People v. Pineda, 98CA1623.

Citation40 P.3d 60
Decision Date24 May 2001
Docket NumberNo. 98CA1623.,98CA1623.
PartiesThe PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Sandra PINEDA, Defendant-Appellant.
CourtCourt of Appeals of Colorado

40 P.3d 60

The PEOPLE of the State of Colorado, Plaintiff-Appellee,
Sandra PINEDA, Defendant-Appellant

No. 98CA1623.

Colorado Court of Appeals, Div. I.

May 24, 2001.

As Modified on Denial of Rehearing May 24, 2001.

Certiorari Denied January 28, 2002.1

40 P.3d 63
Ken Salazar, Attorney General, Catherine P. Adkisson, Assistant Attorney General, Denver, CO, for Plaintiff-Appellee

David S. Kaplan, Colorado State Public Defender, Kathleen A. Lord, Deputy State Public Defender, Denver, CO, for Defendant-Appellant.

Opinion by Judge PIERCE.2

Defendant, Sandra Pineda, appeals a judgment of conviction entered on a jury verdict finding her guilty of child abuse resulting in serious bodily injury. She also appeals the trial court's imposition of a thirty-two-year sentence. We affirm.


Initially, we reject defendant's contention that the trial court erred in excusing a potential juror for cause. She argues that the trial court: (1) abused its discretion by granting the prosecution's challenge for cause; and (2) violated state and federal law by refusing to accommodate the potential juror's request to take notes.

During voir dire, a potential juror informed the trial court that she had an attention deficit disorder. The potential juror indicated that due to her symptoms, she might have difficulty understanding the testimony without the benefit of taking notes during trial. Because the trial court had previously prohibited note taking during trial, the prosecution challenged the potential juror for cause. The trial court granted the challenge over defendant's objection.

We review a trial court's ruling on a challenge for cause under a standard of abuse of discretion. Carrillo v. People, 974 P.2d 478 (Colo.1999).

Abuse of discretion occurs if the trial court's ruling is manifestly arbitrary, unreasonable, or unfair. Carrillo v. People, supra. To determine whether the trial court abused its discretion in ruling on a challenge for cause, the entire voir dire of the prospective juror must be reviewed. See People v. Abbott, 690 P.2d 1263 (Colo.1984).

Neither counsel brought the statute to the trial court's attention. Although the better practice would be for the trial court to interview the juror and enter findings pursuant to the statute, reversal is not required here. The trial court had previously determined that, because it desired that the jurors rely on their "collective memories," it would prohibit note taking during this trial. Defendant did not object to this ruling.

The prospective juror stated that taking notes would help her to focus her attention. However, she gave no firm assurance that note taking would allow her to overcome her condition.

40 P.3d 64
Therefore, we conclude that the trial court here acted within its discretion in granting the prosecutor's challenge for cause. See Billings v. People, 171 Colo. 236, 466 P.2d 474 (1970); People v. Ellinger, 754 P.2d 396 (Colo.App.1987)

Likewise, we perceive no basis for reversal under state and federal anti-discrimination laws. We are satisfied that the trial court determined that the potential juror's condition prevented her from performing the duties and responsibilities of a juror as required under § 13-71-104, C.R.S.2000. We will not address the issue of the alleged violation of the Americans with Disabilities Act, 42 U.S.C. § 12132 (2000). This issue was not raised in the trial court, and we will not address it here. See People v. Cagle, 751 P.2d 614 (Colo.1988).


Defendant contends that the trial court erred when it: (1) denied private counsel's motion to withdraw; and (2) overruled defense counsel's objection to proceeding absent adequate funds to prepare. We disagree.

Once an attorney undertakes to represent a defendant, that attorney impliedly agrees to remain on the case until its conclusion. Whether an attorney shall be permitted to withdraw from a case is a matter within the sound discretion of the trial court. Anderson, Calder & Lembke v. District Court, 629 P.2d 603 (Colo.1981). Thus, we again review for abuse of discretion.

Here, defendant's counsel sought to withdraw because of lack of funds two months after the information was filed. Because the case was beyond the preliminary hearing stage, the trial court denied the motion. Under these circumstances, we find no abuse of discretion.

Likewise, we perceive no error in the trial court's decision to proceed with a joint pretrial hearing over defense counsel's objection that he was unprepared. Defendant's husband, who was charged with a crime arising out of the same incidents as defendant, appeared with his counsel, who argued the majority of these same issues at the hearing. As will be discussed below, the trial court properly ruled on issues specific to defendant's case. Accordingly, we find no abuse of discretion in proceeding with the pretrial hearing.


Defendant next contends that § 18-6-401(1)(a), C.R.S.2000, violates due process of law as applied to her. Specifically, defendant argues that the statute does not provide adequate notice of the proscribed conduct or sufficiently limit the discretion of law enforcement, courts, or juries. We disagree.

Section 18-6-401(1)(a) provides that:

A person commits child abuse if such person causes an injury to a child's life or health, or permits a child to be unreasonably placed in a situation that poses a threat of injury to the child's life or health, or engages in a continued pattern of conduct that results in malnourishment, lack of proper medical care, cruel punishment, mistreatment, or an accumulation of injuries that ultimately results in the death of a child or serious bodily injury to a child.

Statutes are presumed to be constitutional, the burden being on the party attacking the statute to establish its unconstitutionality beyond a reasonable doubt. See People v. Gross, 830 P.2d 933 (Colo.1992).

To be unconstitutionally vague, as defendant claims § 18-6-401 is here, a statute must forbid or require the doing of an act in terms so vague that persons of ordinary intelligence must necessarily guess as to its meaning and differ as to its application. People v. Gross, supra.

In analyzing a statute for vagueness, we first give effect to the intent of the General Assembly by looking to the language of the statute and giving the words their ordinary meaning. People v. Baer, 973 P.2d 1225 (Colo.1999).

The supreme court has previously explained that the purpose of § 18-6-401 is to:

protect children, who frequently are unable to care for themselves, from the risk of injury or death associated with conduct
40 P.3d 65
that places a child in a situation that poses a threat to the child's well-being.

Lybarger v. People, 807 P.2d 570, 578 (Colo. 1991).

In People v. Arevalo, 725 P.2d 41, 48-49 (Colo.App.1986), a division of this court noted that under § 18-6-401:

Every person has a duty to refrain from any action which causes a child to be placed in a situation which endangers the child's life and health. The statute refers to no external source of duty, and we do not believe the general assembly intended that a duty between an adult and a child necessarily be established before a person may be charged with child abuse. The law is intended to prevent child abuse, and it applies to any person. Therefore, we also reject [defendant's] argument that the People had to present evidence of the source of [defendant's] legal obligation to [the victim]. Nor do we find the statute to be unconstitutionally vague as applied.

Here, although there may be concerns about the potential scope of § 18-6-401, we conclude that the statute is constitutional as applied to this defendant.

The jury rejected finding defendant guilty of a lesser offense and specifically found her guilty of "knowing or reckless child abuse." The evidence amply supports the jury's verdict. The victim's seven-year-old brother testified extensively that defendant's husband severely beat the victim on an almost daily basis and that defendant knew of these beatings. The brother testified that, after one such beating in which the victim's arm was broken, defendant stood by as they were told by defendant's husband to lie about the incident. The brother also testified that the victim and he were frequently locked in a room and sometimes were forced to urinate there before defendant or defendant's husband would allow them out. One neighbor testified that he called the police after observing defendant's husband beating the victim. During that incident, defendant arrived home to discover the police interviewing her husband. An investigator for the state testified that, following the husband's arrest two months later, he observed blood throughout defendant's house, smelled urine in several rooms, and discovered a bedroom door that could not be opened from the inside. A detective testified that defendant told her that at times she witnessed her husband beating the children with a belt.

At trial, defendant testified and denied any knowledge of her husband's child abuse.


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