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People ex rel. B.D.

Court of Appeals of Colorado, Third Division

April 18, 2019

The People of the State of Colorado, Petitioner-Appellee, In the Interest of B.D., Juvenile-Appellant.

          Jefferson County District Court No. 16JD355 Honorable Ann Gail Meinster, Judge Honorable Andrew Todd Fitzgerald, Magistrate

          Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney General, Denver, Colorado, for Petitioner-Appellee

          Tara Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for Juvenile-Appellant

          OPINION

          WELLING JUDGE

         ¶ 1 In this delinquency proceeding, the juvenile, B.D., appeals from the magistrate's order adjudicating him delinquent based on findings that he committed acts that, if committed by an adult, would constitute three felonies and one misdemeanor, and from the district court's order denying his petition for review and adopting the magistrate's order and judgment.

         ¶ 2 B.D., along with two other juveniles, broke into two homes and stole several items. At one of the homes, one of B.D.'s accomplices crossed paths with the seventy-seven-year-old homeowner. B.D. was adjudicated delinquent for two counts of felony burglary - one count for each home - and two counts of theft. One of the theft counts was a misdemeanor but the other was enhanced to a class 5 felony because it was committed in the presence of an at-risk person. With respect to the adjudication for theft against an at-risk person, B.D. was adjudicated only as a complicitor.

         ¶ 3 On appeal, B.D. contends that the magistrate erred in denying his motion to suppress and in adjudicating him as a complicitor on the enhanced theft charge. We are not persuaded that the magistrate erred in his suppression ruling, but we do conclude that, applying People v. Childress, 2015 CO 65M, there was insufficient evidence to adjudicate B.D. as a complicitor to theft from an at-risk person.

         ¶ 4 In Childress, ¶ 29, our supreme court held that a complicitor can be held criminally responsible for a strict liability crime committed by another if there is evidence that the complicitor (1) intended that the principal would commit the strict liability crime and (2) was aware of those circumstances attending the act or conduct he or she sought to further that were necessary for commission of the offense in question. In this case, we are called on to apply that holding to a statute that enhances the penalty for a theft that is committed "in the presence of" an at-risk person. § 18-6.5-103(5), C.R.S. 2018.

         ¶ 5 We conclude that the Childress analysis applies to a strict liability sentence enhancer. Because we also conclude that there was no evidence that B.D. was aware that the principal would commit the burglary "in the presence of" an at-risk person, we reverse the adjudication for felony theft and remand the case for resentencing. We affirm the judgment in all other respects.

         I. Background

         ¶ 6 One afternoon, a police officer, Gregory Strandberg, received a report of a home burglary in his patrol area, and he responded to the scene. When he got there, the homeowner was in his driveway. The homeowner reported to the officer that he had returned home to find a young man in his house, and he saw that young man run out of his house and to the north. Officer Strandberg drove in that direction; within a few blocks, he saw three young men walking toward him. Officer Strandberg initially drove past the three young men but then turned his car around to talk with them.[1]

         ¶ 7 Officer Strandberg parked his car, got out, and asked the young men, in a conversational manner, whether they had seen anything unusual in the neighborhood. During this conversation, four other officers arrived on scene. Each officer arrived in his own car, wearing a standard police uniform. The officers were armed, but at no time did any of the officers remove their guns or tasers from their holsters. The officers separated the three juveniles so that they could talk to each of them without interference from the others. Officer Strandberg talked with K.K. while another officer, Sergeant Lewis Tomasetti, questioned B.D.

         ¶ 8 Sergeant Tomasetti testified that when he arrived on scene he moved B.D. about ten feet from the other two juveniles. Then, in a conversational and calm tone, he asked B.D. for identifying information and whether he had anything illegal in his possession. B.D. responded that he had alcohol in his backpack. Sergeant Tomasetti asked B.D. two times if he could search his backpack. After B.D. said yes both times, Sergeant Tomasetti searched B.D.'s backpack and found a bottle of vodka and an iPad. Sergeant Tomasetti would later learn that both of these items had been stolen from one of the homes. The only other conversation the two had was when Sergeant Tomasetti asked B.D. whether his father was available that afternoon.

         ¶ 9 The homeowner arrived on scene a few minutes after Officer Strandberg's initial encounter and identified K.K. as the person who had been in his home. Police then arrested all three juveniles. Only eight minutes had elapsed from when the victim reported the burglary.

         ¶ 10 Before trial, B.D. moved to suppress, arguing that (1) he was subjected to custodial interrogation and, therefore, should have been advised of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966); (2) he should have had a parent present for his interrogation pursuant to section 19-2-511, C.R.S. 2018; and (3) his consent to search the backpack was involuntary. The magistrate denied B.D.'s motion. The magistrate later conducted a bench trial and adjudicated B.D. delinquent on all four charges. The magistrate also concluded that because the victim of one of the thefts was over seventy years old, B.D. had committed theft from an at-risk person.

         ¶ 11 Following sentencing, B.D. timely filed a petition for review in district court. In a written order, the district court denied B.D.'s petition for review and adopted the magistrate's orders and judgment.

         II. Analysis

         ¶ 12 A petition for district court review of an order entered by a magistrate is a prerequisite to an appeal of such order. § 19-1-108(5.5), C.R.S. 2018. A district court reviewing a magistrate's decision under C.R.M. 7(a) may not alter the magistrate's factual findings unless clearly erroneous. C.R.M. 7(a)(9). Appeals to this court from juvenile adjudications and sentences are conducted pursuant to the rules of appellate procedure. See §§ 19-1-109(1), 19-2-903(1), C.R.S. 2018. Our review of the district court's decision is effectively a second layer of appellate review, and, like the district court, we must accept the magistrate's factual findings unless clearly erroneous. In re Parental Responsibilities Concerning G.E.R., 264 P.3d 637, 638-39 (Colo. App. 2011). We may, however, set aside a district court's order based on errors of law, which we review de novo. People in Interest of S.G.L., 214 P.3d 580, 583 (Colo. App. 2009).

         ¶ 13 B.D. raises two issues on appeal. First, he contends that the magistrate made various errors in his suppression ruling. Second, he argues there was insufficient evidence to support the magistrate's finding that he was a complicitor to theft from an ...


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