Colorado Court of Appeals decision 10-28-10

People v Zukowski            Make My Day / Jury Instructions           

Synopsis:  After some bitching back and forth between neighbors across the hall, the complaining witness goes to Mr. Zukowski apartment uninvited and enters. Mr. Zukowski comes a-swingin’ a machete at the complaining witness, and struck him in the head and torso. A jury convicted Mr. Zukowski of first degree assault after the trial court denied Mr. Zukowski’s motion to dismiss under Make My Day. The prosecution sought and the trial court granted their request to instruct the jury that Make My Day did not apply if the intruded had a “good faith” belief he could enter. Unsurprisingly, that became the issue on appeal.

Issue: Whether the trial court erred in instructing the jury by informing them that Make My Day did not apply if the complaining witness had a “good faith” belief that he was not breaking a criminal law?

Held: Yes. Case reversed and remanded for new trial.

Reasoning: This language from the Make My Day instruction caused the reversal:

“In order for this affirmative defense to apply, the other person’s unlawful entry into the dwelling must have been made in knowing violation of the criminal law. An entry made in the good faith belief that it is lawful, is not an entry made in knowing violation of the criminal law.” (emphasis in the original opinion)

No where in the make my day statute does that language exist, as the Court of Appeals noted. The CoA simply reasoned that putting the onus on someone faced with an unlawful entry to decide whether the intruder had a “good faith” belief when making the unlawful entry is too great, and not required by policy or the statute.  

Colorado Supreme Court decision 10-25-10

People v. Montes-Rodriguez             Criminal Impersonation – Sufficiency of the Evidence

Synopsis: Mr. Montes-Rodriguez applied for a car loan using his real name, birth date, address, and employment information. However, he used a fictitious social security number. A jury convicted him of criminal impersonation, and the Court of Appeals affirmed. The Colorado Supreme Court reversed his conviction.

Issue: Is merely using a fictitious social security number enough to convict someone of criminal impersonation when that person uses his real name, date of birth, address, employment, etc.?

Held: No.

            The Supreme Court held:

“[Mr.]Montes- Rodriguez’s false social security number was one of many pieces of identifying information submitted on his loan application. On the whole, by providing his proper name, birth date, address, and employment information, the evidence establishes that Montes-Rodriguez applied for the loan as himself, not as another person.

Accordingly, we reverse the court of appeals’ opinion upholding Montes-Rodriguez’s conviction. We remand this case to that court so that it may be returned to the trial court for entry of a judgment of acquittal.”

The Court divided the criminal impersonation statute into two portions:

1)    False Identity

2)    False Capacity

False Capacity: The Court went through the statute and determined that in each instance - marriage, bail, judgments in criminal law and civil court - carries a “distinct legal significance.” Further, the Court limited People v. Bauer 80 P.3d 896 (Colo.App. 2003) to its factual circumstances. In Bauer, Mr. Bauer held himself out to be a lawyer under his real name, address, social security number etc. However, the Colorado Supreme Court previously suspended Mr. Bauer’s license to practice law. Thus, when he held himself out as a lawyer and continued to practice law, he assumed a false legal capacity.

            Unlike Bauer, the Court found that the loan Mr. Montes-Rodriguez applied for did not legally require him to provide a social security number. The Court specifically stated, “Although Montes-Rodriguez may have lacked the practical capacity to obtain a loan through Hajek Chevrolet because they could not check his credit without a social security number, he did not lack the legal capacity to obtain a loan.”

False Identity:  The Court then went on to determine whether Mr. Montes-Rodriguez asserted a false identity when he applied for a car loan. The Court wrote, “He gave his correct address, birth date, and place of employment. Most importantly, he gave his correct name. In the face of so much accurate identifying information, we cannot conclude that Montes-Rodriguez pretended to be another person in his loan application simply because he supplied a false social security number. Hence, we conclude that Montes-Rodriguez did not assume a false identity.”

            Incidentally, the Court followed both People v. Jones, 841 P.2d 372, (Colo.App. 1992), and the dissent of Montes-Rodriguez in the Court of Appeals. I attached Jones, Bauer, and the Court of Appeals decision in Montes-Rodriguez, which contains the dissent the Supreme Court followed.

Court of Appeals decisons 9-30-10

Court of Appeals decisions 9-30-10

People v. Thronton                        Theft - Sufficiency of the Evidence and Value

The Court of Appeals held that that the Kelly Blue Book valuation for used cars is admissible as evidence at trial, and such evidence is sufficient to establish value beyond a reasonable doubt. Incidentally, whiny-ass dad called the police on his son to report that his son stole his car. A jury convicted the son of a class 3 felony. Nice work Pop.

People v. Garcia            Merger / Investigatory Stop / Length of Detention

The Court of Appeals found that the police did not violate Mr. Garcia’s rights when they held him until a K-9 dog arrived. The police justified the original stop on I-76 on an “unsafe lane change.” Upon searching Mr. Garcia’s truck, the police found over 400 lbs. of marijuana. The jury convicted Mr. Garcia of possession and possession with intent to distribute. The CofA found no problem with the ruse to hold Mr. Garcia and search his truck. The CofA did however merge the possession counts and the possession with intent to distribute counts. Further, the CofA reduced the amount of parole from 5 years to 3.

Court of Appeals decisions 9-2-10

People v. McClaren            Blood Tests / Voluntariness / Vehicular Assault – DUI

Facts: Mr. McClaren crossed the double yellow, hit another car, and caused a broken wrist to the drive of the other car. On scene, Mr. McClaren tells the EMT treating him that he had a beer earlier. Bloodhound cop claims she smelled alcohol on his breath. The cop never gave Mr. McClaren a choice, but ordered the phlebotomist to take two vials of blood to test. Mr. McClaren never refused a test.  The defense filed a motion to suppress the results of the blood test. The trial court suppressed the results, and did one better, the trial court dismissed both the DUI and the Vehicular Assault.

Issues: Whether the trial court abused its discretion when it suppressed the results of the blood test and dismissed the charges.

Held: No and Yes.

Reasoning: Regarding the suppressing of the results, the Court of Appeals held, “Because the trial court found the officer committed misconduct without justification by extraordinary circumstances or good cause, the trial court did not abuse its discretion by suppressing the results of the blood test.” However, the CofA also held that the dismissal is a drastic remedy, and this misconduct does not necessitate the dismissal of the charges.

People v. Bowerman            Restitution Amount / 35(a) / 35(b) / 35(c)

Synopsis: Ms. Bowerman moves into the complaining witness’s home. The complaining witness visits California for about a month, and asks Ms. Bowerman and her stellar boyfriend to watch her home while she is in California. While the complaining witness is gone, Ms. Bowerman and boyfriend hold a garage sale to sell the complaining witness’s crap – without the complaining witness knowing. The prosecution charged Mr. Bowerman with F4 theft, and she pled to an F5 attempted theft and an F6 false information to a pawnbroker.  Two years later, Ms. Bowerman complained in a 35(c)/35(a) motion that the procedure the trial court followed an illegal procedure at the restitution hearing. The trial court denied the motion, and the Court of Appeals affirmed, albeit on different grounds.

Issues: Does the 120-day rule apply when someone complains that the trial court imposed the sentence in an illegal manner?

Held: Yes.

Reasoning: Rule 35(a) Correction of Illegal Sentence: “The court may correct a sentence that was not authorized by law or that was imposed without jurisdiction at any time and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.” The Court of Appeals focused on the language “and may correct a sentence imposed in an illegal manner within the time provided herein for the reduction of sentence.” The Court of Appeals followed People v. Wenzinger, 155 P.3d 415 (Colo.App.2006), where another appeals court division held the 120 day limit in rule 35(b) applied to Rule 35(a) if the complaint alleges the trial court imposed the sentence in an illegal manner.

People v. Wylie            Mens Rea – Insanity vs. Negating Element / Sentencing

Some cases just make you angry. Mr. Wylie, obviously mentally ill, has a habit of throwing feces and urine on the douche bag bullies who choose to work as guards at the prison. The jury blew off his mental illness, and convicted him of four counts of second-degree assault. The female judge, debunking the myth of women as kinder and gentler, sentenced Mr. Wylie to 10 years on each count – CONSECUTIVELY (seriously, if you want all the accoutrements of being some f’in’ hero, like these friggin’ guards, and you profit from the misery of others, then f’ you and you may just suffer a bit of uncomfortable ickiness. There is a word rhymes with wuss).  In any event, the issues on appeal:  1) Did the instructions adequately inform the jury, and 2) Did the trial court abuse its discretion in sentencing Mr. Wylie. Yes, the instructions adequately informed the morons in Freemont County who made up the jury, and No, the suck up judge did not abuse her discretion in sentencing Mr. Wylie. Annoyingly, the CofA pointed out that defense counsel did not object to the sentence. I have no idea who, what, when, or why this has become an issue, but in the last few series of published opinions, the CofA pointed out that defense counsel did not object to the sentence at sentencing (no doubt, no defense lawyer knew he or she should because of the right to appeal the sentence – its not a frigging trial). The CofA stated:

“Defendant further contends the trial court erred in applying section 18-1.3-401(8)(a)(IV), C.R.S  .2009, to enhance his sentence. We perceive no error. Because defendant did not raise this issue in the trial court, we review for plain error. People v. Miller, 113 P.3d 743, 749-50 (Colo.2005). Plain error addresses error that is obvious and substantial, and so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the

conviction. Id . at 750.”

Moral of the story: OBJECT at sentencing. Why? I have no idea, but object to preserve the clients right to appeal the sentence. I guess.

People v. Smith             Investigatory Stop vs. Arrest / Miranda / Credit Time Served

When you bend over backwards, you just may end up kissing your own butt. Here, the Court of Appeals bent over backwards to find that by arresting Mr. Smith and holding him in the patrol car during questioning, the police did not hold him in custody. Thus, the police had no duty to advise Mr. Smith pursuant Miranda. However,  the CofA threw Mr. Smith a bone, and found that the trial court abused its discretion by not granting Mr. Smith all the time he was due while being held in jail awaiting trial on this case.