Court Opinions- Feb 08, 2021

People v. Garcia

Michael Garcia was convicted of violating a protection order after he didn’t leave the apartment he shared with his girlfriend, in apparent violation of an order stipulating he stay at least 100 feet away from that apartment. Garcia was served the protection order by a neighbor. On appeal, the district court concluded the county court violated Garcia’s confrontation right by admitting a notarized return of service into evidence at trial without the process server testifying. 

The Colorado Supreme Court reviewed the judgment of the district court, which concluded the return of service document was inadmissible testimonial hearsay under the Sixth Amendment’s Confrontation Clause. Applying the “primary purpose” test provided by the U.S. Supreme Court for determining whether a statement is testimonial for Confrontation Clause purposes, the state Supreme Court concluded a court must examine the statement’s primary purpose when it’s made, not its primary purpose when it’s introduced at trial. And, at the time of its making, the primary purpose of the return of service document in this case was administrative, not prosecutorial. Since it determined the return of service wasn’t testimonial hearsay, the Colorado Supreme Court reversed the district court’s judgment. 

In re Raven v. Polis

After a number of transgender defendants brought forward charges alleging the Colorado Department of Corrections violated the Colorado Anti-Discrimination Act. Gov. Jared Polis asked the Colorado Supreme Court to conclude that he is not a proper named defendant in a suit challenging the implementation of Colorado law and policy by the CDOC, an executive agency over which he has ultimate authority.

Polis argued that, after the 2008 decision in Developmental Pathways v. Ritter, he should no longer be named as a defendant if there is an identifiable agency, official or employee responsible for administering a challenged law. Here, he argued the CDOC and its employees are the only appropriate defendants. 

The Supreme Court disagreed. Developmental Pathways did not alter the longstanding rule that the Governor is an appropriate defendant in cases involving “his constitutional responsibility to uphold the laws of the state and to oversee Colorado’s executive agencies.” 

Accordingly, it discharged the rule to show cause. 

People v. Ross

In this appeal, the People asked the Colorado Supreme Court to determine whether the phrase “for the purpose of” in two statutory provisions defining the crime of soliciting for child prostitution describes a culpable mental state. A division of the Colorado Court of Appeals said it does and then equated the phrase with the culpable mental state of intentionally or with intent. 

The People disagreed and argued the phrase “for the purpose of” in subsections (a) and (b) does not describe a culpable mental state or mens rea, but instead qualifies the prohibited conduct or the actus reus — soliciting another or arranging (or offering to arrange) a meeting — by specifying the reason for which such conduct must have been undertaken: for the purpose of prostitution of a child or by a child.

But the People did not claim the subsections impose strict liability, which would require no more than “the performance by a person of… a voluntary act or the omission to perform an act” the person “is physically capable of performing.” Instead, they urged the Supreme Court to rule that, while the two subsections are silent on a culpable mental state, the proscribed conduct necessarily involves the culpable mental state of knowingly or willfully. The People believed the court should impute the culpable mental state of knowingly to each subsection. 

Contrary to the People’s assertion, however, the division correctly determined neither the victim’s age nor the defendant’s knowledge of, or belief concerning, the victim’s age is an element of soliciting for child prostitution. The pertinent element is that “the purpose”of the defendant’s solicitation, meeting arrangement, or offer to arrange a meeting was “prostitution of a child or by a child.” And no part of that element is subject to strict liability. 

The requisite culpable mental state — whether with intent, as the division determined, or knowingly, as the People suggest — applies to all the elements (and every part of each element) in the subsections, including that the purpose of the defendant’s conduct was the prostitution of or by a child. Simply proving the defendant’s purpose was prostitution in general, not child prostitution specifically, cannot suffice — even if there is eventually prostitution of or by a child. The Supreme Court affirmed on other grounds.

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