Jefferson County District Court No. 11CR3412 Honorable Dennis J. Hall, Judge, Honorable Randall C. Arp, Judge
Cynthia H. Coffman, Attorney General, Lisa K. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Law Office of Suzan Trinh Almony, Suzan Trinh Almony, Broomfield, Colorado, for Defendant-Appellant
¶ 1 A jury convicted Bryan Matthew Giem of first degree aggravated motor vehicle theft (aggravated motor vehicle theft), theft, menacing, and two counts of aggravated robbery. In this appeal, Giem argues that the Double Jeopardy Clause and section 18-1-303, C.R.S. 2015, barred the People from prosecuting him for these offenses because he had already been prosecuted in California for the conduct underlying this case. We conclude that while the Double Jeopardy Clause did not bar Giem's prosecution in Colorado, section 18-1-303 barred his prosecution here for aggravated motor vehicle theft, but not for the other counts. We therefore reverse the judgment as to aggravated motor vehicle theft and remand with directions to vacate that count and the corresponding sentence. We otherwise affirm.
¶ 2 The charges in this case arose from allegations that on December 21, 2011, Giem approached the victim in a Jefferson County parking lot, pointed a gun at him, demanded his car keys, and took his car. The car contained $3000 in cash, a Louis Vuitton bag worth approximately $800, and other items. The car was equipped with an antitheft transmitter, and the next day law enforcement officials in California found Giem driving the victim's car.
¶ 3 Giem was charged in California with carjacking, receiving stolen property, unlawful driving or taking of a vehicle, importing or keeping for sale a large capacity magazine, and driving under the influence (DUI). In February 2012, he pleaded guilty to unlawful driving or taking of a vehicle and DUI; the remaining counts were dismissed. He was sentenced to three years of probation, including 270 days in jail.
¶ 4 Charges arising from the taking of the car were filed in Jefferson County on December 29, 2011, and a few months later, Giem appeared in Colorado for this case. He moved to dismiss the charges, asserting that the Double Jeopardy Clause and section 18-1-303 precluded the People from prosecuting him because California had already prosecuted him for the same conduct. After a hearing, the district court denied Giem's motion based on its conclusion that the exception to section 18-1-303's bar against prosecution found in section 18-1-304(1)(b), C.R.S. 2015, applied to this case. Under that exception, a former prosecution in another jurisdiction does not bar a subsequent Colorado prosecution if the former prosecution "[w]as procured by the defendant without the knowledge of the appropriate prosecuting official and with the intent to avoid the sentence that otherwise might be imposed." § 18-1-304(1)(b).
¶ 5 At trial, the jury convicted Giem of the counts listed above. He was sentenced on those counts to concurrent terms in the Department of Corrections, the longest of which was twelve years for aggravated robbery.
¶ 6 On appeal, Giem challenges only the court's ruling on his motion to dismiss, arguing that the Double Jeopardy Clause and section 18-1-303 barred his prosecution in Colorado. However, because the initial briefs focused on the district court's ruling that the exception of section 18-1-304(1)(b) applied, we requested supplemental briefing on whether section 18-1-303 barred Giem's prosecution in Colorado and, if so, for which counts.
¶ 7 Having received full briefing, we now conclude, contrary to the district court's ruling, that the exception contained in section 18-1-304(1)(b) does not apply to the circumstances here. We next conclude that the Double Jeopardy Clause did not preclude Giem's Colorado prosecution. Finally, we consider whether section 18-1-303 barred his Colorado prosecution, and conclude that it barred only the count of aggravated motor vehicle theft.
A. The Motions Hearing
¶ 8 At the hearing on Giem's motion to dismiss, his former cellmate testified that Giem told him the following when they were cellmates.
• Giem "committed a carjacking" in Colorado and was pulled over in California.
• Authorities in California charged Giem with several crimes, including carjacking.
• His plea agreement in California called for the carjacking count to be dismissed.
• His lawyer there "told him that if [the] carjacking was dismissed, if he pled guilty to the other charges in California, that he could never be charged with carjacking in Colorado."
• He "took the deal there . . . to avoid prosecution here, and he would never have to look at any ...