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                                                 ADVANCE SHEET HEADNOTE
                                                               May 26, 2020

                                    2020 CO 43

No. 17SC830, People v. Espinoza—Sentencing and Punishment—Concurrent
and Consecutive Sentencing—Crimes of Violence.

      The People petitioned for review of the court of appeals’ judgment reversing

the trial court’s imposition of consecutive sentences for Espinoza’s ten convictions

for the attempted first degree murder of ten different people. Reasoning that

Espinoza’s ten attempted murder convictions were separate crimes of violence, the

trial court considered itself bound by statute to impose consecutive sentences. The

intermediate appellate court, however, found that because the ten convictions

were premised on a “single act of fire-setting,” they were supported by identical

evidence, notwithstanding the fact that each conviction required proof that the

defendant attempted to kill a different person.          Further concluding that

convictions for multiple crimes of violence that are supported by identical

evidence do not fall within the statutory mandate to sentence consecutively, the

intermediate appellate court reversed and remanded for resentencing.

      The supreme court reversed, holding that even according to the

intermediate appellate court’s understanding of the term “separate crimes of
violence,” Espinoza’s convictions required consecutive sentences pursuant to

section 18-1.3-406(1)(a), C.R.S. (2019), because offenses defined in terms of their

victimization of another and committed against different victims are not capable

of being proved by identical evidence within the contemplation of section

18-1-408(3), C.R.S. (2019).
                  The Supreme Court of the State of Colorado
                  2 East 14th Avenue • Denver, Colorado 80203

                                    2020 CO 43

                       Supreme Court Case No. 17SC830
                     Certiorari to the Colorado Court of Appeals
                      Court of Appeals Case No. 15CA1920

                                    Petitioner:

                      The People of the State of Colorado,

                                         v.

                                    Respondent:

                           Martin Castruita Espinoza.

                                 Judgment Reversed
                                      en banc
                                    May 26, 2020


Attorneys for Petitioner:
Philip J. Weiser, Attorney General
Megan C. Rasband, Assistant Attorney General
      Denver, Colorado

Attorney for Respondent:
Lauretta A. Martin Neff
      Grand Junction, Colorado




CHIEF JUSTICE COATS delivered the Opinion of the Court.
¶1    The People petitioned for review of the court of appeals’ judgment reversing

the trial court’s imposition of consecutive sentences for Espinoza’s ten convictions

for the attempted first degree murder of ten different people. Reasoning that

Espinoza’s ten attempted murder convictions were separate crimes of violence, the

trial court considered itself bound by statute to impose consecutive sentences. The

intermediate appellate court, however, found that because the ten convictions

were premised on a “single act of fire-setting,” they were supported by identical

evidence, notwithstanding the fact that each conviction required proof that the

defendant attempted to kill a different person.          Further concluding that

convictions for multiple crimes of violence that are supported by identical

evidence do not fall within the statutory mandate to sentence consecutively, the

intermediate appellate court reversed and remanded for resentencing.

¶2    Because offenses defined in terms of their victimization of another and

committed against different victims are not capable of being proved by identical

evidence within the contemplation of section 18-1-408(3), C.R.S. (2019), and

because even according to the appellate court’s understanding of the term

“separate crimes of violence,” Espinoza’s convictions therefore required

consecutive sentences pursuant to section 18-1.3-406(1)(a), C.R.S. (2019), the

judgment of the court of appeals is reversed.




                                         2
                                        I.

¶3    Martin Castruita Espinoza was charged with first degree arson, third degree

assault, and attempted first degree murder (extreme indifference), with

corresponding crime-of-violence counts, arising out of an incident in which a fire

raged through his mother’s apartment. As pertinent to the question presented on

certiorari, he was convicted of 10 counts of attempted extreme indifference

murder, for which he was sentenced consecutively to a total term of 160 years in

the custody of the Department of Corrections.

¶4    Evidence was presented at trial from which the trier of fact could find that

on March 4, 2014, the defendant started a fire on the balcony of his mother’s

apartment, which spread throughout the apartment building and to a neighboring

building. The ten people who were named victims of the attempted murder

counts were inside the defendant’s mother’s apartment building during the fire

but were able to escape and survive.

¶5    In imposing sentences for the attempted murder convictions, the sentencing

court considered itself bound by section 18-1.3-406(1)(a), which requires a

sentencing court to impose consecutive sentences for offenses arising out of the

same incident committed as separate crimes of violence.       As to each of the

defendant’s attempted murder convictions, the sentencing court specified that the

                                        3
conviction applied to a different count and a different victim, noted that the

offense was found to be a crime of violence, and imposed a sixteen-year sentence

to the Department of Corrections to be served consecutively with the other nine

attempted murder convictions.

¶6    The defendant appealed and, as relevant here, challenged the trial court’s

imposition of consecutive sentences. The intermediate appellate court reversed.

In reliance on prior holdings of that court, the division understood the reference

in section 18-1.3-406(1)(a) to “separate crimes of violence” to encompass only those

crimes of violence not supported by identical evidence, and in reliance on prior

holdings of this court concerning the meaning of the phrase “supported by

identical evidence” for purposes of the concurrent sentence requirement of section

18-1-408(3), the division held that the crimes of violence in this case were

supported by identical evidence and therefore were not “separate crimes of

violence” for which consecutive sentences would be mandated. Because the trial

court felt constrained to sentence consecutively, the division remanded for the trial

court to exercise its discretion whether to sentence consecutively or concurrently.

¶7    We granted the People’s petition for certiorari review to consider whether

the court of appeals erred in finding that the defendant’s ten attempted murder

convictions were supported by identical evidence and for that reason were not

separate crimes of violence giving rise to mandatory consecutive sentencing.


                                         4
                                         II.

¶8    We have long held that in the absence of legislation to the contrary,

sentencing courts in this jurisdiction have the inherent power to order sentences

for   different    convictions    to   be      served   either   consecutively     or

concurrently. Marquez v. People, 2013 CO 58, ¶ 6, 311 P.3d 265, 267 (citing Qureshi v.

Dist. Court, 727 P.2d 45, 46–47 (Colo. 1986), and People v. Self, 615 P.2d 693, 695

(Colo. 1980)). Both sections 18-1.3-406(1)(a) and 18-1-408(3) of the revised statutes

contain provisions restricting a sentencing court’s discretion in this regard—the

former mandating consecutive sentences under certain circumstances related to

the commission of crimes of violence and the latter mandating concurrent

sentences under certain circumstances related to the nature of the evidence by

which the offenses in question are proved.

¶9    More particularly, section 18-1.3-406 categorizes certain crimes as crimes of

violence and specifies how crime-of-violence status is to be established and

outlines the specific consequences of a conviction. Subsection (1)(a) of that section

mandates 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.” See Marquez,

¶ 15, 311 P.3d at 271 (equating “incident” with “criminal episode”). Section

18-1-408, on the other hand, treats of the subject of prosecution and conviction of

                                          5
multiple crimes for the same act or conduct, or based on the same act or series of

acts arising from the same criminal episode. It generally limits the number of

convictions a defendant may suffer where the elements of one offense are

definitionally included within another or where the offenses are otherwise

definitionally related in specifically enumerated ways. § 18-1-408(1). Subsection

408(2), however, also requires that under certain circumstances crimes based on

the same act or series of acts arising from the same criminal episode must be joined

in a single prosecution and subsection 408(3) further specifies that if convictions

for crimes so joined are supported by identical evidence, the sentences for those

convictions, except where multiple victims are involved, must run concurrently.

¶10   Relying largely on prior holdings by other divisions of the court of appeals,

the division below accepted as established the proposition that crimes of violence

are “separate” within the meaning of section 18-1.3-406(1)(a) only to the extent that

they were not proved at trial by identical evidence, as contemplated by section

18-1-408(3); and finding that the ten attempted murder convictions in this case

were supported by identical evidence, notwithstanding their involving different

victims, it concluded that consecutive sentences were not mandated. This court

has never similarly construed the term “separate crimes of violence,” as that term

is used in section 18-1.3-406(1)(a), to comprehend only those crimes of violence not

proved by identical evidence at the trial in question, but we need not address that


                                         6
construction today.     It is enough here that the defendant’s convictions for

attempting to murder different victims were not, and in fact could not have been,

supported by identical evidence within the contemplation of section 18-1-408(3).

¶11   Since adoption of the 1972 Colorado Criminal Code, we have had occasion

to comment on the identical evidence requirement of section 18-1-408(3) a number

of times, including expressly finding that despite its not actually appearing in the

sentence of that subsection mandating the imposition of concurrent sentences for

acts committed as part of the same criminal episode, it nevertheless was intended

to further limit that provision. See People v. Anderson, 529 P.2d 310, 312 (Colo. 1974)

(construing section 40-1-508(3), C.R.S. (1963 & Supp. 1971), now contained

in section 18-1-408(3)). As we have previously explained, this provision offers a

criminal defendant protections beyond those granted by constitutional jeopardy

and statutory merger guarantees by ensuring that a defendant will not be

consecutively sentenced for multiple offenses committed as part of a single

criminal episode and established by the same evidence, despite their not

technically merging into a single offense. Meads v. People, 78 P.3d 290, 296 (Colo.

2003), abrogated on other grounds by Reyna-Abarca v. People, 2017 CO 15, 390 P.3d 816.

Although our earlier cases dealt largely with the question of whether the evidence

was such that a jury could, or necessarily did, find that the convictions were

actually based on different acts, necessarily requiring proof by different evidence,


                                          7
see, e.g., People v. Muckle, 107 P.3d 380, 383 (Colo. 2005); Qureshi, 727 P.2d at 47, in

Juhl v. People, 172 P.3d 896, 898 (Colo. 2007), we entertained the inverse question,

whether the evidence supporting separate convictions was similarly not identical,

despite both convictions having been premised on the same criminal act

committed by the defendant.

¶12   In Juhl we held that the defendant’s separate convictions of first degree

assault and vehicular assault for the injuries he caused to the driver of another

vehicle, despite not precisely sharing the same elements, were nevertheless

supported by identical evidence because both were based on “Juhl’s act of

colliding head-on with Mrs. Bailey’s truck while he was engaged in a high-speed

chase to elude the police.” Id. at 902–03. The court of appeals below apparently

understood our holding concerning the scope of the “identical evidence” inquiry

in that case to limit the relevant inquiry concerning “identical evidence” to nothing

more than proof of the volitional, or voluntary, act required for the commission of

any crime; and therefore in answering the question whether the defendant’s

convictions were supported by identical evidence, it considered only whether the

defendant’s volitional “act of fire-setting” was the same “act” upon which all of

his attempted murder convictions were premised. As we would later emphasize

in Schneider v. People, 2016 CO 70, ¶ 23, 382 P.3d 835, 841, however, in Juhl we made

no attempt to further explain precisely what we meant by the defendant’s “act,”


                                           8
or “conduct,” or further describe the circumstances and consequences necessarily

included within the definition or scope of criminally proscribed conduct.

Similarly, in Schneider itself we had no need to define these terms

comprehensively.    See id. at ¶¶ 23–24, 382 P.3d at 841–42 (finding that two

convictions for sexual assault were not supported by identical evidence despite

being based on a single continuous penetration, where each crime required

separate proof of circumstances necessarily attending the defendant’s voluntary

act for it to qualify as sexual assault, in the one case the conduct being criminal

only upon proof that the act of penetration was accompanied by sufficient means

to overcome the victim’s will, and in the other, the conduct being criminal only

upon proof that the act was inflicted upon a helpless and nonconsenting victim).

¶13   Again, today we need not attempt such a global definition, capable of

addressing crimes of every nature. It is enough here that an offense defined in

terms of committing an act causing harm to another person can never be

supported by proof that the defendant committed an act causing harm to a

different person, whether or not the defendant’s volitional act causing harm was

the same; and read in context and as a whole, our rationale in Juhl suggested

nothing to the contrary. In Juhl we sought to distinguish crimes differing in their

elements from crimes supported by different evidence, holding in that case simply

that the defendant’s convictions of the first degree assault and the vehicular


                                        9
assault of the same victim were supported by identical evidence because although

the elements of the two crimes differed and neither crime was fully included

within the other, proof of the elements of both offenses in that case was necessarily

inferred from the same fund of evidence—evidence of “Juhl’s act of colliding head-

on with Mrs. Bailey’s truck while he was engaged in a high-speed chase to elude

the police.” 172 P.3d at 902–03. Nowhere did we suggest that the two offenses

were supported by identical evidence simply because the defendant’s volitional

act of driving, irrespective of attendant circumstances and consequences necessary

to infer the elements of each crime of assault, was proven by the same evidence.

¶14   More directly, however, our opinion in Juhl made clear that there was a

second victim of the defendant’s “act of colliding head-on with Mrs. Bailey’s truck

while he was engaged in a high-speed chase to elude the police,” who was killed

by this same conduct of the defendant. Id. at 898, 902. As we noted in the opinion,

Juhl was therefore also convicted of homicide for killing the driver’s passenger.

Id. at 898. Rather than concluding that sentences for all of the crimes committed

by the defendant’s same act of colliding head-on with Mrs. Bailey’s truck were

required to run concurrently, we concluded that the convictions involving Mrs.

Bailey must run concurrently with each other, but we left unaffected the

defendant’s consecutive sentence for causing the death of her passenger. Id. at

898–99, 903. In Juhl we had little cause to dwell on this distinction since it had long


                                          10
been accepted that crimes involving multiple victims do not fall within the

mandate of section 18-1-408(3) for concurrent sentencing. See 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.”); 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 . . . .”); People v. Cullen, 695 P.2d 750, 752 (Colo. App. 1984) ( “[W]here . . .

multiple convictions arise from crimes committed upon multiple victims, the

evidence is not identical and therefore [section 18-1-408(3)] is inapplicable.”); see

also Anderson, 529 P.2d at 312 (determining that the evidence supporting the two

assaults was not identical where “[t]wo separate criminal acts were committed

against two different persons”).

¶15    Were it not sufficiently clear from the common understanding of the terms

themselves that a crime defined as an act causing the death of one person is not

proved by evidence demonstrating that the same act by the defendant also caused

the death of another person, some thirty-five years ago the legislature expressly

amended its original articulation of the concurrent sentence mandate of section

18-1-408(3) by clarifying its intent that the mandate not apply to crimes involving

multiple victims, notwithstanding their being based on the same act or series of

acts arising from the same criminal episode and being joined as multiple counts in


                                            11
a single prosecution. Ch. 147, sec. 1, § 18-1-408, 1985 Colo. Sess. Laws 661, 661

(adding final clause to the subsection reading: “except that, where multiple victims

are involved, the court may, within its discretion, impose consecutive sentences”).

¶16   We find unpersuasive, if not positively casuistic, the assertion that by using

the term “except” in section 18-1-408(3), the legislature evidenced a nuanced intent

not to circumscribe the meaning of “identical evidence” itself, but merely to

exclude from mandatory concurrent sentencing crimes proved by identical

evidence when they involve multiple victims. This construction would, without

more, not only place far too heavy a burden on the word “except,” but if we

considered that term as consequential as asserted, it would necessitate a more

detailed consideration of the intermediate appellate court’s definition of

“separate” crimes of violence in section 18-1.3-406(1)(a) as those crimes not

“supported by identical evidence” as that phrase appears in section 18-1-408(3).

¶17   Because there is no suggestion here of applying this legislative action

retroactively, our prior case law distinguishing a legislative intent to clarify from

an intent to change an existing statute is in no way at issue. Cf. Union Pac. R.R. v.

Martin, 209 P.3d 185, 188–89 (Colo. 2009) (distinguishing legislative clarification

from law change in the context of a retroactivity analysis); City of Colorado

Springs v. Powell, 156 P.3d 461, 464–65 (Colo. 2007) (same). Whatever may have

been the legislature’s motivation for singling out for specific mention crimes


                                         12
involving multiple victims, its goal in amending the statute was clearly to ensure

that punishment for crimes involving multiple victims not be limited to concurrent

sentences, even where they have been joined in a single prosecution for having

been committed by the same act or series of acts. Nothing in this amendment to

section 18-1-408(3) can reasonably have been intended to affect the legislature’s

separate consecutive sentence mandate for crimes of violence in section

18-1.3-406(1)(a).

¶18   In Juhl we concluded that both the defendant’s conviction for committing

first degree assault of Mrs. Bailey and his conviction for committing vehicular

assault of Mrs. Bailey “were supported by evidence of the collision with Mrs.

Bailey’s truck and the circumstances under which that collision occurred.”

172 P.3d at 903. Although we were there intent on distinguishing convictions

based on the same act from convictions based on separate acts, the case before us

was limited to a situation involving not only the same act, but also crimes

committed under the same circumstances, causing the same injuries, to the same

victim. Id. at 899, 902–03. Our rationale in Juhl cannot therefore be reasonably

understood so broadly as to suggest that multiple crimes perpetrated against

different victims by the same volitional act must be considered supported by

identical evidence, and were that the case, our ultimate remand order in Juhl

would have arguably been inconsistent with that very proposition.


                                       13
                                        III.

¶19   Much like the other statutory methods of committing first degree murder,

extreme indifference murder is ultimately defined in terms of engaging in conduct

that causes the death of another person. Compare § 18-3-102(1)(d), C.R.S. (2019),

with § 18-3-102(1)(a)–(c), (e)–(f). The defendant’s conduct is proscribed as criminal

conduct only to the extent that it has a particular effect on the life of another

person, § 18-3-102(1)(d), and therefore proof of the criminal conduct committed by

the defendant cannot be distinguished from proof of the injury caused by it. The

conduct proscribed by the statute is particular conduct resulting in the death of

another person. Id. Whether or not the evidence presented at trial supports the

proposition that the defendant committed a single voluntary act—as for instance

bombing a gathering of people—the evidence that he killed one particular person

simply cannot prove, without additional evidence, that he also killed another

person. Were the language used by the legislature not clear enough, it would

nevertheless be difficult, without more, to imagine that the legislature intended

for a defendant convicted of causing the death of many people to be punished no

more harshly than a defendant convicted of causing the death of a single person.

¶20   To the extent the defendant’s demand for concurrent sentencing in this

particular case has even intuitive appeal, that appeal stems from the somewhat

counterintuitive way in which attempt liability has been construed in this

                                         14
jurisdiction—not from any legislative mandate of concurrent sentencing for crimes

proved by identical evidence. See, e.g., Montoya v. People, 2017 CO 40, ¶ 17, 394 P.3d

676, 683–84. Whether there was sufficient evidence, and whether the jury was

properly instructed, to find that the defendant knowingly engaged in conduct

strongly corroborative of his purpose to create a grave risk of death to each of the

victims are questions not before this court, but consecutive sentences are

mandated for proper convictions of the attempted first degree murder of multiple

victims.

                                         IV.

¶21   Because offenses defined in terms of their victimization of another and

committed against different victims are not capable of being proved by identical

evidence within the contemplation of section 18-1-408(3), and because even

according to the appellate court’s understanding of the term “separate crimes of

violence,” Espinoza’s convictions therefore required consecutive sentences

pursuant to section 18-1.3-406(1)(a), the judgment of the court of appeals is

reversed.




                                         15
