People v. Cisneros, Court of Appeals No. 09CA2717

• Decision Date: 24 April 2014
• Docket Number: Court of Appeals No. 09CA2717
• Parties: The People of the State of Colorado, Plaintiff-Appellee, v. Leo J. Cisneros, Defendant-Appellant.
• Court: Colorado Court of Appeals

2014 COA 49

The People of the State of Colorado, Plaintiff-Appellee,
v.
Leo J. Cisneros, Defendant-Appellant.

Court of Appeals No. 09CA2717

COLORADO COURT OF APPEALS Division IV

Announced April 24, 2014

City and County of Denver District Court No. 08CR479
Honorable William D. Robbins, Judge

JUDGMENT AND SENTENCE AFFIRMED

Opinion by JUDGE BOORAS
Román, J., concurs
Webb, J., concurs in part and dissents in part

John W. Suthers, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Douglas K. Wilson, Colorado State Public Defender, Elizabeth Porter-Merrill, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

¶1 Defendant, Leo J. Cisneros, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession with intent to distribute marijuana. He also appeals his enhanced sentence as a special offender. We affirm.

I. Background

¶2 At around 10:30 p.m. on November 26, 2007, defendant was at home with his wife, four children, brother, and mother when there was a knock on his front door. The knock came from a group of five acquaintances who were armed and intending to rob defendant. When defendant's brother answered the door, one of the robbers pushed the door open and pointed a gun into the apartment. At that point, gunfire erupted. The robbers fired shots into the apartment and defendant grabbed a handgun and fired shots toward the door. Defendant's ten-year-old daughter, who was caught in the crossfire, was shot in the head and died at the scene. It was not apparent who shot first or who fired the fatal shot.

¶3 Police and emergency services arrived shortly after the shooting. Officers entered the apartment and observed the victim's body on the floor in the living room, spent shell casings near the body, and a tray on the living room floor containing suspectedmarijuana. An officer spoke with defendant at the scene and, subsequently, a detective interviewed defendant at the police department several times. During the initial interview with the detective, defendant admitted that he owned a handgun and that he possessed and sold marijuana.

¶4 Police obtained a warrant and searched defendant's apartment. In addition to the items officers previously observed, the search recovered a bag of marijuana in the victim's hand, which was thrust into her pocket; $1145 in cash in a bedroom closet; the handgun and another gun on an armoire in a bedroom; a safe that had been under defendant's bed and which contained sixteen baggies of marijuana; a dresser drawer containing several boxes of live cartridge ammunition; and a gun-cleaning kit found on top of an armoire.

¶5 The People charged defendant with child abuse resulting in death, possession with intent to distribute marijuana, possession of marijuana – eight ounces or more, and one special offender count under the special offender statute's deadly weapon provision, Ch. 71, sec. 1, § 18-18-407(1)(f), 1992 Colo. Sess. Laws 362 (hereinafter section 18-18-407(1)(f)). The People alleged that defendant was anarmed drug dealer who sold drugs out of his home, thereby placing his daughter in a situation that posed a threat of injury to her life or health and resulted in her death. Regarding the special offender count, the People alleged that defendant possessed the handgun in connection with his drug dealing business.

¶6 The defense contended that the armed robbers, rather than defendant, were responsible for creating the unreasonably dangerous situation in which defendant's daughter was placed. They also argued that defendant purchased the handgun not to further his drug business but for self-defense, asserting that defendant lived in a dangerous neighborhood and had purchased the gun for protection.

¶7 After a jury trial, defendant was acquitted of the child abuse charge but found guilty of possession with intent to distribute marijuana. The jury also determined that he was a special offender because he "use[d], possess[ed], or ha[d] available for use a deadly weapon during the commission of and in connection with the crime of Possession With Intent to Distribute Marihuana." Based on the jury's determination, defendant received an enhanced sentence offifteen years in the custody of the Department of Corrections. This appeal followed.

II. Section 18-18-407(1)(f)

¶8 Section 18-18-407(1)(f), under which defendant was sentenced, provides that when an offender is guilty of possession of a controlled substance and the prosecution has pursued a special offender count, the jury must determine whether the offender "used, displayed, possessed, or had available for use a deadly weapon." If so, that determination constitutes an extraordinary aggravating circumstance, and the court is required "to sentence the defendant to the department of corrections for a term of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony." § 18-18-407(1)(f).¹

A. Deadly Weapon Instruction

¶9 Defendant contends that the trial court erroneously denied his request for an elemental jury instruction concerning possession of a deadly weapon under section 18-18-407(1)(f) and, instead, provided an instruction that omitted necessary elements. He argues that by refusing to provide an elemental instruction, the court (1) deprived him of his right to have a jury finding on each element of the greater offense; (2) misled the jury into thinking a different standard of proof applied to the special offender instruction because its form differed from the child abuse and possession instructions; (3) failed to "link the right to bear arms to the elemental special offender instruction so the jurors understood [that] liability under the special offender statute is limited"; and (4) confused the jury by providing an instruction that conflicted with the deadly weapon interrogatory on the possession with intent to distribute verdict form.

¶10 Defendant also argues that the verdict form did not require the jury to determine whether the prosecution proved beyond a reasonable doubt that defendant did not possess, display, or use the gun for the purpose of self-defense.

1. Preservation

¶11 Initially, we conclude defendant preserved his claim that an elemental instruction was required by objecting during the jury instruction conference that the deadly weapon special offender provision should be presented "as a separate offense with its own elements."² However, as to the contents of the elemental instructions and verdict forms, defense counsel's proposed language regarding the date of the offense and nexus to the marijuana offense was incorporated. Therefore, we perceive defendant's allegations of error on appeal to pertain only to the form of the special offender instruction, and not its contents.

2. Analysis

¶12 Section 18-18-407(1)(f) acts as a sentence enhancement provision and not a substantive offense. People v. Whitley, 998 P.2d 31, 33 (Colo. App. 1999). Nevertheless, any fact, other than a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000).

¶13 The plain language of section 18-18-407(1)(f) indicates that it is triggered only after a felony drug conviction. Its effect, after the fact finder has entered a special finding as to the existence of the special offender circumstance, is to increase the required sentencing range. See Whitaker v. People, 48 P.3d 555, 560 (Colo. 2002) (interpreting the importation provision of section 18-18-407).

¶14 Here, although the trial court denied defendant's request for an elemental instruction for the special offender count, it instructed the jury to find the presence or absence of the special offender deadly weapon fact only if it found defendant guilty of the underlying offense of possession with intent to distribute:

If you find defendant not guilty of possession with intent to distribute marihuana, you should disregard this instruction and fill out the verdict form reflecting your not guilty verdict. If, however, you find the defendant guilty of possession with intent to distribute marihuana, you should fill out the verdict form reflecting your guilty verdict, and then answer the following question:
On November 26, 2007, did the defendant use, possess, or have available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana?
It is the Prosecution's burden to prove beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana.
After considering all the evidence if you decide the prosecution has failed to prove beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana, you should indicate "no" on the verdict form that has been provided.
After considering all the evidence if you decide the prosecution has proven beyond a reasonable doubt that the defendant used,

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