October 14, 2009

Colorado Court of Appeals decisions 9-17-09

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 Pueblo County. Mr. Pena pled and started serving a one-year sentence in Pueblo County. When he first failed to appear in El Paso 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, 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 County 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.
§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."

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