People v. Onesimo Romero

subsequent fact-finding pro- resort to a

ceeding in order to determine whether a guilty plea voluntarily was and under-

standing^ made. McCarthy, 634 P.2d at 417 n. 1. See also 394 U.S. at 89 S.Ct. at 1171. Accordingly, I would affirm the district court’s order. say

I am authorized to VOLLACK, JJ., join ERICKSON and in this dissent. Colorado,

The PEOPLE of the State of Plaintiff-Appellant, Cross-Appellee, ROMERO,

Edward ONESIMO Defendant-Appellee,

Cross-Appellant.

No. 85SA319. Colorado, Supreme Court En Banc. Nov. 1987. Rehearing Denied Dec. 1987.

I. 13, 1982, reg- July the defendant

On City County and the istered Denver, listing his residential address as 2755 West 23rd Avenue. When he voted 21, 1983, and September on June allegedly resided at the defendant pre- located within a different an address Attorney In the cinct. December charging filed an information the General voting felony with two counts of by providing false informa- about his of residence and one tion voting in a misdemeanor count of to vote. in which he was preliminary hearing in Denver At a one, two, County on counts Court defendant, three, testimony giv- the of the proceeding conducted en in a related civil 24, 1984, into evi- on June was admitted prosecution proba- established dence. The cause and the case was bound over to ble Woodard, Gen., B. Atty. Charles Duane 18, 1985, the the district court. On March Howe, Gen., Atty. Richard H. Deputy Chief Attorney submitted a motion to General Gen., Forman, Dailey, Daniel Sol. John counts, granted. which file additional was Gen., Perryman, Eric Asst. Deputy Atty. charged fifth the The fourth and counts Gen., Denver, plaintiff-appellant, Atty. voting in elections on No- defendant with cross-appellee. May vember regarding his viding false information Plunkett, Young, D. Richard E. Frank prelimi- Prior place of residence. Jr., Denver, defendant-appellee, cross- hearing the fourth and fifth nary on appellant. counts, prohibit the the defendant moved to testimony given at the admission of ERICKSON, Justice. relying upon priv- proceeding prior civil defendant, VII, Rome- Edward Onesimo 9 of by article ilege afforded ro, voting wrong charged with in the The district was Constitution. the Colorado misdemeanor, sup- agreed with the defendant and precinct, a court Nevertheless, the pressed testimony. (1980), felony and four prosecution found that district court regarding his providing false information of the probable cause for both established IB C.R.S. felony counts. all The district court dismissed finding of limita- charges, that the statute filed a motion The defendant then charge, misdemeanor tions had run on the arguing that sec- felony counts dismiss the felony statute was unconstitu- and that felony, IB C.R.S. applied to the defendant because tional as him be- applied to was unconstitutional as equal protection of the deprived him of substantially proscribed conduct cause it II, under article section 25 1- laws prohibited similar to conduct misdemeanor, ap- prosecution 13-709, ruling. penalty. We re- pealed the district court more severe yet imposed a agreed dismissed each remand the case to the district court verse and district its prejudice. On felony counts with to reinstate court with directions motion, dismissed district court own Any person by knowingly giv- charge, finding that section who votes misdemeanor 1-13-709, though denominated as a misde- ing regarding false information meanor, grants rights carries the present residence commits a class 5 of a offense and therefore punished and shall be prosecuted within the six-month must be in section C.R.S. 1973. petty offenses. statute of limitations for 1-13-709 Section prosecution Because the filed the informa- who, Any person any election period, beyond well the six-month tion law, knowingly or offers to court dismissed the misdemeanor district in in which he is not count. guilty qualified to vote is of a misde- grounds appeal, prosecution As and, thereof, upon meanor conviction (1) deny section 1-2-225 does not claims: punished by fine shall be of not more laws; equal protection of the by imprison- hundred dollars or than two (2) improperly applied the district court county jail ment for not more than six-month statute of limitations months. three offenses; improp- the district court Equal protection guaran of laws is VII, erly applied article section 9 of the teed amendment of the fourteenth Constitution to exclude evidence Colorado United States Constitution and the due testimony given proceeding.1 in a of civil II, process clause article section 25 of agree. Accordingly, We we reverse the People the Colorado Constitution. v. Oli district court and remand with instructions (Colo.1987). ver, 222, Equal 745 P.2d 227 reinstate the

protection of the laws assures that those II. similarly who are situated will be afforded Mozee, People similar treatment. v. 723 The defendant contends that section 1-2- 117, (Colo.1986); People 126 v. Cal 225, equal protec- violates varesi, 277, 281, 316, 188 Colo. 534 P.2d 318 by proscribing tion of the laws identical pre “When two criminal statutes conduct as that different for identical con imposes penal- which a lesser scribe C.R.S. duct, ty.2 Section 1-2-225 a defendant convicted and sentenced asserting cross-appeal Supreme 1. The defendant filed a The United States Court has concluding states, acknowledged the trial court erred in nevertheless because VII, article section 9 of the Colorado Constitu- authority of their inherent constitutional to con- prohibit prosecution tion does not of the process, require persons trol the electoral can defendant under the facts of this case. A crimi- requirements meet certain reasonable before right appeal nal defendant’s of is found in sec- See, they can vote in state or national elections. (1978): "Every person 8 C.R.S. 686, Forston, e.g., Burns v. 410 U.S. 93 S.Ct. of convicted an offense under the statutes of 1209, (1973) (Court upheld L.Ed.2d 633 resi- 35 right appeal this state has the of to review the dency citizenship requirements); Martson proceedings resulting in conviction." Because Lewis, 679, 1211, 410 U.S. L.Ed.2d v. 93 S.Ct. 35 convicted, may the defendant was not appeal. (1973) (same). "re- 627 Under Colorado law Moreover, jurisdiction initial over de- franchise, strictions on the classifications based appeals judgment fendants' from final of the upon residency, citizenship age have never ap- district court is conferred on the court of suspect.” been considered Millis v. Board of peals, supreme not the court. 6 County 652, County, Comm’rs Larimer 626 P.2d (1973 Supp.). Accordingly, & 1986 we (Colo.1981) (citing Holt Civic Club v. 657 cross-appeal dismiss the of the defendant. Tuscaloosa, 60, 383, City 439 U.S. 99 S.Ct. 58 legislation 2. Where does not involve an intrinsi (1978); L.Ed.2d 292 Kramer v. Union Free cally suspect classification or a fundamental IS, 621, 1886, School Dist. No. 395 U.S. 89 S.Ct. right, the test is whether the classification is Rorex, (1969); 23 L.Ed.2d 583 v. 191 Skafte Brown, founded on a rational basis. 399, 830, dismissed, appeal 553 P.2d (Colo.1981); People 632 P.2d v. Ben (1976)) U.S. 97 S.Ct. 52 L.Ed.2d 352 188, 190, jamin, 197 Colo. 591 P.2d (footnote omitted). Because the issue of wheth- Supreme The United States Court has case er the statutes involved in this unconstitu- recognized right that the to vote is a fundamen tionally right to was not raised restrict the right "preservative tal that is of other basic civil appeal, we it. on do not address Sims, political rights.” Reynolds 377 U.S. 1362, 1381, 84 S.Ct. 12 L.Ed.2d 506 quali- he is not in a equal is denied the harsher under Oliver, vote, actually vote. never Sec- fied to of the laws.” protection If, 126). when, Mozee, P.2d at is also violated tion 1-13-709 (quoting, eighteen, having age distinctions a voter reasonable reached the there are vote, statutes, is not equal protection when one not a votes or offers to between Westrum, 624 P.2d States votes or offers People v. citizen of the United offended. vote, when one votes or offers to pre- he has not resided vote when legislation is not invalidat- criminal While in which he is to vote for cinct act particular simply because ed immediately preceding the thirty-two days statutory provision, than one violate more statute, section The misdemeanor election. 1375, 1382 Taggart, broader, general, provi- more is a laws protection (Colo.1981), “equal conduct other than proscribes which sion statutory classifications requires that in the sec- that enumerated that are on differences crimes be based tion 1-2-225. reasonably related to real fact legislation,” purposes of criminal general hand, may other a voter violate On the 299, 301 P.2d People Mumaugh, 644 v. knowingly providing 1-2-225 section Brown, 632 P.2d (Colo.1982); see regarding his current ad- information false Assembly (Colo.1981). The General precinct in voting in an election dress and penal- prescribe more severe may, If qualified to vote. which he is otherwise graver to have perceives for ties acts informa- knowingly provides false person a are if the differences consequences, even residence, his but tion about Mozee, 723 P.2d degree. only a matter of located within the residence is fabricated 126; People Haymaker, he has resided for the precinct in which preceding the days immediately thirty-two election, felony stat- the voter violates the A. violating the misdemeanor. without ute im equal protection clause is the conduct are satisfied that We apply plicated only where two statutes sufficiently by the two statutes is scribed proscribe the criminal sanctions different challenge of a distinguishable to withstand Czajkowski, 193 conduct. same unconstitutionality. facial A statutes re examination of the two facial B. Assembly did not that the General veals that, ap claims The defendant A defendant proscribe the same conduct: equal him, 1-2-225 violates plied to actually he section 1-2-225 when violates exactly by proscribing protection of the law re by providing false information votes 1-13-709. We as section residence; 1- the same conduct garding present any “primary, In to vote disagree. order voting or offer proscribes one from 13-709 vacancy election” congressional general or he is not ing in a in which to vote 1-2-201(1), register. properly one must qualified to vote § to vote. To be prohib 1-2-225 Section IB C.R.S. (1) eighteen years old at the one must: alia, enabling him its, voter from a election; (2) of the inter be a citizen time of the false knowingly providing States; self have resided Colo United resi about his reg information precinct in which he is rado and the about provides information A voter days immedi dence. thirty-two to istered vote vote, to registers when he his residence preceding election. ately (b), (b), (3)(a), IB 1-2-203(1), (2)(a), may therefore sections A voter C.R.S. 1-2-204, IB (1980 Supp.), violating & section 1-13-709 without violate by sign- (1980),3 and when he knowingly offer C.R.S. 1-2-225. One ask each county shall l-2-203(l)(a) clerk and recorder 3. Section regis- making application for qualified elector signature day, statute, election ing card on sec- violated an element of the felony l-7-107(l)(a), (1980).4 not an element of the misdemeanor. applied defendant, As the statutes do conduct of the defendant that formed the proscribe not identical conduct. “A statute was providing basis is generally presumed ... constitutional information his residence false about when challenging on the party burden is registered vote, reaffirming he to and then prove unconstitutionality statute to its day by false on information beyond a reasonable doubt.” Kibler v. listing signature the false on the address State, (cita- (Colo.1986) signing it. card omitted). tions areWe not convinced 1- In misdemeanor providing distinction between in- false 13-709, Assembly sought the General formation registers when one to vote and knowingly voting foreclose voters from then reaffirming information on elec- offering precincts they to vote in are voting tion day, and offering to vote qualified. only The defendant could qualified, is where he insuf- day; or offer to on election he pass ficient constitutional muster. not do so he could when to vote. When Assembly the General imposes voted, after providing When harsher legitimate- conduct it ly perceives greater false information as to to be of social conse- tration and said elector shall answer the fol- “WARNING: lowing: IT IS A CRIME: (a) Whether the elector intends to claim his falsely your qualifi- To swear or affirm as to legal place sole address as his of resi- register cations vote.” and, doing, dence any in so to abandon claim to (2) making application reg- Each elector for legal other residence. "I, following istration shall the take oath: l-2-203(2)(b) provides Section the -, solemnly (or affirm) do swear that I am seeking register to elector vote shall be asked a citizen of the United States the and that on following: and shall answer the ensuing date of the next election I have shall place including The elector’s of mu- age eighteen years attained the of shall and which, suburban, nicipality, if urban or shall have resided the state of Colorado least or, by be described its street number if there _at thirty-two days and in no. number, by description is no street the thirty-two days least before the election. I addition, division, lot in the block in the or (or affirm) further swear that the ad- upon subdivision the into which land which my legal place dress I listed is herein sole of divided; the residence is is located in all other cases, place I residence and that claim no as other by the residence shall described the my legal section or township subdivision thereof in residence." range (3) and as and county hereby established numbered The clerk and recorder is government survey. the United States If the prescribed authorized to administer the oath place house, apartment of residence (2) in subsection of this section. house, hotel, rooming motel, dormitory, or (4) sign registration The shall elector the number of the floor and the number of sheet as evidence of the oath administered apartment given. or shall also be room A him for himself on behalf of a member of post office box shall not number be used as a family registering. whom he is place purposes residence for of this (2). subsection 7—107(l)(a)provides: 4. Section 1— 1-2-203(3) provides: Section Any registered desiring elector shall (a) county If the clerk and recorder has write his name and address on a form avail- reasonable applicant cause to believe that an polling give able at the this form questions has falsified answers set election, receiving judges one of the who section, certify forth in this he shall the same thereupon shall announce the loud same in a attorney investigation to the district for voice, clearly audibly. distinct tone appropriate action. write, registered If the elector is unable to (b) If the elector states ad- may request judges assistance from one of the legal dress is his sole residence and that he election, judge sign and such shall the form legal claims no other as his residence registered and witness the elector's mark. qualifications and if he meets the of section 1-2-101, The form to be available will be in substance: county clerk and recorder shall "I,_, at_, proceed register who reside am a the elector. Section elector of this_election. 1-2-204 this and desire to vote Date_" (1)The registration signed by sheet to be following the elector shall bear the statement: judg will defer to the quence, this court We will legislature. Czaj uphold legislation such ment of the unless it is clear 352, 356-57, kowski, 568 P.2d beyond 193 Colo. a reasonable legisla- doubt that the Where, here, as a reasonable 25-26 tive act violates constitutional standards. between the con distinction can be drawn Montgomery, 669 P.2d at 1390. Although statutes, proscribed by legisla duct two judge has tailoring broad discretion in constitutionally infirm. Accord tion is not factors, sentence to accommodate various ingly, 1-2-225 does not we find that section the sentence must legis- be consistent with equal protection clause of the violate the latively imposed limits and constraints. Court, ex rel. Gallagher v. District (Colo.1981); see also III. (courts Trujillo, 631 P.2d at 148 juris- lack prosecution also contends that impose diction to sentences outside of the improperly applied the district court specified minimum and maximum terms petty six-month statute of limitations statute); People Hinchman, 196 Colo. to the misdemeanor defined offenses 526, 530-31, (same). 1-13-709, voting Section in the compared district court im wrong precinct, is an unclassified misde- posed penal by section 1-13-709 with the meanor. When a state statute defines a ties listed under section 8 C.R.S. misdemeanor, felony, petty offense with- (1982)5 petty offenses and section 16- class, specification out of its the offense 10-109(1), (1980),6 8 C.R.S. and determined punishable should be in the misdemeanor, although denominated a defining it. 8 C.R.S. § violation of section 1-13-709 is a of (1982). The statute defines a violation of penalty imposed. fense in terms of the misdemeanor, section 1-13-709 as a not a penalty voting for the misdemeanor of in petty Accordingly, applicable offense. wrong precinct is a fine of not more months, statute of limitations is not six imprisonment than two-hundred dollars or eighteen months. 8 C.R.S. § county jail for not more than three prosecution Because the filed the months. 1-13-709. This falls within the eighteen misdemeanor information within range penalties provided of in section 18-1- months, charge the should be reinstated. 106 for class misdemeanors because it fifty- exceeds the minimum sentence of a fine, IV. yet is

dollar less than the maximum imprisonment, sentence of six-month seven- prosecution argues the dis fine, hundred-and-fifty-dollar or both. VII, improperly applied trict court Article legislature by 9 of alone is vested with the Colorado Constitution power excluding testimony given prescribe pun- to define crimes and in the civil suit. VII, People Montgomery, ishment. 669 P.2d Article section 9 of the Colorado Con (Colo.1983); stitution, provides: Trujillo, pro- 5. Section 8B C.R.S. 6. Section 8 C.R.S. vides: "petty A of a violation this state is a section, purposes "petty of- For the of this specifically offense” if classified as a class 1 any fense" means crime or offense classified petty penalty or class 2 offense. The for com- or, classified, petty as a offense if not so offense, petty upon mission of a class 1 con- punishable by imprisonment which is other viction, is a fine of not more than five hun- facility than in a correction for not more than dollars, imprisonment dred or for not more months, by six or a fine of not more than five than six months other than in the correctional dollars, imprison- hundred both such City, penalty facilities Canon or both. The fine, any ment and and includes violation of a petty for commission of a class 2 offense is a municipal ordinance or offense which was specified defining fine in the section the of- law; ex- not considered a crime at common cept penalty procedure fense. The assessment municipal that violation of a traffic ordi- 16-2-201, C.R.S., is available for the which does not constitute a criminal nance payment petty of fines in class 2 offense cases. shall not constitute a offense. offense elections, (a) eligible contested and for When the contestee In trials of law, to the office to which he has been de- arising the election offenses under permitted to withhold clared elected. person shall be no ground testimony on the that it his Because the defendant was not “declared himself, subject pub- him to criminate duly elected” to an office cannot claim infamy; testimony such shall not lic that, l-ll-201(l)(a), under section the June judicial pro- against any him in be used proceeding 1983 civil did not involve an giving in such ceeding except perjury election, “election contest.” To contest an testimony. statutorily one is limited to the enumerated causes, 11—201(l)(a) -201(l)(e), sections petitioned the dis In the defendant 1— giving rise to such an action. See Lewis require he be certified as trict court to Boynton, 55 P. for the state senate on the a candidate The defendant has not established primary proceed At a civil election ballot. contest, grounds for an election and is ing the defendant testi on June claiming precluded protec- therefore from not reside at 2755 West fied that he did VII, tion under article section 9 Sandavol, Romero v. See 23rd Avenue. Accordingly, (Colo.1984). The defendant 685 P.2d 772 testimony proceeding at the civil should not proceeding this civil claims that because suppressed in have been the criminal contest,” under arti involved an “election ceeding that followed. VII, testimony his could not cle proceed in against any judicial used him We reverse and remand to the district ing consti because it would contravene the court with directions to reinstate securing purity of tutional mandate of VII,

elections. See Colo. Const. art. 11. Where, here, LOHR, J., places part defendant concurs voluntarily testifying part. residence at issue dissents in proceeding instigated, a civil that he JJ., KIRSHBAUM, join ROVIRA and purity of elections is not threatened in the concurrence and dissent. admitting testimony proceed at a later LOHR, Justice, concurring part ing. dissenting part: The defendant further contends parts major- I concur in III and IV of the grounds “one of the for an election contest dissent, ity opinion. respectfully I how- eligible is that the candidate ‘is not ever, part opinion, from II of that in which office to which he has declared elect- been ” majority holds that the trial court erred (citing l-ll-201(l)(a), ed’ IB C.R. dismissing charg- the four (1980)). disagree S. We with the defend- ing voting by knowing- with construing primary ant. In our regarding ly giving false information his give task is to ascertain and effect to the present in residence violation of Assembly. People intent of the General 1-2-225, (1980). agree IB I C.R.S. Guenther, 971, 975 applied with the trial court that as to the intent, “To discern that we look first to the charges in facts that form the basis of the itself, language giving of the statute case, proscribes this section 1-2-225 con- statutory commonly accepted terms their prohibited by duct that is identical to that Id. meaning.” (citing and understood IB a misde- C.R.S. People, 1111, Binkley v. P.2d 1113-14 716 prescribes meanor statute which a lesser ¶. Court, (Colo.1986): People District result, penalty. As a the defendant’s con- 918, (Colo.1986): Engelbrecht P.2d right equal protection of the stitutional to Co., Indemnity Accident & Hartford precludes laws his conviction of the four (Colo.1984)). Section 1-11- felony 201(l)(a), IB C.R.S. reads: duly declared any person The election of In order to violate section here, elected to must any may felony person office statute at issue a be contested: knowingly giving vote false information scribed applied two statutes as in regarding his residence. case this because the defendant “[w]hen statute, It is a violation of the misdemeanor to vote and false infor- 1-13-709, knowingly to in mation, he violated element of the felo- precinct quali- election in which one is not statute, ny but an element of the mis- person permitted fied to vote. No to Majority op. demeanor.” pur- at 538. The being registered. without ported illusory. distinction is Neither the IB C.R.S. In order to § felony nor the complete misdemeanor is vote, qualified register person a until a vote has been cast. Under the precinct must have resided in the thirty- statutory outlined, previously scheme one immediately days preceding two the elec- in precinct cannot vote a where he is not (1980).1 IB Upon tion. C.R.S. § qualified by ballot, residence to cast his applying registration, for voter one must violation of the misdemeanor un- provide regarding accurate information provides less he false information concern- l-2-203(l)(a), (2)(b), (3)(a), residence. § ing his residence either at the time he (3)(b), (1980); l-2-203(2)(b), IB C.R.S. IB § registers or at the time he votes. Al- (1986 1-2-204(1), (2), Supp.); C.R.S. § though formally an element of the mis- provide The voter must also (section 1-13-709), pro- demeanor statute accurate information about residence on viding false information about current resi- card, signature his voter’s which must be dence at one time or the other is essential presented precinct polling place. person in order to enable to vote in an l-7-107(l)(a), Under precinct qualified. election he is not scheme, statutory this one can vote in an against background, Viewed the statutory qualified where he is not supposed evaporates. distinction only gives if he false information about his This is not a case like v. Czajkow place of registers residence either when he ski, 193 Colo. 568 P.2d 23 when votes. legislature which we held that could person by providing If a false in- prescribe more severe for theft of regarding formation his current parts types automobile than for other in violation of section he necessar- There, requirement theft. the additional ily votes in an election in which he subject that the of the theft be automobile vote, is not in violation of sec- distinguished statutes, parts the two applied 1-13-709. As to the four felo- “[sjimply we also observed that because an case, ny counts in the precisely the statutory act violate more than one same conduct felony violates both the provision legislation does not invalidate the the misdemeanor statutes. Because the question, long legislative so as the classi proscribe two statutes the same conduct unreasonable, arbitrary fication is not impose penalties, different provisions and the differences in the bear applied charged statute as the conduct relationship persons reasonable in require- this case is not consistent with the public policy cluded and the to be equal protection ment of of the laws as achieved.” Colo, Czajkowski, guaranteed by the fourteenth amendment 568 P.2d at 25. Unlike Czaj to the United States Constitution and kowski, distinguished where the statutes II, process the due clause of article theft, types between two statutes See, e.g., applied proscribe here identical conduct: Oliver, (Colo. People v. voting by providing false information about 1987); Mozee, 117, People v. one’s residence. majority, is true of the misde- claims to discover It that the reach a distinction between the conduct meanor statute is more extensive than that properly registered precinct registered. 1. A voter who moves from where precinct thirty-two within days prior permitted to the election is Specifically, the mis felony statute. statute, can be KINSEY, demeanor Plaintiff-Appellee, Tomiko A. knowingly even by one who violated so because he is though do PREESON, Robert E. underage a citizen of the United or not Defendant-Appellant. States, knowing byor offer to No. 85SA429. in which the voter is not sec qualified to vote. Colorado, Supreme Court of such con does not extend to En Banc. equal protection vio duct. In order for an 30, 1987. Nov. exist, however, necessary it is not lation to con proscribe identical that each Rehearing As Modified on Denial of possible applications of each duct in all the Dec. 1987. statute; respect sufficient that with charged, of the statutes the conduct both disparate penalties.

apply prescribe Bramlett, 194 Colo. People v. denied, 435 U.S. cert. 98 S.Ct. 55 L.Ed.2d People suggest that the statutes do proscribe identical conduct because person could elude monitors and providing information

vote without false about his there- violating but not sec- equal tion 1-2-225. I do not believe protection determinations should turn on imaginative hypothetical possibilities.

such nothing suggest There is in the record to that such unusual facts are here. Calvaresi, As said in we 277, 281-82, satisfy equal protection require- in order to ments, must be substantial differ- “[t]here having relationship

ences a reasonable persons public purpose involved and the to be achieved.” No such differences exist applied

as the two statutes are in this case. I would affirm the dismissal of the four violation of section 1-2-225. say I am authorized to KIRSHBAUM, JJ., join ROVIRA and concurrence and this disssent.

Case Details

Case Name: People v. Onesimo Romero

Court Name: Supreme Court of Colorado

Date Published: Nov 30, 1987

Citation: 746 P.2d 534

Docket Number: 85SA319

Court Abbreviation: Colo.