     The summaries of the Colorado Court of Appeals published opinions
  constitute no part of the opinion of the division but have been prepared by
  the division for the convenience of the reader. The summaries may not be
    cited or relied upon as they are not the official language of the division.
  Any discrepancy between the language in the summary and in the opinion
           should be resolved in favor of the language in the opinion.


                                                                  SUMMARY
                                                               August 9, 2018

                               2018COA118

Nos. 18CA0664 & 18CA0665, People v. Soto-Campos & People
v. Flores-Rosales — Criminal Law — Grand Juries —
Indictments — Probable Cause Review

     A division of the court of appeals considers whether the

defendants were entitled to a section 16-5-204(4)(k), C.R.S. 2017,

probable cause review, which lead to the dismissal of one grand

jury indictment count that allegedly charged the defendants with a

stand-alone sentence enhancer and not a substantive offense. The

division determines that, because section 16-5-204(4)(k) requires a

court to dismiss “any indictment” whose probable cause finding

lacks record support, the district court properly reviewed the

subject count under section 16-5-204(4)(k), regardless of whether

the defendants would have been entitled to a probable cause review
of the count in a preliminary hearing if not charged with a grand

jury indictment.

     Accordingly, the division affirms the orders.
COLORADO COURT OF APPEALS                                                    2018COA118


Court of Appeals No. 18CA0664
Jefferson County District Court No. 17CR4565
Honorable Laura A. Tighe, Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Yoel Soto-Campos,

Defendant-Appellee.

                -------------------------- AND ---------------------------

Court of Appeals No. 18CA0665
Jefferson County District Court No. 17CR4563
Honorable Laura A. Tighe, Judge


The People of the State of Colorado,

Plaintiff-Appellant,

v.

Fermin Flores-Rosales,

Defendant-Appellee.


                                ORDERS AFFIRMED

                                  Division III
                            Opinion by JUDGE FOX
                         Webb and Richman, JJ., concur

                            Announced August 9, 2018
Peter A. Weir, District Attorney, Michael Freeman, Deputy District Attorney,
Golden, Colorado, for Plaintiff-Appellant

Chad Oxman, Alternate Defense Counsel, Denver, Colorado, for Defendant-
Appellee Yoel Soto-Campos

Andres R. Guevara, Alternate Defense Counsel, Denver, Colorado, for
Defendant-Appellee Fermin Flores-Rosales
¶1    We are issuing a consolidated opinion for the appeals in case

 numbers 18CA0664 and 18CA0665. These cases arise from several

 defendants’ alleged involvement in a heroin distribution enterprise.

 The People appeal the district court’s pretrial orders (1) dismissing

 the sixty-first count of a grand jury indictment filed against

 defendants, Yoel Soto-Campos and Fermin Flores-Rosales

 (collectively, Defendants), for lack of probable cause; and (2)

 denying the prosecution’s later motions to reconsider. Because the

 district court did not err in reviewing the challenged count under

 section 16-5-204(4)(k), C.R.S. 2017, and the People do not

 otherwise challenge dismissal of this count, we affirm.

                           I.    Background

¶2    In December 2017, the prosecution filed a grand jury

 indictment against several defendants, including Soto-Campos and

 Flores-Rosales. The indictment’s sixty-first count (“Special Offender

 – Within 1000 Feet of a School”) charged as follows:

            On and between April 11, 2017, and December
            5, 2017, Fermin Flores-Rosales [and] Yoel
            Soto-Campos . . . possessed with intent to
            distribute a controlled substance within one
            thousand feet of the perimeter of any public or
            private elementary school; in violation of
            18-18-407(1)(g)(I) C.R.S.


                                    1
 The prosecution filed a superseding indictment containing the same

 sixty-first count the next month.

¶3    The Defendants’ attorneys then filed motions, in case numbers

 17CR4563 and 17CR4565, requesting that the district court

 conduct a probable cause review under section 16-5-204(4)(k).

 After reviewing the grand jury transcripts in camera, the court

 issued February 23, 2018, orders in both cases concluding that the

 record established probable cause for all counts except for the

 sixty-first, and dismissing that count. The prosecution then asked

 the court to reconsider, arguing that Soto-Campos and

 Flores-Rosales were not entitled to probable cause review of the

 sixty-first count because it was a sentence enhancer, not a

 substantive offense.

¶4    The district court denied the motions to reconsider. Although

 the court agreed that the sixty-first count was a sentence enhancer,

 it concluded that Soto-Campos and Flores-Rosales were “arguably”

 entitled to a preliminary hearing on that count, relying on People

 v. Simpson, 2012 COA 156, because “a defendant is entitled to a

 preliminary hearing on any sentence enhancer that must be proved

 beyond a reasonable doubt and that, if proved, would result in a


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 class 1, 2, or 3 felony conviction.” According to the court, even if

 Soto-Campos and Flores-Rosales were not entitled to a preliminary

 hearing on the subject count, conducting such a hearing was not

 reversible error. Lastly, the court explained that (1) the statute

 governing preliminary hearings differs from the statute governing

 probable cause reviews and (2) section 16-5-204(4)(k)’s plain

 language unambiguously requires a court to dismiss “any

 indictment of the grand jury” if the record does not support a

 probable cause finding.

¶5    The People appeal the district court’s orders.

         II.   Probable Cause Review of the Sixty-First Count

¶6    The People contend that the district court erred in conducting

 the probable cause review at issue because, considering legal

 principles governing preliminary hearings, the sixty-first count is a

 “stand-alone” sentence enhancer and, thus, not subject to review

 under section 16-5-204(4)(k). We are not persuaded.

               A.   Preservation and Standard of Review

¶7    The parties agree that this issue was preserved.

¶8    In reviewing a district court’s dismissal of a grand jury

 indictment, we review probable cause determinations for an abuse


                                    3
  of discretion, but we review conclusions of law de novo. People

  v. Collins, 32 P.3d 636, 640 (Colo. App. 2001); see also People

  v. Keene, 226 P.3d 1140, 1142 (Colo. App. 2009). A trial court

  abuses its discretion if its ruling is manifestly arbitrary,

  unreasonable, or unfair, or if it misapplies the law. People

  v. Relaford, 2016 COA 99, ¶ 25.

¶9     We review the interpretation of a statute de novo. People

  v. Fallis, 2017 COA 131M, ¶ 6. Our primary goal is to ascertain

  and effectuate the General Assembly’s intent. Id. We construe the

  statute’s language, where unambiguous, according to its ordinary

  meaning and apply the statute as written. Id.

                          B.    Law and Analysis

¶ 10   Defendants charged, by information or complaint, with certain

  felonies have the right to a preliminary hearing to “determine

  whether probable cause exists to believe that the offense charged in

  the information or felony complaint was committed by the

  defendant.” § 16-5-301(1)(a), C.R.S. 2017 (emphasis added); see

  also § 18-1-404(1), C.R.S. 2017 (substantially the same). “A

  preliminary hearing may be had with regard to offenses only,” not




                                      4
  mere sentence enhancers. Brown v. Dist. Court, 194 Colo. 45, 47,

  569 P.2d 1390, 1391 (1977).

¶ 11   The district court’s function in reviewing a grand jury’s finding

  of probable cause is similar to — but not the same as — the court’s

  role at a “preliminary hearing in determining the existence or

  absence of probable cause.” People v. Luttrell, 636 P.2d 712, 714

  (Colo. 1981). “[A]n indictment is the culmination of the probable

  cause screening process of the grand jury and . . . functions as a

  constitutionally adequate substitute for a preliminary hearing.”

  People v. Dist. Court, 199 Colo. 398, 401, 610 P.2d 490, 492 (1980);

  see also People v. Huynh, 98 P.3d 907, 910 (Colo. App. 2004)

  (reasoning that a defendant has no right to a preliminary hearing

  “after a grand jury has returned an indictment”).

¶ 12   Still, after a probable cause assessment during the grand jury

  proceedings, a defendant charged by indictment has “the further

  right to challenge the grand jury’s determination of probable cause”

  under section 16-5-204(4)(k). Dist. Court, 199 Colo. at 401, 610

  P.2d at 492. This section provides that a district court “shall

  dismiss any indictment of the grand jury if [it] finds . . . that the

  grand jury finding of probable cause is not supported by the


                                      5
  record.” (Emphasis added.) In conducting a review under section

  16-5-204(4)(k), the district court must view the evidence in the light

  most favorable to the prosecution. Luttrell, 636 P.2d at 714.

¶ 13   A section 16-5-204(4)(k) probable cause review is substantively

  different from a probable cause review in a preliminary hearing.

  Section 16-5-204(4)(k) provides for further examination — in

  addition to, and after, the examination performed during the

  indictment proceedings, which substitutes for a preliminary

  hearing, Dist. Court, 199 Colo. at 401, 610 P.2d at 492 — of the

  probable cause findings supporting the charges.

¶ 14   Section 16-5-204(4)(k)’s language is unambiguous and broad

  in scope. This statute differs from those governing preliminary

  hearings (sections 16-5-301(1)(a) and 18-1-404(1)), which expressly

  concern an “offense.” It is not limited to substantive offenses, but

  instead broadly requires a district court to dismiss “any indictment”

  based on a probable cause finding that lacks record support.

¶ 15   Construing this language according to its ordinary meaning,

  section 16-5-204(4)(k) allows for a broader probable cause review

  than at a preliminary hearing. See Fallis, ¶ 6. Importantly , this

  section covers any indictment. See Gainey v. United States, 318


                                    6
  F.2d 795, 797 (10th Cir. 1963) (“It has long been established that

  each count in an indictment, though contained in a single

  instrument, is to be regarded as a separate indictment[.]”); BP Am.

  Prod. Co. v. Colo. Dep’t of Revenue, 2016 CO 23, ¶ 18 (“When used

  as an adjective in a statute, the word ‘any’ means ‘all.’”) (citation

  omitted). Charging documents may include, as here, substantive

  offenses and sentence enhancers charged as separate counts. See,

  e.g., People v. Torrez, 2013 COA 37, ¶ 23 (discussing counts that

  are “only” sentence enhancers); Felts v. Cty. Court, 725 P.2d 61, 62

  (Colo. App. 1986) (addressing a case where a defendant was

  charged via a document containing substantive counts and “special

  offender” sentence enhancing counts).

¶ 16   Based on this unambiguous language, we need not decide

  whether the sixty-first count is a “stand-alone” sentence enhancer

  or is like the charge a division of this court considered in Simpson,

  ¶ 18 (concluding that a defendant was entitled to a preliminary

  hearing where he could be convicted of a class 3 felony only if the

  prosecution proved beyond a reasonable doubt that the property

  taken was worth a certain amount). Nor, for that matter, need we

  choose between Simpson and People v. Garcia, 176 P.3d 872, 874


                                      7
  (Colo. App. 2007) (holding that the defendant was not entitled to a

  preliminary hearing where he was not charged with a substantive

  felony offense requiring mandatory sentencing).

¶ 17   In other words — regardless of whether Soto-Campos and

  Flores-Rosales would have been entitled to a preliminary hearing on

  the sixty-first count had they not been charged by a grand jury

  indictment, see Huynh, 98 P.3d at 910 — the district court properly

  followed section 16-5-204(4)(k)’s mandate to review “any

  indictment.” And as indicated, the People do not dispute the

  district court’s finding that the grand jury record underlying the

  subject count does not support a finding of probable cause. We

  thus conclude that the district court did not err in conducting a

  probable cause review of the sixty-first count under section

  16-5-204(4)(k) and did not abuse its discretion in dismissing this

  count for lack of record support. See Fallis, ¶ 6; Relaford, ¶ 25.

                            III.   Conclusion

¶ 18   The orders are affirmed.

       JUDGE WEBB and JUDGE RICHMAN concur.




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