People v. Vigil

• Citation: 328 P.3d 1066
• Decision Date: 03 July 2013
• Docket Number: Court of Appeals No. 10CA1481
• Parties: The PEOPLE of the State of Colorado, Plaintiff–Appellee, v. Eli Manuel VIGIL, Defendant–Appellant.
• Court: Court of Appeals of Colorado

328 P.3d 1066

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

v.Eli Manuel VIGIL, Defendant–Appellant.

Court of Appeals No. 10CA1481

Colorado Court of Appeals,

Div. VII.

Announced July 3, 2013

Adams County District Court Nos. 08M5089 & 09M1123, Honorable Dianna L. Roybal, Judge

John W. Suthers, Attorney General, Jillian J. Price, Assistant Attorney General, Denver, Colorado, for Plaintiff–Appellee

Douglas K. Wilson, Colorado State Public Defender, Jason C. Middleton, Deputy State Public Defender, Denver, Colorado, for Defendant–Appellant

Opinion by JUDGE PLANK ^*

¶ 1 Defendant, Eli Manuel Vigil, challenges his convictions under the habitual domestic violence offender (HDVO) statute, section 18–6–801(7), C.R.S. 2012. We reverse and remand for further proceedings.

I. Background

¶ 2 Defendant was charged in county court with misdemeanor counts in two separate cases, both arising from his conduct with his wife, the victim.

¶ 3 In the first case, 08M5089, defendant was charged by misdemeanor summons and complaint with third degree assault, theft under $500, violating a protection order, and a domestic violence sentence enhancer. After spending time together at a local club, the victim and defendant argued outside the door to her home. During a struggle, defendant headbutted the victim in the head and she lost consciousness. Defendant took the victim's phone and left. At the time of this incident, a restraining order was in effect protecting the victim from defendant.

¶ 4 In the second case, 09M1123, defendant was charged with criminal mischief under $500, theft under $500, violating a protection order, and a domestic violence sentence enhancer. Here, defendant and the victim had a few drinks at a local bar and argued regarding a phone call the victim received. While the victim was driving home, defendant grabbed the steering wheel of her car and turned the car into a nearby field. Defendant got out of the car and walked to the victim's home, while the victim drove. Defendant and the victim struggled over control of her keys in the doorway to her home. The same restraining order was in effect protecting the victim from defendant at the time of this incident.

¶ 5 In each case, the People moved to file an additional count to adjudge defendant an HDVO. Defendant objected, arguing that adding such a count would convert the misdemeanor case into a felony case, over which the county court lacked jurisdiction. Following a hearing, the county court granted the People's motions to add the HDVO counts.

¶ 6 The district court chief judge then issued a written order stating that the case was properly heard in county court as the matters were domestic violence misdemeanor charges. Pursuant to Seventeenth Judicial District Chief Judge Order 03–04, as amended in 2009, the chief judge authorized the county court judge to sit as a district court judge for the limited purpose of holding a hearing on the HDVO charges.

¶ 7 Defendant filed a motion challenging the county court's determination of his status as an habitual domestic violence offender as unconstitutional. He argued that, because designation of a defendant's crimes as habitual domestic violence acts does not merely allow an aggravated sentence, but exposes the defendant to a felony conviction rather than just a misdemeanor conviction, a jury must determine crimes of domestic violence under the HDVO statute.

¶ 8 Meanwhile, cases 08M5089 and 09M1123 went to trial in county court. In each case, defendant was convicted of violating a protection order and the court found that his acts were an incident of domestic violence. The theft charge in case 09M1123 was dismissed, and defendant was acquitted of the remaining charges.

¶ 9 The county court judge, then acting as a district court judge, held a hearing on defendant's challenge to the constitutionality of the county court's determination of the domestic violence acts. The court, summarizing the Supreme Court's holdings in 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), as well as our state's progeny cases interpreting those holdings, concluded that after the jury tries the substantive offense, the court can properly determine both whether an act of domestic violence has occurred and whether a defendant should be adjudged an HDVO.

¶ 10 The court determined that in this case, the People proved beyond a reasonable doubt that defendant had been convicted of domestic violence acts more than three times since 2000, such that defendant was subject to HDVO sentencing. The court sentenced him to two concurrent three-year terms in the Department of Corrections (DOC).

II. The Habitual Domestic Violent Offender Statute

¶ 11 Defendant contends that because he was charged with misdemeanor counts as well as felony counts pursuant to the HDVO statute, which exposed him to a felony conviction, he was entitled to be tried in accordance with felony trial procedures, and the court's failure to do so violated his statutory and constitutional rights. This question presents an issue of first impression.

A. Standard of Review and Statutory Construction

¶ 12 When interpreting a statute, our review is de novo. See, e.g., People v. Perez, 2013 COA 65, ¶12, ––– P.3d ––––, 2013 WL 1908991.

¶ 13 Our primary purpose is to effectuate the legislature's intent. Montes–Rodriguez v. People, 241 P.3d 924, 927 (Colo. 2010) (citing People v. Cross, 127 P.3d 71, 73 (Colo. 2006)). We first consider the plain language of the statute. Id. “We read words and phrases in context and construe them according to rules of grammar and common usage.” Perez, ¶ 13. We do not presume that the legislature used language idly, and we give effect to every word, rather than render any superfluous. People v. Iversen, 2013 COA 40, ¶21, ––– P.3d ––––, 2013 WL 1245334. If the legislative intent is clear from the plain language of the statute, we need not apply other rules of statutory interpretation, and our analysis is complete. Jefferson County Bd. of Equalization v. Gerganoff, 241 P.3d 932, 936 (Colo. 2010).

¶ 14 A statute is considered ambiguous if it is susceptible of more than one reasonable interpretation. Pham v. State Farm Auto. Ins. Co., 2013 CO 17, ¶ 13, 296 P.3d 1038. Only where the statute's language is ambiguous may we turn to other principles of statutory construction and consider the consequences of a certain construction, the end to be achieved by the statute, and legislative history. Bostelman v. People, 162 P.3d 686, 690 (Colo. 2007).

¶ 15 Statutes are presumed to be constitutional, and to be invalidated, the statute “must be sufficiently infirm so that no limiting construction consistent with the legislature's intent will preserve its constitutionality.” People v. Hickman, 988 P.2d 628, 634 (Colo. 1999).

B. The Statute

¶ 16 Section 18–6–801(7) provides, in relevant part:

In the event a person is convicted in this state on or after July 1, 2000, of any offense which would otherwise be a misdemeanor, the underlying factual basis of which has been found by the court on the record to include an act of domestic violence as defined in section 18–6–800.3(1), and that person has been three times previously convicted, upon charges separately brought and tried and arising out of separate and distinct criminal episodes, of a felony or misdemeanor or municipal ordinance violation, the underlying factual basis of which was found by the court on the record to include an act of domestic violence, the prosecuting attorney may petitionthe court to adjudge the person an habitual domestic violence offender, and such person shall be convicted of a class 5 felony. If the person is adjudged an habitual domestic violence offender, the court shall sentence the person pursuant to the presumptive range set forth in section 18–1.3–401 for a class 5 felony.

¶ 17 Section 18–6–800.3, C.R.S. 2012, provides the following definitions:

(1) “Domestic violence” means an act or threatened act of violence upon a person with whom the actor is or has been involved in an intimate relationship. “Domestic violence” also includes any other crime against a person, or against property, including an animal, or any municipal ordinance violation against a person, or against property, including an animal, when used as a method of coercion, control, punishment, intimidation, or revenge directed against a person with whom the actor is or has been involved in an intimate relationship.

(2) “Intimate relationship” means a relationship between spouses, former spouses, past or present unmarried couples, or persons who are both the parents of the same child regardless of whether the persons have been married or have lived together at any time.

C. Sentence Enhancers Versus Substantive Offenses

¶ 18 Statutory provisions that increase the felony level of an offense are generally construed as sentence enhancers rather than essential elements of the offense. Vega v. People, 893 P.2d 107, 113 (Colo. 1995). Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt. Apprendi, 530 U.S. at 490, 120 S.Ct. 2348. Aggravated sentencing may rely on (1) facts found by a jury beyond a reasonable doubt; (2) facts admitted by the defendant; (3) facts found by a judge after the defendant stipulates to judicial fact-finding for sentencing purposes; and (4) facts regarding prior convictions. Lopez v. People, 113 P.3d 713, 719 (Colo. 2005).

D. Statutory Interpretation Analysis

¶ 19 A division of this court has addressed the HDVO statute in People v. Garcia, 176 P.3d 872 (Colo. App. 2007), and concluded that it is a sentence enhancement statute, not a substantive offense. Garcia, 176 P.3d at 873. The division stated that “[b]y its plain language, this statute allows the prosecution, upon a...