September 1, 2011
People v. Alvarado Complicity and Supplemental Instructions / Presentence Report and Aggravated Sentences
Facts: A jury convicted Mr. Alvarado of two counts of aggravated robbery and one count of kidnapping. During jury deliberations, the jury posed three questions to the trial court regarding complicity. After the trial court referred the jury back to the original instructions, the jury asked: “On complicity—does someone have to have knowledge of the intent prior to the act being committed or can the person watching the act happen be complicit by observing the act happen know [sic] that at the time the act is occurring that they [sic] are intending to do the act[?]”
The trial court answered with: “The defendant must have had knowledge of the other person's intent to commit all or part of the crime either before or at the time the other person committed all or part of the crime.”
Further, during sentencing, the trial court relied upon the presentence investigation report to justify its sentence. Specifically, that Mr. Alvarado had a pending juvenile case during the commission of these offenses.
Issue: Whether the trial court impermissibly lessened the prosecution’s burden with the supplement instruction on complicity?
Reasoning: The Court of Appeals simply found no abuse of discretion. The Court found that the trial court should provide a supplemental instruction unless:
(1) the jury may be adequately informed by directing its attention to some portion of the original instructions;
(2) the request concerns matters not in evidence or questions which do not pertain to the law of the case; or
(3) the request would call upon the judge to express an opinion upon factual matters that the jury should determine.
Mostly because the jury could not follow the reasonable doubt instruction and continued to machinate about how to convict, the jury kept inquiring about complicity – seemingly, hoping for direction to convict. The trial court provided it with the above instruction. The Court of Appeals held because the defense did not point to any authority that the instruction lessened the prosecution’s burden of proof, the trial court did not abuse its discretion (pretending of course that there would be any on anything so specific such as this instruction). Clearly, the case hinged on when the Mr. Alvarado realized the co-defendant started robbing the place. Apparently, the jury decided that because Mr. Alvarado did not thwart or prevent the co-defendant from carrying through once he saw what was happening, Mr. Alvarado then became a complicitor to the crimes. Utterly unfair.
Issue: Whether the trial court impermissibly relied upon facts in the PSI when sentencing Mr. Alvarado?
Reasoning: The Court of Appeals really did not analyze the issue very well. The Court forgot that the tribunal is an unbiased referee – not a prosecutor. Nevertheless, the Court of Appeals held that because the trial court could easily verify that Mr. Alvarado had a juvenile case pending during the commission of these offenses, the trial court did not abuse its discretion in relying on such facts from the PSI. Contrast that holding with People v. Isaaks, 133 P.3d 1190 (Colo. 2006), where the Colorado Supreme Court held that the trial court abused its discretion relying on facts in the PSI that were not admitted by Mr. Isaaks. Thus, here the trial court acted like a prosecutor, did not make the prosecution prove that the juvenile case was actually pending during the commission of this offense, and Mr. Alvarado never admitted that the juvenile case was pending at the time. The Court of Appeals confused prior convictions with proof of the prior convictions. Unfortunately, the trial court can take into account any prior conviction at sentencing. However, the prosecution still had the burden of proving any prior conviction or pending case. Isaaks, supra. Thus, because Mr. Alvarado never admitted to the pending juvenile case, the trial court abused its discretion. However, the Court of Appeals disagreed, and thankfully, the point is moot because the trial court still sentenced Mr. Alvarado within the presumptive range.