People v. Montoya, 84CA0310
| Decision Date | 27 June 1985 |
| Docket Number | No. 84CA0310,84CA0310 |
| Citation | 709 P.2d 58 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. William A. MONTOYA, Defendant-Appellant. . III |
| Court | Colorado Court of Appeals |
Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Peter Stapp, Asst. Atty. Gen., Denver, for plaintiff-appellee.
Jeffrey A. Springer, P.C., Robert M. Brown, Jeffrey A. Springer, Denver, for defendant-appellant.
Defendant, William A. Montoya, appeals his judgment of conviction entered upon a jury verdict finding him guilty of first-degree assault in violation of § 18-3-202(1)(a), C.R.S. (1978 Repl.Vol. 8), and from the application of mandatory sentence for violent crime. We affirm defendant's conviction but set aside his sentence and remand with directions for resentencing.
Defendant admitted that, at the conclusion of an argument, he shot the victim. However, his testimony was to the effect that he had done so only after being punched and kicked by the victim and threatened with a switchblade knife. The victim's testimony at trial, though not consistent with an earlier deposition, was that he had merely pushed defendant out of the way and that he was shot as he was walking back to his house.
At the conclusion of the evidence, the court instructed the jury on the various matters under consideration including the issue of self-defense. During its deliberations, the jury sent out a written note inquiring of the court as follows: "Is the burden of proof on the prosecution to show that self-defense was not used?" Despite the defendant's request that the question be answered in the affirmative, the court instructed the jury that:
Defendant first asserts that the trial court committed reversible error when it refused to respond to the jury's inquiry. We disagree.
A trial court has a duty to answer proper jury questions. As the Supreme Court in Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402, 90 L.Ed. 350 (1946) noted: "When a jury makes explicit its difficulties a trial judge should clear them away with concrete accuracy."
However, the decision to give supplemental or clarifying instructions is within a trial court's discretion. See People v. Langford, 191 Colo. 87, 550 P.2d 329 (1976); People v. Woodward, 631 P.2d 1188 (Colo.App.1981).
Here, the trial court had instructed the jury correctly upon the prosecution's burden concerning the affirmative defense of self-defense. The instruction given followed the language of Colo. JI-Crim. No. 7:01 (1983).
Thus, the answer to the jury's question was contained in the instructions. Absent proof that the jury did not follow the trial court's instructions, we must presume that the jury did so. People v. Knapp, 180 Colo. 280, 505 P.2d 7 (1973). The trial court's response to the jury's question was within its discretion and did not constitute reversible error.
Inasmuch as our supreme court has declined to accept a transfer of this case, we decide the following constitutional issues.
Defendant contends that § 18-3-202(1)(a), C.R.S. (1978 Repl.Vol. 8), which punishes assault in the first degree as a class three felony, is unconstitutional because it denies the defendant equal protection of the law. We disagree.
Defendant argues that there is no method by which one can cause serious bodily injury without using a deadly weapon. The identical argument was raised and rejected in People v. Brake, 196 Colo. 575, 588 P.2d 869 (1979), which held that "there are various ways to cause serious bodily injury to another without the use of a deadly weapon."
Defendant next contends that the combination of his conviction of first degree assault, § 18-3-202(1)(a), C.R.S. (1978 Repl.Vol. 8), with mandatory sentencing for violent crimes, § 16-11-309, C.R.S. (1984 Cum.Supp.), and the resultant mandatory sentence beyond the presumptive range, denies him equal protection of the law. In the specific context of the facts before us, we agree.
The constitutional right to equal protection of the law under the Fourteenth Amendment and Colo. Const. art. II, § 25, guarantees like treatment and similar punishment of persons convicted of the same acts committed under similar circumstances. People v. Bramlett, 194 Colo. 205, 573 P.2d 94 (1977); People v. Calvaresi, 188 Colo. 277, 534 P.2d 316 (1975). That constitutional guarantee is violated when identical criminal conduct is punished with disparate criminal sanctions, or when different criminal penalties are imposed for similar criminal acts, without any rational basis to distinguish the illegal conduct. People v. Marcy, 628 P.2d 69 (Colo.1981).
Assault in the first degree is a class 3 felony with a presumptive range of punishment of 4 to 8 years imprisonment. See § 18-1-105, C.R.S. (1984 Cum.Supp.).
Section 16-11-309, C.R.S. (1984 Cum.Supp.) requires a mandatory sentence "greater than the maximum in the presumptive range, but not more than twice the maximum term," in certain circumstances including the commission of a "crime of violence." A "crime of violence" is defined in § 16-11-309(2)(a)(I), C.R.S. (1984 Cum.Supp.) as including those circumstances in which "defendant used ... a deadly weapon ... during the commission of ... first or second degree assault ...." Section 16-11-309(5), C.R.S. (1984 Cum.Supp.) requires the jury to make specific findings whether the accused used a deadly weapon during the commission of the crime or whether serious bodily injury or death was caused by the accused.
The defendant contends that, inasmuch as the finding under the mandatory sentencing count increased his punishment but failed to add any element not already included in the elements of first degree assault as charged, it resulted in a violation of his right to equal protection of the law. We agree.
In convicting defendant of subsection (1)(a) first degree assault, the jury found that defendant intended to, and did, cause serious bodily injury by means of a deadly weapon. This subjected defendant to a penalty of 4-8 years imprisonment. However, the jury made an additional specific finding, as required by the mandatory sentencing interrogatory, that ...
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...the guarantees of equal protection and due process. Our holding conflicts with the decision of the court of appeals in People v. Montoya, 709 P.2d 58 (Colo.App.1985), cert. granted November 11, 1985, in which the court held that the sentencing scheme at issue here--although raised in the co......
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