Court Opinions: Colorado Court of Appeals Opinions for Sept. 29

Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.


People v. Martinez

The Colorado Court of Appeals unanimously affirmed a judgment involving reckless manslaughter and the “make-my-day” defense.

Justin Martinez was found guilty of reckless manslaughter. In 2018, Martinez was accused of shooting and killing his best friend and was charged with second-degree murder. Martinez claimed he was acting in self-defense, arguing he was immune from prosecution under the force-against-intruders statute, but the trial court disagreed. 

The prosecution brought forward two eyewitness accounts including Armando Acosta, a mutual friend of Martinez and the victim and police interviews from Martinez were shown to the jury.

Acosta stated after a night of drinking, Martinez, Acosta and the victim went back to Martinez’s house. According to records, Martinez wanted to drive to another bar, but the victim suggested Martinez was too drunk to drive. When Martinez got in the vehicle, the victim was accused of reaching through the window, punching Martinez and wrestling him out of the car.

Martinez stumbled into the house and when Acosta walked in, records indicate, he saw Martinez on a bedroom floor being kicked by the victim. Records state the victim then started to walk out of the room and Martinez is accused of grabbing a gun and shooting the back of the victim’s knee. Acosta testified when Martinez got the gun, the assault was over and when the shot was fired, the victim was already out the door of the room. Acosta added Martinez shot the gun toward the floor and was surprised it hit the victim.

Martinez’s account was a little different. Initially, he told police when the victim pursued him into the house, Martinez grabbed a gun by the front door which accidentally fired. Later, Martinez said after the victim assaulted him outside, he ran into the bedroom, grabbed a gun, turned to give a warning shot toward the ground and accidentally hit the victim in the leg.

When police arrived the victim was found lying in the hallway outside the bedroom. The victim eventually bled to death from the gunshot wound. Martinez’s theory of defense was that he grabbed the gun in self-defense with no intent to hit the victim and accidentally shot the victim in the leg. The jury convicted Martinez of reckless manslaughter.

Martinez contended on appeal the trial court erred by declining to instruct the jury that the force-against-intruders defense (make-my-day defense) is an affirmative defense against reckless manslaughter. 

The appeals court affirmed the conviction reasoning like ordinary self-defense, the force-against-intruders defense is an affirmative one only in respect to offenses requiring a mental state of intentionality or knowing. The appeals court concluded the defense of force-against-intruders is inconsistent with conduct that involves a reckless mental state, which means the trial court was correct to not give an affirmative defense instruction.

Marriage of DePumpo

The appeals court unanimously reversed and remanded a case involving dissolution of marriage, gains in investment and rental income.

Sarah Schaefer appealed a district court’s maintenance and child support awards based on the court’s income calculations in her dissolution of marriage with Timothy DePumpo. 

Schaefer asked the appeals court whether unrealized capital gains on an investment account awarded as part of the property division count toward income for maintenance and child support calculations. Schaefer also asked whether the calculation of rental income, which is required by statutes for maintenance purposes and child support, excludes all depreciation. The appeals court said no to both. The appeals court reversed the judgment and remanded the case to recalculate the parties’ incomes entering new maintenance and child support awards. 

According to court records, during the marriage, DePumpo was the source of income as the owner of several businesses, which led to large investment accounts and the purchase of multiple properties, some of which are rentals. The parties agreed Schaefer would stay home during the marriage to take care of their four kids.  

The district court awarded about $6.7 million of the marital estate, along with all the real properties including the rentals, to DePumpo. The remaining nearly $2.8 million, which included a TD Ameritrade investment account, went to Schaefer. To equalize the values, the district court ordered DePumpo to pay Schaefer nearly $2 million. As for maintenance and child support, the district court calculated DePumpo’s monthly income at about $57,000 and Schaefer’s at almost $20,000. 

The district court found certain factors including DePumpo’s history as the income provider and their high standard of living also entitled Schaefer to a monthly maintenance award while she got a master’s degree. Schaefer was awarded $5,000 a month for four years, with the court citing her liquid assets, income and ability to increase earnings once she graduated. The court’s child support calculations resulted in Schaefer paying DePumpo $132 per month.

Schaefer contended the district court miscalculated both parties’ incomes concerning maintenance and child support. Schaefer argued the district court erroneously included unrealized capital gains on the TD Ameritrade account as part of her income, while also arguing the lower court included depreciation expenses that are associated with the rental properties when it calculated DePumpo’s income. 

Among multiple arguments, the appeals court wrote “paper only” gains in an investment account are not income for maintenance and child support calculations unless they are realized and can be used for living expenses. The appeals court added there isn’t evidence the parties received income from the investment account during the marriage. 

The appeals court wrote there is a difference between what an account provides to a party for actual income and what it’s capable of providing if invested differently. On remand, the district court must differentiate between those two things to determine what portion, if any, from the investment account is income to Schaefer.

As for the argument concerning the lower court possibly erring in reducing DePumpo’s rental income, which included depreciation expenses, the appeals court wrote there needs to be more specific findings on reducing the rental income by depreciation.

The existing maintenance and child support order will remain in place pending new orders and the case was remanded for new calculations. 

Woo v. Baez et al.

The appeals court unanimously affirmed in part, reversed in part and remanded a case involving the certificate of review requirement.

James Woo appealed a judgment dismissing his claims against Jose Baez and Michelle Medina for a lack of personal jurisdiction and his claims against Richard Bednarski due to Woo’s failure to file a certificate of review. 

The appeals court reversed the dismissal concerning the claims against Baez and Medina agreeing the district court erred by denying substituted service. The appeals court also reversed the dismissal of the replevin claim against Bednarski. The appeals court affirmed the dismissal of the remaining claims against Bednarski.

Court records state Woo filed a civil complaint against Baez, Medina and Bednarski, who represented him in a criminal case, alleging inadequate representation. Woo brought claims against Baez and Medina for fraud, breach of contract, willful breach of fiduciary duty, professional negligence, negligent misrepresentation and unjust enrichment. Woo brought claims against Bednarski for wilful breach of fiduciary duty, professional negligence and replevin.

Police were tasked with serving Baez and Medina at a Florida address Woo provided. Woo later provided a new office address for Medina and Baez in Miami and an address in Orlando. According to the court, local police were not able to serve Medina and Baez at the addresses, apparently due to interruptions in business due to COVID-19 and Hurricane Eta. The El Paso County Sheriff’s Office did serve Bednarski.

The case was pending for longer than a year, without Baez and Medina being served, when Woo filed a motion for substituted service. Woo asked the district court to authorize service on a Colorado attorney who at the time was representing Medina and Baez in a proceeding with the Colorado Office of Attorney Regulation Counsel over the same allegations of misconduct.

The district court denied the motion stating the plaintiff failed to show either of the procedures were reasonably calculated to give notice to the defendants, adding the claims were for monetary relief and not a challenge to a conviction or sentence. The district court explained a lot of time was spent trying to find the defendants and pointed to the nature of the claim. The district court also dismissed claims against Bednarski because Woo never filed a certificate of review that contained an expert’s conclusion that the claims against Bednarski didn’t lack substantial justification.

The appeals court agreed with Woo that the district court erred in denying his motion for substitute service noting that serving the attorney representing Baez and Medina was a reasonable effort to give actual notice to them. With that conclusion, the appeals court wrote the district court erred in granting Baez and Medina’s motion to dismiss for lack of personal jurisdiction. 

As for the certificate of review involving Bednarski, the appeals court disagreed with Woo that the district court erred in dismissing some of Woo’s claims based on not having a certificate of review. The appeals court, however, agreed with Woo the district court erred by dismissing the replevin claim because no certificate of review is needed for that type of claim. 

People v. Mangum

The appeals court unanimously affirmed an order concerning a speedy trial and a murder case.

Grand Junction prosecutors appealed a postconviction court order granting the motion of Verle Mangum to dismiss charges for violation of his right to a speedy trial. In 2003, Mangum was convicted of first-degree murder, second-degree murder and child abuse resulting in death. He was sentenced to life in prison. Mangum appealed and a division of the appeals court affirmed his conviction.

In 2008, Mangum filed a petition for postconviction relief asserting his trial counsel was ineffective. In 2011, Mangum’s counsel filed an amended petition claiming his appellate counsel was also ineffective.

In 2019, a postconviction court found Mangum’s trial and appellate counsel were unconstitutionally ineffective and vacated his convictions and sentences and ordered a new trial. Later, state prosecutors appealed the postconviction court’s order. A division of the appeals court affirmed and the case was mandated to the postconviction court Aug. 20, 2021.

In 2022, Mangum filed a motion to dismiss his charges for violation of his rights to a speedy trial. The postconviction court found the People violated his statutory right by not retrying him within six months of the Aug. 20, 2021 mandate and the court granted his motion to dismiss. 

The prosecutors argued the lower court misinterpreted and misapplied the speedy trial statute. The appeals court affirmed, citing Colorado Revised Statute 18-1-405(2) that states a defendant’s speedy trial period begins when the postconviction court grants the defendant a new trial under Crim. P. 35(c).

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