1                 Opinions of the Colorado Supreme Court are available to the
2             public and can be accessed through the Judicial Branch’s homepage at
3               http://www.courts.state.co.us. Opinions are also posted on the
4               Colorado Bar Association’s homepage at http://www.cobar.org.
5
6                                                          ADVANCE SHEET HEADNOTE
7                                                                      October 2, 2017
8
9                                         2017 CO 91
0
1   No. 12SC488, People v. Torrez—Criminal Law—Sentencing—Presentence
2   Confinement Credit.
3
4         The supreme court reviews the court of appeals opinion crediting the defendant

5   for a confinement period after a not guilty by reason of insanity verdict on an unrelated

6   charge.   Under § 18-1.3-405, C.R.S. (2017), credit is to be given only where the

7   presentence confinement is caused by the charge on which the defendant is being

8   sentenced. Considering Massey v. People, 736 P.2d 19 (Colo. 1987), and People v.

9   Freeman, 735 P.2d 879 (Colo. 1987), the supreme court concludes that defendant was

0   not entitled to presentence confinement credit for her confinement before, or after, the

1   not guilty by reason of insanity verdict. Accordingly, the supreme court affirms the

2   judgment of the court of appeals in part and reverses in part, and remands for further

3   proceedings consistent with this opinion.

4
1
2                       The Supreme Court of the State of Colorado
3                         2 East 14th Avenue • Denver, Colorado 80203


4                                         2017 CO 91

5                            Supreme Court Case No. 12SC448
6                          Certiorari to the Colorado Court of Appeals
7                            Court of Appeals Case No. 09CA511

8                               Petitioner/Cross-Respondent:
9                            The People of the State of Colorado,
0                                              v.
1                               Respondent/Cross-Petitioner:
2                                     Amber Lee Torrez.

3                     Judgment Affirmed in Part and Reversed in Part
4                                           en banc
5                                       October 2, 2017
6
7   Attorneys for Petitioner/Cross-Respondent:
8   Cynthia H. Coffman, Attorney General
9   Matthew S. Holman, First Assistant Attorney General
0    Denver, Colorado
1
2   Attorneys for Respondent/Cross-Petitioner:
3   Douglas K. Wilson, Public Defender
4   Anne T. Amicarella, Deputy Public Defender
5    Denver, Colorado
6
7
8
9
0
1
2
3
4
5   JUSTICE EID delivered the Opinion of the Court.
6   JUSTICE MÁRQUEZ dissents.
7   JUSTICE HOOD dissents, and JUSTICE GABRIEL joins the dissent.
¶1     Amber Torrez was confined in Denver County1 on two unrelated warrants: a

Jefferson County warrant for assault and other charges (the case giving rise to this

appeal) and a Denver County warrant for two murder charges. With regard to the

Denver County charges, Torrez was held without bond until a jury eventually found

her not guilty by reason of insanity (NGRI), at which time she was committed to

Colorado Mental Health Institute at Pueblo (CMHIP). While confined after the NGRI

verdict, Torrez pled guilty to the Jefferson County assault. Torrez asked the trial court

to award her presentence confinement credit (PSCC) toward her Jefferson County

sentence for both the time that she spent confined during the pendency of the Denver

proceedings, as well as the time she spent at CMHIP after the Denver NGRI verdict.

The trial court gave her credit for neither period.

¶2     The court of appeals affirmed in part and reversed in part. It concluded that it

was bound by Massey v. People, 736 P.2d 19 (Colo. 1987), and the companion case

People v. Freeman, 735 P.2d 879 (Colo. 1987), to find that Torrez was not entitled to

PSCC for the time she spent confined prior to the NGRI verdict. People v. Torrez, 2012

COA 51, ¶¶ 3, 38–40, ___ P.3d ___. It reasoned that under Massey and Freeman, credit

was not warranted because Torrez would have remained confined even had the

Jefferson County charges not existed. Id. at ¶ 40. The court also concluded, however,

that Massey and Freeman did not address whether credit should be given for the period

Torrez spent confined after the NGRI verdict, and that therefore she was entitled to

1As explained in more detail below, Torrez was also confined for limited periods at
Colorado Mental Health Institute at Pueblo and in Jefferson County during this time as
well.


                                             2
such credit. Id. at ¶ 41. Torrez asks us to award her credit toward her Jefferson County

sentence for both the time that she spent confined during the pendency of the Denver

County proceedings, as well as the time she spent confined after the Denver NGRI

verdict. The People contend that she is entitled to credit for neither period.

¶3     We agree with the People, and now affirm in part and reverse in part. Section

18-1.3-405, C.R.S. (2017), instructs that “[a] person who is confined for an offense prior

to the imposition of sentence for said offense” shall be awarded presentence

confinement credit. (Emphasis added.) Under the language of section 18-1.3-405, then,

credit is to be given only where the presentence confinement is caused by the charge—

or “said offense”—on which the defendant is being sentenced, here the Jefferson

County case. In Massey and Freeman, we held that confinement is caused by the

charged offense at issue at sentencing (that is, a “substantial nexus” exists) only if the

defendant would have been released from the confinement had that offense not existed.

See Massey, 736 P.2d at 23; Freeman, 735 P.2d at 881. Applying this test to the facts

here, because Torrez would have remained confined prior to and after the NGRI verdict

even had the charges in Jefferson County not existed, her presentence confinement for

those periods is not attributable to this case, and credit is therefore not warranted for

either period. Accordingly, we affirm in part and reverse in part and remand for

further proceedings consistent with this opinion.




                                             3
                                               I.

¶4       Torrez was arrested in Denver on March 29, 2004, on both a Jefferson County

warrant for assault and other charges and a Denver County warrant for two murder

charges.

¶5       Torrez was held in the Denver County jail without bond. In December 2004, the

Denver district court determined that Torrez was incompetent to stand trial and

ordered her relocated to CMHIP. In the Jefferson County case, bond was set at $10,000;

it was never posted.        In March 2005, the Jefferson County court found Torrez

incompetent to stand trial on the Jefferson County charges and endorsed her previous

relocation to CMHIP.

¶6       In July 2005, the Denver district court determined that Torrez was competent to

proceed to trial on the Denver murder charges and relocated her back to Denver. In

August 2006, a jury found Torrez not guilty by reason of insanity. The Denver district

court ordered that she be returned to CMHIP until her sanity was restored and she

could be released pursuant to section 16-8-115(2)(b), C.R.S. (2017).2



2   Section 16-8-115(2)(b) provides:
         The court shall order a release examination of the defendant when a
         current one has not already been furnished or when either the prosecution
         or defense moves for an examination of the defendant at a different
         institution or by different experts . . . . When none of the reports indicates
         that the defendant is eligible for release, the defendant’s request for
         release hearing shall be denied by the court if the defendant is unable to
         show by way of an offer of proof any evidence by a medical expert in
         mental disorders that would indicate that the defendant is eligible for
         release.



                                               4
¶7       While the Denver case was proceeding, Torrez was periodically transferred to

Jefferson County on a number of occasions based on writs issued by Jefferson County

prosecutors. She spent a total of 86 days in Jefferson County. In January 2007, the

Jefferson County district court found Torrez competent to proceed to trial. In June 2008,

she entered a guilty plea.3       On July 25, 2008, the Jefferson County district court

sentenced Torrez to ten years in the Department of Corrections (DOC) and granted her

86 days of PSCC, reflecting the time she actually spent in Jefferson County.4

¶8       Torrez then appealed the PSCC award, arguing that she should be credited for

1579 days of PSCC toward her Jefferson County sentence to reflect the total time she

spent confined on the Denver County murder charges prior to the NGRI verdict and

subsequent commitment to CMHIP after the NGRI verdict.

¶9       The court of appeals reasoned that the plain language of section 18-1.3-405

“appear[ed]” to support crediting Torrez for both the Denver and CMHIP periods of

confinement. Torrez, ¶¶ 16–17. The court also quoted at length from Justice Lohr’s

dissents in Massey and Freeman, which would have held that where a defendant is

confined on charges from multiple jurisdictions, each charge supplies the requisite

“substantial nexus.” Id. at ¶ 31 (quoting Massey, 736 P.2d at 24 (Lohr, J., dissenting));

id. at ¶ 34 (quoting Freeman, 735 P.2d at 882 (Lohr, J., dissenting)). However, with

regard to the period of confinement prior to the NGRI verdict, the court concluded that


3 Torrez was originally charged with assault of an at-risk adult, robbery of an at-risk
adult, and theft of an at-risk adult. She eventually pled guilty to an added count of
second-degree assault, and the remaining charges were dismissed.
4   The propriety of the 86 days PSCC is an issue not before us.


                                              5
it was bound to follow the majority opinions in Massey and Freeman, which would find

a substantial nexus only if the defendant would have been released had the charges on

which the defendant was being sentenced not existed. Id. at ¶ 40. Because Torrez

would have remained confined prior to the NGRI verdict regardless of the Jefferson

County charges, the court of appeals concluded that credit was not warranted for that

period. Id.

¶10      But Massey and Freeman were not binding precedent, according to the court of

appeals, with regard to the period of confinement at CMHIP that followed the NGRI

verdict. Id. at ¶ 41. The court reasoned that, after the NGRI verdict, there were no

longer proceedings pending against Torrez in multiple cases; thus, it concluded that

Massey and Freeman no longer barred PSCC. Id. Following this reasoning, the court

held that Torrez should be credited for the post-NGRI period of confinement. Id.

¶11      Both Torrez and the People petitioned this court for review. Torrez argued that

the court of appeals erred in denying her credit for the pre-NGRI verdict confinement,

and the People argued that the court erred in crediting her for the post-NGRI verdict

period. We granted certiorari5 and now affirm in part and reverse in part and remand

for further proceedings consistent with this opinion.


5   We granted certiorari to consider the following issues:
         1. [Raised by Petitioner/Cross-Respondent, the People] Whether under
            section 18-1.3-405, C.R.S. (2011), a defendant is entitled to presentence
            confinement credit in a pending criminal case for a period of
            confinement at the Colorado State Hospital based on an unrelated
            finding of not guilty by reason of insanity.
         2. [Raised by Respondent/Cross-Petitioner, Torrez] Whether the award
            of presentence confinement credit under section 18-1.3-405, C.R.S.


                                              6
                                            II.

¶12   We begin with the PSCC statute. Section 18-1.3-405 provides:

      A person who is confined for an offense prior to the imposition of
      sentence for said offense is entitled to credit against the term of his or her
      sentence for the entire period of such confinement.

(Emphasis added.) Under the language of section 18-1.3-405, credit is to be given only

where the presentence confinement is caused by the charge—or “said offense”—on

which the defendant is being sentenced. As applied here, the question is whether the

presentence confinement credit sought by Torrez was caused by the Jefferson County

charges.

¶13   The “for an offense” and “said offense” language was added by the General

Assembly after this court decided Schubert v. People, 698 P.2d 788 (Colo. 1985). In that

case, the defendant was being sentenced on burglary charges stemming from Jefferson

County, and he requested that he be credited for the presentence confinement period he

had served in connection with unrelated weapon and felony menacing charges in

Boulder County.     Id. at 790–92.   The trial court refused, and the court of appeals

affirmed, finding that the statute—which at the time provided that “[a] person who is

confined prior to the imposition of sentence is entitled to credit against the term of his

sentence”6—“implicitly limits the right to presentence confinement credit to that



           (2011), turns on the jurisdiction where a defendant is confined rather
           than conduct for which a defendant is confined.

6See Ch. 157, sec. 7, § 16-11-306, 1979 Colo. Sess. Laws 664, 665–66; Schubert, 698 P.2d at
793.


                                            7
confinement served in connection with the transaction for which the offender is to be

sentenced.” Id. at 792.

¶14    We affirmed, rejecting the defendant’s argument that the legislature intended

that credit be given “without regard to whether such confinement is related to the

transaction for which an offender is ultimately sentenced.” Id. at 793. Instead, we

concluded that credit should not be given where confinement was attributable “to a

criminal matter which constitutes a separate and independent cause of his

confinement,” but rather only where there was a “substantial nexus” between the

charge on which the defendant was being sentenced and the confinement. Id. at 794–95.

Because the confinement period for which the defendant sought credit stemmed from

“a criminal matter which constitute[d] a separate and independent cause of his

confinement,” id. at 794, a substantial nexus could not be shown, and the defendant was

not entitled to credit, id. at 796–97.

¶15    After Schubert, in 1986, the General Assembly added the emphasized language

that “[a] person who is confined for an offense prior to the imposition of sentence for

said offense is entitled to credit.” Ch. 124, sec. 3, § 16-11-306, 1986 Colo. Sess. Laws 733,

734; see also Massey, 736 P.2d at 21 n.5. Thus, the General Assembly made express

what had been implicit in the statute before—namely, that PSCC is warranted where

the confinement was caused by the “said offense” on which the defendant was being

sentenced. The issue here, then, is whether causation can be shown—that is, whether a

substantial nexus exists—between the Jefferson County charges and the periods of

confinement for which Torrez seeks credit.


                                             8
¶16   With regard to the period of confinement prior to the Denver NGRI verdict, we

have already answered this question in the negative. Indeed, in Massey, we faced the

precise question we confront today: where a defendant has been confined on offenses

from multiple jurisdictions, to which case should that presentence confinement be

credited?   In that case, which was decided under the pre-amendment statutory

language,7 the defendant was arrested in Mesa County on two unrelated warrants, one

from Mesa County and the other from Pitkin County. Massey, 736 P.2d at 20. The

defendant was held in Mesa County for 181 days while being periodically transferred to

Pitkin County for court appearances. Id. After pleading guilty to both charges, he was

sentenced to two years’ probation in both counties. Id. Eight months later, he was

arrested in Pitkin County for violating both probationary sentences, and he was

confined in Pitkin County for 78 days while proceedings were pending. Id.

¶17   The district court in Pitkin County sentenced the defendant to eighteen months

in the DOC and granted him 78 days PSCC reflecting the time he spent actually

confined in Pitkin County.     The defendant appealed, seeking 181 additional days

credited to his Pitkin County sentence. Id.

¶18   Affirming the denial of the defendant’s request, this court found that a

“substantial nexus” between the sentencing charge and the confinement period at issue

cannot be shown where the defendant would have remained confined had the charge


7 Although the General Assembly had added the “for an offense” and “said offense”
language by the time of Massey, the case arose before the amendment, and therefore
was governed by the pre-amendment language. See Massey, 736 P.2d at 21 & n.5. The
same is true of the companion case of Freeman. See Freeman, 735 P.2d at 881 & n.3.


                                              9
not existed. Id. at 23. More particularly, we found that the defendant in that case

“ha[d] not proven, and the record d[id] not establish, that the Pitkin County charges

prevented the defendant’s release from the Mesa County jail or contributed to his

confinement outside of Pitkin County.” Id. “Absent such proof,” we declared, “the

defendant is not entitled to an award of presentence confinement credit against his

Pitkin County sentence for periods of incarceration in Mesa County.” Id. Comparing

the facts of Massey with those in Schubert, we concluded that “the Pitkin County

charges were as unrelated to the Mesa County charges as were the Boulder County

charges to the Jefferson County charges in Schubert,” and therefore credit was not

warranted. Id.

¶19    This court came to the same conclusion, on similar facts, in the companion case

of Freeman. There, again applying the pre-amendment statute, this court reiterated the

type of causal relationship needed to satisfy the substantial nexus test in such situations:

       [T]he defendant in this case has not established that the issuance of the
       Jefferson County arrest warrant delayed the resolution of the Denver
       County charges, prevented the defendant’s release from the Denver
       County jail, or contributed in any way to his confinement outside of
       Jefferson County.     The defendant accordingly is not entitled to
       presentence confinement credit for periods of time he was incarcerated in
       the Denver County jail.


Freeman, 735 P.2d at 881 (citing, inter alia, Massey). As in Massey, the defendant in

Freeman failed to show that he would have been released had the charges in the case on

which he was being sentenced not existed. Therefore, a substantial nexus between the




                                            10
charges on which he was being sentenced and the confinement for which he was

seeking credit had not been established, and PSCC credit was not warranted.

¶20   Applying the substantial nexus test from Massey and Freeman to the facts of this

case, we conclude that Torrez was not entitled to PSCC for the period she was confined

prior to the NGRI verdict. Torrez was being held in Denver County without bond on

the Denver County murder charges. Had the Jefferson County charges not existed,

Torrez would have remained confined prior to the NGRI verdict. Her confinement

status would have remained precisely the same. Therefore, as the court of appeals

correctly concluded, Torrez is not entitled to PSCC for the period she spent confined

prior to the NGRI verdict.

¶21   We disagree with the court of appeals, however, with regard to its determination

that Torrez was entitled to PSCC for the period after the NGRI verdict. Although the

facts of Massey and Freeman did not involve confinement at CMHIP after an NGRI

verdict, the substantial nexus test remains the same. The question is whether Torrez

would have been released from CMHIP had the charges in Jefferson County not existed.

The same answer pertains: she would have remained confined. As in Massey, Torrez

has not proven, and the record does not establish that the Jefferson County charges

prevented her release from CMHIP or contributed to her confinement outside of

Jefferson County after the NGRI verdict. The Jefferson County charges did not prevent

her release from CMHIP because her confinement there was due to a separate charge




                                         11
and verdict from Denver County. Therefore, credit was not appropriate, and the court

of appeals erred in coming to the contrary conclusion.8

¶22   Torrez makes a number of arguments to support PSCC in her case, but we are

not persuaded. First, she echoes the court of appeals’ observation, see Torrez, ¶ 3, that

Schubert, Massey, and Freeman were all decided under the pre-amendment version of

the statute. This does not change our analysis, however. As noted above, the offense-

specific language added by the General Assembly in 1986 after Schubert—which

focuses on whether sentencing on the particular offense caused the confinement in

question—is entirely consistent with the approach taken in Schubert, as confirmed in

Massey and Freeman, that focuses on whether there is a causal connection (that is, a

substantial nexus) between the sentencing charge and the confinement.

¶23   Again echoing the court of appeals, see Torrez, ¶¶ 16–18, Torrez contends that

the plain language of section 18-1.3-405 supports an award for the entire time she was

confined prior to the Jefferson County sentencing.        She emphasizes that she was

confined “for an offense,” and that she therefore must be credited for that confinement.

The problem with this interpretation is that it omits the causal component of the statute.

As noted above, the statutory language mandates that credit be given for confinement

“for an offense” where that confinement is attributable to “said offense.” § 18-1.3-405.

Here, “said offense” is the Jefferson County case which, as developed above, was not

the cause of her confinement under the substantial nexus test.

8 Because we conclude that credit was not warranted for the post-NGRI period under
the substantial nexus test, we need not consider the People’s alternative argument that
time spent at CMHIP does not constitute confinement for purposes of PSCC.


                                           12
¶24   Thus, the crux of Torrez’s argument appears to be that Massey and Freeman

misapplied the substantial nexus test from Schubert. First, she emphasizes that Justice

Lohr was correct in his dissents in Massey and Freeman when he argued that each

charge in a multiple-jurisdiction case has a substantial nexus to the confinement,

because each charge led to confinement. Massey, 736 P.2d at 24 (Lohr, J., dissenting);

Freeman, 735 P.2d at 882 (Lohr, J., dissenting). The problem with this argument is that

Justice Lohr’s position is contrary to the majority rule adopted in Massey and Freeman,

which states that a substantial nexus exists where the defendant would have been

released had the sentencing charges not existed. We decline Torrez’s implied invitation

to set aside the approach adopted by Massey and Freeman some thirty years ago.

¶25   Second, she argues that Massey and Freeman mistakenly imposed an artificial

geographic limitation on credit, permitting credit only for confinement that occurs in

the charging jurisdiction.    Our reasoning in those cases, however, was not so

mechanical. Although geography played a role in both cases, it did so because the cases

involved confinement stemming from charges in multiple districts. As made clear

above, our reasoning focused on whether there was a substantial nexus between the

sentencing charge and the confinement, and we held that such a nexus was lacking

where the defendant would have remained confined regardless of the sentencing

charge. The substantial nexus test is about causation, not geography.

¶26   Finally, Torrez argues that Massey and Freeman have been undermined by

subsequent case law and statutory amendments. Like the court of appeals, see Torrez,

¶ 37, Torrez notes that this court in People v. Norton, 63 P.3d 339 (Colo. 2003), agreed


                                          13
with Justice Lohr’s observation in his Schubert special concurrence that the majority in

Schubert had cited no authority for the proposition that mandatory presentence

confinement credit was designed “to rectify ‘the unequal treatment of indigent

offenders who, due to their inability to post bail . . . would serve longer periods in jail

than their wealthier counterparts who were able to avoid presentence confinement by

posting bail and thereby secure their presentence freedom,’” see Norton, 63 P.3d at 348

(quoting Schubert, 698 P.2d at 794, and citing Schubert, 698 P.2d at 797 (Lohr, J.,

specially concurring)). Massey cited this passage from Schubert as well. Massey, 736

P.2d at 21. The flaw in Torrez’s argument, however, is that there is no reason to think

that this passage was essential to our explication of the substantial nexus test, such that

it would undermine our reasoning in some way in that regard; on the contrary, the

passage appears in the introductory portion of Massey, not in the analysis, see id. We

therefore conclude that the Norton decision does not impact our analysis in this case.

¶27       Similarly, we conclude that subsequent statutory amendments do not change the

result.    Torrez argues that because the General Assembly has never imported the

geographic limitation from Massey and Freeman into the language of the statute,

despite the fact that it has amended the statute several times since those cases were

decided, it must disagree with that limitation. We again attach no significance to the

subsequent amendments.        And as a preliminary matter, because, as noted above,

Massey and Freeman do not impose a geographic limitation, there would be no reason

to embrace or disavow such a limitation in the statute.




                                            14
¶28   Moreover, subsequent statutory amendments—specifically, those made in 1988

and 2009—simply have nothing to do with the issue before us. Both amendments

addressed how presentence confinement is to be treated in cases involving parole or

incarceration. In 1988, the General Assembly added a provision stating that:

      [i]f a defendant is serving a sentence or is on parole for a previous offense
      when he [or she] commits a new offense and he [or she] continues to serve
      the sentence for the previous offense while charges on the new offense are
      pending, the credit given for presentence confinement . . . shall be granted
      against the sentence the defendant is currently serving for the previous
      offense.

Ch. 110, sec. 2, § 16-11-306, 1988 Colo. Sess. Laws, 663, 663–64. Similarly, in 2009, it

added a provision that provides that “[a] person who is confined pending a parole

revocation hearing is entitled to credit for the entire period of such confinement against

any period of reincarceration imposed in the parole revocation proceeding.” Ch. 105,

sec. 3, § 18-1.3-405, 2009 Colo. Sess. Laws 382, 383. These amendments address specific

circumstances that are not present in this case. We therefore find them inapposite here.

¶29   In the end, Torrez essentially argues that she must be given credit towards her

Jefferson County sentence because it cannot be given in the Denver case. But this

argument misses the mark. Torrez does not receive PSCC not because of the Jefferson

County case before us today, but rather because she was successful in obtaining an

NGRI verdict in the Denver case—accordingly, there was no sentence against which

credit could be given. Because Torrez’s confinement is not attributable to the Jefferson

County case, presentence confinement is not warranted. We therefore affirm the court

of appeals insofar as it declined to credit Torrez for the period prior to the NGRI



                                           15
verdict, and reverse the court of appeals with regard to the time she spent confined

after the NGRI verdict.

                                           III.

¶30   For the reasons stated above, we affirm in part and reverse in part and remand

for further proceedings consistent with this opinion.

JUSTICE MÁRQUEZ dissents.
JUSTICE HOOD dissents, and JUSTICE GABRIEL joins the dissent.




                                           16
JUSTICE MÁRQUEZ, dissenting.

¶31    Two basic principles underlie the legislative and judicial history of Colorado’s

statute governing presentence confinement credit (PSCC), section 18-1.3-405, C.R.S.

(2017). First, a defendant is entitled to credit for the full period of her presentence

confinement against the total term of her imprisonment. Second, a defendant is not

entitled to duplicative credit. Put simply, for each day a defendant is confined prior to

sentencing, she is entitled to one day—and only one day—of credit against her ultimate

sentence.

¶32    I disagree with the majority’s decision in this case because it contravenes the

principle that a defendant is entitled to credit for the full period of her presentence

confinement against the total term of her imprisonment. Specifically, the majority’s

holding would appear to deny any PSCC to a defendant who is confined on charges

stemming from more than one jurisdiction before sentencing—even if the defendant is

ultimately convicted on charges in only one jurisdiction. See maj. op. ¶ 3. Indeed, the

majority’s logic would deny any PSCC even to a defendant confined on multiple

charges in a single jurisdiction where the defendant is ultimately sentenced on a

different, added charge. But we have repeatedly rejected such a severe framework for

awarding PSCC. Instead, our precedents dictate that a defendant is entitled to PSCC

toward the sentence on a particular charge if the charge “actually caused” the

defendant’s presentence confinement, so long as the award would not result in

duplicative credit.




                                           1
¶33    As applied to this case, I would conclude that Torrez was entitled to PSCC for

the period between her arrest in 2004 and her sentencing on the Jefferson County

charges in 2008. During this period of time, the Jefferson County charges “actually

caused” Torrez’s confinement because the charges prevented her release from

confinement: she was arrested on both Jefferson County and Denver County warrants,

and she was subject to a $10,000 Jefferson County bond. Regardless of the status of the

Denver County charges and the location of her confinement, she could not have secured

her presentence release unless she posted the Jefferson County bond, which she never

did.   Moreover, awarding Torrez credit for the full period of her presentence

confinement against the total term of her imprisonment would not result in duplicative

credit here because there was no other sentence to which the PSCC could be awarded:

Torrez had already been found not guilty by reason of insanity (NGRI) on the Denver

County charges when she sought credit against her prison sentence on the Jefferson

County charges.

¶34    The majority’s holding to the contrary mischaracterizes our long-established

precedent on PSCC and fails to effectuate the purposes of the PSCC statute. For these

reasons, I respectfully dissent.

                                   I. The PSCC Statute

¶35    As stated above, two basic principles underlie Colorado’s scheme for awarding

PSCC. First, a defendant is entitled to credit for the full period of her presentence

confinement against the total term of her imprisonment. Second, a defendant is not

entitled to duplicative credit. See, e.g., People v. Johnson, 797 P.2d 1296, 1299 (Colo.


                                            2
1990) (directing trial courts to award PSCC “in a manner which furthers the goal of [the

PSCC statute,] that is, to insure that defendants receive full, but not duplicative, credit

for the period of presentence confinement attributable to the charge or conduct for

which they were sentenced”).

¶36    The first principle—that an award of PSCC is mandatory—reflects the history of

the PSCC statute. The original version of the PSCC statute provided that a trial court

was obligated to consider PSCC, but was not obligated to award it:

       In sentencing a defendant to imprisonment the sentencing judge shall take
       into consideration that part of any presentence confinement which the
       defendant has undergone with respect to the transaction for which he is to
       be sentenced.

Ch. 44, sec. 1, § 39-11-306(1), 1972 Colo. Sess. Laws 190, 249 (emphasis added).

¶37    In 1979, the legislature’s first major amendment to the statute made PSCC

mandatory, rather than discretionary:

       A person who is confined prior to the imposition of sentence is entitled to
       credit against the term of his sentence for the entire period of such
       confinement.

Ch. 157, sec. 7, § 16-11-306, 1979 Colo. Sess. Laws 664, 665–66 (emphasis added).

¶38    Since the 1979 amendment, we have consistently recognized that defendants are

statutorily entitled to PSCC. See, e.g., People v. Norton, 63 P.3d 339, 348 (Colo. 2003)

(“[T]he 1979 amendment made PSCC mandatory.”); Fields v. Suthers, 984 P.2d 1167,

1172 (Colo. 1999) (“[The PSCC statute] mandates that presentence confinement in a jail

facility becomes part of the time served on the convicted person’s sentence.” (quoting

People v. Freeman, 735 P.2d 879, 881 (Colo. 1987)); Schubert v. People, 698 P.2d 788, 794




                                            3
(Colo. 1985) (“The 1979 [amendment] . . . grant[ed] an offender ‘who is confined prior to

the imposition of sentence’ a statutory entitlement ‘to credit against the term of his

sentence for the entire period of such confinement.’”). In other words, for each day a

defendant is confined prior to sentencing, the defendant must earn one day of credit

against her sentence, if the defendant is ultimately sentenced on any charge for which

she was confined.

¶39    The mandatory award of PSCC has important ramifications. Mandatory PSCC

protects indigent defendants “who, due to their inability to post bail . . . would

[otherwise] serve longer periods in jail than their wealthier counterparts who were able

to avoid presentence confinement by posting bail and thereby secure their presentence

freedom.”1 Schubert, 698 P.2d at 794. Mandatory PSCC also effectuates the statutory

penalties set by the General Assembly by ensuring that a defendant who is convicted of

an offense is confined for the legislatively prescribed period of time—and no longer.

Cf. Norton, 63 P.3d at 346 (a court’s award of PSCC should not “vitiate the intent of the

statutory penalty applicable to the crime for which the sentence was imposed”). And

mandatory PSCC guards against the added taxpayer expense of paying for superfluous

confinement where a defendant serves a lengthy presentence confinement in addition to

the legislature’s specified sentence of incarceration. This is a meaningful benefit, given

that Colorado’s sentencing laws expressly recognize the budgetary impact of prolonged

incarceration. E.g. §§ 18-1.3-302(1)(a)–(b), 16-11.3-101(1)(c)–(d), C.R.S. (2017).

1 Although we have retreated from our earlier position that protecting indigent
defendants was the “obvious purpose” of the PSCC statute, Norton, 63 P.3d at 348, it is
clear that mandatory PSCC, in practice, safeguards indigent defendants in this manner.


                                              4
¶40    The second principle—that an offender is not entitled to duplicative credit—is a

logical corollary to the first principle. That is, while a defendant must receive one day

of credit for each day of presentence confinement, she is entitled to only one day of

credit against her total term of imprisonment.

¶41    The prohibition on duplicative credit was written into the original PSCC statute

because the statute contained an important limitation: a defendant could receive credit

only for “presentence confinement which the defendant has undergone with respect to

the transaction for which he is to be sentenced.” Ch. 44, sec. 1, § 39-11-306(1), 1972 Colo.

Sess. Laws 190, 249 (emphasis added). A defendant could not, for example, receive an

award of credit against a sentence for charges that were prosecuted while a defendant

was serving a sentence on an earlier, unrelated conviction. People v. Loggins, 628 P.2d

111, 112 (Colo. 1981). Such an award would result in duplicative credit because the

defendant would receive two days of credit for each day served: one day of credit

against the original sentence, and a second day of presentence credit against the later

sentence on the charges brought while the defendant was already incarcerated.

¶42    Although the legislature omitted this “transaction” language when it amended

the statute in 1979 to mandate the award of PSCC, we nonetheless construed the

provision to require some connection between the confinement and the charge for

which the defendant sought credit, precisely to avoid duplicative credit. In Schubert,

for example, we recognized that a contrary interpretation (i.e., awarding credit

regardless of the cause of presentence confinement) would result in duplicative credit in

certain circumstances, such as where an offender who, prior to sentencing, was already


                                             5
serving time on an earlier sentence. 698 P.2d at 795. Awarding duplicative credits in

these circumstances, we reasoned, “not only would reward the multiple offender but

also would vitiate, to the extent of such credit, the statutory penalty applicable to the

crime for which a particular sentence is imposed.” Id. We therefore concluded that an

award of credit was warranted only where there existed a “substantial nexus” between

a charge or conduct and the period of confinement for which the defendant sought

credit, such that the charge or conduct “actually caused” the defendant’s presentence

confinement. Id.

¶43    Similarly, in Massey v. People, we reaffirmed that a defendant is entitled to

PSCC only for a charge with a “substantial nexus” to the defendant’s presentence

confinement so as to avoid awarding duplicative credit. 736 P.2d 19, 22–23 (Colo. 1987).

There, we concluded that the defendant was not entitled to PSCC for time spent in Mesa

County jail against his Pitkin County sentence, notwithstanding the fact that he was

originally arrested on warrants from both counties, because the Pitkin County charges

lacked a “substantial nexus” to the Mesa County confinement. Id. at 23. Although the

Massey opinion focused on the jurisdiction of confinement, it did so as a means to avoid

duplicative credit:

       [W]here two or more charges form multiple bases for the defendant’s
       presentence confinement, the defendant is entitled to credit against each
       sentence imposed on those charges, as long as the credit would not be
       duplicative. A “substantial nexus” in that context means that the
       defendant would have remained confined in the same judicial district on
       the charge for which credit is sought in the absence of any other charge.

Id. (citations omitted) (emphasis added).




                                            6
¶44    Our characterization of the legal standard in Massey was driven by the particular

facts of that case. Importantly, because Massey’s Pitkin County charges did not prevent

his release from the Mesa County jail, he was not entitled to credit against those

charges. Id. (“The defendant has not proven, and the record does not establish, that the

Pitkin County charges prevented the defendant’s release from the Mesa County jail or

contributed to his confinement outside of Pitkin County.”). In other words, Massey

relied on the jurisdiction of confinement as a proxy for whether certain charges

“actually caused” a defendant’s confinement in order to avoid awarding duplicative

credit: if the defendant received credit in the jurisdiction of confinement, he could not

also receive credit for this confinement elsewhere. And although Justices Lohr and

Dubofsky dissented from the majority’s disposition of the case, all of the justices agreed

with this basic legal framework, including the fact that a defendant is entitled to non-

duplicative PSCC where multiple charges concurrently caused the presentence

confinement.    Id. at 24 (Lohr, J., dissenting) (“As the majority acknowledges, a

defendant is entitled to presentence confinement credit ‘for each charge that was an

actual cause of the defendant’s incarceration prior to the imposition of the sentence.’”

(quoting the majority opinion)).

¶45    In 1986, the legislature again amended the statute to reincorporate the causation

limitation:

       A person who is confined for an offense prior to the imposition of
       sentence for said offense is entitled to credit against the term of his
       sentence for the entire period of such confinement.




                                            7
Ch. 124, sec. 3, § 16-11-306, 1986 Colo. Sess. Laws 733, 734 (emphases added). We have

treated the 1986 amendment as a codification of the “substantial nexus” test that we

found to be implicit in the statute in Schubert, and therefore, as a mechanism for

avoiding duplicative credit. E.g., Beecroft v. People, 874 P.2d 1041, 1044–45 (Colo. 1994)

(construing the amended statute as requiring a “substantial nexus” between the

confinement and the charge for which the sentence is imposed (citing Schubert, 698 P.2d

at 795)); People v. Hoecher, 822 P.2d 8, 12 (Colo. 1991) (same).

¶46    Finally, the legislature’s subsequent amendments to the statute have confirmed

the principle that a defendant is not entitled to duplicative credit in any circumstance.

In 1988, the legislature added language to prevent an award of duplicative credit to an

offender who commits a new offense while serving a sentence or on parole for a

previous offense:

       If a defendant is serving a sentence or is on parole for a previous offense
       when he or she commits a new offense and he or she continues to serve
       the sentence for the previous offense while charges on the new offense are
       pending, the credit given for presentence confinement under this section
       shall be granted against the sentence the defendant is currently serving for
       the previous offense and shall not be granted against the sentence for the
       new offense.

Ch. 110, sec. 2, § 16-11-306, 1988 Colo. Sess. Laws 663, 663–64. This amendment was

“intended to prevent duplicative PSCC being granted to inmates who committed

another crime either when they were incarcerated or when they had been released on

discretionary parole.” Norton, 63 P.3d at 345.




                                             8
¶47    Similarly in 2009, the legislature added language clarifying that if a defendant is

confined pending a parole revocation hearing, the credit is to be awarded against the

period of reincarceration:

       A person who is confined pending a parole revocation hearing is entitled
       to credit for the entire period of such confinement against any period of
       reincarceration imposed in the parole revocation proceeding. The period
       of confinement shall be deducted from the period of reincarceration by the
       department of corrections.

Ch. 105, sec. 3, § 18-1.3-405, 2009 Colo. Sess. Laws 382, 383. In short, every aspect of this

history confirms that avoiding duplicative credit is a foremost goal of the PSCC statute.

¶48    In light of the two basic principles underlying PSCC in Colorado, I understand

the PSCC framework to provide that an award of PSCC is mandatory where a

defendant is sentenced on a charge that “actually caused” his presentence confinement,

so long as the award would not be duplicative. Contrary to the majority’s conclusion,

“actual causation” in this context does not mean that the particular charge was a

necessary condition or but-for cause of the confinement. Schubert, 698 P.2d at 795

(“causation in this context does not mean that the charge or conduct for which the

sentence is to be imposed must be the exclusive cause of the offender’s confinement ”).

Instead, “actual causation” requires only that the charge prevented the defendant’s

presentence release, regardless of whether other charges also “actually caused” the

confinement.

¶49    Of course in awarding PSCC, a trial court must avoid awarding duplicative

credit in instances where a defendant is confined and sentenced on multiple charges.

To do so, “the trial court must exercise [its] discretion in a manner which furthers the


                                             9
goal of [the PSCC statute], that is, to insure that defendants receive full, but not

duplicative, credit for the period of presentence confinement attributable to the charge

or conduct for which they were sentenced.” Johnson, 797 P.2d at 1299. For a defendant

who receives consecutive sentences, this means that the trial court must award credit

against only one charge. Schubert, 698 P.2d at 795. By contrast, for a defendant who

receives concurrent sentences, the trial court must award credit against each charge,

since concurrent sentences “in functional effect result in one term of imprisonment

represented by the longest of the concurrent sentences imposed.” Id.

¶50    The majority reaches a very different conclusion about the requirements of the

PSCC statute—namely, that a defendant is entitled to PSCC for an offense “only if the

defendant would have been released from the confinement had that offense not

existed.” Maj. op. ¶ 3. That is, according to the majority, the offense for which PSCC is

sought must be the sole cause of the presentence confinement.           But although the

majority purports to adhere to our precedents in reaching its conclusion, maj. op. ¶¶ 16,

24, the majority’s conclusion is actually a marked departure from our precedents

because we have rejected its formulation of the “substantial nexus” test in at least five

instances.2 In this respect, I agree with Justice Hood’s conclusion in his separate dissent

that neither the PSCC statute nor our interpretations of the statute support the

2 See Johnson, 797 P.2d at 1298 (“The conduct need not be the exclusive cause of the
defendant’s confinement . . . .”); Freeman, 735 P.2d at 881 (“In the presentence
confinement context, the charges or conduct need not be the exclusive cause of the
defendant’s confinement . . . .”); Schubert, 698 P.2d at 795 (“[C]ausation in this context
does not mean that the charge or conduct for which the sentence is to be imposed must
be the exclusive cause of the offender’s confinement . . . .”); Massey, 736 P.2d at 22
(same); Torand v. People, 698 P.2d 797, 800 (Colo. 1985) (same).


                                            10
majority’s novel formulation of Schubert’s “substantial nexus” test. See dis. op. ¶¶ 78,

83.

¶51   The flaw in the majority’s reasoning is that it inverts the “substantial nexus”

inquiry by posing the wrong counterfactual question. The majority asks what would

happen if the sentencing charge did not exist; in such a scenario, would the defendant

have been released? Maj. op. ¶¶ 3, 21, 24. But our precedents—namely Schubert and

Massey—instruct that we should ask the opposite question: what would happen if only

the sentencing charge existed; in such a scenario, would the defendant have remained

confined?   See Massey, 736 P.2d at 23 (“A ‘substantial nexus’ . . . means that the

defendant would have remained confined in the same judicial district on the charge for

which credit is sought in the absence of any other charge.”); Schubert, 698 P.2d at 795

(“If . . . the defendant remains confined in [a] jurisdiction on all charges due to his

inability to post bail, each charge would appropriately be considered a cause of the

defendant’s presentence confinement.”). By asking the wrong question, the majority

has mischaracterized the “substantial nexus” inquiry.

¶52   Moreover, the understanding of the PSCC framework I have set forth does not

represent a rejection of the majority holdings in Massey and Freeman and an adoption

of Justice Lohr’s dissenting view. Those cases confirm the same legal standard I explain

above: a defendant is entitled to PSCC if the charge for which credit is sought prevented

the defendant’s release. We denied PSCC to those defendants, however, because on the

appellate record in those cases, we concluded that the answer to the relevant question—

whether the defendants would have remained confined on the sentencing charge if no


                                           11
other charges existed—was “no.” That is, we concluded that the charges for which they

sought PSCC did not “prevent[] the defendant[s’] release” or “contribute[] to [the]

confinement” for which they sought credit. Massey, 736 P.2d at 23; accord Freeman, 735

P.2d at 881. And as I have explained above, both the majority and dissenting opinions

in Massey and Freeman agreed as to this basic legal framework, a framework that

today’s majority dismisses in favor of its novel formulation of the “substantial nexus”

test.

¶53     Finally, although I agree with much of Justice Hood’s separate dissent, I note my

disagreement with his understanding of the PSCC framework. Justice Hood infers from

the legislature’s 1988 and 2009 amendments—which require courts to avoid awarding

duplicative credit to offenders who are incarcerated or on parole—that the legislature

authorized duplicative credit in other circumstances. Dis. op. ¶¶ 85–86. He would

therefore conclude that a court generally may award credit against multiple charges, so

long as those charges concurrently caused the defendant’s confinement. Id. at ¶ 87. But

as I have explained above, avoiding duplicative credit in all circumstances has

consistently been a foremost goal of Colorado’s PSCC scheme. I therefore conclude that

the legislature’s 1988 and 2009 amendments are best understood as legislative patches

to effectuate the general prohibition on duplicative credit in specific scenarios where the

legislature realized that there otherwise existed a risk of awarding duplicative credit.

See Norton, 63 P.3d at 345.




                                            12
                                   II. Application

¶54   I would conclude that Torrez was entitled to PSCC for the entire 1579-day period

from her arrest in March 2004 through her sentencing in July 2008. First, Torrez was

confined during this entire period—at times in Jefferson County, at times in Denver

County, and at times at the Colorado Mental Health Institute at Pueblo (CMHIP).3

¶55   Second, at all times, Torrez was confined “for” the Jefferson County assault

charge to which she ultimately pled guilty. She was originally arrested on warrants

from both Denver County and Jefferson County. And she was subject to a $10,000

Jefferson County bond, which she never posted. If the Denver County charges had

been dismissed—or had never existed—Torrez’s confinement status would have

remained precisely the same. In other words, regardless of her location, the Jefferson

County charges had a “substantial nexus” to Torrez’s confinement because they caused

her to remain confined. See Massey, 736 P.2d at 23 (“A ‘substantial nexus’ . . . means

that the defendant would have remained confined . . . in the absence of any other

charge.”). Although the Denver County charges and the eventual NGRI verdict caused

Torrez’s confinement at a particular location, i.e., at CMHIP rather than some other

facility, see maj. op. ¶ 21, in the absence of the Denver County charges Torrez still



3 Because the majority concludes that the Jefferson County charges lacked a “substantial
nexus” to Torrez’s confinement, it does not reach the question of whether time spent at
CMHIP constitutes “confinement” for purposes of PSCC. Maj. op. ¶ 21 n.8. I, however,
would agree with the court of appeals’ conclusion that time spent at CMHIP constitutes
“confinement” for which an offender may receive PSCC. Torrez, ¶ 17; see People v.
McGraw, 30 P.3d 835, 840 (Colo. App. 2001) (concluding that an offender, while
involuntarily hospitalized at CMHIP, was “confined in a very real sense”).


                                          13
would have remained confined because of the Jefferson County charges for which she

never posted bond.

¶56    Third, awarding Torrez the full 1579 days of PSCC toward her sentence on the

Jefferson County charges would not result in an award of duplicative credit. Although

multiple charges concurrently caused Torrez’s confinement, she ultimately received

only a single sentence. Thus, there is only one sentence to which the credit can be

applied, and there is no risk of awarding duplicative credit.        Nor would Torrez’s

entitlement to PSCC change if she had been convicted of one or more of the other

charges for which she was confined prior to sentencing. In such a circumstance, we

have directed trial courts to exercise their discretion in allocating PSCC so as to ensure

an award of full, but not duplicative, credit. Johnson, 797 P.2d at 1299.

¶57    The majority’s conclusion that Torrez is not entitled to PSCC produces an

anomalous result. I doubt the legislature intended this result when it has provided all

defendants with a statutory entitlement to credit for the “entire period” of presentence

confinement attributable to the sentencing charge. See § 18-1.3-405.

                                    III. Conclusion

¶58    The requirements of Colorado’s presentence confinement statute are simple: one

day of presentence confinement entitles a defendant to one day of credit against her

ultimate sentence—no more, no less.        The majority, however, concludes that this

principle apparently does not apply to defendants who are subject to charges in

multiple jurisdictions, and indeed, its logic would deny any PSCC to a defendant

confined on multiple charges in a single jurisdiction where the defendant is ultimately


                                            14
sentenced on a different, added charge. Because that conclusion finds no support in the

text of the statute or our long-established precedent, I respectfully dissent.




                                          15
JUSTICE HOOD, dissenting.

¶59    Amber Lee Torrez spent more than four years confined before serving a sentence

for any crime. In the end, the trial court allowed her to credit 86 of those 1579 days

toward the sentence it imposed. The majority would afford her even less: If it could

consider the 86 days she did receive, its test would strip her of that credit as well. And

more broadly, its holding seems to deny presentence confinement credit to every

offender confined on multiple charges.

¶60    How does this counterintuitive result emerge? The answer in part is that in

purporting to recite our test for determining whether an offender should receive

presentence confinement credit (PSCC), the majority instead rewrites it. This court

previously asked whether an offender confined on multiple charges would have

“remained confined in the same judicial district on the charge for which credit is sought

in the absence of any other charge.” Massey v. People, 736 P.2d 19, 23 (Colo. 1987)

(emphasis added). Now, however, the majority states that an offender cannot receive

credit if she “would have remained confined regardless of the sentencing charge.” Maj.

op. ¶ 25.

¶61    Some simple hypotheticals demonstrate how omitting the place-based language

makes a difference. Suppose Jane Doe injures a pedestrian in a hit-and-run, for which

Durango issues an arrest warrant against her. A month later, she runs headlong into

Durango Police while robbing a convenience store. That encounter places her in the La

Plata County jail on both charges, where she stays until she’s convicted and sentenced.

Under our now-discarded test, she would have received credit for that entire period of


                                            1
confinement. Under the new test, because she would have remained confined on one of

the charges in the absence of the other, arguably she receives none.

¶62    Or consider an even likelier scenario. The People charge Doe with multiple

offenses arising out of a single incident (as was the case for Torrez in Jefferson County).

She remains in the same jail throughout proceedings. Doe eventually pleads guilty to

one of the charges, and the court dismisses the rest. Here again, though our former test

would have entitled Doe to credit, the majority’s new test seemingly offers her none—

she would have remained confined in the absence of the sentencing charge, given the

remaining charges. And if she had instead chosen a trial and lost? The same.

¶63    As I read the majority’s new test, then, only offenders whose confinement is

solely attributable to the sentencing charge will receive credit. We have never before

required such a result, and the presentence confinement statute’s plain language does

not compel it. To the contrary, that statute entitles Torrez to credit for her full period of

confinement. Therefore, I respectfully dissent.

¶64    In crafting my dissent, I write more expansively than I otherwise might, so that

the legislature can perhaps better evaluate whether it should intercede to make its

intentions more plain, particularly given the significant implications today’s majority

opinion holds for defendants’ liberty interest and the state budget.

                                       I. Analysis

¶65   Neither our precedent nor the language of the current PSCC statute supports the

test the majority announces today. Instead, this court has used geography as a proxy to

determine whether an offense caused a defendant’s confinement for purposes of section


                                             2
18-1.3-405, C.R.S. (2017). Even that place-based test looks suspect, however, given that

the legislature has overhauled section 18-1.3-405 since we last explored its

requirements. With those changes, the legislature granted credit broadly and narrowed

that broad grant where it might prove problematic. Because Torrez’s circumstances do

not fall within any of those limitations, and her Jefferson County offense concurrently

caused her confinement, I conclude section 18-1.3-405 entitles her to PSCC for the entire

time she spent confined—namely, from the time of her arrest until she was sentenced

for the Jefferson County offense.

               A. We Have Never Employed the Test the Majority
                             Articulates Today

¶66   The presentence confinement statute has evolved in response to interpretations

from this court. I relate that history more fully below and provide examples along the

way to illustrate the effects of various changes and interpretations, but my analysis in

this subsection reduces to three points. First, early iterations of the PSCC statute left

significant ambiguities regarding its application. Second, in the absence of legislative

guidance, this court created its own framework for awarding credit. Third, from this

overview, I conclude not only that we have never employed the test the majority

articulates today, but that the new test requires results at odds with those we have

approved.

¶67   The original, 1972 PSCC statute merely required a sentencing judge to take

presentence confinement “into consideration” but did not mandate an award. Ch. 44,

sec. 1, § 39-11-306, 1972 Colo. Sess. Laws 190, 249. It survived only seven years. After



                                           3
courts consistently construed the 1972 statute to allow discretion in awarding PSCC, the

legislature repealed and replaced it in 1979.1 Schubert v. People, 698 P.2d 788, 792–93

(Colo. 1985) (discussing statutory history related to People v. Jones, 489 P.2d 596,

599–601 (Colo. 1971)).

¶68      The 1979 language mandated PSCC but created new difficulties because it

appeared to require credit for any period of presentence confinement, no matter its

cause. As written, the statute eliminated a disincentive to reoffend while confined

because it seemed to credit time already served against both new and old sentences.

See id. at 795. If, for example, an offender assaulted a prison guard and then spent 100

days confined before being sentenced for the assault, the statute appeared to credit 100

days toward her original sentence as well as 100 days toward her new sentence on the

assault charge. Thus, the assault would go largely unpunished.

¶69       Addressing that anomaly, our court created the “substantial nexus” text. Under

that test, we required courts to consider two factors.             First, we held that “the

presentence confinement [must be] actually caused by the charge or conduct for which



1   The 1979 statute read as follows:

         A person who is confined prior to the imposition of sentence is entitled to
         credit against the term of his sentence for the entire period of such
         confinement. At the time of sentencing, the court shall make a finding of
         the amount of presentence confinement to which the offender is entitled
         and shall include such finding in the mittimus. Such period of
         confinement shall be deducted from the sentence by the department of
         corrections.

Ch. 157, sec. 7, § 16-11-306, 1979 Colo. Sess. Laws 664, 665–66.



                                             4
the offender is to be sentenced[.]” Id. Second, contrary to the majority’s understanding,

we observed that multiple offenses could concurrently cause a defendant’s confinement

and added, “[T]here must be a substantial nexus between such charge or conduct and

the period of confinement for which credit is sought.” Id. Thus, under the framework

we announced, the prison assailant from the earlier example would receive 100 days of

credit toward her original sentence, but not toward the new one. See id.

¶70    In illustrating how to apply this new test, we went on to suggest an additional

consideration: whether, in the event multiple offenses caused the confinement, they

originated in the confining jurisdiction. To that end, we said,

       If, for example, multiple counts or cases are concurrently filed against a
       defendant in the same jurisdiction, and the defendant remains confined in
       that jurisdiction on all charges due to his inability to post bail, each charge
       would appropriately be considered a cause of the defendant’s presentence
       confinement. . . . If only one sentence is ultimately imposed and the other
       concurrently filed counts or cases are dismissed, then clearly the
       defendant should be credited with the entire period of presentence
       confinement served in the sentencing jurisdiction against the sentence.

Id. at 795–96 (emphases added) (citation omitted). We further noted that even if the

charges were not filed concurrently, the statute still required courts to credit the period

of confinement following the later-filed charge toward the sentence resulting from that

charge. Id. at 796 n.13. And, taking the same position in Schubert’s companion case,

Torand v. People, 698 P.2d 797, 801 (Colo. 1985), we held that “the pendency of another

case in the same jurisdiction [did not] serve to negate the substantial nexus between the

charges in the instant case and the defendant’s confinement.” (Emphasis added.)




                                             5
¶71   Under the test we articulated in Schubert and Torand, if an offender were

confined for 100 days in a Denver jail on a Denver assault charge as well as a Denver

burglary charge, she could credit all 100 days toward her sentences for both, or could

credit the 100 days against one of the sentences if the other charge were dismissed.

¶72   The majority, on the other hand, seemingly would offer her no credit at all

because she would not “have been released from the confinement had [either the

assault charge or the burglary charge] not existed.” See maj. op. ¶ 3. In fact, the

majority’s new test renders Torand wrongly decided: Under the majority’s test “the

pendency of another case in the same jurisdiction” does negate the substantial nexus

and destroys and offender’s right to credit.

¶73   Still, the majority also roots its rule in Massey, a case we decided two years after

announcing Schubert and Torand. Again construing the 1979 statute, we returned to

the substantial nexus test and, far from adopting the majority’s but-for test, we made

Schubert’s suggested geographic limitation part of our rule.

¶74   In Massey, a defendant arrested on warrants from Mesa and Pitkin Counties

sought credit in Pitkin County for his time spent confined in Mesa County while

waiting to resolve the charges from both counties. 736 P.2d at 20. Worried about

awarding duplicative credit, yet finding no statutory guidance on the issue, we looked

to Schubert’s illustration and adapted the substantial nexus test to the circumstances.

We therefore held, “A ‘substantial nexus’ [where two or more charges form multiple

bases for the defendant’s presentence confinement] means that the defendant would

have remained confined in the same judicial district on the charge for which credit is


                                               6
sought in the absence of any other charge.” Id. at 23 (emphasis added). Applying that

test, we determined the defendant was entitled to PSCC only for the time he spent

confined in the jurisdiction issuing the sentence. Id.

¶75    Consider, under this scheme, the example of the multiple offender. This time the

offender is charged in two cases from Denver, one for burglary and the other for

assault. She spends 100 days confined before beginning to serve her sentences, but of

those 100 days, she spends 15 days resolving the assault charge, 30 days resolving her

burglary charge, and 55 days waiting for the cases to move forward. Under the Massey

test, the court must credit her 100 days of confinement toward the sentences for both

offenses because she would have remained confined in the jurisdiction on either charge

in the absence of the other.

¶76    Now consider the effect of the same charges if Adams County files the burglary

charge. The offender spends 15 days in Denver resolving the Denver assault charge, 30

days in Adams County resolving the burglary charge, and 55 days in Denver waiting

for the cases to move forward. Under Massey, the court must credit 70 days toward her

sentence on the assault charge, and 30 days toward her sentence on the burglary charge.

Furthermore, if the assault charge is dismissed in the Denver-only example, the

offender receives credit for all 100 days. If it is dismissed in the Denver/Adams County

example, the offender receives only 30 days of credit. When maintaining a causal

common denominator, then, geography makes all the difference.




                                             7
¶77    The majority collapses the geographic distinction, but only by denying the

multiple offender credit in both scenarios. In either scenario, the offender would not

have been released had the sentencing offense not existed.

¶78    Despite reciting the words “substantial nexus,” then, it seems the majority has

eliminated any opportunity for credit for an offender confined on multiple charges.

Yet, as Schubert makes clear, we created the substantial nexus test precisely because we

recognized that multiple offenses could concurrently cause an offender’s confinement.

Not anymore, it seems. And though the majority is of course free to disavow Schubert’s

test and to declare that Torand was wrongly decided, stare decisis at the very least

requires it to explain why its new test is better suited to the task. See People v. Kutlak,

2016 CO 1, ¶ 18, 364 P.3d 199, 205 (observing that this court departs from an established

rule only upon good reason). It has not done so.

¶79    Perhaps, then, the new test emerges from the legislative retrofit that followed

those cases? Let’s see.

              B. Section 18-1.3-405 Does Not Mandate the Majority’s
                                       Test

¶80    The General Assembly has not mandated, as the majority now does, that an

offender’s confinement must be solely attributable to the charge for which she seeks

credit. On the contrary, nothing in the statute’s plain language prevents a court from

awarding credit when more than one offense causes a defendant’s confinement.

¶81    Responding to Schubert in 1986, the legislature added its own, broad causal

requirement: “A person who is confined for an offense prior to the imposition of



                                            8
sentence for said offense is entitled to credit against the term of his sentence for the

entire period of such confinement.” Ch. 124, sec. 3, § 16-11-306, 1986 Colo. Sess. Laws

733, 734 (additions emphasized).       Then, in 1988, the General Assembly inserted

language addressing the prison-assault scenario that had worried the court in Schubert.

Ch. 110, sec. 2, § 16-11-306, 1988 Colo. Sess. Laws 663, 663–64.         And in 2009, the

legislature inserted language directing courts to credit an offender’s confinement

pending a parole revocation hearing toward any period of reincarceration imposed in

the parole revocation proceeding. Ch. 105, sec. 3, § 18-1.3-405, 2009 Colo. Sess. Laws

382, 383. Thus, the statute now states as follows:

          A person who is confined for an offense prior to the imposition of
           sentence for said offense is entitled to credit against the term of his or
           her sentence for the entire period of such confinement. . . .

          A person who is confined pending a parole revocation hearing is
           entitled to credit for the entire period of such confinement against any
           period of reincarceration imposed in the parole revocation
           proceeding. . . .

          If a defendant is serving a sentence or is on parole for a previous
           offense when he or she commits a new offense and he or she continues
           to serve the sentence for the previous offense while charges on the new
           offense are pending, the credit given for presentence confinement
           under this section shall be granted against the sentence the defendant
           is currently serving for the previous offense and shall not be granted
           against the sentence for the new offense.

§ 18-1.3-405.

¶82    To determine whether the statute compels or at least supports the majority’s test,

I use our standard rules of statutory construction. When a statute’s language is clear,




                                             9
this court must apply it as written. People v. Smith, 2014 CO 10, ¶ 13, 318 P.3d 472, 476

(interpreting section 18-1.3-405).

¶83     We cannot add words to the statute, id., yet the majority does just that. Read

naturally, the word “for” doesn’t require exclusivity. If a doctor’s office places a sign in

the waiting room that reads, “Those visiting for a condition must cover the cost of

consultation for said condition before leaving,” I very much doubt I could avoid paying

just because the doctor attended to both my sore throat and broken toe. Yet this is

exactly how the majority interprets the PSCC statute—not as written, but rather to say,

“A person who is confined for an offense and only that offense . . . is entitled to

credit . . . .”

                  C. Section 18-1.3-405 Grants Credit Broadly and
                     Confines it Where it May Prove Problematic

¶84     Having concluded the majority’s test finds no support in our precedent or the

statute’s text, I consider what the current statute does require. Although I see the allure

in simply concluding Massey’s bright-line, place-based test has endured, I cannot apply

the old test to the current statute without first assessing whether the statute still

requires that test. See Specialty Rests. Corp. v. Nelson, 231 P.3d 393, 403 (Colo. 2010).

Looking to the current statute’s plain text, I do not read it to require such disparate

treatment based on geography alone.

¶85     This court created the geographic limitation in the absence of any specific

instructions from the legislature. The legislature has since supplied those instructions.

With its 1986 amendment, the legislature identified the causal requirement we thought



                                            10
lacking in Schubert, stating broadly, “A person who is confined for an offense prior to

the imposition of sentence for said offense is entitled to credit against the term of his or

her sentence for the entire period of such confinement.” § 18-1.3-405 (emphases added).

Similarly, with its 1988 and 2009 amendments, the legislature identified precise

scenarios under which courts must avoid awarding duplicative credit: when (1) an

offender is already serving a sentence or is on parole or (2) an offender’s conduct has

triggered parole revocation proceedings. See id.

¶86    I see nothing instructing courts to award credit against the sentences for multiple

offenses charged in the confining jurisdiction but not toward those charged in other

jurisdictions. To the contrary, the legislature has required courts to award credit for

confinement “for an offense” so long as the offender was confined “prior to the

imposition of sentence for [that] offense.” Id. And this makes sense: A defendant

facing multiple charges is just as much confined “for an offense” whether the other

charge preventing her release originated within the confining jurisdiction or without.

Further, the inclusion of the two specific limitations to this general rule suggests

legislative intent that there be no others, such as a geographic limitation. See Cain v.

People, 2014 CO 49, ¶ 13, 327 P.3d 249, 253 (“[W]e read the General Assembly’s

inclusion of a single, specific, narrow exception to mean that the General Assembly

intended that there be no other exceptions to the rule . . . .”).

¶87    Thus, when multiple offenses concurrently cause an offender’s confinement and

only one of them results in a sentence, I conclude she is equally entitled to credit for her

entire period of confinement concurrently caused by those offenses, irrespective of


                                              11
where her confinement occurred. To effectuate the statutory purpose, she must receive

credit somewhere. See § 18-1.3-405.

¶88   And while I must presume the General Assembly legislates with awareness of

our case law, Vigil v. Franklin, 103 P.3d 322, 327 (Colo. 2004), three circumstances

suggest that the legislature’s amendments do not include or incorporate Massey’s

geographic restriction.   First, the current statute’s plain language covers the same

territory as our cases with greater specificity—the 1986, 1988, and 2009 amendments

correspond precisely to the concerns we raised in Schubert, 698 P.2d at 795, and Torand,

698 P.2d at 800–01. See Robles v. People, 811 P.2d 804, 806 (Colo. 1991) (holding that

when the legislature adds more specific sections to a general section, it may indicate an

intent to clarify the existing statute). Second, although we sometimes infer intent to

ratify case law when the legislature amends a statute but leaves a previously

interpreted provision unchanged, see Specialty Rests. Corp., 231 P.3d at 403, that

inference is unjustified here because the provision Massey interpreted did change.

Third, the current statute directly contravenes Massey by requiring some credit across

jurisdictions: It explicitly contemplates that offenders serving an existing sentence in

one jurisdiction will receive credit on that sentence for presentence confinement in

another jurisdiction on a new charge.

¶89   Finally, I note that while I have now arrived at the position Justice Lohr

advanced in his dissents to Massey and Freeman, I have done so because that is the

outcome the PSCC statute’s current plain language best supports.           The General

Assembly has stated the required causal connection and has limited its effects where


                                           12
necessary. This court should go no further. That those limitations require results at

odds with those the Massey test would have produced only further convinces me that

the legislature did not intend for us to retain Massey’s geographic limitation.

¶90    Thus, I would conclude that section 18-1.3-405 does not require an offender

seeking PSCC to show she would have remained confined in the same jurisdiction on

the charge for which credit is sought in the absence of any other charge. Instead, she

must show that she was confined for an offense before being sentenced for that offense

and that the offense shares a substantial nexus with the period of confinement for which

she seeks credit.

                                    D. Application

¶91    Applying my understanding of the substantial nexus test to the facts here, I

conclude Torrez is entitled to PSCC for the more than four years she spent confined

before being sentenced on any offense—from her arrest in Denver on March 23, 2004,

until she was sentenced in Jefferson County on July 25, 2008. The record demonstrates

that throughout that period, the offenses in both counties concurrently caused her

confinement and that her confinement shared a substantial nexus with the Jefferson

County offense.

¶92    First, the parties do not dispute that Torrez was arrested on both warrants before

being jailed in Denver. At all times before the Denver jury issued its not-guilty-by-

reason-of-insanity verdict, Torrez was confined—wherever she may have found herself

at the time—on both the Denver and Jefferson County charges. And following that

verdict, the Jefferson County order continued to confine Torrez in CMHIP, where she


                                            13
spent nearly two more years before pleading guilty and receiving her sentence in

Jefferson County. The Jefferson County offense was therefore an actual cause of her

confinement. Second, no other offense had already initiated Torrez’s confinement, and

until its resolution more than four years after her initial arrest, the Jefferson County

offense continued to prevent her release. Thus, the Jefferson County offense satisfies

the substantial nexus requirement in this context.

¶93    Moreover, because I agree with the court of appeals, People v. Torrez, 2012 COA

51, ¶ 17, ___ P.3d ___, and Justice Márquez, dis. op. ¶ 54 n.3, that time spent in CMHIP

constitutes confinement under section 18-1.3-405 (the term’s ordinary meaning confirms

that conclusion, and this court has never held otherwise), I believe Torrez must receive

credit for her period of confinement there as well.         On these facts, so long as

proceedings on the Jefferson County offense remained unresolved, Torrez was

“confined for an offense prior to the imposition of sentence for said offense,”

irrespective of where that confinement took place. Section 18-1.3-405 therefore entitles

her to credit against the Jefferson County sentence for her entire period of confinement.

                                     II. Conclusion

¶94    The majority today directs courts to award PSCC only when a defendant “would

have been released . . . had [the sentencing charges] not existed.” Maj. op. ¶ 3. This

court has never employed such a test, and the statute does not compel it. Instead, I

conclude the General Assembly’s amendments to that statute demonstrate its intent to

offer a broad grant of credit, which in turn entitles Torrez to PSCC on these facts.

Therefore, I respectfully dissent.


                                           14
I am authorized to state that JUSTICE GABRIEL joins in this dissent.




                                    15
