People v. Aguayo, s. 92SA148
| Citation | 840 P.2d 336 |
| Decision Date | 09 November 1992 |
| Docket Number | 92SA149,Nos. 92SA148,s. 92SA148 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Joseph Nick AGUAYO and Marvin Dennis, Jr., Defendants-Appellees. The PEOPLE of the State of Colorado, Petitioner, v. DISTRICT COURT, GILPIN COUNTY, Colorado, and the Honorable Kenneth E. Barnhill, the Judge thereof, Respondents. |
| Court | Supreme Court of Colorado |
Donald E. Mielke, Dist. Atty., Donna Skinner Reed, Chief Appellate Deputy Dist. Atty., Golden, for plaintiff-appellant.
Schoenwald & Lewis, P.C., Forrest W. Lewis, Denver, for Marvin Dennis, Jr.
David F. Vela, Public Defender, Terri L. Brake, Chief Deputy Public Defender, Denver, for Joseph Nick Aguayo.
The People appeal a ruling of the Gilpin County District Court precluding the death penalty from consideration at the trial of the defendants, Joseph Nick Aguayo and Marvin Dennis, Jr. 1 The trial court ruled that sections 16-11-801 and -802, 8A C.R.S. (1992 Supp.), could not be applied to subject defendants to the death penalty because such application would violate the ex post facto clause of the Colorado Constitution. Additionally, the court held that the pre-1988 death penalty statute was not revived as a result of our holding in People v. Young, 814 P.2d 834 (Colo.1991), where we found the 1988 version of the death penalty sentencing statute unconstitutional (§ 16-11-103, 8A C.R.S. (1988 Supp.) ("1988 statute")). 2 We affirm.
The order of relevant events plays an important role in our decision. Because of their significance we begin with a chronology of the death penalty sentencing statutory amendments as related to the occurrences in this case.
Prior to 1988, a jury was required to follow a four-step sentencing procedure in determining whether to impose a sentence of life imprisonment or death. See § 16-11-103, 8A C.R.S. (1986) ("pre-1988 statute"). 3 In 1988, this statute was amended by Senate Bill 78 (1988 statute) to consolidate two of the four steps. The fourth step was thus eliminated, and Senate Bill 78 specifically repealed section 16-11-103(2)(a)(III), the source of the fourth step. On July 9, 1991, we announced our decision in People v. Young, 814 P.2d 834 (Colo.1991), finding that the death penalty sentencing statute as amended in 1988 was unconstitutional because it eliminated the fourth step of the jury's deliberation process in determining whether to impose a sentence of life imprisonment or death upon conviction for a class 1 felony. Approximately one month later, defendants were charged with several felonies, including two counts of first degree murder, aggravated robbery, and conspiracy to commit aggravated robbery, as a result of the death of Rex Hayden Miller on July 30, 1991. Both defendants plead not guilty.
In response to this court's decision in Young, but after the commission of the charged offenses, the General Assembly in House Bill 91S2-1001, repealed and reenacted with amendments the death penalty sentencing statute. § 16-11-103, 8A C.R.S. (1992 Supp.) (approved and effective September 20, 1991). House Bill 91S2-1001, by reenacting the pre-1988 version of the death penalty statute, § 16-11-103, 8A C.R.S. (1986) (the pre-1988 statute), again made the death penalty available as a sentence for persons convicted of class 1 felony offenses committed on or after September 20, 1991. 4
On October 11, 1991, with the express intent that "there be no hiatus in the imposition of the death penalty as a sentence for the commission of a class 1 felony in the State of Colorado as a result of the holding of the Colorado Supreme Court in People v. Young," House Bill 91S2-1038 was enacted, creating two new statutes. Ch. 6, sec. 1, §§ 16-11-801 and -802, 1991 Colo.2d Ex.Sess.Laws 16 (codified as §§ 16-11-801 and -802, 8A C.R.S. (1992 Supp.)). In essence, section 16-11-801 provides that to the extent that the pre-1988 statute was not "automatically revitalized by operation of law," section 16-11-802 was applicable to offenses committed on or after July 1, 1988, and before September 20, 1991. Section 16-11-802 provides for a four-step jury deliberation process, and is almost identical to the pre-1988 statute. 5
Both defendants filed motions to preclude the death penalty from consideration. The trial court granted defendants' motions, rejecting the People's argument that the pre-1988 statute was revived as a result of the declaration in Young that the 1988 statute was unconstitutional. The court also ruled that application of section 16-11-802, as enacted by House Bill 91S2-1038, would violate the ex post facto clause of the Colorado Constitution art. II, § 11. This appeal followed.
Recently, in People v. District Court (Thomas), 834 P.2d 181 (Colo.1992) (hereinafter Thomas ), we set forth a detailed history of the death penalty sentencing statute and the relevant changes to that statute. A similar argument concerning the issue of revival of the pre-1988 statute was raised in Thomas. In light of our opinion in Thomas, and for the reasons stated therein, the district court properly determined that the People could not seek the death penalty against Aguayo and Dennis under the pre-1988 statute and we affirm the trial court's ruling on this issue.
The People urge that sections 16-11-801 and -802 (collectively referred to as "House Bill 1038") can be retroactively applied to the defendants here without offending either federal or state ex post facto protections. In Thomas, we set forth the standard under which legislation is to be examined to determine an ex post facto violation. As in Thomas, we examine House Bill 1038 "under the standard that the ex post facto clause is violated when a statute punishes as a crime conduct which was innocent when done, makes more onerous the punishment for a crime after its commission, or deprives a defendant of a defense that was available at the time the crime was committed." Thomas, 834 P.2d at 199 (plurality opinion of Rovira, C.J.) (footnote omitted). In Thomas, the law annexed to the crime was a sentencing statute later found to be constitutionally infirm. Because the subsequent statute did not involve a more onerous punishment than was offered by the judicially invalidated statute, the subsequent statute could be retroactively applied. Thus, we held that application of House Bill 1038 to a defendant accused of committing a class 1 felony before the decision in Young did not violate either the federal or state proscriptions against ex post facto laws.
Here, however, the offenses with which the defendants are charged occurred after our decision in Young. As a result of our decision in Young, at the time defendants allegedly committed these class 1 felony offenses there was no valid death penalty sentencing statute in effect. 6 Applying sections 16-11-801 and -802 retroactively so as to impose a death penalty would, therefore, inflict a greater punishment than the law annexed to the crime when committed, thus violating both the federal and state constitutional proscriptions against ex post facto laws.
However, the People argue that section 18-1-105(1)(a)(IV), 8B C.R.S. (1992 Supp.) (class 1 felony punishable by minimum sentence of life in prison or maximum sentence of death), was an operative fact placing the defendants on notice that death was a possible penalty for first degree murder. This argument, however, ignores the existence of section 18-1-105(4) which provides:
(4) A person who has been convicted of a class 1 felony shall be punished by life imprisonment unless the proceeding held to determine sentence according to the procedure set forth in section 16-11-103, C.R.S., results in a verdict which requires imposition of the death penalty, in which event such person shall be sentenced to death.
§ 18-1-105(4), 8B C.R.S. (1992 Supp.) (emphasis added). By its plain language, section 18-1-105 contains a mandate that in the absence of sentencing procedures in accordance with section 16-11-103, the only penalty for a class 1 felony is life imprisonment. In Young, we found the death penalty sentencing statute contained in the 1988 statute, § 16-11-103, 8A C.R.S. (1988 Supp.), to be unconstitutional. Young, 814 P.2d 834, 846-47 (1992) (plurality opinion of Lohr, J.). Thus, contrary to the People's assertion, at the time of the alleged offenses section 18-1-105 gave notice that the death penalty would not be imposed for class 1 felonies. At the time of the offenses, the only possible punishment for class 1 felonies was life imprisonment.
Accordingly, we affirm the trial court's ruling that the prosecution cannot seek the death penalty against the defendants in this case.
I concur in the judgment of the court and in parts I and II of the majority opinion. I agree as well that the death penalty is not an available sanction for a crime of first-degree murder committed between July 9, 1991, the date of our decision in People v. Young, 814 P.2d 834 (Colo.1991), and September 20, 1991, the effective date of the current death penalty statute, commonly referred to as House Bill 1001, now codified at section 16-11-103, 8A C.R.S. (1992 Supp.), under the rationale adopted by a majority of the court in People v. District Court, 834 P.2d 181 (Colo.1992) (Thomas ). See maj. op., part III, at 338-339. I adhere to the view expressed in my separate opinion in Thomas, however, that application of the death penalty for any first-degree murder committed between the July 1, 1988, effective date of Senate Bill 78, eliminating the fourth step of the process by which a jury is to determine whether the death penalty should be imposed on a person convicted of first-degree murder, 1 and the September 20, 1991, effective date of House Bill 1001, reenacting the fourth step, would violate the Colorado Constitution's...
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