People v. Gutierrez

gen- Denver, public County of encourage facilitate

erally and to Colorado, of the state PEOPLE expansion of mu- orderly growth and Plaintiff-Appellee, Municipal Revised Denver mcipahty. Code 611.1-1. safety of vehicu- Denver’s concern for GUTIERREZ, Franco Jesus of the intrusive

lar consideration traffic and Defendant-Appellant. clearly indicate that signs, nature of No. 79SA370. important further imposed restrictions interest. See Veterans of governmental Colorado, Supreme Court Foreign City Springs, Wars Steamboat En Banc. supra. Third, the restrictions are not related to Jan. suppression speech. of free Section 9, 1981. Rehearing Denied Feb. number of 613.3-6(4) simply limits the added.)

signs. (Emphasis

Fourth, the incidental restrictions greater

First Amendment freedoms are no necessary

than the furtherance

legitimate governmental public interests

safety general welfare.

Finally, conclude that those we code Williams

provisions sign which void violating

was convicted of are not

vagueness. unconstitutionally A statute is

vague requires it forbids or where either vague doing of an act on terms so intelligence

men common must necessari as to

ly guess meaning at its and differ

application. Construc Connally General Co.,

tion 70 L.Ed. 269 U.S. S.Ct. Weeks, (1926); People upheld

We the constitu- previously have

tionality substantially of a defini- similar of “sign,” Municipal

tion Denver Revised 619.396, Foreign in Veterans of

Sign Code v. City Springs, supra.

Wars of Steamboat contained sign”

The definition “window 619.482, Municipal

in Denver Revised Code , it, Finally, we vague.6 we view provisions of the vagueness

find no in those limita-

sign prescribe number code Denver permit requirements.

tions and 611.2-1(7) and 613.- Municipal

Revised Code

3-6(4).7 judgment is affirmed.

Accordingly, J.,

ROVIRA, participate. does not 1, supra. 2, n. 7. See

6. See n.

549 Gen., MacFarlane, Atty. J. D. Richard F. Gen., J. Hennessey, Deputy Atty. Mary Gen., P. Mullarkey, Sol. Susan Mele-Serno- Gen., Denver, vitz, Atty. plaintiff- Asst. for appellee. Defender, Walta, Public Gregory

J. State Kapnik, Sp. Deputy E. Public Stephen State Defender, Denver, defendant-appellant. for

LOHR, Justice. defendant, juryA Jesus convicted Gutierrez, menacing, 18- felony section 3-206, 8), (1978 Repl. C.R.S. 1973 Vol. incendiary use of an device in the unlawful 18-12- felony, commission section (1978 Repl. 8). Vol. 109(4), C.R.S. 1973 trial, portion second of the bifurcated jury same found that the defendant prior felonies as had been convicted of three adjudged was an habitual charged, he criminal, 16-13-101(2), section C.R.S. 8) (the big (1978 Repl. Vol. habitual crimi- act). pled guilty he Subsequently, nal 18-4-203, second-degree burglary, section 8). (now Repl. in 1978 Vol. C.R.S. his asserts that appeal, the defendant On menacing felony and unlaw- convictions incendiary should use of device ful of offenses other reversed because evidence being he was tried those than received, a mistrial was denied and because re- allegedly prejudicial notwithstanding during clos- attorney marks the district chal- The defendant also ing argument. under the findings and sentence lenges the act, one alleging that habitual criminal big prop- convictions was not underlying vio- its face that act that on erly proved; prohibit- requirements lates constitutional punishments ing cruel unusual laws; mandating equal protection criminal act big habitual and that head applied Roybal otherwise unconstitutional as to this severe wound. Mrs. called the Finally, grounds defendant. of new- police and as her named the defendant hus- evidence, ly discovered the defendant claims was ar- band’s assailant. The defendant in refusing trial court erred shortly rested at his home after the incident grant a new felony menacing trial at the residence. Mrs. incendiary charges, device and in re- police taken scene fusing permit him plea to withdraw his arrest and there identified the defendant as guilty second-degree burglary. We her husband’s attacker. affirm each the convictions as well as the The trial of Ramon Gutierrez was severed adjudication. habitual criminal from the defendant’s trial.2 The trial court The substantive counts in the information granted then the defendant’s to sev- motion were based on several incidents which oc- (the er the burglary Roy- assault and counts curred in during evening Denver incident) bal from his trial on menacing August 2 early morning and the hours of (the firebombing and counts Lopez inci- August p. 1977.1 Between 7:00 and 9:00 dents). latter, together The with the habit- m., Ramon, the defendant and his brother counts, ual criminal were tried first. The knives, sought armed with to force their prosecution’s principal witnesses were Heri- way into the Lopez, home of Heriberto the berto, Anna, Juan, and Bertha Lopez. On brother-in-law, defendant’s and his wife Lopezes, cross-examination of the defense Anna. gain entry, Unable to and hearing counsel testimony suggested elicited Heriberto gun, call for his they returned to that, strife, family because of Lopezes the car, block, their circled the and fired several feelings had harbored hostile toward the shots, driving off when Heriberto fired his defendant before August the 2 incidents. gun. own evening Later that the defend- The theory defendant’s of the case was that ant returned and threw two Molotov cock- Lopezes the had fabricated the on incidents tails at the adjoining duplex apartment oc- which the charges were based. cupied by brother, Juan, Heriberto’s his The presented defendant an alibi defense. Bertha, wife and their children. Juan was His witnesses testified that had been absent at the time. The incendiary devices drinking with the defendant at his home broke a window and caused minor fire dam- August around 11:00 a. m. on 2 until age to a wall and curtain. his arrest early morning. the next Accord- m., Sometime before 1:00 a. the defend- testimony, to their the defendant left ant and his brother drove to the home of twice, the house only buy beer at a Albert Roybal, the father of Ramon’s girl- store, nearby liquor and accompanied friend. Ramon went to the door and tried by an alibi witness on each occasion. to persuade Roybal Mr. to come outside. Roybal refused, and, Following a lengthy hearing when camera Ramon would leave, not and over the Roybal objection, obtained a defendant’s the Peo- knife and backed ple Ramon this, toward his truck. called Albert and At Susan and the the truck, police defendant came out of officer who had investigated Roy- and Roybal returned to his house bal attempted incident as rebuttal witnesses. After to call the police. judge Ramon and properly the defend- cautioned jury through door, ant then burst the sole purpose unlocked for which evidence of the and the defendant attacked Mr. Roybal Roybal incident could be considered was to knife, with a large machete or inflicting a testimony rebut the of the defendant’s wit- charged 1. The information the defendant with felonies in Colorado California. The con felony menacing, incendiary spiracy prelimi unlawful use of an count was dismissed after a device, assault, second-degree nary hearing. section 18-3- (1978 Repl. 8), conspiracy C.R.S. 1973 Vol. assault, second-degree to commit section 18-2- subsequently pled guilty 2. Ramon (1978 Repl. 8), C.R.S. 1973 Vol. second-de charges against him and was im- sentenced to gree burglary, previous and conviction of three prisonment Reformatory. in the Colorado State nesses, prosecu- into told of admitted evidence. Several Roybals the defendant’s midnight arrival at their home between again tion the defend- witnesses identified m., entry, 1:00 a. uninvited his attack on his ant, court, person as the who had com- Roybal, Roybal’s injuries. Mr. and Mr. The charged mitted acts in the information. statements Roybals’ officer recounted The court denied the mo- trial defendant’s person defendant as the identifying the ten to fifteen tions and sentenced him to Roybal, who assaulted Mr. confirmed the Penitentiary Colorado years State injuries, Roybal’s extent Mr. head count, second-degree the sen- burglary Roybal’s eyewitness told of Mrs. identifica- with the concurrently tence to run manda- tion of defendant her husband’s as- tory life sentence. during early morning sailant hours August being transported after I. police the scene defendant’s arrest. contends that the admis- jury convicted the defendant sion evidence of the incident incidents,

charges based reversible error. rebut his alibi defense was found the habitual counts to have criminal We do agree. been established. accordance mandatory provisions big habitual of crimes other than those Evidence act, 16-13-101(2), criminal section C.R.S. on trial is for which a defendant is inadmis (1978 8), Repl. Vol. court the trial then prove sible if accused offered imprisonment. sentenced him to There- has a defect which makes it more character after, pled the defendant to second- guilty ques the act in probable that he committed degree burglary exchange in for dismissal is ad prior acts never tion. “Evidence charges arising Roy- of the other of the ac propensity missible show the bal incident.3 People Honey, cused crimes.” to commit later, months Several but before sentenc- Colo., (1979); n. 2 see ing burglary charge, on the the defendant 278, 344 People, P.2d 455 Stull filed for a new motions trial menac- However, 404(b). if (1959); offered C.R.E. device, ing, incendiary and habitual crimi- purpose, for another evidence other crim plea nal counts and to withdraw his may inal be admissible. In transactions count, all guilty burglary based on depends such on two admissibility cases its newly discovered evidence. That evidence first, compliance factors: strict reformatory consisted of the statement of a procedural guidelines outlined Stull inmate that Ramon Gutierrez had confided and, second, People, supra, satisfaction brother,” defendant, that his not the “other criteria enumerated in Peo the substantive Ramon; crimes committed the state- provides: ple Honey, Honey his ment dictated Ramon that brother menacing Raul in the participated Gutierrez if “[Tjhe court must determine the sub Al- firebombing incidents and assaulted stantive value of the evidence merits he, Roybal; Raul’s affidavit that bert re jury. consideration defendant, firebombed the Lopez not the spect, court address three is must duplex Roybal. and assaulted Albert purpose sues: Is there a valid (2) Is the which the evidence is offered? consistently Ramon testified Gutierrez evidence relevant to a material issue with his written statement at an evidentia- (3) Does value probative the case? Gutierrez, ry on the motions. Raul hearing act, considering of the hearing, prior evidence subpoenaed who had been for the is relevant however, was the other evidence which appear; failed to his affidavit mandatory imposition charges 3. The and three in the a second dismissed were assault 13—101(2), alleging prior under section C.R.S. counts which, felonies sentence convictions of 16— 8). underlying (1978 Repl. Vol. conviction of the bur- counts, glary assault would have resulted the de- with the defendant until location issue, prejudice which outweigh on midnight Au- after would result from its admission?” fendant was arrested related to is not gust 3. The defendant Colo., P.2d at 754. The defend- or Harrison. either Gonzales question be no but There can testimony ant’s wife corroborated criteria were satisfied Honey the first two that the defendant and Harrison Gonzales of the incident here. The evidence Lopez of the during was home the times refute, counteract, or dis offered to stipulated that the de- incidents. It was evidence. That prove the defendant’s alibi after his ar- custody remained in fendant Lewis, 180 purpose. People is a valid day. next rest until the 423, 428, P.2d 50 Moore v. as to the previously created doubt determining the (1970). The relevance of testimony because of Lopezes’ of the truth testimony that the defendant credibility made it to the defendant hostility their could evening was home all and therefore People to rebut important to the critically charged not have committed the crimes as effectively. The evidence the alibi evidence which the apparent. The issue on admis rebuttal was upon by relied description of the of the sibility Roybals defendant visited the Honey turns is whether the third incident midnight August preced- shortly after test, criterion, has been satis balancing place, his If that visit took arrest. fied. telling been alibi witnesses could not have to the inci- The defendant tied Thus, testimony the truth. the rebuttal victims, solely by testimony dents of the alibi defense. goes very heart Anna, Bertha, Heriberto, Lopez. and Juan developed As in cross-examination The defendant’s wife was the sister of Heri- with the de- Roybals, acquaintance their Lopez. Juan On cross-examina- berto and question fendant to the incident during People’s Lopezes tion of the im- This increased the was not extensive.4 case, it were hostile to developed establishing why encoun- portance of their discord. family the defendant because memorable. the defendant was ter with veracity of question This called into the defend- permitting evidence of the Only by theory testimony. their The defendant’s Roybal Mr. could the me- upon ant’s attack totally Lopezes’testimony was that the of the of the fact and the date only morability not was the defend- fabricated —that crimes, impressed but that the be on the guilty fully ant not of the defendant’s visit crimes never occurred. was no more lurid jury. presentation The Ad- bring than to out the facts. necessary wit- presented The defendant three alibi testified that she ditionally, Roybal Mrs. that he nesses. Leonzio Gonzales testified the police identify the by was taken had been with the defendant at the latter’s after his arrest. That shortly defendant morning August home from on until late identification, the immediately almost after at his home between the defendant’s arrest incident, the ac- strongly supported Roybal August except midnight and 1:00 a. m. on Roybals’ identification curacy of the beer, and joint trips purchase for two person as who was at their defendant the out of his that the defendant was never identifi- Testimony home. as to such later that time. Elizabeth Har- presence during sense, if would have made little even cation arrived at the de- rison testified that she if of the defendant’s permitted, story the p. 4:00 m. on shortly fendant’s home after al- and, upon Roybal attack Mr. had not been trip by for a brief August except beer, remained at that lowed. purchase each to she relationship daughter. Roybal They Mr. been dat- knew Ramon because he had daughter contrary Mrs. had seen the defendant several times. their to their wishes. Roybal Roybal up him times before had seen two or three Mr. had beaten Ramon at an earlier August 2. the incident of time because of conflict about Ramon’s the received, again the a time evidence is in

The that at mini- defendant contends the case is sub- when have limited the written instructions mum the trial court should scrupu- trial court jury. mitted to the the Roybal the incident to testimony about this lously requirement by complied preceded the defendant’s en- events which both occasions that jury the on instructing argues He that try into the house. the evidence of the incident could the alibi evidence and would rebutted have rebutting of the purpose used the sole evi- prejudicial impact the of minimized by testimony the witnesses called the of Roy- defendant’s attack on Mr. dence of the defendant. must be resolved question bal. This probative value of the addi- weighing the We conclude that the evidence the evidence, other evi- considering tional the properly received. Roybal incident issue, against prej- dence relevant to the II. effect, Honey. as required by udicial asserts that the trial court The defendant naturally A would occur question which in his motion mistrial denying erred of fact is whether the Roybals to a finder closing argument. completion the the might have been correct about occur- disagree. We rences but mistaken about the date. emphasizing memorability the addition to im- upon allegedly The motion was based events, in story, including prosecutor the entire the his proper the remarks the defend- argument. attorney Mrs. identification of rebuttal The district Roybal’s arrest, that, in in order to find the argued ant at scene of his establishes rebuttal the necessary it would be guilty, the incident beyond question that Lopezes all the jury that disbelieve place took incidents believe Roybals and both of the that Thus, presentation evening. same story Roybals up made and were “so entire the trier of fact story prevent would police- doing at it faked out good on resolving conflicting evidence prosecution men” and that all witnesses as the basis of reasonable doubt throughout the case in were successful accuracy memory Roybals’ who “fooling convincing people or deal date. types things all time these prejudicial testimony effect of de- statements, happened.” These things really scribing Roy- on the defendant’s attack Mr. po- and the prosecution that the suggesting However, view all bal is undeniable. persuaded prosecution’s lice were factors, including the strength relevant credible, they pos- witnesses were evidence, including defendant’s alibi expertise evaluating credibility sess appar- did of two witnesses testimony it matters, in such were experience based defendant or to each ently unrelated However, they were made dur- ill-advised. that the defendant was at home and other long with argument the of a course times, in their the critical and presence at hotly issue of credi- respect to the contested importance establishing the critical of contemporaneous No of bility witnesses. the incident and incidents v. People, made. See Kostal objection was date, we conclude occurred on same 64, (1966). The de- 414 P.2d 123 160 Colo. presentation probative that the value closing argument counsel’s fense of the entire incident evidence record, so de- we cannot part made outweighed prejudicial effect.5 may have the remarks termine whether closing argu- jury response Honey justified also mandates been Becker, v. People of evi- defense. purpose of the limited ment See instructed 344, (1975). 386 transactions at the 531 P.2d dence other criminal However, question carefully it did consider not have the benefit trial court did admissibility guidance ruling of Stull v. Honey People, supra, of its v. at the time supra. ques- People, analyze admissibility so did not Honey specific in terms of the criteria. tion 554 act or denial of a motion habitual criminal is unconstitutional granting is within the sound discretion of mistrial defendant because not all of applied to this Becker, v. judge. g., People

the trial E. his habit- upon felony convictions argument supra. improper Contentions of violent ual status is based are for criminal in the context of the must be evaluated crimes. light argument as a whole and habitual upon attacks Constitutional McGill, 190 People evidence. v. Colo. See are not new and have criminal statutes 443, (1976). 548 P.2d 600 The trial court As the United generally been unsuccessful. closing argument of both heard the full Spencer said in Supreme States Court position sides and was in the best to evalu 559, 648, 651, Texas, 554, 385 87 S.Ct. U.S. the jury. ate the effect of the remarks on (1967): 611 17 L.Ed.2d Becker, The court See statutes and other criminal] “[Habitual instructed the the remarks are not jury that laws, procedures enhanced-sentence showing evidence. In absence of a designed implement underlying their contrary, jury we understood presume enacted in all policies, have been See, g., followed the instructions. e. id. States, the Federal Government We cannot conclude that the trial court 2114; See, g., as well. e. 18 U.S.C. § abused its in denying discretion the motion 32(c)(2); D.C. Code Fed.Rule Crim.Proc. mistrial. Allarid v. 162 statutes, though 22-104 Such § 427 696 precise procedural not in the circumstanc- We have considered the defendant’s other involved, es here have been sustained in ground for mistrial and find it to be with- against this Court on several occasions out merit. contentions violate constitution- dealing jeopar- al strictures with double III. laws, dy, post ex facto cruel and unusual We next conten- consider defendant’s punishment, process, equal protec- due tions that the habitual criminal act violates tion, privileges and immunities. the constitutional proscription cruel and Missouri, Moore v. 159 673 U.S. S.Ct. [16 punishments unusual and the constitutional 301]; 40 McDonald v. Massa- L.Ed. requirement equal protection chusetts, 180 311 45 U.S. S.Ct. [21 laws.6 542]; v. West Virginia, L.Ed. Graham The mandate of a life sentence based 917]; 56 L.Ed. U.S. S.Ct. [32 solely upon habitual criminal status is the Burke, Gryger v. U.S. S.Ct. [68 upon characteristic of the act which the Boles, 1683]; Oyler L.Ed. claims of defendant’s constitutional infirmi- 501, 7 U.S. 448 L.Ed.2d S.Ct. 446].” [82 ty are based. His may claims be summa- previously upheld big We have habit (1) rized by denying as follows: discretion ual criminal act the face of attacks in sentencing of habitual criminals while provisions founded constitutional permitting varying degrees of discretion in respect equal protection and cruel and sentencing other convicted persons, leg- Bergs punishments. unusual islature has denied habitual criminals the trom, laws; cf. equal protection (2) denial of People Marguez, 190 Colo. judge discretion to the trial to consider and give (involving the “little habitual mitigating effect factors in select- sentence, act,” 16-13-101(1), coupled a criminal section C.R.S. severity sentence, (now Repl.Vol.8), which man mandated life constitute cruel 1973 in 1978 punishment; big pre and unusual an enhanced sentence within a dated Const, II, VIII, (The process appli- 6. Art. 25. due § See U. S. amend. which is Colo. Const. II, 25, pursuant process cable to the states to the due clause of Colo. right Art. includes the § Const. Const, See, XIV; equal g., protection clause of U. S. Robinson to of the laws. e. amend. v. California, Chames, Colo., Heninger 370 613 P.2d 884 U.S. 82 S.Ct. 8 v. II, (1962); 20; (1980).) L.Ed.2d 758 Colo. Const. Art. §

555 Calvaresi, People unreasonable. v. 188 range prior felony two convic scribed when established); in Only 534 P.2d 316 charged tions had Colo. been challenged statute Thomas, 542 P.2d those cases where People v. 189 Colo. class, singles in a suspect out individuals (1975) (also involving the “little habitu 387 race, such as involves the exercise of a gravamen of the or act”). al criminal require right, fundamental will Court constitutionality attacks the facial to support more than a rational basis statutes Bergstrom in Thomas legislative omit classification. discriminatory enforcement. Because [Citations is challenges ted.]” nature of the constitutional here,

different we shall address the defend act, big per- Under the habitual criminal arguments specifically. ant’s guilty felony sons who are of a found prior who are also to have found three begins with the famil analysis Our singled more felony convictions are out for to principles presumed iar that a statute is persons than convicted severe sentences Edmonds, constitutional, g., People e. v. prior who have fewer felonies on their rec- Howe v. 578 P.2d legislature has created a scale. ords. (1972), People, 178 496 P.2d 1040 Colo. prior felony one convic- only Persons a has and that the burden general- tion are not habitual criminals and establishing unconstitutionality of a subject are not to sentences ly7 enhanced statute, as applied, beyond a reasonable A single prior felony. on the basis doubt, Albo, g., e. however, conviction, prior second felony Gonzales, (1978); People criminal brings play into the little habitual defendant vulnerable statute and renders a imprisonment an enhanced sentence to in to A. range years.8 25 to 50 A third We must pre- determine whether felony renders a defendant prior conviction scribing specific inflexible sentence to finding to a of habitual criminal vulnerable habit- imprisonment persons found to be act, big under habitual criminal status prior ual criminals on the basis of three which mandates a life sentence. convictions, felony allowing while various progres- statutory This scheme reflects degrees flexibility sentencing other for a who increasing penalties person sively offenders, has denied such legislature unwillingness inability or evidences an equal protection habitual criminals the socie- poses reform and an attendant risk to the laws. has been con- ty. Only when an accused Childs, Colo., Jr., People v. felonies and is convict- victed of three 101, 102 we said: (1980), judge deprived fourth trial ed of a is the sentencing. law We conclude right protection “The discretion equal basis. parties statutory all who are has a rational guarantees scheme only Jr., Childs, (involving supra similarly receive like treatment situated general on the mandato- assembly equal protection the law. attack Where statute, sentencing of violence has made between different for crime ry a distinction 16-11-309, (now in 1978 classes of will be people, that distinction section C.R.S. 8));9 supra; upheld provided arbitrary Repl.Vol. People Marquez, it is neither nor Childs, lays 9.People exceptions Special sentencing Jr. also to rest statutes create 12-22-412, general implicit argument rule. See section brief that in the defendant’s Supp.) (1978 Repl.Vol. 5) (1979 infringes C.R.S. 1973 mandatory sentencing a constitutional offenses). (dangerous drug legis- judicial requirement separation of adoption powers. lative There we held that charge involve a 8. Since the new must mandatory sentencing for a crime of violence prescribed penalty five maximum in excess of authority legislature. within the inherent years predicate of- for habitual serve as a 16-13-101, fender status. Section C.R.S. (1978 Repl.Vol. 8) (1979 Supp.). 556 Eighth and Fourteenth Amend supra; People v. Bergstrom, ments to the Constitution

Thomas, United States Vigil supra; evi given require that consideration 161, 322 P.2d 320 determining mitigating dence of factors imposed is to be whether a death sentence B. Ohio, Lockett v. for commission of a crime. 2954, 586, The defendant would have us con 98 57 L.Ed.2d 973 438 U.S. S.Ct. Court, (1978); People criminal act is v. District big clude that habitual 401, cases are Those face as cruel and prescribing invalid penal that the death predicate based on the posi unusual The basis of this punishment. any from other sen ty qualitatively differs requirement tion is that the a mandated irrevocability. severity tence in its sentence, absent discretion in the trial Ohio, People v. District supra; Lockett v. upon lesser sentence a judge impose Court, supra. They applied have not been circumstances, showing mitigating con by or Supreme the United Court by States punishment. stitutes cruel and unusual par any this court in other contexts. More under This contention is untenable U.S. ticularly, notwithstanding long history Const, Texas, Spencer amend. VIII. challenges to habitual criminal statutes Estelle, Jr., 445 supra, and Rummel v. U.S. Supreme Court and the United States 263, 1133, (1980), 63 382 100 L.Ed.2d S.Ct. here, been requirement such a has never Supreme upheld the United Court States We are adopted suggested previously. or of a Texas habitual constitutionality persuaded uniquely grave nature requires imposition criminal statute which penalty wellspring of the death is the imprisonment upon of a sentence to life requirement flows the constitutional non-capital felony. third conviction of a mitigating factors be considered in Accord, Virginia, 224 g., e. Graham v. West sentencing notwithstanding the number or 56 L.Ed. 917 U.S. S.Ct. seriousness of a defendant’s offenses. Missouri, Moore v. U.S. S.Ct. reject re suggestion We that such a (1895). Although 40 L.Ed. 301 absence quirement is included within the Colorado sentencing discretion was not the basis of prohibition Constitution’s of cruel and un cruel-and-unusual-punishment attack on punishments applied usual as to the sen Rummel, Spencer the Texas statute in criminals. tencing of habitual language approval the broad of habitual A who has been thrice convicted person criminal statutes as consistent with the felony by of a has demonstrated his re- Eighth prohibition Amendment’s of cruel peated criminal actions that he is unable or punishments, long and unusual and the his those limitations on unwilling to abide tory judicial rejection of attacks legislature conduct which the has found prohibi such statutes as violative of that necessary appropriate functioning or to the tion, mandatory leave no doubt society. legislature of a civilized has sentencing provision big Colorado’s ha person, determined that such a when there- bitual criminal act is not invalid on its face felony, after convicted of an additional contrary requirements to the society must be isolated from a sentence Eighth Amendment. imprisonment regard of life without to mit- succeed, If the defendant’s claim is it igating circumstances. We cannot conclude must be on the basis that Art. Colo.Const. that the man- from the face of statute II, greater protection under its offers § punishment disproportionate dated punish unusual proscription of cruel and Compare it is based. conduct on which amend. VIII. ments than does U.S. Const. Georgia, case with Coker U.S. (1977) (death We are asked to look to recent United 53 L.Ed.2d 982 S.Ct. considering the Supreme rape States Court cases of adult woman is cruel penalty validity penalty guid of death statutes for and Weems v. punishment), and unusual States, 544, ance. United 30 S.Ct. U.S. The defendant asserts that nonviolent of (1910) (punishment L.Ed. 793 “cadena constitutionally offenses cannot felony prisoner a is confined temporal” whereby as life sentence an predicates as for a serve in chains and at twenty years for twelve no authority He cites for habitual criminal. labor is cruel and unusual painful hard and have proposition and we found none. offense of a punishment falsifying Rather, presence or absence violence “the document). generally Trop v. public See strength of soci does not affect the always Dulles, 78 S.Ct. L.Ed.2d 356 U.S. deterring particular in a crime ety’s interest We the absence conclude that a criminal.” punishing particular or in discretion, coupled even when sentencing Estelle, Jr., supra 445 U.S. at Rummel v. sentence, with a life does prescribed at at 63 L.Ed.2d 392. 100 S.Ct. facially invalid viola- render the statute as might be circumstances in Whether there of cruel and unusual prohibition tive of the mandatory a life sentence would con which II, in Const. Art. punishments § punishment be cruel and unusual stitute Childs, Jr., People v. supra; v. See supporting habitual crimi cause crimes Marquez, supra; People Bergstrom, v. su- with substan together nal status taken Thomas, v. pra; People supra. rise to the habitual crimi giving tive crimes minor in nature as are so nal determination punishment, cruel and unusual to constitute C. Jus today. we need not decide See Chief The chal- defendant’s final constitutional Pringle’s Bergs in v. tice dissent criminal lenge is that Colorado’s habitual trom, supra. The situation defendant’s applied as statute unconstitutional any such presents application no case him. he contends that use of a Specifically, felony convic underlying limitation. His basis an nonviolent offense as a felony knife, use a robbery with tions are for adjudication criminality which habitual a conve burglary commit conspiracy to in life support mandatory turn is used to a store, a vehicle without taking nience pun- cruel unusual sentence constitutes The offenses which the owner’s consent. disagree. ishment. We charges in habitual criminal triggered the knife, use a volved assault upon The attack the Texas statute incendiary The use of an device. unlawful Jr., Estelle, supra, in was based Rummel throwing a offense was committed latter the statute was upon the contention housing a apartment Molotov cocktail at an There, de applied. unconstitutional despite children en young woman and her statutorily pre that his fendant contended to harm her and by the woman not treaties life under imprisonment scribed sentence to re family. dangerous activities her was dispro habitual offender act Texas foundation provide in record no flected portionately severe in relation under imprisonment is argument that life for an the Eighth and that Amend lying crimes applied punishment as and unusual cruel Rejecting requires proportionality. ment People Bergstrom, See this defendant. of that court challenge, majority that, of most held at least absence a IV. Amend application, Eighth

extreme and unusual objections ment’s cruel proscription certain We also must consider by a recidivist used to punishments admissibility is not violated of a document upon life con a conviction of the defendant mandating prove a sentence statute felony.10 California. viction of a third sentencing felony as an proportional- majority recognized offenses 10. nonviolent ity based were principle play habitual criminal was come into extreme could involving $229.11 property a total of statutorily sen- offenses such as a sanctioned situation Estelle, Compare wrongfully park- Rummel imprisonment taken. for overtime tence to ing. Jr., Georgia, supra, id., supra, with Coker at U.S. at n. S.Ct. States, supra. Weems United Rummel the three 63 L.Ed.2d at 391. In People, ment of the statute. See Brown v. A. 412, (1951); see also 124 238 P.2d 847 Colo. J, The defendant contends that Exhibit a 152, 459 P.2d 285 170 People, Silva v. Colo. copy of certain of the defendant’s Califor- (1969). records, properly nia not re- prison it was not duly ceived in evidence because B. pursuant to section 16-13- authenticated 102, 8). (1978 Repl. 1973 Vol. Exhib- objects C.R.S. to the The defendant also link connecting it J is an essential de- prison records admission of his California properly proved California fendant to his conviction was because reflect that conviction. by counsel representation obtained without that waiver and it has not been established constituting part The relevant documents constitutionally valid. A of counsel to be of Exhibit J were certified true and subjected greater to may not be by correct the assistant chief records ad- punishment based a conviction obtain Department of the of ministrator California represent when he was not against ed him Corrections, under of that Depart- the seal right waived by ed counsel and had not that ment. That same states certificate Texas, validly. Burgett v. 389 U.S. 88 Department director of the of California Here, 19 L.Ed.2d 319 S.Ct. legal Corrections is the official custodian of judgment part abstract of which is of the prisoners the records of committed to the notes that the con prison records California prisons California state and that the di- plea guilty, on a viction was based rector has authorized the assistant chief We have held that a “Counsel waived.” records to certify administrator such rec- prima defendant must make a facie show support ords on the director’s behalf. that a conviction is constitutional certification, the assistant chief records ly invalid order to bar the use of that copy administrator attested to a of a docu- proceeding. People conviction in a later v. reflecting signed ment the director’s autho- Colo., (1980) (use Roybal, 618 P.2d 1121 rization to the assistant chief records ad- status); establish habitual traffic offender ministrator to such certify criminal records Colo., (1980) People Roybal, v. 617 P.2d 800 on behalf of the Finally, director. the sec- (use to establish habitual traffic offender retary California, state the state of status); Colo., People Meyers, see v. 617 through deputy great and under the seal (1980) (use impeachment); P.2d 808 for state, identity of that certified to the of the Morrison, v. 196 time, People Colo. director at the relevant the di- (1978) (use impeachment); People v. rector holds a office not public appertaining Woll, (use 498 P.2d 935 court, keeper to a that such official is impeachment). Department books and records of the Corrections, that the attestation of the di- Here, the defendant offered no evi chief by rector assistant records admin- right dence whatsoever that the waiver of form, istrator is in due and that the latter constitutionally counsel was not effec officer is officer proper to make the Although right tive. waiver of the to coun attestation. presumed sel not be from a silent may Texas,

Although record, supra, we con Burgett there is no certificate as that, record identity authority deputy affirmatively clude when the state, waiver, People, reflects such the defendant must secretary Coppinger see showing that the waiver prima 380 P.2d 19 DeGesualdo make a facie (1961), in was ineffective before the must prove the presence we conclude that of Califor troduce additional evidence to two great supplies requisite validity nia’s seal au of the waiver. See each of the Morrison, cases, 44(a)(1). People v. thenticity. supra; Cf. C.R.C.P. This com Woll, adequate supra; People bination of certificates was In absence satisfy “duly require- showing question authenticated” such a we will not Therefore, 11(b). guilty plea was prop- the waiver validity constitutional record. now be erly accepted may counsel reflected the California attacked unintelligent. involuntary or V. Martinez, North Al- supra; Carolina v. ford, L.Ed.2d U.S. S.Ct. We turn to the defendant’s conten- now abused discre- tion that the trial court

tion his motions withdraw his denying Second, the denial of the defend charge of guilty plea second-degree to the was change plea pref ant’s motion to the trial on burglary, felony and for new the aby hearing canvassing aced full-sale the incendiary charges. device menacing and evidence he cited newly discovered as the on These were based new- allegedly motions justification withdrawal. for its trial ly evidence. discovered testimony of court admitted the Ramon Gu tierrez and affidavit of Raul Gutierr the A. ez.11 Prosecution witnesses who again pos change warrant a plea To itively identified the defendant the sentence, before entry of a there must wrongdoer by defense were cross-examined showing request some that denial the judge presided counsel. who over the will Maes v. justice. People, subvert 155 had the defendant’s alibi wit hearing heard (1964). Colo. 396 P.2d 457 The burden testify during nesses about his whereabouts just demonstrating a “fair and reason” the incident at the defendant’s earli the change rests defendant. menacing incendiary er trial on the Martinez, People v. 188 Colo. 533 P.2d our charges. device Based review (1975); 926 see also 3 A.B.A. Standards for newly the record examination of the Justice, Guilty 14-2.1(a) Criminal Pleas of at the presented discovered hear evidence (2d 1980). Ed. Whether such a was showing trial ing, say we cannot that the court’s made a matter within the discretion of just ex conclusion that no fair and reason the trial We intervene the only court. if plea of the defendant’s isted withdrawal court has abused its discretion. Maes v. discretion. 3 was an abuse of its Riley, People, supra; People see 187 Colo. Justice, A.B.A. for Criminal Standards People, Lucero v. Guilty, supra. Pleas of (1967). 164 P.2d 128 Colo. 434 Here defendant contends the the that B. plea circumstances in which was en- for new The defendant’s motion trial (the again tered risk that he would be ad- properly also denied. judged an habitual criminal and sentenced term), on mandatory newly to a Motions for new trial based second evidence, and the are not looked on newly discovered “confession” discovered evidence favor, such a motion by Raul and as- with a denial of burglary Gutierrez showing absent a sault at residence will not be overturned committed Scheidt, People v. plea. We dis- warranted withdrawal clear abuse of discretion. (1974); Digiallo 232 agree. 187 Colo. 560, 488 P.2d 1109 nardo v. People, First, plea was ac the defendant’s cepted providency exhaustive hear after an Scheidt, supra: As we said appear ing. it does not While for a new trial “To motion affirmatively guilt confessed his succeed on a ground, the defendant should charged, hearing fully offense was discovered show the evidence complied provisions of Crim.P. People, 164 two accounts. Cheatwood Cf. characterizes Ramon While the defendant (granting (1968) a new testimony P.2d 402 Colo. Gutierrez’ as extrinsic corroboration evidence, “confession,” newly un- trial based on discovered of Raul there we note that Gutierrez’ circumstances). very discrepancies der different are substantial between DUBOFSKY, Justice, dissenting: trial; and his that defendant after all to discover diligence counsel exercised I of the part dissent respectfully I to the defend- evidence favorable possible un- therefore find it majority opinion and trial; that the during ant to and considered in to reach the issues necessary is material newly discovered evidence V of II, III, part I concur in and IV. parts involved, merely the issues opinion. and that on impeaching; cumulative or applica- majority’s I take issue with discovered evidence newly retrial set forth as balancing test tion of Di- acquittal. probably produce would Colo., 596 Honey, third criterion People, In DeLuzio v. giallonardo, supra. I conclude P.2d 751 Because P.2d Roybal testimony Cheatwood v. the admission of (1967), it is stressed that I would probative, than prejudicial more must be of discovered evidence newly felony conviction of reverse the defendant’s probably bring such a character as menacing and unlawful use of an incendi- if at presented about an verdict acquittal felony. of a ary device in the commission another trial.” testimony presented in re- Roybal The 528 P.2d 233. Colo. (1) aspects: testimony had two the buttal considering the defendant’s ap- his that the defendant and brother trial, re motion for new the trial court Roybal home sometime be- peared at the re previously viewed the same evidence August 1:00 a. m. on midnight tween and ferred to in the discussion of the defend testimony implicating the de- and the plea guilty ant’s motion to withdraw his Roybal. on Mr. fendant in the assault The court noted second-degree burglary. former was that question There is no that the statements of Ramon and Raul veracity. By con- Lopezes’ relevant to the respects. were inconsistent in a number of testimony an element of the alibi tradicting Scheldt, The trial People See which the defendant’s witnesses about court had heard the evidence at trial. they been mistaken had would not have evi Based on review of all the available truth, testimony telling been dence, the trial found that specifically court indi- “pulled the of the alibi and linchpin” discovered evidence allegedly newly rectly Lopezes’ corroborated the accusa- acquittal. an probably produce would not McCormick, (2d tions. Evidence Ed. The The supports finding. evidence 1972) 47. The defendant did not chal- § defendant failed to make the essential lenge admissibility of the neutral testi- prob showing that the new evidence would proper and it was rebuttal. mony appeal, on on retrial. Ac ably produce acquittal for new trial was A difficult issue is raised cordingly, his motion more Scheldt, supra; properly People denied. the defendant in the testimony implicating supra.12 People Digiallonardo, testimony Mr. The Roybal. assault on People v. Lopezes’ veracity, to the relevant court are af- judgments of the trial notwithstanding its rele- Honey, supra, but firmed. value, vance, considering the probative its JJ., which was relevant to the QUINN, dissent. other evidence DUBOFSKY and Gallegos, discovered evidence. statements of The new evidence included The fact that Colo. Ramon lent his Gutierrez that the defendant testimony shortly was not available to the Ramon’s car to Raul before and Ramon Gutierrez trial because was unwill- Lopez defendant at ing Ramon Raul’s the occurrence of the incidents. true, testify prior respect. to his own not trial does If statement is consistent in that testimony newly his discovered. See make this information was available to the defendant Fletcher, given him reason to trial and would have Thus, although not suspect party the trial court did was the who then that Raul rely ground, Lopez there is a substantial basis participated on this had with Ramon in the inci- have been that the evidence would knowl- to conclude dents. Evidence within the defendant’s edge prior diligence prior newly to trial. available on exercise constitute to trial does not alibi, but, equally significantly, issue, defendant’s outweigh prejudice must which Colo., Id., from its admission. convict the de- prejudicial tendency would result judge the trial Although 596 P.2d at 754. that he was by proof fendant of one crime weighs when he allowed wide discretion aggravated by close guilty of another matters, Ihme, People v. these Lopez in- parallels between the (1974), my review of the record knife-wielding as- cidents.2 Both involved judge the trial leads to the conclusion whom saults on the defendant persons admitted the evidence de- should not have recently or his brother Ramon had on scribing Roybal. the assault Mr. family heatedly quarreled over matters. testimony was believable. The ev- Lopezes’ in both inci- actively participated Ramon of their animus toward the idence defend- several dents. Both occurred within hours ant did not lead to the conclu- inexorably circumstances, of one another. Under these sion that had concocted their accusa- testimony describing the assault on Mr. “get” tions to him. Defendant’s alibi wit- his identifying the defendant as nesses, belief, while unworthy were suggested that overwhelmingly assailant thoroughly easily cross-examined and could his brother had embarked on defendant and Considering have been disbelieved. this ev- violent, against vendetta their night-long together idence with the rebuttal value of began in-laws3 —a vendetta Roybals’ non-prejudicial testimony attempted assault Heriberto appeared and his brother at defendant firebombing duplex Lopezes’ m. on I August their door before 1:00 a. Roybal. in the attack on Albert culminated limiting conclude that instruc- despite infer- Yet it is this all too natural precisely im- given jury, prejudicial tions that, night question, ence — account of pact Roybals’ graphic propensity to possessed a marked Roybal defendant’s on Mr. and the assault violence —that engage family related subsequent police investiga- evidence of the system under our cannot be tolerated proof Roy- tion value as exceeded its justice. criminal and, indirectly, bals’ of the Lo- credibility reversible Admission of other crimes is pezes’ veracity. when, prove relevant to although error circumstances, evidence of any Under offered, is its material issue for which it suggests jury other crimes value, considering the other evi- probative likely who depraved person accused “is a issue, outweighed dence relevant to that for which he is would commit the crime a de- tendency to convict by prejudicial its being tried.” Stull proof that he is by fendant of one offense In certain Honey, guilty of another. See cases the risk that the accused will be con- Colo., Lucero, innuendo,” id., supra; People v. P.2d “damning victed is coun- only tenanced because the evidence is not (1980). I therefore dissent.

highly probative “necessary” of but Justice say I am authorized to guilt fact material to his

prove some other QUINN Honey, supra, joins or me in this dissent. innocence. cases, how-

Colo., 596 at 754. In other

ever, I is too to be tolerated. grave the risk such case.

believe that this is one assault

Not was the account of the only unnecessary1 impeach

on Mr. Roybal Roybals’ relationship with the describing 3. Ramon’s assault or the 1. Had evidence only clearly entry upon daughter rec- is not established residence been they disposal, suggests prosecution’s point record rebuttal evidence at the ord. At one probative spouses; its value would have exceeded at another are were common-law prejudicial impact. boyfriend girlfriend. described as charges underlying 2. The problem. were to avoid this incidents severed

Case Details

Case Name: People v. Gutierrez

Court Name: Supreme Court of Colorado

Date Published: Jan 19, 1981

Citation: 622 P.2d 547

Docket Number: 79SA370

Court Abbreviation: Colo.