People v. Cisneros
2014 WL 1671766
Colo. Ct. App.2014Background
- At around 10:30 p.m. on November 26, 2007, defendant’s home was attacked by five armed robbers who forced entry and opened fire.
- Defendant fired back with a handgun; his ten-year-old daughter was killed during the crossfire, with no clear determination of who fired the fatal shot.
- Police observed the victim’s body, spent shell casings, a tray of suspected marijuana, and later located additional marijuana, cash, firearms, and a safe in the home during a warrant search.
- Defendant admitted ownership of the handgun and that he possessed and sold marijuana during interviews with police; search recovered a bag of marijuana and other drug-related items.
- The People charged Cisneros with child abuse resulting in death, possession with intent to distribute marijuana, possession of marijuana eight ounces or more, and a special offender count for using or possessing a deadly weapon; the jury acquitted the child abuse charge but convicted him of possession with intent to distribute and found him a special offender, resulting in a 15-year enhancement.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the court erred by denying an elemental jury instruction on the deadly weapon enhancement | People argues the lack of elemental instruction misled jurors and conflicted with verdict forms | Cisneros contends the absence of an elemental instruction violated his rights and the nexus requirements | No error; the instruction and verdict form properly conveyed the nexus and burden beyond a reasonable doubt. |
| Sufficiency of the evidence to prove use or possession of a deadly weapon in connection with the drug offense | People asserts substantial evidence linked the gun to the drug offense | Cisneros argues insufficient nexus linking weapon to marijuana distribution | Sufficient evidence supported the finding of use/possession in connection with the drug offense. |
| Constitutionality of section 18-18-407(1)(f) under US and Colorado constitutions | Section 18-18-407(1)(f) validly enhances penalties for weapons in drug crimes | Citizen-right to bear arms (self-defense) is infringed by the statute | Constitutional; statute reasonably related to public safety and does not violate the Second or Colorado Constitution. |
| Right to bear arms instruction related to self-defense not required; denial of instruction permissible | Davis argues a right-to-bear-arms instruction should have been given | No state or federal right to bear arms in this context guaranteed; nexus controls | No error in denying the separate right-to-bear-arms instruction. |
| Motion to suppress and Miranda issues; voluntariness of statements | Evidence obtained lawfully; statements voluntary | Statements before/after Miranda warnings and during Seibert-like procedure should be suppressed | No reversible error; Miranda warnings, voluntariness, and Seibert-factors weighed in defendant’s favor. |
Key Cases Cited
- People v. Whitley, 998 P.2d 31 (Colo.App.1999) (enhancement rules and jury findings in 18-18-407(1)(f))
- Apprendi v. New Jersey, 530 U.S. 466 (2000) (requirement that facts increasing penalty be proved beyond a reasonable doubt)
- Heller v. District of Columbia, 554 U.S. 570 (2008) ( Second Amendment right to bear arms, with limits on protected purposes)
- United States v. Bryant, 711 F.3d 864 (2d Cir.2013) (upholding limits on firearm-use in drug offenses under Heller framework)
- United States v. Jackson, 555 F.3d 635 (7th Cir.2009) (limits on gun rights in drug offenses when involved in illegal activity)
- Robertson v. City & County of Denver, 874 P.2d 325 (Colo.1994) (police power and regulation of weapons in aid of public safety)
- Atencio v. People, 878 P.2d 147 (Colo.App.1994) (nexus requirement between weapon and drug offense for 18-18-407(1)(f))
- People v. DeWitt, 275 P.3d 728 (Colo.App.2011) (Affirmative defense concept in Colorado for weapon possession cases)