February 1, 2011

Colorado Court of Appeals decision 1-20-11


People v. Fuentes            Burglary / Double Jeopardy
Synopsis: A jury convicted Mr. Fuentes of two counts of 1˚ Burglary despite the fact that Mr. Fuentes only broke into one home (Jeffco does this all the time, morons).  During a party, Mr. Fuentes, the prosecution claimed, unlawfully entered the home and assaulted two people – one outside the home after Mr. Fuentes entered the home.
Issue: Without violating the Double Jeopardy Clauses, can a person be convicted of two counts of burglary when the prosecution alleges only one home?
Held: No
Reasoning: Person crimes: robbery, assault, murder, harassment, etc. - all protect people.
Property crimes: theft, criminal mischief, and burglary - all protect property. Derrr…. I think they taught this simple concept the first day of criminal law. Yet, the Court of Appeals spends a lot of energy refuting every spurious argument from the Attorney General. Thus, when the trial court sentenced Mr. Fuentes separately for each burglary conviction, the trial court violated Mr. Fuentes’ rights against Double Jeopardy.  The CofA then vacated one burglary conviction, and let the sentence stand on the other burglary conviction.
Issue: Does flight under the 1˚ Burglary statute encompass an assault outside the home of the alleged burglary?
Held: Yes.
Reasoning: Facts specific analysis according to the CofA – the Court reasoned that the assault took place outside the home as Mr. Fuentes and his comrades got into a waiting van. Therefore, the CofA reasoned the jury could have found that Mr. Fuentes in flight from the scene.  Further, despite what the defense called a break after the alleged assault, ‘flight’ encompasses momentary breaks in the action.
Issue: Whether any error occurred when the trial court granted the prosecution’s motion to continue without Mr. Fuentes being present at the hearing?
Held: No.
Reasoning: Because the trial court re-set the trial within the speedy trial period and because Mr. Fuentes could state no basis for the court granting his objection had he been present, the CofA reasoned no error occurred “let alone constitutional error, that substantially influenced the verdict or affected the fairness of the trial proceedings.”

People v. Cardenas Restitution – Post Judgment Interest
Synopsis: Mr. Cardenas pled to two counts of 1˚ Criminal Trespass. The trial court sentenced him to prison, and imposed post-judgment interest at 12% per year.
Issue: Whether the imposition of post-judgment interest on a person sent to prison violates the excessive fine clause of the 8th Amendment of the U.S. Constitution and/or Article II, section 20 of the Colorado Constitution?
Held: No.
Reasoning: Mr. Cardenas raised the issue due to his circumstances in prison, and thus, unable to be gainfully employed to pay the restitution. The CofA interpreted this as an as applied attack on the statute. To bolster his argument, Mr. Cardenas cited People v. Fichtner, (1994), where the Colorado Supreme Court held, “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). However, if a sentence of incarceration is ordered, a court does not also order the defendant to pay restitution during the period of incarceration. Instead, at the time of sentencing, the court sets the amount of restitution for later consideration by the parole board. See People v. Powell, 748 P.2d 1355 (Colo.App.1987).”
            The CofA essential ignores this quote from Fichtner, claims the change in the statutory language from “fix” to “impose” substantially changed the meaning of when restitution. Therefore interest can be imposed.
The CofA never addressed that a reasonable reading of the interest section of the restitution statute would be to postpone any accrual of interest until after the Parole Board released Mr. Cardenas.

People v. Roldan            Challenge for Cause
Synopsis: Essentially a cop-loving, marrying juror could not unequivocally state she would not be biased against the defense. The juror’s quotes: “I think I probably can,” “Of course, I would listen to the evidence and make a decision on it, put an opinion on it, but-yeah,” and she stated she could not be fair because she knows all the dirty tricks defense lawyers play. The trial court denied the challenge for cause. Mr. Roland then kicked the juror with a peremptory, and exhausted all his remaining peremptories.
Issue: Whether the trial court abused its discretion in denying the defense’s challenge for cause?
Held: Yes.
Reasoning: The CofA reversed the conviction, but starts its reasoning with, “If the trial court erroneously denies a challenge for cause, and the defendant removes the juror with a peremptory challenge and exhausts all available peremptory challenges, the judgment of conviction must be reversed and the case remanded for a new trial.” The CofA held because the juror could not unequivocally state should would not be biased, that Mr. Roldan deserves a new trial. Further the trial court solidified its holding by citing a combination of factors to justify the defense’s challenge of the prospective juror.
Directly from the case:

As a prospective juror, Juror R. informed the court in her questionnaire that her husband, brother, and cousin were police officers. In response to a question on her questionnaire asking if there was any reason she believed she could not  be fair, she wrote “yes” and explained, “I am very aware of some of the tricks attorn[eys] (especially defense) try to do[,] I would be biased.”

During voir dire, she further stated, “I've worked for construction companies that have had things stolen and pawned, and so I think I might be a little biased.”

Concerning her relatives in law enforcement she explained, “I love my husband and cops.... I got a lot of friends that are.” When asked, “[D]o you think you can be fair and impartial in setting those personal experiences behind?” Juror R. responded, “I think I probably can.” Regarding the credibility of a person with a criminal history, Juror R. stated, “[W]ith the job that my husband and my brother do[ ], that I would be skeptical.” She explained, “[M]aybe I'm a little biased in that area, just because of my background like that.” When asked, “If somebody walks in in uniform, are they going to start out as more truthful for you?” stated, “[Y]ou just want me to say yes. Yes.”

Juror R. also expressed concern for defense attorney “tricks” and for evidence that is “held out of cases just for, you know, various reasons.” She stated that she might be concerned that there was other evidence that was not being introduced, which might affect her decision when deliberating. When asked if she could make a fair and rational decision based on all of the evidence and its context, Juror R. responded, “Of course, I would listen to the evidence and make a decision on it, put an opinion on it, but-yeah.”




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