People v. Vega, No. 91CA1664

Docket NºNo. 91CA1664
Citation870 P.2d 549
Case DateSeptember 09, 1993
CourtCourt 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.

Page 550

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

Page 551

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"

Page 552

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...

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8 practice notes
  • The People Of The State Of Colo. v. Munsey, No. 04CA1405.
    • United States
    • Colorado Court of Appeals of Colorado
    • December 21, 2009
    ...trial court responds to jury questions unless “a fair and just hearing would be thwarted by [the defendant's] absence.” People v. Vega, 870 P.2d 549, 554 (Colo.App.1993), aff'd on other grounds, 893 P.2d 107 (Colo.1995). Similarly, the Isom division declined to follow Grace, holding that du......
  • Vega v. People, No. 93SC670
    • United States
    • Colorado Supreme Court of Colorado
    • April 3, 1995
    ...Section, Denver, for respondent. Justice MULLARKEY delivered the Opinion of the Court. We granted certiorari to review People v. Vega, 870 P.2d 549 (Colo.App.1993). 1 In Vega, the court of appeals affirmed a judgment of conviction entered upon a jury verdict finding the petitioner, Juan Cru......
  • Vega v. Suthers, No. 98-1024
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 26, 1999
    ...of Appeals and Colorado Supreme Court, in turn, rejected Vega's contentions and affirmed his conviction and sentence. See People v. Vega, 870 P.2d 549, 554 (Colo. Ct. App. 1993); Vega v. People, 893 P.2d 107, 120 (Colo. 1995) (en banc). After his conviction and sentence were affirmed on dir......
  • People v. Munsey, Court of Appeals No. 04CA1405 (Colo. App. 5/28/2009), No. 04CA1405.
    • United States
    • Colorado Court of Appeals of Colorado
    • May 28, 2009
    ...trial court responds to jury questions unless "a fair and just hearing would be thwarted by [the defendant's] absence." People v. Vega, 870 P.2d 549, 554 (Colo. App. 1993), aff'd on other grounds, 893 P.2d 107 (Colo. 1995). Similarly, the Isom division declined to follow Grace, holding that......
  • Request a trial to view additional results
8 cases
  • The People Of The State Of Colo. v. Munsey, No. 04CA1405.
    • United States
    • Colorado Court of Appeals of Colorado
    • December 21, 2009
    ...trial court responds to jury questions unless “a fair and just hearing would be thwarted by [the defendant's] absence.” People v. Vega, 870 P.2d 549, 554 (Colo.App.1993), aff'd on other grounds, 893 P.2d 107 (Colo.1995). Similarly, the Isom division declined to follow Grace, holding that du......
  • Vega v. People, No. 93SC670
    • United States
    • Colorado Supreme Court of Colorado
    • April 3, 1995
    ...Section, Denver, for respondent. Justice MULLARKEY delivered the Opinion of the Court. We granted certiorari to review People v. Vega, 870 P.2d 549 (Colo.App.1993). 1 In Vega, the court of appeals affirmed a judgment of conviction entered upon a jury verdict finding the petitioner, Juan Cru......
  • Vega v. Suthers, No. 98-1024
    • United States
    • United States Courts of Appeals. United States Court of Appeals (10th Circuit)
    • October 26, 1999
    ...of Appeals and Colorado Supreme Court, in turn, rejected Vega's contentions and affirmed his conviction and sentence. See People v. Vega, 870 P.2d 549, 554 (Colo. Ct. App. 1993); Vega v. People, 893 P.2d 107, 120 (Colo. 1995) (en banc). After his conviction and sentence were affirmed on dir......
  • People v. Munsey, Court of Appeals No. 04CA1405 (Colo. App. 5/28/2009), No. 04CA1405.
    • United States
    • Colorado Court of Appeals of Colorado
    • May 28, 2009
    ...trial court responds to jury questions unless "a fair and just hearing would be thwarted by [the defendant's] absence." People v. Vega, 870 P.2d 549, 554 (Colo. App. 1993), aff'd on other grounds, 893 P.2d 107 (Colo. 1995). Similarly, the Isom division declined to follow Grace, holding that......
  • Request a trial to view additional results

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