People v. Brooks , 2017 COA 80 ( 2017 )

COLORADO COURT OF APPEALS 2017COA80
Court of Appeals No. 13CA1750
Boulder County District Court Nos. 11CR1849 & 11CR1850
Honorable Maria E. Berkenkotter, Judge
Honorable Roxanne Bailin, Judge
The People of the State of Colorado,
Plaintiff-Appellee,
v.
Kyle Brooks,
Defendant-Appellant.
JUDGMENT AND SENTENCE AFFIRMED
Division II
Opinion by JUDGE BERGER
Dailey and J. Jones, JJ., concur
Announced June 15, 2017
Cynthia H. Coffman, Attorney General, Christine Brady, Senior Assistant
Attorney General, Denver, Colorado, for Plaintiff-Appellee
Douglas K. Wilson, Colorado State Public Defender, Jud Lohnes, Deputy State
Public Defender, Denver, Colorado, for Defendant-Appellant
¶1 A jury convicted defendant, Kyle Brooks, of eight substantive
offenses, including two counts of tampering with a witness or
victim. The district court adjudicated Brooks a habitual criminal
under section 18-1.3-801(2), C.R.S. 2016, and imposed a statutorily
mandated sentence of twenty-four years’ imprisonment.
¶2 Brooks appeals, claiming that (1) there was insufficient
evidence to support one of his convictions of tampering with a
witness or victim; (2) in adjudicating him a habitual criminal, the
district court improperly took judicial notice of material in court
files; (3) his guilty plea in one of the underlying convictions on the
habitual criminal charges was constitutionally invalid, thus voiding
his habitual criminal conviction; and (4) the court erred in
concluding that his sentence was not disproportionate and in failing
to conduct an extended proportionality review of his sentence.
Because we hold as a matter of first impression that the tampering
with a witness or victim statute does not require that the “attempt”
to tamper actually be communicated to the victim or witness, we
reject Brooks’ sufficiency argument. We also reject his other
contentions and affirm the judgment and sentence.
1
I. Relevant Facts and Procedural History
¶3 Brooks discovered that his girlfriend was pregnant with
another man’s child, argued with her, and then assaulted her. A
bystander called the police. Before the police arrived, Brooks fled.
¶4 The police planned to arrest Brooks when he appeared for an
unrelated court appearance. When officers contacted Brooks at the
courthouse, he resisted arrest and struggled with them. The
officers restrained and arrested him.
¶5 While in jail, Brooks repeatedly telephoned his girlfriend (the
victim) and others in an attempt to persuade them not to testify
against him on the domestic violence charge or to testify falsely.
The jail recorded these conversations and turned them over to the
prosecution. These telephone calls were the basis for Brooks’ first
conviction for tampering with a witness or victim, a class 4 felony.
Brooks does not appeal that conviction.
¶6 After the jail officers learned of these telephone calls, Brooks’
telephone privileges were discontinued, but that did not stop him
from further trying to tamper with the victim. Instead of phone
calls, he wrote letters to the victim to persuade her either not to
testify or to testify falsely on his behalf. Because he knew that if he
2
attempted to mail the letters to the victim they would be intercepted
by the jail, he hid them in an issue of Westword magazine and
asked his cellmate to deliver them to the victim after the cellmate
was released from jail. His cellmate refused to participate and
instead gave the letters to a jail officer. As a result of this
interception, the victim never received the letters. These letters
formed the basis of the prosecution’s second count of tampering
with a witness or victim.
¶7 The jury acquitted Brooks of assault in the second degree
(either a class 4 or class 6 felony) and two counts of disarming a
peace officer (a class 5 felony), but the jury convicted him of two
counts of assault in the third degree against the victim (a class 1
misdemeanor), two counts of assault in the third degree against a
peace officer (a class 1 misdemeanor), resisting arrest (a class 2
misdemeanor), violation of a protection order (a class 1
misdemeanor), and the two counts of tampering with a witness or
victim (both class 4 felonies) discussed above.
¶8 After the jury returned its verdicts, the district court held a
trial on the habitual criminal count and adjudicated Brooks a
3
habitual criminal. The court imposed a twenty-four-year sentence
of imprisonment, as mandated by the habitual criminal statute.
¶9 Brooks requested and received an abbreviated proportionality
review of the mandatory sentence. At the conclusion of that
hearing, the district court concluded that Brooks’ sentence was not
disproportionate to his offenses and denied him an extended
proportionality review.
II. There Was Sufficient Evidence to Support Brooks’ Conviction
For Tampering With a Witness or Victim
¶ 10 Brooks argues that there was insufficient evidence to convict
him of the second count of tampering with a witness or victim
based on the letters because the victim never received them.1
Because this argument relies on an unwarranted reading of the
tampering statute, we reject it.
1 Contrary to the Attorney General’s claim, Brooks did not waive
this argument. Brooks conceded there was sufficient evidence to
convict him of the supposed inchoate crime of attempt to tamper
with a witness or victim, but he did not concede there was sufficient
evidence to convict him of the substantive crime of tampering with a
witness or victim. Because Brooks contended the inchoate crime
and the substantive crime were substantially different, his
concession that there was sufficient evidence to convict him of the
uncharged inchoate crime did not waive his sufficiency of the
evidence claim regarding the substantive crime of which he was
convicted.
4
¶ 11 The statute provides as follows:
A person commits tampering with a witness or
victim if he intentionally attempts without
bribery or threats to induce a witness or victim
or a person he believes is to be called to testify
as a witness or victim in any official proceeding
or who may be called to testify as a witness to
or victim of any crime to:
(a) Testify falsely or unlawfully withhold any
testimony; or
(b) Absent himself from any official proceeding
to which he has been legally summoned; or
(c) Avoid legal process summoning him to
testify.
§ 18-8-707(1), C.R.S. 2016 (emphasis added).
¶ 12 Statutory interpretation is a question of law that we review de
novo. Marsh v. People, 2017 CO 10M, ¶ 19; Wolf Ranch, LLC v. City
of Colorado Springs, 220 P.3d 559, 563 (Colo. 2009). We begin by
applying two principles to the words and phrases at issue in the
statute. First, we give the words and phrases their plain and
ordinary meaning according to the rules of grammar and common
usage. People v. Voth, 2013 CO 61, ¶ 21, Sidman v. Sidman, 2016
COA 44, ¶ 13; § 2-4-101, C.R.S. 2016. Second, we consider the
words or phrases both in the context of the statute and in the
context of any comprehensive statutory scheme of which the statute
5
is a part. Doubleday v. People, 2016 CO 3, ¶ 20; Jefferson Cty. Bd.
of Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010). By
applying these principles, we attempt to determine the General
Assembly’s intended meaning of the words or phrases, and
harmonize that meaning with the comprehensive statutory scheme.
Id. If the statutory language is not susceptible of more than one
reasonable meaning, we enforce it as written and do not resort to
other rules of statutory construction. Davison v. Indus. Claim
Appeals Office, 84 P.3d 1023, 1036 (Colo. 2004); People v. Dist.
Court, 713 P.2d 918, 921 (Colo. 1986).
¶ 13 Brooks argues that while an attempt to tamper need not be
successful, the statute nevertheless requires that the attempt to
tamper must at least reach the victim or witness.2 Because it is
undisputed that the letters did not reach the victim, Brooks claims
that there was insufficient evidence to support his conviction. He
concedes that he is guilty of a criminal attempt, as defined in
section 18-2-101(1), C.R.S. 2016, to tamper with a witness or
2 Brooks did not waive this argument either. He acquiesced in the
trial court’s elemental instruction on tampering with a witness or
victim but did not waive his argument that, to sustain a conviction,
the tampering had to actually be communicated to the victim.
6
victim, but notes that he was not charged with this crime (a crime
that, as we discuss below, does not exist).
¶ 14 We reject this argument because the concept of attempt is
built into the tampering statute — the crime is completed when a
defendant “intentionally attempts” to tamper with a victim or
witness. § 18-8-707(1). If there were such a crime as attempted
tampering with a witness or victim, it would be defined as “engaging
in conduct constituting a substantial step toward the commission of
the offense” of “intentionally attempt[ing]” to tamper with a witness
or victim. See §§ 18-2-101(1), 18-8-707. We conclude that no such
crime exists because it would be illogical to recognize a crime
premised on an attempt to attempt, and “[a] statutory interpretation
leading to an illogical or absurd result will not be followed.” Frazier
v. People, 90 P.3d 807, 811 (Colo. 2004).
¶ 15 People v. Yascavage, 101 P.3d 1090 (Colo. 2004), does not
require a different result. In Yascavage, the Colorado Supreme
Court held that there was insufficient evidence to support the
defendant’s conviction for solicitation to tamper with a witness or
victim. Id. at 1096. Brooks argues that the court’s recognition of
the crime of solicitation to tamper with a witness or victim
7
necessitates the recognition of the crime of attempting to tamper
with a witness or victim. Brooks cites no authority, and we have
found none, for the proposition that the existence of one inchoate
form of an offense requires the existence of other inchoate forms of
the offense.
¶ 16 We also observe that the Yascavage court held that “[t]he
purpose of the [tampering with a witness or victim statute] was to
punish any attempt to induce another to testify falsely or otherwise
to subvert the administration of justice.” Id. at 1092 (emphasis
added). Thus, Yascavage provides no support for Brooks’
contention that there is a crime of attempt to attempt to tamper
with a witness or victim.
¶ 17 Neither does People v. Scialabba, 55 P.3d 207 (Colo. App.
2002), in which the division held that the defendant, who was
charged with witness tampering, was not entitled to an instruction
on the affirmative defense of abandonment. The defendant sent a
letter to the victim trying to convince her not to appear in court and
also asked his mother to tell the victim not to appear in court. Id.
at 210. Because the defendant had completed the crime when he
sent the letter and asked his mother to dissuade the victim from
8
testifying, the division held that he was not entitled to an
abandonment instruction. Id. at 210-11. Contrary to Brooks’
contention, the division did not hold that attempted but
unaccomplished communication with the victim or witness could
not support a conviction under the statute.
¶ 18 Nothing in the plain language of the statute requires that the
defendant actually contact a witness or victim either. Rather, an
attempt by the defendant to do so is all the statute requires in this
respect. The trial court instructed the jury that “attempt” in the
tampering with a witness or victim statute means, “intentionally
engaging in conduct constituting a substantial step toward the
commission of the crime of Tampering with a Witness.”3 The jury
3 Brooks makes a perfunctory argument that the trial court erred
when it defined the word “attempt” by utilizing the definition
contained in the criminal attempt statute, section 18-2-101, C.R.S.
2016. Brooks contends that the common dictionary definition of
“attempt” should have been used instead. The common meaning of
the word attempt is “to make an effort to do, accomplish, solve, or
effect.” Webster’s Third New International Dictionary 140 (2002).
But the use of the statutory definition of criminal attempt was more
favorable to Brooks than the dictionary definition because it
imposed a greater proof burden on the prosecution. Therefore, any
error in this respect could not have harmed Brooks. This
conclusion also makes it unnecessary for us to determine in this
case what meaning should be given to the word “attempt” in the
9
was entitled to find that Brooks did everything within his power to
attempt to unlawfully influence the victim. He wrote the letters,
concealed them from the jail staff, and asked another inmate to
deliver them to the victim. The fact that Brooks’ scheme failed
provides him no defense.
¶ 19 For these reasons, we conclude that there was sufficient
evidence to support Brooks’ second conviction for tampering with a
witness or victim.
III. The District Court Did Not Abuse Its Discretion in Taking
Judicial Notice of Court Files in the Habitual Criminal
Adjudication, and Sufficient Evidence Supported the Habitual
Criminal Adjudication
¶ 20 Brooks argues that the district court abused its discretion in
taking judicial notice of the complete case files of his prior felony
convictions and that without such improper judicial notice there
was insufficient evidence to support the habitual criminal
adjudication.
tampering statute. “[I]f it is not necessary to decide more, it is
necessary not to decide more[.]” PDK Labs. Inc. v. U.S. Drug Enf’t
Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring
in part and concurring in the judgment).
10
¶ 21 A conviction under the habitual criminal statute at issue
requires the prosecution to prove beyond a reasonable doubt that a
defendant has three prior felony convictions arising out of separate
and distinct criminal episodes. § 18-1.3-801(2)(a)(I)(A).
¶ 22 Brooks contends that only by taking judicial notice of
documents that were not properly subject to judicial notice could
the court have found that his prior convictions for criminal trespass
of a dwelling and theft from a person “relate to different criminal
conduct on separate dates and that the People have separately
brought and tried those offenses.” Because the predicate of his
argument is wrong, we reject it.
¶ 23 Brooks concedes (for good reason) that the district court was
entitled to take judicial notice of the registers of actions contained
in the Integrated Colorado Online Network in the underlying cases.
See, e.g., People v. Sa’ra, 117 P.3d 51, 56 (Colo. App. 2004) (“A
court may take judicial notice of the contents of court records in a
related proceeding.”). But he argues that the registers of actions
themselves were insufficient to make a prima facie case that two of
his three prior felonies related to different criminal conduct on
separate dates and were separately brought and tried.
11
¶ 24 The registers of actions for these felony convictions establish
the following:
 In Boulder District Court case number 10CR716, Brooks
pleaded guilty to first degree trespass of a dwelling on June
18, 2010, with an offense date of February 5, 2010.
 In Boulder District Court case number 10CR760, Brooks
pleaded guilty to theft from a person June 18, 2010, with an
offense date of April 17, 2010.
The information contained in the registers of actions made a prima
facie showing that these cases addressed different criminal conduct
that occurred on different dates.
¶ 25 But because Brooks entered guilty pleas in both cases on the
same date and in the same court, whether the prosecution
separately brought and tried these cases is a closer question. The
proof required to establish whether two guilty pleas entered on the
same date would have been separately tried is whether — under the
mandatory joinder statute — they arose out of separate and distinct
criminal episodes. People v. Jones, 967 P.2d 166, 169 (Colo. App.
1997). Information such as the dates on which the crimes were
committed and the types of crimes committed may prove that the
12
crimes were separate and distinct criminal episodes. People v.
Copeland, 976 P.2d 334, 342 (Colo. App. 1998), aff’d, 2 P.3d 1283
(Colo. 2000).
¶ 26 In People v. Jones, 967 P.2d 166, 170 (Colo. App. 1997), it was
plausible that two crimes, which were both burglaries, committed
on consecutive dates, and in the same area, could have arisen from
a single criminal episode. Therefore, without additional evidence
about the underlying convictions, the division concluded that there
was insufficient proof that the defendant’s convictions arose from
separate and distinct criminal episodes. Id.
¶ 27 However, unlike in Jones, the registers of actions relevant to
this case showed that the two prior felony convictions were for
distinct criminal offenses that occurred months apart. Thus, even
though Brooks pleaded guilty on the same day and in the same
court, the registers of actions made a prima facie case that his
criminal trespassing of a dwelling and theft from a person
convictions arose “from charges which, had they not been
adjudicated through the entry of guilty pleas, would have been tried
separately.” Gimmy v. People, 645 P.2d 262, 267 (Colo. 1982).
Both cases were “separately ‘brought’ — i.e., in separate
13
informations, with separate docket numbers, arising out of separate
criminal incidents.” Id.
¶ 28 While Brooks was free to attempt to disprove these facts, he
chose not to do so. It follows that sufficient evidence supported
Brooks’ habitual criminal conviction.
IV. Brooks’ Guilty Plea to Felony Theft Was Valid
¶ 29 Brooks argues that his plea of guilty to felony theft from a
person — his third underlying felony conviction — was
constitutionally invalid and thus could not support his habitual
criminal conviction.
¶ 30 “A prior conviction obtained in a constitutionally invalid
manner cannot be used against an accused in a subsequent
criminal proceeding to support guilt or to increase punishment.”
Lacy v. People, 775 P.2d 1, 4 (Colo. 1989).
¶ 31 To attack the constitutional validity of his prior conviction, a
defendant must make a prima facie showing that the challenged
conviction was unconstitutionally obtained. Watkins v. People, 655
P.2d 834, 837 (Colo. 1982). “A prima facie showing in the context
of this case means evidence which, when considered in a light most
favorable to the defendant with all reasonable inferences drawn in
14
his favor, will permit the court to conclude that the defendant’s plea
of guilty was not understandingly made.” Id.
¶ 32 Brooks arguably made such a prima facie case by
demonstrating that the plea court did not advise him of all the
“critical elements” of felony theft, section 18-4-401(5), C.R.S. 2016.
During the providency hearing, the court had the following
exchange with Brooks:
Court: How do you plead with respect to that
added Count 2 which charges on or about
April 17, 2010, in or triable in the County of
Boulder, State of Colorado, you unlawfully,
feloniously and knowingly took a thing of
value, namely a purse, from the person of
[female victim], in violation of Section 18-4-
401, sub 1, sub 5, CRS?
. . . Mr. Brooks, how do you plead with respect
to added Count 2?
Brooks: I wish to plead guilty, Your Honor.
¶ 33 The court’s advisement and the charging document (which
mirrored the court’s advisement) did not advise Brooks of the
specific intent element of the crime: a defendant must “[i]ntend[] to
deprive the other person permanently of the use or benefit of the
thing of value.” § 18-4-401(1)(a). Thus, for present purposes we
assume that Brooks’ conviction was constitutionally invalid unless
15
the prosecution established by a preponderance of the evidence that
Brooks’ plea met constitutional requirements. Watkins, 655 P.2d at
837.
¶ 34 A plea is constitutionally valid when the defendant enters it
voluntarily and knowingly. Lacy, 775 P.2d at 4. Colorado cases
“have recognized that the degree of explanation that a court should
provide depends on the nature and complexity of the crime and that
no particular litany need be followed in accepting a tendered plea of
guilty.” Id. at 6. The record as a whole must demonstrate that the
defendant understood the critical elements of the crime and the
possible penalty or penalties. Id. at 4-5.
¶ 35 Based on the record as a whole, the district court found that
Brooks’ plea to the theft charge was voluntary and that Brooks
understood the elements of the crime to which he pleaded guilty.
The court found that the facts of the underlying crime were that
Brooks distracted a woman so that another man could steal her
purse. Considering these facts, the court held that “the very nature
of the underlying crime would advise Mr. Brooks . . . that this theft
was one that involved an intent to permanently deprive.” We agree.
16
¶ 36 If the law were as Brooks contends — that the defendant must
always be advised expressly of every element of the crime to validate
the conviction under the habitual criminal statute — we would
agree with him. But the law is otherwise.
¶ 37 Brooks relies on two Colorado Supreme Court cases, People v.
Colosacco, 177 Colo. 219, 493 P.2d 650 (1972), and Lacy, 775 P.2d
1, where the trial court’s failure to include a meaningful explanation
of the specific intent element of the crime was fatal to the validity of
the conviction. But Colosacco and Lacy are factually
distinguishable because in those cases, unlike this one, the
underlying nature of the crime required the court to inform the
defendant of the crime’s specific intent element.
¶ 38 In Colosacco, the defendant pleaded guilty to possession of
counterfeit checks after the judge advised him that the nature of
the charge was “possession of the forged or counterfeit [checks] with
knowledge that they were counterfeit.” 177 Colo. at 221, 493 P.2d
at 650. Under the facts presented, the defendant could have
reasonably believed that he was guilty of the crime simply by
possessing checks, irrespective of whether he intended to pass them
with the intent to defraud. Thus, because the judge “failed . . . to
17
advise the defendant that the intent to utter and pass the notes
with intent to defraud was an essential element of the charge,” the
supreme court concluded that the defendant’s guilty plea was
invalid. Id. at 221-22, 493 P.2d at 650-51.
¶ 39 In Lacy, the Colorado Supreme Court considered a guilty plea
to theft of a car. 775 P.2d at 8. The victim testified that she had
loaned the car to the defendant on past occasions but that she had
not given him permission to use it on the occasion that gave rise to
the theft charge. Id. Therefore, without an explanation of the
specific intent element, the defendant could have reasonably
believed that he was guilty of theft for borrowing the victim’s car,
even if he did not intend to permanently deprive her of it. Because
the providency hearing was “entirely devoid of any accurate or
understandable explanation of the charge,” the defendant’s plea
was invalid. Id. at 9.
¶ 40 The facts and crimes in Colosacco and Lacy are
distinguishable from Brooks’ theft of a purse from a person whom
he did not know. We agree with the district court that it is
inconceivable that forcibly grabbing a stranger’s purse would be for
18
any purpose other than to permanently deprive the owner of her
property.
¶ 41 Several out-of-state cases further support this analysis.
¶ 42 In State v. Gabert, 564 A.2d 1356, 1358 (Vt. 1989), the
defendant pleaded guilty to lewd and lascivious conduct. He
conceded that he understood the charge, but he argued that his
plea was invalid because of “the court’s failure to explain that the
crime involves acts intentionally done ‘with a view to excite
unchaste feelings and passions.’” Id. (citation omitted). The
Vermont Supreme Court rejected this argument, concluding that
the plea was valid because “under the circumstances here further
inquiry about intent was unnecessary. The alleged acts could
hardly give rise to an equivocal motivation . . . .” Id.
¶ 43 In State v. Brooks, 586 P.2d 1270, 1271 (Ariz. 1978), the
defendant challenged the validity of his guilty plea to child
molestation. He argued there was no evidence that he understood
intent to be an essential element of the crime. Id. Under Arizona
law, “[a]n essential element of the offense of child molestation . . . is
that the acts involved be ‘motivated by an unnatural or abnormal
sexual interest or intent with respect to children.’” Id. at 1272
19
(citation omitted). But “[a]t no time during [the court’s] questioning
of defendant prior to [the court’s] acceptance of his guilty plea did
[the court] inquire into his motivation for the offense.” Id. The
Arizona Supreme Court rejected the defendant’s argument because
the “defendant’s acts by their very nature manifest that he was
motivated by an unnatural or abnormal sexual interest or intent
with respect to children.” Id. at 1273.
¶ 44 By contrast, in Patton v. State, 810 N.E.2d 690, 691 (Ind.
2004), the defendant pleaded “guilty to attempted murder without
knowing that specific intent to kill was an element of that offense.”
The Indiana Supreme Court found the defendant’s plea was invalid
because the evidence did not demonstrate specific intent beyond a
reasonable doubt. Id. at 698-99. But the court also held that
“failure of notice that specific intent is an element of attempted
murder will constitute harmless error . . . where during the course
of the guilty plea or sentencing proceedings, the defendant
unambiguously admits to, or there is other evidence of, facts that
demonstrate specific intent beyond a reasonable doubt.” Id. at 696-
97.
20
¶ 45 For all of these reasons, we conclude that the felony theft
conviction was constitutionally valid and that the district court
properly found it to be a predicate felony conviction for Brooks’
habitual criminal adjudication.
¶ 46 Brooks also argues that, in addition to the specific intent
element of theft, the court should have explained the elements of
complicity to him, as was required in People v. Martin, 791 P.2d
1159, 1161-62 (Colo. App. 1989).
¶ 47 In Martin, a division of this court held that a defendant’s guilty
plea was constitutionally defective because the court did not explain
the elements of complicity to him. Id. Defense counsel explained to
the court that the defendant had accepted the fruits of a burglary
and only pleaded guilty to burglary based on a theory of complicity.
Id. at 1161.
¶ 48 However, Martin is different from the present case for three
reasons. First, Brooks was more directly involved in the theft than
the defendant in Martin was in the burglary. Second, Brooks
pleaded guilty as a principal and not, like the defendant in Martin,
as a complicitor. Finally, complicity liability in a burglary by after-
the-fact involvement is more complex than Brooks’ immediate
21
involvement in the crime of theft. Thus, unlike in Martin, the court
did not render Brooks’ plea unconstitutional by failing to explain
the elements of complicity.
¶ 49 For these reasons, we conclude that Brooks made his plea
voluntarily and knowingly and that the district court did not err in
finding that it was a valid prior felony conviction under the habitual
criminal statute.4
V. Brooks’ Habitual Criminal Sentence Was Not Grossly
Disproportionate to His Crimes
¶ 50 A habitual criminal sentence violates the Eighth Amendment if
it is grossly disproportionate to the defendant’s crimes. See People
v. Deroulet, 48 P.3d 520, 523-24 (Colo. 2002). Brooks argues that
the district court erred in concluding that his sentence was not
grossly disproportionate to his crimes and in not granting him an
extended proportionality review. We reject his argument.
4 Although we conclude that Brooks’ plea was voluntary and
knowing, we do not agree with the Attorney General that this is so
solely because Brooks conferred with his counsel. “[A] showing that
defense counsel gave some explanation to his client of the charge to
which the guilty plea is tendered does not by itself sufficiently
demonstrate that the defendant knew the critical elements of the
crime when the plea was entered.” Lacy v. People, 775 P.2d 1, 6
(Colo. 1989).
22
¶ 51 If a defendant challenges the proportionality of a habitual
criminal sentence, the defendant “is entitled to an abbreviated
proportionality review of his or her sentence under the habitual
criminal statute.” People v. Cooper, 205 P.3d 475, 479 (Colo. App.
2008), abrogated on other grounds as recognized by Scott v. People,
2017 CO 16. When conducting an abbreviated proportionality
review, a reviewing court scrutinizes the triggering and predicate
offenses in question to determine “‘whether in combination they are
so lacking in gravity or seriousness’ so as to suggest that the
sentence is grossly disproportionate.” Deroulet, 48 P.3d at 524-25
(citation omitted).
¶ 52 Colorado courts have held that certain crimes are per se grave
or serious. People v. Gaskins, 825 P.2d 30, 37 (Colo. 1992). These
crimes are grave or serious “by their very nature.” Id. For other
crimes, “the determination of whether the crime is grave or serious
depends on the facts and circumstances underlying the offense.”
People v. Hargrove, 2013 COA 165, ¶ 12. Specifically, courts look to
“whether the crime involves violence, and the absolute magnitude of
the crime” and compare that to the culpability and motive of the
defendant. Gaskins, 825 P.2d at 36-37.
23
¶ 53 “If, and only if, that abbreviated proportionality review gives
rise to an inference of gross disproportionality does a . . . court need
to engage in an extended proportionality review,” in which it
compares the sentence at issue to sentences for the same offense in
the same jurisdiction and other jurisdictions. Close v. People, 48
P.3d 528, 536 (Colo. 2002). If the abbreviated proportionality
review yields no inference of gross disproportionality, the district
court must impose the sentence mandated by the habitual criminal
statute. Hargrove, ¶ 14.
¶ 54 Whether an abbreviated proportionality review yields an
inference of gross disproportionality is a question of law that we
review de novo. People v. McNally, 143 P.3d 1062, 1064 (Colo. App.
2005).
A. Triggering Offenses
¶ 55 Tampering with a witness or victim is not a per se “grave or
serious” offense. However, we agree with the district court that the
facts underlying these crimes were grave or serious.
¶ 56 The district court explained that Brooks’ attempts to tamper
with the victim constituted “an extensive and extreme scheme to
tamper with the witness; in fact, I have never seen anything like it.”
24
¶ 57 The prosecution identified at least 250 phone conversations in
which Brooks attempted to tamper with a witness or victim.
Further, as noted above, even after his conduct came to light, his
phone privileges were suspended, and he was charged with the first
count of tampering, Brooks continued his attempts to tamper with
the victim.5 For these reasons, we conclude that his conduct
demonstrated a blatant disregard for the law and thus constituted a
grave or serious offense.
B. Predicate Offenses
¶ 58 We agree with Brooks that his predicate offenses of criminal
trespass of a motor vehicle, criminal trespass of a dwelling, and
theft from a person were not per se grave or serious. None of these
offenses fall within the list of offenses designated as per se grave or
serious by Colorado courts. See Deroulet, 48 P.3d at 524. But, as
we have explained above, that does not end the inquiry. We must
5 To the extent that Brooks argues that his alcohol and drug
problems mitigated the seriousness of his conduct regarding
tampering with a witness or victim, we reject the argument because
we assume that he was not under the influence of drugs or alcohol
while he was in jail pending trial.
25
also consider the particular facts of these offenses to determine if
they were grave or serious. Hargrove, ¶ 12.
¶ 59 The underlying facts of the criminal trespass of a motor vehicle
conviction were that Brooks broke into a victim’s car and stole some
property. As for the criminal trespass of a dwelling conviction, the
underlying facts were that Brooks took property from a house
during a party to which he had been invited. The underlying facts
of Brooks’ theft from a person conviction were that he distracted a
woman by asking for a cigarette, so that another man could steal
her purse.
¶ 60 Even if we assume without deciding that the predicate offenses
were not grave or serious, that too does not end the matter.
Instead, we must consider the triggering and predicate offenses as a
whole. Deroulet, 48 P.3d at 524-25.
C. Comparison of Gravity of Crimes to Severity of Punishment
¶ 61 We now compare the gravity of Brooks’ offenses as a whole to
the severity of his twenty-four-year habitual criminal sentence,
giving great deference to the General Assembly’s determinations of
criminal penalties. Id. at 527.
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¶ 62 While Brooks’ predicate offenses were not per se grave or
serious, Brooks’ triggering offenses were grave or serious. As the
district court explained, Brooks’ tampering was a “persuasive and
unrelenting campaign to manipulate the cooperation of the victim.”
The tampering offenses are notable not only for the number of times
Brooks tried to influence the victim (the prosecution cited 250
phone calls in its first tampering charge) and the blatantly
manipulative nature of the communications, but also for the fact
that Brooks could not be dissuaded from tampering with the victim.
Brooks continued tampering with the victim after the prosecution
charged him with the first count of tampering and his phone
privileges were discontinued. As the district court noted, the nature
of these offenses demonstrates that Brooks was “uncontrollable in
the community and commits crimes and doesn’t appear to be able
to stop committing crimes.”
¶ 63 Further, “it is appropriate for the court conducting the
proportionality review to consider” aggravating or mitigating
information about the defendant. People v. Austin, 799 P.2d 408,
413 (Colo. App. 1990). We recognize that Brooks was acquitted of
several felony charges but also note that he was convicted of the
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lesser included misdemeanor offenses of two counts of assault in
the third degree against his pregnant girlfriend, two counts of third
degree assault against a peace officer, and resisting arrest. All of
these crimes involved violence. Following Austin, we consider
Brooks’ conduct underlying these misdemeanor convictions in
determining whether the sentence imposed was grossly
disproportionate. Considering all of the convictions and the
underlying circumstances as a whole, we agree with the district
court that Brooks’ twenty-four-year mandatory sentence was not
grossly disproportionate.6
VI. Conclusion
¶ 64 The judgment of conviction and sentence are affirmed.
JUDGE DAILEY and JUDGE J. JONES concur.
6 In addition to the offenses discussed above, the district court
considered Brooks’ separate felony conviction for contributing to the
delinquency of a minor, which was entered after his conviction
under the habitual criminal statute. The contributing to the
delinquency of a minor conviction was based on events that
predated the triggering offenses, but the judgment of conviction was
not entered until Brooks was sentenced under the habitual criminal
statute. Therefore, this conviction could not have served as a
predicate offense (and indeed, it was not pleaded as such). People
v. Loyas, 259 P.3d 505, 512 (Colo. App. 2010). Whether erroneous
or not, the district court’s consideration of this conviction does not
alter our analysis or conclusion.
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