People v. Nguyen

• Decision Date: 01 June 1995
• Docket Number: No. 93CA1162,93CA1162
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cao Tri NGUYEN, Defendant-Appellant. . II
• Court: Colorado Court of Appeals

Page 352

899 P.2d 352

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Cao Tri NGUYEN, Defendant-Appellant.

No. 93CA1162.

Colorado Court of Appeals,

Div. II.

June 1, 1995.

Rehearing Denied June 29, 1995.

Gale A. Norton, Atty. Gen., Stephen K. ErkenBrack, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Koehler, Asst. Atty. Gen., Denver, for plaintiff-appellee.

Russell S. Ray, Boulder, for defendant-appellant.

Opinion by Judge ROY.

Defendant, Cao Tri Nguyen, was convicted of one count of attempted manslaughter and three counts of second degree assault for his role as a driver of a car in a drive-by shooting. He was also adjudged to be an habitual criminal based on two prior felony convictions from the State of Louisiana, one for accessory after the fact to armed robbery in 1991 and one for criminal trespass in 1988. The defendant appeals only his adjudication as an habitual criminal based upon the 1988 criminal trespass conviction. We reverse the defendant's adjudication as an habitual criminal and remand for resentencing.

At the time of the defendant's adjudication as an habitual criminal, the relevant statute provided in pertinent part as follows:

Every person convicted in this state of any felony for which the maximum penalty prescribed by law exceeds five years who, within ten years of the date of the commission of the said offense, has been twice previously convicted upon charges separately brought and tried, and arising out of separate and distinct criminal episodes, 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 confinement in a correctional facility for a term of not less than twenty-five years nor more than fifty years.

Section 16-13-101(1), C.R.S. (1986 Repl.Vol. 8A) (emphasis added).

The Louisiana criminal trespass statute upon which the predicate conviction is premised provided:

A. No person shall without authorization intentionally enter any structure, water craft, or movable.

B. No person shall intentionally enter immovable property owned by another:

(1) when he knows his entry is unauthorized, or (2) under circumstances where he reasonably should know his entry is unauthorized.

La.Rev.Stat.Ann. § 14:63 (West 1986).

In 1988, the penalty for a violation of La.Rev.Stat.Ann. § 14:63 was imprisonment for a period of not more that ninety-one days, a fine of not more than five hundred dollars, or both. The parties agree that the Louisiana conviction for criminal trespass was a misdemeanor in Louisiana.

Colorado, then and now, categorized the crime of criminal trespass into three degrees with only first degree criminal trespass being punishable as a felony.

First degree criminal trespass was defined as:

A person commits the crime of first degree criminal trespass if he knowingly and unlawfully enters or remains in a dwelling or if he enters any motor vehicle with intent to steal anything of value.

Section 18-4-502, C.R.S. (1986 Repl.Vol. 8A).

Second degree criminal trespass was defined as follows:

A person commits the crime of second degree criminal trespass if he unlawfully enters or remains in or upon premises which are enclosed in a manner designed to exclude intruders or are fenced or if he knowingly and unlawfully enters or remains in or upon the premises of a hotel, motel, condominium, or apartment building.

Section 18-4-503, C.R.S. (1986 Repl.Vol. 8B).

Third degree criminal trespass was defined as:

A person commits the crime of third degree criminal trespass if he unlawfully enters or remains in or upon premises.

Section 18-4-504, C.R.S. (1986 Repl.Vol. 8B).

As pertinent to the circumstances at issue here, the material distinction between first degree criminal trespass and second and third degree criminal trespass is that first degree criminal trespass must be to a dwelling. See People v. Marshall, 196 Colo. 381, 586 P.2d 41 (1978). The term "dwelling" is defined by statute as "a building which is used, intended to be used, or is usually used by a person for habitation." Section 18-1-901(3)(g), C.R.S. (1986 Repl.Vol. 8B) (emphasis added).

Hence, in order for the defendant's Louisiana misdemeanor conviction for criminal trespass to be a predicate felony conviction in Colorado for habitual criminal purposes, it must be the equivalent to first degree criminal trespass, or other felony, in Colorado. Whether such is the case presents an issue of first impression with respect to this application of § 16-13-101(1).

At trial, the prosecution introduced the following documents relating to the Louisiana conviction for criminal trespass: a photograph of the defendant; an Arrest Register-Fingerprint Copy certified by the New Orleans Police Department and an Arrest Record-Magistrate or Municipal Court Copy certified by the Criminal District Court of the Parish of Orleans both of which contain a brief conclusionary statement that the defendant was found trespassing in an apartment; a bill of information charging the defendant and others with possession of an unregistered sawed-off shotgun; the Docket Master of the Orleans Parish Criminal District Court tracing the progress of the criminal proceedings, including some minute orders; a police incident report certified by the New Orleans Police Department not naming the defendant but containing brief conclusionary statements concerning a criminal trespass to an apartment; and a copy of Louisiana Revised Statute 14:63 in effect February 2, 1988, certified by the Louisiana Secretary of State.

The bill of information was amended by interlineation as follows: "Amended to 14:63 as to defendants ... Cao Tri Nguyen...." and was signed and dated by the prosecuting attorney. The Docket Master contains a minute order dated February 2, 1988, evidencing that the defendant, with others, pled guilty, acceptance of the plea by the court, and the sentence. The bill of information is not accompanied by any affidavit setting forth any factual basis for the original or amended charge; and no transcript of the Louisiana providency hearing was included stating a factual basis for the plea.

To supplement this evidence, the prosecution called two witnesses both of whom testified before the jury. The first witness was the New Orleans arresting officer who identified the defendant and testified concerning the circumstances of the arrest and that the criminal trespass charge related to an apartment. The second witness was the prosecuting attorney from Louisiana. This witness, who was admitted to practice in Louisiana, but not Colorado, identified the defendant and was then accepted as an expert witness in "the field of criminal law as it's narrowly concerned with criminal trespass" and was permitted to express the opinion that the trespass crime committed in Louisiana would be a felony if committed in Colorado. It is not clear from the record the scope of the witness' inquiry, but it appears that he took into account the conduct of the defendant which led to the conviction in Louisiana in reaching his opinion.

On this evidence the trial court submitted the issue to the jury, and the conviction at issue here resulted.

I.

We first address the issue whether the determination that the Louisiana misdemeanor conviction would have been a felony in Colorado is a question of law addressed to the court or a question of fact which may properly be submitted to a jury. The issue is raised by implication by the defendant who objected to the qualification of the expert and to the opinion testimony of the expert before the jury. The People concede that the expert should not have been permitted to testify before the jury and argue that the issue is one of law addressed to the court subject to de novo review on appeal. We agree with both parties.

If an out-of-state conviction was a felony in the state of conviction, it may be used in Colorado as a predicate felony under our habitual criminal statute. See § 16-13-101(1); People v. Drake, 785 P.2d 1257 (Colo.1990); Hahn v. People, 126 Colo. 451, 251 P.2d 316 (1952). This remains true even if the out-of-state conviction would have been a misdemeanor in Colorado. See People v. Renfrow, 199 Colo. 101, 605 P.2d 915 (1980); Burns v. People, 148 Colo. 245, 365 P.2d 698 (1961). Therefore, the only time a review of the classification of a foreign conviction is required is when the foreign conviction was a misdemeanor in the foreign state and is being offered as a predicate felony for an habitual criminal charge in Colorado. That is the circumstance here.

Colorado cases, while not directly addressing the issue before us, have indicated that the question of whether a prior conviction is a felony is a question of law. See People v. Chambers, --- P.2d ---- (Colo.App. No. 92CA0868, November 3, 1994) (question of whether previous offense is properly classified as a felony is a question of law and not one of fact); People v. Hampton, 857 P.2d 441, 445 (Colo.App.1992), aff'd, 876 P.2d 1236 (Colo.1994) ("classification of a defendant's offense is a question of law"); People v. Wieghard, 709 P.2d 81, 83 (Colo.App.1985) (not necessary that "the state prove that [habitual criminal counts] would be felonies in Colorado, as it is a matter of law of which the court may take notice"); People v. Swain, 43 Colo.App. 343, 344-45, 607 P.2d 396, 397 (1979) (because "Colorado courts must take judicial notice of law of every other state and federal jurisdiction ... explicit proof that the crime alleged was a felony where committed is not required except when requested by the court").

Colorado's apparent position is in accord with other jurisdictions which have addressed our issue directly. See State v. Spoonmore, 323 N.W.2d 202 (Iowa 1982) (question of law); Griffin v. State, 275...