People v. Torrez, Court of Appeals No. 10CA1349

• Decision Date: 23 May 2013
• Docket Number: Court of Appeals No. 10CA1349
• Citation: 316 P.3d 25
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Eric J. TORREZ, Defendant–Appellant.
• Court: Colorado Court of Appeals

316 P.3d 25

The PEOPLE of the State of Colorado, Plaintiff–Appellee,

v.Eric J. TORREZ, Defendant–Appellant.

Court of Appeals No. 10CA1349

Colorado Court of Appeals, Div. VII.

Announced March 28, 2013

As Modified on Denial of Rehearing May 23, 2013 ^*

City and County of Denver District Court No. 08CR5851, Honorable Brian R. Whitney, Judge, Honorable Kenneth M. Laff, Judge.

John W. Suthers, Attorney General, Brock J. Swanson, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee.

Douglas K. Wilson, Colorado State Public Defender, Alan Kratz, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant.

Opinion by JUDGE BERNARD

¶ 1 As a general rule, section 18–1–408(3), C.R.S.2012 (subsection 408(3)), requires concurrent sentences when a defendant is convicted of multiple crimes based on identical evidence. The issue in this case is whether a sentencing statute for sex offenses, section 18–1.3–1004(5)(a), C.R.S.2012 (subsection 1004(5)(a)), creates an exception to the general rule. If so, it would require consecutive sentences for those “convicted of one or more additional crimes arising out of the same incident as the sex offense,” even when the additional crime is based on the same evidence as the sex offense.

¶ 2 Here, defendant, Eric J. Torrez, pled guilty to fourteen sex offenses. Among these were five pairs of sex offenses in which, he alleges on appeal, the two counts in each pair were based on identical evidence. The trial court sentenced him to consecutive sentences for the two counts in each of the pairs.

¶ 3 We conclude that the two counts in each of the five pairs were based on identical evidence. In doing so, we make clear that (1) our conclusion concerns only the two counts in each pair; (2) the evidence is different from pair to pair; and (3) the five pairs are not cumulatively based on identical evidence.

¶ 4 We further conclude that subsections 408(3) and 1004(5)(a) do not conflict and that they can be construed harmoniously. Thus, subsection 1004(5)(a) does not create an exception to the general rule found in subsection 408(3) that a court must impose concurrent sentences for counts based on identical evidence.

¶ 5 As a result of these conclusions, we reach one more. The consecutive sentences for the two counts in each pair are illegal, and, to remedy that problem, concurrent sentences must be imposed for the two counts in each pair.

¶ 6 We also reject additional arguments that defendant raises. As a result, we affirm in part, reverse in part, and remand for the sole purpose of amending the mittimus.

I. Background

¶ 7 The victims in this case were twins—a boy and a girl—who were placed, when they were between eight and ten years old, in defendant's care in his home when their mother became homeless. Shortly after defendant and his family took the twins in, he began to abuse them.

¶ 8 He hit them with canes, wires, and his fists. Defendant handcuffed the boy, starved him, and held his hands in boiling water. He repeatedly suffocated the twins by placing plastic bags over their heads.

¶ 9 Defendant also sexually abused them. He had sexual intercourse with the girl beginning when she was twelve. DNA testing later established that defendant had impregnated her four times, and three of the four babies were conceived before her eighteenth birthday. In order to hide his paternity of these children, defendant and his wife stated that their biological son was their father.

¶ 10 Defendant also forced the girl to perform cunnilingus on his wife.

¶ 11 Defendant sodomized the boy with a hairbrush. When the boy was twelve years old, he returned home and asked defendant what it meant to “spank the monkey.” In response, defendant hit the boy's penis with a spatula. On another occasion, defendant hit the boy's penis with the handle of a hammer.

¶ 12 The twins reported the abuse years later, after they had fled defendant's home. The prosecution filed various charges against defendant and his wife based upon sexual assaults that they had committed against the twins. (By the time the twins reported defendant's crimes, the statute of limitations had run on any crimes of physical abuse that defendant may have committed.)

¶ 13 Defendant went to trial on these charges. About three days into the presentation of evidence, he pled guilty to fourteen sexual offenses in exchange for a promise that his wife would be sentenced to probation and that charges arising out of the sexual abuse of the twins would not be filed against two other persons. He waived the requirement that a factual basis be established as a basis for his guilty plea.

¶ 14 At the sentencing hearing, the trial court determined that defendant's sentences on all the counts to which he had pled guilty should run consecutively. The court then sentenced him to spend an indeterminate term of 300 years to life in prison. The trial court also found that defendant was a sexually violent predator.

II. Counts 3, 7, and 15 Charged Substantive Crimes

¶ 15 Defendant argues that counts 3, 7, and 15 of the information charged only sentence enhancers, not substantive crimes. We are not persuaded.

¶ 16 Count 3 charged defendant with having committed the class three felony of sexual assault on a child as part of a pattern of abuse. It stated:

Between and including approximately March 1, 2002 and May 31, 2002, [defendant] unlawfully, feloniously, and knowingly subjected [the girl], not his spouse, to sexual contact ( [r]esulting in the birth of [A.] on January 15, 2003) and the victim was less than fifteen years of age and the defendant was at least four years older than the victim.

Further, the defendant committed the act as a pattern of sexual abuse, in violation of section 18–3–405(1), 2(d), C.R.S.

¶ 17 Count 7 charged defendant with the class three felony of sexual assault on a child by a person in a position of trust as part of a pattern of abuse. It stated:

Between and including approximately March 1, 2005 and May 31, 2005, [defendant] unlawfully, feloniously, and knowingly subjected [the girl], not his spouse to sexual contact ( [r]esulting in the birth of [G.] on January 26, 2006) and the victim was less than eighteen years of age and the defendant was in a position of trust with respect to the victim.

Further, the defendant committed the act as a part of a pattern of abuse; in violations of section 18–3–405.3(1), (2)(b), C.R.S.

¶ 18 Count 15 charged defendant with the class three felony of sexual assault on a child less than fifteen years of age by threat or force as part as a pattern of abuse. It stated:

Between and including approximately October 4, 1998 and October 3, 2000, [defendant] unlawfully, feloniously, and knowingly subjected [the boy], not his spouse, to sexual contact (Spanking the Monkey—Shower Incident) and the victim was less than fifteen years of age and the defendant was at least four years older than the victim.

Further, the defendant applied force against the victim in order to accomplish or facilitate sexual contact; in violation of section 18–3–405(1), 2(a), C.R.S.

Further, the defendant, in order to accomplish or facilitate the sexual contact, threatened imminent death, extreme pain, or kidnapping against the victim or another person, and the victim believed the defendant had the present ability to execute the threat; in violation of section 18–3–405(1), 2(b), C.R.S.

Further, the defendant committed the act as a part of a pattern of sexual abuse; in violation of section 18–3–405(1), 2(d), C.R.S.

A. Standard of Review

¶ 19 Defendant did not raise the argument concerning these three counts before the trial court. Nonetheless, the sufficiency of a charge is a jurisdictional issue and may be raised at any time. SeeCrim. P. 12(b)(2); People v. Melillo, 25 P.3d 769, 777 (Colo.2001) (“Crim. P. 7(b)(2) sets forth the requirements for determining whether an information is sufficient and thus invokes jurisdiction of the court.”).

B. Discussion

¶ 20 We reject defendant's contentions that counts 3, 7, and 15 charge only sentence enhancers, not substantive offenses. We conclude that these counts charge both substantive offenses and sentence enhancers.

¶ 21 An information is technically sufficient and invokes the jurisdiction of the court if one can understand by reading it

(I) That it is presented by the person authorized by law to prosecute the offense;

(II) That the defendant is identified therein ...;

(III) That the offense was committed within the jurisdiction of the court ...;

(IV) That the offense charged is set forth with such degree of certainty that the court may pronounce judgment upon a conviction.

Crim. P. 7(b)(2) (emphasis supplied); see alsoMelillo, 25 P.3d at 777–78.

¶ 22 The fourth requirement serves two primary functions. It “permit[s] the accused to prepare an adequate defense,” and it “assure[s] that the defendant cannot be prosecuted again for the same crime.” Melillo, 25 P.3d at 778 (quoting People v. Chavez, 730 P.2d 321, 325 (Colo.1986)). “[I]f an information identifies the essential elements of the crime charged, then it is sufficient.” Id.

¶ 23 Trial courts may not enter a separate conviction or sentence on a count that is only a sentence enhancer. SeePeople v. Luman, 994 P.2d 432, 438 (Colo.App.1999)(“[W]e conclude that, as defined in § 18–3–405(2)(d), sexual assault on a child as part of a pattern of sexual abuse should be construed as a sentence enhancer of the single crime of sexual assault on a child.”); see alsoPeople v. Martinez, 36 P.3d 201, 204 (Colo.App.2001)(“Here, the mittimus reflects a conviction and a separate sentence imposed on the special offender charge as a substantive offense in addition to conviction and sentences upon the enhanced offenses. Therefore, that conviction and sentence must be vacated.”). But “a single count may charge both a crime and a sentence enhancer.” Melillo, 25 P.3d at 777 (emphasis supplied).

¶ 24 Here, counts 3, 7, and 15 charged both substantive...