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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