People v. Rosales, No. 03CA0077.

• Decision Date: 11 August 2005
• Docket Number: No. 03CA0077.
• Citation: 134 P.3d 429
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Luque ROSALES, Defendant-Appellant.
• Court: Colorado Court of Appeals

134 P.3d 429

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Daniel Luque ROSALES, Defendant-Appellant.

No. 03CA0077.

Colorado Court of Appeals, Division I.

August 11, 2005.

Certiorari Denied May 22, 2006.^*

COPYRIGHT MATERIAL OMITTED

John W. Suthers, Attorney General, Paul Koehler, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.

David S. Kaplan, Colorado State Public Defender, Ann M. Aber, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.

CARPARELLI, J.

Defendant, Daniel Luque Rosales, appeals the judgment of conviction entered upon a jury verdict finding him guilty of two counts of first degree murder after deliberation, two counts of first degree felony murder, one count of first degree burglary, one count of second degree assault, and one count of violation of a restraining order. We affirm, but remand with directions to amend the mittimus.

After beating his girlfriend, defendant took a shotgun and a box of shotgun shells and drove to the apartment of his estranged wife. At the apartment complex, he parked the car to facilitate a quick departure and made several phone calls to his wife. Receiving no answer, he then used two shots to disable two locks on the apartment door and entered the apartment. On the way to the bedroom, he reloaded the gun; he entered the bedroom and shot his estranged wife and the man she had been dating, killing both. Defendant picked up the expended shotgun shells, left the apartment, and drove away. He was later arrested.

Defendant was charged with two counts of first degree murder after deliberation, two counts of first degree felony murder, one count of first degree burglary, one count of second degree assault, one count of second degree kidnapping, and one count of violation of a restraining order.

At trial, his defense was that he was too intoxicated to form specific intent. The jury convicted defendant on all charges except second degree kidnapping. Defendant was sentenced to two concurrent terms of life imprisonment for the murders, a concurrent term of thirty-two years for the burglary, a consecutive term of sixteen years for the assault, and a concurrent eighteen-month term for violating the restraining order.

I.

Defendant contends that the order of restitution must be vacated because the filing of his notice of appeal divested the trial court of its jurisdiction to enter it. We disagree.

The trial court imposed sentence on November 25, 2002, but did not immediately determine the amount of restitution. Instead, it stated that defendant would be required to make restitution, granted the prosecution ninety days to submit its motion regarding the specific amount, and did not reference restitution in the mittimus. Defendant filed his notice of appeal on January 9, 2003. The court ordered restitution on February 5, 2003, after receiving two such motions from the prosecution.

A.

A judgment of conviction is not final until sentence is imposed. Crim. P. 32(c); Ellsworth v. People, 987 P.2d 264 (Colo.1999); People v. Richardson, 58 P.3d 1039, 1048 (Colo.App.2002). Absent a specific finding that the victim did not suffer a pecuniary loss, restitution is a mandatory part of the sentence. Section 18-1.3-603(1), C.R.S.2004. Thus, absent such a finding, sentencing is not final until restitution is ordered. People v. Johnson, 780 P.2d 504 (Colo.1989); see People v. Dillon, 655 P.2d 841 (Colo.1982); see also People v. Smith, ___ P.3d ___, 2005 WL 427673 (Colo.App. No. 02CA1515, Feb 24, 2005)(when a trial court does not include any finding regarding restitution in the mittimus, the sentence is illegal, and the court is required to correct the mittimus).

Therefore, we first conclude that until the court entered the statutorily required order of restitution on February 5, 2003, sentencing was not complete, and judgment was not final. See § 13-4-102, C.R.S.2004; Crim. P. 32(c); C.A.R. 1.

B.

We next conclude that, because judgment was not final until the court ordered the specific amount of restitution, the trial court retained jurisdiction, and defendant's appeal was premature.

After a trial court enters a judgment of guilty on a jury verdict and imposes a valid sentence, judgment is final, and the trial court loses jurisdiction except as specified in Crim. P. 35. People v. Campbell, 738 P.2d 1179 (Colo.1987); People v. Dillon, supra; Smith v. Johns, 187 Colo. 388, 532 P.2d 49 (1975). Once judgment is final and a defendant's appeal has been perfected, the trial court is divested of jurisdiction to issue any further orders in the case. People v. Jones, 631 P.2d 1132, 1133 (Colo.1981); Brooke v. People, 139 Colo. 388, 339 P.2d 993 (1959); cf. Molitor v. Anderson, 795 P.2d 266, 269 (Colo.1990)(where trial court entered final judgment in a civil case, defendant appealed the judgment out of time, and defendant then asked trial court to vacate the judgment, the trial court lacked jurisdiction to vacate the judgment); Woznicki v. Musick, 94 P.3d 1243, 1246 (Colo.App.2004)(construing Molitor to apply "only to perfected appeals from final judgments" (emphasis added)). But cf. Anstine v. Churchman, 74 P.3d 451, 453 (Colo.App.2003)(construing Molitor to say that "once an appeal is taken, a trial court is divested of jurisdiction to determine substantive matters that directly affect the judgment being appealed," and concluding that "no statute or rule confers jurisdiction on trial courts when an appeal has arguably been filed improperly" (emphasis added)).

However, although a perfected appeal of a final conviction removes jurisdiction from the trial court, there is no authority for defendant's contention that an appeal that is filed before the entry of final judgment removes jurisdiction from the trial court.

Therefore, we conclude that the trial court retained jurisdiction to enter the order of restitution and that defendant's appeal before entry of a final judgment was premature.

C.

Section 13-4-102(1), C.R.S.2004, grants this court jurisdiction over appeals from final judgments. We conclude that, although defendant's appeal was premature, the trial court's order of restitution constituted a final judgment, and the defect in defendant's appeal has been cured. Therefore, we now turn to defendant's other contentions.

II.

Defendant contends that the order of restitution must be vacated because it increased his sentence after he had begun to serve it and, thus, violated double jeopardy principles. Again, we disagree.

"[A]t the sentencing hearing the trial court may, without violating double jeopardy principles, defer determination of the amount of restitution to be imposed, subject to a later hearing." People v. McGraw, 30 P.3d 835, 838 (Colo.App.2001); People v. Smith, supra, ___ P.3d at ___ ("[A] sentence that is contrary to legislative mandates is illegal and may be corrected at any time by a sentencing court without violating a defendant's right against double jeopardy.").

We conclude that the trial court did not violate defendant's right against double jeopardy when, having deferred determination of the amount of restitution as permitted by § 18-1.3-603(1), it ordered restitution after defendant began to serve his sentence.

III.

Defendant contends that the court violated his due process right to be present at sentencing when it entered the restitution order in his absence. Assuming, without deciding, that defendant had a right to be present when the court ordered restitution, we conclude that defendant's presence was not required in this instance.

Defendant was present at the November 2002 sentencing hearing at which his prison sentence was imposed. At the conclusion of that hearing, the court granted the People ninety days to file a motion for restitution and stated that defendant could request a hearing on that motion.

The prosecution filed two motions for restitution on February 4, 2003. One motion asked the court to order restitution to the Crime Victim Compensation Fund in the amount of $11,000, and the other asked for restitution to the victim's father in the amount of $1,192.50 for the victim's headstone. The court granted both motions. Although defendant now asserts that he had a right to be present, he does not assert any infirmities in the two motions or the supporting documents.

The prosecution is not required to prove sentencing factors "by the same quality of evidence required in a guilt trial on the merits of the case." People v. Padilla, 907 P.2d 601, 609 (Colo.1995). And, as we have already noted, § 18-1.3-603(1) requires that, upon conviction, a defendant must be ordered to pay restitution unless the court specifically finds that no victim suffered a pecuniary loss.

Here, defendant has never asserted that no victim suffered any pecuniary loss, and, given the nature of the crimes, we conclude that the prosecution presented sufficient evidence regarding the existence of such losses to support the court's order. In addition, defendant has never asserted that the amount of restitution was improper. Therefore, even assuming, without deciding, that defendant had a right to be present when the court ordered restitution, we conclude that defendant's presence would have been useless on the questions of the propriety and amount of restitution. Thus, we conclude that any error was harmless beyond a reasonable doubt. See Luu v. People, 841 P.2d 271 (Colo.1992).

IV.

Defendant also contends that one of the jury instructions contained an incorrect statement of law regarding evidence of self-induced intoxication and that this deprived him of his due process right to require the prosecution to prove the elements of each crime beyond a reasonable doubt. We are not persuaded.

A.

The instruction stated:

You may consider evidence of self-induced intoxication in determining whether or not intoxication negates the existence of the particular states of mind "with intent" (which is also known as "specific intent") or ...