consists only of an attempt to commit the other; or
- Inconsistent findings of fact are required to establish the commission of the offenses; or
- The offenses differ only in that one is defined to prohibit a designated kind of conduct generally and the other to prohibit a specific instance of such conduct; or
- The offense is defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods or instances of such conduct constitute separate offenses.
- If the several offenses are actually known to the district attorney at the time of commencing the prosecution and were committed within the district attorney's judicial district, all such offenses upon which the district attorney elects to proceed must be prosecuted by separate counts in a single prosecution if they are based on the same act or series of acts arising from the same criminal episode. Any offense not thus joined by separate count cannot thereafter be the basis of a subsequent prosecution; except that, if at the time jeopardy attaches with respect to the first prosecution against the defendant the defendant or counsel for the defendant actually knows of additional pending prosecutions that this subsection (2) requires the district attorney to charge and the defendant or counsel for the defendant fails to object to the prosecution's failure to join the charges, the defendant waives any claim pursuant to this subsection (2) that a subsequent prosecution is prohibited.
- When two or more offenses are charged as required by subsection (2) of this section and they are supported by identical evidence, the court upon application of the defendant may require the state, at the conclusion of all the evidence, to elect the count upon which the issues shall be tried. If more than one guilty verdict is returned as to any defendant in a prosecution where multiple counts are tried as required by subsection (2) of this section, the sentences imposed shall run concurrently; except that, where multiple victims are involved, the court may, within its discretion, impose consecutive sentences.
- When a defendant is charged with two or more offenses based on the same act or series of acts arising from the same criminal episode, the court, on application of either the defendant or the district attorney, may order any such charge to be tried separately, if it is satisfied that justice so requires.
-
A defendant may be convicted of an offense included in an offense charged in the indictment or the information. An offense is so included when:
- It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
- It consists of an attempt or solicitation to commit the offense charged or to commit an offense otherwise included therein; or
- It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission.
- The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
- If the same conduct is defined as criminal in different enactments or in different sections of this code, the offender may be prosecuted under any one or all of the sections or enactments subject to the limitations provided by this section. It is immaterial to the prosecution that one of the enactments or sections characterizes the crime as of lesser degree than another, or provides a lesser penalty than another, or was enacted by the general assembly at a later date than another unless the later section or enactment specifically repeals the earlier.
- Without the consent of the prosecution, no jury shall be instructed to return a guilty verdict on a lesser offense if any juror remains convinced by the facts and law that the defendant is guilty of a greater offense submitted for the jury's consideration, the retrial of which would be barred by conviction of the lesser offense.
Source: L. 71: R&RE, p. 400, § 1. C.R.S. 1963: § 40-1-508. L. 85: (3) amended, p. 661, § 1, effective July 1. L. 94: (2) amended, p. 1049, § 2, effective July 1. L. 2000: (8) added, p. 452, § 6, effective April 24.
Cross references: For the sentencing of a defendant convicted of multiple crimes of violence arising out of the same incident, see § 18-1.3-406 (1)(a).
RECENT ANNOTATIONS
Crimes involving multiple victims do not fall within the concurrent sentencing mandate of subsection (3). Offenses defined in terms of their victimization of another and committed against different victims are not capable of being proved by identical evidence, whether or not the defendant's volitional act causing harm was the same. People v. Espinoza, 2020 CO 43, 463 P.3d 855.
But an appellate court is not required to enter judgment of conviction of a lesser offense implied in a jury verdict reversed on appeal, nor is an appellate court required to "maximize" the jury's verdict by entering judgment of conviction for as many lesser offenses as possible. Halaseh v. People, 2020 CO 35M,463 P.3d 249.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "By Leave of Court First Had", see 8 Dicta 14 (June 1931). For note, "Larceny, Embezzlement, and False Pretenses in Colorado -- A Need for Consolidation", see 23 Rocky Mt. L. Rev. 446 (1951). For article, "Joinder of Criminal Charges, Election, Duplicity", see 30 Dicta 117 (1953). For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with the failure to instruct or lessen included offense, see 62 Den. U. L. Rev. 191 (1985). For comment, "Diverging Views on the Merger of Criminal Offenses: Colorado Has Veered Off Course", see 66 U. Colo. L. Rev. 523 (1995). For article, "Lesser Included and Nonincluded Offenses and Jury Instructions", see 25 Colo. Law. 35 (June 1996). For article, "Convict My Client of Something Else! Lesser Included Offenses after Reyna-Abarca", see 47 Colo. Law. 38 (Nov. 2018).
Annotator's note. Since § 18-1-408 is similar to former § 39-3-4, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Constitutional limitations. Insofar as this section is concerned, a defendant may be prosecuted for each offense that he allegedly commits, with certain well-defined limitations. The limitations are primarily those embodied within the constitutional concepts of double jeopardy, amendment V, U.S. Const., and § 18 of art. II, Colo. Const., impermissible joinder, and the doctrine of collateral estoppel. People v. Pinyan, 190 Colo. 304 , 546 P.2d 488 (1976).
This section does not conflict with the double jeopardy clause of the United States Constitution. People v. Salas, 189 Colo. 111 , 538 P.2d 437 (1975).
Notions of double jeopardy were the underpinnings of this statute. People v. District Court, 183 Colo. 101 , 515 P.2d 101 (1973).
A defendant's double jeopardy rights are not violated when the court sentences a defendant to consecutive sentences based on separate incidents involving the same victim. People v. Shepard, 98 P.3d 905 (Colo. App. 2004).
This section does not apply to municipal code violations. The compulsory joinder bar has no application when the initial prosecution is in a municipal court for a municipal ordinance violation and the later prosecution is in a state court for state offenses based on different conduct but arising out of the same criminal episode as the ordinance violation. People v. Wright, 742 P.2d 316 ( Colo. 1987 ); Priday v. People, 742 P.2d 321 ( Colo. 1987 ).
As long as the criminal episode which is the basis for the municipal code violations and the state offenses gives rise to separate offenses, each of which requires proof of a fact which the other does not, the constitutional prohibition against double jeopardy is not violated. People v. Wright, 742 P.2d 316 (Colo. 1987).
Compulsory joinder provisions extend further than constitutional guarantee against double jeopardy. Jeffrey v. District Court, 626 P.2d 631 ( Colo. 1981 ); Corr v. District Court, 661 P.2d 668 ( Colo. 1983 ); People v. Taylor, 732 P.2d 1172 ( Colo. 1987 ).
Statutory language of this section clearly recognizes that a district attorney's authority to initiate a criminal prosecution is limited to crimes committed within the geographical district served by the district attorney. People v. Taylor, 732 P.2d 1172 (Colo. 1987).
Term "judicial district", as used in this section, means that the offenses must have been committed within the same judicial district in which the accused has previously been subjected to a completed prosecution. People v. Taylor, 732 P.2d 1172 (Colo. 1987).
More than one felony conviction may be based upon same occurrence without running afoul of either federal or state double jeopardy prohibitions. People v. Opson, 632 P.2d 602 (Colo. App. 1980).
A defendant may be convicted for multiple offenses arising out of a single transaction if the defendant has violated more than one statute. People v. Martinez, 640 P.2d 255 (Colo. App. 1981).
That conduct may give rise to more than one offense is irrelevant so long as the offenses have not merged for purposes of double jeopardy. People v. Miller, 199 Colo. 32 , 604 P.2d 36 (1979).
A single transaction that violates two criminal statutes may generally be prosecuted under either. People v. Fowler, 183 Colo. 300 , 516 P.2d 428 (1973).
Subsection (3) requires the trial court to impose concurrent sentences, if two or more charged offenses arise from the same criminal episode. People v. Montanez, 944 P.2d 529 (Colo. App. 1996).
A court must impose concurrent sentences on crimes that are based upon identical evidence. The evidence supporting the attempted sexual assault was not identical to evidence for kidnapping, therefore, the court had discretion to impose consecutive sentences for the two crimes. People v. McAfee, 160 P.3d 277 (Colo. App. 2007).
Separately named victims do not create separate crimes of violence when identical evidence supports each conviction, and, in such circumstances, a court retains discretion to impose concurrent sentences rather than consecutive sentences. While a single act of arson caused a building to catch fire and harmed multiple victims, the evidence supporting each attempted murder conviction was identical, and no evidence showed that defendant performed separate, volitional acts against any of the named victims. People v. Espinoza, 2017 COA 122 , __ P.3d __.
Trial court did not err in determining that the prosecution was not required to elect between two counts of first degree burglary since each of the two counts consisted of different elements that were proved by evidence of different conduct, there were multiple victims, and, even if two counts were supported by identical evidence, defendant received concurrent sentences, thereby meeting the requirements of subsection (3). People v. Montanez, 944 P.2d 529 (Colo. App. 1996).
Prosecutor determines under which statute to proceed. A single transaction may give rise to the violation of more than one statute, and in such a situation it is a proper function of the prosecutor to determine under which of the statutes he wishes to prosecute. People v. James, 178 Colo. 401 , 497 P.2d 1256 (1972).
Enactment of a specific criminal statute does not preclude prosecution under a general criminal statute unless a legislative intent to limit prosecution to the special statute is shown. People v. James, 178 Colo. 401 , 497 P.2d 1256 (1972); People v. Tippett, 733 P.2d 1183 ( Colo. 1987 ).
In a situation where a single transaction violates two criminal statutes, it is the proper function of the district attorney to determine under which of the statutes, he wishes to prosecute. People v. Fowler, 183 Colo. 300 , 516 P.2d 428 (1973).
Prosecution under the general burglary statutes was precluded where the defendant's actions violated the specific provisions of criminal offenses included in the Limited Gaming Act of 1991. Because the Act invokes the full extent of the state's police powers, creates a comprehensive and thorough regulatory scheme to control limited gaming, and specifically defines criminal offenses related to gambling both in the Act and in sections reproduced verbatim in this title, the general assembly adequately demonstrated its intention that conduct violating the specific limited gaming provisions be prosecuted under those provisions only. People v. Warner, 930 P.2d 564 (Colo. 1996).
A defendant does not impliedly waive his right to rely upon the statute and rule by entering a plea of guilty in a county court case with knowledge that the district court case is pending. People v. Robinson, 774 P.2d 884 (Colo. 1989).
The right to imposition of concurrent sentences applies equally to a conviction arising from a trial or one arising from the entry and acceptance of a guilty plea. Construing statute to allow the imposition of a more severe sentence for a guilty plea than for a conviction resulting from trial would likely raise constitutional concerns. Juhl v. People, 172 P.3d 896 (Colo. 2007).
Right to compulsory joinder may be waived by raising the issue after jeopardy attaches in the second prosecution. People v. Wilson, 819 P.2d 510 (Colo. App. 1991).
"Single prosecution", as used in this section, means those proceedings from the commencement of the criminal action until further prosecution is barred. People v. District Court, 183 Colo. 101 , 515 P.2d 101 (1973); Ruth v. County Court, 198 Colo. 6 , 595 P.2d 237 (1979).
Where there are two separate and distinct offenses which violate the laws of two different jurisdictions, each offense must be prosecuted in the jurisdiction where the respective criminal acts occurred and neither offense could be tried in the court of the other jurisdiction. People v. Pinyan, 190 Colo. 304 , 546 P.2d 488 (1976).
Prosecution in both municipal and state systems not precluded. This section does not preclude prosecution in both municipal and state systems for crimes arising from the same criminal episode, at least in situations where there was no counterpart to the municipal offense under state law. People v. Talarico, 192 Colo. 445 , 560 P.2d 90 (1977).
Where there was no knowledge or participation by the district attorney in the decision to prosecute different offenses in both the municipal and state systems, this section does not apply. People v. Talarico, 192 Colo. 445 , 560 P.2d 90 (1977); Blum v. County Court, 631 P.2d 1191 (Colo. App. 1981).
Guilty plea to related charge bars subsequent prosecution. Crim. P. 8(a) and this section bar the prosecution of a defendant for two pending charges arising out of a single criminal episode after the defendant has pleaded guilty and has been sentenced for a third related charge. Ruth v. County Court, 198 Colo. 6 , 595 P.2d 237 (1979).
The denial of a motion to dismiss for failure to comply with this section is appealable. County Court v. Ruth, 194 Colo. 352 , 575 P.2d 1 (1977).
Concurrent sentence does not affect fines for separate counts. Although the defendant is concurrently sentenced, this has no effect on individual fines for separate counts. People v. Blair, 195 Colo. 462 , 579 P.2d 1133 (1978).
Defendant's multiple convictions arise from crimes committed upon different victims and, therefore, evidence is not identical and prohibition against consecutive sentences in this section is not applicable. People v. Wafai, 713 P.2d 1354 (Colo. App. 1985), aff'd, 750 P.2d 37 ( Colo. 1988 ) (decided under law in effect prior to 1985 amendment); People v. Grant, 30 P.3d 667 (Colo. App. 2000), aff'd on other grounds, 48 P.3d 543 ( Colo. 2002 ); People v. O'Dell, 53 P.3d 655 (Colo. App. 2001).
When determining whether to sentence two crimes of violence consecutively or concurrently in relation to § 16-11-309, the determining factor is whether the evidence supporting the convictions is identical. If the evidence supporting the convictions is not identical, the sentences are consecutive. People v. Jurado, 30 P.3d 769 (Colo. App. 2001).
The test for identical evidence is an evidentiary test rather than an elemental test. The court of appeals incorrectly interpreted "identical evidence" to entail an analysis of the evidence necessary to prove the elements of the offenses charged, rather than what evidence supports the conviction. Juhl v. People, 172 P.3d 896 (Colo. 2007).
Convictions not based upon identical evidence. Kidnapping occurred at a different time and in a different place than the sexual assault. People v. Glasser, 293 P.3d 68 (Colo. App. 2011).
Because the evidence supporting the convictions for conspiracy and solicitation was identical, concurrent sentencing was required even though the crime of solicitation requires proof of inducement and conspiracy requires proof of an agreement and an act in furtherance thereof. The convictions here were based on the same acts: The planning by the members of the group to rob the home of the victim and the performance of that robbery. People v. Le, 74 P.3d 431 (Colo. App. 2003).
Trial court erred in imposing consecutive sentences. The evidence presented at trial supported no reasonable inference other than that defendant's convictions of first degree murder and of child abuse resulting in death were based on identical evidence. People v. Phillips, 2012 COA 176 , 315 P.3d 136.
Identical evidence was presented at trial to establish the sexual assault on a child, sexual assault on a child by one in a position of trust, and aggravated incest charges as to each victim. People v. Aldridge, 2018 COA 131 , 446 P.3d 897.
Convictions for first degree assault and vehicular assault were supported by identical evidence because both convictions were based on one distinct act rather than multiple acts separated by time or place. Consequently, pursuant to the mandate in subsection (3), the trial court lacked the authority to impose consecutive sentences where the convictions were supported by identical evidence. Juhl v. People, 172 P.3d 896 (Colo. 2007).
By waiving the establishment of a factual basis for the added second degree assault charge, defendant also waived right to rely on subsection (3). If defendant wanted to ensure that all of the sentences imposed pursuant to the plea bargain would be subject to concurrent sentencing mandate of subsection (3), defendant could have rejected any plea agreement that called for guilty pleas to multiple charges or by rejecting any plea agreement that did not include a stipulation for concurrent sentences. People v. Maestas, 224 P.3d 405 (Colo. App. 2009).
Unless multiple victims are involved, concurrent sentences are required where two or more convictions are based upon the same act or series of acts arising from the same criminal episode and the evidence supporting the counts is identical. People v. Farrell, 10 P.3d 672 (Colo. App. 2000), rev'd on other grounds, 34 P.3d 401 ( Colo. 2001 ).
Even though identical evidence is used for multiple convictions of felony murder and attempted aggravated robbery, the court may impose consecutive sentences because there were two separate victims involved. People v. Laurson, 15 P.3d 791 (Colo. App. 2000).
Thus, where multiple victims are involved, the court may, within its discretion, impose consecutive sentences. People v. Trujillo, 114 P.3d 27 (Colo. App. 2004).
The mere possibility that the jury may have relied on identical evidence in returning more than one conviction is not sufficient to trigger the mandatory concurrent sentencing provision. There was sufficient evidence for the trial court to conclude that the two acts were sufficiently separate to justify consecutive sentencing. The mandatory concurrent sentencing provision is only implicated when the evidence supports no conclusion that the charges are based on identical evidence. People v. Muckle, 107 P.3d 380 ( Colo. 2005 ) (overruling People v. Page, 907 P.2d 624 (Colo. App. 1995)).
Prosecutor not required to select specific instances of sexual assault on which the state would rely when there were numerous counts of sexual assault on a child. People v. Elinger, 754 P.2d 396 (Colo. App. 1987).
Court could properly impose consecutive sentences for multiple sexual exploitation convictions since the crime recognizes that each sexually exploitive image of a child constitutes a discrete act of victimization of the child. People v. Rabes, 258 P.3d 937 (Colo. App. 2010).
Conduct that violates a specific provision of the liquor code may only be filed under the penal provisions specifically provided by said code. People v. Bagby, 734 P.2d 1059 (Colo. 1987).
When the jury could have relied on identical evidence to support separate charges, and the record provides no basis to determine that each charge is supported by separate evidence, subsection (3) requires concurrent sentencing. People v. Brown, 119 P.3d 486 (Colo. App. 2004).
Defendant's convictions for theft and unauthorized use of a financial instrument were supported by identical evidence, so the sentences must be concurrent not consecutive. People v. Patton, 2016 COA 187 , 425 P.3d 1152, aff'd on other grounds, 2018 CO 67, 421 P.3d 184.
Imposition of concurrent or consecutive sentences lies in trial court's discretion if the multiple counts are not supported by identical evidence. People v. Fincham, 799 P.2d 419 (Colo. App. 1990).
Trial court did not abuse its discretion in imposing consecutive sentences where the conspiracy conviction was not based on the same evidence as the robbery convictions. People v. Sweeney, 78 P.3d 1133 (Colo. App. 2003).
Consecutive sentencing was proper for convictions of first degree sexual assault, second degree kidnapping, and second degree assault committed against one victim when evidence establishing each charge was not identical for purposes of subsection (3) and when taking into account the gravity of defendant's conduct toward both victims. People v. Martinez, 32 P.3d 520 (Colo. App. 2001).
When multiple victims are involved, court has discretion to impose consecutive sentences. People v. Hogan, 114 P.3d 42 (Colo. App. 2004).
More than one felony conviction may be based upon same occurrence. People v. Ball, 813 P.2d 759 (Colo. App. 1990).
When an identical act gives rise to multiple charges, the court must impose concurrent sentences for convictions on the multiple charges. People v. Blankenship, 30 P.3d 698 (Colo. App. 2000); People v. Dotson, 55 P.3d 175 (Colo. App. 2002).
Court not required to impose concurrent sentences when evidence supporting two crimes was not identical even though the jury could have relied on the same evidence in finding defendant guilty of both counts. People v. Douglas, 2012 COA 57 , 296 P.3d 234.
Because defendant could not be convicted of first degree assault without proof that he committed a class 3 felony sexual assault under § 18-3-202 (1)(d), the latter offense was a lesser included offense of the first degree assault charge and he could not, therefore, be convicted of both offenses. People v. Moore, 860 P.2d 549 (Colo. App. 1993).
Court can deny request to include lesser included offense instruction where the record does not present any evidence leading to a rational basis for acquitting a defendant of the greater offense and convicting him or her of the lesser offense. People v. Cardenas, 25 P.3d 1258 (Colo. App. 2000).
A defendant may be convicted of more than one offense arising out of a single incident if the defendant has violated more than one statute. People v. Moore, 877 P.2d 840 ( Colo. 1994 ); People v. Marquez, 107 P.3d 993 (Colo. App. 2004).
A defendant may be convicted of both assault and menacing based on the same criminal transaction when the facts support both convictions. There is no conflict or disqualifying overlap in the statutory elements, and none of the provisions of subsection (1) prohibit the multiple convictions. Margerum v. People, 2019 CO 100, 454 P.3d 236.
Assaults committed within a relatively short period of time did not constitute a continuing course of conduct. Each incident constituted a separate offense and the charges were not multiplicitous. People v. Quintano, 81 P.3d 1093 (Colo. App. 2003), aff'd, 105 P.3d 585 ( Colo. 2005 ).
Applied in People v. Hauschel, 37 Colo. App. 114, 550 P.2d 876 (1976); People v. Bielecki, 41 Colo. App. 256, 588 P.2d 377 (1978); People v. Hanes, 42 Colo. App. 527, 596 P.2d 395 (1978); People v. Taylor, 197 Colo. 161 , 591 P.2d 1017 (1979); People v. Roberts, 43 Colo. App. 100, 601 P.2d 654 (1979); People v. Hardin, 199 Colo. 229 , 607 P.2d 1291 (1980); People v. Scott, 615 P.2d 680 ( Colo. 1980 ); People v. Knaub, 624 P.2d 922 (Colo. App. 1980); People v. Riddick, 626 P.2d 641 ( Colo. 1981 ); People in Interest of R.G., 630 P.2d 89 (Colo. App. 1981); People v. Clerkin, 638 P.2d 808 (Colo. App. 1981); People v. Williams, 651 P.2d 899 ( Colo. 1982 ); People v. Aragon, 653 P.2d 715 ( Colo. 1982 ); People v. Williams, 654 P.2d 319 (Colo. App. 1982); People v. Castro, 657 P.2d 932 ( Colo. 1983 ); People v. Lowe, 660 P.2d 1261 ( Colo. 1983 ); People v. Bartowsheski, 661 P.2d 235 (Colo. 1983); People v. Hepler, 665 P.2d 627 (Colo. App. 1982); People v. Santisteven, 693 P.2d 1008 (Colo. App. 1984); People v. Clements, 732 P.2d 1245 (Colo. App. 1986); People v. Avila, 770 P.2d 1330 (Colo. App. 1988).
II. JOINDER AND ELECTION OF OFFENSES.
A. In General.
Offenses defined in terms of general and specific conduct. Subsection (1)(d) of this section is intended to deal with situations where the offenses themselves are defined in terms of general and specific kinds of conduct. People v. Miller, 199 Colo. 32 , 604 P.2d 36 (1979).
Statutory elements to be satisfied to bar subsequent prosecution. This section can be broken down into the following elements, all of which must be satisfied in order for the bar to apply to a subsequent prosecution: (1) Several offenses committed within the same judicial district; (2) a prosecution against the offender; (3) prosecutorial knowledge of the several offenses at the commencement of the prosecution; (4) the several offenses arising from the same criminal episode; and (5) the offender previously having been subjected to a single prosecution. Jeffrey v. District Court, 626 P.2d 631 ( Colo. 1981 ); People v. Garcia, 735 P.2d 897 (Colo. App. 1986); Williamsen v. People, 735 P.2d 176 ( Colo. 1987 ).
Test for "same criminal episode" under this section should be identical to the standard for joinder under Crim. P. (8)(a). Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).
The term "same criminal episode" contemplates a joinder standard sufficiently broad to include offenses committed within the same unit of time at the same location, irrespective of whether these offenses are otherwise related to each other by some underlying unity of purpose or scheme. Corr v. District Court, 661 P.2d 668 (Colo. 1983).
Factors to consider when making the determination as to whether a series of acts arose from the same criminal episode include whether the physical acts were committed simultaneously or in close sequence, whether they occurred in the same place or closely related places, and whether they formed part of a schematic whole. Where the two incidents occurred at different times, at different places, with different victims, and under different circumstances and were not part of any schematic whole, it can be concluded that the two offenses did not arise from the same criminal episode. People v. Garcia, 735 P.2d 897 (Colo. App. 1986).
Test must be interpreted to include the condition that the offenses be connected in such a manner that prosecution of the offenses involve substantially interrelated proof. People v. Rogers, 742 P.2d 912 ( Colo. 1987 ); People v. Miranda, 754 P.2d 377 ( Colo. 1988 ); People v. Patrick, 773 P.2d 575 ( Colo. 1989 ).
Where a six-day interval existed between the distribution, possession, and conspiracy offenses charged in the separate prosecutions and where there were other factual differences relating to the charges alleged in the separate prosecutions, proof of the offenses at issue involved evidence substantially different from the evidence underlying the former prosecution. People v. Miranda, 754 P.2d 377 (Colo. 1988).
Where the seizure of drugs from defendant's car occurred after defendant was arrested on an outstanding warrant and the car was impounded and inventoried, the drug possession charge did not arise from the same criminal episode as the speeding charges which were the initial cause for which defendant was stopped. People v. Herr, 868 P.2d 1121 (Colo. App. 1993).
The crime of identity theft under § 18-5-902 (1)(a) is not a continuing course of conduct, and each discrete use of another's identity is a separate chargeable offense. People v. Allman, 2017 COA 108 , 454 P.3d 289, aff'd, 2019 CO 78, 451 P.3d 826.
Charges against the defendant were based on identical evidence when the defendant engaged in a continuous attack of the victim and there was no break in the time and change in circumstances between the inflicted wounds. People v. DeBoer, 829 P.2d 447 (Colo. App. 1991).
The compulsive joinder rule did not bar subsequent prosecution for drug possession arising from the discovery of drugs in defendant's car where the district attorney was not involved in disposing of the original traffic infraction in county court. People v. Herr, 868 P.2d 1121 (Colo. App. 1993).
Required before dismissal. Trial court must determine extent to which two prosecutions would burden defendant with repetitive proof before it could dismiss for violation of compulsory joinder statute. People v. Rogers, 742 P.2d 912 (Colo. 1987).
The compulsory joinder bar of subsection (2) is applicable even though it might have been one of a series of criminal acts committed in several judicial districts as part of a single criminal episode. People v. Taylor, 732 P.2d 1172 (Colo. 1987).
Because § 42-4-1505.3 clearly contemplates separate trials and hearings where separate complaints alleging traffic infractions and crimes are filed, and the district attorney does not participate in the decision to "prosecute" traffic infractions, the compulsory joinder statute does not apply. Williamsen v. People, 735 P.2d 176 (Colo. 1987).
Section permitting joinder of offenses is a declaration of the common law on the subject of joinder of counts in one indictment. Bergdahl v. People, 27 Colo. 302, 61 P. 228 (1900).
This section permits the joinder of crimes or offenses which may be properly joined as consistent with the common-law rule upon the subject. At common law, disconnected and independent felonies might not be properly joined. White v. People, 8 Colo. App. 289, 45 P. 539 (1896).
This section is in reality but an embodiment of a well established principle of the common law, and is no broader than was that rule unless it be in the consolidation of causes, and confers no greater power than that enjoyed and exercised prior to the enactment of the statute. Cummins v. People, 4 Colo. App. 71, 34 P. 734 (1893).
Subsection (2) was adapted from the model penal code, section 108 (2). People v. Tulipane, 192 Colo. 476 , 560 P.2d 94 (1977).
The purpose of subsection (2) was to prevent the bringing of successive prosecutions based upon essentially the same conduct. People v. Tulipane, 192 Colo. 476 , 560 P.2d 94 (1977); Brutcher v. District Court, 195 Colo. 579 , 580 P.2d 396 (1978).
The evil which subsection (2) was designed to cure was harassment of the defendant by means of multiple prosecution for the same act. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974); People v. Tulipane, 192 Colo. 476 , 560 P.2d 94 (1977).
The concern of the general assembly in enacting this section was not an insufficient number of charges, but rather duplicitous charges which charge in the same count two or more separate offenses. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).
The purpose of the joinder statute is to "prevent vexatious prosecution and harassment of a defendant by a district attorney who initiates successive prosecutions for crimes which stem from the same criminal episode". Subsequent prosecution is permissible when the statute by its terms does not apply. County Court v. Ruth, 194 Colo. 352 , 575 P.2d 1 (1977); Ruth v. County Court, 198 Colo. 6 , 595 P.2d 237 (1979).
The purposes of compulsory joinder are to protect the accused against the oppressive effect of sequential prosecutions based on conduct occurring during the same criminal episode and to conserve judicial and legal resources that otherwise would be wasted in duplicative proceedings. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).
Compulsory joinder broader than "same offense" principle or collateral estoppel. The compulsory joinder requirement of subsection (2) of this section is broader than both the "same offense" principle of double jeopardy as codified in § 18-1-301 and the collateral estoppel effect of a prior determination of an ultimate fact as outlined in § 18-1-302. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).
Attachment of jeopardy triggers bar of subsection (2). Jeopardy attaches upon the court's acceptance of a plea of guilty, and the attachment of jeopardy is what triggers the statutory bar of subsection (2). Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).
Compulsory joinder claim is waived if the defendant fails to raise the issue prior to the time at which jeopardy attaches in the second prosecution. People v. Bossert, 722 P.2d 998 ( Colo. 1986 ); People v. Carey, 198 P.3d 1223 (Colo. App. 2008).
Compulsory joinder defense not waived. Where compulsory joinder defense was not available when prosecution of felony offense was initiated because second charge had not been filed, defendant did not waive compulsory joinder claim when he failed to raise issue within twenty days after arraignment on felony charge. People v. Rogers, 742 P.2d 912 (Colo. 1987).
Compulsory joinder section provides no exceptions to requirement of a single multiple-count prosecution. A juvenile faced with a misdemeanor charge and related traffic charges committed as part of the same act or series of acts should be afforded the protection of the compulsory joinder statute despite the fact that under the juvenile code a juvenile court has no authority to try traffic charges when such charges are the sole basis for a delinquency petition. Marquez v. County Court, 719 P.2d 797 (Colo. App. 1986).
Several counts based on one transaction proper. It was not error to consolidate two informations upon the statement of the district attorney that the several counts in the two informations referred to the same transaction, and where the evidence showed that such was the case. Short v. People, 27 Colo. 175, 60 P. 350 (1900).
Several cognate offenses growing out of the same transaction may be charged in separate counts in the same indictment or information. Roland v. People, 23 Colo. 283, 47 P. 269 (1896).
A single transaction may give rise to the violation of more than one statutory provision, and in such a situation separate offenses are perpetrated, each of which may be subject to prosecution. Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971).
Since a dismissal of a felony complaint by a county court does not bar further prosecution, this statute does not prohibit the filing of a direct information joining any or all offenses arising from a criminal episode. People v. District Court, 183 Colo. 101 , 515 P.2d 101 (1973).
Where the acts involved were committed at the same time or in immediate succession and at the same place, they arose out of the same criminal episode; therefore, it is appropriate to include the separate counts in a single information. People v. McGregor, 635 P.2d 912 (Colo. App. 1981).
All offenses alleged must be alleged in separate counts. Subsection (2) does not provide that all offenses upon which the prosecution desires to proceed must be alleged, but rather that all offenses which the district attorney does allege must be alleged in separate counts. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).
State's amendment to information adding charge of sale of narcotic drugs to conspiracy charge complied with provision which requires that all offenses against defendant be "prosecuted by separate counts in a single prosecution". People v. Wright, 678 P.2d 1072 (Colo. App. 1984).
Each count must charge a distinct offense. When separate counts are charged in the same indictment, each count, to be valid, must be independent of the others, and in itself charge the defendant with a different and distinct offense. Roland v. People, 23 Colo. 283, 47 P. 269 (1896).
Not more than one offense should be charged in one count. Sweek v. People, 85 Colo. 479, 277 P. 1 (1929).
Duplicity in an indictment means the charging of two or more separate and distinct offenses in one count, not the charging of a single offense into which several related acts enter as ways and means of accomplishing the purpose. Leyba v. People, 174 Colo. 1 , 481 P.2d 417 (1971).
Exception made in cases of embezzlement over period of time. Under this section an indictment which charges a clerk of the district court with failure to pay over a large number of jury and witness fees amounting to several thousand dollars is not defective as charging a number of offenses in one count because the fees were collected by him at various times in small amounts, nor because part of it was collected during each of three different appointments under which he acted in discharge of his official duties. Adams v. People, 25 Colo. 532, 55 P. 806 (1898).
It is proper for the prosecution in a charge of embezzlement to lump several items into one count of an information and to try them as a single transaction. Gill v. People, 139 Colo. 401 , 339 P.2d 1000 (1959).
When counts may not be joined. Wherever the felonies are separate and distinct, are not provable by the same evidence, and have been committed at different times, so that they cannot be deemed to result from the same series of acts, they may not be joined in one indictment; and, if several indictments be found, the court cannot consolidate the causes. Cummins v. People, 4 Colo. App. 71, 34 P. 734 (1893).
If the actions or transactions covered by the information are so connected together as to bring them within the provisions of this section the same should be charged in separate counts of the information. If, on the other hand, they were separate, distinct, and disconnected acts and transactions, they should be charged in separate and distinct informations or indictments. Trask v. People, 35 Colo. 83, 83 P. 1010 (1905).
This section is undoubtedly clear as to the joinder of charges growing out of the same transaction or transactions that are connected; however, "transactions of the same class of crimes or offenses, which may be properly joined", presents a debatable question when a felony and misdemeanor are joined. Eckhardt v. People, 126 Colo. 18 , 247 P.2d 673 (1952).
A motion to dismiss will lie. Upon a motion to quash the information interposed at the close of the state's case, at which time it appeared from the evidence that several offenses had been charged in one count, it is error not to sustain the motion. Trask v. People, 35 Colo. 83, 83 P. 1010 (1905).
The question of whether or not an information is duplicitous must be presented either by motion to quash or demurrer, and in limine. Critchfield v. People, 91 Colo. 127 , 13 P.2d 270 (1932).
Duplicity may be overcome by election of district attorney. If an information is duplicitous the defect is overcome where the district attorney in his opening statement elects to proceed on one specific charge. Critchfield v. People, 91 Colo. 127 , 13 P.2d 270 (1932).
It is improper to include distinct offenses in the same indictment, and either in the case of duplicity or of misjoinder of counts, if objection is made in apt time, the court will in the one case quash the indictment, and in the other compel the prosecutor to elect on which count he will proceed. White v. People, 8 Colo. App. 289, 45 P. 539 (1896).
Subsection (3) relates to court's discretionary power requiring prosecutor to elect between multiple counts. Subsection (3) relates to the discretionary power of the trial court, upon motion of the defendant at the conclusion of all of the evidence, to require the prosecution to elect between multiple counts when they are supported by identical evidence. People v. Anderson, 187 Colo. 171 , 529 P.2d 310 (1974).
Motion to compel election. A motion to compel a prosecutor to elect upon which count in an indictment he will proceed, when such indictment contains more than one count, each charging a felony, is a matter addressed to the discretion of the trial court. Roberts v. People, 11 Colo. 213, 17 P. 637 (1888).
Compelling election is discretionary with the court. Sarno v. People, 74 Colo. 528, 223 P. 41 (1924).
Motions to compel the prosecutor to elect upon which of several counts of a criminal information he will proceed are addressed to the sound discretion of the trial court. Smaldone v. People, 102 Colo. 500 , 81 P.2d 385 (1938).
A motion to require the district attorney to elect upon which of two counts relating to the same transaction he desired to proceed generally is addressed to the sound discretion of the court. Sanders v. People, 109 Colo. 243 , 125 P.2d 154 (1942); People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev'd on other grounds, 712 P.2d 1023 ( Colo. 1986 ).
Defendant's remedy, in cases where two sections overlap and evidence is identical, is to move for an election as between counts as provided for by this section; and if no such application is filed, he is limited to the remedy of concurrent sentencing. People v. Blair, 195 Colo. 462 , 579 P.2d 1133 (1978).
Knowledge and actions of deputies and assistants imputed to district attorney. Deputies and assistant district attorneys function only by virtue of the district attorney's authority, and their knowledge and official actions are imputed to the district attorney for purposes of the compulsory joinder statute. Corr v. District Court, 661 P.2d 668 (Colo. 1983).
Power of court to protect accused in this regard. When the evidence in this case disclosed that the defendant was being prosecuted under two counts for distinct and different felonies, the court should have interposed sua sponte to protect him from being tried and convicted upon both counts together. Not to do so was reversible error. White v. People, 8 Colo. App. 289, 45 P. 539 (1896).
Prosecutor need not elect where different counts properly joined. Where different counts are properly joined in a criminal information, the prosecutor is not obliged to elect one upon which he will proceed to trial. Smaldone v. People, 102 Colo. 500 , 81 P.2d 385 (1938).
Prosecutor may go to jury on both counts. Where a criminal information embraces two counts, one for larceny and the other for receiving stolen goods, the same evidence being admissible to support both charges, the prosecutor is not required to elect, but may go to the jury on both. Smaldone v. People, 102 Colo. 500 , 81 P.2d 385 (1938).
Or request jury be instructed verdict of guilt is returnable on one count only. Where two counts were based upon the same transaction, counsel may request the court to instruct the jury that a verdict of guilty could be returned on only one of the counts. Sanders v. People, 109 Colo. 243 , 125 P.2d 154 (1942).
While a conviction on joined counts of confidence game and false pretenses predicated upon the same transaction cannot necessarily stand, the question is solved where the trial court instructs the jury that, if it finds the defendant guilty of confidence game it cannot find him guilty of false pretenses; that if it finds him guilty of false pretenses it cannot find him guilty of confidence game; and if it finds him guilty of conspiracy to commit one of the foregoing felonies, it cannot find him guilty of conspiracy to commit the other. Small v. People, 173 Colo. 304 , 479 P.2d 386 (1970).
Subsection (3) requires concurrent sentences only where the counts of which the accused was convicted were supported by identical evidence. People v. Anderson, 187 Colo. 171 , 529 P.2d 310 (1974); Qureshi v. District Court, 727 P.2d 45 ( Colo. 1986 ); People v. Ellinger, 754 P.2d 396 (Colo. App. 1987); People v. Johnson, 74 P.3d 349 (Colo. App. 2002); People v. Le, 74 P.3d 431 (Colo. App. 2003); People v. Torrez, 2013 COA 37 M, 316 P.3d 25.
If, under the discretionary authority of subsection (3), the trial court chooses not to require the prosecution to elect, and the defendant is convicted on multiple counts based on identical evidence, then "the sentences imposed must run concurrently". People v. Anderson, 187 Colo. 171 , 529 P.2d 310 (1974); People v. Tivis, 727 P.2d 392 (Colo. App. 1986).
Section 18-1.3-1004 (5)(a) does not create an exception to the general rule found in subsection (3) of this section that a court must impose concurrent sentences for counts based on identical evidence. People v. Torrez, 2013 COA 37 M, 316 P.3d 25.
The trial court has discretion to impose consecutive or concurrent sentences when a defendant is convicted of multiple offenses. Such authority is not affected by this section unless the crimes are supported by identical evidence. People v. Dixon, 950 P.2d 686 (Colo. App. 1997).
Evidence supporting different crimes is considered identical for purposes of this section when the same act or acts gave rise to both charges. People v. Dixon, 950 P.2d 686 (Colo. App. 1997).
No requirement that sentences run concurrently. Where the offenses for which a defendant are convicted are not based on the same act or series of acts arising from the same criminal episode, there is no requirement that the sentences for each offense run concurrently. People v. Early, 692 P.2d 1116 (Colo. App. 1984); Qureshi v. District Court, 727 P.2d 45 ( Colo. 1986 ).
Inapplicable to different theories of same crime. Subsection (3) applies only to cases charging several different offenses, and not to the various theories of first-degree murder. People v. Bowman, 669 P.2d 1369 (Colo. 1983).
Consecutive sentencing for same transaction improper. When the burglary and the larceny involve one transaction, typical of many burglary-larceny situations, consecutive, double sentencing for the same transaction is inherently wrong and basically unjust and evades the legislative intent. Maynes v. People, 169 Colo. 186 , 454 P.2d 797 (1969). But see Trujillo v. Patterson, 266 F. Supp. 901 (D. Colo. 1966 ), aff'd per curiam, 389 F.2d 1003 (10th Cir. 1967).
Consecutive sentences for burglary and for larceny are improper. Maes v. People, 169 Colo. 200 , 454 P.2d 792 (1969).
But consecutive sentences proper for multiple offenses occurring during one continuous criminal episode where offenses, although involving some common elements of proof, were nevertheless separate and distinct, and required proof of different facts to establish their disparate elements. People v. Martinez, 36 P.3d 154 (Colo. App. 2001).
Consecutive sentences may be imposed when the crimes require proof of different elements and are supported by different evidence. People v. Russom, 107 P.3d 986 (Colo. App. 2004).
Concurrent sentences are not prejudicial. The denial of a motion to compel election might constitute prejudicial error, but where the sentences run concurrently, there was no prejudice. Sanders v. People, 109 Colo. 243 , 125 P.2d 154 (1942).
Law depends on facts in each particular case. The law relating to joinder and severance and that which permits consolidation of charges depends on the facts in each particular case. Hunter v. District Court, 193 Colo. 308 , 565 P.2d 942 (1977).
Applicability to proceedings against juvenile. When a court has jurisdiction to entertain criminal proceedings against a juvenile under § 19-1-104(4)(b)(II), any additional charges arising out of the same act or series of acts can and must be prosecuted in that same action, even though they do not rise to the seriousness of class 3 felonies. People v. Jiminez, 651 P.2d 395 (Colo. 1982).
Compulsory joinder section provides no exceptions to requirement of a single multiple-count prosecution. A juvenile faced with a misdemeanor charge and related traffic charges committed as part of the same act or series of acts should be afforded the protection of the compulsory joinder statute despite the fact that under the juvenile code a juvenile court has no authority to try traffic charges when such charges are the sole basis for a delinquency petition. Marquez v. County Court, 719 P.2d 797 (Colo. App. 1986).
Where multiple convictions are erroneously entered based on identical evidence, the appropriate remedy is to sustain the conviction that gives maximum effect to the jury's verdicts and vacate the duplicate convictions. People v. Denton, 91 P.3d 388 (Colo. App. 2003).
Where defendant is convicted of multiple counts arising out of the same incident, but proof of each count was not based on identical evidence, the imposition of consecutive sentences was appropriate. People v. Jiron, 796 P.2d 499 (Colo. App. 1990).
This section is designed to protect an accused defendant from an oppressive second trial and to preserve judicial and legal resources. People v. McCormick, 859 P.2d 846 (Colo. 1993).
By extending the constitutional guarantee against double jeopardy, this section establishes the specific circumstances under which a subsequent prosecution may be barred. People v. McCormick, 859 P.2d 846 (Colo. 1993).
This section contains five elements which must be satisfied before a subsequent prosecution is barred: (1) The offenses must have been committed in the same judicial district; (2) there must be a prosecution against the offender; (3) the prosecutor must have had knowledge of the several offenses at the commencement of the prosecution; (4) the offenses must have arisen out of the same criminal episode; and (5) the offender must have been previously subjected to a single prosecution. People v. McCormick, 859 P.2d 846 ( Colo. 1993 ); Zipse v. County Ct. for Jefferson County, 917 P.2d 331 (Colo. App. 1996); People v. Allen, 944 P.2d 541 (Colo. App. 1996).
In determining whether the third element has been met, the focus should be on prosecutorial knowledge at the commencement of the jeopardy phase of the criminal prosecution. People v. McCormick, 859 P.2d 846 (Colo. 1993).
This section does not bar a subsequent prosecution where the attorney had no knowledge and does not participate in the decision to prosecute the different offenses. People v. McCormick, 859 P.2d 846 ( Colo. 1993 ); People v. Allen, 944 P.2d 541 (Colo. App. 1996).
For a subsequently charged offense to be properly barred, the offense must have been ready for prosecution prior to the first trial, in addition to the district attorney having knowledge of the offense. People v. McCormick, 859 P.2d 846 (Colo. 1993).
Wife's authority as a private party to seek contempt sanctions for violation of a restraining order was independent of district attorney's authority to file criminal charges. Contempt of court proceeding and prosecution for criminal trespass and misdemeanor menacing, therefore, were not subject to compulsory joinder pursuant to this section. People v. Allen, 944 P.2d 541 (Colo. App. 1996).
Absent contrary evidence, fact that police officers issue separate summonses and complaints for multiple misdemeanors or petty offenses arising out of the same criminal episode provides no basis in fact or law to impute the knowledge of the separate offenses to the district attorney. Zipse v. County Ct. for Jefferson County, 917 P.2d 331 (Colo. App. 1996).
A defendant may not oppose a prosecution's failed motion to join two cases and then later move to dismiss the second case because the court did not join the cases originally. A defendant waives his or her joinder rights when he or she objects to a joinder motion and the court denies the motion. People v. Marshall, 2014 COA 42 , 348 P.3d 462.
Court did not abuse its discretion by rejecting defendant's guilty plea prior to joinder of two cases where doing so would prevent prosecution of a felony charge. Defendant attempted to plead guilty to a misdemeanor charge before the prosecution moved to join the cases. The compulsory joinder statute would therefore prevent prosecution of the second charge. There is no absolute right to have a guilty plea accepted. The maneuver was an attempt to manipulate the legal system. People v. Leverton, 2017 COA 34 , 405 P.3d 402.
B. Illustrative Cases.
Count for murder and one for manslaughter may be tried together. Where the first count of an indictment was for murder and the second for manslaughter, it was held that the prosecutor might proceed to trial upon both counts at the same time, and that he could not properly be required to elect upon which count he would rely, so long as it appeared from the evidence that the two counts related to the same transaction. Kelly v. People, 17 Colo. 130, 29 P. 805 (1892).
Counts for burglary, larceny, and related offenses. One indictment may contain a count for burglary and one for larceny. Parker v. People, 13 Colo. 155, 21 P. 1120 (1889).
An information charging defendants in separate counts with breaking ore from certain mines with intent to steal, and with removing ore from the same premises with intent to defraud, was properly consolidated for trial with an information charging the same defendants in separate counts with larceny and receiving stolen goods knowing them to have been stolen, where both informations and both counts in each information refer to one and the same transaction and constitute but one offense. Bergdahl v. People, 27 Colo. 302, 61 P. 228 (1900).
The stealing of several articles of property at the same time and place as one continuous transaction may be prosecuted as a single offense, although the several articles belonged to several owners. Sweek v. People, 85 Colo. 479, 277 P. 1 (1929).
Rape and assault to commit rape. When relating to the same transaction, completed rape and an assault to commit that offense rightly may be charged in separate counts of the same information. Abeyta v. People, 112 Colo. 195 , 147 P.2d 481 (1944).
Joinder of count for assault on child under 16 with count for contributing to juvenile delinquency was proper. Warren v. People, 121 Colo. 118 , 213 P.2d 381 (1949).
Two separate counts charging perjury were properly joined in one indictment where the two counts were admittedly based upon the same facts, and such facts would render defendants guilty under both sections. People v. Swanson, 109 Colo. 371 , 125 P.2d 637 (1942).
Marijuana possession and motor vehicle offenses. Where a charge of possession of a marijuana concentrate involves an act which occurs at practically the same time and in the same place as the offenses of speeding and driving under the influence, the marijuana charge arises out of the "same criminal episode" as those other offenses for purposes of the compulsory joinder statute. Corr v. District Court, 661 P.2d 668 (Colo. 1983).
Concealed weapon and possession of controlled substance. Where a defendant enters a plea of guilty to a concealed weapons charge, the trial court can later dismiss a charge of possession of a controlled substance which arises out of the same criminal episode when the police and district attorney, through a field test, had probable cause to believe that the capsules seized contained barbiturates and when they could have and should have learned of the specific identity of the capsules prior to the time of the first preliminary hearing. People v. Deschamp, 662 P.2d 171 (Colo. 1983).
Second degree kidnapping and violation of custody. Where charges resulted from long family dispute and defendants took their children from guardians who had legal custody, trial court abused its discretion in not requiring district attorney to elect one charge or in not instructing jury that it could find defendants guilty of only one offense. People v. Tippett, 733 P.2d 1183 (Colo. 1987).
Court did not abuse its discretion by not requiring election between kidnapping and violation of custody where, in contrast with Tippett case, defendant never attempted to contact police or child welfare agency, never initiated proceeding to obtain custody, and apparently was motivated only by a desire to punish his former wife for the marital dissolution. People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).
Second degree kidnapping and second degree kidnapping involving sexual assault are not separate offenses; therefore this section held not to apply. People v. Henderson, 810 P.2d 1058 ( Colo. 1991 ); Lewis v. People, 261 P.3d 480 ( Colo. 2011 ).
Either the crime of first degree sexual assault or the crime of sexual assault on a child, depending on the facts of the case, is necessarily a lesser included offense of second degree kidnapping including sexual assault. Defendant's conviction for at least one of such sexual assault crimes must merge into the defendant's conviction for second degree kidnapping including sexual assault. Because the two sexual assault crimes are not lesser included crimes of each other, and because the sexual assault elements in the kidnapping conviction are satisfied by proof of either of the sexual assault crimes, the defendant's conviction for only one of the sexual assault crimes must be vacated. People v. Henderson, 794 P.2d 1050 (Colo. App. 1990).
There can be only one conviction for first degree murder when there is only one victim. People v. Fincham, 799 P.2d 419 (Colo. App. 1990).
Convictions may not be entered for both second degree murder and first degree felony murder when there is only one victim. People v. Driggers, 812 P.2d 702 (Colo. App. 1991).
Defendant cannot be convicted of both felony murder and aggravated robbery when felony murder conviction is based upon offense of aggravated robbery. People v. Driggers, 812 P.2d 702 (Colo. App. 1991).
Defendant may not be simultaneously convicted of felony murder and the felony on which the felony murder conviction rests. Where a defendant is convicted of multiple felonies, all of which are alleged as the legal predicates for the commission of felony murder, only that felony that most directly contributes to the death of the victim should be vacated. People v. Huynh, 98 P.3d 907 (Colo. App. 2004).
Convictions for aggravated motor vehicle theft and attempted aggravated robbery are factually and legally inconsistent. People v. James, 981 P.2d 637 (Colo. App. 1998).
Trial court did not abuse its discretion in denying motion to elect between second degree murder and second degree assault. The two offenses are separate offenses having different elements, and in any event, the court sentenced defendant to concurrent sentences as required by subsection (3). People v. Fry, 74 P.3d 360 (Colo. App. 2002), aff'd on other grounds, 92 P.3d 970 ( Colo. 2004 ).
III. LESSER INCLUDED OFFENSES.
A. In General.
Burden on defendant not enough to make constructive notice unconstitutional. It is true that a prosecution's use of the lesser included offense doctrine places some burden upon a defendant to determine the specific charges that have been made against him. This fact, in itself, however, is not enough to make the constructive notice that is embodied in the greater charge unconstitutional. The effectiveness of many constitutional rights of an accused depends upon the self-initiative of the accused. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).
Defendant presumed on notice that he or she can be convicted of lesser included offense. The provisions of this section and Crim. P. 31(c) are embodiments of the rule at common law that a defendant was presumed to be on notice that he or she could be convicted of the crime charged or a lesser offense included therein. If this presumption of notice can be said to satisfy the sixth amendment guarantees of notice, the prosecution's right to an instruction on an offense necessarily included within the offense charged must be upheld. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).
One count may incorporate another count by reference. People v. Incerto, 180 Colo. 928 , 505 P.2d 1309 (1973).
A defendant cannot be convicted of more than one offense if one offense is a lesser included offense of the other. People v. Hancock, 186 Colo. 30 , 525 P.2d 435 (1974); People v. Martinez, 640 P.2d 255 (Colo. App. 1981); People v. Ball, 813 P.2d 759 (Colo. App. 1990); Armintrout v. People, 864 P.2d 576 ( Colo. 1993 ); People v. Moore, 877 P.2d 840 ( Colo. 1994 ); People v. Fisher, 904 P.2d 1326 (Colo. App. 1994); Litwinsky v. Zavaras, 132 F. Supp. 2d 1316 (D. Colo. 2001 ); Page v. People, 2017 CO 88, 402 P.3d 468.
The rule of merger in Colorado treats an offense as lesser included when proof of the essential elements of the greater offense necessarily establishes the elements required to prove the lesser offense. Armintrout v. People, 864 P.2d 576 ( Colo. 1993 ); Boulies v. People, 770 P.2d 1274 ( Colo. 1989 ); Litwinsky v. Zavaras, 132 F. Supp. 2d 1316 (D. Colo. 2001 ).
The lesser included offense "merges" into the conviction of the greater offense, and the defendant cannot be separately punished for it. Litwinsky v. Zavaras, 132 F. Supp. 2d 1316 (D. Colo. 2001).
When defendant is convicted of multiple lesser included offenses, the court must vacate the conviction of the offense that most directly relates to the elements of the greater offense. People v. Halstead, 881 P.2d 401 (Colo. App. 1994).
When the trial court must vacate a conviction among multiple convictions, the court should enter as many convictions and impose the longest sentences that are legally possible to fully effectuate the jury's verdict. People v. Glover, 893 P.2d 1311 (Colo. 1995) (standard established subsequent to the decision in People v. Halstead annotated above).
Jury not required to acquit defendant of offense charged in order to consider lesser nonincluded offenses. People v. Skinner, 825 P.2d 1045 (Colo. App. 1991).
B. Legal Standard.
In determining whether an offense is a lesser included offense of another, a court applies the strict comparison of the elements test, comparing the elements of the statutes involved. People v. Rivera, 186 Colo. 24 , 525 P.2d 431 (1974); People v. Chapman, 192 Colo. 322 , 557 P.2d 1211 (1977); People v. Martinez, 640 P.2d 255 (Colo. App. 1981); People v. Ball, 813 P.2d 759 (Colo. App. 1990); Patton v. People, 35 P.3d 124 ( Colo. 2001 ); Litwinsky v. Zavaras, 132 F. Supp. 2d 1316 (D. Colo. 2001 ); People v. Griffith, 58 P.3d 1111 (Colo. App. 2002); People v. Delci, 109 P.3d 1035 (Colo. App. 2004); People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005).
The strict elements test to determine whether an offense is a lesser included offense of another offense is if the elements of the lesser offense are a subset of the elements of the greater offense, such that the lesser offense contains only elements that are also included in the elements of the greater offense. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.
If the greater of two offenses includes all the legal and factual elements of the lesser, the greater includes the lesser; but if the lesser offense requires the inclusion of some necessary element not so included in the greater offense, the lesser is not necessarily included in the greater. People v. Futamata, 140 Colo. 233 , 343 P.2d 1058 (1959); Howard v. People, 173 Colo. 209 , 477 P.2d 378 (1970); People v. Velasquez, 178 Colo. 264 , 497 P.2d 12 (1972); People v. Ellinger, 754 P.2d 396 (Colo. App. 1987); People v. Ager, 928 P.2d 784 (Colo. App. 1996); People v. Ortiz, 155 P.3d 532 (Colo. App. 2006).
The test requires a comparison of the elements, not the evidence presented on those elements. Armintrout v. People, 864 P.2d 576 ( Colo. 1993 ); People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994); People v. Delci, 109 P.3d 1035 (Colo. App. 2004).
The statutory elements test is not the exclusive test for determining whether an offense is a lesser included offense of another. People v. Hoggard, 2017 COA 88 , __ P.3d __.
Statutory test better view and will be applied. The better view is that the statutes, and not the evidence, must establish the essential elements of the lesser included offense. In other words, in determining whether an offense is lesser included, the statutory test, which mandates that the greater offense must establish every essential element of the lesser included offense, will be applied. People v. Rivera, 186 Colo. 24 , 525 P.2d 431 (1974); Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.
Because the statutory test is easily and more uniformly applied and a defendant is entitled to fair notice of the charges against him, the only reasonable method of ensuring such notice is the statutes that set forth the constituent elements. It would be haphazard and unfair to say to a defendant that he must defend on the principal charge and any other charge that the evidence established. People v. Rivera, 186 Colo. 24 , 525 P.2d 431 (1974).
The "statutory elements test" is described as: If proof of the facts establishing the statutory elements of the greater offense necessarily establishes all of the elements of the lesser offense, the lesser offense is included for the purposes of subsection (5)(a). If, however, each offense necessarily requires proof of at least one additional fact that the other does not, the test is not satisfied. People v. Leske, 957 P.2d 1030 ( Colo. 1998 ); People v. Griffith, 58 P.3d 1111 (Colo. App. 2002).
The test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of a fact that the other does not. Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971); People v. Wieckert, 191 Colo. 511 , 554 P.2d 688 (1976), overruled on other grounds in Villafranca v. People, 194 Colo. 472 , 573 P.2d 540 (1978).
An offense is included within another if it is impossible to commit one offense without also committing the other, or if the only difference between the charges is in the degree of mens rea required or in the severity of the injury inflicted by the criminal conduct. People v. Martinez, 640 P.2d 255 (Colo. App. 1981).
Greater offense includes a lesser offense when the establishment of the essential elements of the greater necessarily establishes all of the elements required to prove the lesser. People v. Chapman, 192 Colo. 322 , 557 P.2d 1211 (1977).
It is the character of the evidence that must control in determining whether the lesser included offense of assault with intent to commit rape can stand alone or fall on acquittal of forcible rape. Miera v. People, 164 Colo. 254 , 434 P.2d 122 (1967).
C. Jury Instructions.
A court should instruct a jury on a lesser included offense only when there is a rational basis, warranted by the evidence, for acquitting the defendant of the greater offense and convicting him or her of the lesser. People v. Hansen, 191 Colo. 175 , 551 P.2d 710 (1976); People v. Bowers, 42 Colo. App. 467, 600 P.2d 95 (1979); People v. Lahr, 200 Colo. 425 , 615 P.2d 707 ( Colo. 1980 ); Bowers v. People, 617 P.2d 560 ( Colo. 1980 ); People v. Nhan Dao Van, 681 P.2d 932 ( Colo. 1984 ); People v. Bustos, 725 P.2d 1174 (Colo. App. 1986); People v. Ramirez, 18 P.3d 822 (Colo. App. 2000); People v. Griffith, 58 P.3d 1111 (Colo. App. 2002).
When a jury could entertain a reasonable doubt of a defendant's guilt of a greater offense, and simultaneously be convinced beyond a reasonable doubt of the defendant's guilt of a lesser included offense, the defendant is entitled to have the jury instructed on the lesser included offense. People v. Nhan Dao Van, 681 P.2d 932 ( Colo. 1984 ); People v. Castro, 10 P.3d 700 (Colo. App. 2000).
A defendant is not entitled to an instruction on a lesser included offense unless there is some evidence that, if believed, would render the defendant guilty of the lesser included offense, rather than the specifically charged offense. Ortega v. People, 178 Colo. 419 , 498 P.2d 1121 (1972).
Evidence must justify submission of lesser included offense to jury. The submission of a lesser degree or an included crime is justified only where there is some basis in the evidence for finding the accused innocent of the higher crime and yet guilty of the lower one. People v. Velasquez, 178 Colo. 264 , 497 P.2d 12 (1972).
In determining whether a lesser nonincluded offense instruction is appropriate, a court should use the same legal standard used to determine whether a lesser included offense instruction is required. A lesser included offense instruction is required whenever there is a rational basis for the jury to acquit the defendant on the greater charge and convict on the lesser offense. People v. Moore, 902 P.2d 366 (Colo. App. 1994).
When prosecutor may obtain lesser included offense instruction. Mindful of the primacy of notice within the constitutional guarantee of due process of law and of the duty of the courts to safeguard this right, where the lesser included offense upon which the prosecution requested an instruction is easily ascertainable from the charging instrument and not so remote in degree from the offense charged that the prosecution's request appears to be an attempt to salvage a conviction from a case that has proven to be weak, the prosecution may obtain a lesser included offense instruction over the defendant's objection. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).
Before a lesser nonincluded offense may be submitted to a jury in a theory of the case instruction, there must be a rational basis for the jury to acquit the defendant of the offense charged and simultaneously find him guilty of the lesser offense. People v. Bustos, 725 P.2d 1174 (Colo. App. 1986).
A rational basis does not exist when the lesser offense instruction is inconsistent with defendant's theory of defense. People v. Chavez, 190 P.3d 760 (Colo. App. 2007).
When the record failed to present any evidence that would lead to a rational basis for acquitting the defendant of the greater offense but convicting the defendant of the lesser offense, request to instruct jury on lesser included offense was properly denied. People v. Price, 969 P.2d 766 (Colo. App. 1998).
A criminal defendant who maintains his or her innocence at trial is not automatically barred from seeking jury instructions on a lesser included offense or on a related defense. If an instruction is given in that case, there must be a rational basis for it in the evidence presented at trial. After a review of the record, there was no rational basis in the evidence for the lesser included offense instruction or the voluntary intoxication instruction. Brown v. People, 239 P.3d 764 (Colo. 2010).
No error for trial court to fail to instruct jury on second and third degree criminal trespass as lesser offense of second degree burglary of a building since there was no rational basis for acquitting the defendant of the offense charged and convicting him of the included offense. People v. Romero, 694 P.2d 1256 (Colo. 1985).
It was not error for the trial court to refuse defendant's requested instruction that stated that false imprisonment was a lesser included offense of attempted second degree kidnapping since there was no rational basis, supported by the evidence, for acquitting the defendant of the greater offense charged and convicting him of the lesser included offense. People v. Arispe, 191 Colo. 555 , 555 P.2d 525 (1976).
Subsection (8) prohibits the trial court to instruct the jury to return a guilty verdict on a lesser included offense without the prosecutor's consent if the jury has reached consensus as to the defendant's guilt but is deadlocked as to the degree of guilt. People v. Richardson, 184 P.3d 755 (Colo. 2008).
However, it does not prevent a jury from being presented with a verdict form that gives jurors the option of considering the charge and its lesser included offenses on an individual basis, and acquitting the defendant on some or all of them. People v. Richardson, 184 P.3d 755 (Colo. 2008).
Therefore, the verdict form that allowed the jurors to return a not guilty verdict only if they found defendant not guilty of first degree murder, second degree murder, manslaughter, and criminally negligent homicide was not required by subsection (8). People v. Richardson, 184 P.3d 755 (Colo. 2008).
Claim of innocence alone does not disentitle defendant to lesser included offense instruction. The instruction, however, must be supported by evidence at trial. There was no error in failing to instruct the jury on attempted first degree murder where victim's injuries were such that no rational jury could have found the shooter acted with anything but a premeditated intent to cause death. People v. Brown, 218 P.3d 733 (Colo. App. 2009), aff'd, 239 P.3d 764 ( Colo. 2010 ).
Instruction not required. Mere chance of the jury's rejection of uncontroverted testimony and conviction on a lesser charge does not necessitate an instruction on the lesser charge. People v. Campbell, 678 P.2d 1035 (Colo. App. 1983).
When the undisputed evidence clearly established the completed crime of second degree kidnapping, the trial court did not err in refusing to submit to the jury the defendant's instruction on the lesser offense of attempted second degree kidnapping. Apodaca v. People, 712 P.2d 467 (Colo. 1985).
Instruction on lesser offense when evidence supported conviction for greater offense. When the evidence supported a conviction for felony menacing, the fact that the trial court improperly submitted an instruction on misdemeanor menacing to the jury did not affect defendant's conviction for the lesser included offense of misdemeanor menacing. People v. Lahr, 200 Colo. 425 , 615 P.2d 707 (1980).
Lesser offense instruction is properly refused when an element that distinguishes the greater offense from the lesser offense is uncontested. Defendant charged with aggravated robbery and felony murder was not entitled to lesser theft offense instruction because there was no evidence disputing the use of force against, and the killing of, the victim. People v. Villalobos, 159 P.3d 624 (Colo. App. 2006).
Error to refuse instruction on included offense. Where the evidence is sufficient to support a charge of assault with the intent to commit rape, and such as to justify a simultaneous acquittal of the charge of rape, refusal of a trial court to submit a verdict and instruction on assault with intent to commit rape is error. People v. Futamata, 140 Colo. 233 , 343 P.2d 1058 (1959).
Trial court's refusal to give a lesser nonincluded offense instruction does not justify reversal if the court instructed on a comparable lesser nonincluded offense. People v. Rubio, 222 P.3d 355 (Colo. App. 2009).
Jury instruction that characterizes lesser nonincluded offenses as lesser included offenses is harmless error when jury does not convict defendant of any lesser nonincluded offenses. People v. Skinner, 825 P.2d 1045 (Colo. App. 1991).
D. Finding of Lesser Included Offenses.
For purposes of determining which of the underlying felonies constitutes the lesser included offense of felony murder, the felony that most directly contributes to the death of the victim should serve as the legal predicate for the felony murder conviction. Callis v. People, 692 P.2d 1045 (Colo. 1984).
When conviction for felony murder is based upon kidnapping, conviction on the lesser included offense of kidnapping is precluded; however, defendant may be convicted on the separate crimes of kidnapping and first degree murder. People v. Fincham, 799 P.2d 419 (Colo. App. 1990); People v. McCormick, 881 P.2d 423 (Colo. App. 1994).
When conviction for felony murder was predicated on the death of a robbery victim, a simultaneous conviction for robbery is precluded. People v. Cook, 22 P.3d 947 (Colo. App. 2000).
Aggravated robbery within felony murder based on robbery victim's death. Where the defendant's conviction for felony murder is based upon the causation of the robbery victim's death during the course of the robbery, a charge of aggravated robbery of the same victim is a lesser included offense of the felony murder charge within the meaning of subsection (5)(c). People v. Raymer, 662 P.2d 1066 (Colo. 1983).
Rape within felony murder based on rape victim's death. Where first degree sexual assault victim is killed during the course of the assault, charge of first degree sexual assault is a lesser included offense of felony murder charge. People v. Horton, 683 P.2d 358 (Colo. App. 1984); Callis v. People, 692 P.2d 1045 ( Colo. 1984 ); People v. Angelini, 706 P.2d 2 (Colo. App. 1985).
Under the circumstances present in the case, subsections (1)(a) and (5)(a) prohibit a judgment of conviction for attempted sexual assault in addition to a conviction for felony murder. People v. Blackmer, 888 P.2d 343 (Colo. App. 1994).
The predicate offenses for "felony" first degree assault under § 18-3-202 fit the statutory test for a lesser included offense. As such, the conviction of the predicate offense must merge into the conviction for "felony" first degree assault, even though the predicate offense is a more serious offense and carries a greater punishment. People v. Halstead, 881 P.2d 401 (Colo. App. 1994).
The trial court correctly merged defendant's conviction for first degree assault into one of his convictions for first degree sexual assault. People v. Cole, 926 P.2d 164 (Colo. App. 1996).
Since defendant could not be convicted of both felony assault and aggravated robbery (since commission of robbery is an element of the assault), the assault conviction, rather than the robbery conviction, should be vacated. People v. Fisher, 926 P.2d 170 (Colo. App. 1996).
Generally, the crimes of second degree murder and attempted second degree murder are, respectively, lesser included offenses of first degree murder or attempted first degree murder under any theory, and second degree murder is a lesser included offense of first degree murder by extreme indifference. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).
When jury convicted defendant of both extreme indifference murder and second degree murder and attempted murder, the trial court erred in applying the rule of lenity by vacating the more serious offenses instead of the lesser offenses. The proper course of action under such circumstances is to vacate the lesser offenses. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).
When a defendant tries to kill one person but mistakenly kills a different person and is convicted of both attempted murder of the intended victim and murder of the actual victim, the attempted murder conviction must be vacated because it is a lesser included offense of the murder conviction. Under the doctrine of transferred intent the specific intent to kill the intended victim transferred to the actual victim and makes the defendant criminally liable for that death. People v. Jackson, 2018 COA 79 , __ P.3d __.
Reckless endangerment is a lesser included offense of first degree assault with intent to cause serious bodily injury. People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005).
Assault to rape is an included offense of the crime of rape, both include the necessary aggravated intent and both contain the element of assault. People v. Futamata, 140 Colo. 233 , 343 P.2d 1058 (1959).
Unlawful sexual contact is a lesser included offense of sexual assault based on sexual intrusion. Proof of sexual intrusion requires proof of sexual contact with a person's intimate parts satisfying the strict elements test, and unlawful sexual contact involves less serious injury than sexual intrusion and lesser culpability than sexual assault. People v. Loyas, 259 P.3d 505 (Colo. App. 2010), overruled in Page v. People, 2017 CO 88, 402 P.3d 468, as annotated below.
Unlawful sexual contact is a lesser included offense of sexual assault. Page v. People, 2017 CO 88, 402 P.3d 468 (overruling Loyas v. People, 259 P.3d 505 (Colo. App. 2010), to the extent it held otherwise); People v. Sabell, 2018 COA 85 , 452 P.3d 91.
When a defendant is convicted of both offenses based on the same conduct, the conviction for unlawful sexual contact merges into the conviction for sexual assault. Page v. People, 2017 CO 88, 402 P.3d 468 (overruling Loyas v. People, 259 P.3d 505 (Colo. App. 2010), to the extent it held otherwise); People v. Sabell, 2018 COA 85 , 452 P.3d 91.
Establishing the elements of sexual assault by means of penetration necessarily establishes the elements of unlawful sexual contact. The elements of unlawful sexual contact are a subset of the elements of sexual assault by means of penetration. Page v. People, 2017 CO 88, 402 P.3d 468 (overruling Loyas v. People, 259 P.3d 505 (Colo. App. 2010), to the extent it held otherwise).
One who commits reckless driving necessarily has been guilty of careless driving, for the greater degree of negligence includes the lesser. People v. Chapman, 192 Colo. 322 , 557 P.2d 1211 (1977).
In terms of subsection (5), careless driving "is established by proof of the same or less than all the facts required to establish . . ." reckless driving. People v. Chapman, 192 Colo. 322 , 557 P.2d 1211 (1977).
Careless driving is not a lesser included offense of vehicular assault (reckless). People v. Zweygardt, 2012 COA 119 , 298 P.3d 1018.
Reckless driving is a lesser included offense of vehicular eluding. People v. Pena, 962 P.2d 285 (Colo. App. 1997); People v. Esparza-Treto, 282 P.3d 471 (Colo. App. 2011).
DUI is a lesser included offense of vehicular assault-DUI and vehicular homicide-DUI. Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.
Trial court erred when it failed to merge a conviction of reckless endangerment with a conviction for attempted first degree murder with extreme indifference. People v. Torres, 224 P.3d 268 (Colo. App. 2009).
Assault, a predicate offense for first degree burglary, is a lesser included offense of first degree burglary. Therefore, the two counts merge. People v. Delci, 109 P.3d 1035 (Colo. App. 2004).
Attempt to induce child prostitution is a lesser included offense encompassed within the crime of inducement of child prostitution. People v. Hansen, 708 P.2d 468 (Colo. App. 1985).
Possession of an illegal weapon under § 18-12-102 (4) is a lesser included offense of possession of weapon by a previous offender under § 18-12-108 (1) when the same weapon is alleged in each charge. People v. Brown, 119 P.3d 486 (Colo. App. 2004).
Second degree trespass is a lesser included offense of second degree burglary. People v. Rock, 2017 CO 84, 402 P.3d 472.
In a case where the lesser included offense carries a higher penalty, the court must vacate the conviction carrying the lower penalty and impose the higher penalty in order to maximize the jury's verdict. People v. Delci, 109 P.3d 1035 (Colo. App. 2004).
Second degree forgery is a lesser included offense of felony forgery. The mens rea and actus reus elements for both forgery offenses are identical; to commit either offense, a person must, with intent to defraud, falsely make, complete, alter, or utter a written instrument. The distinction between the offenses boils down to felony forgery's requirement that the falsified document be of a particular type. Second degree forgery does not require proof of that element. People v. Hoggard, 2017 COA 88 , __ P.3d __.
First degree possession of contraband under § 18-8-204.1 (1) is a lesser included offense of first degree introducing contraband by making under § 18-8-203 (1)(b) . People v. Jamison, 2018 COA 121 , 436 P.3d 569.
Criminal mischief involving damage to another's building or occupied structure is included in first degree arson involving burning the same building or occupied structure because first degree arson, by its very nature, occurs in a single criminal episode. People v. Welborne, 2018 COA 127 , 457 P.3d 71.
Court did not err by instructing the jury on the lesser included offense of soliciting for prostitution in a soliciting for child prostitution case. People v. Ross, 2019 COA 79 , __ P.3d __.
E. Not A Lesser Included Offense.
The crime of sexual assault on a child as part of a pattern of sexual abuse is not a lesser included offense of the crime of sexual assault on a child by one in a position of trust. In addition, neither of these are sentence enhancers for a person convicted of sexual assault on a child. All are separate crimes and each requires proof of facts not required by any of the others. People v. Valdez, 874 P.2d 415 (Colo. App. 1994).
Sexual assault on a child does not differ from sexual assault on a child by one in a position of trust only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpability suffices to establish its commission. In fact, these offenses do not involve different degrees of culpability, injury, or risk of injury, but they do differ with respect to other elements. Because the offenses differ in ways other than those contemplated by subsection (5)(c), sexual assault on a child is not a lesser included offense of sexual assault by one in a position of trust. People v. Leske, 957 P.2d 1030 (Colo. 1998).
Conviction of sexual assault on a child by one in a position of trust does not encompass the offense of sexual assault on a child as a lesser included offense. Subsection (5)(a) does not require an "evidentiary test" for determining lesser included offenses. Instead, a "strict elements test", or a comparison of the statutory elements of the offenses in question, is required in order to determine whether an offense is lesser included. Applying this test, the language of sexual assault on a child offense requires that the victim be 15 years of age or younger, whereas the position of trust offense requires only that the victim be less than 18 years of age. Thus, each offense requires proof of a fact that the other does not, and sexual assault on a child is not a lesser included offense of sexual assault on a child by one in a position of trust. People v. Leske, 957 P.2d 1030 (Colo. 1998).
Convictions for solicitation to commit sexual assault on a child by one in a position of trust and attempted sexual assault on a child do not merge because each requires proof of intent to commit a different underlying offense. People v. Douglas, 2012 COA 57 , 296 P.3d 234.
Second degree burglary not lesser included offense of first degree burglary because conviction of class 3 felony second degree burglary required proof of a fact beyond the proof required for first degree burglary, even though entry was made into only one condominium unit. People v. Ball, 813 P.2d 759 (Colo. App. 1990).
When defendant's burglary conviction for first degree burglary is vacated as to victim, defendant's conviction for third degree assault as to the same victim is not a lesser included offense and thus does not merge. People v. Fuentes, 258 P.3d 320 (Colo. App. 2011).
Burglary is an offense against property, and the general assembly intended the additional element of assault in the first degree burglary statute to modify and aggravate the offense of burglary and not to change the gravamen of the crime. People v. Fuentes, 258 P.3d 320 (Colo. App. 2011).
A single entry can support only one conviction of first degree burglary, even if multiple assaults occur. People v. Fuentes, 258 P.3d 320 (Colo. App. 2011).
Not error to impose consecutive sentences of 32 years for first degree assault and life sentence for murder. People v. Ager, 928 P.2d 784 (Colo. App. 1996).
Attempted first degree assault is not a lesser included offense of attempted first degree murder after deliberation. The use of a deadly weapon is an element of attempted assault in the first degree but not of attempted murder. People v. Petschow, 119 P.3d 495 (Colo. App. 2004).
Under former criminal code, assault with deadly weapon was not a lesser included offense of assault with intent to commit murder. People v. Rivera, 186 Colo. 24 , 525 P.2d 431 (1974).
Heat of passion manslaughter is not a pure lesser included offense of either first or second degree murder because the greater inclusive offenses do not necessarily establish every essential element of this form of manslaughter. People v. Lewis, 676 P.2d 682 (Colo. 1984).
Attempted reckless manslaughter is not a lesser included offense of first degree assault with intent to cause serious bodily injury, because the fact that a defendant causes serious bodily injury to a person does not necessarily mean that he or she recklessly took a step toward causing the death of a person. People v. Tallwhiteman, 124 P.3d 827 (Colo. App. 2005).
Convictions do not merge when the elements required to be proven to convict defendant as a complicitor to an assault committed by another are not identical to those required to be proven to convict him of committing first degree assault as a principal. People v. Martinez, 1 P.3d 192 (Colo. App. 1999).
Second degree assault is not a lesser included offense of aggravated robbery because second degree assault requires proof of bodily injury and specific intent. People v. Dotson, 55 P.3d 175 (Colo. App. 2002).
Menacing is not a lesser included offense of second degree assault because the offenses differ with respect to both the culpability required and the injury or risk of the injury required. People v. Palmer, 944 P.2d 634 (Colo. App. 1997), aff'd in part and rev'd in part on other grounds, 964 P.2d 524 ( Colo. 1998 ).
Third degree assault not included in robbery. Third degree assault requires proof of bodily injury, an element not necessary to culpability under robbery; therefore, the former offense is not included within the latter. People v. Flores, 39 Colo. App. 556, 575 P.2d 11 (1977).
First degree criminal trespass is not a lesser included offense of first degree burglary. However, it is a lesser nonincluded offense, and the trial court may instruct a jury on such offense over the objection of the defendant if the charging document provides notice that defendant might have to defend against that charge. People v. Satre, 950 P.2d 667 (Colo. App. 1997).
First degree criminal trespass is not a lesser included offense of second degree burglary. People v. Denhartog, 2019 COA 23 , 452 P.3d 148.
First degree criminal trespass is distinct from misdemeanor theft. People v. Martinez, 640 P.2d 255 (Colo. App. 1981).
When the essential elements of vehicular homicide are compared to those of criminally negligent homicide, it becomes clear that criminally negligent homicide is not a lesser included offense in a charge brought under § 18-3-106 (1)(b). People v. Nhan Dao Van, 681 P.2d 932 (Colo. 1984).
Reckless driving is not a lesser included offense of vehicular homicide and vehicular assault because reckless driving posed an additional risk of injury to other persons and property in the vicinity of the accident. People v. Clary, 950 P.2d 654 (Colo. App. 1997).
Eluding a police officer, as defined in § 42-4-1413 , is not a lesser included offense of vehicular eluding, as defined in § 18-9-116.5 . People v. Fury, 872 P.2d 1280 (Colo. App. 1993) (decided prior to 1994 amendment relocating former § 42-4-1512 to § 42-4-1413 ); People v. Pena, 962 P.2d 285 (Colo. App. 1997); People v. Esparza-Treto, 282 P.3d 471 (Colo. App. 2011).
None of the elements of the offense of possession of drug paraphernalia are the same as those that relate to the charge of possession of a controlled substance, and thus a jury's finding that a defendant was guilty of the lesser offense would in no way tend to disprove the greater charge nor present a rational basis on which the jury could have chosen between them. People v. Bustos, 725 P.2d 1174 (Colo. App. 1986).
Possession of a controlled substance is not a lesser included offense of distribution of the same controlled substance. People v. Thurman, 948 P.2d 69 (Colo. App. 1997).
Information charging possession of narcotics with intent to sell was sufficient to advise the defendant that he must be prepared to controvert evidence of possession and to defend on that charge. Because possession is an essential element of possession with intent to sell, the defendant can scarcely claim surprise by the introduction of evidence establishing possession. People v. Cooke, 186 Colo. 44 , 525 P.2d 426 (1974).
Rape and incest, as well as the other named kindred offenses, remain separate and distinct offenses. McGee v. People, 160 Colo. 46 , 413 P.2d 901 (1966).
As do assault and kidnapping. The facts necessary to prove that the defendant was guilty of assault with a deadly weapon were not the same as those required to prove that the defendant was guilty of kidnapping. Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971).
Sexual assault is not a lesser included offense of, and therefore not merged into, second degree kidnapping involving sexual assault. People v. Henderson, 810 P.2d 1058 ( Colo. 1991 ); People v. Martinez, 32 P.3d 520 (Colo. App. 2001); People v. Ramirez, 140 P.3d 169 (Colo. App. 2005); Lewis v. People, 261 P.3d 480 ( Colo. 2011 ).
Since reckless endangerment requires proof of an element that is not required to prove first degree assault on a peace officer, it is not a lesser included offense of such charge. The trial court did not err when it refused defendant's tendered jury instruction on reckless endangerment as a lesser included offense on that charge. People v. Delgado-Elizarras, 131 P.3d 1110 (Colo. App. 2005).
Arson is distinct from criminal mischief because each contains elements not required for the other. People v. Meyer, 952 P.2d 774 (Colo. App. 1997).
A defendant is entitled to a jury instruction on a lesser nonincluded offense where there exists a rational basis in the evidence to simultaneously acquit the defendant of the greater charged offense and convict the defendant of the lesser offense. Montoya v. People, 2017 CO 40, 394 P.3d 676; People v. Naranjo, 2017 CO 87, 401 P.3d 534.
Court did not err in not giving lesser nonincluded offense instruction. Here, there was no rational basis for the jury to simultaneously acquit defendant of felony menacing and convict him of disorderly conduct. People v. Naranjo, 2017 CO 87, 401 P.3d 534.
18-1-409. Appellate review of sentence for a felony.
- When a sentence is imposed upon any person following a conviction of any felony, other than a class 1 felony in which a death sentence is automatically reviewed pursuant to section 18-1.3-1201 (6) for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 (6) for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102 (6), the person convicted shall have the right to one appellate review of the propriety of the sentence, having regard to the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based; except that, if the sentence is within a range agreed upon by the parties pursuant to a plea agreement, the defendant shall not have the right of appellate review of the propriety of the sentence. The procedures employed in the review shall be provided by supreme court rule.
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No appellate court shall review any sentence which is imposed unless, within forty-nine days from the date of the imposition of sentence, a written notice is filed in the trial court to the effect that review of the sentence will be sought; said notice must state the grounds upon which it is based.
(2.1) and (2.2) Repealed.
- The reviewing court shall have power to affirm the sentence under review, substitute for the sentence under review any penalty that was open to the sentencing court other than granting probation or other conditional release, or remand the case for any further proceedings that could have been conducted prior to the imposition of the sentence under review, and for resentencing on the basis of such further proceedings. No sentence in excess of the one originally imposed shall be given unless matters of aggravation in addition to those known to the court at the time of the original sentence are brought to the attention of the court during the hearing conducted under this section. If the court imposes a sentence in excess of the one first given, it shall specifically identify the additional aggravating facts considered by it in imposing the increased sentence.
Source: L. 71: R&RE, p. 401, § 1. C.R.S. 1963: § 40-1-509. L. 76: (2) R&RE, p. 549, § 8, effective July 1. L. 79: (2.1) repealed and (2.2) R&RE, pp. 670, 672, §§ 17, 24, effective July 1; (1) amended, p. 675, § 2, effective August 1. L. 81: (2.2) repealed, p. 969, § 2, effective July 1. L. 91, 2nd Ex. Sess.: (1) amended, p. 14, § 2, effective September 20; (1) amended, p. 22, § 2, effective October 11. L. 93: (2) amended, p. 1460, § 4, effective June 6. L. 99: (1) amended, p. 799, § 21, effective July 1. L. 2002: (1) amended, p. 1510, § 179, effective October 1. L. 2002, 3rd Ex. Sess.: (1) amended, pp. 33, 34, §§ 29, 30, effective July 12. L. 2012: (2) amended, (SB 12-175), ch. 208, p. 862, § 102, effective July 1. L. 2020: (1) amended, (SB 20-100), ch. 61, p. 208, § 8, effective March 23.
Cross references: (1) For the supreme court rule concerning appellate review of felony sentences, see rule C.A.R. 4(c).
(2) For the legislative declaration contained in the 2002 act amending subsection (1), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration contained in the 2002 act amending subsection (1), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session.
RECENT ANNOTATIONS
"[T]he propriety of the sentence," as that phrase is used in subsection (1), does not comprehend the manner in which a sentence was imposed. The plea proviso does not preclude an appeal related to the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which the sentence was based. Sullivan v. People, 2020 CO 58, 465 P.3d 25 (overruling People v Lassek, 122 P.3d 1029 (Colo. App. 2005)).
The plea proviso does not preclude a defendant whose sentence did not exceed the cap agreed to in the plea agreement from raising nonconstitutional challenges to the manner in which the sentence is imposed. Sullivan v. People, 2020 CO 58, __ P.3d __ (overruling People v Lassek, 122 P.3d 1029 (Colo. App. 2005)).
ANNOTATION
Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982).
The power to declare by statute what punishment may be assessed against those convicted of crime is legislative and not judicial. If the statute is not in violation of the constitution, then any punishment assessed by a court within the limits fixed thereby cannot be adjudged excessive. Walker v. People, 126 Colo. 135 , 248 P.2d 287 (1952).
This section is constitutional. People v. Carter, 186 Colo. 391 , 527 P.2d 875 (1974).
Not improper exercise of commutation reserved to executive. Appellate review of sentences by supreme court, before finality of judgment of conviction, as allowed by this section, is a proper judicial function and not an improper exercise of the power of commutation reserved to the executive department. People v. Carter, 186 Colo. 391 , 527 P.2d 875 (1974).
This section is a constitutionally permitted expansion of appellate jurisdiction by the general assembly. People v. Carter, 186 Colo. 391 , 527 P.2d 875 (1974).
And does not amount to a legislative grant of additional original jurisdiction to the supreme court. It is exactly what it expressly purports to be -- an appellate review of sentencing -- clearly within the jurisdiction of the supreme court under § 2 of art. VI, Colo. Const. People v. Carter, 186 Colo. 391 , 527 P.2d 875 (1974).
This section sets the parameters for an appellate court's review of a defendant's sentence. People v. Williams, 916 P.2d 624 (Colo. App. 1996).
But this section does not limit sentencing following new trial, as opposed to remand after review of sentence. Where defendant did not seek a review of his sentence but, rather, appealed the judgment of conviction, this section did not bar sentencing of defendant as an habitual criminal. People v. Williams, 916 P.2d 624 (Colo. App. 1996).
Defendant cannot appeal sentence imposed following his plea of guilty to vehicular homicide and leaving the scene of an accident involving death because his claim that the sentencing judge was biased, depriving him of his constitutional right to have an impartial judge determine his sentence, was not filed in a timely manner. By failing to file his claim in a timely manner, he waived his argument that the sentencing judge should have recused himself based on an appearance of partiality. People v. Dobler, 2015 COA 25 , 369 P.3d 686.
This section does not preclude review of constitutional challenges. An eighth amendment challenge is of a different magnitude than a statutory challenge. The issue is not whether a particular sentence was a wise exercise of discretion, but whether it was so disproportionate as to constitute cruel and unusual punishment. People v. McCulloch, 198 P.3d 1264 (Colo. App. 2008).
Jurisdiction to review propriety of sentence. Neither the court of appeals nor the supreme court of Colorado has jurisdiction to review the propriety of a sentence except on direct appeal from the initial sentence and then only under the limitations established in § 18-1-409 and C.A.R. 4(c)(I). Mikkleson v. People, 199 Colo. 319 , 618 P.2d 1101 (1980).
Good cause standard under C.A.R. 26(b) for an enlargement of time to file appeal encompasses the statutory deadline in this section. People v. Hill, 296 P.3d 121 (Colo. App. 2011).
Propriety of imposing a consecutive sentence is reviewable on appeal under subsection (1) even though defendant's plea was subject to a sentencing cap. Review of the propriety of a sentence involves a review of the intrinsic fairness or appropriateness of the sentence itself taking into account the nature of the offense, the character of the offender, and the public interest. The question of whether the trial court was statutorily prohibited from imposing consecutive rather than concurrent sentences is not a matter of the intrinsic fairness or appropriateness of the sentence, but rather of whether the trial court exceeded its statutory authority in determining the sentence. Thus, subsection (1) does not preclude review of defendant's appeal. Juhl v. People, 172 P.3d 896 (Colo. 2007).
Filing of notice of appeal is jurisdictional prerequisite for appellate review of a lower court decision to deny a Crim. P. 35(a) motion. People v. Silvola, 198 Colo. 228 , 597 P.2d 583 (1979); People v. Boespflug, 107 P.3d 1118 (Colo. App. 2004).
Review of denial of Crim. P. 35(b) motion. It is only in situations where the trial court has refused to consider any information in mitigation and does not make findings in support of its decision, that an error in denying a Crim. P. 35(b) motion is sufficient to invoke appellate jurisdiction. Mikkleson v. People, 199 Colo. 319 , 618 P.2d 1101 (1980).
Only exception to rule that relief from sentence imposed lies only with executive. People v. Spann, 37 Colo. App. 152, 549 P.2d 427 (1975), rev'd on other grounds, 193 Colo. 53 , 561 P.2d 1268 (1977).
Mandates appellate court correction. This section not only permits but also directs the appellate court to mandate the correction of a sentence excessive in length, having due regard for the protection of the public interest, the nature of the offense, and the character of the offender as it relates to the probability of his rehabilitation. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976).
A sentencing hearing is a critical stage of a criminal proceeding. However, hearsay is admissible because of the substantial difference between the sentencing hearing and the trial itself. People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975).
Sentencing decision should reflect rational selection from various sentencing alternatives in a manner consistent with the dominant aims of the sentencing process. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
Proper and fair sentence is one that can be reasonably explained. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
A trial court has wide discretion in the imposition of a sentence. Rochon v. People, 134 Colo. 448 , 306 P.2d 1080 (1957).
The choice of place of confinement is within the sound discretion of the court, just as is the length of term of imprisonment. People v. Weihs, 187 Colo. 124 , 529 P.2d 317 (1974).
Of necessity the trial judge has wide latitude in imposing sentence. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976); People v. Cohen, 617 P.2d 1205 ( Colo. 1980 ).
Sentencing by its very nature is a discretionary decision which requires the weighing of various factors and striking a fair accommodation between the defendant's need for rehabilitation or corrective treatment and society's interest in safety and deterrence. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
A sentencing judge has wide discretion in selecting the appropriate disposition. People v. Horne, 619 P.2d 53 (Colo. 1980).
The trial court has wide discretion in sentencing and, absent a finding of abuse of discretion, an appellate court will not substitute its judgment for that of the trial judge. People v. Madonna, 651 P.2d 378 (Colo. 1982).
Sentencing discretion reposes in court. It is the court, however, and not the probation department, in whom sentencing discretion is reposed. People v. Edwards, 198 Colo. 52 , 598 P.2d 126 (1979).
Cause may be remanded for proper sentence. Where specifications of error principally stressed the question of whether punishment may be decreed properly for both rape and kidnapping offenses upon the theory that the evidence showed no more than a single continuous act, it was held that where sentence for kidnapping was excessive, the cause should be remanded to the district court for the imposition of a proper sentence for the kidnapping offense within the limits of the proper section. Abeyta v. People, 112 Colo. 49 , 145 P.2d 884 (1944).
Or correction may be made in appellate court. An erroneous judgment of the district court sentencing one guilty of second degree murder to confinement in the penitentiary at hard labor for the remainder of his natural life may be corrected by appeal or other like proceeding in the appellate court. People ex rel. Best v. District Court, 115 Colo. 240 , 171 P.2d 774 (1946).
Appellate court should not modify sentence imposed by trial judge unless record exhibits clear abuse of discretion by the trial judge in his determination. People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975).
The supreme court of Colorado should not modify a sentence unless it appears that the trial court has failed to give appropriate consideration to both the needs of the defendant and those of society. People v. Cameron, 200 Colo. 279 , 613 P.2d 1312 (1980).
Guidelines for appellate review. The appellate court's determination of whether a sentence is intrinsically unfair or excessive requires consideration of its propriety or fairness within the context of the nature of the offense, the character of the offender, and the public interest. People v. Piro, 671 P.2d 1341 (Colo. App. 1983).
Sentencing error where extraordinary aggravating circumstances not found. Judge erred in sentencing a 19-year old beyond the presumptive range because extraordinary aggravating circumstances justifying the sentence were not found even though the defendant was accused of committing five felonies in a nine-month period, including an arrest while on probation. People v. Jenkins, 674 P.2d 981 (Colo. App. 1983).
Guidelines for the determination of a sentence involve weighing several factors, including the nature of the offense, the character of the offender, rehabilitation of the defendant, the development of respect for law and deterrence of crime, and the protection of the public. People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975); People v. Scott, 200 Colo. 402 , 615 P.2d 35 (1980); People v. Cohen, 617 P.2d 1205 ( Colo. 1980 ); People v. Horne, 619 P.2d 53 ( Colo. 1980 ); People v. Magee, 626 P.2d 1139 ( Colo. 1981 ).
In deciding what sentence is most appropriate, the trial judge must attempt to work out a fair accommodation between the need to protect society at large and to deter potential offenders, to punish the convicted offender, and to rehabilitate him. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976); People v. Cameron, 200 Colo. 279 , 613 P.2d 1312 (1980).
The sentencing judge properly may consider the public interest in safety and deterrence in sentencing an offender, especially in crimes of serious personal violence. People v. Self, 200 Colo. 406 , 615 P.2d 693 (1980).
Before imposing sentence, the trial court should consider the nature of the offense, the character of the offender, and the public interest in safety and deterrence. People v. Hunt, 632 P.2d 572 (Colo. 1981).
In reviewing the district court's imposition of sentence, the supreme court is to consider the following factors: The nature of the offense, the character of the offender, the public interest in safety and deterrence, and the sufficiency and accuracy of the information on which the sentence was based. People v. Mattas, 645 P.2d 254 (Colo. 1982).
Trial judge held to have properly considered evidence of the defendant's improved conduct while in prison, the nature of the offense, the character of the offender and the public interest in safety and deterrence in arriving at the decision to reduce the defendant's sentence. People v. Bridges, 662 P.2d 161 (Colo. 1983).
All factors to be considered in imposition of sentence. Although a sentencing court may consider a defendant's false testimony as probative of his rehabilitative potential, the fact that defendant may have lied under oath is insufficient justification, standing alone, to warrant the imposition of a maximum sentence. Equal weight must be given to all factors which comprise the goals of sentencing. People v. Wilson, 43 Colo. App. 68, 599 P.2d 970 (1979).
Although the absence of a prior felony conviction or significant criminal involvement, by itself, certainly may constitute a mitigating factor worthy of consideration, it is only one factor and is not conclusive on the sentencing decision. People v. Scott, 200 Colo. 402 , 615 P.2d 35 (1980).
Sentence must be supported by reasons in record. In felony convictions involving the imposition of a sentence to a correctional facility, the sentencing judge must state on the record the basic reasons for the imposition of sentence. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
Particularly where sentence involves restrictive form of deprivation. Requirement that sentencing judge state on the record the basic reasons for imposing a sentence is particularly essential in those cases where the sentence involves a very restrictive form of deprivation, such as a term of confinement to a correctional facility. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
A sentence for an extended term must be clearly justified in the record. People v. Scott, 200 Colo. 402 , 615 P.2d 35 (1980); People v. Cohen, 617 P.2d 1205 ( Colo. 1980 ).
Where a sentence of an extended duration is imposed, the record must establish a clear justification for the trial judge's action. People v. Horne, 619 P.2d 53 (Colo. 1980).
When sentence is within presumptive range without regard to crime of violence-bodily injury aggravator, defendant is not prejudiced by jury's finding that victim suffered bodily injury as to each count even though there was no evidence of bodily injury on one of the counts. People v. Anderson, 183 P.3d 649 (Colo. App. 2007).
Failure to state reasons creates obstacle to appellate review. The failure of a sentencing judge to state on the record the basic reasons for the selection of a particular sentence creates a burdensome obstacle to effective and meaningful appellate review of sentences. People v. Watkins, 200 Colo. 163 , 613 P.2d 633 (1980).
Sentence may not be based on speculation. Speculation or conjecture regarding possible future facts is not accurate information upon which a sentence may be crafted. People v. Flower, 644 P.2d 64 (Colo. App. 1981), aff'd, 658 P.2d 266 ( Colo. 1983 ).
Consideration of trauma of witnesses is not proper factor. Any consideration of the trauma to the victims caused by their having to testify in determining the length of sentence would be error in light of defendant's fundamental right to require the prosecution to prove every element of the case. People v. Wilson, 43 Colo. App. 68, 599 P.2d 970 (1979).
In sentencing, the court's responsibility is to individualize a sentence and to tailor the sentence to fit the crime and the particular defendant who is before the court. People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975).
Presentence investigation report should always be made part of record on appeal when review of the appropriateness of a sentence is sought. People v. Horne, 619 P.2d 53 (Colo. 1980).
Any imposition of the maximum or close to the maximum penalty must be supported by sound reasons in the record for a sentence that is too long tends to reenforce the criminal tendencies of the convicted defendant. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976); People v. Wilson, 43 Colo. App. 68, 599 P.2d 970 (1979).
A long sentence may sometimes be justified on the basis of the depravity of the crime for which the defendant has been convicted. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976).
Where a vicious or serious crime is committed by a hardened criminal, the need for a maximum or near-maximum sentence may be clearer still. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976).
Or because of repeated convictions. A long or even maximum sentence may also be justified where the defendant's past record reveals repeated convictions and where the public safety can only be assured if the offender is confined. People v. Strong, 190 Colo. 189 , 544 P.2d 966 (1976).
Trial court acted within its discretion when it accorded substantial weight to defendant's pattern of criminal behavior and the likelihood he would commit further crimes that would endanger the public, and the court made sufficient findings to exceed the presumptive sentence range. People v. Howell, 64 P.3d 894 (Colo. App. 2002).
Judgment and sentence not final until appellate remedies exhausted. For the purposes of reviewing and granting relief from sentences validly imposed, the judgment and sentence is not final until after appellate remedies for review have been exhausted. People v. Carter, 186 Colo. 391 , 527 P.2d 875 (1974).
Defendant is entitled to the benefits of amendatory legislation which mitigates penalties for crimes, when relief is sought before finality has attached to the judgment of conviction. People v. Thornton, 187 Colo. 202 , 529 P.2d 628 (1974).
Possible ameliorative benefits of an amended habitual criminal statute must be made available to a defendant notwithstanding the requirements of this section. People v. Vigil, 39 Colo. App. 371, 570 P.2d 13 (1977).
Defendant may seek such relief by direct appeal under section. A defendant, who is entitled to the benefits of amendatory legislation which mitigates penalties for crimes, when relief is sought before finality has attached to the judgment of conviction, may seek such relief by direct appeal under this section. People v. Thornton, 187 Colo. 202 , 529 P.2d 628 (1974).
Section limited to felonies. Where the defendant was convicted of simple assault and was sentenced to six months in jail and fined $500, all within the statutory limits, even had the present statute on review of sentences been in effect, the sentence imposed would not be subject to review, for it is limited to felonies. People v. DeJesus, 184 Colo. 230 , 519 P.2d 944 (1974).
No review for misdemeanor. There is no provision for appellate review of the propriety of a misdemeanor sentence. People v. Roberts, 668 P.2d 977 (Colo. App. 1983).
A minimum sentence is a prerequisite to appellate review. Otherwise, there is no means to determine whether the minimum given is three years greater than the minimum provided in the statute. Nugent v. District Court, 184 Colo. 353 , 520 P.2d 592 (1974) (decided prior to the 1976 amendment to this section).
This section entitled defendant to benefits of §§ 16-11-101 and 16-11-304 . Defendant, who was sentenced prior to the effective date of the 1973 amendments to §§ 16-11-101 and 16-11-304 -- which legislation provided for the imposition of indeterminate sentences for class 4 and class 5 felonies -- was entitled to the benefit of this legislation under relief sought by this section. People v. Thornton, 187 Colo. 202 , 529 P.2d 628 (1974).
A defendant who was sentenced to a term with a fixed minimum and fixed maximum for conviction of a class 4 felony was entitled under this section to the benefits of §§ 16-11-101 and 16-11-304 . People v. Race, 187 Colo. 204 , 529 P.2d 629 (1974).
Failure to impose equal sentences on criminal confederates not violative of equal protection. Due to the individualized nature of sentencing, there is no rule that confederates in crime must receive equal sentences, nor that failure to impose equal sentences violates equal protection of the law under the Colorado or United States Constitutions. People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975).
Contention that statutory penalties cruel and unusual not justifiable where sentence suspended. Where accused was given a suspended sentence and granted probation, his contention on appeal that the penalties statutorily prescribed for the offense of which he was convicted were "cruel and unusual punishments" did not present a justifiable question. People v. Summit, 183 Colo. 421 , 517 P.2d 850 (1974).
Ten- to 15-year term for assault in the first degree was not excessive in light of appellant's active participation in the planning and execution of the crimes, and the violence involved in the attempt to flee the scene of the crimes and avoid capture by law enforcement officers. People v. Campbell, 188 Colo. 79 , 532 P.2d 945 (1975).
Sentence may be imposed to run consecutively to sentence already imposed. A sentencing court has discretion to impose a sentence to be served concurrently with or consecutively to a sentence already imposed upon a defendant. People v. Flower, 644 P.2d 64 (Colo. App. 1981), aff'd, 658 P.2d 266 ( Colo. 1983 ); People v. Cullen, 695 P.2d 750 (Colo. App. 1984); People v. Martinez, 179 P.3d 23 (Colo. App. 2007).
But not to sentence not yet imposed. A trial court may not require a sentence otherwise properly imposed to be served consecutively to some other sentence not yet imposed in another pending case. People v. Flower, 644 P.2d 64 (Colo. App. 1981), aff'd, 658 P.2d 266 ( Colo. 1983 ).
Consecutive sentences for separate assaults not excessive. A defendant convicted by a jury on two counts of assault and sentenced on each count, the sentences to run consecutively, contended that the sentences amounted to excessive, cruel, and unusual punishment because the defendant must serve an entire term before being eligible for probation on the second consecutive term, and because the second assault following so closely upon the first assault amounted to one transaction. It was held that this was clearly not the case as the two victims were in two different places and were not assaulted contemporaneously. Harris v. People, 174 Colo. 483 , 484 P.2d 1223 (1971).
Statute inapplicable where defendant sentenced in 1969 and rehearing held in 1970. People v. Jenkins, 180 Colo. 35 , 501 P.2d 742 (1972).
Since the offense for which the defendant was sentenced was committed prior to July 1, 1972, the right of appeal under this section is not available to him. People v. Knight, 185 Colo. 364 , 525 P.2d 425 (1974).
This section applies only to offenses committed after July 1, 1972. People v. Silvola, 198 Colo. 228 , 597 P.2d 583 (1979).
Invoking fifth amendment at codefendant's trial. Where a defendant is appealing his sentence and fears that his testimony in the trial of his codefendant might be used at a subsequent hearing to enhance the sentence should it be vacated, he may invoke his fifth amendment right against self-incrimination. People v. Villa, 671 P.2d 971 (Colo. App. 1983).
Claim of unjust sentencing not allowed after plea bargain. Where trial court repeatedly reminded the defendant of what the sentence would be when it advised him, at the time of the acceptance of his plea of guilty, pursuant to Crim. P. 11, and at no time did the defendant or his counsel protest the sentence or raise an objection that the trial court was not properly exercising its discretion in imposing the sentence, the defendant could not, after benefitting from the plea bargain, claim on appeal that he has been unjustly sentenced. People v. Cunningham, 200 Colo. 303 , 614 P.2d 886 (1980).
A sentence imposed within a range agreed upon by the parties pursuant to a plea bargain precludes challenging the sentence on appeal. Subsection (1) does not require a sentencing range or cap to confer a benefit or concession on the defendant. People v. Scofield, 74 P.3d 385 (Colo. App. 2002).
Section precludes review of sentence imposed within limits of the plea agreement. People v. Garcia, 55 P.3d 243 (Colo. App. 2002).
The plea agreement proviso in subsection (1) precludes nonconstitutional challenges to a sentencing proceeding by a defendant whose sentence did not exceed the cap agreed to in the plea agreement. People v. Lassek, 122 P.3d 1029 (Colo. App. 2005).
Statute creates single right to review the propriety of the sentence not a separate right to review of sentencing proceedings. While the manner in which the sentence was imposed is an enumerated factor that may affect the propriety of the sentence, there is no separate right to review of the manner of the sentencing. People v. Lassek, 122 P.3d 1029 (Colo. App. 2005).
For defendants whose sentences did not exceed the agreed cap, the proviso's prohibition against appellate review of the propriety of the sentence bars review of all statutory factors that may have affected propriety, including the manner in which the sentence was imposed. People v. Lassek, 122 P.3d 1029 (Colo. App. 2005).
Review not precluded if aggravating circumstances imposed on sentence but plea bargain did not include agreement that aggravating factors existed. Defendant cannot be said to have agreed to a sentence within an aggravated range if plea agreement merely identified the number of years the sentence was not to exceed, not an acknowledgment that aggravating factors existed. People v. Misenhelter, 121 P.3d 230 (Colo. App. 2004).
Sentence in a plea agreement can be subject to appellate review if there is no indication in the record that the defendant's agreement included any type of agreed sentencing range or cap under subsection (1). People v. O'Dell, 53 P.3d 655 (Colo. App. 2001).
Refusal to grant defendant credit for presentence confinement not error. People v. Magee, 626 P.2d 1139 (Colo. 1981).
An order of restitution becomes part of the sentence which, in accordance with Crim. P. 32(c), is part of the judgment of conviction. When a court orders a defendant, over his objection, to pay restitution to the victim or the victim's family as part of the judgment of conviction for a felony, the order of restitution is appealable pursuant to the statutory procedures applicable to the appellate review of a felony sentence. People v. Johnson, 780 P.2d 504 (Colo. 1989).
Where a defendant agrees to make restitution when entering a plea, the defendant cannot later disavow the agreement on the basis that there was no showing that he or she had caused the victim's injury. People in Interest of A.V., 2018 COA 138 M, 446 P.3d 887.
A fine was unconstitutionally excessive where the court failed to consider the particular financial circumstances of the defendant in setting the fine and the court set the fine in an amount that was so disproportionate to the defendant's circumstances that there could be no realistic expectation that the defendant would be able to pay the fine. People v. Malone, 923 P.2d 163 (Colo. App. 1995).
Statute as basis for jurisdiction. See People v. Pacheco, 41 Colo. App. 188, 581 P.2d 741 (1978); Triggs v. People, 197 Colo. 229 , 591 P.2d 1024 (1979).
Rule of appellate review on filing notice of appeal of criminal sentence governs over conflicting statute which had not been amended after rule was changed. People v. Arevalo, 835 P.2d 552 (Colo. App. 1992).
However, the statute prevails over a conflicting supreme court rule in substantive matters. People v. Prophet, 42 P.3d 61 (Colo. App. 2001).
The prohibition on a trial court increasing a sentence on remand in subsection (3) applies only if, in the original appeal, the defendant challenged that particular sentence's propriety under the statute. People v. Johnson, 2015 CO 70, 363 P.3d 169.
Trial court violated defendant's statutory right when it imposed a harsher department of corrections sentence on resentencing than the original sentence to community corrections. The court imposed a sentence based on what it would have done if it had been the original sentencing court, in violation of subsection (3). People v. Hopkins, 190 P.3d 833 (Colo. App. 2008).
Applied in People v. Cushon, 189 Colo. 230 , 539 P.2d 1246 (1975); People v. Walker, 189 Colo. 545 , 542 P.2d 1283 (1975); People v. District Court, 196 Colo. 401 , 586 P.2d 31 (1978); People v. Edwards, 198 Colo. 52 , 598 P.2d 126 (1979); People in Interest of R.R., 43 Colo. App. 208, 607 P.2d 1013 (1979); People v. Espinosa, 200 Colo. 307 , 614 P.2d 889 (1980); People v. Foster, 200 Colo. 283 , 615 P.2d 652 (1980); People v. Martinez, 628 P.2d 608 ( Colo. 1981 ); People v. Francis, 630 P.2d 82 ( Colo. 1981 ); People v. District Court, 638 P.2d 65 (Colo. 1981); People v. Hamling, 634 P.2d 1023 (Colo. App. 1981); People v. Fuller, 791 P.2d 702 ( Colo. 1990 ).
18-1-409.5. Appellate review of sentence not within the presumptive range. (Repealed)
Source: L. 79: Entire section added, p. 670, § 18, effective July 1. L. 81: Entire section repealed, p. 969, § 2, effective July 1.
18-1-410. Postconviction remedy.
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Notwithstanding the fact that no review of a conviction of crime was sought by appeal within the time prescribed therefor, or that a judgment of conviction was affirmed upon appeal, every person convicted of a crime is entitled as a matter of right to make applications for postconviction review. Except as otherwise required by subsection (1.5) of this section, an application for postconviction review must, in good faith, allege one or more of the following grounds to justify a hearing thereon:
- That the conviction was obtained or sentence imposed in violation of the constitution or laws of the United States or the constitution or laws of this state;
- That the applicant was convicted under a statute that is in violation of the constitution of the United States or the constitution of this state, or that the conduct for which the applicant was prosecuted is constitutionally protected;
- That the court rendering judgment was without jurisdiction over the person of the applicant or the subject matter;
- That the sentence imposed exceeded the maximum authorized by law, or is otherwise not in accordance with the sentence authorized by law;
- That there exists evidence of material facts, not theretofore presented and heard, which, by the exercise of reasonable diligence, could not have been known to or learned of by the defendant or his attorney prior to the submission of the issues to the court or jury, and which requires vacation of the conviction or sentence in the interest of justice;
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- That there has been significant change in the law, applied to the applicant's conviction or sentence, allowing in the interests of justice retroactive application of the changed legal standard.
- The ground set forth in this paragraph (f) may not be asserted if, prior to filing for relief pursuant to this paragraph (f), a person has not sought appeal of a conviction within the time prescribed therefor or if a judgment of conviction has been affirmed upon appeal.
- Any grounds otherwise properly the basis for collateral attack upon a criminal judgment; or
- That the sentence imposed has been fully served or that there has been unlawful revocation of parole, probation, or conditional release.
(1.5) An application for postconviction review in a class 1 felony case where a sentence of death has been imposed shall be limited to claims of newly discovered evidence and ineffective assistance of counsel; except that, for any sentence of death imposed on or after the date upon which the Colorado supreme court adopts rules implementing the unitary system of review established by part 2 of article 12 of title 16, C.R.S., any application for postconviction review in such case shall be governed by the provisions of part 2 of article 12 of title 16, C.R.S.
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- Except as otherwise required by paragraph (b) of this subsection (2), procedures to be followed in implementation of the right to postconviction remedy shall be as prescribed by rule of the supreme court of the state of Colorado.
- In any class 1 felony case where a sentence of death has been imposed, the district court shall expeditiously consider an application for postconviction remedy. It is the general assembly's intent that the district court give priority to cases in which a sentence of death has been imposed.
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- Except as otherwise provided in paragraph (b) of this subsection (3), an appeal of any order by the district court granting or denying postconviction relief in a case in which a sentence of death has been imposed shall be to the Colorado supreme court as provided by section 13-4-102 (1)(h), C.R.S. The procedures to be followed in the implementation of such review shall be in accordance with any rules adopted by the Colorado supreme court in response to the legislative intent expressed in section 16-12-101.5 (1), C.R.S.
- In any class 1 felony case in which a sentence of death is imposed on or after the date upon which the Colorado supreme court adopts rules implementing the unitary system of review established under part 2 of article 12 of title 16, C.R.S., the procedures for appealing any order by the district court granting or denying postconviction relief and review by the Colorado supreme court of such order shall be governed by the provisions of part 2 of article 12 of title 16, C.R.S., and by such rules adopted by the supreme court.
Source: L. 71: R&RE, p. 402, § 1. C.R.S. 1963: § 40-1-510. L. 73: p. 533, § 2. L. 75: (1)(f) amended, p. 211, § 28, effective July 16. L. 94: IP(1) and (2) amended and (1.5) and (3) added, p. 1474, § 2, effective July 1. L. 97: (1.5) and (3) amended, p. 1583, § 5, effective June 4.
Cross references: For limitations on collateral attacks, see § 16-5-402; for similar provisions concerning postconviction remedies, see Crim. P. 35.
RECENT ANNOTATIONS
A defendant is not entitled to the benefit of a statutory amendment when the defendant does not seek relief based on that amendatory legislation until after his or her conviction becomes final. People v. Cali, 2020 CO 20, 459 P.3d 516.
ANNOTATION
Law reviews. For comment on People v. Herrera (183 Colo. 155 , 516 P.2d 626 (1973)), see 46 U. Colo. L. Rev. 311 (1974); for article, "Crim. P. 35(c): Colorado Law Regarding Postconviction Relief", see 22 Colo. Law. 729 (1993).
Interests of justice control. Unless otherwise required in the interests of justice, any grounds for postconviction relief which have been fully and finally litigated should not be relitigated. Morse v. People, 180 Colo. 49 , 501 P.2d 1328 (1972).
Proceedings where relief applicable. It is apparent on the federal constitutional level and on the state level, both as a matter of constitutional policy as expressed by the supreme court and of legislative policy, that criminal safeguards attach regardless of the formal designation of a proceeding if the proceeding substantively involves incarceration or other criminal sanctions. Mora v. District Court, 177 Colo. 381 , 494 P.2d 596 (1972).
Relief granted where after-discovered evidence would render conviction uncertain. This section shows a legislative intent that in situations where it cannot be said with certainty that the jury would have convicted the defendant had it known the after-discovered evidence and where there is a possibility of perjury, at least for alleged crimes committed after July 1, 1972, postconviction relief may be granted. People v. Armstead, 179 Colo. 387 , 501 P.2d 472 (1972).
The general assembly intended subsection (1)(f) to confer a right of review of sentences, to the end that sentences might be equalized in light of changes in the Colorado criminal laws. People v. Herrera, 183 Colo. 155 , 516 P.2d 626 (1973).
But subsection (1)(f) invades the governor's exclusive power to grant a commutation after conviction as provided in § 7 of art. IV, Colo. Const., and therefore violates the doctrine of separation of powers embodied in art. III, Colo. Const. People v. Herrera, 183 Colo. 155 , 516 P.2d 626 (1973); People v. Johnson, 185 Colo. 285 , 523 P.2d 1403 (1974); People v. Rupert, 185 Colo. 288 , 523 P.2d 1406 (1974); People v. Arellano, 185 Colo. 280 , 524 P.2d 305 (1974); People v. Chavez, 185 Colo. 310 , 524 P.2d 307 (1974); People v. Simms, 186 Colo. 447 , 528 P.2d 228 (1974).
Relief from a sentence validly imposed may not be obtained through the judiciary after final conviction. People v. Rupert, 185 Colo. 288 , 523 P.2d 1406 (1974).
After conviction and exhaustion of appellate remedies, relief from a validly imposed criminal sentence may not be obtained through the judiciary. People v. Arellano, 185 Colo. 280 , 524 P.2d 305 (1974).
Trial court was without jurisdiction to grant postconviction relief from sentence imposed upon conviction for second-degree murder which became final on December 11, 1968. People v. Fulmer, 185 Colo. 366 , 524 P.2d 606 (1974).
Because once a criminal conviction has become final, any remedy lies in the executive department by way of commutation. People v. Arellano, 185 Colo. 280 , 524 P.2d 305 (1974); People v. Chavez, 185 Colo. 310 , 524 P.2d 307 (1974).
Where the governor has commuted defendant's sentence, the supreme court lacks jurisdiction to reduce or in any way alter or amend the sentence as commuted. People v. Simms, 186 Colo. 447 , 528 P.2d 228 (1974).
Where appellant filed his motion for postconviction remedy before his conviction had become final, the court had jurisdiction to entertain his motion for relief. People v. Thomas, 185 Colo. 395 , 525 P.2d 1136 (1974).
Because a defendant whose conviction has not become final is entitled to the benefits of amendatory legislation mitigating the penalty for the crime of which he was convicted. McClure v. District Court, 187 Colo. 359 , 532 P.2d 340 (1975); People v. Marlott, 191 Colo. 304 , 552 P.2d 491 (1976); People v. Macias, 631 P.2d 584 ( Colo. 1981 ).
A defendant is entitled to the benefits of amendatory legislation which mitigates penalties for crimes when the relief is sought before finality has attached to the judgment of conviction. Shook v. District Court, 188 Colo. 76 , 533 P.2d 41 (1975); Litsey v. District Court, 193 Colo. 341 , 565 P.2d 1343 (1977).
A defendant is entitled to the benefits of amendatory legislation mitigating the penalty for a crime where a defendant seeks relief from the sentence imposed before his conviction has become final. Naranjo v. District Court, 189 Colo. 21 , 536 P.2d 36 (1975).
Sentence imposed by the trial court which did not afford the defendant the benefit of amendatory legislation was not a valid and legal sentence. As such, it was subject to correction by the trial court at any time. People v. Jenkins, 40 Colo. App. 140, 575 P.2d 13 (1977).
A defendant whose conviction is affirmed on direct appeal may collaterally attack that conviction in a postconviction motion on the ground that state lost the authority to prosecute his conviction during the pendency of the direct appeal because the legislature changed the penalty for the crime of conviction. People v. Cali, 2018 COA 61 , __ P.3d __.
Where criminal statute declared unconstitutional. Where, within 120 days of imposition of sentence, the criminal statute underlying a conviction for disorderly conduct was declared unconstitutional, the court had jurisdiction to set aside the convictions and sentences and dismiss the charged offenses, even though the sentences for disorderly conduct were to be served concurrently with the sentences imposed for another offense for which defendants were properly convicted. People v. Henderson, 40 Colo. App. 147, 574 P.2d 872 (1977).
Subsection (1)(f) provides for the application of changed legal standards where there is a change in law mitigating penalties for crimes, and the application of the changed legal standards is mandatory. People v. Anderson, 187 Colo. 171 , 529 P.2d 310 (1974).
Subsection (1)(f) is especially appropriate where a change in the law intervenes before conviction is had and sentence is imposed. People v. Thomas, 185 Colo. 395 , 525 P.2d 1136 (1974).
Remedy not applicable to § 42-4-1202 . While this section provides for consideration of a significant change in the law upon review of a conviction of a crime, such review is not afforded to one who fails to comply with the implied consent statute, former § 42-4-1202 (3)(e), because no crime is involved there. Noe v. Dolan, 197 Colo. 32 , 589 P.2d 483 (1979).
Repeal of § 16-11-101 (1)(d) effective three months after sentencing. Where the effective date (July 1, 1979) of the repeal of § 16-11-101 (1)(d) was more than three months after the defendant was sentenced under its provisions, the repeal did not entitle the defendant to relief under subsection (1)(f)(I). People v. Steelman, 200 Colo. 177 , 613 P.2d 334 (1980).
Subsection (1)(f)(I) of this section permits the provisions of art. XVIII, § 16, of the state constitution (known as amendment 64), which decriminalized possession of one ounce or less of marijuana for personal use, to apply retroactively to defendants whose convictions were subject to appeal or postconviction motion on the effective date of the amendment, December 10, 2012. People v. Russell, 2014 COA 21 M, 396 P.3d 71, aff'd, 2017 CO 3, 387 P.3d 750.
Therefore, defendant's convictions for possession of less than one ounce of marijuana and possession of marijuana concentrate must be vacated. People v. Russell, 2014 COA 21 M, 396 P.3d 71, aff'd, 2017 CO 3, 387 P.3d 750, aff'd, 2017 CO 3, 387 P.3d 750.
A conviction for possession of one ounce or less of marijuana on appeal when art. XVIII, § 16(3), of the state constitution passed must be vacated. Article XVIII, § 16(3), of the state constitution applies retroactively to a conviction for possession of less than one ounce that was pending on appeal when that constitutional provision passed. The ameliorating effect of subsection (1)(f) applies to significant changes in the law adopted in the constitution. People v. Boyd, 2015 COA 109 , 395 P.3d 1128, aff'd, 2017 CO 2, 387 P.3d 755.
When motions under subsection (1)(f) to be filed. Motions filed pursuant to Crim. P. 35(b) and subsection (1)(f) may be filed at any time before the conviction becomes final. Litsey v. District Court, 193 Colo. 341 , 565 P.2d 1343 (1977).
A person may not seek postconviction relief based on a "significant change in the law" unless (1) the person has filed a timely appeal and (2) an appellate court has not affirmed the person's judgment of conviction. People v. Hamm, 2019 COA 90 , __ P.3d __.
No modification where old crimes repealed and replaced by new ones. It was clearly not the legislative intent behind this section to permit the modification of sentences where the earlier crimes have been subsequently repealed and substantially new crimes have been enacted in their place. People v. Marlott, 191 Colo. 304 , 552 P.2d 491 (1976).
It was not the legislative intent behind this section to permit the modification of sentences where the earlier crimes have been subsequently repealed and substantially new crimes have been enacted in their place. People v. Lake, 195 Colo. 454 , 580 P.2d 788 (1978).
Relitigation of a claim based on a change of law is specifically prohibited in a postconviction proceeding once a judgment of conviction has been affirmed upon appeal. People v. Banks, 924 P.2d 1161 (Colo. App. 1996).
Effect of § 16-5-402 . Even though the Colorado criminal code grants a convicted offender the right to seek collateral review of a constitutionally flawed conviction, the effect of § 16-5-402 (1) is to immediately cut off this right for all persons whose convictions antedate the statute by an interval of time in excess of the statutory limitation period. Such retrospective elimination of an existing statutory right, which the general assembly itself has recognized as a matter of "substantive right" included "within the concept of due process of law", cannot be squared with the constitutional prohibition against retrospectively depriving a person of a statutory right without due process of law. People v. Germany, 674 P.2d 345 ( Colo. 1983 ) (decided under former law).
Motion properly denied without evidentiary hearing where only issues of law raised. Where motion for postconviction relief of sentence reduction, alleging that the penalty for the degree of burglary of which defendant had been convicted had been reduced from five to 20 years to one to 10 years confinement in the state penitentiary, raised only issues of law, it was properly denied without an evidentiary hearing. People v. Martinez, 184 Colo. 155 , 524 P.2d 73 (1974).
No error occurred in manner hearing conducted. Where court had no jurisdiction to deal with motion for postconviction relief, no error occurred in the manner in which the hearing on such motion was conducted. People v. Mankowsky, 187 Colo. 145 , 529 P.2d 314 (1974).
When final conviction becomes basis for imposition of life sentence pursuant to the provisions of the habitual criminal statute, the supreme court has jurisdiction to determine whether that conviction may validly be considered under the terms of the recidivist statute. People v. Lake, 195 Colo. 454 , 580 P.2d 788 (1978).
Defendant convicted of theft by receiving does not receive ameliorative benefit when retroactive application of amendatory legislation is clearly not intended by its own terms. Legislation that amended theft by receipt statute to provide that amendment shall apply to acts committed on or after July 1, 1985 makes it clear that amendatory legislation is to apply prospectively only. People v. McCoy, 764 P.2d 1171 (Colo. 1988).
If a statute is silent as to whether it applies only prospectively, a defendant may seek retroactive application if defendant benefits from a significant change in the law. Defendant who committed and was charged with theft prior to the statutory amendment but was convicted and sentenced after the amendment should receive the benefit of the amendment to the theft statute when the amendment does not explicitly state that it is either retroactive or prospective. People v. Trujillo, 2018 COA 12 , 433 P.3d 78.
Five-year grace period from the effective date of § 16-5-402 on July 1, 1984, was implied for person seeking to challenge a constitutionally flawed conviction under this section, where conviction predated the length of time specified as a limitation period in § 16-5-402. People v. Fagerholm, 768 P.2d 689 (Colo. 1989).
Time limitations in § 16-5-402 are supplementary to and not in conflict with § 18-1-410. People v. Wiedemer, 852 P.2d 424 (Colo. 1993).
Statute as basis for jurisdiction. See People v. White, 623 P.2d 868 (Colo. 1981).
Irreconcilable conflict exists between this section and § 16-5-402, and § 16-5-402 prevails as it is the later enacted statute. People v. Heitzman, 852 P.2d 443 (Colo. 1993).
Time bar in § 16-5-402 applies where defendant's motion is a collateral attack and is a request for post-conviction relief under this section. People v. Vigil, 983 P.2d 805 (Colo. App. 1999).
For purposes of postconviction review and collateral attack limitations, a "conviction" occurs when the trial court enters judgment and sentence is imposed, if there is no appeal; if an appeal is pursued, then the conviction is not final until the appellate process is exhausted. People v. Hampton, 857 P.2d 441 (Colo. App. 1992), aff'd, 876 P.2d 1236 ( Colo. 1994 ).
Trial court erred in granting defense counsel's motion to dismiss defendant's application for postconviction relief. Although trial counsel is generally accepted to be the "captain of the ship" with regard to tactics and matters of trial strategy, every person convicted of a crime has a statutory right to make application for postconviction relief on any of a number of designated grounds. Dooly v. People, 2013 CO 34, 302 P.3d 259.
Applied in People v. McClure, 190 Colo. 250 , 545 P.2d 1038 (1976); Salas v. District Court, 190 Colo. 447 , 548 P.2d 605 (1976); People v. Lobato, 192 Colo. 357 , 559 P.2d 224 (1977); People v. Orr, 39 Colo. App. 289, 566 P.2d 1361 (1977); Tacorante v. People, 624 P.2d 1324 ( Colo. 1981 ).
18-1-410.5. Relief from improperly entered guilty pleas - legislative declaration.
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The general assembly finds that:
- A criminal defendant cannot challenge an unconstitutional guilty plea when that plea has been withdrawn and the underlying charges dismissed following the successful completion of a deferred judgment or the dismissal of charges pursuant to section 18-18-404 (3) prior to its repeal in 2010;
- Based on the statutory language of sections 18-1.3-102 and 18-18-404 (3), together with the written deferred judgment agreement and court colloquy that accompanies such agreements, many noncitizen defendants did not understand that the guilty plea would continue to constitute a conviction for immigration purposes and result in adverse immigration consequences, despite the subsequent withdrawal of the guilty plea and dismissal of the charges upon successful completion of the deferred judgment or dismissal pursuant to section 18-18-404 (3); and
- In the absence of an appropriate mechanism, many noncitizen defendants have been unfairly deprived of the opportunity to challenge guilty pleas that were entered in violation of the constitution or laws of the United States or of this state that resulted in adverse immigration consequences.
- Notwithstanding the time limitation contained in section 16-5-402, at any time following the withdrawal of the guilty plea and dismissal of the charges upon successful completion of a deferred judgment, or upon the dismissal of charges pursuant to section 18-18-404 (3) prior to its repeal, a criminal defendant may challenge the guilty plea on the grounds set forth in subsection (3) of this section. The court in which the guilty plea was originally entered has jurisdiction and authority to decide the motion.
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A defendant moving to vacate a guilty plea that has already been withdrawn following the successful completion of a deferred judgment or upon the dismissal of charges pursuant to section 18-18-404 (3) prior to its repeal must, in good faith, allege the following:
- As a result of the guilty plea, the defendant has suffered, is currently suffering, or will suffer, an adverse immigration consequence; and
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The guilty plea was obtained in violation of the constitution or laws of the United States or of this state under one or more of the following grounds:
- The defendant was not informed that the guilty plea would continue to result in adverse immigration consequences despite the subsequent withdrawal of the guilty plea and dismissal of the charges with prejudice;
- The defendant was not adequately advised of the immigration consequences of the guilty plea; or
- The guilty plea was constitutionally infirm for any other reason set forth in section 18-1-410 (1).
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- Upon receipt of the motion, the court shall direct the prosecution to respond within twenty-one days or request additional time for good cause shown. If a response is not filed, the motion is deemed unopposed and the court shall grant the motion. If the prosecution opposes the motion, it shall allege, in good faith, the facts upon which it bases its opposition. If the response raises an issue of material fact, the court shall set the matter for an evidentiary hearing.
- Unless the prosecution proves by a preponderance of the evidence that the defendant will not suffer an immigration consequence or that the guilty plea was constitutionally entered, the court shall grant the motion.
- For claims raised pursuant to subsection (3)(b)(I) of this section, the prosecution can neither raise an issue of material fact to obtain an evidentiary hearing nor defeat a claim at the hearing by relying on written documents, such as a deferred judgment agreement, plea paperwork, or transcript of a court colloquy, unless those documents clearly show that the defendant was informed that the immigration consequences resulting from a guilty plea would remain despite the subsequent withdrawal of that guilty plea and the dismissal of the charges with prejudice.
- If the defendant succeeds in challenging a guilty plea under subsection (3) of this section, the court shall vacate the guilty plea as constitutionally infirm. The order constitutes an additional independent basis for the vacatur of the guilty plea and does not result in the reinstatement of charges.
Source: L. 2019: Entire section added, (SB 19-030), ch. 301, p. 2770, § 1, effective May 28.
Editor's note: Section 3 of chapter 301 (SB 19-030), Session Laws of Colorado 2019, provides that the act adding this section applies to charges dismissed before, on, or after May 28, 2019.
18-1-411. Postconviction testing of DNA - definitions.
As used in this section and in sections 18-1-412 to 18-1-416, unless the context otherwise requires:
- "Actual innocence" means clear and convincing evidence such that no reasonable juror would have convicted the defendant.
- "Actual or constructive possession" means the biological evidence is maintained or stored on the premises of the law enforcement agency or at another location or facility under the custody or control of the law enforcement agency, including pursuant to an agreement or contract with the law enforcement agency and a third-party service provider, in Colorado or elsewhere.
- "DNA" means deoxyribonucleic acid.
- "Incarcerated" means physically housed in a department of corrections facility, a private correctional facility under contract with the department of corrections, or a county jail following a felony conviction, or in a juvenile facility following adjudication for an offense that would have been a felony if committed by an adult, or under parole supervision.
Source: L. 2003: Entire section added, p. 815, § 1, effective August 6.
18-1-412. Procedure for application for DNA testing - appointment of counsel.
- An incarcerated person may apply to the district court in the district where the conviction was secured for DNA testing concerning the conviction and sentence the person is currently serving.
- A motion filed pursuant to this section shall include specific facts sufficient to support a prima facie showing that post-conviction relief is warranted under the criteria set forth in section 18-1-413. The motion shall include the results of all prior DNA tests, regardless of whether a test was performed by the defense or the prosecution.
- If the motion, files, and record of the case show to the satisfaction of the court that the petitioner is not entitled to relief based on the criteria specified in section 18-1-413, the court shall deny the motion without a hearing and without appointment of counsel. The court may deny a second or subsequent motion requesting relief pursuant to this section.
- If the court does not deny the petitioner's motion for testing, the court shall appoint counsel if the court determines the petitioner is indigent and has requested counsel. The court shall forward a copy of the motion for DNA testing to the district attorney.
- Counsel for the defendant may request the court to set the matter for a hearing, if, upon investigation of the petitioner's motion for testing, counsel believes sufficient grounds exist to support an order for DNA testing. If the petitioner represents himself or herself, the court may set the matter for a hearing upon his or her request.
- Following a request for a hearing, the court shall allow the district attorney a reasonable amount of time, but not less than thirty-five days, to respond to the motion and any supplement filed by the petitioner's counsel and to prepare for the hearing.
- A court shall not order DNA testing without a hearing, except upon written stipulation of the district attorney.
- The court shall deny a motion for production of transcripts unless the petitioner makes a prima facie showing that a transcript will be necessary at a hearing conducted pursuant to this section.
- Upon motion of the defendant or his or her counsel, the court shall order a database search by a law enforcement agency if the court determines that a reasonable probability exists that the database search will produce exculpatory or mitigating evidence relevant to a claim of wrongful conviction or sentencing. DNA profiles must meet current national DNA database index system eligibility standards and conform to current federal bureau of investigation quality assurance standards in order to be eligible for search against the state index system.
Source: L. 2003: Entire section added, p. 816, § 1, effective August 6. L. 2009: (9) added, (SB 09-241), ch. 295, p. 1582, § 11, effective July 1. L. 2012: (6) amended, (SB 12-175), ch. 208, p. 862, § 103, effective July 1.
ANNOTATION
Appointment of counsel for a postconviction request for DNA testing does not imply that testing is warranted, and the mere granting of a hearing does not, by itself, implicitly demonstrate that the statutory requirements of § 18-1-413 have been met. People v. Young, 2014 COA 169 , 412 P.3d 676.
18-1-413. Content of application for DNA testing.
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A court shall not order DNA testing unless the petitioner demonstrates by a preponderance of the evidence that:
- Favorable results of the DNA testing will demonstrate the petitioner's actual innocence;
- A law enforcement agency collected biological evidence pertaining to the offense and retains actual or constructive possession of the evidence that allows for reliable DNA testing;
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- Conclusive DNA results were not available prior to the petitioner's conviction; and
- The petitioner did not secure DNA testing prior to his or her conviction because DNA testing was not reasonably available or for reasons that constitute justifiable excuse, ineffective assistance of counsel, or excusable neglect; and
- The petitioner consents to provide a biological sample for DNA testing.
Source: L. 2003: Entire section added, p. 816, § 1, effective August 6.
ANNOTATION
Defendant not entitled to DNA testing under this section because defendant failed to establish by a preponderance of the evidence that favorable results of DNA testing would demonstrate his actual innocence. People v. Young, 2014 COA 169 , 412 P.3d 676.
18-1-414. Preservation of evidence.
- A petitioner shall not be entitled to relief based solely on an allegation that a law enforcement agency failed to preserve biological evidence.
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- A court granting a motion for hearing pursuant to section 18-1-412 shall order the appropriate law enforcement agency to preserve existing biological evidence for DNA testing.
- If a law enforcement agency, through negligence, destroys, loses, or otherwise disposes of biological evidence that is the subject of an order pursuant to this subsection (2) before the evidence may be tested, the court shall set a hearing to determine whether a remedy is warranted. If the court determines that a remedy is warranted, the court may order whatever remedy the court finds is just, equitable, and appropriate. Nothing in this subsection (2) shall be construed to limit or eliminate the court's authority to order any remedy otherwise available under law for the destruction, loss, or disposal of evidence.
- For the purposes of this subsection (2), "negligence" means a departure from the ordinary standard of care.
- Except as provided in subsection (2) of this section, this section does not create a duty to preserve biological evidence. Notwithstanding the provisions of subsection (2) of this section, this section does not create a liability on the part of a law enforcement agency for failing to preserve biological evidence.
Source: L. 2003: Entire section added, p. 817, § 1, effective August 6. L. 2008: (2) and (3) amended, p. 1513, § 2, effective May 28.
Cross references: For the legislative declaration contained in the 2008 act amending subsections (2) and (3), see section 1 of chapter 322, Session Laws of Colorado 2008.
ANNOTATION
Defendant not entitled to relief under this section because defendant failed to establish entitlement to DNA testing under § 18-1-413 . People v. Young, 2014 COA 169 , 412 P.3d 676.
18-1-415. Testing - payment.
All testing shall be performed at a law enforcement facility, and the petitioner shall pay for the testing. If the petitioner is indigent and represented by either the public defender or alternate defense counsel, and with the approval of the public defender or the alternate defense counsel, the costs of the testing shall be paid from their budget.
Source: L. 2003: Entire section added, p. 817, § 1, effective August 6. L. 2010: Entire section amended, (HB 10-1422), ch. 419, p. 2073, § 31, effective August 11.
18-1-416. Results of the DNA test.
- Notwithstanding any law or rule of procedure that bars a motion for post-conviction review as untimely, a petitioner may use the results of a DNA test ordered pursuant to section 18-1-413 as the grounds for filing a motion for post-conviction review under section 18-1-410 and the Colorado rules of criminal procedure.
- The testing laboratory shall make the results of a DNA test ordered pursuant to section 18-1-413 available to the combined DNA index system and to any Colorado, federal, or other law enforcement DNA databases.
Source: L. 2003: Entire section added, p. 817, § 1, effective August 6.
18-1-417. Ineffective assistance of counsel claims - waiver of confidentiality.
- Notwithstanding any other provision of law, whenever a defendant alleges ineffective assistance of counsel, the defendant automatically waives any confidentiality, including attorney-client and work-product privileges, between counsel and defendant, and between the defendant or counsel and any expert witness retained or appointed in connection with the representation, but only with respect to the information that is related to the defendant's claim of ineffective assistance. After the defendant alleges ineffective assistance of counsel, the allegedly ineffective counsel and an expert witness may discuss with, may disclose any aspect of the representation that is related to the defendant's claim of ineffective assistance to, and may produce documents related to such representation that are related to the defendant's claim of ineffective assistance to the prosecution without the need for an order by the court that confidentiality has been waived.
- If the allegedly ineffective counsel or an expert witness has released his or her file or a portion thereof to defendant or defendant's current counsel, defendant or current counsel shall permit the prosecution to inspect and copy any or all portions of the file that are related to the defendant's claim of ineffective assistance upon request of the prosecution.
Source: L. 2005: Entire section added, p. 424, § 2, effective April 29.
ANNOTATION
Law reviews. For article, "Trial Counsel's Continued Duty of Confidentiality in Postconviction Proceedings", see 48 Colo. Law. 32 (Dec. 2019).
PART 5 PRINCIPLES OF CRIMINAL CULPABILITY
Law reviews: For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to erroneous malice presumption, see 15 Colo. Law. 1616 (1986).
18-1-501. Definitions.
The following definitions are applicable to the determination of culpability requirements for offenses defined in this code:
- "Act" means a bodily movement, and includes words and possession of property.
- "Conduct" means an act or omission and its accompanying state of mind or, where relevant, a series of acts or omissions.
- "Criminal negligence". A person acts with criminal negligence when, through a gross deviation from the standard of care that a reasonable person would exercise, he fails to perceive a substantial and unjustifiable risk that a result will occur or that a circumstance exists.
- "Culpable mental state" means intentionally, or with intent, or knowingly, or willfully, or recklessly, or with criminal negligence, as these terms are defined in this section.
- "Intentionally" or "with intent". All offenses defined in this code in which the mental culpability requirement is expressed as "intentionally" or "with intent" are declared to be specific intent offenses. A person acts "intentionally" or "with intent" when his conscious objective is to cause the specific result proscribed by the statute defining the offense. It is immaterial to the issue of specific intent whether or not the result actually occurred.
- "Knowingly" or "willfully". All offenses defined in this code in which the mental culpability requirement is expressed as "knowingly" or "willfully" are declared to be general intent crimes. A person acts "knowingly" or "willfully" with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of such nature or that such circumstance exists. A person acts "knowingly" or "willfully", with respect to a result of his conduct, when he is aware that his conduct is practically certain to cause the result.
- "Omission" means a failure to perform an act as to which a duty of performance is imposed by law.
- "Recklessly". A person acts recklessly when he consciously disregards a substantial and unjustifiable risk that a result will occur or that a circumstance exists.
- "Voluntary act" means an act performed consciously as a result of effort or determination, and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.
Source: L. 71: R&RE, p. 403, § 1. C.R.S. 1963: § 40-1-601. L. 75: (3), (5), (6), and (8) R&RE, p. 616, § 1, effective July 21. L. 77: (4) amended and (5) and (6) R&RE, p. 959, §§ 1, 2, effective July 1.
ANNOTATION
Law reviews. For comment on Trujillo v. People (133 Colo. 186 , 292 P.2d 980 (1956)), see 28 Rocky Mt. L. Rev. 409 (1956), For article, "Homicides Under the Colorado Criminal Code", see 49 Den. L.J. 137 (1972). For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981).
Annotator's note. Since § 18-1-501 (1) is similar to former § 40-1-2, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
General assembly may establish statutory constituents of criminal culpability. The constitutional mandate requiring the prosecution to establish all essential elements of a crime beyond a reasonable doubt does not impair the general assembly's competence to establish the statutory constituents of criminal culpability for various offenses and to formulate particular rules of justification or excuse for acts that otherwise might be criminally punishable. People v. Ledman, 622 P.2d 534 (Colo. 1981).
Section 18-1-803 does not require evidence of any psychiatric abnormality or independent testimony to analyze the effect of a blow on the defendant's mental state. This effect may be inferred from the evidence present. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).
Instruction on mental condition required if any evidence tends to establish impairment. An instruction on impaired mental condition is required if there is any evidence tending to establish that a blow to the defendant's head impaired his mental condition sufficiently to preclude formation of a conscious objective to cause the victim's death. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).
The narcotics act is not governed by the definitions in the criminal code. People v. Quick, 190 Colo. 171 , 544 P.2d 629 (1976).
"Criminal negligence", as applied to homicide, means a failure to perceive, through a gross deviation from the standard of reasonable care, a substantial and unjustifiable risk that death will result from certain conduct. People v. Taggart, 621 P.2d 1375 (Colo. 1981).
Intent is an act or purpose of the mind rarely discoverable except by the acts of the person committing them; consequently, acts which tend to prove a specific intent are direct evidence of that intent. Wechter v. People, 53 Colo. 89, 124 P. 183 (1912).
Circumstances attending an act give character to it, inasmuch as they evince the intention of the actor at the time of the act. Usually, the proof of a homicide will disclose the circumstances attending it, and the character of the crime is demonstrated by the same evidence which establishes it. Hill v. People, 1 Colo. 436 (1872).
Intention to commit an offense is manifested by circumstances attendant upon the commission of the offense. Arridy v. People, 103 Colo. 29 , 82 P.2d 757 (1938).
Intent may be shown by inference from all the surrounding circumstances, if they are sufficient to prove this element beyond a reasonable doubt. However, if the circumstances themselves are insufficient or if the defendant feels required to rebut facts or inferences from other evidence adduced at trial detrimental to his position, it is axiomatic that, this being material, his offer should be allowed in as evidence. Gallegos v. People, 159 Colo. 379 , 411 P.2d 956 (1966).
The mind of an alleged offender may be read from his acts, his conduct, and the reasonable inferences which may be drawn from the circumstances of the case. Maraggos v. People, 175 Colo. 130 , 486 P.2d 1 (1971).
Intent is a state of mind existing at the time a person commits an offense; however, that intent is not required to be proven by direct substantive evidence, for to do so would make it impossible to convict in any case where there was not a culmination of the intent. Maraggos v. People, 175 Colo. 130 , 486 P.2d 1 (1971).
Intent is a question of fact, provable like any other fact in issue in a criminal case. Wechter v. People, 53 Colo. 89, 124 P. 183 (1912).
Instructions on specific intent phrased in language of this section are proper and will be upheld by the supreme court. Blincoe v. People, 178 Colo. 34 , 494 P.2d 1285 (1972).
Instruction defining "intentionally" properly refused. Where defense requested instruction defining "intentionally" in terms of new statute which became effective July 1, 1972, but offense had occurred prior to that time, trial court did not err in refusing such request. People v. Crawford, 191 Colo. 504 , 553 P.2d 827 (1976).
Defendant cannot avoid his conviction of criminally negligent homicide on the ground that he did not intend death to result from his act. People v. Palumbo, 192 Colo. 7 , 555 P.2d 521 (1976).
"Knowingly." The definition of "knowingly" in subsection (6) is an accurate expression of the common-law understanding of "knowingly". City of Englewood v. Hammes, 671 P.2d 947 (Colo. 1983).
The definition of "knowingly" or "willfully" in subsection (6) applied in People v. Riley, 708 P.2d 1359 ( Colo. 1985 ); People v. Eastepp, 884 P.2d 305 ( Colo. 1994 ); People v. Parga, 964 P.2d 571 (Colo. App. 1998).
A person may be found to act "intentionally" even though the length of time for deliberation is not long. People v. Valenzuela, 825 P.2d 1015 (Colo. App. 1991), aff'd, 856 P.2d 805 ( Colo. 1993 ).
A person acts intentionally if the person's "conscious objective" is to cause the specific result prohibited by statute. People v. Moore, 877 P.2d 840 ( Colo. 1994 ); People v. District Ct., 17th Jud. Dist., 926 P.2d 567 ( Colo. 1996 ); People v. Madison, 176 P.3d 793 (Colo. App. 2007).
Phrase "reasonably should be aware" is not the equivalent of "knowingly". People v. Etchells, 646 P.2d 950 (Colo. App. 1982); Espinoza v. People, 712 P.2d 476 ( Colo. 1985 ).
Menacing is a general intent crime requiring only that the defendant be aware that the defendant's conduct is practically certain to cause the result. People v. Zieg, 841 P.2d 342 (Colo. App. 1992).
Omission of conduct-and-circumstance factor from instruction on "knowingly" held not error. No substantial rights of the defendant are seriously affected by the omission of the conduct-and-circumstance factor of the mental culpability requirement of "knowingly" from the instructions, as provided in subsection (6), where the instruction given refers to both conduct and result. If one is aware that his conduct will achieve a certain result, then of necessity he must also be aware of that conduct. People v. Clark, 662 P.2d 1100 (Colo. App. 1982).
A mental culpability instruction defining "knowingly" as an awareness by the defendant that his conduct is "practically certain to cause the result" would necessarily require the jury to be satisfied beyond a reasonable doubt that he also was aware that "his conduct is of such nature" and that "the circumstance exists" before he could be found guilty of these offenses. Although such an instruction is technically incomplete, the trial court's failure to instruct the jury on the conduct and circumstance components of "knowingly" is not plain error because the substantial rights of the defendant are not affected. People v. Derrerra, 667 P.2d 1363 (Colo. 1983).
"Knowingly" instruction which is equivalent to negligence is error. Where the court's definition of "knowingly" permits a finding, not on the defendant's guilty knowledge, but rather on a basis that amounts to a negligence standard, that instruction is fundamentally flawed. People v. Freeman, 668 P.2d 1371 (Colo. 1983).
Where an instruction permits the jury to find that the defendant acted intentionally on the basis of his actions alone, rather than on the precise "conscious objective" standard required by statute, the instruction is erroneous. People v. Freeman, 668 P.2d 1371 (Colo. 1983).
Evidence of mental slowness may be offered to negate the culpable mental state for the crime charged. People v. Vanrees, 125 P.3d 403 (Colo. 2005).
Offenses requiring knowledge as the culpable mental state are not specific intent crimes. People v. Ledman, 622 P.2d 534 (Colo. 1981).
No requirement that "knowing conduct" be directed against person killed. There is no requirement that the "knowing conduct" essential to extreme indifference murder and second-degree murder be directed against the person actually killed. On the contrary, both offenses are general intent crimes, and as long as the offender knowingly acts in the proscribed manner and causes the death of another, he is guilty of the crime, even though the person killed is not the person against whom the criminal conduct was directed. People v. Marcy, 628 P.2d 69 (Colo. 1981).
Willful and ordinary negligence distinguished. The demarcation between ordinary negligence and willful and wanton disregard is that in the latter the actor was fully aware of the danger and should have realized its probable consequences, yet deliberately avoided all precaution to prevent disaster. A failure to act in prevention of accident is but simple negligence; a mentally active restraint from such action is willful. Omitting to weigh consequences is simple negligence; refusing to weigh them is willful. Trujillo v. People, 133 Colo. 186 , 292 P.2d 980 (1956).
Before defendant could be convicted of manslaughter under former provisions, there must have been evidence tending to prove he recklessly and wantonly failed to exercise the care and caution that a reasonably prudent person would have exercised under similar circumstances, and that his conduct was such as to indicate a reckless and wanton disregard for the safety of others. Ordinary or simple negligence was not sufficient to sustain the former charge of involuntary manslaughter. Bennett v. People, 155 Colo. 101 , 392 P.2d 657 (1964).
"Recklessly" and "criminally negligent" distinguished. The difference between acting "recklessly" and being "criminally negligent" is the distinction between becoming aware of a risk yet consciously choosing to disregard it as opposed to negligently failing to become aware of the risk. People v. Bettis, 43 Colo. App. 104, 602 P.2d 877 (1979).
Instruction defining "recklessly" properly refused where it contained the term "accidentally". People v. Bookman, 646 P.2d 924 (Colo. 1982).
Instruction defining "recklessly" pursuant to this section, rather than defining "reckless driving" under § 42-4-1401, was properly given as to an element of the offense of vehicular homicide involving reckless driving. The definition of "recklessly" in subsection (8) is contained in the criminal code and is plainly intended to be used in interpreting other statutory sections, such as vehicular homicide, within the criminal code. People v. Scarlett, 985 P.2d 36 (Colo. App. 1998).
"Recklessly" in second degree assault requires that a defendant consciously disregard a substantial and unjustifiable risk that a result will occur (or that a circumstance exists), not that a defendant disregard the result that ultimately occurs. Therefore, the people did not have to prove that defendant had knowledge of the existence of the specific deadly weapon held by the victim of the assault. People v. Brown, 677 P.2d 406 (Colo. App. 1983).
Conspiracy to commit reckless manslaughter is not a crime in Colorado. Palmer v. People, 964 P.2d 524 (Colo. 1998).
Finding of knowing or willful conduct sufficient for recklessness. A finding of knowing or willful conduct is sufficient to establish the culpable mental state of recklessness. People v. Yanaga, 635 P.2d 925 (Colo. App. 1981); People v. Howard, 215 P.3d 1134 (Colo. App. 2008).
To determine whether a risk is substantial and unjustified, trier of fact must weigh the likelihood and potential magnitude of harm presented by the conduct and consider whether the conduct constitutes a gross deviation from the reasonable standard of care. People v. Hall, 999 P.2d 207 (Colo. 2000).
The phrase "starts or maintains a fire" in § 18-4-105 must be read in accordance with subsection (9) and § 18-1-502 . People v. Garcia, 189 Colo. 347 , 541 P.2d 687 (1975).
Intoxication provision applicable in analysis of "voluntary act". Section 18-1-804 applies not only to the mental state of a defendant in general intent crimes but is also applicable in the analysis of a "voluntary act", as that phrase is used in the definition of "criminal liability" in § 18-1-502. People v. Huskey, 624 P.2d 899 (Colo. App. 1980).
Different culpable mental states may exist simultaneously. People v. Noble, 635 P.2d 203 ( Colo. 1981 ); People v. People v. Howard, 215 P.3d 1134 (Colo. App. 2008).
For discussion of culpable mental state required for conviction of criminal attempt, see People v. Krovarz, 697 P.2d 378 (Colo. 1985).
Applied in McPhee v. People, 105 Colo. 539 , 100 P.2d 148 (1940); Gallegos v. Tinsley, 139 Colo. 157 , 337 P.2d 386 (1959); Mora v. People, 172 Colo. 261 , 472 P.2d 142 (1970); People v. District Court, 185 Colo. 78 , 521 P.2d 1254 (1974); People v. White, 191 Colo. 353 , 553 P.2d 68 (1976); People v. Sexton, 192 Colo. 181 , 555 P.2d 1151 (1976); People v. Cornelison, 192 Colo. 337 , 559 P.2d 1102 (1977); People v. Washburn, 197 Colo. 419 , 593 P.2d 962 (1979); People v. Vigil, 43 Colo. App. 121, 602 P.2d 884 (1979); People v. Gallegos, 628 P.2d 999 ( Colo. 1981 ); People v. Frysig, 628 P.2d 1004 ( Colo. 1981 ); People v. Andrews, 632 P.2d 1012 (Colo. 1981); People v. Brown, 632 P.2d 1025 (Colo. 1981); People v. Christian, 632 P.2d 1031 (Colo. 1981); People v. Noble, 635 P.2d 203 (Colo. 1981); Bollier v. People, 635 P.2d 543 (Colo. 1981); People v. R.V., 635 P.2d 892 (Colo. 1981); People v. Morgan, 637 P.2d 338 (Colo. 1981); People v. Padilla, 638 P.2d 15 (Colo. 1981); People v. Madson, 638 P.2d 18 (Colo. 1981); People v. Mack, 638 P.2d 257 (Colo. 1981); People v. Thatcher, 638 P.2d 760 (Colo. 1981); People v. Founds, 631 P.2d 1166 (Colo. App. 1981); People v. Shaw, 646 P.2d 375 ( Colo. 1982 ); Hendershott v. People, 653 P.2d 385 ( Colo. 1982 ), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983); People v. Bartowsheski, 661 P.2d 235 ( Colo. 1983 ); People v. Giles, 662 P.2d 1073 ( Colo. 1983 ); People v. Heller, 698 P.2d 1357 (Colo. App. 1984), rev'd on other grounds, 712 P.2d 1023 ( Colo. 1986 ); People v. Lybarger, 700 P.2d 910 ( Colo. 1985 ); People v. Breland, 728 P.2d 763 (Colo. App. 1986); People v. Bowman, 738 P.2d 387 (Colo. App. 1987); People v. District Court, 779 P.2d 385 ( Colo. 1989 ).
18-1-502. Requirements for criminal liability in general and for offenses of strict liability and of mental culpability.
The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing. If that conduct is all that is required for commission of a particular offense, or if an offense or some material element thereof does not require a culpable mental state on the part of the actor, the offense is one of "strict liability". If a culpable mental state on the part of the actor is required with respect to any material element of an offense, the offense is one of "mental culpability".
Source: L. 71: R&RE, p. 404, § 1. C.R.S. 1963: § 40-1-602.
ANNOTATION
Law reviews. For article, "Homicides Under the Colorado Criminal Code", see 49 Den. L.J. 137 (1972). For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976). For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981).
The minimum requirements for criminal liability are set out in this section. People v. Caddy, 189 Colo. 353 , 540 P.2d 1089 (1975).
Conscious mental activity required. The minimal requirement for a "strict liability" offense is proof that the proscribed conduct was performed voluntarily -- i.e., that such act must be the product of conscious mental activity involving effort or determination. People v. Rostad, 669 P.2d 126 (Colo. 1983).
Intoxication provision applicable in analysis of "voluntary act". Section 18-1-804 applies not only to the mental state of a defendant in general intent crimes but is also applicable in the analysis of a "voluntary act", as that phrase is used in the definition of criminal liability in this section. People v. Huskey, 624 P.2d 899 (Colo. App. 1980).
This section expressly removes any ambiguity as to the culpability requirement of § 18-4-105 . That section states that if an offense does not require a culpable mental state on the part of the actor, the offense is one of strict liability. People v. Garcia, 189 Colo. 347 , 541 P.2d 687 (1975).
Construed in accordance with this section, § 18-4-105 would be inapplicable to those situations in which there was no voluntary act or omission to perform an act within the physical capabilities of the person. Thus, the statute would not apply to a fire started by events beyond the actor's control. People v. Garcia, 189 Colo. 347 , 541 P.2d 687 (1975).
However, the phrase "starts or maintains a fire" in § 18-4-105 must be read in accordance with § 18-1-501(9) and this section. People v. Garcia, 189 Colo. 347 , 541 P.2d 687 (1975).
Cruelty to animals as proscribed by § 35-42-112 held to be strict liability offense. People v. Wilhelm, 676 P.2d 702 (Colo. 1984).
Cruelty to animals as proscribed by § 18-9-202 held to be an offense of mental culpability. People v. Wilhelm, 676 P.2d 702 (Colo. 1984).
Applied in People v. Marcy, 628 P.2d 69 ( Colo. 1981 ); People v. Noble, 635 P.2d 203 ( Colo. 1981 ); Hendershott v. People, 653 P.2d 385 ( Colo. 1982 ), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983); People v. Saiz, 660 P.2d 2 (Colo. App. 1982).
18-1-503. Construction of statutes with respect to culpability requirements.
- When the commission of an offense, or some element of an offense, requires a particular culpable mental state, that mental state is ordinarily designated by use of the terms "intentionally", "with intent", "knowingly", "willfully", "recklessly", or "criminal negligence" or by use of the terms "with intent to defraud" and "knowing it to be false" describing a specific kind of intent or knowledge.
- Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of that offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such a culpable mental state.
- If a statute provides that criminal negligence suffices to establish an element of an offense, that element also is established if a person acts recklessly, knowingly, or intentionally. If recklessness suffices to establish an element, that element also is established if a person acts knowingly or intentionally. If acting knowingly suffices to establish an element, that element also is established if a person acts intentionally.
- When a statute defining an offense prescribes as an element thereof a specified culpable mental state, that mental state is deemed to apply to every element of the offense unless an intent to limit its application clearly appears.
Source: L. 71: R&RE, p. 404, § 1. C.R.S. 1963: § 40-1-603. L. 77: (1) amended, p. 960, § 3, effective July 1.
ANNOTATION
Law reviews. For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976). For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981).
Specific intent is element of crime and is not presumed. Where a crime consists of an act combined with a specific intent, the intent is just as much an element of the crime as is the act. Mere general malice or criminal intent is insufficient, and the requisite specific intent must be shown as a matter of fact, either by direct or circumstantial evidence. The general rule that a criminal intention will be presumed from the commission of the unlawful act does not apply; and proof of the commission of the act does not warrant the presumption that accused had the requisite specific intent. Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971).
Proof of specific intent. Specific intent is ordinarily inferable from the facts, and proof thereof is necessarily by circumstantial evidence. Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971).
Mental state required may be implied. Because a crime ordinarily requires the conjunction of an act and a culpable mental state, legislative silence on the element of intent in a criminal statute is not to be construed as an indication that no culpable mental state is required. Rather, the requisite mental state may be implied from the statute. People v. Moore, 674 P.2d 354 (Colo. 1984).
If a statute merely implies a mens rea, that mental state must be deemed to apply to every element of the offense. People v. Trevino, 826 P.2d 399 (Colo. App. 1991). But see Gorman v. People, 19 P.3d 662 ( Colo. 2000 ).
If there is no clear intent to limit the application of the culpable mental state to a particular element of the offense, it applies to all elements of the offense. People v. Coleby, 34 P.3d 422 ( Colo. 2001 ); People v. Hoggard, 2017 COA 88 , __ P.3d __.
Where the statute merely implies a mens rea, subsection (2), rather than subsection (4), applies. Thus, the implied mens rea may not apply to all elements of the offense, depending on the legislature's intent in criminalizing the offense. The implied mens rea for § 18-6-701, contributing to the delinquency of a minor, applies only to the defendant's actions in knowingly inducing, aiding, or encouraging a minor to violate the law, and not to whether the defendant knows the minor's age, because the intent of this offense is to protect the minor. Gorman v. People, 19 P.3d 662 (Colo. 2000).
Finding of knowing or willful conduct sufficient for recklessness. A finding of knowing or willful conduct is sufficient to establish the culpable mental state of recklessness. People v. Yanaga, 635 P.2d 925 (Colo. App. 1981).
Instruction errors inure to defendant's benefit. Where an instruction requires the prosecution to prove a higher degree of culpability than otherwise required by statute in relation to the various elements of the offense, any errors in the instruction inure solely to the defendant's benefit. People v. Mack, 638 P.2d 257 (Colo. 1981).
Subsection (2) inapplicable to violation of custody under § 18-3-304. The language of that section requiring intent is limited to the deprivation of custody of the child, and is not extended to the additional elements of the offense. People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).
Applied in People v. Frysig, 628 P.2d 1004 ( Colo. 1981 ); People v. Andrews, 632 P.2d 1012 ( Colo. 1981 ); People v. Noble, 635 P.2d 203 (Colo. 1981); Bollier v. People, 635 P.2d 543 (Colo. 1981); People v. Smith, 638 P.2d 1 (Colo. 1981); People v. Walker, 634 P.2d 1026 (1981); People v. Mattas, 645 P.2d 254 ( Colo. 1982 ); People v. Hart, 658 P.2d 857 ( Colo. 1983 ); People v. Saiz, 660 P.2d 2 (Colo. App. 1982); People v. Annan, 665 P.2d 629 (Colo. App. 1983); People v. Thompson, 756 P.2d 353 ( Colo. 1988 ).
18-1-503.5. Principles of criminal culpability.
- If the criminality of conduct depends on a child being younger than eighteen years of age and the child was in fact at least fifteen years of age, it shall be an affirmative defense that the defendant reasonably believed the child to be eighteen years of age or older. This affirmative defense shall not be available if the criminality of conduct depends on the defendant being in a position of trust.
- If the criminality of conduct depends on a child's being younger than eighteen years of age and the child was in fact younger than fifteen years of age, there shall be no defense that the defendant reasonably believed the child was eighteen years of age or older.
- If the criminality of conduct depends on a child being younger than fifteen years of age, it shall be no defense that the defendant did not know the child's age or that the defendant reasonably believed the child to be fifteen years of age or older.
Source: L. 2001: Entire section added, p. 859, § 6, effective July 1. L. 2007: (1) amended, p. 1687, § 4, effective July 1.
Cross references: For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805.
ANNOTATION
Subsection (1) eliminates the culpable mental state as to age prescribed by § 18-6-403 (3), "knowingly", and replaces it with that of subsection (1), "lack of reasonable belief". People v. Bath, 890 P.2d 269 (Colo. App. 1994).
The affirmative defense created in this section applies to the offense of contributing to the delinquency of a minor under § 18-6-107. But where defendant did not raise this affirmative defense in a manner sufficient to meet the defendant's initial burden, the trial court did not err in refusing to instruct the jury on this affirmative defense. People v. Hastings, 983 P.2d 78 (Colo. App. 1999), aff'd, 19 P.3d 662 ( Colo. 2000 ); People v. Gorman, 983 P.2d 92 (Colo. App. 1999), aff'd, 19 P.3d 662 ( Colo. 2000 ).
Subsection (1), by providing for the affirmative defense of reasonable belief, manifests a clear legislative intent that the culpable mental state of "knowingly" in § 18-6-403 does not apply to the age of the victim. People v. Bath, 890 P.2d 269 (Colo. App. 1994).
Subsection (1) of this section does not apply to offenses charged under § 18-7-407 . People v. Houser, 2013 COA 11 , 337 P.3d 1238.
Subsection (2) limits an affirmative defense and creates a strict liability crime, both of which are within the constitutional power of the general assembly. People v. Salazar, 920 P.2d 893 (Colo. App. 1996).
By applying subsection (2), the trial court did not relieve the prosecution of its burden to prove essential elements of the offense charged. People v. Salazar, 920 P.2d 893 (Colo. App. 1996).
Legislative history relating to the adoption of subsection (2) and § 18-3-405 (1) demonstrates that the general assembly intended the offense of sexual assault on a child to be a strict liability offense. People v. Salazar, 920 P.2d 893 (Colo. App. 1996).
18-1-504. Effect of ignorance or mistake upon culpability.
-
A person is not relieved of criminal liability for conduct because he engaged in that conduct under a mistaken belief of fact, unless:
- It negatives the existence of a particular mental state essential to commission of the offense; or
- The statute defining the offense or a statute relating thereto expressly provides that a factual mistake or the mental state resulting therefrom constitutes a defense or exemption; or
- The factual mistake or the mental state resulting therefrom is of a kind that supports a defense of justification as defined in sections 18-1-701 to 18-1-707.
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A person is not relieved of criminal liability for conduct because he engages in that conduct under a mistaken belief that it does not, as a matter of law, constitute an offense, unless the conduct is permitted by one or more of the following:
- A statute or ordinance binding in this state;
- An administrative regulation, order, or grant of permission by a body or official authorized and empowered to make such order or grant the permission under the laws of the state of Colorado;
- An official written interpretation of the statute or law relating to the offense, made or issued by a public servant, agency, or body legally charged or empowered with the responsibility of administering, enforcing, or interpreting a statute, ordinance, regulation, order, or law. If such interpretation is by judicial decision, it must be binding in the state of Colorado.
- Any defense authorized by this section is an affirmative defense.
Source: L. 71: R&RE, p. 404, § 1. C.R.S. 1963: § 40-1-604.
Cross references: For other provisions concerning affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 through 18 of this title 18.
ANNOTATION
Law reviews. For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976).
Section 18-2-101 and this section may be harmonized. People v. Darr, 37 Colo. App. 143, 551 P.2d 735 (1975), aff'd, 193 Colo. 445 , 568 P.2d 32 (1977).
Subsection (1)(a) of this section and § 18-2-101(1) do not conflict. Darr v. People, 193 Colo. 445 , 568 P.2d 32 (1977).
No defense of impossibility in attempt prosecution. The general assembly intended that the defense of factual or legal impossibility not be available in an attempt prosecution. People v. Darr, 37 Colo. App. 143, 551 P.2d 735 (1975), aff'd, 193 Colo. 445 , 568 P.2d 32 (1977).
Defendant may raise defense of general mistake of fact. A defendant may not rely on the defense of legal impossibility in a prosecution for attempted theft, but may raise the defense of general mistake of fact by alleging that he never believed the goods were stolen. People v. Darr, 37 Colo. App. 143, 551 P.2d 735 (1975), aff'd, 193 Colo. 445 , 568 P.2d 32 (1977).
If the defendant does every act within his power to commit an offense and would have committed the offense if the facts had been as he believed them to be, then he may not escape criminal liability. People v. Borrego, 738 P.2d 59 (Colo. App. 1987).
A mistaken belief that one's conduct is legal does not relieve a person of criminal liability for engaging in proscribed conduct. Becker & Tenenbaum v. Eagle Restaurant, 946 P.2d 600 (Colo. App. 1997); People v. Bruno, 2014 COA 158 , 342 P.3d 587; People v. Gutierrez-Vite, 2014 COA 159 , 411 P.3d 119.
Mistake of law defense not available when acting upon unauthorized directions from sheriff. Sheriff is not empowered or authorized to place listening device without court order. Deputy sheriff, then, cannot rely upon such direction as a defense to his actions. People v. Lesslie, 24 P.3d 22 (Colo. App. 2000).
Reliance upon court opinion is not basis for mistake of law defense when opinion is clearly factually distinguishable. People v. Lesslie, 24 P.3d 22 (Colo. App. 2000).
Language for a mistake-of-fact jury instruction that is almost identical to the statutory language is proper. People v. Manyik, 2016 COA 42 , 383 P.3d 77.
Applied in People v. Andrews, 632 P.2d 1012 ( Colo. 1981 ); People v. Castro, 657 P.2d 932 ( Colo. 1983 ).
18-1-505. Consent.
- The consent of the victim to conduct charged to constitute an offense or to the result thereof is not a defense unless the consent negatives an element of the offense or precludes the infliction of the harm or evil sought to be prevented by the law defining the offense.
- When conduct is charged to constitute an offense because it causes or threatens bodily injury, consent to that conduct or to the infliction of that injury is a defense only if the bodily injury consented to or threatened by the conduct consented to is not serious, or the conduct and the injury are reasonably foreseeable hazards of joint participation in a lawful athletic contest or competitive sport, or the consent establishes a justification under sections 18-1-701 to 18-1-707.
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Unless otherwise provided by this code or by the law defining the offense, assent does not constitute consent if:
- It is given by a person who is legally incompetent to authorize the conduct charged to constitute the offense; or
- It is given by a person who, by reason of immaturity, behavioral or mental health disorder, or intoxication, is manifestly unable and is known or reasonably should be known by the defendant to be unable to make a reasonable judgment as to the nature or harmfulness of the conduct charged to constitute the offense; or
- It is given by a person whose consent is sought to be prevented by the law defining the offense; or
- It is induced by force, duress, or deception.
- Any defense authorized by this section is an affirmative defense.
Source: L. 71: R&RE, p. 405, § 1. C.R.S. 1963: § 40-1-605. L. 81: (2) amended, p. 980, § 1, effective May 13. L. 2017: (3)(b) amended, (SB 17-242), ch. 263, p. 1305, § 138, effective May 25.
Cross references: For the legislative declaration in SB 17-242, see section 1 of chapter 263, Session Laws of Colorado 2017.
ANNOTATION
The clause "precludes the infliction of the harm or evil sought to be prevented by the law defining the offense" is ambiguous because it is unclear and subject to alternative constructions. Hotsenpiller v. Morris, 2017 COA 95 , __ P.3d __.
The harm or evil sought to be prevented by a civil protection order (CPO), including enforcing it through criminal charges for a violation of such an order, is not mere contact with the protected person but preventing the societal harms of violence, domestic abuse, and serious harm or death. Hotsenpiller v. Morris, 2017 COA 95 , __ P.3d __.
A protected person simply cannot "consent," under this section, to another person's violation of a court order. Under the plain language of subsection (3)(c), assent by the victim does not constitute consent if the assent is "given by a person whose consent is sought to be prevented by the law defining the offense". Hotsenpiller v. Morris, 2017 COA 95 , __ P.3d __.
Subsection (3)(c) is intended to prevent improvident consent, that is, the very objective sought to be prevented by the law defining the offense. Hotsenpiller v. Morris, 2017 COA 95 , __ P.3d __.
The defense of consent of the victim is not available regarding a violation of a permanent CPO. As stated in § 13-14-106 , a CPO is an order of the court and not an order issued by the protected person, and the protected person's consent cannot, as a matter of law, constitute a restrained party's defense to the crime for violation of a CPO. Hotsenpiller v. Morris, 2017 COA 95 , __ P.3d __.
Whether the victim consented to sexual contact is directly relevant to submission. Thus, if the victim consented to having sex with the defendant, the element of submission would be negated because the victim cannot both consent to sexual contact and be made to submit against her will to such contact. People v. Williams, 899 P.2d 306 (Colo. App. 1995).
Trial court committed reversible error by refusing defendants' request to instruct the jury on the affirmative defense of consent where the evidence bearing on the possible existence of consent, while not strong, at least satisfied the "scintilla" standard required for an instruction on an affirmative defense. People v. Cruz, 903 P.2d 1198 (Colo. App. 1995).
Because the alleged victim's alleged consent would have "negative[d] an element of the [sexual assault] offense", the trial court was required to instruct the jury on the affirmative defense of consent. People v. Cruz, 903 P.2d 1198 (Colo. App. 1995).
This section does not impose a requirement that the jury be instructed on an affirmative defense of consent in a case under the first degree sexual assault statute which itself requires, in effect, that the prosecution prove a lack of consent. People v. Cruz, 923 P.2d 311 (Colo. App. 1996).
Trial court did not err in refusing to give jury instruction defining the affirmative defense of consent where proof of the elements of the charged offense necessarily required disproof of the issues raised by said defense. People v. Bush, 948 P.2d 16 (Colo. App. 1997).
PART 6 PARTIES TO OFFENSES - ACCOUNTABILITY
Law reviews: For article, "Colorado Law Concerning Accomplices and Complicity", see 18 Colo. Law. 2317 (1989); for article, "1992 Criminal Law Legislative Update", see 21 Colo. Law. 2200 (1992).
18-1-601. Liability based upon behavior.
A person is guilty of an offense if it is committed by the behavior of another person for which he is legally accountable as provided in sections 18-1-602 to 18-1-607.
Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-701.
ANNOTATION
Applied in People v. Calvaresi, 198 Colo. 321 , 600 P.2d 57 (1979); People v. R.V., 43 Colo. App. 349, 606 P.2d 1311 (1979); People v. R.V., 635 P.2d 892 ( Colo. 1981 ).
18-1-602. Behavior of another.
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A person is legally accountable for the behavior of another person if:
- He is made accountable for the conduct of that person by the statute defining the offense or by specific provision of this code; or
- He acts with the culpable mental state sufficient for the commission of the offense in question and he causes an innocent person to engage in such behavior.
- As used in subsection (1) of this section, "innocent person" includes any person who is not guilty of the offense in question, despite his behavior, because of duress, legal incapacity or exemption, or unawareness of the criminal nature of the conduct in question or of the defendant's criminal purpose, or any other factor precluding the mental state sufficient for the commission of the offense in question.
Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-702.
ANNOTATION
Law reviews. For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981).
Applied in People v. Treat, 193 Colo. 570 , 568 P.2d 473 (1977).
18-1-603. Complicity.
A person is legally accountable as principal for the behavior of another constituting a criminal offense if, with the intent to promote or facilitate the commission of the offense, he or she aids, abets, advises, or encourages the other person in planning or committing the offense.
Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-703. L. 97: Entire section amended, p. 1540, § 3, effective July 1.
ANNOTATION
Analysis
I. GENERAL CONSIDERATION.
Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963). For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981).
Annotator's note. Since § 18-1-603 is similar to former § 40-1-12, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Common law. At common law an accessory before the fact is he who, being absent at the time of the actual perpetration of the offense, procures, counsels, commands, assists, or abets another to commit it. One who is present aiding and abetting the fact to be committed was considered a principal in the second degree. Komrs v. People, 31 Colo. 212, 73 P. 25 (1903).
If general assembly has power to forbid anything, it has power to forbid incitement thereto. People v. UMW, Dist. 15, 70 Colo. 269, 201 P. 54 (1921).
Purpose of section. Essence of accessory statute establishing guilt equal to that of principal is to punish for participation in the criminal act. People v. Grass, 180 Colo. 346 , 505 P.2d 1301 (1973).
Complicity and conspiracy are not separate offenses with essentially identical elements. People v. Medina, 72 P.3d 405 (Colo. App. 2003).
Conspiracy distinguished. Under this section, a defendant is held accountable for a criminal offense committed by another if the defendant participates in the criminal act by intentionally aiding, abetting, or advising the other person in planning or committing the offense. In contrast, the essence of the crime of conspiracy is an illegal agreement or combination, plus an overt act in furtherance of that agreement. People v. Hood, 878 P.2d 89 (Colo. App. 1994).
Complicity is not a separate and distinct crime or offense. People v. R.V., 635 P.2d 892 (Colo. 1981).
Complicity is not a separate and distinct crime or offense under the criminal code and it is not necessary to specifically charge complicity. People v. Thompson, 655 P.2d 416 ( Colo. 1982 ); People v. Thurman, 948 P.2d 69 (Colo. App. 1997).
Complicity is merely a theory by which a defendant becomes accountable for a criminal offense committed by another. People v. Thompson, 655 P.2d 416 ( Colo. 1982 ); People v. Thurman, 948 P.2d 69 (Colo. App. 1997); People v. Medina, 72 P.3d 405 (Colo. App. 2003).
No fine or imprisonment may be imposed for complicity since it is merely a theory of law by which a defendant becomes accountable for a criminal offense committed through the conduct of another, the punishment is imposed for the underlying crime and not for complicity. People v. R.V., 635 P.2d 892 (Colo. 1981).
Conviction of defendant upheld on theory of complicity to criminally negligent homicide on basis that jury could find defendant guilty if it believed that defendant knew that the principal was about to engage in conduct that was a gross deviation from the standard of care that a reasonable person would exercise, even though the principal was not charged with criminally negligent homicide. Such knowledge on the part of the alleged complicitor is sufficient to meet the requirement that the complicitor had knowledge that the principal intended to commit the crime. People v. Wheeler, 772 P.2d 101 (Colo. 1989).
Accomplice liability tracks that degree of knowledge that the complicitor's actions of aiding and abetting evince, and, where the complicitor is engaged in a common enterprise with the principal, he or she may be held liable as a complicitor for reckless crimes. Grissom v. People, 115 P.3d 1280 (Colo. 2005).
Conviction as a complicitor, under the complicity statute, requires that: (1) the principal committed the crime; (2) the complicitor had knowledge that the principal intended to commit the crime; and (3) the complicitor aided or encouraged, with specific intent to aid or encourage, the principal's commission of the crime. People v. Wilson, 791 P.2d 1247 (Colo. App. 1990); People v. Fisher, 904 P.2d 1326 (Colo. App. 1994).
A complicitor cannot be held strictly liable for the sentence enhancer when the record contains no evidence that the complicitor was aware that the principal would commit theft in the presence of an at-risk person. People in Interest of B.D., 2019 COA 57 , __ P.3d __.
A complicitor is liable for a principal's act of money laundering if the prosecution can prove that (1) the principal committed an act of money laundering; (2) the complicitor aided, abetted, advised, or encouraged that specific act of money laundering; (3) the complicitor intended to do so; (4) the complicitor was aware that the principal knew or believed that the property involved in the specific money laundering transaction represented the proceeds of a criminal offense; and (5) the complicitor was aware that the principal knew or believed that the transaction was designed in whole or in part to conceal or disguise the nature, location, source, ownership, or control of the proceeds of the criminal offense. Butler v. People, 2019 CO 87, 450 P.3d 714.
A criminal defendant may be a complicitor to the crime of accessory by rendering assistance to another who is engaged in destroying evidence of a crime, even though the crime underlying the accessory charge may have been committed by the defendant. People v. Ager, 928 P.2d 784 (Colo. App. 1996).
Requirement that a defendant knew another person intended to commit a crime for purposes of being convicted as a complicitor is met where the principal consciously caused the prohibited sexual contact with the child. People v. Moore, 877 P.2d 840 (Colo. 1994).
Section distinguished from solicitation statute. Although encouragement of a criminal offense is prohibited under both § 18-2-301 and this section, the solicitation statute concerns incomplete acts, and the complicity statute covers consummated criminal offenses. Because the provisions proscribe distinguishable behavior, there is no violation of equal protection. Alonzi v. People, 198 Colo. 160 , 597 P.2d 560 (1979).
Liability of accessory and associates governed by same principle. Where one is an accessory he of necessity must act in concert with some other or others and whether charged jointly or separately the legal consequences arising from his conduct and that of his associates are measured by the same principle. Bacino v. People, 104 Colo. 229 , 90 P.2d 5 (1939).
There is no statutory distinction between accessories before the fact and principals. Noble v. People, 23 Colo. 9 , 45 P. 376 (1896); Pacheco v. People, 96 Colo. 401 , 43 P.2d 165 (1935); Harris v. People, 139 Colo. 9 , 335 P.2d 550 (1959); Martinez v. People, 166 Colo. 524 , 444 P.2d 641 (1968).
Thus, one who is an accessory to a crime is guilty of the same degree of crime as the principal. Atwood v. People, 176 Colo. 183 , 489 P.2d 1305 (1971).
One who comes under this section is equivalent to a principal. People v. Saiz, 42 Colo. App. 469, 600 P.2d 97 (1979).
An accessory who stands by and aids, abets, or assists in the perpetration of a crime is deemed and considered as a principal and punished accordingly. Medina v. People, 168 Colo. 255 , 450 P.2d 662 (1969).
An accessory standing by, aiding, abetting, or assisting in a kidnapping is guilty as a principal. Brady v. People, 175 Colo. 252 , 486 P.2d 436 (1971).
An accessory to a crime of violence as defined by § 16-11-309 (2) may be charged, tried, and punished as a principal. People v. Swanson, 638 P.2d 45 (Colo. 1981).
A person who intends to aid the principal in committing murder and who possesses the intent to murder a person is criminally liable for the killing of an unintended third party by the principal. To decide otherwise would defeat the purpose of the complicity statute, which provides that a complicitor is "legally accountable as principal". People v. Candelaria, 107 P.3d 1080 (Colo. App. 2004), aff'd in part and rev'd in part on other grounds, 148 P.3d 178 ( Colo. 2006 ).
No transferred intent where a shooter meant to kill the very person he did kill, and that person was not someone the indirect participant wanted to kill. When the direct perpetrator deliberately changes the object of the offense, the doctrine of transferred malice does not apply to the indirect participant despite the fact that from his point of view the displacement of harm was accidental. People v. Hunt, 2016 COA 93 , 412 P.3d 838.
It is not true that if one is not a conspirator he cannot be an accessory. Jacobs v. People, 174 Colo. 403 , 484 P.2d 107 (1971).
One who merely aids and advises another in a legitimate matter is not an accessory within the meaning of this section. French v. People, 6 Colo. App. 311, 40 P. 463 (1895).
Definition of "abets" encompasses "encourages". Alonzi v. People, 198 Colo. 160 , 597 P.2d 560 (1979).
A bystander is not required to endanger his own safety by interfering and giving help to prevent the commission of a crime, in order to avoid being held an accessory under this section. Farrell v. People, 8 Colo. App. 524, 46 P. 841 (1896).
Defendant's involvement as a conspirator and as a complicitor was tied to separate and distinct crimes, and the doctrine of merger did not apply. People v. Shannon, 189 Colo. 287 , 539 P.2d 480 (1975).
Section applies to felony murder. A complicitor, being a principal, is included in the felony murder statute as one who commits or attempts to commit the underlying felony. People v. Saiz, 42 Colo. App. 469, 600 P.2d 97 (1979).
Complicitor liability can apply to strict liability crimes. A person is legally accountable as a principal for the behavior of another constituting a criminal offense if he or she aids, abets, advises, or encourages the other person in planning or committing that offense, and he or she does so with: (1) the intent to aid, abet, advise, or encourage the other person in his or her criminal act or conduct, and (2) an awareness of circumstances attending the act or conduct he or she seeks to further, including a required mental state, if any, that are necessary for commission of the offense in question. People v. Childress, 2015 CO 65M, 363 P.3d 155; People v. Butler, 2017 COA 98 , 454 P.3d 280, aff'd on other grounds, 2019 CO 87, 450 P.3d 714.
There is no temporal element imputed to the dual mental state determined by the above test. People v. Sandoval, 2018 COA 156 , __ P.3d __.
Rosemond v. United States, 572 U.S. 65 134 S. Ct. 1240, 188 L. Ed. 2d 248 (2014), does not apply to crimes charged under this section. People v. Sandoval, 2018 COA 156 , __ P.3d __.
Colorado courts have recognized that complicity liability applies to attempt offenses. Thus, attempted murder is not an inchoate crime. People v. Candelaria, 107 P.3d 1080 (Colo. App. 2004), aff'd in part and rev'd in part on other grounds, 148 P.3d 178 ( Colo. 2006 ).
Applied in Polochio v. People, 76 Colo. 574 , 233 P. 833 (1925); Stewart v. People, 83 Colo. 289 , 264 P. 720 (1928); De Salvo v. People, 98 Colo. 368 , 56 P.2d 28 (1936); Thompson v. People, 139 Colo. 15 , 336 P.2d 93 (1959), cert. denied, 361 U.S. 972, 80 S. Ct. 606, 4 L. Ed. 2d 552 (1960); Kelley v. People, 166 Colo. 322 , 443 P.2d 734 (1968); Mingo v. People, 171 Colo. 474 , 468 P.2d 849 (1970); Brady v. People, 175 Colo. 252 , 486 P.2d 436 (1971); People v. Cox, 190 Colo. 326 , 546 P.2d 956 (1976); People v. Brionez, 39 Colo. App. 396, 570 P.2d 1296 (1977); People v. Simien, 656 P.2d 698 ( Colo. 1983 ).
II. TRIAL AND PUNISHMENT.
A. In General.
In order for a defendant to be accountable as a principal under this section, it must be shown (1) that the principal actually committed the robbery; (2) that defendant had knowledge that the principal intended to commit the crime; and (3) that defendant aided, abetted, or advised the principal in planning or committing the offense. People v. Martin, 192 Colo. 491 , 561 P.2d 776 (1977); People v. Thompson, 655 P.2d 416 ( Colo. 1982 ).
It is immaterial whether the principal was identified by name in the complicity count against the defendant. People v. Martin, 192 Colo. 491 , 561 P.2d 776 (1977).
Formal agreement is not required. It is not necessary that persons implicated in crime shall have reached a formal or distinct agreement either orally or in writing as to the exact procedure in the accomplishment thereof. Harris v. People, 139 Colo. 9 , 335 P.2d 550 (1959).
Defendant need not perform all acts necessary to offense. Where two or more are involved in the commission of a criminal offense and one helps the other, though not actually performing all the acts necessary to the commission of the offense, all are, nevertheless, principal offenders and are punishable as though all have committed the necessary acts. Reed v. People, 171 Colo. 421 , 467 P.2d 809 (1970).
Absence from state at time of crime does not prevent conviction. That defendant charged as accessory in a criminal case was at all times during the happening of the events involved in the crime in another state does not invalidate conviction. Newton v. People, 96 Colo. 246 , 41 P.2d 300 (1935).
No election required as to which defendant was accessory. There was no error in the trial court's refusing to compel the district attorney to elect, before the evidence was presented, as to which defendant was principal and which accessory. Block v. People, 125 Colo. 36 , 240 P.2d 512 (1951), cert. denied, 343 U.S. 978, 72 S. Ct. 1076, 96 L. Ed. 1370, reh'g denied, 344 U.S. 848, 73 S. Ct. 6, 97 L. Ed. 659 (1952).
An accessory who stands by and aids in the perpetration of a crime may properly be charged as a principal, and in the case of codefendants it is unnecessary to spell out which one is the principal and which the accessory, nor is it necessary to characterize and classify the specific acts of each. Schreiner v. People, 146 Colo. 19 , 360 P.2d 443, cert. denied, 368 U.S. 856, 82 S. Ct. 94, 7 L. Ed. 2d 53 (1961).
In the case of codefendants it is unnecessary to spell out which one is the principal and which the accessory. McGregor v. People, 176 Colo. 309 , 490 P.2d 287 (1971).
When two persons are charged with the same crime, the prosecution is not required to spell out which one is the principal and which is the accessory. People v. Scheidt, 182 Colo. 374 , 513 P.2d 446 (1973).
Applied in People v. Saars, 196 Colo. 294 , 584 P.2d 622 (1978); People v. Alonzi, 40 Colo. App. 507, 580 P.2d 1263 (1978).
B. Indictment or Information.
An accessory may be charged as principal. Voris v. People, 75 Colo. 574 , 227 P. 551 (1924); Newton v. People, 96 Colo. 246 , 41 P.2d 300 (1935); Pacheco v. People, 96 Colo. 401 , 43 P.2d 165 (1935); Bacino v. People, 104 Colo. 229 , 90 P.2d 5 (1939); Erwin v. People, 126 Colo. 28 , 245 P.2d 1171 (1952); Harris v. People, 139 Colo. 9 , 335 P.2d 550 (1959); Martinez v. People, 166 Colo. 524 , 444 P.2d 641 (1968).
An accessory may be indicted and punished as a principal. People v. Zobel, 54 Colo. 284 , 130 P. 837 (1913); Mulligan v. People, 68 Colo. 17 , 189 P. 5 (1920); Harris v. People, 139 Colo. 9 , 335 P.2d 550 (1959).
If accessories are under the law deemed and considered as principals, then they are principals insofar as the indictment, trial, and punishment are concerned. Mulligan v. People, 68 Colo. 17 , 189 P. 5 (1920); Harris v. People, 139 Colo. 9 , 335 P.2d 550 (1959).
The acts of the principal are the acts of the accessory, and the accessory may be charged and punished accordingly as a principal. Oaks v. People, 161 Colo. 561 , 424 P.2d 115 (1967).
A person who aids, abets, or assists in the perpetration of a criminal offense becomes an accessory to that offense and is chargeable and punishable as a principal. Reed v. People, 171 Colo. 421 , 467 P.2d 809 (1970).
An accessory who stands by and aids in the perpetration of a crime may properly be charged as a principal. McGregor v. People, 176 Colo. 309 , 490 P.2d 287 (1971).
An accessory charged as a principal for an accessory is deemed and considered a principal, punishable as a principal, and plainly shall be charged as a principal. Fernandez v. People, 176 Colo. 346 , 490 P.2d 690 (1971).
Nothing substantial was added to the charge by adding the charge that defendants had aided, counseled, and procured the burning, since, in Colorado, one who aids and abets or advises or encourages is deemed and considered a principal, and may be charged as a principal. People v. Buckner, 180 Colo. 65 , 504 P.2d 669 (1972).
A defendant may be charged as the principal in a criminal transaction and subsequently tried as an accessory. People v. Scheidt, 182 Colo. 374 , 513 P.2d 446 (1973).
One charged as a principal may be tried and convicted as a complicitor. People v. Mason, 642 P.2d 8 (Colo. 1982).
Proper charge satisfies constitution. All participants in the crime are made guilty of the crime under the statute, and therefore when properly charged with the crime, they are sufficiently advised of the accusation against them, within the requirement of the constitutional provision that accused shall have the right to demand the nature and cause of the accusation against him. Mulligan v. People, 68 Colo. 17 , 189 P. 5 (1920); Fernandez v. People, 176 Colo. 346 , 490 P.2d 690 (1971).
Particulars in which he aided need not be recited. The particulars in which an accessory aided and abetted or advised and encouraged the principal need not be recited. Newton v. People, 96 Colo. 246 , 41 P.2d 300 (1935); Martinez v. People, 166 Colo. 524 , 444 P.2d 641 (1968).
In the case of codefendants it is unnecessary to characterize and classify the specific acts of the principal and the accessory. McGregor v. People, 176 Colo. 309 , 490 P.2d 287 (1971).
It is ultimately the jury's responsibility to determine the specific role a defendant plays. People v. Scheidt, 182 Colo. 374 , 513 P.2d 446 (1973).
C. Evidence.
Elements may be established by reasonable inference. That one charged as accessory to crime had knowledge of the principal's intention, coincided therewith, and cooperated in his efforts may be established by reasonable inference from other established facts and circumstances. Harris v. People, 139 Colo. 9 , 335 P.2d 550 (1959).
In the trial of an alleged accessory, the state must show by some substantial proof, either directly or by conclusive circumstances, that the accessory had some knowledge of the principal's offense. Dressel v. People, 178 Colo. 115 , 495 P.2d 544 (1972).
An admission by alleged principal may be introduced as evidence of the principal's guilt so long as all references to the defendant-accessory are effectively deleted. People v. Knapp, 180 Colo. 280 , 505 P.2d 7 (1973).
Defendants' statements were admissible in prosecution for attempted theft where those statements were not offered to prove conspiracy, but rather to show each defendant's complicity in offense, and court made it clear that it considered any statement offered only as evidence against the defendant who made it. People v. Adams, 678 P.2d 572 (Colo. App. 1984).
Prosecutor at defendant-accessory's trial permitted to introduce evidence establishing principal's guilt. Before a defendant may be convicted as an accessory, the jury must be convinced beyond a reasonable doubt that his accomplice, as the principal, is also guilty of the crime, and in order to satisfy that burden of proof, the prosecution is allowed to introduce evidence otherwise inadmissible at the defendant-accessory's trial for the limited purpose of establishing the guilt of the principal. People v. Scheidt, 182 Colo. 374 , 513 P.2d 446 (1973).
Principal's mental state not relevant. Only the defendant's mental state is relevant in proving a charge of complicity. Accordingly, it is no defense that the person with whom the defendant acted is legally not responsible for the crime. People v. McCoy, 944 P.2d 577 (Colo. App. 1996).
Evidence established intent. Where the evidence discloses that the defendants, acting in concert with another, inflicted stab wounds upon the complaining witness and other victims of the assault, a claim that a defendant had no specific intent to commit bodily injury on the person of the complaining witness, and therefore is not accountable for injuries to her, is without merit. Harris v. People, 139 Colo. 9 , 335 P.2d 550 (1959).
Evidence sufficient to make a prima facie case. Whitman v. People, 161 Colo. 110 , 420 P.2d 416 (1966).
D. Instructions.
Evidence warranting instruction on accessory. Erwin v. People, 126 Colo. 28 , 245 P.2d 1171 (1952).
Where two persons are acting in concert, one holding the victims at bay, the other emptying the cash register, an instruction on accessory is in order. Schreiner v. People, 146 Colo. 19 , 360 P.2d 443, cert. denied, 368 U.S. 856, 82 S. Ct. 94, 7 L. Ed. 2d 53 (1961); Cruz v. People, 147 Colo. 528 , 364 P.2d 561 (1961), cert. denied, 368 U.S. 978, 82 S. Ct. 483, 7 L. Ed. 2d 440 (1962).
An accomplice or accessory instruction is applicable and proper where the evidence indicates that one of the defendants was standing by and was aiding, abetting, or assisting in the perpetration of the crime. Gallegos v. People, 166 Colo. 409 , 444 P.2d 267 (1968).
Where two or more persons jointly engage in the commission of a crime, the giving of an accessory instruction is proper. Tanksley v. People, 171 Colo. 77 , 464 P.2d 862 (1970); McGregor v. People, 176 Colo. 309 , 490 P.2d 287 (1971).
Complicity instruction given when joint crime. An instruction on complicity may be given when two or more people engage jointly in a crime. People v. Naranjo, 200 Colo. 11 , 612 P.2d 1106 (1980); People v. Thurman, 948 P.2d 69 (Colo. App. 1997).
But court is not required to instruct jury that it must reach a unanimous decision as to whether defendant is convicted as a principal or as a complicitor. Committing a crime either as a principal or complicitor are alternative legal theories and two means of committing a single offense, and are not an impermissible definitional distinction pertaining to a party's status. People v. Hall, 60 P.3d 728 (Colo. App. 2002).
Instruction not error simply because possibility of inconsistent verdict. The trial court did not err by instructing on complicity and on sexual assault when the defendant was aided or abetted by others simply because the instructions, when given together, could lead to an inconsistent verdict. People v. Naranjo, 200 Colo. 11 , 612 P.2d 1106 (1980).
If request made, court required to give limiting instruction. If a request is made for an instruction limiting the use of evidence introduced to establish guilt of principal, the court is required to caution the jury that the evidence can be considered only to show the guilt of the principal and not that of the defendant-accessory. People v. Scheidt, 182 Colo. 374 , 513 P.2d 446 (1973).
If no request made, no duty to limit jury's consideration. Where the defendant failed to request a limiting instruction both at the time the evidence was introduced and at the close of the trial, absent such a request, there was no duty on the trial court to limit the jury's consideration of the testimony. People v. Scheidt, 182 Colo. 374 , 513 P.2d 446 (1973).
Instruction on criminal responsibility held not erroneous. An instruction designed to inform the jury regarding the criminal responsibility of the persons engaged in the concerted common purpose of committing a felony, where the accessory, made a principal by statute, is tried under a separate information is not erroneous. Bacino v. People, 104 Colo. 229 , 90 P.2d 5 (1939).
Instruction using phrase has "advised or encouraged" is not erroneous. Under the provisions of this section that an accessory is one who has "advised and encouraged, etc.", a court instruction using the phrase, has "advised or encouraged", held not erroneous. Voris v. People, 75 Colo. 574, 227 P. 551 (1924).
Instruction given was sufficient. Instruction given, which was couched in the language of the statute and which was read together with the courts' general reasonable doubt instruction, was sufficient to instruct jury properly on complicity. People v. Lillie, 707 P.2d 1043 (Colo. App. 1985).
Words "with intent to promote or facilitate" are not words of uncommon meaning which are apt to be misunderstood by a jury and therefore require further definition. People v. R.V., 635 P.2d 892 (Colo. 1981).
Failure of trial court to give cautionary instruction on accomplices does not constitute reversible error, where there was ample corroboration. Miller v. People, 92 Colo. 481 , 22 P.2d 626 (1933).
Statutory definitions of mens rea not applicable to complicity. Since complicity is not a substantive crime, the statutory definitions of mens rea do not apply, and instructions defining the mens rea elements of "specific intent" and "intentionally or with intent" are not applicable to, or a necessary element of, the definition of complicity. People v. R.V., 635 P.2d 892 (Colo. 1981).
Erroneous instruction including mens rea is harmless error. The statutory definitions of mens rea are not necessary elements of complicity. Where an erroneous instruction on complicity requires the finding of a higher standard of culpability, such failure inures to the benefit of the defendant and constitutes harmless error. People v. Simien, 671 P.2d 1021 (Colo. App. 1983).
Asserted errors are not structural because the plain language of the pattern complicity instruction sufficiently reflects the complicitor's two mental state requirements under the complicity statute: (1) The defendant had the requisite mens rea for the underlying crime committed by the principal; and (2) the defendant intended that his own conduct would promote or facilitate the commission of the crimes committed by the principal. Bogdanov v. People, 941 P.2d 247 ( Colo. 1997 ) (disapproved of by Supreme Court in Griego v. People, 19 P.3d 1 ( Colo. 2001 )).
An incorrect jury instruction in a criminal case is not a structural error; instead, such instruction is subject only to harmless or plain error review, following the U.S. supreme court precedent in Neder v. United States, 527 U.S. 1 (1999). Therefore, if a conviction is not attributable to the incorrect instruction, a conviction shall not be overturned and all contrary precedent is disapproved of. Griego v. People, 19 P.3d 1 ( Colo. 2001 ) (disapproving on this point Cooper v. People, 973 P.2d 1234 ( Colo. 1999 ), Bogdanov v. People, 941 P.2d 247 ( Colo. 1997 ), People v. Vance, 933 P.2d 576 ( Colo. 1997 ), People v. Villa-Villa, 983 P.2d 181 (Colo. App. 1999)).
"All or part of" language in the standard complicity instruction was not plain error, even though the defendant being charged with the underlying crime under a complicity theory did not actually commit any of the essential elements of that crime and one principal alone committed all elements of the crime. Bogdanov v. People, 941 P.2d 247 (Colo. 1997).
Trial court did not err when it included the "all or part of" language in the complicity instruction. The jury could have reasonably concluded the defendant and another committed the essential elements of the crimes related to the complicity charges. People v. Clark, 2015 COA 44 , 370 P.3d 197.
Evidence sufficient to warrant complicity instruction. Evidence led to a reasonable inference that defendant knew of the other man's possession and intent to distribute controlled substances and that defendant facilitated that conduct by allowing the other man to use his apartment for those purposes. People v. Chavez, 190 P.3d 760 (Colo. App. 2007).
Submission of complicity instruction was error and not harmless where there was no evidence with respect to the existence of an accomplice, despite strong evidence of defendant's guilt on the underlying offense. People v. Gonzales, 728 P.2d 384 (Colo. App. 1986).
Trial court erred in giving complicity instruction. Although the jury was instructed on first degree assault and sexual assault charges that, in order to convict, it must find that defendant's wife intended to commit the crime of sexual assault on a child, that defendant must have known that she intended to commit that crime, and that the defendant did not intentionally aid, abet, advise or encourage her in committing this crime, the evidence did not justify that the wife voluntarily committed sexual assault on her daughter or that defendant's actions were designed to aid her in carrying out such an intent. People v. Moore, 860 P.2d 549 (Colo. App. 1993).
But trial court erred in refusing to give complicity instruction where evidence supported theory that defendant and co-defendant had engaged jointly in crimes. Complicity instruction was warranted when there was evidence that defendant had previously confessed to shootings and admitted that co-defendant had driven car, and that neighborhood residents had seen two persons, a shooter and a driver, involved in the crimes. Despite defendant's assertion at trial that he had falsely admitted to the shootings and had switched roles with co-defendant, the evidence was sufficient to support a jury instruction on complicity. People v. Grant, 30 P.3d 667 (Colo. App. 2000), aff'd on other grounds, 48 P.3d 543 ( Colo. 2002 ).
Erroneous instruction on value of stolen property received. Where defendant received property knowing it to have been stolen, and subsequently received from the same parties additional property, fruits of a burglary committed at his suggestion but in which he did not participate, it was error for the trial court to instruct the jury that in arriving at the value of the property received they were limited to the value of such as was "shown to have been stolen prior to the time any knowledge thereof came to the defendant". People v. Spinuzza, 99 Colo. 303 , 62 P.2d 471 (1936).
III. ILLUSTRATIVE CASES.
Insufficient evidence to show occupant of automobile was accessory. Where two men were charged with causing death by operating a car in a reckless manner while intoxicated, and the only evidence supporting the charge that defendant was an accessory was that he was in the car and was under the influence of intoxicating liquor at the time of the accident, it could not be successfully contended from the evidence that defendant in any way aided and abetted in that regard. Quintana v. People, 106 Colo. 174 , 102 P.2d 486 (1940).
Participant in robbery during which homicide is committed. If a homicide is committed by one of defendant's associates while engaged in a robbery in furtherance of a common purpose, defendant is guilty of murder in the first degree. Abshier v. People, 87 Colo. 507, 289 P. 1081 (1930).
To convict defendant of attempted murder as a complicitor, defendant must have had the culpable mental state required for attempted murder and must have intended that his own conduct promote or facilitate the commission of attempted first degree murder committed by the principal. People v. Candelaria, 107 P.3d 1080 (Colo. App. 2004), aff'd in part and rev'd in part on other grounds, 148 P.3d 178 ( Colo. 2006 ).
Culpability of participant in assault. Where defendants and another agree to embark upon an enterprise of stealing hubcaps from automobiles, stole a hubcap from a car belonging to one of the victims of their assault, and upon being pursued and overtaken attack their pursuers, severely cutting and beating them, the assault and the use of knives being concerted and participated in by all three thieves, all are guilty of assault with a deadly weapon. Harris v. People, 139 Colo. 9 , 335 P.2d 550 (1959).
Where the evidence disclosed that only slight injury was inflicted on deceased in an altercation with defendant, and that thereafter deceased was severely beaten by a third party, resulting in his death, and there was no evidence that defendant participated therein or that there was an express or tacit understanding between defendant and such third party to injure deceased through a common unlawful purpose, defendant was not an accessory to the acts of such third party. Smith v. People, 142 Colo. 523 , 351 P.2d 457 (1960).
Principles of complicity apply to sexual assault in the first degree such that if the actor or an accomplice is armed with and uses a deadly weapon then both may be found to have committed a class 2 felony. People v. Walford, 716 P.2d 137 (Colo. App. 1985).
Proof that the complicitor had some knowledge of the principal's offense may be sufficient. Evidence was sufficient to establish that defendant knew that his companion had a knife in his possession and planned to rob the male robbery victim after both men were informed by the woman victim that her husband was in the house. People v. Wilson, 791 P.2d 1247 (Colo. App. 1990).
Record supported jury's determination that defendant was guilty beyond a reasonable doubt of first degree assault where defendant was a complicitor in the robbery of the victim, and in the course of or in furtherance of that crime, the victim was seriously injured by one of the individuals involved in the robbery. Defendant may be held responsible for that serious bodily injury whether or not he knew that someone else intended to inflict it. People v. Fisher, 904 P.2d 1326 (Colo. App. 1994) (decided under law as it existed prior to 1995 repeal of § 18-3-202 (1)(d)).
One agreeing in advance to buy stolen property. Under this section if one agrees in advance to buy stolen property, knowing that the property is to be stolen, he thereby encourages the perpetration of the theft, and if the crime is committed he is deemed and considered as principal and punished accordingly. Miller v. People, 92 Colo. 481 , 22 P.2d 626 (1933); People v. Lamirato, 180 Colo. 250 , 504 P.2d 661 (1972).
Where there was evidence presented at trial to the effect that the defendant had stated, prior to the theft, that he would take all the color television sets which could be provided, and there was evidence from which a jury could properly infer that the defendant knew that the television sets would be stolen, the evidence was sufficient to permit submission of the theft by taking count to the jury, it being properly instructed as to an accessory becoming liable as a principal. People v. Lamirato, 180 Colo. 250 , 504 P.2d 661 (1972).
Purchaser from one knowingly unauthorized to sell liquor. Under this section each person presenting himself as a buyer from one knowingly unauthorized to sell liquor, became a participant in the act of selling. Walt v. People, 46 Colo. 136, 104 P. 89 (1909).
One who knowingly rents premises to be occupied for the purpose of prostitution, and which with his knowledge are conducted as a bawdy house, aids, abets, and assists in keeping and maintaining a house of ill-fame, for the obvious reason that by his affirmative act he knowingly aids another to commit that offense, and as this section makes him a principal, he may be proceeded against and punished accordingly. Griffin v. People, 44 Colo. 533, 99 P. 321 (1908).
Employee not liable for embezzlement of manager. A conviction for embezzlement by a warehouseman of property must be reversed when there is no evidence to show that the defendant actually took part in the crime and the prosecution failed to establish that the defendant had some knowledge that the manager had perpetrated the crime. Dressel v. People, 178 Colo. 115 , 495 P.2d 544 (1972).
Complicity in arson. Evidence was sufficient to make prima facie case against two defendants as complicitors. People v. Calvaresi, 198 Colo. 321 , 600 P.2d 57 (1979).
Convictions for internet luring of a child and internet sexual exploitation of a child under a complicity theory vacated because prosecution failed to prove that defendant committed the crimes or that defendant acted as an accomplice to a principal who committed the crimes. People v. Douglas, 2012 COA 57 , 296 P.3d 234.
18-1-604. Exemptions from liability based upon behavior of another.
- Unless otherwise provided by the statute defining the offense, a person shall not be legally accountable for behavior of another constituting an offense if he is a victim of that offense or the offense is so defined that his conduct is inevitably incidental to its commission.
- It shall be an affirmative defense to a charge under section 18-1-603 if, prior to the commission of the offense, the defendant terminated his effort to promote or facilitate its commission and either gave timely warning to law enforcement authorities or gave timely warning to the intended victim.
Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-704.
Cross references: For other provisions concerning affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805.
18-1-605. Liability based on behavior of another - no defense.
In any prosecution for an offense in which criminal liability is based upon the behavior of another pursuant to sections 18-1-601 to 18-1-604, it is no defense that the other person has not been prosecuted for or convicted of any offense based upon the behavior in question or has been convicted of a different offense or degree of offense, or the defendant belongs to a class of persons who by definition of the offense are legally incapable of committing the offense in an individual capacity.
Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-705.
ANNOTATION
Annotator's note. Since § 18-1-605 is similar to former § 40-1-12, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
At common law a conviction of the principal was required to precede or accompany that of one charged as an accessory and the accessory was subject to the same punishment as the principal. Howard v. People, 97 Colo. 550 , 51 P.2d 594 (1935).
The conviction of the principal is not a condition precedent to the conviction of an accessory after the fact, before, or during the fact. Oaks v. People, 161 Colo. 561 , 424 P.2d 115 (1967).
An accessory is subject to independent prosecution and can be convicted even though principal actor has been neither charged nor convicted of an offense. Oaks v. Patterson, 278 F. Supp. 703 (D. Colo.), aff'd on other grounds, 400 F.2d 392 (10th Cir. 1968).
He may be convicted of a greater crime than the principal, who pled guilty to a lesser included crime, and according to the state, acted under influence of accessory when shooting decedent; such conviction does not deny accessory due process. Oaks v. Patterson, 278 F. Supp. 703 (D. Colo.), aff'd on other grounds, 400 F.2d 392 (10th Cir. 1968).
Dismissal of information as to principal does not justify discharge of accessory by court. The dismissal of an information as to a principal, and his discharge, does not justify the discharge of the accessory by the court of its own motion, against the protests of the district attorney. People v. Zobel, 54 Colo. 284, 130 P. 837 (1913).
Applied in People v. Fletcher, 37 Colo. App. 173, 546 P.2d 980 (1975), rev'd on other grounds, 193 Colo. 314 , 566 P.2d 345 (1977).
18-1-606. Criminal liability of business entities - definitions.
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A business entity is guilty of an offense if:
- The conduct constituting the offense consists of an omission to discharge a specific duty of affirmative performance imposed on the business entity by law; or
- The conduct constituting the offense is engaged in, authorized, solicited, requested, commanded, or knowingly tolerated by the governing body or individual authorized to manage the affairs of the business entity or by a high managerial agent acting within the scope of his or her employment or in behalf of the business entity.
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As used in this section:
- "Agent" means any director, officer, or employee of a business entity, or any other person who is authorized to act in behalf of the business entity, and "high managerial agent" means an officer of a business entity or any other agent in a position of comparable authority with respect to the formulation of the business entity's policy or the supervision in a managerial capacity of subordinate employees.
- "Business entity" means a corporation or other entity that is subject to the provisions of title 7, C.R.S.; foreign corporations qualified to do business in this state pursuant to article 115 of title 7, C.R.S., specifically including federally chartered or authorized financial institutions; a corporation or other entity that is subject to the provisions of title 11, C.R.S.; or a sole proprietorship or other association or group of individuals doing business in the state.
- Every offense committed by a corporation prior to July 1, 1985, which would be a felony if committed by an individual shall subject the corporation to the payment of a fine of not less than one thousand dollars nor more than fifteen thousand dollars. For such offenses committed on or after July 1, 1985, the corporation shall be subject to the payment of a fine within the presumptive ranges authorized by section 18-1.3-401 (1)(a)(III). Every offense committed by a corporation which would be a misdemeanor or petty offense if committed by an individual shall subject the corporation to the payment of a fine within the minimum and maximum fines authorized by sections 18-1.3-501 and 18-1.3-503 for the particular offense of which the corporation is convicted. For an offense committed on or after July 1, 2003, a business entity shall be subject to the payment of a fine within the presumptive ranges authorized by section 18-1.3-401 (1)(a)(III). An offense committed by a business entity that would be a misdemeanor or petty offense if committed by an individual shall subject the business entity to the payment of a fine within the minimum and maximum fines authorized by sections 18-1.3-501 and 18-1.3-503 for the particular offense of which the business entity is convicted.
Source: L. 71: R&RE, p. 406, § 1. C.R.S. 1963: § 40-1-706. L. 85: (3) amended, p. 658, § 7, effective July 1. L. 2002: (3) amended, p. 1511, § 180, effective October 1. L. 2003: Entire section amended, p. 982, § 18, effective April 17.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (3), see section 1 of chapter 318, Session Laws of Colorado 2002.
ANNOTATION
Law reviews. For article, "Criminal Prosecution of Employers for Workplace Deaths and Injuries", see 16 Colo. Law. 1974 (1987).
18-1-607. Criminal liability of an individual for corporate conduct.
A person is criminally liable for conduct constituting an offense which he performs or causes to occur in the name of or in behalf of a corporation to the same extent as if that conduct were performed or caused by him in his own name or behalf.
Source: L. 71: R&RE, p. 407, § 1. C.R.S. 1963: § 40-1-707.
ANNOTATION
Law reviews. For article, "Criminal Prosecution of Employers for Workplace Deaths and Injuries", see 16 Colo. Law. 1974 (1987).
A corporate officer may be criminally liable for embezzlement or larceny of property of third person through a corporate act where the act was performed by the individual officer, or at his direction, or by his permission. Hartson v. People, 125 Colo. 1 , 240 P.2d 907 (1951) (decided under CSA, C. 108, § 102).
It is not grounds for dismissal that defendant did not personally participate in every part of the transaction if, as the evidence indicates, he was the causative force behind acts performed in the corporation's name. People v. Treat, 193 Colo. 570 , 568 P.2d 473 (1977).
PART 7 JUSTIFICATION AND EXEMPTIONS FROM CRIMINAL RESPONSIBILITY
18-1-701. Execution of public duty.
- Unless inconsistent with other provisions of sections 18-1-702 to 18-1-710, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is required or authorized by a provision of law or a judicial decree binding in Colorado.
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A "provision of law" and a "judicial decree" in subsection (1) of this section mean:
- Laws defining duties and functions of public servants;
- Laws defining duties of private citizens to assist public servants in the performance of certain of their functions;
- Laws governing the execution of legal process;
- Laws governing the military service and conduct of war;
- Judgments and orders of court.
Source: L. 71: R&RE, p. 407, § 1. C.R.S. 1963: § 40-1-801.
ANNOTATION
Process server's entry onto land to effect service was legal. And while land owner quickly revoked the implied license once the owner began interacting with the process server, to the extent the process server's conduct was consistent with the laws governing the execution of legal process, the conduct remained statutorily privileged even after the owner revoked the implied license. People v. Neckel, 2019 COA 69 , __ P.3d __.
Defense not available to penitentiary guard accused of aiding escape. A penitentiary guard, accused of aiding an escape, whose theory of the case is that he was attempting to apprehend an escaped criminal by using undercover techniques is not entitled to a jury instruction on the affirmative defense of execution of public duty when his authority to make an arrest is limited to penitentiary grounds and there is no evidence he had any authorization to engage in undercover activities. People v. Roberts, 43 Colo. App. 100, 601 P.2d 654 (1979).
Defense not available to deputy sheriff when directed to perform an unauthorized act by sheriff. Deputy sheriff's installation of an eavesdropping device at the direction of the sheriff was not an execution of a public duty when sheriff did not have legal authority to place electronic listening device without court order. People v. Lesslie, 24 P.3d 22 (Colo. App. 2000).
18-1-702. Choice of evils.
- Unless inconsistent with other provisions of sections 18-1-703 to 18-1-707, defining justifiable use of physical force, or with some other provision of law, conduct which would otherwise constitute an offense is justifiable and not criminal when it is necessary as an emergency measure to avoid an imminent public or private injury which is about to occur by reason of a situation occasioned or developed through no conduct of the actor, and which is of sufficient gravity that, according to ordinary standards of intelligence and morality, the desirability and urgency of avoiding the injury clearly outweigh the desirability of avoiding the injury sought to be prevented by the statute defining the offense in issue.
- The necessity and justifiability of conduct under subsection (1) of this section shall not rest upon considerations pertaining only to the morality and advisability of the statute, either in its general application or with respect to its application to a particular class of cases arising thereunder. When evidence relating to the defense of justification under this section is offered by the defendant, before it is submitted for the consideration of the jury, the court shall first rule as a matter of law whether the claimed facts and circumstances would, if established, constitute a justification.
Source: L. 71: R&RE, p. 407, § 1. C.R.S. 1963: § 40-1-802.
ANNOTATION
Law reviews. For comment, "Civil Disobedience as the Lesser Evil", see 59 U. Colo. L. Rev. 961 (1988). For article, "Choice of Evils in Colorado", see 18 Colo. Law. 1117 (1989). For article, "POWPO and Gun Rights After Carbajal", see 44 Colo. Law. 31 (Sept. 2015).
The "choice of evils" defense has its roots in the common-law doctrine of necessity, and has long been recognized in criminal law under the latter description. People v. Robertson, 36 Colo. App. 367, 543 P.2d 533 (1975).
This section is really no more than a codification of the common law on "justification defenses". United States v. Best, 476 F. Supp. 34 (D. Colo. 1979).
The statutory codification of the choice of evils defense has its roots in the common-law doctrine of necessity. People v. Strock, 623 P.2d 42 ( Colo. 1981 ); Andrews v. People, 800 P.2d 607 ( Colo. 1990 ).
Choice of evils defense may be found even though defendant has requisite intent of "knowingly" with respect to offense charged. People v. Trujillo, 682 P.2d 499 (Colo. App. 1984).
For this defense to be available, it must first be shown that defendant's conduct was necessitated by a specific and imminent threat of injury to his person under circumstances which left him no reasonable and viable alternative other than the violation of the law for which he stands charged. People v. Robertson, 36 Colo. App. 367, 543 P.2d 533 (1975); People v. Handy, 198 Colo. 556 , 603 P.2d 941 (1979); People v. Strock, 623 P.2d 42 ( Colo. 1981 ); Andrews v. People, 800 P.2d 607 ( Colo. 1990 ).
Normal conditions of confinement will not support a defense of choice of evils pursuant to this section. People v. McKnight, 626 P.2d 678 (Colo. 1981).
Defense is available in prison escape situation where the prisoner is motivated by a definite, specific, and imminent threat of death or substantial bodily injury. People v. Strock, 42 Colo. App. 404, 600 P.2d 91 (1979), rev'd on other grounds, 623 P.2d 42 ( Colo. 1981 ).
The choice of evils defense may be available to justify a prison escape if the facts of the case, as a matter of law, satisfy the conditions stated in this section. People v. McKnight, 626 P.2d 678 (Colo. 1981).
But only if escapee immediately reports duress, or choice of evils, which he faced to the proper authorities when a position of safety is reached. People v. Handy, 198 Colo. 556 , 603 P.2d 941 (1979).
Where the charge is escape, the defendant must also show that the escape was committed without violence and that he voluntarily submitted to authorities as soon as a position of safety was reached. People v. McKnight, 626 P.2d 678 (Colo. 1981).
As condition for admitting evidence relating to defense, proper foundation must be laid. As a condition to the admission of evidence relating to the choice of evils defense, a proper foundation must be laid, as indicated by this section. People v. Strock, 623 P.2d 42 (Colo. 1981).
The choice of evils defense may only be invoked when an offer of proof is made that establishes the requisite statutory foundation. Andrews v. People, 800 P.2d 607 ( Colo. 1990 ); People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).
Court may refuse to give choice of evils instruction when defendant fails to comply with procedural requirements of statute and was given reasonable opportunity to comply. People v. Al-Yousif, 206 P.3d 824 (Colo. App. 2006).
Choice of evils is potentially available as a defense to any criminal charge unless it is inconsistent with other enumerated affirmative defenses or other explicit provisions of the law. People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).
Once defense credibly raised, burden of proof shifts to prosecution. Choice of evils is an affirmative defense covered by § 18-1-407 , which provides that once "some credible evidence" is presented to raise a defense, the burden is on the prosecution to disprove the defense beyond a reasonable doubt as to that issue as well as all other elements of the offense. People v. Strock, 42 Colo. App. 404, 600 P.2d 91 (1979), rev'd on other grounds, 623 P.2d 42 ( Colo. 1981 ).
Evidence entitling defendant to choice of evils instruction. Where defense testimony indicated that three men wearing masks and carrying knives attempted to kill the defendant a few nights prior to the escape, that defendant was informed that there was a "contract on his life", and that defendant's cellmates received notes the night of the escape threatening them and the defendant, these facts, if believed by the jury, would show that the defendant was faced with specific and imminent threats mandating a choice of evils instruction. People v. Strock, 42 Colo. App. 404, 600 P.2d 91 (1979), rev'd on other grounds, 623 P.2d 42 ( Colo. 1981 ); People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).
"Morality" and "advisability" of statute are not to be tried to jury. Subsection (2) of this section does nothing but emphasize that "morality" or "advisability" of a statute are not things to be tried to a jury. United States v. Best, 476 F. Supp. 34 (D. Colo. 1979).
Preliminary determination of admissibility to be decided by court rather than by the jury. United States v. Best, 476 F. Supp. 34 (D. Colo. 1979).
And preliminary ruling by court required. It was well within the province of the general assembly to require that a preliminary ruling by the court would serve as a prerequisite in invoking the defense of choice of evils. People v. Strock, 623 P.2d 42 (Colo. 1981).
Defense of choice of evils is very similar to duress and the foundation requirements set forth in the choice of evils statute was intended as a safeguard against abuse of the defense. People v. Strock, 623 P.2d 42 (Colo. 1981).
Before a choice of evils defense may be presented to the jury, the trial court must make an initial determination of whether the allegations of facts by the defendant, if proven, would constitute legal justification for the prohibited conduct. Andrews v. People, 800 P.2d 607 ( Colo. 1990 ); People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).
The threat to defendant's person must be so definite, specific, and imminent as to rise beyond mere speculation. People v. Robertson, 36 Colo. App. 367, 543 P.2d 533 (1975); People v. Handy, 198 Colo. 556 , 603 P.2d 941 (1979).
The felon with a gun statute, § 18-12-108 , must be read in pari materia with this section. People v. Blue, 190 Colo. 95 , 544 P.2d 385 (1975).
Trial court finding that no emergency existed to justify a choice of evils defense did not conflict with a finding of an emergency sufficient to permit a reduced sentence. People v. Weiser, 789 P.2d 454 (Colo. App. 1989).
Test for sufficiency of offer of proof. A sufficient offer of proof must establish that: (1) All other potentially viable and reasonable alternative actions were pursued or shown to be futile; (2) the action taken had a direct causal connection with the harm sought to be prevented and would bring about the abatement of the harm; and (3) the action taken was an emergency measure pursued to avoid a specific, definite, and imminent injury about to occur. Andrews v. People, 800 P.2d 607 (Colo. 1990).
Offer of proof is insufficient if the defendants fail to show that their criminal actions, rather than legal actions taken by themselves and others, brought about the abatement of the harm or if the offer merely alleges that other persons have attempted to pursue reasonable alternatives or that the criminal action taken was a more effective alternative. Andrews v. People, 800 P.2d 607 (Colo. 1990).
Evidence of a generalized fear of future injury is not sufficient to warrant the invocation of a choice of evils defense. The evidence must affirmatively demonstrate the existence of a specific threat or likelihood of an imminent injury necessitating the actor's conduct. People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990); People v. Metcalf, 926 P.2d 133 (Colo. App. 1996).
A choice of evils defense cannot be based upon economic necessity. People v. Fontes, 89 P.3d 484 (Colo. App. 2003).
If a reasonable legal alternative was available to defendants as a means to avoid the threatened injury, they properly may be foreclosed from asserting a choice of evils defense. People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).
A defendant who seeks to assert a choice of evils defense must offer evidence that his conduct did not exceed that reasonably necessary to avoid the impending injury. People v. Brandyberry, 812 P.2d 674 (Colo. App. 1990).
18-1-703. Use of physical force - special relationships.
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The use of physical force upon another person that would otherwise constitute an offense is justifiable and not criminal under any of the following circumstances:
- A parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person, and a teacher or other person entrusted with the care and supervision of a minor, may use reasonable and appropriate physical force upon the minor or incompetent person when and to the extent it is reasonably necessary and appropriate to maintain discipline or promote the welfare of the minor or incompetent person.
- A superintendent or other authorized official of a jail, prison, or correctional institution may, in order to maintain order and discipline, use objectively reasonable and appropriate physical force when and to the extent that he or she reasonably believes it necessary to maintain order and discipline, but he or she may use deadly physical force only when he or she objectively reasonably believes the inmate poses an immediate threat to the person using deadly force or another person.
- A person responsible for the maintenance of order in a common carrier of passengers, or a person acting under his direction, may use reasonable and appropriate physical force when and to the extent that it is necessary to maintain order and discipline, but he may use deadly physical force only when it is reasonably necessary to prevent death or serious bodily injury.
- A person acting under a reasonable belief that another person is about to commit suicide or to inflict serious bodily injury upon himself may use reasonable and appropriate physical force upon that person to the extent that it is reasonably necessary to thwart the result.
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A duly licensed physician, advanced practice nurse, or a person acting under his or her direction, may use reasonable and appropriate physical force for the purpose of administering a recognized form of treatment that he or she reasonably believes to be adapted to promoting the physical or mental health of the patient if:
- The treatment is administered with the consent of the patient, or if the patient is a minor or an incompetent person, with the consent of his parent, guardian, or other person entrusted with his care and supervision; or
- The treatment is administered in an emergency when the physician or advanced practice nurse reasonably believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.
Source: L. 71: R&RE, p. 408, § 1. C.R.S. 1963: § 40-1-803. L. 76: (1)(b) amended, p. 534, § 15, effective April 9. L. 81: (1)(b) to (1)(d) amended, p. 980, § 2, effective May 13. L. 2008: IP(1)(e) and (1)(e)(II) amended, p. 128, § 8, effective January 1, 2009. L. 2020: IP(1) and (1)(b) amended, (SB 20-217), ch. 110, p. 453, § 4, effective September 1.
Cross references: (1) For the justified use of weapons or other aid to enforce obedience at state correctional facilities, see § 17-20-122; for the use of force in preventing escape from a detention facility, see § 18-1-707 (8); for provisions concerning child abuse, see §§ 18-6-401 and 19-3-102 and part 3 of article 3 of title 19; for the use of force in administering medication to persons with mental illness, see § 27-65-111 (5).
(2) For the legislative declaration in SB 20-217, see section 1 of chapter 110, Session Laws of Colorado 2020.
ANNOTATION
Parental privilege is common-law principle codified. The parental privilege set out in subsection (1)(a) and the definition of criminal child abuse in § 18-6-401 codify common-law principles concerning the limits of permissible parental chastisement. People v. Jennings, 641 P.2d 276 (Colo. 1982).
At common law, so long as the chastisement was moderate and reasonable in light of the child's age and condition, the misconduct being punished, the kind of punishment inflicted, the degree of harm done to the child and other relevant circumstances, the parent or custodian would incur neither civil nor criminal liability, even though identical behavior against a stranger would be grounds for an action in tort or prosecution for assault and battery or a similar offense. People v. Jennings, 641 P.2d 276 (Colo. 1982).
Prosecution must establish guilt of child abuse defendant beyond reasonable doubt. Where in a prosecution for child abuse the evidence raises the affirmative defense of justified physical force for disciplinary purposes, the prosecution must establish the guilt of the defendant beyond a reasonable doubt as to that issue as well as all other elements of the offense. People v. Taggart, 621 P.2d 1375 (Colo. 1981).
Acts similar in character admissible to negate claim of justification. Where all the prior acts of child abuse the prosecution sought to introduce into evidence were committed against the same person, each act was occasioned by normal childhood behavior on the part of the victim, each act was similar in severity in that noticeable bruises and marks were left on the child's body, each act took place while the child's mother was absent, and, finally, each act was followed by the defendant's explanation that it was for disciplinary purposes, the acts were sufficiently similar in character to be admissible for purposes of establishing criminal culpability and of negating any claim of accident or justification. People v. Taggart, 621 P.2d 1375 (Colo. 1981).
Where statutory affirmative defense of reasonable and appropriate discipline was not raised by defense, failure to include the phrase "without justifiable excuse" in a jury instruction on crime of child abuse was not error. People v. Lybarger, 700 P.2d 910 (Colo. 1985).
Applied in People v. R.V., 43 Colo. App. 349, 606 P.2d 1311 (1979).
18-1-704. Use of physical force in defense of a person - definitions.
- Except as provided in subsections (2) and (3) of this section, a person is justified in using physical force upon another person in order to defend himself or a third person from what he reasonably believes to be the use or imminent use of unlawful physical force by that other person, and he may use a degree of force which he reasonably believes to be necessary for that purpose.
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Deadly physical force may be used only if a person reasonably believes a lesser degree of force is inadequate and:
- The actor has reasonable ground to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving great bodily injury; or
- The other person is using or reasonably appears about to use physical force against an occupant of a dwelling or business establishment while committing or attempting to commit burglary as defined in sections 18-4-202 to 18-4-204; or
- The other person is committing or reasonably appears about to commit kidnapping as defined in section 18-3-301 or 18-3-302, robbery as defined in section 18-4-301 or 18-4-302, sexual assault as set forth in section 18-3-402, or in section 18-3-403 as it existed prior to July 1, 2000, or assault as defined in sections 18-3-202 and 18-3-203.
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Notwithstanding the provisions of subsection (1) of this section, a person is not justified in using physical force if:
- With intent to cause bodily injury or death to another person, he provokes the use of unlawful physical force by that other person; or
- He or she is the initial aggressor; except that his or her use of physical force upon another person under the circumstances is justifiable if he or she withdraws from the encounter and effectively communicates to the other person his or her intent to do so, but the latter nevertheless continues or threatens the use of unlawful physical force;
- The physical force involved is the product of a combat by agreement not specifically authorized by law; or
- The use of physical force against another is based on the discovery of, knowledge about, or potential disclosure of the victim's actual or perceived gender, gender identity, gender expression, or sexual orientation, including but not limited to under circumstances in which the victim made an unwanted nonforcible romantic or sexual advance toward the defendant. Nothing in this subsection (3)(d) precludes the admission of evidence, which is otherwise admissible, of a victim's or witness's conduct, behavior, or statements.
- In a case in which the defendant is not entitled to a jury instruction regarding self-defense as an affirmative defense, the court shall allow the defendant to present evidence, when relevant, that he or she was acting in self-defense. If the defendant presents evidence of self-defense, the court shall instruct the jury with a self-defense law instruction. The court shall instruct the jury that it may consider the evidence of self-defense in determining whether the defendant acted recklessly, with extreme indifference, or in a criminally negligent manner. However, the self-defense law instruction shall not be an affirmative defense instruction and the prosecuting attorney shall not have the burden of disproving self-defense. This section shall not apply to strict liability crimes.
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As used in this section, unless the context otherwise requires:
- "Gender identity" and "gender expression" have the same meaning as in section 18-1-901 (3)(h.5).
- "Intimate relationship" has the same meaning as in section 18-6-800.3.
- "Sexual orientation" has the same meaning as in section 18-9-121 (5)(b).
Source: L. 71: R&RE, p. 409, § 1. C.R.S. 1963: § 40-1-804. L. 72: p. 274, § 1. L. 75: (2)(c) amended, p. 632, § 4, effective July 1. L. 79: (2)(c) amended, p. 726, § 1, effective July 1. L. 81: (2)(a) and (3)(a) amended, p. 981, § 3, effective May 13. L. 2000: (2)(c) amended, p. 703, § 27, effective July 1. L. 2003: (4) added, p. 795, § 1, effective March 25. L. 2020: (3)(b) and (3)(c) amended and (3)(d) and (5) added, (SB 20-221), ch. 279, p. 1365, § 3, effective July 13.
Cross references: (1) For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see § 13-80-119.
(2) For the legislative declaration in SB 20-221, see section 1 of chapter 279, Session Laws of Colorado 2020.
ANNOTATION
Law reviews. For article, "One Year Review of Criminal Law and Procedure", see 38 Dicta 65 (1961). For comment on Vigil v. People (143 Colo. 328 , 353 P.2d 82 (1960)), see 33 Rocky Mt. L. Rev. 430 (1961). For article, "One Year Review of Criminal Law and Procedure", see 40 Den. L. Ctr. J. 89 (1963). For article, "Homicides Under the Colorado Criminal Code", see 49 Den. L.J. 137 (1972). For note, "True Equality for Battered Women: The Use of Self-Defense in Colorado", see 70 Den. U. L. Rev. 117 (1992). For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995).
Annotator's note. Since § 18-1-704 is similar to former § 40-2-15, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Doctrine of retreat is from common law. There is no statutory provision regarding the duty of a person to retreat before countering the use of force with force. The doctrine derives from the common law. People v. Watson, 671 P.2d 973 (Colo. App. 1983).
The common-law doctrine of retreat to the wall has been modified and is applicable in this jurisdiction only to cases where the defendant voluntarily enters into a fight, or the parties engage in mutual combat, or the defendant, being the assailant, does not endeavor in good faith to decline any further struggle before firing the fatal shot, and possibly to other similar cases. Harris v. People, 32 Colo. 211, 75 P. 427 (1904); Enyart v. People, 67 Colo. 434, 180 P. 722 (1919).
The defendant, if he did not provoke the assault, is not obliged to retreat or flee to save his life, but may stand his ground, and even, in some circumstances, pursue his assailant until the latter has been disarmed or disabled from carrying into effect his unlawful purpose, and this right of the defendant goes even to the extent, if necessary, of taking human life. Boykin v. People, 22 Colo. 496, 45 P. 419 (1896); Enyart v. People, 67 Colo. 434, 180 P. 722 (1919).
The "initial aggressor" is the person who initiated the physical conflict by using or threatening the imminent use of unlawful physical force. Castillo v. People, 2018 CO 62, 421 P.3d 1141.
Trial court erred in giving the initial aggressor instruction because, in viewing the crime as one episode, there was no evidence that suggested the defendant initiated the physical conflict by using unlawful physical force. Castillo v. People, 2018 CO 62, 421 P.3d 1141.
The error was not harmless because the prosecution extensively relied on the initial aggressor exception instruction and thus transformed that instruction into something that substantially influenced the verdict or, at the very least, affected the fairness of the trial proceedings. Castillo v. People, 2018 CO 62, 421 P.3d 1141.
Court was correct in not instructing the jury on the mutual combat limitation. There must be a definite agreement to fight in place for the court to issue the instruction. Kaufman v. People, 202 P.3d 542 (Colo. 2009).
Subsection (2)(a) does not require the innocent victim of an assault to retreat before defending himself or herself. People v. Willner, 879 P.2d 19 (Colo. 1994).
The right of self-defense is a natural right and is based on the natural law of self-preservation. Vigil v. People, 143 Colo. 328 , 353 P.2d 82 (1960).
Self-defense is available as an affirmative defense for crimes against property. An individual may take only those actions that are reasonably necessary to defend himself or herself, whether the individual's actions are upon the other person directly or indirectly, and which in turn cause property damage, including actions designed to have an impact on that other person, change his or her conduct, or trigger a reaction. People v. Coahran, 2019 COA 6 , 436 P.3d 617.
Right to kill in self-defense is not limited to cases where assailant intends to commit a felony. Ritchey v. People, 23 Colo. 314, 47 P. 272 (1896).
The affirmative defense of self-defense requires that "a reasonable person would have believed and acted as the defendant did", and, in this context, a "reasonable person" means an objectively reasonable individual. People v. Castillo, 2014 COA 140 M, __ P.3d __, rev'd on other grounds, 2018 CO 62, 421 P.3d 1141.
Defendant was entitled to a jury instruction specifying that the defendant was justified in using deadly physical force if she reasonably perceived that the aggressor appeared about to commit a sexual assault upon her and a degree of force less than deadly physical force was inadequate. This section does not limit the actor's right to use deadly force to those situations in which the aggressor is committing or is about to commit sexual assault on someone other than the actor. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff'd, 28 P.3d 340 ( Colo. 2001 ).
Right to kill in defense of another. Where a known felony is attempted upon a person, the party assaulted may repel force by force, and any other person present may interpose for preventing mischief, and if death ensues the party so interposing will be justified. The right thus to assist applies with peculiar force where a relationship exists, such as father, son, brother, or husband. Bush v. People, 10 Colo. 566, 16 P. 290 (1887).
Prosecution must prove beyond a reasonable doubt an exception to self-defense for the jury to reject a defendant's claim of self-defense on that basis. People v. Castillo, 2014 COA 140 M, __ P.3d __, rev'd on other grounds, 2018 CO 62, 421 P.3d 1141.
Jurors must unanimously agree on how the prosecution disproved affirmative defense of self-defense. The trial court abused its discretion in permitting the prosecution to prove felony menacing without instructing the jury that it must unanimously agree on which exception to self-defense it relied. People v. Mosely, 2019 COA 143 , __ P.3d __.
A party who seeks a difficulty cannot avail himself of the doctrine of self-defense. Bush v. People, 10 Colo. 566, 16 P. 290 (1887).
The one invoking the right of self-defense cannot be the aggressor or assailant. Vigil v. People, 143 Colo. 328 , 353 P.2d 82 (1960).
Right of self-defense is not lost if danger develops from mild argument. The mere fact that one has interjected himself into a crowd or into a mild situation, does not deprive him of the right of self-defense if the situation beginning with only an argument, develops to a point where he is being subjected to or threatened with such physical violence that he might have to resort to justifiable homicide to protect his person. Vigil v. People, 143 Colo. 328 , 353 P.2d 82 (1960).
In order to justify theory of self-defense where the defendant used deadly force, he must have reasonably believed that a lesser degree of force was inadequate and that he or another person was in imminent danger of being killed or of receiving great bodily harm (now great bodily injury). People v. Ferrell, 200 Colo. 128 , 613 P.2d 324 (1980).
Apparent necessity may justify application of doctrine of self-defense. The doctrine applies whether the danger is actual or only apparent; actual danger is not necessary in order to justify one in acting in self-defense. Apparent necessity, if well grounded and of such a character as to appeal to a reasonable person, under like conditions and circumstances, as being sufficient to require action, justifies the application of the doctrine of self-defense to the same extent as actual or real necessity. Young v. People, 47 Colo. 352, 107 P. 274 (1910).
Person assailed may act on appearances. When a person has reasonable grounds for believing, and does in fact actually believe, that danger of his being killed or of receiving great bodily harm is imminent, he may act on such appearances and defend himself, even to the extent of taking human life when necessary, although it may turn out that the appearances were false, or although he may have been mistaken as to the extent of the real or actual danger. Young v. People, 47 Colo. 352 , 107 P. 274 (1910); People v. La Voie, 155 Colo. 551 , 395 P.2d 1001 (1964).
One is entitled to act on appearances in using a deadly weapon to defend himself, but the appearances must be such as, taking into consideration the circumstances at the particular instant, would have caused a reasonable and prudent man to use such weapon for his protection. Henwood v. People, 57 Colo. 544, 143 P. 373, 1916A Ann. Cas. 1111 (1914).
Person coming to the aid of a third party is entitled to assert defense of others even if the third party is not entitled to assert self-defense. Person must only have a reasonable belief that intervention is necessary to protect the third party whom he or she believed was under attack. People v. Silva, 987 P.2d 909 (Colo. App. 1999).
Character of threat or provocation must be shown. To support the defense of self-defense, it must be shown that the provocation or threat occurred immediately prior to the homicide, and must be of such a character as to place the accused in sudden fear of his life or in fear of great bodily injury. English v. People, 178 Colo. 325 , 497 P.2d 691 (1972).
Belief that lesser degree of force is inadequate must be reasonable, and a reckless perception that defendant needed to use the force he did was inconsistent with a reasonable perception, thus, court did not err in ruling that a self-defense instruction was unavailable. People v. Ellis, 30 P.3d 774 (Colo. App. 2001).
In construing subsection (3)(b), according words their plain and ordinary meaning, it is apparent that "initial" means first. People v. Beasley, 778 P.2d 304 (Colo. App. 1989).
When an initial aggressor withdraws from an encounter and effectively communicates his withdrawal to the initial victim, the aggressor becomes a victim entitled to act in self-defense should the initial victim retaliate for the attack. Thus, if the initial victim continues the attack, the victim then becomes the aggressor and is no longer entitled to act in self-defense. People v. Goedecke, 730 P.2d 900 (Colo. App. 1986).
When a trial court is presented with some evidence that a defendant used force in self-defense, and some evidence that the defendant is the initial aggressor, the court should instruct the jury on both self-defense and the initial aggressor exception. People v. Newell, 2017 COA 27 , 395 P.3d 1203.
It is then the prosecution's burden to prove beyond a reasonable doubt that defendant's conduct was not authorized as self-defense; the prosecution may meet that burden by proving that the defendant was the initial aggressor. People v. Newell, 2017 COA 27 , 395 P.3d 1203.
A self-defense instruction should be given when there is any evidence -- including circumstantial evidence -- that a defendant acted in self-defense. The defendant need not provide direct evidence that he was not the initial aggressor. Instead, the language of the initial aggressor exception should be given in the self-defense instruction when the prosecution points to some evidence that the defendant was the initial aggressor. The jury can then decide if the prosecution met its burden of proof. People v. Newell, 2017 COA 27 , 395 P.3d 1203.
In determining whether "initial aggressor" jury instruction is appropriate in case in which hostilities commence among a group of individuals and escalate to a conclusion without interruption, the conduct of the defendant in the context of the developing situation must be the focus of any analysis of defendant's right to self-defense. People v. Beasley, 778 P.2d 304 (Colo. App. 1989).
Not error for trial court to instruct jury on the initial aggressor exception to self-defense once the court determined to give the self-defense instruction requested by the defendant. People v. Montoya, 928 P.2d 781 (Colo. App. 1996); People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003).
Court may give an initial aggressor instruction if there is an inference that defendant initiated the physical conflict by using or threatening the imminent use of unlawful force. Although defendant's initial confrontation was insufficient to make defendant an initial aggressor, returning to the argument with a gun was sufficient. People v. Griffin, 224 P.3d 292 (Colo. App. 2009).
Court did not err in failing to define initial aggressor. Although the court may define the term, there is no basis for error in not defining it when it is unlikely the jury would have relied on the wrong event to apply the initial aggressor doctrine. People v. Griffin, 224 P.3d 292 (Colo. App. 2009).
When evidence is sufficient to raise a question of fact concerning defendant's right to come to the defense of another person who might have been the initial aggressor, it would be proper for the court to instruct the jury concerning the limitation on an initial aggressor's right to assert self-defense, and the right of defendant to act upon a reasonable belief under the circumstances. People v. Silva, 987 P.2d 909 (Colo. App. 1999).
If a participant determines to withdraw from combat and he effectively communicates that intent to his opponent or opponents, then the requisite intent to commit the crime charged has been abandoned. Under these circumstances, the right of self-defense must be reinstated because there is no requirement in Colorado that one "retreat to the wall" before defending himself. People v. Beasley, 778 P.2d 304 (Colo. App. 1989).
Even if a person is a trespasser, the person does not have to "retreat to the wall" before using deadly force to defend himself, unless the person was the initial aggressor. People v. Toler, 981 P.2d 1096 (Colo. App. 1998), aff'd, 9 P.3d 341 ( Colo. 2000 ).
The pattern jury instruction, COLJI-Crim No. 7:68-7 (15) (1983), improperly suggests that a person who is not an initial aggressor may not use physical force to defend himself if the person is not "where he had a right to be". People v. Toler, 981 P.2d 1096 (Colo. App. 1998), aff'd, 9 P.3d 341 ( Colo. 2000 ).
But a trespasser who is subjected to lawful physical force by a property owner has no privilege under this section to use physical force in self-defense because the privilege applies only when the defendant faces unlawful force. Whether a defendant faces unlawful force will depend on whether the defendant entered the property unlawfully. In such a case, it is the better practice for the trial court to give an instruction to the jury indicating that, in determining whether a defendant unlawfully entered a dwelling and whether the defendant reasonably believed that unlawful force was used or imminent, the "make-my-day" provision in § 18-1-704.5 should be considered. People v. Hayward, 55 P.3d 803 (Colo. App. 2002).
Defendant entitled to raise "transferred intent self-defense" as affirmative defense. Therefore, the trial court erred in rejecting self-defense jury instructions. People v. Koper, 2018 COA 137 , __ P.3d __.
Question for jury. Evidence held to clearly justify the submission to the jury of the question as to whether or not the deceased was a person who manifestly intended and endeavored in a violent, riotous, or tumultuous manner to enter the habitation of the defendant for the purpose of assaulting or offering personal violence to any person dwelling or being therein. Bailey v. People, 54 Colo. 337, 130 P. 832 (1913).
Use of word "enormous" instead of "great" in instruction is improper. In an instruction defining the bodily harm to prevent which one may justifiably kill his assailant, the use of the word "enormous" instead of "great" is improper. Ritchey v. People, 23 Colo. 314, 47 P. 272 (1896).
Instruction on use of deadly physical force is to be used only if the victim died. Because no victim died, instruction that defendant was justified in use of physical force if he used that degree of force which he reasonably believed to be necessary was proper. People v. Silva, 987 P.2d 909 (Colo. App. 1999).
Defendant entitled to instruction on lesser offense of manslaughter. Where during the trial for first degree murder defendant presented a plausible case for self-defense, which even if the jury deemed it to be an overreaction, nevertheless would negate the elements of murder, the trial court should have instructed the jury on the lesser offense of manslaughter, as defendant requested. People v. Miller, 187 Colo. 239 , 529 P.2d 648 (1974).
Defendant entitled to have jury instructed on self-defense. A person charged with homicide and defending upon the ground of self-defense is entitled, upon request, to have the jury instructed, when there is conflicting testimony upon the evidence of apparent danger and apparent necessity to kill, as well as upon real danger and actual necessity, and in every aspect of the testimony. To refuse the instruction is a determination by the court of matter of fact, and deprives the accused of his constitutional right to a trial by jury. Young v. People, 47 Colo. 352, 107 P. 274 (1910).
A defendant is entitled to a self-defense instruction if there is any evidence in the record to support the theory that he acted in self-defense. People v. Dillon, 631 P.2d 1153 (Colo. App. 1981), rev'd on other grounds, 655 P.2d 841 ( Colo. 1982 ); People v. Smith, 682 P.2d 493 (Colo. App. 1983).
Trial court's rejection of defendant's jury instructions on self-defense as an affirmative defense is not harmless error where the jury instructions that were used did not require the prosecution to disprove self-defense beyond a reasonable doubt. People v. Koper, 2018 COA 137 , __ P.3d __.
When there is at least a scintilla of evidence in support of a self-defense instruction, the court must give a self-defense instruction even if the defendant's claim of accidental shooting is somewhat inconsistent with the claim of self-defense. There was sufficient evidence to require the self-defense instruction, and failure to give the instruction is reversible error. People v. Wakefield, 2018 COA 37 , 428 P.3d 639.
There is an intent element in the consideration of "deadly" physical force. Since defendant's testimony created a dispute about whether he intended to produce death by use of force, the defendant is entitled to self-defense instructions related to both ordinary physical force and deadly physical force. People v. Vasquez, 148 P.3d 326 (Colo. App. 2006).
Defendant not entitled to jury instruction on self-defense where defendant did not admit to having engaged in the conduct that led to the charge and then offer self-defense as justification for his action. Also, defendant produced no evidence that he reasonably believed that unlawful force was about to be or was being used against him. People v. Whatley, 10 P.3d 668 (Colo. App. 2000).
The prosecution bears no burden in disproving self-defense when self-defense is not an affirmative defense. Self-defense is not an affirmative defense if the crime's mental state is recklessness, criminal negligence, or extreme indifference; rather, it is an element-negating traverse. The court did not err in instructing the jury that the prosecution did not bear the burden of disproving self-defense in relation to the reckless manslaughter charge. People v. Pickering, 276 P.3d 553 ( Colo. 2011 ) (overruling People v. Lara, 224 P.3d 388 (Colo. App. 2009) and People v. Taylor, 230 P.3d 1227 (Colo. App. 2009)).
Defense of others is an element-changing defense against extreme indifference murder, rather than a mere circumstance for the jury to consider, and must be portrayed as such in instructions to the jury. People v. Lara, 224 P.3d 388 (Colo. App. 2009), overruled on other grounds in People v. Pickering, 276 P.3d 553 ( Colo. 2011 ).
Prosecution must disprove that defendant acted in reasonable defense of a person in order to prove the elements of extreme indifference murder when that defense is asserted with credible evidence at trial. People v. Lara, 224 P.3d 388 (Colo. App. 2009), overruled in People v. Pickering, 276 P.3d 553 ( Colo. 2011 ).
Court violated defendant's due process right by instructing jurors that prosecution "shall not have the burden of disproving self-defense", when defense of others is asserted with credible evidence at trial. People v. Lara, 224 P.3d 388 (Colo. App. 2009), overruled in People v. Pickering, 276 P.3d 553 ( Colo. 2011 ).
Self-defense instruction is not necessary in every case where force or the threat of force is used, but only where there is evidence in the record to support it. People v. Dillon, 655 P.2d 841 ( Colo. 1982 ); People v. Janes, 962 P.2d 315 (Colo. App. 1998).
The trial court properly refused to instruct the theory of self-defense because there was no evidence that the defendant reasonably believed that unlawful physical force was imminent against him. People v. Laurson, 15 P.3d 791 (Colo. App. 2000).
Even though the general assembly has defined self-defense in this section, it is not improper for the courts to instruct further upon the issue of self-defense. People v. Berry, 703 P.2d 613 (Colo. App. 1985).
The court's instruction for physical self-defense was sufficient. Generally, a jury instruction that tracks the statutory language is considered to be sufficient. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).
Self-defense instruction required for case involving unreasonable or excessive force during an arrest. Self-defense instruction is required when evidence has been presented that officers displayed weapons and were commanded to discharge them in course of effecting arrest and that their conduct was unreasonable or excessive under the circumstances. People v. Fuller, 781 P.2d 647 (Colo. 1989).
Defendant asserting self-defense, who was not initial aggressor, was entitled to jury instruction regarding no duty to retreat so as to dispel inference that lesser force would have been adequate. Idrogo v. People, 818 P.2d 752 ( Colo. 1991 ); Cassels v. People, 92 P.3d 951 ( Colo. 2004 ).
Defendant was entitled to a jury instruction on the doctrine of no retreat where, on cross examination, the prosecution elicited evidence that defendant had other choices besides killing her husband, implying that she could have retreated rather than kill him. Also, in closing, the prosecution argued that defendant had many choices besides using force upon her husband, including withdrawal from the situation. People v. Garcia, 1 P.3d 214 (Colo. App. 1999), aff'd, 28 P.3d 340 ( Colo. 2001 ).
Self-defense is available as an affirmative defense against charge of heat of passion manslaughter. The general assembly has recognized a reasonable person, suddenly and unexpectedly confronted with potentially deadly or gravely injurious conduct does not act unreasonably by instinctively and passionately striking out at the source of such provoking conduct. Sanchez v. People, 820 P.2d 1103 (Colo. 1991).
Instructions on self-defense held proper. Hinton v. People, 169 Colo. 545 , 458 P.2d 611 (1969); People v. Willner, 879 P.2d 19 ( Colo. 1994 ).
In a case where some of the evidence indicated that defendant killed in self-defense to protect his person, an instruction to the effect that a defendant may safely act upon appearances to avoid apprehended danger even though it develops later that the appearances were false and that there was in effect no danger to do him serious injury is appropriate. People v. Tapia, 183 Colo. 141 , 515 P.2d 453 (1973).
Instruction held denial of right of self-defense. An instruction to the effect that in order for the doctrine of self-defense to apply, the jury must believe that deceased intended to assault or kill the inmates of the house is error as a denial of the right of self-defense as defined in this section. Bailey v. People, 54 Colo. 337, 130 P. 832 (1913).
Instruction held denial of right to present a defense. When no evidence was presented at trial that defendant intended to provoke a fight with the victims or their friend for the purpose of inflicting injury upon them under a guise of provocation, an instruction on the issue of provoking the victim as an exception to self-defense violated the defendant's right to present a defense. People v. Silva, 987 P.2d 909 (Colo. App. 1999).
Instruction on self-defense held deficient because it only stated that self-defense is an affirmative defense to the crime of manslaughter if the defendant had reasonable grounds to believe, and did believe, that he or another person was in imminent danger or being killed or receiving great bodily injury; the instruction failed to inform the jury that self-defense is an affirmative defense if the deceased had been committing or reasonably appeared about to commit first or second degree assault. People v. Janes, 982 P.2d 300 (Colo. 1999).
An instruction that defendant must retreat to the wall is erroneous. Where the jury is instructed that the defendant in every case must retreat to the wall before he is entitled to resort to self-defense, the error is manifest. Ritchey v. People, 23 Colo. 314, 47 P. 272 (1896); Enyart v. People, 67 Colo. 434, 180 P. 722 (1919).
Instruction on combat by agreement held deficient because it provided no guidelines as to elements which must be proved by prosecution. People v. Cuevas, 740 P.2d 25 (Colo. App. 1987).
Self-defense may be asserted as a defense to attempted heat of passion manslaughter. Thomas v. People, 820 P.2d 656 (Colo. 1991).
Defendant charged with heat of passion manslaughter may assert a claim of self-defense. Evidence of low IQ and physical and sexual abuse of the defendant in the past is admissible to prove the claim of self defense. People v. Young, 825 P.2d 1004 (Colo. App. 1991).
Self-defense is an available defense against a charge of obstructing a peace officer when a defendant reasonably believes that unreasonable or excessive force is being used by the peace officer. People v. Barrus, 232 P.3d 264 (Colo. App. 2009).
As is instruction that slayer must have had no other probable means of escape. It was error to charge the jury to the effect that to justify homicide on the plea of self-defense it must appear that the slayer had no other possible, or at least probable, means of escaping. Babcock v. People, 13 Colo. 515, 22 P. 817 (1889); Enyart v. People, 67 Colo. 434, 180 P. 722 (1919).
When the "make-my-day" statute (§ 18-1-704.5) is being used as an affirmative defense, it is error for a jury instruction to place the burden on the defendant to prove the affirmative defense. People v. Janes, 962 P.2d 315 (Colo. App. 1998).
Assertion of error for failure to give instruction not well taken. Where the record discloses that the defendant did not tender nor request the giving of an instruction on self-defense, nor did he assign the court's failure to give the instruction as a ground for new trial, nor was there evidence to support the giving of such an instruction, for all these reasons the assertion of error for failure to give such instruction is not well taken. People v. Lankford, 185 Colo. 445 , 524 P.2d 1382 (1974).
Instruction on provocation of the victim given over defense objection held reversible error because the court failed to determine which issues were raised by the evidence prior to giving the instruction; accordingly, the error was not harmless because the giving of the instruction created a situation that could have been misleading and confusing to the jury. People v. Silva, 987 P.2d 909 (Colo. App. 1999).
Limitation of right to emergencies is erroneous. In a prosecution for murder an instruction on self-defense which advised the jury that the right of self-defense is based upon the law of necessity, and is only given in emergencies to persons who are attacked, was erroneous. Vigil v. People, 143 Colo. 328 , 353 P.2d 82 (1960).
Limitation of right of self-defense to persons who do not bring on the difficulty themselves is too broad a statement. Vigil v. People, 143 Colo. 328 , 353 P.2d 82 (1960).
Defendant is entitled to present evidence of prior violent act of victim if: (1) The defendant contends that he acted in self-defense and there is competent evidence to support the contention; (2) either the act occurred or the defendant became aware of its occurrence within a reasonable time of the homicide; and (3) the defendant knew of the victim's prior violence at the time of the homicide. People v. Ferrell, 200 Colo. 128 , 613 P.2d 324 (1980).
Spouse justified in aiding victimized spouse. A wife is clearly justified in attempting to aid her husband when he is the victim of an assault, and the husband's assailant who, as a result, then assaults the wife cannot claim that his actions were justified on the basis of self-defense. People v. Schliesser, 671 P.2d 993 (Colo. App. 1983).
Self-defense instruction is not appropriate where defendant presents evidence of "battered woman syndrome" but is on trial for contract-for-hire murder of her husband. People v. Yaklich, 833 P.2d 758 (Colo. App. 1991).
Self-defense instruction based on battered woman syndrome is not available in murder for-hire cases, regardless of the definition of "imminent" under this section. A defendant is entitled to an instruction embodying the defendant's theory of the case only if there is evidence to support the theory. In case where a wife hired her husband's killers, the wife's evidence that she suffered from battered woman syndrome was insufficient as a matter of law to support her theory that she was in imminent danger at the time her husband was killed. The trial court, therefore, erred in allowing a self-defense instruction. People v. Yaklich, 833 P.2d 758 (Colo. App. 1992).
Lay witness may offer opinion testimony on intent of victim if witness had sufficient opportunity to observe the person and draw a rational conclusion about the person's state of mind. People v. Jones, 907 P.2d 667 (Colo. App. 1995).
Whether use of knife in defense is excessive force is a jury question. People v. Smith, 682 P.2d 493 (Colo. App. 1983).
No error in refusing to instruct the jury regarding felony menacing where the record was devoid of any evidence or indication that the defendant could have held a reasonable belief that the man he threatened with a knife was engaged in the imminent use of unlawful physical force against defendant's brother. People v. Williams, 827 P.2d 612 (Colo. App. 1992).
Unless a defendant demonstrates the required level of prejudice under a harmless error or plain error standard, giving an unsupported instruction on a self-defense exception does not necessarily warrant reversal. People v. Castillo, 2014 COA 140 M, __ P.3d __, rev'd on other grounds, 2018 CO 62, 421 P.3d 1141.
Trial court committed plain error requiring reversal of conviction in not giving self-defense law instruction to jury on the charge of reckless manslaughter. Court informed jury only that it could consider self-defense with respect to count of reckless manslaughter without describing the law of self-defense. People v. McClelland, 2015 COA 1 , 350 P.3d 976.
Applied in Hardy v. People, 133 Colo. 201 , 292 P.2d 973 (1956); Maes v. People, 166 Colo. 15 , 441 P.2d 1 (1968); People v. Thompson, 197 Colo. 299 , 592 P.2d 803 (1979); People v. Jones, 675 P.2d 9 ( Colo. 1984 ); People v. Reed, 695 P.2d 806 (Colo. App. 1984), cert. denied, 701 P.2d 603 ( Colo. 1985 ).
18-1-704.5. Use of deadly physical force against an intruder.
- The general assembly hereby recognizes that the citizens of Colorado have a right to expect absolute safety within their own homes.
- Notwithstanding the provisions of section 18-1-704, any occupant of a dwelling is justified in using any degree of physical force, including deadly physical force, against another person when that other person has made an unlawful entry into the dwelling, and when the occupant has a reasonable belief that such other person has committed a crime in the dwelling in addition to the uninvited entry, or is committing or intends to commit a crime against a person or property in addition to the uninvited entry, and when the occupant reasonably believes that such other person might use any physical force, no matter how slight, against any occupant.
- Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from criminal prosecution for the use of such force.
- Any occupant of a dwelling using physical force, including deadly physical force, in accordance with the provisions of subsection (2) of this section shall be immune from any civil liability for injuries or death resulting from the use of such force.
- As used in this section, unless the context otherwise requires, "dwelling" does not include any place of habitation in a detention facility, as defined in section 18-8-211 (4).
Source: L. 85: Entire section added, p. 662, § 1, effective June 6. L. 2016: (5) added, (HB 16-1190), ch. 87, p. 245, § 1, effective August 10.
Cross references: For limitations on civil suits against persons using physical force in defense of a person or to prevent the commission of a felony, see § 13-80-119.
ANNOTATION
Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995). For article, "POWPO and Gun Rights After Carbajal", see 44 Colo. Law. 31 (Sept. 2015).
Prerequisite for immunity under this section is an unlawful entry into the dwelling, meaning a knowing, criminal entry. People v. McNeese, 892 P.2d 304 ( Colo. 1995 ); People v. Jones, 2018 COA 112 , 434 P.3d 760.
To be immune from prosecution under this section a defendant must establish by a preponderance of the evidence that he or she had a reasonable belief that the intruder was committing or intended to commit a crime against a person or property in addition to the uninvited entry. This inquiry focuses on the reasonable belief of the occupant, not on the actual conduct of the intruder. People v. McNeese, 892 P.2d 304 (Colo. 1995).
Sufficient evidence existed to support trial court's denial of defendant's pre-trial motion to dismiss on the basis defendant had not met his burden as established by the supreme court. People v. Janes, 962 P.2d 315 (Colo. App. 1998).
Trial court is authorized to dismiss criminal prosecution at pretrial stage when conditions of statute are satisfied, and this does not infringe upon prosecution's discretion to file charges. People v. Guenther, 740 P.2d 971 ( Colo. 1987 ); Young v. District Court, 740 P.2d 982 ( Colo. 1987 ).
Defendant bears burden of establishing right to immunity by preponderance of evidence when issue of immunity is raised at pre-trial stage. People v. Guenther, 740 P.2d 971 ( Colo. 1987 ); People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Fact that a homicide victim was on the defendant's porch does not permit the defendant to claim immunity from prosecution for unlawful entry to defendant's dwelling unless the court finds that defendant believed that the victim intended to commit a crime or use physical force against the defendant. People v. Young, 825 P.2d 1004 (Colo. App. 1991).
Defendant may still raise immunity as defense at trial when pretrial motion to dismiss is denied. People v. Guenther, 740 P.2d 971 (Colo. 1987).
For purposes of this section, the common areas of an apartment building do not constitute a dwelling. People v. Cushinberry, 855 P.2d 18 (Colo. App. 1993).
Inmate's cell constitutes a "dwelling" for the purposes of "make-my-day" immunity. It does not matter that incarcerated felons have lost many of the rights and privileges available to other state citizens because the statute does not limit the use of the immunity provisions to "citizens of Colorado within their own homes". People v. Alaniz, 2016 COA 101 , 409 P.3d 501.
For purposes of make-my-day immunity provisions, the definition set forth in § 18-1-901 (3)(g) applies, and includes an inmate's cell because it is his or her place of habitation. People v. Alaniz, 2016 COA 101 , 409 P.3d 501.
Where pretrial motion to dismiss on grounds of statutory immunity provided in this section is denied, defendant may raise it as an affirmative defense at trial. In such case, the burden of proof which is generally applicable to affirmative defenses would apply. People v. Malczewski, 744 P.2d 62 (Colo. 1987).
Section does not authorize an appeal from a pretrial order denying immunity. An order denying defendant's pretrial motion to dismiss under this section is not a final judgment and therefore not subject to appeal. In general, the jury's verdict subsumes the trial court's pretrial ruling. A defendant may, however, seek review prior to trial under C.A.R. 21. Wood v. People, 255 P.3d 1136 (Colo. 2011).
Because this section creates an immunity defense as well as an affirmative defense, and because the burden of proof for each defense is different, when raised at trial, this section poses special problems when instructing a jury. In such a case, instruction based on language from People v. McNeese, which dealt with pretrial immunity, must be put into context so as not to confuse or mislead the jury about the burden of proof with respect to an affirmative defense raised at trial. People v. Janes, 982 P.2d 300 (Colo. 1999).
Defendant did not establish by a preponderance of the evidence that he was entitled to immunity under this section where he could not show the struggle and wounding of the victim took place in defendant's bedroom of the house he shared with the victim. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
Trial court did not commit reversible error by refusing to instruct the jury that it need only determine whether the victim made an unlawful entry into a part of a dwelling that was occupied by defendant, as defendant failed to show that the bedroom was exclusively his province and that the victim's entry into the bedroom was unlawful. People v. Eckert, 919 P.2d 962 (Colo. App. 1996).
An instruction clarifying the meaning of "unlawful entry" is necessary when the evidence supports a theory that the defendant accidentally entered the dwelling or otherwise entered without the requisite mental state. People v. Jones, 2018 COA 112 , 434 P.3d 760.
Trial court erred in failing to instruct the jury that this section requires a "knowingly" unlawful entry into the home. Because the jury could have found defendant's entry to be mistaken or accidental, it could have further determined that the homeowners did not have the exclusive right to use force during the encounter. People v. Jones, 2018 COA 112 , 434 P.3d 760.
Instruction requiring jury to find that defendant had a reasonable belief that victim "had committed" a crime and omitting "was committing or intended to commit" a crime was erroneous but did not constitute plain error. There was no evidence that the victim's entry into defendant's house was unlawful and, therefore, no basis on which a reasonable jury could have otherwise acquitted defendant under this section. People v. Phillips, 91 P.3d 476 (Colo. App. 2004).
Jury instructions in error. Jury instruction that states that entry into a dwelling "must have been made in knowing violation of the law" could mislead the jury and thus is in error. Language is misleading in that it could be taken to mean that an intruder must know his or her conduct violates a criminal statute rather than that the intruder must not have a reasonable belief that his or her entry is licensed, invited, or otherwise privileged. People v. Zukowski, 260 P.3d 339 (Colo. App. 2010).
Jury instruction that states "[a]n entry made in the good faith belief that it is lawful, is not an entry made in knowing violation of the criminal law" allows an interpretation that the entry would not be unlawful under the make-my-day statute, and, thus, the instruction is also in error. An intruder may act under a mistaken belief of fact that he or she was lawfully on the premises and that this type of entry would not be unlawful under the make-my-day statute. A mistaken belief that an entry, although uninvited, is lawful does not make it lawful. People v. Zukowski, 260 P.3d 339 (Colo. App. 2010).
Trial court erred in interpreting subsection (2) as including the concept of "remain lawfully" within the statutory phrase "unlawful entry". Defendant failed to establish the legal elements of this section to bar prosecution where the victim was initially invited into defendant's residence and, after arguing, was later asked to leave. People v. Drennon, 860 P.2d 589 (Colo. App. 1993).
The reference to "uninvited entry" in subsection (2) refers back to the term "unlawful entry" used in the same subsection. People v. McNeese, 892 P.2d 304 (Colo. 1995).
Victim's entry was unlawful and uninvited for the purposes of statute providing immunity for use of force where wife of murder victim did not have authority to invite the decedent into defendant's apartment and was staying with the defendant on the condition that she not invite the victim into defendant's apartment. People v. McNeese, 865 P.2d 881 (Colo. App. 1993).
When this section is being used as an affirmative defense, it is error for a jury instruction to place the burden on the defendant to prove the affirmative defense. People v. Janes, 962 P.2d 315 (Colo. App. 1998).
Applied in People v. Arellano, 743 P.2d 431 (Colo. 1987).
18-1-705. Use of physical force in defense of premises.
A person in possession or control of any building, realty, or other premises, or a person who is licensed or privileged to be thereon, is justified in using reasonable and appropriate physical force upon another person when and to the extent that it is reasonably necessary to prevent or terminate what he reasonably believes to be the commission or attempted commission of an unlawful trespass by the other person in or upon the building, realty, or premises. However, he may use deadly force only in defense of himself or another as described in section 18-1-704, or when he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the trespasser to commit first degree arson.
Source: L. 71: R&RE, p. 409, § 1. C.R.S. 1963: § 40-1-805.
Cross references: For first degree arson, see § 18-4-102.
ANNOTATION
Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995). For article, "POWPO and Gun Rights After Carbajal", see 44 Colo. Law. 31 (Sept. 2015).
Common-law doctrine of retreat not applicable. Where the jury was told that though the defendant was in his place of business, and was in no way the aggressor, a deadly and unprovoked assault was made upon him by one armed with a loaded pistol, he was under duty to flee unless it was more dangerous to retreat than to fight, it was held a pernicious application of the common-law doctrine of retreat to the wall long since abrogated in this jurisdiction. Enyart v. People, 67 Colo. 434, 180 P. 722 (1919) (decided under R.S. 08, § 1634).
One cannot instantly kill in defense of property. While a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot instantly carry his defense to the extent of killing the aggressor. If no other way is open, he must yield and get himself righted by resort to the law. Bush v. People, 10 Colo. 566, 16 P. 290 (1887) (decided under G. S. § 721).
This section is not, by its terms, inapplicable to unlawful entries where the trespassers happen to be police officers. People v. Lutz, 762 P.2d 715 (Colo. App. 1988).
18-1-706. Use of physical force in defense of property.
A person is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be an attempt by the other person to commit theft, criminal mischief, or criminal tampering involving property, but he may use deadly physical force under these circumstances only in defense of himself or another as described in section 18-1-704.
Source: L. 71: R&RE, p. 409, § 1. C.R.S. 1963: § 40-1-806.
Cross references: For theft, see part 4 of article 4 of this title 18; for criminal mischief, see § 18-4-501; for criminal tampering, see §§ 18-4-505 and 18-4-506.
ANNOTATION
Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995). For article, "POWPO and Gun Rights After Carbajal", see 44 Colo. Law. 31 (Sept. 2015).
One cannot instantly kill in defense of property. While a man may use all reasonable and necessary force to defend his real and personal estate, of which he is in the actual possession, against another who comes to dispossess him without right, he cannot instantly carry his defense to the extent of killing the aggressor. If no other way is open, he must yield and get himself righted by resort to the law. Bush v. People, 10 Colo. 566, 16 P. 290 (1887) (decided under G. S. § 721).
When instruction on defense appropriate. A defendant is entitled to a jury instruction on an affirmative defense only if evidence in the record supports it. Here record does not support entitlement to instruction. People v. Goedecke, 730 P.2d 900 (Colo. App. 1986).
18-1-706.5. Justification and exemption from liability when rendering emergency assistance to an at-risk person or animal in a locked vehicle.
A person is justified and exempt from criminal liability for criminal mischief, criminal trespass, or criminal tampering involving property if such action occurred when he or she rendered emergency assistance to an at-risk person or animal in a locked vehicle, provided the person rendering assistance acted in accordance with the provisions of section 13-21-108.4.
Source: L. 2017: Entire section added, (HB 17-1179), ch. 127, p. 436, § 2, effective August 9.
18-1-707. Use of force by peace officers - definitions - repeal.
- Peace officers, in carrying out their duties, shall apply nonviolent means, when possible, before resorting to the use of physical force. A peace officer may use physical force only if nonviolent means would be ineffective in effecting an arrest, preventing an escape, or preventing an imminent threat of serious bodily injury or death to the peace officer or another person.
-
When physical force is used, a peace officer shall:
- Not use deadly physical force to apprehend a person who is suspected of only a minor or nonviolent offense;
- Use only a degree of force consistent with the minimization of injury to others;
- Ensure that assistance and medical aid are rendered to any injured or affected persons as soon as practicable; and
- Ensure that any identified relatives or next of kin of persons who have sustained serious bodily injury or death are notified as soon as practicable.
- (2.5) (a) A peace officer is prohibited from using a chokehold upon another person.
-
- As used in this subsection (2.5), "chokehold" means a method by which a person applies sufficient pressure to a person to make breathing difficult or impossible and includes but is not limited to any pressure to the neck, throat, or windpipe that may prevent or hinder breathing or reduce intake of air.
- "Chokehold" also means applying pressure to a person's neck on either side of the windpipe, but not to the windpipe itself, to stop the flow of blood to the brain via the carotid arteries.
-
A peace officer is justified in using deadly physical force to make an arrest only when all other means of apprehension are unreasonable given the circumstances and:
- The arrest is for a felony involving conduct including the use or threatened use of deadly physical force;
- The suspect poses an immediate threat to the peace officer or another person;
- The force employed does not create a substantial risk of injury to other persons.
-
A peace officer shall identify himself or herself as a peace officer and give a clear verbal warning of his or her intent to use firearms or other deadly physical force, with sufficient time for the warning to be observed, unless to do so would unduly place peace officers at risk of injury or would create a risk of death or injury to other persons.
(4.5) Notwithstanding any other provision in this section, a peace officer is justified in using deadly force if the peace officer has an objectively reasonable belief that a lesser degree of force is inadequate and the peace officer has objectively reasonable grounds to believe, and does believe, that he or another person is in imminent danger of being killed or of receiving serious bodily injury.
- Except as provided in subsection (6) of this section, a person who has been directed by a peace officer to assist him to effect an arrest or to prevent an escape from custody is justified in using reasonable and appropriate physical force when and to the extent that he reasonably believes that force to be necessary to carry out the peace officer's direction, unless he knows that the arrest or prospective arrest is not authorized.
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A person who has been directed to assist a peace officer under circumstances specified in subsection (5) of this section may use deadly physical force to effect an arrest or to prevent an escape only when:
- He reasonably believes that force to be necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force; or
- He is directed or authorized by the peace officer to use deadly physical force and does not know, if that happens to be the case, that the peace officer himself is not authorized to use deadly physical force under the circumstances.
- A private person acting on his own account is justified in using reasonable and appropriate physical force upon another person when and to the extent that he reasonably believes it necessary to effect an arrest, or to prevent the escape from custody of an arrested person who has committed an offense in his presence; but he is justified in using deadly physical force for the purpose only when he reasonably believes it necessary to defend himself or a third person from what he reasonably believes to be the use or imminent use of deadly physical force.
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A guard or peace officer employed in a detention facility is justified:
- In using deadly physical force when he reasonably believes it necessary to prevent the escape of a prisoner convicted of, charged with, or held for a felony or confined under the maximum security rules of any detention facility as such facility is defined in subsection (9) of this section;
- In using reasonable and appropriate physical force, but not deadly physical force, in all other circumstances when and to the extent that he reasonably believes it necessary to prevent what he reasonably believes to be the escape of a prisoner from a detention facility.
- "Detention facility" as used in subsection (8) of this section means any place maintained for the confinement, pursuant to law, of persons charged with or convicted of an offense, held pursuant to the "Colorado Children's Code", held for extradition, or otherwise confined pursuant to an order of a court.
-
- Each law enforcement agency in the state shall train its peace officers on the provisions of subsections (1) to (4.5) of this section, section 18-1-703 (1)(b), and section 18-8-802 (1.5) as enacted in Senate Bill 20-217, enacted in 2020, prior to the provisions becoming effective on September 1, 2020.
- This subsection (10) is repealed, effective January 1, 2021.
Source: L. 71: R&RE, p. 410, § 1. C.R.S. 1963: § 40-1-807. L. 75: (2)(b) R&RE, p. 616, § 2, effective July 21. L. 2016: IP(1), (3), and (4) amended and (2.5) added, (HB 16-1264), ch. 341, p. 1390, § 1, effective July 1. L. 2020: (2.5) and (3) R&RE and (10) added, (SB 20-217), ch. 110, pp. 454, 456, §§ 5, 7, effective June 19; (1), (2), and (4) R&RE and (4.5) added, (SB 20-217), ch. 110, p. 454, § 5, effective September 1.
Cross references: (1) For the "Colorado Children's Code", see title 19.
(2) For the legislative declaration in SB 20-217, see section 1 of chapter 110, Session Laws of Colorado 2020.
ANNOTATION
Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995). For article, "Constitutional Issues in the Criminal Prosecution of Law Enforcement Officers", see 33 Colo. Law. 55 (March 2004). For article, "Police Use of Force Standards Under Colorado and Federal Law", see 36 Colo. Law. 47 (May 2007).
Annotator's note. Since § 18-1-707 is similar to former § 40-2-16, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
Officer may use reasonable force to protect himself or detain offender. An officer who is making a lawful arrest, or has made an arrest, is justified in using such force as is reasonably necessary to secure and detain the offender, overcome his resistance, prevent his escape, recapture him if he escapes, and to protect himself from bodily harm; but he is never justified in using unnecessary force or treating his prisoner with wanton violence, or in resorting to dangerous means when the arrest could be effected otherwise. People ex rel. Little v. Hutchinson, 9 F.2d 275 (8th Cir. 1925).
Officer cannot use excessive force in making an arrest or bringing one into submission. McDaniel v. People, 179 Colo. 153 , 499 P.2d 613, cert. denied, 409 U.S. 1060, 93 S. Ct. 558, 34 L. Ed. 2d 512 (1972).
Officer is not required to retreat. A police officer who is assaulted by one whom he is lawfully attempting to arrest is not required to retreat to the wall before resorting to such defensive measures as may reasonably seem necessary to protect himself against loss of life or great bodily injury. Boykin v. People, 22 Colo. 496, 45 P. 419 (1896).
Authority to take life based on apparent necessity. This section does not clothe an officer with authority to judge arbitrarily that it is necessary to take life in order to prevent the rescue of his prisoner. He is not warranted in taking life unless there is an apparent necessity for it and if he does so he is not permitted to take shelter behind his official character. Campbell v. People, 55 Colo. 302, 133 P. 1043 (1913).
Use of force is ordinarily a question for jury. An officer who intentionally uses more force than is reasonably necessary in making an arrest is oppressively discharging the duties of his office. What amounts to reasonable force depends upon the facts of each particular case and is ordinarily a question of fact for the jury. People ex rel. Little v. Hutchinson, 9 F.2d 275 (8th Cir. 1925); People v. Fuller, 756 P.2d 390 (Colo. App. 1987), aff'd in part and rev'd in part on other grounds, 781 P.2d 647 ( Colo. 1989 ).
The question of the absence or existence of the necessity to take the life of a prisoner is finally for the jury. Campbell v. People, 55 Colo. 302, 133 P. 1043 (1913).
Police officer's actions were not within section. Where complaining witness remarked that the police officer was "some kind of a pig" when the officer twice refused to tell the complaining witness why he was being arrested and the officer reacted by pulling his revolver on the complaining witness, the officer's actions were not within the statute authorizing the use of deadly physical force. Johns v. District Court, 192 Colo. 462 , 561 P.2d 1 (1977).
Before a private person can use physical force to effect an arrest pursuant to subsection (7), the arrest must first be authorized under § 16-3-201. People v. Joyce, 68 P.3d 521 (Colo. App. 2002).
In addition, the person on whom physical force is used under subsection (7) must have either committed a crime in the presence of or attempted escape from custody in the presence of the person using the physical force. People v. Joyce, 68 P.3d 521 (Colo. App. 2002).
18-1-708. Duress.
A person may not be convicted of an offense, other than a class 1 felony, based upon conduct in which he engaged at the direction of another person because of the use or threatened use of unlawful force upon him or upon another person, which force or threatened use thereof a reasonable person in his situation would have been unable to resist. This defense is not available when a person intentionally or recklessly places himself in a situation in which it is foreseeable that he will be subjected to such force or threatened use thereof. The choice of evils defense, provided in section 18-1-702, shall not be available to a defendant in addition to the defense of duress provided under this section unless separate facts exist which warrant its application.
Source: L. 71: R&RE, p. 411, § 1. C.R.S. 1963: § 40-1-808. L. 88: Entire section amended, p. 712, § 15, effective July 1.
ANNOTATION
Defense of choice of evils is very similar to duress and the foundation requirements set forth in the choice of evils statute was intended as a safeguard against abuse of the defense. People v. Strock, 623 P.2d 42 (Colo. 1981).
Defense available where imminent threat of use of unlawful force. Generally, where the threat of unlawful use of force is alleged, this defense is available only if the threat is one of present, impending, and imminent use of force, and a threat of future injury is not enough. People v. Maes, 41 Colo. App. 75, 583 P.2d 942 (1978).
Defendant must show specific and imminent threat. The defense of duress is unavailable unless a defendant shows a specific and imminent threat of injury to his person under circumstances which leave him no reasonable alternative other than the violation of the law for which he stands charged; mere speculation that injury may occur is not sufficient. Bailey v. People, 630 P.2d 1062 ( Colo. 1981 ); People v. Speer, 255 P.3d 1115 ( Colo. 2011 ).
A defendant must make a threshold showing of: (1) An immediate threat of death or bodily injury; (2) a well-grounded fear the threat will be carried out; and (3) no reasonable opportunity to escape the threatened harm. People v. Preciado-Flores, 66 P.3d 155 (Colo. App. 2002); People v. Speer, 255 P.3d 1115 ( Colo. 2011 ).
Any threat must be more than mere speculation or a veiled threat of unspecified future harm. People v. Trujillo, 586 P.2d 235 (Colo. App. 1978); People v. Preciado-Flores, 66 P.3d 155 (Colo. App. 2002).
Prosecution to establish lack of duress. Because duress is an affirmative defense, the prosecution must establish, beyond a reasonable doubt, the defendant's guilt as to that issue. Bailey v. People, 630 P.2d 1062 (Colo. 1981).
When an accused presents some credible evidence on the issue of duress, the prosecution must establish beyond a reasonable doubt the defendant's guilt as to that issue as well as all other elements of the offense. People v. Quintana, 665 P.2d 605 (Colo. 1983).
Whether threat is imminent is question of fact. The question whether a threat is imminent is, in all but the clearest of cases, to be decided by the trier of fact after considering all of the surrounding circumstances, including the defendant's opportunity and ability to avoid the harm. People v. Maes, 41 Colo. App. 75, 583 P.2d 942 (1978); People v. Speer, 216 P.3d 18 (Colo. App. 2007).
Where defendant improperly denied opportunity to present evidence on issue. Where a defendant was allowed to testify only about the most recent of a series of events occurring over a five-month period, he was unreasonably deprived of the opportunity to detail the evidence that would lend credence to his affirmative defense under this section. People v. Trujillo, 41 Colo. App. 223, 586 P.2d 235 (1978).
Where evidence goes to defendant credibility rather than submissibility of defense. Where a defendant testifies that he was specifically threatened with injury to himself and to his family if he refused to hold contraband or if he reported the incident to the authorities, his failure to identify the person who threatened him goes to the credibility of the explanation, rather than to the submissibility of the defense to the jury. People v. Maes, 41 Colo. App. 75, 583 P.2d 942 (1978).
Defense not available to escapee unless he immediately reports duress, or choice of evils, which he faced to the proper authorities when a position of safety is reached. People v. Handy, 198 Colo. 556 , 603 P.2d 941 (1979).
The trial court erred in allowing jury instruction on the affirmative defense of duress in a contract for murder case where a wife claiming that she suffered from battered woman syndrome hired her husband's killers. There was no evidence that the defendant acted at the direction of another person. Although this section did not require that person act at the direction of another person at the time of the murder, case law required such a condition to exist. People v. Yaklich, 833 P.2d 758 (Colo. App. 1992).
No error in district court's rejection of defendant's proffered jury instruction concerning duress. Where it was undisputed that defendant had a gun and drove himself to the scene of the crime, the court found that there was no evidence from which a reasonable jury could conclude that defendant acted under duress. People v. Speer, 255 P.3d 1115 (Colo. 2011).
The common-law theory that control by the husband is presumed was abolished by statute. The law of this state requires the coercion by the husband to be proved. Dalton v. People, 68 Colo. 44, 189 P. 37 (1920) (decided under R. S. 08, § 1616).
Applied in People v. DeJesus, 184 Colo. 230 , 519 P.2d 944 (1974); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978).
18-1-709. Entrapment.
The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender's fear of detection are used.
Source: L. 71: R&RE, p. 411, § 1. C.R.S. 1963: § 40-1-809.
ANNOTATION
Law reviews. For article, "Criminal Law", which discusses a Tenth Circuit decision dealing with the entrapment defense, see 61 Den. L.J. 272 (1984). For article, "The Entrapment Defense in Colorado", see 40 Colo. Law. 47 (Jan. 2011).
Entrapment may be asserted as an affirmative defense only to acts that would otherwise constitute an offense and is not applicable to sentencing provisions such as the sentence enhancing provisions of § 18-18-107, which merely impact the degree of punishment imposed. Vega v. People, 893 P.2d 107 (Colo. 1995).
The defense of entrapment has long been recognized in Colorado when the prosecution, through its agents, in fact, induces, instigates, and causes a criminal offense to be committed. People v. Bucher, 182 Colo. 211 , 511 P.2d 895 (1973).
States are free to define defense of entrapment as they choose, since it is not of constitutional stature. Bailey v. People, 630 P.2d 1062 (Colo. 1981).
This section is patterned upon § 40.05 of article 40 N.Y. Penal Law Consol. Bailey v. People, 630 P.2d 1062 (Colo. 1981).
Detection of crime distinguished from entrapment. A suspected person may be tested by being offered the opportunity to transgress the law in such a manner as is usual in the activity alleged to be unlawful. However, law enforcement officers may not induce persons, who would not otherwise have committed the crime, to violate the law. The former is legitimate "detection" of crime. The latter is "entrapment" to commit the crime in which the officer's conduct instigates the offense, the commission of which was nonexistent in the mind of the intended victim of the entrapment. Gonzales v. People, 168 Colo. 545 , 452 P.2d 46 (1969).
To prove entrapment, the defense must show that the prosecution played the primary role. People v. Bucher, 182 Colo. 211 , 511 P.2d 895 (1973).
Test of entrapment focuses on defendant's conduct. In determining whether the affirmative defense of entrapment exists, the court focuses on the conduct of the defendant. An examination is made of the circumstances surrounding the sale to see whether the officers merely afforded the defendant the opportunity to commit the offense, or whether the defendant had been improperly induced to do something he otherwise would not have done. People v. Williams, 654 P.2d 319 (Colo. App. 1982).
Entrapment is a subjective test that focuses on a defendant's state of mind. This section does not set forth general standards for police conduct. Thus, evidence of federal drug enforcement agency's system for rewarding and promoting agents was irrelevant to a narcotics case where entrapment issue was raised. People v. Aponte, 867 P.2d 183 (Colo. App. 1993); Vega v. People, 893 P.2d 107 ( Colo. 1995 ).
While police methods are relevant to the defense of entrapment, police motives are not relevant because they do not impact the subjective state of mind of the defendant. However, such motives may be relevant for the purpose of establishing bias in DEA agents' testimony. Vega v. People, 893 P.2d 107 (Colo. 1995).
This section codifies subjective test, as the defendant's predisposition to commit the crime, rather than the conduct of the government agent, remains the dispositive factor in determining whether entrapment has occurred. People v. Sanchez, 40 Colo. App. 552, 580 P.2d 1270 (1978); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978), aff'd, 630 P.2d 1062 ( Colo. 1981 ).
However, the carefully crafted requirements of the entrapment statute are swept aside by a jury instruction which selectively excerpted the statement from Bailey v. People (630 P.2d 1062 ( Colo. 1981 )) that "the defendant's predisposition to commit the crime, rather than the conduct of the [police, is] the dispositive factor.", because statements from opinions do not necessarily translate with clarity into jury instructions. Evans v. People, 706 P.2d 795 ( Colo. 1985 ).
This section creates a subjective test which is concerned with the state of mind of a particular defendant; it does not set general standards for police conduct. Thus, evidence of a law enforcement agency's internal reward system generally would not be relevant to whether a particular defendant was entrapped. People v. Vega, 870 P.2d 549 (Colo. App. 1993).
Section requires the defendant to admit committing the acts before being entitled to assert the defense of entrapment. The court did not err in refusing to give an instruction on the defense when the defendant denied committing the acts. People v. Hendrickson, 45 P.3d 786 (Colo. App. 2001); People v. Grizzle, 140 P.3d 224 (Colo. App. 2006).
Elements of the defense: (1) The defendant must be a person who, but for the offered inducement offered, would not have conceived of or engaged in conduct of the sort induced; (2) the defendant must in fact have engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and not as a result of the defendant's own predisposition; (3) the methods used to obtain such evidence must have been such as to create a substantial risk that this particular defendant would engage in the sort of conduct induced; and (4) the methods used must have been more persuasive than merely affording the defendant an opportunity to commit an offense, even when such an opportunity was coupled with representations or inducements calculated to overcome the defendant's fear of detection. Evans v. People, 706 P.2d 795 (Colo. 1985).
Predisposition and inducement are inextricably interwoven within the first three elements of the defense. Evans v. People, 706 P.2d 795 (Colo. 1985).
Existence of any predisposition on the part of the defendant must be determined first; then the extent of any such predisposition must be considered in relation to the character of the inducements to determine whether the second and third elements have been satisfied. Evans v. People, 706 P.2d 795 (Colo. 1985).
Prosecution must prove defendant not entrapped. The prosecution must prove beyond a reasonable doubt that the defendant was not entrapped. People v. Williams, 654 P.2d 319 (Colo. App. 1982).
Prosecution may rely solely on the defendant's predisposition only if they are able to prove that the defendant would have committed the crime even if the police had offered no inducement more persuasive than merely affording the defendant an opportunity to commit the crime. Evans v. People, 706 P.2d 795 (Colo. 1985).
In reviewing the sufficiency of predisposition evidence, courts may rely upon evidence obtained after the government's initial contact with the defendant, so long as such evidence is relevant to the defendant's state of mind as it existed prior to the government's suggestion of the crime. People v. Sprouse, 983 P.2d 771 (Colo. 1999).
Intent to commit the crime must originate with the defendant. People v. Walker, 44 Colo. App. 249, 615 P.2d 57 (1980).
Entrapment operates where police originate criminal intent. Entrapment occurs only when the criminal conduct is the product of the creative activity of law enforcement officials, that is, only where the criminal design originates in the mind of the police officer and not with the accused. Gonzales v. People, 168 Colo. 545 , 452 P.2d 46 (1969); People v. Hankin, 179 Colo. 70 , 498 P.2d 1116 (1972).
One who is instigated, induced, or lured by an officer of the law or other person, for the purpose of prosecution, into the commission of a crime which he had otherwise no intention of committing may avail himself of the defense of entrapment. Gonzales v. People, 168 Colo. 545 , 452 P.2d 46 (1969).
Notwithstanding aim of capturing old offenders. When detectives suggest the commission of a crime and instigate others to take part in its commission in order to arrest them while in the act, although the purpose may be to capture old offenders, their conduct is not only reprehensible, but criminal, and ought to be rebuked rather than encouraged by the courts. Gonzales v. People, 168 Colo. 545 , 452 P.2d 46 (1969).
And not where officer merely supplies opportunity for crime. Defense of entrapment is not available where the officer or other person acted in good faith for the purpose of discovering or detecting a crime and merely furnished the opportunity for the commission thereof by one who had the requisite criminal intent. Gonzales v. People, 168 Colo. 545 , 452 P.2d 46 (1969); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978), aff'd, 630 P.2d 1062 ( Colo. 1981 ).
The Colorado courts have drawn a strong distinction between the seduction by a government agent of an innocent person into doing an unlawful act not contemplated by him, and a government agent affording an opportunity to one who has the intent and design to commit a criminal offense to do so. The first situation affords a complete defense to one charged with a crime under those circumstances, but the second is a perfectly proper tool in the arsenal of law enforcement agents. People v. Simmons, 179 Colo. 431 , 501 P.2d 119 (1972).
Entrapment does not occur when government agent merely offers person the opportunity to commit the offense. People v. Lee, 180 Colo. 376 , 506 P.2d 136 (1973).
When an undercover police agent merely provides one with the opportunity to transgress the law, there is no entrapment. People v. Ross, 182 Colo. 267 , 512 P.2d 1154 (1973).
There is no entrapment when the representations of a government agent merely afford an opportunity for the defendant to commit a criminal act in the belief that the representations were true. People v. Adler, 629 P.2d 569 (Colo. 1981).
There is no entrapment if the police agent merely furnishes an opportunity for the criminal act to one ready and willing to commit it. People v. Walker, 44 Colo. App. 249, 615 P.2d 57 (1980).
The plain wording of this section indicates that the defense of entrapment cannot be established in those cases where the police merely furnish the defendant with an opportunity to commit a crime. People v. Jackson, 627 P.2d 741 (Colo. 1981).
The mere use of an undercover agent does not prove that the prosecution induced the crime and thereby vitiated any subsequent conviction of the crime. People v. Bucher, 182 Colo. 211 , 511 P.2d 895 (1973).
Question of fact. Where many of the elements of entrapment are in the record in a libel case, but on the issue of good faith and belief in the truth of the statements made there is at least a doubt, summary judgment should not be granted. Abrahamsen v. Mtn. States Tel. &MP Tel. Co., 177 Colo. 422 , 494 P.2d 1287 (1972).
Entrapment defense available where agent induced, instigated, and caused commission of offense. The defense of entrapment is available only where the defendant shows that law enforcement agents, in fact, induced, instigated, and caused a criminal offense to be committed. People v. Jackson, 627 P.2d 741 (Colo. 1981).
Entrapment not present simply because defendant initially approached victim with humanitarian intentions. When the defendant testified that although he approached the apparent drunk (decoy police officer) with humanitarian intentions, he later decided that if dead the drunk would have no further use of his money, the police agents provided only an opportunity for a thief who was ready and willing and thus entrapment was not present as a matter of law. People v. Walker, 44 Colo. App. 249, 615 P.2d 57 (1980).
Entrapment in narcotics cases. Where released narcotics suspect agrees to make arrangements for undercover police agents to purchase dangerous drugs, and where he notifies police that defendant has LSD for sale and arranges a meeting which results in defendant's selling LSD to police, entrapment is not established. People v. Lee, 180 Colo. 376 , 506 P.2d 136 (1973).
Entrapment does not consist of mere act of making sale to person who has offered to purchase narcotics. People v. Lee, 180 Colo. 376 , 506 P.2d 136 (1973).
Defense of entrapment is not intended to be escape hatch for those who mistakenly sell narcotics to police officer. When person who has narcotics for sale is ready, willing, and able to effect sale with no more than ordinary persuasion, he has not been entrapped and must suffer consequences for dispensing or selling narcotics. People v. Lee, 180 Colo. 376 , 506 P.2d 136 (1973).
Encouragement by police informant for a defendant to import cocaine into this state did not amount to outrageous conduct. People v. Aponte, 867 P.2d 183 (Colo. App. 1993).
Even if undercover police agent sought out drugs and asked defendant if she had any or knew where she could get some, this behavior did not constitute entrapment. People v. Ross, 182 Colo. 267 , 512 P.2d 1154 (1973); People v. Bailey, 41 Colo. App. 385, 590 P.2d 508 (1978), aff'd, 630 P.2d 1062 ( Colo. 1981 ).
Fourteenth amendment violated when a jury instruction could lead a jury to believe that it was enough for the prosecution to prove that the defendant has some predisposition to commit the crime. Evans v. People, 706 P.2d 795 (Colo. 1985).
Court did not err in refusing to instruct jury on entrapment as an affirmative defense. Since entrapment is an affirmative defense, it only applies if the defendant admits to committing the crime. In this case, the only contested issue was whether the substance was a controlled substance. Since defendant had to distribute a controlled substance to commit the crime, by disputing that the substance was a controlled substance, defendant did not admit to all elements of the crime. Thus, defendant was not entitled to an entrapment defense instruction. People v. Santana, 240 P.3d 302 (Colo. App. 2009), rev'd on other grounds, 255 P.3d 1126 ( Colo. 2011 ); People v. Taylor, 2012 COA 91 , 296 P.3d 317.
Evidence held insufficient to establish entrapment. People v. Simmons, 179 Colo. 431 , 501 P.2d 119 (1972).
18-1-710. Affirmative defense.
The issues of justification or exemption from criminal liability under sections 18-1-701 to 18-1-709 are affirmative defenses.
Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-810.
Cross references: For the affirmative defense of impaired mental condition, see §§ 16-8-103.5 and 18-1-803; for other provisions concerning affirmative defenses generally, see §§ 18-1-407 and 18-1-805; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 to 18 of this title 18.
ANNOTATION
Law reviews. For article, "Self-Defense in Colorado", see 24 Colo. Law. 2717 (1995).
If evidence is intended to show entrapment, it should be presented in defendant's case-in-chief, since entrapment is an affirmative defense. People v. McKay, 191 Colo. 381 , 553 P.2d 380 (1976).
Heat of passion is not an affirmative defense to first-degree or second-degree murder and no jury instruction regarding heat of passion needs to be given. People v. Carrier, 791 P.2d 1204 (Colo. App. 1989).
Applied in Bailey v. People, 630 P.2d 1062 ( Colo. 1981 ); People v. Rex, 636 P.2d 1282 (Colo. App. 1981).
18-1-711. Immunity for persons who suffer or report an emergency drug or alcohol overdose event - definitions.
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A person is immune from arrest and prosecution for an offense described in subsection (3) of this section if:
- The person reports in good faith an emergency drug or alcohol overdose event to a law enforcement officer, to the 911 system, or to a medical provider;
- The person remains at the scene of the event until a law enforcement officer or an emergency medical responder arrives or the person remains at the facilities of the medical provider until a law enforcement officer arrives;
- The person identifies himself or herself to, and cooperates with, the law enforcement officer, emergency medical responder, or medical provider; and
- The offense arises from the same course of events from which the emergency drug or alcohol overdose event arose.
- The immunity described in subsection (1) of this section also extends to the person who suffered the emergency drug or alcohol overdose event if all of the conditions of subsection (1) of this section are satisfied.
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The immunity described in subsection (1) of this section applies to the following criminal offenses:
- Unlawful possession of a controlled substance, as described in section 18-18-403.5 (2);
- Unlawful use of a controlled substance, as described in section 18-18-404;
- If committed on or after March 1, 2020, unlawful possession of two ounces or less of marijuana, as described in section 18-18-406 (5)(a)(I); or more than two ounces of marijuana but not more than six ounces of marijuana or not more than three ounces of marijuana concentrate, as described in section 18-18-406 (4)(c); or more than six ounces of marijuana or more than three ounces of marijuana concentrate, as described in section 18-18-406 (4)(b);
- Open and public display, consumption, or use of less than two ounces of marijuana, as described in section 18-18-406 (5)(b)(I);
- Transferring or dispensing two ounces or less of marijuana from one person to another for no consideration, as described in section 18-18-406 (5)(c);
- Use or possession of synthetic cannabinoids or salvia divinorum, as described in section 18-18-406.1;
- Possession of drug paraphernalia, as described in section 18-18-428; and
- Illegal possession or consumption of ethyl alcohol or marijuana by an underage person or illegal possession of marijuana paraphernalia by an underage person, as described in section 18-13-122.
- Nothing in this section shall be interpreted to prohibit the prosecution of a person for an offense other than an offense listed in subsection (3) of this section or to limit the ability of a district attorney or a law enforcement officer to obtain or use evidence obtained from a report, recording, or any other statement provided pursuant to subsection (1) of this section to investigate and prosecute an offense other than an offense listed in subsection (3) of this section.
- As used in this section, unless the context otherwise requires, "emergency drug or alcohol overdose event" means an acute condition including, but not limited to, physical illness, coma, mania, hysteria, or death resulting from the consumption or use of a controlled substance, or of alcohol, or another substance with which a controlled substance or alcohol was combined, and that a layperson would reasonably believe to be a drug or alcohol overdose that requires medical assistance.
Source: L. 2012: Entire section added, (SB 12-020), ch. 225, p. 986, § 2, effective May 29. L. 2013: (3)(c), (3)(d), and (3)(e) amended, (SB 13-250), ch. 333, p. 1934, § 52, effective October 1. L. 2014: (3)(h) amended, (SB 14-129), ch. 387, p. 1938, § 6, effective June 6. L. 2016: IP(1) amended, (HB 16-1390), ch. 184, p. 649, § 1, effective August 10. L. 2017: (3)(a) amended, (SB 17-294), ch. 264, p. 1393, § 37, effective May 25. L. 2019: IP(3) and (3)(c) amended, (HB 19-1263), ch. 291, p. 2679, § 5, effective March 1, 2020.
Cross references: For the legislative declaration in the 2012 act adding this section, see section 1 of chapter 225, Session Laws of Colorado 2012.
RECENT ANNOTATIONS
Subsection (1)(a) requires both that: (1) a person report in good faith what the person subjectively perceives is an acute condition caused by the consumption or use of drugs or alcohol and that (2) a layperson would reasonably believe that the reported condition is a drug or alcohol overdose needing medical assistance. The good-faith requirement renders the subjective perception of the person making the report relevant. People v. Harrison, 2020 CO 57, 465 P.3d 16.
The introduced evidence, when viewed as a whole and in the light most favorable to the prosecution, was sufficient to disprove the affirmative defense, which was based on this section, beyond a reasonable doubt. The person who called the police stated that it never crossed her mind that the defendant may have had a drug overdose. People v. Harrison, 2020 CO 57, 465 P.3d 16.
ANNOTATION
Subsection (5) defines an "emergency drug or alcohol overdose event" under a reasonable person standard, considering what a layperson would reasonably believe to be a drug or alcohol overdose that requires medical assistance at the time the 911 call is made. People v. Harrison, 2019 COA 63 , __ P.3d __.
18-1-712. Immunity for a person who administers an opiate antagonist during an opiate-related drug overdose event - definitions.
- Legislative declaration. The general assembly hereby encourages the administration of opiate antagonists for the purpose of saving the lives of people who suffer opiate-related drug overdose events. A person who administers an opiate antagonist to another person is urged to call for emergency medical services immediately.
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General immunity.
- A person, other than a health care provider or a health care facility, who acts in good faith to furnish or administer an opiate antagonist, including an expired opiate antagonist, to an individual the person believes to be suffering an opiate-related drug overdose event or to an individual who is in a position to assist the individual at risk of experiencing an opiate-related overdose event is immune from criminal prosecution for the act or for any act or omission made if the opiate antagonist is stolen.
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This subsection (2) also applies to:
- A law enforcement agency or first responder; an employee or volunteer of a harm reduction organization; a school district, school, or employee or agent of a school acting in accordance with section 12-30-110 (1)(b), (2)(b), and (4)(b) and, as applicable, section 22-1-119.1; or a mental health professional as defined in section 12-30-110 (7)(b.5); and
- A person who acts in good faith to furnish or administer an opiate antagonist in accordance with section 25-20.5-1001.
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Licensed prescribers and dispensers. An individual who is licensed by the state under title 12 and is permitted by section 12-30-110 or by other applicable law to prescribe or dispense an opiate antagonist is immune from criminal prosecution for:
- Prescribing or dispensing an opiate antagonist in accordance with the applicable law; or
- Any outcomes resulting from the eventual administration of the opiate antagonist by a layperson.
- Repealed.
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Licensed prescribers and dispensers. An individual who is licensed by the state under title 12 and is permitted by section 12-30-110 or by other applicable law to prescribe or dispense an opiate antagonist is immune from criminal prosecution for:
- The provisions of this section shall not be interpreted to establish any duty or standard of care in the prescribing, dispensing, or administration of an opiate antagonist.
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Definitions. As used in this section, unless the context otherwise requires:
- "Health care facility" means a hospital, a hospice inpatient residence, a nursing facility, a dialysis treatment facility, an assisted living residence, an entity that provides home- and community-based services, a hospice or home health care agency, or another facility that provides or contracts to provide health care services, which facility is licensed, certified, or otherwise authorized or permitted by law to provide medical treatment.
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"Health care provider" means:
- A licensed or certified physician, nurse practitioner, physician assistant, or pharmacist; or
- A health maintenance organization licensed and conducting business in this state.
- "Health care provider" does not include a podiatrist, optometrist, dentist, or veterinarian.
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"Health care provider" means:
- "Opiate" has the same meaning as set forth in section 18-18-102 (21).
- "Opiate antagonist" means naloxone hydrochloride or any similarly acting drug that is not a controlled substance and that is approved by the federal food and drug administration for the treatment of a drug overdose.
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"Opiate-related drug overdose event" means an acute condition, including a decreased level of consciousness or respiratory depression, that:
- Results from the consumption or use of a controlled substance or another substance with which a controlled substance was combined;
- A layperson would reasonably believe to be an opiate-related drug overdose event; and
- Requires medical assistance.
Source: L. 2013: Entire section added, (SB 13-014), ch. 178, p. 656, § 2, effective May 10. L. 2015: (2), IP(3)(a), (3)(a)(I), and (5)(e) amended and (3)(b) repealed, (SB 15-053), ch. 78, p. 216, § 9, effective April 3. L. 2019: (2) amended, (SB 19-227), ch. 273, p. 2579, § 7, effective May 23; (2) and IP(3)(a) amended, (HB 19-1172), ch. 136, p. 1674, § 90, effective October 1. L. 2020: (2)(b)(I) amended, (HB 20-1206), ch. 304, p. 1526, § 7, effective July 14; (2)(a) amended, (HB 20-1065), ch. 287, p. 1420, § 5, effective September 14.
Editor's note: Amendments to subsection (2) by SB 19-227 and HB 19-1172 were harmonized.
Cross references: For the legislative declaration in the 2013 act adding this section, see section 1 of chapter 178, Session Laws of Colorado 2013.
18-1-713. Victims of human trafficking of a minor for involuntary servitude or sexual servitude - affirmative defenses.
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Except as provided in section 18-7-209, it is an affirmative defense to any charge, other than a class 1 felony, if the minor being charged proves, by a preponderance of the evidence, that he or she was, at the time of the offense:
- A victim of human trafficking of a minor for involuntary servitude pursuant to section 18-3-503 or human trafficking of a minor for sexual servitude pursuant to section 18-3-504; and
- Forced or coerced into engaging in the criminal act charged.
Source: L. 2019: Entire section added, (SB 19-185), ch. 147, p. 1766, § 5, effective May 6.
Cross references: For the legislative declaration in SB 19-185, see section 1 of chapter 147, Session Laws of Colorado 2019.
18-1-714. Protective hearing - victim's, defendant's, or witness's gender identity, gender expression, or sexual orientation - definitions.
- Evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation offered in relation to an affirmative defense or pursuant to rule 404 of the Colorado rules of evidence may be admissible only at trial and shall not be admitted in any other proceeding except at a proceeding pursuant to subsection (2) of this section. At trial, evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation offered by any party in relation to an affirmative defense or pursuant to rule 404 of the Colorado rules of evidence is presumed to be irrelevant.
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In any criminal prosecution, if evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation is to be offered by any party at trial in relation to an affirmative defense or pursuant to rule 404 of the Colorado rules of evidence, the following procedures shall be followed:
- A written motion must be made at least thirty-five days prior to trial, unless later for good cause shown, to the court and to the opposing parties stating that the moving party has an offer of proof of the specific factual relevancy and materiality of evidence of a victim's, defendant's, or a witness's actual or perceived gender identity, gender expression, or sexual orientation;
- The written motion must be accompanied by an affidavit in which the offer of proof is stated;
- If the court finds that the offer of proof is sufficient, the court shall notify the other parties. If the prosecution stipulates to the facts contained in the offer of proof, the court shall rule on the motion based upon the offer of proof without an evidentiary hearing. Otherwise, the court shall set an in-camera hearing prior to trial. In the hearing, to the extent the facts are in dispute, the court may allow a presentation of the offer of proof, including but not limited to the presentation of witnesses.
- An in-camera hearing may be held during trial if evidence first becomes available at the time of the trial or for good cause shown;
- At the conclusion of the hearing, or by written order if no hearing is held, if the court finds that the evidence proposed to be offered regarding a victim's, defendant's, or a witness's actual or perceived gender identity, gender expression, or sexual orientation is relevant to a material issue to the case, the court shall order that evidence may be introduced and prescribe the nature of the evidence or questions to be permitted. The moving party may then offer evidence pursuant to the order of the court.
- All motions and supporting documents filed pursuant to this section must be filed under seal and may be unsealed only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence contained in the motion is admissible, only that portion of the motion and supporting documents pertaining to the admissible portion may be unsealed.
- The court shall seal all court transcripts, digital or other recordings, and records of proceedings, other than minute orders, of a hearing held pursuant to this section. The court may unseal the transcripts, digital or other recordings, and records only if the court rules the evidence is admissible and the case proceeds to trial. If the court determines that only part of the evidence is admissible, only the portion of the hearing pertaining to the admissible evidence may be unsealed.
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- In any criminal prosecution, the court may, at any time upon motion of the prosecution or on the court's own motion, issue a protective order pursuant to the Colorado rules of criminal procedure concerning disclosure of information relating to the victim or witness. The court may, at any time upon motion of the defendant or on the court's own motion, issue a protective order pursuant to the Colorado rules of criminal procedure concerning disclosure of information relating to the defendant. The court may punish a violation of a protective order by contempt of court.
- The person who would be the subject of the protective order may object to the motion for a protective order.
- If evidence of a victim's, defendant's, or witness's actual or perceived gender identity, gender expression, or sexual orientation is admitted at trial, the court shall instruct the jury to not allow bias or any kind of prejudice based upon gender identity, gender expression, or sexual orientation to influence its decision. If admitted for a limited purpose, the court shall further instruct the jury as to the limited purpose or purposes for which the evidence is admitted and for which the jury may consider it.
- This section does not apply when evidence of a victim's actual or perceived gender identity, gender expression, or sexual orientation is offered in a criminal prosecution for a bias-motivated crime as described in section 18-9-121. In such prosecutions, the rules of evidence shall govern the admissibility of evidence of a victim's actual or perceived gender identity, gender expression, or sexual orientation.
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As used in this section, unless the context otherwise requires:
- "Gender identity" and "gender expression" have the same meaning as in section 18-1-901 (3)(h.5).
- "Intimate relationship" has the same meaning as in section 18-6-800.3.
- "Sexual orientation" has the same meaning as in section 18-9-121 (5)(b).
Source: L. 2020: Entire section added, (SB 20-221), ch. 279, p. 1366, § 4, effective July 13.
Cross references: For the legislative declaration in SB 20-221, see section 1 of chapter 279, Session Laws of Colorado 2020.
PART 8 RESPONSIBILITY
18-1-801. Insufficient age.
The responsibility of a person for his conduct is the same for persons between the ages of ten and eighteen as it is for persons over eighteen except to the extent that responsibility is modified by the provisions of the "Colorado Children's Code", title 19, C.R.S. No child under ten years of age shall be found guilty of any offense.
Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-901.
ANNOTATION
Law reviews. For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981). For comment, "Arrested Development: An Alternative to Juveniles Serving LIFE Without Parole in Colorado", see 78 U. Colo. L. Rev. 1059 (2007).
Annotator's note. Since § 18-1-801 is similar to former § 40-1-4, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
An infant is presumed incapable of committing crime because he is presumed not to possess criminal intent. Calkins v. Albi, 163 Colo. 370 , 431 P.2d 17 (1967).
An infant under the age of 10 years shall not be found guilty of any offense. Gallegos v. Tinsley, 139 Colo. 157 , 337 P.2d 386 (1959); LeCoq ex rel. LeCoq v. Klemme, 28 Colo. App. 590, 476 P.2d 280 (1970).
Although a child under the age of 10 cannot be charged with an offense, it does not necessarily follow that the child cannot violate the law. In enacting the statute, the general assembly determined those persons who could be held responsible for their criminal acts, not that such persons could not commit the acts. People v. Miller, 830 P.2d 1092, (Colo. App. 1991).
Minor who is over 14 years of age is accountable for crimes committed by him. Gallegos v. Tinsley, 139 Colo. 157 , 337 P.2d 386 (1959).
Though the children's code may not in so many words raise the age below which there can be no criminal responsibility as concerns a felony from 10 to 14 years, in effect, that is exactly what it did. People ex rel. Terrell v. District Court, 164 Colo. 437 , 435 P.2d 763 (1967).
Incapacity is a defense. The incapacity of a party, by reason of his tender years, to commit the crime charged may be a good defense on the trial, as it may effectually negative the charge. Mitchell v. People, 24 Colo. 532, 52 P. 671 (1898).
Capacity is not required to be stated in the indictment, and its omission furnishes no ground for arresting the judgment after a verdict against the accused. Mitchell v. People, 24 Colo. 532, 52 P. 671 (1898).
This section is not relevant to a determination of liability for the commission of an intentional tort. LeCoq ex rel. LeCoq v. Klemme, 28 Colo. App. 590, 476 P.2d 280 (1970).
Applied in People v. Gallegos, 628 P.2d 999 (Colo. 1981).
18-1-802. Insanity.
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- A person who is insane, as defined in section 16-8-101, C.R.S., is not responsible for his or her conduct defined as criminal. Insanity as a defense shall not be an issue in any prosecution unless it is raised by a plea of not guilty by reason of insanity as provided in section 16-8-103, C.R.S.
- This subsection (1) applies to offenses committed before July 1, 1995.
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- A person who is insane, as defined in section 16-8-101.5, C.R.S., is not responsible for his or her conduct defined as criminal. Insanity as a defense shall not be an issue in any prosecution unless it is raised by a plea of not guilty by reason of insanity as provided in section 16-8-103, C.R.S.
- This subsection (2) shall apply to offenses occurring on or after July 1, 1995.
Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-902. L. 72: p. 268, § 7. L. 96: Entire section amended, p. 5, § 4, effective January 31.
Cross references: (1) For pleading the defense of insanity, see Crim. P. 11(e).
(2) For the legislative intent of the 1996 amendments to this section, see § 16-8-101.3.
ANNOTATION
Law reviews. For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981). For article, "Trauma, Crime and the Affirmative Defense", see 11 Colo. Law. 2401 (1982). For article, "Checklists to Evaluate Vietnam Vet Stress Disorders", see 12 Colo. Law. 273 (1983).
Annotator's note. Since § 18-1-803 is similar to former § 40-1-5, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
By asserting insanity defense, defendant admits the act charged but denies criminal responsibility for the act. Leick v. People, 322 P.2d 674 (Colo.), cert. denied, 357 U.S. 922, 78 S. Ct. 1363, 2 L. Ed. 2d 1366 (1958); People v. Gilliland, 769 P.2d 477 ( Colo. 1989 ).
One insane when he commits act prohibited by law cannot be held guilty of a crime. A statute providing that insanity shall be no defense to a criminal charge would be unconstitutional. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).
No matter how brutal a homicide may be, a person who is insane at the time of committing it cannot lawfully be convicted of murder, but if found guilty of committing the act must be confined in a state institution under the laws governing that institution. Graham v. People, 95 Colo. 544 , 38 P.2d 87 (1934).
At commencement of the trial defendant is presumed to have been sane at the time of the alleged commission of the crime charged. Shank v. People, 79 Colo. 576, 247 P. 559 (1926).
Accused must produce evidence raising reasonable doubt as to sanity. The killing being admitted or proven, an accused who relies upon the absence of sanity as a defense must produce evidence which will at least raise a reasonable doubt of its existence. Shank v. People, 79 Colo. 576, 247 P. 559 (1926).
Burden is on the state to prove sanity. When the question of defendant's sanity is properly raised, the burden is upon the people to prove beyond a reasonable doubt that he was sane at the time he committed the act charged. If the evidence raises in the minds of the jury a reasonable doubt of defendant's sanity at the time of the commission of the crime charged, they must find him not guilty. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).
The people are not required in the first instance to offer proof of sanity, sanity being presumed in the absence of evidence tending to show the contrary. But when evidence is introduced tending to show insanity, the people have the burden of proving beyond a reasonable doubt the sanity of the defendant. Graham v. People, 95 Colo. 544 , 38 P.2d 87 (1934).
Every criminal defendant is presumed sane, but once any evidence of insanity is introduced at trial, the burden of proof is on the people to prove sanity beyond a reasonable doubt. People v. Wright, 648 P.2d 665 (Colo. 1982).
Question of reasonable doubt as to sanity is for jury. In a homicide case the question of reasonable doubt as to defendant's sanity is for the jury, and its finding thereon, based on conflicting evidence, is not reviewable. Shank v. People, 79 Colo. 576, 247 P. 559 (1926).
The question of sanity in a criminal case is an issue of fact to be determined by the trier of fact. People v. Wright, 648 P.2d 665 (Colo. 1982).
Accused is entitled to have jury pass on question of his sanity. One accused of a crime is entitled to raise and have a jury pass upon the question of whether he was sane or insane when he committed the act with which he is charged. Ingles v. People, 92 Colo. 518 , 22 P.2d 1109 (1933).
Upon the trial for murder, evidence of the insanity of a grandfather and of an aunt of the defendant is competent to show hereditary insanity in the family and proper for the jury to consider with the other evidence in the case as an aid in passing upon the mental condition of the defendant at the time of the homicide. When such evidence has been introduced, an instruction the effect of which is to deprive the defendant of its benefit is erroneous. Jones v. People, 23 Colo. 276, 47 P. 275 (1896).
Where in the trial of an indictment there is evidence tending to show that the accused in committing the act was not mentally accountable, an instruction that withdraws this defense from the jury, or from which the jury may reasonably infer that in the opinion of the court this defense is not in the case, is error. Pribble v. People, 49 Colo. 210, 112 P. 220 (1910).
Defendant's status as a ward of the state was not conclusive evidence of insanity. It does not follow from a commitment to such an institution that one necessarily is incapable of forming an intent to commit a crime. McConnell v. People, 157 Colo. 235 , 402 P.2d 75 (1965).
Defendant found sane in separate sanity hearing. The argument that the defendant was incapable of forming the requisite mens rea and, therefore, could not be criminally responsible for his acts, is unpersuasive where the defendant was found sane in a separate sanity hearing prior to trial, and no objection was raised as to the propriety of the proceedings. Johnson v. People, 174 Colo. 413 , 484 P.2d 110 (1971).
Insanity adjudication results in a presumptive continuation of a state of mental incapacity until it is shown that sanity has been restored. People v. Giles, 662 P.2d 1073 (Colo. 1983).
Committed person not incapable of committing crime. An insanity adjudication represents a judicial determination that an accused is not legally responsible for a past criminal act by reason of a mental disease or defect which existed at the time the act was committed. It is simply not true, however, that an insanity adjudication renders a committed person legally incapable of committing future crimes during the period of commitment. People v. Giles, 662 P.2d 1073 (Colo. 1983).
Insanity is an affirmative defense to a crime. People v. Serravo, 823 P.2d 128 ( Colo. 1992 ); People v. Hill, 934 P.2d 821 ( Colo. 1997 ).
The "deific-decree" delusion is recognized in Colorado; a defendant may be judged legally insane if the defendant's cognitive ability to distinguish right from wrong with respect to the act has been destroyed as a result of a psychotic delusion that God has decreed the act. People v. Serravo, 823 P.2d 128 (Colo. 1992).
Applied in Gould v. People, 167 Colo. 113 , 445 P.2d 580 (1968); People v. Gallegos, 628 P.2d 999 ( Colo. 1981 ); People v. Chavez, 629 P.2d 1040 ( Colo. 1981 ).
18-1-803. Impaired mental condition.
- Evidence of an impaired mental condition, as defined in section 16-8-102 (2.7), C.R.S., though not legal insanity may be offered in a proper case as bearing upon the capacity of the accused to form the culpable mental state which is an element of the offense charged.
- An intention to assert the affirmative defense of impaired mental condition shall be made pursuant to section 16-8-103.5, C.R.S.
- When the affirmative defense of impaired mental condition has been raised, the jury will be given special verdict forms containing interrogatories. The trier of fact shall decide first the question of guilt as to felony charges which are before the court. If the trier of fact concludes that guilt has been proven beyond a reasonable doubt as to one or more of the felony charges submitted for consideration, the special interrogatories shall not be answered. Upon completion of its deliberations on the felony charges as previously set forth in this subsection (3), the trier of fact shall consider any other charges before the court in a similar manner; except that it shall not answer the special interrogatories regarding such charges if it has previously found guilt beyond a reasonable doubt with respect to one or more felony charges. The interrogatories shall provide for specific findings of the jury with respect to the affirmative defense of impaired mental condition in accordance with the Colorado rules of criminal procedure. When the court sits as the trier of fact, it shall enter appropriate specific findings with respect to the affirmative defense of impaired mental condition. If the trier of fact finds that the defendant is not guilty by reason of the affirmative defense of impaired mental condition, the court shall commit the defendant to the department of human services pursuant to section 16-8-103.5 (5), C.R.S.
- This section shall apply to offenses committed before July 1, 1995.
Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-903. L. 83: Entire section amended, p. 677, § 11, effective July 1. L. 94: (3) amended, p. 2654, § 136, effective July 1. L. 96: (4) added, p. 5, § 5, effective January 31.
Cross references: (1) For affirmative defenses generally, see §§ 18-1-407, 18-1-710, and 18-1-805; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 to 18 of this title 18.
(2) For the legislative declaration contained in the 1994 act amending subsection (3), see section 1 of chapter 345, Session Laws of Colorado 1994.
ANNOTATION
Law reviews. For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981). For article, "Trauma, Crime and the Affirmative Defense", see 11 Colo. Law. 2401 (1982). For article, "Insanity Defense Reform", see 11 Colo. Law. 3006 (1982). For article, "Checklists to Evaluate Vietnam Vet Stress Disorders", see 12 Colo. Law. 273 (1983).
Limitation of defense to specific intent crimes constitutional. Former section which limited the affirmative defense of impaired mental condition to specific intent crimes was a reasonable exercise of legislative power and did not infringe upon a defendant's due process protections. People v. Morgan, 637 P.2d 338 (Colo. 1981).
Procedure for submitting defense of impaired mental condition to jury does not violate due process. This section does not prohibit the jury from considering the affirmative defense of impaired mental condition individually with respect to each charge, and instructions requiring such consideration are proper. People v. Collins, 752 P.2d 93 (Colo. 1988).
Former section was premised on the proposition that a mental disease or defect may be less than legal insanity but nonetheless sufficient to negate the requisite mens rea of specific intent. Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983).
No presumption of culpability nor derogation of due process rights. Former section neither created a presumption of culpability for general intent crimes nor derogated an accused's due process right to prosecutorial proof of guilt beyond a reasonable doubt. People v. Gallegos, 628 P.2d 999 (Colo. 1981).
General assembly may establish statutory constituents of criminal culpability. The constitutional mandate requiring the prosecution to establish all essential elements of a crime beyond a reasonable doubt does not impair the general assembly's competence to establish the statutory constituents of criminal culpability for various offenses and to formulate particular rules of justification or excuse for acts that otherwise might be criminally punishable. People v. Ledman, 622 P.2d 534 (Colo. 1981) (decided under former section).
Evidence not restricted to specific intent crimes. Former section did not restrict evidence of impaired mental condition to specific intent crimes. Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983).
Mental impairment evidence is evidence of a mental disease or defect which affects the defendant's cognitive or volitional faculties to the point of rendering him incapable of entertaining the mens rea for the crime charged against him. Hendershott v. People, 653 P.2d 385 ( Colo. 1982 ), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983); People v. Aragon, 653 P.2d 715 ( Colo. 1982 ) (decided under former section).
Issue of responsibility due to an impaired mental condition is an affirmative defense. People v. Ledman, 622 P.2d 534 (Colo. 1981).
Unless prosecution raises mental condition issue, defendant must present evidence. Unless the prosecution's evidence raises the issue involving the defendant's impaired mental condition, the defendant must present some credible evidence to raise it. People v. Ledman, 622 P.2d 534 (Colo. 1981) (decided under former section).
Former section did not require evidence of any psychiatric abnormality or independent testimony to analyze the effect of a blow on the defendant's mental state. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980).
Once mental impairment is raised, prosecution must prove defendant's guilt beyond a reasonable doubt. Once the issue of the defendant's impaired mental condition is raised, the prosecution must prove beyond a reasonable doubt the guilt of the defendant as to that issue -- the defendant's capacity to form the requisite intent -- as well as all other elements of the offense. People v. Ledman, 622 P.2d 534 (Colo. 1981) (decided under former section).
Instruction on mental condition required if any evidence tends to establish impairment. An instruction on impaired mental condition is required if there is any evidence tending to establish that a blow to the defendant's head impaired his mental condition sufficiently to preclude formation of a conscious objective to cause the victim's death. People v. Delaney, 44 Colo. App. 366, 620 P.2d 44 (1980) (decided under former section).
No affirmative defense to second degree murder. Under former section, the affirmative defense of diminished responsibility due to impaired mental condition was not an affirmative defense to the general intent crime of second degree murder. People v. Gallegos, 628 P.2d 999 (Colo. 1981).
Applied in People v. Cornelison, 192 Colo. 337 , 559 P.2d 1102 (1977); People v. Stitt, 40 Colo. App. 355, 575 P.2d 446 (1978); People v. Campbell, 196 Colo. 390 , 589 P.2d 1360 (1978); People v. Thompson, 197 Colo. 299 , 592 P.2d 803 (1979); People v. Mann, 646 P.2d 352 ( Colo. 1982 ).
18-1-804. Intoxication.
- Intoxication of the accused is not a defense to a criminal charge, except as provided in subsection (3) of this section, but in any prosecution for an offense, evidence of intoxication of the defendant may be offered by the defendant when it is relevant to negative the existence of a specific intent if such intent is an element of the crime charged.
- Intoxication does not, in itself, constitute mental disease or defect within the meaning of section 18-1-802.
- A person is not criminally responsible for his conduct if, by reason of intoxication that is not self-induced at the time he acts, he lacks capacity to conform his conduct to the requirements of the law.
- "Intoxication", as used in this section means a disturbance of mental or physical capacities resulting from the introduction of any substance into the body.
- "Self-induced intoxication" means intoxication caused by substances which the defendant knows or ought to know have the tendency to cause intoxication and which he knowingly introduced or allowed to be introduced into his body, unless they were introduced pursuant to medical advice or under circumstances that would afford a defense to a charge of crime.
Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-904.
ANNOTATION
Law reviews. For article, "Mens Rea and the Colorado Criminal Code", see 52 U. Colo. L. Rev. 167 (1981).
Annotator's note. Since § 18-1-804 is similar to former § 40-1-9, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.
This section is declaratory of the common law. Brennan v. People, 37 Colo. 256 , 86 P. 79 (1906); Watkins v. People, 158 Colo. 485 , 408 P.2d 425 (1965).
Involuntary intoxication and insanity are legally separate and distinct defenses with significantly distinct consequences. People v. Garcia, 113 P.3d 775 (Colo. 2005).
The accountability of one who becomes drunk voluntarily is defined by this section. Watkins v. People, 158 Colo. 485 , 408 P.2d 425 (1965).
Intoxication is not an excuse for crime. Brennan v. People, 37 Colo. 256 , 86 P. 79 (1906); Martinez v. People, 172 Colo. 82 , 470 P.2d 26 (1970); Roybal v. People, 177 Colo. 144 , 493 P.2d 9 (1972).
This section provides that drunkenness will not be an excuse for any crime where only the general intent is necessary for its commission. Watkins v. People, 158 Colo. 485 , 408 P.2d 425 (1965).
Impaired mental state resulting from voluntary intoxication is not a defense to a general intent crime. People v. Roark, 643 P.2d 756 (Colo. 1982).
The mental culpability requirement of both second-degree kidnapping and first-degree sexual assault is "knowingly"; therefore, they are, by statutory definition, general intent crimes and voluntary intoxication is not a defense to either crime. People v. Vigil, 43 Colo. App. 121, 602 P.2d 884 (1979).
Voluntary intoxication may serve to establish an affirmative defense to specific intent crimes. People v. Barnhart, 638 P.2d 814 (Colo. App. 1981) (disapproved of by supreme court in People v. Harlan, 8 P.3d 448 ( Colo. 2000 )).
Voluntary intoxication does not constitute an affirmative defense. To the extent that prior decisions indicate otherwise, they are disapproved. People v. Harlan, 8 P.3d 448 ( Colo. 2000 ); People v. Lucas, 232 P.3d 155 (Colo. App. 2009).
A criminal defendant who maintains his or her innocence at trial is not automatically barred from seeking jury instructions for a voluntary intoxication defense. If an instruction is given in that case, there must be a rational basis for it in the evidence presented at trial. After a review of the record, there was no rational basis in the evidence for the voluntary intoxication instruction. Brown v. People, 239 P.3d 764 (Colo. 2010).
Claim of innocence does not disentitle defendant to voluntary intoxication offense. The instruction, however, must be supported by evidence at trial. There was no error in failing to instruct the jury on voluntary intoxication because there was no evidence that defendant was intoxicated while committing the crime. Defendant's testimony that he passed out drunk would have made it physically impossible for him to commit the offense. People v. Brown, 218 P.3d 733 (Colo. App. 2009), aff'd, 239 P.3d 764 ( Colo. 2010 ).
Subsection (1) is an evidentiary rule permitting the introduction of evidence of voluntary intoxication to negate the requisite specific intent of the charged offense. People v. Harlan, 8 P.3d 448 ( Colo. 2000 ); People v. Lucas, 232 P.3d 155 (Colo. App. 2009).
"After deliberation" is part of the culpable mental state required by first degree murder and may be negated by evidence of voluntary intoxication. People v. Miller, 113 P.3d 743 (Colo. 2005).
Use of term "negate" instead of "negative" in jury instruction concerning voluntary intoxication and specific intent not erroneous. Although "negative" is the term contained in subsection (1), the two terms may be used interchangeably in this context. People v. Souva, 141 P.3d 845 (Colo. App. 2005).
Section applicable in analysis of "voluntary act". This section applies not only to the mental state of a defendant in general intent crimes but is also applicable in the analysis of a "voluntary act", as that phrase is used in the definition of criminal liability in § 18-1-502. People v. Huskey, 624 P.2d 899 (Colo. App. 1980).
Intoxication does not negate culpability element of "knowingly". Evidence of self-induced intoxication is not admissible to negate the culpability element of "knowingly". People v. Aragon, 653 P.2d 715 ( Colo. 1982 ); People v. Breland, 728 P.2d 763 (Colo. App. 1986).
Trial court did not err in instructing the jury that it should not consider evidence of intoxication in determining whether the prosecution had proved the mental state of knowingly beyond a reasonable doubt. People v. Vanrees, 80 P.3d 840 (Colo. App. 2003), rev'd on other grounds, 125 P.3d 403 ( Colo. 2005 ).
If evidence of intoxication is presented at trial and the jury is given an instruction on the effect of the evidence, the instruction must incorporate the complete provision in subsection (1) not just the first clause. People v. Vigil, 104 P.3d 258 (Colo. App. 2004).
Consumption of heroin by an addict causes self-induced, not involuntary, intoxication. Tacorante v. People, 624 P.2d 1324 (Colo. 1981).
Voluntary intoxication sufficient to support general intent for crime. One who voluntarily drinks himself into unconsciousness intends whatever the foreseeable consequences or inevitable results of such intoxication are, and that intent is sufficient to supply general intent for second degree murder. Watkins v. People, 158 Colo. 485 , 408 P.2d 425 (1965).
Alcohol idiosyncratic intoxication not a defense to general intent crime because, although the result of the ingestion of alcohol may be more severe, the ingestion is still voluntary. People v. Matthews, 717 P.2d 970 (Colo. App. 1985).
"Settled insanity" arising from the long-term use of intoxicants cannot be maintained as a defense. The settled insanity doctrine conflicts with the state's statutory scheme regarding insanity and self-induced intoxication. Bieber v. People, 856 P.2d 811 (Colo. 1993), cert. denied, 510 U.S. 1054, 114 S. Ct. 716, 126 L. Ed. 2d 680 (1994).
Voluntary intoxication not to be considered as a defense or mitigating factor to the crime of extreme indifference murder. Voluntary intoxication only a defense to specific intent crimes such as homicide with deliberation. Extreme indifference murder requires only that defendant have the general intent to act "knowingly". People v. Zekany, 833 P.2d 774 (Colo. App. 1991); People v. Harlan, 8 P.3d 448 ( Colo. 2000 ).
Or to any other crime having as an element the mental state of "knowingly" or "recklessly". People v. Quintana, 996 P.2d 146 (Colo. App. 1998).
It is admissible to show absence of specific intent. When a particular intent forms the gist of the offense, as distinguished from the intent necessarily entering into every crime, and is made to depend on the state and condition of the mind of the accused at the time with reference to acts committed, intoxication, as a fact affecting the control of the mind, is proper for the consideration of the jury in determining whether the accused was capable of entertaining the positive and particular intent requisite to make out the offense. Brennan v. People, 37 Colo. 256 , 86 P. 79 (1906); Martinez v. People, 172 Colo. 82 , 470 P.2d 26 (1970).
Voluntary drunkenness is no legal excuse for a crime perpetrated under the influence of intoxicating liquor unless its effect is to destroy the ability of the accused to form a specific intent, the existence of which is an element of the offense charged. Dolan v. People, 168 Colo. 19 , 449 P.2d 828 (1969).
Drunkenness can be considered only as bearing upon the ability of a defendant to form the intent necessary to commit the crime charged. Roybal v. People, 177 Colo. 144 , 493 P.2d 9 (1972).
The actor's intent is an element of the offense of escape and defendant is entitled to introduce evidence to the effect that he was too drunk to form the state of mind required for the commission of the offense. Gallegos v. People, 159 Colo. 379 , 411 P.2d 956 (1966).
Under subsection (1), a defendant's voluntary intoxication may be evidence of his inability to entertain the specific intent required for conviction of second-degree murder. People v. Cornelison, 192 Colo. 337 , 559 P.2d 1102 (1977); People v. Sepeda, 196 Colo. 13 , 581 P.2d 723 (1978).
And in homicide cases to show lesser offense. For the purposes of the defense in a trial for homicide, insanity, intoxication, or any other fact which tends to prove that the prisoner was incapable of deliberation was competent evidence for the jury to weigh. Intoxication is admissible in such cases, not as an excuse for crime, not in mitigation of punishment, but as tending to show that the lesser and not the greater offense was in fact committed. Brennan v. People, 37 Colo. 256, 86 P. 79 (1906).
It is only because of the specific intent required for first degree murder that a voluntary drunkenness is an excuse even for that crime. Watkins v. People, 158 Colo. 485 , 408 P.2d 425 (1965).
Limitation on use of defense of voluntary intoxication. The policies adopted by the general assembly in refusing to permit a defense of voluntary intoxication in general intent crimes, defined in the criminal code, apply with equal force to general intent narcotics violation crimes, under part 3 of article 22, title 12. People v. Harfmann, 633 P.2d 500 (Colo. App. 1981).
Diminished responsibility due to self-induced intoxication is not a defense to murder in the second degree. People v. Vasquez, 148 P.3d 326 (Colo. App. 2006).
Self-induced intoxication involves moral culpability. Self-induced intoxication, by its very nature, involves a degree of moral culpability. The moral blameworthiness lies in the voluntary impairment of one's mental faculties with knowledge that the resulting condition is a source of potential danger to others. Hendershott v. People, 653 P.2d 385 (Colo. 1982), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983).
But involuntary intoxication does not. Involuntary intoxication, in contrast, is without moral culpability and, for this reason, is a complete defense to all crimes. Hendershott v. People, 653 P.2d 385 ( Colo. 1982 ), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983); People v. Turner, 680 P.2d 1290 (Colo. App. 1983).
Involuntary intoxication as an affirmative defense. Where the defendant presented evidence that he was unaware of the effect of ingesting excessive doses of a prescribed drug, it is reversible error not to submit that issue to the jury. People v. Turner, 680 P.2d 1290 (Colo. App. 1983).
A person is involuntarily intoxicated when he or she takes a substance pursuant to medical advice and does not know that he or she is ingesting an intoxicant or ingests a substance which is not known to be an intoxicating substance. People v. Low, 732 P.2d 622 ( Colo. 1987 ); People v. Garcia, 113 P.3d 775 ( Colo. 2005 ).
The medical condition of insulin-induced hypoglycemia may, depending on the particular facts and circumstances involved, constitute the affirmative defense of involuntary intoxication. People v. Garcia, 113 P.3d 775 (Colo. 2005).
Evidence held not to show excuse within terms of this section. Seiwald v. People, 66 Colo. 332 , 182 P. 20 (1919); Nieto v. People, 152 Colo. 526 , 383 P.2d 321 (1963).
Prosecution's involuntary intoxication instruction lessened the prosecution's burden of proof. The instruction asked whether defendant's intoxication was self-induced without clarifying that the people bore the burden of disproving involuntary intoxication beyond a reasonable doubt. The effect of the instruction was to tell the jury not to consider the people's burden of proof until after it first decided whether defendant's intoxication was self-induced. People v. Sabell, 2018 COA 85 , 452 P.3d 91.
Evidence of addiction not sufficient to support a finding that defendant's drug use was involuntary, therefore defendant could not avail himself of the defense of involuntary intoxication. People v. Grenier, 200 P.3d 1062 (Colo. App. 2008).
Question for jury. Where there was evidence tending to prove drunkenness, it was for the jury to determine whether the defendant was so intoxicated as to be unable to form the deliberate intent necessary. Martinez v. People, 172 Colo. 82 , 470 P.2d 26 (1970).
While intoxication may be relevant to a determination of whether the defendant did form or had the capacity to form the requisite specific intent, the issue of intoxication is one for the jury. People v. White, 191 Colo. 353 , 553 P.2d 68 (1976).
Jury decision on intoxication affirmed. Where the jury was properly instructed on specific intent and on defendant's affirmative defense of intoxication and where evidence is sufficient to support the jury's conclusion that defendant was not too intoxicated to form a specific intent to commit a crime that decision must be affirmed. People v. Barnhart, 638 P.2d 814 (Colo. App. 1981).
In order to warrant submission of the defense of involuntary intoxication to the jury, the defendant must introduce some credible evidence of involuntary intoxication. People v. Somerville, 703 P.2d 615 (Colo. App. 1985).
Requested instructions covered by given instructions. There is no error in the refusal of the trial court to give a requested instruction as to drunkenness when the law therein contained is fully covered by the instructions given. McPhee v. People, 105 Colo. 539 , 100 P.2d 148 (1940), distinguishing Brennan v. People, 37 Colo. 256 , 86 P. 79 (1906).
Court may be required to give instruction. Under some circumstances, a court's failure to instruct sua sponte on intoxication may result in reversible error. People v. Mattas, 645 P.2d 254 (Colo. 1982).
The district court committed reversible error in refusing to instruct the jury on defendant's affirmative defense of voluntary intoxication as allowed by this section in a prosecution of second-degree murder. People v. Cornelison, 192 Colo. 337 , 559 P.2d 1102 (1977).
Trial court's failure to instruct the jury that voluntary intoxication may apply to sexual assault on a child does not constitute plain error for there is doubt whether the issue is yet settled. People v. O'Connell, 134 P.3d 460 (Colo. App. 2005).
The trial court properly instructed the jury that "any mental illness suffered by defendant is not a defense in this case". Defendant's mental illness does not support the defense of involuntary intoxication since the defense of involuntary intoxication involves a temporary condition, and bipolar is not a temporary condition. Defendant's bipolar condition would have provided evidence for an insanity defense, but defendant did not plead insanity, which requires a special pleading. Therefore, the court properly instructed the jury that mental illness was not a defense in this case. People v. Sommers, 200 P.3d 1089 (Colo. App. 2008).
The term "substance" excludes viruses as a matter of law, and, therefore, defendant is barred from using the affirmative defense of involuntary intoxication. People v. Voth, 2013 CO 61, 312 P.3d 144.
Applied in People v. Norwood, 37 Colo. App. 157, 547 P.2d 273 (1975); People v. Lundborg, 39 Colo. App. 498, 570 P.2d 1303 (1977); People v. Thompson, 197 Colo. 299 , 592 P.2d 803 (1979); People v. DelGuidice, 199 Colo. 41 , 606 P.2d 840 (1979); People v. Gallegos, 628 P.2d 999 ( Colo. 1981 ); People v. Frysig 628 P.2d 1004 ( Colo. 1981 ); People v. Brown, 632 P.2d 1025 (Colo. 1981); People v. Shaw, 646 P.2d 375 ( Colo. 1982 ); People v. Bartowsheski, 661 P.2d 235 ( Colo. 1983 ); People v. Rivers, 727 P.2d 394 (Colo. App. 1986); People v. Low, 732 P.2d 622 ( Colo. 1987 ).
18-1-805. Responsibility - affirmative defense.
The issue of responsibility under sections 18-1-801 to 18-1-804 is an affirmative defense.
Source: L. 71: R&RE, p. 412, § 1. C.R.S. 1963: § 40-1-905.
Cross references: For other provisions concerning affirmative defenses generally, see §§ 18-1-407 and 18-1-710; for affirmative defenses to particular crimes, see specific criminal provisions in articles 2 to 18 of this title 18.
ANNOTATION
Law reviews. For article, "Trauma, Crime and the Affirmative Defense", see 11 Colo. Law. 2401 (1982). For article, "Checklists to Evaluate Vietnam Vet Stress Disorders", see 12 Colo. Law. 273 (1983).
Applied in People v. Cornelison, 192 Colo. 337 , 559 P.2d 1102 (1977); People v. Gallegos, 628 P.2d 999 ( Colo. 1981 ); Hendershott v. People, 653 P.2d 385 ( Colo. 1982 ), cert. denied, 459 U.S. 1225, 103 S. Ct. 1232, 75 L. Ed. 2d 466 (1983).
PART 9 DEFINITIONS
18-1-901. Definitions.
- Definitions set forth in any section of this title apply wherever the same term is used in the same sense in another section of this title unless the definition is specifically limited or the context indicates that it is inapplicable.
- The terms defined in section 18-1-104 and in section 18-1-501, as well as the terms defined in subsection (3) of this section, are terms which appear in various articles of this code. Other terms which need definition but which are used only in a limited number of sections of this code are defined in the particular section or article in which the terms appear.
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- "To aid" or "to assist" includes knowingly to give or lend money or extend credit to be used for, or to make possible or available, or to further the activity thus aided or assisted.
- "Benefit" means any gain or advantage to the beneficiary including any gain or advantage to another person pursuant to the desire or consent of the beneficiary.
- "Bodily injury" means physical pain, illness, or any impairment of physical or mental condition.
- "Deadly physical force" means force, the intended, natural, and probable consequence of which is to produce death, and which does, in fact, produce death.
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"Deadly weapon" means:
- A firearm, whether loaded or unloaded; or
- A knife, bludgeon, or any other weapon, device, instrument, material, or substance, whether animate or inanimate, that, in the manner it is used or intended to be used, is capable of producing death or serious bodily injury.
- and (IV) (Deleted by amendment, L. 2013.)
- "Deface" means to alter the appearance of something by removing, distorting, adding to, or covering all or a part of the thing.
- "Dwelling" means a building which is used, intended to be used, or usually used by a person for habitation.
- "Firearm" means any handgun, automatic, revolver, pistol, rifle, shotgun, or other instrument or device capable or intended to be capable of discharging bullets, cartridges, or other explosive charges.
- "Gender identity" and "gender expression" mean a person's gender-related identity and gender-related appearance or behavior whether or not that gender-related identity, appearance, or behavior is associated with the person's assigned sex at birth.
- "Government" includes the United States, any state, county, municipality, or other political unit, any branch, department, agency, or subdivision of any of the foregoing, and any corporation or other entity established by law to carry out any governmental function.
- "Governmental function" includes any activity which a public servant is legally authorized to undertake on behalf of government.
- "Motor vehicle" includes any self-propelled device by which persons or property may be moved, carried, or transported from one place to another by land, water, or air, except devices operated on rails, tracks, or cables fixed to the ground or supported by pylons, towers, or other structures.
- Repealed.
- "Pecuniary benefit" means benefit in the form of money, property, commercial interests, or anything else, the primary significance of which is economic gain.
- "Public place" means a place to which the public or a substantial number of the public has access, and includes but is not limited to highways, transportation facilities, schools, places of amusement, parks, playgrounds, and the common areas of public and private buildings and facilities.
- "Public servant" means any officer or employee of government, whether elected or appointed, and any person participating as an advisor, consultant, process server, or otherwise in performing a governmental function, but the term does not include witnesses.
- "Restorative justice practices" means practices that emphasize repairing the harm caused to victims and the community by offenses. Restorative justice practices include victim-offender conferences, family group conferences, circles, community conferences, and other similar victim-centered practices. Restorative justice practices are facilitated meetings attended voluntarily by the victim or victim's representatives, the victim's supporters, the offender, and the offender's supporters and may include community members. By engaging the parties to the offense in voluntary dialogue, restorative justice practices provide an opportunity for the offender to accept responsibility for the harm caused to the victim and community, promote victim healing, and enable the participants to agree on consequences to repair the harm, to the extent possible, including but not limited to apologies, community service, reparation, restoration, and counseling. Restorative justice practices may be used in addition to any other conditions, consequences, or sentence imposed by the court.
- "Serious bodily injury" means bodily injury which, either at the time of the actual injury or at a later time, involves a substantial risk of death, a substantial risk of serious permanent disfigurement, a substantial risk of protracted loss or impairment of the function of any part or organ of the body, or breaks, fractures, or burns of the second or third degree.
- "Tamper" means to interfere with something improperly, to meddle with it, or to make unwarranted alterations in its condition.
- "Thing of value" includes real property, tangible and intangible personal property, contract rights, choses in action, services, confidential information, medical records information, and any rights of use or enjoyment connected therewith.
- "Utility" means an enterprise which provides gas, sewer, electric, steam, water, transportation, or communication services, and includes any carrier, pipeline, transmitter, or source, whether publicly or privately owned or operated.
Source: L. 71: R&RE, p. 413, § 1. C.R.S. 1963: § 40-1-1001. L. 73: p. 534, § 1. L. 75: (3)(l) amended, p. 1315, § 8, effective July 14. L. 77: (3)(l) amended, p. 949, § 11, effective August 1. L. 79: (3)(l) amended, p. 1212, § 1, effective June 21; (3)(r) amended, p. 726, § 2, effective July 1; (3)(e) amended, p. 731, § 1, effective October 1. L. 80: (3)(l) amended, p. 531, § 1, effective January 29. L. 81: (3)(e) and (3)(l) amended, p. 972, §§ 2, 3, effective July 1. L. 82: (3)(l) amended, p. 384, § 2, effective April 30. L. 84: (3)(l) amended, p. 921, § 8, effective January 1, 1985. L. 85: (3)(p) amended, p. 664, § 1, effective March 1. L. 86: (3)(l) R&RE, p. 773, § 1, effective July 1; (3)(l)(III) amended, p. 1236, § 45, effective July 1. L. 87: (3)(l)(III) amended, p. 1489, § 1, effective April 30; (3)(l)(IV) amended, p. 817, § 20, effective October 1. L. 88: (3)(l)(II) and (3)(l)(IV) amended and (3)(l)(IV.5) added, pp. 664, 720, §§ 5, 1, effective July 1. L. 89: (3)(l)(II) and (3)(l)(III) amended, p. 888, § 1, effective April 6; (3)(l)(II) amended, p. 890, § 1, effective April 8. L. 90: (3)(l)(IV) and (3)(l)(IV.5)(C) amended, pp. 1613, 565, §§ 8, 38, effective July 1. L. 91: (3)(l)(III) amended, p. 1582, § 7, effective June 4; (3)(p) amended, p. 405, § 8, effective June 6. L. 92: (3)(l)(I), (3)(l)(II), and IP(3)(l)(IV.5) amended, p. 1097, § 6, effective March 6; (3)(l)(II) and (3)(l)(III) amended, p. 431, § 1, effective April 23. L. 93: (3)(l)(IV.5)(A) and (3)(l)(IV.5)(B) amended, p. 56, § 1, effective March 22; (3)(l)(II)(B) amended, p. 1776, § 38, effective June 6; (3)(l)(IV) amended, p. 1236, § 5, effective July 1. L. 94: (3)(l)(III) amended, p. 1731, § 11, effective May 31; (3)(l)(II)(A) amended, p. 1716, § 6, effective July 1; (3)(l)(IV) amended, p. 1311, § 11, effective July 1. L. 95: (3)(l)(II)(A) and (3)(l)(III) amended, p. 870, § 1, effective May 24; (3)(l)(III) amended, p. 109, § 1, effective July 1. L. 96: (3)(l)(III) and (3)(l)(IV) amended, p. 1004, § 10, effective May 23; (3)(l)(IV.5) and (3)(l)(V) amended and (3)(l)(IV.7) added, p. 1574, § 6, effective June 3; (3)(l)(IV) amended, p. 1691, § 24, effective January 1, 1997. L. 97: (3)(l)(III) amended, p. 301, § 12, effective July 1. L. 98: (3)(l)(III) amended, p. 1186, § 3, effective July 1. L. 99: (3)(l)(II)(A) and (3)(l)(III) amended, p. 424, § 4, effective April 30. L. 2000: (3)(l)(II)(A) amended, p. 42, § 1, effective March 10; (3)(l)(II)(A) amended, p. 230, § 4, effective March 29. L. 2002: (3)(l)(I) and (3)(l)(III) amended, p. 839, § 1, effective May 30; (3)(l)(II)(A) amended, p. 1212, § 8, effective June 3; (3)(l)(III) amended, p. 71, § 4, effective August 7; (3)(l)(III) amended, p. 1511, § 181, effective October 1. L. 2003: (3)(l) repealed, p. 1605, § 1, effective August 6. L. 2011: (3)(o.5) added, (HB 11-1032), ch. 296, p. 1402, § 6, effective August 10. L. 2013: (3)(e) amended, (HB 13-1043), ch. 39, p. 110, § 1, effective March 15; (3)(o.5) amended, (HB 13-1254), ch. 341, p. 1981, § 1, effective August 7. L. 2020: (3)(h.5) added, (SB 20-221), ch. 279, p. 1368, § 5, effective July 13.
Editor's note: Amendments to subsection (3)(l)(II) in House Bill 89-1236 and Senate Bill 89-66 were harmonized. Amendments to subsection (3)(l)(II) in House Bill 92-1192 and House Bill 92-1276 were harmonized. Amendments to subsection (3)(l)(III) in House Bill 95-1087 and House Bill 95-1280 were harmonized. Amendments to subsection (3)(l)(IV) in Senate Bill 96-176 and House Bill 96-1005 were harmonized, effective January 1, 1997. Amendments to subsection (3)(l)(II)(A) in Senate Bill 00-077 and House Bill 00-1421 were harmonized. Amendments to subsection (3)(l)(III) by House Bill 02-1313, House Bill 02-1046, and Senate Bill 02-005 were harmonized.
Cross references: For the legislative declaration contained in the 1992 act amending subsections (3)(l)(I), (3)(l)(II), and IP(3)(l)(IV.5), see section 12 of chapter 167, Session Laws of Colorado 1992. For the legislative declaration contained in the 2002 act amending subsection (3)(l)(III), see section 1 of chapter 318, Session Laws of Colorado 2002. For the legislative declaration in SB 20-221, see section 1 of chapter 279, Session Laws of Colorado 2020.
ANNOTATION
Law reviews. For article, "The Definition of 'Deadly Weapon' Under the Colorado Criminal Code", see 15 Colo. Law. 1663 (1986).
The term "serious bodily injury" is not facially unconstitutionally vague. Defendant's challenge that "serious bodily injury" included subjective undefined terms making it constitutionally infirm did not show the term was so vague that a person of ordinary intelligence must guess at its meaning and may differ as to its application. The term was also constitutional as applied to the defendant. People v. Summitt, 104 P.3d 232 (Colo. App. 2004), aff'd in part and rev'd in part on other grounds, 132 P.3d 320 ( Colo. 2006 ).
The terms "serious bodily injury" and "bodily injury" do not suffer from an equal protection problem, because they only overlap if serious bodily injury is given an unreasonably broad interpretation. People v. Summitt, 104 P.3d 232 (Colo. App. 2004), aff'd in part and rev'd in part on other grounds, 132 P.3d 320 ( Colo. 2006 ).
Applicability of definition "to aid". The general definition of "to aid" in subsection (3)(a) is applicable to the definition of professional gambling in § 18-10-102(8) . People v. Wheatridge Poker Club, 194 Colo. 15 , 569 P.2d 324 (1977).
Deadly weapon. A knife is a deadly weapon, as is any weapon which is likely to produce death or great bodily injury from the manner in which it is used. Armijo v. People, 134 Colo. 344 , 304 P.2d 633 (1956).
Whether an object is a deadly weapon does not depend upon the ultimate result of the object's use. People v. Saleh, 45 P.3d 1272 ( Colo. 2002 ); People v. Buell, 2017 COA 148 , 442 P.3d 961, aff'd on other grounds, 2019 CO 27, 439 P.3d 857.
Even if a knife blade was dull, because of its size, four to five inches, the jury could have reasonably concluded that it was capable of producing serious bodily injury. People v. Buell, 2017 COA 148 , 442 P.3d 961, aff'd on other grounds, 2019 CO 27, 439 P.3d 857.
Ordinarily hands or fists are not means likely to produce death unless used in such manner and under such circumstances as are reasonably calculated to produce death. Smith v. People, 142 Colo. 523 , 351 P.2d 457 (1960).
A dangerous weapon is an article of offense which in its intended or easily adaptable use is likely to produce death or serious bodily injury. Hutton v. People, 156 Colo. 334 , 398 P.2d 973 (1965).
A simulated pistol, not per se dangerous, may become so factually because of its substance, size, and weight as a bludgeon wielded within striking distance of the person to be robbed. Hutton v. People, 156 Colo. 334 , 398 P.2d 973 (1965).
A quart bottle of whiskey is not a bludgeon but it may satisfy the statutory test defining a deadly weapon as a "device, instrument, material, or substance, . . . which in the manner it is used . . . is capable of producing death or serious bodily injury". Bowers v. People, 617 P.2d 560 (Colo. 1980) (decided prior to 1981 amendment to subsection (3)(e)).
Under the felony menacing statute an unloaded firearm is a deadly weapon. People v. McPherson, 200 Colo. 429 , 619 P.2d 38 (1980) (decided prior to 1981 amendment to subsection (3)(e)).
A fist may be considered a deadly weapon in circumstances where the manner of its use is capable of producing death or serious bodily injury. People v. Pennese, 830 P.2d 1085 (Colo. App. 1991) (declining to follow People v. Ross, 819 P.2d 507 (Colo. App. 1991)).
Fists may be a deadly weapon if in the manner they are used or intended to be used they are capable of producing death or serious bodily injury. Defendant used his fist in a manner capable of producing death or serious bodily injury where defendant admitted striking the victim, as a result of the blow, the victim was admitted to a hospital and treated for major trauma, and the treating physician testified that the victim sustained multiple facial fractures and was at great risk of sustaining severe permanent damage. People v. Ross, 831 P.2d 1310 (Colo. 1992).
In some circumstances, fists may be considered a deadly weapon based on facts at issue, and statute that specifies that a deadly weapon may be any device, material, or substance which in the manner of its use is capable of producing death or serious bodily injury. People v. Pennese, 830 P.2d 1085 (Colo. App. 1991).
BB gun can be a deadly weapon. Testimony that if a person hit with a BB in a vulnerable area of the body, such as the eyes, the BB could cause serious bodily injury was sufficient to prove that the BB gun was a deadly weapon. People in Interest of J.R., 867 P.2d 125 (Colo. App. 1993).
The issue in evaluating whether a device is a deadly weapon is whether, in the manner it was used, the device could have caused death or serious bodily injury. The fact that in this particular case death or serious bodily injury did not occur is irrelevant. People in Interest of J.R., 867 P.2d 125 (Colo. App. 1993).
To be a deadly weapon, an object must be used in connection with assaultive conduct directed toward an intended opponent or adversary. People v. Esparza-Treto, 282 P.3d 471 (Colo. App. 2011).
Any object, including a foot, may be a deadly weapon when used to start an unbroken, foreseeable chain of events capable of producing serious bodily injury or death. The object does not have to be the direct cause of the injury. Where defendant kicked the victim in the back, causing her to fall down a flight of stairs, it was irrelevant that her injuries were caused by the stairs rather than the defendant's foot. The defendant's foot qualified as a deadly weapon because he used it to set in motion a sequence of events causing a serious bodily injury. People v. Saleh, 45 P.3d 1272 (Colo. 2002).
Where there is doubt as to whether an article is a deadly weapon, the question should be left to the jury under an instruction as to what constitutes a deadly weapon. J.D.C. v. District Court 18th Jud. Dist., 910 P.2d 684 (Colo. 1996).
Question of whether automobile constitutes a deadly weapon in the context of the case is a factual question to be determined by a factfinder. J.D.C. v. District Court 18th Jud. Dist., 910 P.2d 684 (Colo. 1996).
The intention to cause death or serious injury is not part of the definition of a deadly weapon; rather, this section requires only that in its actual or intended use the object is capable of producing death or serious injury. Miller v. District Court, 193 Colo. 404 , 566 P.2d 1063 (1977).
The term "intended to be used" in the deadly weapon definition refers to the defendant's, not the manufacturer's, intent. The statute does not classify a firearm as a deadly weapon per se. Montez v. People, 2012 CO 6, 269 P.3d 1228.
Subsection (3)(e) prescribes test to determine whether certain items constitute deadly weapons. Subsection (3)(e) expressly prescribes a test to determine whether items other than firearms, knives, and bludgeons are deadly weapons, based not on the intrinsic nature of the items but upon their use or intended use. Bowers v. People, 617 P.2d 560 (Colo. 1980) (decided prior to 1981 amendment to subsection (3)(e)).
A knife is not a deadly weapon per se. A knife is only a deadly weapon when it is used or intended to be used during the commission of another crime. People ex rel. J.W.T., 93 P.3d 580 (Colo. App. 2004).
Certain weapons deadly as matter of law. Certain weapons are by their very design and make so lethal in nature that a trial court should rule as a matter of law that they are deadly weapons. Other instruments or things, though perhaps not deadly weapons per se, are within the meaning of statutory provisions, depending upon the nature of the instrument and the manner in which the instrument or thing is used in accomplishing the assault. Grass v. People, 172 Colo. 223 , 471 P.2d 602 (1970).
Otherwise, nature of weapon question for jury. Whether an article used as a weapon is dangerous may be, because of its very character or the circumstances of its use, a matter of doubt, and in such case the question should be left to the jury under an instruction as to what constitutes a dangerous weapon. Hutton v. People, 156 Colo. 334 , 398 P.2d 973 (1965).
The trial court did not err in generally instructing the jury that a shoe was not in and of itself a deadly or dangerous weapon, and that in determining whether an instrument, not inherently deadly or dangerous, assumes the characteristics of a deadly weapon the jury should consider the nature of the instrument or thing, the manner of its use, the location on the body of the injuries inflicted, and the extent of such injuries. Grass v. People, 172 Colo. 223 , 471 P.2d 602 (1970).
Defendant not entitled to instruction on physical force other than deadly force when there was no evidence that defendant's use of force was anything other than deadly physical force. People v. Opana, 2017 CO 56, 395 P.3d 757.
There is an intent element in the consideration of "deadly" physical force. Since defendant's testimony created a dispute about whether he intended to produce death by use of force, defendant is entitled to self-defense instructions related to both ordinary physical force and deadly physical force. People v. Vasquez, 148 P.3d 326 (Colo. App. 2006).
Because deadly force requires death, courts should not instruct the jury on deadly physical force if the victim did not die. People v. Tardif, 2017 COA 136 , 433 P.3d 60.
"Dwelling" construed. The statutory definition of "dwelling" in this section comprehends an entire building. There is no room to exclude from the meaning of "dwelling" those parts of a residence that are not "usually used by a person for habitation". People v. Jiminez, 651 P.2d 395 (Colo. 1982).
A garage attached to a residence is part of a "dwelling" within the meaning of § 18-4-203 (2), burglary of a dwelling. People v. Jiminez, 651 P.2d 395 (Colo. 1982).
"Dwelling" encompasses the entire residential structure, including an attached garage, within the meaning of § 18-4-502, first degree criminal trespass. People v. Hanna, 981 P.2d 627 (Colo. App. 1998).
"[C]apable or intended to be capable" modifies only "other instrument or device" and, therefore, under subsection (3)(h), a pistol, no matter what its condition, no matter what a defendant's intent may be with respect to it, is a per se firearm. People v. O'Neal, 228 P.3d 211 (Colo. App. 2009).
Because subsection (3)(h) was enacted prior to § 2-4-214, the court must look to the rules of statutory construction in effect when subsection (3)(h) was enacted in 1971 and, therefore, it is appropriate to rely upon the last antecedent rule. People v. O'Neal, 228 P.3d 211 (Colo. App. 2009).
Under subsection (3)(h), handguns, automatics, revolvers, pistols, rifles, and shotguns qualify as per se firearms, without need of any further inquiry into whether they are capable or intended to be capable of discharging bullets, cartridges, or other explosive charges. People v. O'Neal, 228 P.3d 211 (Colo. App. 2009).
General definition of "government" in subsection (3)(i) is limited by subsection (1). Bailey v. People, 200 Colo. 549 , 617 P.2d 549 (1980).
Government includes urban renewal effort. The general definition of "government" in subsection (3)(i) includes corporations such as the Colorado Springs urban renewal effort. Bailey v. People, 200 Colo. 549 , 617 P.2d 549 (1980).
The method of transportation a person uses on a highway does not alter the fact that a person is on a highway, and therefore in a "public place". People v. Naranjo, 2015 COA 56 , 405 P.3d 279, rev'd on other grounds, 2017 CO 87, 401 P.3d 534.
Employee of the Colorado Springs urban renewal effort is not a "public servant" performing a "governmental function" on behalf of a "government" as defined in this section. Bailey v. People, 200 Colo. 549 , 617 P.2d 549 (1980).
And defendant cannot be convicted of bribing effort's employee. A defendant cannot be convicted of the bribery of a public servant under § 18-8-302 where the alleged public servant was an employee of the Colorado Springs urban renewal effort. Bailey v. People, 200 Colo. 549 , 617 P.2d 549 (1980).
A police officer is a public servant as defined in subsection (3)(o). People v. Sena, 2016 COA 161 , 395 P.3d 1148.
Difference between "serious bodily injury" and "bodily injury". At least one difference between "serious bodily injury" and "bodily injury" is that of degree. People v. Benjamin, 197 Colo. 188 , 591 P.2d 89 (1979).
Serious bodily injury. "Substantial risk" applies only to death, and not to permanent disfigurement or protracted loss or impairment of any part or organ of the body. People v. Sheldon, 198 Colo. 519 , 602 P.2d 869 (1979).
"Fractures" carries its common and ordinary meaning of "the breaking of hard tissue (as a bone, tooth, or cartilage)". Thus, fractures include fractured cartilage under the definition of serious bodily injury. People v. Jaramillo, 183 P.3d 665 (Colo. App. 2008).
Any break or fracture is sufficient to establish "serious bodily injury". The term "of the second or third degree" refers only to burns and not to breaks or fractures. People v. Daniels, 240 P.3d 409 (Colo. App. 2009).
"Protracted loss or impairment of the function of any part or organ of the body" is applied in People v. Brown, 677 P.2d 406 (Colo. App. 1983).
Determination that injury falls within the meaning of "serious bodily injury" must be made at the time of injury, not at the time of trial. People v. Thompson, 748 P.2d 793 (Colo. 1988).
Whether injury at the time it occurred involved a substantial risk of protracted loss or impairment of the function of any part or organ of the body is a question for the jury. People v. Thompson, 748 P.2d 793 (Colo. 1988).
The fact that a victim healed well and made a good recovery is not relevant to the determination that he suffered a serious bodily injury. People v. Rodriguez, 888 P.2d 278 (Colo. App. 1994).
Evidence sufficient to prove "serious bodily injury". Gunshot wounds to the leg that involve substantial risk of disfigurement and infection and require surgery satisfy "serious bodily injury". People v. Whittiker, 181 P.3d 264 (Colo. App. 2006).
Criminal code's definition of "bodily injury" not applicable to term as used in automobile insurance policy. Lampton v. United Servs. Auto. Ass'n, 835 P.2d 532 (Colo. App. 1992).
An apartment lease is a "thing of value" for purposes of this section and § 18-5-902. An apartment lease is both a "contract right" and a "right of use" of "real property". People v. Molina, 2017 CO 7, 388 P.3d 894.
When defendant used the last name and social security number of another person to obtain a lease, she committed identity theft. People v. Molina, 2017 CO 7, 388 P.3d 894.
Applied in People v. Rice, 37 Colo. App. 346, 551 P.2d 1081 (1976), rev'd on other grounds, 193 Colo. 270 , 565 P.2d 940 (1977); People v. Dominguez, 193 Colo. 468 , 568 P.2d 54 (1977); People v. Hines, 194 Colo. 331 , 572 P.2d 467 (1977); People v. Walters, 39 Colo. App. 119, 568 P.2d 61 (1977); People v. Marshall, 196 Colo. 381 , 586 P.2d 41 (1978); People v. Scott, 41 Colo. App. 66, 583 P.2d 939 (1978); People v. Bailey, 41 Colo. App. 252, 595 P.2d 252 (1978); People v. Brake, 196 Colo. 575 , 588 P.2d 869 (1979); City & County of Denver v. Waits, 197 Colo. 563 , 595 P.2d 248 (1979); People v. Myers, 198 Colo. 295 , 599 P.2d 891 (1979); People v. Noble, 635 P.2d 203 ( Colo. 1981 ); People v. Swanson, 638 P.2d 45 ( Colo. 1981 ); People v. Thatcher, 638 P.2d 760 (Colo. 1981); Stroup v. People, 656 P.2d 680 ( Colo. 1982 ); People v. Castro, 657 P.2d 932 ( Colo. 1983 ); People v. Reed, 695 P.2d 806 (Colo. App. 1985), cert. denied, 701 P.2d 603 ( Colo. 1985 ); People v. Manley, 707 P.2d 1021 (Colo. App. 1985); People v. Tyler, 728 P.2d 314 ( Colo. 1986 ).
PART 10 ORDERS AND PROCEEDINGS AGAINST DEFENDANT
Law reviews: For article, "1994 Legislature Strengthens Domestic Violence Protective Orders", see 23 Colo. Law. 2327 (1994); for article, "Dissolution of Marriage and Domestic Violence: Considerations for the Family Law Practitioner", see 37 Colo. Law. 43 (Oct. 2008).
18-1-1001. Protection order against defendant - definitions.
- There is hereby created a mandatory protection order against any person charged with a violation of any of the provisions of this title, which order shall remain in effect from the time that the person is advised of his or her rights at arraignment or the person's first appearance before the court and informed of such order until final disposition of the action. Such order shall restrain the person charged from harassing, molesting, intimidating, retaliating against, or tampering with any witness to or victim of the acts charged. The protection order issued pursuant to this section shall be on a standardized form prescribed by the judicial department and a copy shall be provided to the protected parties.
- At the time of arraignment or the person's first appearance before the court, the court shall inform the defendant of the protection order effective pursuant to this section and shall inform the defendant that a violation of such order is punishable by contempt.
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Nothing in this section precludes the defendant from applying to the court at any time for modification or dismissal of the protection order issued pursuant to this section or the district attorney from applying to the court at any time for further orders, additional provisions under the protection order, or modification or dismissal of the same. The trial court retains jurisdiction to enforce, modify, or dismiss the protection order until final disposition of the action. Upon motion of the district attorney or on the court's own motion for the protection of the alleged victim or witness, the court may, in cases involving domestic violence as defined in section 18-6-800.3 (1) and cases involving crimes listed in section 24-4.1-302, except those listed in subsections (1)(cc.5) and (1)(cc.6) of that section, enter any of the following further orders against the defendant:
- An order to vacate or stay away from the home of the alleged victim or witness and to stay away from any other location where the victim or witness is likely to be found;
- An order to refrain from contact or direct or indirect communication with the alleged victim or witness;
- An order prohibiting possession or control of firearms or other weapons;
- An order prohibiting possession or consumption of alcohol or controlled substances;
- An order prohibiting the taking, transferring, concealing, harming, disposing of, or threatening to harm an animal owned, possessed, leased, kept, or held by an alleged victim or witness; and
- Any other order the court deems appropriate to protect the safety of the alleged victim or witness.
- Any person failing to comply with a protection order issued pursuant to this section commits the crime of violation of a protection order and may be punished as provided in section 18-6-803.5.
- Before a defendant is released on bail pursuant to article 4 of title 16, C.R.S., the court shall, in cases involving domestic violence as defined in section 18-6-800.3 (1), in cases of stalking pursuant to section 18-3-602, or in cases involving unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., state the terms of the protection order issued pursuant to this section, including any additional provisions added pursuant to subsection (3) of this section, to the defendant on the record, and the court shall further require the defendant to acknowledge the protection order in court and in writing prior to release as a condition of any bond for the release of the defendant. The prosecuting attorney shall, in such domestic violence cases, stalking cases, or in cases involving unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., notify the alleged victim, the complainant, and the protected person of the order if such persons are not present at the time the protection order is issued.
- The defendant or, in cases involving domestic violence as defined in section 18-6-800.3 (1), in cases of stalking pursuant to section 18-3-602, or in cases involving unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., the prosecuting attorney may request a hearing before the court to modify the terms of a protection order issued pursuant to this section. Upon such a request, the court shall set a hearing and the prosecuting attorney shall send notice of the hearing to the defendant and the alleged victim. At the hearing the court shall review the terms of the protection order and any further orders entered and shall consider the modifications, if any, requested by the defendant or the prosecuting attorney.
- The duties of peace officers enforcing orders issued pursuant to this section shall be in accordance with section 18-6-803.5 and any rules adopted by the Colorado supreme court pursuant to said section.
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For purposes of this section:
- "Court" means the trial court or a designee of the trial court.
- "Protection order" shall include a restraining order entered pursuant to this section prior to July 1, 2003.
- "Until final disposition of the action" means until the case is dismissed, until the defendant is acquitted, or until the defendant completes his or her sentence. Any defendant sentenced to probation is deemed to have completed his or her sentence upon discharge from probation. A defendant sentenced to incarceration is deemed to have completed his or her sentence upon release from incarceration and discharge from parole supervision.
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When the court subjects a defendant to a mandatory protection order that qualifies as an order described in 18 U.S.C. sec. 922 (g)(8), the court, as part of such order:
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Shall order the defendant to:
- Refrain from possessing or purchasing any firearm or ammunition for the duration of the order; and
- Relinquish, for the duration of the order, any firearm or ammunition in the defendant's immediate possession or control or subject to the defendant's immediate possession or control; and
- May require that before the defendant is released from custody on bond, the defendant shall relinquish, for the duration of the order, any firearm or ammunition in the defendant's immediate possession or control or subject to the defendant's immediate possession or control.
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Shall order the defendant to:
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Upon issuance of an order pursuant to paragraph (a) of this subsection (9), the defendant shall relinquish any firearm or ammunition not more than twenty-four hours after being served with the order; except that a court may allow a defendant up to seventy-two hours to relinquish a firearm or up to five days to relinquish ammunition pursuant to this paragraph (b) if the defendant demonstrates to the satisfaction of the court that he or she is unable to comply within twenty-four hours. To satisfy this requirement, the defendant may:
- Sell or transfer possession of the firearm or ammunition to a federally licensed firearms dealer described in 18 U.S.C. sec. 923, as amended; except that this provision shall not be interpreted to require any federally licensed firearms dealer to purchase or accept possession of any firearm or ammunition;
- Arrange for the storage of the firearm or ammunition by a law enforcement agency; except that this provision shall not be interpreted to require any law enforcement agency to provide storage of firearms or ammunition for any person; or
- Sell or otherwise transfer the firearm or ammunition to a private party who may legally possess the firearm or ammunition; except that a defendant who sells or transfers a firearm pursuant to this subparagraph (III) shall satisfy all of the provisions of section 18-12-112, concerning private firearms transfers, including but not limited to the performance of a criminal background check of the transferee.
- If a defendant is unable to satisfy the provisions of paragraph (b) of this subsection (9) because he or she is incarcerated or otherwise held in the custody of a law enforcement agency, the court shall require the defendant to satisfy such provisions not more than twenty-four hours after his or her release from incarceration or custody or be held in contempt of court. Notwithstanding any provision of this paragraph (c), the court may, in its discretion, require the defendant to relinquish any firearm or ammunition in the defendant's immediate possession or control or subject to the defendant's immediate possession or control before the end of the defendant's incarceration. In such a case, a defendant's failure to relinquish a firearm or ammunition as required shall constitute contempt of court.
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A federally licensed firearms dealer who takes possession of a firearm or ammunition pursuant to this section shall issue a receipt to the defendant at the time of relinquishment. The federally licensed firearms dealer shall not return the firearm or ammunition to the defendant unless the dealer:
- Contacts the bureau to request that a background check of the defendant be performed; and
- Obtains approval of the transfer from the bureau after the performance of the background check.
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A local law enforcement agency may elect to store firearms or ammunition for persons pursuant to this subsection (9). If an agency so elects:
- The agency may charge a fee for such storage, the amount of which shall not exceed the direct and indirect costs incurred by the agency in providing such storage;
- The agency may establish policies for disposal of abandoned or stolen firearms or ammunition; and
- The agency shall issue a receipt to each defendant at the time the defendant relinquishes possession of a firearm or ammunition.
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If a local law enforcement agency elects to store firearms or ammunition for a defendant pursuant to this subsection (9), the law enforcement agency shall not return the firearm or ammunition to the defendant unless the agency:
- Contacts the bureau to request that a background check of the defendant be performed; and
- Obtains approval of the transfer from the bureau after the performance of the background check.
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- A law enforcement agency that elects to store a firearm or ammunition for a defendant pursuant to this subsection (9) may elect to cease storing the firearm or ammunition. A law enforcement agency that elects to cease storing a firearm or ammunition for a defendant shall notify the defendant of such decision and request that the defendant immediately make arrangements for the transfer of the possession of the firearm or ammunition to the defendant or, if the defendant is prohibited from possessing a firearm, to another person who is legally permitted to possess a firearm.
- If a law enforcement agency elects to cease storing a firearm or ammunition for a person and notifies the defendant as described in subparagraph (I) of this paragraph (g), the law enforcement agency may dispose of the firearm or ammunition if the defendant fails to make arrangements for the transfer of the firearm or ammunition and complete said transfer within ninety days of receiving such notification.
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If a defendant sells or otherwise transfers a firearm or ammunition to a private party who may legally possess the firearm or ammunition, as described in subparagraph (III) of paragraph (b) of this subsection (9), the defendant shall acquire:
- From the transferee, a written receipt acknowledging the transfer, which receipt shall be dated and signed by the defendant and the transferee; and
- From the licensed gun dealer who requests from the bureau a background check of the transferee, as described in section 18-12-112, a written statement of the results of the background check.
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Not more than three business days after the relinquishment, the defendant shall file a copy of the receipt issued pursuant to paragraph (d), (e), or (h) of this subsection (9) and, if applicable, the written statement of the results of a background check performed on the defendant as described in subparagraph (II) of paragraph (h) of this subsection (9), with the court as proof of the relinquishment. If a defendant fails to timely file a receipt or written statement as described in this paragraph (i):
- The failure constitutes a violation of the protection order pursuant to section 18-6-803.5 (1)(c); and
- The court shall issue a warrant for the defendant's arrest.
- In any subsequent prosecution for a violation of a protection order described in this paragraph (i), the court shall take judicial notice of the defendant's failure to file a receipt or written statement, which will constitute prima facie evidence of a violation of the protection order pursuant to section 18-6-803.5 (1)(c), C.R.S., and testimony of the clerk of the court or his or her deputy is not required.
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Not more than three business days after the relinquishment, the defendant shall file a copy of the receipt issued pursuant to paragraph (d), (e), or (h) of this subsection (9) and, if applicable, the written statement of the results of a background check performed on the defendant as described in subparagraph (II) of paragraph (h) of this subsection (9), with the court as proof of the relinquishment. If a defendant fails to timely file a receipt or written statement as described in this paragraph (i):
- Nothing in this subsection (9) shall be construed to limit a defendant's right to petition the court for dismissal of a protection order.
- A person subject to a mandatory protection order issued pursuant to this subsection (9) who possesses or attempts to purchase or receive a firearm or ammunition while the protection order is in effect violates the order pursuant to section 18-6-803.5 (1)(c).
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- A law enforcement agency that elects in good faith to not store a firearm or ammunition for a defendant pursuant to subsection (9)(b)(II) of this section shall not be held criminally or civilly liable for such election not to act.
- A law enforcement agency that returns possession of a firearm or ammunition to a defendant in good faith as permitted by paragraph (f) of this subsection (9) shall not be held criminally or civilly liable for such action.
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When the court subjects a defendant to a mandatory protection order that qualifies as an order described in 18 U.S.C. sec. 922 (g)(8), the court, as part of such order:
- The issuance of a protection order pursuant to this section does not preclude a court from issuing a protective order in a civil proceeding.
Source: L. 84: Entire part added, p. 500, § 3, effective July 1. L. 85: (1) and (2) amended, p. 617, § 10, effective July 1. L. 91: Entire section amended, p. 419, § 3, effective May 31. L. 94: (1) and (3) amended, p. 2023, § 3, effective June 3; (3) amended and (5) and (6) added, p. 2041, § 24, effective July 1; (1) amended and (7) added, p. 2009, § 6, effective January 1, 1995. L. 98: (1) and IP(3) amended and (8) added, p. 1442, § 28, effective July 1. L. 2003: (1), (2), IP(3), (4), (5), and (6) amended and (8)(a.5) added, pp. 1002, 1003, §§ 4, 5, effective July 1. L. 2011: IP(3), (3)(a), (3)(b), and (3)(e) amended, (HB 11-1267), ch. 273, p. 1234, § 1, effective June 2. L. 2012: (5) and (6) amended, (HB 12-1114), ch. 176, p. 632, § 3, effective May 11. L. 2013: (9) added, (SB 13-197), ch. 366, p. 2134, § 4, effective June 5; (8)(b) amended, (HB 13-1109), ch. 33, p. 79, § 1, effective August 7. L. 2015: (5) and (6) amended, (HB 15-1060), ch. 45, p. 112, § 2, effective March 20. L. 2018: (9)(l)(I) amended, (HB 18-1375), ch. 274, p. 1701, § 21, effective May 29; IP(3), (3)(d), and (3)(e) amended and (3)(f) and (10) added, (SB 18-060), ch. 50, p. 487, § 1, effective November 1.
Editor's note: Amendments to subsection (1) in House Bill 94-1092 and House Bill 94-1090 were harmonized. Amendments to subsection (3) in House Bill 94-1092 and House Bill 94-1253 were harmonized.
Cross references: (1) For protection orders against children under the "Colorado Children's Code", see § 19-2-707; for additional provisions concerning protection orders, see the "Colorado Victim and Witness Protection Act of 1984", part 7 of article 8 of this title 18.
(2) For the legislative declaration in the 2013 act adding subsection (9), see section 1 of chapter 366, Session Laws of Colorado 2013.
ANNOTATION
Classifying a violation of a criminal restraining order as a crime more serious than the offense of violating a domestic abuse restraining order does not violate equal protection of the laws. This section seeks to protect those who must present evidence in the criminal justice system while § 14-4-102 is designed to protect persons in a volatile domestic setting. People v. Brockelman, 862 P.2d 1040 (Colo. App. 1993).
The first two sentences of subsection (3), providing for broad authority to modify a mandatory protection order (MPO), also apply generally to every MPO issued in a title 18 case. This section read as a whole indicates that the specific conditions pertaining to domestic violence cases and certain victims' rights act cases are referenced in subsection (3) not as a restriction on that broad authority but rather to set out what conditions are subject to the special procedural requirements of subsections (5) and (6). People v. Yoder, 2016 COA 50 , 409 P.3d 430.
Dismissal of some charges, in the context of a plea of guilty to others, is not the dismissal of a "case" or "final disposition of the action" under subsection (8)(b). A single case may include several charges. Adding or dropping a single charge within a multi-charge case does not dispose of the case. People v. Sterns, 2013 COA 66 , 318 P.3d 535.
Thus, when the trial court dismissed a charge involving defendant's daughter, it did not thereby dispose of the action against defendant. The action continued pursuant to the plea agreement. Accordingly, the trial court's mandatory protection order properly included defendant's daughter. People v. Sterns, 2013 COA 66 , 318 P.3d 535.
Section 16-4-105 (1)(o) permits a court to designate persons to prepare information concerning the accused in order to assist the judge in deciding whether to order release on personal recognizance. Pursuant to this statutory authority, the judges of the first judicial district authorized the pretrial service officers, as bond commissioners, to implement the bond schedule of the district. Although the bond schedule did not address temporary restraining orders specifically, in cases involving allegations of domestic violence, the pretrial service officers, acting as bond commissioners, were expected to deliver to the defendant a temporary restraining order pursuant to this section. The court concluded that, as a matter of law, these are judicial acts integral to the judicial process and therefore are cloaked in absolute quasi-judicial immunity. Whitesel v. Sengenberger, 222 F.3d 861 (10th Cir. 2000).
18-1-1001.5. Protection order against defendant - transfer of wireless telephone service in domestic violence cases - definitions.
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In addition to the options described in section 18-1-1001 (3), upon a discretionary motion of the district attorney or on the court's own motion for the protection of an alleged victim or witness in a case involving domestic violence, as defined in section 18-6-800.3 (1), and cases involving crimes listed in section 24-4.1-302 (1), except those listed in subsections (1)(cc.5) and (1)(cc.6) of that section, the court may enter an order directing a wireless telephone service provider to transfer the financial responsibility for and rights to a wireless telephone number or numbers to the alleged victim or witness if the alleged victim or witness:
- Is not the account holder; and
- Proves by a preponderance of the evidence that the alleged victim or witness and any minor children in his or her care are the primary users of each wireless telephone number that will be ordered to be transferred by a court pursuant to this section.
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- An order transferring the financial responsibility for and rights to a wireless telephone number or numbers to an alleged victim or witness pursuant to this section must be a separate written order that is directed to the wireless telephone service provider.
- The order must list the name and billing telephone number of the account holder, the name and contact information of the alleged victim or witness to whom the telephone number or numbers will be transferred, and each telephone number to be transferred to the alleged victim or witness.
- The court shall ensure that the alleged victim's or witness's contact information is not provided to the account holder in proceedings held pursuant to this section.
- The order must be sent or delivered in person or electronically by the protected party to the wireless telephone service provider's registered agent.
- A wireless telephone service provider shall terminate the account holder's use of a telephone number that the court has ordered to be transferred to the alleged victim or witness pursuant to this section unless the wireless telephone service provider notifies the alleged victim or witness and the court within five business days after the wireless telephone service provider receives the order either that an account holder named in the order has terminated the account or that the requested transfer cannot be effectuated due to differences in network technology that prevent functionality of a device on the network or due to geographic limitations on network or service availability.
- A transfer ordered pursuant to this section does not preclude a wireless telephone service provider from applying any routine and customary requirements for account establishment to the alleged victim or witness as part of the transfer of financial responsibility for a wireless telephone number or numbers and any devices attached to the number or numbers, including, without limitation, identification, financial information, and customer preferences.
- A wireless telephone service provider is immune from civil liability for complying with an order to transfer a telephone number pursuant to this section.
- The issuance of a protection order pursuant to this section does not preclude a court from issuing a protective order in a civil proceeding.
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For purposes of this section:
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"Account holder" means a defendant who:
- Is charged with an offense, the underlying basis of which includes an act of domestic violence, as defined in section 18-6-800.3 (1), or a crime listed in section 24-4.1-302 (1), except for those crimes listed in subsections (1)(cc.5) and (1)(cc.6) of that section; and
- Maintains an account with a wireless telephone service provider.
- "Financial responsibility" means an obligation to pay service fees and other costs and charges associated with any telephone number.
- "Wireless telephone service provider" means a person or entity that provides or resells commercial mobile service, as defined in section 47 U.S.C. sec. 332 (d)(1).
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"Account holder" means a defendant who:
Source: L. 2018: Entire section added, (SB 18-060), ch. 50, p. 488, § 2, effective November 1.
18-1-1002. Criminal contempt proceedings - notice to district attorney.
Before a criminal contempt proceeding is heard before the court, notice of the proceedings shall be provided to the district attorney for the district of the court where the proceedings are to be heard and the district attorney for the district of the court where the alleged act of criminal contempt occurred. The district attorney for either district shall be allowed to appear and argue for the imposition of contempt sanctions.
Source: L. 94: Entire section added, p. 1717, § 7, effective July 1.
ANNOTATION
District attorney need not be notified of criminal contempt hearing against father in arrears in child support. While the general assembly may limit jurisdiction, no statute will be held to limit court power unless the limitation is explicit in the statute. There was no prejudice to the party's substantial rights as the statute was enacted to protect state's interest in prosecution, not for the protection of fathers in arrears in child support. In re Helmich, 937 P.2d 897 (Colo. App. 1997).
Prisoner incarcerated in county jail for punitive contempt is entitled to the benefit of earned good time credit. To the extent that the language of an order purports to limit "good time" credit, it is beyond the power of the court to do so. In re Helmich, 937 P.2d 897 (Colo. App. 1997).
PART 11 PRESERVATION OF DNA EVIDENCE
Editor's note: This part 11 was added in 2008 and was not amended prior to 2009. The substantive provisions of this part 11 were repealed and reenacted in 2009, resulting in the addition, relocation, and elimination of sections as well as subject matter. For the text of this part 11 prior to 2009, consult the 2008 Colorado Revised Statutes. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated.
18-1-1101. Definitions.
As used in this part 11, unless the context otherwise requires:
- "Disposed of" means evidence is destroyed, thrown away, or returned to the owner or his or her designee.
- "DNA" means deoxyribonucleic acid.
- "DNA evidence" means all evidence collected by law enforcement in a criminal investigation, which evidence may be reasonably believed to contain DNA that is relevant to a disputed issue in the investigation and prosecution of the case.
- "DNA profile" means an identifier obtained as a result of a specific DNA analysis.
Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 97, § 1, effective March 18.
Editor's note: This section is similar to former § 18-1-1101 as it existed prior to 2009.
18-1-1102. Scope.
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The provisions of this part 11 shall apply to the preservation of DNA evidence only when:
- The investigation of a felony does not result in or has not resulted in charges being filed; or
- The filed charges resulted in a conviction for a class 1 felony or for a sex offense that carries an indeterminate sentence pursuant to section 18-1.3-1004; or
- The filed charges resulted in a conviction for a felony not covered by paragraph (b) of this subsection (1); or
- The filed charges resulted in a conviction for any offense not covered by paragraphs (b) and (c) of this subsection (1), and at least one of the charges filed involved a sex offense as defined in section 18-1.3-1003 (5).
- For purposes of subsection (1) of this section, conviction shall include a verdict of guilty by a judge or jury, a plea of guilty or nolo contendere, or a deferred judgment and sentence. For purposes of paragraph (d) of subsection (1) of this section, conviction shall also include a juvenile delinquent adjudication or deferred adjudication.
- This part 11 does not impose a statutory duty to retain or store evidence other than in the situations described in this section.
Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 97, § 1, effective March 18.
Editor's note: This section is similar to former § 18-1-1102 as it existed prior to 2009.
18-1-1103. Duty to preserve DNA evidence.
- A law enforcement agency that collects DNA evidence in conducting a criminal investigation of a felony that does not result in or has not resulted in charges being filed shall preserve the DNA evidence for the length of the statute of limitations for the felony crime that was investigated.
- Except as provided in sections 18-1-1105 to 18-1-1107, a law enforcement agency that collects DNA evidence in conducting a criminal investigation that results in a conviction listed in section 18-1-1102 (1) shall preserve the DNA evidence for the life of the defendant who is convicted.
Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 98, § 1, effective March 18.
Editor's note: This section is similar to former § 18-1-1102 as it existed prior to 2009.
18-1-1104. Manner and location of preservation of DNA evidence.
- When DNA evidence that is subject to preservation pursuant to section 18-1-1103 is processed for the development of a DNA profile, the DNA profile shall be preserved by the accredited laboratory in Colorado that develops the DNA profile. If the DNA profile is not developed by an accredited laboratory in Colorado, the laboratory that processes the DNA profile shall send the DNA profile to an accredited laboratory in Colorado for preservation.
- A law enforcement agency that has custody of DNA evidence that is subject to preservation pursuant to section 18-1-1103 shall preserve the evidence in an amount and manner sufficient to develop a DNA profile, based on the best scientific practices at the time of collection, from the biological material contained in or included on the evidence. If DNA evidence is of such a size, bulk, or physical character as to render retention impracticable, the law enforcement agency shall remove and preserve portions of the evidence likely to contain DNA related to the offense in a quantity sufficient, based on the best scientific practices at the time of collection, to permit future DNA testing. The preserved DNA evidence shall, whenever possible, include a sample sufficient to allow for independent testing by the defendant. After preserving the necessary amount of the DNA evidence, the law enforcement agency may dispose of the remainder of the evidence.
- If a law enforcement agency is asked to produce DNA evidence that is subject to preservation pursuant to section 18-1-1103 and cannot produce the evidence, the chief evidence custodian for the law enforcement agency shall provide an affidavit in which he or she describes, under penalty of perjury, the efforts taken to locate the DNA evidence and affirms that the DNA evidence could not be located.
- If upon request a law enforcement agency cannot produce DNA evidence that is subject to preservation pursuant to section 18-1-1103, the court shall determine whether the disposal of the DNA evidence violated the defendant's due process rights, and, if so, the court shall order an appropriate remedy.
Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 98, § 1, effective March 18.
Editor's note: This section is similar to former § 18-1-1102 as it existed prior to 2009.
ANNOTATION
Defendant's due process rights not violated because of destruction of DNA evidence. Defendant failed to show that evidence possessed exculpatory value that was apparent before it was destroyed. People v. Young, 2014 COA 169 , 412 P.3d 676.
18-1-1105. Law enforcement agency request for permission to dispose of evidence - procedures.
- A law enforcement agency may not request permission to dispose of DNA evidence in cases described in section 18-1-1102 (1)(a) and (1)(b).
- In cases described in section 18-1-1102 (1)(c) and (1)(d), a law enforcement agency may seek to dispose of DNA evidence by providing notice, in the form developed pursuant to section 18-1-1108, to the district attorney that prosecuted the charges arising out of the investigation.
- Upon receipt of the notice described in subsection (2) of this section, the district attorney shall determine whether to object to the disposal of the DNA evidence. The district attorney may determine that a portion of the DNA evidence may be disposed of and a portion of the DNA evidence shall be preserved.
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- If the district attorney determines that the DNA evidence should not be disposed of, the district attorney shall provide notice to the law enforcement agency that the DNA evidence shall be preserved. Upon the receipt of the notice from the district attorney to preserve the DNA evidence, the law enforcement agency shall preserve the DNA evidence until such time as the law enforcement agency is permitted by a court order to dispose of the DNA evidence.
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- If the district attorney determines that all or a portion of the DNA evidence may be disposed of, he or she shall send notice to the defendant and the law enforcement agency specifying which DNA evidence may be disposed of. Notice to the defendant shall include a copy of the notice form prepared by the law enforcement agency pursuant to subsection (2) of this section.
- The defendant shall have ninety-eight days from the date the notice was sent by the district attorney to file a motion to preserve DNA evidence in the court in which the defendant was convicted. The motion shall state specific grounds supporting the preservation of the DNA evidence, and the defendant shall provide copies of the motion to the district attorney and the law enforcement agency.
- If no motion is filed within the ninety-eight-day period, the district attorney or the law enforcement agency requesting disposal of the evidence shall file with the court a copy of the notice sent to the defendant pursuant to subparagraph (I) of this paragraph (b), and the court shall forthwith, without hearing, enter an order authorizing disposal of the DNA evidence and provide copies of the order to the defendant, district attorney, and law enforcement agency.
- If the defendant files a motion, the court shall follow the procedure set forth in subsection (6) of this section.
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- If the law enforcement agency does not receive notice from the district attorney as described in paragraph (a) or (b) of this subsection (4) within a reasonable amount of time or does receive timely notice from the district attorney pursuant to paragraph (a) of this subsection (4), the law enforcement agency may file a motion with the court that entered the conviction in the case in which the evidence was collected, asking for a court order to dispose of the DNA evidence. The motion shall include a copy of the notice the law enforcement agency provided to the district attorney. The law enforcement agency shall provide a copy of the disposal motion to the district attorney and the defendant contemporaneously with the filing of the motion. The law enforcement agency shall specify the DNA evidence for which disposal is requested in the motion.
- The defendant or the district attorney shall have ninety-eight days after the disposal motion is sent to file an objection in the court in which the disposal motion was filed. The objection shall state specific grounds supporting the preservation of the DNA evidence. If the district attorney files an objection, the district attorney shall provide copies of the objection to the defendant and the law enforcement agency. If the defendant files an objection, the defendant shall provide copies of the objection to the district attorney and the law enforcement agency.
- The defendant, through legal counsel, shall have a reasonable right to review the DNA evidence to prepare the filing of a timely objection to the disposal motion or the district attorney's notice received pursuant to paragraph (b) of subsection (4) of this section.
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- Upon receipt pursuant to subparagraph (II) of paragraph (c) of subsection (4) of this section of a timely filed objection, the court may deny the objection without a hearing if it finds on the face of the objection no grounds supporting the request to preserve the DNA evidence. The court shall then enter an order authorizing disposal of the DNA evidence and provide copies of the order to the defendant, district attorney, and law enforcement agency.
- If the court determines that a timely filed objection or motion to preserve states adequate grounds to require preservation of the DNA evidence, the court may set a hearing on the objection or motion to preserve, with notice to the district attorney, the law enforcement agency, and the defendant, or the court may deny the disposal motion without a hearing.
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In considering an objection or motion to preserve pursuant to this subsection (6), the court shall consider the following factors in determining whether to order preservation of the DNA evidence:
- Whether identification was a disputed issue;
- Whether the evidence contains known DNA;
- Whether it is possible to perform DNA testing on the evidence that has not previously been performed;
- Whether the defendant has served all of his or her sentence; and
- Whether the defendant has state appellate or collateral attack rights that have not been exhausted, in which case there shall be a presumption that the DNA evidence should be preserved.
- Following a hearing on a disposal motion or motion to preserve, the court shall enter an order either authorizing disposal of the DNA evidence or ordering the DNA evidence to be preserved. If the court orders preservation, the order may state the length of time the DNA evidence shall be preserved or establish a condition precedent for the disposition of the DNA evidence.
Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 99, § 1, effective March 18. L. 2012: (4)(b)(II), (4)(b)(III), and (4)(c)(II) amended, (SB 12-175), ch. 208, p. 863, § 104, effective July 1.
Editor's note: This section is similar to former § 18-1-1103 as it existed prior to 2009.
18-1-1106. Defendant request for disposition of or waiver of preservation of DNA evidence - procedures.
- In a case described in section 18-1-1102 (1), a defendant may petition the court on his or her own behalf for the disposal of DNA evidence in his or her case. The defendant shall provide a copy of the petition to the district attorney, who may join with or object to the defendant's petition. Upon the filing of the petition, the timing and procedures of section 18-1-1105 shall apply. By filing a petition for disposition of DNA evidence, the defendant waives any right to preservation of that evidence under this part 11. However, a defendant may not be compelled to file a motion under this section in order to obtain a plea or sentence agreement.
- In a case described in section 18-1-1102 (1), a defendant may waive his or her right to preservation of DNA evidence under this part 11 at any stage of the proceeding by making a knowing and voluntary waiver. A waiver executed as a part of a plea bargain or sentencing agreement shall be voluntarily agreed to by all parties and shall include a written list describing all evidence to be disposed of.
Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 101, § 1, effective March 18.
18-1-1107. Victim request for disposition of DNA evidence - procedures.
In a case described in section 18-1-1102 (1), if DNA evidence is being held that is the property of the victim, as defined in section 24-4.1-302 (5), C.R.S., of the crime, the victim may request the district attorney to review whether the DNA evidence may be returned. If the district attorney determines the DNA evidence may be returned, the district attorney may file a petition with the court for the return of the DNA evidence. The district attorney shall provide notice to the defendant of the petition. Upon the filing of the petition, the timing and procedures of section 18-1-1105 shall apply.
Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 102, § 1, effective March 18.
18-1-1108. Notice - form and sufficiency.
- Notice to the defendant as required by this part 11 shall be proper if it is sent by United States mail or hand-delivered to the attorney of record for the defendant as defined in rule 44 of the Colorado rules of criminal procedure. If there is no attorney of record, notice to the defendant shall be proper if it is sent by United States mail to the last-known address of the defendant as reflected in the current motor vehicle records or, if no such record exists, the last-known address in the court file. Prior to sending notice by United States mail, however, the district attorney shall first review the department of corrections records to determine whether the defendant is in the physical custody of the department of corrections or on parole. If the defendant is in the physical custody of the department of corrections or on parole, the district attorney shall send notice by United States mail to the correctional facility in which, according to the department's records, the defendant is housed or to the address to which the defendant has been paroled. If the letter is returned because the defendant has been transferred to a different correctional facility, the district attorney shall send notice to the new facility in which the defendant is housed.
- The department of public safety, in consultation with state and local law enforcement agencies, shall develop a form to be used by all law enforcement agencies for providing notice to the district attorney and the defendant as described in section 18-1-1105 (2).
Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 102, § 1, effective March 18.
18-1-1109. Court data collection - DNA evidence cases - repeal. (Repealed)
Source: L. 2009: Entire part R&RE, (HB 09-1121), ch. 20, p. 102, § 1, effective March 18.
Editor's note:
- This section was similar to former § 18-1-1104 as it existed prior to 2009.
- Subsection (4) provided for the repeal of this section, effective July 1, 2010. (See L. 2009, p. 102 .)
ARTICLE 1.3 SENTENCING IN CRIMINAL CASES
Editor's note:
(1) This article was added with relocations in 2002 containing provisions of some sections formerly located in title 16. Former C.R.S. section numbers are shown in editor's notes following those sections that were relocated. For a detailed comparison of this article, see the comparative tables located in the back of the index.
(2) Amendments made by House Bills 02-1141, 02-1223, 02-1225, 02-1229, 02-1258, and 02-1352 and Senate Bills 02-010, 02-018, 02-019, 02-036, and 02-057 to sections containing criminal sentencing provisions have been harmonized with the provisions of this article pursuant to section 398 of House Bill 02-1046. See the former sections as contained in titles 16, 17, and 18 of the 2001 Colorado Revised Statutes. See the comparative table located in the back of the index.
Cross references: For the legislative declaration contained in the 2002 act enacting this article, see section 1 of chapter 318, Session Laws of Colorado 2002.
Section
PART 1 ALTERNATIVES IN SENTENCING
18-1.3-101. Pretrial diversion.
- Legislative intent. The intent of this section is to facilitate and encourage diversion of defendants from the criminal justice system when diversion may prevent defendants from committing additional criminal acts, restore victims of crime, facilitate the defendant's ability to pay restitution to victims of crime, and reduce the number of cases in the criminal justice system. Diversion should ensure defendant accountability while allowing defendants to avoid the collateral consequences associated with criminal charges and convictions. A district attorney's office may develop or continue to operate its own diversion program that is not subject to the provisions of this section. If a district attorney's office accepts state moneys to create or operate a diversion program pursuant to this section, the district attorney's office must comply with the provisions of this section.
- Period of diversion. In any case, either before or after charges are filed, the district attorney may suspend prosecution of the offense for a period not to exceed two years. The period of diversion may be extended for an additional time up to one year if the failure to pay restitution is the sole condition of diversion that has not been fulfilled, because of inability to pay, and the defendant has a future ability to pay. During the period of diversion the defendant may be placed under the supervision of the probation department or a diversion program approved by the district attorney.
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Guidelines for eligibility. Each district attorney that uses state moneys for a diversion program pursuant to this section shall adopt policies and guidelines delineating eligibility criteria for pretrial diversion and may agree to diversion in any case in which there exists sufficient admissible evidence to support a conviction. In determining whether an individual is appropriate for diversion, the district attorney shall consider:
- The nature of the crime charged and the circumstances surrounding it;
- Any special characteristics or circumstances of the defendant;
- Whether diversion is consistent with the defendant's rehabilitation and reintegration; and
- Whether the public interest will be best served by diverting the individual from prosecution.
- Before entering into a pretrial diversion agreement, the district attorney may require a defendant to provide information regarding prior criminal charges, education and work experience, family, residence in the community, and other information relating to the diversion program. The defendant shall not be denied the opportunity to consult with legal counsel before consenting to diversion. Legal counsel may be appointed as provided under article 1 of title 21, C.R.S.
- In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of an offense, the underlying factual basis of which involves domestic violence as defined in section 18-6-800.3 (1), is not eligible for pretrial diversion unless charges have been filed, the individual has had an opportunity to consult with counsel, and the individual has completed a domestic violence treatment evaluation, which includes the use of a domestic violence risk assessment instrument, conducted by a domestic violence treatment provider approved by the domestic violence offender management board as required by section 16-11.8-103 (4), C.R.S. The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, the individual is appropriate for the program.
- In a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section, an individual accused of a sex offense as defined in section 18-1.3-1003 (5) is not eligible for pretrial diversion unless charges have been filed and, after the individual has had an opportunity to consult with counsel, the individual has completed a sex-offense-specific evaluation, which includes the use of a sex-offense-specific risk assessment instrument, conducted by an evaluator approved by the sex offender management board as required by section 16-11.7-103 (4), C.R.S. The district attorney may agree to place the individual in the diversion program established by the district attorney pursuant to this section if he or she finds that, based on the results of that evaluation and the other factors in subsection (3) of this section, the individual is appropriate for the program. Notwithstanding that a successfully completed diversion agreement does not constitute a history of sex offenses for purposes of sections 16-11.7-102 (2)(a)(II) and 16-22-103 (2)(d), C.R.S., the information constituting the crimes charged and facts alleged shall be available for use by a court, district attorney, any law enforcement agency, or agency of the state judicial department, if otherwise permitted by law, in any subsequent criminal investigation, prosecution, risk or needs assessment evaluation, sentencing hearing, or during a probation or parole supervision period.
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Notwithstanding any other provision of this section, an individual accused of any of the following sexual offenses is not eligible for participation in a diversion program established in a jurisdiction that receives state moneys for the creation or operation of diversion programs pursuant to this section:
- Sexual assault as described in section 18-3-402;
- Sexual assault on a child as described in section 18-3-405;
- Any sexual offense committed against an at-risk adult or an at-risk juvenile, as defined in section 18-6.5-102 (2) and (4);
- Any sexual offense committed with the use of a deadly weapon as described in section 18-1-901 (3)(e);
- Enticement of a child, as described in section 18-3-305;
- Sexual exploitation of a child as described in section 18-6-403;
- Procurement of a child for exploitation, as described in section 18-6-404;
- Sexual assault on a child by one in a position of trust, as described in section 18-3-405.3; or
- Any child prostitution offense in part 4 of article 7 of this title.
- Diversion programs may include, but are not limited to, programs operated by law enforcement upon agreement with a district attorney, district attorney internally operated programs, programs operated by other approved agencies, restorative justice programs, or supervision by the probation department. References to "deferred prosecution" in Colorado statutes and court rules shall apply to pretrial diversion as authorized by this section.
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Diversion agreements.
- All pretrial diversions shall be governed by the terms of an individualized diversion agreement signed by the defendant, the defendant's attorney if the defendant is represented by an attorney, and the district attorney.
- The diversion agreement shall include a written waiver of the right to a speedy trial for the period of the diversion. All diversion agreements shall include a condition that the defendant not commit any criminal offense during the period of the agreement. Diversion agreements may also include provisions, agreed to by the defendant, concerning payment of restitution and court costs, payment of a supervision fee not to exceed that provided for in section 18-1.3-204 (2)(a)(V), or participation in restorative justice practices as defined in section 18-1-901 (3)(o.5). Any pretrial diversion supervision fees collected may be retained by the district attorney for purposes of funding its adult pretrial diversion program. The conditions of diversion shall be limited to those specific to the individual defendant or necessary for proper supervision of the individual defendant. A diversion agreement shall provide that if the defendant fulfills the obligations described therein, the court shall order all criminal charges filed against the defendant dismissed with prejudice.
- The diversion agreement may require an assessment of the defendant's criminogenic needs, to be performed after the period of diversion has begun by either the probation department or a diversion program approved by the district attorney. Based on the results of that assessment, the probation department or approved diversion program may direct the defendant to participate in programs offering medical, therapeutic, educational, vocational, corrective, preventive, or other rehabilitative services. Defendants with the ability to pay may be required to pay for such programs or services.
- The diversion agreement may include a statement of the facts the charge is based upon authored by the defendant and agreed to by the defendant's attorney if the defendant is represented by an attorney and the district attorney. The statement is admissible as impeachment evidence against the defendant in the criminal proceedings if the defendant fails to fulfill the terms of the diversion agreement and criminal proceedings are resumed.
- A defendant shall not be required to enter any plea to a criminal charge as a condition of pretrial diversion. A defendant's or counsel's statement in a diversion conference or in any other discussion of a proposed diversion agreement, including an evaluation performed pursuant to subsections (5) and (6) of this section, other than a statement provided for in paragraph (d) of this subsection (9), shall not be admissible as evidence in criminal proceedings on the crimes charged or facts alleged.
- If the district attorney agrees to offer diversion in lieu of further criminal proceedings and the defendant agrees to all of the terms of the proposed agreement, the diversion agreement may be either filed with the court or held by the parties. A court filing shall be required only if the probation department supervises the defendant. When a diversion agreement is reached, the court shall stay further proceedings.
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Diversion outcomes.
- During the period of diversion, the supervising program or agency designated in the diversion agreement shall provide the level of supervision necessary to facilitate rehabilitation and ensure the defendant is completing the terms of the diversion agreement.
- Upon the defendant's satisfactory completion of and discharge from supervision, the court shall dismiss with prejudice all charges against the defendant. The effect of the dismissal is to restore the defendant to the status he or she occupied before the arrest, citation, or summons. A successfully completed diversion agreement shall not be considered a conviction for any purpose. A person with an order of dismissal entered pursuant to this article may not be subject to charge, prosecution, or liability under Colorado law of perjury or otherwise giving a false statement by reason of his or her failure to recite or acknowledge the arrest, citation, or summons in response to any inquiry made for any purpose.
- At any point after a diversion agreement is completed, a defendant may petition the court to seal all arrest and other criminal records pertaining to the offense using the procedure described in sections 24-72-704 and 24-72-705. Unless otherwise prohibited under section 24-72-703 (11), the court shall issue a sealing order if requested by the defendant following successful completion of a diversion agreement.
- If the defendant violates the conditions of the diversion agreement, the supervising entity shall provide written notice of the violation to the defendant, the district attorney, and the court. The district attorney, in his or her sole discretion, may initiate revocation of a diversion agreement by the filing of a criminal complaint, information, or indictment, or if charges have already been filed, by giving the court notice of intent to proceed with the prosecution. The defendant may, within fourteen days after the first court appearance following such a filing, request a hearing to contest whether a violation occurred. The district attorney has the burden by a preponderance of the evidence to show that a violation has in fact occurred, and the procedural safeguards required in a revocation of probation hearing pursuant to section 16-11-206, C.R.S., shall apply. The court may, when it appears that the alleged violation of the diversion agreement is a pending criminal offense against the defendant, continue the diversion revocation hearing until the completion of the criminal proceeding. If the court finds a violation has occurred, or a hearing is not requested, the prosecution may continue. If the court finds the district attorney has not proven a violation, the court shall dismiss the criminal case without prejudice and return the defendant to the supervision of the diversion program to complete the terms of the agreement.
- If a defendant is prosecuted following a violation of a diversion agreement, a factual statement entered pursuant to paragraph (d) of subsection (9) of this section is admissible as impeachment evidence. Any other information concerning diversion, including participation in a diversion program, including an evaluation performed pursuant to subsections (5) and (6) of this section, the terms of a diversion agreement, or statements made to treatment providers during a diversion program, shall not be admitted into evidence at trial for any purpose.
Source: L. 2002: Entire article added with relocations, p. 1365, § 2, effective October 1. L. 2012: (1) amended, (SB 12-175), ch. 208, p. 863, § 105, effective July 1. L. 2013: Entire section R&RE, (HB 13-1156), ch. 336, p. 1952, § 1, effective August 7. L. 2014: (10)(c) amended, (SB 14-206), ch. 317, p. 1377, § 1, effective August 1. L. 2016: (7)(c) amended, (SB 16-189), ch. 210, p. 759, § 28, effective June 6. L. 2019: (10)(c) amended, (HB 19-1275), ch. 295, p. 2747, § 2, effective August 2.
ANNOTATION
Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982).
Annotator's note. Since § 18-1.3-101 is similar to § 16-7-401 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.
The obvious legislative intent in passing the deferred prosecution statute was to delay prosecution for a probationary period, which, if completed satisfactorily, would then require that the charge against a defendant be dismissed with prejudice by the trial court. People v. Ybarra, 190 Colo. 409 , 547 P.2d 925 (1976).
Defendant alone benefits. In those cases where the trial court approves a defendant's application for deferred prosecution, it is the defendant alone who benefits by this procedure which may result in the dismissal of charges against him. People v. Ybarra, 190 Colo. 409 , 547 P.2d 925 (1976).
And the period of any delay in the prosecution of a case is obviously at the instance of the defendant. People v. Ybarra, 190 Colo. 409 , 547 P.2d 925 (1976).
Under § 18-1-405(6)(f) of the speedy trial statute, it specifically states that the period of any delay in the prosecution of a case "caused at the instance of the defendant" shall be excluded in computing the time within which the defendant shall be brought to trial. People v. Ybarra, 190 Colo. 409 , 547 P.2d 925 (1976).
Thus failure to execute waiver does not inure to defendant's benefit. The fact that the defendant did not execute a written waiver of her right to a speedy trial as required in the deferred prosecution statute and as she agreed to do in open court does not inure to her benefit. People v. Ybarra, 190 Colo. 409 , 547 P.2d 925 (1976).
The prosecutor's consent is a matter of prosecutorial discretion just as is the choice of several possible charges to press or the decision to move for the dismissal of a criminal charge. People v. District Court, 186 Colo. 335 , 527 P.2d 50 (1974).
Which is limited by pragmatic factors. A prosecutor's discretion in charging, deferring, or requesting dismissal is limited by pragmatic factors, but not by judicial intervention. People v. District Court, 186 Colo. 335 , 527 P.2d 50 (1974).
District court cannot require prosecutor to give reasons for refusing to consent. Because of the doctrine of separation of powers and because the district attorney is a part of the executive branch, the district court can no more require the district attorney to give his reasons for refusing to consent to a deferred prosecution than a court can require a Colorado governor to give his reasons for failing to grant a pardon. People v. District Court, 186 Colo. 335 , 527 P.2d 50 (1974).
18-1.3-101.5. Alternative pilot programs to divert individuals with mental health conditions - legislative intent - eligibility - process of diversion - grant program - program management - definitions - repeal.
- The intent of this section is to establish and facilitate five or more pre-plea local-level mental health pilot programs in selected judicial districts that will identify individuals with mental health conditions who have been charged with a low-level criminal offense and divert such individuals out of the criminal justice system and into community treatment programs in accordance with the principles and proposed model recommended by the Colorado commission on criminal and juvenile justice, adopted on January 12, 2018. In addition, proceeding pursuant to the model recommended by the Colorado commission on criminal and juvenile justice encourages and facilitates flexible and locally controlled programs in a manner that can accommodate and respect the availability or limitation of resources in each jurisdiction while still maintaining the core integrity and objectives of the effort to foster the use of mental health diversion programs throughout the state.
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As used in this section, unless the context otherwise requires:
- "Colorado commission on criminal and juvenile justice" means the commission established pursuant to section 16-11.3-102.
- "Grant program" means the mental health criminal justice diversion grant program established pursuant to subsection (6) of this section.
- "Low-level criminal offense" means any petty offense or misdemeanor, excluding those offenses enumerated in section 24-4.1-302 (1). "Low-level criminal offense" may also include, if agreed to by the district attorney in a given pilot program site, any class 4, class 5, or class 6 felony or any level 3 or level 4 felony drug offense, excluding any felony offenses enumerated in section 24-4.1-302 (1).
- "Pilot program" means any alternative program created pursuant to this section that diverts individuals with mental health conditions into community treatment programs.
- "State court administrator" means the state court administrator established pursuant to section 13-3-101.
- There are created five or more pilot programs in judicial districts in the state. The state court administrator and the Colorado district attorneys' council shall collaborate to identify potential pilot program sites with the agreement of the elected district attorneys and chief judges in a judicial district. The state court administrator and the Colorado district attorneys' council shall consider geographic diversity in identifying pilot program sites. The purpose of the pilot programs is to identify individuals with mental health conditions who have been charged with a low-level criminal offense and divert such individuals out of the criminal justice system and into community treatment programs. The district attorney and the chief judge for a judicial district selected as a pilot program site pursuant to this subsection (3) shall work collaboratively and through consensus with interested and necessary participants within the judicial district, including but not limited to law enforcement, jail officials, public defenders, judges, pretrial service providers, and local community mental and behavioral health service providers, to decide which courts and counties within the judicial district are best suited to implement the pilot program.
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The chief judge or his or her designee of any county or district court where a pilot program is created pursuant to subsection (3) of this section is responsible for establishing and facilitating the pilot program in compliance with the principles and model adopted by the Colorado commission on criminal and juvenile justice on January 12, 2018. The duties of the chief judge with respect to the pilot program may include, but need not be limited to:
- Initiating and coordinating organization meetings among the various local entities necessary to the implementation of the pilot program;
- Establishing policies for the pilot program;
- Facilitating any formal agreements or memoranda of understanding required to create the pilot program;
- Brokering services through contracting with local community treatment programs that provide a continuum of community-based mental health care and treatment to accomplish the goals of the pilot program; and
- Administering the pilot program once it is implemented.
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The state court administrator is responsible for administration and oversight of the pilot programs, including certifying that, on or before January 1, 2021, each pilot program site implements a design that is consistent with the principles and proposed model adopted by the Colorado commission on criminal and juvenile justice and the legislative intent of this section. The duties of the state court administrator with respect to the pilot programs include, but are not limited to:
- Establishing pilot program procedures and timelines; and
- Establishing grant funding guidelines and acceptable expenses for the distribution of grant program grant money to the pilot program sites based upon specific allocations required by the grant program and other pilot program needs and any other criteria, such as case volume, geographical complexity, and density of need.
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There is created in the office of the state court administrator the mental health criminal justice diversion grant program. The state court administrator is responsible for administering and monitoring the grant program, including, but not limited to:
- Establishing grant funding guidelines and acceptable expenses for the distribution of grant program grant money to the pilot program sites based upon specific allocations required by the grant program, the specific award to the district attorney's office in each of the designated judicial districts, other pilot program needs, and any other criteria, such as case volume, geographical complexity, and density of need. In addition to any other allowable expenses to be paid for by the grant program, each district attorney's office participating in the pilot program must receive fifty thousand dollars per year from the grant funding for each year of the grant program. Such money must be used to assist in covering the costs related to personnel and administrative requirements to establish and operate pilot programs in the designated judicial districts.
- Awarding annual grants to the pilot programs;
- Disbursing grant money; except that the state court administrator shall distribute the first round of grant awards on or before January 1, 2019.
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(6.5) (a) On or before November 1, 2019, and on or before each November 1 thereafter, the state court administrator shall submit a report to the joint budget committee of the general assembly and to the judiciary committees of the senate and house of representatives, or any successor committees, on the pilot program and the grant program for the preceding state fiscal year. The report must include:
- A description of the programs, including eligibility criteria, screening and assessment processes, and differences among judicial districts;
- A discussion of problems and obstacles the programs are encountering;
- Nonidentifying demographic information on individuals evaluated and participants enrolled in the programs, including age, gender, race, and ethnicity;
- Participant status, including the number of individuals who successfully completed the programs; the number of participants remaining in the programs; the number of participants terminated from the grant program, and the primary reasons for termination; and the average duration of stay in the programs;
- An accounting of expenditures under the grant program, including the costs of the state court administrator; and
- Information regarding the adequacy of and need for money to cover district attorney program-related personnel and administrative costs, including the nature of such costs and the extent of any program-related prosecutorial cost savings.
- In addition to the information required in subsection (6.5)(a) of this section, the report due on or before November 1, 2021, must also include an evaluation component with recommendations for best practices, including target populations, participant treatment and oversight, funding, and any proposed revisions to the model recommended by the Colorado commission on criminal and juvenile justice.
- This section is repealed, effective June 30, 2022.
Source: L. 2018: Entire section added, (SB 18-249), ch. 320, p. 1921, § 1, effective May 30. L. 2019: (6)(a), (6)(b), and (7) amended and (6.5) added, (SB 19-211), ch. 119, p. 499, § 1, effective April 16. L. 2020: (1), (3), IP(5), and (6)(a) amended, (HB 20-1393), ch. 212, p. 1028, § 1, effective June 30.
18-1.3-102. Deferred sentencing of defendant.
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- In any case in which the defendant has entered a plea of guilty, the court accepting the plea has the power, with the written consent of the defendant and his or her attorney of record and the district attorney, to continue the case for the purpose of entering judgment and sentence upon the plea of guilty for a period not to exceed four years for a felony or two years for a misdemeanor or petty offense or traffic offense. The period shall begin to run from the date that the court continues the case.
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The period may be extended for an additional time:
- Up to one hundred eighty-two days if the failure to pay restitution is the sole condition of supervision which has not been fulfilled, because of inability to pay, and the defendant has shown a future ability to pay. During such time, the court may place the defendant under the supervision of the probation department; or
- Up to two years if the deferred judgment is for an offense listed in section 16-11.7-102 (3), C.R.S., good cause is shown, and the district attorney and defendant consent to the extension.
- Prior to entry of a plea of guilty to be followed by deferred judgment and sentence, the district attorney, in the course of plea discussion as provided in sections 16-7-301 and 16-7-302, C.R.S., is authorized to enter into a written stipulation, to be signed by the defendant, the defendant's attorney of record, and the district attorney, under which the defendant is obligated to adhere to such stipulation. The conditions imposed in the stipulation shall be similar in all respects to conditions permitted as part of probation. A person convicted of a crime, the underlying factual basis of which included an act of domestic violence, as defined in section 18-6-800.3 (1), shall stipulate to the conditions specified in section 18-1.3-204 (2)(b). In addition, the stipulation may require the defendant to perform community or charitable work service projects or make donations thereto. Upon full compliance with such conditions by the defendant, the plea of guilty previously entered shall be withdrawn and the charge upon which the judgment and sentence of the court was deferred shall be dismissed with prejudice. The stipulation shall specifically provide that, upon a breach by the defendant of any condition regulating the conduct of the defendant, the court shall enter judgment and impose sentence upon the guilty plea; except that, if the offense is a violation of article 18 of this title, the court may accept an admission or find a violation of the stipulation without entering judgment and imposing sentence if the court first makes findings of fact on the record stating the entry of judgment and sentencing would not be consistent with the purposes of sentencing, that the defendant would be better served by continuing the deferred judgment period, and that public safety would not be jeopardized by the continuation of the deferred judgment. If the court makes those findings and continues the deferred judgment over the objection of the prosecution, the court shall also impose additional and immediate sanctions upon the defendant to address the violation, to include, but not be limited to, the imposition of further terms and conditions that will enhance the likelihood of the defendant's success, respond to the defendant's noncompliance, and promote further individual accountability, including extending the time period of the deferred judgment for up to two additional years or incarceration in the county jail for a period not to exceed ninety days consistent with the provisions of section 18-1.3-202 (1), or both. When, as a condition of the deferred sentence, the court orders the defendant to make restitution, evidence of failure to pay the restitution shall constitute prima facie evidence of a violation. Whether a breach of condition has occurred shall be determined by the court without a jury upon application of the district attorney or a probation officer and upon notice of hearing thereon of not less than seven days to the defendant or the defendant's attorney of record. Application for entry of judgment and imposition of sentence may be made by the district attorney or a probation officer at any time within the term of the deferred judgment or within thirty-five days thereafter. The burden of proof at the hearing shall be by a preponderance of the evidence, and the procedural safeguards required in a revocation of probation hearing shall apply.
- When a defendant signs a stipulation by which it is provided that judgment and sentence shall be deferred for a time certain, he or she thereby waives all rights to a speedy trial, as provided in section 18-1-405.
- A warrant for the arrest of any defendant for breach of a condition of a deferred sentence may be issued by any judge of a court of record upon the report of a probation officer, or upon the verified complaint of any person, establishing to the satisfaction of the judge probable cause to believe that a condition of the deferred sentence has been violated and that the arrest of the defendant is reasonably necessary. The warrant may be executed by any probation officer or by a peace officer authorized to execute warrants in the county in which the defendant is found.
Source: L. 2002: Entire article added with relocations, p. 1366, § 2, effective October 1. L. 2012: (1) amended, (HB 12-1310), ch. 268, p. 1396, § 11, effective June 7; (1) and (2) amended, (SB 12-175), ch. 208, p. 863, § 106, effective July 1. L. 2013: (2) amended, (SB 13-250), ch. 333, p. 1941, § 64, effective October 1.
Editor's note:
- This section is similar to former § 16-7-403 as it existed prior to 2002.
- Amendments to subsection (1) by House Bill 12-1310 and Senate Bill 12-175 were harmonized.
ANNOTATION
Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982).
Annotator's note. Since § 18-1.3-102 is similar to § 16-7-403 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.
Constitutional due process requirements regarding advisement of possible penalties do not apply to Crim. P. 11(b) in a hearing to revoke a deferred judgment. Defendant's admission that he violated the terms of the deferred judgment was valid. Due process does not require that defendant be readvised of the potential penalties after defendant was advised of the possible penalties when entering into the deferred judgment. People v. Finney, 2012 COA 38 , 328 P.3d 205, aff'd, 2014 CO 38, 325 P.3d 1044.
Probation-like supervision of a defendant by adult diversion program in a district attorney's office was not a violation of separation of powers. Probation is not a necessary function of the judiciary, and there is no constitutional requirement that defendants on deferred judgment be supervised by the judicial branch. People v. Method, 900 P.2d 1282 (Colo. App. 1994).
The diversion program does not constitute an unconstitutional delegation of power to the district attorney because the probation statutes set forth adequate guidelines for imposing conditions of probation and provide adequate standards and safeguards for imposing conditions of deferred judgment. People v. Bishop, 7 P.3d 184 (Colo. App. 1999).
This section does not limit the broad grant of power to the courts under the probation statutes. People v. Burleigh, 727 P.2d 873 (Colo. App. 1986).
Prohibiting a sex offender from having contact with children including his or her own without approval of the court as a condition of a deferred judgment is permissible. The condition falls under "any other conditions reasonably related to his or her rehabilitation and the purpose of the supervisory period imposed by the court" provision. The condition does not infringe upon the parent's liberty interest in raising his or her children when children are potential victims of the offender. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003).
Beyond reasonable doubt standard of proof. An adult charged with a violation of his deferred sentencing which constitutes a criminal offense has the right to demand that the charge be proven "beyond a reasonable doubt". People v. Van Deusen, 677 P.2d 402 (Colo. App. 1983).
Under the provisions of subsection (2), a defendant who enters into a deferred sentencing agreement "is obligated to adhere to such stipulation." People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003); Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).
Thus, the general assembly has determined as a matter of public policy that the terms of stipulations are to be enforced. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003).
Because a defendant who enters into a deferred sentencing agreement is obligated to adhere to the stipulation, the trial court must be permitted to review the terms of the agreement to determine whether the defendant is in compliance with those terms. Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).
Purpose of the written stipulation is to ensure that the defendant knows prior to the entry of a guilty plea the consequences of violating the conditions of the deferred judgment and sentence. People v. Widhalm, 642 P.2d 498 (Colo. 1982).
District court has jurisdiction to order a deferred judgment and sentence even when defendant appears pro se. The written authorization requirement set forth is not jurisdictional in nature. People v. Loveall, 231 P.3d 408 (Colo. 2010).
Appeal dismissed for lack of jurisdiction. A guilty plea entered pursuant to a deferred judgment and sentence agreement is not subject to review in the same manner as a guilty plea that results in a final conviction or delinquency adjudication. People ex rel. K.W.S., 192 P.3d 579 (Colo. App. 2008).
When a defendant has received the benefit of a bargain made and has at no time objected to any term of the subsequent judgment and stipulation, there is no basis in public policy to permit the defendant to renege on that portion of the agreement expressly waiving the right to request the sealing of the record. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003); Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).
Permitting defendant to do so would contravene the language and policy of the statute and could greatly reduce the use of such stipulations in practice. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003).
Trial court lacks authority under this section to act unilaterally to modify the terms of a stipulation without the district attorney's consent. People v. Ward-Garrison, 72 P.3d 423 (Colo. App. 2003); Walker-Lawrence v. District Court of Teller County, 74 P.3d 521 (Colo. App. 2003).
Trial court had no authority to order a deferred sentence in absence of written consent of defendant, defendant's attorney, and district attorney under plain language of subsection (1). People v. Appelhanz, 738 P.2d 1182 (Colo. 1987).
Subsection (1) requires the written consent of defense counsel only if the defendant is represented. People v. Loveall, 203 P.3d 540 (Colo. App. 2008), aff'd on other grounds, 231 P.3d 408 ( Colo. 2010 ).
Trial court does not have authority to act unilaterally with deferred sentence agreements, including shortening a stipulated length of a deferred sentence and a sentence agreement without the district attorney's consent. People v. C.G., 12 P.3d 861 (Colo. App. 2000).
Court has authority to consider a plea of nolo contendere in circumstances involving plea agreements that contemplate deferred sentences under the statute. People v. Darlington, 105 P.3d 230 (Colo. 2005).
There is no distinction between a plea of nolo contendere and a plea of guilty for sentencing purposes. People v. Darlington, 105 P.3d 230 (Colo. 2005).
Trial court has authority to impose an aggravated range sentence even though it had previously imposed a deferred sentence. Nothing in the plain language of this section suggests that the sentencing range upon imposition of a previously deferred sentence differs in any way from the range that would have applied absent deferral. People v. Lopez, 97 P.3d 223 (Colo. App. 2004).
Evidence from a dismissed revocation complaint of a deferred judgment may not form the basis of a subsequent revocation complaint. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003).
Section mandates that court impose sentence and does not leave such imposition to the court's discretion. People v. Adair, 44 Colo. App. 423, 620 P.2d 46 (1980), aff'd in part and rev'd in part on other grounds, 651 P.2d 389 ( Colo. 1982 ).
"Sentence" does not mean imprisonment. A "sentence" generally refers to that part of a judgment which describes the punishment imposed by the court following the defendant's conviction for a criminal offense. To constitute a "sentence", the punishment need not take the form of imprisonment. People v. Turner, 644 P.2d 951 (Colo. 1982).
Although the defendant's sentence to imprisonment and mandatory parole was not inevitable at the time of his pleas and, in fact, could not have been lawfully imposed prior to his subsequent breach of the terms of his deferred sentencing agreement, it was a direct consequence of his plea to burglary and, therefore, the defendant should have been advised of the mandatory parole. People v. Marez, 39 P.3d 1190 (Colo. 2002).
Discretion implicit in sentencing decision is not unrestricted discretion devoid of reason or principle. People v. Watkins, 613 P.2d 633 (Colo. 1980).
Extension of deferred judgment discretionary. While there is not express statutory authority that permits the court to extend the period of a deferred judgment and sentence beyond that initially imposed, such authority is encompassed in the broad discretionary power of the court. People v. Blackorby, 41 Colo. App. 251, 583 P.2d 949 (1978) (decided prior to 1985 amendment to subsection (1)).
However, the court has no jurisdiction to extend the deferral to more than the two-year period in the statute. People v. Perkins, 676 P.2d 711 (Colo. App. 1983) (decided prior to 1985 amendment to subsection (1)); People v. Zabala, 706 P.2d 807 (Colo. App. 1985).
Under subsection (1), a trial court may extend a deferred judgment for any legitimate reason and as many times as it deems appropriate, so long as the period of deferred judgment does not exceed four years. Carrera v. People, 2019 CO 83, 449 P.3d 725 (decided under former law).
When a defendant has been on a deferred judgment for four years, the trial court may extend the deferred judgment for a period not to exceed 180 days, so long as the payment of restitution is the only condition of supervision not yet fulfilled. Carrera v. People, 2019 CO 83, 449 P.3d 725 (decided under former law).
A deferred judgment is created and authorized by statute and a trial court lacks authority to impose a deferred judgment outside of the statute's limitations. The trial court exceeded its jurisdiction by extending defendant's deferred judgment beyond the statutory limits. People v. Carbajal, 198 P.3d 102 (Colo. 2008).
Once the court imposes a deferred judgment, the four-year time period starts the day defendant entered his or her plea. Judgment and sentence must be entered within four years unless the deferred judgment is revoked or extended for restitution. The statute divests the court of its authority to hear revocation petitions filed more than 30 days after the deferred judgment expires. People v. Carbajal, 198 P.3d 102 (Colo. 2008).
Because the court lacks the authority to enforce an agreed-upon extension of the deferred judgment beyond the statutory time limitations, it also lacks authority to enforce such an extension framed as a stipulation to new supervision requirements. People v. Carbajal, 198 P.3d 102 (Colo. 2008).
The court has discretion to extend the deferral period, subject to the time limitations in this section, in order to give the defendant additional time to pay restitution. People v. Nichols, 140 P.3d 198 (Colo. App. 2006).
Trial court had no authority to revoke a deferred judgment sua sponte. In absence of an application by the district attorney, specifically required by subsection (2), revocation was improper. People v. Berquist, 916 P.2d 629 (Colo. App. 1996).
District court did not exceed its jurisdiction in granting district attorney's application, entering judgment against defendant for sexual assault on a child by one in a position of trust, and sentencing defendant to six years of probation. Because the district attorney's application was only withdrawn on condition that the court continue the case for an additional four-year period, which it lacked the authority to do, the application was never abandoned. People v. Simonds, 113 P.3d 762 (Colo. 2005).
Time limit for filing of application for entry of judgment not tolled by order of revocation. Where district attorney did not file application "within the term of the deferred judgment or within thirty days thereafter," as required by subsection (2), such application would not be permitted upon remand. People v. Berquist, 916 P.2d 629 (Colo. App. 1996).
Constitutional rights somewhat limited. Persons alleged to have violated a condition of a deferred sentence are not entitled to the full panoply of constitutional rights accorded persons who have not admitted guilt of criminal conduct. People v. Boykin, 631 P.2d 1149 (Colo. App. 1981).
But adequate notice deemed minimum right. Consistent with principles of due process, persons alleged to have violated a condition of a deferred sentence must, at a minimum, be given adequate notice of the charges against which they must defend. People v. Boykin, 631 P.2d 1149 (Colo. App. 1981); People v. Allen, 952 P.2d 764 (Colo. App. 1997), rev'd on other grounds, 973 P.2d 620 ( Colo. 1999 ).
Trial court advising defendant and counsel three days before revocation hearing held to be adequate notice of charge against which person had to defend. People v. Galloway, 677 P.2d 1380 (Colo. App. 1983).
Proceedings to revoke deferred judgment are conducted according to procedures used to revoke probation. Thus, the defendant is not entitled to the full range of constitutional rights in a criminal trial. The right to confront witnesses is satisfied by the right to cross exam hearsay statements and presentation of evidence to the contrary. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003).
Corroboration of a confession is not required in deferred judgment. People v. Manzanares, 85 P.3d 604 (Colo. App. 2003).
Nothing in this section or the state or federal constitutions requires the trial court to advise the defendant of his or her right to testify at a deferred judgment revocation proceeding. People v. Allen, 973 P.2d 620 (Colo. 1999).
Counsel not necessary where defendant makes request for extension. Where the defendant requests an extension of the supervisory period, the granting of the extension does not violate due process because he was not represented by counsel, or because the trial court did not make a determination as to whether fundamental fairness required that counsel be appointed to represent him. People v. Blackorby, 41 Colo. App. 251, 583 P.2d 949 (1978).
Revocation hearing is trial-type procedure. A revocation hearing under this section is a trial-type procedure conducted by the trial court for the purpose of making a factual determination as to whether there has been a failure to abide by the conditions of a deferred sentence. Hallman v. People, 652 P.2d 173 (Colo. 1982).
And 15-day limitation for hearing applies. Since the 15-day limitation imposed by § 16-11-206 (4) is a procedural safeguard required for probation revocation hearings, it applies to a deferred sentence revocation pursuant to this section. People v. Schoonover, 654 P.2d 1340 (Colo. App. 1982); People v. Allen, 952 P.2d 764 (Colo. App. 1997), rev'd on other grounds, 973 P.2d 620 ( Colo. 1999 ).
Since the five-day limitation specified in § 16-11-205 (4) is not a procedural safeguard required in a probation revocation hearing pursuant to § 16-11-206, but rather is a prehearing requirement imposed on the probation officer, it is not within the contemplation of subsection (2). People v. Schoonover, 654 P.2d 1340 (Colo. App. 1982).
Conviction entered upon finding that defendant violated condition. This section requires the court to enter a judgment of conviction upon finding at a revocation hearing that the defendant has violated the condition of a deferred judgment. People v. Widhalm, 642 P.2d 498 ( Colo. 1982 ); People v. Wilder, 687 P.2d 451 ( Colo. 1984 ); People v. Nichols, 140 P.3d 198 (Colo. App. 2006).
Once the trial court finds that a violation has been proven by a preponderance of the evidence, the deferred sentence must be revoked. Adair v. People, 651 P.2d 389 (Colo. 1982).
Scope of revocation hearing. In a revocation hearing, the court need only apprise itself of facts which convince it that the conditions of the deferred sentence have been breached. People v. Adair, 44 Colo. App. 423, 620 P.2d 46 (1980), aff'd in part and rev'd in part on other grounds, 651 P.2d 389 ( Colo. 1982 ).
Standard of proof for violation of deferred sentence. To support a revocation, a violation of the deferred sentence need only be proven by a preponderance of the evidence. Once the proof has been made and the court finds that the terms of the deferred judgment were violated the court must act to revoke the deferred judgment status, enter judgment, and impose sentence upon the defendant's guilty plea. Adair v. People, 651 P.2d 389 (Colo. 1982).
Beyond reasonable doubt standard of proof. An adult charged with a violation of his deferred sentencing which constitutes a criminal offense has the right to demand that the charge be proven "beyond a reasonable doubt". People v. Van Deusen, 677 P.2d 402 (Colo. App. 1983).
Court does not have to find reasonable doubt that defendant violated law because the court's acceptance of defendant's guilty plea amounted to a conviction. People v. Blackwell, 2016 COA 136 , 409 P.3d 558.
Question of whether the defendant failed to cooperate in a treatment program which was a condition of the deferred judgment is one of fact for the trial court. People v. Galloway, 677 P.2d 1380 (Colo. App. 1983).
Statutory standard that defendant had ability to pay restitution but failed to do so was satisfied by the district court finding that defendant had money during the deferral period which he could have paid to the probation department, but which he chose, instead, to pay to his mother. People v. Zabala, 706 P.2d 807 (Colo. App. 1985).
Defendant's financial ability to pay restitution is a defense to a charge of violating restitution requirement of deferred sentence. People v. Afentul, 773 P.2d 1081 ( Colo. 1989 ). But see Williams v. People, 2019 CO 101, 454 P.3d 219.
Defendant must prove his or her financial inability to pay restitution. Once the prosecution presents evidence of the defendant's failure to pay restitution, the burden shifts to the defendant to prove his or her financial inability to pay restitution. People v. Rivera-Bottzeck, 119 P.3d 546 (Colo. App. 2004).
When a defendant introduces some evidence of inability to pay restitution, the court must make ability-to-pay findings under § 18-1.3-702 (3)(c) before revoking a deferred judgment for failure to pay. The prosecution bears the burden of proving by a preponderance of evidence that the defendant (1) has the ability to comply with the court's order to pay a monetary amount due without undue hardship to the defendant or the defendant's dependents, and (2) has not made a good-faith effort to comply with the order. Williams v. People, 2019 CO 101, 454 P.3d 219.
Court may grant probation upon revocation of deferred judgment and sentence. As long as a defendant is otherwise eligible for probation, a court may grant him probation upon the revocation of a deferred judgment and sentence. People v. Turner, 644 P.2d 951 (Colo. 1982).
Evidence of defendant's failure to pay restitution is prima facie evidence that defendant has violated the conditions of his deferred sentencing which, if not rebutted or contradicted, will sustain the entry of a judgment of conviction and the imposition of sentence. People v. McPherson, 897 P.2d 923 (Colo. App. 1995).
Defendant's two-year deferred sentence for a traffic violation in Colorado could not be used to enhance his criminal history category under the federal sentencing guidelines for a later conviction involving distribution of cocaine. United States v. Kipp, 10 F.3d 1463 (9th Cir. 1993).
Battery, in violation of Aurora Municipal Code, was an "offense" in violation of stipulation for deferred judgment and sentence. People v. Slayton, 878 P.2d 106 (Colo. App. 1994).
Absence of defendant's signature on joint motion immaterial where defendant received benefits under deferred judgment, signed consent form in interview with probation officer, and made initial payment of restitution. People v. McPherson, 897 P.2d 923 (Colo. App. 1995).
This section does not limit the broad grant of power to the courts under the probation statutes. People v. Burleigh, 727 P.2d 873 (Colo. App. 1986).
As sentence imposed following revocation is within trial court's discretion. When a deferred judgment is revoked in a felony case, sentencing to the penitentiary is not mandatory. The type of sentence to be imposed after the revocation of the deferred sentence is a matter within the discretion of the trial court, and a defendant is entitled to a consideration of all statutory sentencing alternatives at the time the deferred sentence is revoked and judgment of conviction is entered against him. Adair v. People, 651 P.2d 389 (Colo. 1982).
Appeal or review of revocation of deferred sentence available. A defendant may either appeal an order revoking a deferred sentence, pursuant to C.A.R. 1 or file a motion for post-conviction review, pursuant to Crim. P. 35(c). People v. Boykin, 631 P.2d 1149 (Colo. App. 1981).
When revocation of deferred sentence reviewable. The provisions of Crim. P. 33(a), precluding appellate review absent a motion for a new trial, apply to the revocation of a deferred sentence. People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980), aff'd, 652 P.2d 173 ( Colo. 1982 ).
Where two-year limitation on revocation of deferred sentence tolled. Where a complaint and arrest warrant are issued within the statutory period and the defendant is voluntarily absent from the jurisdiction, or is imprisoned on another offense, the two-year limitation on revocation of a deferred sentence is tolled. People v. Peretsky, 44 Colo. App. 270, 616 P.2d 170 (1980).
A revocation petition must be filed within the term of the deferred judgment or within 30 days thereafter, unless the time limitation is tolled. A letter from the investigator to the court and the issuance of a bench warrant during the term of the deferred judgment was not sufficient to toll the time limitation. People v. Guerrero, 26 P.3d 537 (Colo. App. 2001).
Amended revocation petition filed after expiration of the deferred judgment term is proper if initial petition is filed before expiration and effectively tolls the time limitation of this section. People v. Nichols, 140 P.3d 198 (Colo. App. 2006).
Motion for new trial is prerequisite for appellate review of revocation of probation except when the propriety of a sentence is being appealed as provided in C.A.R. 4(c). People v. Hallman, 44 Colo. App. 530, 624 P.2d 347 (1980), aff'd, 652 P.2d 173 ( Colo. 1982 ).
Compliance with the motion for a new trial requirement of Crim. P. 33(a) is a prerequisite for appellate review of a trial court's judgment revoking a deferred sentence and imposing a sentence. Hallman v. People, 652 P.2d 173 (Colo. 1982).
And procedural considerations governing section are analogous to those governing probation. People v. Peretsky, 44 Colo. App. 270, 616 P.2d 170 (1980); People v. Zabala, 706 P.2d 807 (Colo. App. 1985).
Therefore, filing of the revocation petition by the probation department in no way prejudiced the defendant. People v. Zabala, 706 P.2d 807 (Colo. App. 1985).
No double jeopardy prohibition was implicated when deferred judgment and sentence for possession of a controlled substance was revoked, where the trial court based its sentencing decision, in part, on the facts of the later vehicular homicide offense. People v. Lopez, 97 P.3d 223 (Colo. App. 2004).
Application for deferred sentencing does not constitute waiver of right to preliminary hearing. Celestine v. District Court, 199 Colo. 514 , 610 P.2d 1342 (1980).
Guilty plea accepted by court constitutes jeopardy. A plea of guilty under this section, when accepted by the court, resolves the issue of guilt and constitutes jeopardy. Jeffrey v. District Court, 626 P.2d 631 (Colo. 1981).
So withdrawal or cancellation of deferred sentence affects sentence not conviction. Where the trial court withdraws or cancels the imposition of the deferred sentence, its order affects only the sentence and does not touch the conviction. People v. Peretsky, 44 Colo. App. 270, 616 P.2d 170 (1980).
Deferred judgment revoked but reinstated. Where the commission of a crime charged and the conviction thereof is the sole basis of the revocation of a previous deferred judgment and subsequent imposition of sentence, the validity of the revocation must be tested by the validity of the conviction. Where the conviction is then reversed, and a judgment of acquittal was entered on the criminal charges, defendant is entitled to have the deferred judgment reinstated. People v. Anzures, 670 P.2d 1258 (Colo. App. 1983).
Section not applicable to mandatory sentence. The sentence requirement in § 42-2-206 remains mandatory and is not subject to plea bargaining to obtain a deferred sentence as generally allowed by this section. Walker v. District Court, 199 Colo. 128 , 606 P.2d 70 (1980).
Prosecution dismissed under this section not basis for civil action. As a matter of public policy, one who acknowledges his guilt of a criminal act, even though the case is subsequently dismissed under the deferred judgment plan, may not use that criminal prosecution as a basis for a civil malicious prosecution action. Land v. Hill, 644 P.2d 43 (Colo. App. 1981).
Subsection (2) requires that a plea be deemed withdrawn and the charge dismissed once a deferred judgment is successfully completed, and when an order to this effect is not entered, it occurs by operation of law. Flores-Heredia v. People, 2017 CO 64, 395 P.3d 800.
When defendant successfully completed a deferred judgment, defendant's plea was withdrawn and the charge was dismissed with prejudice pursuant to subsection (2). The plain terms of Crim. P. 32(d) require a plea to exist in order for it to be withdrawn. Because defendant's plea had already been withdrawn and the case dismissed, there was no plea to be withdrawn. People v. Corrales-Castro, 2017 CO 60, 395 P.3d 778; Espino-Paez v. People, 2017 CO 61, 395 P.3d 786; Zafiro-Guillen v. People, 2017 CO 62, 395 P.3d 781; People v. Roman, 2017 CO 63, 395 P.3d 799.
Applied in People v. Vollentine, 643 P.2d 800 (Colo. App. 1982); People v. Martinez, 657 P.2d 967 (Colo. App. 1982); Corr v. District Court, 661 P.2d 668 ( Colo. 1983 ); Hafelfinger v. District Court, 674 P.2d 375 ( Colo. 1984 ).
18-1.3-103. Deferred sentencing - drug offenders - legislative declaration - demonstration program - repeal. (Repealed)
Source: L. 2002: Entire article added with relocations, p. 1367, § 2, effective October 1.
Editor's note:
- This section was similar to former § 16-7-403.7 as it existed prior to 2002.
- Subsection (6) provided for the repeal of this section, effective July 1, 2006. (See L. 2002, p. 1367 .)
18-1.3-103.4. Senate Bill 13-250 - legislative intent - clarification of internal reference to level 4 drug felonies.
The intent of the general assembly in enacting Senate Bill 13-250 was to allow courts, for offenses committed on and after October 1, 2013, to vacate certain level 4 drug felony convictions and enter misdemeanor convictions if the offender completes community-based sentencing. While the term "level 4 drug felony" to which section 18-1.3-103.5 (3)(b) refers was described in section 18-18-405 (2)(c)(II) of the introduced version of Senate Bill 13-250, an amendment to the bill during the legislative process moved the level 4 drug felony description to section 18-18-405 (2)(d). The conforming change was not made to the internal reference in section 18-1.3-103.5 (3)(b), resulting in an incorrect internal reference being published in the 2013 version of the Colorado Revised Statutes. When enacting Senate Bill 13-250, it was the intent of the general assembly that the level 4 drug felonies to which section 18-1.3-103.5 (3)(b) refers be those described in section 18-18-405 (2)(d). Accordingly, by the passage of Senate Bill 14-163, enacted in 2014, the general assembly corrects the internal reference found in section 18-1.3-103.5 (3)(b). The correction to the internal reference is effective as of the effective date of Senate Bill 13-250, October 1, 2013, and applies to offenses committed on or after October 1, 2013.
Source: L. 2014: Entire section added, (SB 14-163), ch. 391, p. 1970, § 7, effective June 6. L. 2018: Entire section amended, (HB 18-1375), ch. 274, p. 1701, § 22, effective May 29.
18-1.3-103.5. Felony convictions - vacate and enter conviction on misdemeanor after successful completion.
- In order to expand opportunities for offenders to avoid a drug felony conviction, to reduce the significant negative consequences of that felony conviction, and to provide positive reinforcement for drug offenders who work to successfully complete any community-based sentence imposed by the court, the legislature hereby creates an additional opportunity for those drug offenders who may not otherwise have been eligible for or successful in other statutorily created programs that allow the drug offender to avoid a felony conviction, such as diversion or deferred judgment.
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- In a case in which the defendant enters a plea of guilty or is found guilty by the court or a jury for a crime listed in subsection (3) of this section, the court shall order, upon successful completion of any community-based sentence to probation or to a community corrections program, the drug felony conviction vacated and shall enter a conviction for a level 1 drug misdemeanor offense of possession of a controlled substance pursuant to section 18-18-403.5. Upon entry of the judgment of conviction pursuant to section 18-18-403.5, the court shall indicate in its order that the judgment of conviction is entered pursuant to the provisions of this section.
- Whether a sentence is successfully completed shall be determined by the court without a jury with notice to the district attorney and the defendant or the defendant's attorney of record. A community-based sentence is not successfully completed if the defendant has not successfully completed the treatment as ordered by the court and determined appropriate to address the defendant's treatment needs.
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This section applies to convictions for the following offenses:
- On or after March 1, 2020, possession of a controlled substance, but only when the quantity of the controlled substance is not more than four grams of any material, compound, mixture, or preparation containing any quantity of gamma hydroxybutyrate, including its salts, isomers, and salts of isomers; not more than two grams of ketamine or cathinones; or not more than four milligrams of flunitrazepam. The district attorney and defendant may stipulate to the amount of the controlled substance possessed by the defendant at the time of sentencing, or the court shall determine the amount at the time of sentencing.
- A level 4 drug felony for distribution pursuant to the provisions of section 18-18-405 (2)(d)(II);
- Possession of more than twelve ounces of marijuana or more than three ounces of marijuana concentrate; or
- A violation of section 18-18-415.
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Notwithstanding any provision of this section to the contrary, a defendant is not eligible for relief under this section if:
- The defendant has a prior conviction for a crime of violence as described in section 18-1.3-406 or a prior conviction for an offense that is required to be sentenced pursuant to the provisions of section 18-1.3-406 in this state, or a crime in another state, the United States, or any territory subject to the jurisdiction of the United States that would be a crime of violence or an offense required to be sentenced pursuant to the provisions of section 18-1.3-406 in this state;
- The defendant is ineligible for probation pursuant to section 18-1.3-201; or
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- The defendant has two or more prior felony convictions for a drug offense pursuant to this title, or a crime in another state, the United States, or any territory subject to the jurisdiction of the United States that would be a drug offense violation of this title.
- For purposes of this paragraph (c), a felony conviction includes any diversion, deferred prosecution, or deferred judgment and sentence, whether or not completed, for a felony, and any conviction entered as a result of relief previously granted pursuant to this section or as a result of a guilty plea to a misdemeanor offense, as described in article 18 of this title, originally charged as a felony drug offense, as described in article 18 of this title.
Source: L. 2013: Entire section added, (SB 13-250), ch. 333, p. 1900, § 1, effective October 1. L. 2014: (2)(a), (3), (4)(a), and (4)(c) amended, (SB 14-163), ch. 391, p. 1971, § 8, effective July 1. L. 2019: (3)(a) amended, (HB 19-1263), ch. 291, p. 2681, § 7, effective March 1, 2020.
ANNOTATION
The conversion of a defendant's felony conviction to a misdemeanor conviction under this section does not affect the amount of the drug offender surcharge required to be imposed pursuant to § 18-19-103 . Under this section, if a defendant successfully completes his or her sentence to probation or community corrections, the court must substitute a misdemeanor conviction for the original felony conviction. The statute, however, does not similarly authorize the court to vacate any part of the defendant's original sentence and re-impose a new sentence. The drug offender surcharge is not an adverse collateral consequence of a drug felony conviction that the statute was designed to ameliorate, but a part of the defendant's sentence. People v. DeBorde, 2016 COA 185 , 411 P.3d 220.
18-1.3-104. Alternatives in imposition of sentence.
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Within the limitations of the applicable statute pertaining to sentencing and subject to the provisions of this title 18, the trial court has the following alternatives in entering judgment imposing a sentence:
- The defendant may be granted probation unless any provision of law makes him or her ineligible for probation. The granting or denial of probation and the conditions of probation including the length of probation shall not be subject to appellate review unless probation is granted contrary to the provisions of this title.
- Subject to the provisions of sections 18-1.3-401 and 18-1.3-401.5, in class 2, class 3, class 4, class 5, and class 6 felonies and level 1, level 2, level 3, and level 4 drug felonies, the defendant may be sentenced to imprisonment for a definite period of time.
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- Except as otherwise provided by subparagraph (II) of this paragraph (b.5), any defendant who, in the determination of the court, is a candidate for an alternative sentencing option and who would otherwise be sentenced to imprisonment pursuant to paragraph (b) of this subsection (1) may, as an alternative, be sentenced to a specialized restitution and community service program pursuant to section 18-1.3-302, which may include restorative justice practices, as defined in section 18-1-901 (3)(o.5), if such defendant is determined eligible and is accepted into such program. To be eligible for restorative justice practices, the defendant shall not have been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), C.R.S., a crime in which the underlying factual basis involves domestic violence, as defined in section 18-6-800.3 (1), stalking as defined in section 18-3-602, or violation of a protection order as defined in section 18-6-803.5. If the court orders the defendant to attend a restorative justice practices victim-offender conference, the facilitator of the conference shall provide his or her services for a fee of no more than one hundred twenty-five dollars, based on a sliding scale; however, the fee may be waived by the court. Any statements made during the conference shall be confidential and shall not be used as a basis for charging or prosecuting the defendant unless the defendant commits a chargeable offense during the conference.
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- The court shall consider and may sentence any defendant who is a nonviolent offender as defined in sub-subparagraph (B) of this subparagraph (II) pursuant to subsection (2) of this section.
- As used in this section, "nonviolent offender" means a person convicted of a felony other than a crime of violence as defined in section 18-1.3-406 (2), one of the felonies set forth in section 18-3-104, 18-4-203, 18-4-301, or 18-4-401 (2)(c), (2)(d), or (5), or a felony offense committed against a child as set forth in articles 3, 6, and 7 of this title, and who is not subject to the provisions of section 18-1.3-801.
- The defendant shall be sentenced to death in those cases in which a death sentence is required pursuant to section 18-1.3-1201 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.3-1302 for an offense charged prior to July 1, 2020, or pursuant to section 18-1.4-102.
- The defendant may be sentenced to the payment of a fine or to a term of imprisonment or to both a term of imprisonment and the payment of a fine; except that a person who has been twice convicted of a felony under the laws of this state, any other state, or the United States prior to the conviction for which he or she is being sentenced is not eligible to receive a fine in lieu of imprisonment. No fine shall be imposed for conviction of a felony except as provided in sections 18-1.3-401 and 25-15-310, articles 22 to 29 of title 39, or article 3 of title 42, C.R.S.
- The defendant may be sentenced to comply with any other court order authorized by law.
- The defendant may be sentenced to payment of costs.
- The defendant may be sentenced pursuant to part 4 or 5 of this article.
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- If the defendant is eligible pursuant to section 18-1.3-407.5 or section 19-2-517 (6), C.R.S., the defendant may be sentenced to the youthful offender system in accordance with section 18-1.3-407.
- Repealed.
- Notwithstanding any provision of this subsection (1) to the contrary, the court shall sentence any person convicted of a sex offense, as defined in section 18-1.3-1003 (5), committed on or after November 1, 1998, pursuant to the provisions of part 10 of this article.
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The sentencing court shall consider the following factors in sentencing nonviolent offenders:
- The nature and character of the offense;
- The character and record of the nonviolent offender, including whether the offender is a first-time offender;
- The offender's employment history;
- The potential rehabilitative value of the sentencing alternatives available to the court;
- Any potential impact on the safety of the victim, the victim's family, and the general public based upon sentencing alternatives available to the court; and
- The offender's ability to pay restitution to the victim or the victim's family based upon the sentencing alternatives available to the court.
- Repealed.
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The court shall consider and may sentence a nonviolent offender to any one or any combination of the sentences described in this paragraph (c) if, upon consideration of the factors described in paragraph (a) of this subsection (2), the court does not grant probation pursuant to paragraph (b) of this subsection (2) or does not sentence the offender to the department of corrections as provided under paragraph (d) of this subsection (2):
- A community corrections program pursuant to section 18-1.3-301;
- A home detention program pursuant to section 18-1.3-105; or
- A specialized restitution and community service program pursuant to section 18-1.3-302.
- Nothing in this subsection (2) shall be construed as prohibiting a court from exercising its discretion in sentencing a nonviolent offender to the department of corrections based upon, but not limited to, any one or more factors described in paragraph (a) of this subsection (2).
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The sentencing court shall consider the following factors in sentencing nonviolent offenders:
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- In determining the appropriate sentencing alternative for a defendant who has been convicted of unlawful sexual behavior as defined in section 16-22-102 (9), the sentencing court shall consider the defendant's previous criminal and juvenile delinquency records, if any, set forth in the presentence investigation report prepared pursuant to section 16-11-102 (1)(a), C.R.S.
- For purposes of this subsection (3), "convicted" means a conviction by a jury or by a court and shall also include a deferred judgment and sentence, a deferred adjudication, an adjudication, and a plea of guilty or nolo contendere.
Source: L. 2002: Entire article added with relocations, p. 1368, § 2, effective October 1. L. 2002, 3rd Ex. Sess.: (1)(c) amended, p. 32, § 24, effective October 1. L. 2003: IP(1), (1)(a), and (1)(b) amended, p. 975, § 12, effective April 17. L. 2004: (1)(h)(II) repealed, p. 243, § 1, effective April 5. L. 2009: (1)(h)(I) amended, (HB 09-1122), ch. 77, p. 280, § 3, effective October 1. L. 2010: (1)(h)(I) amended, (HB 10-1413), ch. 264, p. 1204, § 4, effective August 11. L. 2011: (1)(b.5)(I) amended, (HB 11-1032), ch. 296, p. 1402, § 7, effective August 10. L. 2013: (1)(b) amended and (2)(b) repealed, (SB 13-250), ch. 333, p. 1935, § 53, effective October 1. L. 2014: (1)(b) amended, (SB 14-163), ch. 391, p. 1972, § 9, effective June 6. L. 2020: IP(1) and (1)(c) amended, (SB 20-100), ch. 61, p. 208, § 9, effective March 23.
Editor's note: This section is similar to former § 16-11-101 as it existed prior to 2002.
Cross references: For the legislative declaration contained in the 2002 act amending subsection (1)(c), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session.
ANNOTATION
Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses a case relating to increased sentence after retrial, see 15 Colo. Law. 1604 (1986). For article, "Criminal Law", which discusses Tenth Circuit decisions dealing with questions of criminal sentencing, see 63 Den. U.L. Rev. 291 (1986).
Annotator's note. Since § 18-1.3-104 is similar to § 16-11-101 as it existed prior to the 2002 relocation of certain criminal sentencing provisions, relevant cases construing that provision have been included in the annotations to this section.
Only the general assembly may define crimes and prescribe punishments. People v. Hinchman, 196 Colo. 526 , 589 P.2d 917 (1978), cert. denied, 442 U.S. 941, 99 S. Ct. 2883, 61 L. Ed. 2d 311 (1979).
It is the general assembly's prerogative to define crimes and prescribe punishments; the courts have no jurisdiction to impose sentences not in accord with the minimum and maximum terms specified by statute. People v. Trujillo, 631 P.2d 146 (Colo. 1981).
Trial court had no authority to order alternate sentence in the event that death penalty statute was later found unconstitutional and, therefore, alternate sentence is illegal and void. People v. Corbett, 713 P.2d 1337 (Colo. App. 1985).
The purpose of this section is to give greater flexibility in sentencing. Nugent v. District Court, 184 Colo. 353 , 520 P.2d 592 (1974).
Probation is accorded only to a defendant who seeks it or is willing to accept it as a sentence. People v. Rollins, 771 P.2d 32 (Colo. App. 1989).
A trial court cannot impose a sentence to probation without the defendant's consent to the terms and conditions of the probationary sentence. Veith v. People, 2017 CO 19, 390 P.3d 403.
Defendant consented to probation in lieu of incarceration; the trial court exceeded the scope of defendant's consent when it imposed a sentence of ten years of incarceration in addition to probation. The trial court lacked authority to impose that sentence. Veith v. People, 2017 CO 19, 390 P.3d 403.
The court may impose a fine in lieu of incarceration or probation without the consent of the prosecutor where defendant is convicted of a class 2 felony not involving violence or an assault on a firefighter or a peace officer. People v. Thompson, 897 P.2d 857 (Colo. App. 1994).
Under this section, the trial court may grant probation, if a defendant is eligible for probation, or the trial court may impose a sentence of imprisonment for a definite period of time. Chae v. People, 780 P.2d 481 (Colo. 1989).
Under parole procedures an indeterminate sentence usually results in an earlier release. It cannot be said to be harsh or excessive so as to require the scrutiny of an appellate court. Nugent v. District Court, 184 Colo. 353 , 520 P.2d 592 (1974).
Convicted defendant entitled to indeterminate sentence where act effective prior to conviction. A defendant convicted in a criminal proceeding which was not yet final was entitled to indeterminate sentencing in a Crim. P. 35 proceeding since this section and § 16-11-304 requiring such sentencing became effective after the commission of the crime but prior to the date of conviction and sentencing. People v. Griswold, 190 Colo. 136 , 543 P.2d 1251 (1975).
Section 18-1-409 entitled defendant to benefit of this section. Defendant, who was sentenced prior to the effective date of the 1973 amendments to this section and § 16-11-304 -- which legislation provided for the imposition of indeterminate sentences for class 4 and class 5 felonies -- was entitled to the benefit of this legislation under relief sought by § 18-1-409 . People v. Thornton, 187 Colo. 202 , 529 P.2d 628 (1974).
A defendant who was sentenced to a term with a fixed minimum and fixed maximum for conviction of a class 4 felony was entitled under § 18-1-409 to the benefits of this section and § 16-11-304 . People v. Race, 187 Colo. 204 , 529 P.2d 629 (1974).
Repeal of subsection (1)(d) after sentence no ground for relief. Where the effective date (July 1, 1979) of the repeal of § 16-11-101 (1)(d) was more than three months after the defendant was sentenced under its provisions, the repeal did not entitle the defendant to relief under § 18-1-410 (1)(f)(I) . People v. Steelman, 200 Colo. 177 , 613 P.2d 334 (1980).
Supreme court was without power to alter minimum sentence to indeterminate sentence. Where defendant, who was sentenced to a minimum term of three years for the crime of manslaughter, sought a declaration that he was immediately eligible for parole consideration on the ground that this section and § 16-11-304 , enacted subsequent to his sentencing, required that a maximum sentence be imposed but eliminated the minimum sentence for the crime of manslaughter, the supreme court held that it did not have the power to alter defendant's minimum sentence to make the sentence indeterminate. People v. Davis, 186 Colo. 186 , 526 P.2d 312 (1974).
Duration of period of probation is limited to maximum term of imprisonment specified for the offense in question, and the provision of § 16-11-202 permitting the court to grant probation "for such a period and upon such terms and conditions as it deems best", does not give the court the authority to extend the terms of probation beyond the maximum term of imprisonment. People v. Knaub, 624 P.2d 922 (Colo. App. 1980); People v. Benavidez, 58 P.3d 1142 (Colo. App. 2002).
For the period of probation allowable for offenses within the presumptive ranges established by § 18-1-105 , see People v. Flenniken, 749 P.2d 395 ( Colo. 1988 ) and People v. Hunter, 757 P.2d 631 ( Colo. 1988 ).
A trial court may not impose a probationary term that is greater than the longest possible period of incarceration for the underlying misdemeanor. People v. Kennaugh, 80 P.3d 315 (Colo. 2003).
The maximum sentences established in § 18-1-105 for imprisonment periods do not apply to probation periods to which a defendant may be sentenced. People v. Flenniken, 749 P.2d 395 (Colo. 1988).
District court possessed jurisdiction to sentence defendant to a term of probation which did not exceed the maximum term of imprisonment in the aggravated range for the crime committed; the term of probation was not limited to the presumptive range for the crime committed. Hunter v. People, 757 P.2d 631 (Colo. 1988).
Incarceration a possible condition of probation. Incarceration, while a sentencing alternative, is also a possible specific condition of probation. People v. Horton, 628 P.2d 117 (Colo. App. 1980).
Sentencing following revocation of deferred judgment. When a deferred judgment is revoked in a felony case, sentencing to the penitentiary is not mandatory. The type of sentence to be imposed after the revocation of the deferred sentence is a matter within the discretion of the trial court, and a defendant is entitled to a consideration of all statutory sentencing alternatives at the time the deferred sentence is revoked and judgment of conviction is entered against him. Adair v. People, 651 P.2d 389 (Colo. 1982).
Court cannot suspend portion of sentence to alter limits of sentence. The court may not circumvent legislative dictates by first sentencing within legislatively prescribed parameters, and then suspending a portion of the minimum and maximum, for to do so would be an invasion of the general assembly's exclusive province to set punishments. People v. Hinchman, 196 Colo. 526 , 589 P.2d 917 (1978), cert. denied, 442 U.S. 941, 99 S. Ct. 2883, 61 L. Ed. 2d 311 (1979).
Trial court may not suspend sentence after denying probation. There are no provisions in this article authorizing the suspension of imposition or execution of sentence apart from a concomitant grant of probation, and a trial court may not circumvent the statutory requirements by denying probation and thereafter undertaking to suspend a sentence validly imposed. People v. Patrick, 38 Colo. App. 103, 555 P.2d 182 (1976).
A trial court, having rejected probation, cannot circumvent legislative dictates by sentencing within prescribed parameters, suspending the sentence, and then imposing conditions which are authorized only in connection with probation. People v. District Court, 673 P.2d 991 ( Colo. 1983 ); People v. Flenniken, 749 P.2d 395 ( Colo. 1988 ).
District court had no statutory authority to suspend the sentence of imprisonment and to impose conditions on that suspension. Chae v. People, 780 P.2d 481 (Colo. 1989).
Decision to deny probation is not subject to appellate review where trial court considered all circumstances and available evidence. People v. Godwin, 679 P.2d 1095 (Colo. App. 1983); People v. Graham, 678 P.2d 1043 (Colo. App. 1983), cert. denied, 467 U.S. 1216, 104 S. Ct. 2660, 81 L. Ed. 2d 366 (1984); People v. Robinson, 713 P.2d 1333 (Colo. App. 1985); People v. Emery, 812 P.2d 665 (Colo. App. 1990).
Appellate court has jurisdiction to review conditions of probation. The appellate court has jurisdiction under subsection (1)(a) to review the conditions of defendant's probation where the argument is that the conditions of probation are contrary to the provisions of this title. People v. Cera, 673 P.2d 807 (Colo. App. 1983); People v. Brockelman, 916 P.2d 592 (Colo. App. 1995), aff'd on other grounds, 933 P.2d 1315 ( Colo. 1997 ); People v. Watkins, 2012 COA 15 , 282 P.3d 500; People v. Jenkins, 2013 COA 76 , 305 P.3d 420.
However, the appellate court has no jurisdiction under subsection (1)(a) to review the conditions of probation where the argument is that the conditions of probation are contrary to the provisions of title 17. People v. Smith, 681 P.2d 525 (Colo. App. 1983).
When credit for presentence confinement presumed. Credit for presentence confinement must be presumed when the sentence imposed, plus the presentence confinement, does not exceed the maximum possible sentence. People v. Lobato, 192 Colo. 357 , 559 P.2d 224 (1977).
Having initially taken into consideration the presentence confinement, it was not necessary for a court in resentencing to again recite what had been expressly stated before -- that presentence confinement had been considered by the court. People v. Lobato, 192 Colo. 357 , 559 P.2d 224 (1977).
This section defines the sentencing alternatives that are within a court's jurisdiction which do not include the authority to enter orders modifying parole eligibility. People v. Anaya, 894 P.2d 28 (Colo. App. 1994).
The substance of the principles articulated in the American Bar Association Standards Relating to Sentencing Alternatives and Procedures § 3.5, insofar as they are consistent with the stated general purposes of the Colorado code of criminal procedure, may be deemed to be "authorized by law" within the meaning of paragraph (f) of subsection (1) of this section and Crim. P. 32(b). People v. Lewis, 193 Colo. 203 , 564 P.2d 111 (1977).
Applied in People v. Sandoval, 36 Colo. App. 403, 541 P.2d 105 (1975); People v. Soper, 628 P.2d 604 ( Colo. 1981 ); People v. Hotopp, 632 P.2d 600 ( Colo. 1981 ); People v. Quintana, 634 P.2d 413 (Colo. 1981), overruled on other grounds in People v. Porter, 2015 CO 34, 348 P.3d 922; People v. Madonna, 651 P.2d 378 ( Colo. 1982