People v. Perea

reference, frame of from which it could be

reasonably inferred that Martinez used force The PEOPLE of the Colorado, State of equivalent to that described in the accident Plaintiff-Appellee, scenarios. Although we would find prosecu- that the Christopher PEREA, Defendant- tor's may inference not necessarily follow Appellant. expert's testimony-we do not agree with prosecution's determination of No. 00CA1473. quantum of force necessary to cause a sub- dural hematoma expert when the Colorado Court of Appeals, stated that the same is unknown-it does not control our Div. V. decision that the trial court did not abuse its 1, Aug. 2002. discretion admitting Dr. Rosquist's testi- mony. testimony was admissible for the Rehearing 19, Sept. Denied 2002.* purposes of showing the basis of the doctor's and, Certiorari opinion July Denied therefore, 2003.** an improper inference in closing argument does not make that evi-

denee inadmissible after the fact.

v. CONCLUSION

A trial court admitted the testimony of an

expert, Dr. Rosquist, describing horrific acci- scenarios,

dent explain to a jury that subdural hematomas massive, result from vi- olent force. The appeals court of reversed conviction, reasoning that inadmissible expert testimony was used to establish the question

central in this case of whether Mar-

tinez knowingly caused the death of a child

by person in position of trust. Although agree

we that the use of accident seenarios in prove

this case to mens rea was improper, we

find that the trial court did not abuse its

discretion in admitting testimony this be- cause it helpful jury as the basis expert's

of the opinion. Accordingly we re-

verse judgment of the court of appeals.

Justice COATS does not participate. * ** J., Marques, would GRANT. Justice COATS participate. does not

327] 1. argues the State

Board of Parole was not place authorized to him in an pursuant ISP 17-27.5-106, §to C.R.S.2001, because he mandatory was on parole and therefore not an offender who had "granted parole" as that term is used in the statute authorizing ISP. We Garcia, In People 857, 2002 WL 58926 (Colo.App. 99CA2360, No. Jan. 2002),another divisionof this court expressly Salazar, Ken Attorney General, rejected John argument. J. this persuaded We are Krause, Attorney General, Assistant Denver, analysis and, rationale of Garcia Colorado,for Plaintiff-Appellee. therefore, depart decline to from that hold ing. Kaplan, David S. Colorado State Public Defender, Ellen Eggleston, K. Deputy State II. Defender, Denver, Public Colorado, for De- Defendant contends that his convie fendant-Appellant. tion was § invalid because pre 17-27.5-104 cedes 17-27.5-106 and therefore does not Opinion by Judge ROY. apply to the latter statute. We know of no such statutory rule of construction and thus Defendant, Christopher Perea, appeals reject argument. the judgment from a of conviction eseape §§ violation of 18-8-208(2), 17-27.5-104 and Courts must read and consider the C.R.S.2001. We affirm conviction, the vacate statutory scheme as a give whole to consis sentence, the and remand for resentencing. tent, harmonious, and sensible effect to all its parts. See Martin v. People, 27 P.3d 846 August 1999, In defendant, after release from incarceration, began serving period Section 17-27.5-106 mandatory parole authorizes in an the use of supervision intensive ISPs. (ISP). Section program 17-27.5-104 defines parole Defendant's officer custody from informed him in the context of of the parole conditions of ISPs: and directives, the ISP If including an assigned the offender to remain within the fuils curfew and electronic monitoring with an extended an- limits on his as es- confinement bracelet, kle tablished under as well possible the intensive supervision as the conse- quences of program, or, violations of the having conditions and ordered the directives. parole board, Defendant initialed each ISP di- the director, executive or the rective signed and the document. administrator of program the to return to the institution, correctional neglects or September 14, On 1999, defendant's moni- so, fails to do he shall be deemed to have tor showed that he had violated his curfew. escaped custody from shall, upon and con- day, The next appear failed to thereof, viction punished be provided as appointment scheduled with his offi- 18-8-208, section added) (emphasis C.R.S. cer, and the electronic monitor indicated that light In explicit the reference to ISPs in the transmitter was unplugged. Septem- On § 17-27.5-104, this plainly section applies to ber when officers arrived at defen- § 17-27.5-106 and thus to defendant here. dant's residence to investigate, defendant present, but fled. The officers found IIL. that the ankle bracelet had been cut and the transmitter unplugged. Defendant was ar- Defendant contends that there was insuffi- rested two weeks later and convicted of felo- cient evidence that he failed to remain within ny escape after a trial to the court. "the extended limits on his confinement" as B. We §in 17-27.5-104. used phrase that disagree. defendant ar argument, parallel In a evidence was insufficient that there

gues that he conclusion the trial court's support A. period. during the curfew his residence left presented prosecution an that the "[I]f that provides He asserts 17-27.5-104 Section the extended within ceased only remain his monitor that fails evidence offender un- as established from his ankle signals his confinement and transmit limits on function phone line be ... he program the residential supervision over bracelet intensive the der from custo- escaped per are not unplugged. to have We be deemed cause it was shall suaded. dy.” It the court. tried to This case was neither argues equal weight give consider was free to phrase law has defined case nor

statute evidence; and cireumstantial both direct He confinement." on his limits "extended effect, and sufficiency, probative judge the and ordi plain that because maintains evidence; any draw and to weight of is "ex "extended" word nary meaning of the and conclusions inferences reasonable "outer limits" means "extended panded," or factual disturb its We cannot the evidence. re unambiguously limits," here phrase record, by the supported findings they if are he remain directive to the ISP fers Stark, 691 People v. they here. See are as and the Metropolitan Area Denver within (Colo.1984); Gagnon, 997 People v. P.2d 334 of Colorado. state (Colo.App.1999). P.2d found, idea that "[The court The trial Williams, bracelet, ankle eut off his would [defendant] court disa of this a division (Colo.App.2001), box, report to his fail to disconnect of characterization an identical greed with officer, continued yet all the while his confine limits on phrase "extended the any make ... doesn't house in the remain the issue declining to reach Although ment." - at all." sense the division phrase, of the the definition of constituted curfew directive that defendant that a concluded established The evidence defendant's in on that box limitation transmission range extended of the an of was out Lucero, P.2d during 654 People v. curfew periods In confinement. brief residence for his that (Colo.1982), court held supreme the trans- the 14 such that September 835 on hours temporarily released proximity to his who not record an offender could mission box day pass facility aon a correctional dis- residence; box was transmission the the 15; defendant September custody, and the of as connected in constructive remained confine limits of re- the officer as merely extended pass report to his failed thereafter; 15 and September granted facility to those quired on from the ment decisions, it is on these residence light In of at the pass. arrived the when officers fled, limits on his the offi- "extended and phrase that defendant September clear geo refers had 17-27.5-104 ankle bracelet that confinement" discovered cers the offend placed on limits time graphic and cut off. by incarceration imposed beyond those er in- the reasonable supports evidence This facility. a correctional curfew violated defendant that ference on his confine- limits "extended thus the and correctly convicted here trial court The Williams, supra, so we ment," v. People see the re- of his violation on based defendant findings of trial court's may disturb not by the imposed limits geographical duced fact. parole officer directive, his which curfew he and which to him explained read C. and under- Thus, knew of signed. phrase if the argues that also on him imposed limit geographical stood does confinement" his limits on "extended curfew. by the 3382 not mean the Metropolitan Area, Denver Hickman, v. supro; Board Education v. of

then the statute process violates Wilder, due because supra. may We sustain a facial it is unconstitutionally vague. vagueness challenge only where the enact- impermissibly ment vague in all of its presumed Statutes are to be con applications. People Baer, See v. supra. stitutional, party and the challenging a stat ute bears the burden establishing uncon person A engages who in conduct stitutionality beyond a reasonable doubt. clearly that is proscribed by the statute can Janousek, People (Colo. See v. 871 P.2d 1189 not complain vagueness of the of the law as 1994). reviewing challenge When a based on applied to the conduct of Therefore, others. vagueness, the court must construe the stat in evaluating statute, a court should focus uphold ute to its constitutionality whenever a complainant's on the analyz conduct before practical reasonable and may construction be ing hypothetical other applications of the law. applied. People Longoria, v. words, In other one to whom a clearly statute (Colo.1993); see People Hickman, also applies may not successfully challenge it for (Colo.1999) (statute 988 P.2d 628 invalidated vagueness. See Board Education v. Wil vagueness if no limiting construction con der, supra; Baer, see People also supra. legislature's sistent with intent preserve will its constitutionality). process due requirement that a A law process violates due clearly statute and is prohibited define the conduct vagueness void for prohibitions where its is not simply are relaxed because the statute clearly not Vague defined. delegates laws offend due certain decisions agency. to an process they because give fail to situation, fair such a notice of the responsibility promul prohibited the conduct gate and do supply not clear and unambiguous standards is on adequate prevent standards to arbitrary ageney. Holmes, See People v. supra. discriminatory enforcement. Baer, Here, § (Colo.1999); specifies P.2d 1225 17-27.5-104 People w. Holmes, standard of conduct. See People v. Hick man, supra. We already concluded, have When a statute challenged as with existing precedent support, as vagueness, void for the essential inquiry is phrase "extended limits on his confinement" whether the statute describes the forbidden beyond refers to limits imposed those on an conduct in terms vague so persons offender who is incarcerated in a correctional common intelligence readily cannot under facility, a construction comports that with stand meaning its application. and See Peo process. constitutional due ple Longoria, v. supra; Watso v. Colorado Department Services, Social 17-27.5-102, Section C.R.S.2001, empowers of (Colo.1992). However, statutory Department (DOC) of standards Corrections to es- frequently contain broad terms ensure tablish enforce standards and criteria for their applicability to ISPs, varied administration of circumstances. and the pro- statute Generality equivalent is not the vagueness; of vides basic guidelines minimum in that re- gard. An neither given offender is scientific nor detailed notice of mathematical certainty required. provision A is not extended unconstitu limits of the ISP and informed tionally vague simply of potential consequences because it could have of violation greater drafted with precision. when he or she is See released into an ISP. Wilder, Board Education v. 960 P.2d 695 of Defendant has not beyond demonstrated a (Colo.1998); Watso v. Colorado Department reasonable doubt that the DOC's ISP di- Services, Social supra. of rectives or conditions of are not clear A law is unconstitutionally vague and unambiguous, and thus he has not car- only if specifies it no standard of conduct at ried his proof. burden of People v. all, and requires not if it person Holmes, to conform supro (agency may promulgate his or her conduct imprecise, to an but com clear and unambiguous if standards statute prehensible normative standard. See People delegates such authority). insists that Defendant parolees. situated "extended phrase Further, although the or crite- no standards provides § gen- 17-27.5-106 sufficiently his confinement" limits on mandatory parol- determining which any ISP ria for extend to arguably could that it eral subject and which to an ISP be ees should of was convicted limit, here defendant regular parole. We placed on should be limits. geographical of for violations § by 17- contemplated disagree. limits" "extended a minimum at clearly pertain 27.5-104 Williams, supra, another divi- People v. by § limits, 17- as evidenced geographical argu- rejected identical this court sion of directives, each DOC's ISP and the 27.5-102 § in- that 17-27.5-106 concluded ment and signa- acknowledged by which of criteria set corporates the standards required to con- thus was Defendant ture. C.R.S.2001, 17-27.5-102(8), for the §in forth in the ISP conduct of the standard form to selecting pa- when to consider parole board geo- specified confining him to directives Despite de- an ISP. placement for rolees limits. graphical depart from urging, we decline fendant's may not successful- Accordingly, defendant equal protec- no and hence find decision that vagueness be- § 17-27.5-104 ly challenge tion violation. to his viola- clearly applies the statute cause limits of the ISP. geographical tion of the Wilder, supra. Education Board of the trial that next contends Defendant IV. it re- was improperly concluded court application argues that also pur- a consecutive sentence quired impose sepa- constitutional violated 17-27.5-104 C.R.S.2001, 18-8-209, and an ad- §to suant dou- protection, and equal powers, ration of parole. We period of ditional per- not are principles. We jeopardy ble suaded. A.

A. here, pro § 18-8-209 As relevant following imposed "[alny defendant's sentence to address vides that decline 18-8-208, [§ under the ree- an offense claim because powers conviction separation of consecutively and not in the run C.R.S.2001] first raised shall it was not ord reveals Cagle, 751P.2d 614 any which concurrently trial court. See with sentence time of the con (constitutional serving raised at the (Colo.1988) not was issues offender section]." prohibited [that duct when not be considered will in trial court appeal). Defen on the first time raised for statutorily quoted incorrectly Mandatory parole is sentence relies on a dant that attaches component court, sentence prescribed trial in the to dismiss his motion im involving any a due clearly part automatically sentence sentence but that 18-1-105(1)(a)(V), $ C.R.S. See argument. prisonment. process (Colo. Johnson, 183P.3d 309 2001; v. People raise did not defendant Similarly, because 2000) element a distinct (mandatory parole is court, in the trial claim jeopardy his double terms of from the sentencing, separate of People appeal. it See on not address we do imposed length sentence of imprisonment or supra. Cagle, v. court); Craig People, v. trial the (Colo.1999). B. one mandatory parole is Thus, because escape his argues that Defendant sentence, was still defendant a component of protec equal right to his violated conviction of his es- the time at serving his sentence no rational there is the laws because tion of im- properly therefore court cape. The trial mandatory pa determining which for basis pur- sentence mandatory consecutive and, such, posed a as subject an ISP will be rolees §to 18-8-209. suant similarly severely than other punished more B. Accordingly, the division in required effect that portion the initial of the defendant's In argument, a related argues second or consecutive sentence to incarcera- that the trial court improperly imposed an tion be served concurrently with the first period additional mandatory parole. of sentence until period the mandatory pa- of role associated with that first sentence was granted When defendant mandatory was extinguished along with possi- the attendant parole on his sentence for his initial convie- bility of reincareeration. tion, the balance of his sentence to incarcera- However, for the discharged. tion was reasons § articulated be- 18-1- - - low, 105(1)(a)(V)(D), we decline to follow reasoning the C.R.8.2001. Defendant vio- - lated analysis the terms of mandatory his parole, reject of Luther it conclusion revoked, reached there. and he was reincarcerated for the balance of the time remaining on his 1998, Assembly General mandatory parole pursuant 17-22.5-403, §to adopted mandatory parole scheme for con C.R.8.2001. victed felons. Colorado case recognizes law felony Defendant's escape conviction re- that under prison this scheme the term and quired that his sentence for that offense run parole separate term are components of the consecutively prior to his sentences. sentence, namely, a period determinate of 18-8-208; § People Amdrews, v. 871 P.2d incarceration predetermined and a period of (Colo.1994). parole. See People, Martin v. supra. 18-1-105(1)(a)(V)(E), Section C.R.9.2001, parolee A conditionally provides: released custody, actual but in contemplation If an offender is consecutively sentenced law, of the still in legal custody and con for the commission of felony two or more structively prisoner of the state. The revo pursuant offenses [§ 18-1- parole cation of the results 105(1)(a)(V)(A) reinearcer- ], the mandatory period of parolee. ation of Thus, reincarceration parole for such offender shall be the man- parole for a violation is incarceration on an datory period established for the already imposed sentence, and a defendant highest felony class of which such offender convicted of a felony committed while on has been convicted. parole may receive a sentence that runs con § contends 18-1- - - - secutively any may reinearceration that be 105(1)(a)(V)(E) applies any defendant con- imposed if the defendant's is revoked. victed of two felonies and that he had been People Lucero, Ree (Colo. 772 P.2d 58 convicted of two felonies when convicted of 1989). escape. He argues therefore that his sen- tence must run concurrently with Here, we examining are a sub period mandatory parole imposed on section that was added to 18-1-105 his initial conviction. We persuaded. are not subsequent Lucero, supra. We Another division of this court addressed presume that, must when the General As

precisely question this in People Luther, sembly legislates in a certain law, area of it (cert. 43 P.3d 660 (Colo.App.2001) granted does so with judicial awareness of prece 18, 2002). Mar. That that, division concluded dent in that area. See Griego v. People, 19 because the period (Colo.2001); mandatory parole P.3d 1 Cooper v. People 973 on the first conviction includes the time during presume We also which a person is following reincarcerated an amendment change does not existing law revocation of parole, an offender could further than expressly is declared or neces not be reincarcerated for the sarily balance of implied. the People See in Interest of revoked mandatory parole for J.M., the first con- E.E.A. v. 854 P.2d (Colo.App. 1346 viction before commencing 1992). a consecutive sen- presume therefore legis that the tence that included period another of manda- lature Lucero, was aware of People v. supra, tory parole light § in 18-1-105(1)(a)(V)(E). of § when it 18-1-105(1)(a)(V)(E). added

885 conviction has parole from the first 18-1-105(1)(a)(V)(E) not od of does Yet, § parole the revocation. extinguished mandatory is parole how expressly address reincarcerated who is an offender imposed on Further, interpretation in Luther re- the mandatory escape from for conviction after convicted of a subse- a felon who is wards law changing the Therefore, avoid parole. mandatory felony committed while on quent neces declared or expressly than is further commuting the reincar- by effectively parole the statute apply violation, we decline sarily implied, which penalty for a ceration result, com for the is sentenced an offender when an intended view is not our mandatory serving felony while of a mission reincarcera- interpretation robs the Luther already imposed sen part of an parole as of its deter- following parole a violation tion felony. prior for a tence effect, successfully important tool an rent community into the reintegrating offenders required, "at Mandatory parole is public safety, consistently needs of with the post-incarceration the insure part, least Luther, view, with in our conflicts thus not of who were offenders supervision of v. parole. purposes of the release accept, parole fered, not to or chose 774 McCullough, 6 P.3d sen of their entire completion prior to the that the in Luther concluded The division People, v. Martin to incarceration." tence there, here, similar were cireumstances J., dissenting). (Coats, at 864 27 P.8d supra, People, in Dawson to the cireumstances not even mandatory parole does of The term (Colo.2001), dealt with which P.3d 218 incarceration the sentence of until commence given the defen- adequacy of advisement §§ discharged. 17-22.5- fully has been concerning mandatory parole. We dis- dant C.R.S.2001; 18-1-105(1)(a)(V)(B), 408(7), - - that conclusion. agree with 322, § 18-1- ch. Laws Sess. Colo. initially Dawson, In the defendant Barth, 105(1)(a)(V)(D) 1982-83; People v. at for a community corrections sentenced (Colo.App.1999). years, escaped, and was resen- eight of term together years in the DOC cight tenced to be difference There is a distinct Having mandatory parole. years of five with period and the mandatory parole tween the attempted escape, he pleaded guilty to also following violation of reincarceration period of a consecutive sentence was sentenced Indeed, a parole. when of the conditions of mandatory years of years plus three three following a reincarcerated parolee is of was not advised The defendant parole. violation, to be parole is considered his or her respect to the mandatory parole with 17-2108, See, § eg., C.R.S. extinguished. to the advised as and was not conviction (Colo. Suthers, 2001; Rather v. con- mandatory parole on the first length Williams, also 1999); supra; see People v. However, advised defendant was viction. 662; Luther, P.3d at supra, 43 People v. peri- by a followed would be that a sentence ed.1999) (Tth Dictionary 1321 Black's Law (two majority three-justice A parole. od of Thus, parole is onee (defining "revocation". con- participating) two not dissenting and no revoked, The offender it to exist. ceases deficient, were advisements that both cluded parole, but period of serving a longer is harmless be- were that the errors but held period of confine serving penalty is instead advised that had been the defendant cause Martin parole violation. See for the ment twenty- totaling sentences he faced combined supra. People, years only eleven received years and four mandatory parole. It is years of plus three Consequently, when a defendant's § application 18-1- that the revoked, apparent not that defendant mandatory parole is 105(1)(a)(V)(E) in Dawson. was an issue mandatory parole, but serving longer no however, footnote, court indicated As incarceration. period of rather another § violate 18-1- not did these sentences such, sentence imposition of a consecutive though the 105(1)(a)(V)(E), "[elven because mandatory parole for period of plus another consecutive, period were 18-1- sentences not violate eseape does - - - - People, Dawson concurrent." mandatory peri- parole 105(1)(a)(V)(E) because 386

supra, 30 P.8d at 217 n. 8. Judge MARQUEZ Dawson is distin- concurring part in because, guishable here, dissenting in part. unlike there the de- serving fendant had not commenced the While I concur with the remainder of the mandatory parole associated with the first majority opinion, for the reasons set forth in revoked, thereby sentence which was then Luther, People v. 48 (Colo.App. discharging it. 2001) (cert. 18, 2002), granted respect Mar. I fully Thus, part dissent from V.B. I would therefore We find no error in defendant's remand for correction of the mittimus including period mandatory sentence periods reflect that are concur for his conviction. rent. VI.

Finally, defendant contends that he right

was denied his prior allocution

sentencing because the court explicit did not

ly opportunity afford him the make behalf, statement on required by his own as Colorado, PEOPLE of the State of 16-11-1025), C.R.S.2001, and P. Crim. Plaintiff-Appellee,

32(b). agree. To afford a defendant opportunity Eugene CLOUSE, Steven Defendant behalf, make a statement on his or her -Appellant. trial court must address the defendant in a No. 01CA0725. manner that leaves no doubt that the defen- personally dant speak invited to before Appeals, Colorado Court of sentencing. People Marquantte, II. Div. P.2d (Colo.App.1995). 15,

Aug. 2002. Here, immediately after witness tes Rehearing 9, Denied Jan. 2003. timony urging that impose court July Certiorari Denied 2003. sentence, maximum the court asked whether "[alny response there was from the defen

dant." briefly Defense responded. counsel record,

Based on this we cannot conclude question the court's left no doubt that personally speak, invited to merely

rather than suggested that defense respond

counsel could testimony to the if he Thus,

chose to do so. the sentence cannot

stand, and the matter must be remanded for

resentencing. People Garcia,

Accordingly, judgment affirmed, vacated,

sentence is and the case is remand-

ed resentencing.

Judge NIETO concurs.

Judge MARQUEZ part concurs part.

dissents

Case Details

Case Name: People v. Perea

Court Name: Colorado Court of Appeals

Date Published: Aug 1, 2002

Citation: 74 P.3d 326

Docket Number: 00CA1473

Court Abbreviation: Colo. Ct. App.