People v. Onesimo Romero

• Decision Date: 30 November 1987
• Docket Number: No. 85SA319,85SA319
• Citation: 746 P.2d 534
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellant, Cross-Appellee, v. Edward ONESIMO ROMERO, Defendant-Appellee, Cross-Appellant.
• Court: Colorado Supreme Court

Page 534

746 P.2d 534

The PEOPLE of the State of Colorado, Plaintiff-AppellantCross-Appellee, v.Edward ONESIMO ROMERO, Defendant-Appellee, Cross-Appellant.

No. 85SA319.

Supreme Court of Colorado En Banc.

Nov. 30, 1987.

Rehearing Denied Dec. 21, 1987.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol.Gen., John Daniel Dailey, Deputy Atty. Gen., Eric Perryman, Asst. Atty. Gen., Denver, for plaintiff-appellant, cross-appellee.

Richard E. Young, Frank D. Plunkett, Jr., Denver, for defendant-appellee, cross-appellant.

ERICKSON, Justice.

The defendant, Edward Onesimo Romero, was charged with voting in the wrong precinct, a misdemeanor, section 1-13-709, 1B C.R.S.(1980), and four felony counts of providing false information regarding his residence, section 1-2-225, 1B C.R.S.(1980).The district court dismissed all charges, finding that the statute of limitations had run on the misdemeanor charge, and that the felony statute was unconstitutional as applied to the defendant because it deprived him of equal protection of the laws under article II, section 25 of the Colorado Constitution.The prosecution appealed the district court ruling.We reverse and remand the case to the district court with directions to reinstate the charges.

I.

On July 13, 1982, the defendant registered to vote in the City and County of Denver, listing his residential address as 2755 West 23rd Avenue.When he voted on September 14, 1982 and June 21, 1983, however, the defendant allegedly resided at an address located within a different precinct.In December 1984, the Attorney General filed an information charging the defendant with two felony counts of voting in an election by providing false information about his place of residence and one misdemeanor count of voting in a precinct in which he was not qualified to vote.

At a preliminary hearing in Denver County Court on counts one, two, and three, the testimony of the defendant, given in a related civil proceeding conducted on June 24, 1984, was admitted into evidence.The prosecution established probable cause and the case was bound over to the district court.On March 18, 1985, the Attorney General submitted a motion to file additional counts, which was granted.The fourth and fifth counts charged the defendant with voting in elections on November 2, 1982 and May 17, 1983, by providing false information regarding his place of residence.Prior to the preliminary hearing on the fourth and fifth counts, the defendant moved to prohibit the admission of his testimony given at the prior civil proceeding relying upon the privilege afforded by article VII, section 9 of the Colorado Constitution.The district court agreed with the defendant and suppressed the testimony.Nevertheless, the district court found that the prosecution established probable cause for both of the felony counts.

The defendant then filed a motion to dismiss the felony counts arguing that section 1-2-225, 1B C.R.S.(1980), a felony, was unconstitutional as applied to him because it proscribed conduct substantially similar to conduct prohibited by section 1-13-709, 1B C.R.S.(1980), a misdemeanor, yet imposed a more severe penalty.The district court agreed and dismissed each of the felony counts with prejudice.On its own motion, the district court dismissed the misdemeanor charge, finding that section 1-13-709, though denominated as a misdemeanor, grants the rights and carries the penalties of a petty offense and therefore must be prosecuted within the six-month statute of limitations for petty offenses.Because the prosecution filed the information well beyond the six-month period, the district court dismissed the misdemeanor count.

As grounds for appeal, the prosecution claims: (1)section 1-2-225 does not deny the defendant equal protection of the laws; (2)the district court improperly applied the six-month statute of limitations for petty offenses; and (3)the district court improperly applied article VII, section 9 of the Colorado Constitution to exclude evidence of testimony given in a civil proceeding.¹We agree.Accordingly, we reverse the district court and remand with instructions to reinstate the charges.

II.

The defendant contends that section 1-2-225, 1B C.R.S.(1980), violates equal protection of the laws by proscribing identical conduct as that in section 1-13-709, 1B C.R.S.(1980), which imposes a lesser penalty.²Section 1-2-225 provides:

Any person who votes by knowingly giving false information regarding his place of present residence commits a class 5 felony and shall be punished as provided in section 18-1-105, C.R.S. 1973.

Section 1-13-709 provides:

Any person who, at any election provided by law, knowingly votes or offers to vote in any election precinct in which he is not qualified to vote is guilty of a misdemeanor and, upon conviction thereof, shall be punished by a fine of not more than two hundred dollars or by imprisonment in the county jail for not more than three months.

Equal protection of the laws is guaranteed by the fourteenth amendment of the United States Constitution and by the due process clause in article II, section 25 of the Colorado Constitution.People v. Oliver, 745 P.2d 222, 227(Colo.1987).Equal protection of the laws assures that those who are similarly situated will be afforded similar treatment.People v. Mozee, 723 P.2d 117, 126(Colo.1986);People v. Calvaresi, 188 Colo. 277, 281, 534 P.2d 316, 318(1975)."When two criminal statutes prescribe different penalties for identical conduct, a defendant convicted and sentenced under the harsher statute is denied equal protection of the laws."Oliver, 745 P.2d at 227(quoting, Mozee, 723 P.2d at 126).If, however, there are reasonable distinctions between the statutes, equal protection is not offended.People v. Westrum, 624 P.2d 1302, 1303(Colo.1981).

While criminal legislation is not invalidated simply because a particular act may violate more than one statutory provision, People v. Taggart, 621 P.2d 1375, 1382(Colo.1981), "equal protection of the laws requires that statutory classifications of crimes be based on differences that are real in fact and reasonably related to the general purposes of criminal legislation,"People v. Mumaugh, 644 P.2d 299, 301(Colo.1982);seePeople v. Brown, 632 P.2d 1025(Colo.1981).The General Assembly may, however, prescribe more severe penalties for acts it perceives to have graver consequences, even if the differences are only a matter of degree.Mozee, 723 P.2d at 126;People v. Haymaker, 716 P.2d 110, 116(Colo.1986).

A.

The equal protection clause is implicated only where two statutes that apply different criminal sanctions proscribe the same conduct.People v. Czajkowski, 193 Colo. 352, 356, 568 P.2d 23, 25(1977).A facial examination of the two statutes reveals that the General Assembly did not proscribe the same conduct: A defendant violates section 1-2-225 when he actually votes by providing false information regarding his present residence;section 1-13-709 proscribes one from voting or offering to vote in a precinct in which he is not qualified to vote.To be qualified to vote one must: (1) be eighteen years old at the time of the election; (2) be a citizen of the United States; and (3) have resided in Colorado and the precinct in which he is registered to vote for thirty-two days immediately preceding the election.§ 1-2-101(1), 1B C.R.S.(1980).A voter may therefore violate section 1-13-709 without violating section 1-2-225.One may knowingly offer to vote in a precinct where he is not qualified to vote, but never actually vote.Section 1-13-709 is also violated when, not having reached the age of eighteen, a voter votes or offers to vote, when one not a citizen of the United States votes or offers to vote, and when one votes or offers to vote when he has not resided in the precinct in which he is registered to vote for thirty-two days immediately preceding the election.The misdemeanor statute, section 1-13-709, is a broader, more general, provision which proscribes conduct other than that enumerated in the felony statute, section 1-2-225.

On the other hand, a voter may violate section 1-2-225 by knowingly providing false information regarding his current address and voting in an election precinct in which he is otherwise qualified to vote.If a person knowingly provides false information about his place of residence, but the fabricated residence is located within the precinct in which he has resided for the thirty-two days immediately preceding the election, the voter violates the felony statute without violating the misdemeanor.We are satisfied that the conduct proscribed by the two statutes is sufficiently distinguishable to withstand a challenge of facial unconstitutionality.

B.

The defendant claims that, as applied to him, section 1-2-225 violates equal protection of the law by proscribing exactly the same conduct as section 1-13-709.We disagree.In order to vote in any "primary, general or congressional vacancy election" one must properly register.§ 1-2-201(1), 1B C.R.S.(1980).Section 1-2-225 prohibits, inter alia, a voter from enabling himself to vote by knowingly providing false information about his place of present residence.A voter provides information about his residence when he registers to vote, sections 1-2-203(1), (2)(a), (b), (3)(a), (b), 1B C.R.S. (1980 & 1986 Supp.), 1-2-204, 1B C.R.S.(1980), ³ and when he votes by signing a signature card on election day, section 1-7-107(1)(a), 1B C.R.S.(1980).⁴The conduct of the defendant that formed the basis of the felony counts was providing false information about his residence when he registered to vote, and then reaffirming the false information on election day by listing the false address on the signature card and signing it.

In the misdemeanor statute, section 1-13-709, the General Assembly sought to foreclose voters from knowingly...