Case Summaries

After the board revokes a person’s parole, the person must pursue and lose their administrative appeal pursuant to Section 17-2-103 and 17-2-201 before seeking judicial relief under Rule 35(c)(2)(VII).

The City can be sued where a traffic light creates “conflicting directions” that lead to an accident. Here the light created conflicting directions because one side was inoperable (no color illuminated) while the perpendicular light was illuminated green. This “vexing situation” makes it very difficult for drivers, like Sandoval, to predict the conduct of other drivers in the cross-traffic, and creates a dangerous condition that cannot be navigated through the proper interpretation of the traffic laws.

In a non-precedential order resolving a Rule 21 proceeding (that I missed back in February), the Court concludes that a defendant who endorses a cold expert to testify about child psychology, child-to-parent violence, abuse of caretakers, and family dynamics must comply with the notice and evaluation requirements in section 16-8-107(3)(b).

Issue #1: The statutory protections of Section 18-1.3-603(8) prohibiting a court from imposing restitution for damages covered by insurance only apply to restitution orders relating to non-felony convictions under title 42. Here, Marceleno damaged a car during the commission of felony offenses. As such, the district court properly assessed the full amount of restitution for the damaged car because Marceleno failed to establish that the damage was covered by an insurance policy. Issue #2: The district court properly assessed restitution for the damage he caused when he crashed the stolen car into a gate guarding a community.

Under section 24-72-705(1)(a)(II), a court “shall” seal criminal justice records where the defendant is “acquitted” of all counts. Under long-standing precedent, “acquittal” includes an NGRI determination. As such, the trial court erred by denying J.P.s petition to seal his three old cases because he was found to be NGRI.

Issue #1: When a plaintiff seeks damages under section 13- 21-131 for a violation of Colorado’s due process clause based on a jail suicide, the plaintiff must show that the jailer or their supervisor acted with deliberate indifference. Applying that standard, the division concludes that plaintiff failed to allege sufficient facts demonstrating that any defendant acted with deliberate indifference. Issue #2: A jailer has a duty to protect a detainee from self-inflicted injury or death only if the risk of such harm is reasonably foreseeable. Because plaintiff’s allegations didn’t satisfy this standard, the division affirms the dismissal of her wrongful death claim. Issue #3: No appellate attorney fees for the defendants because they could not be bothered to explain why an award of fees was justifiable.

The district court failed to enter one of the four required restitution orders at sentencing. As such, they remanded for entry of an order under section 18-1.3-603(1)(d) that he is not liable to pay any restitution.

The trial court’s refusal to instruct the jury on Gallegos’ defense of a third person affirmative defense impermissibly lowered the prosecution’s burden of proof for the first degree assault charge, and likely substantially influenced the remaining verdicts.

The district court reversibly erred by instructing the jury that a trespasser who is subject to lawful physical force has no privilege to use physical force in self-defense because it removed from the jury’s consideration whether Banks reasonably believed he was facing unlawful force.

This is a civil matter that is unlikely to interest you. I chose to put this in the materials only because SCOTUS relies on the Party Presentation Principle to reach its decision. And I like the Party Presentation Principle since our state court judges like to sally forth correcting perceived wrongs even when the prosecution does not raise the issues.

Fernandez filed a petition seeking compassionate release under §3582(c)(1)(A)(i), arguing that his possible innocence constituted the “extraordinary and compelling circumstances” statutorily required to grant relief. The district court agreed. After the Second Circuit reversed, SCOTUS took this case as a vehicle to address a circuit split. The majority creates a categorical rule that any reason that “collaterally attacks the validity” of the prisoner’s conviction cannot be considered as an “extraordinary and compelling” circumstance justifying compassionate release.

When Congress declines to make a sentencing amendment retroactive—as with the change to §924(c)—the resulting sentencing disparity cannot serve as an “extraordinary and compelling” reason that warrants a sentence reduction under 18 U. S. C. §3582(c)(1)(A)(i).

A person can commit the crime of attempting to influence a public service by engaging a third party to commit deceptive acts on their behalf. And here, the evidence that Hupke convinced his mother to lie to his parole officer was sufficient to affirm his conviction.

For the purposes of aggravated robbery under section 18-4-302(1)(d), a person represents that they are “armed” when they state they have a weapon in a place that is “easily accessible and readily available for use.” As such, the PH court erred by dismissing the aggravated robbery charge where the prosecution presented evidence that Ambrose said he had a gun in the car, while standing outside the car, as the manager of a convenience store tried to stop him from stealing five cases of Red Bull.

The prosecution did not present sufficient evidence to establish that Frazier was able to pay $56K in restitution before the court revoked his deferred judgment and sentence.

After finding that Nakai’s pro se motion complied with Crim. P. 35(c)(3)(IV) and warranted the appointment of counsel, the postconviction court erred by summarily denying the motion without sending a complete copy of the motion to the public defender.

Per curiam decision dismissing petition as improvidently granted. (DIG). The issue was “Whether and how courts may consider the cumulative effect of multiple IQ scores in assessing an Atkins claim.” (Atkins was the opinion declaring that it violates the 8th Amendment for a State to kill a person who has an intellectual disability.) Interesting, but with a DIG order, there would normally be little to talk about. I provided a summary to point out the 60+ pages of opinions that might interest you, and to explain this was likely a five vote DIG order – which is unusual and may be cause for some concern.

The Supreme Court continues to pull back on plain error review. Here, the COA provided too much justice by finding plain equal protection error, based on People v. Malloy. The Supreme Court reversed because Malloy was not factually identical and, therefore, was not “clear, settled, on-point legal authority.” If this feels like our Court adopting the old federal standard for what constitutes existing authority in the qualified immunity setting – I would agree with you. Sad

People without homes can be prosecuted by municipalities for camping in public places without violating the Colorado Constitution. Sigh… The ordinances do not violate Colorado Constitution article II, section 20’s protection against cruel and unusual punishment. The ordinances do not violate the plaintiff’s right to freedom of movement and to use public spaces under the Colorado Constitution. The ordinances do not violate Colorado’s due process protection against state-created danger.

The trial court violated Garcia’s Sixth Amendment right to confront his accusers and thereby reversibly erred by prohibiting him from questioning the prosecution’s witness about her pending criminal charges in the same judicial district.

The trial court did not abuse its discretion by admitting prosecutorial expert testimony of “Abusive Head Trauma” (AHT) without a Shreck hearing. Not a great case, but the briefs and arguments could be helpful.

Any error concerning the exclusion of defense expert testimony on adolescent brain development was harmless due to overwhelming evidence of guilt concerning the element of deliberation. Not a great case, but the briefs and arguments could be helpful.

You cannot get “discovery” under Rule 16 in a postconviction proceeding. Instead, you have a constitutional right to disclosure of information. This will almost always require the prosecution to turn over a duplicate copy of the discovery they provided to prior counsel when there is a claim of ineffective assistance of counsel. And there is no need to resort to the CCJRA to get that copy of the pretrial discovery.

The trial court excluded evidence because the officers did not turn on their body worn cameras. The government filed an interlocutory appeal. The Supreme Court dismissed the appeal because C.A.R. 4.1 does not authorize the prosecution to file an interlocutory appeal to review a district court’s order granting a defendant’s pretrial motion to exclude evidence under section 24-31-902.

Erlinger announced a new procedural rule of constitutional law that cannot be applied in an untimely and successive postconviction proceeding.

In a violation of protection order proceeding, the trial court erred by taking judicial notice of the fact that the defendant, Noel King, was the same person as the Noel King who was advised of the mandatory protection orders in court, because the issue of identity was subject to reasonable dispute.

A drug deal went bad, and Garcia was charged with armed robbery and felony murder. The trial court reversibly erred by permitting the prosecution to admit evidence that Garcia liked guns to establish that he was armed at the time of the robbery. This was highly prejudicial evidence that was only relevant to the improper inference that Garcia was a reckless and dangerous person who always carried a gun and, therefore, was more likely to act in conformity with that character on the day of the robbery.

The postconviction court erred in finding Bobian had not established Strickland prejudice where appellate counsel failed to alert the division of the new Wells-Yates opinion issued three days before the division denied his appellate claim that he was entitled to an extended proportionality review. They reversed and remanded for further findings because the trial court failed to make factual findings relating to whether appellate counsel’s performance was deficient.

The district court reversibly erred (under a plain error standard) by allowing the prosecutor to cross-examine Higdon about, and comment during closing argument on, his partial post-Miranda silence.

Despite the prosecutor clearly misstating the law in closing argument on the crucial issue, the majority affirms because they claimed there was overwhelming evidence of guilt based on a legal theory not advanced below. Judge Taubman provides a righteous dissent that is helpful to those litigating prosecutorial misconduct.

Keep an eye out for Denver Officers Stupor and Finnegan who were disciplined for inadequately investigating a domestic violence situation.

Correcting the illegal probationary sentence Selders was serving did not violate his due process rights. While this result was bad, the legal arguments might prove helpful.

Absent unusual circumstances, where the government alleges a person actually (not constructively) possessed a gun, the element of knowledge (knowingly possessed a gun) is not at issue, and admitting evidence of prior gun possession is propensity evidence that violates FRE 404(b).