People v. Espinoza , 2017 COA 122 ( 2017 )

COLORADO COURT OF APPEALS 2017COA122
Court of Appeals No. 15CA1920
Adams County District Court No. 14CR679
Honorable Francis C. Wasserman, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Martin Castruita Espinoza,
Defendant-Appellant.
JUDGMENT AFFIRMED, SENTENCE VACATED,
AND CASE REMANDED WITH DIRECTIONS
Division III
Opinion by JUDGE FREYRE
Webb and Booras, JJ., concur
Announced September 21, 2017
Cynthia H. Coffman, Attorney General, Megan C. Rasband, Assistant Attorney
General, Denver, Colorado, for Plaintiff-Appellee
Lauretta A. Martin Neff, Alternate Defense Counsel, Bayfield, Colorado, for
Defendant-Appellant
¶1 Defendant, Martin Castruita Espinoza, appeals the judgment
of conviction entered on jury verdicts finding him guilty of ten
counts of attempted murder, twenty-three counts of first degree
arson, ten crime of violence counts, and multiple misdemeanors.
Espinoza raises two issues on appeal. First, he challenges the
admissibility of his statements to police, alleging that because he
was in custody during the questioning, the statements were
inadmissible. Second, he contends the trial court misconstrued the
applicable sentencing statutes and erroneously concluded it had to
impose consecutive sentences. The latter contention involves
applying existing law to unique facts.
¶2 We disagree with his first contention and affirm the judgments
of conviction. However, we agree with his second contention, vacate
his 160-year prison sentence, and remand for resentencing.
I. Background
¶3 This case involved the burning of an apartment complex in
which Espinoza had previously lived. Espinoza’s mother lived in
apartment 303, and Espinoza had lived with her until two months
before the fire. The day before the fire, Espinoza’s mother placed all
1
of Espinoza’s personal belongings on the apartment’s balcony. She
texted him and said that he needed to retrieve them.
¶4 The next day, Adams County Sheriff’s deputies and firefighters
responded to a structure fire and found the apartment complex
engulfed in flames. All the residents were able to leave the building.
Espinoza, his mother, his aunt, and his cousin were part of the
crowd watching the building burn. While on scene, Espinoza’s aunt
and cousin told the police that they were concerned that Espinoza
was potentially involved with the fire.
¶5 The police interviewed Espinoza and his family members as
part of the fire investigation. A deputy transported Espinoza to the
police station, where he waited for several hours before being
interviewed.1 Espinoza told the police that he had been
panhandling at a Walmart across the street from the apartment
complex when he saw people running toward the building, saying
1 The trial court did not make a finding of the exact amount of time
Espinoza waited in the interview room. Espinoza states it was
“nearly five hours.” He was brought to the police station
somewhere between a half hour and forty-five minutes after 1:44
p.m. No testimony was offered regarding how long it took to get to
the police station from the scene or how long it took Espinoza to get
from the patrol car to the interview room.
2
there was a fire. After observing the fire for himself, Espinoza called
his sister from the Walmart courtesy phone and told her he was
across the street at Walmart and could see the fire. Police ended
the interview when Espinoza invoked his right to counsel.
¶6 A Walmart surveillance video showed that the fire started on
the third floor of the apartment building, that Espinoza was in the
Walmart parking lot, and that he used the courtesy phone. Arson
investigators concluded that the fire was incendiary and had started
on the balcony of apartment 303. A Walmart employee described a
male matching Espinoza’s description using the courtesy phone and
smelling like charcoal, lighter fluid, and smoke.
II. Custodial Interrogation
¶7 Espinoza contends that the trial court failed to consider
several factors in finding that he was not in custody at the police
station, including the several-hour wait in the interview room, the
presence of two armed detectives during the interview, and the
confrontational question near the end of the interview. Because the
trial court’s detailed factual findings, supported by the record, show
that Espinoza was not in custody, we affirm its order denying
Espinoza’s motion to suppress.
3
A. Additional Facts
¶8 Before trial, Espinoza moved to suppress his statements from
a videotaped interview with the police. He claimed that he was in
custody and that the police failed to give him Miranda2 warnings.
The trial court rejected his custody claim and, in a detailed order,
made the following findings:
 Police learned that Espinoza was a potential suspect at
the scene. Acknowledging that they had no probable
cause, the police requested that he come to the police
station for an interview, and Espinoza agreed.
 Espinoza had no transportation and accepted a ride from
an officer.
 Espinoza consented to a pat-down search before entering
the officer’s car.
 Police did not handcuff Espinoza.
 Police found a lighter in Espinoza’s pocket and asked to
keep it. Espinoza did not object.
2 Miranda v. Arizona, 384 U.S. 436 (1966).
4
 Once at the police station, an officer took Espinoza
through at least one locked door to the detective division
on the second floor.
 The officer placed Espinoza in an interview room,
unrestrained, and provided him with a bottle of water.
 Espinoza’s mother and stepfather were also at the police
station in a different room.
 After “some time” and the completion of two other
interviews, two detectives interviewed Espinoza.
 The tone of the interview was conversational, and the
detectives used no coercive interrogation methods or
techniques.
 The detectives wore plain clothes.
 One of the detectives told Espinoza that he was not
under arrest and was free to leave.
 Although closed, the door was located next to Espinoza
and nothing blocked his exit from the interview room.
 Espinoza acknowledged a history of substance abuse and
became emotional when speaking about his mother.
5
 Espinoza was not psychologically unstable, did not
appear intellectually impaired, was not physically
impaired, was not ill, and was not incoherent.
 Espinoza was responsive to questions and very
cooperative.
 When confronted with potential evidence that might
refute his statements, Espinoza stated he understood the
criminal justice system. He explained that if he was a
suspect, he wanted a lawyer and wanted to leave. He
repeated this statement.
 The detectives released Espinoza within five minutes of
his request to leave and after collecting his clothing as
evidence.
 Espinoza became emotional during the clothing
collection, and the detectives never informed him he
could refuse their request to collect it.
 The interview lasted for a relatively short period of time.
Although not mentioned by the court, the record also established
the following:
 Both detectives were armed during the interrogation.
6
 The interrogation was in a secured, non-public area of
the police station. There were double doors that needed
to be unlocked to enter, but did not need to be unlocked
to exit.
 Espinoza sat in the interview room for several hours
before the interview began.
 The interview lasted twenty-seven minutes.
¶9 The trial court concluded that the totality of the circumstances
demonstrated that Espinoza voluntarily spoke with the detectives
and was not in custody when he did so.
B. Standard of Review and Applicable Law
¶ 10 Whether a defendant is “in custody” for Miranda purposes
presents a mixed question of law and fact. Effland v. People, 240
P.3d 868, 873 (Colo. 2010). We defer to the trial court’s factual
findings and uphold them on review where they are supported by
competent evidence in the record. Id. at 878; People v. Matheny, 46
P.3d 453, 462 (Colo. 2002). However, we review the legal effect of
the facts de novo. Matheny, 46 P.3d at 462. We also may consider
undisputed facts evident in the record, including those shown by a
7
video recording of an interrogation. People v. Pleshakov, 2013 CO
18, ¶ 16.
¶ 11 A suspect is “in custody” for purposes of Miranda if “under the
totality of the circumstances, a reasonable person in the
defendant’s position would consider himself to be deprived of his
freedom of action to the degree associated with a formal arrest.”
Matheny, 46 P.3d at 468. In determining custody, a court should
consider the following non-exhaustive factors, none of which is
determinative:
(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
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.
People v. Begay, 2014 CO 41, ¶ 17 (quoting Matheny, 46 P.3d at
465-66); Effland, 240 P.3d at 874. Additionally, the court may
consider the following circumstances:
8
(10) “whether the officers told the defendant he was free
to leave”;
(11) “whether the officers used a degree of force
traditionally associated with custody and arrest”; and
(12) whether the defendant “appeared to be the prime
suspect in the investigation.”
People v. Holt, 233 P.3d 1194, 1195, 1197 (Colo. 2010). The
Miranda custody determination requires applying an objective,
reasonable person standard. Matheny, 46 P.3d at 465.
C. Application
¶ 12 We conclude that the trial court properly found that Espinoza
was not in custody for Miranda purposes when detectives
interviewed him. The record shows that Espinoza agreed to speak
with the detectives, consented to a pat-down search, and rode
unrestrained to the police station. See Pleshakov, ¶¶ 27-34 (the
defendant was not in custody even though police ordered him out of
his vehicle and patted him down for weapons). The detectives told
Espinoza he was not under arrest and was free to leave. See
Matheny, 46 P.3d at 467 (telling the defendant he was not under
arrest and asking him to come to the police station supported a
9
finding of no custody); see also People v. Hankins, 201 P.3d 1215,
1219 (Colo. 2009) (repeated statements to the defendant that he
was free to leave supported a finding of no custody).
¶ 13 The record further shows that Espinoza was not physically
restrained and that the tone of the interview was conversational.
See People v. Cowart, 244 P.3d 1199, 1204 (Colo. 2010) (lack of
physical restraint and officer’s conversational tone supported the
conclusion that defendant was not in custody). And, although
Espinoza was separated from his mother and stepfather, the record
supports the court’s finding that the detectives did not employ
coercive interrogation methods. See People v. Minjarez, 81 P.3d
348, 353 (Colo. 2003) (“The Miranda Court was particularly
concerned about . . . coercive interrogation techniques applied to
individuals who are isolated and deprived of contact with friends
and family.”).
¶ 14 We are not persuaded by Espinoza’s reliance on People v.
Elmarr, where the court found the defendant was in custody based
in part on the officers’ transport of the defendant to the police
station, his placement into a nonpublic room with the door closed,
fifty minutes of aggressive questioning, and detention at the police
10
station for nearly an hour after he asked to leave. 181 P.3d 1157,
1163 (Colo. 2008). The court noted that the case was a close one
and said, “[i]mportantly, [Elmarr] was never told he was not under
arrest, or that he was free to leave.” Id.¶ 15 In contrast, the detectives told Espinoza that he was not under
arrest and was free to leave. Moreover, the interview was
conversational and lasted for only twenty-seven minutes. Finally,
when Espinoza requested counsel, the police immediately ceased
questioning and released him five minutes later.
¶ 16 Additionally, we are not convinced that the detectives’
confrontation of Espinoza with evidence that might refute his
statement requires a different result. Espinoza said that he
understood the criminal justice system and immediately invoked
his right to counsel in response to the confrontation. See People v.
Figueroa-Ortega, 2012 CO 51, ¶ 10 (“[M]erely confronting a suspect
with the evidence against him . . . does not, by itself, constitute an
infringement on his liberty, much less the kind of infringement
associated with a formal arrest.”).
¶ 17 Further, while we agree that the detectives’ visible firearms
were part of the totality of the circumstances, they did not create a
11
custodial situation because the detectives did not make a show of
force or restrain Espinoza in any way. See People v. Barraza, 2013
CO 20, ¶ 22 (the presence of four uniformed officers did not create a
custodial situation where none of them drew weapons, handcuffed
the defendant, or used any type of force against him).
¶ 18 After considering the totality of the circumstances, we
conclude that substantial record evidence supports the court’s
finding that Espinoza was not restrained to the degree associated
with a formal arrest and therefore was not in custody when
interviewed by the detectives.
III. Concurrent or Consecutive Sentencing
¶ 19 Espinoza next contends that the court misapprehended the
applicable law when it ruled that it was required to impose
consecutive sentences for his attempted first degree murder
convictions. We agree.
A. Additional Facts
¶ 20 Espinoza does not dispute that the prosecution’s evidence
established that he started a fire on the balcony of his mother’s
apartment. As relevant to the sentencing issue, a jury convicted
him of ten counts of attempted first degree murder, each naming a
12
different victim, and ten crime of violence sentence enhancers. The
court sentenced Espinoza to sixteen years in prison for each
attempted murder conviction and concluded that the crime of
violence statute, section 18-1.3-406(1)(a), C.R.S. 2017, mandated
consecutive sentences. It reasoned “that a person convicted of two
or more separate crimes of violence arising out of the same incident
shall be sentenced for such crimes so that the sentences are served
consecutively rather than concurrently,” and that “the Court of
Appeals [has] held that when each crime is a separate crime of
violence, this section requires the Court to impose consecutive
sentences for each offense.” It concluded that each attempted first
degree murder conviction constituted a separate crime of violence
requiring consecutive sentences.
B. Standard of Review and Applicable Law
¶ 21 We review a trial court’s sentencing decision for an abuse of
discretion. People v. Muckle, 107 P.3d 380, 382 (Colo. 2005). A
trial court abuses its discretion if its ruling is “manifestly arbitrary,
unreasonable, unfair, or contrary to law.” Dickinson v. Lincoln Bldg.
Corp., 2015 COA 170M, ¶ 7. However, we review questions of
statutory interpretation, including a trial court’s application of the
13
sentencing statutes, de novo. Juhl v. People, 172 P.3d 896, 902
(Colo. 2007); People v. Torrez, 2013 COA 37, ¶ 32; People v. Phillips,
2012 COA 176, ¶ 171.
¶ 22 Our primary goal is to give effect to the General Assembly’s
purpose or intent in enacting the statute. Jefferson Cty. Bd. of
Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010); People v.
Cooper, 27 P.3d 348, 354 (Colo. 2001). We begin by looking to the
express language of the statute. Gerganoff, 241 P.3d at 935. We
must read words and phrases “in context” and in accordance with
“the rules of grammar and common usage.” § 2-4-101, C.R.S.
2017; Griego v. People, 19 P.3d 1, 7 (Colo. 2001). In so doing, we
must give effect to the entire statute. § 2-4-201(1)(b), C.R.S. 2017;
see also A.S. v. People, 2013 CO 63, ¶ 12.
¶ 23 If the statutory language is unambiguous and the legislative
intent is reasonably certain, we look no further. Gerganoff, 241
P.3d at 935. However, if the language is ambiguous, or if the
statute appears to conflict with other provisions, then we may
consider other factors, such as legislative history or the
consequences of a particular construction. § 2-4-203, C.R.S. 2017;
Cooper, 27 P.3d at 354.
14
¶ 24 If statutes governing the same subject appear to conflict, we
must attempt to reconcile them by giving “harmonious and sensible
effect” to all parts of the statutory scheme. Cooper, 27 P.3d at 354
(quoting Martin v. People, 27 P.3d 846, 851 (Colo. 2001)). If the
conflict is irreconcilable, however, a “special or local provision
prevails as an exception to [a] general provision, unless the general
provision is the later adoption and the manifest intent is that the
general provision prevail.” Id. at 355 (quoting § 2-4-205, C.R.S.
2017).
¶ 25 When a court “imposes consecutive sentences under the
mistaken belief that it has no discretion to impose concurrent
sentences,” “[a] remand for resentencing is appropriate.” People v.
O’Connell, 134 P.3d 460, 466 (Colo. App. 2005).
C. Application
¶ 26 We begin by concluding that the general provision of
section 18-1-408(3), C.R.S. 2017, which authorizes discretionary
consecutive sentences in multi-victim cases, can be reconciled with
section 18-1.3-406(1)(a), which requires consecutive sentencing for
“separate crimes of violence.” Next, we conclude that Espinoza’s
ten attempted murder convictions were supported by identical
15
evidence, despite naming different victims, because the same
evidence formed the basis of each conviction. Last, we hold that
separately named victims do not create separate crimes of violence
under section 18-1.3-406(1)(a) when identical evidence supports
each conviction, and in such circumstances, a court retains
discretion to impose concurrent sentences under
section 18-1-408(3).
1. The “[I]dentical [E]vidence” Provision of Section 18-1-408(3)
Can Be Reconciled with the “[S]eparate [C]rimes” Provision of
Section 18-1.3-406(1)(a)
¶ 27 Part 4 of title 18, article 1 of the Colorado Revised Statutes,
entitled “Rights of Defendant,” confers substantive rights “upon
every person accused of an offense.” § 18-1-401, C.R.S. 2017.
Under section 18-1-408, specific procedures and sentencing rules
apply where a defendant is charged with separate counts “based on
the same act or series of acts arising from the same criminal
episode.” § 18-1-408(2). Where such counts “are supported by
identical evidence . . . the sentences imposed shall run
concurrently; except that, where multiple victims are involved, the
court may, within its discretion, impose consecutive sentences.”
§ 18-1-408(3) (emphasis added).
16
¶ 28 Section 18-1.3-406 is titled “Mandatory sentences for violent
crimes - definitions.” It requires that “a person convicted of two or
more separate crimes of violence arising out of the same incident
[shall be sentenced for such crimes] so that his or her sentences are
served consecutively rather than concurrently.” § 18-1.3-406(1)(a).3
¶ 29 At first glance, sections 18-1-408(3) and 18-1.3-406(1)(a)
appear to conflict. Both apply to violent crimes (because part 4
applies to every person accused), and both restrict a trial court’s
sentencing discretion in situations where there are multiple counts
arising from a single criminal episode. See Marquez v. People, 2013
CO 58, ¶ 22 (“same criminal episode” under § 18-1-408(2) and
“same incident” under § 18-1.3-406(1)(a) mean the same thing).
One generally requires concurrent sentencing and allows
consecutive sentencing only in circumstances involving multiple
victims, while the other requires consecutive sentencing.
3 Although not applicable here, we note that section
18-1.3-406(1)(c), C.R.S. 2017, permits a court to impose concurrent
sentences for two or more separate crimes of violence arising out of
the same incident when one of the crimes is aggravated robbery,
second degree assault, or escape.
17
¶ 30 Several divisions of this court have reconciled these two
provisions by reasoning that “separate crimes” under
section 18-1.3-406(1)(a) are those crimes that are not “based on the
same act or series of acts” and are not “supported by identical
evidence” under section 18-1-408(2), (3). People v. O’Shaughnessy,
275 P.3d 687, 697 (Colo. App. 2010), aff’d but criticized on other
grounds, 2012 CO 9; People v. Jurado, 30 P.3d 769, 773 (Colo. App.
2001); People v. Hahn, 813 P.2d 782, 784 (Colo. App. 1991).
¶ 31 We find this reconciliation persuasive. It follows from the
ordinary meanings of “identical” and “separate.” Moreover, it gives
harmonious and sensible effect to both provisions by continuing to
protect defendants from excessive punishment for crimes based on
identical evidence while, at the same time, requiring harsher
punishments for separate acts of violence.
¶ 32 Accordingly, we conclude that sections 18-1-408(3) and
18-1.3-406(1)(a) do not conflict, but instead provide for different
sentencing requirements in two non-overlapping sets of
circumstances. For multiple violent crimes arising from the same
criminal episode, section 18-1-408(3) requires concurrent
sentencing for counts based on the “same act or series of acts” and
18
supported by “identical evidence,” § 18-1-408(2), (3), but in cases of
multiple victims authorizes the court to impose consecutive
sentences in its discretion. All other violent crimes arising from the
same criminal episode and not supported by identical evidence are
“separate” under section 18-1.3-406(1)(a), and therefore require
consecutive sentencing.
2. The Attempted First Degree Murder Convictions are Supported
by “[I]dentical [E]vidence”
¶ 33 Espinoza’s convictions for attempted first degree murder are
not “separate crimes of violence” under section 18-1.3-406(1)(a).
The relevant question in this context is whether the evidence
supporting each conviction is identical and therefore not separate.
See Jurado, 30 P.3d at 773 (consecutive sentencing is required
when “evidence supporting the convictions is not ‘identical’ within
the meaning of § 18-1-408(3)”). “To determine whether the evidence
is identical, a court must decide whether the separate convictions
were based on more than one distinct act and, if so, whether those
acts were separated by time and place.” People v. Glasser, 293 P.3d
68, 79 (Colo. App. 2011). This inquiry “is not a strict analysis to
determine if one particular fact is necessary to one conviction, but
19
not the other, thereby making the evidence identical or not
identical.” Juhl, 172 P.3d at 902. Instead, the answer “turns on
whether the charges result from the same act, so that the evidence
of the act is identical, or from two or more acts fairly considered to
be separate acts, so that the evidence is different.” Id.
¶ 34 Here, no one disputes that a single act of arson caused the
building to catch fire or that multiple victims suffered harm as a
result of the single act of fire-setting. See, e.g., O’Shaughnessy, 275
P.3d at 697 (imposing mandatory consecutive sentences for
attempted murder, attempted aggravated robbery, and second
degree assault was error because “all three offenses were based on
identical evidence and occurred in a single criminal episode lasting
less than sixty seconds”). The evidence supporting each attempted
murder conviction was identical (one fire-setting), and no evidence
shows that Espinoza performed separate, volitional acts against any
of the named victims, separated by time or place. See Hahn, 813
P.2d at 784 (“[I]f guilt of two or more crimes of violence is
established by identical evidence, the crimes are not ‘separate[.]’”);
cf. Qureshi v. Dist. Court, 727 P.2d 45, 47 (Colo. 1986) (the
defendant’s initial stabbing of the victim’s abdomen followed by the
20
victim’s escape to another area of the apartment and the
defendant’s attempted stabbing of her in the bathroom “were two
separate and different sets of acts which occasioned two crimes”).
¶ 35 Even so, the People argue that because multiple victims are
involved, the evidence is not identical and, therefore, the trial court
properly refused to exercise its discretion. This argument has
support. Indeed, several divisions of this court have concluded that
crimes involving multiple victims were not based on identical
evidence because each count involved evidence about a different
victim. See People v. Harris, 2016 COA 159, ¶ 56 (“We conclude
that the existence of multiple victims created factually distinct
offenses.”); People v. Grant, 30 P.3d 667, 670 (Colo. App. 2000)
(“[W]hen multiple convictions arise from crimes committed upon
different victims, the evidence is not identical.”), aff’d, 48 P.3d 543(Colo. 2002); People v. Wafai, 713 P.2d 1354, 1357 (Colo. App.
1985) (“[D]efendant’s multiple convictions arise from crimes
committed upon different victims; therefore, the evidence is not
identical, and § 18-1-408(3), C.R.S. (1978 Repl. Vol. 8) is
inapplicable.”), aff’d, 750 P.2d 37 (Colo. 1988); People v. Cullen, 695
P.2d 750, 752 (Colo. App. 1984) (“[W]here, as here, the multiple
21
convictions arise from crimes committed upon multiple victims, the
evidence is not identical and therefore that statute [§ 18-1-408(3)] is
inapplicable.”); see also Hahn, 813 P.2d at 784 (considering fact
that there were “separate victims” as one consideration among
several that established separate violent crimes). However, these
cases are distinguishable on their facts.
¶ 36 For instance, Harris did not concern the crime of violence
statute or its interplay with section 18-1-408. Harris contended
that her multiple convictions for animal cruelty violated double
jeopardy and should be merged into a single conviction because
they were based on identical evidence. Harris, ¶ 37. The division
rejected this argument, holding that the neglect of each animal,
which occurred over a period of time, was a separate volitional act
that constituted separate offenses for double jeopardy purposes. Id.
at ¶ 53. It affirmed the separate convictions and the concurrent
sentences imposed thereon. Id. at ¶¶ 56-57.
¶ 37 Similarly, the Grant case did not involve the crime of violence
statute or its interplay with section 18-1-408. Rather, the trial
court concluded that section 18-1-408(3) did not authorize
consecutive sentences for multiple convictions arising from crimes
22
committed against different victims. Grant, 30 P.3d at 670. A
division of this court disapproved that ruling, noting that the plain
language of the statute gave the court discretion to impose
consecutive sentences for multiple crimes involving different
victims. Id.¶ 38 True enough, Hahn, Wafai, and Cullen all concerned crimes of
violence involving more than one victim; yet, all are distinguishable
from this case. The Hahn division determined that the defendant’s
swerving maneuvers directed at two different police cars during a
single eluding formed distinct factual predicates for two assault
convictions. 813 P.2d at 783. It concluded that because different
evidence was required to establish guilt for each assault, the
assaults were “separate” crimes under the crime of violence statute
and required consecutive sentences. Id. at 784.
¶ 39 Wafai and Cullen both involved double murders in which the
trial courts imposed discretionary consecutive life sentences for the
two convictions. Citing to section 18-1-408(3), both divisions
concluded that consecutive sentences could be imposed because
different evidence would be needed to prove the deaths of the
separate victims. Wafai, 713 P.2d at 1357; Cullen, 695 P.2d at 752.
23
¶ 40 In contrast to these cases, the record here shows a single
volitional act of fire-setting on the balcony of apartment 303. This
single act destroyed multiple apartments and threatened the lives of
multiple victims. Because the evidence required to prove all ten
attempted murder counts is identical (the single act of fire-setting),
the attempted murder convictions are not “separate crimes” under
section 18-1.3-406(1)(a) and consecutive sentencing was not
required. See Juhl, 172 P.3d at 902 (whether two charges are
supported by identical evidence turns on whether they result from
the same criminal act).
¶ 41 Finally, we note that adoption of the People’s argument would
render the plain language of section 18-1-408(3) meaningless.
Specifically, following their reasoning, two crimes of violence
naming different victims and supported by identical evidence would
simultaneously require mandatory consecutive sentencing under
section 18-1.3-406(1)(a) and discretionary consecutive sentencing
under section 18-1-408(3). In our view, to give effect to the plain
language of both statutes, some evidence beyond the existence of
multiple victims must exist to establish a “separate crime[]” under
section 18-1.3-406(1)(a). Because that evidence did not exist here,
24
we conclude the trial court erred when it found that consecutive
sentences were mandatory. Therefore, we vacate Espinoza’s
sentence and remand for resentencing.
IV. Conclusion
¶ 42 We affirm the judgments of conviction. We vacate the
sentence and remand the case for resentencing consistent with this
opinion.
JUDGE WEBB and JUDGE BOORAS concur.
25