People v. Wentling

4H order, petition tional and dismiss the as re- 19-3-505(6).

quired BERNARD

JUDGE and JUDGE FOX

concur.

2015 COA 172 Colorado, PEOPLE State

Plaintiff-Appellee, WENTLING,

Mark Richard

Defendant-Appellant. Appeals

Court No. 12CA1423 Court of Appeals,

I.Div.

Announced December

Rehearing January Denied

Opinion JUDGE TAUBMAN Wentling, Defendant, Mark Richard judgment conviction entered appeals his finding guilty of first jury him on a verdict com- trespass with 18-4- mit motor theft under sections 18-4^109(4), He also 502 and C.R.S.2015. presentenee credit appeals his confinement (PSCC) judgment affirm the award. We trespass, for first conviction part, and remand the sentence reverse to correct the mittimus accord- the trial court ingly regarding PSCC. Background

I. 2011, 5, police arrest- April 2 On officers sleep- finding him Wentling in after Utah ed reported as ing in been a vehicle that had Wentling day, in The next stolen Colorado. multiple in charged offenses Colora- was with trespass do, including degree criminal theft.1 to commit motor vehicle with intent later, Wentling charged in days was Three control vehicle Utah with unauthorized in custo- for an extended time. He remained pleaded contest to the dy in Utah 2011, In charge May 2011. June Utah by a court to Wentling Utah was sentenced prison. years zero to five ¶3 Wentling transported from the was to the Mof- Department of Corrections 11, County in Colorado on October fat Jail 2011, agreement be- pursuant a detainer In Colorado and Utah. November tween charges initial crimi- to include habitual were amended two nal counts. ¶4 February Following an initial trial General, Coffman, Attorney Cynthia H. mistrial, jury in a con- resulted Wiggins, Attorney Gen- D. Assistant Nicole Wentling April trial in at his second victed Colorado, eral, Denver, Plaintiff-Appel- for degree criminal with 2012 of first

lee. commit motor vehicle theft and intent Wilson, degree trespass. May second On Douglas K. Colorado State Public Wentling to six Defender, Lacefield, Deputy trial court sentenced State J. Sean custody Department Defender, Denver, Colorado, years in the of the De- Public years mandatory pa- plus fendant-Appellant. three Corrections charge specify of the motor Initially, Wentling charged did not a subsection was also with first any aggravating nor include degree aggravated sec- vehicle theft statute motor vehicle theft under Therefore, C.R.S.2015; however, 18-4-409(2), orig- intent com- factors. we assume the tion charge portion aggravated mit motor vehicle theft was motor vehicle theft count was inal 18-4-409(4) charge aggravat- 18-4- under section section Unlike the later dismissed. ' theft, 409(2). ed motor Wentling 112 A. The trial court awarded of Review role. Standard County time in the days PSCC for his Moffat ¶ 8 review the de We record novo deter February May 2012 to Jail jury mine whether the evidence before seeking eighty-nine filed a motion quality quantity was sufficient to sus PSCC, days of which the trial additional Dempsey People, tain the conviction. court denied. so, doing we appeal: four raises issues evidence, relevant consider “whether (1) presented the evidence at trial was insuf- circumstantial, both direct and when viewed of first ficient convict him light and in a whole most favorable intent commit motor vehicle with prosecution, is substantial and sufficient theft; prosecution his Colorado violated support a conclusion reasonable mind C.R.S.2015, 18-1-303, he because had guilty charge defendant is already prosecuted in Utah a law been under beyond a reasonable doubt.” substantially intended to the same Williams, ¶ 34, harm; (3) equal protection of he denied (citation omitted). subjected the law when he was to a harsher punishment for first Applicable B. Law theft to commit process Due prosecution motor, punishment attempted ve- than prove every the existence of of an element theft; incorrectly hicle the trial court charged beyond a reasonable doubt. reject calculated three his PSCC. Const, XIV; V, amends. U.S. Const. Colo. assertions, agree his fourth. but we .with 25; II, Duncan, art. v. 109 P.3d Sufficiency 1044, Thus, II. (Colo.App.2004). Evidence 1045 convic a on containing tion based a record insufficient ¶ 6 Wentling contends there was insuffi- anof an element of offense violates evidence degree him to convict of first cient evidence Duncan, right process. to defendant’s due trespass criminal intent to commit mo- with 109 at 1045. P.3d First, vehicle he the first tor theft. contends trespass degree plain lan- criminal statute’s ¶ statute, construing 10 In a re People present evi- guage to give viewing court must effect to the intent that he committed -a inside the dence crime legislature. People, 19 v. Gorman Wentling argues that motor vehicle vehicle. 662, (Colo.2000). determining 665 P.3d is not a crime inside the theft committed intent, that look to the court should first and, thus, People present vehicle did plain language of People v. Dist. statute. prove sufficient evidence to he entered the Court, (Colo.1986). 918, 921 If motor with the intent to commit a vehicle unambiguous, statute is the court should look crime therein. 1377, People, Mason 932 further. v. P.2d ¶ Second, if. Wentling 7 contends that (Colo.1997). Statutory construction 1378 degree trespass is criminal am- first statute principles only on should relied when apply it biguous, does not this case ambiguous. People, is v. 48 statute Grant (1) as three reasons: to construe the statute 546 P.3d applying to facts this case ren- would ¶ (2) paid; People’s looking plain superfluous; of it 11 at the lan der When legislative application guage criminal tres- statute to determine compre- intent, pass contrary plain and statute to consider here should statute; legisla ordinary words the meaning motor theft and hensive Banks, would applying it this case be inconsistent ture chose use. legislative (Colo.2000); history. Griego with 1127 see statute’s (Colo.2001) disagree. (stating People, 19 that P.3d accepted Wentling's unopposed Februaiy trial court completed sentence was assertion that his Utah 105 Ill.2d Steppan, context See be read in phrases should words and construed, (Ill. N.E.2d 1303-04 according to the Ill.Dec. rules 1985) of the word Vega (construing v. Peo the inclusion usage); common grammar and (Colo.1995) theft (asserting in a similar motor vehicle that “therein” ple, 893 P.2d 107 requiring a statute as defendant’s are to be read phrases used words and their, felony meanings). to coincide with unautho plain context and accorded entry, requiring the rather considered as than defen read and rized The statute should be something harmonious, within the consistent, to intend steal give dant whole vehicle). Court, disagree with parts. Dist. to all its effect sensible We: this construction renders contention at 921. superfluous. is still nec “Therein” “therein” criminal tres- Colorado’s first lim essary it this construction because under that it a class five provides pass statute activity of criminal relevant its the location “any motor felony person for a enter degree criminal offense. the first there- to commit a vehicle with intent crime § convicted of in.” 18-4-502. plain languagb of criminal 15 The to commit the intent “a” crime states must person A commits sec- theft. motor vehicle inside the vehicle. 18-4-502. be -committed theft if degree aggravated motor vehicle ond indicating that the article “A” is an indefinite knowingly or exercises he or she- obtains it is particular, to is noun it refers of another over control singu before most “used as a function word decep- or authorization-or threat without question ... when the nouns individual lar 18-4-409(4). tion. undetermined, unidentified, unspeci or Third New International fied.” Webster’s Analysis C. (2002); Dictionary Unabridged 1 improperly 99, ¶ 27, Arzabala, he contends was COA trespass, prosecuted Zabka, 1196, 1204; see also Brooks v. apply 265, 269, offense which was Colo. (“[T]he theft of motor vehicles. He- contends particularizes article ‘the’ definite subject precedes. It is a word which meaning, even under the statute’s opposed limitation the indefinite construction, ”); of statutory the statute generalizing rules of ‘a’or ‘an.’ force apply not to him. conclude there We does ¶ legislature’s 16 of use indefinite an to' convict was' sufficient of evidence of plain language in the the statnte article plain the criminal under generally proscribe its indicates intent .Further, meaning of the statute. we con- entry accompany into a crimes that unlawful that clude there sufficient Wen- evidence any category limitation to vehicle the without tling motor the in- vehicle with entered the Thus, conceivably, type crime. of tent commit motor theft the vehicle inside accompany theft a crime that could vehicle vehicle. trespass. criminal the-, ¶ First, 14 must we construe disagree with 17 We also con criminal statute. We application the of the first contention that statutory language clear. the clude that to motor degree criminal statute legisla Therefore, the we need consider contrary to the com- theft would Wentling. Wentling history tive cited statute, sec- prehensive motor vehicle theft “therein,” adverb, argues modifies that the 18-4-409. contends Gen- tion “commit,” limiting meaning of the verb the not have that could Assembly eral may the occur to location where crime of trespass apply to motor vehicle agree. vehicle. There We inside motor comprehensive of nature theft because language of the fore, on based of theft the motor vehicle statute. statute, a defendant ¶18 by the General “[E]naetment a motor vehicle with intent must enter Assembly specific of criminal statute does of a motor inside vehicle. crime

417 preclude prosecution general under a thorough vehicle theft is a statute legislative legislative criminal statute [clear] unless a aspects consideration of of mo all prosecution intent is to limit tor Bagby, shown vehicle theft. supreme special People Bagby, statute.” v. 734 P.2d court Liquor found structure of the 1059, (Colo.1987); 1061 People thorough see also Code “a legislative v. indicated con Smith, P.2d 111, (Colo.1997); of People aspects 938 115 all of licensing pro sideration Clanton, 8, 11, Further, v. 2015 cess.” !at Bagby, COA 938 734 P.2d P.3d 1111. supreme The determination of pursuant whether there is a clear .concluded Liquor Code, legislative prosecutor prosecution to limit must this (1) charge prohibited manner conduct Liquor turns whether: under the “the statute than provision Code rather under a invokes the full of similar of police extent the state’s code, the criminal powers”; specific unless part “the authorized of Id; legislature. Warner, creating see also comprehensive an act 930 thor P.2d and (Limited Gaming at ough regulatory, 568 Act controls “all aspects scheme to control all óf aspects limited area”; gambling stakes Colora substantive “the act care do.”); Stansberry, fully P.3d 1190 (holding defines 83 at types offenses in registration that motor Smith, detail.” 116 and taxation (citing 938 P.2d at Peo Warner, ple comprehensive' statutes created “a 564, (Colo.1996), v. 930 568 thor P.2d scheme”). 1062); ough regulatory Bagby, see none of see Peo Tow, ple these restrictions v. 992 here. Section 18-4-409 (Colo.App.1999). P.2d does not prosecution limit motor vehicle theft ¶ Here, there is no indication sec Thus, to that alone. we are tion 18-4-409 was intended invoke the full persuaded that section 18-4-409 was intend police powers, extent the state’s unlike in aspects ed to control all of motor vehicle Bagby, supreme where the court found that theft. Assembly “the General [ ] declared that the Liquor Further, adopted ‘an legislature [wa]s Code exercise of can police powers punish protec the state the same conduct with more than one tion of by creating multiple the economic statutory and social welfare and sec health, peace people punishing and morals tions See conduct. ” ¶¶ Barry, 108-11, sug the state’ and that such a declaration COA gested a full police power apply exercise of two statutes “[W]here conduct, range possible ‘general consideration the full the same rule’ allows selecting prosecutions sanctions those appropriate most either statute.”' Davis, punishment. (Colo.App.2008) at 1062 (quoting P.3d 1, 12-47-102, Stewart, (quoting People Ch. sec. 1976 Colo. Sess. 456); (Colo.2002)); Montante, Stewart,

Laws but see 55 P.3d at 118 ¶¶ 15-17, “general (applying COA (stating prose rule” that “the marijuana registry medical cution has discretion to what determine fraud emphasize charges to protection statute did not file when a the defendant’s conduct and statute”). Here, public); of the violates more than one general People welfare v. even Stansberry, if (Colo.App. Wentling we assume could been have 2003) (finding charged both the first police broad invocation of powers in legislation). motor with intent to commit motor vehicle tax vehicle attempted theft language Section 18-4-409 contains no com statute and motor vehicle the statute, parable Bagby People to theft the to showing in that had discretion the prosecute under Assembly General intended to invoke the full either. police power extent the state’s in enacting ¶22 Second, we conclude that

the motor vehicle theft statute. People presented sup to sufficient evidence ¶ Also, port no indication conviction for first there or trespass.. Wentling 18-4-409 that was there elsewhere contends intended aspects to control all of motor vehiclé theft in that he was insufficient evidence Colorado, nor is there indication that commit a crime. inside as re- vehicle Applicable B. “motor is not Law quired because vehicle theft committed the vehicle.” We inside ¶27 Utah, for In control “unauthorized conclude there was sufficient evidence following time” ele- [an] extended has Wentling intended to crime inside commit a (1) unau- exercise ments: defendant pos- the vehicle because exercised control thorized over a vehicle motor from and control the vehicle session over own; (2) or consent of not his her without the motor the vehicle. He into the within broke (3) owner; tempo- and the intent with away and drove from the scene vehicle rarily deprive the possession owner the motor vehicle. inside § Ann. 41-la- motor Code vehicle. ¶ contention, Contrary to Wentling’s ve- .2015). 1314(1) (West does If defendant occur theft can of a hicle inside vehicle. Inr to the owner not return the motor vehicle deed, way most common con- exercise hours, twenty-four be- the offense within entry (driving) requires trol over vehicle § felony. 41-J.a- comes third Marquez, 107 People into the vehicle. See 1314(3)(a). (affirming (Colo.App.2004) ¶ Colorado, convicted judgment where the was defendant motor vehicle intent commit degree aggravated theft when of first proof entry theft into a requires vehicle). driving a stolen found motor vehicle vehicle with whole, Considering the evidence as 18-4^109(4). 18-4-502; § § theft therein. see viewing light it in and most favorable knowingly ob- Motor vehicle theft suffi- prosecution, we conclude there was taining exercising control over the convict of first cient evidence byor of another without authorization trespass. degree criminal 18-4-409(4). § or deception. threat III. Barred Colorado Prosecution ¶ 29 If an of conduct constitutes jurisdiction fense within concurrent alternative, Wentling 25 In the contends state, subsequent Colorado another prosecuted improperly he was Colorado “(1) prosecution Colorado if: is barred argues violation of section he 18-1-303. He prosecution in a conviction [] resulted previously for was in Utah convicted (2) acquittal; or an [] the same conduct conduct, subsequent Colorado same prosecutions; [and] basis both form[s] the prosecution was barred the Colorado because (3) [] the conduct an offense constitute^] substantially Utah laws address jurisdiction concurrent of this within the disagree. harm or same evil. We [other state].” state and Gladney, (Colo.App.2010); A. Standard of Review 18-1-303(1). However, ¶26 unpreserved may prosecute We review an for someone a second time here, challenge, plain if “[t]he as error. offense for which the same conduct 108, 83, formerly defendant was convicted re Randell .... required by quires proof 1006. We will a conviction reverse fact not (1) subsequently prose error unless there error that offense for he was: which defining, obvious and so cuted the law of the of undermined each proceeding substantially fundamental fairness of the fenses is intended 18-l-303(1)(a)(I). reliability cast serious doubt on the harm or evil.” Miller, Thus, judgment. People subsequent prosecution in (Colo.2005). apply; exceptions record de is barred both We examine the unless is, offense'requires proof novo to error determine whether occurred. when the first ¶ 24, Rediger, by People required v. fact not 2015 COA a the second offense and (We by weighing defining “start the evidence law each offense plain apply requirement— prevent the first harm or substantially error different novo.”). Gladney, 250 do so de See at error. We evil. Analysis

C. criminal attempted mo- theft, tor vehicle but pro- the latter offense ¶ Wentling trial contends the for a argues vides lesser sentence. He plain court committed error when it allowed prohibit both laws require acts and similar People prosecute him for first similar mental states required because the with intent to mo attempted act for motor vehicle theft encom- tor vehicle theft after his Utah conviction passes required act for first crim- based on the same conduct. We conclude inal trespass both require offenses that a trial court plain did not commit error. step completed substantial be intending while ¶31 We conclude that even'if the first underlying commit the crime. We dis- three elements and the exception dis- ' agree. Gladney here, cussed were satisfied whether the Colorado and Utah offenses A. Standard Review were substantially intended to differ- ¶35 In the of a exception— ent harms or absence tradi evils—the second tionally suspect class, implication would have been obvious the trial right, fundamental or other classifica Consequently, Wentling’s prosecution court. some warranting tion review under under the intermediate Colorado was not barred scrutiny, apply 18-1-303(1). we a rational by basis standard People Blankenship, review. v. 119 P.3d ¶ 32 any consider whether (Colo.App.2005). 554-555- ra Under a error would have been obvious. We conclude standard, tional challenging party basis it Generally, would 'have been. prove beyond must doubt that reasonable error is not “nothing obvious our where the classification issue bears rational previous statutes or case law would have relationship legitimate legislative' pur court” alerted the to the error. v. pose ‘government objective, or or that Mendoza, (Colo.App. 641 n.4 unreasonable, classification is arbitrary, or 2011); Zubiate, Further, capricious. Id. any “[i]f conceivable ¶ 24, (cert, granted P.3d 757 June set facts would lead to the conclusion that 2014) (“An may error if obvious the issue legitimate purpose, classification serves a has been of this decided division court must assume those facts exist.” Court, Supreme or if Co., Transp. Christie Coors erroneously trial court applied statutory has (Colo.1997). law.”). Here, interpret there were no cases ing purposes statutes, and the Applicable B. Law purposes expressly were not delineated. ¶ 36 The United and Colorado Therefore, States we was not conclude error guarantee protection equal Constitutions not, and, thus, obvious we need address the Const, 1; XIV, § the laws. U.S. amend. plain other elements of the error test. II, § “Equal protection Colo. Const. art. ¶33 Therefore, we conclude of the laws assures that who simi those are consti- conviction did not larly will be similar situated afforded treat tute error barred and. Rickstrew, ment.” prior prosecution. (Colo.1989). Equal IV. Protection presumed 37 Statutes are to be

¶ Wentling constitutional, contends that when the Peo- party challenging and a a stat ple charged him with first demonstrating ute bears the burden its Goodale, unconstitutionality. People with intent to commit motor vehicle attempted theft rather than motor vehicle P.3d When two stat theft, right equal protection it violated his provide penalties for utes identical conduct, subjected equal protection the law because him to if violated a de punishment. Wentling more severe contends fendant is convicted and sentenced under the prohibited by Equal that the same conduct is protection may Id. harsher statute. First, Wentling proscribe be statutes has not also violated where two we conclude conduct, no yet intelligible proved beyond offer that a doubt no different reasonable relationship legisla- for distinguishing legitimate Id. to. standard conduct. rational a Thus, if it may be purpose government objective a unconstitutional or tive exists penalty a on less imposes harsher serious Assembly’s pun- for the General decision Nguyen, People v. criminal conduct. attempted ish similar conduct motor vehi- (Colo.1995). 37, 39-40 trespass. degree cle theft and not that this has shown deci- also ¶ Nevertheless, legislature, unreasonable, capri- or arbitrary, sion was penalties may establish different different cious. “[hjarsher conduct, penalties for crimes ¶43 contrary, To that we conclude circumstances committed different attempted motor vehicle crimirial theft and accompany those which the commission than trespass and, thus, elements have different equal protec not of other crimes do violate permissible legislature prescribe guarantees if ration the classification is tion penalties for At- different similar conduct. ally upon in the or the differences acts based tempted requires motor obtain- vehicle theft proscribed.”- People Roy, which is conduct ing exercising or control over another’s vehi- other In cle, trespass requires an'entry into while words; “statutory' classification^] chimes 18-4-409, addition, §§ vehicle. 18-4-502. based on both must be differences that are trespass not require vehicle statute does reasonably in fact and real related that act done as the “knowingly,” be general purposes legislation.” of the criminal attempt §§ 18- Stewart, do. vehicle theft statutes 55 P.3d at 114. 2-101,18-4-409,18-4-502; see also attempt and motor Under Anderson, (Colo.App.1999) statutes, attempted person theft a commits (entry required into motor vehicle knowingly or if he she motor vehicle theft for, (cita- “knowing trespass) and unlawful” constituting engages in conduct a substantial omitted). Last, tion the vehicle theft statute step exercising or control obtaining toward contemplates penalties different based motor au- over another without presence aggravating or absence of factors thority deception. §§ or or 18-2- by threat 18-4-409(2). § value the vehicle. 101, 18-4-409(2),, Attempted C.R.S.2015. , trespass The statute contains such differ- can between a vehicle theft constitute ences. felony felony three class six based class and a presence on the factors and aggravating ¶44 differing of- elements each 18-4-409. the value vehicle. fense, namely required mental state proof entry, element demonstrate - ¶ statute, person 40 Under proscribe that the statutes conduct degree if he commits distinguishable and are from each other. entera she vehicle with intent See, e.g., Sharp, to commit crime therein. 18-4-502. (stating (Colo.App.2004) theft and de- felony. First a class five frauding an'innkeeper do not statutes violate Id. equal protection requires because theft an value; deprive person thing intent to Analysis C. defrauding requires an innkeeper defraud); People Whatley, ¶41 Wentling contends that when with, (holding (Colo.App.2000) 671-72 charged him that second peace-officer on a intent to mo and third assault violate, theft, right equal protection do tor vehicle assault equal it violated degree assault on protection. because only conclude has second beyond peace proof proved a reasonable officer doubt accused statutory noted classifications the intent above vio had officer police Equal performing duty). Clause. late Protection a lawful

421 ¶ Therefore, 45 we conclude trial court finement credit if prior the time served to Wentling’s right equal pro- to the imposition did violate of a sentence was attribut by sentencing tection him able to charge under first for which sentence imposed.” with intent to was commit mo- Taylor, 7 P.3d 1030, 1032-33 tor vehicle theft. (Colo.App.2000). Analysis B. V. Presentence Confinement .¶50 (PSCC) Credit Wentling contends the trial court erred when it request denied his for ¶ Wentling 46 contends trial court additional PSCC. agree for three rea request eighty- erred when it his for denied sons. days nine additional PSCC. contends .He ¶ First, 51 Wentling we conclude is entitled 11, he is PSCC October entitled PSCC 2011, PSCC Jail, in statute’s County when he arrived Moffat language his 7, 2012, confinement resulted February because until when he finished his from the same incident for which agree. was Utah sentence. We .he Wentling sentenced. was “confined for an prior sentence, offense to the imposition A. Standard Review for said offense” because he was in confined ¶47 We review whether a district County Moffat April for Jail 2011 properly de novo. awarded PSCC See incident from 2011 October until his Colo- ¶ Howe, 177, 12, 292 P.3d sentencing rado on May 2012. 18-1.3- 1186, 1188. While confined in was Utah for control unauthorized in vehicle and cus- Applicable A. Law tody in Colorado finish serving sen- ¶ “A person who is confined for tence, he would not have been transferred prior imposition an offense to the of a sen in detained Colorado but the Colora- is tence for said offense entitled credit charges. ’Therefore, spent do all his time in against term his or her séntence for Colorado was for April 2011 incident. period the entire of such confinement” 18- Second, we there is conclude a sub- 1.3-405, For a C.R.S.2015. defendant stantial nexus between PSCC, given that confinement must be a period and the of confinement for offense result of the same incident for which a defen sought. entirety which PSCC is Wen- Saiz, dant is to be People v. sentenced. See fling’s presentence in Moffat confinement (Colo.App.1982). 6-7 County directly Jail is attributable conduct, acts, upon same or incident which require 49 The statute does sentenced, April he was incident. thát which the sentence is Further, Wentling’s requested con- PSCC imposed be the exclusive of the offend cause .period spent cerns the custody he in time confinement; rather, er’s requires only County in Moffat Jail as result of “substantial nexus” between the offense and charges brought by. the State Colorado. period of confinement for which PSCC Howe, sought. Third, P.3d at 1188. disagree People’s we with the “There is a ‘substantial nexus’ when defen contention that because was serv dant is ‘as the charge ing confined result of the his Utah sentence before he was convict for which imposed the sentence is Colorado, as the ed and sentenced continued result of charge conduct which such awaiting sentencing incarceration while Id, (quoting People, based.’” Schubert v. properly Colorado is attributed (Colo.1985)). When the sentence. The State relies on charge Matheson, confinement is caused or con (Colo.App.1983) duct for which (asserting the offender is to be sen that when defendant confined tenced, prior the trial court must award PSCC. to sentencing for a incident different Schubert, However, sentenced, “[a]n from that for which is to be he he PSCC). offender is not However, entitled to con presentence is not entitled Mathe- Mendoza, (same); People v. Wentling was distinguishable because

son is I con- (Colo.App.2011). But transaction, 641 n. his theft for the same confined view, my no error. that there was clude April while the motor vehicle degree crimi- for first prosecuting defendant confined-for a Matheson defendant 18-1-303. nal was allowed he from that for which was incident sentenced; Matheson, was the defendant in out, ¶ correctly points majority As the temporary for violation of a confined first presumptively bar of section 18-1-303 the subsequently convicted restraining and order prosecution result- applies the Utah because degree assault. of second conviction, forms in a the same conduct ed ¶ Therefore, court we conclude the trial prosecu- basis for the Utah and Colorado the Wentling’s motion amend denying in erred of- tions, constitutes defendant’s conduct to reflect additional PSCC. We mittimus jurisdiction of the concurrent fenses within part in remand reverse sentence 1—303(l)(a); § Colorado. both Utah and 18— appears It to us trial court. matter to the 1294, 1299 People Morgan, see days of Wentling is to 119 addi: entitled issue, then, is whether the remand, the trial On tional PSCC.3 bar, in section exception to the set forth first addi the correct number of should determine 1—303(1)(a)(I), exception applies. That 18— days of tional PSCC. if offense for which defendant applies requires proof in of a prosecuted was Conclusion

VI. in prosecution in required not fact ¶ first judgment Wentling’s trespass of de- and “the degree 55 The for criminal first defining is intended gree trespass conviction affirmed. Wen- law each of the offenses part in harm or tling’s prevent substantially sentence is reversed different 1—303(l)(a)(I); Morgan, mittimus to see to amend the ease is remanded evil.” 18— days. PSCC 1299. the correct additional P.2d at include ¶ argue that does not 58 Defendant concurs. JUDGE HARRIS first Colorado’s Utah statute and specially concurs. J. JONES JUDGE proof of trespass require statute criminal They plainly facts. do precisely the same concurring. specially JUDGE J. JONES proof, for requires not. The Utah statute majority I opinion. in 56 I concur actually example, exer the defendant however, ques separately, address write motor control over the cised unauthorized majority unanswered: did tion the leaves vehicle, temporarily deprive intended that, failing to be in rule district court err possession, did vehicle’s owner prosecuted in Utah for was cause defendant the owner twen return the vehicle to within vehicle, control over a unauthorized ty-four hours of the unauthorized exercise for prosecuting him Colorado 41-la-1314(1), Ann. control. Utah Code by trespass is barred section 18—1— (3) (West 2015). 18-4-502, C.R.S. Section majority concludes C.R.S.2015? The de defines the which plain error because there was trespass, requires proof of gree criminal is, to construe the any failure error —that Instead, things. as relevant to none of those Colorado statutes issue Utah and vehicle, only of motor it suggests obvi manner defendant —was a motor proof that the defendant entered See Peo agree I that conclusion. ous. to commit a crime with intent ¶¶ 25-32, Lacallo, ple v. therein. prece (explaining that the lack of argue that the two may an 59 But defendant does construing a error dent statute mean prevent substantially purposes are intended statutes construction was obvious specifically, he review); harm or More the same evil. error prevent 99, ¶ 36, argues that both laws “seek Heywood, 2014 COA days days PSCC October is entitled to 119 Wentling, appeal, for 89 cate he in his asked 3. PSCC; however, February 2011 to calculations indi- additional our entering possessor loss, rightful from a motor vehicle tects individual from while vehicle, briefly.” protects His even statute take the Owner however, argument, dwelling fails for two reasons: wrongful or motor vehicle en- erroneously try.” focuses on the evidence relevant Id. at The fact the division said charges particular case rather jeopardy this the context of a anal- double defining of- ysis significant than on “the law each because section 18-1-303 fenses,” misperceives and it harm evil “codif[y] federal and sought prevented to be prohibitions against state jeopardy.” double Morgan, statute. 785 P.2d at 1296.1 18-l-303(l)(a)(I) directs the 60 Section ¶ 63 The Martinez division’s articulation statutes at court to determiné whether the purpose the first tres substantially are intended to issue pass other correct. Numerous looking harms or at “the evils recognized courts that have modem defining me, each of the To law offenses.” a protect statutes ex landowner’s interest requires how each plainly this examination of cluding from proper others landowner’s defined, proved. or charged See, Willis, 8, 178 ty. e.g., State v. 218 Ariz. Elsewhere, requires the statute examination 480, (Ariz.Ct.App.2008); 483 v. State of the offenses are whether “based Tullo, 843, (Me.1976) (“The 366 848 law A.2d 18-l-303(l)(a). § But conduct.” same making attempt to dwelling enter a house setting requirements forth the of subsection permission was without enacted to better exception to first the bar does not. 18- protect occupant owner or in the thereof l-303(l)(a)(I). Rather, a it more ....”);2 enjoyment property also 3 of generalized of comparison holistic LaFave, Wayne R. Substantive Criminal at issue. statutes (2d 2003). Thus, 21.2, Laiv at 224 as ed. recognized, implicitly by the Martinez divi defined, at issue are 61 As the offenses sion, Assembly’s placement of the General prevent to or evils. intended different .harms prohibition against entry of a unlawful statute is akin to a theft statute. The Utah trespass- a otherwise statute prevent taking plainly It intended to of applicable, trespass of dwellings indicates to period vehicle for of a motor an extended entry that it is the the. unlawful into below, But, fully time. discussed more is the harm or statute vehicle which evil the degree Colorado’s criminal prevent. to seeks of a motor entry it relates to statute —as entry vehicle—seeks the unlawful ¶ 64 I note that 18-4- because section regardless of vehicle. And this is so into the entry 502 a motor criminalizes unlawful into ciime commit the offender intends to commit á crime the vehicle. within therein, burglary stat- is structured like a Martinez, degree v. P.2d 255 bur- 62 In 640 ute. Colorado’s first and second court, statutes, example, unlaw- (Colo.App.1981), glary division this proscribe buildings addressing jeopardy challenge or entry remaining double ful into prosecution occupied for both theft of a motor vehicle structures “with intent to commit 18- n -202(1), §§ 18-4- trespass' a crime.” and first therein vehicle, 203(1), interests” As with first same noted the C.R.S.2015. “distinct vehicle,, by the of- protected the theft and crimi- of a motor entry pro- burglary trespass statutes: “the theft fense bars unauthorized nal statute 18-1-303, C.R.S.2015, pur original have held "extends the 2. Other courts 1. Section (and continuing pose purpose) ot tres perhaps a jeopardy prohibition double to situations where' against pass protect is to violence statutes sovereignty doctrine the dual otherwise would Okeke, See, e.g., Murphy threats of violence. v. permit prosecution sepa- operate to state after 783, (D.C.2008); People 788-89 v. Go 951 A.2d sovereign prosecuted has the defendant for rate 605, (Ill. duto, 385, 21 174 N.E.2d 387 Ill.2d People Morgan, offense.” v. 785 P.2d the same 1961). is, too, substantially harm or That evil 1294, 1296 pre primarily sought different from that temporary deprivation by statute. vented Utah's 424 149,3. sense, at it makes And therefore burglar intends of the regardless crime me, pre occupied the harm or building or to 'assess evil least inside burglary by thus Colorado’s statutes vented

structure. Modern security looking in purpose at the protect statute intended are See, e.g., pur than the enclosures. rather tegrity particular generally, that statute 838, Nible, Cal.App.3d 247 Cal. addressing 200 the crime the pose v. statute (1988); People Beauchamp, 396, Rptr. 399 ve commit within defendant intended to 319, 366, 1, 944 N.E.2d 462, Ill.Dec. Esch, 348 241 mad 466 People v. hicle. Cf. Pace, (2011); 602 N.W.2d State (determining, for (Colo.App.1989) purposes Haines, (Iowa 1999); A.2d State 18-1-303(1)(a)(1), state statute (Me.1993); State v. criminalizing exploitation of a child sexual Office Muqqddin, rel. federal, Pub. ex criminalizing sexual and a Def. (also (N.M.2012) noting laws that such of the mails exploitation of a child use protect right to ex “the are evils).4 Doing substantially different address State, S.W.2d clude”); Richardson pur leads the conclusion so here (Tex.Crim.App.1994); State v. Wil pose section 18-4-502 son, Wash.App. § 41-1a-1314. purpose of Code Ann. pur (2007). have that this courts held And Lanahan, People v. A.D.2d Cf. un burglary prohibiting laws pose animates (applying stat 606-08 N.Y.S.2d Beau into motor entry vehicle. lawful 1—303(1)(a)(1),and similar to section ute 18— 366, 944 at 323 champ, N.E.2d 348 Ill.Dec. burglary concluding prosecution 310, 85 (citing Steppan, 106 Ill.2d People v. prosecution in precluded by prior not another (1985)); N.E.2d 1304 Ill.Dec. possession property of stolen jurisdiction Richardson, By analogy, at 823. S.W.2d6 during burglary offenses because the therefore, sought .to. be the harm evil harm or prevent “very of evil” different kinds is, again, by 18-4-502 prevented section Skinner, 200 A.D.2d (quoting itself. entry unlawful (1994))). 606 N.Y.S.2d point: crime A final whatever one sum, requirements 66 In because both com trespassing or to commit when intends exception to bar section 18-1-303’s pe is mitting burglary, crime intended case, prose are in this could met laws, pur by having other their own nalized 18-4-602, violating section cute defendant poses. burglary laws must The entering not the district court err did purpose independent some then have charge.5 judgment of on that conviction criminalizing by purpose the law served Nible, Cal.Rptr. See at intended crime. (the burglary in against prohibition danger personal to address the

tended

safety, “not deter the and the crime, prohibited oth which are laws”); ex rel. the Pub. er Def. Office Wilson, 632; Muqqddin,

3. Indeed, approach burglary complete upon 4. Such an crime consistent jeop requisite entry, long apply elements test in the double strict ardy we so as defendant had context, Gonyea, whereby compare People- elements we intent. See evidence, offenses, (Colo.App.2008). The defendant need to determine building actually or occu offense of crime whether one crime is a lesser included pied guilty burglary, further People, structure to another. Armintrout v. indicating purpose prohibiting 1993). noted, (Colo. served that the is es As section 18-1-303 n purpose underlying is not the served the by burglary crime sentially provision. jeopardy a double with re This holds true statutes. relies, Morgan, on does not which defendant spect degree criminal to the first case, compel contrary, In that well, conclusion. only to commit which Rhodus, at issue the court did statutes vehicle. See held crime within 17-20, (analogiz require proof ¶¶ within the mean- of different facts 303 P.3d 109 Therefore, 1—303(l)(a)(I). ing of ing of a motor 18— second re- not address burglary). did whether vehicle to

2016 COA 14 Colorado, PEOPLE State

Plaintiff-Appellee,

Miguel SANDOVAL, Rosalie

Defendant-Appellant. Appeals

Court of No. 13CA1827 Appeals,

Colorado Court

Div. V. February

Announced

quirement exception prevention of differ- P.2d-at 1301-02. — Morgan, ent harms or evils —was satisfied.

Case Details

Case Name: People v. Wentling

Court Name: Colorado Court of Appeals

Date Published: Dec 3, 2015

Citation: 2015 Colo. App. LEXIS 1857

Docket Number: Court of Appeals 12CA1423

Court Abbreviation: Colo. Ct. App.