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City and County of Denver District Court No. 08CR479. Honorable William D. Robbins, Judge.
John W. Suthers, Attorney General, Kevin E. McReynolds, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Elizabeth Porter-Merrill, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Romá n, J., concurs. Webb, J., concurs in part and dissents in part.
[¶1] Defendant, Leo J. Cisneros, appeals the judgment of conviction entered on a jury verdict finding him guilty of possession with intent to distribute marijuana. He also appeals his enhanced sentence as a special offender. We affirm.
[¶2] At around 10:30 p.m. on November 26, 2007, defendant was at home with his wife, four children, brother, and mother when there was a knock on his front door. The knock came from a group of five acquaintances who were armed and intending to rob defendant. When defendant's brother answered the door, one of the robbers pushed the door open and pointed a gun into the apartment. At that point, gunfire erupted.
The robbers fired shots into the apartment and defendant grabbed a handgun and fired shots toward the door. Defendant's ten-year-old daughter, who was caught in the crossfire, was shot in the head and died at the scene. It was not apparent who shot first or who fired the fatal shot.
[¶3] Police and emergency services arrived shortly after the shooting. Officers entered the apartment and observed the victim's body on the floor in the living room, spent shell casings near the body, and a tray on the living room floor containing suspected marijuana. An officer spoke with defendant at the scene and, subsequently, a detective interviewed defendant at the police department several times. During the initial interview with the detective, defendant admitted that he owned a handgun and that he possessed and sold marijuana.
[¶4] Police obtained a warrant and searched defendant's apartment. In addition to the items officers previously observed, the search recovered a bag of marijuana in the victim's hand, which was thrust into her pocket; $1145 in cash in a bedroom closet; the handgun and another gun on an armoire in a bedroom; a safe that had been under defendant's bed and which contained sixteen baggies of marijuana; a dresser drawer containing several boxes of live cartridge ammunition; and a gun-cleaning kit found on top of an armoire.
[¶5] The People charged defendant with child abuse resulting in death, possession with intent to distribute marijuana, possession of marijuana -- eight ounces or more, and one special offender count under the special offender statute's deadly weapon provision, Ch. 71, sec. 1, § 18-18-407(1)(f), 1992 Colo. Sess. Laws 362 (hereinafter section 18-18-407(1)(f)). The People alleged that defendant was an armed drug dealer who sold drugs out of his home, thereby placing his daughter in a situation that posed a threat of injury to her life or health and resulted in her death. Regarding the special offender count, the People alleged that defendant possessed the handgun in connection with his drug dealing business.
[¶6] The defense contended that the armed robbers, rather than defendant, were responsible for creating the unreasonably dangerous situation in which defendant's daughter was placed. They also argued that defendant purchased the handgun not to further his drug business but for self-defense, asserting that defendant lived in a dangerous neighborhood and had purchased the gun for protection.
[¶7] After a jury trial, defendant was acquitted of the child abuse charge but found guilty of possession with intent to distribute marijuana. The jury also determined that he was a special offender because he " use[d], possess[ed], or ha[d] available for use a deadly weapon during the commission of and in connection with the crime of Possession With Intent to Distribute Marihuana." Based on the jury's determination, defendant received an enhanced sentence of fifteen years in the custody of the Department of Corrections. This appeal followed.
II. Section 18-18-407(1)(f)
[¶8] Section 18-18-407(1)(f), under which defendant was sentenced, provides that when an offender is guilty of possession of a controlled substance and the prosecution has pursued a special offender count, the jury must determine whether the offender " used, displayed, possessed, or had available for use a deadly weapon." If so, that determination constitutes an extraordinary aggravating circumstance, and the court is required " to sentence the defendant to the department of corrections for a term of at least the minimum term of years within the presumptive range for a class 2 felony but not more than twice the maximum term of years within the presumptive range for a class 2 felony." § 18-18-407(1)(f).
A. Deadly Weapon Instruction
[¶9] Defendant contends that the trial court erroneously denied his request for an elemental jury instruction concerning possession of a deadly weapon under section 18-18-407(1)(f)
and, instead, provided an instruction that omitted necessary elements. He argues that by refusing to provide an elemental instruction, the court (1) deprived him of his right to have a jury finding on each element of the greater offense; (2) misled the jury into thinking a different standard of proof applied to the special offender instruction because its form differed from the child abuse and possession instructions; (3) failed to " link the right to bear arms to the elemental special offender instruction so the jurors understood [that] liability under the special offender statute is limited" ; and (4) confused the jury by providing an instruction that conflicted with the deadly weapon interrogatory on the possession with intent to distribute verdict form.
[¶10] Defendant also argues that the verdict form did not require the jury to determine whether the prosecution proved beyond a reasonable doubt that defendant did not possess, display, or use the gun for the purpose of self-defense.
[¶11] Initially, we conclude defendant preserved his claim that an elemental instruction was required by objecting during the jury instruction conference that the deadly weapon special offender provision should be presented " as a separate offense with its own elements."  However, as to the contents of the elemental instructions and verdict forms, defense counsel's proposed language regarding the date of the offense and nexus to the marijuana offense was incorporated. Therefore, we perceive defendant's allegations of error on appeal to pertain only to the form of the special offender instruction, and not its contents.
[¶12] Section 18-18-407(1)(f) acts as a sentence enhancement provision and not a substantive offense. People v. Whitley, 998 P.2d 31, 33 (Colo.App. 1999). Nevertheless, any fact, other than a prior conviction, that increases the penalty for an offense beyond the prescribed statutory maximum must be submitted to the jury and proved beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).
[¶13] The plain language of section 18-18-407(1)(f) indicates that it is triggered only after a felony drug conviction. Its effect, after the fact finder has entered a special finding as to the existence of the special offender circumstance, is to increase the required sentencing range. See Whitaker v. People, 48 P.3d 555, 560 (Colo. 2002) (interpreting the importation provision of section 18-18-407).
[¶14] Here, although the trial court denied defendant's request for an elemental instruction for the special offender count, it instructed the jury to find the presence or absence of the special offender deadly weapon fact only if it found defendant guilty of the underlying offense of possession with intent to distribute:
If you find defendant not guilty of possession with intent to distribute marihuana, you should disregard this instruction and fill out the verdict form reflecting your not guilty verdict. If, however, you find the defendant guilty of possession with intent to distribute marihuana, you should fill out the verdict form reflecting your guilty verdict, and then answer the following question:
On November 26, 2007, did the defendant use, possess, or have available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana?
It is the Prosecution's burden to prove beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana.
After considering all the evidence if you decide the prosecution has failed to prove beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commission of and in connection with the crime of
possession with intent to distribute marihuana, you should indicate " no" on the verdict form that has been provided.
After considering all the evidence if you decide the prosecution has proven beyond a reasonable doubt that the defendant used, possessed, or had available for use a deadly weapon during the commission of and in connection with the crime of possession with intent to distribute marihuana, you should indicate " yes" on the verdict form that has been provided.
Your answer to the above question must be unanimous.
[¶15] The jury verdict form for the possession with intent to distribute charge contained a special offender interrogatory that read: " Did [defendant] use, possess, or have available for use a deadly weapon during the commission of and in connection with the crime of Possession With Intent to Distribute Marihuana[?]"
[¶16] We conclude the verdict form was not misleading because the instructions as a whole properly informed the jury of the elements of the sentence aggravator and the proof beyond a reasonable doubt burden. The special offender instruction required the jury to find, beyond a reasonable doubt, that the weapon was possessed " during the commission of and in connection with" the drug offense, thereby notifying the jury of the standard of proof and identifying a nexus requirement between the weapon and the drugs. Thus, the instructions contained the elements that the jury was required to find, although not in an elemental format. No error has been shown.
B. Sufficiency of the Evidence
[¶17] Defendant also asserts that the trial evidence was legally insufficient to prove he possessed or used the gun on November 26, 2007, for the purpose of facilitating the drug offense and not for self-defense. We conclude the evidence was sufficient to support the jury's determination that defendant " used, displayed, possessed, or had available for use a deadly weapon" in connection with the commission of a drug offense.
[¶18] In addressing a claim of insufficient evidence, we must uphold a conviction if the verdict is supported by substantial evidence, viewed in the light most favorable to the prosecution. Mata-Medina v. People, 71 P.3d 973, 983 (Colo. 2003). Evidence is sufficient when a rational trier of fact might accept the evidence, taken as a whole and in the light most favorable to the prosecution, as sufficient to support a finding of guilt beyond a reasonable doubt. People v. Warner, 251 P.3d 556, 564 (Colo.App. 2010).
[¶19] After trial, defendant moved for a judgment of acquittal on the grounds that there was no " showing of purposive conduct with that gun linking it to the marijuana and his possession of it with intent to distribute." The trial court denied his motion, and we agree with that determination.
[¶20] Here, it was undisputed that defendant possessed a handgun. And, as the trial court noted, the People presented evidence that (1) one of defendant's stated purposes in owning the gun was to protect his property, which included nearly one pound of marijuana he held with an admitted intent to distribute it; and (2) the gun was found near a tray of marijuana and within feet of defendant, thus showing that this gun was available for use. Accordingly, there is sufficient evidence to support the jury's findings that defendant possessed both a controlled substance and a deadly weapon, and to infer a nexus between the controlled substance and the weapon. See People v. Tweedy, 126 P.3d 303, 308 (Colo.App. 2005) (close spatial proximity between a weapon and drugs is sufficient for the jury to infer the required nexus).
C. Constitutionality of Section 18-18-407(1)(f)
1. Section 18-18-407(1)(f) Does Not Violate the Right to Bear Arms in Self-Defense
[¶21] Defendant contends that section 18-18-407(1)(f) violates the fundamental Second Amendment right to bear arms in self-defense, as recognized in District of Columbia v. Heller, 554 U.S. 570, 128 S.Ct. 2783, 171 L.Ed.2d 637 (2008), and also article II, section 13 of the Colorado Constitution. Because we conclude that the United States and Colorado Constitutions do not protect the unlawful purpose of possessing a firearm in
furtherance of a drug offense, we disagree that section 18-18-407(1)(f) infringes on the constitutionally protected right to bear arms.
[¶22] Prior to trial, the trial court denied defendant's motion to declare section 18-18-407(1)(f) unconstitutional on grounds that it infringed on his fundamental state and federal rights. According to defendant's argument below and on appeal, he falls within the " central component" of the Second Amendment, which is the individual right to bear arms in self-defense. He asserts that " constitutional rights are not reserved only for law-abiding people," and that, regardless, he was not a criminal when he used the handgun for self-defense. He further argues that article II, section 13 of the Colorado Constitution provides even greater protection for the right to bear arms than the Second Amendment. Proceeding from the premise that he has a fundamental right to possess a weapon for self-defense, defendant urges that section 18-18-407(1)(f) must be subject to strict scrutiny, which he contends it cannot survive.
[¶23] We review the constitutionality of statutes de novo. Hinojos-Mendoza v. People, 169 P.3d 662, 668 (Colo. 2007). Statutes are presumed to be constitutional and the party challenging a statute's constitutionality must show the statute is unconstitutional beyond a reasonable doubt. Id.
a. United States Constitution
[¶24] First, we consider and reject defendant's contention that section 18-18-407(1)(f) prohibits conduct that is protected under the Second Amendment to the United States Constitution.
[¶25] The Second Amendment provides: " A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed." U.S. Const. amend. II.
[¶26] In Heller, the Supreme Court held for the first time that the Second Amendment secures an individual right to keep and bear arms. 554 U.S. at 595; see also McDonald v. City of Chicago, 561 U.S. 742, 130 S.Ct. 3020, 177 L.Ed.2d 894 (2010) (extending the Second Amendment's reach to the states). The Court explained that, " whatever else [the Second Amendment] leaves to future evaluation, it surely elevates above all other interests the right of law-abiding, responsible citizens to use arms in defense of hearth and home." Heller, 554 U.S. at 635. The Second Amendment right as identified in Heller is limited in scope and subject to some regulation. Id. at 625. For example, the Heller court identified a non-exhaustive, illustrative list of " longstanding prohibitions on the possession of firearms" as " presumptively lawful regulatory measures." Id. at 626-27 n.26.
[¶27] Numerous federal courts have interpreted Heller in upholding the deadly weapon provision's federal counterpart, 18 U.S.C. § 924(c) (2014), which provides for a five-year prison sentence for any defendant who uses or carries a firearm in furtherance of a drug trafficking crime. See United States v. Bryant, 711 F.3d 364, 368-70 (2d Cir. 2013) (addressing 18 U.S.C. § 924(c) in light of Heller and discussing other federal courts' decisions that have recognized limits on the exercise of Second Amendment rights under Heller ).
[¶28] In Bryant, for example, the United States Court of Appeals for the Second Circuit held that a defendant's conviction for unlawful possession of a firearm in furtherance of a drug trafficking crime did not violate his Second Amendment right to possess a firearm for self-defense in his home. Id. at 370. The court interpreted Heller as providing " an implicit limitation on the exercise of the Second Amendment right to bear arms for 'lawful purpose[s],'" and a limitation on ownership to that of " 'law-abiding, responsible citizens.'" Id. at 369 (quoting Heller, 554 U.S. at 628, 630).
[¶29] We agree with the federal circuit courts that the Second Amendment entitles citizens to keep and bear arms for self-protection, but not for all self-protection. Id.; see also United States v. Jackson, 555 F.3d 635, 636 (7th Cir. 2009). Here, defendant was distributing illegal drugs out of his home. Although defendant contends that he lived in a dangerous neighborhood and purchased the handgun for self-defense, " his decision to operate an illegal [drug] business [out of his
home] also matters." Jackson, 555 F.3d at 636. In Jackson, the court addressed a challenge to 18 U.S.C. § 924(c) on grounds similar to those presented in this case. Id. at 635. We find the court's reasoning in that case persuasive:
The Constitution does not give anyone the right to be armed while committing a felony, or even to have guns in the next room for emergency use should suppliers, customers, or the police threaten a dealer's stash. . . . Suppose a . . . statute said: " Anyone who chooses to possess a firearm in the home for self-protection is forbidden to keep or distribute illegal drugs there." Such a statute would be valid . . . [a]nd if [the legislature] may forbid people who possess guns to deal drugs, it may forbid people who deal drugs to possess guns.
Id. at 636.
[¶30] We conclude that the fundamental right conferred under the Second Amendment is the right for law-abiding, responsible citizens to bear arms for lawful purposes. Because section 18-18-407(1)(f) applies only to possession of a firearm in connection with a person's commission of a felony drug offense, it does not apply to law-abiding citizens and, thus, does not infringe on the Second Amendment right to bear ...