People v. Vega

• Citation: 870 P.2d 549
• Decision Date: 09 September 1993
• Docket Number: No. 91CA1664,91CA1664
• Parties: The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Juan Cruz VEGA, Defendant-Appellant. . V
• Court: Court of Appeals of Colorado

Page 549

870 P.2d 549

The PEOPLE of the State of Colorado, Plaintiff-Appellee, v. Juan Cruz VEGA, Defendant-Appellant.

No. 91CA1664.

Colorado Court of Appeals Div. V.

Sept. 9, 1993.

Rehearing Denied Oct. 14, 1993.

Certiorari Granted April 11, 1994.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Wendy J. Ritz, Asst. Atty. Gen., Denver, for plaintiff-appellee.

David F. Vela, Colorado State Public Defender, David M. Furman, Deputy State Public Defender, Denver, for defendant-appellant.

Opinion by Judge DAVIDSON.

Defendant, Juan Cruz Vega, appeals from a judgment of conviction entered upon a jury verdict finding him guilty of possession with intent to distribute more than 28 grams of cocaine. We affirm.

Defendant, a resident of California, and two other men were arrested after transporting cocaine from Los Angeles to Denver and offering it for sale to undercover federal Drug Enforcement Agents. A police informant had been involved in initiating the transaction and defendant offered an affirmative defense of entrapment.

I.

Premised on the allegation that he had introduced, distributed, or imported a controlled substance into Colorado, defendant was charged with distribution of a controlled substance, and as a special offender pursuant to § 18-18-107 C.R.S. (1986 Repl.Vol. 8B). During preparation of jury instructions, defendant argued that the jury should be specifically instructed that the entrapment defense applied to the charge of special offender status. The trial court denied defendant's request, and he now asserts that by this ruling, he was deprived of his due process right to present an affirmative defense of entrapment to a charge of special offender status. We disagree.

Section 18-18-107, C.R.S. (1986 Repl.Vol. 8B) provides, in pertinent part, that:

[U]pon a felony conviction under this article, the presence of any one or more of the following extraordinary aggravating circumstances designating the defendant a special offender shall require the court to sentence the defendant to a term greater than the presumptive range for a class 2 felony but not more than twice the maximum term for a class 2 felony authorized in the presumptive range for the punishment of such felony:

....

(d) The defendant unlawfully introduced, distributed, or imported into the state of Colorado any schedule I or II controlled substance ... or, with the intent to promote or facilitate the introduction, distribution, or importation of any schedule I or II controlled substance ... into the state of Colorado, he aided, abetted, or advised another person to introduce, distribute, or import any schedule I or II controlled substance ... into the state of Colorado.

The trial court based its ruling, in part, on the ground that, on the evidence presented, the jury could find entrapment only as to conduct occurring prior to the transportation of the cocaine into Colorado, and therefore, to even reach the special offender charge it would first have to reject entrapment as to the substantive offense. The trial court further found that defendant was not entitled to a separate entrapment instruction because the charge of special offender status is not an offense but instead is an extraordinary aggravating circumstance which requires a sentence enhancement.

Defendant argues that the trial court reversed the sequence in which the jury must consider the two charges. He contends that because the act of distribution followed closely in time the act of importation, the jury would have to determine whether importation occurred before reaching the charge of distribution, and therefore, he urges that it should have been instructed that entrapment was an affirmative defense to the separate importation charge. We disagree. Even were defendant correct that, here, the jury could have found entrapment as to the act of importation, we agree with the trial court that the charge of special offender status did not create a separate offense of importation to which an affirmative defense applied.

The special offender statute does not create a substantive crime. See Felts v. County Court, 725 P.2d 61 (Colo.App.1986) (because it is not a substantive offense, no preliminary hearing is required on a charge of special offender status). Unlike § 16-11-309, C.R.S. (1986 Repl.Vol. 8A) (crime of violence) or § 16-13-103, C.R.S. (1986 Repl.Vol. 8A) (habitual offender), no special procedural provisions have been included in the special offender statute for separate charging, trial, or verdict on a charge of special offender status.

Defendant concedes that affirmative defenses logically apply only to substantive offenses. See People v. Huckleberry, 768 P.2d 1235 (Colo.1989) (an affirmative defense essentially admits the offense but seeks to justify, excuse, or mitigate it). However, citing People v. Garcia, 752 P.2d 570 (Colo.1988) and People v. Delgado, 832 P.2d 971 (Colo.App.1991), he argues that the special offender statute has been likened generally to the crime of violence sentence enhancement statute, § 16-11-309, C.R.S. (1986 Repl.Vol. 8A) which, by its terms, requires a separate finding of "crime of violence" by the jury. Based on his assumption that the jury here therefore would be similarly required to make a separate finding as to the special offender charge, defendant argues that due process requires that he be entitled to present an affirmative defense to what he describes as "the added essential element of importation" which allowed for an enhanced sentence. We do not agree.

To the contrary, we conclude that the special offender statute is a presumptive penalty statute which requires no special verdict of special offender status by the jury and therefore that affirmative defenses are not applicable.

Section 18-18-107 establishes special offender status solely upon a finding of one or more extraordinary aggravating circumstances and requires the court to impose a sentence that is within a set penalty range for drug offenses if certain specified circumstances are present. Importantly, the statute contains no procedure or requirement for the jury to make any determinations concerning any aggravating or mitigating factors. Cf. § 16-11-103(2)(a), C.R.S. (1993 Cum.Supp.) (during penalty phase on a capital offense, "the jury shall deliberate and render a verdict" based upon whether aggravating and mitigating factors have been proved); Rowe v. People, 856 P.2d 486 (Colo.1993) (on first degree assault charge, defendant was entitled to raise the issue of provocation and to request a jury instruction on the mitigating factor of "heat of passion").

Also, importantly, the statute provides that "the presence of" one or more of the enumerated extraordinary aggravating circumstances "shall require the court to sentence the defendant" to a lengthier term. Section 18-18-107(1), C.R.S. (1986 Repl.Vol. 8B). This language is identical to that used in § 18-1-105(9)(a), C.R.S. (1986 Repl.Vol. 8B), the general felony presumptive penalty statute.

Similarly, under § 18-1-105(6), C.R.S. (1986 Repl.Vol. 8B) the trial court may conclude that extraordinary aggravating circumstances "are present" based upon evidence presented at trial, at the sentencing hearing, or on the presentence report; no provision is made for a jury finding. See also People v. Faulkner, 40 Colo.App. 537, 580 P.2d 823 (1978); People v. Duncan, 754 P.2d 796 (Colo.App.1988); compare § 18-18-107 with §§ 16-11-309(5) and 16-11-309(7), C.R.S. (1986 Repl.Vol. 8A) ("the jury, or the court if no jury trial is had ... shall make a specific finding as to whether" the requirements of a crime of violence have been proved) and §§ 16-13-103(1) and 16-13-103(4), C.R.S. (1986 Repl.Vol. 8A) (on an habitual offender charge "the jury impaneled to try the substantive offense" shall determine if the defendant has been previously convicted as alleged).

Thus, by its plain language, § 18-18-107 was intended to be a mandatory sentencing statute which "[does] not enhance the disposition but merely [requires] the court to impose a specific disposition on the offender." See People in Interest of C.R.B., 662 P.2d 198, 199 (Colo.App.1983). The statute does no more than set a penalty range for particular crimes involving drug offenses committed under special circumstances, and "[t]he legislature certainly has the authority to establish more severe penalties for acts that it believes have greater consequences." People v. Terry, 791 P.2d 374, 378 (Colo.1990) (whenever reference to sentencing under § 16-11-309 appears in a substantive statute, § 16-11-309 is intended to serve as a presumptive penalty statute).

No due process concerns are raised by the operation of a presumptive penalty statute so long as the defendant receives reasonable notice of the potential for an increased sentence and the prosecution meets its burden of proof as to the aggravating factor alleged if it is contested. See People v. Lacey, 723 P.2d 111 (Colo.1986); People v. Alexander, 724 P.2d 1304 (Colo.1986); see also People v. Garcia, supra. Compare § 18-1-105(9)(a) with § 16-11-309, and see People v. Terry, supra. Accordingly, no special jury verdict is required as to the aggravating factor nor is the assertion of an affirmative defense appropriate.

Here, although not required under the special offender statute, defendant was separately charged as a special offender and thus received notice of the potential for a lengthier sentence. See People v. Garcia, supra. Although also not required under the special offender statute, the jury here, by special verdict, determined the existence of the extraordinary aggravating circumstance. This finding is adequately supported by the record.

Hence, the procedure by which defendant was determined to be a special offender was more protective than actually required by the statute. Cf. People v. Terry, supra. Therefore, we can find no due process violation...