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People v. Godinez

Court of Appeals of Colorado, Sixth Division

December 13, 2018

The People of the State of Colorado, Plaintiff-Appellee,
v.
Omar Ricardo Godinez, Defendant-Appellant.

          Arapahoe County District Court No. 11CR2537 Honorable John L. Wheeler, Judge

          Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee

          Jonathan D. Reppucci, Alternate Defense Counsel, Denver, Colorado, for Defendant-Appellant

          OPINION

          BERGER, JUDGE

         Table of Contents

         Majority Opinion

         I. Introduction and Summary .................................................... 1

         II. Facts and Procedural History ................................................. 4

         A. The Crimes .................................................................. 4

         B. The Prosecution and Change in Statutory Law ................... 6

         C. Developments in Colorado Case Law ................................. 7

         III. The 2012 Amendments Do Not Apply to the Charges Against Godinez .................................................................. 8

         A. The 2012 Amendments Did Not Divest the District Court of Jurisdiction Over Godinez or the Charges Against Him .......... 9

         B. Neither Stellabotte II Nor Any Binding Colorado Precedent Authorizes the Application of the 2012 Amendments to the Charges Against Godinez ...................................................... 13

         C. Neither the Alleged "Procedural" Nature of the 2012 Amendments Nor the Rule of Lenity Requires Reversal .......... 21

         D. Godinez was Not Entitled to a Reverse-Transfer Hearing ... 22

         IV. One Victim's In-Court Identification of Godinez Did Not Violate His Constitutional Rights ...................................................... 23

         A. Additional Factual Background ........................................ 23

         B. Standard of Review and Applicable Law ............................ 28

         C. Application ................................................................. 31

         V. Admission of Out-of-Court Statements .................................. 35

         A. Additional Factual Background ........................................ 35

         B. Standard of Review and Applicable Law ............................ 37

         C. Application ................................................................. 39

         VI. Constitutionality of Colorado Statutory Scheme Governing Sentencing of Juvenile Sex Offenders .................................... 44

         A. Standard of Review and Applicable Law ............................ 45

         B. Application ................................................................. 46

         VII. Conclusion ................................................................. 48

         Opinion Concurring in Part, Specially Concurring in Part, and

         Dissenting in Part

         I. Retroactivity and Stellabotte II ............................................... 50

         II. The 2012 Amendments Constitute "Ameliorative, Amendatory Legislation" Because They Mitigate Potential Penalties .......... 52

         A. Prerequisites to Retroactivity ............................................ 52

         B. Juvenile Penalties Serve Different Purposes Than Adult Penalties ................................................................. 54

         III. Aggregate Sentences May Be Unconstitutional ...................... 61

         I. Introduction and Summary

         ¶ 1 This case requires us to decide if amendments made by the General Assembly in 2012 to the statute that authorizes criminal direct filing in district court against a juvenile, Ch. 128, sec. 1, § 19-2-517, 2012 Colo. Sess. Laws 439-45 (the 2012 Amendments), are applicable to cases then pending, or only to cases filed on or after the effective date of the 2012 Amendments.

         ¶ 2 A jury convicted defendant Omar Ricardo Godinez[1] of two counts of second degree kidnapping, two counts of sexual assault, and two counts of conspiracy to commit sexual assault. Godinez committed the crimes when he and some of his brothers used a deadly weapon to kidnap and forcibly sexually assault two women in two separate incidents. At the time of the crimes, Godinez was fifteen years old. The district court sentenced him to a controlling term of imprisonment of thirty-two years to life in the custody of the Department of Corrections.

         ¶ 3 Under the law in effect at the time that Godinez committed these crimes, the district attorney had the authority to directly file the charges in district court, notwithstanding that Godinez was a juvenile at the time he committed the crimes. § 19-2-517(1)(b), C.R.S. 2011. At that time, the district attorney had the sole authority to decide whether to file the charges in adult criminal court or in juvenile court, provided that the juvenile was at least fourteen years of age. Id.; § 19-2-517(3)(a).

         ¶ 4 During the course of the district court direct-file proceedings, and well before the court entered the judgment of conviction, the General Assembly amended the direct-file statute in significant ways. First, the legislature increased the direct-filing minimum age from fourteen to sixteen, section 19-2-517(1), C.R.S. 2018; though, despite this change, a juvenile aged fourteen to fifteen may still be tried in adult court if the juvenile court transfers the case to the district court on the petition of the district attorney, section 19-2-518(1)(a), C.R.S. 2018. Second, the 2012 Amendments give a direct-filed juvenile the right to have a "reverse-transfer" hearing, at which a district court judge, not the district attorney, makes the final decision whether to try the juvenile as an adult, or whether to proceed in juvenile court. § 19-2-517(3).

         ¶ 5 After the enactment of the 2012 Amendments, Godinez moved to dismiss the charges against him on the theory that the 2012 Amendments divested the district court of subject matter jurisdiction because Godinez was only fifteen years old when he allegedly committed the crimes. He also contended that the 2012 Amendments should be applied retroactively to the charges against him. The trial court denied that motion and also denied Godinez's alternative motion demanding a reverse-transfer hearing under the 2012 Amendments. Godinez appeals his judgment of conviction, including the underlying orders addressing the application of the 2012 Amendments.

         ¶ 6 We hold that the 2012 Amendments are not applicable to the criminal proceedings filed against Godinez. More specifically, we hold that the 2012 Amendments did not divest the district court of jurisdiction to try Godinez as an adult, nor do they apply retroactively under People v. Stellabotte, 2018 CO 66 (Stellabotte II), to impose procedural requirements not in effect when the charges were filed. We also hold that Godinez was not entitled to a reverse- transfer hearing. We reject his claim that a victim's identification of him at trial violated his right to due process of law, as well as his claims of evidentiary error. Finally, we reject his claim that his sentences violate the Eighth Amendment. Accordingly, we affirm Godinez's convictions and sentences.

         II. Facts and Procedural History

         A. The Crimes

         ¶ 7 In 2011, a male approached the victim, S.R., from behind, held a gun to her head, and forced her into an SUV with three other male occupants. They drove her to a house, walked her through the kitchen, directed her downstairs to a basement bedroom, and told her to remove her clothes. She pleaded with them to use a condom, so one of the males left to buy condoms. They then took turns sexually assaulting her. After the assaults, she asked to use the bathroom. The person who abducted S.R. took her to the bathroom, where she was able to see his face for five minutes. She later provided information to the police that enabled a police artist to make a composite drawing of her assailant. The four males then returned S.R. to the abduction site and released her, after threatening her with a gun and telling her not to report the incident.

         ¶ 8 A similar incident occurred the next month. The second victim, fifteen-year-old A.H., said a male grabbed her from behind as she walked down the street and told her not to scream. He then forced her into a gold SUV containing other males. She believed the male who abducted her was approximately her age. Although she never saw her abductor's face, she said he had "spiky" hair and a big build. They drove her to a house, took her into a basement bedroom, and told her that they "had to rape her," which they then did. She lost one earring at some point during the assaults, which the police later recovered from the same gold SUV. As in the first crime, the assailants returned her to the abduction site, threatened harm if she reported the incident, and released her.

         ¶ 9 A.H. immediately reported the assaults and submitted to evidence collection. She was able to identify the SUV and the house to which she had been taken. The SUV was registered to Godinez's father. Godinez and his family, including his four brothers, lived in the house where A.H. was assaulted.

         ¶ 10 The police located the SUV and conducted a traffic stop. The driver told the officer that he had five sons: Godinez (fifteen years old), A.G. (seventeen years old), Enrique Godinez (twenty-two years old), Ricardo Godinez-Solis (twenty-six years old), and Edgar Godinez-Solis (twenty-five years old).

         B. The Prosecution and Change in Statutory Law

         ¶ 11 After an investigation, the police arrested Godinez (as well as some of his brothers). Under the then-applicable law, the prosecutor direct filed the charges against Godinez in district court in December 2011.

         ¶ 12 As described above, several months after Godinez was charged, the General Assembly amended the direct-file statute. The amendments became effective on April 20, 2012, but they do not state whether they apply prospectively or retroactively. Ch. 128, sec. 3, § 19-2-517, 2012 Colo. Sess. Laws 445.

         ¶ 13 Godinez moved to dismiss all the charges, contending that the 2012 Amendments divested the district court of jurisdiction over him and that they should be applied retroactively. Alternatively, Godinez requested a reverse-transfer hearing.

         ¶ 14 The trial court denied both the motion to dismiss and the motion for a reverse-transfer hearing in a detailed written order. The court concluded that the 2012 Amendments were intended to be prospective in their application, applicable only to offenses committed on or after their effective date.

         C. Developments in Colorado Case Law

         ¶ 15 While this case was pending before us, the Colorado Supreme Court announced its decision in Stellabotte II, ¶ 3, which held that "ameliorative, amendatory legislation applies retroactively to non-final convictions under section 18-1-410(1)(f), unless the amendment contains language indicating it applies only prospectively." The Attorney General then moved us to permit the filing of supplemental briefs to address the impact, if any, of Stellabotte II on Godinez's appeal. Over Godinez's objection, we granted the Attorney General's motion, and both parties filed supplemental briefs. Godinez argued in his supplemental brief that "Stellabotte has little, if any, application to [his] central claim that he was tried and sentenced by a court lacking in both statutory authority to proceed and subject matter jurisdiction."[2]

         III. The 2012 Amendments Do Not Apply to the Charges Against Godinez

         ¶ 16 Godinez makes a multitude of arguments why the district court erred in refusing to apply the 2012 Amendments to the charges against him. First, he claims that the 2012 Amendments simply divested the district court of jurisdiction to try Godinez because, as discussed above, the 2012 Amendments increased the direct-filing age from fourteen to sixteen. Thus, according to Godinez, once the 2012 Amendments became effective on April 20, 2012, the district court no longer had subject matter jurisdiction to try Godinez, and, applying familiar subject matter jurisdiction law, everything thereafter is a nullity.

         ¶ 17 Second, he argues that, to the extent it applies, Stellabotte II requires retroactive application of the 2012 Amendments. Third, he contends that both the procedural nature of the 2012 Amendments and the rule of lenity mandate that the 2012 Amendments apply to the charges against him.

         ¶ 18 And finally, Godinez argues that even if the arguments above are unavailing, he nevertheless was entitled to a reverse-transfer hearing under the 2012 Amendments, which the district court erroneously denied.

         A. The 2012 Amendments Did Not Divest the District Court of Jurisdiction Over Godinez or the Charges Against Him

         ¶ 19 Relying on Bruner v. United States, 343 U.S. 112 (1952), Godinez contends that the 2012 Amendments divested the district court of subject matter jurisdiction on their effective date. He reasons that the district court's jurisdiction derived solely from the previous direct-file statute and that once that statute was repealed and replaced by the 2012 Amendments, the court's jurisdiction was extinguished. We reject this argument and agree with the district court that Bruner is distinguishable.[3]

         ¶ 20 Godinez argues that when the 2012 Amendments were enacted they applied with immediate effect to both pending and future cases. This argument ignores the General Assembly's statutory directive that in both criminal and civil cases, "[a] statute is presumed to be prospective in its operation." § 2-4-202, C.R.S. 2018. The presumption of prospective application applies here because the 2012 Amendments are silent as to retroactive or prospective application. Ch. 128, sec. 1, § 19-2-517, 2012 Colo. Sess. Laws 439-45.

         ¶ 21 "Legislation is applied prospectively when it operates on transactions that occur after its effective date, and retroactively when it operates on transactions that have already occurred or [on] rights and obligations that existed before its effective date." Ficarra v. Dep't of Regulatory Agencies, Div. of Ins., 849 P.2d 6, 11 (Colo. 1993). It is undisputed that Godinez committed and was charged with the crimes before the enactment of the 2012 Amendments. Thus, any application of the 2012 Amendments to the charges against Godinez in district court would necessarily be retroactive. Therefore, the 2012 Amendments could only apply to the charges against Godinez under an exception to the presumption of prospective application. We conclude that no such exception applies in section III.B. below.

         ¶ 22 Bruner does not compel a different conclusion because the facts in Bruner differ from the facts here in key respects. In Bruner, a civilian firefighter at an army camp petitioned the district court for overtime compensation he claimed to be owed. Id. at 113. When he filed his complaint, an 1898 statute conferred concurrent jurisdiction over his claim on both the district court and the Court of Claims. Id. While the case was pending, Congress amended the statute to remove jurisdiction from the district court and to confer sole jurisdiction on the Court of Claims. Id. at 114. Moreover, it did not reserve district court jurisdiction over pending cases. Id. Relying on a line of cases consistently holding that "when a law conferring jurisdiction is repealed without any reservation as to pending cases, all cases fall with the law," the Supreme Court concluded that the statutory amendment divested the district court of jurisdiction over Bruner's complaint (because it placed exclusive jurisdiction in the Court of Claims) and affirmed the district court's dismissal of it. Id. at 116-17. Importantly, the court noted that "[t]his jurisdictional rule does not affect the general principle that a statute is not to be given retroactive effect unless such construction is required by explicit language or by necessary implication." Id. at 117 n.8.

         ¶ 23 Unlike Bruner, the district court's subject matter jurisdiction over fifteen-year-old defendants does not derive from the direct-file statute. Colorado's constitution confers original jurisdiction to district courts in all criminal cases. See Colo. Const. art. 6, § 9. The legislature limited this original jurisdiction by enacting the Colorado Children's Code. § 19-1-101 to -7-103, C.R.S. 2018. When Godinez committed the crimes, the Children's Code limited the district court's jurisdiction over juvenile criminal cases to juveniles between the ages of fourteen and eighteen for enumerated crimes and circumstances. See § 19-2-517, C.R.S. 2011. The 2012 Amendments altered the procedures by which charges could be brought against fourteen- and fifteen-year-olds in district court. See Ch. 128, sec. 1, § 19-2-517, 2012 Colo. Sess. Laws 439-45.

         ¶ 24 Amending procedures by which jurisdiction is obtained is not the same as removing jurisdiction entirely. The 2012 Amendments did not deprive district courts of jurisdiction over fifteen-year-olds who commit crimes. Indeed, under the 2012 Amendments, district courts retain jurisdiction over fifteen-year-olds whose cases are transferred to the district court following a transfer hearing. See § 19-2-518, C.R.S. 2018.

         ¶ 25 Godinez's reliance on Terrell v. District Court, 164 Colo. 437, 435 P.2d 763 (1967), in contending that the district court lacked jurisdiction is also misplaced. In Terrell, the statutory amendment eliminating the district attorney's authority to bring charges against a juvenile in district court took place before the charges were filed. Id. at 439-40, 435 P.2d at 764. In this case, the statutory amendments took effect after charges had been filed in district court.

         B. Neither Stellabotte II Nor Any Binding Colorado Precedent Authorizes the Application of the 2012 Amendments to the Charges Against Godinez

         ¶ 26 As discussed above, the 2012 Amendments may only apply to the charges against Godinez if they fall under an exception to the presumption of prospective application that would require their retroactive application. The supreme court in Stellabotte II determined that section 18-1-410(1)(f) serves as an exception to the general presumption of prospective application. § 18-1-410(1)(f), C.R.S. 2018; Stellabotte II, ¶ 35. In Stellabotte II, ¶ 6, as here, statutory amendments impacting the case against the defendant took effect after the commission of the crime and charging, but before conviction.

         ¶ 27 We first observe the unusual posture of this case. Both Godinez and the Attorney General eschew reliance on what appears to be the most substantial argument for application of the 2012 Amendments to Godinez's crimes. Godinez tells us that Stellabotte II has little or nothing to do with the issues presented in this case. The Attorney General, before the announcement of Stellabotte II, took the position that the court of appeals' decision in People v. Stellabotte, 2016 COA 106 (Stellabotte I), which essentially was affirmed in Stellabotte II, was wrongly decided, not that it had no application to the issue before the court. After the supreme court affirmed Stellabotte I, the argument that it had been wrongly decided was no longer available to the Attorney General. So now the Attorney General argues that because the 2012 Amendments are not "ameliorative, amendatory legislation" within the meaning of Stellabotte II, ¶ 3, that case has no application here.

         ¶ 28 For three reasons, we conclude that the 2012 Amendments are not "ameliorative, amendatory legislation" within the meaning of Stellabotte II, ¶ 3.

         ¶ 29 First, the reach of Stellabotte II is not entirely clear. What is clear is that Stellabotte II, and all its antecedents, addressed statutes that either decreased the severity of a previously defined crime or reduced the maximum sentence that could be imposed for commission of that crime. Stellabotte II, ΒΆΒΆ 6, 11-29. The 2012 Amendments, which changed the procedure by which jurisdiction is apportioned between the district courts and the juvenile courts, are of a fundamentally different nature than the statutes considered ...


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