Rehearing Denied February 21, 2019
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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
by JUDGE BERGER
Table of Contents
Majority Opinion
I.
Introduction and Summary...__
II.
Facts and Procedural History...__
A. The
Crimes...__
B. The
Prosecution and Change in Statutory Law...__
C.
Developments in Colorado Case Law...__
III.
The 2012 Amendments Do Not Apply to the Charges Against
Godinez...__
A. The
2012 Amendments Did Not Divest the District Court of
Jurisdiction Over Godinez or the Charges Against Him...__
B.
Neither Stellabotte II Nor Any Binding Colorado
Precedent Authorizes the Application of the 2012
Amendments to the Charges Against Godinez...__
C.
Neither the Alleged "Procedural" Nature of the 2012
Amendments Nor the Rule of Lenity Requires Reversal...__
D.
Godinez was Not Entitled to a Reverse-Transfer Hearing...__
IV.
One Victims In-Court Identification of Godinez Did Not
Violate His Constitutional Rights...__
A.
Additional Factual Background...__
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B.
Standard of Review and Applicable Law...__
C.
Application...__
V.
Admission of Out-of-Court Statements...__
A.
Additional Factual Background...__
B.
Standard of Review and Applicable Law...__
C.
Application...__
VI.
Constitutionality of Colorado Statutory Scheme Governing
Sentencing of Juvenile Sex Offenders...__
A.
Standard of Review and Applicable Law...__
B.
Application...__
VII.
Conclusion...__
Opinion Concurring in Part, Specially Concurring in
Part, and Dissenting in Part
I.
Retroactivity and Stellabotte II ...__
II.
The 2012 Amendments Constitute "Ameliorative, Amendatory
Legislation" Because They Mitigate Potential
Penalties...__
A.
Prerequisites to Retroactivity...__
B.
Juvenile Penalties Serve Different Purposes Than Adult
Penalties...__
III.
Aggregate Sentences May Be Unconstitutional...__
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
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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 Godinezs 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, 421 P.3d 174 (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 victims 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 Godinezs 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 abductors
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 Godinezs 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
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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 Godinezs appeal. Over Godinezs
objection, we granted the Attorney Generals 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.[3]
[¶
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, 72 S.Ct. 581, 96 L.Ed. 786 (1952), Godinez contends
that the 2012 Amendments divested the district court of
subject matter jurisdiction on their effective date. He
reasons that the district courts jurisdiction derived solely
from the previous direct-file statute and that once that
statute was repealed and replaced by the 2012 Amendments, the
courts jurisdiction was extinguished. We reject this
argument and agree with the district court that
Bruner is
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distinguishable.[4]
[¶
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
Assemblys 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. Dept
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, 72 S.Ct. 581. 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, 72 S.Ct. 581. 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 Bruners complaint (because it placed
exclusive jurisdiction in the Court of Claims) and affirmed
the district courts dismissal of it. Id. at 116-17,
72 S.Ct. 581. 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, 72
S.Ct. 581.
[¶
23] Unlike Bruner, the district courts
subject matter jurisdiction over fifteen-year-old defendants
does not derive from the direct-file statute. Colorados
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 Childrens Code. §
19-1-101 to -7-103, C.R.S. 2018. When Godinez committed the
crimes, the Childrens Code limited the district courts
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
...