Court Opinions- Oct 26, 2020

People v. Magana

Christopher Magana appealed the judgment of conviction entered on jury verdicts finding him guilty of 18 counts of arson and one count of criminal mischief based upon his single act of setting a car on fire, which then ignited another car and a duplex occupied by 14 people.

A witness, referred to by the court as M.S-N., suspected Magana, her ex-boyfriend, of setting the fire. He had previously indicated he would do so, had acted violently toward her and repeatedly texted her in the hours before the fire. Magana initially denied any involvement in the fire, but phone records placed him near the duplex when the fire started, and he later admitted setting fire to one of the vehicles.

Magana was charged and convicted of 18 counts of arson: one count of first-degree arson for each apartment damaged by the fire, one count of second-degree arson for each car damaged by the fire, and one count of fourth-degree arson for each person endangered by the fire.

Magana was also tried for 14 counts of first-degree attempted murder and a lesser included offense of criminal mischief. The jury acquitted him of the attempted murder charges but found him guilty of all other counts.

This appeal presented two issues of first impression in Colorado. First, a division of the Colorado Court of Appeals considered the proper unit of prosecution in an arson case. In doing so, it rejected Magana’s contention that, based on his one act of arson, he can only be convicted of one count of first-degree arson (regardless of the number of buildings or occupied structures he damaged or destroyed); one count of second-degree arson (regardless of the number of people whose cars he damaged or destroyed); and one count of fourth-degree arson (regardless of the number of persons he placed in danger of death or serious bodily injury). 

The division concluded Magana’s two convictions for first-degree arson (for the burning of a duplex) don’t violate double jeopardy because the unit of prosecution under the statute allows for multiple convictions based on the number of buildings/occupied structures burned or caused to be burned by Magana; his two convictions for second-degree arson (for the burning of two cars belonging to two different people) don’t violate double jeopardy because the unit of prosecution under the statute allows for multiple convictions where distinct property belonging to different people was set on fire, burned or caused to be burned by Magana; and his 14 convictions for fourth-degree arson (for placing fourteen people in danger of death or serious bodily injury) don’t violate double jeopardy because the unit of prosecution under the statute allows for multiple convictions based on the number of victims placed in danger of death or serious bodily injury by Magana. 

Second, the court rejected Magana’s contention that, because it’s also an element of first-degree arson, use of fire can’t also be the basis for a crime of violence sentence enhancement. The division concluded first-degree arson with fire may be charged, and a defendant may be convicted of a crime of violence, where, as here, the prosecution proved to the jury beyond a reasonable doubt that the fire used by the defendant was capable of producing death or serious bodily injury. 

The division affirmed all of Magana’s convictions except his conviction for criminal mischief and remanded the case to the trial court to resentence Magana for first-degree arson in line with the jury’s crime of violence finding.

Dunafon v. Krupa

Article XXIX of the Colorado Constitution established the Independent Ethics Commission to hear and investigate complaints, issue findings, assess penalties and issue advisory opinions on ethics issues involving government officials. The commission is “not an executive agency; it is instead an independent, constitutionally created commission that is ‘separate and distinct from both the executive and legislative branches.’” 

When the commission receives a complaint, it first determines whether the complaint is frivolous. The commission must then investigate, hold a public hearing and issue findings for all nonfrivolous complaints; however, the commission must keep confidential any complaint it deems frivolous. 

The commission received two complaints, one in 2016 and another in 2017, against Glendale Mayor Mike Dunafon. The commission held nonpublic executive sessions to consider the frivolity of the complaints and ultimately deemed them nonfrivolous. While it considered whether the complaints were frivolous, the commission also addressed its jurisdiction to investigate Dunafon. The Colorado Constitution exempts home rule municipalities “that have adopted charters, ordinances or resolutions that address the matters covered by [Article XXIX]” from the requirements of Article XXIX, and Glendale is a home rule municipality with an ethics code. The commission ultimately determined that it had jurisdiction to investigate Dunafon because Glendale’s ethics code did not create a decision-making body sufficiently independent to adjudicate the complaints against Dunafon.

After the commission decided that the complaints against Dunafon were nonfrivolous, Dunafon requested records of the executive sessions in which the commission discussed the complaints, arguing that the materials were no longer confidential once the commission deemed the complaints nonfrivolous. The commission  denied this request and a subsequent request from Dunafon’s new counsel. Dunafon then sued to obtain the executive session records under the Colorado Open Records Act and the Colorado Open Meetings Law.

The commission moved to dismiss Dunafon’s complaint. The district court granted the motion to dismiss in part, concluding it did not have subject matter jurisdiction to review Dunafon’s CORA claims but that Dunafon had met his burden under COML to allow in-camera review of the records of certain executive sessions. After the IEC sought clarification, the district court dismissed Dunafon’s entire complaint with prejudice, having realized that Dunafon never requested the records the court earlier declared reviewable under COML. Dunafron appealed. 

A division of the Colorado Court of Appeals concluded the district court lacked subject matter jurisdiction under these provisions because the commission is not an “agency” or “institution” subject to CORA; the commission’s denial was not a “final action”; and the commission is not a “state public body” subject to COML. The division also concluded Dunafron’s request to amend his complaint to bring a claim under C.R.C.P. 106(a)(4) was untimely. The division affirmed on these grounds.  

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