People v. Ramirez

• Decision Date: 19 August 1999
• Docket Number: No. 97CA1792.,97CA1792.
• Citation: 997 P.2d 1200
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Micaela RAMIREZ, Defendant-Appellant.
• Court: Colorado Court of Appeals

997 P.2d 1200

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Micaela RAMIREZ, Defendant-Appellant.

No. 97CA1792.

Colorado Court of Appeals, Div. I.

August 19, 1999.

Rehearing Denied September 23, 1999.

Certiorari Granted April 24, 2000.

Ken Salazar, Attorney General, Barbara McDonnell, Chief Deputy Attorney General, Michael E. McLachlan, Solicitor General, Jerry N. Jones, Special Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Elizabeth Griffin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

Opinion by Judge DAVIDSON.

Defendant, Micaela Ramirez, appeals from the judgment of conviction entered upon jury verdicts finding her guilty of unlawful possession of 28 grams or more of cocaine, possession of marihuana with intent to distribute, possession of more than eight ounces of marihuana, and of being a special offender based on its finding of possession of more than 100 pounds of marihuana. We affirm.

According to evidence presented by the prosecution, police officers, acting on information from a confidential informant, went to the house where defendant, her boyfriend, and his brother lived. After obtaining defendant's consent to search the house, an officer discovered a baggie containing cocaine in the bedroom shared by defendant and her boyfriend. Another officer found bags containing 287 pounds of marihuana in the crawl space under the house. Officers also seized other items that, according to an expert witness, generally are used by persons involved in drug distribution.

Defendant testified at trial that the drugs found in her house were not hers and that she did not know that any drugs had been brought into her house. The jury convicted her of the charges as a complicitor.

I.

Defendant contends that the trial court erred in instructing the jury that it could find she was a special offender on the ground of possession of 100 pounds or more of marihuana without having to determine whether she knew the amount of marihuana possessed. She argues that, because she was found guilty of the offense of possession and possession with intent to distribute only as a complicitor, the prosecution was required to prove that she not only intentionally aided in the offense with knowledge of the underlying offense, but also that she did so with knowledge of the amount of marihuana involved. We disagree.

The special offender statute, § 18-18-407(1), C.R.S.1998, lists certain "extraordinary aggravating circumstances," the presence of which, if proven, subjects a defendant to an enhanced sentence as a special offender. Once a jury has determined that a defendant possessed the mental state required for conviction of the substantive offense, an enhanced sentence must be imposed whether or not the defendant fully knew of the circumstances leading to the special offender finding. Cf. United States v. Falu, 776 F.2d 46 (2d Cir.1985)

(defendant did not have to have specific knowledge of proximity of school for sentence enhancement based on distribution of drugs within 1,000 feet of school). One such circumstance, under § 18-18-407(1)(e), C.R.S.1998, is that a defendant possessed 100 pounds or more of marihuana.

Here, because the special offender statute is triggered only after a felony drug conviction, and because its effect is to increase an offender's sentence upon a finding of specific aggravating circumstances, the provisions of § 18-18-407(1) are sentence enhancers and do not create a substantive offense. Vega v. People, 893 P.2d 107 (Colo. 1995).

In its analysis, the Vega court considered both the fact that a conviction for the underlying offense would stand without proof of the circumstances establishing special offender, see Armintrout v. People, 864 P.2d 576 (Colo.1993)

(sentence enhancer not element of the offense charged because a defendant may be convicted of the underlying offense absent proof of the enhancer), as well as the legislative history behind the enactment of § 18-18-407(1). The court concluded that the intent of the General Assembly was to establish a sentencing provision which would require imposition of harsher penalties under certain "extraordinary aggravating circumstances." Vega v. People, supra, 893 P.2d at 113; § 18-18-401, C.R.S.1998 (legislative declaration that "strict control of controlled substances in this state is necessary for the immediate and future preservation of the public peace, health, and safety").

The Vega court also noted that, because in order to impose an enhanced sentence, notice, hearing, proof beyond a reasonable doubt, and appropriate findings all were required, any federal constitutional due process concerns were satisfied.

A.

However, regardless of the Vega decision, defendant argues that the severity of the sentence, and the disparity between the sentence for a special offender and the one applicable to a person not designated a special offender, are so great that due process requires § 18-18-407(1)(e) to be treated as an element of the underlying offense. Specifically, defendant relies on Jones v. United States, 526 U.S. 227, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999), in support of her argument that the harshness of the penalty under the special offender provision here requires a "knowingly" mens rea. We disagree.

In Jones, in analyzing a carjacking statute, the Supreme Court determined that characterizing as sentencing enhancers the statutory provisions providing for increased penalties if serious injury or death resulted would have serious due process implications. The sentence enhancers there, under the carjacking statute, had the potential to increase a defendant's sentence from a fine or 15 years imprisonment to life imprisonment.

However, the severity of the sentence was but one factor that the Jones court considered in determining that the federal carjacking statute created separate substantive offenses. Significantly, under the federal scheme, sentence enhancers are applied by the court after a finding of guilt of the underlying offense without notice to the defendant or a finding by a jury that the enhancer existed beyond a reasonable doubt. In the court's view, the combination of these factors—the greatly increased sentence, imposed without notice or hearing and on a finding by only the sentencing court that, by a preponderance of the evidence, serious bodily injury or death had resulted—raised serious due process concerns. In contrast, under Colorado law, the special offender circumstance must be charged in the information, and the factfinder is required, by a special finding, to find the existence of the special offender circumstance beyond a reasonable doubt.

Moreover, the Vega court specifically determined that, although § 18-18-407(1) did require imposition of a greater sentence than that available under § 18-18-105, C.R.S. 1998, the increase in the presumptive range did not disproportionately increase the penalty imposed in relation to that imposed for the underlying offense.

And, here, in contrast to the potential enhancement penalties in Jones, which increased the applicable sentence from a fine to life imprisonment, the presumptive penalty range is increased from 2 to 6 years to 24 to 48 years. Although not insignificant, considering the General Assembly's intent to require a sentence that would constitute a meaningful penalty for both independent small drug distributors as well as drug traffickers who are part of larger organizations, we conclude that this disparity is not disproportionate to the underlying offense of distribution. See Vega v. People, supra

(increase in sentencing range from 4 to 12 years to 24 to 48 years not disproportionate to underlying offense and purpose for which § 18-18-407(1) was enacted).

B.

Defendant argues that, even if her federal due process rights were not violated, the Colorado constitution provides for greater due process protection and, therefore, a specific finding as to her knowledge of the amount of marihuana possessed is required. We do not agree.

Although a state may enlarge the federal concept of due process, the due process clause of Colorado's constitution forbids the destruction, in whole or in part, of any of the "established principles of private rights and distributive justice," including the requirement that an accused be found not guilty of a crime unless guilt is established as to all material elements beyond a reasonable doubt. People ex rel. Juhan v. District Court, 165 Colo. 253, 266, 439 P.2d 741, 748 (1968).

Under Colo. Const. art. II, §§ 16 and 25, an accused is entitled to due process. This includes the right to be informed of the nature of the charges against him or her, the right to trial by an impartial jury on such charges, and the right to a presumption of innocence unless guilt is established as to all material elements beyond a reasonable doubt. Defendant's argument notwithstanding, we find no language in the Colorado constitution that enlarges a defendant's due process rights to encompass engrafting a scienter element onto a sentence enhancer.

Further, the provisions of § 18-18-407(1) and its application do not abrogate the due process requirements of the Colorado constitution. Notice is required, trial by jury is not eliminated, and a finding of the existence of the enhancer beyond a reasonable doubt is required before a defendant's sentence is increased. Under these circumstances, due process under Colo. Const. art. II, §§ 16 and 25, is satisfied.

C.

Noting that she was convicted under a complicity theory, defendant points out that, even if a principal otherwise may be subjected to an enhanced sentence under § 18-18-407(1)(e), a complicitor may have intended only to aid in the underlying offense without knowledge of the special circumstances that expose one to an increased sentence. In particular, she suggests that here, although a principal would have...