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Esquivel-Castillo v. People

Supreme Court of Colorado, En Banc

January 25, 2016

Salvador Esquivel-Castillo, Petitioner:
v.
the People of the State of Colorado, Respondent:

Certiorari to the Colorado Court of Appeals. Court of Appeals Case No. 09CA1506.

SYLLABUS

Esquivel-Castillo petitioned for review of the judgment of the court of appeals affirming his conviction of felony murder. A jury acquitted him of a separate count of kidnapping, charged according to the " seized and carried" alternative way of committing that crime, but convicted him of felony murder for a death caused during his commission or attempted commission of kidnapping the same victim, during the same charged timeframe, by a different statutorily qualifying act of kidnapping. As pertinent to the issue on review in the supreme court, the court of appeals rejected Esquivel-Castillo's assertion that the more specific kidnapping charge necessarily limited the scope of the more generally-charged felony murder count to a charge of death caused in the course of or in furtherance of the commission of kidnapping by seizing and carrying the victim from one place to another, resulting in his having been convicted of a crime with which he had never been charged.

The supreme court affirms the judgment of the court of appeals. Because one count of an information is not circumscribed by another count of that information unless the latter is incorporated in the former by clear and specific reference, the supreme court determines that the crime of kidnapping alleged more generally as an element of felony murder was not limited to the specific alternative act of kidnapping alleged in the separate kidnapping count, and therefore jury instructions as to all statutory forms of kidnapping supported by the evidence did not constructively amend the felony murder charge.

For Petitioner: Samler & Whitson, P.C., Eric A. Samler, Denver, Colorado.

For Respondent: Cynthia H. Coffman, Attorney General, Melissa D. Allen, Assistant Attorney General, Denver, Colorado.

OPINION

COATS, JUSTICE.

[¶1] Esquivel-Castillo petitioned for review of the judgment of the court of appeals affirming his conviction of felony murder. People v. Esquivel-Castillo, No. 09CA1505 (Colo.App. Aug. 29, 2013) (not published pursuant to C.A.R. 35(f)). A jury acquitted him of a separate count of kidnapping, charged according to the " seized and carried" alternative way of committing that crime, but convicted him of felony murder for a death caused during his commission

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or attempted commission of kidnapping the same victim, during the same charged timeframe, by a different statutorily qualifying act of kidnapping. As pertinent to the issue on review in this court, the court of appeals rejected Esquivel-Castillo's assertion that the more specific kidnapping charge necessarily limited the scope of the more generally-charged felony murder count to a charge of death caused in the course of or in furtherance of the commission of kidnapping by seizing and carrying the victim from one place to another, resulting in his having been convicted of a crime with which he had never been charged.

[¶2] Because one count of an information is not circumscribed by another count of that information unless the latter is incorporated in the former by clear and specific reference, the crime of kidnapping alleged more generally as an element of felony murder was not limited to the specific alternative act of kidnapping alleged in the separate kidnapping count, and therefore jury instructions as to all statutory forms of kidnapping supported by the evidence did not constructively amend the felony murder charge. The judgment of the court of appeals is therefore affirmed.

I.

[¶3] Salvador Esquivel-Castillo was charged by information with separate counts of first degree (felony) murder, second degree murder, and first degree kidnapping. A jury acquitted him of first degree kidnapping and the lesser offense of second degree kidnapping, but convicted him of felony murder and second degree murder. He was sentenced to life imprisonment without parole, to be served concurrently with a 48-year sentence for second degree murder.[1]

[¶4] The charges arose from the disappearance and death of the defendant's former girlfriend and mother of one of his children, whose body was found buried near the home of one of the defendant's friends. The felony murder count of the information alleged that the defendant committed or attempted to commit " kidnapping" and that the victim's death was caused in the course of or in furtherance of that crime, or in immediate flight therefrom. By contrast, although the separate kidnapping count involved the same victim and the same timeframe, it more specifically charged " first degree kidnapping," committed by forcibly seizing and carrying the victim from one place to another, with the intent thereby ...


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