Marquez v. People

JUSTICE BOATRIGHT,

concurring in part and dissenting in part.

123 I agree with the majority that the phrase "arising out of the same incident" in section 18-1.3-406, C.R.S. (2018) equates to the phrase "arising from the same eriminal episode" in section 18-1-408(2), CRS. (2013). I believe, however, that the trial court is in a better position than this court to apply the test for measuring whether crimes constitute the same eriminal episode to the facts. As a result, I would issue a remand that is broader in scope than the majority. Instead of remanding the matter to the trial court on the limited issue of whether the defendant's sentences should be concurrent or consecutive, I would also remand the issue of whether the crimes for which the defendant was convicted constitute the same criminal episode. Accordingly, I concur in part and respectfully dissent in part.

1 24 The trial court conducted several pretrial hearings, including two hearings regarding evidentiary matters, a three day jury trial, and a habitual criminal sentencing hearing. As a result, the trial court is in a superior position to this court to accurately determine if the crimes are a result of a "singular behavioral incident." Maj. op. 118. The trial court can more accurately determine if the defendant's acts share a common motivation, mental state, result, cireum-stance, or defense despite different victims, locations, and weapons. Id. 120. Finally, the trial court can more accurately determine if the proof of one crime would form a substantial portion of the proof of another. Id. As we have noted for purposes of making credibility determinations, "[al cold record is a poor substitute for live testimony." People v. Scott, 198 Colo. 371, 373, 600 P.2d 68, 69 (1979).

I 25 In asserting that the matter should be remanded to the trial court I am not expressing an opinion as to how the trial court should resolve it. It is the process from which I dissent, not the conclusion. The trial court should be given the discretion to determine whether the defendant's crimes arose from the same criminal episode.

126 Hence, I concur in part and respectfully dissent in part.

I am authorized to state that JUSTICE RICE and JUSTICE EID join in the concurrence in part and dissent in part.