People v. Perez-Hernandez

• Decision Date: 05 December 2013
• Docket Number: Court of Appeals No. 08CA1701
• Citation: 2013 COA 160,348 P.3d 451
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Ruben PEREZ–HERNANDEZ, Defendant–Appellant.
• Court: Colorado Court of Appeals

348 P.3d 451

2013 COA 160

The PEOPLE of the State of Colorado, Plaintiff–Appellee

v.Ruben PEREZ–HERNANDEZ, Defendant–Appellant.

Court of Appeals No. 08CA1701

Colorado Court of Appeals, Div. V.

Announced December 5, 2013

John W. Suthers, Attorney General, Wendy J. Ritz, First Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Britta Kruse, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion

Opinion by JUDGE CARPARELLI

¶ 1 Defendant Ruben Perez–Hernandez was seventeen years old when the District Attorney's Office for the 18th Judicial District direct filed three felony and one misdemeanor charges against him in district court. Defendant contends that he had a liberty interest in being tried as a juvenile, and that due process required that he receive notice and a hearing before the prosecutor direct filed. On these premises, he contends that Ch. 122, sec. 6, § 19–2–517, 2006 Colo. Sess. Laws 422, the direct file statute in effect when he was charged (the former direct file statute) was unconstitutionally applied in his case and is unconstitutional on its face. Although the direct file statute has since been revised, defendant's contentions present issues that are of continuing relevance to juveniles' due process rights and the sufficiency of the charges.

¶ 2 Defendant also contends that the information that initiated the adult criminal proceedings against him was not sufficient to establish jurisdiction in district court, and that the court erred when it (1) did not require the prosecution to elect among alleged acts of possessing burglary tools and (2) declined to give a unanimity instruction. We affirm.

I. Procedural History

¶ 3 Defendant was adjudicated a juvenile delinquent in 2004 and 2005 for four delinquent acts, arising out of separate and distinct criminal episodes, each of which would have been a felony if committed by an adult.

¶ 4 In August 2007, police apprehended defendant, who was seventeen years old, together with two others, after they had broken into a house and stolen jewelry. With regard to defendant, the district attorney first filed a delinquency petition in juvenile court. She later filed an information in district court, and the juvenile court dismissed the delinquency petition thereafter. The information charged defendant with second degree burglary of a dwelling, conspiracy to commit second degree burglary of a dwelling, possession of burglary tools, and theft of $500 or less.

¶ 5 Defendant filed motions challenging the district court's jurisdiction and the constitutionality of the former direct file statute. He argued that the information was insufficient to support a direct filing. The court summarily denied the motions and the case proceeded to a jury trial. The jury found defendant guilty of the charged offenses. The court sentenced defendant as an adult and imposed concurrent sentences of four years in the Department of Corrections (DOC) for burglary, two years for conspiracy, and one year for possession of burglary tools. The court imposed a sentence of six months in jail for the misdemeanor theft conviction, to be served concurrently with the DOC sentences. The court then suspended the sentence on the condition that defendant comply with an immigration hold and any subsequent deportation proceedings.

¶ 6 Before sentencing, defendant filed a motion virtually identical to his pretrial motion challenging the court's jurisdiction. The prosecutor's response was that the district attorney had direct filed on the grounds that defendant was a habitual juvenile offender. The court explained that the prosecutor had argued that defendant had four prior felony adjudications, and “that's exactly what the probation report also indicates.” The court then denied the motion.

¶ 7 On appeal, defendant contends that:

1. the former direct file statute was unconstitutional on its face and as applied to him because it subjected him to adult criminal prosecution without notice and an opportunity to be heard in violation of his state and federal due process rights;

2. the district court did not have jurisdiction because the information did not allege the basis upon which defendant's juvenile case was “triable” in district court; and

3. the court violated his right to a unanimous verdict by not requiring the state to elect the act on which it relied for the possession of burglary tools charge and by not instructing the jury that it was required to unanimously agree on the same act.

We address these issues in turn.

II. Constitutionality of the Direct File Statute

¶ 8 Defendant contends that the former direct file statute is unconstitutional on its face and as applied to him because it subjected him to adult criminal prosecution without notice and an opportunity to be heard, in violation of his state and federal rights to due process. We disagree.

¶ 9 In his motion to declare the direct file statute unconstitutional, defendant argued that the former direct file statute

(1) was unconstitutionally vague;

(2) violated equal protection;

(3) constituted an unconstitutional classification based on age; and

(4) did not provide notice or any procedural mechanism that complied with due process.

Defendant has not presented the first three of these contentions on appeal. We, therefore, deem them abandoned, and address only his contention that the former direct file statute violated his right to due process. People v. Czemerynski, 786 P.2d 1100, 1107 (Colo.1990) (stating that issues not raised in the opening brief are deemed waived).

A. Standard of Review

¶ 10 We review the as-applied and facial constitutionality of a statute de novo. Hinojos–Mendoza v. People, 169 P.3d 662, 668 (Colo.2007). Statutes are presumed to be constitutional. People v. McCullough, 6 P.3d 774, 779 (Colo.2000).

¶ 11 To succeed with an as-applied challenge, “ ‘a defendant has the burden of establishing the unconstitutionality of a statute, as applied [to him], beyond a reasonable doubt.’ ” People v. DeWitt, 275 P.3d 728, 731 (Colo.App.2011) (quoting People v. Gutierrez, 622 P.2d 547, 555 (Colo.1981) ). A statute that is unconstitutionally applied may, nonetheless, be facially valid if there are conceivable circumstances in which it can be constitutionally applied. See, e.g., Independence Inst. v. Coffman, 209 P.3d 1130, 1136 (Colo.App.2008) (“As-applied constitutional challenges attempt to invalidate a law only in the circumstances in which a party has acted or proposes to act; thus, a law that is held invalid as applied is not rendered completely inoperative.”).

¶ 12 A party challenging the facial validity of a statute must prove that it is unconstitutional beyond a reasonable doubt. People v. Vasquez, 84 P.3d 1019, 1021–22 (Colo.2004). “A statute is facially unconstitutional only if no conceivable set of circumstances exist under which it may be applied in a constitutionally permissible manner.” People v. Montour, 157 P.3d 489, 499 (Colo.2007) (citing Woldt v. People, 64 P.3d 256, 266 (Colo.2003) ).

B. Due Process

¶ 13 The Fifth and Fourteenth Amendments of the United States Constitution guarantee that the government shall not deprive any person of an interest in “life, liberty, or property, without due process of law.” U.S. Const. amend. V, XIV, § 1. With respect to the States, “the requirements of procedural due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment's protection of liberty and property.” Bd. of Regents v. Roth, 408 U.S. 564, 569, 92 S.Ct. 2701, 33 L.Ed.2d 548 (1972). “If there is no denial of a liberty or property interest, then the government does not have to provide procedural due process. Hence, to allege a procedural due process violation, an individual first must establish that he or she possesses a protected interest.” M.S. v. People, 2013 CO 35, ¶ 10, 303 P.3d 102, 105. “A liberty interest can be created either by state law or by the Due Process Clause of the United States Constitution.” Id . at ¶ 11, 303 P.3d at 105 ; see Sandin v. Conner, 515 U.S. 472, 479, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), overruled on other grounds by Edwards v. Balisok, 520 U.S. 641, 117 S.Ct. 1584, 137 L.Ed.2d 906 (1997).

C. People v. Thorpe

¶ 14 In People v. Thorpe, 641 P.2d 935 (Colo.1982), the prosecution direct filed a murder charge against the sixteen-year-old defendant. On appeal, the defendant challenged the constitutionality of the 1973 direct file statute. The defendant asserted that (1) the statute did not provide criteria to guide the prosecutor's decision; (2) the prosecutor could charge one juvenile as an adult and another similarly situated as a juvenile; and (3) this violated his right to equal protection of law. The defendant reasoned “that the decision of the prosecutor to charge a juvenile as an adult when there are no statutory guidelines and without a prior hearing cannot be constitutionally justified as a valid exercise of prosecutorial discretion.” Id . at 938. He argued that he had a due process right to appear at a hearing, be represented by counsel, and be heard before the murder charge was direct filed.

¶ 15 The supreme court held that the doctrine of separation of powers prohibited it from intervening in or controlling the exercise of prosecutorial discretion “set out in Article III of the Colorado Constitution and inherent in the enumerated powers of the United States Constitution.” Id. The court “decline[d] to require that a quasi-judicial hearing be held by the district attorney as a precondition to his determination that a child 14 years of age or older alleged to have committed a crime of violence defined as a class 1 felony shall be prosecuted in a criminal proceeding.” Id . at 939. The court concluded that the direct file statute was constitutional on its face and as applied to the defendant.

¶ 16 Unlike the defendant in Thorpe, this defendant does not premise his argument on the absence of criteria or...