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).

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 ).

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 ).

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).

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 ).

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).

Editor's note:

1. Amendments to subsection (7)(b)(II) by Senate Bill 03-147 and House Bill 03-1020 were harmonized.
2. 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).

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).

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 ).

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.

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.

ANNOTATION

Applied in People v. Aragon, 665 P.2d 137 (Colo. App. 1982); People v. Germany, 674 P.2d 345 ( Colo. 1983 ).

ANNOTATION

Analysis

• I. General Consideration.
• II. Presumption of Innocence.
• III. Proof Beyond Reasonable Doubt.

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).

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.

ANNOTATION

Analysis

• I. General Consideration.
• II. Scope of Right to Speedy Trial.
• III. Enforcement of Right.

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 ).

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).

ANNOTATION

Analysis

• I. General Consideration.
• II. Joinder and Election of Offenses.
  • A. In General.
  • B. Illustrative Cases.
• III. Lesser Included Offenses.
  • A. In General.
  • B. Legal Standard.
  • C. Jury Instructions.
  • D. Finding of Lesser Included Offenses.
  • E. Not A Lesser Included Offense.

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 ).

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 ).

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.

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.

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.

ANNOTATION

Law reviews. For article, "Trial Counsel's Continued Duty of Confidentiality in Postconviction Proceedings", see 48 Colo. Law. 32 (Dec. 2019).

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 ).

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).

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 ).

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).

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 ).

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).

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 ).

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).

ANNOTATION

Analysis

• I. General Consideration.
• II. Trial and Punishment.
  • A. In General.
  • B. Indictment or Information.
  • C. Evidence.
  • D. Instructions.
• III. Illustrative Cases.

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).

ANNOTATION

Law reviews. For article, "Criminal Prosecution of Employers for Workplace Deaths and Injuries", see 16 Colo. Law. 1974 (1987).

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).

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).

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).

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).

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 ).

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).

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).

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).

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).

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).

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).

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).

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 __.

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).

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 ).

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 ).

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 ).

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).

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 ).

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).

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).

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.

Editor's note:

1. This section was similar to former § 18-1-1104 as it existed prior to 2009.
2. Subsection (4) provided for the repeal of this section, effective July 1, 2010. (See L. 2009, p. 102 .)

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).

Editor's note:

1. This section is similar to former § 16-7-403 as it existed prior to 2002.
2. 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 ).

Editor's note:

1. This section was similar to former § 16-7-403.7 as it existed prior to 2002.
2. Subsection (6) provided for the repeal of this section, effective July 1, 2006. (See L. 2002, p. 1367 .)

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.

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 ); People v. Manley, 707 P.2d 1021 (Colo. App. 1985).

ANNOTATION

Subsection (4) requires sheriff to charge the trust checking account of an inmate on work release for board only if the inmate has such an account, which is not required. People v. Gallegos, 260 P.3d 15 (Colo. App. 2010).

Sheriff did not take any public moneys or public property pursuant to this section where trust checking accounts are not required. People v. Gallegos, 260 P.3d 15 (Colo. App. 2010).

Editor's note:

1. This section is similar to former § 16-11-201 as it existed prior to 2002.
2. Amendments to subsection (2)(c) by House Bill 10-1338 and House Bill 10-1352 were harmonized.

Cross references: (1) For procedures relevant to application for probation, see Crim. P. 32.

(2) For the legislative intent contained in the 2003 act amending subsection (2) and enacting subsection (2.1), see section 1 of chapter 424, Session Laws of Colorado 2003.

ANNOTATION

Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982). For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982). For article, "Criminal Law", which discusses a Tenth Circuit decision dealing with probation proceedings, see 61 Den. L.J. 274 (1984).

Annotator's note. Since § 18-1.3-201 is similar to § 16-11-201 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.

This section is general in nature, and excepts only class one felonies and class two petty offenses. People v. Burke, 185 Colo. 19 , 521 P.2d 783 (1974).

Misdemeanant may apply for probation. An offense specifically designated by statute as a misdemeanor, although for some purposes might be characterized as a petty offense, comes plainly within the law permitting application for probation. Coffey v. County Court, 177 Colo. 81 , 492 P.2d 839 (1972) (decided under repealed § 39-16-3, C.R.S. 1963).

The general assembly did not intend to repeal the mandatory sentencing provision of § 42-2-130 , sub silentio, by implication, or otherwise by enactment of this section. People v. Burke, 185 Colo. 19 , 521 P.2d 783 (1974).

Subsection (2) cannot be read to exclude persons convicted of two prior felonies from community correctional programs, since such programs are not purely probationary. People ex rel. VanMeveren v. District Court, 195 Colo. 34 , 575 P.2d 4 (1978).

Court may not disregard legislative sentencing mandates. A court is not free to disregard the legislative mandate of §§ 16-11-301 and 16-11-308 and this section, even when it appears to dictate a sentence which the court considers inappropriate to a particular case. People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981).

Unconstitutionally obtained conviction cannot be considered for eligibility for probation. People v. McIntosh, 695 P.2d 795 (Colo. App. 1984).

Subsection (2) prohibits judge from utilizing suspended sentence as means for granting probation. The legislative mandate of subsection (2) is intended to prohibit a trial judge from circumventing the clear wording of the statute by utilizing a suspended sentence as a means for granting probation. The statutory command requires incarceration when any defendant, before the court for imposition of sentence, has been previously convicted of two felonies. Herrman v. District Court, 186 Colo. 350 , 527 P.2d 1168 (1974).

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).

Two felonies need not be separately brought and tried for purposes of determining eligibility for probation. People v. Nicholas, 700 P.2d 921 (Colo. App. 1984).

The more restrictive provisions of subsection (4)(a)(II) for placing a defendant twice convicted of a felony on probation do not prevent the court from placing any defendant twice convicted of a felony on probation under the provisions of subsection (4)(a)(I). Chism v. People, 80 P.3d 293 (Colo. 2003).

To interpret subsection (4)(a)(II) as prescribing the exclusive conditions for waiver of the two-felony rule would repeal by implication subsection (4)(a)(I), which clearly permits a broader class of waivers. Constructions that work a repeal by implication are not favored unless unavoidable. Chism v. People, 80 P.3d 293 (Colo. 2003).

The court's duty to fix the amount of restitution is not confined to sentences to probation but applies equally to sentences to imprisonment. People v. Johnson, 780 P.2d 504 (Colo. 1989).

Court agreed with defendant's construction that "conviction" referenced in subsection (2)(a.5) refers to defendant's guilty plea, not the subsequent revocation of defendant's deferred judgment and sentence. Therefore, other felony convictions that occurred before the revocation cannot be considered "prior" felonies under this section, thus allowing probation to be an option. People v. Kiniston, 262 P.3d 942 (Colo. App. 2011).

Defendant who had two prior convictions at the time a third conviction was handed down was ineligible for probation. Defendant's argument that he had only one conviction at the time of commission of the underlying third crime must fail. This section clearly sets the cut-off point for determining the existence of prior convictions at the time of the third conviction. People v. Harvey, 819 P.2d 1087 (Colo. App. 1991).

If prosecution recommends waiver of the two-felony rule prior to sentencing, court may resentence defendant to probation after the revocation hearing without a second recommendation of prosecution to waive the two-felony rule. People v. Nance, 221 P.3d 428 (Colo. App. 2009).

Length of probation term not subject to statutes governing length of prison term. Imposition of prison term of six years is not controlling of length of probation term. People v. Martinez, 844 P.2d 1203 (Colo. App. 1992).

The court may impose a fine in lieu of incarceration or probation without the consent of the prosecutor where the 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).

Applied in People v. Bartsch, 37 Colo. App. 52, 543 P.2d 1273 (1975); People v. Crandall, 37 Colo. App. 220, 544 P.2d 411 (1975); People v. Turner, 644 P.2d 951 ( Colo. 1982 ).

ANNOTATION

Annotator's note. Since § 18-1.3-202 is similar to § 16-11-202 as it existed prior to the 2002 relocation of certain criminal sentencing provisions and repealed § 39-16-6, C.R.S. 1963, relevant cases construing those provisions have been included in the annotations to this section.

No equal protection violation. This section and the work release statute, § 16-11-212, establish general statutory probation dispositions for all defendants eligible for probation and do not create classifications resulting in disparate treatment. People v. Garberding, 787 P.2d 154 (Colo. 1990).

Probation is a creature of statute. People v. Ray, 192 Colo. 391 , 560 P.2d 74 (1977).

Probation is a privilege, not a right, and an order of probation may be revoked if a probationer violates any condition of probation. People v. Colabello, 948 P.2d 77 (Colo. App. 1997).

This section is similar to the original federal probation law. People v. Ledford, 173 Colo. 194 , 477 P.2d 374 (1970).

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).

Subject to the requirement that any conditions imposed as terms of probation must be authorized by the general assembly, trial courts are given wide discretion in imposing conditions upon a sentence of probation. People v. Richards, 795 P.2d 1343 (Colo. 1990).

Court may not sentence a defendant to both imprisonment and probation in the same case. If the court determines that imprisonment is the more appropriate sentence, it may not impose a sentence to probation on a separate count in the same case. Allman v. People, 2019 CO 78, 451 P.3d 826.

Trial court has statutory authority to order that a sentence to probation be served consecutively to another sentence. People v. Trujillo, 261 P.3d 485 (Colo. App. 2010).

Subsection (1) does not preclude deferring commencement of a probationary sentence. People v. Trujillo, 261 P.3d 485 (Colo. App. 2010).

The trial court has the authority to order domestic violence treatment as a condition of defendant's probation without a jury finding that the defendant committed an "act of domestic violence". Because the court had the authority to attach whatever conditions to probation the court deemed appropriate, the U.S. supreme court's decision in Apprendi v. New Jersey, 530 U.S. 466 (2000), did not require a jury finding of an act of domestic violence before domestic violence treatment was ordered as a condition of probation. People v. Goldfuss, 98 P.3d 935 (Colo. App. 2004).

A trial court has jurisdiction to grant probation either by suspending imposition of sentence or suspending execution of the sentence. Coffey v. County Court, 177 Colo. 81 , 492 P.2d 839 (1972).

It acts upon probation report. The court acts pursuant to this section upon all data relating to the applicant for probation submitted to a court in the form of a written report. Logan v. People ex rel. Alamosa County, 138 Colo. 304 , 332 P.2d 897 (1958).

A trial court shall give careful consideration to the information supplied by the probation officer. Wolford v. People, 178 Colo. 203 , 496 P.2d 1011 (1972).

No automatic stay of probation order pending appeal. Under subsection (1), the trial court retains jurisdiction to modify and terminate probation during the pendency of an appeal unless a stay has been granted. People v. Widhalm, 991 P.2d 291 (Colo. App. 1999).

The broad grant of power under this section encompassed a deferred judgment procedure. People v. Ray, 192 Colo. 391 , 560 P.2d 74 (1977).

Each time a defendant is sentenced or resentenced to probation, the court may sentence the defendant to a commitment to jail for up to the maximum allowed by statute. People v. Gravina, 2013 COA 22 , 300 P.3d 990.

Inapplicable to delinquent child. The plain intendment of the Colorado Children's Code militates against the application of this section via § 16-11-210 to a delinquent child under the age of 18 years. People in Interest of A.F., 37 Colo. App. 185, 546 P.2d 972 (1975), aff'd, 192 Colo. 207 , 557 P.2d 418 (1976).

A juvenile court does not have the statutory authority to impose a limited or partial confinement in county jail as a condition of probation for a juvenile under 18 years of age. People v. A.F., 192 Colo. 207 , 557 P.2d 418 (1976).

Although this section does grant courts the authority to condition probation upon service of sentences in city or county jails, such conditions are clearly contravention of numerous expressions of legislative intent in the Colorado Children's Code. People v. A.F., 192 Colo. 207 , 557 P.2d 418 (1976).

This section applies to sex offender intensive supervision program (SOISP) sentences except where the language conflicts with more specific provisions contained in the statutes governing SOISP sentences. People v. Trujillo, 261 P.3d 485 (Colo. App. 2010).

Trial court had authority to direct that defendant's SOISP would commence consecutively at the end of his incarceration on another conviction. People v. Trujillo, 261 P.3d 485 (Colo. App. 2010).

Trial court had jurisdiction to grant probation. Coffey v. County Court, 177 Colo. 81 , 492 P.2d 839 (1972).

The maximum sentences in the presumptive ranges 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).

The decision of the supreme court in People v. Flenniken will be given retroactive effect. People v. Cagle, 780 P.2d 13 (Colo. App. 1989).

The minimum sentences established in § 18-1-105 do not establish the minimum period of probation to which a defendant may be sentenced. The length of probation is at the sentencing judge's discretion. People v. Herr, 868 P.2d 1121 (Colo. App. 1993).

Probationary sentence is not illegal because it exceeds the maximum length authorized for a sentence to incarceration. People v. Salas, 42 P.3d 68 (Colo. App. 2001).

But the provisions of this section authorizing a court to grant "probation for such period and upon such terms and conditions as it deems best" does not give the court unlimited discretion to determine the probationary period. A trial court thus exceeds its authority if it sentences a defendant to a probationary term longer than the maximum sentence to incarceration allowed for a misdemeanor offense. People v. Benavidez, 58 P.3d 1142 (Colo. App. 2002).

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).

Court may impose an indeterminate term of probation that may exceed maximum range of incarceration for offense. The court's discretion to impose probation is not limited by statutory ranges governing sentences to incarceration. The court had authority to order indeterminate probation of ten years to life even though the maximum period of incarceration permitted for the crime was twelve years and the defendant could not properly be classified as a sex offender subject to lifetime supervision. People v. Jenkins, 2013 COA 76 , 305 P.3d 420.

The specific statutory provisions of § 42-4-1301 that contain a mandatory sentencing scheme for alcohol-related driving offenses and which provide for extended treatment of the underlying cause of the criminal conduct, prevail over the general provisions of this section. People v. Martinnillie, 940 P.2d 1090 (Colo. App. 1996).

Applied in People v. Sandoval, 36 Colo. App. 403, 541 P.2d 105 (1975); People v. Horton, 628 P.2d 117 (Colo. App. 1980); People v. Martinez, 657 P.2d 967 (Colo. App. 1982); People v. Trujillo, 2018 COA 12 , 433 P.3d 78.

ANNOTATION

Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982).

Annotator's note. Since § 18-1.3-203 is similar to § 16-11-203 as it existed prior to the 2002 relocation of certain criminal sentencing provisions and repealed § 39-16-6, C.R.S 1963, and § 39-16-6, CRS 53, relevant cases construing those provisions have been included in the annotations to this section.

The granting of probation involves the exercise of discretion on the part of a trial judge. Logan v. People ex rel. Alamosa County, 138 Colo. 304 , 332 P.2d 897 (1958).

It is not a matter of right for a defendant. It is a matter of grace and suspends conditionally what otherwise would be a harsher decree. Gehl v. People, 161 Colo. 535 , 423 P.2d 332 (1967).

Probation is a privilege rather than a right. It suspends conditionally what might be a harsher judgment. It is, in effect, a contract made by the court and sanctioned by the statute with the convicted person. Holdren v. People, 168 Colo. 474 , 452 P.2d 28 (1969).

Judge considers community, offense, and offender. A trial judge in the exercise of his discretion in a probation matter considers three facets of the problem - the community, the offense, and the offender, in that order - and if upon consideration of these factors he concludes that the applicant is a worthy risk for probation, he has the power to grant it. Logan v. People ex rel. Alamosa County, 138 Colo. 304 , 332 P.2d 897 (1958).

The setting, nature, and circumstances of an offense, particularly as they furnish a clue to the personality of an offender, whether an offense is violent or nonviolent, and the motives actuating a defendant in committing an offense are components which a trial court will evaluate when considering the offense as a factor in the question of granting probation, as well as the background of a defendant and information corroborating or denying the defendant's will to reform and his ability to adjust himself to community life. Logan v. People ex rel. Alamosa County, 138 Colo. 304 , 332 P.2d 897 (1958).

The public interest in safety and deterrence, when considered in isolation, might well justify an alternative to sentencing in the case of a first-time offender, at least in crimes not causing or threatening serious harm to the person or property of others. People v. Scott, 200 Colo. 402 , 615 P.2d 35 (1980).

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).

Trial court did not err or impermissibly infringe upon defendant's fifth amendment rights in denying him the privilege of probation when defendant would not, during the pendency of his appeal and in the course of sex offender treatment, admit responsibility for his crime. People v. Whitlock, 2014 COA 162 , 412 P.3d 667.

Trial court did not err in stating that it had considered the factors set forth in this section prior to imposing sentence. This section requires the court to consider factors similar to those allowed under the sentencing statute, and the court did not abuse its discretion in doing so. People v. Roadcap, 78 P.3d 1108 (Colo. App. 2003).

Power to suspend sentence not affected by failure to grant probation. So long as the circumstances would have justified a grant of probation and the defendant was eligible for probation, the fact that the judge did not impose it does not vitiate his power to suspend sentences. People v. Henderson, 196 Colo. 441 , 586 P.2d 229 (1978), overruled on other grounds in People v. District Court, 673 P.2d 991 ( Colo. 1983 ).

Surrounding circumstances of defendant's alien status may be relevant to a sentencing court's decision whether to grant or deny probation. Although consideration of defendant's status as a foreign national, in and of itself, is improper, the fact that defendant is in the United States illegally may, under certain circumstances, provide substantial and compelling reasons to depart from sentencing guidelines and deny probation. People v. Hernandez-Clavel, 186 P.3d 96 (Colo. App. 2008).

Applied in People v. Martinez, 657 P.2d 967 (Colo. App. 1982).

ANNOTATION

Law reviews. For article, "The Problem of Compelling Fathers to Support their Dependent Children", see 27 Dicta 442 (1950). For article, "New Legislation Concerning the Mentally Disabled", see 11 Colo. Law. 2131 (1982). For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982). For article, "Criminal Procedure", which discusses a Tenth Circuit decision dealing with extension of probation, see 62 Den. U.L. Rev. 187 (1985). For article, "When May a Probation Condition Allowing Use of Medical Marijuana Violate the Code of Judicial Conduct? Judicial Respect for the Law and Promoting Public Confidence in the Judiciary", see 89 Denv. U.L. Rev. 1017 (2012).

Annotator's note. Since § 18-1.3-204 is similar to § 16-11-204 as it existed prior to the 2002 relocation of certain criminal sentencing provisions and repealed §§ 39-16-6 and 39-16-7, C.R.S 1963, and §§ 39-16-6 and 39-16-7, CRS 53, relevant cases construing those provisions have been included in the annotations to this section.

The purpose of probation is educational and reconstructive rather than primarily punitive or oppressive. Logan v. People ex rel. Alamosa County, 138 Colo. 304 , 332 P.2d 897 (1958); People v. Ledford, 173 Colo. 194 , 477 P.2d 374 (1970).

The basic purpose of probation is to provide a program which offers an offender the opportunity to rehabilitate himself without confinement, under the tutelage of a probation officer and under the continuing power of the court to impose a sentence for the original offense. People v. Ledford, 173 Colo. 194 , 477 P.2d 374 (1970).

By its very nature and definition, probation means and signifies liberty under certain imposed conditions. People v. Ledford, 173 Colo. 194 , 477 P.2d 374 (1970).

Probationary conditions serve the dual purpose of enhancing the reintegration of the offender into a responsible life style and affording society a measure of protection against recidivism. People v. Ressin, 620 P.2d 717 (Colo. 1980).

Void for vagueness doctrine applies to conditions of probation. Court will apply the same constitutional standards to conditions of probation as to statutes. There was nothing vague in the requirement that defendant actively participate and successfully complete treatment to the satisfaction of the probation officer and treatment provider. People v. Firth, 205 P.3d 445 (Colo. App. 2008).

Surrounding circumstances of defendant's alien status may be relevant to a sentencing court's decision whether to grant or deny probation. Although consideration of defendant's status as a foreign national, in and of itself, is improper, the fact that defendant is in the United States illegally may, under certain circumstances, provide substantial and compelling reasons to depart from sentencing guidelines and deny probation. People v. Hernandez-Clavel, 186 P.3d 96 (Colo. App. 2008).

Trial courts have a wide discretion in imposing certain conditions upon a probationer. People v. Ledford, 173 Colo. 194 , 477 P.2d 374 (1970).

Psychosexual evaluation may be required as a condition of probation. Defendant charged with attempted first degree sexual assault who pleads guilty to the lesser offense of third degree misdemeanor assault may be required to undergo a psychosexual evaluation as a condition of probation. People v. Fleming, 3 P.2d 449 (Colo. App. 1999).

A court may impose a variety of monetary conditions in connection with granting probation, including a requirement to make a charitable contribution. People v. Burleigh, 727 P.2d 873 (Colo. App. 1986).

Probation supervision fee need not be refunded. Unlike fines and surcharges, which are primarily punitive in nature, probation supervision fees are part of the rehabilitative process, from which a defendant benefits. People v. Noel, 134 P.3d 484 (Colo. App. 2005).

The trial court's power to revoke an individual's probation for failure to pay restitution does not extend beyond the expiration of the probation term imposed. The restitution statute cannot be read as automatically extending a probation term for collection of restitution checks. People v. Gore, 774 P.2d 877 (Colo. 1989).

Clear purpose of subsection (3) is to provide criminal defendant with notice of terms of his probation. People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980).

But failure to comply with subsection (3) did not require reversal of revocation in and of itself. People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980).

Parole revocation order must be reversed because defendant did not receive written or actual notice of the condition of probation that he was alleged to have violated. People v. Calderon, 2014 COA 144 , 356 P.3d 993.

Noncompliance with subsection (4), by failing to provide defendant notice of changes in probation conditions, is improper. People v. Frye, 997 P.2d 1223 (Colo. App. 1999).

The provisions of subsection (4)(a) do not give the court the discretion to terminate a sex offender's indeterminate probation prior to the offender's completion of the statutory minimum period of probation. People v. Dinkel, 2013 COA 19 , 321 P.3d 569.

Subsection (4)(a) is not applicable to the resentencing of an offender terminated from community corrections. A resentencing on a termination from community corrections is analogous to resentencing on a probation revocation. People v. Reyes, 2016 COA 98 , 409 P.3d 501.

The terms of probation must be derived from this section, as probation is purely a statutory creation. People v. Ledford, 173 Colo. 194 , 477 P.2d 374 (1970).

The program of probation should envisage only such terms and conditions as are clearly and specifically spelled out in the statutes, and such other conditions as fit the probationer by education and rehabilitation to take his place in society. Logan v. People ex rel. Alamosa County, 138 Colo. 304 , 332 P.2d 897 (1958); People v. Ledford, 173 Colo. 194 , 477 P.2d 374 (1970).

If an applicant is worthy, his release on probation should not be weighted with terms and conditions having nothing to do with the purpose and policy of probation laws. Logan v. People ex rel. Alamosa County, 138 Colo. 304 , 332 P.2d 897 (1958).

Condition of making charitable contribution was reasonably related to defendant's rehabilitation and to general purposes of probation. People v. Burleigh, 727 P.2d 873 (Colo. App. 1986).

Conditions of probation may impinge on defendant's constitutional right to freedom of association when those conditions bear a reasonable relationship to the goals of probation. Trial court was within its discretion in imposing conditions that prohibited defendant, convicted of second degree assault on a client by a psychotherapist, not only from continuing to practice as a psychotherapist, but also from engaging in any type of counseling of at-risk persons or contacting former psychotherapy clients. People v. Bolt, 984 P.2d 1181 (Colo. App. 1999).

Condition of probation imposed by probation officer that limited defendant's discussion in therapy, when defendant was not a therapist or a psychologist licensed to ascertain the appropriate subject matter for sex offender treatment, was not reasonably related to defendant's rehabilitation. People v. Harmon, 3 P.3d 480 (Colo. App. 2000).

The absence of an authorizing law or condition of probation does not necessarily render unconstitutional a warrantless search of a probationer's residence if based on a reasonable suspicion. The totality of all other relevant circumstances may render such a search reasonable. The defendant's status as a probationer on intensive supervised probation greatly reduced his reasonable expectation of privacy in his residence, and, combined with the other circumstances of the situation, justified the search by his probation officer. People v. Samuels, 228 P.3d 229 (Colo. App. 2009).

Defendant presumed to know that violation may result in revocation. Probation is a privilege, and a criminal defendant is presumed to know that the violation of any term of his probation may result in revocation. People v. Zimmerman, 616 P.2d 997 (Colo. App. 1980).

A court may require a defendant to make restitution or reparation to the victim of his transgression, and to pay court costs and expenses of supervision by the probation office. Logan v. People ex rel. Alamosa County, 138 Colo. 304 , 332 P.2d 897 (1958).

Defendant must have ability to pay restitution. The reason for requiring that ability to pay restitution be established before probation can be revoked is to allow revocation only where the probationer unreasonably or willfully fails to comply with the terms of his probation, because before revocation of probation for failure to make ordered restitution payments can be effected, the trial court must find that the defendant had the ability to pay at the time the payments should have been made. Strickland v. People, 197 Colo. 488 , 594 P.2d 578 (1979).

Before revoking probation the court must make a finding of present ability to pay under subsection (2)(e). People v. Romero, 192 Colo. 106 , 559 P.2d 1101 (1976); Strickland v. People, 197 Colo. 488 , 594 P.2d 578 (1979).

It is required that one have the present ability to pay which contemplates that: (1) A job for which the probationer is qualified is available; (2) the job would produce an income adequate to meet his obligations; and (3) the probationer unjustifiably refuses to take it. People v. Romero, 192 Colo. 106 , 559 P.2d 1101 (1976); Strickland v. People, 197 Colo. 488 , 594 P.2d 578 (1979).

Absent such finding, probation to be reinstated. If the court finds that the defendant did not have the ability to pay at the time of the revocation hearing, it shall reinstate defendant's probation. People v. Romero, 196 Colo. 102 , 559 P.2d 1101 (1976).

Court may require defendant to make child support payments. People v. Silcott, 177 Colo. 451 , 494 P.2d 835 (1972).

But may not require posting of appearance bond. Nothing in the statutory law on probation expressly or implicitly clothes a trial court with the discretionary power to require the posting of an appearance bond as a condition of probation. Whether a prisoner is worthy of probation should not hinge on his ability to furnish a bond. To permit a court to require such a bond as a condition of probation would enlarge the punitive powers of a court beyond that contemplated by the laws of this state. Logan v. People ex rel. Alamosa County, 138 Colo. 304 , 332 P.2d 897 (1958).

When a probationer defends against an alleged violation of a nonpayment condition of probation based on a lack of financial means, the trial court cannot revoke probation and impose imprisonment without first determining whether the probationer failed to comply with probation willfully or failed to make sufficient bona fide efforts to acquire resources to comply with probation. Sharrow v. People, 2019 CO 25, 438 P.3d 730.

Probation cannot be contingent upon partial service of sentence in penitentiary. Since this section does not include a provision for service of a portion of a sentence in the state penitentiary as a condition of probation, a court is not free to impose as a condition of probation any period of incarceration in the state penitentiary nor may any period of incarceration in a county jail exceed the prescribed time limits. People ex rel. Gallagher v. District Court, 197 Colo. 481 , 593 P.2d 1372 (1979).

The court may not change the conditions of probation, including the payment of restitution, without notice and an opportunity for a hearing. People v. Stephenson, 12 P.3d 266 (Colo. App. 1999).

Court cannot order as a condition of probation that a qualified retirement plan be liquidated to pay restitution. People v. Stephenson, 12 P.3d 266 (Colo. App. 1999).

To read this section harmoniously with § 16-11-206, the proper standard of proof is a preponderance of the evidence when it is alleged that a condition of probation has been breached, even though the breaching conduct also may have constituted a criminal offense. People v. Moses, 64 P.3d 904 (Colo. App. 2002).

The costs of probation supervision assessed against the defendant should be for the period actually served before revocation, and not based on the probationary period originally imposed. People v. Howell, 64 P.3d 894 (Colo. App. 2002).

Where supervisory period extended by defendant's request. Although this section requires notice, a hearing, and a showing of good cause before a supervisory period is increased, the provisions of this section in this respect are not applicable when an extension of the period of supervision is granted at the defendant's own request. People v. Blackorby, 41 Colo. App. 251, 583 P.2d 949 (1978).

When a defendant agrees to an extension of probation, the defendant does not have a due process right to be advised of or receive the right to counsel before signing the extension. People v. Hotle, 216 P.3d 68 (Colo. App. 2008).

When a defendant agrees to an extension of probation, the defendant does not have a sixth amendment right to be advised of or receive the right to counsel before signing the extension. A motion to extend probation is not a critical stage of the proceeding requiring the right to counsel because the defendant is not faced with a consequential significant deprivation of liberty and is not entitled to a hearing in the absence of such a request. People v. Hotle, 216 P.3d 68 (Colo. App. 2008).

When a defendant agrees to an extension of probation, the statutory provisions concerning notice, a hearing, and a showing of good cause are not applicable. People v. Hotle, 216 P.3d 68 (Colo. App. 2008).

Where defendant consents to an extension of the period of probation, there is no requirement for a hearing or other proceeding designed to assure that defendant is making a knowing and voluntary decision. The due process protections afforded in a probation revocation hearing do not apply to an extension of probation. People v. Conner, 148 P.3d 235 (Colo. App. 2006).

Trial court did not lose jurisdiction over defendant's case when it did not enter the order extending defendant's probation until one day after defendant's probation term had ended. The procedures to extend defendant's probationary period were initiated before defendant's probationary term ended, which included the filing of a motion with the court that satisfied the requirements of subsection (4) while defendant was still on probation. People v. Romero, 198 P.3d 1209 (Colo. App. 2007).

No presentence confinement credit for time spent in halfway house. Where residency in a community corrections facility is imposed as a condition of probation, it does not involve confinement as contemplated by § 16-11-306; thus no presentence confinement credit may be given for time spent at a community corrections halfway house. People v. Radar, 652 P.2d 1085 (Colo. App. 1982).

Condition that probationer not impose his religious beliefs on other people while performing public service during probationary period is neither necessary to ensure that the defendant lead a law-abiding life, nor does it enhance the probationer's rehabilitation. People v. Lybarger, 790 P.2d 855 (Colo. App. 1989), rev'd on other grounds, 807 P.2d 570 ( Colo. 1991 ).

The trial court has broad discretion in setting the terms and conditions of restitution orders, and it did not abuse its discretion in ordering that restitution include the amount paid by the victim in reward money. The court found that payment of the reward was reasonable under the circumstances and would not have occurred but for the defendant's actions. The fact that the victim had no legal obligation to offer a reward and may not have been contractually bound to pay the award was immaterial. People v. Dillingham, 881 P.2d 440 (Colo. App. 1994).

To determine whether a specific geographic restriction is reasonably related to the statutory purposes of probation, the following factors should be considered: (1) Whether the restriction is reasonably related to the underlying offense; (2) whether the restriction is punitive to the point of being unrelated to rehabilitation; (3) whether the restriction is unduly severe and restrictive because the defendant resides in the area and is forced to relocate or is employed or anticipates employment in the area; (4) whether the defendant may petition the court to lift the restriction temporarily when necessary; and (5) whether less restrictive means are available. People v. Brockelman, 933 P.2d 1315 (Colo. 1997).

These factors are not exhaustive but are helpful tools which, at a minimum, should form a basis to guide trial courts in imposing a geographic restriction as a condition of probation. People v. Brockelman, 933 P.2d 1315 (Colo. 1997).

Factors applied and a nexus found to exist between the underlying offense and the probation condition imposed. People v. Brockelman, 933 P.2d 1315 ( Colo. 1997 ); People v. Bolt, 984 P.2d 1181 (Colo. App. 1999).

A district court may, as a condition of probation, prohibit a defendant from having unsupervised contact with his or her children. The court properly considered defendant's parenting history, the severity of her offense, and the necessity to assist her in leading a law-abiding life while affording society and her young children a measure of protection against recidivism. People v. Forsythe, 43 P.3d 652 (Colo. App. 2001).

Trial court had the authority under former §§ 16-11-204 (4) and 17-27-105 (1)(h) (now §§ 18-1.3-204 (4) and 18-1.3-301 (1)(h)) to modify defendant's community corrections sentence before it expired. The court retained this authority after defendant's release date passed because re-sentencing proceedings were initiated prior to that date. People v. Knott, 83 P.3d 1147 (Colo. App. 2003).

Not plain error to impose probation conditions that prohibit sex offender who victimized children from having sexual contact with adults without prior approval and from possessing pornography. The probation conditions were not unconstitutionally overbroad or vague. People v. Lientz, 2012 COA 118 , 317 P.3d 1215.

Possession or use of marijuana for medical purposes is an "offense" within the meaning of this section. For the purposes of subsection (1), "offense" includes violations of federal law, and federal law makes it unlawful for any person to knowingly or intentionally possess marijuana. People v. Watkins, 2012 COA 15 , 282 P.3d 500.

The plain language of subsection(2)(a) creates a presumption that a defendant may use medical marijuana while on probation unless an exception applies. In order for a sentencing court to enter an order prohibiting a defendant from using medical marijuana as part of a sentence, it must do so based on material evidence that prohibiting the defendant's otherwise-authorized medical marijuana use is necessary and appropriate to promote statutory sentencing goals. It is error for the court to require the defendant to present evidence as to why the defendant should be allowed to use medical marijuana while on probation. Walton v. People, 2019 CO 95, 451 P.3d 1212.

A district court has no authority to collect the fee imposed pursuant to subsection (2)(a)(V) after the completion of a deferred sentence and dismissal of the underlying charges. Pineda-Liberato v. People, 2017 CO 95, 403 P.3d 160.

ANNOTATION

Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982).

Annotator's note. Since § 18-1.3-205 is similar to § 16-11-204.5 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 legislative purpose underlying the statutory scheme is obvious from the statutory test: In all cases in which a convicted defendant's criminal conduct causes pecuniary damages to a victim, the sentencing court is obliged to order the defendant to pay restitution to the victim or the victim's immediate family and to fix the amount of such restitution as part of the judgment, whether the sentence be to probation or to a term of incarceration. People v. Johnson, 780 P.2d 504 (Colo. 1989).

Restitution is intended to make the victim whole. People v. King, 648 P.2d 173 (Colo. App. 1982); People v. Catron, 678 P.2d 1 (Colo. App. 1983); People v. Phillips, 732 P.2d 1226 (Colo. App. 1986); People v. Engel, 746 P.2d 60 (Colo. App. 1987).

Replacement value should be the measure of restitution when the plaintiff demonstrates that they will have to replace an item that is not readily available at fair market value. Where restitution is sought for "anticipated future expense" there is the possibility that the plaintiff will reap a windfall. Nonetheless, a victim who anticipates incurring future expenses is entitled to be placed in the same financial position he or she would have been in had the wrong not been committed. People v. Stafford, 93 P.3d 572 (Colo. App. 2004).

Restitution is not a substitute for a civil action to recover damages. People v. King, 648 P.2d 173 (Colo. App. 1982); People v. Catron, 678 P.2d 1 (Colo. App. 1983).

Mere pendency of civil suit between criminal and victim does not vitiate trial court's duty to order restitution. People v. Smith, 754 P.2d 1168 (Colo. 1988).

A release from liability obtained in a civil settlement cannot limit a criminal court's authority to order restitution equivalent to actual pecuniary damages. A contrary conclusion would violate the plain language of this section and would frustrate the rehabilitative purposes of probation by permitting criminal defendants to avoid financial responsibility for their conduct. People v. Maxich, 971 P.2d 268 (Colo. App. 1998).

Application of 1985 amendment at 1994 restitution hearing not additional punishment within meaning of ex post facto prohibition of state constitution. People v. Stewart, 926 P.2d 105 (Colo. App. 1996).

Restitution provisions of this section do not apply where defendant, who pleaded guilty to theft by receiving, was not sentenced to probation, but trial court could impose restitution under statutes requiring restitution as a condition of parole (§§ 16-11-104 (4) and 17-2-201 (5)(c)(I)). People v. Schmidt, 700 P.2d 925 (Colo. App. 1985).

The court's duty to fix the amount of restitution is not confined to sentences to probation but applies equally to sentences to imprisonment. People v. Johnson, 780 P.2d 504 (Colo. 1989).

The fact that the victim might have filed a civil claim for damages against the convicted offender, or intends to do so in the future does not dispense with the courts obligation to order the offender to pay restitution and to fix the amount of the restitution at the time of sentencing. People v. Johnson, 780 P.2d 504 (Colo. 1989).

"Victim" construed. The term "victim", as it appears in this section, refers to the party immediately and directly aggrieved by the criminal act, and not to others who suffer loss because of some relationship, contractual or otherwise, to the directly aggrieved party. People v. King, 648 P.2d 173 (Colo. App. 1982); People v. Catron, 678 P.2d 1 (Colo. App. 1983); People v. Jones, 701 P.2d 868 (Colo. App. 1984) (all cases decided prior to 1985 amendment).

Towing company is a "victim" for purposes of restitution because it sustained a pecuniary loss as a result of defendant's criminal conduct and is therefore a person aggrieved by the offender's conduct. People v. Clay, 74 P.3d 473 (Colo. App. 2003).

A decedent's minor children are not "victims" within the meaning of the statute even though it is obvious that minor children suffer a loss at the death of a parent. People v. Catron, 678 P.2d 1 (Colo. App. 1983); People v. Quinonez, 701 P.2d 74 (Colo. App. 1984), aff'd in part and rev'd in part on other grounds, 735 P.2d 159 ( Colo. 1987 ) (both cases decided prior to 1985 amendment).

Where the crime results in death, the "victim" for purposes of restitution is the decedent. The decedent's personal representative may properly be designated to receive, as restitution, such damages suffered by the victim as the trial court may order to be paid as a condition of probation. People v. Catron, 678 P.2d 1 (Colo. App. 1983) (decided prior to 1985 amendment).

The term "victim" refers to the person named in the charge of which defendant was convicted and not to persons named in charges which were dismissed. People v. Canseco, 689 P.2d 673 (Colo. App. 1984); People v. Quinonez, 701 P.2d 74 (Colo. App. 1984), aff'd in part and rev'd in part on other grounds, 735 P.2d 159 ( Colo. 1987 ).

County department of human services is not a "victim" for purposes of restitution because an essential element of the underlying crime in the case requires wrongful conduct against a child pursuant to § 18-6-401 (1)(a) and (7)(b)(I). Accordingly, the court erred in imposing restitution to the county department, and any expenses the department incurred were incidental to its duties. People v. Padilla-Lopez, 298 P.3d 967 (Colo. App. 2010), aff'd, 2012 CO 49, 279 P.3d 651.

An insurance carrier may be considered a victim pursuant to this section since it includes within the definition of "victim" parties "who have suffered losses because of a contractual relationship". People v. Phillips, 732 P.2d 1226 (Colo. App. 1986); People v. Lunsford, 43 P.3d 629 (Colo. App. 2001).

If a party sustains damages as a result of defendant's conduct, the damages are recoverable regardless of whether the party was named as a victim in the prosecution. People v. Lunsford, 43 P.3d 629 (Colo. App. 2001).

The defendant's son was a victim of the crime of contributing to the delinquency of a minor where the defendant was convicted of using her son to shoplift video games. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).

The minor child is the victim of the crime of contributing to the delinquency of a minor. Therefore, he is entitled to restitution. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).

Under the definition of "victim" in effect when the crime took place, an insurance company could not be reimbursed. Court order allocating restitution payments to insurance company under new definition of "victim" did not violate ex post facto clause. Under either version of the statute the court was authorized to order full restitution, therefore, there is no change in the quantum of punishment. People v. Woodward, 11 P.3d 1090 (Colo. 2000).

This statute does not limit monetary conditions of probation only to restitution and a court may impose a variety of monetary conditions in connection with granting probation, including a requirement to make a charitable contribution. People v. Burleigh, 727 P.2d 873 (Colo. App. 1986).

This section specifically provides for restitution to be made for the actual pecuniary damage incurred by the victim as the direct result of the defendant's conduct. People v. Phillips, 732 P.2d 1226 (Colo. App. 1986).

Restitution is part of the criminal sentence rather than merely a debt between the defendant and the victim. Trial courts are required to impose restitution in an amount equal to the actual pecuniary damages sustained by the victim, regardless of the defendant's ability to pay. People v. Salas, 42 P.3d 68 (Colo. App. 2001).

Section contemplates restitution for losses resulting only from criminal conduct by the defendant. People v. Estes, 923 P.2d 358 (Colo. App. 1996).

Because post-judgment interest on the restitution amount awarded has the statutory purpose to encourage speedy payment of the restitution order, which is different from the purpose of pre-judgment interest, a trial court must impose both pre-judgment interest and post-judgment interest in probationary restitution orders. Roberts v. People, 130 P.3d 1005 (Colo. 2006).

The trial court is prohibited from ordering restitution for losses attributed to conduct that was not prosecuted because of the applicable statute of limitations. People v. Davalos, 30 P.3d 841 (Colo. App. 2001).

Restitution order should not include payment for future counseling for victim where nothing in the victim impact statement justified the need for future counseling. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).

Absent evidence supporting the need for future counseling, the trial court erred in entering an order for undetermined future counseling expenses. People v. Estes, 923 P.2d 358 (Colo. App. 1996).

Payment of restitution is authorized only as to the victim of a defendant's conduct and only for the actual pecuniary damage the victim sustained as the direct result of the defendant's conduct. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).

Because this section authorizes payment of restitution in the amount of the actual pecuniary damages sustained by the victim, an order of restitution in the amount paid by the victim to repair the stolen vehicle was reasonable even though it exceeded the fair market value of the vehicle before it was stolen. People v. Courtney, 868 P.2d 1126 (Colo. App. 1993).

An order of restitution should be limited to the difference between the total amount of the victim's actual, pecuniary damages and any proceeds attributable to those damages received by the victim from the settlement of the civil claim. People v. Acosta, 860 P.2d 1376 (Colo. App. 1993).

"Actual pecuniary damages" are not limited to out-of-pocket expenditures, but encompass other losses or injuries that can be reasonably calculated and recompensed in money. Thus, the value of employees' time spent in conducting inventories for missing goods and installing and using security devices was recompensable under this section, regardless of whether any funds in addition to regular salaries were expended by the victim company. People v. Duvall, 908 P.2d 1178 (Colo. App. 1995).

Restitution is not limited to the value of the damaged item. It may include repair costs, even if those costs exceed the damage object's value. People v. Smith, 181 P.3d 324 (Colo. App. 2007).

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.

If the victim has suffered a pecuniary loss, full restitution is to be ordered regardless of the defendant's ability to pay. Ordering restitution regardless of the defendant's ability to pay is not imposing an excessive fine, because restitution is not a fine. A fine is solely a monetary penalty where restitution is to make the victim whole. People v. Stafford, 93 P.3d 572 (Colo. App. 2004).

Interest on the unpaid balance of the restitution amount does not constitute actual pecuniary loss caused by the defendant's conduct. People v. Engel, 746 P.2d 60 (Colo. App. 1987).

Defendant has the right to an opportunity to ascertain the amount of the injury sustained as a result of his conduct. People v. Engel, 746 P.2d 60 (Colo. App. 1987).

Where a defendant's conduct requires a victim to borrow funds to cover losses, both the principal and the interest constitute actual pecuniary damage and are properly includable in a restitution order. People v. Engel, 746 P.2d 60 (Colo. App. 1987).

Victim's loss of the use of money can be, under appropriate circumstances, pecuniary damage and interest may be awarded as compensation for that damage. People v. Acosta, 860 P.2d 1376 (Colo. App. 1993); People v. Stewart, 926 P.2d 105 (Colo. App. 1996).

Payments may be ordered to cover costs incurred by nonsurviving victims. Expenses relating to items such as medical care, funeral arrangements, and property damage caused by the defendant's criminal conduct may be the basis for an order of restitution to the estate or appropriate representatives of a decedent. People v. Deadmond, 683 P.2d 763 ( Colo. 1984 ); People v. Quinonez, 735 P.2d 159 ( Colo. 1987 ).

Trial court properly included in restitution to be paid to insurer the costs incurred by the insurer in processing the case, including adjustment expenses, investigation costs, and attorney fees. People v. Phillips, 732 P.2d 1226 (Colo. App. 1986).

Noneconomic damages may be included in restitution as long as the damages are actual pecuniary damages sustained by a party entitled to restitution. An insurance company may recover pain and suffering damages as a part of a restitution order. People v. Lunsford, 43 P.3d 629 (Colo. App. 2001).

Section does not prescribe a maximum restitution amount. Therefore, the rule set forth in Apprendi and Blakely concerning prescribed statutory maximum sentences does not apply to restitution orders in Colorado. Restitution is not limited by the jury's findings, but rather includes any pecuniary losses suffered by the victim as a proximate cause of the offender's conduct. People v. Smith, 181 P.3d 324 (Colo. App. 2007).

Awarding interest is compensation for actual, pecuniary damage suffered by the victim incidental to the defendant's crime of fraudulently obtaining funds because the victim loses the use of the money involved. Interest is awarded as restitution to compensate the victim for such loss of use, it is not intended to reimburse the victim for interest that otherwise would have been earned on the funds. Valenzuela v. People, 893 P.2d 97 (Colo. 1995).

Interest payable for fraudulently obtained food stamps accrues from the time the state reimburses the federal government for the fraudulently obtained food stamps. Interest should accrue only from the time of the actual injury and the state suffer actual loss only when it reimburses the federal government. Valenzuela v. People, 893 P.2d 97 (Colo. 1995).

As part of restitution for fraudulently obtained AFDC funds, court properly included interest from the time of the theft. Valenzuela v. People, 893 P.2d 97 (Colo. 1995).

When viewed in its entirety, the statute requires pre-judgment interest as part of the restitution amount to compensate fully the victim, and it also requires post-judgment interest for as long as the victim has not been paid in full. Nothing in the post-judgment interest provision precludes imposing pre-judgment interest. Roberts v. People, 130 P.3d 1005 (Colo. 2006).

Trial court did not abuse its discretion in ordering that restitution include the amount paid by the victim in reward money. The court found that payment of the reward was reasonable under the circumstances and would not have occurred but for the defendant's actions. The fact that the victim had no legal obligation to offer a reward and may not have been contractually bound to pay the award was immaterial. People v. Dillingham, 881 P.2d 440 (Colo. App. 1994).

As part of restitution for fraudulently obtained food stamps in violation of § 26-2-128, the court properly included interest calculated in accordance with § 5-12-102 . People v. Valenzuela, 874 P.2d 420 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds, 893 P.2d 97 ( Colo. 1995 ).

A governmental entity may qualify as a victim to whom restitution is payable. People v. Cera, 673 P.2d 807 (Colo. App. 1983); People v. Witt, 15 P.3d 1109 (Colo. App. 2000).

Costs incurred by the county department of social services in investigating fraudulently obtained food stamps constituted out-of-pocket losses resulting from that conduct and were properly includable in restitution. People v. Witt, 15 P.3d 1109 (Colo. App. 2000).

Fact that victim's loss was partially covered by insurance was irrelevant to a determination of the defendant's restitution obligation imposed as a condition of parole. People v. Jewett, 693 P.2d 381 (Colo. App. 1984).

Trial court erred in ordering defendant mother to pay restitution for her son's future counseling sessions where mother was found guilty of contributing to the delinquency of her minor son but there was no testimony in the record at sentencing about the need for future counseling sessions. People v. Miller, 830 P.2d 1092 (Colo. App. 1991).

Terms and conditions of probation are statutory. Cumhuriyet v. People, 200 Colo. 466 , 615 P.2d 724 (1980); People v. Deadmond, 683 P.2d 763 ( Colo. 1984 ).

This section mandates that the court provide that the defendant make restitution as a condition of every sentence to probation, therefore insurer's contractual waiver of its right to recover pursuant to the insurance policy had no effect on insurer's statutory right to criminal restitution. People v. Phillips, 732 P.2d 1226 (Colo. App. 1986).

Victim's injury must result from defendant's conduct. This section requires that the injury of the victim be sustained as a result of the conduct of the defendant. Cumhuriyet v. People, 200 Colo. 466 , 615 P.2d 724 (1980).

Restitution, which is intended to make the victim whole, means that a defendant should not be forced to repay a victim when there has been no indication that the damage or injury sustained by the victim was inflicted by the defendant. Cumhuriyet v. People, 200 Colo. 466 , 615 P.2d 724 (1980).

Defendant can be subject to criminal liability only for the loss that was the result of his criminal conduct. People v. Brigner, 978 P.2d 163 (Colo. App. 1999).

And more than speculation is required for defendant to bear responsibility for the injury the victim sustained. Cumhuriyet v. People, 200 Colo. 466 , 615 P.2d 724 (1980).

The people bear the burden of proving that the restitution sought is attributable to the defendant's conduct. People v. Engel, 746 P.2d 60 (Colo. App. 1987).

Sentencing court not barred by collateral estoppel and double jeopardy principles from considering acquitted conduct in determining an award of restitution. People v. Pagan, 165 P.3d 724 (Colo. App. 2006).

Preponderance of the evidence is the proper burden of persuasion to establish restitution in criminal cases. People v. Carpenter, 885 P.2d 334 (Colo. App. 1994).

Burden of proof for establishing amount of restitution owed is a preponderance of the evidence. People v. Smith, 181 P.3d 324 (Colo. App. 2007).

The standard of review on an appeal challenging the sufficiency of the evidence of a district court's restitution conclusion is to review de novo whether the evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, establishes by a preponderance of the evidence that the defendant caused that amount of loss. But this standard might not apply in every appeal where the proper amount of restitution is at issue. People v. Barbre, 2018 COA 123 , 429 P.3d 95.

Victim need not be specifically named as party in criminal indictment or information. If there is sufficient evidence in the record to determine that an individual is directly and immediately aggrieved by the defendant's conduct, then restitution shall be paid to that individual. People v. Jones, 701 P.2d 868 (Colo. App. 1984).

Where defendant agrees to pay restitution to "victims" named in dismissed counts but not named in counts to which the defendant pleads guilty as part of a plea bargain, a restitution order issued as a condition of sentence is valid. However, a defendant who did not agree to pay restitution to victims of counts other than those to which he pled guilty until after his plea has been taken could not be ordered to pay restitution to unnamed victims. People v. Quinonez, 735 P.2d 159 (Colo. 1987).

Payments not dischargeable in bankruptcy. The purpose evidenced by the statutory language in this section is rehabilitative. The general assembly did not intend restitution to be a method of debt collection and did not intend to create a debtor-creditor relationship between the victim and the defendant or the state and the defendant. Therefore, restitution payments ordered by the court cannot be discharged under a federal Chapter 13 plan. In re Johnson, 32 B.R. 614 (Bankr. D. Colo. 1983).

The fact that a debtor will remain obligated to make restitution payments does not make his bankruptcy plan nonconfirmable under 11 U.S.C. § 1325, provided that all the statutory requirements, especially good faith and feasibility, are satisfied. In re Johnson, 32 B.R. 614 (Bankr. D. Colo. 1983).

Restitution is appropriately imposed following a conviction for selling securities without a license, and is not precluded by the discharge in bankruptcy of defendant's liability on any civil claim arising out of the discharged debt. People v. Milne, 690 P.2d 829 (Colo. 1984).

Failure of trial court to make express findings regarding the defendant's ability to pay restitution is not reversible error where defendant's own testimony during trial and the presentence report showed the defendant was in a sufficient financial position to meet the restitution obligation imposed. People v. Phillips, 732 P.2d 1226 (Colo. App. 1986); People v. Estes, 923 P.2d 358 (Colo. App. 1996).

In ordering a defendant to pay restitution to the state for fraudulently obtained food stamps, it was error for a court to consider only the victim's pecuniary loss and not the defendant's ability to pay. People v. Valenzuela, 874 P.2d 420 (Colo. App. 1994), aff'd in part and rev'd in part on other grounds, 893 P.2d 97 ( Colo. 1995 ).

When the record was unclear as to whether the defendant had or had not been ordered to pay restitution as a condition of his probation, the defendant's refusal to acknowledge such a non-specific condition did not provide sufficient grounds for the revocation of his probation. People v. Dirgo, 773 P.2d 621 (Colo. App. 1989).

When, at the time of the revocation hearing, there was no order directing defendant to make any installment payments of restitution in any specific amount, other than for the first six months and the evidence was undisputed that defendant complied with that order, a revocation order based upon defendant's failure to comply with the court's order to pay restitution cannot be affirmed. People v. Frye, 997 P.2d 1223 (Colo. App. 1999).

In setting amount of restitution, trial court should consider the factors set out in subsection (1) but need not make express findings with respect to such factors. People v. Powell, 748 P.2d 1355 (Colo. App. 1987).

Defendant was appropriately ordered to pay restitution for thefts that were not specifically included in her guilty plea. People v. Borquez, 814 P.2d 382 (Colo. 1991).

A codefendant is jointly responsible for restitution when he is also a complicitor in the crime. People v. Fichtner, 869 P.2d 539 (Colo. 1994).

Codefendants were participants and complicitors in the same criminal acts, therefore, each is responsible for the damage he caused and also for the damage caused by the other. People v. Fichtner, 869 P.2d 539 (Colo. 1994).

Subsection (2) provides no right to offender to present evidence of ability to pay restitution during revocation hearing when hearing is based on other grounds. People v. McCarty, 851 P.2d 181 (Colo. App. 1992), aff'd, 874 P.2d 394 ( Colo. 1994 ).

Defendant's act of stealing a vehicle was the proximate cause of the towing company's losses because, without it, such losses would not have been sustained. While the police department's failure to impound the vehicle on its own lot and the vehicle owner's failure to retrieve the vehicle earlier may have contributed to the towing company's losses, there is no evidence that these events were not reasonably foreseeable. People v. Clay, 74 P.3d 473 (Colo. App. 2003).

Applied in Cross v. District Court, 643 P.2d 39 ( Colo. 1982 ); People v. Cheek, 734 P.2d 654 (Colo. App. 1987).

ANNOTATION

Annotator's note. Since § 18-1.3-207 is similar to § 16-11-212 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.

Illegal sentences. The combination of a sentence for a definite period with a work-release program which is only permitted as a condition of probation results in an illegal sentence. People v. District Court, 673 P.2d 991 (Colo. 1983).

Probation cannot be contingent upon partial service of sentence in penitentiary. This section does not include a provision for service of a portion of a sentence in the state penitentiary as a condition of probation. A court, therefore, is not free to impose as a condition of probation any period of incarceration in the state penitentiary nor may any period of incarceration in a county jail exceed the prescribed time limits. People ex rel. Gallagher v. District Court, 197 Colo. 481 , 593 P.2d 1372 (1979).

Where trial court commits a probationer to a county or municipal jail as a facility utilized in conjunction with a work release program, upon revocation of probation, the probationer is entitled to presentence confinement credit for the actual time confined to the county or municipal jail. People v. Lee, 678 P.2d 1030 (Colo. App. 1983).

No equal protection violation. This section and § 16-11-202, relating to probation establish general statutory probation dispositions for all defendants eligible for probation and do not create classifications resulting in disparate treatment. People v. Garberding, 787 P.2d 154 (Colo. 1990).

Imposition of a two-year jail term as part of a work release program is not contingent upon an offender having compensated employment or being enrolled in educational courses at the time of sentencing. People v. Simpson, 969 P.2d 751 (Colo. App. 1998).

Applied in People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981).

ANNOTATION

Law reviews. For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982).

Editor's note:

1. This section is similar to former § 17-27-105 as it existed prior to 2002.
2. Section 2 of chapter 245 (SB 20-085), Session Laws of Colorado 2020, provides that the act changing this section applies to the transfer of offenders on or after July 7, 2020.

ANNOTATION

Law reviews. For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982). For article, "Review of New Legislation Relating to Criminal Law", see 11 Colo. Law. 2148 (1982).

Annotator's note. Since § 18-1.3-301 is similar to § 17-27-105 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.

Two prior felony convictions do not foreclose a court from sentencing a defendant to a community correctional program. People ex rel. VanMeveren v. District Court, 195 Colo. 34 , 572 P.2d 483 (1977) (decided under repealed § 27-27-105).

Individual sentenced pursuant to § 42-2-206 (1) may be considered for community correctional program. People v. Scott, 200 Colo. 365 , 615 P.2d 680 (1980).

Where defendant is serving three concurrent sentences, one of which is for a violent crime, the defendant is not eligible for community corrections placement more than six months before his parole eligibility date. People v. Santisteven, 868 P.2d 415 (Colo. App. 1993).

The parole board, not a parole officer, has the authority to direct that an offender attend a community corrections program as a condition of parole. People v. Lanzieri, 996 P.2d 156 (Colo. App. 1999), rev'd on other grounds, 25 P.3d 1170 ( Colo. 2001 ).

Sentence to community correctional facility is not the same as a sentence to probation. People v. Johnson, 42 Colo. App. 350, 594 P.2d 601 (1979); People v. Kastning, 738 P.2d 807 (Colo. App. 1987).

"Original sentence" construed. Where court suspended the execution, but not the imposition, of a four-year term in the department of corrections on condition that defendant serve two years in a community corrections facility, the court was not thereafter precluded from resentencing defendant to four years in the department because the "original sentence" was four years, not two. People v. Seals, 899 P.2d 359 (Colo. App. 1995).

Court cannot increase original sentence. There is nothing in this article which authorizes the court to increase the length of the original sentence. People v. Johnson, 42 Colo. App. 350, 594 P.2d 601 (1979).

For this reason, a defendant is entitled to credit for time served in community corrections on direct sentence if he is later rejected. People v. Washington, 709 P.2d 100 (Colo. App. 1985).

Trial court is without jurisdiction to reimpose a sentence that extends beyond the length of the original sentence. People v. Herrera, 734 P.2d 136 (Colo. App. 1986); Downing v. People, 895 P.2d 1046 ( Colo. 1995 ).

The statutory maximum for a community corrections sentence for purposes of the Blakely v. Washington, 542 U.S. 296 (2004), rule is no different than the statutory maximum for a prison sentence. The firmly established rule from Blakely as applied to Colorado's sentencing scheme in Lopez v. People, 113 P.3d 713 (Colo.), cert. denied, 546 U.S. 1017, 126 S. Ct. 654, 163 L. Ed. 2d 529 (2005), also applies to a direct sentence to community corrections in Colorado. People v. Sandoval, 2016 COA 19 , __ P.3d __, aff'd, 2018 CO 21, 413 P.3d 1274.

District court plainly erred in aggravating defendant's community corrections sentence based on facts that were neither Blakely-compliant nor Blakely-exempt. People v. Sandoval, 2016 COA 19 , __ P.3d __, aff'd, 2018 CO 21, 413 P.3d 1274.

Where the defendant originally received a sentence to three years of probation, which was revoked, followed by a sentence to six years of community corrections, from which the defendant was rejected, the "original sentence" referred to in subsection (1)(e) means the sentence to community corrections. Since this section deals only with resentencing following the failure of community corrections placement, the sentence "originally imposed", referred to in subsection (1)(e), is the sentence to community corrections, not any prior sentence to probation. Because the defendant received a hearing and representation of counsel when he was resentenced to community corrections, he was not entitled to a further hearing or counsel when the community corrections sentence was revoked and he received a sentence to the department of corrections, which did not exceed the length of the sentence to community corrections. People v. McPherson, 53 P.3d 679 (Colo. App. 2001).

Effect of changing a sentence from concurrent to consecutive because of defendant's escape was not extending the sentence beyond the length originally ordered. Defendant who escaped from community corrections program while serving concurrent sentences, who subsequently completed one sentence but failed to clear the second arrest warrant, was subject to being sentenced to the department of corrections for the length of the original sentence. People v. Taylor, 7 P.3d 1030 (Colo. App. 2000).

Subsection (1)(k) does not apply to awards of presentence confinement credit. By the provision's express terms, only credits earned pursuant to subsection (1)(i) are forfeited. People v. Jim, 2017 COA 123 , 424 P.3d 455.

When the court revokes an offender's sentence to community corrections, subsection (1)(e) read in conjunction with subsection (1)(h) authorizes the sentencing court to increase the offender's sentence, provided that the court holds a hearing. Romero v. People, 179 P.3d 984 (Colo. 2007).

Imposing a sentence increase under subsection (1)(e) does not violate the double jeopardy clauses of the United States and Colorado constitutions because defendant lacked a legitimate expectation of finality in the sentence. Romero v. People, 179 P.3d 984 ( Colo. 2007 ).

Subsection (1)(e) does not condition a district court's authority to set a resentencing hearing on a request from one of the parties. There is no perceived legislative intent to restrict the court's ability to set a resentencing hearing only if the prosecutor or defendant requests it. People v. Reyes, 2016 COA 98 , 409 P.3d 501.

Because subsection (1)(h) authorizes the trial court, following defendant's termination from community corrections, to sentence him or her in the "same manner as if [he or she] had been placed on probation", the trial court, under such circumstances, is authorized to run a defendant's sentence consecutively to the sentence in the other case. People v. Adams, 128 P.3d 260 (Colo. App. 2005).

Term "offender's sentence" in subsection (1)(e) refers to the length of time the trial court sentences an offender to the department of corrections and does not include any period of mandatory parole that attaches to that sentence by operation of § 18-1-105 (1)(a)(V). People v. Johnson, 13 P.3d 309 (Colo. 2000).

The mandatory period of parole is not included in calculating the length of a defendant's term of imprisonment to which he is resentenced after termination from community corrections and, therefore, does not exceed the original sentence. People v. Snare, 7 P.3d 1025 (Colo. App. 1999).

Trial court did not violate this section when it imposed the six-year department of corrections sentence, even though that sentence requires an additional mandatory three-year period of parole. People v. McGraw, 30 P.3d 835 (Colo. App. 2001).

Trial court had the authority under former §§ 16-11-204 (4) and 17-27-105 (1)(h) (now §§ 18-1.3-204 (4) and 18-1.3-301 (1)(h)) to modify defendant's community corrections sentence before it expired. The court retained this authority after defendant's release date passed because re-sentencing proceedings were initiated prior to that date. People v. Knott, 83 P.3d 1147 (Colo. App. 2003).

Because defendant's post-release supervisory period was imposed at a sentence reduction hearing and not at original sentencing, such period is not counted as part of the original sentence for the purpose of resentencing a person pursuant to this section. People v. Carroll, 779 P.2d 1375 (Colo. App. 1989).

The reference to "time credits" in subsection (1)(j) is intended to include both "earned time" and "good time" credits. People v. McCreadie, 938 P.2d 528 (Colo. 1997).

Subsection (1)(j) requires the sentencing court to include the written summary prepared by the administrator of a community corrections program in the mittimus or attach it thereto. People v. Lopez, 961 P.2d 602 (Colo. App. 1998).

If an offender violates a rule or condition of community corrections placement while on nonresidential status, the offender is not entitled upon resentencing to credit for time served while on nonresidential status. People v. Hoecher, 822 P.2d 8 ( Colo. 1991 ) (overruling People v. Herrera, 734 P.2d 136 (Colo. App. 1986)); People v. Galvin, 835 P.2d 603 (Colo. App. 1992); People v. Pimble, 2015 COA 112 , 369 P.3d 729.

The addition of the word "nonresidential" by the legislature to subsection (1)(j) was to ensure that offenders receive earned time and good time credits based on time spent in both residential and nonresidential programs. It was not an attempt by the legislature to mandate that nonresidential time be counted as presentence confinement credit. People v. Pimble, 2015 COA 112 , 369 P.3d 729.

Time served on direct sentence to community corrections is the equivalent of time served in the custody of the department of corrections, therefore once the defendant is sentenced to a state correctional facility, all time served in residential community corrections must be credited to the defendant's sentence. People v. Galvin, 835 P.2d 603 (Colo. App. 1992).

Defendant has no statutory right to a mandatory resentencing hearing after termination from a direct placement at community corrections, as the legislative history supports the conclusion that general assembly intended to prevent duplication of the sentencing hearing. The legislative history also indicates that the term "evidentiary" was added to distinguish judicial hearing from any administrative hearings conducted by community corrections. People v. Abdul, 935 P.2d 4 (Colo. 1997) (decided under law in effect prior to the 1993 repeal and reenactment of this article).

Subsection (1)(d) does not require a court to hold a hearing when converting a community corrections sentence to a department of corrections sentence. People v. Herrera, 2014 COA 20 , 343 P.3d 1012.

Defendant's due process claim was without merit since subsection (1)(g) expressly states that the sentencing court is not required to provide the offender with an evidentiary hearing prior to resentencing and, therefore, there is no right or justifiable expectation created by state law. The defendant could have had no reasonable expectation that he would be transferred only for misbehavior because the statute very clearly gives the community correctional facility discretion to reject the defendant before or after acceptance for any reason. People v. Wilhite, 817 P.2d 1017 ( Colo. 1991 ); People v. Abdul, 935 P.2d 4 ( Colo. 1997 ) (decided under law in effect prior to the 1993 repeal and reenactment of this article).

Direct placement offender who was denied an evidentiary hearing was not treated differently from transitional offenders and thereby denied equal protection of the laws since subsection (1)(g) does not deny such a hearing but makes it discretionary rather than mandatory; and direct placement offenders and transitional offenders are not similarly situated for purposes of equal protection analysis. People v. Wilhite, 817 P.2d 1017 (Colo. 1991).

The denial of a resentencing hearing under subsection (1)(e) has been found to be constitutional under Wilhite, and this section does not violate defendant's right to due process and specifically, his rights to confrontation and to assistance of counsel. People v. James, 940 P.2d 1092 (Colo. App. 1996).

Subsection (2) does not allow for a hearing or other determination as to whether an individual poses a flight risk notwithstanding the existence of a detainer. Rivera-Bottzeck v. Ortiz, 134 P.3d 517 (Colo. App. 2006).

The word "felony" does not modify the word "detainer" in the phrase "felony warrant or detainer" in subsection (2)(b); thus, an inmate with an active immigration and naturalization service detainer cannot be referred for placement in a community corrections program under subsection (2)(b). Rivera-Bottzeck v. Ortiz, 134 P.3d 517 (Colo. App. 2006).

Trial court did not err in summarily resentencing defendant to the custody of the department of corrections since, although the trial court retains its discretion to grant a hearing at the time of resentencing, and such may be the better practice in appropriate cases, the granting of a hearing is not constitutionally required. People v. James, 940 P.2d 1092 (Colo. App. 1996).

Applied in People v. Abila, 670 P.2d 432 (Colo. App. 1983); People v. Patrick, 683 P.2d 801 (Colo. App. 1983); People v. Rodriguez, 55 P.3d 173 (Colo. App. 2002).

Editor's note:

1. This section is similar to former § 18-1-105 as it existed prior to 2002.
2. This section was amended in 2002 prior to its relocation on October 1, 2002. For that history, see the source note to § 18-1-105.
3. Amendments to subsection (10)(b)(XIII) by House Bill 10-1233 and Senate Bill 10-128 were harmonized, effective July 1, 2012.

Cross references: For the legislative declaration contained in the 2002 act amending subsection (4), see section 16 of chapter 1 of the supplement to the Session Laws of Colorado 2002, Third Extraordinary Session. For the legislative declaration contained in the 2003 act amending subsections (10)(b)(XII) and (10)(b)(XIII) and enacting subsection (10)(b)(XIV), see section 1 of chapter 360, Session Laws of Colorado 2003. For the legislative declaration contained in the 2003 act amending subsections (13)(a)(II) and (13)(a)(III), see section 1 of chapter 340, Session Laws of Colorado 2003. For the legislative declaration contained in the 2006 act amending subsection (4), see section 1 of chapter 228, Session Laws of Colorado 2006. For the legislative declaration in HB 15-1122, see section 1 of chapter 37, Session Laws of Colorado 2015.

ANNOTATION

Law reviews. For note, "Disbarment for Crime in Colorado", see 10 Rocky Mt. L. Rev. 203 (1938). For article, "Criminal Prosecutions under the Colorado Securities Act", see 47 U. Colo. L. Rev. 233 (1976). For article, "Colorado Felony Sentencing", see 11 Colo. Law. 1478 (1982). For article, "Colorado Felony Sentencing an Update", see 14 Colo. Law. 2163 (1985). For article, "Pronouncements of the U.S. Supreme Court Relating to the Criminal Law Field: 1985-1986", which discusses cases relating to the death penalty, see 15 Colo. Law. 1596 (1986). For article, "Sentencing Dilemmas", see 29 Colo. Law. 67 (Oct. 2000). For article, "Criminal Sentencing in Colorado After Blakely v. Washington", see 34 Colo. Law. 85 (Jan. 2005). For article, "Adult Parole in Colorado: An Overview", see 44 Colo. Law. 37 (May 2015). For article, "Exceeding Presumptive Maximum Sentences in Colorado", see 44 Colo. Law. 43 (Dec. 2015). For article, "Life after Miller and Montgomery: Colorado's (Revised) Solution for Unconstitutional Juvenile Sentences", see 45 Colo. Law. 31 (March 2016).

Annotator's note. Since § 18-1.3-401 is similar to § 18-1-105 as it existed prior to the 2002 relocation of certain criminal sentencing provisions and former § 39-10-17, C.R.S. 1963, and laws antecedent thereto, relevant cases construing those provisions have been included in the annotations to this section.

Constitutionality of death penalty. The imposition and carrying out of the death penalty was held to constitute cruel and unusual punishment in violation of the eighth and fourteenth amendments of the U.S. Constitution. Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346 (1972).

Subsection (6) is not unconstitutionally vague and does not deprive a defendant of due process and equal protection on the grounds that no standards are set out in the statute to guide the trial court on what are extraordinary, aggravating or mitigating circumstances. People v. Phillips, 652 P.2d 575 (Colo. 1982).

Although the phrase "aggravating or mitigating circumstances" is not defined in the legislative act, that failure does not render the statute unconstitutionally vague. People v. Phillips, 652 P.2d 575 (Colo. 1982).

Subsection (6) is not unconstitutionally vague because it allegedly fails to indicate precise standards for imposition of an enhanced sentence. People v. Wright, 672 P.2d 518 (Colo. 1983).

Due process requirements for enhanced sentence imposed because of defendant's status at time of offense are met if defendant is given reasonable notice that he is subject to enhanced sentencing and the prosecution proves such status by a preponderance of the evidence if such fact is contested. People v. Reed, 723 P.2d 1343 ( Colo. 1986 ); People v. Simmons, 723 P.2d 1350 ( Colo. 1986 ); People v. Anderson, 784 P.2d 802 (Colo. App. 1989).

Discretionary aggravated range sentence imposed under subsection (6) does not violate due process requirement announced in U.S. supreme court decision Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), if defendant was exposed to such sentence when charged with the substantive offense. Trial court, therefore, properly denied post-conviction relief as to 32-year maximum aggravated range sentence imposed for sexual assault on child. People v. Salinas, 55 P.3d 268 (Colo. App. 2002).

Under the mandates of the U.S. supreme court decisions Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 2531, 159 L. Ed. 2d 403 (2004), and Apprendi a discretionary aggravated range sentence may be imposed only when a jury has determined the aggravating factors or when the defendant has admitted them. The fact that the defendant waived the right to a jury determination of the aggravating factors by pleading guilty to the charged offense is irrelevant where no aggravating factors were charged in the information and the defendant did not stipulate to any. People v. Barton, 121 P.3d 230 (Colo. App. 2004).

Sentence in the aggravated range proper when based upon a prior conviction even after U.S. supreme court decision in Blakely. People v. Huber, 139 P.3d 628 (Colo. 2006).

A defendant's failure to object to facts in a presentence report does not constitute admission for purposes of Blakely unless defendant makes a constitutionally sufficient waiver of his or her right to a jury trial on the facts contained in the report. A sentencing court may not use defendant's admissions to sentence him or her in the aggravated range unless defendant knowingly, voluntarily, and intelligently waives his or her sixth amendment right to have a jury find the facts that support the aggravated sentence. People v. Isaacks, 133 P.3d 1190 (Colo. 2006).

Aggravated sentence proper under People v. Isaacks. Defendant's guilty plea to a single count that named two victims constituted a knowing, voluntary, and intelligently waived right to a jury trial on those facts. Aggravated sentence based upon multiple victims receiving serious bodily injuries was constitutional. People v. Watts, 165 P.3d 707 (Colo. App. 2006).

Sentence enhancement statute not violative of procedural due process provided that defendant receives adequate notice that he is subject to enhanced punishment and the prosecution meets its burden of proof concerning defendant's status as a parolee. People v. Henderson, 729 P.2d 1028 (Colo. App. 1986), cert. denied, 752 P.2d 93 ( Colo. 1988 ).

Although this section does not set forth the procedural framework that must be followed when a defendant is charged with violating the conditions of a suspended sentence, minimum due process protections must be afforded to a person facing revocation of such a suspended sentence. These requirements include: (1) Written notice of the claimed violations; (2) disclosure to the defendant of evidence against him or her; (3) a fair opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses, unless there is good cause to deny such a right; (5) a neutral and detached hearing officer or judge; and (6) a written statement by the fact finder as to the evidence relied on and reasons for the revocation. People v. Scura, 72 P.3d 431 (Colo. App. 2003).

Equal protection does not require same procedural safeguards as are contained in crimes of violence statute since cases involving crimes of violence involve more complicated factual situations than the mere determination of defendant's status at the time of the offense. People v. Simmons, 723 P.2d 1350 (Colo. 1986).

No equal protection violation where conviction for child abuse resulting in death under this section is interpreted to preclude a sentence reduction below the mandatory minimum as compared to a reduction or modification of a mandatory crime of violence sentence. People v. Smith, 992 P.2d 635 (Colo. App. 1999).

No equal protection violation where person convicted of class 4 felony theft is punished more severely than a class 4 felony sex offender. Felony classes do not themselves create "classes" for purposes of equal protection analysis; defendant is only "similarly situated" with defendants who commit the same or similar acts. People v. Friesen, 45 P.3d 784 (Colo. App. 2001); People v. Walker, 75 P.3d 722 (Colo. App. 2002); People v. Fritschler, 87 P.3d 186 (Colo. App. 2003).

No equal protection violation where felony first degree murder carries a greater punishment than aggravated vehicular homicide. These offenses are distinguished by the level of intent, the actus reus (commission or omission), the requirement that the actor operate or drive a motor vehicle for vehicular homicide, and the predicate felonies. People v. Prieto, 124 P.3d 842 (Colo. App. 2005).

This section is not unconstitutional for lack of a provision regarding proof of probationary status by the prosecutor. Such proof is only required to be proven by a preponderance of the evidence if the defendant contests his alleged probationary status. People v. Lacey, 723 P.2d 111 ( Colo. 1986 ); People v. Murphy, 722 P.2d 407 ( Colo. 1986 ).

A sentence in the aggravated range under subsection (6) violates the sixth amendment right to trial by jury, unless the facts found by the trial court to support the sentence, including the ultimate finding that these facts are extraordinary: (1) are reflected in the jury's verdict; (2) were admitted by the defendant for purposes of sentencing; or (3) involve prior criminality, to the extent permitted by Apprendi. People v. Moon, 121 P.3d 218 (Colo. App. 2004).

The U.S. supreme court concluded in Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012), that the eighth amendment prohibits a mandatory life sentence without the possibility of parole for juvenile offenders. People v. Banks, 2012 COA 157 , 412 P.3d 417, aff'd in part and rev'd in part on other grounds sub nom. People v. Tate, 2015 CO 42, 352 P.3d 959; People v. Wilder, 2015 COA 14 , 412 P.3d 686.

Because defendant was a minor when the trial court mandatorily sentenced him to life imprisonment without the possibility of parole, and because defendant's case was still pending on direct review when the U.S. supreme court decided Miller, the no-parole provisions contained in subsection (4)(a) of this section and § 17-22.5-104 (2)(d)(I) are unconstitutional as applied to defendant in that they deny defendant the opportunity of parole. People v. Banks, 2012 COA 157 , 412 P.3d 417, aff'd in part and rev'd in part on other grounds sub nom. People v. Tate, 2015 CO 42, 352 P.3d 959.

The U.S. supreme court's decision in Miller renders a mandatory life without the possibility of parole sentence for juveniles convicted between 1990 and 2006 unconstitutional. For cases on direct appeal, the remedy for those sentenced to mandatory life without parole is a remand to determine through an individual consideration of the defendant's youth and attendant circumstances whether a sentence of life without parole is appropriate. If the sentencing court on remand determines that life without parole is not warranted, then the appropriate sentence, absent legislative action, is life in prison with the possibility of parole after forty years. People v. Tate, 2015 CO 42, 352 P.3d 959; People v. Ellis, 2015 COA 108 , 425 P.3d 1140.

Juvenile sentence of life with the possibility of parole after forty years is constitutional under Miller. People v. Davis, 2018 COA 113 , 429 P.3d 82.

The new rule announced in Miller is procedural rather than substantive in nature; therefore it does not apply retroactively to cases on collateral review of final judgments. People v. Tate, 2015 CO 42, 352 P.3d 959; People v. Vigil, 2015 CO 43, 372 P.3d 1045.

If an individualized sentencing determination is made in accordance with the factors in Miller, on remand the trial court may re-impose the life sentence without parole, or it may impose a life sentence with a possibility of parole after a specified number of years, or it may impose a sentence that it determines is appropriate for the defendant. In making this sentencing determination, the court should consider (1) the presumptive range that applies to the next lowest level felony: a class 2 offense with a presumptive range of 12 to 24 years, and (2) the effect of any applicable extraordinary aggravating factors. People v. Wilder, 2015 COA 14 , 412 P.3d 686. But see People v. Banks, 2012 COA 157 , 412 P.3d 417.

The class created by subsection (4)(c)(I) does not violate the special legislation clause. The class is genuine and not illusory and the classification is reasonable. People v. Brooks, 2018 CO 77, 426 P.3d 353.

Mandatory parole provision does not violate the constitutional protection against double jeopardy since the general assembly has mandated a period of parole for all convicted felons, in addition to a sentence to the department of corrections, and therefore the defendant has not been subjected to separate proceedings for the imposition of his sentence. People v. Mayes, 981 P.2d 1106 (Colo. App. 1999); People v. Xiong, 10 P.3d 719 (Colo. App. 2000).

Mandatory period of parole for consecutive sentencing of two or more felony offenses pursuant to subsection (1)(a)(V)(A) not unconstitutionally overbroad, because it does not proscribe any conduct constitutionally protected and it has a rational relationship to a legitimate governmental interest of promoting the rehabilitation and reintegration of defendants while recognizing the need for public safety. People v. Boyd, 23 P.3d 1242 (Colo. App. 2001).

Mandatory parole is part of a sentence imposed by the court. Even though the parole board may administer the parole, that does not mean that the board imposes it; hence there is no separate penalty imposed in a separate proceeding and thus, no violation of double jeopardy. People v. Xiong, 10 P.3d 719 (Colo. App. 2000).

Retrospective application of mandatory parole provisions in subsection (1)(a)(V) not violative of ex post facto clause where defendant had pleaded guilty to underlying offense with stipulation that the offense occurred within a time frame that happened to include time periods both prior and subsequent to the date such provisions were enacted. People v. Flagg, 18 P.3d 792 (Colo. App. 2000).

1988 amendment establishing lower mandatory aggravated ranged sentencing applicable to offenses committed on or after July 1, 1988 inapplicable to defendant who committed offenses in April and May of 1988, regardless of fact that the amendment had taken effect prior to the time defendant was sentenced. Defendant was properly sentenced under higher mandatory range in effect on dates offenses were committed. Riley v. People, 828 P.2d 254 (Colo. 1992).

1988 amendment to former subsection (1)(b)(VII) applicable to post conviction sentence reduction proceedings which provided for retroactive application of reduced sentences was applicable only to persons eligible for presumptive range sentencing. Riley v. People, 828 P.2d 254 (Colo. 1992) (decided under law as it existed prior to June 7, 1990 repeal of subsection).

Classification does not create substantive offense. A classification of felony does not in and of itself create a substantive offense; it merely establishes the boundaries within which a court may impose a sentence. People v. Beigel, 646 P.2d 948 (Colo. App. 1982).

Retroactive application. This section is to be given retroactive application because 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. Salas v. District Court, 190 Colo. 447 , 548 P.2d 605 (1976); People v. Johnson, 638 P.2d 61 ( Colo. 1981 ).

Court should not apply Apprendi retroactively to convictions that were already final when the U.S. supreme court issued its opinion. A new rule of criminal procedure is not applied retroactively unless it forbids criminal punishment of certain kinds of conduct or is a "watershed" rule. Apprendi does not represent a "watershed" rule, that is, a rule that implicates the fundamental fairness of the trial. People v. Bradbury, 68 P.3d 494 (Colo. App. 2002); People v. Hall, 87 P.3d 210 (Colo. App. 2003); People v. Shepard, 98 P.3d 905 (Colo. App. 2004); People v. Alexander, 129 P.3d 1051 (Colo. App. 2005).

The U.S. supreme court held in Apprendi that, other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. People v. Bradbury, 68 P.3d 494 (Colo. App. 2002).

1979 amendment inapplicable where crime committed before July 1, 1979. Where acts for which defendants were convicted occurred well in advance of July 1, 1979, the effective date of H.B. 1589, it was not error to refuse to sentence under the provisions of that legislation. People v. Lopez, 624 P.2d 1301 (Colo. 1981).

Since the crime for which a defendant was sentenced was committed well before the effective date of either the 1977 or 1979 version of House Bill 1589, he is not entitled to be resentenced under the provisions of those acts. People v. Stewart, 626 P.2d 685 (Colo. 1981).

In resentencing a defendant originally convicted before the 1979 reduction in the sentencing range for class 3 felonies, the trial court may consider the new sentencing range, but is not bound by it. People v. Watkins, 684 P.2d 234 (Colo. 1984).

For sentencing under H.B. 1589, see People v. Montoya, 647 P.2d 1203 (Colo. 1982).

1981 amendments not irreconcilable. The two 1981 amendments, S.B. 304 and H.B. 1156, are not irreconcilable. They can be harmonized by recognizing that nonadversary reviews under former § 18-1-409.5 and C.A.R. 4(d), no longer exist with respect to sentences imposed for the conviction of a felony committed on or after July 1, 1981. People v. Rafferty, 644 P.2d 102 (Colo. App. 1982).

Since § 16-11-802(1)(b) (now § 18-1.3-1302 (1)(b)) has a later effective date, was later enacted, and operates in an ameliorative manner for criminal defendants, it controls and that portion of § 18-1-105(4) (now § 18-1.3-401 (4)) which provides for no possibility of parole for persons sentenced to life imprisonment following conviction for class 1 felony offenses occurring during the period from July 1, 1990, until September 19, 1991, is abrogated by this later enactment. Thus, § 16-11-103(1)(b) (now § 18-1.3-1201 (1)(b)), as amended by House Bill 91S-1001, controls parole eligibility for convictions and sentences to life imprisonment based on class 1 felony offenses occurring on or after September 20, 1991, and § 16-11-802(1)(b) (now § 18-1.3-1302 (1)(b)) controls parole eligibility for class 1 felony offenses occurring during the period from July 1, 1990, until September 19, 1991. People v. District Court, 834 P.2d 236 (Colo. 1992).

Legislative intent of subsection (9)(c) is to encourage careful consideration by the trial judge of all relevant factual matters developed during the course of proceedings prior to selecting an appropriate sentence. People v. Sanchez, 769 P.2d 1064 (Colo. 1989).

When the court misapprehends the sentencing range, the sentence must be vacated and defendant must be re-sentenced within the correct range. Defendant's class 4 felony conspiracy conviction was subject to enhanced sentencing under subsection (8)(a)(III), requiring a sentence between four to 12 years, but the court erred in believing the range was 10 to 32 years. People v. Linares-Guzman, 195 P.3d 1130 (Colo. App. 2008).

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); People v. Reed, 43 P.3d 644 ( Colo. 2001 ).

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).

Sentencing is discretionary and a judge has wide latitude in arriving at a synthesis which is reflective of the interests of society and the defendant. People v. Hotopp, 632 P.2d 600 ( Colo. 1981 ); People v. Swepston, 822 P.2d 510 (Colo. App. 1991).

In determining an appropriate sentence, the trial court may conduct a broad inquiry, largely unlimited as to the kinds of information it may consider, and it has wide discretion in determining what sentence is appropriate, and sentences imposed within statutory limits are generally not subject to review. 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).

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).

Sentencing is by its very nature a discretionary decision, and many factors must be considered in arriving at a decision that protects the rights of society and the defendant. People v. Horne, 657 P.2d 946 (Colo. 1983).

In imposing a sentence, the trial court must weigh many factors, including the nature of the offense and the record of the offender, and must impose a definite sentence within the presumptive range unless it concludes that extraordinary mitigating or aggravating factors are present. People v. Clements, 732 P.2d 1245 (Colo. App. 1986).

No abuse of discretion found. See People v. Sellers, 762 P.2d 749 (Colo. App. 1988).

Where trial court discussed its reasoning thoroughly and took into account a variety of factors, it did not abuse its discretion in imposing maximum aggravated sentences. People v. Robinson, 874 P.2d 453 (Colo. App. 1993).

Where trial court considered the nature of the offense, the character of the defendant, the public interest in safety and deterrence, and mitigating and aggravating circumstances, and imposed a sentence within the range prescribed by law, based on appropriate considerations and factually supported by the circumstances, there was no abuse of discretion. People v. Martinez, 32 P.3d 582 (Colo. App. 2001); People v. Martinez, 179 P.3d 23 (Colo. App. 2007).

The sentencing court's consideration of defendant's role in the crimes that later led to the murders was not tantamount to punishing him for crimes of which he was acquitted, rather the court properly evaluated the overall circumstances of the crimes of which he was convicted and of the serious risks that attend such crimes. People v. Le, 74 P.3d 431 (Colo. App. 2003).

It is not improper for the sentencing court, on its own volition, to sentence contrary to the district attorney's recommendation, when the court considered aggravating factors and its consideration of mitigating factors was implicit in the court's selection of a sentence to a term in the lower end of the presumptive range. People v. Fell, 832 P.2d 1015 (Colo. App. 1991).

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).

The range of punishments available to a trial court is determined by the applicable law as of the date of the offense and the factors to be considered by the court in sentencing are those factors existing on the date of sentencing. People v. Wieghard, 743 P.2d 977 (Colo. App. 1987).

Factors considered in sentencing. 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).

Factors to be considered in imposing sentence include the nature of the offense, the character of the offender, the public interest, and whether the record establishes a clear justification for the sentence imposed. People v. Hotopp, 632 P.2d 600 (Colo. 1981).

The factors which should be considered in sentencing include the nature of the offenses, the prior record of the defendant, his probability of rehabilitation, his age, and the criminal justice goals of punishment, deterrence, and protection of society. People v. Soper, 628 P.2d 604 (Colo. 1981).

Some factors to be considered in sentencing decision include gravity of offense, defendant's societal history, the risk of future criminal conduct, and the potential for effective rehabilitation. People v. Swepston, 822 P.2d 510 (Colo. App. 1991).

Trial court did not abuse its discretion in sentencing defendant to the maximum sentence since the sentence was within the presumptive range, was based on appropriate considerations in the record, and was factually supported by the circumstances of the case. People v. Gagnon, 997 P.2d 1278 (Colo. App. 1999).

No abuse of discretion in sentencing defendant in the aggravated range. People v. Heimann, 186 P.3d 77 (Colo. App. 2007).

It was not improper for trial court to consider during sentencing that violent crimes have a greater public impact in small rural communities than in larger urban ones since a sentencing court should always consider the interests of the public involved and this factor was not decisive of the court's decision. People v. Palmer, 888 P.2d 348 (Colo. App. 1994).

Consideration of prior criminal record in sentencing. A defendant's criminal record may be considered by a court as "extraordinary mitigating or aggravating circumstances" as that term is used in subsection (6). People v. Gonzales, 44 Colo. App. 411, 613 P.2d 905 (1980); People v. Cantwell, 636 P.2d 1313 (1981); People v. Romero, 694 P.2d 1256 ( Colo. 1985 ).

The trial court properly considered the defendant's prior criminal history in its determination of extraordinary circumstances. Flower v. People, 658 P.2d 266 ( Colo. 1983 ); People v. Hernandez-Luis, 879 P.2d 429 (Colo. App. 1994).

A defendant's record may be a basis for sentencing beyond the presumptive range. People v. Gonzales, 44 Colo. App. 411, 613 P.2d 905 (1980).

The lack of a prior criminal record is only one consideration in determining whether to impose a maximum sentence. People v. Naranjo, 200 Colo. 1 , 612 P.2d 1099 (1980).

Prior convictions are an appropriate consideration in sentencing outside the presumptive range. People v. Ward, 673 P.2d 47 (Colo. App. 1983).

Defendant's prior criminal record is an appropriate factor in sentencing outside presumptive range. People v. Abbott, 690 P.2d 1263 (Colo. 1984).

There is no sixth amendment violation when the sentencing court's conclusion that an enhanced sentence is warranted is based solely upon a factual determination of the defendant's prior convictions. People v. Orth, 121 P.3d 256 (Colo. App. 2005).

A prior conviction in violation of a constitutional right of the accused cannot be used to enhance punishment in a subsequent criminal proceeding. Watkins v. People, 655 P.2d 834 (Colo. 1982).

A court may consider the failure of a defendant to comply with a previous sentence even if such sentence may be constitutionally defective. People v. Carabajal, 720 P.2d 991 (Colo. App. 1986).

But, where defendant's previous conviction was under another jurisdiction's youthful offender statute which specified that a youthful offender adjudication was not a judgment of conviction for a crime, such previous conviction could not be considered an aggravating circumstance justifying sentence beyond the presumptive range. People v. Pellien, 701 P.2d 1244 (Colo. App. 1985).

Trial court properly considered serious criminal convictions which occurred between the original sentencing and the resentencing after appeal when the court increased the sentence of the defendant upon remand. People v. Wieghard, 743 P.2d 977 (Colo. App. 1987).

A trial court may properly consider an adult's juvenile record as a factor when imposing a sentence within the presumptive range. People v. Cisneros, 745 P.2d 262 (Colo. App. 1987); People v. McGregor, 757 P.2d 1082 (Colo. App. 1987).

Guilty plea constitutes a conviction within the meaning of subsection (9). Defendant, who had pled guilty to a separate offense and was out on bond, asserted that because he or she had not yet been sentenced for the prior felony at the time the trial court for the latter offense sentenced him or her, he or she was not yet "convicted". Defendant's guilt of a prior felony, not the punishment sentenced or received, is what is relevant for the purpose of defining "conviction" under subsection (9)(a). People v. French, 141 P.3d 856 (Colo. App. 2005), cert. granted in part and denied in part, judgment vacated, and case remanded to the Colorado court of appeals for reconsideration in light of People v. Isaacks, 133 P.3d 1190 ( Colo. 2006 ), and People v. Huber, 139 P.3d 628 ( Colo. 2006 ), aff'd, 165 P.3d 836 (Colo. App. 2007).

The maximum and minimum sentences of imprisonment prescribed in subsection (1)(a)(V)(A) were clearly not intended to be sentences exclusively to the custody of the executive director of the department of corrections. The reference in any specific sentencing provision to the ranges authorized by this section, without more, therefore does not prohibit a sentence to a community corrections program. Shipley v. People, 45 P.3d 1277 (Colo. 2002).

Mandatory parole is a direct consequence of a guilty plea, and defendant must be advised of this requirement. However, when the total sentence imposed, including mandatory parole, was less than the potential sentence of which defendant was advised in accepting the plea, the trial court's failure to advise defendant correctly of the mandatory parole term does not invalidate the guilty plea. People v. Montaine, 7 P.3d 1065 (Colo. App. 1999).

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).

Court may not eliminate one-year parole. While subsection (1)(a)(I) authorizes a trial judge to impose a sentence below the minimum presumptive range, it does not authorize a trial court to eliminate the requirement of one year of parole. People v. McKnight, 628 P.2d 628 (Colo. App. 1981).

A sentencing court may not waive or suspend a period of mandatory parole under subsection (1)(a)(V)(B) and such a parole period is a required part of defendant's sentence. People v. Calderon, 992 P.2d 1201 (Colo. App. 1999).

The trial court's failure to enter the mandatory period of parole on the mittimus does not affect the requirement that it be served. The mittimus may be corrected by the sentencing court to reflect the required period of parole. People v. Snare, 7 P.3d 1025 (Colo. App. 1999).

Case remanded for entry of a corrected mittimus to reflect that defendant is subject to a one-year period of mandatory parole. People v. Ramos, 53 P.3d 1178 (Colo. App. 2002).

Court may not impose parole as part of sentence under subsection (1)(a)(II). Sentencing court exceeded its jurisdiction by imposing parole as part of the sentence for an offense committed after July 1, 1984, and before July 1, 1985. Qureshi v. District Court, 727 P.2d 45 ( Colo. 1986 ); People v. McGregor, 757 P.2d 1082 (Colo. App. 1987); People v. Swepston, 822 P.2d 510 (Colo. App. 1991).

No conflict between this section and § 18-18-405 . In § 18-18-405 , the general assembly defined the elements of the crime of possession with intent to distribute and incorporated the presumptive range found in subsection (1)(a) of this section. Section 18-18-405 does not preclude the finding that an offense is an extraordinary risk crime and does not preclude the application of subsection (10) of this section to increase the presumptive range found in subsection (1)(a). People v. Hinojos-Mendoza, 140 P.3d 30 (Colo. App. 2005), aff'd in part and rev'd in part on other grounds, 169 P.3d 662 ( Colo. 2007 ).

The provisions of § 17-2-201 (5)(a) and subsection (1)(a)(V)(C) of this section are in conflict. Section 17-2-201 (5)(a) is a specific provision related to the parole of sex offenders while subsection (1)(a)(V)(C) of this section is the general sentencing statute for all felonies. As such, applying the statutory construction rule that the specific provision prevails over the general provision, § 17-2-201 (5)(a) shall be given effect for all sex offender parole for crimes committed before July 1, 1996. Martin v. People, 27 P.3d 846 ( Colo. 2001 ); People v. Pauley, 42 P.3d 57 (Colo. App. 2001).

Section 17-2-201(5)(a.5) is a specific provision related to the parole of sex offenders while subsection (1)(a)(V) of this section is the general sentencing statute for all felonies. As such, applying the statutory construction rule that the specific provision prevails over the general provision, § 17-2-201 (5)(a.5) shall be given effect for all sex offender parole for crimes committed between July 1, 1996, and July 1, 1998. People v. Cooper, 27 P.3d 348 (Colo. 2001).

Sex offenders convicted of offenses occurring between July 1, 1993, and July 1, 1998, are subject to discretionary parole pursuant to § 17-2-201 (5)(a), and not mandatory parole pursuant to subsection (1)(a)(V)(C) of this section. People v. Koehler, 30 P.3d 694 (Colo. App. 2000).

Habitual offenders are subject to a period of discretionary parole rather than a period of statutory mandatory parole. The provisions of § 17-2-201 (5)(a) and § 17-2-213 irreconcilably conflict with the provisions of § 17-22.5-403 (7) and subsection (1)(a)(V). Thus, the specific provision of § 17-2-201 (5)(a) and § 17-2-213 prevail over the general provisions of § 17-22.5-403 (7) and subsection (1)(a)(V). People v. Falls, 58 P.3d 1140 (Colo. App. 2002).

While the parole period in subsection (1)(a)(V)(A) is mandatory, the minimum and maximum sentences are "presumptive ranges." Bullard v. Dept. of Corr., 949 P.2d 999 (Colo. 1997).

Felony sex offenders who committed crimes between July 1, 1996, and November 1, 1998, and who were sentenced to a term of imprisonment were subject to discretionary parole, not mandatory parole. People v. Jones, 992 P.2d 710 (Colo. App. 1999).

A sentencing court may not waive or suspend a period of mandatory parole under subsection (1)(a)(V)(A) and thus the two-year period of mandatory parole was a required part of defendant's original sentence. People v. Barth, 981 P.2d 1102 (Colo. App. 1999); People v. Espinoza, 985 P.2d 68 (Colo. App. 1999).

The period of mandatory parole that attaches by operation of subsection (1)(a)(V) is an incidental and distinct element of the defendant's sentence, separate from the term of incarceration imposed by the trial court. People v. Johnson, 13 P.3d 309 (Colo. 2000).

While an offender subject to discretionary parole will never be confined for a period greater than the original sentence imposed, an offender subject to mandatory parole faces a sentence to prison, a period of parole, and possibly another period of confinement not necessarily limited to the original term of incarceration imposed. People v. Hall, 87 P.3d 210 (Colo. App. 2003).

A period of confinement attributable to parole revocation was not a "period of mandatory parole". When a person is reincarcerated on a parole revocation, he is no longer serving his original sentence. Therefore, when a person is sentenced for the crime of escape during a period of mandatory parole for another offense, ordering such a sentence to run consecutive with the period of incarceration for the parole revocation did not violate sub-subparagraph (1)(a)(V)(E). People v. Luther, 58 P.3d 1013 (Colo. 2002).

Once paroled, a mandatory parolee has discharged his prison sentence as a matter of law. However, the mandatory parole period is a component of an offender's sentence. People v. Norton, 49 P.3d 344 (Colo. App. 2001), rev'd on other grounds, 63 P.3d 339 ( Colo. 2003 ); In re Miranda, 2012 CO 69, 289 P.3d 957.

Subsection (3) bars convicted felons from practicing law while they serve out all components of their sentences, including parole. In re Miranda, 2012 CO 69, 289 P.3d 957.

Attorney serving mandatory parole portion of felony criminal sentence cannot be reinstated to practice of law until he has completed his felony sentence. In re Miranda, 2012 CO 69, 289 P.3d 957.

A discharge of the sentence to imprisonment under subsection (1)(a)(V)(D) is not equivalent to the satisfaction and discharge of mandatory parole. People v. Taylor, 74 P.3d 396 (Colo. App. 2002).

The maximum sentences in the presumptive ranges set out in this section do not establish maximum periods of probation to which a defendant may be sentenced under part 2 of article 11 of title 16. People v. Flenniken, 749 P.2d 395 (Colo. 1988).

The minimum sentences established under this section do not establish the minimum period of probation to which a defendant may be sentenced under § 16-11-202. The length of probation is at the sentencing judge's discretion. People v. Herr, 868 P.2d 1121 (Colo. App. 1993).

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).

When charges against defendant are not supported by identical evidence, trial court has discretion in imposing either consecutive or concurrent sentences. People v. Corbett, 713 P.2d 1337 (Colo. App. 1985).

No automatic conversion of a death sentence to a life sentence when death penalty statute is held unconstitutional. People v. Corbett, 713 P.2d 1337 (Colo. App. 1985).

This section did not put defendants on notice that death was a possible penalty for first degree murder, where death penalty statute is found unconstitutional, this section gives notice that maximum penalty is life imprisonment. Retroactive application of new death penalty statute would violate ex post facto laws. People v. Aguayo, 840 P.2d 336 (Colo. 1992).

Legislatively prescribed parameters on sentencing may not be circumvented by suspending part of the sentence. 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); People v. White, 679 P.2d 602 ( Colo. 1984 ).

Effect of conviction for felony. By subsection (2)(now subsection (3)), the consequences resulting from a conviction of a felony are made much more serious than those arising from a conviction of a misdemeanor. Brooks v. People, 14 Colo. 413, 24 P. 553 (1890).

This section declares that a person convicted of a felony shall also suffer an additional penalty therefor, namely, that he be disqualified from holding any office of honor, trust, or profit under the laws of this state, and that he be also disqualified from practicing as an attorney in any of our state courts. This latter disqualification constitutes a part of the total penalty prescribed by the general assembly for anyone convicted of a felony. People v. Buckles, 167 Colo. 64 , 453 P.2d 404 (1968).

Section consistent with separation of powers. The statute disqualifying a convicted felon of holding an office of trust or practicing as an attorney in nowise interferes with the exclusive right of the supreme court to determine the rules and regulations which shall govern those seeking admission to our bar. Nor does the statute impinge in any real sense the judicial right to discipline those licensed to practice law. Rather, this is an effort by the general assembly under its police power to bar convicted felons from practicing law in the courts. The general assembly has the power to do so, and this section does not violate the separation of powers doctrine. People v. Buckles, 167 Colo. 64 , 453 P.2d 404 (1968).

For disqualification from practice of law for conviction of felony, see People ex rel. Colo. Bar Ass'n v. Bryce, 36 Colo. 125 , 84 P. 816 (1906); People v. Warren, 91 Colo. 99 , 12 P.2d 348 (1932); People ex rel. Attorney Gen. v. Brayton, 100 Colo. 92 , 65 P.2d 1438 (1937).

For conviction of felony outside Colorado, see People ex rel. Attorney Gen. v. Laska, 101 Colo. 221 , 72 P.2d 693 (1937).

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).

Court order held within power of court. Court order authorizing a sentence to run concurrently with another sentence, to be served at an out-of-state institution, was within the power and jurisdiction of the sentencing court. People v. Lewis, 193 Colo. 203 , 564 P.2d 111 (1977).

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. Martinez, 179 P.3d 23 (Colo. App. 2007).

Multiple sentences may be imposed to run as one continuous sentence with a single period of mandatory parole where defendant is sentenced under subsection (1)(a)(V)(E), and this section is read together with § 17-22.5-101. People v. Starcher, 107 P.3d 1127 (Colo. App. 2004).

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 ).

Termination of a first sentence has no effect on a second sentence, and first court cannot modify sentence of second, where sentences are concurrent. Bullard v. Dept. of Corr., 949 P.2d 999 (Colo. 1997).

When offender's mandatory parole is revoked, the offender is no longer serving parole, but rather incarceration, therefore imposing a consecutive sentence plus another period or mandatory parole does not violate subsection (1)(a)(V)(E). The mandatory parole from the first conviction is extinguished so there are no longer two sentences of mandatory parole. People v. Perea, 74 P.3d 326 (Colo. App. 2002).

Plain language of subsection (1)(a)(V)(E) requires a defendant sentenced to consecutive felony offenses to serve the period of mandatory parole for the highest class felony; the order that the defendant serves the consecutive sentences is irrelevant to the determination of the period of mandatory parole. People v. Boyd, 23 P.3d 1242 (Colo. App. 2001).

Credit required for presentence confinement. A sentencing judge is constitutionally required to give an indigent defendant credit for time served in presentence confinement, even where the total of the presentence confinement and the sentence imposed after trial is less than the maximum sentence allowed for the offense. Godbold v. Wilson, 518 F. Supp. 1265 (D. Colo. 1981).

However, trial court's consideration of the effect of presentence confinement credit on defendant's actual incarceration time does not constitute an infringement on defendant's constitutional rights to due process and fundamental fairness. People v. Reed, 43 P.3d 644 (Colo. 2001).

Applicability of requirement of specific findings. The requirement to have specific findings on the record of the case in justification of a sentence outside the presumptive range is applicable to all sentences which do not come under the exceptions listed in subsection (9). People v. Rafferty, 644 P.2d 102 (Colo. App. 1982).

Trial court has obligation under subsection (7) to make specific findings when the sentence-enhancing factors contained in subsection (9.5) are present. People v. Blackmon, 20 P.3d 1215 (Colo. App. 2000).

Trial court did not erroneously apply the general sentence enhancer in subsection (8)(a)(IV) of this section to defendant's assault conviction under § 18-3-203 (1)(f.5). Application of the sentence enhancement provisions of this section did not have the effect of raising the class of felony for which defendant was convicted. Plus, the elemental statute under which defendant was charged did not contain specific sentencing requirements that would have superseded the provisions of the sentencing statute. People v. Wylie, 260 P.3d 57 (Colo. App. 2010).

"Prior criminal conduct", as used in this section, does not require proof of a prior criminal conviction, but may consist of a record of juvenile offenses or other criminal conduct which has not been the subject of prior prosecution. People v. McGregor, 757 P.2d 1082 (Colo. App. 1987).

Subsection (1)(b)(I) does not limit consideration of "criminal conduct" to felony convictions. People v. McGregor, 757 P.2d 1082 (Colo. App. 1987); People v. Hernandez-Luis, 879 P.2d 429 (Colo. App. 1994).

Trial court did not abuse its discretion in determining defendant's sentence by relying on facts from another case before the same court in which defendant was acquitted of first and second degree murder. A trial court may consider a wide range of evidence in determining a defendant's sentence, including facts relating to charges of which the defendant has been acquitted. People v. Beatty, 80 P.3d 847 (Colo. App. 2003).

Where record contains no indication of prior criminal conduct by defendant, trial court improperly predicted potential for future criminality of defendant. People v. Garciadealba, 736 P.2d 1240 (Colo. App. 1986).

Sentence must be supported by reasons in record. When the maximum or near-maximum sentence is imposed, it must be supported by sound reasons in the record. People v. Naranjo, 200 Colo. 1 , 612 P.2d 1099 (1980).

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).

Where a sentence is imposed for an extended term, the record must clearly justify the action of the sentencing judge. People v. Cohen, 617 P.2d 1205 ( Colo. 1980 ); People v. Tijerina, 632 P.2d 570 ( Colo. 1981 ).

There must be sufficient facts in the record to support the trial court's final decision. People v. Walters, 632 P.2d 566 (Colo. 1981).

When sentence is in presumptive range, court need only set forth the basic reasons and primary factual considerations bearing on the court's sentencing decision. People v. Hughes, 946 P.2d 509 (Colo. App. 1997).

The trial court is required to state on the record the basic reasons for imposing a sentence in a particular case. There is no ritualistic format for placing in the record the trial court's justification of the imposed sentence; however, appellate review of the propriety of a sentence outside the presumptive range requires sufficient findings by the trial court to demonstrate a threshold consideration of the factors set forth in subsection (1)(b), supplemented by sufficient findings pursuant to subsection (6). People v. Piro, 671 P.2d 1341 (Colo. App. 1983).

When a court imposes an aggravated sentence that is not based on a factor set forth in subsection (9)(a), the court must make specific findings, supported by evidence in the record of the sentencing hearing or the presentence report, detailing the extraordinary aggravating factors present. People v. O'Dell, 53 P.3d 655 (Colo. App. 2001).

When a sentence outside the presumptive range is imposed, the court is required to place on the record its findings as to the aggravating or mitigating circumstances that justify variation from the presumptive range. People v. Vela, 716 P.2d 150 (Colo. App. 1985); People v. Hernandez-Luis, 879 P.2d 429 (Colo. App. 1994).

However, it is not necessary for the sentencing court to refer explicitly to each of the factors. To the extent that People v. Piro (671 P.2d 1341) may suggest otherwise, it is disapproved. People v. Walker, 724 P.2d 666 ( Colo. 1986 ); People v. Powell, 748 P.2d 1355 (Colo. App. 1987); People v. Sudduth, 991 P.2d 315 ( Colo. 1999 ); People v. Bradbury, 68 P.3d 494 (Colo. App. 2002).

A plea agreement that does not constrain the sentencing court's discretion cannot be construed to limit the possible sentence to the presumptive range. People v. Moriarity, 8 P.3d 566 (Colo. App. 2000).

The court's statutory authority to sentence a defendant to the department of corrections does not expressly include the authority to dictate the conditions of confinement. The management, supervision, and control of department facilities are exclusively vested in its director. People v. Harris, 934 P.2d 882 (Colo. App. 1997).

A trial court may impose a sentence outside the applicable presumptive range only if extraordinary aggravating and mitigating circumstances are present based on evidence in the record of the sentencing hearing and the presentence report. People v. Walker, 724 P.2d 666 ( Colo. 1986 ); People v. Hernandez-Luis, 879 P.2d 429 (Colo. App. 1994); People v. O'Dell, 53 P.3d 655 (Colo. App. 2001).

Subsection (5) conflicts with the provisions of § 18-1.4-102 (8) and (9). Subsection (5) of this section requires the court to impose a life sentence on a defendant sentenced to death under an unconstitutional death penalty scheme. In contrast, § 18-1.4-102 (8) and (9) allow the supreme court to review the death sentence or remand for a new sentencing hearing. Subsection (5) is a mandatory provision and therefore it applies over the discretionary provision. Woldt v. People, 64 P.3d 256 (Colo. 2003).

Subsection (6), properly applied, is constitutional in light of Apprendi and Blakely. A constitutional aggravated sentence based on subsection (6) must rely on one of four kinds of facts: (1) Facts found by a jury beyond a reasonable doubt; (2) facts admitted by the defendant; (3) facts found by the judge after the defendant stipulates to judicial fact-finding for sentencing purposes; (4) facts regarding prior convictions. The first three are Blakely-compliant facts, and the fourth is a Blakely-exempt fact. Defendant's aggravated sentence was based in part on a prior conviction; therefore, the sentence was constitutional. Lopez v. People, 113 P.3d 713 (Colo.), cert. denied, 546 U.S. 1017, 126 S. Ct. 654, 163 L. Ed. 2d 529 (2005); People v. Huber, 139 P.3d 628 ( Colo. 2006 ); People v. Smith, 183 P.3d 726 (Colo. App. 2008).

A conviction for an offense that occurs after the offense that the court is applying aggravated sentencing to may be a "prior conviction" for Blakely-exempt purposes if the conviction is entered before the sentencing on the aggravated sentence offense. Lopez v. People, 113 P.3d 713 (Colo.), cert. denied, 546 U.S. 1017, 126 S. Ct. 654, 163 L. Ed. 2d 529 (2005); People v. Smith, 183 P.3d 726 (Colo. App. 2008).

All convictions obtained in accordance with the sixth and fourteenth amendments of the federal constitution fall within the prior-conviction exception to Apprendi and Blakely. People v. Huber, 139 P.3d 628 (Colo. 2006).

The exception extends beyond the fact of conviction to facts regarding prior convictions. People v. Huber, 139 P.3d 628 (Colo. 2006).

A defendant's prior-conviction-related probation or supervision falls within the exception. The prior-conviction exception extends to facts regarding prior convictions that are contained in conclusive judicial records. Because a defendant's sentence to probation or supervision can be found in the judicial record, a trial court may properly consider this fact without violating the defendant's Blakely rights. People v. Huber, 139 P.3d 628 (Colo. 2006).

A single Blakely-compliant fact or Blakely-exempt fact is sufficient to support an aggravated sentence. Lopez v. People, 113 P.3d 713 (Colo.), cert. denied, 546 U.S. 1017, 126 S. Ct. 654, 163 L. Ed. 2d 529 (2005); DeHerrera v. People, 122 P.3d 992 ( Colo. 2005 ); People v. Huber, 139 P.3d 628 ( Colo. 2006 ).

The sentence is constitutional even if the court relies on facts that satisfy Blakely and facts that violate Blakely. Lopez v. People, 113 P.3d 713 (Colo.), cert. denied, 546 U.S. 1017, 126 S. Ct. 654, 163 L. Ed. 2d 529 (2005); DeHerrera v. People, 122 P.3d 992 ( Colo. 2005 ).

Court erred in aggravating the kidnapping sentence based upon the jury's finding that defendant used a deadly weapon during the sexual assault. Because the jury did not specifically find that defendant used the weapon during the kidnapping, the weapon's use was neither a Blakely-compliant nor a Blakely-exempt fact. People v. Glasser, 293 P.3d 68 (Colo. App. 2011).

Prior conviction exception includes prior misdemeanor convictions. Reliance on defendant's prior misdemeanor convictions to enhance defendant's sentence does not violate defendant's constitutional rights under Apprendi and Blakely. People v. Martinez, 128 P.3d 291 (Colo. App. 2005).

Prior conviction exception includes prior juvenile adjudications. Under Apprendi and Blakely, a sentencing court may determine facts regarding juvenile adjudications and use them as a basis to impose an aggravated range sentence despite the lack of a right to a jury trial in delinquency proceedings. People v. Mazzoni, 165 P.3d 719 (Colo. App. 2006).

Extraordinary aggravating circumstances in subsection (6) are the normal circumstances a trial court considers in imposing a sentence, including the character and history of the defendant and the particular circumstances of the offense, which become "extraordinary" because of their quantity or quality. They are not specified facts or considerations that, if found, mandate an increased penalty range or class of the offense. People v. Allen, 78 P.3d 751 (Colo. App. 2001); People v. Trujillo, 75 P.3d 1133 (Colo. App. 2003).

Sentence of twice the maximum term authorized in the presumptive range not abuse of court's discretion pursuant to subsection (6) where trial court identified a number of extraordinary circumstances beyond those which constituted elements of the offense with which defendant was charged. People v. Jones, 851 P.2d 247 (Colo. App. 1993); People v. Allen, 78 P.3d 751 (Colo. App. 2001); People v. Kitsmiller, 74 P.3d 376 (Colo. App. 2002).

Sentence found excessive. Defendant's sentence of a minimum of 32 years exceeded what is authorized by subsection (6), since the minimum sentence is greater than twice the 12-year presumptive maximum for a class 3 felony. People v. Clark, 214 P.3d 531 (Colo. App. 2009), aff'd on other grounds, 232 P.3d 1287 ( Colo. 2010 ).

To impose a sentence beyond the presumptive range, the court must make a specific finding on the record that the Blakely-compliant or Blakely-exempt fact is extraordinarily aggravating. Although a court may rely on facts that are not Blakely-compliant or Blakely-exempt to further justify its imposition of an aggravated sentence, it may do so only if it has found a Blakely-compliant or Blakely-exempt fact to be extraordinarily aggravating. People v. Fiske, 194 P.3d 495 (Colo. App. 2008).

The determination whether Blakely-compliant or Blakely-exempt facts are extraordinarily aggravating circumstances remains within the discretion of the trial court. People v. Fiske, 194 P.3d 495 (Colo. App. 2008).

A sentence based on extraordinary aggravating factors, subsection (6), does not require an Apprendi jury finding. The sentence was based on unenumerated and unspecified factors frequently considered in sentencing decisions. Those are not the types of factors considered in Apprendi and its progeny. People v. Rivera, 62 P.3d 1056 (Colo. App. 2002).

Judicial finding of extraordinary aggravating circumstances not unlawful under Apprendi. People v. Lopez, 97 P.3d 223 (Colo. App. 2004).

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).

Section 18-18-405 (3)(a)(I) is a sentence enhancer that requires a court to impose a mandatory minimum sentence of at least four years and limits its discretion to impose a lesser sentence under subsection (6). People v. Rice, 2015 COA 168 , 378 P.3d 791 (decided under law in effect prior to the 2012 amendment to § 18-18-405 ).

If plea agreement does not acknowledge presence of aggravating factors, Apprendi is applicable, and no sentence beyond the presumptive range may be imposed unless the facts relied upon to aggravate the sentence have been submitted to and determined by a jury. People v. Misenhelter, 121 P.3d 230 (Colo. App. 2004).

Trial court relied on Blakely-compliant facts as extraordinary aggravating circumstances to justify sentencing the defendant in the aggravating range pursuant to subsection (6). At least one of the aggravating factors for each conviction was based on a fact that the jury had to find to convict defendant of one of the other offenses. Mountjoy v. People, 2018 CO 92M, 430 P.3d 389.

While defendant admitted at providency hearing and in written plea agreement that prior misdemeanor conviction constituted a Blakely-exempt fact that widened the sentencing range and that the court could consider to impose an aggravated sentence, defendant did not admit that the prior misdemeanor was an extraordinary aggravating fact. Because the court imposed a sentence beyond the presumptive range without determining whether the sole Blakely-exempt fact was an extraordinarily aggravating fact that supported an aggravated sentence, the sentence was vacated and the case remanded for resentencing. People v. Fiske, 194 P.3d 495 (Colo. App. 2008).

Defendant's right to a jury determination of aggravating factors is not waived by pleading guilty to the charged offense. A guilty plea cannot be interpreted as a waiver of the right to have a jury determine factors exposing a defendant to greater punishment than otherwise authorized by the sentencing statute. A sentence beyond the relevant statutory maximum may be imposed only if a jury has determined the aggravating factors or the defendant has admitted them. People v. Solis-Martinez, 121 P.3d 215 (Colo. App. 2004).

Colorado law does not contemplate an increase in the statutory maximum sentence to which a defendant has subjected himself by pleading guilty, based on subsequent jury findings, which are the functional equivalent of elements of a greater offense than the one to which he pled. People v. Lopez, 148 P.3d 121 (Colo. 2006).

Allowing consideration of subsequent jury findings to increase a defendant's statutory maximum sentence would violate the requirement of Crim. P. 11 that the defendant understand the elements of the offense to which he pleads and the effects of his plea before his plea can be accepted. People v. Lopez, 148 P.3d 121 (Colo. 2006).

Defendant has no constitutional right to a jury trial to determine whether or not he or she has a prior conviction. That is an inquiry and finding the trial judge is entitled to make. People v. French, 141 P.3d 856 (Colo. App. 2005), cert. granted in part and denied in part, judgment vacated, and case remanded to the Colorado court of appeals for reconsideration in light of People v. Isaacks, 133 P.3d 1190 ( Colo. 2006 ), and People v. Huber, 139 P.3d 628 ( Colo. 2006 ), aff'd, 165 P.3d 836 (Colo. App. 2007).

The statutory maximum for purposes of applying Apprendi and Blakely is the maximum in the presumptive range. People v. Moon, 121 P.3d 218 (Colo. App. 2004).

The statutory maximum for a community corrections sentence for purposes of the Blakely rule is no different than the statutory maximum for a prison sentence. The firmly established rule from Blakely as applied to Colorado's sentencing scheme in Lopez v. People, 113 P.3d 713 (Colo.), cert. denied, 546 U.S. 1017, 126 S. Ct. 654, 163 L. Ed. 2d 529 (2005), also applies to a direct sentence to community corrections in Colorado. People v. Sandoval, 2016 COA 19 , __ P.3d __, aff'd, 2018 CO 21, 413 P.3d 1274.

District court plainly erred in aggravating defendant's community corrections sentence based on facts that were neither Blakely-compliant nor Blakely-exempt. People v. Sandoval, 2016 COA 19 , __ P.3d __, aff'd, 2018 CO 21, 413 P.3d 1274.

If the court resentences an offender to prison after rejection by community corrections, it is not a new sentence (requiring new findings for a sentence outside the presumptive range) unless the offender would suffer some substantial procedural prejudice. The court found no prejudice because the length of the original sentence was not changed and the offender received full credit for time served in community corrections. People v. Kitsmiller, 74 P.3d 376 (Colo. App. 2002).

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).

When the defendant stipulates to a sentence in the aggravated range as part of a plea agreement, the defendant also stipulates that sufficient facts exist to warrant an aggravated sentence, thus the trial court must not make additional findings on the record to comply with subsection (7). People v. Shepard, 98 P.3d 905 (Colo. App. 2004).

Trial court was not required to make specific findings detailing its reasons for varying from the presumptive range. People v. Roy, 948 P.2d 99 (Colo. App. 1977).

Trial court not required to discuss each factor enumerated in sentencing statute. People v. Bustamante, 694 P.2d 879 (Colo. App. 1984).

When written findings of specific extraordinary circumstances not necessary at sentencing. The fact that the court did not enter written findings of the specific extraordinary circumstances justifying a sentence beyond the presumptive stage until a week after the sentencing did not invalidate the sentence, where the judge had stated the reasons for the sentence orally at the time it was imposed. People v. Cantwell, 636 P.2d 1313 (Colo. App. 1981).

The decision of the trial court to sentence consecutively for separate offenses is discretionary and, in general, courts are free to impose concurrent or consecutive sentences as the situation warrants. People v. Wieghard, 743 P.2d 977 (Colo. App. 1987); People v. Williams, 33 P.3d 1187 (Colo. App. 2001).

And in determining the appropriateness of the sentence, the trial court relies on the sentencing factors set forth in § 18-1-102.5 . People v. King, 765 P.2d 608 (Colo. App. 1988), aff'd, 785 P.2d 596 ( Colo. 1990 ).

No abuse of discretion in the sentence imposed under subsection (7) where trial court sufficiently separated its findings of extraordinary aggravating circumstances in the two cases and gave due consideration to all relevant sentencing factors. People v. Lopez, 97 P.3d 223 (Colo. App. 2004).

The aggravator for committing a felony while on probation applies to a defendant on probation in another state. People v. Fogle, 116 P.3d 1227 (Colo. App. 2004).

When defendant admits the fact that is the basis for the enhanced sentence, the defendant's sentence was not illegal under Apprendi. Even though it was defense counsel that represented the defendant was on probation during the commission of the felony, the defendant did not object to this statement. Thus, the statement was an admission of the defendant. People v. Fogle, 116 P.3d 1227 (Colo. App. 2004).

Federal supervised release is effectively the same as parole for purposes of aggravating sentences under subsection (8)(a)(II). Because federal supervised release and parole have similar purposes and impose similar restrictions, the general assembly must have intended to include federal supervised release within the ambit of subsection (8)(a)(II). People v. Reed, 2013 COA 113 , 338 P.3d 364.

Court may aggravate sentence pursuant to subsection (8)(a)(III) based on the judge-found fact that defendant was on probation at the time of the crime. People v. Roberts, 179 P.3d 129 (Colo. App. 2007).

If a fact admitted by a defendant is a Blakely-compliant factor, it is sufficient to support imposition of an aggravated sentence. People v. Blinderman, 148 P.3d 232 (Colo. App. 2006).

Imposition of an aggravated range sentence pursuant to subsection (8)(a)(II) satisfies Blakely where defense counsel admitted that defendant had been on parole at the time of the offense and defendant did not object to counsel's statement or dispute the truth of it. People v. Scott, 140 P.3d 98 (Colo. App. 2005); People v. Blinderman, 148 P.3d 232 (Colo. App. 2006).

Where controlled substance offenses were reclassified as class 2 felonies, it was proper for court to apply sentence enhancers of subsection (8)(a)(II). People v. Robinson, 187 P.3d 1166 (Colo. App. 2008).

The general sentence aggravator in subsection (8)(a)(IV) of this section does not apply to the crime of second degree assault on a correctional officer. Section 18-3-203 (1)(f) defines second degree assault on a correctional officer and contains its own aggravator. Therefore, the specific aggravator applies, not the general one. People v. Willcoxon, 80 P.3d 817 (Colo. App. 2002).

Nothing in the language of subsection (8)(g) of this section or § 18-3-106 suggests a legislative intent to preempt the felony murder statute. People v. Prieto, 124 P.3d 842 (Colo. App. 2005).

An aggravated range sentence has both a qualitative and a quantitative dimension. The sentencing court makes a qualitative decision to depart from the presumptive range, which is subject to sixth amendment scrutiny under Blakely. The court then makes a quantitative decision of where to sentence within the aggravated range, which is not subject to further sixth amendment challenge. These two dimensions make exclusion of a constitutionally impermissible factor articulated in support of the sentence especially difficult, unless the record clearly shows that this factor was considered only to determine placement within the aggravated range. People v. Moon, 121 P.3d 218 (Colo. App. 2004).

A sentence within the aggravated range is mandated whenever any of the extraordinary aggravating circumstances specifically enumerated in subsection (9)(a) are present. People v. District Court, 713 P.2d 918 ( Colo. 1986 ); People v. Leonard, 755 P.2d 447 ( Colo. 1988 ); People v. Chavez, 764 P.2d 356 ( Colo. 1988 ); People v. French, 141 P.3d 856 (Colo. App. 2005), cert. granted in part and denied in part, judgment vacated, and case remanded to the Colorado court of appeals for reconsideration in light of People v. Isaacks, 133 P.3d 1190 ( Colo. 2006 ), and People v. Huber, 139 P.3d 628 ( Colo. 2006 ), aff'd, 165 P.3d 836 (Colo. App. 2007).

Prior felony conviction that was the event that triggered enhanced sentencing falls within the prior conviction exception to the Apprendi rule. People v. Ramirez, 140 P.3d 169 (Colo. App. 2005).

Where defendant committed second degree kidnapping while on bond for a felony charge for which he was subsequently convicted by the time of the sentencing hearing for kidnapping, trial court was obligated to impose sentence pursuant to subsection (9)(a). People v. Ramirez, 140 P.3d 169 (Colo. App. 2005).

Extraordinary circumstances required in findings. Sentence vacated and case remanded for sentencing where trial court failed to make specific findings on the record detailing extraordinary circumstances to vary from the presumptive range. People v. Leonard, 872 P.2d 1325 (Colo. App. 1993); People v. Blankenship, 30 P.3d 698 (Colo. App. 2000).

Mandatory sentencing of defendant on parole status under subsection (9) is a definite, immediate, and automatic consequence of plea which defendant must understand. People v. Chippewa, 713 P.2d 1311 (Colo. App. 1985).

Guilty plea constitutes a conviction within the meaning of subsection (9). Defendant, who had pled guilty to a separate offense and was out on bond, asserted that because he or she had not yet been sentenced for the prior felony at the time the trial court for the latter offense sentenced him or her, he or she was not yet "convicted". Defendant's guilt of a prior felony, not the punishment sentenced or received, is what is relevant for the purpose of defining "conviction" under subsection (9)(a). People v. French, 141 P.3d 856 (Colo. App. 2005), cert. granted in part and denied in part, judgment vacated, and case remanded to the Colorado court of appeals for reconsideration in light of People v. Isaacks, 133 P.3d 1190 ( Colo. 2006 ), and People v. Huber, 139 P.3d 628 ( Colo. 2006 ), aff'd, 165 P.3d 836 (Colo. App. 2007).

Escape from confinement while on probation required sentencing in aggravated range. People v. Herman, 767 P.2d 752 (Colo. App. 1988).

Due process requires that defendant be given reasonable notice that he is subject to enhanced sentencing under subsection (9)(a)(III) of this section. People v. Lacey, 723 P.2d 111 ( Colo. 1986 ); People v. Murphy, 722 P.2d 407 ( Colo. 1986 ).

Because defendant was convicted of a per se crime of violence under § 16-11-309 , the trial court was required to sentence him under the enhanced sentence provisions of subsection (9) of this section. The prosecution was not required to charge a crime of violence separately and the jury was not required to determine its existence in order for the trial court to sentence defendant under the provisions of subsections (9) and (9.7). People v. Lee, 989 P.2d 777 (Colo. App. 1999); People v. Hoang, 13 P.3d 819 (Colo. App. 2000). But see People v. Banks, 9 P.3d 1125 ( Colo. 2000 ).

Subsection (9)(a)(III) does not violate equal protection for lack of express provisions concerning the rights to reasonable notice and to have the prosecution prove the asserted probationary status where those rights exist independently of the statute. People v. Lacey, 723 P.2d 111 ( Colo. 1986 ); People v. Murphy, 722 P.2d 407 ( Colo. 1986 ); People v. Herman, 767 P.2d 752 (Colo. App. 1988).

Subsection (9)(a)(IV) does not violate defendant's equal protection rights since there is a reasonable basis for the classification. People v. Anderson, 784 P.2d 802 (Colo. App. 1989).

Subsection (9)(a)(V) did not apply to the crime of escape and attempted escape where the general assembly had provided for enhanced punishment for the crimes of escape elsewhere, specifically in §§ 18-8-208.1 and 18-8-209, and where the general assembly did not amend this section to make it specifically applicable to escape crimes. People v. Andrews, 871 P.2d 1199 (Colo. 1994).

The prohibition against the suspension of a sentence for felony child abuse contained in subsection (9)(d)(II) is an exception to the general rule for suspending sentences in subsection (10). Subsection (9)(d)(II) is the more specific statute and subsection (10) is a statute of broader scope. People v. Smith, 932 P.2d 830 (Colo. App. 1996).

Subsection (9)(a)(III) is a sentence enhancement statute to which procedural safeguards attach. People v. Lacey, 723 P.2d 111 (Colo. 1986).

Subsection (9)(a)(III) applies to persons on probation for felonies committed outside of Colorado. This provision was intended to subject all felony probationers sentenced to incarceration to a sentence in the aggravated range, regardless of the jurisdiction in which the felony conviction was entered and, if deemed a felony in another state, irrespective of the offense classification in this state. People v. Sellers, 762 P.2d 749 (Colo. App. 1988).

The language of subsection (9)(a)(III) is not ambiguous. The felony for which a defendant is on probation need not be the same felony offense for which he or she is being sentenced. People v. Moltrer, 983 P.2d 810 (Colo. App. 1999).

The provisions of subsection (9)(a)(III) that increase the minimum sentence to a point within the original presumptive range do not implicate Apprendi. Thus the allegation of whether defendant was on probation at the time of the offenses need not be submitted to the jury and proved beyond a reasonable doubt. People v. Gardner, 55 P.3d 231 (Colo. App. 2002).

Subsection (9)(a)(V) does not require the imposition of a sentence beyond the presumptive range upon conviction of the crime of escape under § 18-8-208 . People v. Jackson, 703 P.2d 618 (Colo. App. 1985); People v. Russell, 703 P.2d 620 (Colo. App. 1985); People v. Brewer, 720 P.2d 583 (Colo. App. 1985).

Nor does subsection (9)(a)(V) require the imposition of such a sentence upon conviction of the crime of attempted escape under § 18-8-208. People v. Martinez, 703 P.2d 619 (Colo. App. 1985).

Nor does subsection (9)(a)(V) require the imposition of such a sentence upon conviction of criminal attempt to commit escape under § 18-2-101. People v. Lobato, 703 P.2d 623 (Colo. App. 1985).

Subsection (9)(a)(V) did not apply to the crime of second-degree burglary where defendant had been charged with, but not convicted of, another felony at the time of commission of the burglary. People v. Nichols, 920 P.2d 901 (Colo. App. 1996).

Phrase "at least" in § 18-1-105 (9) does not require the court to set the minimum length of the indeterminate sentence at the midpoint of the presumptive range. The court may impose a minimum length to the indeterminate sentence that is greater than the midpoint of the presumptive range. People v. Becker, 55 P.3d 246 (Colo. App. 2002).

Sections 16-11-309 (1)(c) and 18-1-105 (9)(e.5) conflict irreconcilably with § 16-13-804 (1)(b). The phrase "up to the defendant's natural life" in §§ 16-11-309 (1)(c) and 18-1-105 (9)(e.5) conflicts with the phrase "a maximum of the sex offender's natural life" in § 16-13-804 (1)(b). Statutory construction calls for § 16-13-804 (1)(b) to prevail, requiring the court to set the maximum length of the indeterminate sentence at the defendant's natural life. People v. Becker, 55 P.3d 246 (Colo. App. 2002).

Escapee properly sentenced in the aggravated range pursuant to subsection (9.5) when the felony escape occurred while the defendant was charged with a previous felony, and was convicted of that previous felony. People v. Phillips, 885 P.2d 359 (Colo. App. 1994).

The intent of the general assembly in enacting subsection (9.5)(b) is to discourage the recidivism by subjecting those persons who are on bond and subsequently convicted of a felony to sentencing in the aggravated range. People v. Saucerman, 926 P.2d 130 (Colo. App. 1996).

A defendant who commits a felony while on bond after having pled guilty to a lesser offense is subject to the sentence-enhancing provisions of this statute. People v. Saucerman, 926 P.2d 130 (Colo. App. 1996).

Aggravated sentence based upon element which was also element of substantive offense did not offend equal protection or create double jeopardy. Aggravated sentence was permissible where defendant's confinement in correctional facility was both element of controlled substances offense and circumstance requiring sentence in aggravated range under subsection (9)(a)(V). People v. Leonard, 755 P.2d 447 (Colo. 1988).

An aggravated sentence is allowed where the defendant's confinement in correctional facility was both an element of attempt to introduce contraband into a detention facility and a circumstance requiring sentence in aggravated range under subsection (9)(a)(V). People v. Chavez, 764 P.2d 356 (Colo. 1988).

Aggravated sentence allowed where the defendant's confinement in a detention facility was an element of unlawful possession of marihuana in a detention facility and the confinement as a convicted felon was a circumstance requiring a sentence in the aggravated range under what is now subsection (8)(a)(IV). People v. Nitz, 104 P.3d 240 (Colo. App. 2004).

Violent crime sentence enhancer cannot apply to first degree heat of passion assault. People v. Harris, 797 P.2d 816 (Colo. App. 1990).

Constitutional bar to subjecting defendant to greater penalty for causing serious bodily injury with deadly weapon than if defendant had caused death of victim. People v. Harris, 797 P.2d 816 (Colo. App. 1990).

The term "under confinement", for purposes of subsection (9)(a)(V), includes a sentence to community corrections for a prior felony, even if the defendant had been transferred to nonresidential status at community corrections, and such a defendant must be sentenced within the aggravated range. People v. Miller, 747 P.2d 12 (Colo. App. 1987).

Parole statutes may be considered as aggravating circumstances. People v. Romero, 694 P.2d 1256 (Colo. 1985).

Sentence supported by finding of "aggravating circumstances". A finding of aggravating circumstances justifies the imposition of a sentence at the higher end of the presumptive range, pursuant to subsection (1)(b), but cannot be the basis for a sentence outside of the presumptive range, because such a finding is not specific enough to satisfy the requirements of subsection (7). People v. Maldonado, 635 P.2d 240 (Colo. App. 1981).

There was ample support for the aggravated sentence imposed where the court properly considered the defendant's prior criminal record. The fact that the court found aggravating factors more compelling than mitigating factors does not constitute an abuse of discretion or indicate that the court did not consider mitigating factors. People v. Loomis, 857 P.2d 478 (Colo. App. 1992); People v. Hernandez-Luis, 879 P.2d 429 (Colo. App. 1994).

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).

Where the court justified variation from the presumptive sentencing range solely upon the harm done to the victim and as a deterrent to others in the community, the trial court erred and is reversed. People v. Manley, 707 P.2d 1021 (Colo. App. 1985).

When reviewing sentences for excessiveness, appellate courts must consider the nature of the offense, the character of the offender, and the public interest in safety and deterrence. People v. Ramos, 53 P.3d 1178 (Colo. App. 2002).

Appellate courts must also accord considerable deference to a sentence imposed by the trial court because of that court's familiarity with the circumstances of the case. People v. Fuller, 791 P.2d 702 ( Colo. 1990 ); People v. Ramos, 53 P.3d 1178 (Colo. App. 2002).

No error where trial court considered defendant's presentation of perjured testimony in imposing the maximum aggravated sentence for his felony conviction. People v. Ramos, 53 P.3d 1178 (Colo. App. 2002) (citing United States v. Dunnigan, 507 U.S. 87, 113 S. Ct. 1111, 122 L. Ed. 2d 445 (1993)).

Trial court considered defendant's presentation of perjured testimony only in determining the appropriate penalty within the sentencing range mandated by statute, rather than making any factual determination that altered the applicable sentencing range. People v. Ramos, 53 P.3d 1178 (Colo. App. 2002) (distinguishing Apprendi v. New Jersey, 530 U.S. 466 (2000)).

Sentencing beyond presumptive range not justified where defendant was under supervision of probation department at time of commission of felony and not under confinement or in an institution as required by statute. People v. Wells, 691 P.2d 361 (Colo. App. 1984).

The presumptive range for a class 6 felony could not be doubled and then the sentence quadrupled because the defendant was also considered an habitual offender. The defendant was convicted of stalking while the defendant was on parole from prison. The stalking offense qualified the defendant as an habitual offender. Stalking is a class 6 felony. This section requires the doubling of the presumptive range of the conviction for offenses that occur while on parole. Section 16-13-101 (2) requires the quadrupling of offenses committed by habitual offenders. Section 16-13-101 (2), however, does not authorize the quadrupling of a sentence that is already increased. People v. Bastian, 981 P.2d 203 (Colo. App. 1998).

Person must be convicted of same felony for which charged for court to find extraordinary aggravating circumstance. Conviction of criminal impersonation when sexual assaults were committed did not constitute an aggravating circumstance. People v. Tuck, 937 P.2d 810 (Colo. App. 1996).

However, for the extraordinary aggravating circumstance described in subsection (9)(a)(III) to apply, the felony for which a defendant is on probation need not be the same felony offense for which he or she is being sentenced. People v. Moltrer, 983 P.2d 810 (Colo. App. 1999).

Where defendant was on probation for another felony at the time of the commission of a felony, the failure of the court to sentence the defendant to a term greater than the presumptive range due to the presence of an extraordinary aggravating circumstance was error. People v. Garcia, 698 P.2d 801 (Colo. 1985).

Cost to the taxpayers of the defendant's trials and the fact defendant acted alone are not aggravating sentencing factors and were improperly considered in sentencing. People v. Arguello, 737 P.2d 436 (Colo. App. 1987).

Factor which constitutes an element of the substantive crime could not constitute an extraordinary aggravating circumstance. People v. Garciadealba, 736 P.2d 1240 (Colo. App. 1986).

However, factual matters relevant to particular elements of an offense but that do not actually establish any elements may be considered by the trial court as extraordinary aggravating circumstances. People v. Sanchez, 769 P.2d 1064 ( Colo. 1989 ); People v. Hernandez-Luis, 879 P.2d 429 (Colo. App. 1994).

Subsection (9)(c) permits the sentencing court to consider aggravating factors other than those specifically set forth in statute when imposing an extraordinary aggravated sentence. People v. Hernandez-Luis, 879 P.2d 429 (Colo. App. 1994).

Subsection (10) does not apply to crimes of violence that are sexual offenses. People v. Tillery, 231 P.3d 36 (Colo. App. 2009), aff'd on other grounds sub nom. People v. Simon, 266 P.3d 1099 ( Colo. 2011 ).

Aggravated sentence supported by appropriate factors and sufficient findings where the court found that the offense was extremely violent, the victim lay helpless and unconscious through most of the attack, the victim in no way provoked the attack, the defendant denied his involvement in the attack, and the defendant had consumed alcohol the night of the incident. People v. Moore, 902 P.2d 366 (Colo. App. 1994).

Defendant's argument that the use of force in committing assault was an essential element of the crime and should not be considered as an aggravating factor was without merit. People v. Silva, 782 P.2d 846 (Colo. App. 1989).

Defendant's argument that, before a court can consider psychological or other adverse impacts of a crime on victims and their families as an extraordinary aggravating circumstance, there must be evidence that the impact is greater than that which is "normally" experienced by other victims of crime was found to be without merit. Such a requirement would be inconsistent with the legislative intent that sentencing courts be granted broad discretion in distinguishing between "ordinary" and "extraordinary" circumstances depending upon the specific facts of each case. People v. Leske, 957 P.2d 1030 (Colo. 1998).

Sentence modified on appeal only if trial court abused discretion. The trial court has great leeway in imposing sentence and, absent a clear abuse of discretion, the trial court's decision will not be modified on appeal. People v. McKenna, 199 Colo. 452 , 611 P.2d 574 (1980); People v. Clements, 732 P.2d 1245 (Colo. App. 1986).

Proof of clear abuse of discretion needed to overturn sentencing decision. The trial court's sentencing decision will not be overturned on appeal absent a showing that the trial court's wide latitude is marked by a clear abuse of discretion. People v. Hotopp, 632 P.2d 600 (Colo. 1981).

Factors considered in appellate review of sentence. On review of the propriety of a sentence, the Colorado supreme court considers three factors: (1) The nature of the offense; (2) the public interest in safety and deterrence; and (3) the character of the offender. People v. Naranjo, 200 Colo. 1 , 612 P.2d 1099 (1980); People v. Cohen, 617 P.2d 1205 ( Colo. 1 980); People v. Colasanti, 626 P.2d 1136 ( Colo. 1981 ); People v. Magee, 626 P.2d 1139 ( Colo. 1981 ); People v. Walters, 632 P.2d 566 (Colo. 1981); People v. Tijerina, 632 P.2d 570 (Colo. 1981).

Felonies committed before July 1, 1981. The requirement for written findings survives for felonies committed before July 1, 1981. People v. Sanchez, 644 P.2d 95 (Colo. App. 1982).

Sentence upheld. Sentence of 15 to 30 years for second-degree murder was not an abuse of discretion. People v. La Plant, 670 P.2d 802 (Colo. App. 1983).

Minimum sentence within presumptive range for criminally negligent child abuse resulting in death was proper when it was supported by the evidence, reflected a proper balancing of mitigating and aggravating factors, and did not give undue weight to any one factor. People v. Clements, 732 P.2d 1245 (Colo. App. 1986).

Fifteen-year sentence for second-degree arson committed while defendant was on parole did not constitute abuse of discretion by trial court. People v. Swepston, 822 P.2d 510 (Colo. App. 1991).

Sentence of 40 years' imprisonment for defendant convicted of child abuse resulting in death did not constitute abuse of discretion on the part of the trial court. The sentence was within the range required by subsection (9)(d)(I), and the trial court made extensive and detailed findings in imposing the sentence, took into consideration the sentencing factors set forth in § 18-1-102.5 , and appropriately considered mitigating and aggravating factors in imposing the sentence. People v. Garcia, 964 P.2d 619 (Colo. App. 1998), rev'd on other grounds, 997 P.2d 1 ( Colo. 2000 ).

The trial court did not abuse its discretion in imposing an aggravated sentence that was not based on a factor specified in subsection (9)(a) where the court made written findings that defendant posed a danger to society, that defendant had inflicted substantial emotional and psychological harm on his victims, that the victims were extremely vulnerable, that defendant was likely to reoffend, and that the jury had determined that one of the counts was a crime of violence. People v. Gholston, 26 P.3d 1 (Colo. App. 2000).

In light of the requirement that defendant receive an enhanced sentence if sentenced to a term of imprisonment, the trial court did not err in failing to consider a suspended sentence as a sentencing option. People v. Nastiuk, 914 P.2d 421 (Colo. App. 1995).

Sentence vacated and case remanded for re-sentencing where defendant was sentenced in an enhanced range for being on bond for an offense which was later dismissed. People v. Bachofer, 192 P.3d 454 (Colo. App. 2008).

Statutory authority of court to suspend sentences applicable to both misdemeanor and felony offenses. People v. Schwartz, 823 P.2d 1386 (Colo. App. 1991).

When a defendant receives two convictions and challenges only one of the convictions, the trial court has no authority to alter the sentence for the unchallenged conviction. People v. Wieghard, 743 P.2d 977 (Colo. App. 1987).

Under subsection (6), since defendant knew that failure to meet conditions of probation might constitute extraordinary aggravating circumstances which would justify sentencing beyond the presumptive range, the court was justified in doubling of presumptive range of sentence when defendant met neither the community service nor the restitution condition of probation. Montoya v. People, 864 P.2d 1093 ( Colo. 1993 ); People v. Smith, 183 P.3d 726 (Colo. App. 2008).

Trial court properly related aggravating factors to defendant and the circumstances of the crime for conviction as an accessory. People v. Preciado-Flores, 66 P.3d 155 (Colo. App. 2002).

Consideration of request for reduction of sentence for a crime committed after a certain date by a person sentenced after the date that sentences for that crime was increased does not require that such a sentence be reduced, but rather leaves the matter to the discretion of the trial court. People v. Gallegos, 789 P.2d 461 (Colo. App. 1989) (decided under law in effect prior to 1989 repeal of subsection (1)(b)(VII)).

Persons convicted of child abuse resulting in death are eligible for sentence modification pursuant to § 17-27.7-104 upon successful completion of the regimented inmate training program, but the sentencing court's discretion is limited by the relevant mandatory sentencing limits. People v. Smith, 971 P.2d 1056 (Colo. 1999).

"Incarceration", for purposes of subsection (9)(a), includes a direct sentence to community corrections. People v. Saucedo, 796 P.2d 11 (Colo. App. 1990).

Conspiracy to distribute a controlled substance is not an extraordinary risk crime. A plain reading of the statute does not include inchoate crimes. People v. Valenzuela, 216 P.3d 588 (Colo. 2009).

Where the defendant was convicted of "extraordinary risk of harm" crime and adjudicated as a habitual criminal, trial court properly calculated defendant's sentence by increasing the maximum presumptive range sentence pursuant to subsection (9.7) and then multiplying it by three pursuant to § 16-13-101(1.5). People v. Hoefer, 961 P.2d 563 (Colo. App. 1998).

The trial court appropriately increased the maximum presumptive penalty based on subsection (9.7)(a) before applying the presumptive penalty provisions applicable to crimes of violence under § 16-11-309. Thus, § 16-11-309 permits a doubling of the maximum penalty that is already increased under subsection (9.7)(a) for certain extraordinary risk crimes. People v. Greymountain, 952 P.2d 829 (Colo. App. 1997).

The extraordinary risk sentencing provisions of subsection (9.7) do not apply unless the defendant is actually charged with and convicted of a crime of violence, as described in § 16-11-309. In situations in which the defendant is convicted of a crime, such as second degree assault against a police officer under § 18-3-203 (2)(c), that mandates the same enhanced presumptive sentencing range as applies to a crime of violence, the defendant is not subject to the additional sentence enhancing provisions specified in subsection (9.7) unless the prosecution has specifically alleged and proved the elements of a crime of violence, as described in § 16-11-309. People v. Banks, 9 P.3d 1125 (Colo. 2000).

Because defendant was convicted of a per se crime of violence under § 16-11-309 , the defendant was subject to an increase in the sentencing range under the extraordinary risk crime provisions of subsection (9.7); the prosecution was not required to charge a crime of violence separately and the jury was not required to determine its existence in order for the trial court to sentence defendant under the provisions of subsections (9) and (9.7). People v. Lee, 989 P.2d 777 (Colo. App. 1999). But see People v. Banks, 9 P.3d 1125 ( Colo. 2000 ).

Imposition of a 25-year sentence for second degree murder committed in the heat of passion was not abuse of discretion and was within the range prescribed by law, because it is a per se crime of violence under § 16-11-309 and an extraordinary risk of harm crime pursuant to subsection (9.7); thus, the presumptive sentencing range was 10 to 32 years and the trial court was required to sentence defendant to a term of incarceration of at least the midpoint in the presumptive range, but not more than twice the maximum presumptive term for the offense. People v. Martinez, 32 P.3d 582 (Colo. App. 2001).

Because defendant's sentence for felony murder was not based on the habitual criminal statutes and because defendant's conviction for robbery, which was based on habitual criminal statutes, was vacated, the habitual criminal convictions must be vacated as well. People v. Cook, 22 P.3d 947 (Colo. App. 2000).

Subsection (10) allows the trial court only to suspend the imposition or execution of a sentence, not the length of the sentence, and in light of the mandatory language of § 18-18-107, the trial court was required to sentence the defendant within the range set forth in the statute. People v. Delgado, 832 P.2d 971 (Colo. App. 1991).

Distinction between imposition and execution of a sentence under subsection (10). Where court suspended the execution, but not the imposition, of a four-year term in the department of corrections on condition that defendant serve two years in a community corrections facility, the court was not thereafter precluded from resentencing defendant to four years in the department. People v. Seals, 899 P.2d 359 (Colo. App. 1995).

Prison sentence originally imposed becomes final notwithstanding suspension of the sentence. Suspension does not result in withdrawal of the original sentence, but in the suspension of the execution of the sentence subject to express conditions. If a condition is violated, the suspension may be vacated, and execution of the original sentence can be carried out. In such a circumstance, the pronouncement of a new sentence is both unnecessary and improper. People v. Frye, 997 P.2d 1223 (Colo. App. 1999).

Amendment to subsection (10), requiring recommendation for suspended sentence, applies prospectively and is inapplicable to defendant who committed crime prior to date amendment was enacted. People v. Munoz, 857 P.2d 546 (Colo. App. 1993).

The court may impose a fine in lieu of incarceration or probation without the consent of the prosecutor where the 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).

Former § 18-1-105 (10) does not authorize a court to suspend a statutorily enhanced sentence where mandatory minimum sentence was applicable to defendant who was on probation at the time of offense. People v. Munoz, 857 P.2d 546 (Colo. App. 1993).

Pursuant to the plain language of former § 18-1-105 (10) (now recodified with amendments under subsection (11)), if a defendant is sentenced pursuant to a mandatory sentencing provision, the sentencing court has no power to suspend either the imposition or execution of the sentence. People v. Hummel, 131 P.3d 1204 (Colo. App. 2006).

The statutory authority to impose a sentence is determined by the sentencing scheme in effect on the date of the offense. To the extent People v. Hummel annotated above suggests otherwise, the appellate court declined to follow it. People v. Wolfe, 213 P.3d 1035 (Colo. App. 2009).

Court not bound to apply original sentence upon revocation of probation. Because suspension of a sentence is in conjunction with, rather than contradistinction to, the imposition of a statutorily prescribed alternative to imprisonment, the sentencing court's resentencing options upon revocation were dictated by statutory provisions governing revocation of probation. Fierro v. People, 206 P.3d 460 (Colo. 2009).

Defendant was incorrectly sentenced under the extraordinary risk enhancement provision in subsection (10) because it is inapplicable to offenses committed after November 1, 1998. People v. Kyle, 111 P.3d 491 (Colo. App. 2004).

Attempted second degree murder is not a crime of violence "as defined in" § 18-1.3-406 , so it is not subject to extraordinary risk sentencing. The offense does not have an element that meets the definitional criteria in § 18-1.3-406 . People v. Baca, 2015 COA 153 , 378 P.3d 780.

The presumptive sentencing range for the class 4 felony offense of attempted unlawful distribution of a schedule II controlled substance is two years to six years, pursuant to subsection (1)(a)(V)(A). Such an attempt does not constitute a crime that presents an extraordinary risk of harm to society as defined in the legislative intent stated in subsection (10)(a). Thus, the maximum sentence in the presumptive range shall neither be increased nor be subject to subsection (10)(b)(XI). People v. Blinderman, 148 P.3d 232 (Colo. App. 2006).

Not illegal sentence when court first increased maximum presumptive sentence for extraordinary risk enhancement pursuant to subsection (10) for felony child abuse and then applied mandatory language of subsection (8)(d). People v. Ortega, 266 P.3d 424 (Colo. App. 2011).

Applied in People ex rel. Dunbar v. Moore, 125 Colo. 571 , 245 P.2d 467 (1952); People v. Peters, 151 Colo. 409 , 378 P.2d 205 (1963); People v. Alvarez, 187 Colo. 290 , 530 P.2d 506 (1975); People v. Bruebaker, 189 Colo. 219 , 539 P.2d 1277 (1975); People v. Marchese, 37 Colo. App. 65, 541 P.2d 1264 (1975); People v. Lobato, 192 Colo. 357 , 559 P.2d 224 (1977); People v. Smith, 195 Colo. 404 , 579 P.2d 1129 (1978); People v. Lake, 195 Colo. 454 , 580 P.2d 788 (1978); People v. Montoya, 196 Colo. 111 , 582 P.2d 673 (1978); People v. Burns, 197 Colo. 284 , 593 P.2d 351 (1979); People v. Mikkleson, 42 Colo. App. 77, 593 P.2d 975 (1979); People v. Toomer, 43 Colo. App. 343, 604 P.2d 1180 (1979); People v. Malacara, 199 Colo. 243 , 606 P.2d 1300 (1980); People v. Wylie, 605 P.2d 494 (Colo. App. 1980); People v. Hostetter, 606 P.2d 80 (Colo. App. 1980); People v. Abila, 606 P.2d 80 (Colo. App. 1980); People v. Horne, 619 P.2d 53 ( Colo. 1980 ); People v. Hall, 619 P.2d 492 ( Colo. 1980 ); People v. Marcy, 628 P.2d 69 ( Colo. 1981 ); People v. Martinez, 628 P.2d 608 ( Colo. 1981 ); Smith v. District Court, 629 P.2d 1055 (Colo. 1981); People v. Moody, 630 P.2d 74 (Colo. 1981); People v. Francis, 630 P.2d 82 (Colo. 1981); People v. Valencia, 630 P.2d 85 (Colo. 1981); People v. Scott, 630 P.2d 615 (Colo. 1981); People v. Macias, 631 P.2d 584 (Colo. 1981); People v. Beland, 631 P.2d 1130 (Colo. 1981); People v. Lucero, 632 P.2d 585 (Colo. 1981); People ex rel. Gallagher v. District Court, 632 P.2d 1009 (Colo. 1981); People v. Christian, 632 P.2d 1031 (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. Hamling, 634 P.2d 1023 (Colo. App. 1981); People v. Noble, 635 P.2d 203 (Colo. 1981); People v. Reynolds, 638 P.2d 43 (Colo. 1981); People v. Lowery, 642 P.2d 515 ( Colo. 1982 ); People v. Mattas, 645 P.2d 254 ( Colo. 1982 ); People v. Williams, 651 P.2d 899 (Colo. 1982); People v. White, 656 P.2d 690 ( Colo. 1983 ); People v. Castro, 657 P.2d 932 ( Colo. 1983 ); People v. Turman, 659 P.2d 1368 (Colo. 1983); People v. Dunoyair, 660 P.2d 890 (Colo. 1983); Corr v. District Court, 661 P.2d 668 (Colo. 1983); People v. Bridges, 662 P.2d 161 (Colo. 1983); People v. Espinoza, 669 P.2d 142 (Colo. App. 1983), aff'd, 712 P.2d 476 ( Colo. 1985 ); People v. Piro, 701 P.2d 878 (Colo. App. 1985); People v. Jenkins, 710 P.2d 1157 (Colo. App. 1985); People v. Lucero, 714 P.2d 498 (Colo. App. 1985); People v. Broga, 750 P.2d 59 ( Colo. 1988 ); People v. Flores, 757 P.2d 159 (Colo. App. 1988); People v. Wilson, 819 P.2d 510 (Colo. App. 1991); Patton v. People, 35 P.3d 124 ( Colo. 2001 ).