People v. Diaz

• Decision Date: 27 April 2015
• Docket Number: Supreme Court Case No. 12SC939
• Parties: The PEOPLE of the State of Colorado, Petitioner v. Joseph Phillip DIAZ, Respondent.
• Court: Colorado Supreme Court

347 P.3d 621

2015 CO 28

The PEOPLE of the State of Colorado, Petitioner

v.Joseph Phillip DIAZ, Respondent.

Supreme Court Case No. 12SC939

Supreme Court of Colorado.

April 27, 2015

Cynthia H. Coffman, Attorney General, Christine C. Brady, Senior Assistant Attorney General, Denver, Colorado, for Petitioner.

Kathy Goudy, Alternate Defense Counsel, Carbondale, Colorado, for Respondent.

En Banc

Opinion

JUSTICE HOOD delivered the Opinion of the Court.

¶ 1 While serving a sentence in an unrelated case (the original sentence), the defendant, Joseph Phillip Diaz, punched a prison guard (the first assault). Less than three months later, while still serving his original sentence, Diaz threw a cup that hit another guard in the mouth (the second assault). The district attorney charged him in two cases with second degree assault of a detention center employee. Diaz finished serving his original sentence before trial in either case. Trial for the second assault preceded trial for the first. A jury found Diaz guilty, and the court sentenced him to ten years in prison for the second assault. Shortly thereafter, another jury found Diaz guilty of the first assault, and the court sentenced him to ten years consecutive to the ten years already imposed for the second assault.

¶ 2 A majority of a division of the court of appeals held that the trial court erred by ruling that section 18–3–203(1)(f), C.R.S. (2014), required that the sentence for the first assault be served consecutively to the sentence for the second assault.¹ People v. Diaz, 2012 COA 158M, ¶ 19, –––P.3d ––––. We granted certiorari to consider whether the court of appeals erred by concluding that under section 18–3–203(1)(f) mandatory consecutive sentencing applies only to the sentence the defendant was serving at the time of the assault.

¶ 3 We hold that section 18–3–203(1)(f) requires a consecutive sentence if, at the time of sentencing, the defendant is serving any other sentence. Therefore, we reverse the court of appeals and remand for further proceedings consistent with this opinion.

I. Facts and Procedural History

¶ 4 On August 11, 2009, Diaz was serving a sentence at the Colorado State Penitentiary (“CSP”) for felony menacing (the original sentence). While CSP conducted a mandatory strip search of the defendant during the process of transferring him to a different cell after an incident, the defendant punched one of the guards in his eye with a closed fist. According to that guard, the defendant had blood on his hand at the time the defendant struck him. Consequently, medical personnel also took blood from the guard to verify there was no blood-borne pathogen exposure. This incident became case number 09CR332 (the first assault). On September 29, 2009, the district attorney charged Diaz with second degree assault of a detention center employee under section 18–3–203(1)(f) for the first assault.

¶ 5 On October 22, 2009, while still in custody at CSP for his original sentence and now with a new charge pending for the first assault, Diaz threw water in a guard's face as she attempted to collect his food tray. While she cleared the water from her glasses so she could see, the defendant reached through the tray slot and threw the cup at her head hard enough to require two stitches to her lower lip. This incident gave rise to case number 09CR417 (the second assault). The district attorney subsequently charged the defendant with second degree assault of a detention center employee under section 18–3–203(1)(f) for the second assault.

¶ 6 Before trial in either case, Diaz finished serving his original sentence.

¶ 7 Trial for the second assault preceded trial for the first, possibly because of delays related to evaluating the defendant's sanity and his competency to stand trial. On December 1, 2010, a jury found Diaz guilty, and, on January 24, 2011, the court sentenced him to ten years in prison for the second assault.² On January 25, 2011, another jury found Diaz guilty of the first assault. After the guilty verdict, the People dismissed two habitual criminal counts in the case involving the first assault. On February 9, 2011, the court sentenced him to another ten years for the first assault, consecutive to the ten years already imposed for the second assault.³

¶ 8 Although the trial court equivocated on this point during the sentencing hearing on February 9, 2011, the court made several remarks at the conclusion of the hearing strongly suggesting that it construed the statute to require a consecutive sentence for the first assault.⁴ It is the trial court's decision to impose what it perceived as a mandatory consecutive sentence for the first assault that is at issue in this appeal.

II. Standard of Review

¶ 9 Statutory interpretation is a question of law we review de novo. Smith v. Exec. Custom Ho m es , Inc. , 230 P.3d 1186, 1189 (Colo.2010) ; Hendricks v. People , 10 P.3d 1231, 1235 (Colo.2000).

III. Analysis

¶ 10 Section 18–3–203(1)(f) reads in pertinent part:

A person commits the crime of assault in the second degree if: ... [w]hile lawfully confined or in custody, he or she knowingly and violently applies physical force against the person of a peace officer.... A sentence imposed pursuant to this paragraph (f) shall be served in the department of corrections and shall run consecutively with any sentences being served by the offender ....

(Emphasis added.)

¶ 11 The question for us is the point in time to which the phrase “any sentences being served by the offender” refers. The prosecution argues that the term “any” plainly refers to any sentences the offender is serving at the time of the sentencing. The defendant argues, and the majority below held (see Diaz , ¶ 12 ), that the phrase is ambiguous and applies only to sentences the offender was serving at the time of the assault.

¶ 12 When construing a statute our primary purpose is to ascertain and effectuate the intent of the General Assembly. Romero v. People, 179 P.3d 984, 986 (Colo.2007). If the statutory language is clear and unambiguous, no further statutory analysis is required. Id. We construe the statute as a whole, in an effort to give consistent, harmonious, and sensible effect to all its parts, and we read the words and phrases in context and construe them according to the rules of grammar and common usage. § 2–4–101, C.R.S. (2014); Davison v. Indus. Claim Appeals Office, 84 P.3d 1023, 1029 (Colo.2004). “We do not add words to the statute or subtract words from it.” Turbyne v. People, 151 P.3d 563, 567 (Colo.2007).

¶ 13 But if the statutory language is susceptible of more than one reasonable interpretation, it is ambiguous and we may apply other rules of statutory interpretation. Vensor v. People, 151 P.3d 1274, 1277 (Colo.2007). “The plainness or ambiguity of statutory language is determined by reference to the language itself, the specific context in which that language is used, and the broader context of the statute as a whole.” Robinson v. Shell Oil Co., 519 U.S. 337, 341, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997).

A. The Plain Language

¶ 14 The majority below found the plain language ambiguous: “[Q]uoting the statute simply begs the question: ‘with any sentence being served’ when?” Diaz, ¶ 17 n.2. We disagree for several reasons.

¶ 15 First, we agree with Judge Russel, who in his dissent opined that “this phrase means just what it says—‘with any sentences being served.’ ” Diaz, ¶ 23 (Russel, J., dissenting). The construction of the majority below requires us to add words—that is, to read the phrase “at the time of the assault” into the statute. See People v. Benavidez, 222 P.3d 391, 394 (Colo.App.2009) (interpreting section 18–3–203(1)(f) and rejecting a similar argument). “But, in interpreting a statute, we must accept the General Assembly's choice of language and not add or imply words that simply are not there.” Id. at 393–94. Like the court in Benavidez, we refuse the defendant's invitation to venture into legislative territory. Accord Turbyne, 151 P.3d at 567 (“We do not add words to the statute ....”); see also id. at 568 (“[W]e cannot supply the missing language and must respect the legislature's choice of language.”).

¶ 16 Second, the phrase in question begins with a reference to imposition of sentence: “A sentence imposed pursuant to this paragraph (f)....” This indicates that the time at issue is the time the sentence is imposed, not the time of assault.

¶ 17 Third, it is illogical to require a consecutive sentence only if the offender is still serving the sentence for which he was imprisoned at the time of the assault because section 18–3–203(1)(f), by its terms, also prohibits assaults that occur before a sentence is even imposed—that is, when an offender is “ lawfully confined or in custody as a result of being charged with ... a crime .” See § 18–3–203(1)(f) (emphasis added); see also Benavidez , 222 P.3d at 394 (noting that the provision also encompasses those who have been charged with a crime and requiring a consecutive sentence in that situation).

¶ 18 Last, had the legislature intended that the assault sentence at issue here be consecutive only to the sentence being served at the time of the assault, it could have said just that. It has certainly demonstrated the capacity to impose such a requirement in other provisions of the criminal code. See Benavidez, 222 P.3d at 394 (observing that the legislature could have added language under section 18–3–203(1)(f) similar to the language in the escape statute found at section 18–8–209(1), C.R.S. (2014), which states “[a]ny sentence imposed following conviction of an offense under [certain enumerated sections] shall run consecutively ... with any sentence which the offender was serving at the time of the conduct prohibited by those sections”).

¶ 19 The plain language of the statute makes clear that if, at the time of sentencing, the offender has “any” sentence to serve, the trial court “shall” impose a consecutive sentence.

B. The Legislative Purpose

¶ 20 Even...