The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by the division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY June 25, 2020
2020COA99
No. 16CA2136, People v. Tran — Crimes — Second Degree Burglary; Constitutional Law — Eighth Amendment — Proportionality Review
A division of the court of appeals affirms Daniel Roy Tran’s
convictions for second degree burglary and possession of burglary
tools.
But the division remands for the trial court to conduct a new
abbreviated proportionality review of Tran’s sentence considering
the supreme court’s recent decision in Wells-Yates v. People, 2019
CO 90M. In so doing, the court of appeals addresses an issue of
first impression: whether second degree burglary is still a per se
grave and serious offense after Wells-Yates.
Applying the framework set out in Wells-Yates, the division
concludes that, in its second abbreviated proportionality review, the trial court should not treat Tran’s convictions for second degree
burglary as per se grave and serious offenses, but should analyze
the facts and circumstances of each offense to determine whether it
is grave and serious. COLORADO COURT OF APPEALS 2020COA99
Court of Appeals No. 16CA2136 El Paso County District Court No. 15CR986 Honorable Larry E. Schwartz, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Daniel Roy Tran,
Defendant-Appellant.
JUDGMENT AFFIRMED, ORDER REVERSED, AND CASE REMANDED WITH DIRECTIONS
Division IV Opinion by JUDGE FURMAN Welling and Pawar, JJ., concur
Announced June 25, 2020
Philip J. Weiser, Attorney General, Majid Yazdi, Senior Assistant Attorney General, Denver, Colorado, for Plaintiff-Appellee
Megan A. Ring, Colorado State Public Defender, Stephen Arvin, Deputy State Public Defender, Denver, Colorado, for Defendant-Appellant ¶1 A jury found defendant, Daniel Roy Tran, guilty of second
degree burglary and possession of burglary tools. The trial court
sentenced Tran to twenty-four years in the custody of the
Department of Corrections (DOC).
¶2 On appeal, Tran mounts two challenges to his convictions and
one challenge to his sentence.
¶3 Regarding his convictions, Tran contends that (1) the trial
court abused its discretion and violated his constitutional right to
confront the witnesses against him by admitting into evidence a
document that contained inadmissible testimonial hearsay and (2)
the prosecutor committed reversible misconduct during rebuttal
closing argument.
¶4 Tran also contends that the trial court erred by denying his
request for an extended proportionality review of his sentence.
¶5 Because we conclude that (1) the trial court did not abuse its
discretion or violate Tran’s Confrontation Clause rights by admitting
the document and (2) the prosecutor did not commit reversible
misconduct, we affirm Tran’s convictions.
¶6 But we remand for the trial court to conduct a new
abbreviated proportionality review of Tran’s sentence considering
1 the supreme court’s recent decision in Wells-Yates v. People, 2019
CO 90M.
I. The Burglary
¶7 Employees at a Colorado Springs Walmart caught Tran
shoplifting from the store. He tried to take eleven Blu-ray discs and
one digital camera. Together, these items were worth $300.
¶8 When the employees apprehended Tran, they looked him up in
a database where Walmart records the names of shoplifters. They
discovered that Tran had been caught shoplifting from Walmart
three times before. They also discovered that, after the most recent
shoplifting incident, on June 28, 2014, Walmart had issued Tran
the following “trespass notice.”
2 ¶9 The trespass notice informed Tran that he was no longer
“allowed on property owned by [Walmart] . . . or in any area subject
3 to [Walmart’s] . . . control.” And it warned him that if he tried to
enter Walmart property, Walmart “may contact law enforcement
and request [he] be charged with criminal trespass.”
¶ 10 Tran printed and signed his name under language in the
trespass notice that said, in relevant part, “I have read and
understand this Notice or, in the alternative, have had it read to me
and understand and acknowledge that as of 28 day of June, 2014, I
am prohibited from entering [Walmart] property.”
¶ 11 The Walmart employees contacted the police, and Tran was
arrested.
¶ 12 The trespass notice created a big problem for Tran because it
showed that he “knowingly . . . enter[ed] unlawfully in” Walmart’s
property. § 18-4-203(1), C.R.S. 2019. This meant that the
prosecution could charge him with second degree burglary, a class
4 felony, instead of just misdemeanor theft. See id.; § 18-4-
401(2)(d), C.R.S. 2019.
¶ 13 The prosecution introduced the trespass notice, among other
evidence, at trial.
¶ 14 After trial, the jury found Tran guilty of second degree burglary
and possession of burglary tools.
4 ¶ 15 Later, the trial court found that Tran had six previous felony
convictions and adjudicated him a habitual criminal. The habitual
criminal statute required the trial court to sentence Tran to an
aggregate of twenty-four years in the custody of the DOC. See § 18-
1.3-401(1)(a)(V)(A), C.R.S. 2019; § 18-1.3-801(2)(a), C.R.S. 2019.
II. The Trespass Notice
¶ 16 Tran contends the trial court erred, for two reasons, by
admitting the trespass notice. First, he contends that it contained
inadmissible hearsay. Second, he contends that it was testimonial
evidence and that admitting it violated his constitutional right to
confront the witnesses against him. See U.S. Const. amends. VI,
XIV.
¶ 17 We perceive no reversible error.
A. Hearsay
¶ 18 Hearsay is a statement other than one made by the declarant
while at the trial or hearing, offered in evidence to prove the truth of
the matter asserted. CRE 801(c). A statement “is (1) an oral or
written assertion or (2) nonverbal conduct of a person, if it is
intended by him to be communicative.” CRE 801(a).
5 ¶ 19 Generally, hearsay statements are inadmissible. CRE 802.
But some statements are excluded from the rule against hearsay,
and are admissible, regardless of whether they are introduced for
the truth of the matter asserted. See generally CRE 801(d). And a
hearsay statement is admissible if it falls under one of the
enumerated exceptions to the hearsay rule. See generally CRE 803,
804.
¶ 20 We review a trial court’s evidentiary rulings for an abuse of
discretion. People v. Phillips, 2012 COA 176, ¶ 63.
¶ 21 Tran construes the entire trespass notice as one statement.
The People counter that the trespass notice contains two distinct
statements.
¶ 22 We agree with the People that the trespass notice contains two
statements: (1) Walmart’s statement that Tran is no longer allowed
on Walmart property and (2) Tran’s statement that he read and
understood the notification. See CRE 801(a).
¶ 23 We will analyze the admissibility of each statement in turn.
1. Walmart’s Statement
¶ 24 This statement read, in relevant part,
6 This document constitutes formal notice and warning that you are no longer allowed on property owned by [Walmart] . . . or in any area subject to [Walmart’s] . . . control. . . . Should you elect to ignore this Notice and enter [Walmart’s] . . . property, [Walmart] . . . may contact law enforcement and request you be charged with criminal trespass.
¶ 25 We first conclude that Walmart’s statement was hearsay. The
statement asserted that Tran was “no longer allowed on” Walmart
property. And, to prove that Tran committed second degree
burglary, the prosecution had to prove that Tran “unlawfully”
entered Walmart. § 18-4-203(1). Thus, the prosecution introduced
Walmart’s statement to prove the truth of the matter it asserted.
See CRE 801(c).
¶ 26 The trial court admitted Walmart’s statement under the
business records exception, CRE 803(6). That exception allows a
court to admit into evidence a “record” of
acts, events, conditions, opinions, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the . . . record . . . unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness.
7 CRE 803(6).
¶ 27 Tran contends that Walmart’s statement does not fall under
the business records exception because it was created in
anticipation of criminal litigation. In support of this contention,
Tran points us to
a police officer’s trial testimony suggesting that Walmart
issues trespass notices so police can “potentially file
burglary charges” against shoplifters;
language from the trespass notice warning that Walmart
“may contact law enforcement and request you be
charged with criminal trespass”; and
the prosecutor’s comment during rebuttal closing
argument that Walmart issues trespass notices because
“you, ladies and gentlemen, get to see it. Because this is
them giving proof.”
¶ 28 To address Tran’s contention, we first need to step back and
examine the rationale behind the business records exception and
why documents prepared in anticipation of litigation do not fall
within this exception.
8 ¶ 29 The rationale behind the business records exception is that
businesses have a strong incentive to keep accurate and reliable
records of their regular affairs. See Schmutz v. Bolles, 800 P.2d
1307, 1312 (Colo. 1990); see also Jordan v. Binns, 712 F.3d 1123,
1135 (7th Cir. 2013) (explaining the rationale behind the similar
federal rule). And, “the regularity of creating such records leads to
habits of accuracy.” Jordan, 712 F.3d at 1135. Thus, business
records are presumptively reliable. Id.; see also People v. Flores-
Lozano, 2016 COA 149, ¶ 20.
¶ 30 But documents prepared in anticipation of litigation do not
have the same guarantees of reliability. Flores-Lozano, ¶ 20; see
also Melendez-Diaz v. Massachusetts, 557 U.S. 305, 321 (2009);
Palmer v. Hoffman, 318 U.S. 109, 113-14 (1943); People v. Stribel,
199 Colo. 377, 380, 609 P.2d 113, 115 (1980). Unlike a business
keeping records of its normal activities, a business preparing
records for litigation has a strong incentive to portray the facts in a
way that will help it avoid liability. Jordan, 712 F.3d at 1135. And
businesses do not routinely prepare these documents. See Palmer,
318 U.S. at 113-14; Timberlake Constr. Co. v. U.S. Fid. & Guar. Co.,
71 F.3d 335, 342 (10th Cir. 1995) (“[O]ne who prepares a document
9 in anticipation of litigation is not acting in the regular course of
business.”). Thus, documents prepared in anticipation of litigation
are presumptively unreliable and are not admissible under CRE
803(6). Flores-Lozano, ¶ 20.
¶ 31 With these principles in mind, we conclude that Walmart’s
statement in the trespass notice was not prepared in anticipation of
litigation. We reach this conclusion for a few reasons.
¶ 32 First, Walmart’s statement warned Tran that he was not
allowed on Walmart property and that if he entered Walmart
property again, he could face criminal prosecution. This language
suggests that the statement’s purpose was to deter criminal
litigation, not to prepare for it.
¶ 33 Second, at the time Walmart issued the trespass notice to
Tran, there was nothing to litigate. If Tran had complied with the
notice, there would have been no criminal litigation. See Flores-
Lozano, ¶ 19.
¶ 34 Third, the reliability concerns associated with documents
prepared in anticipation of litigation — an incentive to deceive and a
lack of routine practice in making the document — are not present
here. Walmart was simply informing Tran that he could no longer
10 enter its property. Walmart had no incentive to misrepresent this
fact to avoid liability. And the undisputed record shows that
Walmart routinely issued trespass notices to shoplifters across the
country.
¶ 35 Accordingly, we conclude that the trial court did not abuse its
discretion in admitting this statement under CRE 803(6).
2. Tran’s Statement
¶ 36 The second “statement” in the trespass notice was Tran’s
signature.
¶ 37 Tran printed and signed his name under a block of text that
read, “I have read and understand this Notice or, in the alternative,
have had it read to me and understand and acknowledge that as of
28 day of June, 2014, I am prohibited from entering Walmart Stores
Inc., property. . . .”
¶ 38 We acknowledge that a signature, by itself, may not always be
a “statement” within the meaning of CRE 801(a). But, any “written
assertion” is a statement under the Rules of Evidence. See id. And
by printing and signing his name under a block of text that said, “I
have read and understand this Notice,” Tran was asserting that he
had read and understood the trespass notice.
11 ¶ 39 We conclude that this statement was not hearsay because it
was the statement of a party opponent. We reach this conclusion
for the following reasons.
¶ 40 First, under CRE 801(d)(2)(A), a statement is not hearsay if
“[t]he statement is offered against a party” and is “the party’s own
statement in either an individual or a representative capacity.”
Tran’s statement falls under this rule. He made the statement.
And the prosecution offered the statement against him to prove that
he knowingly and unlawfully entered Walmart. See § 18-4-203(1).
¶ 41 Second, we disagree with Tran’s contention that there is no
evidence that he was the person who signed the document. At trial,
a Walmart employee testified that he issued a new trespass notice
to Tran on the date of the charged offenses. The employee testified
that Tran’s signature on the trespass notice from the date of the
charged offenses “appeared to be similar” to Tran’s signature on the
June 28, 2014, trespass notice.
¶ 42 This employee also testified that he used Tran’s date of birth
and photograph from Walmart’s records to confirm that Tran was
the same person to whom Walmart had issued the June 28, 2014,
trespass notice.
12 ¶ 43 Finally, we are not persuaded by Tran’s contention that we
should not affirm his convictions on a ground that the prosecution
did not rely on at trial. We may affirm the trial court’s evidentiary
ruling on any ground supported by the record. Phillips, ¶ 63.
B. Confrontation Clause
¶ 44 Tran next contends that the trial court violated his federal
constitutional right to confront the witnesses against him by
admitting the trespass notice. We conclude that (1) Tran’s own
statement did not implicate the Confrontation Clause and (2) the
trial court did not commit plain error by admitting Walmart’s
statement.
¶ 45 The Sixth Amendment of the United States Constitution
guarantees that, “[i]n all criminal prosecutions, the accused shall
enjoy the right . . . to be confronted with the witnesses against
him.”
¶ 46 The Supreme Court has construed the Sixth Amendment’s
Confrontation Clause to bar the admission of testimonial hearsay
against a criminal defendant unless the declarant is unavailable to
testify at trial and the defendant has had a prior opportunity to
13 cross-examine the declarant. Crawford v. Washington, 541 U.S. 36,
68 (2004).
¶ 47 A hearsay statement is testimonial if it was made “under
circumstances which would lead an objective witness reasonably to
believe that the statement would be available for use at a later
trial.” Melendez-Diaz, 557 U.S. at 310 (quoting Crawford, 541 U.S.
at 51-52); Phillips, ¶ 78.
¶ 48 Whether a hearsay statement falls under an exception to the
rule against hearsay is immaterial to whether that statement
violates the Confrontation Clause. See People v. Fry, 92 P.3d 970,
978-79 (Colo. 2004) (“Although admissibility under a hearsay
exception may have lent support to a finding of reliability under the
Roberts test, in light of Crawford, such a determination is no longer
relevant.”); Stevens v. People, 29 P.3d 305, 311 (Colo. 2001),
overruled on other grounds by Fry, 92 P.3d 970 (“Although an out-
of-court statement may be admissible because it falls within an
exception to the hearsay rule, the statement must nevertheless be
excluded at a criminal trial if admitting it into evidence would
deprive the defendant of his constitutional right to be confronted
with the witnesses against him.”).
14 ¶ 49 We review de novo whether the trial court violated Tran’s
confrontation rights by admitting the trespass notice into evidence.
Phillips, ¶ 85. Because Tran did not raise a Confrontation Clause
objection at trial, we apply the plain error standard of reversal.
Hagos v. People, 2012 CO 63, ¶ 14. Under this standard, we will
reverse only if the trial court committed an “obvious and
substantial” error that “so undermined the fundamental fairness of
the trial itself so as to cast serious doubt on the reliability of the
judgment of conviction.” Id. (quoting People v. Miller, 113 P.3d 743,
750 (Colo. 2005)).
1. Tran’s Statement
¶ 50 We first conclude that the Confrontation Clause did not apply
to Tran’s statement in the trespass notice.
¶ 51 As noted, the Confrontation Clause guarantees that a
defendant shall have the right to confront the “witnesses against
him,” but it does not guarantee him the right to confront himself.
U.S. Const. amend. VI; see also United States v. Orm Hieng, 679
F.3d 1131, 1140 (9th Cir. 2012) (“[A] defendant cannot complain
that he was denied the opportunity to confront himself.”); United
States v. Brown, 441 F.3d 1330, 1358-59 (11th Cir. 2006) (same).
15 ¶ 52 Thus, the admission of Tran’s own statement did not violate,
or even implicate, his rights under the Federal Confrontation
Clause.
2. Walmart’s Statement
¶ 53 We next conclude that the trial court did not commit plain
error in admitting Walmart’s statement in the trespass notice. We
reach this conclusion, without deciding whether Walmart’s
statement was testimonial, because the evidence was cumulative.
¶ 54 Tran points out that the crucial issue at trial was whether he
knew that he could not lawfully enter Walmart property. See § 18-
4-203(1). But Tran’s statement in the trespass notice
independently established that he knew he was not allowed to enter
Walmart property. Thus, because Walmart’s statement was
cumulative of Tran’s statement on this point, the court did not
plainly err by admitting Walmart’s statement. See People v. Joyce,
68 P.3d 521, 524 (Colo. App. 2002) (concluding that admitting
hearsay statements was not plain error because the statements
were cumulative of other evidence); see also People v. Douglas, 2015
COA 155, ¶ 41 (concluding that the trial court did not commit plain
16 error in admitting lay testimony that was cumulative of properly
admitted expert testimony).
¶ 55 Accordingly, we cannot say that any error in admitting
Walmart’s statement was “obvious and substantial,” or so
“undermined the fundamental fairness of the trial itself so as to
cast serious doubt on the reliability of the judgment of conviction.”
Hagos, ¶ 14 (quoting Miller, 113 P.3d at 750).
III. Prosecutor’s Rebuttal Closing Argument
¶ 56 Tran next contends that the prosecutor committed reversible
misconduct at three points during his rebuttal closing argument.
We disagree.
A. Prosecutorial Misconduct
¶ 57 Prosecutors may not offer rebuttal closing arguments that
“inflame the passions and prejudices of the jury, denigrate defense
counsel, misstate the evidence, or assert a personal opinion as to
the credibility of witnesses.” People v. Nardine, 2016 COA 85, ¶ 35.
Instead, a prosecutor’s argument must focus on the “evidence and
reasonable inferences to be drawn” from the evidence. Id. (citing
People v. Ferrell, 200 Colo. 128, 131, 613 P.2d 324, 326 (1980)).
17 ¶ 58 Still, prosecutors have “wide latitude in the language and
presentation style used” during closing argument. Domingo-Gomez
v. People, 125 P.3d 1043, 1048 (Colo. 2005). This is especially true
when a prosecutor is responding to defense counsel’s closing
argument. People v. Lovato, 2014 COA 113, ¶ 64.
¶ 59 Because Tran did not object to the prosecutor’s rebuttal
closing argument, we review for plain error and will reverse only if
the prosecutor committed misconduct that was “flagrantly,
glaringly, or tremendously improper.” Wend v. People, 235 P.3d
1089, 1097 (quoting Domingo-Gomez, 125 P.3d at 1053).
B. Analysis
¶ 60 We first place the prosecutor’s challenged remarks in their
context. We will highlight the specific comments with which Tran
takes issue.
¶ 61 Defense counsel’s closing argument challenged the evidence
supporting the “knowing” element of second degree burglary. See
§ 18-4-203(1). She pointed out that Tran had received the trespass
notice eight months before the date of the charged offenses. She
also pointed out that Tran received the trespass notice at a different
Walmart store.
18 ¶ 62 The prosecutor’s challenged comments during rebuttal closing
argument responded to these points.
¶ 63 First, the prosecutor reminded the jury that the prosecution
had the burden to prove Tran’s guilt beyond a reasonable doubt.
He explained that “[t]he defense does not have to do a single thing
in this case. They could sit over there, and if I haven’t proven this
case beyond a reasonable doubt, you have to find [Tran] not guilty.”
¶ 64 Then, he began to challenge the defense theory of the case:
But, when they do have some sort of a theory, you get to ask yourself, [“]What supports that theory[?] What evidence do you have that really supports it? What are the things that you can use?[”] You can use testimony. You can use photos, physical or tangible evidence. If we brought some of those items in, you can’t use vague or speculative hunches or guesses. That whole notion of there could be an identical twin out there, that’s a speculation. That’s a guess.
Think about how bad our legal system would be when people were using those kind of things. You can’t use mere possibilities. They are unsupported by the actual evidence that you have, if they don’t rise to the level of reasonable doubt. There is all possibilities out there [sic]. But it has to rise to the level of reasonable doubt.
(Emphasis added.)
19 ¶ 65 Later, he challenged the defense theory on different grounds:
Their theory is that he had no idea what was really going on. He realized he wasn’t allowed to be coming back to Walmart. By the way, who would ever make that confusion of, oh, yeah, you guys are fine if I go shoplift at the other store, right? That’s no big deal. I can go do that. You don’t want me to shop at this one store over here.
That doesn’t make any sense. Why is [it] that they are arguing all of this if their theory doesn’t fit with the evidence. There is a simple saying, [“]You admit what you can’t deny, and you deny what you can’t admit.[”] What it basically means, it’s the notion of, look, we have to — we can’t deny all of this stuff. So, we will go ahead and admit some of it. It’s kind of like minimization, damage control . . . .
That’s exactly what the defense strategy is in this case. Folks, don’t let them get away with this. This seriously undermines the criminal justice system. This seriously minimized what happened in this case. Walmart deserves protections of law. Just because they come in with the theory of, [“]Admit what you can’t deny, and deny what you can’t admit,[”] doesn’t mean they should get away with it . . . .
The law is very clear on this. You commit the crime, you have to be convicted of it . . . . Every bit of evidence points to the fact that the defendant is guilty of the second degree burglary and possession of burglary tools. Folks, you need to find him guilty. You need to hold him accountable for this.
20 ¶ 66 Tran contends that the prosecutor committed reversible
misconduct by telling the jurors that Tran should be held
“accountable” because his defense “seriously undermines the
criminal justice system” and by warning the jurors “how bad our
legal system would be” were Tran’s defense to prevail. He also
asserts that the prosecutor improperly denigrated defense counsel
and Tran by using the terms “they” and “them.”
¶ 67 We conclude that the prosecutor’s remarks, taken in context,
were not so improper as to constitute plain error. We reach this
conclusion for the following reasons.
¶ 68 First, the prosecutor’s argument that the jury “need[ed] to hold
[Tran] accountable” was not improper because the prosecutor made
this comment immediately after arguing that the evidence
established Tran’s guilt and that if “[y]ou commit the crime, you
have to be convicted of it.”
¶ 69 Second, the prosecutor argued that Tran’s theory of defense
relied on “mere possibilities” and “speculation.” But the prosecutor
emphasized that the prosecution had the burden to prove Tran’s
guilt beyond a reasonable doubt. Then, he encouraged the jury to
focus on the evidence, not on “mere possibilities” or “speculation.”
21 This statement was proper because it tracks how the Colorado
model jury instructions define “reasonable doubt.” See COLJI-
Crim. E:03 (2019) (“[Reasonable doubt] is not a vague, speculative,
or imaginary doubt . . . .”).
¶ 70 Third, on one reading, the prosecutor’s statement that the
defense theory of the case “seriously undermines the criminal
justice system” could sound like an attempt to inflame the jury.
But these comments could also mean that a jury’s reliance on
speculation, instead of the evidence presented at trial, would
undermine the criminal justice system. We thus conclude that this
comment was not so improper as to constitute plain error. Wend,
235 P.3d at 1097.
¶ 71 Fourth, we disagree with Tran’s contention that the prosecutor
denigrated defense counsel by referring to Tran and defense counsel
as “they” and “them.” “They,” in and of itself, is not a denigrating
term.
¶ 72 Accordingly, we perceive no reversible misconduct. Domingo-
Gomez, 125 P.3d at 1048; Lovato, ¶ 64.
22 IV. Proportionality Review
¶ 73 Next, Tran contends that the trial court erred by denying his
request for an extended proportionality review of his twenty-four-
year sentence.
¶ 74 We remand for the trial court to conduct a new abbreviated
proportionality review considering the supreme court’s recent
decision in Wells-Yates.
A. The Law On Sentence Proportionality
¶ 75 The Eighth Amendment guarantees that “no cruel and
unusual punishments” shall be “inflicted.” U.S. Const. amend. VIII;
see also Colo. Const. art. II, § 20.
¶ 76 The Supreme Court has concluded that the Eighth
Amendment’s Cruel and Unusual Punishments Clause prohibits
“extreme sentences that are ‘grossly disproportionate’ to the crime.”
Harmelin v. Michigan, 501 U.S. 957, 1001 (1991) (Kennedy, J.,
concurring in part and concurring in the judgment) (quoting Solem
v. Helm, 463 U.S. 277, 288 (1983)); see also Ewing v. California, 538
U.S. 11 (2003).
¶ 77 To determine whether a sentence is so grossly
disproportionate that it violates the Eighth Amendment, the
23 Colorado supreme court’s Wells-Yates opinion recently articulated
the following analysis.
¶ 78 First, the court conducts an “abbreviated proportionality
review.” Wells-Yates, ¶¶ 10-11. This review has two steps. Id.
¶ 79 In step one, the court must assess the gravity or seriousness
of each offense for which the defendant was convicted. Id. at ¶ 12.
Colorado has recognized certain offenses as “per se” grave and
serious — that is, offenses that are always grave and serious
regardless of the underlying facts of the conviction. See id. at ¶ 13;
People v. Deroulet, 48 P.3d 520, 524 (Colo. 2002), abrogated on
other grounds by Wells-Yates, 2019 CO 90M.
¶ 80 In step two, the court must compare the gravity of the
defendant’s offenses with the harshness of the sentence imposed for
those offenses. Wells-Yates, ¶ 14. When weighing the harshness of
the defendant’s sentence, the court must factor in the defendant’s
parole eligibility. Id.
¶ 81 An abbreviated proportionality review of a sentence imposed
under the habitual criminal statute has slightly different contours
because the sentence is based on a triggering offense — the offense
for which the defendant was convicted in the current case — and
24 multiple predicate offenses — the defendant’s previous felony
convictions. See id. at ¶¶ 20-28. The supreme court has explained
that, in this scenario,
[i]f there are multiple triggering offenses, the reviewing court must look at the sentence imposed for each such offense and engage in a proportionality review of that sentence because each sentence represents a separate punishment for a distinct and separate crime. As to each sentence, the inquiry is whether the corresponding triggering offense and the predicate offenses, considered together, are so lacking in gravity or seriousness as to suggest that the sentence is grossly disproportionate.
Id. at ¶ 24 (citation omitted).
¶ 82 A court only reaches the second part of a proportionality
review — known as an “extended proportionality review” — if the
abbreviated proportionality review raises an inference that the
defendant’s sentence was “grossly disproportionate” to the gravity of
his offense. Id. In this phase of the analysis, the court must
compare the sentence at issue with “(1) sentences for other crimes
in the same jurisdiction and (2) sentences for the same crime in
other jurisdictions.” Id. at ¶ 17.
25 B. Tran’s Proportionality Review
¶ 83 After the trial court entered Tran’s convictions for second
degree burglary and possession of burglary tools, it held a habitual
criminal hearing.
¶ 84 The trial court found that the prosecution proved, beyond a
reasonable doubt, that Tran had convictions for the following
offenses:
two convictions for possession of a controlled substance,
a class 4 felony;
forgery, a class 5 felony;
two convictions for attempt to obtain a controlled
substance by fraud or deceit, a class 6 felony; and
second degree burglary, a class 4 felony.
¶ 85 Because Tran had six prior felony convictions, the trial court
sentenced him under the habitual criminal statute. See § 18-1.3-
801(2)(a)(I)(A).
¶ 86 The habitual criminal statute required the court to sentence
Tran to twenty-four years in the custody of DOC for his second
degree burglary conviction and twelve years for his possession of
26 burglary tools conviction. See id.; see also § 18-1.3-401(1)(a)(V)(A).
The trial court imposed these sentences concurrently.
¶ 87 Tran requested a proportionality review of his sentence.
¶ 88 During its abbreviated proportionality review, the trial court
found that the fact of Tran’s “six prior felony offenses, even ignoring
the issue of grave and serious, tends to lend itself to somebody [for
whom] any habitual offender sentence would be considered
constitutionally proportionate.”
¶ 89 Then, relying on Deroulet, 48 P.3d at 524, the trial court found
that Tran’s two second degree burglary convictions were per se
grave and serious.
¶ 90 Relying again on Deroulet, the trial court found that Tran’s two
convictions for possession of a controlled substance were per se
¶ 91 Because the trial court found that four of Tran’s convictions
were “grave and serious,” it denied Tran’s request for an extended
proportionality review.
C. Wells-Yates
¶ 92 In late 2019, three years after Tran was sentenced, our
supreme court decided Wells-Yates, which made significant changes
27 to the law on sentence proportionality in Colorado. See Wells-Yates,
¶¶ 1-5.
¶ 93 The supreme court held that
(1) during an abbreviated proportionality review of a habitual criminal sentence, the court must consider each triggering offense and the predicate offenses together and determine whether, in combination, they are so lacking in gravity or seriousness as to raise an inference that the sentence imposed on that triggering offense is grossly disproportionate; (2) in determining the gravity or seriousness of the triggering offense and the predicate offenses, the court should consider any relevant legislative amendments enacted after the dates of those offenses, even if the amendments do not apply retroactively; (3) not all narcotic offenses are per se grave or serious; and (4) the narcotic offenses of possession and possession with intent are not per se grave or serious.
Id. at ¶ 2 (footnote omitted).
¶ 94 Wells-Yates left a few questions unanswered. As relevant here,
the supreme court declined to decide whether second degree
burglary is still a per se grave and serious offense. See id. at ¶ 65
n.17.
D. Analysis
28 ¶ 95 The trial court conducted its abbreviated proportionality
review of Tran’s sentence long before the supreme court decided
Wells-Yates. So, the trial court relied on several points of law that
are no longer valid.
¶ 96 First, the trial court concluded that Tran’s two felony
convictions for possession of a controlled substance were per se
grave and serious. This was true at the time of Tran’s abbreviated
proportionality review. See, e.g., Deroulet, 48 P.3d at 524. But after
Wells-Yates, convictions for possession of a controlled substance
are no longer per se grave and serious. Wells-Yates, ¶ 2.
¶ 97 Second, it is not clear from the record whether the trial court
considered subsequent legislative amendments as evidence of
whether the offenses were per se grave and serious. Wells-Yates
clarified that “in determining the gravity or seriousness of the
triggering offense and the predicate offenses, the court should
consider any relevant legislative amendments enacted after the
dates of those offenses, even if the amendments do not apply
retroactively.” Id.
¶ 98 Third, the record suggests that the trial court found Tran’s two
convictions for second degree burglary were per se grave and
29 serious. The supreme court, in earlier cases, held that burglary is a
per se grave and serious offense. See Deroulet, 48 P.3d at 524;
Gaskins, 825 P.2d at 37, abrogated by Wells-Yates, 2019 CO 90M,
(“The crimes of aggravated robbery, robbery, burglary, and
accessory to first-degree murder involve violence or potential for
violence by their very nature.”) But in Wells-Yates, the supreme
court signaled that it was retreating from this, in part:
Because the question is not before us, we do not address whether the designation of burglary as a per se grave or serious crime extends to third degree burglary, which includes breaking into a coin vending machine, see [section 18-4-204(1), C.R.S. 2019], or even second degree burglary, which includes unlawfully remaining in a building or occupied structure after a lawful entry with the intent to commit therein a crime against property, see [section 18-4-203(1), C.R.S. 2019].
Wells-Yates, ¶ 65 n.17.
¶ 99 Thus, after Wells-Yates, it is unclear whether and to what
extent second degree burglary remains a per se grave and serious
offense. The facts of Wells-Yates do not help us answer this
question. One of the defendant’s triggering convictions in Wells-
Yates was for second degree burglary of a dwelling. See id. at ¶¶
30 29-31. The supreme court remanded for a “factual analysis” of the
sentence imposed on this triggering offense — along with the
defendant’s six other triggering offenses — but declined to say
whether the second degree burglary conviction was per se grave and
serious. Id. at ¶ 75 n.19.
¶ 100 Still, Wells-Yates gave a few guideposts for courts considering
whether to designate an offense as per se grave and serious. First,
the supreme court warned that “designating a crime per se grave or
serious has significant consequences and courts should therefore
do so cautiously.” Id. at ¶ 62. Second, it suggested that “[t]his
concern is magnified in the habitual criminal context, where every
sentence under review has been imposed without the trial court’s
exercise of discretion.” Id. Third, the court cautioned that “a crime
should not be designated per se grave or serious unless the court
concludes that the crime would be grave or serious in every
potential factual scenario. Using the designation otherwise is
fraught with peril.” Id. at ¶ 63.
¶ 101 Following these guideposts, we conclude that on remand, the
trial court should not treat Tran’s second degree burglary
convictions as per se grave and serious. Instead, the trial court
31 should analyze the facts of each offense to determine whether it is
grave and serious. See id. We do not hold that second degree
burglary is never a per se grave or serious offense — Well-Yates
does not go so far. See id. at ¶ 65 n.17. We hold only that the trial
court, in this case, should not treat Tran’s second degree burglary
convictions as per se grave and serious. See id. at ¶ 63.
¶ 102 Fourth, after concluding that Tran had four per se grave and
serious offenses, it appears that the trial court did not analyze the
harshness of Tran’s sentence. Wells-Yates clarified that a court
must analyze the harshness of the defendant’s sentence, including
parole eligibility, “even when the triggering offenses and/or the
predicate offenses supporting a habitual criminal sentence include
grave or serious crimes . . . .” Id. at ¶ 27.
¶ 103 Thus, we remand for the trial court to conduct a new
abbreviated proportionality review under Wells-Yates. When
conducting this review, the trial court should keep the following
principles from Wells-Yates in mind:
The court must consider each triggering offense together
with Tran’s six predicate offenses “to determine whether,
in combination, they are so lacking in gravity or
32 seriousness as to raise an inference that the sentence”
for each triggering offense is grossly disproportionate, id.
at ¶ 2.
Tran’s two convictions for possession of a controlled
substance are not per se grave and serious, id.
The court should consider any relevant legislative
amendments, even if they do not apply retroactively, as
“the best evidence” of the gravity and seriousness of each
of Tran’s convictions, id. at ¶¶ 49, 58.
Whether and to what extent second degree burglary is
per se grave and serious is now an open question, see id.
at ¶ 65 n.17.
The supreme court has cautioned that courts should use
the per se grave and serious designation sparingly, see
id. at ¶¶ 54-67.
In assessing the harshness of Tran’s sentence, the trial
court must consider Tran’s parole eligibility, id. at ¶ 14.
Even if the trial court concludes that some, or all, of
Tran’s convictions are grave and serious, it still must
33 weigh the seriousness of those convictions against the
harshness of Tran’s sentence, id. at ¶ 27.
¶ 104 Should the trial court find that either of Tran’s sentences
raises an inference of gross disproportionality, we point out that
Wells-Yates also clarified the procedure for conducting an extended
proportionality review. Wells-Yates explained that “courts
conducting an extended proportionality review should compare the
sentence at issue to (1) sentences for other crimes in the same
jurisdiction and (2) sentences for the same crime in other
jurisdictions.” Id. at ¶ 17.
¶ 105 But wait, says Tran. Why don’t we just cut out the middleman
and conduct an abbreviated proportionality review on appeal?
¶ 106 In Wells-Yates and its two companion cases, the supreme
court concluded that trial courts are “uniquely suited” to conduct
the kind of factual analysis required under Wells-Yates. See id. at
¶ 75 (quoting People v. Gaskins, 825 P.2d 30, 35 (Colo. 1992)).
Thus, in all three cases, the supreme court remanded for the trial
court to conduct a new abbreviated proportionality review following
the principles it set out in Wells-Yates. Id.; see also People v.
34 McRae, 2019 CO 91, ¶ 19 (same); Melton v. People, 2019 CO 89,
¶ 28 (same). We do the same.
V. Conclusion
¶ 107 The judgment of conviction is affirmed, the trial court’s order
denying Tran’s request for an extended proportionality review is
reversed, and the case is remanded for the trial court to conduct a
new abbreviated proportionality review in accordance with Wells-
Yates.
JUDGE WELLING and JUDGE PAWAR concur.