The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Danny Gene GARCIA, Defendant-Appellant.
No. 15CA1324
Colorado Court of Appeals, Div. II.
Announced August 25, 2016
2016 COA 124
we stated above, are “a physical intrusion upon the property of another without the proper permission from the person legally entitled to possession of that property.” Hoery v. United States, 64 P.3d 214, 217 (Colo. 2003) (emphasis added). An individual becomes subject to liability for trespass by intentionally entering, or by causing a thing or third person to enter, land possessed by someone else. Pub. Serv. Co. of Colo. v. Van Wyk, 27 P.3d 377, 389 (Colo. 2001). “[L]iability for trespass requires only an intent to do the act that itself constitutes, or inevitably causes, the intrusion.” Sanderson, 183 P.3d at 683 (quoting Burt v. Beautiful Savior Lutheran Church, 809 P.2d 1064, 1067 (Colo. App. 1990)) (emphasis added).
¶ 28 We have not located, and the unions have not cited, any Colorado statute or case law dictating a different standard for owners of land subject to nonexclusive easements or those who lack exclusive possession generally. To the contrary, a “party with title may sue for trespass.” Plotkin v. Club Valencia Condo. Ass‘n, 717 P.2d 1027, 1027-28 (Colo. App. 1986) (A landlord-tenant relationship does not foreclose the landlord‘s right to bring an action for trespass.). The unions do not dispute that Walmart possesses and has title to the property in question. Thus, to sustain its trespass claim, Walmart needed only prove that the unions entered its property without its permission. It was not required to show that the unions unreasonably interfered with its use and enjoyment of the property.
¶ 29 Accordingly, the court did not abuse its discretion by issuing the injunction.
IV. Conclusion
¶ 30 The judgment is affirmed.
JUDGE TAUBMAN and JUDGE FOX concur.
Cynthia H. Coffman, Attorney General, Melissa D. Allen, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Hardy and Juba, LLC, Michael S. Juba, Denver, Colorado, for Defendant-Appellant
¶ 1 Defendant, Danny Gene Garcia, appeals the district court‘s refusal to award presentence confinement credit (PSCC) against the sentences it imposed in case numbers 14CR10235 and 14CR10393. He contends that we should interpret “may” in
I. Background
¶ 2 The prosecution charged defendant as an adult with multiple felonies in each case, although he had committed the offenses when he was a juvenile. Under a global disposition, defendant pleaded guilty to one felony in each case. The parties stipulated to concurrent sentences in the custody of the Department of Corrections (DOC), with a controlling sentence of eighteen years in case number 14CR10235. They also agreed that each DOC sentence would be suspended if defendant successfully completed six years in the YOS. The court sentenced defendant consistent with the agreement, but refused to award PSCC.
II. Section 18-1.3-407(2)(a)(I) Does Not Mandate an Award of PSCC
¶ 3 The pertinent portion of
¶ 4 Defendant first contends the district court misinterpreted
¶ 5 Defendant‘s three assertions are correct. But considering the commonly understood permissive meaning of “may,” the structure of
A. Preservation and Standard of Review
¶ 6 Defendant made a similar statutory interpretation argument to the trial court. Statutory interpretation is a question of law subject to de novo review. See Dubois v. People, 211 P.3d 41, 43 (Colo. 2009).
B. Rules Governing Statutory Interpretation
¶ 7 Several incontrovertible rules inform the task of statutory interpretation.
¶ 8 To begin, a court endeavors to interpret a statute “in strict accordance with the General Assembly‘s purpose and intent in enacting them,” In re 2000-2001 Dist. Grand Jury, 97 P.3d 921, 924 (Colo. 2004). In determining that intent, the court first looks to the language chosen by the General Assembly, see Martin v. People, 27 P.3d 846, 851 (Colo. 2001), giving words and phrases their “plain and ordinary meaning,” People v. Dist. Court, 713 P.2d 918, 921 (Colo. 1986).
¶ 9 Courts also read and consider the statute as a whole, construing it “to give consistent, harmonious, and sensible effect to all its parts.” Id. Courts presume that the General Assembly intended the entire statute to be effective. See
¶ 10 “If the statutory language unambiguously sets forth the legislative purpose,” the court “need not apply additional rules of statutory construction to determine the statute‘s meaning.” Martin, 27 P.3d at 851. But if the language is ambiguous or appears to conflict with other statutory provisions, the court may consider the statute‘s legislative history, the object sought to be attained, the consequences of a particular construction of the statute, and the legislative declaration or purpose. See
¶ 11 As particularly relevant here:
If a general provision conflicts with a special or local provision, it shall be construed, if possible, so that effect is given to both. If the conflict between the provisions is irreconcilable, the special or local provision prevails as an exception to the general provision, unless the general provision is the later adoption and the manifest intent is that the general provision prevail.
C. Application
¶ 12 Defendant does not assert that the language of
¶ 13 “[T]he legislature‘s use of the term ‘may’ is generally indicative of a grant of discretion or choice among alternatives.” A.S. v. People, 2013 CO 63, ¶ 21, 312 P.3d 168. In contrast, “shall” is generally mandatory. See Dist. Court, 713 P.2d at 921. And “[w]here both mandatory and directory verbs are used in the same statute, ... it is a fair inference that the legislature realized the difference in meaning, and intended that the verbs should carry with them their ordinary meanings.” A.S., ¶ 21 (quoting 3 Norman J. Singer & J.D. Shambie Singer, Sutherland Statutory Construction § 57:11 (7th ed. 2015)). This inference strengthens where “shall” and “may” are “used in close juxtaposition.” Id. (quoting 3 Singer & Singer, Sutherland Statutory Construction § 57:11). Of course, “[w]e presume that the legislature does not use language idly.” Id. at ¶ 29.
¶ 14 Applying these interpretive guides to
¶ 15 The underlying purpose of the YOS statute—to provide a sentencing alternative for youthful offenders—supports this interpretation. The General Assembly declared that it intended to establish the YOS as a sentencing option with “a controlled and regimented environment that affirms dignity of self and others, promotes the value of work and self-discipline, and develops useful skills and abilities through enriched programming.”
¶ 16 True enough, under the YOS statute, defendant was sentenced as an adult and “subject to all laws and [DOC] rules, regulations, and standards pertaining to adult inmates.”
¶ 17 Nor does the PSCC requirement in
¶ 18 In sum, we conclude that the word “may” does not mandate that a court award PSCC when it sentences a defendant to the YOS. Instead, it gives the court discretion in determining whether to award PSCC based on the circumstances of each case.1
III. The District Court Did Not Abuse Its Discretion in Declining to Award Defendant PSCC
¶ 19 Alternatively, defendant contends the district court abused its discretion when it refused to award PSCC for the 358 days he spent in jail before he was sentenced in case number 14CR10235 and the 418 days in case number 14CR10393.2 He argues that the district court‘s refusal was not supported by the record because he would still serve just under five years in the YOS and he could be rehabilitated within two to three years. We discern no abuse of discretion.
A. Sentencing Within the Range of the Plea Agreement
¶ 20 As a preliminary matter, we acknowledge but reject the Attorney General‘s argument that because defendant was sentenced within the range agreed to by the parties in the plea agreement, his sentence is not subject to appellate review. See
B. Preservation and Standard of Review
¶ 21 Before the district court, defendant advanced reasons why he should be awarded PSCC. An appellate court reviews a district court‘s refusal to award PSCC for an abuse of discretion. See
C. Application
¶ 22 In refusing to award any PSCC against the YOS sentence, the district court made four findings:
- The purpose of the YOS was to rehabilitate.
- The longer YOS had “to effectuate its rehabilitative purpose,” the more likely it would be to succeed at rehabilitating defendant.
- Defendant needed more time to rehabilitate than the codefendants based on his diagnoses, criminal history, and increasing propensity toward violence.
- The sentencing decision was intended to be remedial, not punitive.
¶ 23 The record supports these findings. For example, in one of the psychological evaluations, the doctor opined, “Given the likelihood of strong narcissistic personality tendencies, residual ADHD symptoms, and highly probable Conduct Disorder, [defendant] is not going to respond quickly or with any depth to any intervention modality.” In another psychological evaluation, a different doctor diagnosed defendant with attachment
¶ 24 During the sentencing hearing, the prosecutor argued that denying PSCC would be appropriate for defendant for the following reasons. He was the most culpable of the codefendants and, with regard to his history, he was “most similar” to the codefendant who would not receive PSCC; based on the doctors’ diagnoses, treating defendant would take a long time; when defendant committed the offenses in one of the cases, he was on bond and was wearing an ankle monitor; defendant was the leader of a gang that had become focused on more dangerous crimes like robberies and assaults; at the transfer hearing, detectives testified that crime had dropped dramatically after defendant‘s incarceration; defendant organized the crimes; the crimes had a significant impact on the victims; and a ten-day search warrant for defendant‘s Facebook page showed daily references to criminal behavior, gang activity, and threats.
¶ 25 Defense counsel did not dispute these arguments and acknowledged that supporting information had been presented to the juvenile court during the transfer hearing. Still, counsel pointed out that at the transfer hearing one of the doctors had testified that treating defendant would take about three years.
¶ 26 But defendant has not made the transfer hearing transcript a part of the record on appeal. See People v. Campbell, 174 P.3d 860, 867 (Colo. App. 2007) (“[I]t is the appellant‘s duty to provide those portions of the record necessary to substantiate the claims of error on appeal.“). And the psychological evaluations before the court during the sentencing hearing indicated that treating defendant‘s disorders would be difficult as well as time consuming. Given that the district court also heard undisputed evidence about the extent of defendant‘s criminal activity, its decision not to award PSCC was not manifestly arbitrary, unreasonable, or unfair. See Herrera, ¶ 16.
IV. Conclusion
¶ 27 The order is affirmed.
Ashby and Márquez*, JJ., concur
* Sitting by assignment of the Chief Justice under provisions of