Editor’s Note: Law Week Colorado edits court opinion summaries for style and, when necessary, length.
The Colorado Court of Appeals unanimously affirmed a judgment involving felony menacing.
Luis Toro-Ospina was charged with two counts of felony menacing after he was accused of being involved in a confrontation that involved his gun. The jury returned guilty verdicts on both menacing counts and corresponding sentence enhancers.
Toro-Ospina appealed, asserting the trial court erred denying his request to add questions concerning prospective jurors’ race to a jury questionnaire and denying his tendered implicit bias jury instruction.
The Colorado Court of Appeals needed to decide whether a trial court is required to ask prospective jurors to disclose their race or ethnicity when requested by a party. The division also had to decide whether a trial court must provide the jury with an implicit bias instruction when requested by one of the parties.
The appeals court concluded the trial court isn’t required to ask a race/ethnicity question and isn’t required to provide an implicit bias instruction. The appeals court wrote the decision to ask such a question or provide an implicit bias instruction is entrusted to the trial court’s discretion. The appeals court found the trial court didn’t abuse that discretion by declining to ask the question or give the instruction in the case.
The judgment was affirmed.
The Colorado Court of Appeals unanimously affirmed a judgment in part, reversed in part and remanded a case involving the felony murder affirmative defense.
According to the appeals court opinion, Kenneth Gallegos and three others, his then-girlfriend Julianna Serrano, Dominic Stager and Demarea Mitchell, drove to the home of L.C., from whom Serrano had arranged to purchase vape supplies.
L.C. had agreed to sell the supplies to Serrano, but the group planned to take them without paying, according to the opinion. The prosecutor and defense disputed Gallegos’ role in developing and having advanced knowledge of the plan.
L.C. approached the car where the group was sitting and asked for payment. Gallegos, Stager and Mitchell got out of the vehicle. Stager slid a gun he brought to Mitchell who grabbed it and approached L.C. Mitchell and L.C. began fighting and L.C. wrestled Mitchell to the ground and kneeled on top of him. Mitchell was accused of shooting L.C., who ran into his house screaming as the group reentered the car and, with Gallegos allegedly behind the wheel, drove off. L.C. ended up dying from the gunshot wound.
Each member of the group was charged in the case. In exchange for plea deals, Serrano and Stager agreed to testify for prosecutors at Gallegos’ trial. Gallegos was found guilty by a jury of felony murder, attempted aggravated robbery, conspiracy to commit aggravated robbery and attempted theft of less than $50.
Gallegos appealed, contending the trial court committed reversible error by refusing to instruct the jury on the affirmative defense of felony murder.
The appeals court wrote the case brought forward an unresolved issue in Colorado: whether a defendant can assert the felony murder affirmative defense despite denying they committed the predicate felony and thus denying they committed felony murder.
Prosecutors contended a defendant isn’t entitled to an affirmative defense instruction if they deny committing the charged crime. According to the opinion, the prosecutors argued a defendant charged with felony murder must acknowledge the conduct giving rise to that crime, including conduct giving rise to the predicate felony, before they can assert the felony murder affirmative defense.
The appeals court wrote the few Colorado cases addressing a defendant’s ability to assert an affirmative defense while denying having committed the charged offense analyzed two affirmative defenses, entrapment and self-defense, which are materially different from the felony murder affirmative defense.
Since a defendant can be convicted of felony murder even if another person caused the victim’s death, the felony affirmative defense focuses on elements that allow a jury to weigh the defendant’s responsibility and whether the defendant should be convicted of murder for a death they didn’t directly cause, the appeals court continued.
Unlike other affirmative defenses, the elements of the felony murder affirmative defense are distinct from the elements of felony murder, the appeals court noted. The appeals court concluded a defendant doesn’t need to admit felony murder, and thus admit the predicate felony, to assert the felony murder affirmative defense.
Since Gallegos didn’t have to admit to the predicate felony of robbery before having the right to assert the felony murder affirmative defense, and because of some credible evidence supported the affirmative defense, the appeals court held the trial court erred by rejecting Gallegos’ tendered instruction on the felony murder affirmative defense.
The appeals court reversed Gallegos’ felony murder conviction, affirmed his remaining convictions and remanded for a new trial on the felony murder charge.
802 East Cooper, LLC v. Z-GKids, LLC et al.
The Colorado Court of Appeals unanimously affirmed a judgment involving a condominium.
According to the appeals court opinion, the case centers on the severability and ownership of development rights associated with unallocated floor area for four Original Street Condominiums Inc. units in Aspen, Colorado.
The city of Aspen’s land use code limits the amount of floor area that can be developed for buildings on residential lots in the city. The LUC established a formula, the floor area ratio, for calculating the allowable floor area for buildings on a residential lot. It’s defined as the total floor area of all structures on a lot divided by the lot area.
OSC’s condominium declaration was in effect before the floor area ratio got adopted as part of the LUC. The plan brought forward by the declaration was for ownership in fee simple of real property estates that consisted of the area or space contained in each of the apartment units in the building improvement and the co-ownership by the individual and separate owners thereof as tenants in common, of all remaining real property (defined and referred to as the general common elements).
Within the plan, the declaration defined a condo unit as an apartment with an undivided interest in the common elements appurtenant to such apartment and provided each unit and undivided interest in the GEC and limited common elements, if any, appurtenant thereto, should be inseparable and can be conveyed, leased, encumbered, devised or inherited only as a condo unit.
Z-GKids, LLC, Kimberly Raymond, Rickey Wark and Cynthia Wark are the owners of four condo units and 802 East Cooper, LLC is the former owner of unit 1.
When 802 East Cooper sold its condo interest to the Warks in 2019, it purported to reserve ownership of the development rights in unused floor space attributable to the unit. 802 East Cooper also required the Warks to get its written approval before agreeing to any modification of the condominiums’ common elements.
In 2021, without approving or receiving any notice of any development, 802 East Cooper learned Z-GKids intended to use a portion of the OSC’s unallocated floor space to expand its unit. 802 East Cooper initiated the current action against the defendants, asserting claims to quiet title, along with a declaratory judgment, conversion, injunctive relief, civil theft, unjust enrichment and breach of contract.
Under Colorado Rule of Civil Procedure 12(b)(5), the defendants moved to dismiss all of 802 East Cooper’s claims for failure to state a claim which relief can be granted. The district court granted the motion, finding development rights in an unallocated floor area are part of the common elements and inseverable from ownership of the condo units themselves.
802 East Cooper appealed and the Court of Appeals affirmed the judgment.
The appeals court concluded where applicable land use code is silent, but the condo association’s declaration links property rights to ownership of a unit, an entity that has sold a unit cannot retain a reserved right in the development of unallocated floor space.
The Colorado Court of Appeals unanimously affirmed an order involving probation.
According to the opinion, a jury found Bradford Snedeker guilty of two counts of securities fraud and two counts of theft and the district court sentenced him to four years in custody on the securities fraud counts and a consecutive term of one year of work release and 20 years of economic crimes probation on the theft counts.
A division of the Colorado Court of Appeals later vacated one count of securities fraud and one count of theft, but Snedeker’s overall sentence remained unchanged. Snedeker’s prison sentence began in July 2015 and he started work release in June 2018, while entering a day reporting program in October 2018.
In June 2019, the probation department took him into custody and filed a complaint alleging multiple probation violations. Snedeker posted bond the following month. Before Snedeker’s probation revocation hearing, the Colorado Supreme Court issued its opinion in the 2019 case Allman v. Colorado, holding when a court sentences a defendant for multiple offenses in the same case, it cannot impose imprisonment for some and probation for others.
Snedeker moved to dismiss the probation violation complaint, alleging his probation sentence wasn’t legal under Allman. The prosecutor conceded Snedeker should be resentenced and didn’t object to the dismissal of the complaint. The complaint was dismissed by the district court and a resentencing hearing was set.
At the February 2021 resentencing, prosecutors recommended a 12-year incarceration sentence because, as alleged in the probation violation complaint, Snedeker continued to engage in the same behavior leading to his convictions. Snedeker asked the court to terminate his sentence.
The court resentenced Snedeker to 20 years of probation and granted four years of credit for time served. The court also resentenced Snedeker in another case, revoking the original 15-year economic crimes probation sentence and resentenced him to four years in custody, according to the appeals court opinion. The court ordered the sentences in both cases to run concurrently.
On appeal of the resentencing, Snedeker contended his new sentence is illegal under Allman because he will complete both a prison and probation sentence in the same case. He also contended, for the first time on appeal, his new sentence is illegal under Allman because the district court simultaneously imposed both prison and probation sentences in separate cases.
The appeals court affirmed the order.
It held a court can resentence a defendant to probation after the defendant served the prison portion of a prison-plus-probation sentence that was illegal under Allman. The appeals court held Allman’s ban on prison-plus-probation sentences doesn’t apply when a court sentences a defendant to prison for an offense in one case and to probation for an offense in another case as part of a global disposition of charges.