People v. Schreiber

(2) constitution; that such and federal Colorado, of the State law." Int'l Soc. The PEOPLE of state color under acted for Plaintiff-Appellee and Cross- Consciousness, State Inc. v. Colorado Krisha Appellant, Comm'n, 673 Exposition Indus. and Fair 1988). Complaints filed liberally con- Rights Act are the Civil to conduct strued, express reference SCHREIBER, Timothy Edward required to re- is not violating section Defendant-Appellant Id. 1988. attorney fees under cover Cross-Appellee. any action applies to Section at 373-74. No. 08CA1721. remedy. provides which section for Id. Appeals, Colorado Court alleged Here, Mahaney's complaint Div. IV. Amendment him of First deprived the code 15, 2009. States Con- Oct. by the United guaranteed rights employ- stitution; Englewood and its Thus, state law." color of acted "under

ees under see- for relief Mahaney a claim stated court, in 1988 allows tion 1983. Section attorney discretion, award reasonable its party in an action prevailing fees 1988. We of section provision enforce Mahaney that, party, prevailing clude attorney fees his reasonable entitled to appeal. We remand in this incurred amount of such to determine trial court 89.5. See C.A.R. fees. remand, appropriate motion if an On whether to filed, shall decide trial court attorney fees Mahaney reasonable award proceedings. See trial court incurred Ltd., Fomily Emterprises, Giguere v. SJS 2006)("[dJeter- (Colo.App. the trial committed to party is mining which discretion"). V. Conclusion summary judgment trial court's reversed, is re- and the case Englewood trial court that the instructions manded with Mahaney, summary enter attorney fees incurred him reasonable award proceed- conduct further appeal, and in this opin- with this necessary, consistent ings, as ion. Judge RICHMAN

Judge GRAHAM concur. Suthers, Attorney General, John W. Kath- Hansen, A.

erine Senior Attorney Assistant General, Denver, CO, for Plaintiff-Appellee Cross-Appellant. Goldstein, L.L.C., A. Leslie Leslie A. Gold- stein, CO, Springs, Steamboat for Defen- dant-Appellant Cross-Appellee. Opinion by Judge WEBB. affirm of conviction of

defendant, Timothy Schreiber, E. entered on finding guilty, verdict him as relevant here, exposure, indecent see section 18-7-802(1),(4),C.R.8.2009. Because Schreiber's assertions of eviden- tiary error do not publication warrant under 35(f), begin CAR. with Attorney General's contention on cross-appeal that the trial court requiring prosecution erred prior indecent jury beyond convictions to the a reasonable question doubt. This is unresolved in Colo- disapprove rado. We of the trial court's ruling because the statute is a sentence en- hancer convictions are exempt from the requirement imposed by Blakely Washington, 159L.Ed.2d 403

Background I.

Schreiber was with inde- cent 18-7-302(4), based trial, on five convictions. Before the court ruled that those convictions consti- tuted elements of exposure, proven which had to be jury beyond to the consequence reasonable doubt. As a indictment, enjoyed Schreiber all protections felony prosecution attendant and trial.

According prosecution's evidence, exposed genitalia Schreiber while mastur- bating employee front of at a laundro- mat. During guilt phase, Instead, inquiry that is an prior conviction. previous- had evidence that Schreiber offered judge of other sexu- trial finding himself as evidence that the is entitled to ly exposed French, make." C.R.S. acts under section al Fiske, (Colo.App.2007); see convicted of that he had been but not 495, (Colo.App.2008) (citing People P.3d 496 was found After Schreiber offenses. such (Colo.2006)) Huber, 628, 189 P.8d v. offenses, prose- the substantive guilty of ("A conviction, prior even if the conviction is prior of his five presented evidence cutor misdemeanor, Blakely-exempt for a is a convictions, beyond a jury found and the fact."). prior con- that he had five doubt reasonable victions. reject argument-based Schreiber's concurring opinion Ap- Thomas' Justice 18-7-302(4)

II. Section prendi dissent in Almen- and Justice Scalia's States, 224, daresz-Torres v. United 528 U.S. statutory provision is a a Whether (1998)(basis 1219,140L.Ed.2d 118 S.Ct. 850 a element enhancer or substantive sentence prior exceeption)-that conviction see- legal question a presents of the offense 18-7-302(4) read as tion should not be a Hogan, de novo. See we review increasing enhancer because a mis- sentence 42, (Colo.App.2004). We ask P.3d 57 114 felony subjects a to demeanor to a defendant raising the proof, "its while whether consequences. serious collateral Such conse- offense, necessarily not re level of being prevented voting quences include People conviction." v. quired to secure a vote, 1-2-1083(4), registering to see section or 1080, Leske, 1089 957P.2d subject being potentially to "[a]) 18-7-302(1) provides, Section criminal, section sentencing as a habitual see knowingly if he commits 18-1.3-801(2),C.R.8.2009. any person genitals to the view exposes his majority of courts to have other state such conduct is which under cireumstances consequences ar- similar collateral addressed alarm the other likely affront or to to cause Apprendi and Almenda- guments still follow person." Under section "inde- Palmer, v. 189 P.3d rez-Torres. See State felony if the viola- a class 6 cent (Utah 69, Ct.App.2008) (rejecting argu- 76 subsequent prior to two committed tion is prior convictions were ele- ment DUI of this section or of of a violation convictions they sentence from ments because increased comparable offense...." Oth- a violation of a (col- range felony range) a a erwise, 1 misdemeanor. 18-7- it is class cases), offd, 220 P.B3d 1198 lecting 302(2)(b). (Utah2009); v. Rodri- see United States but 18-7-802(4) (Oth We conclude that section 1156, 1160 Cir. guez-Gonzales, 358 F.3d enhancer, not sub 2004) ("The establishes sentence prior of a conviction existence because: stantive con- substantively . transforms a second underlying offense convicted of the may be the statute from a misdemean- viction under any regarding the sentence proof without prior A is there- conviction or enhancer; factor...."). enhancement the sentence sentencing more than fore punish potential provision increases Moreover, acknowledging "some doubt while 107, 112 Vega P.2d v. ment. validity the continued about (§ 18-18-107); (Colo.1995) People see v. exception," supreme court has viction our 31, (Colo.App.1999) Whitley, 998 P.2d Blakely." "that it remains valid after held 18-18-405(@2)(a)(I1)). (§ Lopez People, 118 P.8d Huber, 2005); (declining P.8d at 681 see conclude that the court We further question). to revisit because, un sentence enhancer decides this the tri 466, Accordingly, disapprove we Jersey, 580 U.S. Apprendi v. New der (2000), requiring prosecution ruling 2848, al court's 147 LEd.2d prior convictions under Blakely, at 18-7-302(4) than to rather section "has no constitutional a defendant that because court. 'We further conclude he has a trial determine 18-7-802(4) does establish the shock, anger, requires or the exelusion of proof, in a trial 408."), burden of to the court the relevant evidence under CRE es- only prove pecially need the existence of gave limiting the court preponderance instruction, conviction facts People Vialpando, Lacey, the evidence. See (Colo.App.1997). (Colo.1986);Whitley, 998P.2d at 34. However, express opinion no whether a B. Schreiber's Statement to the Victim defendant who was denied the protections required victim, in felony trials could Schreiber's statement to the challenge you "do problems elevation of his convictionto have with women mastur bathroom," sentencing bating status at the time of day on this basis. made on the after the ges- was admissible as res III. tae because: Schreiber's Contentions e reject evidentiary Schreiber's conten- proximate This statement was in time to alleged the offense and was useful to tions on the trial based court's broad discre- rulings. complete tion in such People, story jury. See Yusem v. See (Colo.2009). 458, 210 P.3d 468 People Quintana, 1366, v. 882 P.2d 1373 (Colo.1994) (res gestae "includes evi- closely A. dence that Evidence that Schreiber in had related both time offense"). Previously Exposed nature to the Himself elt logically Under was relevant "evi dence of other sexual Schreiber's typically acts is motive to cause rele affront or highly probative, vant and alarm to expected and it the victim and was not so in- normally probative flammatory require as to value of such exclusion under Quintana, outweigh any evidence will CRE 408. danger of unfair 882 P.2d at 1378-75. prejudice, even when incidents are remote from one another in time." The satisfy four-part must also test in People Jelly C. Lubricating (Colo.1990). Spoto, 1814,

v. 795 P.2d Evidence of similar Underwood, of lu (Colo. containers People 765, 58 P.3d bricating jelly App.2002). in found the laundromat rest room and in backpack when he Here, supports the record the trial court's was arrested was relevant based on his ad findings that: using mission to lubricating jelly in "daily ®Evidence exposed Schreiber had himself masturbating sessions," which makes the al to women on other occasions was rele- leged at the laundromat vant to the material issue of whether probable "more ... than it would be without knowingly, opposed Schreiber to acci- the evidence." See CRE 401. dentally, exposed case; himself in this Affording this evidence"the maximumpro- ®Such evidence probable made more bative value attributable a reasonable fact that he likely was aware was finder and prejudice the minimum unfair victim; cause affront or alarm to the reasonably expected," Gibbens, be @Thus, the evidence was indepen- relevant 604, (Colo.1995), 905 P.2d it was not dent of the intermediate inference that excludable under CRE People 408. See also character; was a of bad Court, 141, v. District 785 P.2d 1990) ("the generally balance should ® 403, prejudicial Under CRE effect of struck in favor of admission when evidence this evidence did not probative exceed its indicates a close relationship to the event value, Salas, 398, 902 P.2d charged"). (Colo.App.1994)("Only prejudice which suggests a decision made on an improper is affirmed and the trial basis, bias, jury's such as sympathy, ruling disapproved. concurs. only sufficiently

Judge ROMAN crimes felonies were peniten- in the incarceration serious to merit concurring part in Judge BERNARD Rodrigues, 112 P.3d tiary. People v. dissenting part. defined are not Misdemeanors constitution, supreme our but in our state part and concurring in BERNARD Judge between mis- one difference explained court part. dissenting v. Peo- in Eckhardt and felonies demeanors felony and between If the difference (1952): ple, 126 Colo. that a felo- were Colorado a misdemeanor in the state imprisonment penalty "If the subjected a defendant ny conviction felony, and if it is considered penitentiary, county in a incarceration term of lengthier county jail, a imprisonment fine or majority in this case. join the jail, I would §§ & See also misdemeanor." 18-1.3-401 that, under premise agree with generally (sentences C.R.S$.2009 18-1.3-501, for felo- 466, 490, Jersey, 530 U.S. v. New Apprendi misdemeanors, respectively). nies and (2000), evi- L.Ed.2d 485 be- sees the difference supreme court Our need not concerning prior convictions denee "impor- felonies and misdemeanors tween beyond proved jury and be submitted tant, many reasons." Brooks evidence before such doubt a reasonable 418, 415, 24 P. 14 Colo. an offend- length of increase the used to include: These reasons Almendares-Torres See also er's sentence. recognized long penitentiary has been 289-47, States, v. United the incarceration of proper place for as the (1998)(evidence 140 L.Ed.2d only, graver offenses of the those convicted as an ele- not be treated need of recidivism county jails have been utilized for while the offense). ment of mi- of those convicted of the confinement there are However, I that because believe offenses, peni- in the and confinement nor misdemean- differences between substantial regarded as tentiary always been has more prospect of a beyond the ors and felonies jail, county in a severe than confinement jail if county one in a longer sentence reproach disgrace the and account of respectfully I dissent. felony, aof convicted in an institution attached to confinement differences mean that these my position It is incarcera- place for the apart set thus converting a misde- consequencesof the that infamous depraved more tion of the beyond simply felony far extend meanor to offenders; our consti- and under classes of incarcera- length of increasing potential the by which to determine the test tution conclude, Therefore, I would tion. capital shall less than an offense whether convic- misdemeanor Apprendi, felony or a be deemed a offense of class are an element tions same is upon whether the depend made section 18-7- exposure under felony indecent peni- in the by imprisonment punishable 302(4), C.R.S.2009, en- and not sentence by county jail. And stat- in tentiary or hancer; must be submit- this element resulting a con- consequences ute the it a determination ted more felony made much are viction of doubt. beyond a reasonable proved has been arising from a convic- those serious than in the Colorado Con- defined Felonies are The number of tion of a misdemeanor. XVIII, § 4 art. Const. stitution. Colo. a defen- challenges to which peremptory states: is also given in a case may be entitled dant charge upon whether depend made in occur felony, wherever The term felony, him amounts to state, against preferred constitution, laws of the or the this only. or is a misdemeanor any criminal to mean be construed shall imprison- by death or punishable (citations omitted); offense 414-15, 24 P. at 558 Id. at other. and none penitentiary, in

ment 112 P.3d at 708. Rodrigues, see also Brooks, quote from by the suggested As in the state constitu- defining felonies By and misde- between the distinction between felo- tion, the framers differentiated in three areas: significance has erimes, meanors and determined grave and less nies law; Further, procedure; criminal criminal substantive another division of this court de- consequences. Wayne termined, and collateral statute, analyzing when a similar LaFave, R. Substantive Criminal Law charged that a defendant with a misdemean- ed.2008). 1.6(a)(2d or did not have a preliminary to a hearing though even the misdemeanor con- Brooks, First, as indicated incarceration viction couldbe felony converted to a penitentiary is different from incarcer- Garcia, of convictions. county jail. in "disgrace ation attach (Colo.App.2007). respectfully I reproach" penitentiary sentences be- disagree reasoning with the in opinion cause offenders there are seen as "more de- dissent, for the reasons outlined this praved and infamous." would choose not to followit. See Am. Foaom- Therefore, changing the nature of a convie- Murakami, ily Mut. Ins. Co. v. tion from a misdemeanor changes (one (Colo.App.2007) of division the court incarceration, place merely appeals is not bound a decision of Also, length of incarceration. division). another justifiably stigma viction carries that a misdemeanor conviction does not: a consid- importantly my analysis, More Gareia erably greater weight of opprobrium. moral points out another area in which felonies and See also 580 U.S. at 120 S.Ct. misdemeanors are differently proce- treated ("The degree culpability of criminal durally: defendants some cases are legislature chooses to particu- associate with entitled to preliminary hearings, while defen- lar, factually distinct conduct significant has dants misdemeanor cases are not. See implications both for a very (defendant § 16-5-301(1)(b)(ID),C.R.8.2009 defendant's liber- ty, heightened and for the stigma associated felony may with class 6 receive a with an legislature offense the has selected preliminary hearing if custody "in worthy greater punishment."). offense for which preliminary hearing requested"). If . defendant had been Second, incarcer- there are crucial dif- trial, ated before he would not have been ferences between felonies and misdemean- eligible preliminary for a hearing under charged ors. Defendants Gar- with misdemean- reasoning. cia's by juries six; ors are tried of defendants charged by juries with felonies are tried of recognize that defendant's case was tried 18-1-406(1), C.R.8.2009; § twelve. Crim. P. felony. However, is, aas it suggested 28(a)(1) (2).& charged Defendants with above, my may view that the require, law or may misdemeanors perempto- exercise three allow, may at least trial courts to treat this ry challenges; charged defendants with most offense as a misdemeanor purposes of felonies are entitled to peremptory five chal- trial, and then to elevate of status a 24(d)(2). lenges. P. Crim. felony at sentencing. Therefore, the time of jury If the is not allowed to consider the although defendant was not pro- denied the defendant's convictions as an element protections cedural required trials, in felony offense, jury only will be instruct- the risks that I patent, describe are or at ed on misdemeanor, the elements of a and its latent, reasonably least any case which only verdict will convict the defendant of a felony this charged. offense is Thus, misdemeanor. if the crime in this case Third, significant felonies have collateral felony by converted to a court order after consequences that misdemeanors do not a a convicts defendant of the misde- have. Some of these are: meanor, appear it would to me that a defen- ® One cannot vote while incarcerated or on dant facing charge this entitled to a parole felony for a conviction. Colo. six-person jury and three peremptory chal- VII, 10; § § Const. art. lenges. This result seems to avoid the clear C.R.8.2009. direction in statute and court rule that defen- dants with felonies are felony entitled to eA may prevent conviction one have by their cases jurors decided twelve possessing § a firearm. 18-12- 108(1), to peremptory C.R.S.2009. exercise five challenges.

1227] matter, obviously, deprive e in cer- Tt is a serious participation may be denied One if of a rights convicted civil as im- professions tain an American citizen of (ac- 12-2-1283(1)(8), vote, right right C.R.S.2009 E.g., § portant as the 12-6-118(8)(d), countants); § arms, C.R.98.2009 to en- keep and bear and the profession. or gage in a chosen business (motor dealers); § 12-7- vehicle (bail sentencing judge to effect such For 106(1)(e), bonding C.R.S.2009 12-8-128(1)(a), findings that § deprivation by factual C.R.98.2009 convert agents); would otherwise be a misdemeanor (barbers what cosmetologists). felony impermissible seems to us an into e predi- felony provides Conviction jury. role of the usurpation of the historic designation for an eventual cate offense is entitled principle criminal, 18-1.838-801, § habitual as a peers of his determine to have ©.R.8.2009. or not he has committed e convicted of two A who has been justice rooted in the "principle is a so proba- may eligible for not be people," of our traditions and conscience 18-1.3-201(2)(a), § C.R.98.2009. tion. believe, ranked as fundamen- "as to be tal." ® used to im- A conviction testimony. 18-90- a witness's

peach Pennsylva- (quoting Id. at 608 McMillan 101,C.R.S.2009. mia, 79, 85, 106 (1986)). L.Ed.2d 67 not tri- consequences are These collateral I, too, principle is so funda- believe this important They the exercise of fling. affect fact of conviction be- mental ability earn a rights; or restrict civil comes, purposes of the statute at penalties expose one to additional living; or here, an element of the which issue future; credibility undermine one's or must, by be determined Lowes, proceedings. See in future jury beyond a reasonable doubt. See United ("There (Colo.1983) are a Corona-Sanchez, F.3d States important collateral significant number bane) (Oth Cir.2002) (en (Kozinski, beyond for a conviction consequences J., grounds dissenting), superseded on other abrogated imposed."), the sentence that of § 2L1.2 emt. Sentencing Guidelines U.S. grounds Callis other n. 4 three fundamental differ- Because of the and misdemeanors

ences between above, approve the trial I would discussed I think these ruling in this case. magnitude that are of differences such Responsibilities Con In re the Parental jury's, sentencing not the should be Child, Concerning cerning L.S., a whether a defen- judge's, hands to determine McNamara, Spotanski Tatanjia Willard be convicted of dant should Petitioner-Appellee, Rodrigues-Gonzales, 358 United States (court Cir.2004) (9th re- 1160-61 F.3d that would convert quires prior offenses Stacy Spotanski, Respondent- Joe felony to be submitted to Appellant. "prior affects commission sentence, but the No. 08CA1872. merely the defendant's crime"). very of his nature Appeals, Court of Colorado 12 F.3d Sharp, Although United States Div. VII. (6th Cir.1993), Almen- pre-dated Oct. 2009. I find the fol- darez-Torres compel- Sharp to be lowing language from

ling:

Case Details

Case Name: People v. Schreiber

Court Name: Colorado Court of Appeals

Date Published: Oct 15, 2009

Citation: 226 P.3d 1221

Docket Number: 08CA1721

Court Abbreviation: Colo. Ct. App.