Boulder County District Court No. 11CR1657. Honorable Ingrid S. Bakke, Judge.
John W. Suthers, Attorney General, Carmen Moraleda, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee.
Douglas K. Wilson, Colorado State Public Defender, Adam Mueller, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant.
Lichtenstein and Booras,
[¶1] Defendant, Antonio Jaso, appeals the felony judgment of conviction and sentence entered by the trial court after a jury found him guilty of misdemeanor violation of a protection order. Because we conclude that under the circumstances here, the habitual domestic violence offender statute, section 18-6-801(7), C.R.S. 2014 (HDVO statute) required the trial court to make findings of fact that increased defendant's punishment, we further conclude defendant's Sixth Amendment right to a jury trial 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), was violated. Consequently, we reverse the judgment and remand for entry of judgment and resentencing on a class 1 extraordinary risk misdemeanor.
[¶2] Defendant was charged with violation of a protection order after he sent the victim, A.K., a letter addressed to their minor son through a fellow inmate at the county jail where he was in custody.
[¶3] In 2010, defendant and A.K. were living together and had a son. While A.K. was holding the infant, defendant attacked her. She then sought and received a civil protection order against defendant. The terms of the order prevented defendant from contacting A.K. directly or through a third person except by use of text message, and then only so long as the message concerned arranging visitation with the parties' son. Defendant was advised that he was excluded from the family home and that the order could only be changed by a judge. He was served in open court with the written protection order.
[¶4] In September 2011, A.K. received an envelope in the mail from an unknown person addressed to her son and containing a letter from defendant directed to her. In part, the letter asked that A.K. " hear [him] out," forgive him, give him a second chance to get back together, and importuned her to not " stay (sic) anything to anybody."
[¶5] A.K. contacted the police and defendant was charged with violation of a protection order, section 18-6-803.5(1), 2(a), C.R.S. 2014, a class 1 extraordinary risk misdemeanor, and a habitual domestic violence offender sentence enhancer, section 18-6-801(7) (the HDVO statute), a class 5 felony.
[¶6] Prior to jury deliberations, and over defendant's objection, the trial court refused to provide the jury with a tendered instruction and verdict form requiring the jury to determine whether defendant's violation of the protection order was " an act of domestic violence."
[¶7] The jury convicted defendant of the charged misdemeanor. Thereafter, the court held a trial on the habitual charge. First, the court determined that the violation of the protection order was an act of domestic violence. Second, the court concluded that the prosecution had proved that defendant had previously been convicted three times of domestic-violence-related crimes. The result was that under the HDVO statute, the trial court convicted ...