In re A.B , 2016 COA 170 ( 2016 )

COLORADO COURT OF APPEALS 2016COA170
Court of Appeals No. 15CA2015
City and County of Denver Juvenile Court Nos. 15JD668 & 15JD699
Honorable D. Brett Woods, Judge
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of A.B.,
Juvenile-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
SENTENCE VACATED, AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE WEBB
Hawthorne and Navarro, JJ., concur
Announced November 17, 2016
Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee
Michael S. Juba, Alternate Defense Counsel, Denver, Colorado, for
Juvenile-Appellant
¶1 The Denver Juvenile Court found A.B., a juvenile, guilty of
possession of a weapon by a previous offender (POWPO),
adjudicated him a delinquent, and imposed a sentence of one to two
years in the Division of Youth Corrections. On appeal, A.B.
contends the court erred in denying his motion to suppress the
weapon as the fruit of an unlawful seizure; in treating a pending
deferred adjudication as a prior adjudication for purposes of
POWPO; and in finding him a repeat juvenile offender — based on
the same deferred adjudication — for sentencing. Both of the
deferred adjudication contentions raise novel questions in Colorado.
¶2 We affirm the denial of A.B.’s motion to suppress because even
assuming that a seizure of A.B. occurred when the police contacted
him, they had a reasonable suspicion that he had violated Denver
Revised Municipal Code 38-39, entitled “Disturbance of the peace.”
But because we conclude that a prior deferred adjudication does
not satisfy the prior adjudication element of POWPO, we reverse
A.B.’s adjudication.1
1 Given this conclusion, we need not address A.B.’s repeat juvenile
offender contention, which affects only sentencing.
1
I. Background and Procedural History
¶3 On May 6, 2015, the Adams County District Court accepted
A.B.’s agreement to a deferred adjudication on a charge of
aggravated motor vehicle theft in the first degree, a felony, and
deferred entry of adjudication for one year. Based on the county of
A.B.’s residence, the case was transferred to the Denver Juvenile
Court as 15JD668.
¶4 Less than four months later, Denver police officers arrested
A.B. on the POWPO charge at issue.
¶5 The juvenile court held an evidentiary hearing on A.B.’s
motion to suppress the weapon. One of the officers testified to how
he had found a handgun in the back seat of a car in which A.B. was
a passenger, as discussed fully in Part II below. The court denied
the motion. Then the court proceeded to trial, with the officer
presenting the same testimony. The prosecution’s evidence
included the deferred adjudication in 15JD668.
¶6 When the prosecution rested, A.B. moved for judgment of
acquittal. He conceded the deferred adjudication involved a felony,
but he argued that it did not constitute proof of a prior adjudication
for purposes of POWPO. As to juveniles, POWPO prohibits
2
possessing a firearm “subsequent to the person’s adjudication for
an act which, if committed by an adult, would constitute a felony.”
§ 18-12-108(3), C.R.S. 2016 (emphasis added). The court denied
the motion, A.B. declined to present any evidence, and the court
found him guilty.
¶7 At sentencing, the prosecutor urged the court to find A.B. a
repeat juvenile offender, again based on the deferred adjudication.
The court revoked the deferred adjudication, on that basis found
A.B. a repeat juvenile offender, and imposed a sentence of one to
two years in the Division of Youth Corrections.
¶8 The Attorney General agrees that all of the issues A.B. raises
in this appeal were preserved.
II. Motion to Suppress
¶9 A.B. first contends the trial court erred by denying his motion
to suppress the handgun. A.B. asserts that the search was
unconstitutional because when police officers ordered him to get
back in the car, they seized him but lacked reasonable suspicion to
do so. We conclude that the trial court properly denied A.B.’s
motion.
3
A. Standard of Review
¶ 10 A trial court’s ruling on a motion to suppress presents a mixed
question of fact and law. People v. Martinez, 165 P.3d 907, 909
(Colo. App. 2007). We defer to the trial court’s findings of fact if
they are supported by competent evidence in the record, but we
review its conclusions of law de novo. Id. Of course, “[w]e review de
novo the trial court’s ultimate legal conclusion of whether a seizure
violated constitutional prohibitions against unreasonable searches
and seizures.” People v. Funez-Paiagua, 2012 CO 37, ¶ 6.
B. Additional Background
¶ 11 A.B. did not testify at the suppression hearing. One of the
police officers testified that around 9 p.m. on the night of A.B.’s
arrest, he heard “loud music coming from [a parked] vehicle . . .
around 100 feet” away in an alley. The officer and his partner
decided to contact the occupants of the vehicle “solely to investigate
the noise violation,” although they were not “responding to any
citizen complaints.” They pulled their patrol car behind the suspect
vehicle, parking at a forty-five-degree angle. Immediately, all three
occupants in the suspect vehicle “exit[ed] at the same time.” A.B.
got out of the “driver’s side rear door.”
4
¶ 12 As the officers left the patrol car, they “order[ed] everybody
back into the [suspect] vehicle.” Both officers were “yelling.” A.B.
then “turned his back to [the officer] and [that officer] saw him
reach towards his waistband with his right hand.” The officer
“observed a gun leaving his hand as he threw it into . . . the
vehicle.”
¶ 13 As to the noise violation, the officer explained that the loud
music “was coming from a radio . . . [i]n the vehicle,” although the
officer did not see A.B. “operating the radio.” Nor did the “vehicle
have a permit for sound amplification.”
¶ 14 A.B.’s counsel argued that the officers’ actions in blocking the
suspect vehicle and then ordering the occupants back inside
constituted a seizure, which required “reasonable articulable
suspicion of criminal activity.” But according to counsel, the
officers lacked such suspicion as to A.B. because as “a rear
passenger in [the] vehicle,” he could not “possibly violate [Denver
Rev. Mun. Code 38-89] where the noise is coming from the car radio
being operated from the front by a driver or possibly from the front
passenger.”
¶ 15 In denying A.B.’s motion, the trial court found:
5
 “The evidence is that [the officers heard] the loud noise
coming from the car.”
 “The officers pulled up behind the car. It’s unclear as to
precisely how they parked, whether they blocked the car or
not but the officers had probable cause to be there because of
the loud music coming from the car.”
 “[A]ll three people got out of the car at about the same time, at
the same time that [the officer] yelled at them.”
 “And then [A.B.] turned, and that’s when he reached for his
waistband, and that’s when [the officers] saw the gun.”
C. Law
¶ 16 Citizens enjoy a constitutional right to be free from
unreasonable seizures. U.S. Const. amend. IV; Colo. Const. art. II,
§ 7. Still, “[n]ot every encounter between police and citizens
implicates Fourth Amendment concerns because a ‘seizure’ does
not occur until a police officer has restrained the liberty of the
citizen.” People v. Marujo, 192 P.3d 1003, 1005 (Colo. 2008). The
“key question in determining whether a person has been ‘seized’ is
whether, ‘in view of all of the circumstances surrounding the
6
incident, a reasonable person would have believed that he was not
free to leave.’” Id. at 1006 (citation omitted).
¶ 17 A police officer may “seize” a person and conduct an
investigatory stop if three conditions are met: (1) the officer must
have a reasonable suspicion that criminal activity has occurred, is
taking place, or is about to take place; (2) the purpose of the
intrusion must be reasonable; and (3) the scope and character of
the intrusion must be reasonably related to its purpose. People v.
Janis, 2016 COA 69, ¶ 46.
¶ 18 “Reasonable suspicion exists when the facts known to the
officer, taken together with rational inferences from those facts,
create a reasonable and articulable suspicion of criminal activity
which justifies an intrusion into the defendant’s personal privacy at
the time of the stop.” Funez-Paiagua, ¶ 9. To determine whether
reasonable suspicion exists, “a court must consider the facts and
circumstances known to the officer at the time of the intrusion.” Id.
D. Analysis
¶ 19 Initially, the parties disagree as to whether the officers seized
A.B.
7
¶ 20 The Attorney General argues that merely telling A.B. to return
to the vehicle was an instruction “required for a safe encounter,”
not a seizure. See People v. Fines, 127 P.3d 79, 81 (Colo. 2006) (“[A]
passenger is not seized . . . merely because the vehicle in which she
is riding is subjected to a traffic stop, nor does her removal from the
car for safety reasons, without particularized suspicion, amount to
an illegal seizure of her person.”) (citation omitted). And according
to the Attorney General, the officers’ parking behind the vehicle was
“a display of authority directed at the car, not A.B.”
¶ 21 A.B. responds that a seizure occurred because the “[o]fficers
approached the vehicle and parked their fully marked police vehicle
at an angle behind the parked vehicle, blocking it into the parking
space;” and “[t]wo officers immediately exited their patrol vehicle
and yelled at A.B. multiple times to get back into the vehicle.” See
Marujo, 192 P.3d at 1006 (“Examples of circumstances that would
lead a reasonable person to feel that he was not free to leave or
terminate the encounter include ‘the threatening presence of several
officers, the display of a weapon by an officer, some physical
touching of the person of the citizen, or the use of language or tone
8
of voice indicating that compliance with the officer’s request might
be compelled.’”) (citation omitted).
¶ 22 The following facts support the Attorney General: the officers
did not activate their siren or emergency lights — instead they
approached a parked vehicle, see People v. Walters, 249 P.3d 805,
809 (Colo. 2011) (“[W]hen a police officer does not pull over a
vehicle, but approaches an individual in a vehicle that is already
parked, the encounter does not automatically constitute an
investigatory stop.”); the officers did not display a weapon, see id. at
810 (finding no seizure where officer “did not display or gesture
toward his weapon”); and the officers did not touch A.B., see People
v. Bowles, 226 P.3d 1125, 1131 (Colo. App. 2009) (“[N]o testimony
. . . suggests that either officer touched [defendant] or retained
anything that might have prevented her from leaving the
scene . . . .”).
¶ 23 But other facts favor A.B.: the officers’ patrol car was parked
directly behind the suspect vehicle, potentially blocking it, see
People v. Scheffer, 224 P.3d 279, 285 (Colo. App. 2009) (The
defendant was not seized where there was “no indication in the
record that either officer blocked defendant’s path or impeded his
9
ability to terminate the encounter.”); the officers demanded in a
yelling tone that the occupants return to the vehicle, cf. Marujo, 192
P.3d at 1008 (There was no seizure where the officer “requested, but
did not demand, that the [defendant] step toward him” and the
officer “asked, but did not order, [the defendant] to submit to a pat
down.”); and A.B.’s ability to end the encounter by walking away
was impeded by these demands, see People v. Dixon, 21 P.3d 440,
446 (Colo. App. 2000) (A seizure occurred where officer “had no
lawful basis to order defendant back to the car.”).2
¶ 24 Thus, whether A.B. was seized presents a close question.
“[C]ourts are properly reluctant to resolve constitutional
questions . . . .” Libertarian Party of Colo. v. Williams, 2016 COA 5,
¶ 22 (quoting Smith v. Robinson, 468 U.S. 992, 1007 (1984)) (cert.
granted in part Sept. 12, 2016). And resolving the unconstitutional
seizure issue is not necessary if — even assuming A.B. was seized
2 But see United States v. Williams, 419 F.3d 1029, 1033 (9th Cir.
2005) (holding that officer’s order to get back into the vehicle merely
maintained the status quo by returning the passenger to his
original position); Rogala v. District of Columbia, 161 F.3d 44, 53
(D.C. Cir. 1998) (A passenger being ordered by the police to get back
into a vehicle that she voluntarily exited was not an unreasonable
seizure because “a police officer has the power to reasonably control
the situation by requiring a passenger to remain in a vehicle during
a traffic stop.”).
10
— the seizure was supported by reasonable suspicion. For the
following reasons, we conclude that it was.
¶ 25 Under Denver Revised Municipal Code 38-89(b):
No person shall use or operate or allow to be
used or operated any loudspeaker, public
address system, radio, tape player, disc player
or other sound-amplifying equipment in or on
a motor vehicle in such a manner as to be
plainly audible at twenty-five (25) feet from the
motor vehicle unless a permit has been
issued . . . .
(Emphasis added.)
¶ 26 The officer testified that he heard loud music coming from the
vehicle that A.B. was in when it was approximately 100 feet away.
These facts gave the officer reasonable suspicion to believe criminal
activity — i.e., a violation of section 38-89(b) — was occurring. See
People v. Grenier, 200 P.3d 1062, 1069 (Colo. App. 2008) (finding
reasonable suspicion to support an investigatory stop where the
defendant’s nearby car was parked in violation of a local ordinance).
¶ 27 Conceding as much, A.B. argues that a potential violation of
section 38-89(b) could not have provided reasonable suspicion as to
him because the officer did not see A.B. operating the radio and his
11
ability to have done so from the back seat was doubtful. This
argument falls short.
¶ 28 The scope of section 38-89(b) is broad: “[n]o person shall use
or operate or allow to be used or operated” a range of
sound-amplifying equipment, including a “loudspeaker, public
address system, radio, tape player, [and] disc player.” Viewing the
facts and circumstances known to the officers when they pulled in
behind the vehicle, reasonable suspicion existed as to all
occupants. At that time, the officers knew only that loud music was
coming from the vehicle. The source could have been a built-in
dashboard radio accessible to front seat passengers or a
stand-alone boombox in the rear passenger seat accessible to A.B.3
Nor did they know who was operating the equipment. See United
States v. Hafford, No. Crim. A. 11-14-BAJ-CN, 2011 WL 2269161,
at *2 (M.D. La. June 7, 2011) (Officer’s “personal detection of loud
music coming from [the defendant’s] vehicle would be sufficient for
3 Indeed, the car stereo could have been controlled from a phone in
the rear seat. See Marcy Rauer Wagman & Rachel Ellen Kopp, The
Digital Revolution Is Being Downloaded: Why and How the Copyright
Act Must Change to Accommodate an Ever-Evolving Music Industry,
13 Vill. Sports & Ent. L.J. 271, 277 n.17 (2006) (“Using [a]
Bluetooth adapter, customers hook the phone directly into their car
stereo . . . .”).
12
the officer to form a reasonable suspicion that the municipal
ordinance was being violated.”); In re A.S., No. 04-10-00621, 2011
WL 1303700, at *3 (Tex. App. Apr. 6, 2011) (“[T]he vehicle in which
[the juvenile] was riding was in violation of [a noise ordinance] . . . .
Therefore, the initial stop of the vehicle and its occupants was
supported by reasonable suspicion . . . .”).
¶ 29 Alternatively, A.B. argues that the evidence does not show a
violation of section 38-89(b) occurred “because there was no
information that any party was actually disturbed.” But his
reliance on Flores v. City & County of Denver, 122 Colo. 71, 75, 220
P.2d 373, 375 (1950) — where the supreme court held “in order
that any person ‘shall disturb the peace of others,’ it is necessary
that the peace of others be actually disturbed, and, to establish the
offense, proof of such actual disturbance is necessary” — is
misplaced.
¶ 30 True enough, a violation of the noise ordinance in Flores
required that “others in the vicinity [be] disturbed thereby.” Id. at
73, 220 P.2d at 374. And such language is also found in section
38-89(a):
13
It shall be unlawful for any person to disturb
or tend to disturb the peace of others by
violent, tumultuous, offensive or obstreperous
conduct or by loud or unusual noises or by
unseemly, profane, obscene or offensive
language calculated to provoke a breach of the
peace or for any person to permit any such
conduct in any house or upon any premises
owned or possessed by such person or under
their management or control, when within
such person’s power to prevent, so that others
in the vicinity are or may be disturbed thereby.
(Emphasis added.)
¶ 31 But section 38-89(b) does not include similar language. Thus,
we decline to interpret this section as requiring the disturbance of
others. Cf. Dep’t of Transp. v. Amerco Real Estate Co., 2016 CO 62,
¶ 32 (“We will not add words to a statute . . . [and] [i]n the absence
of ambiguity, we apply the statute’s language as written.”).
¶ 32 In the end, we conclude that the arresting officers had
reasonable suspicion to seize A.B. based on a suspected violation of
section 38-89(b). Thus, the trial court did not err by denying A.B.’s
suppression motion.
III. Judgment of Acquittal
¶ 33 A.B. next contends that because section 18-12-108(3) does not
identify a deferred adjudication as the predicate felony offense for
14
POWPO, the trial court erred by denying his motion for judgment of
acquittal. We agree.
A. Standard of Review
¶ 34 “When reviewing the denial of a motion for a judgment of
acquittal, we ‘review the record de novo to determine whether the
evidence before the jury was sufficient both in quantity and quality
to sustain the convictions.’” Montes-Rodriguez v. People, 241 P.3d
924, 927 (Colo. 2010) (quoting Dempsey v. People, 117 P.3d 800,
807 (Colo. 2005)).
¶ 35 In doing so, we usually ask whether the relevant evidence,
viewed in the light most favorable to the prosecution, is “substantial
and sufficient to support a conclusion by a reasonable mind that
the defendant is guilty of the charge beyond a reasonable doubt.”
People v. Gonzales, 666 P.2d 123, 127 (Colo. 1983) (quoting People
v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). But
here, because the material facts are not in dispute, “we are not
required to weigh the evidence.” Montes-Rodriguez, 241 P.3d at
927. Instead, we must interpret section 18-12-108(3) de novo “and
then apply it to the facts established at trial.” Id.
15
B. Statutory Construction Principles
¶ 36 Statutes should be interpreted “in strict accordance with the
General Assembly’s purpose and intent in enacting them.” In re
2000-2001 Dist. Grand Jury, 97 P.3d 921, 924 (Colo. 2004). In
determining both purpose and intent, we first look to the language
chosen by the General Assembly, see Martin v. People, 27 P.3d 846,
851 (Colo. 2001), giving words and phrases their “plain and
ordinary meaning,” People v. Dist. Court, 713 P.2d 918, 921 (Colo.
1986). We read and consider the statute as a whole, construing it
“to give consistent, harmonious, and sensible effect to all its parts.”
Id. And we must avoid a construction that would be at odds with
the overall legislative scheme. People v. Garcia, 2016 COA 124,
¶¶ 8-10.
C. Analysis
¶ 37 As to juveniles, section 18-12-108(3) provides:
A person commits the crime of possession of a
weapon by a previous offender if the person
knowingly possesses, uses, or carries upon his
or her person a firearm as described in section
18-1-901(3)(h) or any other weapon that is
subject to the provisions of this article
subsequent to the person’s adjudication for an
act which, if committed by an adult, would
constitute a felony . . . .
16
(Emphasis added.)
¶ 38 A.B. was convicted under this section because when he
possessed the handgun, he was under a one-year deferred
adjudication for an act that would have constituted a felony. This
much is undisputed. But whether the term “adjudication” includes
a “deferred adjudication” under this section has never been
addressed in Colorado. On this question, the parties disagree.
¶ 39 A.B. relies on the plain language. After all, section
18-12-108(3) speaks only of “adjudication,” not “deferred
adjudication.”
¶ 40 In response, the Attorney General argues that because under
section 18-12-108(1)4 the term “conviction” “include[s] pending
deferred judgments for adult offenders,” the term “adjudication” in
4 This section provides:
A person commits the crime of possession of a
weapon by a previous offender if the person
knowingly possesses, uses, or carries upon his
or her person a firearm as described in section
18-1-901(3)(h) or any other weapon that is
subject to the provisions of this article
subsequent to the person’s conviction for a
felony . . . .
§ 18-12-108(1), C.R.S. 2016 (emphasis added).
17
section 18-12-108(3) — by analogy — should include deferred
adjudications. The Attorney General relies on cases uniformly
interpreting the statutory term “conviction” as including a deferred
judgment because the adult defendant pleaded guilty. See People v.
Allaire, 843 P.2d 38, 41 (Colo. App. 1992) (“[T]he term ‘conviction,’
used without any reference to judgment, means merely the
establishment of guilt by plea or verdict.”); see also People v.
Kiniston, 262 P.3d 942, 945 (Colo. App. 2011) (“[T]he legislature
intended the term ‘conviction’ . . . to refer, as relevant here, to
defendant’s . . . guilty plea.”).
¶ 41 At first glance, analogizing these two sections has some allure.
To be sure, the purpose of POWPO “is to limit the possession of
firearms by persons whose past conduct has demonstrated that
they are unfit to be entrusted with such dangerous
instrumentalities.” People v. Allen, 111 P.3d 518, 520 (Colo. App.
2004). And juvenile offenders on deferred adjudications as well as
adult offenders on deferred judgments have engaged in such
conduct. But a closer look reveals several flaws in the Attorney
General’s analysis.
18
¶ 42 True, the definition of adjudication in section 19-1-103(2),
C.R.S. 2016, includes “a juvenile [who] has pled guilty to
committing a delinquent act.” Even so, this definition applies only
to title 19 (Children’s Code). § 19-1-103 (“As used in this title or in
the specified portion of this title, unless the context otherwise
requires . . . .”). In contrast, POWPO is a criminal statute in title 18
(Criminal Code). And “[t]he purposes of the Criminal Code are quite
different from the purposes of the Children’s Code.” People v.
Juvenile Court, 893 P.2d 81, 88 (Colo. 1995). This principle looms
large over our analysis. Had the General Assembly intended
otherwise by making section 19-1-103(2) applicable to section
18-12-108(3), it could have cross-referenced it. See People v. Day,
230 P.3d 1194, 1197 (Colo. 2010) (finding that cross-reference in
sentence enhancing statute to a statute containing a specific
offense shows clear intent for the sentence enhancement provision
to apply to that offense).5
5 Numerous statutes in the Criminal Code refer to the Children’s
Code for definitions. See § 18-4-509, C.R.S. 2016 (The court has
discretion, “in the case of a juvenile offender, to impose restorative
justice, as defined in section 19-1-103(94.1).”); § 18-8-208, C.R.S.
2016 (An element of class 3 misdemeanor escape is that the person
“escapes from a staff secure facility as defined in section
19
¶ 43 But even if the use of “adjudication” in POWPO — without a
separate definition — favors looking to section 19-1-103(2), saying
that “‘adjudication’ means conviction” is not the same as saying
that the term “adjudication” includes a “deferred adjudication,”
much less that “‘deferred adjudication’ means conviction.” To the
contrary, the General Assembly “has expressed its intent to
distinguish an adjudication of juvenile delinquency from a deferred
adjudication both as to definition and effect.” C.B. v. People, 122
P.3d 1065, 1067 (Colo. App. 2005) (emphasis added).
¶ 44 To begin, the statute establishing deferred adjudications,
section 19-2-709(1), C.R.S. 2016, provides:
[I]n any case in which the juvenile has agreed
with the district attorney to enter a plea of
guilty, the court, with the consent of the
juvenile and the district attorney, upon
accepting the guilty plea and entering an order
deferring adjudication, may continue the case
for a period not to exceed one year from the
date of entry of the order deferring
adjudication.
Adjudication does not enter at the time of the order deferring
adjudication. Instead, either the district attorney or probation
19-1-103(101.5).”); § 18-18-407, C.R.S. 2016 (“The defendant
solicited, induced, encouraged, intimidated, employed, hired, or
procured a child, as defined in section 19-1-103(18) . . . .”).
20
officer may submit an “[a]pplication for entry of adjudication . . . at
any time within the term of the deferred adjudication or within
thirty-five days thereafter,” or “[i]f the juvenile fails to comply with
the terms of supervision, the court shall enter an order of
adjudication.” § 19-2-709(3.5) & (4).
¶ 45 If neither scenario occurs — and the juvenile complies with
the conditions of the deferred adjudication — then “the plea of the
juvenile . . . shall be withdrawn and the case dismissed.”
§ 19-2-709(3) (emphasis added). One might wonder why this
section says nothing about the adjudication having to be vacated.
The answer is that at this point, an adjudication has not yet been
entered.
¶ 46 The Attorney General’s argument that “a juvenile who has not
yet completed his deferred adjudication has . . . an existing
conviction” fails for two additional reasons.
¶ 47 First, the argument ignores the differences between the
Criminal Code and the Children’s Code. Under the Criminal Code,
“[t]he acceptance by the court of a plea of guilty . . . acts as a
conviction for the offense.” § 16-7-206(3), C.R.S. 2016. In contrast,
“a Colorado juvenile adjudication is not a felony conviction.” People
21
v. Armand, 873 P.2d 7, 10 (Colo. App. 1993); see People v. Casillas,
2015 COA 15, ¶ 32 (The defendant “was not convicted of a crime,
because a deferred adjudication is not a final conviction.”) (cert.
granted in part May 16, 2016).
¶ 48 Second, where the General Assembly has sought to equate a
deferred adjudication to a conviction, it has done so expressly. See
§ 16-22-102(3), C.R.S. 2016 (Under the Colorado Sex Offender
Registration Act, conviction “means having received . . . a deferred
adjudication.”).
¶ 49 Undaunted, the Attorney General correctly points out that
under C.R.J.P. 1, “[p]roceedings in delinquency shall be conducted
in accordance with the Colorado Rules of Criminal Procedure,
except as otherwise provided by statute or by these rules.” Thus,
the Attorney General continues, a deferred adjudication should be
“treated the same as adult deferred judgments.” But this argument
misses the mark because the Attorney General fails to identify
anything in those rules that illuminates the nature of a deferred
adjudication or the relationship between such an adjudication and
a conviction.
22
¶ 50 Instead, the Attorney General cites People in Interest of K.W.S.,
where the division held — in analyzing a juvenile’s challenge to a
deferred adjudication — that “where a defendant pleads guilty
pursuant to a deferred judgment and sentence agreement, ‘Crim. P.
35 review is not available until a deferred judgment is revoked and
a judgment of conviction entered.’” 192 P.3d 579, 581 (Colo. App.
2008) (quoting People v. Manzanares, 85 P.3d 604, 611 (Colo. App.
2003)). But treating both deferred adjudications and deferred
judgments similarly under Crim. P. 35 does not inform the question
whether a deferred adjudication can be used under POWPO. This
inquiry requires a statutory, not a rule-based, analysis.
¶ 51 With this distinction in mind, we look to statutes that treat
deferred adjudications as distinct from adjudications to light the
path. Under section 16-11.7-102, C.R.S. 2016, a “‘[j]uvenile who
has committed a sexual offense’ means a juvenile who has been
adjudicated as a juvenile or who receives a deferred adjudication.”
(Emphasis added.) Other examples abound.6
6 See also § 18-1-1102(2), C.R.S. 2016 (“For purposes of paragraph
(d) of subsection (1) of this section, conviction shall also include a
juvenile delinquent adjudication or deferred adjudication.”)
(emphasis added); § 18-1.3-104(3)(b), C.R.S. 2016 (“For purposes of
23
¶ 52 But unlike these statutes, section 18-12-108(3) refers only to
“adjudication.” See People v. Rediger, 2015 COA 26, ¶ 29 (“[I]f the
legislature had wanted to include ‘any person carrying out the
duties or functions of a public employee,’ it could have done so by
express language.”) (cert. granted on other grounds Feb. 16, 2016).
Thus, “we must accept the General Assembly’s choice of language
and not add or imply words that simply are not there.” People v.
Benavidez, 222 P.3d 391, 393-94 (Colo. App. 2009).
¶ 53 Given all this, only brief mention need be made of the Attorney
General’s emphasis on the purpose of POWPO to restrict possession
of firearms based on past conduct. At this level, too, adults differ
this subsection (3), ‘convicted’ means a conviction by a jury or by a
court and shall also include a deferred judgment and sentence, a
deferred adjudication, an adjudication, and a plea of guilty or nolo
contendere.”) (emphasis added); § 18-1.3-602(2), C.R.S. 2016
(“‘Conviction’ means . . . adjudication for an offense that would
constitute a criminal offense if committed by an adult. ‘Conviction’
also includes having received a deferred judgment and sentence or
deferred adjudication; except that a person shall not be deemed to
have been convicted if the person has successfully completed a
deferred sentence or deferred adjudication.”) (emphasis added);
§ 18-21-103(1.5), C.R.S. 2016 (“[E]ach juvenile who is adjudicated
for commission of an offense that would constitute a sex offense if
committed by an adult or who receives for such offense a deferred
adjudication shall be required to pay a surcharge to the clerk of the
court in which the adjudication occurs or in which the deferred
adjudication is entered.”) (emphasis added).
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from juveniles. Subject to POWPO and restrictions such as the
“reasonable exercise of the state’s police power,” Rocky Mountain
Gun Owners v. Hickenlooper, 2016 COA 45M, ¶ 21, adults enjoy a
broad constitutional right to possess firearms. See Colo. Const. art.
II, § 13. In contrast, a juvenile’s possession of firearms is limited by
section 18-12-108.5, C.R.S. 2016, which says, “[e]xcept as provided
in this section, it is unlawful for any person who has not attained
the age of eighteen years knowingly to have any handgun in such
person’s possession.”
¶ 54 In sum, because the plain language of section 18-12-108(3)
refers only to a prior “adjudication,” the prosecutor’s evidence of
A.B.’s deferred adjudication did not prove his adjudication under
this section.
¶ 55 The denial of A.B.’s motion to suppress is affirmed, the
adjudication is reversed, the sentence is vacated, and the case is
remanded for entry of a judgment of acquittal.
JUDGE HAWTHORNE and JUDGE NAVARRO concur.
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