in the Interest of B.D , 2020 CO 87 ( 2020 )

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ADVANCE SHEET HEADNOTE
December 14, 2020
2020 CO 87No. 19SC396, People in the Interest of B.D.—Complicity—Sentence Enhancer—
Statutory Interpretation—Due Process.
In this opinion, the supreme court reviews the judgment of a division of the
court of appeals, which reversed the defendant’s adjudication and sentence for
theft from an at-risk person as a complicitor. The supreme court holds that the
requirement that a complicitor hold a dual mental state does not extend to
sentence enhancers based on the nature of the offense. The dual mental state
standard requires that the complicitor intended for the principal to complete the
elements of the criminal offense and to have been aware of all the circumstances
attending those elements. Based on the plain language of the at-risk victim
provision here, the supreme court concludes that it is a sentence enhancer. Thus,
liability for theft from an at-risk victim as a complicitor, does not require that the
complicitor was aware of the at-risk victim’s presence to trigger the sentence
enhancing provision.
The judgment of the court of appeals is reversed.
The Supreme Court of the State of Colorado
2 East 14th Avenue • Denver, Colorado 80203
2020 CO 87Supreme Court Case No. 19SC396
Certiorari to the Colorado Court of Appeals
Court of Appeals Case No. 17CA1924
Petitioner:
The People of the State of Colorado,
In the Interest of
Respondent:
B.D.
Judgment Reversed
en banc
December 14, 2020
Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Gabriel P. Olivares, Assistant Attorney General
Denver, Colorado
Attorneys for Respondent:
The Noble Law Firm, LLC
Tara Jorfald
Lakewood, Colorado
JUSTICE HOOD delivered the Opinion of the Court.
¶1 Several boys broke into two homes, one of which was owned by a man old
enough to be considered an “at-risk” victim. When that man returned home, he
happened upon one of the boys holding the meager spoils of an ill-conceived,
juvenile burglary. The others, including B.D., remained outside, oblivious to the
elderly man’s arrival. All the boys quickly fled, leaving in their wake an
undoubtedly startled victim and, perhaps less predictably, a legal conundrum
about complicitor liability.
¶2 In this opinion, we address the scope of complicitor liability for a fact that
aggravates the punishment for theft; namely, an at-risk victim’s presence. Based
on the plain language of the controlling statutes, we conclude that a complicitor
need not be aware that an at-risk victim is present because it is a strict liability
sentence enhancer and not an element of the offense. Accordingly, we reverse the
judgment of the court of appeals and remand the case for the district court to
reinstate the adjudication and sentence.
I. Facts and Procedural History
¶3 B.D. and two of his friends broke into two homes, stealing several items. At
the second home, only one of the boys, K.K., was still inside when the seventy-
seven-year-old owner returned. The boys fled, and the homeowner called the
police. Officers soon found the three boys walking nearby. The homeowner
identified K.K., and the boys were arrested.
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¶4 B.D. was charged with one count of theft and two counts of second degree
burglary. He was also charged with one count of theft in the presence of an at-risk
person because the victim was over seventy years old. See § 18-6.5-102(2), C.R.S.
(2020) (“‘At-risk adult’ means any person who is seventy years of age or
older . . . .”). After a bench trial, the juvenile magistrate adjudicated B.D.
delinquent on all counts.
¶5 On appeal, the division, relying on People v. Childress, 2015 CO 65M, ¶ 29,
363 P.3d 155, 164, concluded that to be liable for theft in the presence of an at-risk
victim, the prosecution had to prove that B.D. “had an awareness of [the at-risk
victim’s presence], even if such an awareness is not necessary to hold the principal
accountable.” People in Int. of B.D., 2019 COA 57, ¶ 39, __ P.3d __. And because
no such evidence was presented, the evidence was insufficient to sustain B.D.’s
adjudication. Id. at ¶ 40.
¶6 We then granted the prosecution-sought certiorari review.1
1 We granted certiorari to review the following issue:
Whether the court of appeals erred in holding that, before a court can
impose an enhanced sentence under the at-risk person statute, there
must be evidence that the complicitor had an awareness of the fact
that an at-risk person was present during the commission of the
offense.
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II. Analysis
¶7 After identifying the standard of review and revisiting familiar principles of
statutory interpretation, we address the question before us. We approach that
question by breaking it into two parts: (1) whether Childress’s “dual mental state”
requirement for complicity extends to sentence enhancers or is limited to the
elements of the offense, and (2) whether the at-risk victim provision here is a
sentence enhancer or an element.2
A. Standard of Review and Principles of Statutory
Interpretation
¶8 Both parties have framed the question before us as a challenge to the
sufficiency of the evidence supporting B.D.’s adjudication. We review the record
de novo to determine whether the relevant evidence, both direct and
circumstantial, when viewed as a whole and in the light most favorable to the
prosecution, is substantial and sufficient both in quantity and quality to support a
conclusion by a reasonable mind that the defendant is guilty of the charge beyond
a reasonable doubt. McCoy v. People, 2019 CO 44, ¶ 63, 442 P.3d 379, 392.
Determining the sufficiency of the evidence here requires us to review the
2 This opinion addresses sentence enhancers based on the nature of the offense
rather than sentence enhancers specific to the principal, such as criminal history.
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division’s interpretation of the relevant statutes, which we also do de novo. See
Chavez v. People, 2015 CO 62, ¶ 7, 359 P.3d 1040, 1042.
¶9 In interpreting statutes, our primary goal is to discern legislative intent.
Carrera v. People, 2019 CO 83, ¶ 17, 449 P.3d 725, 729. And because it is the
legislature’s prerogative to define crimes and prescribe the relevant punishments,
Vensor v. People, 151 P.3d 1274, 1275 (Colo. 2007), we begin with the statutes’ plain
language, giving words and phrases their plain and commonly understood
meanings, Carrera, ¶ 17, 449 P.3d at 729. If the language is clear, we apply it as
written. Id. at ¶ 18, 449 P.3d at 729.
¶10 With these concepts in mind, we first turn to Colorado’s complicity statute,
and we examine how it applies to sentence enhancers.
B. Whether the Dual Mental State Requirement for
Complicitors Applies to Sentence Enhancers
¶11 Under the complicitor liability theory, “[a] person is legally accountable as
principal for the behavior of another constituting a criminal offense if, with the
intent to promote or facilitate the commission of the offense, he or she aids, abets,
advises, or encourages the other person in planning or committing the offense.”
§ 18-1-603, C.R.S. (2020).
¶12 This court has interpreted the complicity statute to require that a complicitor
hold a dual mental state; meaning, the complicitor must have both
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(1) the intent, in the commonly understood sense of desiring or
having a purpose or design, to aid, abet, advise, or encourage the
principal in his criminal act or conduct, and (2) an awareness of those
circumstances attending the act or conduct he seeks to further that are
necessary for commission of the offense in question.
Childress, ¶ 29, 363 P.3d at 164. By “circumstances attending the act or conduct,”
we mean “those elements of the offense describing the prohibited act itself and
the circumstances surrounding its commission.” Id. Thus, under Childress,
complicitor liability requires awareness of all circumstances necessary for the
commission of the offense. See Butler v. People, 2019 CO 87, ¶ 12, 450 P.3d 714, 717
(“Assessing whether a defendant may be found liable as a complicitor therefore
requires a determination of the requisite elements of the principal’s offense.”).
¶13 An individual commits an offense when he completes all the statutory
elements of that offense. See Doubleday v. People, 2016 CO 3, ¶¶ 23–24, 364 P.3d
193, 197 (discussing that proving the commission of a crime “requires the
prosecution to prove beyond a reasonable doubt each of the elements of that
crime”).
¶14 Sentence enhancers attach only after the prosecution has proven that the
defendant committed the offense. People v. Eggers, 585 P.2d 284, 286 (Colo. 1978)
(concluding that sentence enhancers are “triggered only after a defendant has been
found guilty of the substantive crime” (quoting Brown v. Dist. Ct., 569 P.2d 1390,
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1391 (Colo. 1977))), superseded on other grounds by statute, Ch. 211, secs. 1 & 2,
§§ 8-1-105(9)(a) & 16-11-309(1), 1981 Colo. Sess. Laws 970–71.
¶15 Accordingly, because sentence enhancers are not elements of the offense,
Childress’s dual mental state requirement does not extend to them. See Garcia v.
People, 2019 CO 64, ¶¶ 30–32, 445 P.3d 1065, 1070 (concluding that where a
sentence enhancing provision contains no mens rea requirement, none is required
for the sentence enhancer to apply); Whitaker v. People, 48 P.3d 555, 559 (Colo. 2002)
(interpreting the relevant statutes as setting “forth the drug quantity separately
from the elements, with no mens rea requirement and with the apparent design of
separating the applicable punishment from the creation and definition of the
offense”).
¶16 B.D. asserts that because the statute makes a complicitor accountable only
for the principal’s “criminal offense,” a complicitor can’t be subject to sentence
enhancers because they aren’t part of the offense. However, because complicity is
a theory of liability, not an offense, once a defendant is found guilty of the
underlying offense, he “is legally accountable as principal . . . for [the] criminal
offense,” § 18-1-603, including any sentence enhancers related to the nature of the
offense. See People v. Ramirez, 997 P.2d 1200, 1207 (Colo. App. 1999)
(“[P]unishment is imposed for the underlying crime and not for complicity. . . .
Thus, an offense exists to which the [sentence enhancement] provisions may
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apply.”), aff’d by an equally divided court, 43 P.3d 611 (Colo. 2001) (mem). The
complicity statute puts B.D. on equal footing with his principal regarding the
circumstances accompanying the commission of the offense, which then allows
any relevant sentence enhancers to apply by their own force. Thus, B.D. is liable
as a complicitor if he intended to aid in the theft and was aware of the
circumstances constituting the elements of the offense, notwithstanding his
ignorance of any sentence-enhancing facts.
¶17 Next, we turn to the statutes at issue here to determine whether the at-risk
victim provision is an element that B.D. needed knowledge of under the
complicity statute or is instead a strict liability sentence enhancer.
C. Whether the At-Risk Victim Provision Is a Sentence
Enhancer or an Element
¶18 The plain language and structure of the controlling statutes make clear that
the legislature intended the at-risk victim provision to be a sentence enhancer.
¶19 Section 18-4-401(1), C.R.S. (2020), sets forth the ways an individual can
commit theft. As relevant here, an individual commits theft “when he or she
knowingly obtains, retains, or exercises control over anything of value of another
without authorization . . . and . . . [i]ntends to deprive the other person
permanently of the use or benefit of the thing of value.” § 18-4-401(1)(a).
Subsection (2) then provides for increasing penalties based on the value of the
stolen items. Thus, subsection (1) contains the essential elements that a jury must
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find to convict a defendant of theft, while subsection (2) provides the penalties a
judge may impose based on the jury’s findings.
¶20 In a separate article of the criminal code, the legislature also imposes greater
penalties when the theft happens in the presence of an at-risk victim: “Any person
who commits theft, and commits any element or portion of the offense in the
presence of the victim, . . . and the victim is an at-risk person, . . . commits” a
felony. § 18-6.5-103(5), C.R.S. (2020).
¶21 This statutory structure creates a clear distinction between the elements of
theft and the at-risk victim provision. See Garcia, ¶¶ 36–38, 445 P.3d at 1070–71;
Whitaker, 48 P.3d at 558–60. Therefore, based on the statutes’ plain language and
structure, we conclude that the at-risk victim provision is a sentence enhancer.
¶22 And although we need look no further to discern the legislature’s intent, the
express purpose of the at-risk victim statute provides additional support for our
interpretation: “The general assembly . . . finds that penalties for specified crimes
committed against at-risk persons should be more severe than the penalties for the
commission of the same crimes against other members of society.” § 18-6.5-101,
C.R.S. (2020). This is because at-risk victims “are more impacted by crime than the
general population because they tend to suffer great relative deprivation,” and
“[t]hey are far more susceptible than the general population to the adverse long-
term effects of crimes committed against them.” Id. Because the statute’s purpose
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is not necessarily aimed at deterrence but at accountability, it does not matter
whether the individual committing the offense is unaware that an at-risk victim is
present—he committed the crime and is therefore responsible for the fact that the
harm caused is greater than intended. See Vega v. People, 893 P.2d 107, 117 (Colo.
1995) (“The aggravating circumstances . . . bear on punishment, rather than on the
offense . . . because the underlying offense causes the same harm whether [the
defendant is aware the aggravating circumstances are present or not].”); Ramirez,
997 P.2d at 1207 (“There is no reason why a defendant, whether a principal or a
complicitor, who knowingly traffics in drugs, should not bear the risk that the
quantity involved is greater than that which he or she was aware, and that,
therefore, such conduct might be more harmful than intended.”).
¶23 The legislature’s express desire to increase punishments when at-risk
people are victimized reinforces our conclusion that it intended the at-risk victim
provision to constitute a strict liability sentence enhancer rather than an element
of the offense.
¶24 B.D. counters that the presence of an at-risk victim must be an element of
the offense of theft from an at-risk person because the U.S. Supreme Court has said
that “when the term ‘sentence enhancement’ is used to describe an increase
beyond the maximum authorized statutory sentence, it is the functional equivalent
of an element.” Apprendi v. New Jersey, 530 U.S. 466, 494 n.19 (2000); see Alleyne v.
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United States, 570 U.S. 99, 107–08 (2013); United States v. O’Brien, 560 U.S. 218, 224
(2010). But the lesson from Apprendi and its progeny is that judges may not impose
sentences beyond the statutorily prescribed range based on findings by a
preponderance of the evidence. 530 U.S. at 490 (“Other than the fact of a prior
conviction, any fact that increases the penalty for a crime beyond the prescribed
statutory maximum must be submitted to a jury, and proved beyond a reasonable
doubt.”). These cases did not create a universal rule dictating when sentence
enhancers become elements. Instead, they “made clear that for purposes of the
Sixth Amendment guarantee of jury determinations, it is inconsequential whether
a required fact is organized . . . as a sentencing factor or as an element” if that fact
increases the range of potential penalties. Lewis v. People, 261 P.3d 480, 483 (Colo.
2011). So our holding that, “for the purposes of the jury trial requirement,” a
sentence enhancer sometimes functions as an element for Sixth Amendment
purposes, Lopez v. People, 113 P.3d 713, 722 (Colo. 2005), does not dictate the
interaction between Colorado’s complicity and at-risk victim statutes.3
3 In the interest of not conflating related issues, we set forth the foregoing plain
language analysis without reference to the lines of cases discussing sentence
enhancers and elements in other contexts; namely, the Sixth Amendment right to
a jury trial (Apprendi and O’Brien) and double jeopardy/merger (People v. Leske,
957 P.2d 1030 (Colo. 1998), and Armintrout v. People, 864 P.2d 576 (Colo. 1993)).
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¶25 Here, there is no Apprendi problem because a juvenile magistrate, acting as
factfinder following a bench trial, found the essential elements of theft and the
presence of the at-risk victim beyond a reasonable doubt. See § 19-1-108(1), C.R.S.
(2020) (“The juvenile court may appoint one or more magistrates to hear any case
or matter under the court’s jurisdiction, except where a jury trial has been
requested pursuant to section 19-2-107 . . . .”); Blakely v. Washington, 542 U.S. 296,
310 (2004) (“[A] defendant who stands trial may consent to judicial factfinding as
to sentence enhancements . . . .”). We are not persuaded that Apprendi requires us
to interpret the at-risk victim provision as an element, rather than a sentence
enhancer, for the purposes of Colorado’s complicity statute.
¶26 In sum, a complicitor’s dual mental state applies only to the elements of the
underlying offense and not to strict liability sentence enhancers related to the
nature of the offense. Because the at-risk victim provision in section 18-6.5-103 is
a strict liability sentence enhancer to the underlying crime of theft, B.D. need not
have been aware that the theft happened in the presence of an at-risk victim. He
is subject to the enhanced punishment accompanying that circumstance,
regardless.
Each of these contexts presents distinct concerns that should not be blurred in the
overlapping search for legislative intent.
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III. Conclusion
¶27 We reverse the judgment of the court of appeals and remand the case for the
district court to reinstate the adjudication and sentence.
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