OADC Weekly Case Law Update

This podcast covers case summaries distributed on 11/7/2023.

Cases and Keywords with timestamps:

(01:44) People v. Bice, 2023COA98 (October 26, 2023); Conspiracy to manufacture, dispense, sell, or distribute, or to possess with intent to manufacture, dispense, sell, or distribute, a specified amount of a controlled substance remains a DF(1) under section 18-18-405(1)(a), despite the plain language of §18-2-206(7)(a).

(06:18) Puerta v. Newman, 2023COA100 (October 26, 2023); An alleged victim does not have a cause of action under section 13-21-131(1) from the failure of law enforcement officers to timely process evidence that would allegedly have resulted in a criminal defendant's conviction for a specific offense.

(09:02) People v. Salazar, 2023COA102 (November 2, 2023); Multiple issues, including: For the offense of sexual assault on a child by one in a position of trust (SAOC-POT), the government does not need to prove that a defendant knew they were in a position of trust.

Links:

People v. Bice, 2023COA98

https://files.constantcontact.com/45bb5db5401/85c7adb5-b7a2-4771-bba6-86fc291d7fb6.pdf?rdr=true

Puerta v. Newman, 2023COA100

https://files.constantcontact.com/45bb5db5401/99573f21-3d52-4c15-ad71-31f65e8a4df2.pdf?rdr=true

People v. Salazar, 2023COA102

https://files.constantcontact.com/45bb5db5401/c9287456-dab4-4365-a2c7-814ec2a0ff63.pdf?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 10/31/2023.

Cases and Keywords with timestamps:

(01:18) UNPUBLISHED People v. C.E.G., 21CA0250 (October 5, 2023); Suvi Miller's testimony impermissibly bolstered the victim's credibility when she answered the prosecutors questions about C.M.'s specific disclosures by opining on C.M.'s behavior.

(06:36) UNPUBLISHED People v. Jaszczyk, 22CA17 (October 5, 2023); The division found Weeks error by distinguishing Babcock and applying Roberson.

(13:04) UNPUBLISHED People v. Ellis, 22CA60 (September 28, 2023); Issue# 1: The trial court erred by imposing a five-year period of mandatory parole when the statute, based on the date of offense, required a three-year period,

Issue #2: In finding Ellis is a SVP, the trial court may have erred by basing its finding that he promoted the relationship for the purposes of sexual victimization.

(16:12) UNPUBLISHED People v. Martinez-Ortega, 22CA509 ((October 5, 2023); The majority found that Martinez-Ortega's challenge to causation by stipulating to causation in his plea agreement. Judge Fox dissented because his agreement to causation did not waive his challenge to the amount of damage he caused.

Links:

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 10/24/2023.

Cases and Keywords with timestamps:

(01:46) People v. Walthour, 2023 CO 55; County Court's authority to suppress evidence.

(7:48) People v. Price, 2023COA96; McDonald standard in COCCA cases not retroactive, Merger, Patronizing has substantially different conduct than pimping, sufficiency of evidence.

(15:10) People v. Tanner, 2023COA97; Defendant can only be convicted for single count of careless driving even though there were multiple victims, unit of prosecution for careless driving.

(17:16) People v. Koon and concerning intervenor Dustin Synn, 23COA116; Trial court jurisdiction after time limit has passed for appeal applies to intervenor.

Links:

People v. Walthour, 2023 CO 55

https://files.constantcontact.com/45bb5db5401/23865939-bf4d-4f2a-b547-21f265e3f1f0.pdf?rdr=true

In Re People v. Maes, 23SA273 Rule 21 Petition

https://files.constantcontact.com/45bb5db5401/00848ae1-46f8-41e1-a223-2aadfa82211d.pdf?rdr=true

In Re People v. Honstein_ 23SA271 Govrt R21 petition

https://files.constantcontact.com/45bb5db5401/d5f85393-7b70-47c9-8ade-5a2d9cc8e4df.pdf?rdr=true

People v. Price, 2023COA96

https://files.constantcontact.com/45bb5db5401/a502b7a4-aed4-4424-83f5-948ff33325e8.pdf?rdr=true

People v. Tanner, 2023COA97

https://files.constantcontact.com/45bb5db5401/a6d107a8-17f5-47ef-8a4a-8b7b23b44a22.pdf?rdr=true

CoLab "Undisciplined"

https://colabnews.co/colorado-police-misconduct-discipline-criminal-justice-reform/

Discriminate Policing Prosecution and Incarceration of BIPOC 2.0

https://files.constantcontact.com/45bb5db5401/8f87bc0c-48cc-47b1-9934-3a27a167e156.docx?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 10/17/2023.

Cases and Keywords with timestamps:

(01:46) People v. Seymour 2023 CO 53; Good Faith exception to allow evidence obtained through Google reverse keyword search.

(18:44) People v. McPherson, 20CA0506; Evidence required to establish SBI, SBI requires substantial risk of protracted impairment or loss of function.

(20:58) People v. Glover, (October 12, 2023); Brockelman factors.

(23:57) People v. Salazar, 21CA0949; Definition of seized and carried in kidnapping instruction.

(26:44) People v. Brown, 21CA1031; Sufficiency of evidence to support finding of previous convictions for drinking and driving offenses.

Links:

In re. People v. Seymour, 2023 CO 53

https://files.constantcontact.com/45bb5db5401/e74085b4-5fee-413f-a13d-8b608e2d4a5e.pdf?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 10/10/2023.

Cases and Keywords with timestamps:

(01:34) People v. Hollis, 2023COA91; "Buy money" does not qualify for a victim's pecuniary loss under the restitution statute and is not an extraordinary prosecution cost.

(03:12) People v. Mortenson, 2023COA92; Robbery requires evidence of a "taking" of something from the person or presence of another using force, threats, or intimidation. Attempting to take the items is not a "taking".

(07:24) People v. Addington, 20CA0911; The trial court erred by instructing the jury in a manner that relieved the prosecution of establishing the victim was lawfully in the residence where the defense argued the shooting was justified under the defense of premises statute.

(10:51) People v. Rogers, 20CA1843; A witness cannot assert the Fifth Amendment privilege when the witness's testimony may admit criminal conduct where the statute of limitations has lapsed for possible charges related to that conduct.

Links:

People v. Hollis, 2023COA91

https://files.constantcontact.com/45bb5db5401/0007ea12-028b-4a71-9ca7-085f779922ba.pdf?rdr=true

People v. Mortenson, 2023COA92

https://files.constantcontact.com/45bb5db5401/6058d93c-3c3f-48d0-a562-43411672691e.pdf?rdr=true

DORA Report re. Criminal convictions as barriers to professional entry

https://files.constantcontact.com/45bb5db5401/4f48bb67-15f4-4845-b86b-4f022f6dac65.pdf?rdr=true

OSAC Registry: https://www.nist.gov/organization-scientific-area-committees-forensic-science/osac-registry#face

The Office of the Alternate Defense Counsel (OADC) is hiring a Postconviction Unit Coordinator for its new Postconviction Unit (PCU): https://www.coloradoadc.org/about-us/join-our-team

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 10/4/2023.

Cases and Keywords with timestamps:

(02:08) People v. Caswell, 2023 CO 50; Second or subsequent charge of animal cruelty escalates charge from class 1 misdemeanor to class 6 felony, Determination of previous offenses is a sentence enhancer and not an element that must be proven to a jury.

(07:52) Dorsey v. People, 2023 CO 51; Prior Conviction for failure to register is a sentence enhancer and not an element that must be proven to a jury.

(08:51) People v. C.H. 2023COA86; Sealing of deferred judgments and domestic violence offenses post-2019.

(13:42) People v. Sanchez-Maciel, 19CA1625; SAOC-POT is not a crime of violence unless it is part of a pattern of abuse.

(14:50) People v. Sahota, 21CA279; Summary denial of IAC (plea counsel) due to inaccurate advice about possible sentences and waiver of a challenge to the SVPASI used to determine SVP status.

(20:43) People v. Sehorn, 21CA0284; Additional restitution untimely ordered.

(23:27) People v. Castillo, 21CA1619; Untimely order of restitution.

Links:

People v. Caswell 2023 CO 50

https://files.constantcontact.com/45bb5db5401/8f3c6cd3-8d3e-45b8-ac5d-c88ccd1d5d09.pdf?rdr=true

Dorsey v. People 2023 CO 51

https://files.constantcontact.com/45bb5db5401/eb2c7091-c89b-47e1-98b8-87b6a5afbf70.pdf?rdr=true

People v. C.H., 2023COA86

https://files.constantcontact.com/45bb5db5401/3cb9abe8-b312-4eb0-af76-06b68e498905.pdf?rdr=true

Gallagher, Sealing Criminal Histories

https://files.constantcontact.com/45bb5db5401/4c056cdd-da82-4296-a275-f2f95bef57af.pdf?rdr=true

Greater Colorado Fellowship: Click here for the full job description and how to apply. Please complete the online application by 11:59 PM on October 25, 2023.

Want to learn more about the Fellowship, please watch the recording of our recent Q/A session to hear more from practitioners in Greater Colorado.

Free ABA (Non-CLE) Webinar: https://www.americanbar.org/events-cle/mtg/web/435095109/

Deaths in Custody: a National Crisis, October 9, 2023 at 12:00 pm - 1:30 pm Mountain Time (2pm EDT)

PD Case Load Study

The ABA and Rand Corporation have published their public defender caseload study.

https://www.rand.org/pubs/research_reports/RRA2559-1.html

Bert's Suggested TedTalk

https://www.ted.com/talks/julian_treasure_how_to_speak_so_that_people_want_to_listen?language=en

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 9/26/2023.

Cases and Keywords with timestamps:

(02:20) People v. Schnorenberg, 2023COA82; Testimony regarding advice from counsel can be admitted to show state of mind in securities fraud prosecutions, Statutory tolling for counts before 2013, Admissibility of expert testimony from securities fraud experts.

(06:32) People v. Kennedy 2023COA83; Disagreeing with People v. Strock, 252 P.3d 1148 (Colo. App. 2010), the division finds that vehicular homicide under section 18-3-106(1)(b)(I) is not a per se grave or serious offense for purposes of proportionality review.

(10:23) People v. Lopez, 20CA1910; Trial court erred by not ordering competency evaluation after defense counsel objected to court's determination on competency, Trial court erred by judicially noticing defendant's presence in court when CPO was entered.

(16:19) People v. Nawrocki, 23CA0696; Trial court properly dismissed the F(6) third degree assault on an at-risk person count when the prosecution did not have any witnesses for a preliminary hearing and could not establish good cause to continue the hearing beyond the 35-day period allowed for a preliminary hearing under Crim. P. Rule 7(h)(2).

(20:33) People v. Passmore, 20CA1908; Amendment to add valid COV count the day before trial did not violate Crim.P.Rule 7(e), Restitution not valid when prosecution submits request after 91-days.

(24:26) People v. Williams, 20CA0638; Extraordinary risk provisions require government to plead and prove COV even for per se COV counts, Third-degree assault conviction must merge with first-degree assault conviction where defendant engaged in single act of assault.

(27:38) People v. Bazel, 16CR3268; Reversal of district court denial of IAC for plea bargaining.

Cert Grants/Rule 21s:

People v. Rodriguez-Morelos, No. 22SC982, Court of Appeals Case No. 19CA915

Randolph v. People, No. 23SC167, Court of Appeals Case No. 20CA174

In re. People v. Howell, 23SA227 (Rule 21)

Links:

People v. Schnorenberg, 2023COA82

https://files.constantcontact.com/45bb5db5401/2b5f925a-7dc1-4690-b1b4-c3165b5b801b.pdf?rdr=true

People v. Kennedy 2023COA83

https://files.constantcontact.com/45bb5db5401/80c63304-c531-47f2-908f-d668263f16ea.pdf?rdr=true

PWC: Randolph v. People, No. 23SC167 PWC

https://files.constantcontact.com/45bb5db5401/f966ac3a-a058-4c49-b8a4-1053b9b14c08.pdf?rdr=true

Rule 21 Petition: In re. People v. Howell, 23SA227

https://files.constantcontact.com/45bb5db5401/83c5269c-8df5-4e35-ba7e-309a96f51906.pdf?rdr=true

Order re. Bazel's 35(c) petition

https://files.constantcontact.com/45bb5db5401/70dc9891-a386-4229-8d71-268cbe49a5de.pdf?rdr=true

Formal Opinion 508: https://www.americanbar.org/content/dam/aba/administrative/professional_responsibility/aba-formal-opinion-508.pdf

Remote Public Access to Criminal Court Proceedings:

HB23-1182: https://leg.colorado.gov/bills/hb23-1182

CJD 23-02: https://www.courts.state.co.us/Courts/Supreme_Court/Directives/23-02%20LIvestreaming%20Criminal%20Trial%20Court%20Proceedings%20WEB1.pdf

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

NOTE regarding unpublished Colorado Court of Appeals opinions: Please remember the Court of Appeals Policy states that the citation of unpublished opinions in the Court of Appeals is forbidden, with limited exceptions. Copies of unpublished opinions are provided for private use and are not to be included in an electronic database or otherwise published. Also, please note that you are free to cite unpublished cases in the district court for whatever persuasive value the judge may give them. Patterson v. James, 2018 COA 173, ¶¶ 40-43. You may request unpublished cases from the COA at http://www.courts.state.co.us/Courts/Court_Of_Appeals/Opinion_Request.cfm

This podcast covers case summaries distributed on 9/19/2023.

Cases and Keywords with timestamps:

(01:37) People v. Bastein, 22CA0959; CORRECTION – Denial of 35(a) motion for illegal increase of sentence under COV provision.

(05:20) People v. Bastein, 22CA0959; Speedy trial of joined cases, use of a pole camera and expectation of privacy, COCCA conviction due to associated-in-fact enterprise where association is gang affiliation, Money laundering due to transfer of drugs not money, Testimony about locations identified in Google Maps is not expert testimony, Merger of conspiracy convictions.

Links:

People v. Woodyard, 23COA78

https://files.constantcontact.com/45bb5db5401/5622e5fb-baf0-42ef-8aee-640968ce8374.pdf?rdr=true

Korey Wise Innocence Project (KWIP) Fundraiser

https://files.constantcontact.com/45bb5db5401/e0a375e2-372a-4c54-a558-8cf9e1e91d72.png

The Brennan Center's State Court Report: https://statecourtreport.org/state-case-database

University of Michigan's Data for Defenders: https://datafordefenders.org/

CPR Article on Jimmy Genrich's case: https://www.cpr.org/2023/09/11/innocence-project-grand-junction-pipe-bombing-case-wrongful-convictions/

Ketanji Brown Jackson commemorating the 60th anniversary of the Birmingham Church Bombing: https://youtu.be/Y8l-DgHV1fk?si=2wKFeE61cBoJ7Yoj

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

This podcast covers case summaries distributed on 9/12/2023.

Cases and Keywords with timestamps:

(01:09) Medina v. People, 2023 CO 46; Basis of factual guilt for Alford Plea.

(06:30) H.J.B., v. People in Interest of A-J.A.B., 2023 CO 48; Due diligence required to determine if child is of Indian ancestry in D&N proceedings.

(09:32) Cert grants and Rule 21 Proceedings

Tennyson v. People, No. 23SC168

Bock v. People, No. 23SC97

In Re People v. Phillips, 23SA220

Links:

Medina v. People

https://files.constantcontact.com/45bb5db5401/8fdd9470-1f12-4133-b0c4-ca2201ed359d.pdf?rdr=true

HJB In re. Interest of A-J A.B.

https://files.constantcontact.com/45bb5db5401/92ba8e5f-39a4-4962-a915-72ea062a6775.pdf?rdr=true

Phillips R21

https://files.constantcontact.com/45bb5db5401/824c0fa7-830d-48f4-b0dc-04c5a90c3717.pdf?rdr=true

People v. Bock PWC

https://files.constantcontact.com/45bb5db5401/596bfcbe-40ab-4f57-b479-edb9bb7ca4ad.pdf?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/

This podcast covers case summaries distributed on 8/29/2023 and 9/5/23.

Cases and Keywords with timestamps:

(02:12) People v. Bonde, 2023COA75; Presentence Confinement Credit calculation for non-residential time.

(04:22) People v. Smith, 19CA1788; Duress Affirmative Defense Instruction, Prosecutor's use of post-Miranda silence as proof of guilt, Prosecutor's misconduct.

(14:08) People v. Tesar, 21CA1406; Waiver of right to counsel must be knowing and intelligent, as well as voluntary.

(16:21) People v. Blackwell, 21CA1764; Post conviction motion asserting newly discovered evidence which establishes innocence, Evidence of newly discovered evidence not required at the time of filing the motion.

(21:16) People v. Rogers, 21CA1137; Vacation of restitution order and order for court to refund all illegally paid restitution.

(26:44) Christmas v. Nabors, No. 21-14230 (11th Cir. August 8, 2023); § 1983 claims for violation of First Amendment rights for recording attorney correspondence.

Links:

People v. Bonde, 2023COA75

https://files.constantcontact.com/45bb5db5401/4d7719e4-137b-44b9-9587-840975be6cbf.pdf?rdr=true

Christmas v. Nabors, No. 21-14230 (11th Cir. August 8, 2023)

https://files.constantcontact.com/45bb5db5401/09c03591-2a66-47a5-92c9-8c81e2c69e8e.pdf?rdr=true

Denver CCDB/OADC Roadshow Registration Information:

https://ccdb.org/?pg=Events&evAction=showDetail&eid=270602

Rule Change for R21

https://files.constantcontact.com/45bb5db5401/b449f590-03c3-41a7-b120-3f2e95ec3982.pdf?rdr=true

Contact Shawndell Irving here: Shawndell Irving

Music by Scott Holmes. Used under a Creative Commons license. Download today's music at: http://freemusicarchive.org/