People in the Interest of B.D , 2019 COA 57 ( 2019 )

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
April 18, 2019
2019COA57
No. 17CA1924, People in the Interest of B.D. — Juvenile Court
— Delinquency; Crimes — Theft; Criminal Law — Sentencing —
Crimes Against At-Risk Persons
In this delinquency proceeding, a juvenile appeals from a
magistrate’s order adjudicating him delinquent and from the district
court’s order denying his petition for review and adopting the
magistrate’s order and judgment. On appeal, the juvenile contends
the magistrate erred in denying his motion to suppress and in
adjudicating him as a complicitor to an enhanced crime of theft
from an at-risk adult. A division of the court of appeals affirms the
magistrate’s suppression ruling but concludes that, applying People
v. Childress, 2015 CO 65M, there was insufficient evidence to
adjudicate the juvenile as a complicitor to theft from at-risk adult,
§ 18-6.5-103(5), C.R.S. 2018. In doing so, the division extends the
“dual mental state” requirement discussed in Childress from strict
liability offenses to also reach the strict liability sentence enhancer
of theft committed in the presence of an at-risk adult.
COLORADO COURT OF APPEALS 2019COA57
Court of Appeals No. 17CA1924
Jefferson County District Court No. 16JD355
Honorable Ann Gail Meinster, Judge
Honorable Andrew Todd Fitzgerald, Magistrate
The People of the State of Colorado,
Petitioner-Appellee,
In the Interest of B.D.,
Juvenile-Appellant.
JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE WELLING
Webb and Harris, JJ., concur
Announced April 18, 2019
Philip J. Weiser, Attorney General, Gabriel P. Olivares, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee
Tara Jorfald, Alternate Defense Counsel, Lakewood, Colorado, for Juvenile-
Appellant
¶1 In this delinquency proceeding, the juvenile, B.D., appeals
from the magistrate’s order adjudicating him delinquent based on
findings that he committed acts that, if committed by an adult,
would constitute three felonies and one misdemeanor, and from the
district court’s order denying his petition for review and adopting
the magistrate’s order and judgment.
¶2 B.D., along with two other juveniles, broke into two homes and
stole several items. At one of the homes, one of B.D.’s accomplices
crossed paths with the seventy-seven-year-old homeowner. B.D.
was adjudicated delinquent for two counts of felony burglary — one
count for each home — and two counts of theft. One of the theft
counts was a misdemeanor but the other was enhanced to a class 5
felony because it was committed in the presence of an at-risk
person. With respect to the adjudication for theft against an at-risk
person, B.D. was adjudicated only as a complicitor.
¶3 On appeal, B.D. contends that the magistrate erred in denying
his motion to suppress and in adjudicating him as a complicitor on
the enhanced theft charge. We are not persuaded that the
magistrate erred in his suppression ruling, but we do conclude that,
applying People v. Childress, 2015 CO 65M, there was insufficient
1
evidence to adjudicate B.D. as a complicitor to theft from an at-risk
person.
¶4 In Childress, ¶ 29, our supreme court held that a complicitor
can be held criminally responsible for a strict liability crime
committed by another if there is evidence that the complicitor (1)
intended that the principal would commit the strict liability crime
and (2) was aware of those circumstances attending the act or
conduct he or she sought to further that were necessary for
commission of the offense in question. In this case, we are called
on to apply that holding to a statute that enhances the penalty for a
theft that is committed “in the presence of” an at-risk person. § 18-
6.5-103(5), C.R.S. 2018.
¶5 We conclude that the Childress analysis applies to a strict
liability sentence enhancer. Because we also conclude that there
was no evidence that B.D. was aware that the principal would
commit the burglary “in the presence of” an at-risk person, we
reverse the adjudication for felony theft and remand the case for
resentencing. We affirm the judgment in all other respects.
2
I. Background
¶6 One afternoon, a police officer, Gregory Strandberg, received a
report of a home burglary in his patrol area, and he responded to
the scene. When he got there, the homeowner was in his driveway.
The homeowner reported to the officer that he had returned home
to find a young man in his house, and he saw that young man run
out of his house and to the north. Officer Strandberg drove in that
direction; within a few blocks, he saw three young men walking
toward him. Officer Strandberg initially drove past the three young
men but then turned his car around to talk with them. 1
¶7 Officer Strandberg parked his car, got out, and asked the
young men, in a conversational manner, whether they had seen
anything unusual in the neighborhood. During this conversation,
four other officers arrived on scene. Each officer arrived in his own
car, wearing a standard police uniform. The officers were armed,
but at no time did any of the officers remove their guns or tasers
1 Police later learned that two houses in the area had been
burglarized on the same day. At trial, there was evidence
introduced that the same young men were involved with both
burglaries.
3
from their holsters. The officers separated the three juveniles so
that they could talk to each of them without interference from the
others. Officer Strandberg talked with K.K. while another officer,
Sergeant Lewis Tomasetti, questioned B.D.
¶8 Sergeant Tomasetti testified that when he arrived on scene he
moved B.D. about ten feet from the other two juveniles. Then, in a
conversational and calm tone, he asked B.D. for identifying
information and whether he had anything illegal in his possession.
B.D. responded that he had alcohol in his backpack. Sergeant
Tomasetti asked B.D. two times if he could search his backpack.
After B.D. said yes both times, Sergeant Tomasetti searched B.D.’s
backpack and found a bottle of vodka and an iPad. Sergeant
Tomasetti would later learn that both of these items had been
stolen from one of the homes. The only other conversation the two
had was when Sergeant Tomasetti asked B.D. whether his father
was available that afternoon.
¶9 The homeowner arrived on scene a few minutes after Officer
Strandberg’s initial encounter and identified K.K. as the person who
had been in his home. Police then arrested all three juveniles.
4
Only eight minutes had elapsed from when the victim reported the
burglary.
¶ 10 Before trial, B.D. moved to suppress, arguing that (1) he was
subjected to custodial interrogation and, therefore, should have
been advised of his rights pursuant to Miranda v. Arizona, 384 U.S.
436 (1966); (2) he should have had a parent present for his
interrogation pursuant to section 19-2-511, C.R.S. 2018; and (3)
his consent to search the backpack was involuntary. The
magistrate denied B.D.’s motion. The magistrate later conducted a
bench trial and adjudicated B.D. delinquent on all four charges.
The magistrate also concluded that because the victim of one of the
thefts was over seventy years old, B.D. had committed theft from an
at-risk person.
¶ 11 Following sentencing, B.D. timely filed a petition for review in
district court. In a written order, the district court denied B.D.’s
petition for review and adopted the magistrate’s orders and
judgment.
II. Analysis
¶ 12 A petition for district court review of an order entered by a
magistrate is a prerequisite to an appeal of such order. § 19-1-
5
108(5.5), C.R.S. 2018. A district court reviewing a magistrate’s
decision under C.R.M. 7(a) may not alter the magistrate’s factual
findings unless clearly erroneous. C.R.M. 7(a)(9). Appeals to this
court from juvenile adjudications and sentences are conducted
pursuant to the rules of appellate procedure. See §§ 19-1-109(1),
19-2-903(1), C.R.S. 2018. Our review of the district court’s decision
is effectively a second layer of appellate review, and, like the district
court, we must accept the magistrate’s factual findings unless
clearly erroneous. In re Parental Responsibilities Concerning G.E.R.,
264 P.3d 637, 638-39 (Colo. App. 2011). We may, however, set
aside a district court’s order based on errors of law, which we
review de novo. People in Interest of S.G.L., 214 P.3d 580, 583
(Colo. App. 2009).
¶ 13 B.D. raises two issues on appeal. First, he contends that the
magistrate made various errors in his suppression ruling. Second,
he argues there was insufficient evidence to support the
magistrate’s finding that he was a complicitor to theft from an at-
risk person. We reject his first contention, but we agree with his
second.
6
A. Search and Seizure
¶ 14 B.D. argues that police improperly obtained evidence in three
ways. First, he argues that the police obtained incriminating
statements during a custodial interrogation in violation of Miranda. 2
Second, he contends that he was coerced into allowing police to
search his backpack (i.e., that his consent to search his backpack
was not voluntary). And third, he asserts that his fingerprints were
improperly obtained.
1. No Miranda Violation
¶ 15 B.D. argues that he made incriminating statements while
subject to custodial interrogation. But, based on the record, the
only incriminating statement that B.D. made to Sergeant Tomasetti
was that he had alcohol in his backpack. And B.D. was not in
custody when he made this statement.
¶ 16 We review a magistrate’s ruling at a suppression hearing as a
mixed question of law and fact. People v. Stock, 2017 CO 80, ¶ 13.
2 B.D.’s statutory argument that he was entitled to have a parent
present at the interrogation is no different than his constitutional
argument because the statute only applies if the juvenile is under
“custodial interrogation.” § 19-2-511, C.R.S. 2018.
7
In doing so, we defer to the magistrate’s findings of historical fact,
but we assess the legal effect of those facts de novo. Id.
¶ 17 It is undisputed that the police did not give B.D. a Miranda
advisement before questioning him. But such an advisement is
only required when a suspect is in custody and subject to
interrogation. Miranda, 384 U.S. at 438; Effland v. People, 240 P.3d
868, 873 (Colo. 2010). In this case, the parties dispute only
whether B.D. was in custody.
¶ 18 A person is in custody for Miranda purposes if “a reasonable
person in the suspect’s position would have believed that his
freedom of action had been curtailed to a degree associated with a
formal arrest.” People v. Sampson, 2017 CO 100, ¶ 18. This is an
objective inquiry that involves evaluating the totality of the
circumstances surrounding the suspect’s interaction with police.
Id. When making this determination, a court should consider a
number of factors, including the following:
(1) the time, place, and purpose of the
encounter; (2) the persons present during the
interrogation; (3) the words spoken by the
officer to the defendant; (4) the officer’s tone of
voice and general demeanor; (5) the length and
mood of the interrogation; (6) whether any
limitation of movement or other form of
8
restraint was placed on the defendant during
the interrogation; (7) the officer’s response to
any questions asked by the defendant; (8)
whether directions were given to the defendant
during the interrogation; and (9) the
defendant’s verbal or nonverbal response to
such directions.
Id. (quoting People v. Matheny, 46 P.3d 453, 465-66 (Colo. 2002)).
These factors apply equally in juvenile cases, but courts must also
consider the juvenile’s age. People v. N.A.S., 2014 CO 65, ¶ 9 (citing
J.D.B. v. North Carolina, 564 U.S. 261, 277 (2011)).
¶ 19 When B.D. made the statement to Sergeant Tomasetti that he
had alcohol in his backpack, he was on the street, in a public place,
with his friends, being asked questions by a police officer in a calm
and conversational tone. Sergeant Tomasetti testified that the
entire encounter was “low-key” and he was surprised at how
“nonchalant” B.D. was acting. In addition, the encounter up to that
point had only lasted a few minutes. When Sergeant Tomasetti
questioned B.D., they walked only far enough to be out of earshot of
the other officers and juveniles.
¶ 20 As the magistrate recognized, some facts support a finding
that B.D. was in custody. For example, B.D. was separated from
his friends during the interrogation. But B.D. remained out on the
9
street; he was not isolated or secreted away. See People v. Elmarr,
181 P.3d 1157, 1164 (Colo. 2008) (defendant was in custody when
he was “in a small room isolated from others”). Also, B.D. was
sixteen at the time of the encounter, but the fact that he was a
juvenile is not dispositive of custody. N.A.S., ¶ 9. The magistrate
fulfilled his obligation by considering B.D.’s age and properly
balanced that fact with the other relevant factors.
¶ 21 B.D. relies on People v. Polander, 41 P.3d 698 (Colo. 2001), to
support his argument that he was in custody. Polander, however, is
distinguishable. In that case, two officers approached a suspicious
van at approximately 11 p.m. Id. at 701. The officers found three
people in the back of the van and ordered them to get out so they
could be searched for weapons. Id. The occupants complied, and
during the search one of the officers found drugs on the driver and
ordered him to sit on the curb. Id.
¶ 22 The other officer, who was searching the passengers, ordered
them to sit on the curb next to the driver. Id. While the three were
sitting on the curb, police asked who owned a purse that they had
found in the van. Id. The defendant admitted it was her purse. Id.
Because drugs were in the purse, the defendant was charged with
10
possession of narcotics, but before trial she moved to suppress the
statements she made while she was seated on the curb. Id.
¶ 23 The trial court suppressed her statements and our supreme
court affirmed, concluding that the defendant was in custody
because “it was apparent to all that the police had grounds to arrest
the occupants” and that “it [was] clear that the defendant had every
reason to believe she would not be briefly detained and then
released.” Id. at 705. In contrast, B.D. had no reason to believe
that he, or his friends, would be arrested before telling the officer
that he had alcohol in his backpack. Indeed, at that point the
homeowner had not yet identified K.K. and, unlike the defendant in
Polander, B.D. had not yet made any statement acknowledging the
fact that he possessed contraband that might lead to his arrest.
¶ 24 B.D. also argues that he was in custody no later than when
Sergeant Tomasetti took his backpack to search it. Even assuming
that is true, the record does not indicate that B.D. made any
incriminating statements after Sergeant Tomasetti took the
backpack. Further, Miranda’s protections do not apply to physical
evidence. United States v. Patane, 542 U.S. 630, 641 (2004) (stating
that the Constitution’s Self-Incrimination Clause does not require
11
exclusion of a gun the police found as the result of a defendant’s
pre-Miranda consent to a search of his bedroom); People v. Cowart,
244 P.3d 1199, 1206 (Colo. 2010) (“[F]ailure to give a defendant a
Miranda warning does not require suppression of physical fruits of
the suspect’s unwarned but voluntary statements.”).
¶ 25 The evidence that B.D. contends was introduced based on the
search of his backpack was the bottle of vodka and the iPad, both of
which connected B.D. to the burglaries. Those items were admitted
as the fruits of a consensual search. To comply with the
Constitution, however, B.D.’s consent to search must have been
voluntary. That is where we turn next.
2. Voluntariness of Search
¶ 26 “Voluntariness requires a free and unconstrained choice and
consent that is not the result of duress, coercion, or any other form
of undue influence.” People v. Lehmkuhl, 117 P.3d 98, 102 (Colo.
App. 2004). In determining whether a consent is voluntary, we
consider the defendant’s “subjective characteristics, such as age,
education, and knowledge, as well as the circumstances of the
search, such as its location and duration, and the environment in
12
which a defendant gives consent.” People v. Berdahl, 2012 COA
179, ¶ 34.
¶ 27 The record shows that B.D. voluntarily consented to the
search of his backpack. In the few minutes that Sergeant Tomasetti
was talking to B.D., Sergeant Tomasetti did nothing coercive or
deceptive. He asked B.D. if he could search his backpack; B.D.
said yes. Sergeant Tomasetti asked a second time, telling B.D. that
he did not have to consent; B.D. again said yes. There was simply
nothing coercive about this search.
¶ 28 Just as in the custody determination, age is a factor that
courts must consider when determining whether a juvenile’s
consent to search was voluntary. Id. But it is not the only factor.
See People in Interest of S.J., 778 P.2d 1384, 1388 (Colo. 1989)
(concluding that a juvenile, who is not in custody, can consent to a
search so long as the consent is voluntary). The magistrate here
considered whether the consent was voluntary given the totality of
circumstances at issue, including B.D.’s age, and determined that
B.D. had voluntarily consented to the search. The magistrate did
not err in his conclusion.
13
3. Fingerprint Evidence
¶ 29 At trial, an expert testified that fingerprints found in one of the
burglarized homes matched the fingerprints obtained from B.D.
during his arrest. Now, B.D. argues that the fingerprints that police
obtained from him during the booking process were the fruit of an
unlawful search. See Casillas v. People, 2018 CO 78M, ¶ 19 (under
the exclusionary rule, illegally obtained evidence may not be used).
B.D. contends that his arrest and subsequent fingerprinting were
improper because he was in custody when he made his
incriminating statement and because he did not voluntarily consent
to the search of his backpack. But, as we discussed above, there
was nothing unlawful about either the police questioning of B.D. or
the search of his backpack.
¶ 30 Because nothing about the interrogation, search, or arrest of
B.D. was unlawful, police were authorized to obtain B.D.’s
fingerprints as part of the routine identification process that
accompanies an arrest. United States v. Olivares-Rangel, 458 F.3d
1104, 1113 (10th Cir. 2006) (citing Smith v. United States, 324 F.2d
879, 882 (D.C. Cir. 1963)). Accordingly, there was no error
admitting the fingerprint evidence.
14
¶ 31 B.D. makes a related argument that the fingerprint evidence
was unreliable because other evidence, like the fact that the
homeowner identified only K.K. as the burglar, conflicted with the
fingerprint evidence. But B.D. is simply arguing that the magistrate
shouldn’t have placed any weight on the fingerprint evidence. Only
the fact finder can evaluate the weight to be given to the evidence or
resolve conflicts in the evidence. People v. Richardson, 2018 COA
120, ¶ 19. We cannot revisit the weight that the magistrate placed
on evidence.
B. Theft from an At-Risk Person
¶ 32 Finally, B.D. argues that the prosecution presented
insufficient evidence to support the conclusion that he was guilty of
theft in the presence of an at-risk person as a complicitor. We
agree.
¶ 33 A person commits theft if he or she “knowingly obtains,
retains, or exercises control over anything of value of another
without authorization.” § 18-4-401(1), C.R.S. 2018. Theft of items
valued between three hundred and seven hundred fifty dollars is a
class 2 misdemeanor. § 18-4-401(2)(d). But the theft is a class 5
15
felony if the items stolen are worth more than five hundred dollars
and the person
commits any element or portion of the offense
in the presence of the victim . . . and the victim
is an at-risk person, or . . . commits theft
against an at-risk person while acting in a
position of trust, whether or not in the
presence of the victim, or . . . commits theft
against an at-risk person knowing the victim is
an at-risk person, whether in the presence of
the victim or not.
§ 18-6.5-103(5). So, this statute describes three ways in which a
defendant can commit theft from an at-risk person: (1) an element
or portion of the offense is committed in the presence of an at-risk
person; (2) the defendant is in a position of trust as to the at-risk
person; or (3) the theft is committed by a defendant who knows that
the victim is an at-risk person. Id. Each basis is independent of
the others. Cf. People v. Swain, 959 P.2d 426, 430 n.12 (Colo.
1998) (“Generally, the word ‘or’ is a disjunctive particle that denotes
an alternative . . . .”).
¶ 34 And the first of the three options — committing an element or
portion of the offense in the presence of an at-risk person — is a
strict liability sentence enhancer, in that the person committing the
offense does not need to know or be aware that the victim is an at-
16
risk person. See People v. Davis, 935 P.2d 79, 86 (Colo. App. 1996)
(analyzing section 18-6.5-103(4) — at-risk enhancement of robbery
— and “find[ing] no indication that the General Assembly intended
to require that a defendant act with knowledge of the age of a victim
in order to be charged with a crime against an at-risk adult”); cf.
People v. Nardine, 2016 COA 85, ¶ 32 (“[W]e conclude that a
defendant need not know that the victim is ‘at-risk’ in order to be
convicted of unlawful sexual contact on an at-risk juvenile.”); People
v. Suazo, 867 P.2d 161, 170 (Colo. App. 1993) (“The plain language
of the assault on the elderly statute convinces us that the offense
was meant to be a strict liability offense.”).
¶ 35 At trial, the homeowner who was the victim of the enhanced
theft testified that he was seventy-seven years old at the time of the
crime. So he qualified as an at-risk person. § 18-6.5-102(2), (4.5),
C.R.S. 2018 (anyone over seventy is an at-risk person). The
homeowner also testified that he had come face-to-face with one of
the intruders, K.K., as the intruder ran past him and out of the
house. But the prosecution did not present any evidence that B.D.
interacted with, saw, or was seen by the homeowner. Nor was there
17
any evidence presented that K.K. knew that the homeowner was an
at-risk person or that he’d be present.
¶ 36 Still, because the evidence at trial showed that K.K. committed
a portion of the crime in front of the at-risk person (even if K.K.
didn’t know that he did so), B.D. was convicted of theft from an at-
risk person as a complicitor under the portion of the statute
applying to offenses committed “in the presence of” an at-risk
person. § 18-6.5-103(5).
¶ 37 But, B.D. argues that, as a complicitor, he cannot be held
strictly liable for the sentence enhancer when the record contains
no evidence that he was aware that K.K. would commit the theft in
the presence of an at-risk person. We agree.
¶ 38 By statute, “[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. 2018. Our supreme
court has said that the statute applies to strict liability crimes so
long as there is proof that the complicitor has (1) the intent to aid,
abet, advise, or encourage the principal in his criminal act or
18
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. This is
known as the “dual mental state requirement.” Id. We agree with
B.D. that there is no reason why the awareness prong of the “dual
mental state requirement” wouldn’t also apply to a sentence
enhancer like the crimes against at-risk persons statute. Cf. People
v. McKinney, 99 P.3d 1038, 1043 n.8 (Colo. 2004) (“It is also
unclear, in light of Blakely v. Washington, [542] U.S. [296] . . .,
whether the traditional sentence enhancer analysis retains
vitality.”).
¶ 39 A complicitor must be aware of the “circumstances attending
the act or conduct he seeks to further that are necessary for
commission of the offense in question.” Childress, ¶ 29.
“Circumstances attending the act or conduct” means the elements
of the offense describing the prohibited act itself and the
circumstances surrounding its commission. Id. That an at-risk
person is present for an element or portion of the crime is a
circumstance surrounding the commission of a theft that must be
established before a court can impose an enhanced sentence under
19
the at-risk person statute. So, we conclude that there must be
evidence that the complicitor had an awareness of that
circumstance, even if such an awareness is not necessary to hold
the principal accountable.
¶ 40 There is no evidence that B.D. had such an awareness. B.D.
never encountered the victim, and there is no indication from the
record that he was aware that they were robbing an elderly person.
For example, the record does not indicate that K.K. and B.D.
discussed robbing an at-risk person or even discussed the potential
that the victim might be elderly. In the absence of any evidence
establishing that B.D. was aware that the circumstances
surrounding the crime could result in theft in the presence of an at-
risk person, he is liable as a complicitor for theft as a class 2
misdemeanor and not theft from an at-risk person as a class 5
felony. Accordingly, the case must be remanded so that the
mittimus can be amended and B.D. can be resentenced for
misdemeanor theft. See People v. Codding, 191 Colo. 168, 169, 551
P.2d 192, 193 (1976) (where the evidence was insufficient to
support a conviction of felony theft, but was sufficient to sustain a
conviction of the lesser included offense of petty theft, defendant’s
20
conviction of felony theft was reversed and remanded for
resentencing).
¶ 41 The People contend that the “dual mental state requirement”
does not apply to sentence enhancers because they are not
elements of the crime. See People v. Ramirez, 997 P.2d 1200, 1208
(Colo. App. 1999) (holding that a strict liability sentencing enhancer
related to the amount of drugs that a defendant possessed applied
to a complicitor even though there was no evidence that she knew
the amount of drugs the principal possessed), aff’d by an equally
divided court, 43 P.3d 611 (Colo. 2001). But in Childress, decided
sixteen years after Ramirez, the supreme court provided an
expansive definition of the awareness prong of the “dual mental
state requirement.” A defendant must have the awareness not only
of the “elements of the offense describing the prohibited act itself”
but also the “the circumstances surrounding its commission.”
Childress, ¶ 29.
¶ 42 In Childress, a father was held responsible as a complicitor for
the vehicular assault that his son committed while under the
influence even though the father was only a passenger in the car.
Id. at ¶ 4. The supreme court concluded that while the son could
21
be convicted of vehicular assault without any proof that he
knowingly drove under the influence, there must be proof that the
father knew that the son was driving while intoxicated. Id. at ¶ 38;
see § 18-3-205(1)(b)(I), C.R.S. 2018. In other words, it was
necessary to prove that the father was aware of something not
contained within the elements of vehicular assault —that his son
was under the influence.
¶ 43 Much like the knowledge that the son was intoxicated at issue
in Childress, we conclude that the prosecution had to prove that
B.D. was aware of the enhancing circumstances surrounding the
commission of the crime — namely, that an element or portion of
the offense would be committed in the presence of an at-risk person
— before the court could impose an enhanced sentence. Simply
put, we read Childress as requiring proof that B.D. was aware that
the victim was an at-risk person or that an element or portion of the
crime would be committed in the at-risk person’s presence. And we
are not persuaded that the fact that the at-risk person statute is a
sentence enhancer and not an element of the offense is a distinction
of consequence. Cf. Lopez v. People, 113 P.3d 713, 722 (Colo.
2005), as modified on denial of reh’g (June 27, 2005) (recognizing
22
that following Blakely, “[o]n the distinction between sentencing
factors and elements of crimes, the [United States Supreme] Court
impliedly rejected any remaining difference for the purposes of the
jury trial requirement”).
¶ 44 Accordingly, we reverse B.D.’s adjudication on the enhanced
theft charge and remand for resentencing.
III. Conclusion
¶ 45 B.D.’s adjudication and sentence for theft from an at-risk
person are reversed, and the case is remanded for resentencing on
that count as a non-enhanced misdemeanor theft and to amend the
mittimus accordingly. The judgment is affirmed in all other
respects.
JUDGE WEBB and JUDGE HARRIS concur.
23