People v. Rogers

argu- Accordingly, judgment the Denver protection equal (rejecting similar Juvenile Court affirmed. jury tri- by juveniles denied raised ments it, put als). Supreme Court has theAs mandate elimi- does not constitution

“[T]he in the treatment differences

nation of all Martin, 253, 467 U.S.

juveniles.” Schall 2403, 2409, 81 L.Ed.2d 104 S.Ct. juvenile acceptance of

(1984). “[0]ur jus- from the adult

courts distinct juvenile offend- system assumes

tice treated differ- constitutionally may be ers Colorado, of the PEOPLE State Baird, 443 Bellotti v. ently from adults.” Plaintiff-Appellant, 99 S.Ct. U.S. (1979). L.Ed.2d 797 Lynn and the District David ROGERS legislature could ra- also think We Twenty-Sec within for the Court juveniles ac- deny jury trials to tionally ond Judicial District of the State offenses where “com- of less serious cused Honorable Robert Colorado and the being sought” while mitment ... is not Wilson, thereof, Judge Defendants-Ap juveniles providing juries to other —even pellees. juveniles face the though classes of both dispositional potential alternatives. No. 86SA156. J.T., upheld against In 651 P.2d at we Colorado, Supreme Court of challenge equal protection the denial En Banc. hearings juve- to non-detained preliminary niles accused of less serious offenses even Sept. 1987. though juveniles more serious accused of Rehearing Denied Oct. preliminary entitled to hear- offenses were ings. juvenile that a ac- We there noted

cused of a more serious offense in a delin-

quency likely petition is more to incur potential dispositional

stricter alternatives ie., delinquency com-

available cases — department mitment to the of institutions. 413;

J.T., 8B 651 P.2d at also stated: We

Distinguishing juveniles

lesser crimes is rational because it fur- governmental purposes

thers the valid

simplicity juvenile procedure ... and

maintaining separate juvenile sys- addition,

tem.... it is rational

provide set- a less formal adversarial juvenile sus-

ting for certain classes of goal

pects, recognizing that the provide juveniles

juvenile system is to guidance

“the ... that will best care and the interests of

serve welfare [their]

society.” (citations omitted).

J.T., 651 P.2d at applicable a similar rationale is believe

here. Johnson,

Dean J. Atty., Dist. Karen S. Winchester, Deputy Cortez, Atty., Dist. for plaintiff-appellant. Vela, Defender,

David F. Douglas Public Barnes, D. Deputy Defender, Public Den- ver, for defendants-appellees. ERICKSON, Justice. appeal

This is an from district court dismissing against order felony charges defendant, Rogers, possession, David cultivation, conspiracy to cultivate mar- ijuana in violation of sections 18-18- 106(4)(b), 18-18-106(8)(a)(I), 18-2-201, 8B (1986). During C.R.S. a search of the de- pursuant fendant’s residence to a search warrant, police marijuana, found mari- juana plants, tools for its cultivation and consumption, protect- three talons prey. ed bird of The defendant was charged by information in district court drug charges, with the com- plaint court with talons, raptor a misdemeanor in violation of section C.R.S. Follow- ing entry guilty plea the defendant’s of a charge, district misdemeanor ruled that the Colorado crimi- statute, 18-1-408(2), nal 8B section (1986), required join felony drug charges with the mis- complaint, demeanor and that the defend- plea ant’s misdemeanor guilty subsequent foreclosed reverse felony information. We remand with directions.

I. 6, 1986, September deputies On County Montezuma Sheriff’s office pursu- searched the defendant’s residence During ant to a valid search warrant. search, quantity of bound over to the police County discovered Montezuma Dis- home, trict Court on October mari- marijuana in the defendant’s corn rows juana plants growing between On October Reid served the implements used for the garden, his “penalty with a assessment no- cultivation, consumption of production, and charging tice” him posses- with unlawful also found three marijuana. raptor sion of talons in violation of section claws, were later identi- large which bird 33-6-109, (1984). 14 C.R.S. A “penalty as- talons. One of the talons raptor1 fied as specialized sessment notice” is a summons room, living in the defendant’s was found complaint and be issued alligator clip containing a mari- had an officer of the Division of Wildlife for viola- upper part juana cigarette attached to code, tions of the wildlife sections 33-1-101 the talon. The other two claws were 33-6-130, (1984 Supp.), C.R.S. 1986& in in a dresser drawer the mas- discovered specify alleged and must violation and the defendant’s home. ter bedroom of 33-6-104(2), fine assessed. See 14 C.R.S. § (1986 Supp.). If the pays offender the fine deputies Because the were not sure days, pay- to the Division within fifteen possession of the talons was a whether acknowledgment ment constitutes an crime, so, steps and if what then should be guilt specified of the violation in the notice. taken, they contacted the Montezuma pay If the offender Id. does not the fine County Attorney’s District office and ad- days, issuing within fifteen officer attorney they vised the district inad- penalty must docket the assessment notice vertently large had discovered three bird county require with the court to the offend- in the home. The claws defendant’s dis- appear charges er to and answer the set attorney police trict told the to contact the forth the notice. Id. (Division) Colorado Division of Wildlife request the Division to send one of its days pen- Several before Reid issued the inspect officers to the defendant’s home to defendant, alty assessment notice to the he the claws. The called the Division Strauss, deputy met with Steve a district Reid, discovery and related their to Michael attorney Twenty-Second for the Judicial manager. district a wildlife Reid went to District, comprised which is of Montezuma home, claws, the defendant’s examined the 13-5-123, and Delores Counties. See § raptor and determined that were tal- (1973). C.R.S. Reid and Strauss discussed ons, possession of which a misdemeanor attorney’s whether the district office punishable 33-6-109, by a fine. See prosecute § drug should the wildlife and (1984). deputies gave C.R.S. The sheriff’s action, single in a and Strauss con- Reid the two talons found in the bedroom cluded that Reid should “handle it like [he] alligator and retained the talon with the normally.” would Reid thereafter issued clip marijuana cigarette attached. notice, penalty assessment which was county made returnable court on Decem- September 16, 1985, complaint On a was ber County charging filed Montezuma Court possession eight defendant with pay The defendant did not the fine as marijuana, notice, more ounces of a class-five felo- specified penalty in the assessment ny 18-18-106(4)(b), in violation of section and Reid docketed the case with the Mon- (1986), 8B marijuana, C.R.S. cultivation of a County tezuma Court accordance with felony 33-6-104(2), (1986 class-four in violation of section 18- Supp.). section C.R.S. 18-106(8)(a)(I), (1986), 8B C.R.S. and con- ap- On December the defendant spiracy to marijuana, cultivate county pleaded class-five peared. in the court and 18-2-201, in violation of section 8B guilty raptor to unlawful tal- (1986). 33-6-109, The defendant did not re- ons in violation of section quest (1984). preliminary hearing, accepted plea and was C.R.S. The court raptor 102(37), (1984). 1. A Raptors bird that is a member of the 14 C.R.S. include fal- cons, hawks, owls, Strigiforme. eagles. orders Falconiforme or 33-1- § Id. and fined the $548. defendant Strauss from the same criminal present episode. court at that Any time. not offense thus separate count cannot thereafter be the 4, 1985, the On December defendant en- prosecution. basis of a subsequent not-guilty plea tered a district court on 18-1-408(2), (1986).2 8B C.R.S. § charges. felony drug On March trial, days five defense coun- before contends that the felony charges, sel moved dismiss all did comply not with Crim.P. join alleging that the failure to the wildlife 12(b)(3) and waived his drug charges proceeding in one violat- claim when he failed raise the issue statute, ed the criminal section 18- twenty days within arraignment of his on 1-408(2), 8B C.R.S. The district felony charges. 12(b)(2), See Crim.P. granted the motion and dismissed the (3).3 disagree. appeal information. This followed. See Since the defendant’s motion did not (1986); 8A C.R.S. C.A.R. raise a defense “in defect 4(b)(2). prosecution institution the or in the ... information,” it is not barred under Crim.P. II. 12. It is well-established that infor-. “[a]n compulsory join- The Colorado criminal mation is sufficient if it advises the defend- provides: der statute ant of the nature the charges against If the several offenses are known to him so that he can adequately defend him- attorney the district at the time of com- protected self prosecu- and be from further mencing prosecution the and were com- tion for the same offense.” v. district, judicial mitted within his all such Hunter, 570, (Colo.1983); 666 P.2d 573 see upon attorney which the district People Moore, 481, 484, also v. 200 Colo. proceed prosecuted 726, elects to must be by (1980); 615 P.2d 728 Digiallonardo v. separate single prosecution counts in if People, 1109, 175 Colo. 488 P.2d they are based on or the act series 1112 The defendant is correct in his 8(a) imposes duty 2. may Crim.P. an grant identical but the court for cause shown prosecutor: jurisdiction relief from the waiver. Lack of or the failure of the indictment or informa- prose- If several offenses are the known to charge by tion to an offense shall be noticed cuting attorney commencing at time the during proceeding. the time the prosecution the and were committed within challenging When a motion the constitutional- district, judicial upon his all such offenses ity charge upon of the statute which the is prosecuting attorney pro- which the elects to asserting jurisdiction is based or lack made prosecuted by ceed must be counts in trial, after the commencement of the the single if are based the ruling court shall reserve its on that motion arising same act or series of acts from the the until the conclusion of trial. episode. Any same criminal such offense not joined by separate thus count there- cannot twenty The shall be made motion within subsequent prosecution. after be the basis of a days following arraignment. comprising The test for conduct "the same crim- response prosecution’s inal In to the claim that the under the stat- 12, by ute is motion is barred Rule the applied join- identical to the defendant’s standard 8(a). Court, joinder juris- der is under Crim.P. defendant asserts that the defect Corr v. District 668, (Colo.1983); subject 661 P.2d Jeffrey 673 dictional and that the defense not v. District Court, 631, (Colo.1981). requirements 626 P.2d the of Rule 12. See v. Coun 639 Ruth 459, 563 Court, (1977) ty Colo.App. 38 provides: 12 Crim.P. (the compulsory operates as a jurisdictional prosecution), bar to rev’d on other objections Defenses and based on defects in Ruth, grounds, County Court Colo. v. 194 the institution of the or in the (1977); 575 P.2d 1 Bustamante v. District complaint, indictment or information or cf. Court, (1958) (stat- Colo. P.2d complaint, 138 329 1013 summons and other that it than jurisdiction utes to show of limitation in criminal cases create a court or to fails the offense, jurisdictional prosecution); only bar Fed.R. be raised advisory (jurisdic- motion. shall all Crim.P. 12 committee’s note motion include such objections jeopardy, defenses and include former then available to the tional defenses former limitations, present any immunity, acquittal, defendant. Failure to such de- statute of it, objection offense). fense or constitutes a waiver of information to state an failure 916 (Colo.1983) (quoting Jeffrey 671 joinder de- P.2d compulsory assertion Court, (Colo. P.2d 637 District when not available was fense Court, 1981)); County Ruth v. instituted, see also since the drug prosecution (1979); People The Colo. filed. not been charge had wildlife (1974).5 Cooke, on a defect not based therefore motion was v. District we identified Jeffrey prosecution. Ac- in the institution proven five elements that must be before prevent the 12 did not cordingly, Crim.P. criminal subsequent prosecution of more moving for dismissal defendant (1) the against the defendant is barred: arraignment. his days after twenty than with several offenses defendant a defendant that when recently held district; (2) defend- judicial in the same compulsory rights under his asserts prosecuted in one action on ant is beginning “prior joinder statute offenses; (3) or more but not all of the one trial,” has not waived his he second prosecutor knows of the several of- Bossert, 722 P.2d People v. rights. See prose- fenses at the commencement Bossert, (Colo.1986).4 In we 998, 1011-12 cution; (4) subjected to a the offender was compulsory goals of explained that the several of- single prosecution; and protect the defendant statute are to or series fenses are on the same act pre- trial and to oppressive second from an epi- from the same con- legal resources. We judicial and serve 637; P.2d at see also Jeffrey, sode. neither of these cluded Corr, P.2d at 671. allowing served would be case, In this the record is clear that the issue of raise after against de- drug charges and wildlife Where, here, as the de- trial. his second district, judicial fendant arose the same the second the issue before fendant raises prosecuted on the that the defendant was begins, policies underlying the trial separate proceeding, in a wildlife joinder apply rule still and the compulsory of the several prosecution knew that does not waive the defense. mis- commencement of the offenses at the defend- prosecution, and that the demeanor III. single prosecution subjected to a ant was purposes compulsory joinder The of However, charge.6 the trial on the wildlife protect the accused criminal cases are “to it, erred, the record before based on sequential of against oppressive effect drug wildlife finding that and occurring

prosecutions based on conduct epi- the same criminal charges arose from during episode and to the same criminal sode. judicial legal resources that conserve and P.2d at we ruled duplicative Jeffrey, In otherwise would be wasted in Court, charges first-degree criminal of proceedings.” 661 that Corr v. District Bossert, disposition that of compulso- We have held the notice. 4. we also decided that the subsequent charges ry joinder not bar the impose jurisdiction- criminal does statute does not a charges arising from the prosecution. of other al bar to the second 722 P.2d episode where the district attor- same ney 1012. prose- participate in the decision to does not charges. People Wright, prior proscription cute the See (the joinder compulsory Jeop- 742 P.2d 316 statute ardy broader than that of the Double of state statutory counterpart, sec- statute does not bar the Clause and its from, (1986). Jeffrey v. but arose out of tion 8B C.R.S. See offenses that are different However, as, municipal viola- District 676 P.2d a at 639. the same criminal concepts guilty pleaded similar two are related and based on which the defendant tion to Freeman, court); policy municipal People, concerns. See Williamsen v. (Colo.1987) (where Colo. a summons and complaint charging a traffic infraction is made referee, attorney is joinder be returnable to a the district 6. We do not decide whether would proceeding, precluded participating required paid from in the in this case if the defendant had acquittal the traffic specified penalty and the defendant’s of the fine in the assessment no- subsequent prosecution charge does not bar a tice and the wildlife officer had not consulted influence). issuing driving attorney’s prior under the with the district office

9X7 trespass conspiracy contemplates joinder to commit first-de- standard suffi- gree trespass required by were ciently broad to include com- offenses joined compulsory mitted within the same unit time at of charges third-degree misdemeanor of location, the same irrespective where each offense was committed assault whether these are otherwise re- by the virtually defendant at same time lated each other by some underlying place plan and in furtherance of a unity purpose or scheme. infant remove an from the home of a co- added.) (Emphasis Relying Corr, conspirator’s girlfriend.7 former held: We defendant contends the drug and wild- For under [section life required were to be 18-1-408(2)J, “a series acts under the compulsory joinder statute be- the same criminal would they cause allegedly acts, separate involved physical include are commit- unrelated, albeit that occurred on the de- simultaneously ted in close se- property fendant’s period over the same quence, same or close- that occur time. The defendant misconstrues our ly places, part related that form opinion in Corr. We have never held that Here a schematic whole.... the record place nearness time and between several petitioner Ryder, establishes that the offenses, more, requires without join- their driving while over to Rice’s trailer in 18-1-408(2). der merely under section Loveland, planned agreed to the as- pointed out that under the circumstances sault of Rice and the removal particular case Upon child. their arrival at the trailer include offenses committed within the

they engaged pursuance in overt acts in same unit of illegal time at the same agreement.... Although of their location. act, repeatedly We have each offense involved a stated that closer sequentially acts themselves occurred in connection between two or more offenses virtually a narrow time and in frame the must be established before are place. Certainly, these offense are deemed to arise from “the same criminal sufficiently require join- related to their episode.” Freeman, People v. See 18-1-408(2)]_ der under (1978) (the [section compul- sory designed prevent rule to the (emphasis added). Id. 626 P.2d at 639-40 bringing prosecu- state Corr, 673-74, successive In 661 P.2d at we clarified conduct)', tions the same criminal Jeffrey and stated: for People v. Tulipane, 192 Colo. We did not hold in Jeffrey that nearness (1977) (the purpose of the time, proximity place, unity of and of prevent to bringing statute is the indispensable scheme prerequisites are upon successive essen- epi- under the “same criminal conduct); tially the same Walk sode” salutary standard.... Given the er, (a P.2d joinder, 189 Colo. the coexistence of obligated trial court is not components one two to sever two these might assault, independently sufficient, the be under counts of where clear- evidence appropriate circumstances, permit ly the indicated that the two counts arose out joinder of multiple offenses under the sequence same continuous standard_ episode” “same criminal events and were based two acts con- Cooke, together)', People nected Whatever be the outer limits of 18-1-408(2) ..., (1974) (the section we are 525 P.2d 426 satisfied protects against the term “same criminal harassment of the defend- Jeffrey acquainted assaulting 7. The removing defendant in Ryder was with him and infant. Gary Ryder, friend now girl- first, outside, who his learned that former entered assaulted him in a home chased Rice and allegedly an infant he fathered were nearby yard. Jeffrey then man, residing Ry- with another Clint Rice. Ryder’s entered the home and assaulted former Jeffrey, along compan- der and with two other girlfriend taking baby while from her. ions, purpose drove Rice’s house for multiple prosecutions p.m., petitioner officer. At 11:28 by means of alleg- ant act). edly the same returned to the intersection and struck Officer Olivieri with motorcy- his in Bratcher v. District Our decision incident, petition- cle. As a result of this (1978), 195 Colo. charged er was in the district court with Brutcher, petitioner illustrative. assaulting police Finally, officer. sev- through high intersection at a drove later, petitioner ignored eral minutes Of- ignoring a traffic officer’s speed, rate of intersection, ficer pull Jackson’s instructions to his stop. As he left order to weaving motorcycle petitioner began between two over to the side of the road later, Ten minutes lanes of traffic. and instead commenced a two-mile chase petitioner through returned to the intersection and city streets. This final action the traffic officer from behind. gave struck county eluding rise to the court arrived, petitioner and the Other officers charge. high-speed was arrested after a chase. time, closely While related in these charged county petitioner court incidents were and distinct. lane, failing single in a drive dis- suggested, has not nor can Defendant officer, regarding police attempting perceive any we “single objec- officer, police to elude a might tive” which link con- defendant’s eluding district court with vehicular duct. assaulting petitioner officer. The 581-82, (emphasis Id. at 580 P.2d at 398

pleaded guilty county charges, to the court added). and moved to dismiss the district court Offenses based on acts or series of charges ground charges on the that all the “arising epi from the same criminal episode arose from the same criminal sode” thus include offenses either required joined were to be under the com- from the same conduct of the defendant or pulsory joinder statute. The district court eluding charge dismissed the offenses connected such a manner that but denied charge. the motion to dismiss the assault of the offenses will involve original proceeding, In an we held that the substantially proof. Although interrelated require statute did not solely need not be based that the assault with the facts, Corr, see 661 P.2d at 674 n. charges: “a critical characteristic” of same criminal offenses, [S]eparate part particularly offenses are in cases in episode,” offenders, “same volving as those words unrelated offenses or “is question, are used in the statute here proof in necessarily fact that of one only where involve the same con- proof volves II the others.” Standards duct. Justice, for Criminal Joinder and Severance (1979); commentary 13-1.2 at 13-10 see Pickett, 178, 194 571 also v. Employing test, this we are unable to (trial (1977) properly joined court conclude charge that the assault filed felony menancing the district count with unrelated court arose from the same episode illegal charges weapon that of of an was the basis for any of the brought carrying weapon, counts county the a concealed where court. the knife from the defendant was seized charges); relevant v. to all Stackhouse Mu engaged

Petitioner in this case in three 243, Cal.App.3d 133 nicipal 63 Cal. criminal transactions. At 11:18 (1976) (where p.m., ignored Rptr. police 694 discovered he Officer Olivieri's di- marijuana during stop rections to so a search of the defend coming that traffic opposite from the ant's for a might pro- direction car after his arrest traffic of through fense, ceed marijuana charges the intersection. the and traffic This inci- apparently gave proof dent overlapping rise to those are not character and charges involving Carroll, joined); failure to drive and need not be State v. single disregarding (1981) (the a lane a 63 Haw. 627 P.2d 776 test

919 from the same of for whether conduct arises the offenses involve substantially is so episode proof. is whether conduct interrelated Crimes time, closely place, simultaneously and circum- that are committed related or in sequence, account of one close complete that a crimes that occur in stances the referring closely same or charge place, related cannot be related without and acts that Cook, v. part whole, form of State other); general- the of the schematic to the details ly (1966) proof. involve interrelated (joinder 212 of 47 N.J. A.2d charges proper where two murder Proof different is crimes interre part single a occur- each murder was proof lated if the of one crime a forms tending prove to one rence and evidence portion of proof substantial of the other. other); equally to prove crime tends Montes-Cardenas, See United States v. Boyd, P.2d State v. Or. (11th Cir.1984).8 746 F.2d Sepa required only (joinder is where the rate trials for crimes that do not a share charge explained can ade- facts each be substantial factual nexus do prejudice not only by drawing upon quately facts proof defendant. If of one of the crimes Parrish, State charge); 45 Or.App. other proof is not to relevant of the (1980) (two offenses arise other, then the two crimes do not involve if out the same criminal proof interrelated aas matter of law charges factually so are interrelated that part are not the “same criminal complete charge account of one cannot be as term is used in section 8B relating details of the oth- related without Since the defendant is not er). prejudiced, our approach is consistent with purpose the “evident of the to section elimi Basing application of the com by nate undue harassment successive tri pulsory joinder statute on determination als,” commentary Model Penal Code 1.07 interrelationship proofs of the between (1985), judicial and conserve re of the offenses properly several focuses avoiding proceed by duplicative sources inquiry degree trial court’s Corr, ings. 661 P.2d at 671. which the is judi defendant harassed and prose cial resources wasted successive case, In this the trial court did not deter- Carroll, cutions. See State 63 Haw. at proofs mine whether the of the wildlife and proof 627 P.2d at 780. Where the or drug charges are interrelated. Because one defense of necessarily involves charges felony and misdemeanor are proof charge, defense of another conduct, based on the same the extent not sequential prosecutions charges of the two burden to which the two will burden both the defendant and the state repetitive proof the defendant with is cru- repetitive presentation of evidence. of the motion to dis- cial the resolution However, proofs where the inadequate miss. Because the record interrelated, not prejudice are to the appeal, the issue this the dis- determine separate prosecutions caused information is reversed missal minimal. For district and the case is remanded joinder, requirement that offenses arise proceedings court for further consistent out of episode,” “the same criminal must opinion. with this interpreted to include the condition that C.J., the offenses be connected in such QUINN, a manner dissents. analogue constituting parts compulso- together

8. The federal to Colorado’s or a com- nected 8(a), ry in is found Fed.R.Crim.P. plan. mon or scheme provides: which together Two are "connected” if the crimes Two or more offenses proof por constitutes substantial of one crime sepa- the same or indictment information proof v. the other. United States tion Montes-Cardenas, rate count for each offense if the offenses (1984); 746 F.2d 776 see charged, whether or felonies misdemeanors Sweig, States v. 441 F.2d 114. 118-19 also United both, or are of the same or similar character denied, (2d Cir.), cert. 403 U.S. 91 S.Ct. or are based on the same act or transactions 29 L.Ed.2d 711 or on or two more acts or con- transactions plain language of section 18-1- dissenting: ther. The Justice, QUINN, Chief 408(2) compulsory joinder bar extends the majority rec- dissent. respectfully I the same act or offenses “based on to compulso- purposes ognizes that arising the same crimi- series of acts from 18-1-408(2), 8B of section ry joinder bar legislature to episode.” If the intended nal the accused (1986), protect “to are compulsory joinder bar to of- limit the sequential effect of against oppressive arising conduct” or fenses from “same occurring on conduct “involving substantially interre- offenses episode and to during criminal the same proof,” clearly it would have em- lated that legal resources judicial conserve ployed appropriate language expressive of duplicative would be wasted otherwise limiting concepts, especially since it those (quoting maj. op. at proceedings,” Jef utilized similar terms of limitation has Court, v. District frey other sections of the Colorado Criminal to read into (Colo.1981)), goes then but Code.1 require episode” the the “same P.2d 668 v. District Corr either arise multiple offenses that the ment court, (Colo.1983), opin- in a unanimous this defendant” conduct of the from “the same ion, interpreted compulsory ap- bar of the “prosecution so connected or be ply prosecution in district court for to a substantially interre offenses will involve marijuana possession of a concentrate re Maj. op. at 918. This proof.” lated during the defend- by police seized officers gratuitously majority quirement which traffic of- ant’s arrest for misdemeanor joinder bar de engrafts compulsory separately filed in coun- fenses which were purpose statutory of that very feats the the defendant ty pled court and to which protection. initially noted in that the guilty. We Corr termi- test for the “same I. 18-1-408(2) nology in section should be acknowledge, majority, I as does for the to the standard identical joinder is requirement 8(a), “since both the offenses under Crim.P. enough include certainly broad employ practically the rule statute and arising essentially the same offenses language.” 661 P.2d at 673. We identical conduct, Freeman, 196 Colo. e.g., v. that, compul- then observed Walker, (1978); People offenses out of “the sory joinder, (1975), and in 189 Colo. episode” would include same criminal offenses some situations different involv- simultaneously or crimes committed proof, ing substantially e.g., interrelated occurring in the sequence, crimes close 538, 549 P.2d People McCrary, 190 Colo. closely places, and place same or related (1976), proof whole, since such interrelated part of a schematic crimes that form might plan common well be indicative of a to add that the existence but hastened indispens- compul- components is not an protections or scheme. The all three bar, however, compulsory joinder. sory go prerequisite much fur- able See, 18-l-302(l)(a)(II), jurisdictions ity, prosecution e.g., of these 8B C.R.S. § subsequent prosecution in (prosecution provision Colorado different a bar to for violation of barred, prosecution results in conviction prosecution when the first of law than former prosecution prosecution acquittal is based and the second also based on different facts is or conduct, barred, for which de- prosecution unless offense when former results in ac- on same acquitted formerly or quittal subsequent prosecu- convicted or conviction and fendant was conduct, required requires proof of fact not offense is for tion unless offense in for- subsequently prosecuted prosecution subsequent he is mer and offense in for which prevent defining intended to requires proof each offense is each of fact not re- law substantially evil); quired by defining § different harm or 18—1— other and law each offense is (1986) (when 408(3), prevent substantially two or more intended to harm 8B C.R.S. different evil, and are are in one or second offense was not consummated evidence, 18-l-303(l)(a)(I), upon began); supported identical the court when former trial (1986) (if may require prosecu- application tion, of- of defendant 8B C.R.S. conduct constitutes an evidence, to elect jurisdiction conclusion of the fense within concurrent of Colorado at the tried). upon municipal- which issues shall be and United States or another state or the count

921 holding com- Perm.Supp., 661 P.2d at 673.2 the C.R.S.1963, 40-1-508. joinder 18-1-408(2) pulsory bar of section charge Because the of of a drug barred Corr’s for the of- marijuana concentrate involved an act fense, we stated: which occurred at practically the same recognize that, in analysis, We the last time and place in the same as the of- of the determination whether several speeding of driving fenses under the criminal arise from crimi- the same influence, marijuana the charge arose episode purposes compulso- nal for of the out of the “same episode” as ry joinder depends upon an exam- those other for purposes offenses of particular ination the facts of the case. statute. See, Court, e.g., Jeffrey v. District su Id. (footnote omitted). at

pra; Ruth County v. 198 Colo. Corr provides controlling precedent Whatever be for resolving case, this and the district 18-1-408(2) the outer limits of section court properly precedent relied on that in 8(a), and Crim. P. a matter we need not dismissing drug charges as here, decide we are satisfied that on based the same criminal as the term “same criminal contem misdemeanor of posses- offense unlawful plates sufficiently standard raptor sion of talons to which the defend- broad include committed ant previously had entered guilty plea within the same of at unit time the same location, irrespective court and of these fine whether assessed a of offenses are $548. otherwise related to each underlying unity pur

other some of pose or scheme. A narrower construc II. tion, view, in our would mean increased majority’s Under the construction of sec- expense distress and to the from accused 18-1-408(2), tion this case multiple prosecutions, as well as unnec conceivably could be three se- essary expenditure judicial, legal of quential prosecutions, though even all of- community duplicative pro resources on home, fenses occurred at the defendant’s ceedings no with demonstrable benefit virtually were committed at the same time See return. II ABA Standards for September on Justice, Criminal were based Joinder and Sever ance, acquired same fund of evidence 13-2.1, commentary Standard at searching (2d 1980). 13.12-13 ed. defendant’s home on It was to avoid consequences example, these of that date. For con- multiple untoward under such struction, initially the defendant could be Comment, prosecuted statute was See marijuana enacted. for cultivation of opinion point (charge felony menacing The Corr elaborated on this as P.2d 1078 of follows: May properly committed on salutary joinder, Given the of charge illegal possession weapon of compo- coexistence later, one two of these twenty-eight days committed both of- sufficient, might independently nents un- occurring fenses at same location and circumstances, appropriate permit der knife). involving approved also have joinder multiple offenses under the "same of crimes committed at different episode" previ- standard. We have constituting part places times and but of a held, ously example, closely for that offenses People McCrary, schematic whole. place qualify joinder. related in time and (1976) (charge Walker, See 189 Colo. kidnapping, based on abduction of waitress (1975) (charges degree of first assault Lakewood, Colorado, doughnut shop in officer, peace and assault on a both of which murder, upon killing victims, properly joined involved different be- waitress sometime later in an isolated field cause sequence "arose out the same continuous way Cheyenne, Wyoming, while on the closely of events related time and properly joined "arising as distance”). also, out the same So crimes committed dif- transaction" under former version of Crim.P. place ferent times but in the same and under 8(a)). properly similar circumstances have been joined. Pickett, People v. 194 Colo. 661 P.2d at 674. offense, since conspiracy commit Colorado, not arise from the

these did offenses PEOPLE of the State of Plaintiff-Appellant, the other offenses and “same conduct” as separate independent would involve plants marijuana seized proof PORTER, Larry Ray garden and the sever- from the defendant’s Defendant-Appellee. at implements al of cultivation recovered Upon completion home. the. defendant’s No. 86SA445. prosecution, the defendant could then Colorado, Supreme Court of prosecuted possession eight ounc- En Banc. marijuana, es or more of based on marijuana from the dresser recovered Sept. in the of the defendant’s

drawer bedroom

home, second would since this “same conduct” and could

not involve the proof

proceed independently admit- Finally, upon comple- trial.

ted the first prosecution,

tion of the second the defend- subjected to a pros-

ant could then be third rap-

ecution for the unlawful talons,

tor since this third

would involve conduct different from the former proof require substantially

would also not prosecutions.

interrelated with those majority's

The construction of section

18-1-408(2) thus invites the of a division episode pros- into units of be, be, easily

ecution that could and should prosecution.

consolidated into one bar, view, my fragile

not such a guarantee intended to be prosecutor may

that a avoid its limitations fragmenting simply a criminal prosecutions which,

into multiple reality,

proceed to nothing from and amount less integrated

than and unitary whole.

Such very a construction effectuates the

harm the statute was which intended to

prohibit. judgment I would affirm

dismissal.

Case Details

Case Name: People v. Rogers

Court Name: Supreme Court of Colorado

Date Published: Sep 14, 1987

Citation: 742 P.2d 912

Docket Number: 86SA156

Court Abbreviation: Colo.