People v. Quintano, 00CA2196.

• Decision Date: 03 July 2003
• Docket Number: No. 00CA2196.,00CA2196.
• Citation: 81 P.3d 1093
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Edward QUINTANO, Defendant-Appellant.
• Court: Colorado Court of Appeals

81 P.3d 1093

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Robert Edward QUINTANO, Defendant-Appellant.

No. 00CA2196.

Colorado Court of Appeals, Div. I.

July 3, 2003.

Certiorari Granted January 12, 2004.

Ken Salazar, Attorney General, Wendy J. Ritz, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Andrea R. Manning, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge CRISWELL.¹

Defendant, Robert Edward Quintano, appeals the judgment of conviction entered upon jury verdicts finding him guilty of three counts of sexual assault on a child. He also appeals the sentence imposed. We affirm the judgment and the sentence to incarceration, vacate the mandatory parole portion of the sentence, and remand the case with directions.

Defendant was originally charged with third degree assault, false imprisonment, crime of violence, and five counts of sexual assault on a child. The jury found him guilty of three counts of sexual assault on a child and acquitted him of the remaining charges. The trial court thereafter sentenced defendant to three concurrent sixteen-year prison terms, plus a three-year mandatory parole period.

I.

Defendant first asserts that he is denied equal protection by those statutes, §§ 16-4-103(2) and 16-4-107(4), C.R.S.2002, which require a defendant whose bond has been revoked because of alleged commission of another felony to be tried within ninety days, but which do not provide the same right to a defendant whose bond is revoked for some other reason. Hence, he asserts that he was denied his right to a speedy trial.

However, defendant did not raise this issue in the trial court. Appellate courts in this state will review under the plain error standard claims of constitutional error that are based upon occurrences during the trial. See People v. Harlan, 8 P.3d 448 (Colo.2000).

Nevertheless, where the only constitutional "error" alleged is based upon the claim that a statute denies equal protection, such a claim will be reviewed only if it has first been presented to the trial court. People v. Lesney, 855 P.2d 1364 (Colo.1993); People v. Boyd, 30 P.3d 819 (Colo.App.2001); see People v. Cagle, 751 P.2d 614 (Colo.1988).

Hence, because defendant did not question the validity of the pertinent statutes in the trial court, we decline to consider that issue.

II.

Defendant next contends that the trial court erred by denying his request for a bill of particulars and by failing to require the prosecution to elect a specific act as the basis for each charge. However, given the circumstances here, we conclude that any error was harmless.

A.

One purpose of a bill of particulars is to enable the defendant to prepare his defense in cases in which the indictment, although sufficient to advise him of the nature of the charges, is so indefinite in its statement that it does not afford him a fair opportunity to procure witnesses or to prepare for trial. Erickson v. People, 951 P.2d 919 (Colo. 1998).

In addition, by specifically identifying the act or omission upon which the charge is based, a bill of particulars also protects the defendant from being prosecuted twice for the same offense. Woertman v. People, 804 P.2d 188 (Colo.1991).

In ruling on a request for a bill of particulars, the trial court should consider whether the requested information is necessary for the defendant to prepare his defense or to protect against subsequent prosecution. Woertman v. People, supra; People v. District Court, 198 Colo. 501, 603 P.2d 127 (1979).

Here, the information charged defendant with five counts of sexual assault on a child, all allegedly committed on the same date. It did not, however, describe the specific incident on which any individual charge was based. Defendant filed a motion for bill of particulars seeking identification of the "precise nature of the sexual contact charged" in each count, the number of sexual acts on which each charge was based, the names of witnesses, and the "precise times and locations corresponding to the sexual acts that are alleged to have occurred."

The trial court denied the motion, concluding that the probable cause affidavit filed with the charging document and the discovery the prosecution had already produced provided defendant with all the information he requested in his motion.

There was no abuse of discretion in the trial court's ruling. The record demonstrates that defendant was on notice that he was charged with five separate and distinct instances of sexual contact with the victim. Indeed, at the preliminary hearing, although the prosecutor did not assign a particular charge to each separate incident of alleged sexual misconduct, she specifically identified the five incidents that were the bases of all the charges, collectively. In addition, the charging document and the probable cause affidavit provided defendant with the names of all the witnesses to the events that gave rise to the charges.

Hence, the record does not support defendant's assertion that he was unaware until trial that he would be required to present a defense against multiple instances of sexual misconduct as distinguished from one continuous act. Nor did the trial court's denial of his motion for bill of particulars result in his being forced to rely on a "defense of general denial" or deprive him of the ability to "investigate further" and to "determine if there were other witnesses."

For the first time on appeal, defendant also argues that a bill of particulars was necessary to protect him from being prosecuted again for the same acts and that the trial court's denial of his motion violated the prohibition against double jeopardy. We address and reject this argument in our consideration of his claim that the court erred in not requiring the prosecution to elect which incident was the subject of each charge and in giving the jurors a unanimity instruction.

B.

When evidence of several acts is presented at trial, any one of which would constitute the basis for the single offense charged, the prosecution may be compelled to select the act or acts on which that charge is based. People v. Lawrence, 55 P.3d 155 (Colo.App.2001). Such an election enables the defendant to prepare a defense to each specific charge, and it ensures that some jurors do not convict on one act and others on a different act. Woertman v. People, supra.

In the alternative, if the court does not require the prosecution to designate the specific act upon which the single charge is based, it must give the jurors a unanimity instruction by which they are told that either they must all agree upon a specific act as supporting the charge, or they must all agree that all the incidents referred to in the evidence occurred. Woertman v. People, supra; Thomas v. People, 803 P.2d 144 (Colo.1990).

However, such an alternative instruction is not appropriate if, as here, the defendant is charged with more than one offense and evidence of more than one incident is introduced.

To begin with, the jurors in such a case cannot agree with respect to any single charge that the defendant committed all the incidents at issue. If they did so, they could return only a single verdict of guilt. They could, of course, be instructed that they must agree that the defendant committed the same act with respect to each charge, which would insure that each guilty verdict was the result of a unanimous jury.

However, unless the prosecution and the court identify the specific incident upon which each separate charge is based, the defendant's right to be protected against being placed in double jeopardy is implicated.

Here, there were five alleged incidents of sexual assault and five charges. Yet, no charge was "connected" by court instruction or otherwise to any specific incident. Hence, when the jury returned its verdicts acquitting defendant of two assaults, but convicting him of three, nothing but bald speculation would allow any conclusion as to which of the five incidents formed the basis for the three convictions. Were this court to require a new trial of these charges, it is questionable whether such a trial could occur, considering defendant's right to be free from double jeopardy. Indeed, there is doubt whether, in such a new trial, the prosecution could introduce evidence respecting any of the five incidents, because it cannot be ascertained with any degree of confidence of which of the five incidents defendant was acquitted. See Patton v. People, 35 P.3d 124 (Colo.2001)(double jeopardy clause protects an accused from being twice placed in danger of conviction and punishment for the same offense); People v. Williams, 651 P.2d 899 (Colo.1982)(if a second prosecution for the same statutory offense requires proof of the same facts upon which a conviction was obtained in the first prosecution, double jeopardy principles would bar the second prosecution).

We conclude, therefore, that the court should have required the prosecution to elect which of the five incidents related to each of the five charges. Likewise, it erred in giving the jurors the typical unanimity instruction.

However, we also conclude that such error, given all of the circumstances here, was harmless.

First, there can be no doubt but that the three convictions here are based upon five specific incidents. There is no question, therefore, of the incidents or of the evidence upon which all five verdicts were based.

The unanimity instruction told the jurors that, with respect to each count, they had either to agree upon the same incident or agree that all of the incidents had been proven. We assume that they followed this instruction. See People v. Moody, 676 P.2d 691 (Colo.1984). And, because they acquitted defendant of two counts, it is clear that they agreed upon the same separate incidents for each of the three counts upon which they returned their guilty...