October 14, 2009
People v. Ragusa Conflict of Interest / Secret Meetings with the Court and DA
Ms. Ragusa’s defense lawyers undermined their client to Judge Russell during secret meetings and at other times during the trial and prior. The CofA reversed the conviction, and held that the defense lawyers created a conflict of interest, in that they were more concerned about the prosecution and the Court than their own client.
People v. Benavidez Consecutive Sentence and Second Degree Assault
The prosecution charged Mr. Benevidez with various crimes. While being held on the underlying charges, Mr. Benavidez “assaulted” a deputy at the jail. Mr. Benavidez was not serving a sentence at the time of the assault. Mr. Benavidez pled a deal involving the underlying charges, but also pled to second degree assault. The trial court found it did not have discretion to run the sentences concurrently, and must impose a consecutive sentence for the second degree assault. The language, ”A sentence imposed pursuant to this paragraph (f) shall be served in the department of corrections, and shall run consecutively with any sentences being served by the offender . . . ,” does not mean what it says. The CofA held that it means the sentence must be consecutive to whatever sentence the client is serving or will be serving on the charge(s) for which he/she was originally held.
People v. Scoggins Costs of Prosecution
The CofA interpreted the Costs of Prosecution statute to mean the prosecution could ask for extradition costs five months after the original sentencing. The CofA held that the doctrine of laches does not give the prosecution an unlimited time to ask for such costs.
People In The Interest of D.W. Restitution
The CofA held: “D.W., a juvenile, appeals the restitution order entered in a juvenile delinquency adjudication based on his guilty plea admitting that he committed acts which, if committed by an adult, would constitute the offense of sexual assault on a child. The central issue on appeal is whether the People proved that D.W.’s delinquent conduct was the proximate cause of losses incurred by the victim’s parents when they sold their house so that the victim would no longer have to live near D.W. We conclude the People did not meet this burden because there is no competent evidence in the record establishing that D.W. posed an ongoing and specific threat to the victim. Therefore, we vacate the restitution order and remand for entry of a modified order. “
People v. Gomez-Garcia Miranda and Foreign agents
The opinion is sickening. I remember this whole incident, and these cops deserved to be shot. However, a jury disagreed and convicted Mr. Gomez-Garcia. The CofA held that despite the intelligence, presence and cooperation of
U.S. officials in the arrest and interrogation of Mr. Gomez-Garcia, the officials did not dictate or attempt to evade the Constitutional requirements of Miranda. U.S.
Self-Defense / Comments by the Trial Court / Duty to Retreat Martinez
Many issues, and none resolved in Mr. Martinez’s favor. In essence, this is fight in a dive bar over some woman. Mr. Martinez and a co-defendant fought with the lack-belt victim and a co-hort. The black-belt victim got his behind beat. The first issue was whether the trial court erred in commenting during the prosecution’s closing. The prosecutor said essentially if the defendant was so scared, he could have simply left. The Court said, “I think it’s in line with the instruction on the affirmative defense. If you’ll note, we have some testimony that [defendant] was the initial aggressor. And I think if you’ll look at that instruction, it is arguable.” The CofA held this was a legal finding and did not invade the province of the jury. Mr. Martinez did not ask for a “no duty to retreat” instruction, and the CofA held it was not error when the trial court did not sua sponte instruct the jury that there is not duty to retreat in Colorado (in any self-defense case – ask for the instruction of no duty to retreat; jurors always attempt to curry favor with the Court or DA’s by saying “I would avoid or leave to avoid a physical fight,” and even if jurors do not, many believe this is appropriate, especially in a society that essentially forbids testosterone).
People v. Plancarte Nothing Important - seriously
Mr. Plancarte did a pro-se appeal after firing his appellate lawyer. The only thing worth really mentioning is that the CofA found no error with a jail sentence on misdemeanors to be served consecutive to a DOC sentence. I thought the legislature just passed a law prohibiting the trial courts from constructing sentences in such a way. Clearly the trial court did not want Mr. Plancarte to parole early (Mr. Plancarte had a habit of jogging past female DU students, stalking them, and then beating them up; probably's got some mommy issues. ).
Expectation of Privacy When Speaking Spanish / Challenges for Cause Zamora
A jury convicted Mr. Zamora of first degree murder and various other charges. The Court of Appeals affirmed his convictions.
Expectation of Privacy: The CofA held that despite Mr. Zamora speaking Spanish in a telephone conversation, he had no expectation of privacy when he made that call in front of a Detective.
Challenge for Cause: One juror says gangs make her uncomfortable, and that she had sympathy for the victim's family; the judge asked the juror if she would follow her sympathy or the law. "The law judge!!!" All A-OK with the CofA.
Challenge for Cause: “
challenged Juror N.B. for cause contending she (1) did not understand the prosecution's burden, as demonstrated by her expectation of hearing from defense witnesses, and (2) she expressed an anti-gang bias.” Despite N.B.'s reservations, both the trial court and CofA found no problem with this juror. Zamora
People v. Gallegos Sexually Violent Predator - Factual Basis
Facts: Mr. Gallegos pled to F5 Attempted SAC on his girlfriend’s five-year old daughter. The trial court found that Mr. Gallegos established this relationship with the daughter to primarily to promote sexual victimization.
Held: The Court of Appeals reversed the trial court. The CofA found that Mr. Gallegos’s met the daughter after he and his girlfriend met. Thus, he did not establish a relationship with the daughter primarily to promote sexual victimization.
People v. Pena "Custody" and the Statutory Right to Preliminary Hearing
Mr. Pena, like many clients, bonded on his case in
El Paso County, picked up another case in . Mr. Pena pled and started serving a one-year sentence in Pueblo County . When he first failed to appear in Pueblo County , he was on bond, but held in Pueblo County Jail on his one-year jail sentence. The Court performed a writ for Mr. Pena's appearance in El Paso County , and re-set a bond. However, Mr. Pena never posted another bond. Mr Pena argued and the District Court agreed that because he was not brought before the court within 30 days for his preliminary hearing, the case must be dismissed. The Court of Appeals disagreed. The Court of Appeals, in somewhat scary reasoning, stretches the definition of custody to mean custody of the sheriff where the case is pending - instead of simply being held in custody on a warrant. Thus, the CofA essentially ruled that a person cannot be held in concurrent custody. As a result, the CofA held Mr. Pena was not in custody on the El Paso case despite not having posted bond. Therefore, the CofA continued, Mr. Pena was not entitled to a preliminary hearing. Judgement reversed. Charges re-instated. Here is what the statute, C.R.S. El Paso County
§16-5-301(1)(b)(II), actually says: "Any defendant accused of a class 4, 5, or 6 felony who is not otherwise entitled to a preliminary hearing pursuant to subparagraph (I) of this paragraph (b), may demand and shall receive a preliminary hearing within a reasonable time pursuant to paragraph (a) of this subsection (1), if the defendant is in custody for the offense for which the preliminary hearing is requested; except that, upon motion of either party, the court shall vacate the preliminary hearing if there is a reasonable showing that the defendant has been released from custody prior to the preliminary hearing."