People v. Rivera, 96CA0868

• Decision Date: 28 November 1997
• Docket Number: No. 96CA0868,96CA0868
• Citation: 968 P.2d 1061
• Parties: 97 CJ C.A.R. 2957 The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shawn L. RIVERA, Defendant-Appellant. . V
• Court: Colorado Court of Appeals

Page 1061

968 P.2d 1061

97 CJ C.A.R. 2957

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Shawn L. RIVERA, Defendant-Appellant.

No. 96CA0868.

Colorado Court of Appeals Div. V.

Nov. 28, 1997.

As Modified on Denial of Rehearing

April 9, 1998.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Laurie A. Booras, Assistant Attorney General, Denver, for Plaintiff-Appellee.

David F. Vela, Colorado State Public Defender, Katherine Brien, Deputy State Public Defender, Denver, for Defendant-Appellant.

Opinion by Judge KAPELKE.

Defendant, Shawn L. Rivera, appeals from a judgment of conviction entered on a jury verdict finding him guilty of first degree arson, criminal mischief, and second degree criminal trespass. He challenges the transfer of his case from juvenile court to district court; the legality, constitutionality, and length of his sentence; the amount of restitution fixed by the court; and the denial of his motion for a mistrial based on allegedly improper remarks made by the prosecution during closing argument. We affirm the judgment of conviction and the sentences imposed, except as to the sentence on the misdemeanor criminal trespass count. We vacate the sentence for that offense and remand for resentencing as to that count.

The prosecution initially filed a juvenile delinquency petition premised on defendant's having committed acts that would constitute first degree arson, second degree burglary, and criminal mischief in connection with a fire that destroyed an abandoned school building.

The prosecution later moved to transfer the case to district court pursuant to the statutory provision now codified as § 19-2-518, C.R.S.1997. Following a hearing, the juvenile court transferred jurisdiction to the district court.

A lengthy jury trial resulted in the convictions here at issue. Defendant was sentenced to twelve years in the Department of Corrections (DOC) on each of the felony convictions, and one year in county jail on the misdemeanor criminal trespass conviction, with all sentences to run concurrently. The court also fixed the amount of restitution to be paid by defendant at $800,675.

I.

Defendant contends that the juvenile court abused its discretion and violated his due process rights by transferring his case to the district court. Specifically, defendant argues that the transfer was improper because the juvenile court: (1) erred in concluding that the factors supporting transfer outweighed those supporting retention of defendant's case in the juvenile system; (2) erroneously assumed the maximum sentence for a juvenile was two years under the Children's Code; (3) erroneously considered evidence from a detention hearing at the transfer hearing; and (4) erred in holding, based on insufficient evidence, that defendant was not amenable to rehabilitation. We disagree.

A.

Pursuant to § 19-2-518(4)(b), C.R.S.1997, the juvenile court must consider several enumerated factors in determining whether the interests of the juvenile or of the community would be better served by the court's waiving its jurisdiction and transferring the case to district court. The weight to be given each factor is discretionary with the court, and an insufficiency of evidence pertaining to any one or more of the factors is not determinative. Sections 19-2-518(4)(c) and 19-2-518(4)(d), C.R.S.1997; see also People in Interest of A.D.G., 895 P.2d 1067, 1070 (Colo.App.1994).

Here, the court found that the following factors weighed in favor of transfer: (1) the offenses were committed in a premeditated and willful manner; (2) defendant was more mature than his chronological age; (3) the interest of the community in the imposition of punishment commensurate with the offenses supported transfer because the school building was important to the community; and (4) in light of the historic nature of the building and the risk to the lives of firefighters who extinguished the blaze, the impact of the offense on the victim was quite serious.

The court further found that the seriousness of the offenses, defendant's record and previous history, and the potential for rehabilitation through the use of juvenile facilities were essentially neutral factors since certain aspects of each weighed in favor of, while other aspects weighed against, transfer.

The only factor weighing against transfer, the court determined, was that the alleged offenses were against property rather than a person.

The juvenile court devoted attention to each of the applicable factors and made explicit findings as to the weight to be accorded each. Such findings have record support. Accordingly, we find no abuse of discretion.

B.

Defendant next contends that the transfer was improper because the juvenile court erroneously assumed the maximum sentence available under the Children's Code was two years. Again, we disagree.

As the juvenile court correctly noted, although the Department of Human Services may petition a committing court to extend a sentence for an additional two-year period, the maximum sentence the juvenile court can impose under the Children's Code in the first instance is two years. Sections 19-2-909(1)(a), 19-2-921(3)(c), and 19-2-921(4), C.R.S.1997. Therefore, there is no error here.

C.

Defendant asserts that the juvenile court erred in considering evidence presented at the detention hearing at which he was not represented by counsel. We reject this contention. At the detention hearing defendant was advised of his right to representation and knowingly waived that right. Accordingly, his lack of counsel at that hearing provides no basis for exclusion of such evidence at the transfer hearing.

D.

Finally, defendant argues that since he was amenable to rehabilitation, the juvenile court should not have transferred jurisdiction. We disagree.

In support of his contention, defendant relies on several Oklahoma cases. We find those decisions inapposite. They were based on a statute which allowed a juvenile to be tried as an adult only if there were substantial evidence that the child was not amenable to rehabilitation. See J.J.W. v. State, 842 P.2d 349 (Okl.Crim.App.1992). In contrast, the test under § 19-2-518(3)(b), C.R.S.1997, is whether the interests of the juvenile or the community would be better served by the juvenile court's waiving its jurisdiction. The juvenile's amenability to rehabilitation is but one of several factors to be considered by the court in making that determination.

Also, as the juvenile court found here, with supporting evidence, defendant had already been given opportunities for rehabilitation which had proven unsuccessful.

Under these circumstances, the court did not err by transferring jurisdiction to the district court.

II.

Defendant next contends that the district court lacked the authority to sentence him to the DOC. We disagree.

In support of his argument, defendant compares a section of the transfer statute, § 19-2-518, with a portion of the direct filing statute, § 19-2-517, C.R.S.1997.

Section 19-2-518(1)(d)(I), C.R.S.1997, states, in pertinent part:

Whenever criminal charges are transferred to the district court pursuant to the provisions of this article, the judge of the district court shall have the power to make any disposition of the case that any juvenile court would have or to remand the case to the juvenile court for disposition at its discretion; except that a juvenile who is convicted of a class 1 felony, or whose case was transferred to the district court and who is convicted of a crime of violence ..., or who has been previously adjudicated a mandatory sentence offender, a violent juvenile offender, or an aggravated juvenile offender shall be sentenced pursuant to section 18-1-105, C.R.S. (emphasis added)

In contrast, § 19-2-517(3)(a), C.R.S.1997, provides, in pertinent part:

Whenever criminal charges are filed by information or indictment in the district court pursuant to this section, the district judge shall sentence the juvenile as follows:

(I) As an adult; or

(II) To the youthful offender system....

Defendant argues that because the direct filing statute specifically states that a defendant may be sentenced as an adult, the absence of such wording in the transfer statute precludes such a sentence. He asserts that once a case has been transferred to district court, the court can only sentence a juvenile to the DOC if he or she is convicted of a class one felony or crime of violence, or has been previously adjudicated a mandatory sentence offender, a violent juvenile offender, or an aggravated juvenile offender. Since none of these classifications applies to defendant, he argues, the court had only two sentencing options pursuant to § 19-2-518: (1) to dispose of the case as a juvenile court would have or (2) to remand the case to the juvenile court. We reject defendant's interpretation of the transfer statute.

The primary task in construing statutes is to give effect to the intent of the General Assembly. Lambdin v. District Court, 903 P.2d 1126 (Colo.1995). In determining legislative intent, courts must consider the underlying purpose of the statutory enactments. Thurman v. Tafoya, 895 P.2d 1050 (Colo.1995).

The effect of a transfer order is to convert the case to an adult proceeding, and the provisions of the Children's Code do not apply once the district court has acquired jurisdiction as a result of the transfer. As stated in People v. Armand, 873 P.2d 7, 9 (Colo.App.1993), once the case has been transferred, "the juvenile court has no further jurisdiction unless the district court, in its discretion, chooses to remand the case to the juvenile court for disposition." See also Rocha v. People, 713 P.2d 350 (Colo.1986); § 19-2-518(1)(d)(I).

Contrary to defendant's contentions, the absence of language in the transfer statute as to the district court's ability to sentence a defendant as an adult...