People v. Cisneros
| Decision Date | 18 July 1977 |
| Docket Number | No. 27390,27390 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellant, v. Jesse Santana CISNEROS, Defendant-Appellee. |
| Court | Colorado Supreme Court |
Robert L. Russel, Dist. Atty., David H. Zook, Deputy Dist. Atty., Colorado Springs, for plaintiff-appellant.
No appearance for defendant-appellee.
The district attorney appeals solely on a question of law, pursuant to section 16-12-102, C.R.S.1973. After a preliminary hearing, the trial court dismissed the first charge of felony criminal mischief 1 against defendant Cisneros. Cisneros later pled guilty to the second charge, second-degree burglary, 2 in exchange for dismissal of a felony charge filed against him later. The issue is whether the trial court correctly interpreted the criminal mischief statute in reaching its decision to dismiss that charge. We find that the trial court erred.
Testimony given at the preliminary hearing was to the following effect. Colorado Springs police sergeant Tooley was dispatched to Curly's Bar in response to a burglar alarm. He observed two men apparently attempting to climb into the building through a 4' X 3' window with bars over it. Defendant Cisneros appeared to be assisting his companion who had kicked in the window glass and was trying to kick aside a metal cabinet which was pushed against the window from the inside. Cisneros' companion appeared to have his leg inside of the building. When they became aware of Tooley's presence, the companion fled but Cisneros was immediately apprehended and arrested.
The owner of Curly's Bar testified to the amount of damage done to the building on this occasion. Costs of repair and replacement of damaged items were estimated to be well over the hundred dollar limit which marks the difference between misdemeanor criminal mischief and class 4 felony criminal mischief.
At the conclusion of the preliminary hearing, the trial court dismissed the criminal mischief charge for failure to establish probable cause. The court stated that criminal mischief is not simply a lesser included burglary offense but requires the additional showing of a defendant's malice against property or its owner; and that value is irrelevant to a charge of criminal mischief.
The text of the criminal mischief statute follows:
(Emphasis added.)
In previous codes, the analogue of this offense was malicious mischief, one element of which was the "willful and malicious" destruction of property. C.R.S.1963, 40-18-1. The trial court apparently believed that malice remains an element of the offense despite its omission from the text of the revised statute, in order to differentiate the crime from a lesser included burglary offense.
A lesser included offense exists when the statute creating the greater offense requires all the essential elements of the lesser offense. People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974) and Daniels v. People, 159 Colo. 190, 411 P.2d 316 (1966). Even without the trial court's addition of the element of malice to the crime of criminal mischief, it is obviously not a lesser included burglary offense because the elements are far different. While criminal mischief requires damage to property, burglary does not. Compare sections 18-4-202, 18-4-203, and 18-4-204, C.R.S.1973 with section 18-4-501, C.R.S.1973.
Relying on cases construing the old malicious mischief statute, the trial court ignored the plain...
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People v. Fisher
...Id. The judge presiding at a preliminary hearing is required to apply the law to the prosecution's case. People v. Cisneros, 193 Colo. 380, 383, 566 P.2d 703, 705 (1977). "[I]t is not for the trial judge at a preliminary hearing to accept the defendant's version of the facts over the legiti......
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People v. Dunoyair
...the actual value of an object, the victim's economic loss will be limited to the actual value of the object. See People v. Cisneros, 193 Colo. 380, 566 P.2d 703 (1977). Actual value will generally be determined by market value, that is the price a willing buyer would pay for the object in t......
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Evans v. State, 4-1182A334
...376 N.E.2d 100. Instead, because IC 35-43-1-2 makes value an essential element of felony criminal mischief, accord People v. Cisneros, (1977) 193 Colo. 380, 566 P.2d 703, a showing of intent to cause damage of over $2500 was required. This is where we must conclude the State failed to meet ......
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State v. Barker, 16676
...mischief" provisions of U.C.A., 1953, 76-6-106, supra.3 In construing a similar Colorado statute, the court in People v. Cisneros, 193 Colo. 380, 566 P.2d 703 (1977), reached the same conclusion.4 U.C.A., 1953, 76-1-401 defines a "single criminal episode" as all conduct which is closely rel......