People v. Valles

• Decision Date: 06 June 2013
• Docket Number: No. 08CA0738,08CA0738
• Citation: 412 P.3d 537
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Alberto VALLES, Defendant–Appellant.
• Court: Colorado Court of Appeals

412 P.3d 537

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

v.Alberto VALLES, Defendant–Appellant.

No. 08CA0738

Colorado Court of Appeals, Div. I.

Announced June 6, 2013

John W. Suthers, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Joseph Paul Hough, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE TAUBMAN

¶ 1 Defendant, Alberto Valles, appeals the trial court's judgment of conviction entered upon jury verdicts finding him guilty of one count first degree extreme indifference murder and four counts of attempted extreme indifference murder. He also appeals the sentence imposed.

¶ 2 This case presents an issue of first impression regarding whether a previous version of Colorado's direct file statute, which allows prosecutors to directly file criminal charges against certain juveniles in district court, is unconstitutional under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We conclude that Apprendi and Blakely are not controlling on the issue, and therefore do not render the statute unconstitutional. Addressing the remainder of Valles's claims, we affirm his conviction, vacate his sentence, and remand to the trial court for resentencing.

I. Background

¶ 3 Valles was a member of a gang that was feuding with another gang. On November 30, 2005, Valles (then seventeen years old) and fellow gang members, including Hector Castillo Jr. and Lucas Cummings, were driving in a car owned by Castillo Jr.'s father. The three men came across another car driven by J.M., the leader of their rival gang. The second car contained numerous passengers, including R.S. A chase ensued, during which Valles fired multiple rifle shots at the rival car. One of the shots hit R.S., fatally wounding him.

¶ 4 Police subsequently apprehended Valles, and he was charged with one count first degree extreme indifference murder and four counts of attempted extreme indifference murder. Valles's first jury trial resulted in a hung jury. Following a second jury trial, he was convicted as charged and sentenced to life without the possibility of parole.

¶ 5 This appeal followed.

II. Direct File Statute

¶ 6 Valles asserts that Ch. 283, sec. 1, § 19–2–517, 1996 Colo. Sess. Laws 1639 (the direct file statute), which authorized the prosecution to charge him as an adult in the district court, is unconstitutional on its face under Apprendi and Blakely . We disagree.

A. Standard of Review

¶ 7 We review the constitutionality of a statute de novo. Hinojos–Mendoza v. People , 169 P.3d 662, 668 (Colo.2007). Because statutes are presumed constitutional, the challenging party must prove unconstitutionality beyond a reasonable doubt. Id.

B. Preservation

¶ 8 At oral argument, the People asserted that Valles did not preserve this issue. Specifically, they argued that, although Valles challenged the constitutionality of the direct file statute in the trial court, the trial court never ruled on the objection, and thus, the issue was not properly preserved. See generally First Interstate Bank v. Cent. Bank & Trust Co., 937 P.2d 855, 858 (Colo.App.1996) (arguments not ruled upon by a trial court may not be raised for the first time on appeal).

¶ 9 However, we decline to consider the prosecution's assertion because it was raised for the first time during oral argument. See People v. Rainer, 2013 COA 51, ¶ 80, 412 P.3d 520, 2013 WL 1490107 ("We decline to consider new arguments made by the People during oral argument that were not made either in the trial court or in the People's answer brief on appeal.").¹

C. Discussion

¶ 10 When Valles was charged, the relevant version of section 19–2–517 authorized a prosecutor to charge a juvenile fourteen years of age or older who was alleged to have committed a class 1 or class 2 felony by direct filing an information in the district court. Ch. 283, sec. 1, § 19–2–517(1)(a), 1996 Colo. Sess. Laws 1639.² The statute also required the district court to sentence as an adult any juvenile charged under section 19–2–517(1) and convicted of a class 1 felony. Ch. 283, sec. 1, § 19–2–517(3)(a), 1996 Colo. Sess. Laws 1640. Accordingly, here, the prosecution elected to file charges against Valles in the district court; and, as a result of his conviction for a class 1 felony, the district court sentenced him as an adult.

¶ 11 In Apprendi, and subsequently in Blakely, the Supreme Court held that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely, 542 U.S. at 301, 124 S.Ct. 2531 (quoting Apprendi, 530 U.S. at 490, 120 S.Ct. 2348 ). Thus, Valles asserts that because the decision to file his charges in the district court resulted in a higher sentence than he would have received if he were charged as a juvenile offender, a jury was required to make the factual findings required by the direct file statute—that he was a juvenile, and that he was alleged to have committed, and was convicted of, a class 1 felony—prior to the prosecution being allowed to file charges in the district court.

¶ 12 However, Valles cites no Colorado authority to support his assertion that Apprendi and Blakely apply to the direct file statute, nor are we aware of any. Rather, we conclude that Apprendi and Blakely are inapposite.

¶ 13 Both Apprendi and Blakely involved statutory schemes that allowed a trial court to increase a defendant's sentence based on facts determined by the trial court subsequent to the defendant's conviction. Blakely, 542 U.S. at 299, 124 S.Ct. 2531 ; Apprendi, 530 U.S. at 468–69, 120 S.Ct. 2348. The direct file statute, however, involves a prosecutor's pretrial exercise of discretion, not a posttrial finding of fact. See generally People v. Thorpe, 641 P.2d 935, 939–40 (Colo.1982) ("The statutory scheme prescribed by the legislature is clear and vests [the] determination [whether to direct file] solely in the discretion of the district attorney."); Myers v. Dist. Court, 184 Colo. 81, 85, 518 P.2d 836, 838 (1974) ("[i]t is well settled that a prosecutor has constitutional power to exercise his discretion in deciding which of several possible charges to press in a prosecution" and "may properly invoke the concurrent jurisdiction of the district court" in charging a juvenile); People v. Hughes, 946 P.2d 509, 516 (Colo.App.1997) ("[I]t is a valid exercise of prosecutorial discretion for prosecutors to select which of the juveniles who meet the statutory requirement for direct filing will be filed upon in district court."), overruled in part by Valdez v. People 966 P.2d 587, 591 (Colo.1998).

¶ 14 In addition, under the Colorado Constitution's separation of powers principle, a prosecutor, as an executive branch official, may not be limited in the exercise of his or her discretion by judicial intervention. People v. Dist. Ct., 632 P.2d 1022, 1023–24 (Colo.1981). Such discretion is protected even when it results in the possibility of a longer sentence. See People v. Wellington, 633 P.2d 1390, 1391 (Colo.1981).

¶ 15 Further, the United State Supreme Court limited the scope of Apprendi and Blakely in Oregon v. Ice, 555 U.S. 160, 129 S.Ct. 711, 172 L.Ed.2d 517 (2009). There, the Supreme Court held that Apprendi and Blakely are limited in application to the "historic role[s]" of a jury. Id . at 168, 129 S.Ct. 711. Thus, the Court held that trial court judges could make the factual findings required under Oregon law necessary for imposing consecutive, rather than concurrent, sentences – despite the potential of a significantly longer overall sentence. Id . at 164, 129 S.Ct. 711. Here, the direct file statute involves deciding where a case should be filed. Although the statute can result in a defendant being sentenced to a significantly longer period of incarceration, the decision regarding the forum in which a case is filed has never been part of the historical role of a jury. Significantly, following Ice, the Washington Court of Appeals held that Apprendi does not require a jury to determine the predicate facts for a juvenile court to decline jurisdiction and transfer a case for adult criminal prosecution. State v. Childress, 169 Wash.App. 523, 280 P.3d 1144, 1147–48 (2012) (collecting cases).

¶ 16 Finally, the direct file statute does not affect the determination of a defendant's guilt or innocence. Nor does it implicate the procedural fairness of the resulting trial. See United States v. Dillard, 490 Fed.Appx. 869, 870 (9th Cir.2012) (Apprendi does not apply to transfers between juvenile and adult courts because such transfers do not relate to guilt or innocence and do not deny a defendant "crucial procedural protections.") Accordingly, we conclude that Apprendi and Blakely are inapposite and do not apply.

¶ 17 Other jurisdictions have similarly held that the holdings in Apprendi and Blakely do not apply to their direct file statutes. See Id .; Gonzales v. Tafoya, 515 F.3d 1097, 1117 (10th Cir.2008) (Apprendi does not apply to a judge's decision whether to sentence a juvenile under the adult sentencing scheme, even though the decision may result in a significantly longer sentence); United States v. Miguel, 338 F.3d 995 (9th Cir.2003) ( Apprendi is inapplicable to an analysis of relevant direct file statute, because the statute does not create a per se increase of a defendant's punishment; rather, it establishes district court jurisdiction); Kirkland v. State, 67 So.3d 1147, 1149 (Fl.Dist.Ct.App.2011) (Apprendi does not govern Florida's direct file statute because the statute relates to prosecutorial discretion, not sentence enhancement); State v. Jones, 273 Kan. 756, 47 P.3d 783, 798 (2002) (Apprendi does not apply to Kansas's direct file statute becau...