People v. Maloy

• Decision Date: 23 April 2020
• Docket Number: Court of Appeals No. 17CA0026
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cravaughn Lacrae MALOY, Defendant-Appellant.
• Court: Colorado Court of Appeals

465 P.3d 146

The PEOPLE of the State of Colorado, Plaintiff-Appellee,

v.Cravaughn Lacrae MALOY, Defendant-Appellant.

Court of Appeals No. 17CA0026

Colorado Court of Appeals, Division V.

Announced April 23, 2020

Philip J. Weiser, Attorney General, Brittany L. Limes, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

Megan A. Ring, Colorado State Public Defender, Brian Cox, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant

JUDGMENT AND SENTENCE AFFIRMED IN PART AND VACATED IN PART

Opinion by JUDGE J. JONES

¶ 1 Defendant, Cravaughn Lacrae Maloy, appeals the judgment of conviction entered on jury verdicts finding him guilty of patronizing a prostituted child, pimping of a child, keeping a place of child prostitution, and inducement of child prostitution. He also appeals the indeterminate sentence of four years to life in the custody of the Department of Corrections (DOC), imposed for his patronizing conviction.

¶ 2 We conclude that, under the facts of the case, charging Maloy with patronizing a prostituted child violated his right to equal protection of the laws. Accordingly, we vacate his conviction and sentence on that count. We otherwise affirm the judgment.

I. Background

¶ 3 Two teenagers, M.C. (seventeen) and R.S. (about fifteen), ran away from their group home. A little over a week later, they met Maloy — who was nineteen years old at the time — at a bus stop in Lakewood. They ran into him again the next day and walked with him to some apartments, where M.C. and Maloy talked. Apparently while there, M.C. started crying and Maloy told her "to shut up or he was going to beat [her] up or something."

¶ 4 Sometime later, either that same day or the next, Maloy told M.C. to stand on the corner near the White Swan Motel and sell herself.¹ She testified that she did so because she "didn't know how to say no" and was scared of Maloy. After she stood on the corner for a while, a customer picked her up and they went to his house for sex; afterward, he dropped her back off at the motel and she kept all the money he had paid her.

¶ 5 Maloy let M.C. stay with him that night. They went to an apartment where M.C. met Alicia Sykes, Maloy's girlfriend. Maloy told M.C. she had to work to stay there: she had to sell herself and make him money.

¶ 6 Over the next several days, M.C. continued to prostitute herself with Sykes. She had sex with another customer in a room at the White Swan Motel. To help attract more customers, Sykes took pictures of M.C. and posted them to a backpage.com ad she bought with a prepaid credit card. According to M.C., customers would call the number on the ad — which went to Sykes's phone — and set up meetings with M.C. through Sykes. Sykes told M.C. what to charge; M.C. would take the money she earned from customers and give it to Sykes or Maloy. She said that sometimes she was sleeping when a customer would call, and either Sykes or Maloy would wake her up and tell her to take a shower to get ready. M.C. also explained that on one occasion Maloy showed her the money that she had made and told her "good job."

¶ 7 Several days later, M.C. went to a Walmart, where a man picked her up. They drove into the mountains together. Police stopped the truck in Idaho Springs, discovered warrants for M.C., and arrested her.

¶ 8 Maloy, Sykes, and several of the customers were charged as a result of the prostitution operation. Maloy's case went to trial. He argued that he didn't induce M.C. to prostitute herself, didn't take money from her, and wasn't involved in the prostitution — instead, Sykes and M.C. had prostituted themselves of their own free will. Maloy also tried to argue that he reasonably believed M.C. was at least eighteen, but the district court denied his motion to allow an affirmative defense based on that belief. The court later instructed the jury on complicity. Ultimately, the jury found Maloy guilty of patronizing a prostituted child, pimping of a child, keeping a place of child prostitution, and inducement of child prostitution.² The court sentenced him to four years in DOC custody on all counts except for count 4 — patronizing a prostituted child — for which it sentenced him to four years to life pursuant to the Colorado Sex Offender Lifetime Supervision Act of 1998 (SOLSA).

II. Discussion

¶ 9 We conclude that, under the circumstances of this case, charging Maloy with patronizing a prostituted child violated his right to equal protection of the laws under the Colorado Constitution. We therefore vacate his conviction on that charge. As a result, we don't need to address all of his other contentions. Those that we must address — because they pertain to all of Maloy's convictions — are that (1) the district court erred by determining that section 18-7-407, C.R.S. 2019, prohibited him from raising a reasonable mistake of age defense; (2) if, because of section 18-7-407, mistake of age isn't a defense to child prostitution crimes, that statute violates his right to equal protection and deprives him of due process; (3) the district court erred by rejecting his tendered jury instructions on complicity; and (4) the prosecutor committed misconduct by misrepresenting facts during closing argument. We reject these contentions and affirm Maloy's other convictions.

A. Constitutionality of Patronizing a Prostituted Child

¶ 10 Maloy contends that section 18-7-406(1)(a), C.R.S. 2019, is unconstitutional because (1) it is unconstitutionally vague and (2) as applied to him, it violates his right to equal protection. We address the second contention first. Because we agree with Maloy's equal protection challenge we don't address his vagueness challenge.

1. Standard of Review

¶ 11 We review constitutional challenges to a statute de novo. People v. Graves , 2016 CO 15, ¶ 9, 368 P.3d 317 ; People v. Slaughter , 2019 COA 27, ¶ 15, 439 P.3d 80. Because Maloy didn't preserve his equal protection argument, we won't reverse unless any error was plain. Hagos v. People , 2012 CO 63, ¶ 14, 288 P.3d 116. Plain error is error that is both "obvious and substantial." Id. The latter requirement means that the error must have so undermined the fundamental fairness of the trial as to cast serious doubt on the reliability of the judgment of conviction. Id.

2. As-Applied Equal Protection Challenge

¶ 12 Maloy argues that, as applied to his conduct, section 18-7-406(1)(a) — criminalizing patronizing a prostituted child — violates his right to equal protection of the laws because it prohibits essentially the same conduct, or less culpable conduct, as other child prostitution offenses (specifically, soliciting for child prostitution, pandering of a child, and inducement of child prostitution) while carrying a much higher sentence. We agree as to pandering and inducement.

a. Applicable Law

¶ 13 "Colorado's guarantee of equal protection is violated where two criminal statutes proscribe identical conduct, yet one punishes that conduct more harshly." Dean v. People , 2016 CO 14, ¶ 14, 366 P.3d 593. Similarly, "[s]tatutes prescribing different sanctions for what ostensibly might be different acts, but offering no rational standard for distinguishing such different acts for purposes of disparate punishment, also contravene the equal protections guaranties of Colorado's constitution." People v. Wilhelm , 676 P.2d 702, 704 (Colo. 1984). And "Colorado's guarantee of equal protection is violated where two statutes proscribe similar conduct, yet the scheme imposes the harsher penalty for acting with intent to cause, or for actually causing, a less grievous result." Dean , ¶ 15 ; see, e.g. , People v. Montoya , 196 Colo. 111, 114-15, 582 P.2d 673, 675-76 (1978).

¶ 14 But "criminal legislation is not invalidated simply because a particular act may violate more than one statutory provision[.]" People v. Onesimo Romero , 746 P.2d 534, 537 (Colo. 1987). Rather, in considering an as-applied equal protection challenge, "we consider whether — under the specific circumstances under which [the defendant] acted — the relevant statutes, or specific subsections of the statutes, punish identical conduct, and whether a reasonable distinction can be drawn between the conduct punished by the two statutes." People v. Trujillo , 2015 COA 22, ¶ 21, 369 P.3d 693 (citing Onesimo Romero , 746 P.2d at 538-39 ).³ A reasonable distinction is one that is "real in fact and reasonably related to the general purposes of criminal legislation." People v. Marcy , 628 P.2d 69, 74 (Colo. 1981).

b. Analysis

¶ 15 The People challenge the premise of Maloy's contention, suggesting that since all of the other offenses to which he points are, like patronizing, at least class 3 felonies, they are subject to equal or higher sentencing ranges, meaning there is no disparate treatment. The People miss the mark.

¶ 16 Soliciting and inducement are both class 3 felonies and carry sentences of four to twelve years in DOC custody. §§ 18-1.3-401(1)(a)(V)(A), 18-7-402(2), 18-7-405.5(2), C.R.S. 2019. Depending on the subsection, pandering is either a class 3 felony or a class 2 felony (with a presumptive range of eight to twenty-four years in DOC custody). §§ 18-1.3-401(1)(a)(V)(A), 18-7-403(2), C.R.S. 2019. Patronizing is a class 3 felony as well, see § 18-7-406(2), but is included among SOLSA-punishable crimes, and therefore carries a sentence of four years to life. §§ 18-1.3-1003(5)(a)(X), - 1004(1)(a), C.R.S. 2019.⁴ Under the SOLSA sentencing scheme, the defendant is eligible for release at the bottom of the sentenced range (in Maloy's case, four years), but may, at the parole board's discretion, remain in prison indefinitely.

¶ 17 When analyzing an equal protection claim, Colorado courts "compare[ ] the relative severity of sentences by reference to the maximum possible period of incarceration, not the timing of parole eligibility." Dean , ¶ 10. Under this approach, a sentence that could potentially leave an offender in prison for life is necessarily harsher than a sentence...