Ct. App. Sep. 30, 2010

No. 08CA1027. People v. Thornton.Motor Vehicle Theft—Kelley Blue Book Value—Jury Instructions—Substitution of Counsel—Mistrial.

Defendant appealed the judgment of conviction entered on a jury verdict finding him guilty of first-degree aggravated motor vehicle theft. The judgment was affirmed.

Defendant contended there was insufficient evidence to prove the value of the stolen car exceeded $15,000 at the time of the theft. The Court of Appeals disagreed. The California Highway Patrol officer testified that he searched the Kelley Blue Book website to discern the value of the stolen vehicle and determined that the value was $16,415. The Kelley Blue Book may be admitted as proof of value under CRS § 18-4-414(2) and C.R.E. 803(17), and expert testimony is not needed to substantiate its valuation. Further, any data entered to arrive at the Kelley Blue Book value goes only to the weight and not the admissibility of the valuation.

Defendant also contended that the district court erred in denying his request for substitution of trial counsel. However, the record does not indicate a complete breakdown in communication and supports the district court’s determination to deny substitution. He claimed the trial court erred in failing sua sponte to order a mistrial. The mention of defendant’s homelessness, although it violated the pretrial order, was not obvious and substantial error that undermined the fundamental fairness of the trial, and was not unduly prejudicial to defendant.

The Court also rejected defendant’s contention that the trial court erred by failing to give a supplemental jury instruction defining the term "value" when the jury inquired about whether the value should be determined in California or Colorado. The trial court correctly responded by referring the jury to the instruction on the prosecution’s burden of proof, because that portion of the original instructions adequately informed it of the applicable law. Moreover, the jury’s question did not reflect a fundamental misunderstanding of the term "value."

No. 09CA0167. People v. Garcia. Possession With Intent to Sell or Distribute Marijuana—Motion to Suppress—Reasonable Suspicion—Merger—Lesser-Included Offense—Mandatory Parole.

Defendant appealed the judgment of conviction entered on a jury verdict (1) finding him guilty of possession with intent to sell or distribute marijuana and possession of eight ounces or more of marijuana; and (2) designating him as a special offender (possession of more than 100 pounds). He also appealed the sentence imposed. The judgment was affirmed in part and vacated in part.

Defendant argued that the trial court erred by allowing the hearing on the motion to suppress evidence of the marijuana discovered in his truck to commence before defendant arrived. Because defendant had no intention of testifying at the hearing and was not prejudiced by arriving late at the hearing, the court did not err in starting without defendant.

Defendant also argued that the trial court erred by denying his motion to suppress. The Court of Appeals disagreed. The officer had reasonable suspicion of a traffic violation to justify the initial investigatory stop. In addition, because defendant had an Arizona driver’s license while the truck had Iowa plates, and neither defendant nor his passenger could identify the owner of the truck or their destination, the officer had reasonable suspicion to detain the truck and conduct the dog sniff.

Defendant contended that the trial court erred by failing to merge the possession and possession with intent to sell or distribute convictions. The Court agreed. The possession conviction was a lesser-included charge of the possession with intent conviction, so it should have merged into the possession with intent conviction. Defendant’s conviction and sentence for possession of marijuana were vacated and the case was remanded to the trial court with directions to correct the mittimus.

The Court also agreed with defendant that the trial court erred by imposing five years of mandatory parole at the conclusion of his incarceration in the Department of Corrections on his conviction for possession with intent to sell or distribute marijuana. The specified mandatory period of parole for that class of felony was three years, and the plain language of the statute did not authorize the trial court to enhance the mandatory parole sentence. Accordingly, that part of defendant’s sentence was vacated and the case was remanded with instructions for the trial court to correct the mittimus to show a mandatory period of parole of three years on the remaining conviction.

Merger, theftdenverlawblog