People v. Diaz, 2012 COA 158M

On August 11, 2009, Diaz punched a prison guard while serving a sentence on other charges (the first assault).
On September 29, 2009, the People charged Diaz with second degree assault of a detention center employee arising from that incident.
On October 22, 2009, while still serving a sentence on charges predating the first assault, he threw a cup that hit a guard (the second assault) and was charged separately.
Before trial in either assault case, Diaz finished serving the sentence he was serving when he committed the assaults.
The second assault case was tried first; Diaz was found guilty and sentenced to 10 years; the next day the first assault case led to a second ten-year sentence, purportedly to run consecutively to the second, which Diaz appeals.
The appellate court held the district court erred in mandating consecutive sentencing under §18-8-208(1)(f) and remanded for resentencing with discretion on whether the first assault sentence should run consecutively.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does §18-8-208(1)(f) mandate consecutive sentencing to any sentence being served?	People argues the statute requires consecutive sentencing per Benavidez.	Diaz argues the statute is ambiguous and not mandatory.	Statute ambiguity; consecutive sentencing not mandatory.
Whether the district court had discretion to order consecutive sentencing for the first assault.	People contends mandatory consequence under statute.	Diaz concedes some discretion exists; court may decide.	Court has discretion; remand for resentencing to determine if consecutive is appropriate.

People v. Benavidez, 222 P.3d 391 (Colo.App.2009) (consecutive sentencing when confined as a result of being charged)
People v. Andrews, 855 P.2d 3 (Colo.App.1992) (analogous to attempted escape statute on consecutive sentencing)
Juhl v. People, 172 P.3d 896 (Colo.2007) (avoid constitutional concerns in statutory interpretation)