People v. Perea

• Citation: 74 P.3d 326
• Decision Date: 01 August 2002
• Docket Number: No. 00CA1473.,00CA1473.
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher PEREA, Defendant-Appellant.
• Court: Court of Appeals of Colorado

74 P.3d 326

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Christopher PEREA, Defendant-Appellant.

No. 00CA1473.

Colorado Court of Appeals, Div. V.

August 1, 2002.

Rehearing Denied September 19, 2002.¹ Certiorari Denied July 28, 2003.²

Ken Salazar, Attorney General, John J. Krause, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Ellen K. Eggleston, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge ROY.

Defendant, Christopher Perea, appeals from a judgment of conviction of escape in violation of §§ 17-27.5-104 and 18-8-208(2), C.R.S.2001. We affirm the conviction, vacate the sentence, and remand for resentencing.

In August 1999, defendant, after release from incarceration, began serving a period of mandatory parole in an intensive supervision program (ISP). Defendant's parole officer informed him of the conditions of parole and the ISP directives, including the assigned curfew and electronic monitoring with an ankle bracelet, as well as the possible consequences of violations of the conditions and directives. Defendant initialed each ISP directive and signed the document.

On September 14, 1999, defendant's monitor showed that he had violated his curfew. The next day, defendant failed to appear for a scheduled appointment with his parole officer, and the electronic monitor indicated that the transmitter was unplugged. On September 20, when parole officers arrived at defendant's residence to investigate, defendant was present, but fled. The officers found that the ankle bracelet had been cut and the transmitter unplugged. Defendant was arrested two weeks later and convicted of felony escape after a trial to the court.

I.

Defendant argues that the State Board of Parole was not authorized to place him in an ISP pursuant to § 17-27.5-106, C.R.S.2001, because he was on mandatory parole and therefore not an offender who had been "granted parole" as that term is used in the statute authorizing ISP. We disagree.

In People v. Garcia, 64 P.3d 857, 2002 WL 58926 (Colo.App. No. 99CA2360, Jan. 17, 2002), another division of this court expressly rejected this argument. We are persuaded by the analysis and rationale of Garcia and, therefore, decline to depart from that holding.

II.

Defendant contends that his conviction was invalid because § 17-27.5-104 precedes § 17-27.5-106 and therefore does not apply to the latter statute. We know of no such rule of statutory construction and thus reject the argument.

Courts must read and consider the statutory scheme as a whole to give consistent, harmonious, and sensible effect to all its parts. See Martin v. People, 27 P.3d 846 (Colo.2001).

Section 17-27.5-106 authorizes the use of ISPs. Section 17-27.5-104 defines escape from custody in the context of ISPs:

If an offender fails to remain within the extended limits on his confinement as established under the intensive supervision program, or, having been ordered by the parole board, the executive director, or the administrator of the program to return to the correctional institution, neglects or fails to do so, he shall be deemed to have escaped from custody and shall, upon conviction thereof, be punished as provided in section 18-8-208, C.R.S. (emphasis added)

In light of the explicit reference to ISPs in § 17-27.5-104, this section plainly applies to § 17-27.5-106 and thus to defendant here.

III.

Defendant contends that there was insufficient evidence that he failed to remain within "the extended limits on his confinement" as that phrase is used in § 17-27.5-104. We disagree.

A.

Section 17-27.5-104 provides that "[I]f an offender fails to remain within the extended limits on his confinement as established under the intensive supervision program ... he shall be deemed to have escaped from custody."

Defendant argues that neither the statute nor case law has defined the phrase "extended limits on his confinement." He maintains that because the plain and ordinary meaning of the word "extended" is "expanded," or "extended limits" means "outer limits," the phrase here unambiguously refers to the ISP directive that he remain within the Denver Metropolitan Area and the state of Colorado. We disagree.

In People v. Williams, 33 P.3d 1187 (Colo.App.2001), a division of this court disagreed with an identical characterization of the phrase "extended limits on his confinement." Although declining to reach the issue of the definition of the phrase, the division concluded that a curfew directive constituted an extended limitation on that defendant's confinement. In People v. Lucero, 654 P.2d 835 (Colo.1982), the supreme court held that an offender who was temporarily released from a correctional facility on a day pass remained in constructive custody, and the pass merely extended the limits of confinement from the facility to those granted by the pass. In light of these decisions, it is clear that the phrase "extended limits on his confinement" in § 17-27.5-104 refers to geographic and time limits placed on the offender beyond those imposed by incarceration in a correctional facility.

The trial court here correctly convicted defendant based on his violation of the reduced geographical limits imposed by the curfew directive, which his parole officer read and explained to him and which he signed. Thus, defendant knew of and understood the geographical limit imposed on him by the curfew.

B.

In a parallel argument, defendant argues that there was insufficient evidence to support the trial court's conclusion that he left his residence during the curfew period. He asserts that the prosecution presented evidence only that his monitor ceased to function and transmit signals from his ankle bracelet over the residential phone line because it was unplugged. We are not persuaded.

This case was tried to the court. It was free to consider and give equal weight to both direct and circumstantial evidence; to judge the sufficiency, probative effect, and weight of the evidence; and to draw any reasonable inferences and conclusions from the evidence. We cannot disturb its factual findings if they are supported by the record, as they are here. See People v. Stark, 691 P.2d 334 (Colo.1984); People v. Gagnon, 997 P.2d 1278 (Colo.App.1999).

The trial court found, "[T]he idea that [defendant] would cut off his ankle bracelet, disconnect the box, and fail to report to his parole officer, yet all the while continued to remain in the house ... doesn't make any sense at all."

The evidence established that defendant was out of range of the transmission box in his residence for brief periods during curfew hours on September 14 such that the transmission box could not record his proximity to the residence; the transmission box was disconnected as of September 15; defendant failed to report to his parole officer as required on September 15 and thereafter; when officers arrived at the residence on September 20, defendant fled, and the officers discovered that the ankle bracelet had been cut off.

This evidence supports the reasonable inference that defendant violated the curfew and thus the "extended limits on his confinement," see People v. Williams, supra, so we may not disturb the trial court's findings of fact.

C.

Defendant also argues that if the phrase "extended limits on his confinement" does not mean the Denver Metropolitan Area, then the statute violates due process because it is unconstitutionally vague. We disagree.

Statutes are presumed to be constitutional, and the party challenging a statute bears the burden of establishing unconstitutionality beyond a reasonable doubt. See People v. Janousek, 871 P.2d 1189 (Colo.1994). When reviewing a challenge based on vagueness, the court must construe the statute to uphold its constitutionality whenever a reasonable and practical construction may be applied. See People v. Longoria, 862 P.2d 266 (Colo.1993); see also People v. Hickman, 988 P.2d 628 (Colo.1999) (statute invalidated for vagueness if no limiting construction consistent with legislature's intent will preserve its constitutionality).

A law violates due process and is void for vagueness where its prohibitions are not clearly defined. Vague laws offend due process because they fail to give fair notice of the conduct prohibited and do not supply adequate standards to prevent arbitrary and discriminatory enforcement. See People v. Baer, 973 P.2d 1225 (Colo.1999); People v. Holmes, 959 P.2d 406 (Colo.1998).

When a statute is challenged as void for vagueness, the essential inquiry is whether the statute describes the forbidden conduct in terms so vague that persons of common intelligence cannot readily understand its meaning and application. See People v. Longoria, supra; Watso v. Colorado Department of Social Services, 841 P.2d 299 (Colo.1992). However, statutory standards frequently contain broad terms to ensure their applicability to varied circumstances. Generality is not the equivalent of vagueness; neither scientific nor mathematical certainty is required. A provision is not unconstitutionally vague simply because it could have been drafted with greater precision. See Board of Education v. Wilder, 960 P.2d 695 (Colo.1998); Watso v. Colorado Department of Social Services, supra.

A law is unconstitutionally vague only if it specifies no standard of conduct at all, and not if it requires a person to conform his or her conduct to an imprecise, but comprehensible normative standard. See People v. Hickman, supra; Board of Education v. Wilder, supra. We may sustain a facial vagueness challenge only where the enactment is impermissibly vague in all of its applications. See People v. Baer, supra.

A person who engages in conduct that is clearly proscribed by the statute cannot complain of the vagueness of the law as applied to the conduct of others. Therefore, in evaluating a statute, a court should focus on the...