Colorado Court of Appeals 2-2-12 People v. Wartena

People v. Wartena   Lesser Non-Includeds – Re-Trial – Double Jeopardy / Burglary – intent to commit a crime therein

Facts: This unfortunate day for Mr. Wartena started when he and a friend stole a truck, a license plate, and items from another car. The thefts got the attention of the eye-witness in the case. The eye-witness called the police and followed the pair as they drove the stolen truck. At some point, Mr. Wartena shot at the eye-witness. Subsequently, the police chased the pair in the stolen truck. During the chase, Mr. Wartena’s co-defendant lost control of the truck, hit an SUV, and killed a passenger in the SUV. Mr. Wartena and the co-defendant escaped on foot, and took refuge in a barn. By the time they had gotten to the barn, Mr. Wartena lost his shoes. The prosecution claimed the boots Mr. Wartena wore when the police arrested him came from the barn.

The prosecution charged a slew of crimes with the most serious being 1˚ extreme indifference murder for the dead person in the SUV, and attempted murder for shooting at the eye-witness. The first trial ended in a hung jury on the most serious charges, but the jury convicted Mr. Wartena on lesser non-included offenses the defense submitted. Upon re-trial, the defense argued for a judgment of acquittal on the burglary because the prosecution failed to prove that Mr. Wartena formed the requisite intent to commit theft prior to entering the barn. The trial court denied the motion. Further, the trial court refused to submit the same lesser non-includeds the defense submitted and the jury convicted on in the first trial. The trial court reasoned that Double Jeopardy barred re-trial on those same charges. The jury hung again after the second trial, and the prosecution eventually dismissed the 1˚ murder charge against Mr. Wartena. However, the jury returned guilty verdicts on other charges, including burglary. Great work by the trial lawyers - Nancy Holton and Rex Hegyi.

Issue: Whether the requisite intent for burglary can be formed after entering the structure?

Held: Yes.

Reasoning: The Court of Appeals reversed centuries of law, and held that the intent  to commit the crime therein can be formed after entering the barn. The Court cited  the legislative change after the Colorado Supreme Court decided In Cooper v. People, 973 P.2d 1234, 1240 (Colo.1999)(where the Court held the requisite intent must be formed prior to entry of the structure). The Court of Appeals reasoned “the General Assembly amended the second degree burglary statute by adding the ‘after a lawful or unlawful entry’ language ... thus removing the requirement that intent to commit a crime exist at the time of entry.”  quoting People v. Larkins, 109 P.3d 1003, 1004 (Colo.App. 2004)(where the Larkins panel held intent may be formed after entry of the structure).

Issue: Whether the trial court may deny lesser non-included instructions on the basis a prior jury previously convicted the accused of the same charges?

Held: Yes.

Reasoning: The Court of Appeals held that if the instructions as a whole encapsulate the defense theory of the case, then the trial court may deny otherwise applicable lesser non-included instructions. On appeal the prosecution argued that the Double Jeopardy Clauses and issue preclusion barred the lesser non-includeds upon retrial. The Court of Appeals sidestepped the, Trujillo, to hold that even though the evidence supported the lesser non-included offense instructions, the trial court did not deny Mr. Wartena due process because the instructions as a whole encompassed his theory of defense.

 >Link to People v. Wartena here<

Colorado Supreme Court 2-13-12 criminal law decision - Lucero v. People

Lucero v. People             1˚ Burglary / Various Counts of Theft vs. Theft in a Series

Facts: A jury convicted Mr. Lucero of three counts of theft and 1˚ burglary. The thefts all took place during a six-month period, and Mr. Lucero never used or intended to use a deadly weapon during the burglary. Instead, the evidence only showed that Mr. Lucero stole some guns during a burglary.

Issue: Whether simply stealing guns amounts to using a deadly weapon during burglary?

Held: No.

Reasoning: Prior to 1981, such a factual scenario of simply stealing guns would get someone convicted of 1˚ burglary, a class 3 felony, rather than a less serious 2˚ burglary, a class 4 felony. However, in 1981 the legislature changed the statute removing any possible 'per se deadly weapon' reading, and thus excluded scenarios of simply stealing guns during a burglary. Here, in Mr. Lucero’s case, the Colorado Supreme Court held the statutory change specifically excluded scenarios where someone simply steals guns but does not use or intends to use the guns. (see identical holding in Montez v. People decided 2-13-12)

Issue: Whether three thefts in a six-month period must be merged into one count of theft under the theft-series statute?

Held: Yes.

Reasoning: In Roberts v. People, 203 P.3d 513 (Colo. 2009), the Supreme Court held that a series of thefts within a six-month period must be brought under a single theft count (statute since overruled the 2009 Roberts decision). Here, the jury found Mr. Lucero committed numerous thefts from different homes and automobiles between August 22, 2000, and September 18, 2000. Thus, the Supreme Court held that Mr. Lucero could only be convicted of one count of theft under the statute in place at the time the crimes occurred. The Court wrote, “On the first certiorari issue, we hold that Lucero cannot be punished for all three alleged thefts.  As in Roberts, the statute in effect at the time of Lucero’s acts provided that multiple thefts within a six month period must be merged into a single theft conviction, in this case theft in the aggregate value of $15,000.00 or more.”

 >Link to Lucero v. People<