Court Opinions- Jan 13, 2020

People v. Dominguez-Castor

On March 1, 2014, Robert Phippen, 79, was found dead inside his home. Someone had stabbed him approximately 60 times, strangled him and ransacked his trailer. The police discovered an empty box of checks, bloody latex gloves in the toilet bowl, two knives in the kitchen and a black glove under his body. 

Investigators suspected James Dominguez-Castor and Stephvon Atencio. In police interviews following his arrest, Atencio acknowledged having a sexual relationship with the victim and living with him shortly before his death. Atencio implicated Dominguez-Castor in the crimes. The prosecution ultimately charged both men in the victim’s death. Atencio later agreed to testify against Dominguez-Castor and pleaded guilty to second-degree murder.

Dominguez-Castor was ultimately convicted of first degree murder (both after deliberation and felony murder), aggravated robbery and related crimes. The trial court adjudicated him a habitual criminal and sentenced him accordingly. 

A division of the Court of Appeals considered whether the independent source doctrine applies to serial search warrants for the same evidence. The division concluded that, even where evidence was suppressed because it was discovered during execution of a flawed warrant, the same evidence may be admitted if discovered under a second warrant that was genuinely independent of the prior illegality. The record supports the trial court’s findings that the second warrant was not based on facts learned in the unlawful search and the officer’s decision to seek the second warrant was not motivated by information obtained during the unlawful search. Therefore, the division affirmed.

People v. Rios

During a large fight at a park, Marty Vigil pointed a black BB gun at someone and threatened to shoot him. A police officer responding to the scene saw a person, later identified as Gilberto Rios, walk away from the fight and put a dark object into a trash can. Another officer searched the trash can and found a black BB gun. At the conclusion of the investigation, Vigil was arrested and charged with menacing; Rios was arrested and charged as an accessory to Vigil’s menacing.

Vigil pleaded guilty to menacing. The prosecutor mentioned that plea during opening statements in Rios’ trial and then called Vigil to the stand in an effort to prove that the antecedent to Rios’ crime of accessory (i.e., Vigil’s menacing) had occurred. Vigil was minimally cooperative but did eventually admit signing the plea agreement. 

The court admitted a redacted copy of the plea paperwork, and during closing argument, the prosecutor relied on it to argue that the antecedent crime of menacing had occurred. The prosecutor told the jurors that they were “not deciding whether or not Marty Vigil committed the menacing, because he’s already stood right here in front of this judge, in the courtroom, went through a Written Waiver and Guilty Plea and pled guilty to menacing,” and that the plea paperwork “goes to prove that [Vigil] menaced [the victim], and he placed him in imminent fear of serious bodily injury[.]”

A division of the Court of Appeals held that the general rule barring the use of a co-defendant’s guilty plea as substantive evidence of the defendant’s guilt does not apply where the defendant is charged only with acting as an accessory to the co-defendant’s offense. 

People in Interest of Z.M.

The El Paso County Department of Human Services moved for an adjudication that G.F. and Z.M., the children of J.F., were dependent or neglected by J.F. The court granted the motion, and the children were placed with maternal aunt and uncle. The court also adopted a treatment plan for J.F. 

The guardian ad litem later moved to terminate J.F.’s parental rights, alleging he had not complied with his treatment plan. After a hearing, the juvenile court granted the motion. 

J.F. then appealed to a division of the Court of Appeals. He designated 32 hearing transcripts for the appeal. Several months later, it was discovered that the record was missing six of the requested hearing transcripts. J.F. moved the division to supplement the record, and the court granted the motion. The record was supplemented, but J.F.’s counsel found that three transcripts remained missing. The father’s counsel again moved to supplement the record and then amended that motion to request just two transcripts. 

The court denied the second motion “with leave to refile with a statement of materiality” under C.A.R. 10(f)(2). A few days later, the chief judge of the court entered a new order deferring a ruling on J.F.’s request to supplement the record to the merits division and directing him to “address C.A.R. 10(f)(2)’s materiality standard in his opening brief.” The parties then completed appellate briefing.

After briefing was completed, a judge of the court ordered the juvenile court to supplement the record with the remaining transcripts. In response, the juvenile court submitted an affidavit from the transcriptionist assigned to the case. The affidavit stated that “there was no recording for the hearing dates requested . . ., thus no transcripts [could] be produced.” 

J.F. argued that the lack of a complete record on appeal denied him due process and that the juvenile court erred when it determined that there were no less drastic alternatives to termination. C.A.R. 10(f)(2) provides: If any material part of the trial court record is omitted or missing from the record by error or accident or is misstated therein after the record is transmitted to the appellate court, the appellate court, on motion or of its own initiative, may order that the supplemental record be certified and transmitted.

In this dependency and neglect proceeding, the division addressed a question of first impression in Colorado: What is the meaning of the word “material” in C.A.R. 10(f)(2)? J.F. argued that all documents, transcripts and other materials related to the proceeding that is the subject of the appeal are necessary material for purposes of the appellate record. The division rejected this argument, concluding that the Colorado Appellate Rules and Colorado case law necessarily contemplate a narrower definition. Because the division concluded both that J.F. failed to demonstrate that the missing portions of the record were material and that the record supports the juvenile court’s findings, the division affirmed.

Am. Multi-Cinema, Inc. v. City of Aurora

American Multi-Cinema, Inc. generates revenue by exhibiting motion pictures and selling admission tickets to the public. AMC’s master licensing agreements authorize it to exhibit motion pictures for a licensing fee, and AMC then pays distributors a percentage of its admission sales. AMC has paid the City a use tax — levied on tangible property used, stored, distributed or consumed in the City — on its MLA fees since it began operation. AMC previously received motion pictures from distributors in the form of 35-millimeter film reels but later replaced the celluloid film technology with digital equipment and now receives motion pictures via digital files on portable hard drives.

On Nov. 1, 2012, AMC filed two refund claims with the City, seeking a $191,634.06 refund from use taxes paid on licensing fees from May 27, 2010, through September 27, 2012. During this timeframe, AMC used digital files to exhibit motion pictures at its two Aurora theatres. 

Arguing that the digital files were not tangible personal property in the district court — on appeal, AMC no longer disputed that the digital files were tangible personal property — AMC claimed that its MLA fees could no longer be subjected to the City’s use tax. The City denied AMC’s refund claims in full, and AMC appealed to the City’s Finance Director, who also rejected AMC’s claims. 

On March 26, 2014, AMC appealed to the district court. After a bench trial, the district court upheld the City’s use tax, finding that the data files were tangible personal property under the City’s code, the true object of the MLAs was to acquire the data files rather than to obtain the intangible right to exhibit and the MLAs were not exempt from the use tax as a purchase for resale. AMC appealed. 

A division of the Court of Appeals considered whether the City of Aurora properly levied a use tax on AMC’s MLAs with motion picture distributors. The division followed Cinemark USA, Inc. v. Seest, 190 P.3d 793 (Colo. App. 2008), applying its analysis to new technology. Because the true object of the MLAs is to obtain tangible personal property (the data files), and AMC’s exhibition of motion pictures is not a resale exempt from the City’s use tax, the division affirmed the district court’s judgment upholding the City’s use tax levied on the MLAs.

People in the Interest of S.B.

In August 2017, law enforcement officials placed S.B., the child of R.B., in protective custody because during a drug raid they found the child alone in unsafe conditions where he and his father lived. The Montrose County Department of Health and Human Services initiated a dependency and neglect proceeding, and the juvenile court granted custody of the child to the Department. 

The Department placed the child in the care of his paternal great aunt and uncle, whom the court appointed as special respondents in the case as S.B.’s mother had died earlier that year.

In September 2017, R.B. admitted that the child was dependent and neglected and the court adopted a treatment plan for him. R.B. was later arrested on several offenses, and under a plea agreement was sentenced to six years in the custody of the Department of Corrections in March 2018. In August 2018, the Department moved to terminate father’s parent-child legal relationship with the child. The court held a termination hearing and terminated father’s parental rights.

A division of the Court of Appeals considered whether the juvenile court erred in terminating R.B.’s parental rights. In separate opinions, judges Hawthorne, Furman and Navarro concluded that the court did not err. Judge Hawthorne concluded that under People in Interest of A.G., 262P.3d 646 (Colo. 2011), a parent’s ineffective assistance of counsel claim in a termination proceeding requires demonstrating “outcome-determinative” prejudice pursuant to Strickland v. Washington, 466 U.S. 668, 687 (1984). Judge Furman specially concurred, pointing out the shortcomings of applying the criminal “outcome-determinative” prejudice inquiry to civil termination of parental rights proceedings. Judge Navarro specially concurred that R.B. failed to demonstrate prejudice under either analysis. 

The division affirmed the juvenile court’s decision.

People in the Interest of NGG

In this dependency and neglect proceeding, V.M. and J.G. appealed the juvenile court’s judgment allocating parental responsibilities for their children, N.G.G., A.R.G. and S.D.G. 

A division of the Court of Appeals considered whether the legal presumption that a parent is acting or will act in his or her child’s best interests may be restored to a parent after it has been removed by an order adjudicating the child dependent and neglected. 

The division concluded that the presumption is restored when the juvenile court subsequently determines that the parent has successfully complied with a treatment plan and is able to safely parent the child. 

Because the juvenile court in this case did not accord mother the presumption when it ordered grandparent visitation as part of the judgment allocating parental responsibilities for the children, the division reversed the judgment and remanded the case for a new hearing. 

The division also concluded that the judgment must be reversed because the relocation provision, which allows a mother to relocate with the children without the father’s agreement if he is incarcerated, violates the governing statute and is premature.

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