People v. Lake

• Decision Date: 05 June 1978
• Docket Number: No. 27674,27674
• Citation: 195 Colo. 454,580 P.2d 788
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Douglas LAKE, Defendant-Appellant.
• Court: Colorado Supreme Court

Page 788

580 P.2d 788

195 Colo. 454

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. John Douglas LAKE, Defendant-Appellant.

No. 27674.

Supreme Court of Colorado,En Banc.

June 5, 1978.

Rehearing Denied July 24, 1978.

J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Edward G. Donovan, Sol. Gen., James S. Russell, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Rollie R. Rogers, Colo. State Public Defender, James F. Dumas, Jr., Chief Deputy State Public Defender, Carol L. Gerstl, Deputy State Public Defender, Denver, for defendant-appellant.

PRINGLE, Chief Justice.

The defendant, John Douglas Lake, was convicted in June 1976 of aggravated robbery and aggravated robbery of drugs. Sections 18-4-302 and 18-4-303, C.R.S.1973. He was subsequently sentenced to life imprisonment under the provisions of the Colorado Habitual Criminal Statute. Section 16-13-101(2), C.R.S.1973. Defendant does not challenge his conviction for aggravated robbery. He contends here that his conviction for aggravated robbery of drugs is not supported by the evidence and that the habitual criminal statute was improperly applied. We affirm the decision of the trial court.

On April 12, 1976, a man entered the Redlands Drugstore in Grand Junction and made an inquiry regarding a prescription. The only person in the store was the owner, Robert W. Holmes, a registered pharmacist. After a brief discussion, the man pointed a gun at Holmes and demanded all of the "narcotic drugs" in the store. Holmes placed two trays of drugs in a green mesh bag handed him by the robber.

The man then demanded all of Holmes' cash and was given $56. Holmes was ordered to the back of the store where his hands were tied behind his back. He was instructed not to move. His assailant then backed out of the store and fled by motorcycle.

Defendant was arrested a few hours later in an area some two and a half miles from the store. The drugs taken in the robbery as well as various items of clothing were found in the vicinity. Holmes later identified the clothing as that worn by the robber; he also selected the defendant's picture from a photographic lineup and identified the defendant at trial.

I

Aggravated robbery of drugs is defined as follows:

"A person who takes any narcotic drug from any pharmacy or other place having lawful possession thereof under the aggravating circumstances defined in section 18-4-302 is guilty of aggravated robbery of drugs." (Emphasis added.) Section 18-4-303, C.R.S.1973.

An essential element of this crime is proof that the drug taken is, in fact, a narcotic drug. This element, as with every material element of a crime, must be proven beyond a reasonable doubt. Defendant contends that, in the absence of some sort of independent chemical analysis, the proof presented in this case falls short of this standard. We disagree.

At the trial, the drugs allegedly stolen in the robbery were introduced through the testimony of the victim. Holmes testified that he had his own letter code and that those exhibits which carried either his code or the code of the person from whom he bought the pharmacy were evidence to him that they were from his store. Over objection, Holmes then indicated what drug was contained in certain bottles and packages, randomly selected by the prosecutor. The basis for this testimony was Holmes' experience in dispensing drugs and his interpretation of the labels affixed to the containers. The prosecution introduced no evidence of any chemical analysis performed with respect to these exhibits.

We cannot accept defendant's argument that chemical testing is necessary in all cases in order to prove that the items taken were in fact narcotic drugs. While the better practice would have been to subject the evidence to chemical analysis, the proof presented in this case was sufficient to submit the case to the jury. The victim of the crime, a qualified pharmacist, testified as to the items taken from the store, his system of labeling and identifying the substances in question, and the meaning of specific labels found on various exhibits. He also identified as narcotics the substances within the various containers based on his knowledge of the labels, the contents, and his experience as a pharmacist. From this evidence, the jury could conclude that the substances in question were in fact narcotic drugs. ¹

II

Defendant next challenges his sentencing pursuant to the so-called "big" habitual criminal statute:

"Every person convicted in this state of any felony, who has been three times previously convicted, upon charges separately brought and tried, either in this state or elsewhere, of a felony or, under the laws of any other state, the United States, or any territory subject to the jurisdiction of the United States, of a crime which, if committed within this state, would be a felony, shall be adjudged an habitual criminal and shall be punished by imprisonment in the state penitentiary for the term of his or her natural life. . . ." Section 16-13-101(2), C.R.S.1973.

The three prior "felony" convictions which the trial court relied upon in invoking this statute were "larceny from a motor vehicle" (section 40-5-11(2), C.R.S. '53), "fictitious check" (C.R.S.1963, 40-6-8) and "sexual assault on a child" (1971 Perm.Supp., C.R.S.1963, 40-3-408). This last conviction was obtained as the result of a plea bargain arising from a charge of statutory rape.

Defendant asserts three distinct constitutional infirmities in the application of the habitual criminal statute to him. We shall consider each challenge separately.

A

At the time the defendant entered his plea of guilty to sexual assault on a child, the statute read:

"(1) Any person who subjects another not his spouse to any sexual contact commits sexual assault on a child if the other person is less than sixteen years old and the offender is at least eighteen years of age." (Emphasis added.) 1971 Perm.Supp., C.R.S.1963, 40-3-408.

The "other person" in this case was fifteen years old at the time of the commission of the offense.

In 1975, the crime of sexual assault on a child was amended so as to apply only to sexual contact on a child less than fifteen years of age. Section 18-3-405, C.R.S.1973 (1976 Supp.). Defendant argues that but for the fact his conviction on the sexual assault charge is final, he would be entitled to the benefit resulting from this change in law pursuant to the terms of the postconviction relief statute. Section 18-1-410(1)(f), C.R.S.1973 (1976 Supp.). He therefore asserts that denying him the benefit of this change in law when applying the habitual criminal statute, violates his right to equal protection of the laws. ² We do not agree.

Before directing our attention to the merits of defendant's argument, we must address a preliminary question raised by the People concerning the jurisdiction of the courts to "review" a conviction once it has become final. It is true that once a conviction has become final, the trial court has no jurisdiction to review the sentence imposed with respect to that particular conviction. See, section 18-1-410(1)(f), C.R.S.1973, as amended, and People v. Arellano, 185 Colo. 280, 524 P.2d 305 (1974). However, when that final conviction becomes the basis for imposition of a life sentence pursuant to the provisions of the habitual criminal statute, this court has jurisdiction to determine whether that conviction may validly be considered under the terms of the recidivist statute. ³ See, Smalley v. People, 134 Colo. 360, 304 P.2d 902 (1956).

Acting within this narrow jurisdictional limit, we hold that defendant's conviction was properly considered as a predicate felony for purposes of the habitual criminal statute. The error in defendant's equal protection analysis is in his interpretation of the postconviction relief statute. Contrary to defendant's assertion, the postconviction relief statute is not directed toward conferring any benefit associated with a change in law of the nature in question here. Rather, in People v. Marlott, Colo., 552 P.2d 491 (1976), we discussed the scope of the postconviction relief statute in the following terms:

"This court has previously held that a defendant whose conviction has not become final is entitled under section 18-1-410(1)(f), C.R.S.1973 to the benefits of amendatory legislation mitigating the penalty for the same crime. (citations omitted) In such a case, the change in legal standards of punishment can be readily perceived for purposes of modifying the earlier sentence.

"However, where, as here, the new Criminal Code changes the elements of the crimes, (footnote omitted) there can be no measure by which to determine whether the standards of punishment have increased or decreased because the crimes are no longer the same. It was clearly not the legislative intent behind section 18-1-410(1)(f), C.R.S.1973 to permit the modification of sentences where the earlier crimes have been subsequently repealed and substantially new crimes have been enacted in their place. Were it otherwise, this court could only speculate as to the new crimes which defendant may have been charged with and convicted of in order to determine if his sentence should be reduced." (Emphasis in original.) 552 P.2d at 494.

In the case at bar, certain elements of the crime of sexual assault on a child were changed by the legislature in 1975. The crime of sexual assault on a child was not abolished. While the penalties changed, comparison is difficult. ⁴

In this context, the postconviction relief statute has no effect on the status of a felony conviction. Defendant, therefore, would not be entitled to any different treatment under the terms of the postconviction relief statute, than that afforded him here in the application of the habitual criminal statute.

We note that this reading of the postconviction relief statute is consistent with the intent of the legislature when it drafted the habitual...