Jefferson County District Court Nos. 17CR4565, 17CR4563
Honorable Laura A. Tighe, Judge
A. Weir, District Attorney, Michael Freeman, Deputy District
Attorney, Golden, Colorado, for Plaintiff-Appellant
Oxman, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellee Yoel Soto-Campos
R. Guevara, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellee Fermin Flores-Rosales
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.
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.
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
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.
Probable Cause Review of ...