Colo. Ct. App. March 4, 2010

Colorado Court of Appeals OpinionsMarch 4, 2010

The Court of Appeals summaries are written for the Colorado Bar Association by licensed attorneys Teresa Wilkins (Denver) and Paul Sachs (Steamboat Springs). Please note that the summaries of Opinions of the Colorado Court of Appeals are provided as a service by the Colorado Bar Association and are not the official language of the Court. The Colorado Bar Association cannot guarantee the accuracy or completeness of the summaries.

No. 07CA0125. People v. Gallegos. Embezzlement—Criminal Extortion—Indictment—Evidence—Jury Instructions—Closing Argument.

This summary was modified by the blog Denverlawblogs, and is not the original posted by the Colorado Bar Association.

Defendant Isaac Gallegos appealed the judgment of conviction entered on jury verdicts finding him guilty of embezzlement and criminal extortion. The judgment was affirmed in part and vacated in part.

Gallegos was indicted for embezzlement of public property, criminal extortion, and intimidation of a witness while he served as the Sheriff of Conejos County. The charges stemmed from Gallegos’s use of the jail’s inmates from the Conejos County Jail, to perform uncompensated construction work on an addition to his own home, and to cut firewood for his personal business for several years.

The government filed a bill of particulars alleging that he gained a substantial financial benefit by using the inmates; the inmates were not paid, and the county was not reimbursed for the work they performed.  The actual indictment alleged embezzlement and extortion.

Embezzlement was based on the following statute:

The crime of public property embezzlement occurs when a "public servant who lawfully or unlawfully comes into possession of any public moneys or public property . . . knowingly converts any of such public moneys or property to his own use or to any use other than the public use authorized by law." § 18-8-407(1), C.R.S. 2009.

The indictment alleged four facts to satisfy the public moneys or public property element of the embezzlement offense:

(1)   Gallegos used the manual labor of inmates to construct the addition to his home and to cut firewood;

(2)   Gallegos sold the firewood and kept the money for his personal use;

(3)   Gallegos benefited from the inmate labor by a large increase in the value of his home; and

(4)   Gallegos used county vehicles and personnel to transport the inmates for this work.

On appeal, Gallegos contended that the indictment did not sufficiently address the "public moneys or public property" element of the embezzlement charge, because it did not specify what was embezzled or how the embezzlement occurred. The Court of Appeals disagreed. Gallegos’s use of county vehicles and personnel to transport the inmates for work on his home involves public monies or public property because the vehicles were owned by the county and the personnel were county employees. Although this was just one of four factual allegations in the indictment to support this charge, an indictment that sets forth multiple factual allegations is legally sufficient when it accurately recites the law and provides at least one factual basis to support the charge. In addition, evidence in the record establishing this allegation, when viewed in the light most favorable to the prosecution, supported a finding of guilt beyond a reasonable doubt on the embezzlement charge.

The court adopted definitions of public moneys and property by stating

The General Assembly defined the term "public moneys" as "all moneys under the control of or in the custody of governmental units" in a statute dealing with financial institutions. § 11-47- 103(12), C.R.S. 2009. The Colorado Constitution also refers to public money. In particular, article X, section 13 states that a public officer commits a felony involving public money when he or she directly or indirectly makes a profit "out of state, county, city, town or school district money." Colo. Const. art. X, § 13. We will employ these definitions of "public property" and "public moneys" when interpreting these terms in the embezzlement statute.

Gallegos contended that the indictment did not adequately allege a violation of the threat to confine or restrain element of the criminal extortion charge.

As relevant here, a person commits criminal extortion when, "[t]he person, without legal authority and with the intent to induce another person against that other person’s will to perform an act or to refrain from performing a lawful act makes a substantial threat to confine or restrain . . . the threatened person or another person"2 and threatens to cause the results by "[p]erforming or causing an unlawful act to be performed" or "[i]nvoking action by a third party, including but not limited to, the state or any of its political subdivisions, whose interests are not substantially related to the interests pursued by the person making the threat." § 18-3-207(1), C.R.S. 2009.

The Court held that the bill of particulars, which stated that Gallegos threatened to transfer inmate T.S. to another jail away from his family if he refused to perform construction work on Gallegos’s home, sufficiently identified an act on which the extortion charge was based. However, the indictment was legally insufficient because it did not allege that Gallegos made a substantial threat to confine or restrain T.S.; as T.S. was already confined as an inmate, the threat to transfer the inmate was not sufficiently state and ‘substantial threat to confine or detain’.  Accordingly, the indictment on this charge was dismissed.

Gallegos argued that the trial court erred in permitting evidence regarding the work release theory, because that theory was not presented in the indictment and constituted an impermissible variance between the allegations and the proof. The Court disagreed.

There are two types of variances, a simple variance and a constructive amendment. Id. A simple variance between the charge in the indictment and the jury instructions does not constitute reversible error unless a defendant’s substantial rights are prejudiced. People v. Pahl, 169 P.3d 169, 178 (Colo. App. 2006). Convictions involving a simple variance are generally sustained as long as the evidence on which they were based corresponds to an offense that was clearly set forth in the indictment. People v. Rodriguez, 914 P.2d 230, 257 (Colo. 1996).

The People’s introduction of an alternative theory at trial, a ‘work release’ theory did not constitute a constructive amendment of the indictment because there was no change in an essential element of the embezzlement offense between the indictment and the jury instructions. Further, a simple variance did not occur because the evidence did not prove facts materially different from those alleged in the indictment.

The Court also rejected Gallegos’s contention that the trial court committed reversible error in the embezzlement elements instruction and in instructing the jury regarding the work release theory. The jury instruction regarding the embezzlement elements tracked the applicable statutory language and pattern jury instructions. The judgment of conviction for embezzlement was affirmed, and the conviction for extortion was vacated.

No. 07CA2311. People v. O’Hara III. Wiretap Application—Authorization.

Defendant appealed the judgment of conviction finding him guilty of distribution of a schedule II controlled substance. The judgment was reversed.

This case arose from a joint law enforcement task force operation based in Grand Junction. The operation’s purpose was to target major illegal drug dealers in the area. As part of the operation, task force officers, in conjunction with the local district attorney’s office, applied for and received orders authorizing wiretaps on two phones belonging to R.P., a suspected drug dealer. Evidence gathered from these wiretaps implicated defendant as R.P.’s supplier of methamphetamine.

On appeal, defendant argued that the application for the wiretap was fatally defective because the applicant was a Drug Enforcement Agency (DEA) task force officer, not the elected district attorney. The Colorado wiretap statute requires that the attorney general or a district attorney authorize a specific wiretap application, but that the elected official need not sign or personally submit the application. Here, the wiretap application submitted to the issuing judge was prepared by a DEA agent and a deputy district attorney. Therefore, the absence of the district attorney’s signature on the application does not render the application insufficient on its face. However, there is no finding by the trial court that the district attorney specifically authorized the wiretap application and nothing in the record would support such a finding in any event.

On review of the trial court’s decision not to suppress the wiretap evidence, reversal is required for a "failure to satisfy any of those statutory requirements that directly and substantially implement the congressional intention to limit the use of intercept procedures to those situations clearly calling for the employment of this extraordinary investigative device." United States v. Giordano, 416 U.S. 505, 527 (1974).

It is the district attorney’s specific authorization of a specific wiretap application, not his involvement in the investigation, which safeguards the public’s privacy against this extraordinary investigative device and satisfies the requirements of the state and federal wiretap statutes. Such an authorization satisfies Mimnes, section 16-15-102, and Title III.

Therefore, the court’s order denying suppression for the original application and the applications for extension of the wiretap and the judgment of conviction were reversed, and the case was remanded for a new trial.

No. 07CA2325. People v. Alley. Assault—Motion to Continue—Ineffective Assistance of Counsel—Testimony of an Intoxicated Witness—Sentence.

Defendant appealed the judgment of conviction entered on jury verdicts against him for first- and second-degree assault. He also appealed the sentence imposed. The judgment and sentence were affirmed.

V.M. met defendant at a senior support services center and invited him to join her at a motel where her friend N.H. was staying. After V.M. rejected defendant’s sexual advances, he beat her with a cane until she lost consciousness. N.H. testified that he had been asleep in the room and was awakened by a cracking sound and yelling. He saw defendant sitting on V.M. and hitting her with the cane. When N.H. yelled at defendant, defendant began hitting him with the cane. N.H. escaped and went to the motel office, where he called 911. The jury found defendant guilty of first-degree assault on V.M. and second-degree assault on N.H. The trial court sentenced him to consecutive sentences of forty-eight years and sixteen years, respectively.

On appeal, defendant argued that he was denied effective assistance of counsel because the trial court denied his motion to continue the trial. The Court of Appeals found no reversible error. Although defense counsel claimed she didn’t have sufficient time to prepare due to her caseload, the Court determined that defendant had not suffered actual prejudice from denial of the continuance, because the case had been pending for almost two years and the trial date had been set nearly four months in advance. Defendant was directed to raise his ineffective assistance of counsel argument in a Crim.P. 35(c) motion.

Defendant also contended that he was denied due process by the trial court’s failure to examine N.H. to determine whether he was competent to testify. The record indicates that N.H. abused alcohol and was customarily intoxicated. On the day N.H. was scheduled to testify, defense counsel noticed that N.H. appeared to be intoxicated. After a portable breathalyzer test indicated that N.H.’s blood alcohol content (BAC) was at least 0.233, the trial court ordered that N.H. remain in a waiting room. When N.H. was tested again approximately five hours later, his BAC was 0.084. Over defendant’s objection that N.H. was not competent to testify, the trial court permitted him to take the stand. Given the trial court’s statement that it would evaluate N.H.’s competency to testify and its careful monitoring of his BAC, it implicitly found him competent to give testimony. Such a finding is not contradicted by the record.

Defendant also contended that (1) the trial court failed to state its reasons for imposing the maximum sixteen-year sentence for second-degree assault; (2) the sixteen-year sentence was not supported by the record because N.H. suffered only a small fracture to his hand; and (3) the trial court failed to consider defendant’s rehabilitative potential before giving an excessive sentence totaling sixty-four years. The Court disagreed, holding that the sentences imposed were within the statutory ranges for crimes of violence, were based on appropriate considerations as reflected in the record, and were factually supported by the circumstances of the case. Therefore, the sentence was upheld.

No. 08CA1322. People v. Montoya. Jury Trial Waiver—Crim.P. 23(a)(5)(II)—Advisement.

Following a Bench trial, defendant appealed his conviction of sexual assault on a child. The case was remanded with directions.

The sole issue in this appeal is the proper construction of amended Crim.P. 23(a)(5)(II), which requires the trial court to advise a defendant of certain rights before accepting a waiver of a jury trial. The jury trial waiver must be made voluntarily, knowingly, and intelligently. The amended Crim.P. 23(a)(5)(II) requires that trial courts conduct on-the-record advisements to defendants, informing them of specific elements of their right to a trial by jury and of certain consequences if they waive that right.

Defendant contended that the trial court’s Crim.P. 23(a)(5)(II) advisement in this case did not comply with the amended rule, because the trial court did not conduct an on-the-record colloquy to determine whether his waiver was made knowingly, voluntarily, and intelligently. He sought a new trial before a jury.

There was an exchange between the trial court and defendant on the record, which established that defendant understood he had a right to a jury, that he wanted to waive the jury and try the case to the judge, that no one pressured him to waive the jury, that he was not affected by drugs or alcohol when making this decision, and that he had consulted with his attorney before making his decision. The written waiver also stated that defendant was "fully advised," and that he waived his right to a jury. The trial court did not determine, however, whether defendant understood that his decision to waive a jury trial was his alone and could be made contrary to his counsel’s advice; that the waiver would apply to all issues that might have been determined by a jury, including those requiring factual findings at sentencing; and that the jury would have consisted of twelve persons who would be required to reach a unanimous verdict, whereas in a trial to the court, the judge alone would decide the verdict. Therefore, the advisement was deficient under the rule.

However, the record does not indicate whether defendant suffered substantial prejudice as a result of the deficiency. Therefore, the case was remanded to the trial court for an evidentiary hearing to resolve defendant’s challenge to the validity of the waiver of jury trial.

No. 08CA1592. People v. Brown. Crim.P. 35(c)—Ineffective Assistance of Counsel—Fugitive.

Defendant appealed the trial court’s order denying his Crim.P. 35(c) motion. The order was affirmed.

Defendant was convicted of drug felonies after a jury trial in which he was represented by retained counsel. He was sentenced to four years in the Department of Corrections, but the trial court allowed him to remain free on bond pending appeal. Defendant’s attorney timely noticed an appeal, and he took initial steps to compile the appellate record.

The People subsequently asked the trial court to revoke the appeal bond and issue an arrest warrant. The trial court revoked bond, issued a warrant, and set a bond forfeiture hearing. Defendant did not appear, and his counsel stated defendant apparently was a fugitive.

Defense counsel filed a motion with the Court of Appeals, seeking to withdraw from appellate representation. The motion was sent to defendant’s residence, and defendant filed no objection. A division of the Court issued an order granting counsel’s motion to withdraw. After proper notice to defendant, the appeal was dismissed. Defendant remained a fugitive for almost three years.

After his arrest, defendant filed a Crim.P. 35(c) motion. The motion, filed by newly appointed counsel, claimed that defendant’s retained trial counsel was ineffective for not perfecting his appeal. The trial court denied the motion after a hearing in which defendant and his trial counsel testified. It ruled that defendant had been prejudiced by dismissal of the appeal because he had a meritorious appellate challenge to an erroneous jury instruction that likely would have led to reversal of his conviction. It concluded, nonetheless, that defense counsel had not performed deficiently.

On appeal, the Court affirmed the order denying relief, but on a different basis than that relied on by the trial court. A defendant claiming ineffective assistance of counsel need not show that meritorious appellate issues likely would have led to reversal. The defendant must show that counsel’s performance was deficient and that the performance caused prejudice. Here, defendant’s own flight from justice, not counsel’s performance, forfeited his right to an appeal. Defendant had no right to have counsel pursue his appeal while remaining a fugitive. Therefore, the order denying Rule 35 relief was affirmed.

No. 09CA0085. People v. Gardner. Crim.P. 35(c)—Double Jeopardy—Equal Protection—Subject Matter Jurisdiction.

Defendant Jeremy Gardner appealed the district court’s denial of his motion for post-conviction relief following his entry of guilty pleas. The order was affirmed in part and reversed in part, and the case was remanded with directions.

In May and October 2005, four cases were filed against Gardner, alleging theft, forgery, and fraud by check. In February 2006, Gardner pled guilty to three counts of theft of more than $15,000, each a class 3 felony. Following the plea, but before sentencing, Gardner discharged his counsel and proceeded pro se. At sentencing, in accordance with the plea agreement, the court imposed three consecutive six-year prison terms, ordered restitution, and dismissed the remaining counts and cases.

On December 9, 2008, Gardner filed a motion for post-conviction relief pursuant to Crim.P. 35(c). The district court denied his motion.

The Court of Appeals first noted the general rule that a valid guilty plea renders irrelevant all claims that a defendant’s constitutional rights have been violated. However, a conviction based on a guilty plea may be attacked if the post-conviction relief relates to either (1) the voluntary and intelligent nature of the plea, or (2) the power of the court to enter the conviction or impose the sentence, or the state’s power to prosecute in the first place.

Gardner argued he did not waive his right to assert that the charges under which he was convicted were multiplicitous and, therefore, he did not waive his double jeopardy claim. The Court agreed in part. Gardner’s double jeopardy claim arose solely from the language in the three counts to which he pled guilty. Because he argued they alleged only one crime of theft rather than three crimes, his double jeopardy claim was not waived by his entry of a guilty plea.

CRS § 18-4-401(4) requires that all separately prosecutable thefts committed within a six-month period be treated as a single theft, unless jeopardy has previously attached regarding one of the thefts. Here, the Court held that two of the counts to which Gardner pled guilty constituted only one defined unit of prosecution and the third count was separate. Therefore, on remand, the trial court shall merge two of the convictions and resentence him to two consecutive six-year prison terms.

Gardner also argued his guilty plea did not waive his equal protection challenge to the theft statute. The Court held that because this was an as-applied challenge to the constitutionality of the statute, it was waived by his guilty plea.

Gardner argued that the trial court did not have subject matter jurisdiction over the charges because they failed to state the manner in which the thefts were committed and the amount of money stolen. The Court disagreed, finding that the charging document sufficiently tracked the words of the relevant statute. The Court also disagreed with Gardner’s argument that there was no subject matter jurisdiction, because the charges had to be brought by indictment rather than by a felony complaint.

The Court also rejected Gardner’s additional arguments: that the county court’s orders to bind the cases over to the district court were void as unconstitutional; that the district court lacked subject matter jurisdiction because the People failed to establish the thefts were committed "wholly or partially" within Colorado; and that the district court lacked authority to sentence Gardner to "the penitentiary." The district court’s order was reversed as to Gardner’s claim of multiplicitous charges, the order was affirmed in all other respects, and the case was remanded for proceedings consistent with this opinion.