Colo. Ct. App. November 12, 2009

Colorado Court of Appeals OpinionsNovember 12, 2009

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. 07CA2393. People v. Buerge. Attempted Sexual Assault on a Child—Fictional Person—Sexually Violent Predator.

Defendant appealed the trial court’s determination of him as a sexually violent predator. The judgment was affirmed.

Defendant made contact with a purported 14-year-old female, "Kelly," in an Internet chat room. However, Kelly was a fictional person created by two undercover police officers investigating Internet crimes against children. After defendant proposed to meet with Kelly and one of her friends to perform oral sex and use drugs, one of the investigators, posing as Kelly, spoke with defendant on the telephone and arranged a meeting. When defendant arrived at the designated meeting area, police officers arrested him and found drugs and sexual paraphernalia in his possession. Defendant pled guilt to attempted sexual assault of a child under the age of 15 and possession of more than one gram of a schedule II controlled substance.

On appeal, defendant argued that the trial court erred when it found that a fictional 14-year-old girl, created by two police officers conducting an Internet sting operation, can be a "victim" within the meaning of the sexually violent predator statute (SVP statute). The Court of Appeals disagreed. The term "victim" means "intended victim" in the context of a conviction for attempted sexual assault.

Defendant also contended that the SVP statute requires the court to make specific findings of fact, and that the trial court failed to do so here. The Court disagreed. The trial court adopted the findings and conclusions in the risk assessment, which indicated that defendant met the criteria for classification as a sexually violent predator. The trial court’s findings were more than sufficient to meet the statutory requirement that it make specific findings of fact to support its determination. The trial court’s order was affirmed.

No. 08CA1435. People v. Taylor. Illegal Discharge of a Firearm—Self Defense—Affirmative Defense—Knowingly.

Defendant appealed the judgment of conviction entered on jury verdicts finding him guilty of illegal discharge of a firearm, a class 5 felony, and third-degree assault, a misdemeanor. The judgment was reversed and the case was remanded for a new trial.

Defendant contended the trial court reversibly erred when it denied his request to have the jury instructed that self-defense is an affirmative defense to illegal discharge of a firearm. The Court of Appeals agreed. A person commits illegal discharge of a firearm if he or she "knowingly or recklessly discharges a firearm into any dwelling or any other building or occupied structure, or into any motor vehicle occupied by any person." Illegal discharge of a firearm is a general intent offense to the extent it involves a defendant who acts "knowingly." Self-defense is an affirmative defense to a general intent crime.

Here, by asking for the lesser non-included offense, defendant admitted that he knowingly or recklessly discharged a firearm into an occupied structure. However, because he acted in self-defense by using reasonable force against the people who were attacking him, he was entitled to have the jury instructed on the affirmative defense of self-defense to the extent he knowingly discharged the firearm. Accordingly, failing to instruct on self-defense was error and the error was not harmless. Defendant’s conviction of illegal discharge of a firearm was reversed and the case was remanded for a new trial on this charge.

No. 09CA0220. People v. Nance. Revocation of Probation—Waiver of the Two-Felony Rule in a Plea Agreement. The People appealed the trial court’s sentence reinstating probation for defendant Keitheka Nance. The judgment was affirmed.

Nance was charged with felony assault in the second degree, arising from an incident where he spit on a deputy sheriff in the Arapahoe County Detention Facility. Nance accepted a plea agreement and pled guilty to felony menacing in exchange for dismissal of the felony assault charge, the prosecutor’s recommendation of waiver of the two-felony rule to allow a sentence of probation, and a sentence of five years’ probation with no additional jail time. The probation recommendation was due to Nance’s history of mental health issues.

Four months later, Nance’s probation officer filed a complaint for revocation of probation. Nance admitted to the probation violations and agreed to leave his new sentence open to the court’s discretion. The prosecutor argued that reinstatement of probation was barred by the two-felony rule absent another recommendation by the prosecutor.

The trial court found the prosecutor’s recommended waiver of the two-felony rule for the crime to which the defendant pled guilty is not negated by a probation violation. It reinstated probation on the same terms and conditions and added a ninety-day jail sentence. The People appealed.

In a matter of first impression in Colorado, the People argued that a prosecutor’s recommendation to waive the two-felony rule in a plea agreement does not remain in effect after probation is revoked. The Court of Appeals disagreed.

The two-felony rule provides that defendants with two prior felony convictions ordinarily are not eligible for probation. An exception may be made "upon recommendation of the district attorney."

Revocation of probation is entirely at the discretion of the sentencing court. The Court reads CRS § 18-1.3-201 as suggesting that the district attorney’s recommendation to waive the two-felony rule occurs only prior to the initial sentencing. Therefore, it would not be applicable in a probation revocation hearing. Rather, the court may impose any sentence that it could have ordered at the initial sentencing hearing, including probation. The judgment was affirmed.

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