People v. Valdez, 95CA0043
| Decision Date | 29 November 1996 |
| Docket Number | No. 95CA0043,95CA0043 |
| Citation | 928 P.2d 1387 |
| Parties | The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. George VALDEZ, Defendant-Appellant. . I |
| Court | Colorado Court of Appeals |
Gale A. Norton, Attorney General, Stephen K. ErkenBrack, Chief Deputy Attorney General, Timothy M. Tymkovich, Solicitor General, Terrence A. Gillespie, First Assistant Attorney General, Denver, for Plaintiff-Appellee.
Law Offices of J.E. Losavio, Jr., J.E. Losavio, Jr., Margaret L. Herdeck, Michael L. Garcia, Pueblo, for Defendant-Appellant.
Opinion by Judge METZGER.
Pursuant to a plea bargain, defendant, George Valdez, entered a plea of nolo contendere to one count of electioneering. He appeals the judgment of conviction and sentence. We affirm the former, vacate the latter, and remand the cause for a new sentencing hearing.
In 1992, an election challenge to absentee voters brought by a citizens group in Costilla County resulted in an order requiring names to be stricken from the voting lists. The citizens group later requested that the Attorney General begin a criminal investigation into what they termed the "tradition" of voting fraud in Costilla county.
A state grand jury had already been impanelled, pursuant to §§ 13-73-101 to 13-73-108, C.R.S. (1987 Repl.Vol. 6A). Its stated task was to investigate various crimes, including medicaid and insurance fraud and taxation violations. This resulted from a petition to convene a state grand jury filed by the Attorney General in the Denver District Court in June 1993, alleging that all such investigations had been ordered by executive order of the Governor of Colorado. The Attorney General, on October 29, 1993, obtained permission from the chief judge of the Denver District Court to allow this state grand jury to investigate the allegations of election fraud and other crimes in Costilla County and elsewhere.
On January 21, 1994, the state grand jury returned an indictment charging defendant with voting by giving false information regarding residence; aiding and abetting fraud in absentee voting; voter intimidation; and attempted voter intimidation. Defendant's daughter was also indicted on other charges.
On December 27, 1994, the prosecutor and the defendant signed a "settlement agreement" pursuant to which defendant, on January 6, 1995, entered a nolo contendere plea to an added count charging electioneering, a misdemeanor. In exchange, the original charges in the indictment against him and his daughter were dismissed. The trial court accepted the plea, entered judgment, and, by agreement of the parties, proceeded immediately to conduct a sentencing hearing.
At the hearing, the court heard testimony from the probation officer who had prepared the pre-sentence report and from two citizens. Defendant requested a continuance, which was denied. The defendant then moved to withdraw his plea, but that motion was denied also.
The court then sentenced defendant to 90 days in the Costilla County jail, imposed a $1,000 fine, and assessed court costs. Defendant was also ordered to pay $1,500 in restitution to the citizens group to defray its costs in pursuing the election challenge which had resulted in the grand jury investigation.
Defendant first contends the chief judge of the Denver District Court exceeded her jurisdiction in ordering a state grand jury, already impaneled, to consider matters presented in relation to violations of the election laws in Costilla County. The basis of defendant's argument is that § 24-31-101, C.R.S. (1988 Repl.Vol. 10A) limits the powers of the Attorney General such that he or she can only respond to an executive order by the Governor before petitioning for impanelment of the state grand jury. Thus, he contends, the absence of such an executive order here resulted in the grand jury and the supervising court having no jurisdiction. We do not agree.
Section 13-73-101, as then in effect before its 1996 amendment, governed the impaneling of state grand jurors. It provided:
When the attorney general deems it to be in the public interest to convene a grand jury which has jurisdiction extending beyond the boundaries of any single county, he may petition the chief judge of any district court for an order in accordance with the provisions of this article. Said chief judge may, for good cause shown, order the impaneling of a state grand jury which shall have statewide jurisdiction. In making his determination as to the need for impaneling a state grand jury, the judge shall require a showing that the matter cannot be effectively handled by a ... 'county grand jury.'
That statute expressly gives the Attorney General the power to petition the chief judge of the district court for the impanelment of the state grand jury when the Attorney General deems it to be in the public interest to convene a grand jury which has jurisdiction extending beyond the boundaries of any single county.
In People v. Cerrone, 867 P.2d 143 (Colo.App.1993), aff'd, Cerrone v. People, 900 P.2d 45 (Colo.1995), a division of this court held that impaneling a state grand jury was proper when the chief judge of the district court found that the Attorney General, by her petition, had made a showing of good cause, that the matter could not be handled effectively by a county grand jury, and that it was in the public interest to convene a state grand jury. The Cerrone court relied on the specific statutory language of § 13-73-101 for its conclusion.
The cases relied on by defendant, People ex rel. Tooley v. District Court, 190 Colo. 486, 549 P.2d 774 (1976), and People ex rel. Witcher v. District Court, 190 Colo. 483, 549 P.2d 778 (1976), do not persuade us that a contrary result should obtain. In both cases, the supreme court held that the Attorney General must commence state grand jury proceedings if required to do so by the Governor. However, those cases do not stand for the proposition that the Attorney General may not also petition a chief judge of a judicial district to impanel a state grand jury, and that he or she may not prosecute certain cases arising out of indictments issuing from such grand juries.
Here, the Attorney General petitioned the chief judge of the Denver District Court to impanel a state grand jury only after she was requested by the citizens group to investigate allegations of election fraud. Under such circumstances, a failure of the Attorney General to act would have been in violation of the General Assembly's purpose to use the "law enforcement tool" of the state grand jury to investigate crimes respecting election fraud.
Thus, contrary to the assertions of the defendant, the district court, the Attorney General, and the state grand jury did not operate outside of their statutorily granted jurisdiction.
Defendant next contends that the district court erred in allowing the state grand jury to return an indictment against him for violations alleged to have occurred in Costilla County. He further asserts that the district court erred in fixing venue originally in El Paso County. We disagree.
We first note that the indictment alleges criminal conduct in places other than just Costilla County. The indictment alleges that criminal conduct occurred in Orange County, California, and the Colorado counties of Crowley, El Paso, Denver, and Boulder.
Under these circumstances, the chief judge of the Denver District Court did not err in concluding that the investigation "cannot be effectively handled by a county or judicial district grand jury." See People v. Cerrone, supra. Thus, the state grand jury, being properly impaneled, had jurisdiction to return its indictment.
We note also that, because defendant has not alleged that the indictment is technically insufficient or unsound in form or substance, and we find no such insufficiency, the state grand jury properly exercised jurisdiction here. See § 16-5-201, C.R.S. (1986 Repl.Vol. 8A); People v. Thimmes, 643 P.2d 780 (Colo.App.1982); People v. Westendorf, 37 Colo.App. 111, 542 P.2d 1300 (1975).
We also reject defendant's contention that it was error to fix venue in this matter originally in El Paso County.
Jurisdiction of the court refers to the inherent power to inquire into a matter and to act thereon. Klancher v. Anderson, 113 Colo. 478, 158 P.2d 923 (1945). We have determined that the state grand jury was properly impaneled by a district court with jurisdiction.
Venue, on the other hand, refers to the locale or district in which a court with jurisdiction may hear and decide the case. See U.M. v. District Court, 631 P.2d 165 (Colo.1981).
Section 13-73-107, C.R.S. (1987 Repl.Vol. 6A), as pertinent here before being amended in 1996, stated:
Any indictment by a state grand jury shall be returned to the chief judge without any designation of venue. Thereupon, the judge shall, by order, designate the county of venue for the purpose of trial....
Pursuant to the statute, the chief judge of the Denver District Court designated El Paso County as the county of venue. Because the indictment alleged that certain criminal conduct of the defendant had occurred in El Paso County, this was not improper. See § 18-1-202(1), C.R.S. (1986 Repl.Vol. 8B); Crim. P. 18(a)(1).
Thus, while venue was later changed to Costilla County, on defendant's motion, for the convenience of parties and witnesses, see § 16-6-101, et seq., C.R.S. (1986 Repl.Vol. 8A); Crim. P. 21(a), the court did not err in initially fixing venue in El Paso County pursuant to § 13-73-107. See People v. Rice, 40 Colo.App. 357, 579 P.2d 647 (1978).
Defendant next contends that the trial court violated the provisions of Crim. P. 6.8 by allowing the indictment to be amended to add the count of electioneering, § 1-13-714, C.R.S. (1996 Cum.Supp.). Thus, he argues, his plea should be vacated because the court had no jurisdiction to accept it. We reject this argument for two reasons.
First, we conclude that the invited error doctrine precludes defen...
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