Court Opinions: Colorado Court of Appeals Opinions for July 8

Colorado Supreme Court

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

People v. Valera-Castillo

In a Baston challenge case, the court of appeals clarified the definition of a timely challenge as established in People v. Mendoza. 

Cristoforo Valera-Castillo appealed his jury convictions for two counts of second-degree assault causing injury with a deadly weapon, three counts of felony menacing with a real or simulated weapon and one count of third-degree assault. 

Among other questions, Valera-Castillo asked the state court of appeals to decide if a proper, three-step Baston inquiry was used in a challenge by his counsel after the removal of the only non-white, prospective juror.

The prosecution dismissed Juror M, the only apparent person of color on the venire, using a peremptory challenge during voir dire. After the court read aloud the names of the selected jurors and the dismissed potential jurors were allowed to go home, Valera-Castillo’s counsel approached the bench and informed the judge it had a challenge. The court declined to hear the challenge, informing counsel that “you have already waived it. You should have approached if you had anything you wanted to talk to me about.” Later, after  Valera-Castillo’s counsel clarified it was a Baston challenge, the trial court held that the challenge should have been presented when Juror M was first dismissed. 

Clarifying its 1994 decision about Baston challenge timing in People v. Mendoza, a division of the Colorado Court of Appeals ruled a challenge must be submitted before all permanently struck jurors, including the challenged juror, have been released. Balancing the constitutional rights of potential jurors, the constitutional rights of defendants, the time of potential jurors and the court’s interest in preventing discrimination, the court of appeals decided a trial court cannot make a meaningful remedy that protects both the defendants’ rights and the juror’s equal protection rights after potential jurors have been sent home. 

People v. Landis 

The court of appeals ruled that limiting internet and social media use in sex offender intensive supervision probation sentences does not violate state rules or the constitutional right to free speech. 

Christopher Landis appealed his probation sentence for attempted sexual assault on a child arguing that the conditions restricting his use of social media violate his constitutional right to freedom of speech and the governing Colorado statutory scheme. 

Landis sexually assaulted his ten-year-old stepdaughter, according to the probable cause affidavit. He pleaded guilty to attempted sexual assault, was sentenced to SOISP and was required to comply with recommendations made during a sex offense specfific evaluation and standard, additional conditions for adult sex offenders including prohibition from social media and internet use without approval from a probation officer. 

Landis challenged this condition, arguing it violated his rights in Packingham v. North Carolina, a case that invalidated statutes creating new felony offenses for sex offenders that violate post-custody social media restrictions. The district court nevertheless sentenced him to seven years of SOISP with restrictions to social media and internet use, except for when he was required to use either for work. 

Landis’ appeal argued that under section 18-1.3-204(2)(a)(XV) of CRS 2020, the district court abused its discretion by imposing conditions that are not reasonably related to rehabilitation. The court of appeals disagreed and ruled that the conditions are related to Landis’ underlying offense and are neither unduly severe or restrictive, meaning the lower court did not abuse its discretion. Further, it ruled, Packingham is not applicable to Landis since he is actively serving his probation sentence. The SOISP sentence was affirmed. 

People in Interest of K.S.E. 

Colorado attorney Alan Rosenfeld was held in contempt of court after continuously advising his client, on a question-by-question basis, to invoke her Fifth Amendment rights against self-incrimination while she was testifying. 

At the time of her trial, Rosenfeld’s client had pending criminal charges for allegedly kidnapping her child K.S-E. Although Rosenfeld filed a motion to exclude any mention of this, during a pretrial, “Sorensen-type hearing” on whether or not the mother should be appointed a guardian ad litem by the court, the state’s counsel asked the mother about the alleged kidnapping.

During these questions, Rosenfeld repeatedly objected and advised his client to invoke her Fifth Amendment. The presiding judge warned Rosenfeld he would be held in contempt of court if he continued his objections, Rosenfeld conferred with his client to advise her on invoking her rights and later, while he did not stand or verbally object, Rosenfeld began to knock prior to when his client invoked her Fifth Amendment rights. After a lengthy discussion with the court about whether knocking violated the court’s prior order, Rosenfeld was held in direct contempt of court. 

Rosenfeld appealed the holding, asking the state supreme court if the Fifth Amendment and the connecting right to advice of counsel covers advising clients to invoke the right against self-incrimination on a question-by-question basis. 

The Colorado Court of Appeals ruled that the lower court’s order was unlawful and question-by-question counsel advice during testimony is permitted, as long as the advice is question-specific. Citing SCOTUS’ ruling in Maness, linking the Fifth and Sixth Amendments together, it held that if Rosenfeld complied with the order his client risked irreparable harm. The court of appeals also considered the extent of Rosenfeld’s non-compliance to determine if being held in contempt was appropriate despite the unlawful order. Again citing Maness, the court ruled that the irreparable risk posed to his client created exceptions for Rosenfeld’s non-compliance. 

The order and all punitive sanctions against Rosenfeld were vacated by the court of appeals. 

People in Interest of J.H. 

The Colorado Court of Appeals declined a direct appeal of a magistrate order in a juvenile court case, citing lack of jurisdiction.

In a paternity rights petition, a non-biological father named in court documents as C.D., was denied parental rights by a magistrate’s order in 2019. C.D. appealed directly to the state court of appeals, arguing that the magistrate’s direction that “any appeal must be taken in accordance with rule 7(b) of the Colorado Rules for Magistrates” meant he should directly appeal the decision to the court of appeals. 

The higher court looked at Section 19-1-108(1) CRS 2020 of the Children’s Code to decide if it had jurisdiction over the appeal. Citing a subsection of the code, the court ruled C.D.’s appeal should have been filed in district court for review. It further ruled that 7(b) did not apply to the case and rejected C.D.’s argument that the rule did not apply to his case. 

It also rejected the appellant’s argument that the unique circumstances doctrine applied, ruling that in previous cases, courts invoked the doctrine to excuse untimely filing only when they held jurisdiction. The court also rejected both parties’ argument that the unique circumstance doctrine applied under People in Interest of C.A.B.L. It pointed out that the cited case, dismissing a late filing, only excused an untimely filing but did not grant jurisdiction to another court. 

The court declined C.D.’s request to remand the case to district court for appeal, citing that the deadline to file an appeal passed. 

People in Interest of D.M.F.D. 

The Colorado Court of Appeals reversed a juvenile court’s ruling of dependency and neglect, ruling the evidence provided did not satisfy the necessary burden of proof. 

Based on the hearsay testimony from two Denver Human Services Department employees and a series of ongoing criminal proceedings against the father, a juvenile court ruled the infant, D.M.F.D., as dependent and neglected. The petition for dependency and neglect was filed with D.M.F.D. was only six days old based on concerns from hospital staff that both parents neglected the infant’s needs. 

In an adjudicatory hearing, two Human Services Department employees related the concerns of the hospital staff which alleged the parents rarely interacted with the infant, rarely fed or changed the infant and that due to under-feeding, the child lost two pounds while in the hospital. The lower court allowed the hearsay evidence for the limited purpose of its effect on the listener, however, it did not admit it as factual evidence. The other findings of fact determined at the adjudicatory hearing, that the father had multiple previous and pending criminal proceedings, did not make claims about his ability to meet the child’s needs. 

The court of appeals ruled that the evidence presented was insufficient to support the dependency and neglect designation. It cited a recent case, People in Interest of E.S., to rule that the father’s history of incarceration is only relevant to parental rights after a child is determined to be dependent or neglected. Further, it found that since the testimony did not include the hospital workers’ first-hand experience about the child’s care, the hearsay evidence was inadmissible as factual evidence.

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