People v. Chavez
1991 WL 272698
Colo. Ct. App.
1992
Check Treatment

*1 injury. 22:9, II. 22:11, See CJI-Civ. and 22:12 (1989). that, implicitly argues even Plaintiff The and the cause not the statements made here would is remanded for a new trial. employment per slanderous se outside her context, they super since made her were ROTHENBERG, JJ., SMITH and concur. context, employment they visor in an did injure profession her in her as a teacher basis, per

and on that are slanderous se. agree.

We do not recognize reputations

We that teachers’ very injury they

are vulnerable when are subject of false accusations. See Lawrence, 55, Wertz v. 66 Colo. 179 P. 813 Colorado, The PEOPLE of the State of (1919). conclude, however, for the rea- Plaintiff-Appellee, above, sons stated that false statements concerning homosexuality are not slander per though they se even employ- arise an CHAVEZ, Defendant-Appellant. John B. ment plaintiffs context and are directed at No. 89CA1390. reputation. business Appeals, Colorado Court of regard, In this we further note the Div. IV. availability proven damages actual compensate injured plaintiff an in this set 19, Dec. 1991. ting. Plaintiff is entitled to receive com Rehearing Denied Jan. 16 pensation not damages for economic and Feb. 1992. reputation, and loss of but also for other July 7, Certiorari Granted 1992. i.e., humiliation, proven damages, mental (Chavez) Cross-Petition Denied suffering. Welch, See Gertz Robert July Inc., 1992. and Walker v. Colorado Sun, Inc., Springs supra. even

though the statements are not accorded status, retrial, per plaintiff,

slander se

may compensation receive for those dam

ages proven to have resulted from the

statements.

III.

Although plaintiff request did not presumed

and thus did not receive a dam instruction,

age we conclude that the slan per

der se instruction here was error none improper advantage plaintiff

theless. per

received the slander se instruction prove part

was that she did have in the her claim that context which made, they

the statements were were de

famatory damage to her. and caused See retrial, (1989). plaintiff

CJI-Civ. 22:9 On statements, prove

must the con made,

text in they which were were defam

atory and that in turn her caused

consider them de- credibility. Curtis, fendant’s su- pra.

Moreover, facing if defendant is ha *3 counts, bitual criminal he is entitled to be any prior felony advised that of admissions by during convictions made him the sub phase stantive of the trial cannot be used Norton, Gen., T. Atty. Raymond Gale A. by prosecution prove to the habitual Gen., Slaughter, Deputy Atty. Timo- Chief charges. People offender Tafoya, 654 Gen., Koehler, thy Tymkovich, M. Sol. Paul P.2d (Colo.App.1982). 1342 Gen., Denver, Atty. plaintiff-ap- Asst. for pellee. foregoing The sets forth the essential of procedures elements advisement to be Vela, David F. Colorado State Public De- involving undertaken in trials habitual fender, Lucero, Sp. Judy Deputy L. State criminality. It thus remains the trial Denver, Defender, Public for defendant- duty court’s proceedings properly in those appellant. to advise defendant in accordance with Curtis and to the effect of his Opinion by Judge REED. testimony upon the habitual criminal Defendant, Chavez, appeals B. from John charges, reviewing so that a court can a of conviction entered a ascertain adequate- whether defendant was finding jury guilty attempt- verdict him of ly right testify. advised of his to See Peo- degree burglary ed second and four habit- Romero, ple supra. procedures These ual criminal counts. We reverse and re- critically important are to obtain assurance mand for a trial. new that defendant understands real conse- quences deciding testify. of to I. recognize We that neither Curtis Defendant contends that the advisement purport nor Tafoya to establish what are given by regarding right the trial court his requirements necessary the minimum to a testify inadequate. agree. to right testify. valid waiver of defendant’s to (Colo. People, 804 P.2d 1336 right testify See Roelker v. The to on one’s own 1991); (Colo. People v. 813 P.2d 759 concepts behalf is so tied to fundamental of App.1990). validity of waiver must be justice procedural safeguards must be totality of and based on the circumstances employed both to insure that defendant is compliance mandates a of that is adequately apprised right of such and that against substantial tested the above- any voluntarily, when waiver thereof is made Consequently, requirements. mentioned knowingly, intelligently. People and the trial determination that there Curtis, (Colo.1984); court’s right testify has Romero, been a waiver of (Colo.App.1988). 767 P.2d long upheld will be as the record reflects so Accordingly, required practice it is adequately apprised defendant was every on the be advised competent right such contains evidence by pres record the court and outside the support finding that defendant would a jury right ence of the that he has the probable conse have understood not, testify or that the ultimate decision quences invoking People, it. Roelker v. him, testify by must made whether supra. so, prevent doing that no one can him from Here, totality of the advisement testify, prose that should he choose to given of the follow by the consisted court permitted cution will be to cross-examine ing: convictions, concerning prior felony him right, pri- if THE All we’ll start over and that cross-examination discloses COURT: advisement, convictions, under the Con- jury or can be instructed to on the Curtis and the as a witness and no other reason. of the United States stitution for Colorado, you adequate eliciting a This was deemed for have Constitution case, also valid waiver. In the instant the trial testify you want to. You testify. you altogether If do court omitted advisements re- right not to have a attorney garding evidentiary significance of de- testify, the district will be al- prior convictions. you to cross-examine and will be fendant’s Ball is lowed distinguishable and you your to ask about four would be control- allowed yes- ling here. felony we talked about convictions terday. Here, the failure of the trial court to you understand all that? Do inform defendant that the decision to testi- Yes, THE DEFENDANT: Your Honor. personal fy was to him and as to the limit- him, evidentiary A little louder. ed use of admission THE COURT: *4 inadequate. rendered the advisement Yes, DEFENDANT: Your Honor. THE provide the advisement cannot a suf- Okay. you made a THE COURT: Have support in- upon ficient basis which to an decision? relinquishment ference that defendant’s of THE DEFENDANT: I’m not. right by testify his was a valid waiver going THE You’re not to testi- COURT: Ball, pursuant People to Curtis. v. Cf. fy? supra. Accordingly, the defendant is enti- No. THE DEFENDANT: tled to a new trial. Thus, although apprise the court did de- require- the fendant in accordance with II. he had the ments of that Curtis that three of the Defendant maintains that, so, if chose to do testify and prior felony forming the convictions basis inquire prior his prosecution could about charges criminal were con- for the habitual convictions, it failed to him felony inform stitutionally disagree. infirm. We decision, personal regardless that it was his valid To establish the constitutional It further failed to of counsel’s advice. resulting ity prior of a conviction from a adequately him as to the conse- advise guilty plea, the record as a whole must testifying. quences of affirmatively demonstrate that the defen neglected to Specifically, the trial court rights the constitutional dant understood express in terms that the defendant advise waiving and the critical elements of he was in the substantive jury, connection with plea tendered. the crime to which the was charge, pri- would be instructed consider (Colo.1989), P.2d 1 cert. Lacy People, v. during felony or convictions revealed cross- Lacy, 493 denied sub nom. Colorado they as affected the credi- examination 350, 107 L.Ed.2d 337 U.S. 110 S.Ct. addition, bility testimony. his In of (1989). defendant that trial court failed to advise attacking the constitu A prior of convictions that he defendant admission in habitual during tionality prior of a conviction made the trial of the substantive prima must make a charge proceedings could not be used as evidence to criminal plea un charges. showing guilty criminal As a was prove the habitual facie that the result, obtained, having done relevant information which would and constitutionally an in- unless so, have enabled defendant to make admissible the conviction is not testify, meaningful by preponder and decision to a prosecution formed establishes recog- impermissible burden free of the the conviction ance of the evidence People by supreme court defen nized our with the was obtained accordance (Colo.1981), Chavez, rights. Lacy v. Peo dant’s constitutional provided. ple, supra. upon People’s reliance our decision A. Ball, misplaced. In People argues that his 1978 Defendant was instructed that defendant degree for first County felony conviction prior his convic- Adams

jury could consider infirm constitutionally be- credibility kidnapping is “only upon his tion charge, read the nor did it establish a fac- court there failed the trial cause charge. basis for the spe- tual state of requisite culpable mental intent. cific defense The record demonstrates that reading the infor- counsel waived formal charge of The record reveals mation, fac- waived the establishment of a read to the kidnapping was first basis, charge and had tual stated Defendant by the trial court. explained to the defendant. More- been agreement which plea executed a written over, charge felony was a based the offense the elements of also set forth previous joyrid- conviction for defendant’s entering by stating, understand that “I ing. admitting April I plea this am Colorado, County, I unlaw- 1977 in Adams properly conclude trial court forcibly seized and fully, feloniously, and that the defendant was aware of the found place an- one ... from carried victim the offense and this convic- nature thereby to other, specific intent with the Drake, 785 valid. See tion was make a con- parents] to force victim’s (Colo.1990). [the P.2d 1257 up something of value to give cession and judg- of our conclusion that the In view who was the release of secure victim] [the must be it is ment of conviction apparent control under the actual unnecessary to consider defendant’s re- un- indicated that he myself.” Defendant maining contentions. *5 of the offense. the elements derstood and the cause in the of the record and this state Under with for a new trial consistent is remanded that the defendant evidence absence this decision. ele- the mental state did not understand ment, not the trial court did we conclude HUME, J., concurs. this by allowing jury the to consider err ROTHENBERG, J., dissents. prior conviction. dissenting. Judge ROTHENBERG

B. respectfully I dissent. his 1975 Jeffer Defendant asserts my opinion, In the trial court’s Curtis attempted second County for son conviction extensive, advisement, neverthe- while not the burglary invalid because degree was requirements minimum less satisfied the culpable the failed to trial court of the necessary to establish a valid waiver and failed to establish element mental state testify. Roelker defendant’s See factual basis. a sufficient (Colo.1991); Peo- People, 804 P.2d 1336 v. Ball, (Colo.App.1990). that defendant’s attor- ple The record shows defendant and charge the with ney read defendant People supra, In understood the represented that defendant given that he should have been contended explained the ele- charge. The trial court Chavez, advisements, pursuant People v. burgla- attempted second ments of (Colo.1980), admissions P.2d 1362 indicated that he under- defendant ry, and during the prior of his convictions elicited Defendant also ad- elements. stood those trial could phase substantive of his guilty plea. for a factual basis mitted used as credibility not be and could criminal during the habitual evidence these circumstances Under argument phase. rejected This court by the defendant any evidence absence ad- did not address and noted that Chavez the elements of understand he did not defendants. given visements offense, the trial court we conclude Rather, the instructions considered Chavez 1975 Jeffer- that the correctly determined given jury the which are to the was valid. County conviction son testifies. C. And, in Ball was although the defendant telling him given Den maintains his 1969 an additional statement Defendant cross-examined felony joyriding if he and was for testified County conviction ver felonies, in- jury would be prior not as to trial court did invalid because was only as the convictions to consider structed agree credibility, I do

to his here statement necessitates of that

absence result.

a different vitality continued question

I also (Colo.App. P.2d 1342 Tafoya, 654

People v.

1982), heavily the defendant upon which Tafoya held that This court

relies. receive advance notice as to the

entitled to prior use of his convictions. How

limited

ever, Tafoya was tried and convicted be its supreme court announced deci

fore our and, Chavez, un People

sion facing situation the defendant

like the

here, Tafoya’s admission of convic phase during the substantive of his

tions against him could have been used

trial phase. in the habitual offender

evidence severely the error advisements perceive prej I similar

prejudiced him. no Chavez, supra.

udice here. I also find defendant’s other con-

Since merit, I af-

tentions be without would judgment.

firm the *6 DERDEYN, individually and

David similarly

on behalf of all others

situated, Plaintiffs-Appellees, COLORADO, BOUL-

UNIVERSITY OF Board, DER, through its The RE- OF The UNIVERSITY OF

GENTS COLORADO, body corporate; Gor- Gee, University of the

don as President Colorado, Boulder, and; William Director, Depart- Marolt as Athletic Athletics, Intercollegiate De- ment of

fendants-Appellants.

No. 89CA2044. Appeals,

Colorado Court of III.

Div. 19, 1991.

Dec.

Rehearing 1992. Denied Jan. July 1992.

Certiorari Granted