COLORADO COURT OF APPEALS                                      2016COA170


Court of Appeals No. 15CA2015
City and County of Denver Juvenile Court Nos. 15JD668 & 15JD699
Honorable D. Brett Woods, Judge


The People of the State of Colorado,

Petitioner-Appellee,

In the Interest of A.B.,

Juvenile-Appellant.


          JUDGMENT AFFIRMED IN PART, REVERSED IN PART,
      SENTENCE VACATED, AND CASE REMANDED WITH DIRECTIONS

                                  Division III
                           Opinion by JUDGE WEBB
                       Hawthorne and Navarro, JJ., concur

                           Announced November 17, 2016


Cynthia H. Coffman, Attorney General, Joseph G. Michaels, Assistant Attorney
General, Denver, Colorado, for Petitioner-Appellee

Michael S. Juba, Alternate Defense Counsel, Denver, Colorado, for
Juvenile-Appellant
¶1    The Denver Juvenile Court found A.B., a juvenile, guilty of

 possession of a weapon by a previous offender (POWPO),

 adjudicated him a delinquent, and imposed a sentence of one to two

 years in the Division of Youth Corrections. On appeal, A.B.

 contends the court erred in denying his motion to suppress the

 weapon as the fruit of an unlawful seizure; in treating a pending

 deferred adjudication as a prior adjudication for purposes of

 POWPO; and in finding him a repeat juvenile offender — based on

 the same deferred adjudication — for sentencing. Both of the

 deferred adjudication contentions raise novel questions in Colorado.

¶2    We affirm the denial of A.B.’s motion to suppress because even

 assuming that a seizure of A.B. occurred when the police contacted

 him, they had a reasonable suspicion that he had violated Denver

 Revised Municipal Code 38-39, entitled “Disturbance of the peace.”

 But because we conclude that a prior deferred adjudication does

 not satisfy the prior adjudication element of POWPO, we reverse

 A.B.’s adjudication.1




 1 Given this conclusion, we need not address A.B.’s repeat juvenile
 offender contention, which affects only sentencing.

                                   1
                I. Background and Procedural History

¶3    On May 6, 2015, the Adams County District Court accepted

 A.B.’s agreement to a deferred adjudication on a charge of

 aggravated motor vehicle theft in the first degree, a felony, and

 deferred entry of adjudication for one year. Based on the county of

 A.B.’s residence, the case was transferred to the Denver Juvenile

 Court as 15JD668.

¶4    Less than four months later, Denver police officers arrested

 A.B. on the POWPO charge at issue.

¶5    The juvenile court held an evidentiary hearing on A.B.’s

 motion to suppress the weapon. One of the officers testified to how

 he had found a handgun in the back seat of a car in which A.B. was

 a passenger, as discussed fully in Part II below. The court denied

 the motion. Then the court proceeded to trial, with the officer

 presenting the same testimony. The prosecution’s evidence

 included the deferred adjudication in 15JD668.

¶6    When the prosecution rested, A.B. moved for judgment of

 acquittal. He conceded the deferred adjudication involved a felony,

 but he argued that it did not constitute proof of a prior adjudication

 for purposes of POWPO. As to juveniles, POWPO prohibits


                                   2
 possessing a firearm “subsequent to the person’s adjudication for

 an act which, if committed by an adult, would constitute a felony.”

 § 18-12-108(3), C.R.S. 2016 (emphasis added). The court denied

 the motion, A.B. declined to present any evidence, and the court

 found him guilty.

¶7    At sentencing, the prosecutor urged the court to find A.B. a

 repeat juvenile offender, again based on the deferred adjudication.

 The court revoked the deferred adjudication, on that basis found

 A.B. a repeat juvenile offender, and imposed a sentence of one to

 two years in the Division of Youth Corrections.

¶8    The Attorney General agrees that all of the issues A.B. raises

 in this appeal were preserved.

                       II. Motion to Suppress

¶9    A.B. first contends the trial court erred by denying his motion

 to suppress the handgun. A.B. asserts that the search was

 unconstitutional because when police officers ordered him to get

 back in the car, they seized him but lacked reasonable suspicion to

 do so. We conclude that the trial court properly denied A.B.’s

 motion.




                                  3
                          A. Standard of Review

¶ 10   A trial court’s ruling on a motion to suppress presents a mixed

  question of fact and law. People v. Martinez, 165 P.3d 907, 909

  (Colo. App. 2007). We defer to the trial court’s findings of fact if

  they are supported by competent evidence in the record, but we

  review its conclusions of law de novo. Id. Of course, “[w]e review de

  novo the trial court’s ultimate legal conclusion of whether a seizure

  violated constitutional prohibitions against unreasonable searches

  and seizures.” People v. Funez-Paiagua, 2012 CO 37, ¶ 6.

                        B. Additional Background

¶ 11   A.B. did not testify at the suppression hearing. One of the

  police officers testified that around 9 p.m. on the night of A.B.’s

  arrest, he heard “loud music coming from [a parked] vehicle . . .

  around 100 feet” away in an alley. The officer and his partner

  decided to contact the occupants of the vehicle “solely to investigate

  the noise violation,” although they were not “responding to any

  citizen complaints.” They pulled their patrol car behind the suspect

  vehicle, parking at a forty-five-degree angle. Immediately, all three

  occupants in the suspect vehicle “exit[ed] at the same time.” A.B.

  got out of the “driver’s side rear door.”


                                      4
¶ 12   As the officers left the patrol car, they “order[ed] everybody

  back into the [suspect] vehicle.” Both officers were “yelling.” A.B.

  then “turned his back to [the officer] and [that officer] saw him

  reach towards his waistband with his right hand.” The officer

  “observed a gun leaving his hand as he threw it into . . . the

  vehicle.”

¶ 13   As to the noise violation, the officer explained that the loud

  music “was coming from a radio . . . [i]n the vehicle,” although the

  officer did not see A.B. “operating the radio.” Nor did the “vehicle

  have a permit for sound amplification.”

¶ 14   A.B.’s counsel argued that the officers’ actions in blocking the

  suspect vehicle and then ordering the occupants back inside

  constituted a seizure, which required “reasonable articulable

  suspicion of criminal activity.” But according to counsel, the

  officers lacked such suspicion as to A.B. because as “a rear

  passenger in [the] vehicle,” he could not “possibly violate [Denver

  Rev. Mun. Code 38-89] where the noise is coming from the car radio

  being operated from the front by a driver or possibly from the front

  passenger.”

¶ 15   In denying A.B.’s motion, the trial court found:


                                     5
        “The evidence is that [the officers heard] the loud noise

         coming from the car.”

        “The officers pulled up behind the car. It’s unclear as to

         precisely how they parked, whether they blocked the car or

         not but the officers had probable cause to be there because of

         the loud music coming from the car.”

        “[A]ll three people got out of the car at about the same time, at

         the same time that [the officer] yelled at them.”

        “And then [A.B.] turned, and that’s when he reached for his

         waistband, and that’s when [the officers] saw the gun.”

                                   C. Law

¶ 16     Citizens enjoy a constitutional right to be free from

  unreasonable seizures. U.S. Const. amend. IV; Colo. Const. art. II,

  § 7. Still, “[n]ot every encounter between police and citizens

  implicates Fourth Amendment concerns because a ‘seizure’ does

  not occur until a police officer has restrained the liberty of the

  citizen.” People v. Marujo, 192 P.3d 1003, 1005 (Colo. 2008). The

  “key question in determining whether a person has been ‘seized’ is

  whether, ‘in view of all of the circumstances surrounding the




                                      6
  incident, a reasonable person would have believed that he was not

  free to leave.’” Id. at 1006 (citation omitted).

¶ 17     A police officer may “seize” a person and conduct an

  investigatory stop if three conditions are met: (1) the officer must

  have a reasonable suspicion that criminal activity has occurred, is

  taking place, or is about to take place; (2) the purpose of the

  intrusion must be reasonable; and (3) the scope and character of

  the intrusion must be reasonably related to its purpose. People v.

  Janis, 2016 COA 69, ¶ 46.

¶ 18     “Reasonable suspicion exists when the facts known to the

  officer, taken together with rational inferences from those facts,

  create a reasonable and articulable suspicion of criminal activity

  which justifies an intrusion into the defendant’s personal privacy at

  the time of the stop.” Funez-Paiagua, ¶ 9. To determine whether

  reasonable suspicion exists, “a court must consider the facts and

  circumstances known to the officer at the time of the intrusion.” Id.

                                 D. Analysis

¶ 19     Initially, the parties disagree as to whether the officers seized

  A.B.




                                       7
¶ 20   The Attorney General argues that merely telling A.B. to return

  to the vehicle was an instruction “required for a safe encounter,”

  not a seizure. See People v. Fines, 127 P.3d 79, 81 (Colo. 2006) (“[A]

  passenger is not seized . . . merely because the vehicle in which she

  is riding is subjected to a traffic stop, nor does her removal from the

  car for safety reasons, without particularized suspicion, amount to

  an illegal seizure of her person.”) (citation omitted). And according

  to the Attorney General, the officers’ parking behind the vehicle was

  “a display of authority directed at the car, not A.B.”

¶ 21   A.B. responds that a seizure occurred because the “[o]fficers

  approached the vehicle and parked their fully marked police vehicle

  at an angle behind the parked vehicle, blocking it into the parking

  space;” and “[t]wo officers immediately exited their patrol vehicle

  and yelled at A.B. multiple times to get back into the vehicle.” See

  Marujo, 192 P.3d at 1006 (“Examples of circumstances that would

  lead a reasonable person to feel that he was not free to leave or

  terminate the encounter include ‘the threatening presence of several

  officers, the display of a weapon by an officer, some physical

  touching of the person of the citizen, or the use of language or tone




                                     8
  of voice indicating that compliance with the officer’s request might

  be compelled.’”) (citation omitted).

¶ 22    The following facts support the Attorney General: the officers

  did not activate their siren or emergency lights — instead they

  approached a parked vehicle, see People v. Walters, 249 P.3d 805,

  809 (Colo. 2011) (“[W]hen a police officer does not pull over a

  vehicle, but approaches an individual in a vehicle that is already

  parked, the encounter does not automatically constitute an

  investigatory stop.”); the officers did not display a weapon, see id. at

  810 (finding no seizure where officer “did not display or gesture

  toward his weapon”); and the officers did not touch A.B., see People

  v. Bowles, 226 P.3d 1125, 1131 (Colo. App. 2009) (“[N]o testimony

  . . . suggests that either officer touched [defendant] or retained

  anything that might have prevented her from leaving the

  scene . . . .”).

¶ 23    But other facts favor A.B.: the officers’ patrol car was parked

  directly behind the suspect vehicle, potentially blocking it, see

  People v. Scheffer, 224 P.3d 279, 285 (Colo. App. 2009) (The

  defendant was not seized where there was “no indication in the

  record that either officer blocked defendant’s path or impeded his


                                     9
  ability to terminate the encounter.”); the officers demanded in a

  yelling tone that the occupants return to the vehicle, cf. Marujo, 192

  P.3d at 1008 (There was no seizure where the officer “requested, but

  did not demand, that the [defendant] step toward him” and the

  officer “asked, but did not order, [the defendant] to submit to a pat

  down.”); and A.B.’s ability to end the encounter by walking away

  was impeded by these demands, see People v. Dixon, 21 P.3d 440,

  446 (Colo. App. 2000) (A seizure occurred where officer “had no

  lawful basis to order defendant back to the car.”).2

¶ 24   Thus, whether A.B. was seized presents a close question.

  “[C]ourts are properly reluctant to resolve constitutional

  questions . . . .” Libertarian Party of Colo. v. Williams, 2016 COA 5,

  ¶ 22 (quoting Smith v. Robinson, 468 U.S. 992, 1007 (1984)) (cert.

  granted in part Sept. 12, 2016). And resolving the unconstitutional

  seizure issue is not necessary if — even assuming A.B. was seized

  2 But see United States v. Williams, 419 F.3d 1029, 1033 (9th Cir.
  2005) (holding that officer’s order to get back into the vehicle merely
  maintained the status quo by returning the passenger to his
  original position); Rogala v. District of Columbia, 161 F.3d 44, 53
  (D.C. Cir. 1998) (A passenger being ordered by the police to get back
  into a vehicle that she voluntarily exited was not an unreasonable
  seizure because “a police officer has the power to reasonably control
  the situation by requiring a passenger to remain in a vehicle during
  a traffic stop.”).

                                    10
  — the seizure was supported by reasonable suspicion. For the

  following reasons, we conclude that it was.

¶ 25   Under Denver Revised Municipal Code 38-89(b):

            No person shall use or operate or allow to be
            used or operated any loudspeaker, public
            address system, radio, tape player, disc player
            or other sound-amplifying equipment in or on
            a motor vehicle in such a manner as to be
            plainly audible at twenty-five (25) feet from the
            motor vehicle unless a permit has been
            issued . . . .

  (Emphasis added.)

¶ 26   The officer testified that he heard loud music coming from the

  vehicle that A.B. was in when it was approximately 100 feet away.

  These facts gave the officer reasonable suspicion to believe criminal

  activity — i.e., a violation of section 38-89(b) — was occurring. See

  People v. Grenier, 200 P.3d 1062, 1069 (Colo. App. 2008) (finding

  reasonable suspicion to support an investigatory stop where the

  defendant’s nearby car was parked in violation of a local ordinance).

¶ 27   Conceding as much, A.B. argues that a potential violation of

  section 38-89(b) could not have provided reasonable suspicion as to

  him because the officer did not see A.B. operating the radio and his




                                   11
  ability to have done so from the back seat was doubtful. This

  argument falls short.

¶ 28   The scope of section 38-89(b) is broad: “[n]o person shall use

  or operate or allow to be used or operated” a range of

  sound-amplifying equipment, including a “loudspeaker, public

  address system, radio, tape player, [and] disc player.” Viewing the

  facts and circumstances known to the officers when they pulled in

  behind the vehicle, reasonable suspicion existed as to all

  occupants. At that time, the officers knew only that loud music was

  coming from the vehicle. The source could have been a built-in

  dashboard radio accessible to front seat passengers or a

  stand-alone boombox in the rear passenger seat accessible to A.B.3

  Nor did they know who was operating the equipment. See United

  States v. Hafford, No. Crim. A. 11-14-BAJ-CN, 2011 WL 2269161,

  at *2 (M.D. La. June 7, 2011) (Officer’s “personal detection of loud

  music coming from [the defendant’s] vehicle would be sufficient for

  3 Indeed, the car stereo could have been controlled from a phone in
  the rear seat. See Marcy Rauer Wagman & Rachel Ellen Kopp, The
  Digital Revolution Is Being Downloaded: Why and How the Copyright
  Act Must Change to Accommodate an Ever-Evolving Music Industry,
  13 Vill. Sports & Ent. L.J. 271, 277 n.17 (2006) (“Using [a]
  Bluetooth adapter, customers hook the phone directly into their car
  stereo . . . .”).

                                    12
  the officer to form a reasonable suspicion that the municipal

  ordinance was being violated.”); In re A.S., No. 04-10-00621, 2011

  WL 1303700, at *3 (Tex. App. Apr. 6, 2011) (“[T]he vehicle in which

  [the juvenile] was riding was in violation of [a noise ordinance] . . . .

  Therefore, the initial stop of the vehicle and its occupants was

  supported by reasonable suspicion . . . .”).

¶ 29   Alternatively, A.B. argues that the evidence does not show a

  violation of section 38-89(b) occurred “because there was no

  information that any party was actually disturbed.” But his

  reliance on Flores v. City & County of Denver, 122 Colo. 71, 75, 220

  P.2d 373, 375 (1950) — where the supreme court held “in order

  that any person ‘shall disturb the peace of others,’ it is necessary

  that the peace of others be actually disturbed, and, to establish the

  offense, proof of such actual disturbance is necessary” — is

  misplaced.

¶ 30   True enough, a violation of the noise ordinance in Flores

  required that “others in the vicinity [be] disturbed thereby.” Id. at

  73, 220 P.2d at 374. And such language is also found in section

  38-89(a):




                                     13
             It shall be unlawful for any person to disturb
             or tend to disturb the peace of others by
             violent, tumultuous, offensive or obstreperous
             conduct or by loud or unusual noises or by
             unseemly, profane, obscene or offensive
             language calculated to provoke a breach of the
             peace or for any person to permit any such
             conduct in any house or upon any premises
             owned or possessed by such person or under
             their management or control, when within
             such person’s power to prevent, so that others
             in the vicinity are or may be disturbed thereby.

  (Emphasis added.)

¶ 31   But section 38-89(b) does not include similar language. Thus,

  we decline to interpret this section as requiring the disturbance of

  others. Cf. Dep’t of Transp. v. Amerco Real Estate Co., 2016 CO 62,

  ¶ 32 (“We will not add words to a statute . . . [and] [i]n the absence

  of ambiguity, we apply the statute’s language as written.”).

¶ 32   In the end, we conclude that the arresting officers had

  reasonable suspicion to seize A.B. based on a suspected violation of

  section 38-89(b). Thus, the trial court did not err by denying A.B.’s

  suppression motion.

                        III. Judgment of Acquittal

¶ 33   A.B. next contends that because section 18-12-108(3) does not

  identify a deferred adjudication as the predicate felony offense for



                                    14
  POWPO, the trial court erred by denying his motion for judgment of

  acquittal. We agree.

                          A. Standard of Review

¶ 34   “When reviewing the denial of a motion for a judgment of

  acquittal, we ‘review the record de novo to determine whether the

  evidence before the jury was sufficient both in quantity and quality

  to sustain the convictions.’” Montes-Rodriguez v. People, 241 P.3d

  924, 927 (Colo. 2010) (quoting Dempsey v. People, 117 P.3d 800,

  807 (Colo. 2005)).

¶ 35   In doing so, we usually ask whether the relevant evidence,

  viewed in the light most favorable to the prosecution, is “substantial

  and sufficient to support a conclusion by a reasonable mind that

  the defendant is guilty of the charge beyond a reasonable doubt.”

  People v. Gonzales, 666 P.2d 123, 127 (Colo. 1983) (quoting People

  v. Bennett, 183 Colo. 125, 130, 515 P.2d 466, 469 (1973)). But

  here, because the material facts are not in dispute, “we are not

  required to weigh the evidence.” Montes-Rodriguez, 241 P.3d at

  927. Instead, we must interpret section 18-12-108(3) de novo “and

  then apply it to the facts established at trial.” Id.




                                     15
                  B. Statutory Construction Principles

¶ 36   Statutes should be interpreted “in strict accordance with the

  General Assembly’s purpose and intent in enacting them.” In re

  2000-2001 Dist. Grand Jury, 97 P.3d 921, 924 (Colo. 2004). In

  determining both purpose and intent, we first look to the language

  chosen by the General Assembly, see Martin v. People, 27 P.3d 846,

  851 (Colo. 2001), giving words and phrases their “plain and

  ordinary meaning,” People v. Dist. Court, 713 P.2d 918, 921 (Colo.

  1986). We read and consider the statute as a whole, construing it

  “to give consistent, harmonious, and sensible effect to all its parts.”

  Id. And we must avoid a construction that would be at odds with

  the overall legislative scheme. People v. Garcia, 2016 COA 124,

  ¶¶ 8-10.

                               C. Analysis

¶ 37   As to juveniles, section 18-12-108(3) provides:

             A person commits the crime of possession of a
             weapon by a previous offender if the person
             knowingly possesses, uses, or carries upon his
             or her person a firearm as described in section
             18-1-901(3)(h) or any other weapon that is
             subject to the provisions of this article
             subsequent to the person’s adjudication for an
             act which, if committed by an adult, would
             constitute a felony . . . .


                                    16
  (Emphasis added.)

¶ 38     A.B. was convicted under this section because when he

  possessed the handgun, he was under a one-year deferred

  adjudication for an act that would have constituted a felony. This

  much is undisputed. But whether the term “adjudication” includes

  a “deferred adjudication” under this section has never been

  addressed in Colorado. On this question, the parties disagree.

¶ 39     A.B. relies on the plain language. After all, section

  18-12-108(3) speaks only of “adjudication,” not “deferred

  adjudication.”

¶ 40     In response, the Attorney General argues that because under

  section 18-12-108(1)4 the term “conviction” “include[s] pending

  deferred judgments for adult offenders,” the term “adjudication” in


  4   This section provides:

               A person commits the crime of possession of a
               weapon by a previous offender if the person
               knowingly possesses, uses, or carries upon his
               or her person a firearm as described in section
               18-1-901(3)(h) or any other weapon that is
               subject to the provisions of this article
               subsequent to the person’s conviction for a
               felony . . . .

  § 18-12-108(1), C.R.S. 2016 (emphasis added).

                                      17
  section 18-12-108(3) — by analogy — should include deferred

  adjudications. The Attorney General relies on cases uniformly

  interpreting the statutory term “conviction” as including a deferred

  judgment because the adult defendant pleaded guilty. See People v.

  Allaire, 843 P.2d 38, 41 (Colo. App. 1992) (“[T]he term ‘conviction,’

  used without any reference to judgment, means merely the

  establishment of guilt by plea or verdict.”); see also People v.

  Kiniston, 262 P.3d 942, 945 (Colo. App. 2011) (“[T]he legislature

  intended the term ‘conviction’ . . . to refer, as relevant here, to

  defendant’s . . . guilty plea.”).

¶ 41   At first glance, analogizing these two sections has some allure.

  To be sure, the purpose of POWPO “is to limit the possession of

  firearms by persons whose past conduct has demonstrated that

  they are unfit to be entrusted with such dangerous

  instrumentalities.” People v. Allen, 111 P.3d 518, 520 (Colo. App.

  2004). And juvenile offenders on deferred adjudications as well as

  adult offenders on deferred judgments have engaged in such

  conduct. But a closer look reveals several flaws in the Attorney

  General’s analysis.




                                      18
¶ 42   True, the definition of adjudication in section 19-1-103(2),

  C.R.S. 2016, includes “a juvenile [who] has pled guilty to

  committing a delinquent act.” Even so, this definition applies only

  to title 19 (Children’s Code). § 19-1-103 (“As used in this title or in

  the specified portion of this title, unless the context otherwise

  requires . . . .”). In contrast, POWPO is a criminal statute in title 18

  (Criminal Code). And “[t]he purposes of the Criminal Code are quite

  different from the purposes of the Children’s Code.” People v.

  Juvenile Court, 893 P.2d 81, 88 (Colo. 1995). This principle looms

  large over our analysis. Had the General Assembly intended

  otherwise by making section 19-1-103(2) applicable to section

  18-12-108(3), it could have cross-referenced it. See People v. Day,

  230 P.3d 1194, 1197 (Colo. 2010) (finding that cross-reference in

  sentence enhancing statute to a statute containing a specific

  offense shows clear intent for the sentence enhancement provision

  to apply to that offense).5


  5 Numerous statutes in the Criminal Code refer to the Children’s
  Code for definitions. See § 18-4-509, C.R.S. 2016 (The court has
  discretion, “in the case of a juvenile offender, to impose restorative
  justice, as defined in section 19-1-103(94.1).”); § 18-8-208, C.R.S.
  2016 (An element of class 3 misdemeanor escape is that the person
  “escapes from a staff secure facility as defined in section

                                     19
¶ 43   But even if the use of “adjudication” in POWPO — without a

  separate definition — favors looking to section 19-1-103(2), saying

  that “‘adjudication’ means conviction” is not the same as saying

  that the term “adjudication” includes a “deferred adjudication,”

  much less that “‘deferred adjudication’ means conviction.” To the

  contrary, the General Assembly “has expressed its intent to

  distinguish an adjudication of juvenile delinquency from a deferred

  adjudication both as to definition and effect.” C.B. v. People, 122

  P.3d 1065, 1067 (Colo. App. 2005) (emphasis added).

¶ 44   To begin, the statute establishing deferred adjudications,

  section 19-2-709(1), C.R.S. 2016, provides:

            [I]n any case in which the juvenile has agreed
            with the district attorney to enter a plea of
            guilty, the court, with the consent of the
            juvenile and the district attorney, upon
            accepting the guilty plea and entering an order
            deferring adjudication, may continue the case
            for a period not to exceed one year from the
            date of entry of the order deferring
            adjudication.

  Adjudication does not enter at the time of the order deferring

  adjudication. Instead, either the district attorney or probation


  19-1-103(101.5).”); § 18-18-407, C.R.S. 2016 (“The defendant
  solicited, induced, encouraged, intimidated, employed, hired, or
  procured a child, as defined in section 19-1-103(18) . . . .”).

                                    20
  officer may submit an “[a]pplication for entry of adjudication . . . at

  any time within the term of the deferred adjudication or within

  thirty-five days thereafter,” or “[i]f the juvenile fails to comply with

  the terms of supervision, the court shall enter an order of

  adjudication.” § 19-2-709(3.5) & (4).

¶ 45   If neither scenario occurs — and the juvenile complies with

  the conditions of the deferred adjudication — then “the plea of the

  juvenile . . . shall be withdrawn and the case dismissed.”

  § 19-2-709(3) (emphasis added). One might wonder why this

  section says nothing about the adjudication having to be vacated.

  The answer is that at this point, an adjudication has not yet been

  entered.

¶ 46   The Attorney General’s argument that “a juvenile who has not

  yet completed his deferred adjudication has . . . an existing

  conviction” fails for two additional reasons.

¶ 47   First, the argument ignores the differences between the

  Criminal Code and the Children’s Code. Under the Criminal Code,

  “[t]he acceptance by the court of a plea of guilty . . . acts as a

  conviction for the offense.” § 16-7-206(3), C.R.S. 2016. In contrast,

  “a Colorado juvenile adjudication is not a felony conviction.” People


                                      21
  v. Armand, 873 P.2d 7, 10 (Colo. App. 1993); see People v. Casillas,

  2015 COA 15, ¶ 32 (The defendant “was not convicted of a crime,

  because a deferred adjudication is not a final conviction.”) (cert.

  granted in part May 16, 2016).

¶ 48   Second, where the General Assembly has sought to equate a

  deferred adjudication to a conviction, it has done so expressly. See

  § 16-22-102(3), C.R.S. 2016 (Under the Colorado Sex Offender

  Registration Act, conviction “means having received . . . a deferred

  adjudication.”).

¶ 49   Undaunted, the Attorney General correctly points out that

  under C.R.J.P. 1, “[p]roceedings in delinquency shall be conducted

  in accordance with the Colorado Rules of Criminal Procedure,

  except as otherwise provided by statute or by these rules.” Thus,

  the Attorney General continues, a deferred adjudication should be

  “treated the same as adult deferred judgments.” But this argument

  misses the mark because the Attorney General fails to identify

  anything in those rules that illuminates the nature of a deferred

  adjudication or the relationship between such an adjudication and

  a conviction.




                                    22
¶ 50   Instead, the Attorney General cites People in Interest of K.W.S.,

  where the division held — in analyzing a juvenile’s challenge to a

  deferred adjudication — that “where a defendant pleads guilty

  pursuant to a deferred judgment and sentence agreement, ‘Crim. P.

  35 review is not available until a deferred judgment is revoked and

  a judgment of conviction entered.’” 192 P.3d 579, 581 (Colo. App.

  2008) (quoting People v. Manzanares, 85 P.3d 604, 611 (Colo. App.

  2003)). But treating both deferred adjudications and deferred

  judgments similarly under Crim. P. 35 does not inform the question

  whether a deferred adjudication can be used under POWPO. This

  inquiry requires a statutory, not a rule-based, analysis.

¶ 51   With this distinction in mind, we look to statutes that treat

  deferred adjudications as distinct from adjudications to light the

  path. Under section 16-11.7-102, C.R.S. 2016, a “‘[j]uvenile who

  has committed a sexual offense’ means a juvenile who has been

  adjudicated as a juvenile or who receives a deferred adjudication.”

  (Emphasis added.) Other examples abound.6


  6 See also § 18-1-1102(2), C.R.S. 2016 (“For purposes of paragraph
  (d) of subsection (1) of this section, conviction shall also include a
  juvenile delinquent adjudication or deferred adjudication.”)
  (emphasis added); § 18-1.3-104(3)(b), C.R.S. 2016 (“For purposes of

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¶ 52   But unlike these statutes, section 18-12-108(3) refers only to

  “adjudication.” See People v. Rediger, 2015 COA 26, ¶ 29 (“[I]f the

  legislature had wanted to include ‘any person carrying out the

  duties or functions of a public employee,’ it could have done so by

  express language.”) (cert. granted on other grounds Feb. 16, 2016).

  Thus, “we must accept the General Assembly’s choice of language

  and not add or imply words that simply are not there.” People v.

  Benavidez, 222 P.3d 391, 393-94 (Colo. App. 2009).

¶ 53   Given all this, only brief mention need be made of the Attorney

  General’s emphasis on the purpose of POWPO to restrict possession

  of firearms based on past conduct. At this level, too, adults differ



  this subsection (3), ‘convicted’ means a conviction by a jury or by a
  court and shall also include a deferred judgment and sentence, a
  deferred adjudication, an adjudication, and a plea of guilty or nolo
  contendere.”) (emphasis added); § 18-1.3-602(2), C.R.S. 2016
  (“‘Conviction’ means . . . adjudication for an offense that would
  constitute a criminal offense if committed by an adult. ‘Conviction’
  also includes having received a deferred judgment and sentence or
  deferred adjudication; except that a person shall not be deemed to
  have been convicted if the person has successfully completed a
  deferred sentence or deferred adjudication.”) (emphasis added);
  § 18-21-103(1.5), C.R.S. 2016 (“[E]ach juvenile who is adjudicated
  for commission of an offense that would constitute a sex offense if
  committed by an adult or who receives for such offense a deferred
  adjudication shall be required to pay a surcharge to the clerk of the
  court in which the adjudication occurs or in which the deferred
  adjudication is entered.”) (emphasis added).

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  from juveniles. Subject to POWPO and restrictions such as the

  “reasonable exercise of the state’s police power,” Rocky Mountain

  Gun Owners v. Hickenlooper, 2016 COA 45M, ¶ 21, adults enjoy a

  broad constitutional right to possess firearms. See Colo. Const. art.

  II, § 13. In contrast, a juvenile’s possession of firearms is limited by

  section 18-12-108.5, C.R.S. 2016, which says, “[e]xcept as provided

  in this section, it is unlawful for any person who has not attained

  the age of eighteen years knowingly to have any handgun in such

  person’s possession.”

¶ 54   In sum, because the plain language of section 18-12-108(3)

  refers only to a prior “adjudication,” the prosecutor’s evidence of

  A.B.’s deferred adjudication did not prove his adjudication under

  this section.

¶ 55   The denial of A.B.’s motion to suppress is affirmed, the

  adjudication is reversed, the sentence is vacated, and the case is

  remanded for entry of a judgment of acquittal.

       JUDGE HAWTHORNE and JUDGE NAVARRO concur.




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