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ADVANCE SHEET HEADNOTE May 26, 2020
2020 CO 43
No. 17SC830, People v. Espinoza—Sentencing and Punishment—Concurrent and Consecutive Sentencing—Crimes of Violence.
The People petitioned for review of the court of appeals’ judgment reversing
the trial court’s imposition of consecutive sentences for Espinoza’s ten convictions
for the attempted first degree murder of ten different people. Reasoning that
Espinoza’s ten attempted murder convictions were separate crimes of violence, the
trial court considered itself bound by statute to impose consecutive sentences. The
intermediate appellate court, however, found that because the ten convictions
were premised on a “single act of fire-setting,” they were supported by identical
evidence, notwithstanding the fact that each conviction required proof that the
defendant attempted to kill a different person. Further concluding that
convictions for multiple crimes of violence that are supported by identical
evidence do not fall within the statutory mandate to sentence consecutively, the
intermediate appellate court reversed and remanded for resentencing.
The supreme court reversed, holding that even according to the
intermediate appellate court’s understanding of the term “separate crimes of violence,” Espinoza’s convictions required consecutive sentences pursuant to
section 18-1.3-406(1)(a), C.R.S. (2019), because offenses defined in terms of their
victimization of another and committed against different victims are not capable
of being proved by identical evidence within the contemplation of section
18-1-408(3), C.R.S. (2019). The Supreme Court of the State of Colorado 2 East 14th Avenue • Denver, Colorado 80203
Supreme Court Case No. 17SC830 Certiorari to the Colorado Court of Appeals Court of Appeals Case No. 15CA1920
Petitioner:
The People of the State of Colorado,
v.
Respondent:
Martin Castruita Espinoza.
Judgment Reversed en banc May 26, 2020
Attorneys for Petitioner: Philip J. Weiser, Attorney General Megan C. Rasband, Assistant Attorney General Denver, Colorado
Attorney for Respondent: Lauretta A. Martin Neff Grand Junction, Colorado
CHIEF JUSTICE COATS delivered the Opinion of the Court. ¶1 The People petitioned for review of the court of appeals’ judgment reversing
the trial court’s imposition of consecutive sentences for Espinoza’s ten convictions
for the attempted first degree murder of ten different people. Reasoning that
Espinoza’s ten attempted murder convictions were separate crimes of violence, the
trial court considered itself bound by statute to impose consecutive sentences. The
intermediate appellate court, however, found that because the ten convictions
were premised on a “single act of fire-setting,” they were supported by identical
evidence, notwithstanding the fact that each conviction required proof that the
defendant attempted to kill a different person. Further concluding that
convictions for multiple crimes of violence that are supported by identical
evidence do not fall within the statutory mandate to sentence consecutively, the
intermediate appellate court reversed and remanded for resentencing.
¶2 Because offenses defined in terms of their victimization of another and
committed against different victims are not capable of being proved by identical
evidence within the contemplation of section 18-1-408(3), C.R.S. (2019), and
because even according to the appellate court’s understanding of the term
“separate crimes of violence,” Espinoza’s convictions therefore required
consecutive sentences pursuant to section 18-1.3-406(1)(a), C.R.S. (2019), the
judgment of the court of appeals is reversed.
2 I.
¶3 Martin Castruita Espinoza was charged with first degree arson, third degree
assault, and attempted first degree murder (extreme indifference), with
corresponding crime-of-violence counts, arising out of an incident in which a fire
raged through his mother’s apartment. As pertinent to the question presented on
certiorari, he was convicted of 10 counts of attempted extreme indifference
murder, for which he was sentenced consecutively to a total term of 160 years in
the custody of the Department of Corrections.
¶4 Evidence was presented at trial from which the trier of fact could find that
on March 4, 2014, the defendant started a fire on the balcony of his mother’s
apartment, which spread throughout the apartment building and to a neighboring
building. The ten people who were named victims of the attempted murder
counts were inside the defendant’s mother’s apartment building during the fire
but were able to escape and survive.
¶5 In imposing sentences for the attempted murder convictions, the sentencing
court considered itself bound by section 18-1.3-406(1)(a), which requires a
sentencing court to impose consecutive sentences for offenses arising out of the
same incident committed as separate crimes of violence. As to each of the
defendant’s attempted murder convictions, the sentencing court specified that the
3 conviction applied to a different count and a different victim, noted that the
offense was found to be a crime of violence, and imposed a sixteen-year sentence
to the Department of Corrections to be served consecutively with the other nine
attempted murder convictions.
¶6 The defendant appealed and, as relevant here, challenged the trial court’s
imposition of consecutive sentences. The intermediate appellate court reversed.
In reliance on prior holdings of that court, the division understood the reference
in section 18-1.3-406(1)(a) to “separate crimes of violence” to encompass only those
crimes of violence not supported by identical evidence, and in reliance on prior
holdings of this court concerning the meaning of the phrase “supported by
identical evidence” for purposes of the concurrent sentence requirement of section
18-1-408(3), the division held that the crimes of violence in this case were
supported by identical evidence and therefore were not “separate crimes of
violence” for which consecutive sentences would be mandated. Because the trial
court felt constrained to sentence consecutively, the division remanded for the trial
court to exercise its discretion whether to sentence consecutively or concurrently.
¶7 We granted the People’s petition for certiorari review to consider whether
the court of appeals erred in finding that the defendant’s ten attempted murder
convictions were supported by identical evidence and for that reason were not
separate crimes of violence giving rise to mandatory consecutive sentencing.
4 II.
¶8 We have long held that in the absence of legislation to the contrary,
sentencing courts in this jurisdiction have the inherent power to order sentences
for different convictions to be served either consecutively or
concurrently. Marquez v. People, 2013 CO 58, ¶ 6, 311 P.3d 265, 267 (citing Qureshi v.
Dist. Court, 727 P.2d 45, 46–47 (Colo. 1986), and People v. Self, 615 P.2d 693, 695
(Colo. 1980)). Both sections 18-1.3-406(1)(a) and 18-1-408(3) of the revised statutes
contain provisions restricting a sentencing court’s discretion in this regard—the
former mandating consecutive sentences under certain circumstances related to
the commission of crimes of violence and the latter mandating concurrent
sentences under certain circumstances related to the nature of the evidence by
which the offenses in question are proved.
¶9 More particularly, section 18-1.3-406 categorizes certain crimes as crimes of
violence and specifies how crime-of-violence status is to be established and
outlines the specific consequences of a conviction. Subsection (1)(a) of that section
mandates that “a person convicted of two or more separate crimes of violence
arising out of the same incident” shall be sentenced for such crimes “so that his or
her sentences are served consecutively rather than concurrently.” See Marquez,
¶ 15, 311 P.3d at 271 (equating “incident” with “criminal episode”). Section
18-1-408, on the other hand, treats of the subject of prosecution and conviction of
5 multiple crimes for the same act or conduct, or based on the same act or series of
acts arising from the same criminal episode. It generally limits the number of
convictions a defendant may suffer where the elements of one offense are
definitionally included within another or where the offenses are otherwise
definitionally related in specifically enumerated ways. § 18-1-408(1). Subsection
408(2), however, also requires that under certain circumstances crimes based on
the same act or series of acts arising from the same criminal episode must be joined
in a single prosecution and subsection 408(3) further specifies that if convictions
for crimes so joined are supported by identical evidence, the sentences for those
convictions, except where multiple victims are involved, must run concurrently.
¶10 Relying largely on prior holdings by other divisions of the court of appeals,
the division below accepted as established the proposition that crimes of violence
are “separate” within the meaning of section 18-1.3-406(1)(a) only to the extent that
they were not proved at trial by identical evidence, as contemplated by section
18-1-408(3); and finding that the ten attempted murder convictions in this case
were supported by identical evidence, notwithstanding their involving different
victims, it concluded that consecutive sentences were not mandated. This court
has never similarly construed the term “separate crimes of violence,” as that term
is used in section 18-1.3-406(1)(a), to comprehend only those crimes of violence not
proved by identical evidence at the trial in question, but we need not address that
6 construction today. It is enough here that the defendant’s convictions for
attempting to murder different victims were not, and in fact could not have been,
supported by identical evidence within the contemplation of section 18-1-408(3).
¶11 Since adoption of the 1972 Colorado Criminal Code, we have had occasion
to comment on the identical evidence requirement of section 18-1-408(3) a number
of times, including expressly finding that despite its not actually appearing in the
sentence of that subsection mandating the imposition of concurrent sentences for
acts committed as part of the same criminal episode, it nevertheless was intended
to further limit that provision. See People v. Anderson, 529 P.2d 310, 312 (Colo. 1974)
(construing section 40-1-508(3), C.R.S. (1963 & Supp. 1971), now contained
in section 18-1-408(3)). As we have previously explained, this provision offers a
criminal defendant protections beyond those granted by constitutional jeopardy
and statutory merger guarantees by ensuring that a defendant will not be
consecutively sentenced for multiple offenses committed as part of a single
criminal episode and established by the same evidence, despite their not
technically merging into a single offense. Meads v. People, 78 P.3d 290, 296 (Colo.
2003), abrogated on other grounds by Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.
Although our earlier cases dealt largely with the question of whether the evidence
was such that a jury could, or necessarily did, find that the convictions were
actually based on different acts, necessarily requiring proof by different evidence,
7 see, e.g., People v. Muckle, 107 P.3d 380, 383 (Colo. 2005); Qureshi, 727 P.2d at 47, in
Juhl v. People, 172 P.3d 896, 898 (Colo. 2007), we entertained the inverse question,
whether the evidence supporting separate convictions was similarly not identical,
despite both convictions having been premised on the same criminal act
committed by the defendant.
¶12 In Juhl we held that the defendant’s separate convictions of first degree
assault and vehicular assault for the injuries he caused to the driver of another
vehicle, despite not precisely sharing the same elements, were nevertheless
supported by identical evidence because both were based on “Juhl’s act of
colliding head-on with Mrs. Bailey’s truck while he was engaged in a high-speed
chase to elude the police.” Id. at 902–03. The court of appeals below apparently
understood our holding concerning the scope of the “identical evidence” inquiry
in that case to limit the relevant inquiry concerning “identical evidence” to nothing
more than proof of the volitional, or voluntary, act required for the commission of
any crime; and therefore in answering the question whether the defendant’s
convictions were supported by identical evidence, it considered only whether the
defendant’s volitional “act of fire-setting” was the same “act” upon which all of
his attempted murder convictions were premised. As we would later emphasize
in Schneider v. People, 2016 CO 70, ¶ 23, 382 P.3d 835, 841, however, in Juhl we made
no attempt to further explain precisely what we meant by the defendant’s “act,”
8 or “conduct,” or further describe the circumstances and consequences necessarily
included within the definition or scope of criminally proscribed conduct.
Similarly, in Schneider itself we had no need to define these terms
comprehensively. See id. at ¶¶ 23–24, 382 P.3d at 841–42 (finding that two
convictions for sexual assault were not supported by identical evidence despite
being based on a single continuous penetration, where each crime required
separate proof of circumstances necessarily attending the defendant’s voluntary
act for it to qualify as sexual assault, in the one case the conduct being criminal
only upon proof that the act of penetration was accompanied by sufficient means
to overcome the victim’s will, and in the other, the conduct being criminal only
upon proof that the act was inflicted upon a helpless and nonconsenting victim).
¶13 Again, today we need not attempt such a global definition, capable of
addressing crimes of every nature. It is enough here that an offense defined in
terms of committing an act causing harm to another person can never be
supported by proof that the defendant committed an act causing harm to a
different person, whether or not the defendant’s volitional act causing harm was
the same; and read in context and as a whole, our rationale in Juhl suggested
nothing to the contrary. In Juhl we sought to distinguish crimes differing in their
elements from crimes supported by different evidence, holding in that case simply
that the defendant’s convictions of the first degree assault and the vehicular
9 assault of the same victim were supported by identical evidence because although
the elements of the two crimes differed and neither crime was fully included
within the other, proof of the elements of both offenses in that case was necessarily
inferred from the same fund of evidence—evidence of “Juhl’s act of colliding head-
on with Mrs. Bailey’s truck while he was engaged in a high-speed chase to elude
the police.” 172 P.3d at 902–03. Nowhere did we suggest that the two offenses
were supported by identical evidence simply because the defendant’s volitional
act of driving, irrespective of attendant circumstances and consequences necessary
to infer the elements of each crime of assault, was proven by the same evidence.
¶14 More directly, however, our opinion in Juhl made clear that there was a
second victim of the defendant’s “act of colliding head-on with Mrs. Bailey’s truck
while he was engaged in a high-speed chase to elude the police,” who was killed
by this same conduct of the defendant. Id. at 898, 902. As we noted in the opinion,
Juhl was therefore also convicted of homicide for killing the driver’s passenger.
Id. at 898. Rather than concluding that sentences for all of the crimes committed
by the defendant’s same act of colliding head-on with Mrs. Bailey’s truck were
required to run concurrently, we concluded that the convictions involving Mrs.
Bailey must run concurrently with each other, but we left unaffected the
defendant’s consecutive sentence for causing the death of her passenger. Id. at
898–99, 903. In Juhl we had little cause to dwell on this distinction since it had long
10 been accepted that crimes involving multiple victims do not fall within the
mandate of section 18-1-408(3) for concurrent sentencing. See People v. Grant,
30 P.3d 667, 670 (Colo. App. 2000) (“[W]hen multiple convictions arise from crimes
committed upon different victims, the evidence is not identical.”); People v. Wafai,
713 P.2d 1354, 1357 (Colo. App. 1985) (“[D]efendant’s multiple convictions arise
from crimes committed upon different victims; therefore, the evidence is not
identical . . . .”); People v. Cullen, 695 P.2d 750, 752 (Colo. App. 1984) ( “[W]here . . .
multiple convictions arise from crimes committed upon multiple victims, the
evidence is not identical and therefore [section 18-1-408(3)] is inapplicable.”); see
also Anderson, 529 P.2d at 312 (determining that the evidence supporting the two
assaults was not identical where “[t]wo separate criminal acts were committed
against two different persons”).
¶15 Were it not sufficiently clear from the common understanding of the terms
themselves that a crime defined as an act causing the death of one person is not
proved by evidence demonstrating that the same act by the defendant also caused
the death of another person, some thirty-five years ago the legislature expressly
amended its original articulation of the concurrent sentence mandate of section
18-1-408(3) by clarifying its intent that the mandate not apply to crimes involving
multiple victims, notwithstanding their being based on the same act or series of
acts arising from the same criminal episode and being joined as multiple counts in
11 a single prosecution. Ch. 147, sec. 1, § 18-1-408, 1985 Colo. Sess. Laws 661, 661
(adding final clause to the subsection reading: “except that, where multiple victims
are involved, the court may, within its discretion, impose consecutive sentences”).
¶16 We find unpersuasive, if not positively casuistic, the assertion that by using
the term “except” in section 18-1-408(3), the legislature evidenced a nuanced intent
not to circumscribe the meaning of “identical evidence” itself, but merely to
exclude from mandatory concurrent sentencing crimes proved by identical
evidence when they involve multiple victims. This construction would, without
more, not only place far too heavy a burden on the word “except,” but if we
considered that term as consequential as asserted, it would necessitate a more
detailed consideration of the intermediate appellate court’s definition of
“separate” crimes of violence in section 18-1.3-406(1)(a) as those crimes not
“supported by identical evidence” as that phrase appears in section 18-1-408(3).
¶17 Because there is no suggestion here of applying this legislative action
retroactively, our prior case law distinguishing a legislative intent to clarify from
an intent to change an existing statute is in no way at issue. Cf. Union Pac. R.R. v.
Martin, 209 P.3d 185, 188–89 (Colo. 2009) (distinguishing legislative clarification
from law change in the context of a retroactivity analysis); City of Colorado
Springs v. Powell, 156 P.3d 461, 464–65 (Colo. 2007) (same). Whatever may have
been the legislature’s motivation for singling out for specific mention crimes
12 involving multiple victims, its goal in amending the statute was clearly to ensure
that punishment for crimes involving multiple victims not be limited to concurrent
sentences, even where they have been joined in a single prosecution for having
been committed by the same act or series of acts. Nothing in this amendment to
section 18-1-408(3) can reasonably have been intended to affect the legislature’s
separate consecutive sentence mandate for crimes of violence in section
18-1.3-406(1)(a).
¶18 In Juhl we concluded that both the defendant’s conviction for committing
first degree assault of Mrs. Bailey and his conviction for committing vehicular
assault of Mrs. Bailey “were supported by evidence of the collision with Mrs.
Bailey’s truck and the circumstances under which that collision occurred.”
172 P.3d at 903. Although we were there intent on distinguishing convictions
based on the same act from convictions based on separate acts, the case before us
was limited to a situation involving not only the same act, but also crimes
committed under the same circumstances, causing the same injuries, to the same
victim. Id. at 899, 902–03. Our rationale in Juhl cannot therefore be reasonably
understood so broadly as to suggest that multiple crimes perpetrated against
different victims by the same volitional act must be considered supported by
identical evidence, and were that the case, our ultimate remand order in Juhl
would have arguably been inconsistent with that very proposition.
13 III.
¶19 Much like the other statutory methods of committing first degree murder,
extreme indifference murder is ultimately defined in terms of engaging in conduct
that causes the death of another person. Compare § 18-3-102(1)(d), C.R.S. (2019),
with § 18-3-102(1)(a)–(c), (e)–(f). The defendant’s conduct is proscribed as criminal
conduct only to the extent that it has a particular effect on the life of another
person, § 18-3-102(1)(d), and therefore proof of the criminal conduct committed by
the defendant cannot be distinguished from proof of the injury caused by it. The
conduct proscribed by the statute is particular conduct resulting in the death of
another person. Id. Whether or not the evidence presented at trial supports the
proposition that the defendant committed a single voluntary act—as for instance
bombing a gathering of people—the evidence that he killed one particular person
simply cannot prove, without additional evidence, that he also killed another
person. Were the language used by the legislature not clear enough, it would
nevertheless be difficult, without more, to imagine that the legislature intended
for a defendant convicted of causing the death of many people to be punished no
more harshly than a defendant convicted of causing the death of a single person.
¶20 To the extent the defendant’s demand for concurrent sentencing in this
particular case has even intuitive appeal, that appeal stems from the somewhat
counterintuitive way in which attempt liability has been construed in this
14 jurisdiction—not from any legislative mandate of concurrent sentencing for crimes
proved by identical evidence. See, e.g., Montoya v. People, 2017 CO 40, ¶ 17, 394 P.3d
676, 683–84. Whether there was sufficient evidence, and whether the jury was
properly instructed, to find that the defendant knowingly engaged in conduct
strongly corroborative of his purpose to create a grave risk of death to each of the
victims are questions not before this court, but consecutive sentences are
mandated for proper convictions of the attempted first degree murder of multiple
victims.
IV.
¶21 Because offenses defined in terms of their victimization of another and
committed against different victims are not capable of being proved by identical
evidence within the contemplation of section 18-1-408(3), and because even
according to the appellate court’s understanding of the term “separate crimes of
violence,” Espinoza’s convictions therefore required consecutive sentences
pursuant to section 18-1.3-406(1)(a), the judgment of the court of appeals is
reversed.