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People v. Soto-Campos

Court of Appeals of Colorado, Third Division

August 9, 2018

The People of the State of Colorado, Plaintiff-Appellant,
v.
Yoel Soto-Campos, Defendant-Appellee. The People of the State of Colorado, Plaintiff-Appellant,
v.
Fermin Flores-Rosales, Defendant-Appellee.

          Jefferson County District Court Nos. 17CR4565, 17CR4563 Honorable Laura A. Tighe, Judge

          Peter A. Weir, District Attorney, Michael Freeman, Deputy District Attorney, Golden, Colorado, for Plaintiff-Appellant

          Chad Oxman, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellee Yoel Soto-Campos

          Andres R. Guevara, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellee Fermin Flores-Rosales

          OPINION

          FOX, JUDGE

         ¶ 1 We are issuing a consolidated opinion for the appeals in case numbers 18CA0664 and 18CA0665. These cases arise from several defendants' alleged involvement in a heroin distribution enterprise. The People appeal the district court's pretrial orders (1) dismissing the sixty-first count of a grand jury indictment filed against defendants, Yoel Soto-Campos and Fermin Flores-Rosales (collectively, Defendants), for lack of probable cause; and (2) denying the prosecution's later motions to reconsider. Because the district court did not err in reviewing the challenged count under section 16-5-204(4)(k), C.R.S. 2017, and the People do not otherwise challenge dismissal of this count, we affirm.

         I. Background

         ¶ 2 In December 2017, the prosecution filed a grand jury indictment against several defendants, including Soto-Campos and Flores-Rosales. The indictment's sixty-first count ("Special Offender - Within 1000 Feet of a School") charged as follows:

On and between April 11, 2017, and December 5, 2017, Fermin Flores-Rosales [and] Yoel Soto-Campos . . . possessed with intent to distribute a controlled substance within one thousand feet of the perimeter of any public or private elementary school; in violation of 18-18-407(1)(g)(I) C.R.S.

         The prosecution filed a superseding indictment containing the same sixty-first count the next month.

         ¶ 3 The Defendants' attorneys then filed motions, in case numbers 17CR4563 and 17CR4565, requesting that the district court conduct a probable cause review under section 16-5-204(4)(k). After reviewing the grand jury transcripts in camera, the court issued February 23, 2018, orders in both cases concluding that the record established probable cause for all counts except for the sixty-first, and dismissing that count. The prosecution then asked the court to reconsider, arguing that Soto-Campos and Flores-Rosales were not entitled to probable cause review of the sixty-first count because it was a sentence enhancer, not a substantive offense.

         ¶ 4 The district court denied the motions to reconsider. Although the court agreed that the sixty-first count was a sentence enhancer, it concluded that Soto-Campos and Flores-Rosales were "arguably" entitled to a preliminary hearing on that count, relying on People v. Simpson, 2012 COA 156, because "a defendant is entitled to a preliminary hearing on any sentence enhancer that must be proved beyond a reasonable doubt and that, if proved, would result in a class 1, 2, or 3 felony conviction." According to the court, even if Soto-Campos and Flores-Rosales were not entitled to a preliminary hearing on the subject count, conducting such a hearing was not reversible error. Lastly, the court explained that (1) the statute governing preliminary hearings differs from the statute governing probable cause reviews and (2) section 16-5-204(4)(k)'s plain language unambiguously requires a court to dismiss "any indictment of the grand jury" if the record does not support a probable cause finding.

         ¶ 5 The People appeal the district court's orders.

         II. Probable Cause Review of ...


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