People v. Godinez, Court of Appeals No. 14CA0505

Docket NºCourt of Appeals No. 14CA0505
Citation457 P.3d 77
Case DateDecember 13, 2018
CourtCourt of Appeals of Colorado

457 P.3d 77

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Omar Ricardo GODINEZ, Defendant-Appellant.

Court of Appeals No. 14CA0505

Colorado Court of Appeals, Division VII.

Announced December 13, 2018
Rehearing Denied February 21, 2019

Table of Contents

Majority Opinion

I. Introduction and Summary...81

II. Facts and Procedural History...82

A. The Crimes...82

B. The Prosecution and Change in Statutory Law...82

C. Developments in Colorado Case Law...83

III. The 2012 Amendments Do Not Apply to the Charges Against Godinez...83

A. The 2012 Amendments Did Not Divest the District Court of Jurisdiction Over Godinez or the Charges Against Him...83

B. Neither Stellabotte II Nor Any Binding Colorado Precedent Authorizes the Application of the 2012 Amendments to the Charges Against Godinez...85

C. Neither the Alleged "Procedural" Nature of the 2012 Amendments Nor the Rule of Lenity Requires Reversal...87

D. Godinez was Not Entitled to a Reverse-Transfer Hearing...87

IV. One Victim’s In-Court Identification of Godinez Did Not Violate His Constitutional Rights...88

A. Additional Factual Background...88

457 P.3d 81

B. Standard of Review and Applicable Law...89

C. Application...90

V. Admission of Out-of-Court Statements...91

A. Additional Factual Background...91

B. Standard of Review and Applicable Law...92

C. Application...92

VI. Constitutionality of Colorado Statutory Scheme Governing Sentencing of Juvenile Sex Offenders...94

A. Standard of Review and Applicable Law...94

B. Application...95

VII. Conclusion...95

Opinion Concurring in Part, Specially Concurring in Part, and Dissenting in Part

I. Retroactivity and Stellabotte II ...96

II. The 2012 Amendments Constitute "Ameliorative, Amendatory Legislation" Because They Mitigate Potential Penalties...96

A. Prerequisites to Retroactivity...96

B. Juvenile Penalties Serve Different Purposes Than Adult Penalties...97

III. Aggregate Sentences May Be Unconstitutional...99

I. Introduction and Summary

¶ 1 This case requires us to decide if amendments made by the General Assembly in 2012 to the statute that authorizes criminal direct filing in district court against a juvenile, Ch. 128, sec. 1, § 19-2-517, 2012 Colo. Sess. Laws 439-45 (the 2012 Amendments), are applicable to cases then pending, or only to cases filed on or after the effective date of the 2012 Amendments.

¶ 2 A jury convicted defendant Omar Ricardo Godinez1 of two counts of second degree kidnapping, two counts of sexual assault, and two counts of conspiracy to commit sexual assault. Godinez committed the crimes when he and some of his brothers used a deadly weapon to kidnap and forcibly sexually assault two women in two separate incidents. At the time of the crimes, Godinez was fifteen years old. The district court sentenced him to a controlling term of imprisonment of thirty-two years to life in the custody of the Department of Corrections.

¶ 3 Under the law in effect at the time that Godinez committed these crimes, the district attorney had the authority to directly file the charges in district court, notwithstanding that Godinez was a juvenile at the time he committed the crimes. § 19-2-517(1)(b), C.R.S. 2011. At that time, the district attorney had the sole authority to decide whether to file the charges in adult criminal court or in juvenile court, provided that the juvenile was at least fourteen years of age. Id. ; § 19-2-517(3)(a).

¶ 4 During the course of the district court direct-file proceedings, and well before the court entered the judgment of conviction, the General Assembly amended the direct-file statute in significant ways. First, the legislature increased the direct-filing minimum age from fourteen to sixteen, section 19-2-517(1), C.R.S. 2018; though, despite this change, a juvenile aged fourteen to fifteen may still be tried in adult court if the juvenile court transfers the case to the district court on the petition of the district attorney, section 19-2-518(1)(a), C.R.S. 2018. Second, the 2012 Amendments give a direct-filed juvenile the right to have a "reverse-transfer" hearing, at which a district court judge, not the district attorney, makes the final decision whether to try the juvenile as an adult, or whether to proceed in juvenile court. § 19-2-517(3).

¶ 5 After the enactment of the 2012 Amendments, Godinez moved to dismiss the charges against him on the theory that the 2012 Amendments divested the district court

457 P.3d 82

of subject matter jurisdiction because Godinez was only fifteen years old when he allegedly committed the crimes. He also contended that the 2012 Amendments should be applied retroactively to the charges against him. The trial court denied that motion and also denied Godinez’s alternative motion demanding a reverse-transfer hearing under the 2012 Amendments. Godinez appeals his judgment of conviction, including the underlying orders addressing the application of the 2012 Amendments.

¶ 6 We hold that the 2012 Amendments are not applicable to the criminal proceedings filed against Godinez. More specifically, we hold that the 2012 Amendments did not divest the district court of jurisdiction to try Godinez as an adult, nor do they apply retroactively under People v. Stellabotte , 2018 CO 66, 421 P.3d 174 ( Stellabotte II ), to impose procedural requirements not in effect when the charges were filed. We also hold that Godinez was not entitled to a reverse-transfer hearing. We reject his claim that a victim’s identification of him at trial violated his right to due process of law, as well as his claims of evidentiary error. Finally, we reject his claim that his sentences violate the Eighth Amendment. Accordingly, we affirm Godinez’s convictions and sentences.

II. Facts and Procedural History

A. The Crimes

¶ 7 In 2011, a male approached the victim, S.R., from behind, held a gun to her head, and forced her into an SUV with three other male occupants. They drove her to a house, walked her through the kitchen, directed her downstairs to a basement bedroom, and told her to remove her clothes. She pleaded with them to use a condom, so one of the males left to buy condoms. They then took turns sexually assaulting her. After the assaults, she asked to use the bathroom. The person who abducted S.R. took her to the bathroom, where she was able to see his face for five minutes. She later provided information to the police that enabled a police artist to make a composite drawing of her assailant. The four males then returned S.R. to the abduction site and released her, after threatening her with a gun and telling her not to report the incident.

¶ 8 A similar incident occurred the next month. The second victim, fifteen-year-old A.H., said a male grabbed her from behind as she walked down the street and told her not to scream. He then forced her into a gold SUV containing other males. She believed the male who abducted her was approximately her age. Although she never saw her abductor’s face, she said he had "spiky" hair and a big build. They drove her to a house, took her into a basement bedroom, and told her that they "had to rape her," which they then did. She lost one earring at some point during the assaults, which the police later recovered from the same gold SUV. As in the first crime, the assailants returned her to the abduction site, threatened harm if she reported the incident, and released her.

¶ 9 A.H. immediately reported the assaults and submitted to evidence collection. She was able to identify the SUV and the house to which she had been taken. The SUV was registered to Godinez’s father. Godinez and his family, including his four brothers, lived in the house where A.H. was assaulted.

¶ 10 The police located the SUV and conducted a traffic stop. The driver told the officer that he had five sons: Godinez (fifteen years old), A.G. (seventeen years old), Enrique Godinez (twenty-two years old), Ricardo Godinez-Solis (twenty-six years old), and Edgar Godinez-Solis (twenty-five years old).

B. The Prosecution and Change in Statutory Law

¶ 11 After an investigation, the police arrested Godinez (as well as some of his brothers). Under the then-applicable law, the prosecutor direct filed the charges against Godinez in district court in December 2011.

¶ 12 As described above, several months after Godinez was charged, the General Assembly amended the direct-file statute. The amendments became effective on April 20, 2012, but they do not state whether they apply prospectively or retroactively. Ch. 128, sec. 3, § 19-2-517, 2012 Colo. Sess. Laws 445.

¶ 13 Godinez moved to dismiss all the charges, contending that the 2012 Amendments

457 P.3d 83

divested the district court of jurisdiction over him and that they should be applied retroactively. Alternatively, Godinez requested a reverse-transfer hearing.

¶ 14 The trial court denied both the motion to dismiss and the motion for a reverse-transfer...

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6 cases
  • People v. Alemayehu, Court of Appeals No. 17CA1745
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    ...statements for purposes other than establishing the truth of the matter 494 P.3d 115 asserted."); People v. Godinez , 2018 COA 170M, ¶ 78, 457 P.3d 77 ("[T]he admission of nonhearsay does not implicate a defendant's confrontation rights under either the United States or Colorado Constitutio......
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    ...of the circumstances does not suggest a very substantial likelihood of misidentification." People v. Godinez , 2018 COA 170M, ¶ 58, 457 P.3d 77 (quoting Borghesi , 66 P.3d at 104 ).2. Application¶ 77 We conclude that the evidence presented at the suppression hearing supports the trial court......
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    ...And third, the Attorney General's burden — harmless beyond a reasonable doubt — is a "high bar." People v. Godinez , 2018 COA 170M, ¶ 84, 457 P.3d 77.¶ 44 In the end, we conclude that the restitution order must be vacated and the case remanded. On remand, the trial court must hold a hearing......
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